DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Chapman v Chief of Army [2008] ADFDAT 3
Defence Force Discipline Act 1982 (Cth) s 61(3)
Defence Force Discipline Appeals Act 1955 (Cth) s 23(1)(a)
Criminal Code (Cth) ss 9.1, 9.5(2), 144.1(1), 145.1(1)
Chamberlain v The Queen (No 2) (1984) 153 CLR 521 cited
E (1995) 89 A Crim R 325 cited
M v The Queen (1994) 181 CLR 487 cited
Murray v The Queen (2002) 211 CLR 193 cited
R v Trimboli (1979) 21 SASR 577 cited
Shepherd v The Queen (No 5) (1990) 170 CLR 573 cited
Van Damme v Chief of Army [2002] ADFDAT 2 cited
CHRISTOPHER CHAPMAN v CHIEF OF ARMY
DFDAT 3 of 2008
HEEREY J (PRESIDENT), MILDREN AND DUGGAN JJ (MEMBERS)
28 JULY 2008
MELBOURNE
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BEFORE THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL |
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DFDAT 3 of 2008 |
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ON APPEAL FROM A DEFENCE FORCE MAGISTRATE |
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BETWEEN: |
CHRISTOPHER CHAPMAN Appellant
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AND: |
CHIEF OF ARMY Respondent
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TRIBUNAL: |
HEEREY J (PRESIDENT), MILDREN AND DUGGAN JJ (MEMBERS) |
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DATE OF ORDER: |
28 JULY 2008 |
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WHERE MADE: |
MELBOURNE |
THE TRIBUNAL ORDERS THAT:
1. Insofar as leave is necessary, leave to appeal is granted.
2. The appeal is dismissed.
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BEFORE THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL |
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DFDAT 3 of 2008 |
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ON APPEAL FROM A DEFENCE FORCE MAGISTRATE |
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BETWEEN: |
CHRISTOPHER CHAPMAN Appellant
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AND: |
CHIEF OF ARMY Respondent
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TRIBUNAL: |
HEEREY J (PRESIDENT), MILDREN AND DUGGAN JJ (MEMBERS) |
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DATE: |
28 JULY 2008 |
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PLACE: |
MELBOURNE |
REASONS FOR DECISION
THE TRIBUNAL:
1 The appellant Private Christopher Chapman appeals against convictions by a Defence Force Magistrate on one charge of forgery (Defence Force Discipline Act 1982 (Cth) s 61(3), Criminal Code (Cth) s 144.1(1)) and three charges of using a forged document (DFDA s 61(3), Code s 145.1(1)).
The prosecution case
2 The prosecution case was as follows. In 2004 the appellant had been serving with 5/7 Battalion Royal Australian Regiment in Darwin. In January 2005 he was posted to the Deployed Forces Cash Office in Brisbane. On 31 January 2005 the appellant completed an Application to Live In, Live Out and Categorisation form (Exhibit 10). He signed the form and submitted it to the Orderly Room Clerk at DFCO, Pte (now Cpl) Shelley Cuthbert. At the time the appellant signed the form there was written on it, under the printed words “My reasons for applying are:”
I am a single mbr [sic] who has been in the Army for yrs & wish to live out.
3 Pte Cuthbert submitted the form through the chain of command at DFCO and it reached the Officer Commanding, Maj (now Lt Col) Maree Zanatta. On 8 February Maj Zanatta, having made a decision to categorise the appellant as Member Without Dependants, signed the form in the space for the approval of the Officer Commanding and put a cross in the box alongside the letters “MWOD”. An alternative box appeared on the form alongside the letters “MWD”, standing for “Member With Dependents”.
4 In the first part of the form were boxes with the letters “Full RA” (rent allowance) and “Partial RA”. There was a cross in the Full RA box. Maj Zanatta scribbled over that box, wrote her initials alongside it and put a cross in the Partial RA box.
5 Some time later, according to the prosecution, the appellant obtained access to the form, crossed out the words “I am a single …etc” and wrote in:
I am a member who maintanes [sic] a home for 1 or more dependants [sic].”
He also put a line through the cross in the MWOD box, wrote alongside that the initials “C.C.” and put a cross in the MWD box.
6 Subsequently the Cashier and Unit Pay Representative in DFCO, Pte (now Cpl) Nicole Housler, inputted the form into the Australian Defence Force pay system.
7 On 2 March 2005 the appellant submitted an application for rental assistance as a Member With Dependents to the Defence Housing Authority in Brisbane. In support of this application, along with other documents, the appellant submitted a photocopy (Exhibit 8) of the form Exhibit 10, that is the form as signed by Maj Zanatta but including the appellant’s alterations.
