Defence Force Discipline Appeal Tribunal
King v Chief of Navy [2013] ADFDAT 3
DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL | |
| Appellant | |
AND: | Respondent |
TRACEY, COWDROY AND LOGAN jj | |
DATE OF ORDER: | |
WHERE MADE: |
THE TRIBUNAL ORDERS THAT:
1. Leave be granted to the appellant to the extent necessary to enable him to rely on each of the grounds appearing in his further amended notice of appeal.
2. The appeal be allowed.
3. The convictions imposed by the General Court Martial in respect of each of the third, fifth, seventh, thirteenth, fourteenth, sixteenth and eighteenth charges be quashed.
DFDAT 5 of 2012 |
ON APPEAL FROM GENERAL COURT MARTIAL |
BETWEEN: | STEFAN MICHAEL KING Appellant
|
AND: | CHIEF OF NAVY Respondent
|
JUDGE: | TRACEY, COWDROY AND LOGAN JJ |
DATE: | 28 MAY 2013 |
PLACE: | BRISBANE (HEARD IN CANBERRA) |
REASONS FOR JUDGMENT
1 The appellant was charged with 19 offences relating to his receipt of rental and other allowances. He was tried before a General Court Martial (“GCM”) between 28 November 2012 and 12 December 2012.
2 On 12 December 2012 the appellant was convicted by order of the GCM of four counts (the third, fifth, seventh and thirteenth charges), brought pursuant to s 61(3) of the Defence Force Discipline Act 1982 (Cth) (“the DFDA”) and s 135.2(1) of the Criminal Code Act 1995 (Cth) (“the Code”), of obtaining a financial advantage for himself from the Commonwealth to which he knew or believed that he was not entitled.
3 The appellant was also convicted of three counts (the fourteenth, sixteenth and eighteenth charges), under s 61(3) of the DFDA and of s 134.2(1) of the Code, of obtaining a financial advantage by deception.
4 The third charge alleged that, in the period from 17 February 2011 to 16 August 2011, the appellant received a food allowance to which he was not entitled in the amount of $1971.88; the fifth charge alleged that, in the period from 17 February 2011 to 26 May 2011 the appellant obtained a financial advantage for himself of rental payments totalling $6,238; the seventh charge alleged that, in the period between 17 February 2011 and 16 August 2011, the appellant received payments totalling $1,428.70 by way of separation allowance knowing or believing that he was not eligible to receive those payments; and the thirteenth charge alleged that, in the period from 24 March 2011 and 14 April 2011 he obtained payment of reimbursement for utilities totalling $352.37, knowing or believing that he was not eligible to receive those payments.
5 The fourteenth charge alleged that, between 14 July 2011 and 4 August 2011, the appellant dishonestly obtained, by a deception, a financial advantage from the Commonwealth by submitting an invoice and receipt for reimbursement of utilities in the sum of $317.04 which was payable only to a “Member with dependants (unaccompanied)” (“MWD(U)”) thereby representing that he was still eligible to receive such reimbursement as an MWD(U) when he was not. The sixteenth charge made the same allegation in respect of the payment of $249.45 made on 2 August 2011 when the appellant submitted a Form PY82 Travel Requisition/Order for Reunion Travel claiming monies payable only to a member categorised as MWD(U). The eighteenth charge similarly alleged that he obtained the amount of $4,376.43 for rental allowance by submitting a “Rent Allowance Review” form thereby representing that he was still eligible to be categorised as a MWD(U).
6 In respect of each conviction the GCM imposed fines and made reparation orders for the sum referred to in the relevant charge. With respect to the offences of obtaining money by deception, the appellant was ordered to forfeit seniority in the rank of Captain such that his seniority now dates from 12 December 2012.
7 The Judge Advocate directed an acquittal in respect of the first count, namely causing a risk of loss (s 135.1(5) of the Code and s 61(3) of the DFDA). The appellant was acquitted of three counts of obtaining a financial advantage by deception and five counts of obtaining a financial advantage. Each of the charges on which the appellant was acquitted related to events which occurred before 17 February 2011.
8 The appellant now appeals against each of the convictions being the third, fifth, seventh and thirteenth charges under 135.2(1) of the Code, and convictions in respect of the fourteenth, sixteenth and eighteenth charges brought against him pursuant to s 134.2(1) of the Code.
THE FACTS
9 The appellant, a Captain in the Royal Australian Navy, maintained a residence at 6 Mackellar Place, Jerrabomberra (“the residence”), and, until the events detailed hereunder, he lived in the residence with his spouse, Captain Jacqueline Margaret King.
10 On 14 January 2010 the appellant took up a posting as the Commanding Officer of HMAS Albatross, Nowra.
11 Before taking up his appointment the appellant successfully applied for financial benefits pursuant to a Defence Determination made under s 58B of the Defence Act 1903 (Cth) (“the Defence Act”). The determination was known as Determination 2005/15 entitled “Member with dependants (unaccompanied)”. This Determination prescribed the conditions which had to be satisfied before members of the Australian Defence Force (“ADF”) become entitled to benefits of the kind referred to in the charges.
12 One of those conditions was that the member had a dependant. The appellant nominated his wife as that dependant. His wife was also a Senior Naval Officer who was posted to Canberra.
