Garcia v Westwood (No 2)
[2007] FCA 1803
•22 November 2007
FEDERAL COURT OF AUSTRALIA
Garcia v Westwood (No 2) [2007] FCA 1803
Defence Force Discipline Act 1982 (Cth)
Defence Force Discipline Rules 1985 (Cth)
Defence Force Discipline Appeals Act 1955 (Cth)
Australian Military Regulations 1927 (Cth)
Criminal Code Act 1995 (Cth)Re Clifford and O’Sullivan [1921] 2 AC 570
Platz v Osborne (1943) 68 CLR 133
R v Tait & Bartley (1979) 24 ALR 473
John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694
R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122
Re JRL; Ex parte CJL (1986) 161 CLR 342R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74
Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513
Webb v The Queen (1994) 181 CLR 41
Livesey v The New South Wales Bar Association (1983) 151 CLR 288
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291STEPHEN MAXWELL GARCIA v BRIGADIER IAN DENIS WESTWOOD AND CHIEF OF ARMY
NTD 12 OF 2007
MANSFIELD J
22 NOVEMBER 2007
DARWIN
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
NTD 12 OF 2007
BETWEEN:
STEPHEN MAXWELL GARCIA
ApplicantAND:
BRIGADIER IAN DENIS WESTWOOD
First RespondentCHIEF OF ARMY
Second Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
22 NOVEMBER 2007
WHERE MADE:
DARWIN
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The respondents pay to the applicant two thirds of his costs of the proceeding to be taxed or agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
NTD 12 OF 2007
BETWEEN:
STEPHEN MAXWELL GARCIA
ApplicantAND:
BRIGADIER IAN DENIS WESTWOOD
First RespondentCHIEF OF ARMY
Second Respondent
JUDGE:
MANSFIELD J
DATE:
22 NOVEMBER 2007
PLACE:
DARWIN
REASONS FOR JUDGMENT
INTRODUCTION
The system of military discipline under the Defence Force Discipline Act 1982 (Cth) (DFDA) is said by the applicant to operate under the same, or equivalent, rules of procedural fairness as apply at common law. That proposition is not disputed by the respondents.
The principal issue on this application is whether those rules have been contravened by the first respondent as Defence Force magistrate (the DFM) in convicting and sentencing the applicant on 26 June 2007 for certain offences. A second issue is whether the DFM committed jurisdictional error in the sentencing process by proceeding to impose sentence in circumstances where he did not have the power properly to do so having regard to s 70(2)(b) of the DFDA.
The respondents oppose the application on the grounds that no jurisdictional error on the part of the DFM has been shown to exist, and alternatively that no order should be made by the Court in any event because adequate alternative review processes are available to the applicant under the DFDA.
Most of the evidence was ultimately not contentious. Initially, and hardly surprisingly, the applicant’s case was based in part upon hearsay information but there is now direct evidence of the relevant events, and a transcript of the hearing before the DFM is also available.
The following therefore reflects my findings of fact. There is no ongoing conflicting direct evidence on any matter of significance.
THE FACTS
The applicant is a soldier in the Australian Army. He was charged with recklessly making a false and misleading statement in relation to an application for a benefit (contrary to s 56(4) of the DFDA); and engaging in conduct outside the Jervis Bay Territory that is a Territory offence, namely obtaining a financial advantage contrary to s 61(3) of the DFDA and s 135.2(1) of the Criminal Code Act 1995 (Cth).
The trial of the charges was conducted at Robertson Barracks, Palmerston, on 26 June 2007 before the DFM. The applicant pleaded guilty to both counts. He was convicted on both counts and sentenced to a concurrent sentence of 42 days detention at the Defence Force Correctional Establishment (DFCE).
During the course of the hearing, an issue arose as to the applicant’s medical fitness to undergo detention.