8 Subsequently Ms Alison Waters, an “allocation consultant” with the DHA, processed the appellant’s application with the result that he came to receive full rent allowance.
9 Some time after 8 February Maj Zanatta saw the form in Pte Cuthbert’s in-tray and noticed the alterations. She reported the matter and Military Police commenced an investigation.
10 In May 2005 the appellant was interviewed by Military Police on three occasions. The appellant admitted making the alterations to Exhibit 10 but denied making them after Maj Zanatta had signed the form. The appellant said he was in a de facto relationship with Ms Julie Dementij. He said he had met her while on leave in Brisbane at Christmas 2003, had visited her on a few occasions in 2004, and since his posting to Brisbane was living with her at 46 Loane Crescent, Lawnton in a house rented by her mother.
11 The appellant claimed his categorisation as Member With Dependents and his de facto relationship recognition had been approved in November and December 2004 respectively by his Commanding Officer at 5/7 RAR in Darwin, Lt Col Lean.
12 In an interview on 24 May the appellant handed the interviewers two documents to support his account. One was a photocopy of an Application to Live In, Live Out and Categorisation (Exhibit 11). It purported to have been signed by the appellant on 11 November 2004. Under the printed words “My reasons for applying are:” appeared the hand written words:
I am a member who maintaines [sic] a home for 1 or more dependants [sic].
Approved defacto application attached.
At the top of the form under the printed words “The circumstances detailed in this application apply from: (Date)” was written “04 DEC 04”.
13 The form bore the purported signature of the appellant and a Sgt R Wilson as witness.
14 In the Approval part of the form there was a cross in the MWD box, there appeared a signature and the hand printed name “M.D.LEAN” and under the printed words “Rank or Position” were written the words “CO 5/7 RAR”.
15 The second document (Exhibit 12) was a photocopy “Application for Recognition of De Facto Marriage”. The form set out in typescript the names and dates of birth of himself and Ms Dementij. The form concluded as follows (handwriting in italics, typescript underlined):
To be completed by approving authority
Has the de facto marriage between the applicant and the de facto partner, as mentioned above, been recognised for conditions of service purposes?
Yes No
T £
If ‘Yes’, with effect from
Date
04 DEC 04
Approving authority’s signature Approving authority’s printed name
(sgd) M.D.LEAN
Appointment Rank Date
CO 5/7 RAR LTCOL 11 NOV 04
16 The prosecution case was that Exhibits 11 and 12 were forgeries. The documents of which they were photocopies had not been signed by Lt Col Lean.
The charges
17 The charges on which the appellant was convicted were as follows (emphasis in original):
First charge: Engaging in conduct outside the Jervis Bay Territory that is a Territory offence namely forgery
Being a Defence member at Enoggera Barracks in Queensland on or about 08 Feb 05 made a false document, namely an Application to Live In, Live Out and Categorisation form dated 31 January 2005, by crossing out ‘I am a single mbr who has been in the Army for yrs & wish to live out’ and writing ‘I am a member who maintains a home for 1 or more dependants’ and by crossing out the MWOD box, initialling it ‘CC’ and marking the MWD box, with the intention that he would use the said false document to dishonestly induce a third person, namely Private Nicole Housler in her capacity as public official, to accept it as genuine and, if it was so accepted, to dishonestly influence the exercise of her function as the Deployed Forces Cash Office unit pay representative.
Fourth charge: Engaging in conduct outside the Jervis Bay Territory that is a Territory offence namely using forged document
Being a Defence member at Enoggera Barracks in Queensland on or about 02 Mar 05, knowing that a document, namely an Application to Live In, Live Out and Categorisation form dated 31 Jan 05, was a false document, used it with the intention of dishonestly inducing a person, namely Alison Waters, an APS employee at the Defence Housing Authority, in her capacity as a Commonwealth public official to accept it as genuine and, if it was so accepted, dishonestly obtaining a gain, namely rental allowance.
Fifth charge: Engaging in conduct outside the Jervis Bay Territory that is a Territory offence namely using forged document
Being a Defence member at Enoggera Barracks in Queensland on or about 24 May 05, knowing that a document, namely an Application to Live In, Live Out and Categorisation form dated 11 Nov 04, was a false document, used it with the intention of dishonestly inducing an authorized member of the Defence Force under the Defence Force Discipline Act 1982 in their capacity as a Commonwealth public official to accept it as genuine and, if it was so accepted, dishonestly influence the exercise of their function as an authorized member of the Defence Force.
