DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Vitler v Chief of Army [2008] ADFDAT 4
Defence Force Discipline Act 1982 (Cth) ss 3, 61(3)
Financial Management and Accountability Act 1997 (Cth) s 60(1)
R v Ellis (2003) 58 NSWLR 700 cited
W v The Queen (2001) 115 FCR 41 cited
Z v Chief of the Navy (2008) ADFDAT 1 cited
LEON NOEL VITLER v CHIEF OF ARMY
DFDAT 4 of 2008
HEEREY J (President), Mildren and Duggan JJ (Members)
9 OCTOBER 2008
MELBOURNE
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IN THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL |
DFDAT 4 of 2008 |
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ON APPEAL FROM A JUDGE OF THE AUSTRALIAN MILITARY COURT |
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BETWEEN: |
LEON NOEL VITLER Appellant
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AND: |
CHIEF OF ARMY Respondent
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members: |
HEEREY J (President), Mildren and Duggan JJ (Members) |
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DATE OF ORDER: |
9 OCTOBER 2008 |
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WHERE MADE: |
MELBOURNE |
THE TRIBUNAL ORDERS THAT:
1. The appeal and the application for leave to appeal be dismissed.
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IN THE defence force discipline appeal tribunal |
DFDAT 4 of 2008 |
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ON APPEAL FROM A JUDGE OF THE AUSTRALIAN MILITARY COURT |
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BETWEEN: |
LEON NOEL VITLER Appellant
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AND: |
CHIEF OF ARMY Respondent
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Members: |
HEEREY J (President), Mildren and Duggan JJ (Members) |
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DATE: |
9 OCTOBER 2008 |
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PLACE: |
MELBOURNE |
REASONS FOR DECISION
Heerey J:
1 I agree with the reasons of Mildren J.
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I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Decision herein of the Honourable Justice Heerey. |
Associate:
Dated: 15 October 2008
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IN THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL |
DFDAT 4 of 2008 |
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ON APPEAL FROM A JUDGE OF THE AUSTRALIAN MILITARY COURT |
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BETWEEN: |
LEON NOEL VITLER Appellant
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AND: |
CHIEF OF ARMY Respondent
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Members: |
Heerey J (President), MILDREN and DUggan JJ (Members) |
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DATE: |
9 OCTOBER 2008 |
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PLACE: |
MELBOURNE |
REASONS FOR DECISION
Mildren J:
2 This is an appeal against conviction and sentence. The appellant was charged with four counts of misuse of a Commonwealth credit card, contrary to the Defence Force Discipline Act 1982 (Cth) s 61(3), and the Financial Management and Accountability Act 1997 (Cth) s 60(1). The offences were alleged to have occurred at Sydney in the state of New South Wales on 10 February, 28 February, 9 March and 10 March 2007. The trial proceeded upon a statement of agreed facts together with two enclosures which constituted the prosecution case. The appellant also gave evidence on his behalf and called one witness as to his good character.
3 The learned Military Judge rejected the appellant’s evidence, found him guilty on each count, convicted him and ordered that he be dismissed from the Defence Force on each count. The learned Military Judge further ordered the imposition of a fine in the amount of $1000 on each count.
The facts
4 At all relevant times the appellant was, and remained, a defence member within the meaning of that term, under s 3 of the Defence Force Discipline Act 1982 (Cth). On 30 June 2006, the appellant was issued with a Diners Club Defence Travel Card (DTC). That card was cancelled on 15 January 2007 as the appellant had reported it lost. A second DTC – the subject of the present charges – was sent to the appellant on 16 January 2007. The DTC is a Commonwealth credit card within the meaning of that term in the Financial Management and Accountability Act 1997 (Cth).
5 Four withdrawals, each of $1000 cash, were made from automatic teller machines using the DTC on 10 February 2007 at 0152 hours, on 28 February 2007 at 0323 hours, on 9 March 2007 at 2216 hours and on 10 March 2007 at 0344 hours. The withdrawals on 10 February, 28 February and 10 March 2007 were made at the Westpac ATM in the Star City Casino, Sydney. The withdrawal on 9 March 2007 was made at an ANZ ATM in Darlinghurst, New South Wales. Each of the withdrawals were not for Commonwealth purposes, were not related to Defence travel and were not authorised or impliedly authorised by anyone with the authority or apparent authority to grant such authorisation.
6 At no relevant time had the appellant reported the relevant DTC lost or stolen or otherwise sought to have a temporary or permanent bar put on the use of the card. In order to make a withdrawal from an ATM with a DTC, it is necessary to use the card and its associated four-digit PIN. At no relevant time had the appellant reported that his four-digit PIN associated with the DTC had been accessed by a third person or in any way had sought to have the PIN changed. On 13 February, 2 March, 15 March and again on 15 March 2007, the appellant made BPay payments into the account linked to the DTC of $1000 on each occasion.