It appears from the transcript that the matter first arose in the course of evidence of Warrant Officer Crijn, when the DFM asked that witness why the applicant was on rehabilitation duties. The witness was asked whether he could express a view as to whether that would affect the applicant’s fitness to undergo detention. Just before the luncheon adjournment, the DFM again raised the issue with the defending officer. The DFM suggested that the applicant be examined during the luncheon adjournment to ascertain whether a certificate of fitness for him to undergo detention would be given or not. The DFM asked the clerk of the court to make arrangements for the applicant to be seen by one of the medical officers for a certificate to be retained as to whether he is fit to undergo detention. After the break, the defending officer informed the DFM that the applicant had attended the medical officer for examination, but was told that the medical officer “was unable to make an assessment” although the defending officer produced a Medical Employment Classification Advice of 20 March 2007. He was told that the medical officer had declined to provide a medical opinion because he did not think he could do so unless the applicant had been sentenced to a term of detention. I was told that the medical officer probably understood that he was being required to provide a medical certificate as required by para 31 of the Defence Instruction (General) Personnel 45-3 which requires a soldier under sentence to be medically examined not more than 24 hours before a period of military detention is undergone to assess the fitness of that soldier under sentence to undergo that regimen of military detention. The purpose of the request of the DFM was to assist in the sentencing process itself.
The applicant’s evidence is that he drove himself to the relevant Medium Regiment Regimental Aid Post and spoke briefly to Dr Munro, who said the applicant did not have the correct paperwork and that he could not be assessed until he had been sentenced. He provided the applicant with a copy of the applicant’s current Medical Employment Classification Advice (of 20 March 2007). After the luncheon adjournment, the DFM again adjourned the proceeding for a short time, during which the Defending Officer spoke to Dr Munro over the telephone and requested that he provide a certificate regarding the applicant’s medical fitness for detention. The relevant form was obtained from Dr Munro during the adjournment although the applicant did not see Dr Munro again during that time. Dr Munro did not attend the court in person. Dr Munro’s opinion was on a form headed “Medical or Dental Fitness Advice” and said that the applicant was fit to undergo detention, within his current restrictions in accordance with the Medical Employment Classification Advice.
Both those certificates were tendered in evidence by the defending officer on behalf of the applicant. The DFM indicated that they were relevant as a period of detention was within the range of appropriate punishments, the applicant having pleaded guilty to the two offences, and so that the applicant had an appropriate opportunity to be heard in connection with that possibility. Submissions as to sentence generally were then made. There was no application by the defending officer on behalf of the applicant for a further adjournment of the hearing whilst further medical evidence was sought to be obtained on his behalf as to his fitness to undergo detention, or in any other respect.
The sentence was then duly imposed.
The DFM then ordered the applicant into the custody of two military escorts and signed a Warrant of Commitment to Detention. The proceedings were concluded at 6:26 pm, at which time the DFM said “I formally dissolve the court”.
Following the conclusion of the proceedings, the applicant was taken to the 8/12 Medium Regiment Regimental Aid Post, where Dr Munro conducted a full medical assessment and completed a further set of paperwork in respect of the applicant’s medical condition. The result of that assessment was that Dr Munro expressed the opinion that the applicant was not fit to undergo detention. That opinion was given to address the requirement of the Defence Instruction (General) Personnel 45-3 referred to above.
The applicant was informed of Dr Munro’s change of opinion and subsequently informed the Defending Officer by telephone. The Defending Officer informed Major Shires, a Senior Legal Officer responsible for the administration of the applicant’s trial. Major Shires then informed Captain Vithanage, as the Administrative Officer for the applicant’s trial, by telephone at approximately 8:45 pm that the applicant had been reassessed as medically unfit for detention. Major Shires’ evidence was that she told Captain Vithanage that the service tribunal had dissolved and therefore nothing could be done through the DFM; and they agreed that he should be informed “as a matter of courtesy only”.
I find then that Major Shires had a telephone conversation with the Defending Officer at approximately 9:15 pm that evening. I accept her evidence that the Prosecutor happened to be present with the Defending Officer at the time. The Prosecutor declined to give advice about what to do in the circumstances without first speaking to his superior officer, as the court had been dissolved and he did not consider it was a matter for him. The Defending Officer also did not propose to inform the DFM of the changed opinion of Dr Munro, although he approved Major Squires informing the DFM of that fact as a matter of courtesy. That task then fell to Captain Vithanage.