Sixth charge: Engaging in conduct outside the Jervis Bay Territory that is a Territory offence namely using forged document
Being a Defence member at Enoggera Barracks in Queensland on or about 24 May 05, knowing that a document, namely an Application to Live In, Live Out and Categorisation form dated 11 Nov 04, was a false document, used it with the intention of dishonestly inducing an authorized member of the Defence Force under the Defence Force Discipline Act 1982 in their capacity as a Commonwealth public official to accept it as genuine and, if it was so accepted, dishonestly influence the exercise of their function as an authorized member of the Defence Force.
Grounds of appeal
18 Senior counsel for the appellant argued four grounds.
By accepting the evidence as to the state of the document [Exhibit 10] when the OC approved it, I am automatically rejecting the accused’s evidence on that issue, because the issue, of course, is when it was altered, not the fact that it was altered.
And also:
So having accepted the evidence of Lt Col Lean in relation to the de facto application and, by inference – logical inference in relation to the Application to Live Out, Exhibit 11, I am disbelieving the accused’s version of events in respect of this.
20 The second ground was that an essential element of all charges was not proved. In respect of the first charge, it had not been proved the person allegedly induced to act, Pte Housler, had been acting in her capacity as a “public official”, and that the appellant intended to dishonestly influence her “in the exercise of a public duty”.
21 Similar arguments were advanced in relation to the person allegedly induced in respect of the fourth charge, Ms Waters, and in respect of the fifth and sixth charges, an unspecified “authorized member of the Defence Force under the Defence Force Discipline Act 1982”.
22 The third ground was that the convictions were unsafe and unsatisfactory. Senior counsel pointed to a number of facts and circumstances, some of which were not mentioned by the learned Magistrate in his reasons, which it was said supported the appellant’s version of events, or at least raised reasonable doubts.
23 The fourth ground, while not formally abandoned, was not the subject of oral submissions. It was that the prosecution had not excluded the defences of mistake of fact (Criminal Code s 9.1) and claim of right (s 9.5(2)).
Ground 1: Onus of proof
24 Counsel for the appellant submitted that the learned Magistrate misapplied the onus of proof in his reasons for decision. According to the argument, he arrived at the conclusion that the appellant was guilty of the offences by making a choice between the prosecution and the defence versions instead of considering whether the prosecution had proved its case beyond reasonable doubt. It was also argued that the learned Magistrate rejected the appellant’s version by accepting the evidence of the prosecution witnesses without taking into account the effect of the appellant’s evidence.
25 In support of the first criticism counsel for the appellant relied upon Murray v The Queen (2002) 211 CLR 193. In that case the High Court allowed an appeal against a conviction for murder where there had been conflicting evidence at trial about the appellant’s conduct on the night of the alleged offence. In her summing up the trial judge had referred on a number of occasions to the jury having to decide whether to “accept” the prosecution version or the defence version. In their joint judgment Gummow and Hayne JJ said at [57]:
Although at the start of her directions about murder her Honour told the jury that it was for the prosecution to prove that the appellant had intended to kill or do grievous bodily harm, the references she made, particularly in the passage of the directions set out earlier, to the jury accepting the accused’s evidence or version of events were apt to mislead the jury about the decision they had to make. The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.
26 The same issue arose in E (1995) 89 A Crim R 325, a case in which the accused was charged with sexual assaults on a young girl. Hunt CJ at CL said at 330:
The error made by the judge throughout those directions was the suggestion that the jury had to make a choice between accepting the evidence of the complainant and accepting that of the accused. Just as a judge should not tell the jury that they have to decide whether the accused is guilty or innocent (DPP v Shannon [1975] AC 717 at 764; (1974) 59 Cr App R 250 at 269; Bartho (1978) 52 ALJR 520 at 521-522), so a judge should not tell the jury that they must make a choice between the evidence led by the Crown and that given by the accused: see Liberato (1985) 159 CLR 507 at 515, 519; Beserick (1993) 30 NSWLR 510 at 528; 66 ACrimR 419 at 435.
It is commonplace for the issue in cases such as the present to be described as one of word against word. Sometimes it is unavoidable. But it is essential that, when such a description is given, the judge ensures that the jury understands that it is not a question of making a choice between the evidence of the Crown's principal witness and that of the accused. The best approach, in addition to saying just that, is to tell the jury that the Crown case depends upon them accepting that the evidence of its principal witness was true beyond reasonable doubt notwithstanding the (sworn) denial by the accused, and that they do not have to believe that the accused is telling the truth before he is entitled to be acquitted.
(See also R v Young (2004) 142 A Crim R 571 at [11].)
