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Federal Court of Australia - Full Court Decisions |
Last Updated: 31 May 2004
FEDERAL COURT OF AUSTRALIA
Hoffman v Chief of Army [2004] FCAFC 148
DEFENCE FORCES -- Defence Force Discipline Act 1982 (Cth) -- service offences -- civil offences -- Territory offences -- assault provisions
STATUTORY INTERPRETATION -- inconsistency between specific and general provisions -- expressum facit cessare tacitum -- generalia specialibus non derogant
CRIMINAL PROCEDURE -- abuse of process -- whether constituted by laying of charge under general provision to avoid time-bar on specific charge -- whether constituted by delay in bringing charge -- whether constituted by pressure upon applicant to plead guilty -- whether stay of proceedings should have been granted
CONSTITUTION -- validity of Defence Force Discipline Act
1982 (Cth) s 61 -- defence power (s 51(vi)) -- judicial power -- military
law
Defence Force Discipline Act 1982 (Cth) ss 3(1), 33, 34(1),
61, 96(1) and (4)
Defence Act 1903 (Cth) ss 4, 55
Defence Force
Discipline Appeals Act 1955 (Cth)
Crimes Act 1900 (ACT) s 26
Clyde Engineering Co Ltd v Cowburn [1926] HCA 6; (1926) 37 CLR 466
discussed
The Danube II [1921] P 183 discussed
Hoffman
v Chief of Army [2003] ADFDAT 4 reversing
Lawson v Gault [2002] FCAFC 191;
(2002) 125 FCR 1 distinguished
McWaters v Day [1989] HCA 59; (1989) 168 CLR 289
discussed
Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460
discussed
Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518
discussed
Re Tyler; Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18
discussed
Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1
discussed
F A R Bennion, Statutory Interpretation 4th ed,
Butterworths, London, 2002
H Broom, A Selection of Legal
Maxims, 10th ed, Sweet & Maxwell, London, 1939
Defence Force Disciplinary Code: Report of the 1973 Working Party
(1974) Parliamentary Paper No. 48, Canberra, 1974
D Pearce and R Geddes,
Statutory Interpretation in Australia 5th ed, Butterworths,
Sydney, 2001
Craies on Statute Law 7th ed, Sweet & Maxwell, London,
1971
MICHAEL WILLIAM HOFFMAN v CHIEF OF ARMY
N 1485 OF
2003
BLACK CJ, BEAUMONT, WILCOX, LINDGREN AND GYLES
JJ
31 MAY 2004
SYDNEY
ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
|
BETWEEN:
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MICHAEL WILLIAM HOFFMAN
APPELLANT |
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AND:
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CHIEF OF ARMY
RESPONDENT |
|
DATE OF ORDER:
|
|
|
WHERE MADE:
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THE COURT ORDERS THAT:
1. The appeal be allowed. 2. The order of the Defence Force Discipline Appeal Tribunal dismissing the appellant’s appeal be set aside and in lieu thereof the appeal be upheld, the conviction of the appellant be quashed and a verdict of acquittal entered in its place. 3. The respondent pay the appellant’s costs of this appeal. 4. Pursuant to s 37 of the Defence Force Discipline Appeals Act 1955 (Cth), the respondent pay to the appellant such sums for the costs of the appeal to the Tribunal and of his defence against the charge out of which the appeal arose as may be agreed or, failing agreement, such sum as is assessed by the Registrar of the Tribunal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
REASONS FOR JUDGMENT
BLACK CJ, WILCOX AND GYLES JJ:
1 This is an appeal pursuant to s 52 of the Defence Force Discipline Appeals Act 1955 (Cth) (the Appeals Act) from a decision of the Defence Force Discipline Appeal Tribunal (the Tribunal) dismissing an appeal against the conviction of the appellant by a Defence Force Magistrate for common assault contrary to s 61 of the Defence Force Discipline Act 1982 (the Discipline Act) (Hoffman v Chief of Army [2003] ADFDAT 4).
Proceedings before the Tribunal
2 The charge, the proceedings before the Magistrate and the relevant statutory provisions are set out in the judgment of Beaumont J which we have had the advantage of reading in draft. The appellant was legally represented before the Magistrate and pleaded guilty.
3 The notice of appeal to the Tribunal was as follows:
‘The applicant appeals from an order of a Defence Force Magistrate at RAAF Base Williamtown made on 10 March 2003.
Grounds of the appeal
1. The learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the Defence Force Discipline Act (‘the DFDA’) by trying the charge and by convicting the applicant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the applicant pursuant to s.75 of the DFDA because the proper construction of s.61(1) and s.190(5) of the DFDA is that it does not proscribe as a service offence conduct that would constitute a civil offence under s.26 of Crimes Act 1900 (ACT) when ss.33(a) and 34 of the DFDA specifically provide for a service offence for substantially the same physical and mental elements and accordingly there was as a matter of jurisdiction no charge of a service offence and no conviction of a service offence.
2. Alternatively, the learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the DFDA by trying the charge and by convicting the applicant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the applicant pursuant to s.75 of the DFDA because s.61 of the DFDA is beyond the legislative power of the Commonwealth and invalid and / or should be read down in so far as it purports to proscribe as a service offence conduct that would constitute a civil offence under s.26 of Crimes Act 1900 (ACT) and accordingly the conviction is invalid and of no effect.
3. Alternatively, the learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the DFDA by trying the charge and by convicting the applicant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the applicant pursuant to s.75 of the DFDA because the Defence Force Magistrate was purporting to exercise the judicial power of the Commonwealth. In so far as s.129 of the DFDA purports to vest in the Defence Force Magistrate jurisdiction to exercise the judicial power of the Commonwealth in respect of the hearing and determination of an offence against s.26 of Crimes Act 1900 (ACT) as a service offence, it is contrary to ss. 71 and 72 of the Constitution and accordingly the conviction is invalid and of no effect.
4. Alternatively, the learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the DFDA by trying the charge and by convicting the applicant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the applicant pursuant to s.75 of the DFDA because the charge against the applicant pursuant to s.61 of the DFDA applying s.26 of Crimes Act 1900 (ACT) was an indictable offence against a law of the Commonwealth and was required to be tried by a jury pursuant to s.80 of the Constitution and accordingly the conviction is invalid and of no effect.
5. Alternatively, the learned Defence Force Magistrate erred in law by trying the charge and by convicting the applicant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the applicant pursuant to s.75 of the DFDA because it was an abuse of process to permit the applicant to be charged and convicted under s.61 of the DFDA applying s.26 of Crimes Act 1900 (ACT) when:
a) ss. 33(a) and 34 of the DFDA provide for a service offence for substantially the same physical and mental elements; and
b) at the time that the applicant was charged in 2002 with an offence against s.61 of the DFDA, s.96 prohibited him being charged with an offence against either of ss.33(a) and 34 of the DFDA.
6. Alternatively, the learned Defence Force Magistrate erred in law by trying the charge and by convicting the applicant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the applicant pursuant to s.75 of the DFDA because it was an abuse of process to permit the applicant to be charged and convicted under the DFDA in circumstances where:
a) there had been extraordinary and unexplained delay between the commission of the alleged offence in 1996 and the hearing before the Defence Force Magistrate on 10 March 2003;
b) at the time that the applicant was charged in 2002 with an offence against s.61 of the DFDA, s.96 prohibited him being charged with an offence against either of ss.33(a) and 34 of the DFDA.
7. By reason of the matters above, the applicant’s conviction resulted in a miscarriage of justice and should be quashed because in law he could not be convicted by the Defence Force Magistrate of the offence charged.
8. Alternatively, the applicant’s conviction resulted in a miscarriage of justice and should be quashed because he was not fully advised of:
a) his right to raise each of the matters set out above and have them determined by the Defence Force Magistrate expeditiously;
b) the existence of reasonable prospects of success of the matters set out above;
and in the premises his right to plead not guilty.
9. Alternatively, the applicant’s conviction resulted in a miscarriage of justice and should be quashed because if the conviction be set aside, having received further advice the applicant disputes the elements of the offence and seeks to plead not guilty.’
4 Evidence was admitted by the Tribunal from the appellant and a legal officer who represented the appellant during the course of proceedings in support of grounds 5 to 9 (inclusive).
5 The most comprehensive reasons in the Tribunal were given by Duggan J. His Honour rejected the constitutional arguments reflected in grounds of appeal 2, 3 and 4 by reference to established authority in the High Court. He also rejected the legal argument underpinning ground of appeal 1 and, in particular, distinguished the decisions in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 and Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1. His Honour then proceeded to examine in detail and reject each of the remaining grounds of appeal, taking into account the evidence which had been tendered before the Tribunal and referring to relevant authorities. Heerey J agreed generally with Duggan J that the appeal should be dismissed for the reasons given by his Honour. Heerey J added some reasons of his own in relation to ground of appeal 1 and said (at [10]):
‘No question of abuse of process arises. There is no suggestion in the material before the Tribunal of personal animus against the appellant, nor of any ulterior or improper purpose to be achieved by bringing the charge against him. The appellant was legally represented and pleaded guilty after the question of limitation periods was specifically raised by the Defence Force Magistrate.’
Mildren J upheld ground of appeal 1, substantially basing himself upon the reasoning in Saraswati. His Honour did not need to deal with the remaining grounds of appeal.
The appeal to this Court
6 The Notice of Appeal to this Court is as follows:
‘The appellant appeals from the whole of the judgment of the Defence Force Discipline Appeal Tribunal given on 1 September 2003 at Melbourne.
GROUNDS:
1. The Defence Force Discipline Appeal Tribunal (‘the Tribunal’) erred in law by failing to hold that the learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the Defence Force Discipline Act (‘the DFDA’) by trying the charge and by convicting the appellant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the appellant pursuant to s.75 of the DFDA because the proper construction of s.61(1) and s.190(5) of the DFDA is that it does not proscribe as a service offence conduct that would constitute a civil offence under s.26 of Crimes Act 1900 (ACT) when ss.33(a) and 34 of the DFDA specifically provide for a service offence for substantially the same physical and mental elements and accordingly there was as a matter of jurisdiction no charge of a service offence and no conviction of a service offence.
2. Alternatively, the Tribunal erred in law by:
a) taking into account at [10] that for an abuse of process to arise, it was necessary for there to have been personal animus against the appellant;
b) failing to take into account that the learned Defence Force Magistrate erred in law by trying the charge and by convicting the appellant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the appellant pursuant to s.75 of the DFDA because it was an abuse of process to permit the appellant to be charged and convicted under s.61 of the DFDA applying s.26 of Crimes Act 1900 (ACT) when:
i) ss. 33(a) and 34 of the DFDA provide for a service offence for substantially the same physical and mental elements; and
ii) at the time that the appellant was charged in 2002 with an offence against s.61 of the DFDA, s.96 prohibited him being charged with an offence against either of ss.33(a) and 34 of the DFDA.
3. Alternatively, the Tribunal erred in law by failing to hold that the learned Defence Force Magistrate erred in law by trying the charge and by convicting the appellant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the appellant pursuant to s.75 of the DFDA because it was an abuse of process to permit the appellant to be charged and convicted under the DFDA in circumstances where:
a) there had been extraordinary and unexplained delay between the commission of the alleged offence in 1996 and the hearing before the Defence Force Magistrate on 10 March 2003;
b) at the time that the appellant was charged in 2002 with an offence against s.61 of the DFDA, s.96 prohibited him being charged with an offence against either of ss.33(a) and 34 of the DFDA;
4. Alternatively, the Tribunal erred in law by:
a) failing to hold that the appellant’s conviction resulted in a miscarriage of justice and should be quashed because the instructions provided to his legal officers were inconsistent with his plea of not guilty;
b) taking into account at [65] that there was a change of instructions by the appellant to his legal officers by the time the agreed facts were prepared.