Captain Vithanage telephoned the DFM at approximately 9:30 pm and informed him of Dr Munro’s change of opinion. Captain Vithanage gave evidence as to the effect of that conversation as follows:
Capt. TV:Garcia has been found to be medically unfit for detention in the post sentence medical review at approximately 18.00 hrs and Garcia was admitted into the Robertson Barracks Medical Centre.
Brig. IW: Oh really. It appears that I’ve been [misled].
Capt. TV:If the member was to become fit for detention, given that we don’t know the reasons for the change in fitness, we should be able to proceed with the sentence of detention. Another option may be to get him reviewed in the morning by another doctor, given the one doctor had changed his mind in the space of four hours. What are your thoughts on the matter?
Brig. IW:It would be a wise course of action to have the member reviewed again, given the medical assessment has changed in such a short time. The trial has been dissolved, so there is not really much anyone can do other than to await the DFDA review process.
Capt. TV:What are your thoughts about the situation if the member was to become fit for detention in a week or two, could we take him back into custody?
Brig. IW: It is not a matter for me to provide a formal opinion on.
I accept that she did not receive at any time during that discussion any order from the DFM to do anything arising from or in connection with the matters discussed.
Major Shires said that Captain Vithanage relayed to her the conversation she had just had with the DFM, including that the DFM had confirmed that it was no longer a matter for him as the court had been dissolved; but did however suggest that he assumed the applicant would be reassessed the next day by a senior medical officer. Major Shires did not take this comment to be a direction or order to her or her office from the DFM.
The Defending Officer’s evidence presents a slightly different emphasis. Major Shires telephoned him the following morning and indicated that Captain Vithanage had spoken to the DFM. He deposed that upon hearing this he was “concerned”, as Major Shires said words to the effect that Captain Vithanage had spoken to the DFM and asked him for advice on how to proceed and that the DFM told her to seek a further opinion. As Captain Vithanage’s communication with the DFM was not made in his presence, I do not prefer that indirect evidence of the communication between Captain Vithanage and the DFM.
Major Shires then arranged to have the applicant reassessed by a Senior Medical Officer the following morning. She did so first because Dr Munro had given two different opinions as to the applicant’s medical fitness within a short space of time; and secondly because it is normal procedure if a member is deemed unfit for detention that they will be reassessed every day or until they are fit. The applicant was then seen by Dr Money, a Senior Medical Officer at the Robertson Barracks Medical Centre (RBMC) who pronounced him fit to undergo detention. There is some evidence from the applicant about the nature and extent of that examination, but it is not directly relevant to the present case.
The applicant subsequently instructed the Defending Officer on 27 June 2007 to lodge a petition on his behalf under s 153(1) of the DFDA and to seek a stay of execution of punishment pursuant to s 176 of that Act. The petition relied solely on the ground that the sentences were manifestly excessive. The stay was granted by the reviewing authority. The applicant was released from detention pending determination of the petition pursuant to s 176 of the DFDA. On 10 July 2007 a report on the proceedings was completed, as required under s 154, by Colonel Gunson RFD SC (a Section 154 Reporting Officer) who indicated that no action needed to be taken with respect to the petition as none of the criteria in s 162(1) of the DFDA were made out. Upon receipt of the s 154 report, the reviewing authority (Commander, Northern Command) upheld the applicant’s conviction and punishment and revoked the stay of execution of punishment on 11 July 2007. The applicant was subsequently transported to the RBMC. Upon arriving at the RBMC, the applicant was assessed by Dr Stacey between 6:30 pm and 8:00 pm. Dr Stacey also formed the view that the applicant was medically fit to undergo detention at that time.
RELIEF SOUGHT
It is common ground the DFM became functus officio once he had convicted and sentenced the applicant and had dissolved the Court on 26 June 2007. See e.g. Re Clifford and O’Sullivan [1921] 2 AC 570 at 591; Platz v Osborne (1943) 68 CLR 133 at 139-140. Hence, it is also common ground that the DFM had no jurisdiction or power or authority to give any directions or orders concerning the fitness for detention of the applicant once he had pronounced sentence and dissolved the Court. That became an administrative matter to be addressed under the Defence Instruction referred to above. There is no need to make any declaratory orders on those matters.