13 The Determination was incorporated in a manual which was entitled the “Pay and Conditions Manual” (“PACMAN”).
14 Each of the charges arose in the following circumstances. During the period when the benefits were being received, and during the currency of the appellant’s posting, the matrimonial relationship between the appellant and his wife broke down. On 29 April 2010 the appellant indicated to his wife that he no longer wished to be her husband. On 17 May 2010 the appellant confirmed his wish to seek dissolution of his marriage. In the parties’ Application for Divorce they stated that their separation had taken place on 27 April 2010.
15 The appellant’s divorce was finalised on 18 September 2011. The appellant then submitted a completed form AA157, notifying of his changed circumstances.
16 Whilst the divorce proceedings were current, the appellant and his wife remained domiciled in the same dwelling at Jerrabomberra, although the appellant, because of his posting, was required to spend much of his time at HMAS Albatross. In this period the appellant and his wife occupied separate rooms of the dwelling when the appellant returned to Canberra. Throughout the period from 17 February 2011 to 6 August 2011 and until notification was given by the appellant of the finalisation of his divorce, he received the benefits on the basis that his wife remained a ‘dependant’ as defined in Determination 2005/15.
THE CHARGES
17 Each charge brought against the appellant was founded upon provisions of Determination 2005/15. The charges alleged that the appellant, on 26 October 2009, was granted approval to be recognised as MWD(U) with effect from 14 January 2010, but that, from 27 April 2010, he no longer satisfied the relevant criteria. The prosecution relied on an affidavit which the appellant had sworn in his divorce proceedings in which he affirmed that he had separated from his wife on 27 April 2010, and that, at the date of separation, he regarded the marriage as having ended.
18 The prosecution case was that, on and after 27 April 2010, the appellant no longer satisfied the eligibility criteria for categorisation as an MWD(U) and, from the date specified in each charge, the appellant was disentitled to any financial advantage deriving from such categorisation, because he had separated from his wife and, as a consequence, no longer had any dependants.
19 On 17 February 2011 Determination 2005/15 was amended by Determination 2010/64.
20 As already noted all charges brought against the appellant for offences which had allegedly been committed prior to 17 February 2011 were dismissed by the GCM. All of the charges of which the appellant was convicted related to conduct which occurred after the amendments effected by Determination 2010/64 commenced operation.
THIS APPEAL
21 By his amended notice of appeal the appellant appealed against all his convictions. Numerous grounds of appeal were raised. As the hearing of the appeal progressed, it became apparent that there was a critical issue requiring consideration, namely, whether the Judge Advocate erred in her direction to the panel about whether the appellant and his wife ‘normally live[d] together’ for the purposes of clause 1.3.76 of Determination 2005/15. Unless they did so the appellant was not entitled to receive benefits as an MWD(U). The argument also dealt with the question of whether Determination 2010/64 made any material change to a member’s obligation to provide notification to his or her superior of any changed circumstances; and further, whether there was, in fact, any alteration in the appellant’s living conditions which required him to provide such notification.
22 A second important issue raised by the appellant was whether the verdicts of guilty entered against him were inconsistent with the verdicts of acquittal which had been entered.
23 Particular attention was directed to these issues in the course of argument. We have accepted the appellant’s arguments that the panel was misdirected in relation to the meaning and application of clause 1.3.76. We also consider that there was a material inconsistency between the acquittal of the appellant on charges relating to the period before 17 February 2011 and his conviction on the charges relating to his conduct after that date. We will, therefore, deal first with the grounds which raise these issues.
WAS THERE AN ERROR IN THE JUDGE ADVOCATE’S DIRECTION?
The Determinations
24 Determination 2005/15 contains the criteria which must be satisfied before a member of the ADF can be classified as an MWD(U). As the verbiage suggests, one of these criteria is that the member has a “dependant”. Clause 1.3.76 defined a ‘dependant’ as follows:
“1. Any of these persons is a member’s dependant. This is only if the persons normally live with the member.
a. The member’s spouse
b. Dependent children.
c. A person acting as a guardian or housekeeper, if the member has a dependant child and any of these other conditions is met.
i. The member has no spouse.
ii. The member’s spouse is an invalid or has a disability.
iii. The member’s spouse is a member serving at another posting location.
d. Other dependants recognised by the CDF as a special case under clause 1.3.79.”
25 Although clause 1.3.76 does not elaborate on the circumstances in which a spouse will be regarded as normally living with the member, specific provision is made, in clause 1.3.78, as to when a dependent child might be so regarded. That clause reads:
“1. A child is a dependent child if they meet all these conditions.
a. They are a child of the member or of the member’s spouse.
b. They normally live with the member.
c. They are under 21 years old.
2. A child normally lives with a member if one of these conditions is met.
a. The child is provided with overnight care in the member’s home at their posting location for at least 90 nights a year.
b. The child is only absent from the member’s home because the child is in full-time education. This can be primary, secondary or undergraduate tertiary education.
c. The CDF recognises that the child is expected to live with the member at their posting location on a frequent and regular basis. The CDF must consider all these criteria.
i. The arrangements for the child’s contact or residence with the member.
ii. The member’s access to the child.
iii. The distance and transport between the child’s location and the member’s location.
iv. The nature and extent of the member’s duty commitments.
v. Other factors that may be relevant to the relationship of the child and the member.”
