Leith v Chief of Army - [2013] ADFDAT 4

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Leith v Chief of Army [2013] ADFDAT 4

Citation: Leith v Chief of Army [2013] ADFDAT 4

Appeal from: Defence Force Magistrate

Parties: OLIVER SEBASTIAN LEITH v CHIEF OF ARMY

File number: DFDAT 7 of 2012

Judges: TRACEY, COWDROY & LOGAN JJ

Date of judgment: 20 August 2013

Catchwords: DEFENCE – convictions relating to theft of ammunitions and disobedience of lawful command – whether Judge Advocate erred in admitting evidence – consideration of “special circumstances” under s 101JA(3) of the Defence Force Discipline Act 1982 (“the DFDA”) – balancing the interests of justice – double jeopardy – whether the Judge Advocate erred in convicting the appellant of theft contrary to s 47C of the DFDA in light of conviction under s 34 of the Explosives Act 1999 (Qld) – consideration of “substantially the same” under s 144 of the DFDA

Legislation:
Army Act 1955 (UK) – s 134
Crimes Act 1914 (Cth) – s 23V
Crimes Act 1958 (Vic)
Criminal Code 1995(Cth) – s 131.1
Defence Force Discipline Act 1982 (Cth) – ss 26, 27, 45, 47C, 47E, 47M, 101JA, 142, 144, 152, Sch 6
Defence Force Discipline Appeals Act 1955 (Cth) – ss 21,
Evidence Act 1995 (Cth) – s 90, 138
Explosions Act 1999 (Qld) – ss 34, 144
National Defence Act 1985 (Can) – s 66
Penalties and Sentences Act 1992 (Qld) – ss 12, 44
The Constitution (Cth) – s 51(vi)
Theft Act 1968 (UK) – s 3

Defence Force Discipline Bill 1982 – Explanatory Memorandum
Report of the 1973 Working Party in respect of a Defence Force Disciplinary Code

Cases cited:
Burdett v Abbot (1812) 4 Taunt. 401 [128 E.R. 384] - considered
Connelly v Director of Public Prosecutions [1964] A.C. 1254 - applied
Coutts v The Commonwealth (1985) 157 CLR 91 - cited
Director of Public Prosecutions v Gomez [1993] AC 442 - considered
Groves v The Commonwealth (1982) 150 CLR 113 - discussed
House v The King (1936) 55 CLR 499 - considered
M v The Queen (1994) 181 CLR 487 - applied
Marks v The Commonwealth (1964) 111 CLR 549 - discussed
McWaters v Day (1989) 168 CLR 289 – referred to, discussed
Pearce v The Queen (1998) CLR 610 - applied
R v Armstrong (2010) 202 A Crim R 478 - cited
R v Barklimore (2007) 167 A Crim R 377 - discussed
R v JF (2009) 237 FLR 142 - discussed
R v Orellana (No 2) [2009] NSWDC 152 - applied
R v Waters (2002) 129 A Crim R 115 - applied
Re Tracey; Ex parte Ryan (1989) 166 CLR 518 – cited, discussed
The Commonwealth v Welsh (1974) 74 CLR 245 - cited
Yewsang v Chief of Army [2013] ADFDAT 1 - discussed

Ormerod D, Smith and Hogan Criminal Law (12^th ed, Oxford University Press, 2008) 741
Oxford English Dictionary 2013 (Oxford University Press) viewed 12 June 2013

Date of hearing: 5 June 2013

Place: Melbourne (heard in Townsville)

Category: Catchwords

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: [2013] ADFDAT 4
Decision Date: 20 August 2013

CaseChat Overview and Summary

The case of Leith v Chief of Army involved the appellant, a member of the Australian Defence Force, who was charged with offences under the Defence Force Discipline Act 1982, as well as the Explosives Act 1999 (Qld). The appellant was found guilty of theft of ammunition and disobedience of a lawful command. The appellant appealed against the convictions to the Full Court of the Federal Court, arguing that the Judge Advocate had erred in admitting certain evidence and in convicting him of theft contrary to the Defence Force Discipline Act 1982.

The central legal issues in this case were whether the Judge Advocate erred in admitting evidence under section 101JA(3) of the Defence Force Discipline Act 1982 and whether the appellant’s conviction for theft under the Defence Force Discipline Act 1982 was contrary to the principle of double jeopardy, given his prior conviction under the Explosives Act 1999 (Qld). The court was required to consider whether the Judge Advocate had correctly balanced the interests of justice in admitting evidence and whether the two theft convictions were substantially the same, as required by section 144 of the Defence Force Discipline Act 1982.

The Full Court held that the Judge Advocate did not err in admitting evidence and that the appellant’s conviction for theft under the Defence Force Discipline Act 1982 was not contrary to the principle of double jeopardy. The court found that the Judge Advocate had correctly considered the “special circumstances” under section 101JA(3) of the Defence Force Discipline Act 1982 and had balanced the interests of justice in admitting the evidence. The court also found that the two theft convictions were not “substantially the same” as required by section 144 of the Defence Force Discipline Act 1982, as the offences involved different types of property and different legal frameworks.

The Full Court dismissed the appeal and upheld the convictions. The court found that the Judge Advocate had correctly considered the evidence and that the appellant’s convictions did not contravene the principle of double jeopardy. The court held that the Judge Advocate had correctly balanced the interests of justice in admitting evidence and that the two theft convictions were not substantially the same. The appeal was dismissed, and the convictions were upheld.

Orders