The relief sought by the applicant is, in essence:
(1)a declaration that the conviction and sentence imposed upon the applicant is null and void as the decision and/or conduct of the DFM was tainted by apparent bias; and
(2)a declaration that the communication between Captain Vithanage and the DFM in respect of the applicant in the absence of the Defending Officer and the Prosecutor violated the constitutional principle of open justice.
In addition, the applicant seeks an order in the nature of certiorari to have the conviction and sentence imposed upon him quashed; and an order of prohibition against the second respondent prohibiting him by his officers from removing the applicant to the DFCE at Holdsworthy, New South Wales in pursuance of the conviction and sentence.
The applicant also contends that the sentence should be set aside because the DFM was obliged, as a matter of law, by s 70(2)(b) of the DFDA to have regard to the applicant’s physical and mental condition before imposing sentence and that, in the circumstances, he did not do so. He seeks leave to amend the application in the following terms to formally raise that issue:
A declaration that the conviction and sentence imposed upon the Applicant by the First Respondent is null and void as the decision and/or conduct of the First Respondent was tainted by a denial of procedural fairness, apparent bias and failed to take into account relevant considerations and/or taking into account irrelevant considerations.
Particulars
1.The first respondent was bound to consider the sentencing principles set out in section 70 of the Defence Force Discipline Act 1982 including section 70(2)(b) thereof.
2.The first respondent was misled by the contents of Exhibit 10 in the proceedings and failed to take into account a relevant consideration namely, that a proper medical assessment had not been conducted in respect of the applicant.
3.The first respondent took into account the erroneous content of Exhibit 10 and thereby took into account an irrelevant consideration, namely that Exhibit 10 did not state accurate facts in that the applicant had not undergone a proper medical assessment.
One contention may be dealt with shortly in relation to the relief claimed. That is that there was a breach of the rules of procedural fairness in the conduct of the proceedings by the DFM by the DFM participating in the discussion with Captain Vithanage on the evening of 26 June 2007. Senior counsel for the applicant stressed the principles of open justice: see e.g. R v Tait & Bartley (1979) 24 ALR 473 at 487; John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 at 703. The application of that principle was explained by McInerney J in R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127, and his Honour’s remarks were cited with approval by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 350-351.
In my view, that principle does not of itself advance the applicant’s claim for relief. That is simply because, whatever the significance the communications with the DFM on the evening of 26 June 2007, there was at the time of that conversation no ongoing obligation on the part of the DFM to accord procedural fairness to the applicant. The relevant role of the DFM had been spent. He had no jurisdiction or power at that time to do anything to alter or affect the status or the rights of the applicant. It was common ground that he had no power to re-open the sentencing process.
Consequently, in my judgment, that complaint on the part of the applicant cannot succeed.
Shortly after the hearing, the respondents sought to raise a further issue. They contended that, if the Court were to grant the relief claimed, the applicant would thereby be acting as a review authority under the DFDA and somehow the applicant could not thereafter be re-sentenced for the conduct which he admitted. It was said, therefore, that the issue was of general significance to the second respondent. That necessitated a further hearing. However, I do not need to record in detail the submission on that point. At the further hearing, senior counsel then appearing for the respondents did not pursue the point.
The other feature of the DFM’s conduct upon which the applicant relies to demonstrate bias or ostensible bias on his part is the nature of his participation in these proceedings.
The observations of the High Court (Gibbs, Stephen, Mason, Aickin and Wilson JJ) in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36 are apposite. I do not need to expand on that conclusion, as it was one ultimately not disputed by the DFM or by the second respondent. It is a conclusion which, I consider, also accords with the approach of the Court in Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74; and Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513. The DFM’s conduct extended so far as to explicitly indicate to the applicants that, if he maintained these proceedings, the DFM as well as the second respondent would seek costs against him.
However, I do not take that conduct on the part of the DFM as demonstrating that, in the making of the decision which is now challenged, he did not approach the task with a mind closed to the applicant’s position, or that in reaching his conclusion as to the appropriate sentence a fair minded observer might reasonably apprehend that he did not bring an impartial mind to that question: Webb v The Queen (1994) 181 CLR 41; Livesey v The New South Wales Bar Association (1983) 151 CLR 288.