26 Clause 1.3.76 was not altered by Determination 2010/64. To qualify for entitlements as an MWD(U) the appellant was required to establish that his wife normally lived with him during the periods referred to in the charges.
27 The obligation to notify of any change in circumstances was provided for in both clause 1.5.2 of Determination 2005/15 as amended by later Determinations, including Determination 2010/64. Each Determination required the person receiving benefits to give notice to his or her commanding officer in the event of any change in the circumstances by which they qualified to receive benefits as an MWD(U), and to do so as soon as practicable after such event.
The Evidence
28 The prosecution led evidence which established that the appellant had applied for and received the benefits referred to in the charges on the basis that he was an MWD(U) throughout the periods after 27 April 2010 during which it was alleged that he was no longer qualified to receive such benefits. The prosecution alleged that the appellant’s entitlement to receive the benefits ceased on that date because he was thereafter separated from his wife. As a result he could no longer be treated as a member who normally lived with his wife, as required by clause 1.3.76 of Determination 2005/15. The critical matter for determination by the GCM was, therefore, whether the separation meant that the appellant and his wife no longer normally lived together within the meaning of clause 1.3.76.
29 The appellant was interviewed by service police. He made statements in the course of the interview in which he freely acknowledged receipt of the benefits which were said to be unlawfully obtained. He was, however, steadfast in asserting his belief that he had committed no wrong because he regarded the residence where both he and his wife lived as their home until the divorce decree took effect.
30 In the record of interview, which was in evidence, he maintained his belief that “separated” had a different meaning to “divorced”. He believed that “separated” applied to those persons who have moved out of the matrimonial residence and who are not contributing to the home. He maintained that he had not moved out of the home; was fully maintaining a home and that, at weekends, he went to his home because he and his wife continued to live together, cooked together, gardened together and did shopping together. Both the appellant and his wife continued to live under the same roof. He also stated that he was supporting the home financially, had full trust in his wife, and maintained “full discussion” with her. The appellant maintained his belief that he and his wife remained married until a court determined that the marriage was at a legal end.
31 The appellant gave evidence at his trial to similar effect.
32 Captain Jacqueline King also testified and provided a statement to the investigating authorities. She stated that she believed that the appellant was still part of the “family home” because he maintained his clothes, his tools and his wood working equipment, had furniture and other personal property at the home, and that they had agreed that he would remove his possessions only when the divorce took effect.
33 Other evidence was led to show that, during the relevant period, the appellant had arranged for a power supply to be installed to his shed at the property where he undertook his woodworking activities. Also in this period his wife had forwarded a message to him in which she referred to the residence as their “home”.
34 Evidence was tendered to show that the appellant was aware of the fact that benefits as an MWD(U) were properly payable only under certain conditions and that he believed that he was compliant with those conditions. The fact that the appellant and his wife were undergoing a dissolution of marriage was openly disclosed by the appellant to his superior officer at an early stage in the dissolution process.
35 It accordingly fell to the Judge Advocate to instruct the panel what was meant by the phrase “normally lives with” in clause 1.3.76 of Determination 2005/15.
The Judge Advocate’s Direction
36 The Judge Advocate directed the Panel as follows:
“The critical factor in this case in determining whether the accused was eligible to be categorised as member with dependants unaccompanied is whether he would normally live with CAPT Jacqueline King rather than whether he, as a matter of law, continued to be married to her. There is no doubt that as a matter of law she continue (sic) to be his spouse up until the day that they were divorced.
That is, however, not the only factor influencing the change of circumstance. Consequently, as soon as the accused had made the determination that he would no longer normally live with his spouse, he had an obligation to notify of his change of circumstances. Whether he was separated from her is only a factor to be taken into account as to whether he would normally live with her, although it is a likely, but not necessarily (sic), consequence of separation that a couple will cease normally living together. Clearly, you have to focus on the words ‘normally live with’. The words are not defined. They are not difficult words and you should give them their ordinary everyday meaning.”
37 The Judge Advocate then referred the Court to the Macquarie Dictionary definitions of “normally” and “live with”. She drew attention to the definition of the word “normal” as meaning “conforming to the standard or the common type; regular, usual, natural” and to “normally” as meaning “as a rule; regularly,; (sic) according to rule, general custom”. The definition of the words “lived with” was said to be “to dwell together with, as husband and wife or lover, or to cohabit with.” She then continued:
“It’s a question of fact for you in this case as to whether the accused normally lived with his spouse. I provide those dictionary definitions to you purely as a guide.”
38 The Judge Advocate referred to the defence of the appellant, stating:
“The defence case is that the accused normally lived with CAPT Jacqueline King because he was maintaining a home, a common household, continued to pay the mortgage and that CAPT Jacqueline King remained his wife. The prosecutor has submitted to you, when you say to someone ‘I don’t want to be your husband anymore, I don’t want to be married to you anymore,’ it's difficult to then say, ‘but I'm still going to live with you; I'm going to normally live with you’. She said, ‘You can't, because it means that you don't want to be with them.’ The prosecution case is that, because they had separated, they no longer normally lived together.”
39 Later the Judge Advocate referred to the conditions, prescribed by the Family Law Act 1975 (Cth), which must be satisfied by parties to a marriage who seek a decree of dissolution. The central requirement, prescribed by s 48 of that Act, was that the parties must have lived separately and apart for 12 months. The Judge Advocate read out the terms of s 49 of the Family Law Act which provided that:
“(1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
(2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.”