27 In the present case there was no criticism of the general directions which the learned Magistrate gave himself in relation to the burden and standard of proof. He commenced his reasons by referring in some detail to the presumption of innocence and the onus on the prosecution to prove each element of the charges beyond reasonable doubt. He commented on the fact that the appellant had given evidence, but that in doing so, he had not acquired an onus to prove anything or to offer an innocent explanation for his conduct. The learned Magistrate also made frequent reference throughout his reasons for decision to the requirement of proof beyond reasonable doubt and the fact that the onus was on the prosecution.
28 The learned Magistrate also referred to the approach to be taken to circumstantial evidence. The prosecution case was not dependent wholly or mainly on circumstantial evidence and the directions which the learned Magistrate derived from Shepherd v The Queen (No 5) (1990) 170 CLR 573 and Chamberlain v The Queen (No 2) (1984) 153 CLR 521 were not strictly necessary. However, this was a case in which the court was invited to draw inferences from proven facts and the learned Magistrate noted that circumstantial evidence can amount to proof beyond reasonable doubt, but only if all other reasonable hypotheses are excluded.
29 It is our view that, when the learned Magistrate undertook his assessment of the evidence, he did not lose sight of the requirement of proof of the charges beyond reasonable doubt. In particular, he was conscious of the fact that he could not rest a finding of guilt on a simple choice between two competing versions.
30 Significantly for present purposes, the learned Magistrate stated that he directed himself in accordance with the decision in Liberato v The Queen (1985) 159 CLR 507. In that case, which involved allegations of rape, Brennan J said at 515:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
31 The learned Magistrate dealt with conflicts in the evidence in accordance with this approach. An example is to be found in his acceptance of the prosecution evidence and his rejection of the appellant’s explanation as to the state of the form Exhibit 10, at the time the appellant received it. The learned Magistrate said (emphasis added):
That explanation of Pte Chapman of how he received the form, I just do not believe that.
I have already directed myself to the fact that I do not believe the accused’s version of events. I still have to be satisfied beyond reasonable doubt in relation to the elements of the charges.
Later in his reasons, when dealing with the charges arising from the presentation to the Military Police of the alleged forgeries Exhibits 11 and 12, the learned Magistrate said he disbelieved the appellant’s version. However, he added immediately:
… it is a word on word case, but it is not a situation where the prosecution has proved their case. I still have to be satisfied beyond reasonable doubt of the elements.
32 It is clear from these passages that, when dealing with each set of charges, the learned Magistrate reminded himself of the requirement to focus on whether the charges had been proved beyond reasonable doubt, a conclusion which could not be reached simply by accepting the prosecution evidence in preference to the appellant’s version.
33 When addressing the further criticism that the learned Magistrate rejected the appellant’s version simply by accepting the prosecution version without regard to the appellant’s evidence, counsel for the appellant referred to two passages in the reasons for decision.
34 As already noted, particular reliance was placed on a passage dealing with the consequences of a finding that Exhibit 10 was completed in a particular way when Maj Zanatta approved it. The learned Magistrate said (emphasis added):
By accepting the evidence as to the state of the document when the OC approved it, I am automatically rejecting the accused’s evidence on that same issue, because the issue, of course, is when it was altered, not the fact that it was altered.I refer to the case of Trimboli. That was a case dealing with the judge’s [direction] on the accused’s good character. I am reading from an extract in Ross, pages 219-220, paragraph 3.1215. It is R v Trimboli (1979) 21 SASR 577, where the King CJ said:
The judge is of course at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against the evidence of guilt which they find to be convincing, notwithstanding the accused’s previous character. This last consideration may apply with particular force to certain types of crime and the judge, of course, is free to point that out to the jury if he so sees fit.
I have considered the probability of Pte Chapman having committed the offence alleged, given that the offence is inconsistent with his good character. I have not rejected his evidence lightly. I have rejected it on the basis that Lt Col Zanatta’s evidence is corroborated by Pte Cuthbert, and, in relation to his evidence about how the form was filled out when he received it from Pte Cuthbert, I disbelieve that evidence.
35 Counsel for the appellant submitted that the highlighted sentence indicates that the Magistrate rejected the appellant’s version by reference only to the prosecution evidence and before he examined the appellant’s evidence.
36 We reject this submission. It must be borne in mind that the learned Magistrate was giving reasons for his decision after a trial in which he had heard the evidence and considered it. Whilst the reasons for decision should reveal the learned Magistrate’s process of reasoning, the order in which he deals with his conclusions is not necessarily the same order in which he reached those conclusions. Simply because he records at a particular stage in his reasons that he accepts a prosecution witness beyond reasonable doubt on a particular issue, is not to say that he reached that conclusion without regard to all the evidence relevant to it, including the evidence of the appellant.
