Williams v Chief of Army - [2016] ADFDAT 3

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Williams v Chief of Army [2016] ADFDAT 3

Appeal from: Defence Force Magistrate

File number: DFDAT 4 of 2015

Judges: TRACEY J (PRESIDENT), BRERETON AND HILEY JJ (MEMBERS)

Date of judgment: 16 December 2016

Catchwords: DEFENCE – appellant convicted of one charge before Defence Force Magistrate, acquitted of two other charges – whether DFM had jurisdiction to hear and determine the charges – consideration of “service connection” and “service status” tests of jurisdiction – DFM had jurisdiction – whether DFM erred in consideration of any inconsistencies in complaint evidence – whether the DFM’s finding of guilt on Charge 1 was inconsistent with acquittals on Charges 2 and 3 – appeal dismissed

Legislation:
Defence Force Discipline Act 1982 (Cth)

Defence Force Discipline Appeals Act 1955 (Cth), ss 20(1), 21(1)(b), 23(1)(a), 23(1)(b), 23(1)(d), 41(a)

Evidence Act 1995 (Cth), s 66(2)

Cases cited:
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Hardcastle v Commissioner of Police (1984) 53 ALR 593

Lane v Morrison (2009) 239 CLR 230

MacKenzie v The Queen (1996) 190 CLR 348

Mills v Martin (1821) 19 Johnson’s Supreme Court Reports (NY) 7

New South Wales Bar Association v Cummins (2001) 52 NSWLR 279

O'Callahan v Parker 395 US 258 (1969)

Papakosmas v The Queen (1999) 196 CLR 297

R v Murray (1987) 11 NSWLR 12

R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1

R v White; Ex parte Byrnes (1963) 109 CLR 665

Re Aird; Ex parte Alpert (2004) 220 CLR 308

Re Nolan; Ex parte Young (1991) 172 CLR 460

Re Tracey; Ex parte Ryan (1989) 166 CLR 518

Relford v US Disciplinary Commandant 401 US 355 (1971)

Solorio v United States 483 US 435 (1987)

The Shell Company of Australia Limited v Federal Commissioner of Taxation (1930) 44 CLR 530

White v Director of Military Prosecutions (2007) 231 CLR 570

Date of hearing: 31 March 2016

Category: Catchwords

Number of paragraphs: 119

Counsel for the Appellant: Mr R Clutterbuck and Mr G Kalimnios

Solicitor for the Appellant: Bevan Bowe Solicitors

Counsel for the Respondent: Mr D McLure SC and Mr J Nottle

Solicitor for the Respondent: Director of Military Prosecutions

ORDERS

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 4 of 2015

ON APPEAL FROM DEFENCE FORCE MAGISTRATE

BETWEEN:
ANDREW LEWIS WILLIAMS

Appellant

AND:
CHIEF OF ARMY

Respondent

JUDGES:

TRACEY J (PRESIDENT), BRERETON AND HILEY JJ (MEMBERS)

DATE OF ORDER:

16 DECEMBER 2016

THE TRIBUNAL ORDERS THAT:
1.The period within which the appeal and application for leave to appeal herein must be lodged be extended to the date on which it was lodged.
2.Leave to appeal, insofar as it is required, be granted.
3.The appeal be dismissed.

REASONS FOR DECISION
TRACEY AND HILEY JJ:

The appellant, Sergeant Andrew Lewis Williams, pleaded not guilty to three charges, as follows (the crucial conduct in each being emphasised):
(1)[DFDA s 61(3) and Crimes Act 1900 ACT s 60(1)] Engaging in conduct outside the Jervis Bay Territory that is…

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: [2016] ADFDAT 3
Decision Date: 16 December 2016

CaseChat Overview and Summary

In the case of Williams v Chief of Army, the appellant, a member of the Australian Defence Force, was convicted of one charge by a Defence Force Magistrate (DFM) but acquitted on two other charges. The appellant challenged the jurisdiction of the DFM to hear and determine the charges, arguing that the alleged offences did not meet the "service connection" and "service status" tests required for jurisdiction. The court was required to decide whether the DFM had the authority to hear the case and whether there were any errors in the DFM’s consideration of inconsistencies in the evidence presented by the complainant. Furthermore, the court had to assess whether the DFM’s finding of guilt on Charge 1 was inconsistent with the acquittals on Charges 2 and 3.

The court held that the DFM had jurisdiction to hear and determine the charges, as the alleged offences did meet the "service connection" and "service status" tests. The court found no error in the DFM’s consideration of inconsistencies in the complaint evidence. The court noted that the DFM had carefully evaluated the evidence and provided clear reasons for the differing outcomes on the charges. The court concluded that the DFM’s finding of guilt on Charge 1 was not inconsistent with the acquittals on Charges 2 and 3, as each charge had distinct elements that were assessed independently.

Given the court's findings, the appeal was dismissed. The court upheld the DFM’s jurisdiction and the determinations made in relation to the charges. The decision reinforces the importance of the "service connection" and "service status" tests in determining the jurisdiction of the DFM and highlights the need for careful consideration of evidence in military justice proceedings.

Orders