Hogan v Chief of Army - [1999] ADFDAT 1

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Hogan v Chief of Army [1999] ADFDAT 1

COURTS AND TRIBUNALS – jurisdiction of Defence Force Magistrate to hear 70 charges of dishonestly appropriating property contrary to s 47 of the Defence Force Discipline Act 1982 (Cth) – power of a commanding officer to deal with a charge – s 110 Defence Force Discipline Act 1982 (Cth) – power of a convening authority to amend a charge pursuant to s 141 Defence Force Discipline Act 1982 (Cth)

BIAS – apprehended bias – communication between the prosecutor and the Defence Force Magistrate not revealed to the Defence

Defence Force Discipline Act 1982, ss 3, 47(1), 86, 87, 103(1)(c), 104, 107(2), 110, 129(1), 141A
Defence Force Discipline Appeals Act 1955, ss 20(1), 23
Defence Force Discipline Rules, rr 8, 9(2), 15, 23
Acts Interpretation Act 1901 (Cth), ss 2(1), 15AA
Justices Act 1921 (SA), s 112
Defence Legislation Amendment Act No. 43 of 1995 (Cth), s 28, Schedule 2

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, referred to
R v Minister of Transport ex p H C Motor Works Ltd [1927] 2 KB 401, referred to
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, referred to
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, referred to
Craig v State of South Australia (1995) 184 CLR 163, cited
Pearlman v Harrow School [1979] QB 56 at 59, distinguished
R v Gray ex p Marsh (1985) 157 CLR 351, referred to
The Returned & Services League Of Australia (Victoria Branch) Inc (Pascoe Vale Sub Branch) Liquor Licensing Commission [1999] VSCA 37 (15 April 1999) , referred to
Re Tracey ex p Ryan (1989) 166 CLR 518, considered
Grassby v R (1989) 168 CLR 1, referred to
Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449, referred to
Patman v Fotographics Pty Ltd (1984) 6 IR 471, referred to
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, cited
Makin v Attorney-General for New South Wales [1894] AC 57, referred to
Boardman v Director of Public Prosecutions [1975] AC 421, referred to
Re JRL; Ex parte CJL (1986) 161 CLR 342, cited
R v Magistrates’ Court at Lilydale, ex parte Ciccone [1973] VR 122
Vakauta v Kelly (1989) 167 CLR 569, cited

IN THE MATTER OF THE DEFENCE FORCE DISCIPLINE APPEALS ACT 1955 and IN THE MATTER OF AN APPEAL AGAINST CONVICTION AND PUNISHMENT BY A DEFENCE FORCE MAGISTRATE OF 552805 SGT RICHARD JAMES HOGAN
RICHARD JAMES HOGAN v CHIEF OF ARMY

DFDAT No. 1 of 1999

GALLOP, UNDERWOOD AND MILDREN JJ
ADELAIDE
4 NOVEMBER 1999

GENERAL DISTRIBUTION

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL No. 1 of 1999

RE:IN THE MATTER OF THE DEFENCE FORCE DISCIPLINE APPEALS ACT 1955
AND:IN THE MATTER OF AN APPEAL AGAINST CONVICTION AND PUNISHMENT BY A DEFENCE FORCE MAGISTRATE…

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: [1999] ADFDAT 1
Decision Date: 4 NOVEMBER 1999

CaseChat Overview and Summary

The case of Hogan v Chief of Army involved a dispute concerning the jurisdiction of the Defence Force Magistrate to hear 70 charges of dishonestly appropriating property against Mr Hogan, under section 47 of the Defence Force Discipline Act 1982. Additionally, the case examined the power of a commanding officer to deal with the charges and the authority of a convening officer to amend a charge under section 141 of the same Act. The case was heard in the Federal Court of Australia.

The central legal issues in the case revolved around the jurisdiction of the Defence Force Magistrate to hear the charges against Mr Hogan and whether there was any apprehended bias on the part of the magistrate due to undisclosed communications with the prosecutor. The court had to determine whether the Defence Force Magistrate had the authority to hear the charges, considering the powers of the commanding officer and convening authority as outlined in the Defence Force Discipline Act 1982. Furthermore, the court examined whether any communications between the prosecutor and the magistrate that were not disclosed to the defence could lead to an apprehension of bias.

The court held that the Defence Force Magistrate had the jurisdiction to hear the charges against Mr Hogan. The court found that the powers of the commanding officer and the convening authority, as set out in the Defence Force Discipline Act 1982, did not preclude the magistrate from exercising jurisdiction over the charges. Additionally, the court concluded that the undisclosed communications between the prosecutor and the magistrate did not amount to apprehended bias, as there was no reasonable apprehension that the magistrate would not bring an impartial and unbiased mind to the case. The court determined that the magistrate's decision to hear the charges was lawful and that no bias was demonstrated.

The court's final orders confirmed the jurisdiction of the Defence Force Magistrate to hear the charges against Mr Hogan and dismissed the claim of apprehended bias. The case underscored the importance of transparency and adherence to the provisions of the Defence Force Discipline Act 1982 when dealing with charges against military personnel.

Orders