37 It is important to consider the impugned passage in the context of the remarks which follow it. The fact the learned Magistrate took into account the appellant’s version before reaching his ultimate conclusion on this issue is apparent from his reference to R v Trimboli (1979) 21 SASR 577. In that case King CJ stated that one of the issues to which the evidence of an accused person’s good character is to be put is as a factor affecting the likelihood of the accused having committed the crime charged. The learned Magistrate said that he had taken this consideration into account and had not rejected the evidence of the appellant lightly. Earlier in his reasons he referred to the other use to which evidence of the appellant’s good character could be put, namely, in assessing the credibility of his evidence.
38 The approach adopted by the learned Magistrate in setting out his reasons was to first summarise the evidence of the prosecution witnesses and comment on his assessment of their credibility. It goes without saying that, if he reached his ultimate conclusions without regard to the defence case, this would amount to a fatal flaw in the process of reasoning. However, in the case of the charges relating to Exhibit 10, the learned Magistrate referred to and commented upon the appellant’s version of the facts given in answer to the evidence of the prosecution witnesses. Furthermore, he explained why he rejected the appellant’s version.
39 It is true that the learned Magistrate placed reliance on his assessment of the prosecution witnesses in evaluating the appellant’s version. But that is a normal part of the reasoning process of the fact finder. The learned Magistrate was doing no more than accepting the prosecution evidence after having regard to the whole of the relevant evidence. This is a process of reasoning far removed from that criticised in Murray v The Queen where the jury might well have based their verdict of guilty on an acceptance of one version over another and without proper consideration as to whether the prosecution had proved all elements of the offence beyond reasonable doubt.
40 The phrase “automatically rejecting” which the learned Magistrate used appears to be a reference to the consequence of the finding which immediately precedes those words. For the reasons we have given we do not think he was implying that the acceptance of the prosecution evidence was without regard to the evidence of the appellant.
41 Counsel for the appellant also complained of the first sentence in the following passage; part of which has been quoted above at [19]. The learned Magistrate was here dealing with the evidence in relation to the appellant’s presentation of the documents to the investigating police, during the investigation. The learned Magistrate said (emphasis added):
So having accepted the evidence of Lt Col Lean in relation to the de facto application and, by inference – logical inference in relation to the Application to Live Out, Exhibit 11, I am disbelieving the accused’s version of events in respect of this. And the same warning that applied in the first charge would apply here, the fact that I disbelieve does not mean that the – it is not a word on word – well it is a word on word case, but it is not a situation where the prosecution has proved their case. I still have to be satisfied beyond reasonable doubt of the elements. And I said I am satisfied in respect of Lt Col Lean’s evidence that he did not approve the documentation, Exhibits 11 and 12, and beyond reasonable doubt.
42 According to the argument for the appellant the highlighted sentence indicates that the learned Magistrate moved directly from an acceptance of Lt Col Lean’s evidence to a rejection of the appellant’s evidence.
43 Again, however, this passage must be read in context. It was followed by a lengthy review of the evidence of the appellant and his witnesses in relation to his dealings with Lt Col Lean and the events surrounding those dealings. After referring to various aspects of the appellant’s evidence, the learned Magistrate said:
These of themselves are not evidence that assist – that prove the prosecution case beyond reasonable doubt, but they are factors taken as a whole – when taken as a whole, lead me to disbelieve his evidence in relation to filling out an application for recognition of de facto marriage and, but more importantly, lodging it with all the enclosures. This is aside from the fact of Lt Col Lean’s evidence.
44 The learned Magistrate also stated that he found unreliable the evidence of Mr (formerly Pte) Sherrington, a witness for the defence. He also commented on the fact that the handwriting expert called by the defence could not form an opinion as to the signatures on Exhibits 11 and 12 and that, as a consequence, his evidence was of no assistance.
45 It is important to bear in mind that the learned Magistrate’s reasons were ex tempore and they lacked the precision of expression to be expected in a written judgment. However, it is our view that the passages complained of do not disclose any error in the Magistrate’s process of reasoning. In particular, we reject the submission that they in some way disclose a misapplication of the onus of proof.
Ground 2: Inducing public official
46 Section 144.1(1) of the Code provides:
(1) A person is guilty of an offence if:
(a) the person makes a false document with the intention that the person or another will use it:
(i) to dishonestly induce a third person in the third person’s capacity as a public official to accept it as genuine; and
(ii) if it is so accepted, to dishonestly obtain a gain, dishonestly cause a loss, or dishonestly influence the exercise of a public duty or function; and
(b) the capacity is a capacity as a Commonwealth public official.
Penalty: Imprisonment for 10 years.
Subsection (2) provides that it is not necessary to prove that the defendant knew that the capacity was a capacity as a Commonwealth public official.