7 The appellant was gambling at the Star City Casino on:
1. 9 February 2007, between 0021 hours and 0148 hours and later between 2251 hours and 2328 hours, where he lost $1600 and $1700 respectively;
2. 28 February 2007, between 0340 hours and 0405 hours, where he lost $800;
3. 9 March 2007, between 0203 hours and 0248 hours, where he lost $400; and
4. 10 March 2007 between 0308 hours and 0327 hours, where he lost $2300.
Between 1 January and 4 July 2007, the appellant lost $10,820 over 12 days play at the Star City Casino. In 2006 the appellant lost $34,900 over six days of play.
8 The appellant received accommodation on the night of 9 March at the Star City Casino. In February and March 2007, the appellant’s home address was 18/196 Forbes Street, Darlinghurst. We have been informed by counsel that Darlinghurst is approximately 3 kilometres from the casino.
The appeal against conviction
Ground 1: Failure to take into account relevant factual material.
9 The prosecution case was circumstantial. The evidence relied upon by the prosecution in order to support its case was that on three occasions the card was used at an ATM located at the Star City Casino, at times near to when the appellant was gambling at the casino. The remaining occasion when the card was used was at an ATM in Darlinghurst, the suburb in which the appellant then lived. Either before or after each use of the card, the appellant had gambled at the casino and lost sizeable amounts. The appellant repaid each of the $1000 sums within a few days of the money being withdrawn. The appellant had not reported the card missing or stolen and had not sought to put a bar on its usage.
10 The entry of the correct PIN was required before the card could be used and also in order to repay the money using BPay it was necessary to know the card number and also the PIN. The appellant submits that the evidence regarding charge 3 revealed that the appellant received accommodation at the casino on the evening that he is alleged to have used the card at an ATM in Darlinghurst. It was submitted that the evidence did not support the inference that the appellant had gone to his home that evening. It was submitted that this matter was not referred to by the learned Military Judge in his reasons as it should have been.
11 In my opinion there is nothing in this submission. The facts show that the withdrawal on 9 March was at 2216 hours. The facts demonstrate that even if he was staying at the casino on the evening of 9 and 10 March 2007, the appellant could well have returned to his home during 9 March and then returned to the casino later that evening, in order to continue his gambling. Indeed, one of the possibilities is that he might have gone home in order to get the DTC card if he needed extra money to gamble that night. I note that no point was made by either counsel during the trial as to the significance of receiving accommodation at the casino on the evening of 9 March.
12 Further there was no application for a separate trial or for severance of the individual charges. There was no evidence from the appellant as to whether or not he had gone home. The appellant did not give evidence that he had stayed in the casino the whole of the time and never went into the vicinity of Darlinghurst. In the circumstances, I do not think it was necessary for the Military Judge to consider a possibility of which there is simply no evidence, when the only reasonable inference was that it was the appellant who had withdrawn the money.
Ground 2: That the learned Military Judge erred by applying the provisions of s 98 of the Evidence Act 1995
13 Section 98 of the Evidence Act provides as follows:
98 The coincidence rule
(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence; or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if:
(a) they are substantially and relevantly similar; and
(b) the circumstances in which they occurred are substantially similar.
(3) Paragraph (1)(a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100; or
(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.
14 Section 101(2) provides that the coincidence evidence adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. In this case the evidence was admitted in relation to count 3, in order to support that count. There is therefore little room for the operation of s 101(2) of the Evidence Act. The only question is whether the learned Military Judge was correct in concluding that the events in relation to the other counts were substantially and relevantly similar to count 3 and the circumstances in which they occurred are substantially similar. There is also a definition of probative value contained in the dictionary to the Act and that reads:
probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
15 In R v Ellis (2003) 58 NSWLR 700 the Court of Criminal Appeal of New South Wales, consisting of five judges, held that Pt 3.6 the Evidence Act describes a regime for tendency and coincidence evidence which lays down a set of principles to cover the relevant field, to the exclusion of common law principles previously applicable. A similar conclusion was reached by the Full Court of the Federal Court in W v The Queen (2001) 115 FCR 41. Therefore the question whether or not the evidence in relation to the other counts was cross-admissible in order to prove count 3 depended upon findings that the events in relation to the other counts were substantially and relevantly similar to the events relating to count 3, that the circumstances in which the events had occurred in relation to the other counts were substantially similar to the circumstances in relation to count 3, and that the evidence had significant probative value in the sense as defined.