40 The Judge Advocate then said:
“Physical separation is neither a necessary nor a sufficient condition to establish the a (sic) separation for the purposes of section 48(2), that parties to a marriage may regard themself (sic) as being married, even though they are living apart for a period of time. There are three elements which constitute a finding that separation has occurred, and that is the intention to separate, the action upon that intention and the communication of that intention to the other party.
Despite this definition, I direct you that it's a matter for you as to what "normally lives with" means, and whether or not the accused was separated from CAPT Jacqueline King is just a factor for you to take into account in making the decision on the facts. As I said, as a Tribunal of fact, that's a question for you alone.”
41 The defending officer sought a redirection from the Judge Advocate because, he submitted, the dictionary definition of “lived with” suggested that living together involved the existence of a sexual relationship when it could include what he described as “other types of dependants.”
42 As a result of this exception the Judge Advocate gave a further direction to the panel in the following terms:
“The next matter is that the definition of ‘live with’ from the Macquarie Dictionary, I said, means ‘to dwell together, as husband and wife, or lover, or to cohabit with’. What is clear for the purposes of the determination, and I have said this to you but I just reiterate it, is that that does not require there to be a sexual relationship between the parties normally living together. For the purposes of the Family Law Act, separation, of itself, requires the cessation of cohabitation.”
Consideration
43 As the Judge Advocate’s direction recorded, the gist of the prosecution case was that, from the date on which the separation of the appellant and Captain Jacqueline King commenced for the purposes of the Family Law Act, namely 27 April 2010, they could no longer be regarded as living together for the purposes of clause 1.3.76. Put another way: upon separation, the appellant and Captain Jacqueline King could no longer be treated as normally living together within the meaning of clause 1.3.76.
44 The defence case was that the appellant normally lived with Captain Jacqueline King despite the separation because she remained his wife and they together maintained and bore the expenses relating to the matrimonial home. The appellant lived there when he was able to return to Canberra from HMAS Albatross.
45 The construction of clause 1.3.76 was thus a central and critical issue at trial. It was, therefore, incumbent on the Judge Advocate to direct the Court as to the proper construction of the clause.
46 The Defence Determination, in which the clause appeared, was made under the Defence Act and was, therefore, a legislative instrument: see s 5 of the Legislative Instruments Act 2003 (Cth). The clause fell to be construed in accordance with established canons of statutory construction.
47 In their joint judgment in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 sat 381, McHugh, Gummow, Kirby and Hayne JJ said that:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.’ Thus, the process of construction must always begin by examining the context of the provision that is being construed.”
48 This approach to statutory construction is, as Spigelman CJ said in R v Young (1999) 46 NSWLR 681 at 687 “well described as ‘literal in total context’”.
49 Whilst effect will often be given to the literal meaning of the words employed by the draftsman, the context in which those words appear may dictate that they be read down having regard to the context in which they appear in order to give effect to the legislative intention. As Learned Hand J said many years ago in Cabell v Markham 148 F 2d 737 (1945) at 739, the courts no longer “make a fortress out of the dictionary.”
50 Relevantly, the Determination provided for members of the ADF who were required, by the exigencies of service life, to live away from the family home to receive payments to assist with the additional expenses thereby incurred. These payments included food allowances, rental allowances, separation allowances, reimbursement of utilities and travel allowances. The appellant’s entitlement to these payments depended on him being classified MWD(U). A member could be so categorised, pursuant to clause 1.3.81.4, if the member was posted to a new posting location, the member provided a home for dependants at the “losing location” and the member was unable to live with his or her dependants at the “gaining location”. One reason why a member might be unable to live with his or her dependants which was recognised by the Determination was that the member’s spouse was also a service member who could not, for service reasons, be posted to the “gaining location”. The persons identified in paragraphs (a) to (d) inclusive of clause 1.3.76 were to be regarded as a member’s dependant but “only if the persons normally live[d] with the member.”
51 It may immediately be observed that this definition has a temporal element. The definition of “dependants” in clause 1.3.76 determines whether a member is entitled to benefits of the kind claimed and paid to the appellant. Among the criteria for the payment of such benefits is a condition that the member is required to live somewhere other than his or her normal home. This implies that that which is “normal” is to be determined at the time at which an application for payment is made or, at the latest, when the member’s posting away from home takes effect. An ambulatory construction is not suggested because, once the posting has taken effect, the member will not normally be living with his or her dependants. He or she will be at the “gaining location” and not where, formerly, he or she had normally lived. These same contextual considerations underscore that “normally” means nothing more than “usually”. It is no part of the use of the word “normally” in the Determination to require any assessment by a decision-maker as to whether an applicant and his or her spouse are or are not in a “normal” married relationship (whatever that may be). As to the relationship and materially, all that the Determination required was that the applicant have a spouse.
52 The appellant applied to be recognised as MWD(U) upon his posting to HMAS Albatross. That application was made and granted before he took up the posting on 14 January 2010. The prosecution did not dispute that the appellant was properly categorised as MWD(U) in the period between his application being granted and the commencement of separation for Family Law Act purposes on 27 April 2010. This was despite the fact that between 14 January 2010 and 26 April 2010 the appellant was not living in the matrimonial home. During this period the appellant would have been living in Jerrabomberra had it not been for his posting.