47 First Charge. In evidence Pte Housler described her functions as the Unit Pay Representative as follows:
Basically, any pay administration that needed to be done by unit members would come through myself; so looking after allotments, allowances, ensuring that members’ pay was correct. That’s pretty much it.
She was responsible to the cash office manager. She indicated the various types of forms that she would see in the course of her work: field allowance, higher duties allowance forms, categorisation forms, allotment changes, net pay deposit changes, tax file variations. She would input the forms into the Australian Defence Force pay system. In doing so she would effect changes to pay accounts, allotments, categorisation, tax details or superannuation. As she put it:
Basically, anything that affects a member’s pay can be changed through that system.
48 The different types of categorisation included MWD for member with dependents and MWOD for member without dependents. She was asked:
What is the effect of changing a member’s categorisation on the pay system, what effect does it have? --- All it has on the pay system is just, when a payslip spits out, it just shows whether a member is married, single or if they’re married, separated.
49 There can be no doubt that Cpl Housler, a non-commissioned officer in the Australian Army, is a public official. She was acting in her capacity as such. Her uncontested evidence was that she was dealing with Exhibit 10 as she did with similar documents in the ordinary course of her duties. It was argued, however, that in order for there to be a “public duty or function” there must be “some impact on the public, be it by terms of benefit or detriment”. As the argument was developed, it asserted a lack of any evidence that Cpl Housler’s changing the appellant’s categorisation would result in him getting more public money.
50 We do not agree. The terms of s 144.1(a)(ii) provide alternatives as to the dishonest intention required. That intent may be to dishonestly obtain a gain, or cause a loss, or (as was pleaded in the present case) dishonestly influence the exercise of a public duty or function. To read into that third alternative some requirement for financial detriment would be to add a gloss inconsistent with the first two alternatives. It is not hard to imagine instances of the use of forged documents which would dishonestly influence the exercise of a public duty or function without resulting in financial detriment to the Commonwealth or the public at large, as for example influencing an award of honours.
51 While there could be little practical doubt that categorisation as MWD rather than MWOD would result in a financial benefit for the appellant, that was not the prosecution case. All the prosecution had to establish was an intention to dishonestly influence Cpl Housler in her function of inputting information from Exhibit 10 into the ADF pay system. That was her duty or function. It was duty or function which was public in that it was part of the necessary administration of the Australian Army, a quintessentially public organisation. It had nothing to do with Cpl Housler’s private life.
52 Fourth Charge. Ms Waters’ evidence was that she was an allocations consultant with the Defence Housing Authority. That position, she said
entails housing single and married members in either married quarters, rental allowance, living-in accommodation or own home.
When the appellant was posted from Darwin to Bribane, Ms Waters “housed” him in the DHA systems which involved, as she described,
basically processing his rental allowance application, organising for pay section to pay him the correct allowance and sending letters out to the members. In fact in this case to Pte Chapman detailing the amount he would be receiving per fortnight for rental allowance.
After speaking to her team leader she sent a letter dated 7 March 2005 to the appellant at 46 Loane Crescent on DHA letterhead and signed by herself as “Relocation Consultant”. In the letter (Exhibit 9) Ms Waters advised that the “Rental Allowance/Rental Increase” in respect of Loane Crescent “has been approved with effect from 7 December 2004 (the date you commenced residing with your spouse)”. The Rental Allowance Payment was noted as $100.65 weekly.
53 The evidence plainly established that Ms Waters was a public official and, in dealing with the appellant’s application for Rent Allowance, was exercising a public duty or function. She played an effective role in his securing that allowance.
54 Fifth and Sixth Charges. Sgt Maureen Bronjes was an investigator within the Special Investigations Branch of the Military Police. She was the primary investigator into allegations against the appellant with which this case is concerned. She interviewed him in May 2005. At the time of the interviews her duty, as primary investigator, was to present allegations to the appellant as to information she had gathered during her investigation and to identify what, if any, other evidence he had. In the course of her interviewing the appellant he gave her the documents Exhibits 11 and 12.
55 At the conclusion of her investigation Sgt Bronjes completed a brief of evidence. She was unable to recall to whom the brief was distributed.
56 Again there can be no doubt that Sgt Bronjes was a Commonwealth public official. The evidence establishes that her public duty or function was to investigate the allegations against the appellant, interview him, and pass on a brief of evidence (including the records of interviews).
57 The relevant charges do not identify Sgt Bronjes as the Commonwealth public official whom the appellant allegedly dishonestly induced. The official is not named. However, the inescapable fact is that there was some person in the Army, above Sgt Bronjes, who had the authority to decide whether or not to prosecute the appellant. For the purposes of discussion we shall refer to that person as “the prosecutor”. The prosecutor’s decision whether or not to prosecute the appellant involved the exercise of a public duty or function.
