Re Tyler & Ors; Ex parte Foley - [1993] HCATrans 346

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IN THE HIGH COURT OF AUSTRALIA

Registry No C13 of 1993
In the matter of -
An application for a writ of prohibition against GROUP
CAPTAIN C.A. TYLER AM, WING
COMMANDER T.R. MARA, WING
COMMANDER I.M. LITTLE, WING
COMMANDER P.M. HEWITSON and
WING COMMANDER W.A. EVANS
President and Members of a
General Court Martial
Ex parte -
JOHN WILLIAM FOLEY

MASON CJ

BRENNAN J

DEANE J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 NOVEMBER 1993, AT 2.36 PM

Foley(2)

10/11/93

MR A.J. BELLANTO, QC:

May it please the Court, I appear

with my learned friend, MR M.L. BRABAZON, for the
prosecutor. (instructed by Sneddon Hall and Gallop)

MR G. GRIFFITH, OC: If the Court pleases, I appear with my

learned friend, MR D.R. BOUGHEN, for the

Commonwealth of Australia. We appear as a party
served to appear under Order 55 rule 12 of the
rules, if Your Honours please. This is a similar
procedure as adopted in Foley, and I think also in
Nolan. (instructed by the Australian Government
Solicitor)

MR L.S. KATZ:

Your Honours, I appear on behalf of the

Attorney-General for New South Wales, intervening

in the interest of the prosecutor. (instructed by
the Crown Solicitor for New South Wales)

MASON CJ:

Mr Bellanto.

MR BELLANTO:

May it please the Court.

Your Honours have

our outline of argument, I understand.

MASON CJ: Yes, we have.

MR BELLANTO: Together with a chronology, and some

additional material that will be referred to in due
course.

If the Court pleases. The prosecutor,

Wing Commander Foley, seeks a writ of prohibition
to restrain the respondents, who are members of a
general court martial, appointed under the Defence
Force Discipline Act 1982 from proceeding further
in the trial of the prosecutor for an alleged
offence against section 4 of that Act. Section 47
of the Defence Force Discipline Act is headed

Stealing and Receiving. The offence with which the
prosecutor is charged and which, it is conceded,

falls within the terms of the section if proven, is
essentially one of obtaining a financial benefit
from his employer, the Commonwealth, by deception
with intent to defraud.
Part VII of the same Act makes provision for

the trial and punishment of offences against the
Act by service tribunals comprised of officers of

the relevant service. None of the service
tribunals constituted by the Act is a court. That

complies with Chapter III of the Constitution. Nor
is there any right to trial by jury under the Act.
The Defence Force Discipline Act governs the
conduct of members of the armed forces, described
generally by the shorthand expression "defence
members", which is defined in section 3 of the Act,
and other persons subject to military law,

Foley(2)

10/11/93

described by the shorthand expression "defence
civilians".
Part III of the Act creates a range of offences, the majority of which are obvious and
predominantly disciplinary…

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: [1993] HCATrans 346
Decision Date

CaseChat Overview and Summary

Wing Commander Foley sought a writ of prohibition from the High Court of Australia to prevent a general court martial, constituted under the *Defence Force Discipline Act 1982* (Cth), from proceeding with his trial. The charge against Foley was for an alleged offence under section 47 of the Act, which concerns stealing and receiving, and was described as obtaining a financial benefit from the Commonwealth by deception with intent to defraud. The respondents were the President and members of this general court martial.

The central legal issue before the High Court was the constitutional validity of the *Defence Force Discipline Act 1982* (Cth) in so far as it provided for the trial of defence members and defence civilians by service tribunals, which were not courts, for offences that were cognate with ordinary criminal offences. Specifically, the court had to consider whether the Act, and particularly section 47, could be supported by the constitutional power to make laws with respect to the naval and military defence of the Commonwealth (section 51(vi) of the Constitution), and whether the provisions for trial by service tribunals complied with Chapter III of the Constitution, which pertains to the judicial power of the Commonwealth.

The court's reasoning, as indicated by the submissions, would likely have involved an analysis of the nexus between the offences created by the Act and the constitutional head of power. This would include considering whether the fact that the offences applied only to defence members and defence civilians was sufficient to bring them within the scope of section 51(vi). The court would also have had to determine whether the service tribunals constituted under the Act were courts within the meaning of Chapter III, and if not, whether the Act's provisions for trial by such tribunals were constitutionally permissible. The court's prior decision in *Nolan's case*, concerning section 61 of the same Act, would have been a significant point of reference in this analysis.

Orders