53 The difficulty confronted by the prosecution was that the only material change in circumstances which occurred between 26 and 27 April 2010 was that the appellant nominated the latter date as the commencement of the separation period which was needed in order for there to be a divorce. Clause 1.3.76 did not change. The meaning of the expression “normally lives with” also remained unchanged.
54 The dictionary definition of the words “live with” which were read to the panel suggested the need for there to be a sexual relationship between the member and one or more of the persons who fell within paragraphs (a) to (d) inclusive. The immediate context in which the words appear make it plain that no such meaning was intended. Whilst one class of dependant is identified as the member’s spouse, others include children, a guardian and a housekeeper. The literal reading of “live with” must, therefore, be understood as applying to domestic arrangements which have no sexual element. The parties involved in those arrangements need not be related. What is critical is that the member normally live under the same roof with one or more of the persons defined in clause 1.3.76 as dependants. Usually, but not necessarily, the member can be expected to contribute to the upkeep of the home and the support of the dependants.
55 The directions given by the Judge Advocate appear to have been unduly constrained by the dictionary definitions. The Macquarie Dictionary definition of “live together” could not possibly be said to cover all possibilities comprehended by the words “live with”. For example, in common parlance, two persons, unrelated, may “live with” one another in a shared house, sharing expenses and outgoings. As long as such persons resided under the same roof they could be treated as “living together” without any connotation of a marital relationship or otherwise cohabiting.
56 There is another Determination which provides support for our conclusion concerning the narrowness of the direction to the panel. Defence Determination 2006/62, which was made subsequent to Determination 2005/15 but before Determination 2010/64, sought to clarify the eligibility of members of the ADF for benefits. The Explanatory Statement to this Determination stated that:
“Subclause 1.3.81.3 lists a range of locations for eligibility purposes. The effect of the list is that it is a pre-condition for categorisation as a member with dependants (unaccompanied) under clause 1.3.81 that a member provides a home for dependants in one of the locations.” (emphasis added).
57 Although the Judge Advocate, in her redirection, advised the panel that a person could be a dependant within the meaning of clause 1.3.76, even if there was no sexual relationship between that person and the member, the Judge Advocate did not give the panel a positive redirection that, in the circumstances, the appellant and Captain Jacqueline King could, consistently with clause 1.3.76, be regarded as “normally living together” at all relevant times. This should have been done. They jointly maintained the Jerrabomberra house. The appellant stayed there on his visits to Canberra. They both kept their possessions at the property. They both regarded it as their “home” until such time as their divorce took effect. Had a positive direction to this effect been given to the panel we do not doubt that it would have had the potential materially to affect the outcome of the trial.
58 The problem was compounded when the Judge Advocate linked the concept of “separation”, as provided for in the Family Law Act, with the different concept of spouses normally living together within the meaning of clause 1.3.76. Having read out the terms of ss 48 and 49 of the Family Law Act and identifying the elements needed to establish that a separation between spouses had occurred, the Judge Advocate told the panel that it was a matter for them as to what “normally lives with” means and “whether or not the accused was separated from CAPT Jacqueline King is just a factor for you to take into account in making the decision on the facts.” (emphasis added).
59 It was not for the panel to determine what the phrase “normally lives with” meant in the context of clause 1.3.76. It was for the Judge Advocate to direct the panel as to what the meaning was. That meaning, as we have explained, operates independently of marital separation as defined in the Family Law Act. Even under that Act spouses can be separated while they reside in the same residence or render household services one to the other. The Judge Advocate directed the panel that, whether or not the appellant and Captain Jacqueline King were separated at relevant times was “just a factor for you to take into account in making the decision on the facts.” No attempt was made to explain how separation for Family Law Act purposes could assist the panel to decide what “normally lives with” meant.
60 The possibility that the panel had been misdirected in relation to the question of whether Captain Jacqueline King was a dependant of the appellant arose in the course of argument on the appeal. As a result, counsel for the appellant, on the last day of hearing, applied for and was granted leave to add a particular to ground 2 of the amended notice of appeal. Ground 2 alleged that the Judge Advocate had erred in law such that the conviction was wrong in law and a substantial miscarriage of justice had occurred. The additional particular alleged that the Judge Advocate had erred in directing the Panel as to the meaning of the term “normally lives with” in clause 1.3.76.
61 We consider that the deficiencies in the directions to the panel which we have identified gave rise to a substantial miscarriage of justice. The convictions must be quashed.
62 Having so found, it is unnecessary to consider the remaining submissions made by the appellant. Full argument was, however, heard in relation to some of the other grounds. We will, therefore, express our views on them.
INCONSISTENCY IN VERDICTS
63 The prosecution, in its opening, stated that the effect of the amendment introduced by Determination 2010/64 was as follows:
“In February ’11 a significant amendment was made to interdependent relationships and indeed to categorisation MWDU. The determination was strengthened in its articulation of its purpose and it was strengthened in this way: to make it very clear Defence did not consider that you had a dependant, even if that person was your spouse, if you were separated from them. Indeed, it went so far as to say it does not recognise marriages of convenience.