58 It was not necessary that the prosecutor be identified. The issue raised by s 144.1(1)(a) was whether the appellant used the documents Exhibits 11 and 12 (assuming they were known by him to be false) to dishonestly induce the prosecutor to accept them as genuine and thereby influence the prosecutor in the exercise of a public duty or function, namely the decision whether or not to prosecute the appellant. It is inherently unlikely that a person in the position of the appellant would know the identity of the prosecutor. Nevertheless, if the appellant made the documents as false documents and produced them to Sgt Bronjes, there could have been no other purpose than to confirm his false story that his de facto status and categorisation as MWD had been approved by his Commanding Officer prior to 31 January 2005, with the result that the prosecutor would not decide not to prosecute.
Ground 3: Unsafe and unsatisfactory
59 There is jurisdiction in the Tribunal to set aside a conviction on the ground that the conviction is unreasonable, or cannot be supported, having regard to the evidence: Defence Force Discipline Appeals Act 1955 (Cth) s 23(1)(a). This is a question of fact (M v The Queen (1994) 181 CLR 487; Van Damme v Chief of Army [2002] ADFDAT 2) and consequently leave to appeal is required (Defence Force Discipline Appeals Act s 20(1); Van Damme v Chief of Army).
60 No separate application for leave was made and we heard the application for leave at the same time as we heard the appeal. No objection was taken to that course by the respondent.
61 The question which we must ask ourselves is whether, notwithstanding that, as a matter of law, there is evidence to sustain verdicts of guilty, we consider that, upon the whole of the evidence, it was open to the learned Magistrate to be satisfied beyond reasonable doubt that the appellant was guilty of the charges. In answering that question we must pay full regard to and not discount or disregard the fact that it was the learned Magistrate who was entrusted with the primary obligation of determining guilt or innocence, nor that he has had the benefit of having seen and heard the witnesses: see M v The Queen at 493.
62 It is convenient to discuss the submissions in relation to charges 5 and 6 first and then deal with the remaining charges because the appellant’s case was that he had been approved MWD by Lt Col Lean on 4 December 2004.
63 It was put that there were a number of matters which supported the appellant’s contention that such approval had been given. First, there was evidence that the appellant had mentioned to Sgt Zacker in late November or early December 2004, that he intended to apply for recognition of his de facto relationship whilst in Darwin. Any such evidence was, of course, self-serving and in any event does not assist the appellant. However, it was put that he gave a categorisation form to Pte Sherrington in November 2004 to take back to his room. Pte Sherrington recalled receiving such a form but did not know what it said. This evidence carries little or no weight.
64 Secondly, it was put that the appellant was subsequently recognised in December 2005 by his then commanding officer as being in a de facto relationship and entitled to be classified MWD back-dated to 7 December 2004. It is difficult to see how this assists the appellant. It is true that the relevant Defence Instructions for Recognition of De Facto Marriages PERS 53-1 (Exhibit 23) do not necessarily require the ADF member to have been living in a bona fide de facto relationship for at least 12 months; this is merely one of 12 matters, documentary evidence as to any four of which will be sufficient for recognition: see pars 7 and 8. However, the evidence was uncontradicted that the appellant throughout 2004 was physically in Darwin and Ms Dementij was residing at her parent’s home in Brisbane. The relevant fact was that as at November 2004 and 31 January 2005 the appellant did not have recognition of any de facto relationship. Evidence as to any subsequent back-dated recognition does not assist the appellant.
65 Thirdly, it was submitted that, at the time the appellant gave Exhibits 11 and 12 to the Military Police, his personnel file had just arrived in Brisbane. The file had been checked subsequently by the witness Lockwood who gave evidence that there were a number of documents missing from the file. However, the evidence is that the file had been given to the appellant in Darwin to deliver to his new unit in Brisbane. This evidence does not assist the appellant, as it does not lead to an inference that these documents were more likely than not genuine.
66 Fourthly, it was submitted that there were a number of administrative short-comings with the Regiment in Darwin which might explain why the appellant was only able to supply photocopies of the forms which became Exhibits 11 and 12. Further, the evidence established that a Register was kept by the Regiment in which the originals of Exhibits 11 and 12, if they existed, should have been filed and the Military Police failed to search the register. It was put that if the Register had been properly kept and the Military Police had searched it, it may have resulted in the originals of these documents being produced. However, the fact that the Register was not searched does not tend to show one way or the other whether the documents were genuine. What the Register might have shown is no more than speculation. This is the more so if there is a possibility that the Register was not properly kept.