16 In my opinion, the learned Military Judge was correct in finding that the evidence in relation to the other counts was cross-admissible in proof of count 3. Clearly the events were substantially and relevantly similar. An ATM was used in each case to withdraw money in the same amount, using the same card at a time shortly before or shortly after the appellant had been gambling at the casino and lost sizable amounts and in circumstances where the appellant repaid the relevant sums within a few days after the money had been withdrawn, and at a time when there had been no reporting of the card missing or stolen, with no bar being put on the usage of the card, where the knowledge of the correct PIN and card number was required to either withdraw the money or to repay it using the BPay system.
17 In my opinion, the circumstances were substantially similar albeit that the money was withdrawn, in relation to count 3, from an ATM at Darlinghurst instead of at the casino. However, that ATM was located in the suburb in which the appellant lived, and in my view that supports the conclusion that the circumstances were substantially similar. In my opinion, the evidence did have significant probative value and was properly admitted in proof of count 3. I would add that, in any event, the evidence in relation to count 3 was particularly strong, even without the cross-admissible evidence in relation to the other counts. I therefore dismiss this ground of appeal. In my opinion the appeal against conviction must therefore be dismissed.
The appeal against sentence
18 The first ground of appeal was that the learned Military Judge failed to give any or any adequate consideration to the fact that the appellant repaid the individual sums of money soon after each withdrawal. In my opinion, there is no substance to this point. The learned Military Judge was well aware that the moneys had been repaid to the Commonwealth and he specifically referred to that in his sentencing remarks. He also noted that the moneys had been repaid before the offending was discovered. The learned Military Judge observed, however, that the repayment was not evidence of remorse because there was no plea of guilty. I do not think that the learned Military Judge erred and I would dismiss this ground.
19 The second ground is the learned Military Judge erred by taking into account, when assessing sentence, the appellant’s intention to cease service as a permanent member. The learned Military Judge said that the appellant planned to cease service as a permanent member and to seek to join the Army Reserve. He said that a sentence of dismissal would have less impact upon him than on a member who wished to continue serving in the permanent forces. Indeed, at the time of trial, the appellant indicated to the court that, but for the circumstances of his trial, this would have been the first day upon which he would have been enlisted in the Army Reserve.
20 In Z v Chief of the Navy [2008] ADFDAT 1, Heerey J and myself said at [27]:
Dismissal is the second highest punishment available under the Defence Force Discipline Act (s 67, Sch 2), and in itself carries with it significant deterrent effect because of the consequences to the individual of a dishonourable discharge. In many cases, although possibly not this one, there are real financial consequences to a dismissal. There is also the fact that the disapprobation associated with a dishonourable discharge is likely to have ongoing consequences to future employment prospects as well as in many other ways in civilian life.
21 However in this case it is clear that there were no financial consequences to the appellant following an order that he be dismissed. Further, as the learned Military Judge himself pointed out, the mere fact of his conviction is likely to affect his future prospects of joining the Army Reserve. Further, I think the learned Military Judge was correct in deciding that because the appellant was intending to discharge from the permanent forces in any event, a sentence of dismissal alone was an inadequate punishment, for the reason that the usual effect of dismissal is that it terminates a member’s employment in his or her chosen career. That in itself is not an insignificant punishment. I therefore would dismiss this ground of appeal.
22 The third ground was that the learned Military Judge failed to give adequate consideration to the appellant’s previously unblemished service record. Clearly the learned Military Judge took into account the appellant’s previous service record. He referred to the appellant’s offending as very much out of character. He specifically referred to his 20 year offence-free history and to the evidence of Warrant Officer Brown that he was a person of good character. There is no substance to this ground. I note that senior counsel for the appellant frankly conceded that it was not contended that the penalties imposed were manifestly excessive. The appeal against sentence should be dismissed.
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I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mildren. |
Associate:
Dated: 15 October 2008
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IN THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL |
DFDAT 4 of 2008 |
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ON APPEAL FROM A JUDGE OF THE AUSTRALIAN MILITARY COURT |
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BETWEEN: |
LEON NOEL VITLER Appellant
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AND: |
CHIEF OF ARMY Respondent
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MEMBERS: |
hEEREY j (pRESIDENT), mILDREN AND DUGGAN Jj (mEMBERS) |
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DATE: |
9 OCTOBER 2008 |
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PLACE: |
MELBOURNE |
REASONS FOR DECISION
Duggan J:
23 I agree that the appeals against conviction and sentence should be dismissed. I agree with the reasons of Mildren J.
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I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Decision herein of the Honourable Justice Duggan. |
Associate:
Dated: 15 October 2008
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Counsel for the Appellant: |
B Farr SC |
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Solicitors for the Appellant: |
Ryan & Bosscyer |
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Counsel for the Respondent: |
JM Gaynor CSC and IS Henderson |
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Solicitors for the Respondent: |
Office of the Director of Military Prosecutions |
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Date of Hearing: |
9 October 2008 |
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Date of Judgment: |
9 October 2008 |