5. Alternatively, the Tribunal erred in law by:
a) holding at [66] that the appellant had not been placed under pressure by the advice that it would take up to a further 12 months to deal with his case if he pleaded not guilty;
b) failing to take into account that the appellant’s conviction resulted in a miscarriage of justice and should be quashed because he was not fully advised of:
i) his right to raise each of the matters set out above and have them determined by the Defence Force Magistrate expeditiously;
ii) the existence of reasonable prospects of success of the matters set out above;
and in the premises his right to plead not guilty.
6. Alternatively, the Tribunal erred in law by failing to hold that the appellant’s conviction resulted in a miscarriage of justice and should be quashed, because he was induced into pleading guilty as a result of the incorrect advice from the head of the Australian Defence Force ("ADF") Prosecutions Cell to the appellant’s legal officer, that the only record of any conviction of the appellant would be within the ADF.
7. Alternatively, the Tribunal erred in law by failing to hold that the learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the DFDA by trying the charge and by convicting the appellant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the appellant pursuant to s.75 of the DFDA because s.61 of the DFDA is beyond the legislative power of the Commonwealth and invalid and / or should be read down in so far as it purports to proscribe as a service offence conduct that would constitute a civil offence under s.26 of Crimes Act 1900 (ACT) and accordingly the conviction is invalid and of no effect.
8. Alternatively, the Tribunal erred in law by failing to hold that the learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the DFDA by trying the charge and by convicting the appellant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the appellant pursuant to s.75 of the DFDA because the Defence Force Magistrate was purporting to exercise the judicial power of the Commonwealth and in so far as s.129 of the DFDA purports to vest in the Defence Force Magistrate jurisdiction to exercise the judicial power of the Commonwealth in respect of the hearing and determination of an offence against s.26 of Crimes Act 1900 (ACT) as a service offence, it is contrary to ss. 71 and 72 of the Constitution and accordingly the conviction is invalid and of no effect.
9. Alternatively, the Tribunal erred in law by failing to hold that the learned Defence Force Magistrate erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the DFDA by trying the charge and by convicting the appellant under s.135 of the DFDA, by taking action under part 4 of the DFDA and by imposing punishment on the appellant pursuant to s.75 of the DFDA because the charge against the appellant pursuant to s.61 of the DFDA applying s.26 of Crimes Act 1900 (ACT) was an indictable offence against a law of the Commonwealth and was required to be tried by a jury pursuant to s.80 of the Constitution and accordingly the conviction is invalid and of no effect.’
The first ground of appeal: the application of s 61
7 The question raised by this ground is narrow. The appellant was charged pursuant to s 61 of the Discipline Act (picking up s 26 of the Crimes Act 1900 (ACT) (the Crimes Act)) that he, ‘[b]eing a defence member at Shoalwater Bay Training Area, Queensland ... did assault ... Captain Paul Barrie Higgins, by pointing a pistol at him during an orders group on Exercise NIGHT CROCODILE 96’. That is the manner in which a charge pursuant to s 33(a) of the Act would have been framed. The elements of the charged offence were identical to the elements of a charge, in respect of the same conduct, that might have been laid under s 33(a). However, there are two important differences between the charge as laid and any charge that might have been brought under s 33(a). First, the maximum penalty for breach of s 33 is six months’ imprisonment whereas the maximum penalty for breach of s 61 is two years’ imprisonment. Secondly, a charge pursuant to s 33 would have been time barred if laid at the time when the s 61 charge was brought.
8 The question that arises here concerns the construction of the one statute. It is not a question of inconsistency between different statutes. The offence charged is a breach of s 61 of the Discipline Act, a service offence, and not a breach of s 26 of the Crimes Act. As Dixon J pointed out in South Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603 at 626:
‘...when two apparently inconsistent provisions occur in one Act of Parliament, to reconcile them by interpretation is the only course open. They cannot both receive their full meaning as it is expressed.’
9 In Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14, (2004) 205 ALR 1, McHugh ACJ, Gummow and Hayne JJ, after discussing various sections of a statute, said of the preferred interpretation (at 18 [61]):
‘In this way, effect is given to each provision, while maintaining the unity of the statute in the sense discussed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381–382 [69]–[70].’
10 The question of inconsistency and the related question of double jeopardy have often been discussed in relation to similar offences created by different statutes (eg, Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268; Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353; Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 NSWLR 500; Environment Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502). Sometimes the statutes are of different legislatures, giving rise to a constitutional question (eg Clyde Engineering Co Ltd v Cowburn [1926] HCA 6; (1926) 37 CLR 466; Hume v Palmer [1926] HCA 50; (1926) 38 CLR 441; Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472; The Queen v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338; The Queen v Winneke; Ex parte Gallagher [1982] HCA 77; (1982) 152 CLR 211). Even in such circumstances, the provision for a different penalty for the same act in different statutes is regarded as inconsistent, unless there is a relevant point of distinction (see Isaacs J in Clyde Engineering v Cowburn at 489; Starke J in Hume v Palmer at 462; Mason J in Ex parte Blacklock at 347; and Gleeson CJ in Environment Protection Authority v Australian Iron & Steel Pty Ltd at 507G–508B).
11 Providing two different penalties for an offence with the same elements in two sections of the same statute gives rise to a question of construction that cannot be resolved otherwise than by choosing one section over the other. It is hardly likely that the legislature intended to allow the same conduct to be treated differently, where there is no relevant aggravating or distinguishing circumstance, dependent upon the whim of the prosecuting authority. Such a result would be capricious and arbitrary. As Isaacs J pointed out in Clyde Engineering v Cowburn (at 489):
‘If an Act of Parliament, for instance, prescribed 25 lashes for robbery under arms and a later Act prescribed that such an offender should be punished with 20 lashes, it could, of course, ... be said that both provisions could be obeyed, and therefore, applying the suggested test [as to whether the two provisions were inconsistent], the offender must receive 45 lashes. But surely the vital question would be: Was the second Act on its true construction intended to cover the whole ground and, therefore, to supersede the first?’
It is, of course, commonplace that the one act or course of conduct might lead to a variety of offences created by the same statute. However, those offences would all be different in character, one from the other, usually with an ascending order of gravity.
12 A conventional method of resolving such an inconsistency as arises here is for the general to yield to the particular, whether this be attributed to the maxim ‘expressum facit cessare tacitum’ or the maxim ‘generalia specialibus non derogant’ (Pearce and Geddes, Statutory Interpretation in Australia, 5th Ed, para [4.28]–[4.30]).
13 The matter was put by Deane J in Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-Stock Corporation (1980) 29 ALR 333 at 347 as follows:
‘As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. "The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative ..." (per Romilly MR: Pretty v Solly (1859) 26 Beav 606 at 610). Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter.’
(See also White v Mason [1958] VR 79 per Herring CJ at 81–82.)
14 In Smith v The Queen [1994] HCA 60; (1994) 181 CLR 338, Mason CJ, Dawson, Gaudron and McHugh JJ said at 348:
‘...where there is a conflict between general and specific provisions, the specific provision prevails (generalia specialibus non derogant). That principle is based upon the presumed intention of Parliament and has, we think, a particular application where the conflict arises from different sections in the same Act. ... It is but common sense that Parliament having before it two apparently conflicting sections at the same time cannot have intended the general provision to have deprived the specific provision of effect.’
15 In No 20 Cannon Street Ltd v Singer & Friedlander Ltd [1974] 1 Ch 229 Megarry J said at 235G:
‘Put formally, it seems to me that the proper principle to apply if an enactment contains two similar prohibitions, one wide and the other applying only to a limited class of case wholly within the wide prohibition, is to treat the wide prohibition as not applying to cases within the limited prohibition, especially if the limited prohibition is made subject to some exception and the wide prohibition is not.’
16 It becomes clear when the structure of the Act is considered that s 33 is a particular provision and s 61 is a general provision for present purposes. Part III creates offences. There are nine divisions in the Part. The last division, headed ‘Miscellaneous’, does not create any primary offence. Division 8 headed ‘Other Offences’ is the last division that creates offences. It is constituted by s 61 which in terms picks up and incorporates the criminal law of the Jervis Bay Territory.
17 It is correct to say that s 61 incorporates a series of particular offences. That does not detract from the proposition that the preceding provisions, such as s 33, each relate to a topic to which the legislature has given particular attention, whereas s 61 is a catch-all provision. The provisions of Part III which precede Division 8 can readily be recognised as offences which may reasonably be regarded as having a particular relevance to military discipline. The same cannot be said of s 61.
18 This conclusion is supported by the reasoning in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 which had some prominence in the reasons of members of the Tribunal. The facts of that case are stated in the report (at 2–3) as follows:
‘Akhandananda Saraswati was convicted before the District Court of New South Wales upon three counts of committing an act of indecency with a person under the age of sixteen years contrary to s. 61E(2) of the Crimes Act 1900 (N.S.W.). The offences were all alleged to have occurred between 8 April and 3 November 1983. No prosecution was commenced until 1987. The evidence led in support of two of the counts amounted to evidence of indecent assault, an offence created by s. 61E(1). The evidence led in support of the third count amounted to unlawful carnal knowledge under s. 71. Saraswati could not have been prosecuted for offences against s. 61E(1) or s. 71 because s. 78 required prosecutions for such offences to be commenced within twelve months from the time of the alleged offence. Saraswati appealed to the Court of Criminal Appeal (Mahoney J.A., Hunt and Badgery-Parker JJ.) on the ground that a charge of committing an act of indecency with a person under the age of sixteen years could not be brought under s. 61E(2) when the conduct relied on was an indecent assault for the purpose of s. 61E(1) or an act of carnal knowledge for the purposes of s. 71. The appeal was dismissed.’
19 McHugh J (with whom Toohey J agreed) accepted the appellant’s argument which he summarised as follows (at 20):
‘Mr. Porter Q.C., counsel for the applicant, did not dispute that the touching of the complainant’s breasts, buttocks and vagina and the act of sexual intercourse each constituted an "act of indecency" within the meaning of that term as it has been judicially interpreted: see R. v. Sorlie (1925) 42 W.N. (N.S.W.) 152; Reg. v. Valence (1958) 76 W.N. (N.S.W.) 137; R. v. Hare (1933) 24 Cr. App. R. 108. He submitted, however, that, in the context of the Act, the term "act of indecency" in s. 61E(2) did not cover a case which fell within the terms of ss. 71, 72 or 61E(1). He submitted that, if s. 61E(2) was construed to cover a case which fell within any of those provisions, an accused person could lose the benefit of the protection given by s. 78 of the Act, and that it could not have been the intention of Parliament in enacting s. 61E(2) to permit a prosecution which s. 78 specifically prohibited.’
20 McHugh J summarised his opinion as follows (at 23):
‘Two considerations persuade me that in the present case "the ordinary meaning" of the words "act of indecency" in s. 61E(2) is not their literal meaning. The first is that, when one has regard to the history of s. 61E(2), it is clear that the purpose of Parliament in enacting s. 76A, the predecessor of s. 61E(2), was to deal with cases which did not constitute indecent assaults. The second is the rule that, when a statute specifically deals with a matter and makes it the subject of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation.’