The role of the DFM adopted in the conduct of this proceeding did not involve any attempt to conceal from the Court the events which occurred either during or after the hearing on 26 June 2007. My findings as to what he said when approached on 26 June 2007 do not add colour to his conduct of this proceeding in any way adverse to him. I have reached the view that the way in which he conducted this proceeding, with the second respondent, up to 30 June 2007 does not support the conclusion for which the applicant contends. That is so whether taken alone, or with the events of the evening of 26 June 2007.
Thus, although a denial of procedural fairness will demonstrate jurisdictional error on the part of the DFM, see e.g. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, I am not persuaded that the DFM failed to accord procedural fairness to the applicant in reaching the decision as to the sentence to be imposed upon him.
THE SENTENCE: FAILURE TO COMPLY WITH S 70(2)(b)
In my judgment, the DFM did not fail to have regard to the applicant’s physical and mental condition before imposing sentence. He specifically raised that matter with the defending officer. The communications on the matter are set out in [9] – [11] above. The defending officer ultimately tendered the two certificates provided by Dr Munro. There is no suggestion that the applicant through defending counsel did not have the opportunity to present to the DFM such material as he wished or to make such submissions as he wished on the topic.
The two certificates of Dr Munro suggest that his examination of the applicant may have been quite cursory. But there is an initial difference between a decision-maker failing to take into account a relevant consideration on the one hand and a decision-maker taking into account a relevant consideration in a way with which the Court may, as a matter of judgment, disagree: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 – 41. The significance of evidence, and its weight, is a matter for the decision-maker. Provided the decision-maker gives “proper, genuine and realistic consideration” to the relevant consideration, the Court cannot substitute its view of the facts for that of the decision-maker: see per Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291.
I do not think the DFM failed to have regard to that relevant consideration. He raised the issue and he invited defending counsel to address it. He was entitled, in the circumstances, to act upon the material defending counsel put forward on behalf of the applicant.
The Court may not substitute its view of the facts for those of a decision-maker such as the DFM. To disagree on the facts is not to demonstrate jurisdictional error. However, jurisdictional error may be demonstrated if a decision reached is so unreasonable that no reasonable decision-maker could have made it: see per Mason J in Peko-Wallsend 162 CLR at 40. It is not necessary to consider whether that would itself expose jurisdictional error, or would tend to expose some underlying error of law or process so as to amount to jurisdictional error. I do not consider in the circumstances that the DFM’s sentence falls within that description by reason of his approach to s 70(2)(b) of the DFDA.
CONCLUSION
For the reasons given, in my judgment the applicant has not demonstrated such error on the part of the DFM as to entitle him to the relief claimed. It is therefore not necessary to consider whether, in the exercise of my discretion, I would have granted that relief.
I have reached the view that the respondents should pay to the applicant two thirds of his costs of the proceeding to be taxed or agreed. The respondents, as successful parties, would prima facie be entitled to their costs. But there are two factors which influence me to the order I propose. The first is the role taken by the DFM. That is a matter which was specifically taken into account by Burchett and Drummond JJ in Commonwealth v Human Rights and Equal Opportunity Commission 76 FCR at 527 and 531. The second is that the respondents’ (subsequently the second respondent’s) application to argue a further matter and the consequential hearing on 30 July 2007 ultimately was not pursued; it required further preparatory work by the applicant and a further attendance and written submissions by his legal counsel. The costs have been reduced by one third to reflect the fact that the applicant has been unsuccessful in his claim.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 22 November 2007
Counsel for the Applicant: Mr C McDonald QC with Mr Mjr S Lee Solicitor for the Applicant: Woodcock Solicitors Counsel for the Respondents on
20 July 2007:Mr T Berkley with Mr W Roper
Counsel for the First Respondent on 30 July 2007: Ms J Kelly Counsel for the Second Respondent on 30 July 2007: Mr M Maurice QC Solicitor for the Respondents: Clayton Utz Dates of Hearing: 20, 30 July 2007 Date of Judgment: 22 November 2007
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