It did not, for instance, accept that albeit under the Family Law Act you can be separated under the same roof, so far as Defence was concerned, you couldn’t maintain a dependant on that basis. The prosecution say of course that’s always been the intent, but with the amendments that came through in 2011 that was made more abundantly clear. Of course you’ll appreciate that some of the offending occurred after 17 February 2011. That is why the charges have been broken up to capture that particular amendment.”
64 Significantly, the Judge Advocate, over the appellant’s objection, grouped the charges together in a schedule of separate charges, one group pertaining to the offences allegedly committed by the appellant prior to 17 February 2011, and the other to the alleged offences to which the amendments to Determination 2005/15 effected by Determination 2010/64 thereafter applied. She dealt collectively with the two groups when summing-up.
65 The Judge Advocate directed the panel that there were two determinations that covered the period of the alleged offending. The first, Determination 2005/15, applied up until 16 February 2011 and thereafter Determination 2010/64 applied.
66 As to the second period, namely from 17 February 2011 onwards, being the period during which the amendments introduced by Determination 2010/64 operated, the Judge Advocate relevantly said as follows:
“That brings me to the second group of charges, which relate to the period of time from 17 February 2011 onwards.
The definition of ‘member with dependants’ remains the same, and that is that a member with dependants is a person who provides and lives in a home at their posting location with at least one dependant. Again, 1.3.76 of the determination provided that ‘Any of these persons who normally lives with the member is the member's dependant,’ and that includes the member's spouse. Clause 1.3.77 of the determination provides that "a spouse" for a member means ‘a person who is married to the member in accordance with the Marriage Act 1961’. Those definitions apply to all the offences.
Again, as in relation to the first group, the critical factor in determining whether the accused was eligible to be categorised as member with dependants (unaccompanied) is whether he would normally live with CAPT Jacqueline King, rather than whether he, as a matter of law, continued to be married to her. There is no doubt that, as a matter of law, she continued to be his spouse until they were divorced.
That is, however, not the only factor influencing the change of circumstance. Consequently, as soon as the accused had made the determination that he would no longer normally live with his spouse, he had an obligation to notify of his change of circumstances.
…
As I said in relation to the other charges, the focus in relation to all of them is the question of ‘normally lives with’ and that's as (sic) question of fact to be determined by you, looking at the whole of the circumstances.
The major change to the determination as at 17 February 2011 was the new clause 1.3.81, which clarified the relationship between the member's responsibility for their dependants and their eligibility for additional benefits. You'll find this behind the chapter 1 tab in exhibit 5. It also makes it clear at clause 1.3.81.3 that the package provided to a member with dependants (unaccompanied) and their dependants may recognise the additional costs of maintaining dependants in two locations. It provides that it may include benefits such as fully-subsidised accommodation for the member at the member's duty location, reunion travel, food and utilities, and separation allowances, partly-subsidised accommodation for the dependants, and removal at Commonwealth expense.” (Emphasis added).
The Judge Advocate did not indicate where the obligation, to which she referred in the italicised passage, was imposed.
67 The Judge Advocate also referred to clause 8.3A.7 and 8.3A.9 of Determination 2010/64. These clauses are contained in Part 3A and entitled “Member with dependants (unaccompanied)”. The Judge Advocate said that:
“… clause 8.3a.7 now provides:
A member stops being a member with dependants (unaccompanied) if any of the following circumstances apply to them.
a. The member's circumstances have changed, and the member does not qualify for the member with dependants (unaccompanied) category.
This clause takes it one step further than the general provision at 1.5.2 [in Determination 2005/15]. However, effectively, it says the same thing. It's clear that there's no list of reasons why a member would have to advise of a change of circumstances because it would depend on a member's individual circumstances. It's not the case that, because the provision doesn't set out all the circumstances that could apply, one circumstance would not apply.
Clause 8.3a.9, headed "Service couple live apart", provides guidance in the following manner:
The member with dependants (unaccompanied) category is designed for temporary separation. If a couple does not intend to live together in the future, they should be categorised as member without dependants.
Substantially, the changes were perhaps not relevant to the circumstances in this case but merely provided the additional clause at 8.3a.7, …”
68 Under Determination 2005/15 clause 1.5.2 provided for notification of any change in a member’s eligibility to receive benefits as an MWD(U). Clause 1.5.2 relevantly stated:
“2. This clause applies if a member or their dependants meet both these conditions.
a. They have qualified for an entitlement.
b. There is a change in the circumstances by which they qualified.
3. The member must tell their Commanding Officer about the change as soon as practicable.”
69 Determination 2005/52 amended subclause 1.5.2 of Determination 2005/15 to add the following provisions:
“4. The member must also inform the approving authority for any housing assistance that the member is in receipt of about the change as soon as possible.
5. A member must fill in and provide the relevant form at Annex 1.5.A to their Commanding Officer as soon as practicable after either of these events:
a. If the number of dependants a member has changes.
b. …”
70 Determination 2010/64 further amended subclause 1.5.2.5 of Determination 2005/15 and substituted the following:
“5. A member must fill in and provide the relevant form at Annex 1.5A to their Commanding Officer as soon as practicable after any of these events [relevantly]:
a. …
b. …
c. If there is any other change in the facts set out in the member’s application.”