21 As to the second of the two considerations identified, His Honour said (at 24):
‘The Act makes it an offence for a person to have carnal knowledge of or to indecently assault a girl under the age of sixteen. But if the girl is over fourteen years of age, the Act requires the prosecution to be instituted within twelve months of the commission of the offence. It is difficult to accept that, when Parliament enacted s. 61E(2) and authorized the institution of prosecutions for acts of indecency under s. 61E(2), it intended that general power to be used to circumvent the limitation which s. 78 placed on ss. 61E(1), 71 and 72 of the same Act. To use the words of Gavan Duffy C.J. and Dixon J. in Anthony Hordern & Sons Ltd. (1932) 47 C.L.R., at p. 7, the enactment of ss. 61E(1), 71, 72 and 78 "excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power". Accordingly, in my opinion, the context of s. 61E(2) indicates that Parliament did not intend the words "an act of indecency" to cover conduct which constitutes an indecent assault or carnal knowledge. And as s. 34 of the Interpretation Act makes plain, "the ordinary meaning" of a legislative provision in New South Wales can be ascertained only after taking account of its context in the Act.’
22 Gaudron J, the other member of the majority, arrived at the same result by different reasoning. Her Honour said (at 17–18):
‘It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney-General (Vict.) [1961] HCA 32; (1961) 106 C.L.R. 268, at p. 276, per Fullagar J., and per Windeyer J. (1961) 106 C.L.R., at p. 290. More particularly, an intention to affect the earlier provision will not be implied if the later is of general application (as is the provision by which indecent dealing is constituted an offence under the Act) and the earlier deals with some matter affecting the individual (as does the limitation provision in s. 78). Nor will an intention to affect the earlier provision be implied if the later is otherwise capable of sensible operation.
...
If s. 61E(2) of the Act has the meaning for which the respondent contends, it necessarily derogates from the protection earlier afforded by s. 78. So much may be seen from the present case for, although, by force of s. 78, the applicant could not be charged with carnal knowledge and indecent assault, his prosecution under s. 61E(2) required him, as a matter of practical reality, to answer those very charges. In my view s. 61E(2) has neither the meaning nor the effect for which the respondent contends.’
23 Dawson J gave the leading judgment for the minority. After stating that at common law the applicant might have been convicted of committing an act of indecency when charged only with that offence, notwithstanding that the facts amounted to carnal knowledge or indecent assault, His Honour went on to say (at 14–15):
‘The applicant placed great reliance upon the fact that the offence of committing an act of indecency was created to cover the gap left by the fact that the offence of indecent assault requires not only indecency, but also something in the nature of an assault. However, sexual offences are of their very nature progressive rather than mutually exclusive, so that the more serious offence includes the elements of the less serious offence. For the legislature to have sought to exclude from an act of indecency offences which otherwise would have included the act of indecency would have been to depart from the approach hitherto adopted by the law. Moreover, whilst the object of the legislature in creating the offence of committing an act of indecency appears to have been to close a gap which it perceived in the law, it does not follow that it chose to close that gap in a way which would give rise to incongruous results.
If the applicant’s argument is correct, a person charged only with committing an act of indecency would be able to defeat that charge by proving by way of defence that he had in fact committed an indecent assault or unlawful carnal knowledge. If the defence were successful, he could not, upon the principles which I have endeavoured to explain, be subsequently convicted of either of the more serious offences whether or not the time for the commencement of prosecution had expired. But more than that, even if the jury were satisfied beyond reasonable doubt that an act of indecency (in the ordinary sense and not the confined sense contended for as a matter of construction) had been committed, if they entertained a doubt whether the accused was guilty of indecent assault or unlawful carnal knowledge – that is, if they considered that he might have committed those offences – it may be they must acquit upon the charge of committing an act of indecency (in the confined sense) because they would necessarily entertain a doubt whether what he had done amounted only to the commission of the latter offence ...’
24 Deane J agreed with Dawson J and added some comments of his own in which he examined the charging of greater and lesser offences. His Honour said (at 4):
‘There are, upon analysis, compelling practical reasons why a statutory provision creating an offence should not be construed as inapplicable to circumstances where conduct which otherwise falls within its terms is aggravated by some circumstance (being part of a single transaction or course of action) which makes the overall conduct a more serious offence under some other statutory provision.’
His Honour further said (at 5):
‘Common sense, the efficient working of the administration of criminal justice, and the presumption that the Legislature intends that its words be given their ordinary meaning, combine to dictate that, in the absence of an identified legislative intent to the contrary, a general statutory provision which makes specified conduct an offence should be construed in accordance with its terms and should not be confined so as to be inapplicable to a case where, in its context within a single transaction or course of action, the designated conduct also constitutes an element of a more serious offence. In such a case, the offender is guilty of both the basic offence and the more serious offence notwithstanding the fact that, as a matter of basic principle, he cannot be convicted of them both.’
25 Saraswati did not involve identical offences, and nothing said by any of the Justices is contrary to the conclusion that there is inconsistency in this case because of the differing penalties.
26 The use by Toohey and McHugh JJ in Saraswati of the principle that a general power cannot be used to circumvent the limitations on a specific power, did not command a majority of the Court. However, that does not cast doubt upon the principle itself. Indeed, a similar result was arrived at by Gaudron J using reasoning that is directly applicable to the present case and which did not depend upon the legislative history in that case.
27 In the present statute the existence of the time limitation in relation to s 33 is an indicator that the legislature would not have contemplated that the same offence in substance could be pursued outside the prescribed limitation period. This provides independent support for the conclusion that the s 61 charge was not open that would anyway be indicated by the existence of different maximum penalties for the same conduct. There are a myriad of offences against s 61 of the Discipline Act. The policy that s 96 of the Discipline Act embodies is that an offence against s 61 will be governed by the same limitation period as would have applied if that offence had been charged as a civilian offence. That policy says nothing as to the availability of a charge under s 61.
28 It has not been necessary to resort to extrinsic material or to history to resolve the question of construction that arises in this case. However, if there were a necessity to do so, support would be obtained for the appellant’s position. Consideration of the historical excursus by Brennan and Toohey JJ in Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 at 554–563 is sufficient to indicate that incorporation of the general criminal law of England was supplementary to the particular codes of military discipline. The Report of the Working Party which preceded the Discipline Act, and which was referred to in the Explanatory Memorandum for the Bill (at paragraphs 63–65, 575), makes it clear (at page ix) that Territory criminal law was to be substituted for the English criminal law for the same purpose in Australia.
29 Before the Discipline Act was enacted Australian defence personnel were subject to what was described in the Explanatory Memorandum as a compound of United Kingdom and Australian legislation. The Army had two codes of discipline, one for war service and another when serving in Australia in peacetime. There were different codes again for members of the Air Force and for members of the Navy.
30 A central problem identified by the Working Party was the deeply seated differences in the summary punishments that could be imposed for service offences in the three Services. The Report of the Working Party records the negotiation between the Services of "an acceptable compromise on summary punishments" (see Report at (ii) to (iii)). The levels of summary punishments incorporated in the draft legislation proposed by the Working Party were said to "represent a consensus achieved within the Working Party and ... are regarded as workable by the Navy, the Army and the Air Force." That consensus was reflected in the penalty provisions of the Discipline Act.
31 The Working Party also proposed the reduction of maximum punishments to modern levels and "the demarcation of serious offences from breaches of discipline by the provision of appropriate maximum punishments ...". In explaining its approach the Working Party observed (at page v):
"Part of the value of setting out offences in a disciplinary code lies in their declaratory significance as a code of military conduct. Their educational and preventative value have been obscured or distorted by unrealistic maximum punishments. It does not enhance discipline to hold out minor breaches as serious crimes and we have not hesitated to reduce drastically maximum punishments." (emphasis added)
32 The recommendations of the Working Party that there should be a demarcation of serious offences from breaches of discipline were adopted in the Discipline Act, as the Explanatory Memorandum recites and as its provisions make plain.
33 The offences created by s 33 of the Discipline Act were evidently intended to be regarded as breaches of discipline, since the section was intended to embody the important elements of the former Navy offence of fighting and quarrelling (Navy Act 1957 (UK) s 33) whilst reducing the maximum penalty from imprisonment for 2 years to imprisonment for 6 months.
34 The offences of assaulting a member of the Defence Force of inferior rank (s 34(1)) and assaulting a superior officer (s 25(1)) were plainly to be regarded as more serious. The two-year maximum term of imprisonment for a offences of obvious importance to discipline in the Defence Force takes on an added significance in the present context when it is seen that under the former law the maximum penalty for assaulting a superior officer, if committed in the Navy, was life imprisonment.
35 The history of the legislation thus underlines the inconsistency between the intention of the Parliament to make specific provision for particular offences, both as to content and as to penalty, when introducing a uniform modern "code" for the discipline of the Defence Force and the application, in a case like the present, of a general provision such as s 61.
36 A further and related consideration that also underlines the inconsistency contended for by the appellant is that the policy objectives of laws imposing penalties for offences relating to the discipline of the Defence Force and providing for time limits for the bringing of charges are necessarily different from the objectives of the general criminal law applying from time to time in the Jervis Bay Territory. The different objectives are, in any event, mandated by the fundamentally different constitutional foundations of the two types of law.
37 In our opinion the decisions of the High Court in Re Tracey; McWaters v Day [1989] HCA 59; (1989) 168 CLR 289; Re Nolan; Ex parte Young [1991] HCA 29; (1999) 172 CLR 460 and Re Tyler; Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18 are not inconsistent with the opinion we have expressed. No argument to that effect was referred to by the majority of the Tribunal which upheld the respondent’s position on this issue or was presented by counsel for the respondent in this appeal. The two High Court decisions examine some of the issues thrown up by the co-existence of military and civilian systems particularly in the light of the incorporation of certain parts of the civilian system into the military system. This case does not involve such issues. The difference of opinion between Mason CJ and Dawson J on the one hand and Brennan and Toohey JJ in Re Tracey which flowed through to the other decisions is not relevant to the point at issue here.
38 Counsel for the respondent submitted that the decision of the Full Court in Lawson v Gault [2002] FCAFC 191; (2002) 125 FCR 1 supports the reasoning of the majority of the Tribunal. In our opinion that case is distinguishable from this one. Section 99 of the Crimes Act 1900 (ACT) provided:
‘A person who steals is guilty of an offence, punishable on conviction, by imprisonment for ten years.’
It had governed all charges of theft until the addition of s 99A in 1995 which provided as follows:
‘A person who steals property the value of which does not exceed $1,000.00 is guilty of an offence punishable on conviction by imprisonment for six months, a fine not exceeding fifty penalty units or both.’
By reason of other provisions of the Crimes Act, a charge pursuant to s 99 could be heard on indictment or, in certain events (which included the consent of the defendant), summarily. A charge pursuant to s 99A was to be heard summarily. There was a 12 month time limit for a prosecution under s 99A and no time limit in relation to s 99. The defendant was charged with breach of s 99. The value of the property stolen did not exceed $1000. The charge was laid outside the 12 month time limit applicable to charges of breach of s 99A. The defendant was convicted. On appeal, the Supreme Court held that s 99 should be read as applying only to thefts of property the value of which exceeded $1000 and quashed the conviction. On appeal, Spender, Miles and Dowsett JJ (having referred to certain extrinsic material) held that the object of the amendment was to provide a mechanism for summary prosecution of minor thefts, distinguished Saraswati and declined to read s 99 as subject to s 99A. Their Honours said (at 8):
‘The amendment simply inserted s 99A to follow s 99. If the intention was to exclude minor thefts from the ambit of operation of s 99, then it is virtually certain that the legislature would have said so expressly.’