67 Finally it was put that Lt Col Lean’s evidence that his signature on Exhibits 11 and 12 was not his signature had been undermined by two matters:
1. He also swore that a signature on another document (Exhibit 28) dated 26 April 2004 was not his and subsequently recanted from that evidence.
2. Evidence was given by a handwriting expert, Mr Greg Marheine, called by the appellant, who was unable to say that the signatures on Exhibits 11 and 12 were forgeries, although the signatures bore a structural and pictorial likeness to known specimens of Lt Col Lean’s signature.
68 However, the evidence of Lt Col Lean, apart from denying that it was his signature on the documents, was to the effect that he did not approve of a change of the appellant’s status on 11 November 2004 because he did not at any time approve such an application to come into force at a future date. The reason for this was that the requirements as set out in the Defence Instructions (General) (Exhibit 23) would not have been met. The change of status on Exhibit 11 was to come into force on 4 December 2004, although the form was signed by Lt Col Lean on 11 November 2004. Further, it would seem to us to be unlikely that Lt Col Lean would approve a change in status when at that time the appellant was not in fact living with Ms Dementij and he was shortly to be transferred to a new posting where the matter could be dealt with by his new CO.
69 So far as the expert evidence was concerned, the expert was unable to say positively whether or not in his opinion the signatures of Lt Col Lean on Exhibits 11 and 12 were genuine because in order to do so he would need to see the original documents.
70 So far as Exhibit 28 was concerned, Lt Col Lean’s evidence that it was not his signature on this document because the document was dated 26 April 2004; and he had been in Canberra on 25 April for Anzac Day celebrations. On further reflection he could not positively state that he did not, upon his return to Darwin on the afternoon of 26 April, attend at his office, although he had no memory of doing so.
71 Sixthly, our attention was drawn to the fact that the evidence of Pte Cuthbert was that after the form Exhibit 10 was signed by Maj Zanatta, she checked the computer records known as PMKeys which showed that the appellant was already in a de facto relationship in 2004 with Ms Dementij. Pte Cuthbert was unsure of the date she discovered this. Evidence was given to the effect that it was not possible to ascertain when or who made this entry into the computer system. It was entirely possible that this was done by the appellant who, it was conceded on the appeal, also had the opportunity to access the form Exhibit 10 and alter it after it had been signed by Maj Zanatta.
72 Our attention was also drawn to the fact that the appellant, having altered the box on Exhibit 10 from MWOD to MWD, initialled the alteration with his own initials and put in subsequent leave applications that he was classified MWD. It was submitted that if he had altered Exhibit 10 after it was signed by Maj Zanatta, he would not have put his own initials on the alteration; likewise, if he had acted dishonestly, he would not have drawn attention to his change in status in the leave applications.
73 On the other hand, the learned Magistrate accepted the evidence of Pte Cuthbert and Maj Zanatta that the latter had not approved his change in status. It was Maj Zanatta who later discovered that Exhibit 10 had been altered after she had signed the form and who reported the matter to the authorities.
74 Having considered the totality of the evidence for ourselves, we do not think that “the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the (learned Magistrate), there is a significant possibility that an innocent person has been convicted”: per Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen at 494.
75 We would therefore reject this ground of appeal.
Ground 4: Mistake of fact and claim of right
76 Section 9.1 of the Code provides:
(1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:
(a) at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
(b) the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.
(2) In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.
77 Section 9.5(2) provides:
(2) A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist.
78 The short answer is that the appellant did not advance any case that in making or using the documents in question he had a mistaken belief as to any fact or believed in the existence of any propriety or possessory right. The “physical elements” (see Code s 4.1) of the relevant offences were:
- (First charge) the crossing out and writing on Exhibit 10;
- (Fourth, Fifth and Sixth charges) the using of the documents in the way alleged.
79 The appellant did not assert that he engaged in the conduct which constituted these physical elements as a result of some mistake, or in the exercise of some right which he believed to exist. His case was that the documents were not false: he altered Exhibit 10 before, not after, Maj Zanatta approved it; Exhibits 11 and 12 were signed by Lt Col Lean.
Orders
80 Insofar as leave is necessary, leave to appeal is granted. The appeal is dismissed.
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I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justices Heerey (President), Mildren and Duggan (Members). |
Associate:
Dated: 28 July 2008
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Counsel for the Appellant: |
D J Campbell SC |
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Solicitor for the Appellant: |
A W Bale and Son |
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Counsel for the Respondent: |
L A McDade and J Streit |
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Solicitor for the Respondent: |
Office of the Director of Military Prosecutions |
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Date of Hearing: |
30 June 2008 |
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Date of Decision: |
28 July 2008 |