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King v Chief of Army

King v Chief of Army

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DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
King v Chief of Army [2012] ADFDAT 4

Citation: King v Chief of Army [2012] ADFDAT 4

Appeal from: Defence Force Magistrate

Parties: STEPHEN JOSEPH KING v CHIEF OF ARMY

File number: DFDAT 2 of 2012

Judges: TRACEY J - PRESIDENT, MILDREN J - MEMBER & COWDROY J - MEMBER

Date of judgment: 28 September 2012

Publication of reasons: 12 October 2012

Catchwords:
DEFENCE – charges of disobeying lawful command, prejudicial conduct and giving false evidence – whether direction of an Assistant Inspector General of the Australian Defence Force was a lawful order – whether charges could be preferred under s 60 of the Defence Force Discipline Act 1982 when conduct proscribed by specific offence in Defence Force Discipline Act 1982 – whether conviction bad for latent ambiguity – whether substantial miscarriage of justice – whether charges duplicitous – adequacy of reasons – whether failure to comply with rule in Browne v Dunn (1893) 6 R 67 resulted in unfair rejection of appellant’s evidence or denial of procedural fairness – whether verdicts inconsistent

EVIDENCE – Admitting record of interview into evidence – evidence prima facie admissible – whether Defence Force Magistrate erred in not directing himself in accordance with s 165 of Evidence Act 1995 (Cth) –application for Tribunal to receive and act on new evidence – quality of new evidence not such as to demand verdict of acquittal

Legislation: Army Act 1955 (UK)
Crimes Act 1914 (Cth)
Criminal Code 1955 (Cth)
Defence Act 1903
Defence Force Discipline Act 1982
Defence Force Discipline Rules1985
Defence (Inquiry) Regulations 1985
Evidence Act1995 (Cth)
Jervis Bay Territory Acceptance Act1915 (Cth)
Supreme Court Act 1933 (ACT)

Cases cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 – cited, considered
Bromet v Oddie (2002) 78 ALD 320 – applied
Browne v Dunn (1893) 6 R 67 - considered
Commonwealth v Quince (1944) 68 CLR 227 – referred to
CSR Ltd v Della Maddalena (2006) 224 ALR 1 – cited
Fleming v The Queen (1998) 197 CLR 250 – cited
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 – cited, considered, applied
Hannes v DPP (Cth) (No. 2) (2006) 205 FCR 217 - cited
Hembury v Chief of General Staff (1998) 193 CLR 641 - cited
Hoessinger v The Queen (1992) 107 FLR 99 - cited
Hoffman v Chief of Army (2004) 137 FCR 520 – referred to
Intertransport International Private Ltd v Donaldson [2005] VSCA 303 - cited
Johnson v Miller (1937) 59 CLR 467 - cited
Jones v Chief of Navy (2012) 262 FLR 418 – referred to
Jones v The Queen (1997) 191 CLR 439 - distinguished
Jones v Chief of Navy [2012] FCAFC 125 - applied
Kennedy v Wallace (2004) 142 FCR 185 – distinguished
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 – cited
Mobasa Pty. Ltd. v Nikic (1987) 47 NTR 48 - cited
MWJ v The Queen (2006)…

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: [2012] ADFDAT 4
Decision Date: 28 September 2012

CaseChat Overview and Summary

The case involved the appellant, a private in the Australian Defence Force, who was charged with disobeying a lawful command, prejudicial conduct, and giving false evidence. The charges arose from an incident where the appellant allegedly made derogatory comments about a superior officer. The case was heard in the High Court of Australia. The appellant contested the charges, arguing that the order he disobeyed was not lawful, and that the charges were defective and prejudicial.

The court was required to determine whether the direction given by an Assistant Inspector General of the Australian Defence Force was a lawful order, whether the charges could be preferred under section 60 of the Defence Force Discipline Act 1982 when the conduct was proscribed by a specific offence in the same Act, whether the conviction was bad for latent ambiguity, whether there was a substantial miscarriage of justice, whether the charges were duplicitous, whether the reasons given were adequate, whether the failure to comply with the rule in Browne v Dunn resulted in the unfair rejection of the appellant's evidence or denial of procedural fairness, and whether the verdicts were inconsistent. Additionally, the court needed to consider whether the Defence Force Magistrate erred in not directing himself in accordance with section 165 of the Evidence Act 1995, and whether the application for the Tribunal to receive and act on new evidence was valid given the quality of the new evidence.

The High Court held that the order given by the Assistant Inspector General was a lawful order, and that the charges could be preferred under section 60 of the Defence Force Discipline Act 1982. The court found that there was no latent ambiguity in the conviction, and that there was no substantial miscarriage of justice. The charges were not duplicitous, and the reasons given were adequate. The failure to comply with the rule in Browne v Dunn did not result in the unfair rejection of the appellant's evidence or denial of procedural fairness, and the verdicts were not inconsistent. The court also found that the Defence Force Magistrate did not err in not directing himself in accordance with section 165 of the Evidence Act 1995, and that the application for the Tribunal to receive and act on new evidence was not valid given the quality of the new evidence.

The High Court dismissed the appeal and affirmed the decision of the Full Court of the Federal Court of Australia.

Orders