39 There is no reason to review the correctness of that decision. It turned upon the particular legislative context and history and the extrinsic materials that were considered and provides no relevant guidance here.
40 Acceptance of the appellant’s argument in this case does not mean that s 61 is not to be given full force and effect where it is applicable. Whilst, in circumstances such as the present, a charge cannot be preferred pursuant to s 61 with elements identical to those of a particular charge in the earlier divisions of Part III, if the charge laid pursuant to s 61 is truly different from (particularly if more serious than) that which might be laid pursuant to a particular earlier provision, then the fact that the conduct could have been charged pursuant to the earlier provision would be no answer, in itself, to the different charge pursuant to s 61.
41 The appellant has established Ground 1 and so is entitled to succeed on the appeal. The Tribunal erred on a question of law in rejecting this ground of appeal. That is sufficient to dispose of the appeal. However, it is appropriate that we indicate our opinion as to the other grounds of appeal in the event that the matter goes further.
The second to sixth grounds of appeal: abuse of process
42 In our opinion these grounds should be rejected. They do not give rise to any appeal on a question of law arising out of the decision of the Tribunal as is required by s 52 of the Appeals Act. The appellant was represented before the learned Defence Force Magistrate. The Magistrate squarely raised the issues relevant to the abuse of process argument before a plea was taken. No application was made to stay the proceeding as an abuse of process. The appellant pleaded guilty. There was an agreed statement of facts.
43 The available grounds of appeal to the Tribunal pursuant to the Appeals Act were as follows:
‘23. (1) ... where in an appeal it appears to the Tribunal:
(a) that the conviction or the prescribed acquittal is unreasonable, or cannot be supported, having regard to the evidence;
(b) that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction or the prescribed acquittal was wrong in law and that a substantial miscarriage of justice has occurred;
(c) that there was a material irregularity in the course of the proceedings before the court martial or the Defence Force magistrate and that a substantial miscarriage of justice has occurred; or
(d) that, in all the circumstances of the case, the conviction or the prescribed acquittal is unsafe or unsatisfactory;
it shall allow the appeal and quash the conviction or the prescribed acquittal.’
44 Leaving aside grounds of appeal 1, 7, 8 and 9, relieving the appellant of the consequences of a plea of guilty could only be justified in the present case if the Tribunal were satisfied that, in all the circumstances of the case, either s 23(1)(c) or (d) was satisfied. Deciding such questions is traditionally the role of a court of criminal appeal and involves judgments of fact and degree and the balancing of various factors. These tasks require a good knowledge of the practical workings of the trial system. This Court does not exercise a general supervisory jurisdiction (per Gummow and Callinan JJ in Hembury v Chief of the General Staff [1998] HCA 47; (1998) 193 CLR 641 at 653) and it is important that the jurisdictional limit be maintained. It is, of course, possible that questions of law can arise before the Tribunal even in the exercise of such practical judgments about the application of s 23(1)(c) or (d) of the Appeals Act. However, it would be wrong to permit the ingenious extraction of alleged errors upon questions of law from the language in which such a balancing exercise is expressed so as to permit civilian interference with the military system of justice supervised by the Tribunal.
45 The general approach of courts of criminal appeal to quashing a conviction based upon a plea of guilty by a represented party was summarised by Wood CJ at CL in R v Kouroumalos [2000] NSWCCA 453 at [19]–[21] as follows:
‘What is required, for an exercise of the relevant discretion is the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question: Cincotta NSW CCA 1 November 1995, Ganderton NSWCCA 17 September 1998, Favero, [[1999] NSWCCA 320], and Vergara [1999] NSWCCA 352. However, as Kirby P pointed out in Liberti at 122:
"For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81."
Relevantly for the present case, it may be noted that in Sagiv (1986) 22 A Crim R 73, Lee J, said:
"the substantial general proposition which emerges from these cases is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken.
It is clear that in the case of mistake of [sic] other circumstances affecting the integrity of the plea as an admission of guilt, the court should readily grant leave. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence (O’Neill) and as the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings. [emphasis added]"
This passage was cited with approval in Davies NSWCCA 16 December 1993 and again in Lars (1994) 73 A Crim R 91.
The onus of establishing that there has been a miscarriage of justice lies on the applicant: Boag (1994) 73 A Crim R 35 at 36–37.’
(See also, R v Murphy [1965] VR 187 at 188–189; Birks v R (1990) 48 A Crim R 385 at 392; Miladinovic v R [1993] FCA 578; (1993) 47 FCR 190 at 198–199; and Meissner v R [1995] HCA 41; (1994) 184 CLR 132).
46 We have considered the reasons of Duggan J for rejecting the arguments now encompassed by grounds 2–6 (inclusive) in the light of those authorities and can find no error on any operative question of law disclosed by those reasons. Heerey J agreed generally with those reasons. We do not read what Heerey J said at [10] to be a comprehensive statement of reasons for rejecting the claimed abuse of process or as intended to be a complete statement of the requirements of law as to what is needed to be found to constitute abuse of process. Rather, we read what Heerey J said as being remarks that were supplementary to the reasons of Duggan J with which Heerey J expressly agreed. Furthermore, assuming that a particular charge is available to be preferred, it is difficult to see how an abuse of process could arise merely from use of that charge, absent the kind of factors to which Heerey J adverted. Mildren J did not need to discuss those issues.
The seventh to ninth grounds of appeal: constitutional issues
47 The constitutional arguments reflected in these grounds were formally put to the Tribunal, it being accepted for the purpose of argument that it was bound to the contrary by the High Court authorities referred to in [37] above. Duggan J (agreed with by Heerey J) held accordingly (at [29]–[33]). We cannot see any basis upon which it can be held that this Court is not bound by the same line of authority (see also Gummow and Callinan JJ in Hembury v Chief of the General Staff at 654).
Conclusion
48 We agree with Mildren J that the appeal to the Tribunal should have succeeded and a verdict of not guilty entered. The appellant could not have been convicted in law of the offence with which he was charged, and is entitled to the benefit of an acquittal. Section 52(4) of the Appeals Act enables appropriate orders to be made. The orders of the Tribunal should be set aside; in lieu thereof the appeal from the conviction of the appellant should be allowed, the conviction quashed and a verdict of not guilty substituted. The respondent should pay the appellant’s costs of this appeal. Pursuant to s 37 of the Appeals Act, the Commonwealth should pay to the appellant such sums for the costs of the appeal to the Tribunal and of carrying on his defence against the charge out of which the appeal arose as may be agreed, failing agreement, such sum to be assessed by the Registrar of the Tribunal.
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I certify that the preceding forty-eight (48) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Chief Justice
Black, Justice Wilcox and Justice Gyles.
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Associate:
Dated: 31 May 2004
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IN THE FEDERAL COURT OF AUSTRALIA
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NEW SOUTH WALES DISTRICT REGISTRY
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N 1485 OF 2003
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ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
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BETWEEN:
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MICHAEL WILLIAM HOFFMAN
APPELLANT |
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AND:
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CHIEF OF ARMY
RESPONDENT |
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JUDGES:
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BLACK CJ, BEAUMONT, WILCOX, LINDGREN AND GYLES JJ
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DATE:
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31 MAY 2004
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
BEAUMONT J:
49 This is an appeal on a question of law only (see s 52 of the Defence Force Discipline Appeals Act 1955 (Cth)), from a decision of the Defence Force Discipline Appeal Tribunal (‘The Tribunal’) given on 1 September 2003, dismissing an appeal against the conviction of the appellant for the offence of common assault contrary to s 26 of the Crimes Act 1900 (ACT) (see Hoffman v Chief of Army [2003] ADFDAT 4).
50 The issues arising in the appeal are complex and cannot be shortly described. However, one of the arguments advanced by the appellant, upheld by Mildren J in dissent in the Tribunal, is that the appellant could not, for substantive reasons which will appear, have been charged with the offence mentioned. The appellant also advanced alternative arguments, including a procedural contention that, even if the charge were technically available, it amounted to an abuse of process.
51 Before coming to the appellant’s arguments, it is necessary to describe the statutory scheme and the trial process itself.
52 Pursuant to the provisions of s 103(1)(c) of the Defence Force Discipline Act 1982 (Cth) (‘the Discipline Act’), a convening authority, appointed under s 102 of the Discipline Act by a chief of staff for the purpose of convening courts martial, referred the following charge to a Defence Force magistrate for trial:
‘[The appellant], an officer in the Australian Army and, at the time of the offences specified in the following charges, a Defence member under the ... [Discipline Act], is charged as follows:
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Discipline Act section 61 & Crimes Act 1900 (ACT) s.26
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Other Offences – Commission of Territory offences being the
offence of common assault.
Being a defence member at Shoalwater Bay Training Area, Queensland, on a
date unknown, between 31 July, 1996 and 1 September 1996,
did assault 240262
Captain Paul Barrie Higgins, by pointing a pistol at him during an orders group
on Exercise NIGHT CROCODILE 96.’
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DISCIPLINE ACT ‘OFFENCE’ PROVISIONS
53 Section 61 of the Discipline Act is included in Part III of the Discipline Act (ss 15 – 65). The Part is entitled ‘Offences’. In order to understand the arguments in the appeal, it is necessary to explain next the structure, and some of the detail, of Part III.
54 Division 1 (ss 15 – 19) of Part III creates several specific offences as ‘Offences relating to operations against the enemy’. Division 2 (ss 20 – 24) of Part III creates several specific offences as ‘Offences relating to mutiny, desertion, and unauthorised absence’. Division 3 (ss 25 – 34) of Part III creates several specific offences as ‘Offences relating to insubordination and violence’.
55 As Division 3 assumed some significance in argument, it is necessary to say something more about it. The table of provisions for Division 3 gives the following indication of those provisions:
‘Division 3 – Offences relating to insubordination and violence
25. Assault on superior officer
26. Insubordinate behaviour with respect to superior officer
27. Disobedience of command
28. Failure to comply with direction of person in command
29. Failure to comply with general order
30. Assault on a guard
31. Obstruction of service policeman
32. Person on guard or on watch
33. Assault, insulting or provocative words etc.
34. Assault on inferior’.
56 Sections 33 and 34 (which, along with s 96(1) of the Discipline Act (see below) were much emphasised in the appellant’s argument) provide:
‘Assault, insulting or provocative words etc.
33. A person, being a defence member or a defence civilian, who, on service land, in a service ship, service aircraft or service vehicle or in a public place:
(a) assaults another person;
(b) creates a disturbance or takes part in creating or continuing a disturbance;
(c) behaves in an obscene manner within the view or hearing of another person; or
(d) uses insulting or provocative words to another person;
is guilty of an offence for which the maximum punishment is imprisonment for 6 months.
Assault on inferior
34. A defence member who assaults, or ill-treats, a member of the Defence Force who is of inferior rank to the defence member is guilty of an offence for which the maximum punishment is imprisonment for 2 years.’ (Emphasis added.)
57 (At the time of the alleged offence, Captain Higgins was of inferior rank to the appellant.)
58 Divisions 4, 5, 6 and 6A of Part III create several specific offences relating ‘to performance of duty’; ‘to ships, vehicles, aircraft, weapons or property’; ‘to arrest, custody and proceedings before service tribunals’; and ‘Custodial offences’.