71 The evidence relied on by the prosecution in respect of the charges under appeal was virtually identical to the evidence led in respect of the charges on which the appellant was acquitted. Save that the periods covered by the charges differed, the evidence called by the prosecution in relation to the appellant’s domestic circumstances applied to all of the charges. No material change in those circumstances occurred between 27 April 2010 and August 2011. This is critical. It must follow that the convictions on the charges covering the second period could only be upheld if the amendments introduced by Determination 2010/64 concerning the entitlement to benefits and the need to provide notification of any change of circumstances, differed materially from the pre-existing requirements of Determination 2005/15.
72 We have been unable to identify any material alteration of the Determination in February 2011 which could have justified the panel adopting an asymmetrical approach to the two groups of charges. The definition of “dependants” remained undisturbed. The substance of clause 1.5.2, dealing with reporting obligations in the event of a change of circumstances, remained undisturbed. Clause 8.3A.7 was added but, as the Judge Advocate rightly observed, “it says the same thing” as clause 1.5.2.
73 Clause 8.3A.9 was also added. It stipulated that the MWD(U) category was designed to deal with a temporary separation and said that, if the “couple do not intend to live together in the future, they should be categorised as members without dependants.”
74 There was evidence that the appellant and Captain Jacqueline King had agreed that they would cease to live together after their divorce was granted. That was not to occur until August 2011. It was their intention, until then, jointly to maintain their matrimonial home. That intention did not change in February 2011.
75 The words “in the future” in clause 8.3A.9 are ambiguous. They do not make it clear whether reference is being made to the period immediately after the formation of the joint intention to separate or to some time in the indeterminate future after the member’s posting, which has brought about the separation, has concluded. This leaves open the possibility that clause 8.3.A.9 does not advise that a change of categorisation should occur unless the couple have decided before or during the member’s posting that they will not live together again either during the currency or remaining part of the posting and after its completion. Given the purpose served by the benefits which flow from a categorisation of MWD(U), such a construction is to be preferred.
76 The appellant and Captain Jacqueline King intended to continue to live together within the meaning of clause 1.3.76 throughout the period covered by the charges and did so. Nothing in clause 8.3A.9 which, in any event, is advisory in terms, mandates a different conclusion.
77 In Mackenzie v R (1996) 190 CLR 348 at 366, Gaudron, Gummow and Kirby JJ stated the principles to be applied upon an assertion of inconsistent verdicts. Their Honours, referring to R v Stone (unreported, Devlin J, 13 December 1954), relevantly said that the appellant “must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.”
78 Their Honours continued at (368):
“Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case.’”
79 By its acquittals of the appellant of the charges laid in respect to the period prior to 17 February 2011 the panel must be taken to have accepted that the appellant had a dependant and was properly categorised as MWD(U) in this period. What then changed? The statutory criteria were not altered following the amendments effected by Determination 2010/64. Moreover, there had been no substantial change in the stipulations in the Determination relating to a member’s obligation to advise of a change of circumstances.
80 We consider this to be one of the rare cases in which the two sets of verdicts cannot stand together. In the absence of any material change of circumstances or in the governing Determination, the inconsistency must have arisen from some confusion or misunderstanding in the minds of the members of the panel as to the true meaning and operation of the relevant parts of the Determination. It may be that this confusion arose, in part at least, from the direction that the appellant was obliged to notify a change of circumstances as soon as he had made the determination that he would no longer normally live with Captain Jacqueline King. No such obligation existed. To the extent that this direction may be thought to be founded on the new clause 8.3A.9 it lacks support: the clause imposed no obligation on the appellant and, in any event, its operation was not conditioned upon the unilateral decision of the member.
81 We would, therefore, have, had it been necessary, quashed the convictions on this ground.
EMAIL EVIDENCE
82 The appellant submitted that the Judge Advocate erred by failing to hold that certain emails, described hereunder, should have been excluded pursuant to s 135 of the Evidence Act 1995 (Cth) (“the Evidence Act”) or that their prejudicial value outweighed their probative value pursuant to s 137 of that Act.
83 Section 135 of the Evidence Act provides that the Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might, inter alia, be unfairly prejudicial to a party: see s 135(a). Further, s 137 provides that:
“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”
84 The emails referred to had been written by the appellant to various female friends. Some were exchanges between him and his then wife. Many were lascivious, salacious and sexually explicit in their content. Some of the emails made references to the appellant’s wife in derogatory terms. The emails were admitted into evidence over objection by the defending officer.
85 The appellant had acknowledged in the record of his interview held on 15 September 2011, that his marriage was at an end by 27 April 2010, although he and Captain Jacqueline King continued to live under the same roof until completion of their divorce. Such evidence was all that was necessary for the prosecution to lay the charges. The content of the emails did not serve any necessary purpose in establishing critical facts relating to the living arrangements of the appellant. The content of the emails was only remotely relevant, and scarcely bore any relevance to the critical facts, which had already been admitted by the appellant. At best, they were peripheral to any issue. The contents of the emails were highly prejudicial to the appellant. They painted him as a philanderer who conducted affairs behind his loyal wife’s back both prior to and during his posting to HMAS Albatross. Whilst they corroborated the prosecution’s claim that the appellant wished to bring his marriage to an end, such corroboration was unnecessary in the light of his admission to this effect.
86 The basis for excluding evidence which is claimed to be prejudicial was explained by Hunt CJ at CL in R v BD (1997) 94 A Crim R 131 at 139 as follows:
“The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.”
