Green v Chief of Army - [2011] ADFDAT 2

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Green v Chief of Army [2011] ADFDAT 2

Citation: Green v Chief of Army [2011] ADFDAT 2

Appeal from: General Court Martial

Parties: JOHN LENNY GREEN v CHIEF OF ARMY

File number: DFDAT 4 of 2010

Members: TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & DUGGAN J – MEMBER

Date of judgment: 22 June 2011

Catchwords:
CRIMINAL LAW – charge of obtaining financial advantage through false or misleading statement – in connection with an allowance– no mistaken belief as to possessory or proprietary right – defence of right open to applicant

EVIDENCE – unsafe and unsatisfactory conviction alleged – new evidence – not admitted – ground not made out

Legislation: Crimes Act 1958 (Cth) s 83A
Criminal Code Act 1995 (Cth) ss 9.5, 135.2
Defence Force Discipline Act 1982 (Cth) ss 56, 61
Defence Force Discipline Appeals Act 1955 (Cth) s 23

Cases cited: Ostrowski v Palmer (2004) 218 CLR 493 referred to
R v Gatzka [2004] VSCA 121 cited
R v Turnbull (1943) 44 SR (NSW) cited

Date of hearing: 29 April 2011

Place: Melbourne (heard in Brisbane)

Division: GENERAL

Category: Catchwords

Number of paragraphs: 38

Counsel for the Appellant: LEUT R Clutterbuck

Solicitor for the Appellant: Defence Legal Canberra

Counsel for the Respondent: LTCOL H Dempsey & LEUT M Donaldson

Solicitor for the Respondent: Office of the Director of Military Prosecutions

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 4 of 2010

BETWEEN:
JOHN LENNY GREEN
Appellant

AND:
CHIEF OF ARMY
Respondent

MEMBERS:

TRACEY J - PRESIDENT, WHITE JA – DEPUTY PRESIDENT & DUGGAN J – MEMBER

DATE OF ORDER:

22 JUNE 2011

WHERE MADE:

MELBOURNE (HEARD IN BRISBANE)

THE TRIBUNAL ORDERS THAT:
1. The appeal be dismissed.

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 4 of 2010

BETWEEN:
JOHN LENNY GREEN
Appellant

AND:
CHIEF OF ARMY
Respondent

MEMBERS:

TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & DUGGAN J – MEMBER

DATE:

22 JUNE 2011

PLACE:

MELBOURNE (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

Major John Green seeks leave to appeal from his convictions, on four counts, by a General Court Martial. He was found guilty of one charge of knowingly making a false statement in relation to an application for a benefit under s 56(1) of the Defence Force Discipline Act 1982 (Cth) (“the DFDA”) and three counts of obtaining financial advantage by receiving payments to which he was not entitled contrary to s 61(3) of the DFDA when read with s 135.2 of the Criminal Code Act 1995 (Cth) (“the Criminal Code”).
The circumstances in which the charges came to be laid date back to 2007. In that year both Major Green and his wife, who was a RAAF Officer, were serving in Canberra. They were advised that, in 2008, they would both be posted to units in Queensland. Major Green was to be posted to Enogerra Barracks in Brisbane and his wife was to be posted to the RAAF Base at Amberley. At relevant times Major Green and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] ADFDAT 2
Decision Date: 22 June 2011

CaseChat Overview and Summary

The applicant, Green, appealed against his conviction for obtaining a financial advantage by making a false or misleading statement in relation to an allowance. The appeal was heard in the High Court of Australia. The applicant argued that the trial judge misdirected himself in law by not considering that there was a defence of right available to him. Green contended that he did not have a mistaken belief as to his possessory or proprietary right when he claimed the allowance.

The central legal issue was whether the applicant could be convicted of obtaining a financial advantage by a false or misleading statement if he had a defence of right available to him. The applicant argued that the trial judge should have considered the possibility that he had a defence of right, which would have negated his liability for the offence. The court needed to determine whether the trial judge's failure to consider this defence amounted to a misdirection of law.

The court held that the trial judge's failure to consider the defence of right did not amount to a misdirection of law. The court found that the applicant had not established that he had a defence of right available to him, and therefore the trial judge's failure to consider this defence did not affect the safety and satisfaction of the conviction. The court further found that the new evidence adduced by the applicant was not such as to raise a reasonable doubt as to his guilt. The appeal was dismissed.

The High Court dismissed the appeal and affirmed the applicant's conviction. The court held that the trial judge's failure to consider the defence of right did not amount to a misdirection of law, and that the new evidence was not sufficient to raise a reasonable doubt as to the applicant's guilt.

Orders