59 Division 7 of Part III creates several ‘Miscellaneous offences’. The table of contents describes them as follows:
‘Division 7 – Miscellaneous offences
55. Falsification of service documents
56. False statement in relation to application for benefit
57. False statement in relation to appointment or enlistment
58. Unauthorised disclosure of information
59. Dealing in, or possessing, narcotic goods
60. Prejudicial behaviour’.
60 Division 8, which contains s 61, was central to the argument before us. It provides:
‘Division 8 – Other offences
Other offences
61. (1) A person, being a defence member or a defence civilian, is guilty of an offence if:
(a) he does or omits to do, in the Jervis Bay Territory, an act or thing the doing or omission of which is a Territory offence;
(b) he does or omits to do, in a public place outside the Jervis Bay Territory, an act or thing the doing or omission of which, if it took place in a public place in the Jervis Bay Territory, would be a Territory offence; or
(c) he does or omits to do (whether in a public place or not) outside the Jervis Bay Territory an act or thing the doing or omission of which, if it took place (whether in a public place or not) in the Jervis Bay Territory, would be a Territory offence.
(2) The punishment for an offence against subsection (1) is:
(a) if the relevant Territory offence is punishable by a fixed punishment – that fixed punishment; or
(b) in any other case – a punishment not more severe than the maximum punishment for the relevant Territory offence.’
61 A ‘Territory offence’ is defined by s 3(1) as follows:
"Territory offence" means:
(a) an offence against a law of the Commonwealth in force in the Jervis Bay Territory other than this Act or the regulations;
(b) an offence punishable under the Crimes Act, 1900 of the State of New South Wales, in its application to the Jervis Bay Territory, as amended or affected by Ordinances in force in that Territory; or
(c) an offence against the Police Offences Act 1930 of the Australian Capital Territory, in its application to the Jervis Bay Territory, as amended or affected by Ordinances from time to time in force in the Jervis Bay Territory;... ’
62 Division 9 of the Discipline Act, entitled ‘Miscellaneous’, deals with punishment (ss 62, 64 and 65), and with consent for proceedings for certain offences (s 63).
63 Section 63(1) provides:
‘63. (1) Except with the consent of the Director of Public Prosecutions, proceedings under this Act shall not be instituted for:
(a) an offence against subsection 61(1) that is alleged to have been committed in Australia and in relation to which the relevant Territory offence is:
(i) treason, murder, manslaughter or bigamy;
(ia) an offence against section 92A, 92B, 92C, 92D or 92E of the Crimes Act 1900 of the State of New South Wales, in its application to the Australian Capital Territory, as amended or affected by Ordinances in force in that Territory;
(ii) an offence in respect of which proceedings could not be brought in the Jervis Bay Territory without the consent of a Minister, the Director of Public Prosecutions or a person authorised by the Director of Public Prosecutions to give consent; or (iii) an offence prescribed for the purposes of this section; or
(b) a service offence that is an ancillary offence in relation to an offence referred to in paragraph (a).’
64 A ‘service offence’ is defined by s 34(1) to mean:
‘(a) an offence against this Act or the regulations;
(b) an offence that:
(i) is an ancillary offence in relation to an offence against this Act or the regulations; and (ii) was committed by a person at a time when he was a defence member or a defence civilian; or
(c) an old system offence; ....’
65 An ‘old system offence’ is defined by s 3(1) to mean:
‘... an offence under previous service law that was committed by a member of the Defence Force at any time during the period of 3 years that ended on the day immediately before the proclaimed date; ....’
66 Part IV of the Discipline Act (ss 66 – 85) deals with punishments imposed, and orders made by service tribunals.
67 Part V (ss 86 – 100) deals with summons, arrest, custody and suspension from duty.
68 Section 96, which was also, as mentioned, much emphasised in the appellant’s argument, provides:
‘Time limitation on charges
96. (1) A person shall not be charged with:
(a) an offence against this Act (other than subsection 61 (1)) or the regulations; or
(b) a service offence that is an ancillary offence in relation to an offence referred to in paragraph (a),
after the expiration of a period of 3 years after the time at which the
offence is alleged to have been committed.
(2) Notwithstanding anything in subsection (1), a person may be charged with:
(a) an offence against section 15, 16, 20 or 22; or
(b) a service offence that is an ancillary offence in relation to an offence referred to in paragraph (a);
at any time.
(3) A reference in subsection (1) to a period shall be read as not including a reference to a period during which the person:
(a) was a prisoner of war;
(b) was absent without leave; or
(c) was serving a sentence of imprisonment.
(4) A person shall not be charged with an offence against sub-section 61 (1) or a service offence that is an ancillary offence in relation to an offence against subsection 61 (1) if the time that has elapsed since the offence is alleged to have been committed equals or exceeds the period of time that would bar trial by, or institution of proceedings in, a court exercising jurisdiction in or in relation to the Jervis Bay Territory for the relevant Territory offence.
(5) A person shall not be charged with, or tried for, an old system offence if he could not have been charged with, or tried for, as the case may be, that offence if the provisions of previous service law imposing a time limitation on such a charge or trial were still in force.
(6) A person who has ceased to be a member of the Defence Force or a defence civilian shall not be charged with a service offence unless:
(a) the period that has elapsed since he so ceased does not exceed 6 months; and
(b) the maximum punishment for the service offence is imprisonment for a period of 2 years or a punishment that is more severe than that punishment.’ (Emphasis added.)
69 Part XII of the Discipline Act deals with miscellaneous matters, including s 190, which provides as follows:
‘Jurisdiction of civil courts in relation to offences
190. (1) Subject to the Constitution, a civil court does not have jurisdiction to try a charge of a service offence.
(2) Subject to sub-sections (3), (4) and (5), the jurisdiction of a civil court to try a charge for a civil court offence is not affected by this Act.
(3) Where a court martial or a Defence Force magistrate has, under section 77, taken a service offence into consideration in relation to a convicted person, the person is not liable to be tried by a civil court for a civil court offence that is substantially the same offence. [See below]
(4) A civil court does not have jurisdiction to try a charge of a civil court offence that:
(a) is an ancillary offence in relation to an offence against this Act (other than sub-section 61 (1)) or the regulations; and
(b) was committed by a person at a time when he was a defence member or a defence civilian.
(5) Where a person has been acquitted or convicted of a service offence, the person is not liable to be tried by a civil court for a civil court offence that is substantially the same offence. [See below]
(6) For the purposes of this section:
(a) the dismissal of a charge under section 130, 132 or 135 shall be deemed to be an acquittal of the service offence the subject of the charge;
(b) the dismissal of a charge under previous service law shall be deemed to be an acquittal of the service offence the subject of the charge; and
(c) a direction under section 103, 110 or 111 that a charge be not proceeded with shall be deemed not to be an acquittal of the service offence the subject of the charge.’
70 (In Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518, to which reference will be made later, the High Court held that s 190(3) and (5) were constitutionally invalid, but severable.)
‘Other offences’ – Jervis Bay ‘Territory offences’
71 As mentioned, the charge referred to s 61 and s 26 of the Crimes Act 1900 (ACT), and to ‘Other offences – Commission of Territory offences being the offence of common assault’.
72 It will be recalled that s 61(1)(b) provided, inter alia, that a defence member is guilty of an offence if he does, in a public place outside the Jervis Bay Territory, an act the doing of which, if it took place in a public place in the Jervis Bay Territory, would be a ‘Territory offence’.
73 By s 4A of the Jervis Bay Territory Acceptance Act 1915 (Cth), the criminal law applying in that Territory was, in effect, that enacted in the Crimes Act 1900 (ACT), as picked up in the latter Territory. However, upon the grant of self-government to the Australian Capital Territory, the (ACT) Crimes Legislation (Statutory and Citation) Act 1992 referred to the (ACT) Crimes Act 1900. Although par (b) of the definition of ‘Territory Offence’ in s 3(1) of the Discipline Act refers to an Ordinance, the Discipline Act is not such. Nor did the (ACT) Crimes Act 1900 apply. But, on 8 November 1996, the Discipline Act was amended (retrospectively to 28 May 1992) to change references in the Act to (NSW) Crimes Act 1900 to (ACT) Crimes Act 1900. The Schedule of the amendment provided, in case of any doubt, that the validity of steps taken between 1992 and 1996 was not unlawful.
74 The Crimes Act 1900 (ACT) creates, of course, a full range of offences. Section 26, mentioned in the charge, is found in Part III of that Act (ss 10 – 47) – ‘Offences against the person’. The offences include murder (s 12); manslaughter (s 15) and several kinds of assault, including assault occasioning actual bodily harm (s 24 – five years imprisonment), and common assault (s 26 – two years imprisonment) (emphasis added). No time limit for prosecution of this offence (s 26) is stipulated in that Act.
THE DISCIPLINE ACT PROCEDURAL PROVISIONS
Provisions with respect to courts martial
75 These provisions are in Division 3 (ss 114 – 126) of Part VII, which deals with service tribunals. Section 115(1) of the Discipline Act confers, subject to s 63, jurisdiction to try any charge against any person.
Provisions with respect to Defence Force magistrates
76 Section 129(1) (found in Division 4 of Part VII) provides that a Defence Force magistrate has the same jurisdiction and powers as a restricted court martial.
Provisions as to trial by a Defence Force magistrate
77 These are found in Division 2 of Part VIII, which deals with procedure of service tribunals.
78 Section 135(1) provides:
‘Trial by Defence Force magistrate
135. (1) A Defence Force magistrate shall try a charge in accordance with the following provisions:
(a) before the Defence Force magistrate commences to hear the evidence on the charge, the Defence Force magistrate shall ask the accused person whether he pleads guilty or not guilty to the charge and, if the accused person pleads guilty and the Defence Force magistrate is satisfied that the accused person understands the effect of that plea, the Defence Force magistrate shall convict the accused person;
(b) if the accused person pleads not guilty or if the Defence Force magistrate is not satisfied that the accused person, in pleading guilty, understands the effect of that plea, the Defence Force magistrate shall record a plea of not guilty and proceed to hear the evidence on the charge;
(c) if the Defence Force magistrate, after hearing the evidence on the charge adduced by the prosecution, rules that that evidence is insufficient to support the charge, the Defence Force magistrate shall dismiss the charge;
(d if the Defence Force magistrate, after hearing the evidence on the charge adduced by the prosecution, rules that that evidence is sufficient to support the charge, the Defence Force magistrate shall proceed with the trial;
(e) if the Defence Force magistrate finds the accused person not guilty, the Defence Force magistrate shall acquit the accused person;
(f) if the Defence Force magistrate finds the accused person guilty, the Defence Force magistrate shall convict the accused person;
(g) if the Defence Force magistrate convicts the accused person, the Defence Force magistrate shall take action under Part IV in relation to the convicted person.’
Provisions with respect to applications and objections by an accused person
79 Section 141(1) (within the ‘General’ part of Division 3 of Part VIII) provides:
‘Applications and objections
141. (1) At any time before an accused person is asked to plead at a trial by a service tribunal, the accused person -
(a) may do any one or more of the following:
(i) apply for an adjournment on the ground that he has not had an adequate opportunity to prepare his defence or to choose a person to represent or advise him;
(ii) apply to secure the attendance of witnesses or additional witnesses on his behalf;
(iii) if he is charged with more than one service offence, apply for each charge to be heard separately;
(iv) if he is charged with one or more other persons, apply to be dealt with separately on the ground that he would otherwise be prejudiced in his defence;
(v) make such other applications as he considers relevant in connection with the trial; and
(b) may enter an objection to the charge on any ground, including any of the following grounds:
(i) that, by virtue of section 144, he is not liable to be tried by the service tribunal for the service offence with which he has been charged;
(ii) that the charge was made in contravention of section 96;
(iii) that he has, in the exercise of the royal prerogative of mercy, been pardoned for the service offence with which he has been charged or for a civil court offence that is substantially the same offence;
(iv) that the charge does not disclose a service offence or is otherwise wrong in law;
(v) that the service tribunal does not have jurisdiction.’ (Emphasis added.)