87 We consider that, in the circumstances, the emails should not have been admitted into evidence. Their admission may well have deflected the panel from the proper consideration of the charges and been a factor in their decision to convict the appellant of the charges the subject of this appeal.
88 For this reason, the Tribunal finds that the admission of the emails gave rise to a miscarriage of justice because their prejudicial impact far outweighed their probative value.
ERROR OF LAW RELATING TO REJECTION OF PACMAN
89 In the course of the trial reference was made to a number of Determinations and parts thereof. Those Determinations appeared in the PACMAN. The person who had made Determination 2010/64 was called to give evidence for the prosecution as to the meaning and application of relevant parts of the Determinations. In the course of her evidence Ms Ingrid Singh, ventured the opinion (amongst others) that, once a member and his or her spouse became separated under the one roof, the member’s entitlement to categorisation as MWD(U) would cease.
90 The panel was provided with extracts of the relevant parts of Determinations. These extracts were marked as exhibits.
91 The defending officer sought to tender the complete PACMAN. He submitted that the volumes were “relevant to what it was that the [appellant] had to process in relation to the applications and also what it is that is alleged, in essence, that the [appellant] was aware of.” He stressed that the tendered portions of the manual had to be read and understood in context. The Judge Advocate rejected the proposed tender.
92 At another stage of the trial the panel itself requested a complete copy of the manual. The Judge Advocate also rejected this request.
93 The proposed tender was rejected by the Judge Advocate on the ground that the manual contained statements of the law and that it was her function to direct the panel on legal questions. The Judge Advocate explained her decision to refuse to provide complete copies of the PACMAN to the panel in these terms:
“They’re going to sit in there and I don’t know what they’re reading. It’s up to me to tell them what the relevant law is, and that’s my concern. As I said, we might as well give the DLM because there are relevant bits in that too. It just seems to me that it is not relevant when it’s my function to direct them as to those appropriate matters and it’s a matter for you [Counsel] to make submissions concerning the complexity of it, and I will adopt those submissions.”
94 In the prosecution’s opening, the panel was told that the PACMAN contained not only the determinations but also the policy guidance and outline in relation to how persons, including Defence members, could assess their entitlements, from time to time, to be paid certain allowances.
95 The appellant submitted that such factors were highly relevant to determining his guilt or innocence on the charges under appeal and that the Judge Advocate’s determination that the PACMAN was only relevant to a question of law was an error.
96 The appellant further submitted that the PACMAN was also relevant because of what it did not contain. He pointed to the omission of provisions concerning the effect of the irretrievable breakdown of marriage, the filing for divorce or the commencement of separation under one roof.
97 The Tribunal harbours some misgivings as to the Judge Advocate’s refusal to admit the PACMAN into evidence and as to the reason given for that refusal. Nonetheless, we do not consider that the refusal led to a miscarriage of justice.
98 It was, of course, for the Judge Advocate to direct the panel on questions of law. The fact that the PACMAN contained subordinate legislation was not, however, a proper reason for refusing its admission into evidence or its provision to the panel. The extracts from the manual which were admitted into evidence would necessarily have been subject to the same objection. Furthermore, the panel was directed that it was a matter for them to determine what the phrase “normally lives with” in clause 1.3.76 of the Determination meant. If they were to perform this task it was necessary that they should have access to other relevant parts of the manual in order to provide them with the context in which the definition of “dependant” came to be applied.
99 The PACMAN is a very large document comprising hundreds of pages in three volumes. Most of it had no relevant application. The appellant was not prevented from tendering any parts of the manual which he asserted were relevant to the proceeding. He was not prevented from submitting to the panel that the manual was silent on matters which he contended were significant.
100 We would not have been disposed to uphold this ground.
ERROR OF LAW IN FAILING TO HOLD THAT THE APPELLANT WAS ENTITLED TO A TRIAL BY JURY: CONSTITUTION SECTION 80
101 A formal submission was made by the appellant that the Judge Advocate erred in law by failing to hold that he was entitled to a trial by jury under s 80 of the Constitution because the trial was a trial on indictment. Reference was made to the signed charge sheet and his exposure to a maximum penalty of imprisonment of ten years.
102 The appellant submitted that the decision of the Full Bench of the Federal Court in Jones v Chief of Navy (2012) 205 FCR 458 at 503, which held that s 80 did not apply to the trial of charges brought under the DFDA, was erroneously decided.
103 Counsel for the appellant properly acknowledged that this Tribunal is bound to follow decisions of the Full Bench of Federal Court. As a result this ground cannot succeed.
UNANIMITY IN VERDICT
104 The Judge Advocate gave an orthodox direction to the panel that its members should reach their determination on the appellant’s guilt or innocence of each charge by majority vote. This direction was based on s 133(2) of the DFDA which stipulates that “[e]very question determined by the members of the court martial shall be decided by a majority of the votes of the members.” Section 133(4) specifically contemplates that such a vote might relate to the guilt of the alleged offender.
105 The appellant submitted that these provisions were, in some way, qualified by other provisions in s 134 of the DFDA. The short answer to this submission is that, although s 133(1) of the DFDA is expressed to be subject to s 134, the provisions of subsections (2) and (4) are not so qualified. Furthermore, we are unable to discern in s 134 any limitation which might impinge on the operation of subsections (2) and (4) of s 133.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, Cowdroy and Logan. |
Associate: