Stapleton v Chief of Army - [2009] ADFDAT 2

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Stapleton v Chief of Army [2009] ADFDAT 2
DEFENCE – appeal from Australian Military Court – corporal convicted of breach of general orders prohibiting “fraternisation” by making inappropriate sexual advances toward recruit – sentence of reduction in rank to private – whether failure by prosecution to call a witness resulted in material irregularity or substantial miscarriage of justice – whether judge failed to direct himself about unreliability of complainant – whether convictions unreasonable or unsafe and unsatisfactory – whether sentence manifestly excessive – whether leave should be granted to raise new ground that conduct alleged did not constitute fraternisation
WORDS AND PHRASES – “fraternisation”
Defence Force Discipline Act 1982 (Cth) ss 3, 29
Evidence Act 1995 (Cth) s 165
Evans v The Queen (2007) 241 ALR 400 cited
R v Baartman [2000] NSWCCA 298 cited
R v Kneebone (1999) 47 NSWLR 450 distinguished
R v Spencer [1986] AC 128 cited
R v Stewart [2001] NSWCCA 260 cited
The Queen v Apostilides (1984) 154 CLR 563 cited
RICHARD STAPLETON v CHIEF OF ARMY
DFDAT 8 of 2008
HEEREY J (PRESIDENT), WHITE J (DEPUTY PRESIDENT) AND DUGGAN J (MEMBER)
13 FEBRUARY 2009
MELBOURNE

IN THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 8 of 2008

ON APPEAL FROM THE AUSTRALIAN MILITARY COURT

BETWEEN:
RICHARD STAPLETON
Appellant

AND:
CHIEF OF ARMY
Respondent

JUDGES:

HEEREY J (PRESIDENT), WHITE J (DEPUTY PRESIDENT) AND DUGGAN J (MEMBER)

DATE OF ORDER:

13 FEBRUARY 2009

WHERE MADE:

MELBOURNE

THE TRIBUNAL ORDERS THAT:
1.The appeal be dismissed.
2.Leave to add a further ground of appeal be refused.

IN THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 8 of 2008

ON APPEAL FROM THE AUSTRALIAN MILITARY COURT

BETWEEN:
RICHARD STAPLETON
Appellant

AND:
CHIEF OF ARMY
Respondent

JUDGES:

HEEREY J (PRESIDENT), WHITE J (DEPUTY PRESIDENT) AND DUGGAN J (MEMBER)

DATE:

13 FEBURARY 2009

PLACE:

MELBOURNE

REASONS FOR DECISION

The appellant appeals the convictions and sentence imposed on 28 August 2008 by the Australian Military Court constituted by the Chief Military Judge, Brigadier Ian Westwood. The Chief Military Judge found the appellant guilty of three charges, charges 3, 5 and 7 on the charge sheet, that he failed to comply with a general order contrary to s 29 of the Defence Force Discipline Act 1982 (Cth) in that he failed to comply with the 1st Recruit Training Battalion Standing Orders Ch 7 par 7.16 dated 20 November 2006 which proscribed fraternisation between staff and trainees.
Paragraph 7.16 is headed “Fraternisation” and continues:
There is to be no fraternisation between: staff; staff and trainees; and trainees. Fraternisation includes:
(a)conduct of consensual or non-consensual sexual relations;
(b)conduct which has sexual overtones or suggests them;
(c)displays or expressions of affection;
(d)displays or expressions of intimacy;
(e)solicitation of recruits, trainees or subordinates; and
(f)any form of social relationship, including participation in any off-duty activities with trainees except when required to do so as part of training requirements, or at a function specifically authorised by the CO/CI.
The particulars of charge 3,…

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.

Continue reading Stapleton v Chief of Army

Details

AGLC: Stapleton v Chief of Army [2009] ADFDAT 2
Case: [2009] ADFDAT 2
Decision Date: 13 FEBRUARY 2009

CaseChat Overview and Summary

The appellant, Richard Stapleton, appeals against his convictions and sentence imposed by the Australian Military Court on 28 August 2008. Stapleton was found guilty of three charges, charges 3, 5 and 7, of breaching a general order prohibiting fraternisation between staff and trainees. The particulars of the charges alleged that Stapleton made inappropriate sexual advances towards a recruit, Recruit Robin Francis Pitt. The appellant contends that there was a material irregularity in the proceedings and a substantial miscarriage of justice occurred because the prosecution failed to call a material witness; that the Chief Military Judge failed to direct himself about the unreliability of the complainant; that the convictions are unreasonable or cannot be supported having regard to the evidence and/or are unsafe or unsatisfactory; and that the sentence is manifestly excessive. The appellant seeks leave to add a further ground that the convictions are bad in law as the elements do not reflect an offence. The respondent opposes leave. The tribunal found that there was no material irregularity or substantial miscarriage of justice because the prosecution was not obliged to call a witness who would have given evidence that was hearsay and to the effect that the appellant had allegedly committed another, more serious, offence. The tribunal also found that there was no requirement to make specific reference to s 165 of the Evidence Act nor to consider that that provision required any particular warning to be given. The tribunal found that the verdict was not unreasonable or unsafe because the evidence supported the conclusions to which the Chief Military Judge came. Finally, the tribunal found that the sentence was not manifestly excessive because the appellant's conduct constituted an abuse of rank as a corporal instructor. The tribunal refused leave to add a further ground of appeal that the convictions are bad in law as the elements do not reflect an offence. The tribunal dismissed the appeal and refused leave to add a further ground of appeal.

Orders