80 By s 141(5) where a service tribunal is satisfied that the interests of justice require that the application be granted, the tribunal shall grant it.
Previous acquittal or conviction
81 Section 144(3) provides that where a person has been acquitted or convicted by a civil court of a civil court offence, the person is not liable to be tried by a service tribunal for a service offence that is substantially the same offence.
Procedure similar to court of Jervis Bay Territory
82 The procedure at a trial is similar to that which is followed in a trial or indictment of a court of the Jervis Bay Territory. As Mason CJ, Wilson and Dawson JJ said in Re Tracey at 537:
‘[I]n trying offences under Pt III of the Act, a service tribunal has practically all the characteristics of a court exercising judicial power.’
83 Section 146(1) (in Division 3 of Part VIII) provides:
‘Rules of evidence
146. (1) Subject to regulations in force under subsection (2), the rules of evidence in force in the Jervis Bay Territory apply to proceedings before a service tribunal as if:
(a) the tribunal were a court exercising jurisdiction in or in relation to that Territory; and
(b) the proceedings were criminal proceedings in such a court.’
84 In his affidavit sworn 24 July 2003 read to the Tribunal, the appellant said:
‘6. ...[M]y legal officers also advised me that there was an issue about the legal validity of the charge. My legal officers advised me that they could argue that the charge was legally invalid, however, if that argument failed, I should plead guilty because I was technically guilty of assaulting CAPT Higgins. I agreed to take that course.
7. On the day of my trial my counsel, FLTLT Booth, said to me words to the effect:
"I have spoken to the prosecutor about the objection to the validity of the charge. They are not prepared to deal with that issue today. If we want to run that argument the matter will have to be adjourned for up to 12 months. The prosecutor also told me that a senior barrister had already considered the argument I propose to make about the validity of the charge and he thinks that it is wrong. Your options are to either plead guilty today and get it over and done with, or have the matter adjourned for 12 months. I think you should plead guilty."
8. As a result of what my defending officer told me, I did not feel that I had any other realistic option but to plead guilty. I was conscious of the fact that having had this matter hang over my head for the past five years was causing my family and me significant stress and depression. So much so we had been seeking counselling from a psychologist. I decided that I could not subject myself and my family to another 12 months of that trauma, for the sake of advancing what I was told was a wrong argument about the validity of the charge, only then to have to plead guilty anyway. For those reasons, I told my defending officers I would plead guilty. If I was aware that there were reasonable prospects of succeeding on a challenge to the charge on the grounds proposed to be advanced in this appeal and that I was entitled to have those arguments put to the Defence Force magistrate much sooner than 12 months time, I would not have pleaded guilty.’
THE TRIAL BEFORE THE DEFENCE FORCE MAGISTRATE
85 At the commencement of the hearing, the appellant pleaded guilty to the charge.
86 The following exchange then took place between the Defence Force magistrate (Lt Col Hevey) and Flt Lt Booth (for the appellant):
‘COL HEVEY: One of the points that is exercising my mind is that the charge relates to events which occurred almost 7 years ago.
LTCOL HOLLES: Yes, sir.
COL HEVEY: As the Act stood at that stage, there was a time limit of 3 years for any offence pursuant to the Defence Force Discipline Act.
LTCOL HOLLES: That is correct, sir.
COL HEVEY: There was a specific offence of assault in relation to an inferior, which this offence seems to relate to, and in normal accord – start again. In accord with normal principles, one would expect that an offence of this type would have been prosecuted in accord with the specific offence as provided for under the Act itself, rather than incorporating it under the Territory offence. Do you see where I’m coming from?
LTCOL HOLLES: Yes, sir, I do.
COL HEVEY: And I am just concerned that the accused is being – and I use this in no pejorative sense but simply a statement of an apparent fact on the face of it, seems to be being caught by the territorial provisions of the Act to escape, and I use that not in a pejorative sense, to escape the time limits which are otherwise imposed by the Defence Force Discipline Act. Could you assure me that this matter has been looked at, rather than simply – and I use this term neutrally, "glossed over"?
LTCOL HOLLES: Sir, it has been the subject of a considerable amount of research by the current prosecution team and the issue identified somewhat earlier in the piece, advice from a very senior representative of the Melbourne Panel was sought, specifically to address the concerns which you have raised, sir, and the opinion of that Senior Member of the Panel, and with great respect to that Senior Member which is shared by the entire prosecution team, was that the nature and effect of the Act upon which the prosecution relies to found the charge was more adequately expressed in terms of the Territory defence rather than the disciplinary defence under the DFDA.
COL HEVEY: Yes, thank you. Flight Lieutenant Booth, I ask of you the same question and specifically give you the opportunity for the sake of the transcript to take objection should you wish at this stage. Now, I know that you have considered this matter but I would like it on the transcript that this matter is effectively being dealt with today despite any problem that might otherwise have existed with time limits.
FLTLT BOOTH: Upon my instructions, sir, I take no objection.’
87 Lt Col Holles (for the prosecution) then tendered a statement of agreed facts, as follows:
‘Agreed Facts
In August 96 MAJ Hoffman (the accused) was the OC 2 Coy 1 Cdo Regt. At that time the unit was taking part in Exercise Night Crocodile 96 in the Shoalwater Bay training area (SWBTA). 240262 CAPT P. B. Higgins was at that time a LT in 1 Cdo Regt. Higgins was present at a briefing in the 1 Cdo Regt briefing tent at Samuel Hill, SWBTA together with other officers and senior NCOs, including the accused.
During the briefing, the accused made a comment that prior to the exercise he had been receiving many calls from a Media Liaison Officer in Melbourne and that he was tired of receiving such calls. Higgins suggested that the accused get the calls put through to Higgins. Higgins intended this comment as a joke. He was on exercise and could not receive calls.
The accused drew his pistol and pointed it at Higgins. The accused then made a comment to Higgins which had the effect of causing alarm to Higgins. The accused did not intend to alarm Higgins. He then returned the weapon to its holster.
Higgins felt shock. He also felt threatened and scared. Higgins was unaware of the state of the weapon. He was not aware as to whether the weapon was at load, action or instant. He was aware that at that range even a blank cartridge could cause injury or worse.
The accused has stated that he did not intend to assault Higgins by this action. The accused concedes that he was reckless as to the consequences of his action. Immediately after the incident Higgins spoke to a number of his fellow junior officers and because of his position as a recent officer graduate he believed that the matter if reported may affect his subsequent career.
A formal complaint was made in late 1999 and a service police statement was taken on 19 sep 00, which has led to the present proceedings.’
88 The Defence Force magistrate then decided to convict the appellant, but without punishment.
89 In his sentencing remarks, the Defence Force magistrate said:
‘In the normal course of events, one would have expected that this charge would have been preferred under [s] 34 of the [Discipline Act], assault on an inferior. Had that occurred, then the offence would be now statute barred. At the time that the offence was committed, that is somewhere in August 1996, the time limit which was then in place was a period of 3 years. In 1999, the [Discipline Act] was amended to extend that period to 5 years, so on either version of those limitation periods, the charge being preferred in 2002 would have been out of time.
However, the prosecution have bought this charge by reason of [s] 61 of the [Discipline Act], which allows the inclusion of what is known as, "territorial offences", and by relying on the charge of common assault as it appears in [s] 26 of the [ACT] Crimes Act, then, the prosecution are able to bring this offence, despite the fact that it is more than 6 years old. I go into that in some detail because it is a very relevant factor in the sentencing options which I must consider.’
90 He later added:
‘I will not attach blame to the delay which has occurred, but it is my very strong view that the delay is inexcusable. That any person, pardon me, be they Major, a Private, or General, could have an investigation hanging over their heads since, at the very earliest 1999 through today, brings no credit to the Defence Force.
Had this man been properly dealt with and properly punished in 1996, or seven, or indeed in 1998, or nine, then the effects of any punishment which may have been awarded would have been today effectively overcome. Even if dealt with in 1999, then the accused would currently still have at least three or four clear reporting periods at that time and would be now in a position where he would be eligible for consideration for promotion. All of his reporting periods sine this offence have been clear. All of them have been, as I have mentioned before, of the very highest standing.’
THE DECISION OF THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
91 By a majority (Heerey and Duggan JJ, Mildren J dissenting) the appeal was dismissed.
92 The leading reasons for decision were given by Duggan J.
93 His Honour rejected the appellant’s argument, which was based on the reasoning of McHugh J (Toohey J concurring) in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 30 (see below), that a Territory offence (such as s 26 of the Crimes Act 1900 (ACT)) could not be used where the conduct alleged also amounted to specific service offences, e.g. ss 33 or 34 of the Discipline Act; that is, the argument went, s 61 was intended to supplement, but not duplicate the specific service offences created by the Discipline Act, so that, it was said, s 61 must be read down so as to pick up Territory offence only where there is (as here) no service offence under ss 15 to 60 with substantially the same physical and mental elements.
94 Referring to the principle explained by Gavan Duffy CJ and Dixon J in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7 that a ‘statutory power, expressed in general form, is not to be construed so as to avoid any condition or limitation placed on the exercise of a specific power’, relied on by the appellant, Duggan J said (at [49]):
‘The principle of interpretation expressed in Anthony Hordern does not govern the present case. Section 61 is expressed in general terms in the sense that it picks up all offences applicable to the Territory. However, the effect of the section is to add an extensive group of offences to those which may be charged against a defence member. In those cases where the conduct could amount to the commission of more than one offence, the particular offence to be charged is left to prosecutorial discretion.
I am also of the view that the existence of a limitation period for charging offences other than s 61 offences does not advance the appellant’s argument. I have pointed out that in Saraswati McHugh J took into account the principle that a general expression of power is not to be used to defeat a limitation on the exercise of a specific power. However, the issue of limitation periods is dealt with in detail in s 96 of the [Discipline Act] ....’
95 Duggan J turned next to the appellant’s argument that the proceedings constituted an abuse of the process of the court, since the prosecutor charged the appellant with the s 61 offence so as to avoid the limitation period applicable to the offences under ss 33 and 34 of the Discipline Act.
96 Rejecting the argument, Duggan J said (at [53] – [55]):
‘It would appear that the limitation period for the offences under ss 33 and 34 had expired by the time the victim reported the matter. It is stated in the agreed facts that he delayed reporting the incident because he was a recent officer graduate and believed that if he reported the matter it could [a]ffect his subsequent career.
In these circumstances and bearing in mind that the charging of an s 61 offence was one of the options available to the prosecuting authority, it cannot be said that the exercise of that option was an abuse of the process of the court.
In any event, the defence force magistrate drew attention to the time limit issue at the commencement of the proceedings before him. He gave the defending officer the opportunity to object on this ground but the latter stated that, upon his instructions he took no objection.’
97 In considering the appellant’s claim for a stay of proceedings because of the delay of almost seven years since the alleged offence, Duggan J said (at [56]):
‘There will be some cases in which delay and its consequences render a fair trial impossible: Watson v Gardiner [1992] HCA 12; (1993) 177 CLR 378, Jago v District Court (NSW) [1989] HCA 46; (1998) 168 CLR 23. However, there was no evidence to support that conclusion in the present case. There was no application before the defence force magistrate to stay the proceedings. Instead, the appellant pleaded guilty to the charge. The appellant cannot succeed on this ground.’
98 Duggan J added (at [57]):
‘I would reject the further argument that the conviction should be set aside because the appellant was not advised that he could apply to have the charge stayed as an abuse of process. The grounds upon which it was suggested that such an application might have been made could not have succeeded for the reasons I have canvassed.’
99 It is submitted, on behalf of the appellant, that a plea of guilty should be set aside on an appeal against conviction if a substantial miscarriage of justice has occurred (see Hembury v Chief of the General Staff [1998] HCA 47; (1998) 193 CLR 641); and that such miscarriage will have occurred where the accused could not in law have been convicted of the offences charged (see R v Kouroumalos [2000] NSWCCA 453 at [16]; R v Liberti (1991) 55 A Crim R 120 at 121 – 122; R v Caruso (1988) 37 A Crim R 1); or where it appeared that the accused had not been properly advised by counsel and had ‘an arguable case’ for acquittal, or by logical extension, to have the charges stayed for an abuse of process (see R v Favero [1999] NSWCCA 320; R v Whitehead [2000] NSWCCA 400 at [25] – [29]). That is to say, the argument goes, little significance may attach to the plea of guilty if, as the appellant contends, the charge was wrong in law or an incorrect exercise of jurisdiction. Such defects go to the heart of the conviction. The appellant cannot give validity to a charge merely by pleading guilty. A valid charge for an offence within the jurisdiction of the Defence Force magistrate was an essential jurisdictional fact, so that the erroneous exercise of jurisdiction in this case amounts to a substantial miscarriage of justice. If the charge and conviction in the circumstances of the present case was a serious abuse of process that should never have been allowed, this amounts to a substantial miscarriage of justice.
100 These general principles are not, and could not be, in issue. But their application in the present circumstances is seriously disputed by the respondent.
101 In his first ground of appeal, the appellant contends that the Tribunal should have held that the Defence Force magistrate erred in law by purporting to exercise jurisdiction under s 129 and s 115 by trying the charge; convicting the appellant under s 135; and taking action under Part IV and by imposing punishment pursuant to s 75 – because upon their proper construction, s 61(1) and s 190(5) of the Discipline Act do not proscribe as a service offence conduct that would constitute a civil offence under s 26 of the Crimes Act 1900 (ACT), when ss 33(a) and 34 of the Discipline Act specifically provide for a service offence for substantially the same physical and mental elements. Accordingly, it is said, there was, as a matter of jurisdiction, no charge of a service offence and no conviction of a service offence.
102 The appellant again relies upon the passage from the reference in the judgment of McHugh J in Saraswati (at 30) (mentioned above) –
‘... to the context rule of statutory construction which holds that a general provision in a statute is not to be construed so as to avoid the conditions or limitations contained in a specific provision in the same statute.’
103 The appellant submits that the circumstances of this case are almost indistinguishable from Saraswati: that is to say, ss 15 – 60 of Part III of the Discipline Act set out a number of specific military offences; most of those provisions proscribe specific military conduct that, by their very subject matter, meet the requirement of ‘substantially serving the purpose of maintaining or enforcing service discipline’ as held in Re Tracey; s 61 is a more general provision in the context of military discipline, in that the offence provisions that it picks up do not, on their face, have any service connection; s 61 must, the argument goes, have been intended to supplement rather than duplicate the specific service offence provisions of the Discipline Act; indeed, the Explanatory Memorandum for the Bill at par 577 (see below) speaks of the provision being ‘complementary’ and there is no apparent intention or purpose in a construction amounting to duplication; nor, the argument runs, did s 190 in its original form address the consequence of this type of duplication.
104 The origins of the Discipline Act are found in the Defence Force Disciplinary Code: Report of the 1973 Working Party (1974) Parliamentary Paper No. 48 (‘the 1973 Working Party Report’) which reported with a proposal for a Defence (Discipline and Justice) Bill 1974. The Working Party Report stated that it had ‘tried to produce a disciplinary code which is uniform [i.e. unifying the codes of the Navy, the Army and the Air Force], Australian and modern’.
105 In its description of the ‘major changes’ in its proposed draft, the Party said, inter alia:
‘An analysis of offences of conduct to the prejudice of good order and discipline tried by court martial led to the creation of additional specific offences (section 61 – driving offences, section 62 – assaults and disturbances ... ) which should minimise the use of charges of "conduct to the prejudice".
...
Part of the value of setting out offences in a disciplinary code lies in their declaratory significance as a code of military conduct. Their educational and preventative value has been obscured or distorted by unrealistic maximum punishments. It does not enhance discipline to hold out minor breaches as serious crimes and we have not hesitated to reduce drastically maximum punishments.’
106 In its description of ‘collateral matters’, the Party referred to the Australian Capital Territory Criminal Laws and said:
‘Disciplinary codes traditionally rely on the ordinary criminal law for the less frequently committed criminal offences. One of the more striking anomalies of the present service codes is their dependence on the criminal law of England. We have proposed in section 68 to substitute the criminal law of the Australian Capital Territory.’
107 In Part III of the Report’s draft Bill, dealing with ‘offences’, Division 1 dealt with ‘service offences’. Section 61 dealt with ‘offences in relation to vehicles’; and s 62 with ‘assaults, insulting words etc.’.
108 Division 2 dealt with ‘civil offences’, and s 68 dealt with that topic specifically.
109 Section 68 provided:
‘68. (1) A person who commits a civil offence whether in Australia or elsewhere shall be guilty of an offence.
(2) In this Division, the expression "civil offence" means an act or omission punishable by a law in force in the Australian Capital Territory (other than this Act) or which if committed in that Territory would be punishable by that law.
(3) a person convicted of a civil offence is liable to be sentenced in accordance with the following provisions –
(a) if the civil offence is punishable by a fixed punishment, he shall be sentenced to that punishment; and
(b) if the civil offence is punishable by a maximum punishment, he may be sentenced to that punishment or to a punishment that under this Act is less severe.
(4) The regulations may provide that notwithstanding sub-section (2) –
(a) a specific provision of a law in force in the Australian Capital Territory is not to be incorporated, in this Division; or
(b) the provisions of a specific law in force in the Australian Capital Territory are not to be, or are to cease to be, incorporated in this Division.’
The Explanatory Memorandum for the Defence Force Discipline Bill 1982
110 The Memorandum noted (par 7) that the procedure under the Bill by which charges against an accused person are heard and brought to trial ‘is in many respects analogous to that by which an alleged offence is heard and tried by the civil courts’.
111 In relation to the offences and punishments, the Memorandum explained that the principal changes from existing law were:
‘Offences and punishments
a. Revision of all service offences, including the discarding of outmoded offences, the introduction of new offences in order to reduce the reliance on charges of "conduct to the prejudice" and a systematic review of the mental elements of each offence.
b. Reduction of maximum punishments to modern levels, the demarcation of serious offences from mere breaches of discipline by the provision of appropriate maximum punishments and the correlation of the mental elements of offences and maximum punishments.
c. Substitution of the law of the Australian Capital Territory for the law of England as the appropriate law for the purposes of providing offences, not purely military in character, that may be tried by service tribunals.’
112 In its explanation of ‘other offences’ in Division 8 of Part III, the Memorandum said (of cl 61 of the Bill):
‘576. This clause creates certain offences triable by service tribunals that are offences against the ordinary law. The offences are applicable to defence members and defence civilians.
577. The selection of offences for this purpose is, to a degree, dictated by the scope of the Crimes (Overseas) Act 1964, to which the Bill is, in this respect, complementary . ...’
113 The Memorandum added:
‘578. Sub-clause (1) creates offences of acts or omissions which would be Territory offences if they took place in the Australian Capital Territory. The definition of "Territory offence" in sub-clause 3(1) identifies the offences that are to be offences for this purpose as being offences against the laws of the Commonwealth (excluding this Bill and the Criminal Investigation Bill 1982), the Crimes Act 1900 (NSW) in its application in the Australian Capital Territory, and the Police Offences Ordinance 1930 (ACT). ...’
114 The Memorandum noted (par 585) that cl 68 of the Bill made similar provision to that under the previous law (which picked up offences against the laws of England) except that it provided for any offence under the law in force in the Australian Capital Territory to be triable.
Decisions of the High Court on the operation of the Discipline Act
115 The operation of the Discipline Act has been considered by the High Court on several occasions. In my opinion, it is essential to have regard to the reasoning in these cases. Although the issues before the Court were constitutional in form, the substance of the reasoning adopted bears upon the appellant’s argument, at least by necessary implication.
116 The prosecutor there was charged with three offences under the Discipline Act: one of making a false entry in a service document, contrary to s 55(1)(b); and two charges of being absent without leave, contrary to s 24(1). The charges came before a Defence Force magistrate. In the High Court the prosecutor claimed, firstly, that the Defence Force magistrate was exercising the judicial power of the Commonwealth, contrary to Ch III of the Constitution; secondly, that each of the charges was an indictable offence against a law of the Commonwealth and, as such, was required by s 80 of the Constitution to be heard before a jury as a trial on indictment; and thirdly, that s 190 of the Discipline Act was invalid as contrary to Ch III. The Full High Court (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ) held that trials for service offences were not, under the Discipline Act, trials on indictment.
117 A majority of the Court (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ) held that although a service tribunal exercised judicial power, it did not exercise the judicial power of the Commonwealth since the defence power (s 51(vi)) contained power to enact a disciplinary code standing outside Ch III, and to impose upon those administering it a duty to act judicially.
118 Deane J was of the opinion that jurisdiction could be validly conferred on a service tribunal for exclusively disciplinary offences only.
119 Gaudron J was of the opinion that jurisdiction could be validly conferred only for service charges in respect of conduct outside Australia which were not substantially the same as civil court offences.
120 It was further held by Mason CJ, Wilson and Dawson JJ that s 61 is valid on the ground that it is within the power of the Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence if committed by a member.
121 (As mentioned above) Mason CJ, Wilson, Brennan, Dawson and Toohey JJ held that the provisions of ss 190(3) and (5) are beyond the defence power since they interfere with the exercise by State courts of their general criminal jurisdiction, but that they are severable from the Act’s valid provisions.
122 In rejecting the prosecutor’s submission that s 61(1) of the Discipline Act exceeded the defence power, Mason CJ, Wilson and Dawson JJ noted (at 541) first, that the scope of s 61(1) is ‘severely limited’ by s 63, requiring the Attorney-General’s consent for certain proceedings; and, secondly, the circumstance that pre-1900 in the United Kingdom and in the Australian colonies, there was legislation conferring powers upon courts-martial to try members of the forces for civil offences, including a provision that a person might be convicted in a civil court, having been sentenced by a court martial for the same offence, but that any military punishment that he had already undergone should be taken into account (at 542).
123 Their Honours said (at 543 – 544):
‘[B]oth as a matter of history and of contemporary practice, it has commonly been considered appropriate for the proper discipline of a defence force to subject its members to penalties under service law for the commission of offences punishable under civil law even where the only connexion between the offences and the defence force is the service membership of the offender. Such legislation is based upon the premise that, as a matter of discipline, the proper administration of a defence force requires the observance by its members of the standards of behaviour demanded of ordinary citizens and the enforcement of those standards by military tribunals. To act in contravention of those standards is not only to break the law, but also to act to the prejudice of good order and military discipline. It is appropriate that such conduct should be punished in the interests not only of the community but of the defence force as well.’
124 Their Honours went on to say (at 544) that ‘it is not possible to draw a clear and satisfactory line between offences committed by defence members which are of a military character and those which are not’.
125 It followed, their Honours said (at 545), that –
‘... it is for Parliament to decide what it considers necessary and appropriate for the maintenance of good order and discipline in those forces. And Parliament’s decision will prevail so long at any rate as the rule which it prescribes is sufficiently connected with the regulation of the forces and the good order and discipline of defence members.’
126 It further followed, their Honours held (at 545), that ‘the selection of a law or laws defining such civil offences for that purpose must also be a matter for Parliament’.
127 Accordingly, Mason CJ, Wilson and Dawson JJ held (at 545) that s 61 is validly enacted.
128 As mentioned, Brennan and Toohey JJ were of the same conclusion, but with somewhat different reasoning.
129 Their Honours said (at 569 – 570):
‘There are two sets of constitutional objectives to be reconciled. The first set of objectives, dictated by s. 51(vi), consist of the defence of the Commonwealth and of the several States and the control of the armed forces. To achieve these objectives, it is appropriate to repose in service authorities a broad authority, to be exercised according to the exigencies of time, place and circumstance, to impose discipline on defence members and defence civilians. The second set of objectives, dictated both by Ch. III and s. 106 of the Constitution and by the constitutional history we have traced, consist of recognition of the pre-ordinate jurisdiction of the civil courts and the protection of civil rights which those courts assure alike to civilians and to defence members and defence civilians who are charged with criminal offences. To achieve these objectives, civil jurisdiction should be exercised when it can conveniently and appropriately be invoked and the jurisdiction of service tribunals should not be invoked, except for the purpose of maintaining or enforcing service discipline. These two sets of constitutional imperatives point to the limits of the valid operation of the Discipline Act. It may not impair civil jurisdiction but it may empower service tribunals to maintain or enforce discipline. Therefore proceedings may be brought against a defence member or a defence civilian for a service offence, if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline.
In the application of this test, much depends on the facts of the case and the outcome may depend upon matters of impression and degree, especially on the needs of service discipline.’ (Emphasis added.)
130 Brennan and Toohey JJ noted, however, that the test is an objective one and added (at 570 – 571):
‘It must be applied by those in whom the Discipline Act vests certain procedural powers. The repositories include the Attorney-General (s. 63(1)), a convening authority (ss. 103(1), 129A(1)), a commanding officer (s. 110(1)) and a summary authority (ss. 109, 110(1), 111(2)) who may have a discretion to decide whether or not a step in proceedings for the prosecution of a service offence should be taken.’
131 Their Honours noted (at 571) that any such decision is examinable under s 75(v) of the Constitution, and added (at 571):
‘Section 51(vi) does not support a jurisdiction standing outside Ch. III of the Constitution except to the extent that the jurisdiction serves the purpose of maintaining or enforcing service discipline. That being the purpose which is essential to the jurisdiction, it is the purpose to which its exercise must be directed.’
132 Brennan and Toohey JJ went on to say (at 574):
‘Just as the scope of s. 51(vi) changes according to time, place and circumstance, so does the jurisdiction of service tribunals. But, when that jurisdiction falls to be exercised, the power which is exercised is not the judicial power of the Commonwealth; it is a power sui generis which is supported solely by s. 51(vi) for the purpose of maintaining or enforcing service discipline.’
133 Re Tracey was applied by the Full High Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in McWaters v Day [1989] HCA 59; (1989) 168 CLR 289. The respondent, a member of the defence forces, was involved in a traffic accident within Army barracks, and charged under a State Traffic Act. It had been held in the Supreme Court that the respondent’s behaviour was relevantly governed by s 40(2) of the Discipline Act, which creates a number of offences which may be committed by a defence member in connection with the use of a vehicle; and that this provision was inconsistent with the State Act, which was therefore invalid to the extent of the inconsistency by reason of s 109 of the Constitution. However, it was held by the Full High Court that there was no inconsistency.
134 Of the decision in Re Tracey, the Court said (at 297):
... [A] majority of the Court found that the Discipline Act was to be interpreted so as to ensure that the military disciplinary code it enacted was cumulative upon and not exclusive of the ordinary criminal law ...’
135 Their Honours added (at 298):
‘... [I]t is clear that the Discipline Act contemplates parallel systems of military and ordinary criminal law and does not evince any intention that defence force members enjoy an absolute immunity from liability under the ordinary criminal law, notwithstanding that the Discipline Act addresses the question of double jeopardy. As is implicit in the judgments in Re Tracey, the Discipline Act does not seek to do other than enact a system of military law in accordance with the traditional and constitutional view of the supplementary function of such law. The different purposes underlying military discipline and the ordinary criminal law were emphasized.’
136 The Full High Court went on to say (at 298 – 299):
‘Parliament included in the Discipline Act provisions which were designed to prevent civil courts from hearing charges of civil offences which were substantially the same as service offences. The operation of these provisions depended upon a trial for the service offence having taken place: s. 190(3), (5). Their purpose was not to exclude the criminal law, but rather to enact a statutory rule against double jeopardy. But s. 190(3) and (5) were held in Re Tracey to be invalid because they involved an impermissible ouster of the jurisdiction of the courts to try charges of civil offences. The Court found that their invalidity did not affect the validity of the Discipline Act as a whole. Nor does it prevent the Court from making reference to the provisions as they were enacted, for the purpose of ascertaining the intention of the Parliament in enacting the remainder of the Act: see Davis v. Wallace [(1922) 257 O.S. 478 at 483 – 485].
But even had s. 190(3) and (5) been held valid, they would not have demonstrated a legislative intention that the disciplinary code established by the Discipline Act operate to the exclusion of the ordinary criminal law. Similarly, s. 144(3) provides that where a person has been tried for a civil offence he shall not subsequently be tried for a service offence which is substantially the same offence. Viewed in their context, these provisions do not suggest that the Discipline Act intends to exclude the operation of State criminal law.’
137 Re Tracey was further considered by the High Court in Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460. A member of the defence forces was charged before a service tribunal with falsifying a service pay list, contrary to s 55(1)(a) of the Discipline Act, and with using that list contrary to s 61(1) of the Discipline Act. Conduct of this kind was also contrary to comparable provisions of the Crimes Act 1914 (Cth). Moreover, in respect of the second charge, of using a false instrument, the charge was laid under s 61(1) of the Discipline Act, which adopts s 135C(2) of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory.
138 The prosecutor sought prohibition against the Commonwealth and the Defence Force magistrate upon these grounds (at 462):
‘1. The offences with which the prosecutor has been charged are all offences for which a civilian equivalent exists. 2. There is no reason, pertinent to the maintenance of military discipline, why the charges should not be laid, heard and determined under the civilian law. 3. That being so – (a) the Defence Force Magistrate lacks jurisdiction to hear and determine the charges; or (b) in the alternative, if the Defence Force Magistrate does have jurisdiction to hear and determine the charges, he should nevertheless decline to exercise that jurisdiction on the ground that there exists a forum (namely, the civilian court) by which jurisdiction might more appropriately be exercised.’
139 Mason CJ and Dawson J said (at 472 – 473):
‘Re Tracey presented the Magistrate with a very considerable problem. There was no majority for any one of the three opinions expressed in the judgments; indeed, there was a majority rejection, at least by way of preferred view, for each of the three opinions. However, the Magistrate seems to have thought, mistakenly as we understand their Honours’ judgment, that Brennan and Toohey JJ. considered that, "upon a service authority or a tribunal finding that a sufficient service connexion exists, then prosecution of [a service] offence automatically serves a substantial disciplinary purpose". The Magistrate therefore treated the "serving of a substantial disciplinary purpose" as synonymous with a "sufficient service connection" and, on this footing, thought that there was some identity of approach between their Honours and Mason C.J., Wilson and Dawson JJ. However, we do not find anything in the judgment of Brennan and Toohey JJ. which suggests that the presence of a sufficient service connexion means automatically that the prosecution will serve a substantial disciplinary purpose. The Magistrate’s reasoning was mistaken in this regard.’
140 Having heard further argument on the scope of the power conferred by s 51(vi) and its interrelationship with Ch III, their Honours could ‘see no reason to resile from the view which we expressed in Re Tracey as to the scope of the legislative power ... [that is to say] it is open to Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence, if committed by a defence member’ (at 474).
141 Brennan and Toohey JJ said (at 482):
‘The doctrine that military law is supplementary and subordinate to the general law is not expressed in the text of the Constitution any more than the doctrine of responsible government, yet both doctrines underpin the Constitution, inform its interpretation, and are calculated to secure the democratic freedom to which the Constitution and the nation it formed aspire. A power in the Parliament, acting in aid of the executive, to enact a criminal law binding on defence members and defence civilians in times of peace which would prevail over the ordinary criminal law would be destructive of the discipline which the power to enact a supplementary criminal law is calculated to achieve. The creation of a military class immune from the general criminal law would be antithetical to the constitutional function of the Defence Force "to execute and maintain the laws of the Commonwealth" (s. 51(vi) and to be available to protect a State against domestic violence (s. 119).’ (Emphasis added.)
142 Their Honours added (at 483):
‘A law creating a service offence is denied an operation inconsistent with the operation of an ordinary criminal law of a State, not because the will of the State legislature prevails over the will of the Commonwealth legislature but because the support of s. 51(vi) of the Constitution for the creation of service offences vanishes when it is impracticable to obey simultaneously the law creating the service offence and the ordinary criminal law enforceable by the courts of this country.’
143 Reiterating the view they had expressed in Re Tracey, Brennan and Toohey JJ said (at 484 – 485):
‘In some circumstances conduct amounting to a service offence calls for proceedings to be taken before a service tribunal in order to maintain or enforce service discipline; in other circumstances, it does not. That being so, Pts III and VII of the Discipline Act, which are drawn in general terms, must be held invalid unless they can be read down to apply only in the circumstances in which their application is constitutionally supportable.
Though it may be impossible to prescribe a priori the times and circumstances in which proceedings before a service tribunal will be regarded as substantially serving the purpose of maintaining or enforcing service discipline, it does not follow that a failure by the Discipline Act expressly to restrict the application of these general provisions destroys its validity. Though the Discipline Act appears to authorize an exercise of jurisdiction in every case literally falling within its terms, and thus to authorize an invalid as well as a valid exercise of the jurisdiction to hear and determine charges of committing service offences, the distributive operation of the Discipline Act is confined by s. 15A of the Acts Interpretation Act so that the jurisdiction conferred on service tribunals is available for exercise only on occasions when there is constitutional support for its exercise.’ (Emphasis added.)
144 Re Tracey was further considered by the High Court in Re Tyler; Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18. A defence member was charged before a general court martial with dishonestly appropriating Commonwealth property in New South Wales (by receipt of a temporary rent allowance (‘TRA’) improperly claimed in connection with his posting to the RAAF base, Richmond) contrary to s 47(1) of the Discipline Act (an offence substantially the same as s 71 of the Crimes Act 1914 (Cth)), and s 178BA of the Crimes Act 1900 (NSW). The basis of the application for prerogative relief was that, the offence under s 47(1) being inherently criminal in character and there being an appropriate civil court to determine the charge against the defence member, the general court martial lacked jurisdiction. Specifically, the defence member asserted that the offence with which he was charged was substantially the same as an offence against s 71 of the Crimes Act 1914 (Cth) and as an offence against s 178BA of the Crimes Act 1900 (NSW). He further contended that the general court martial was not constituted in accordance with Ch III of the Constitution and had no authority to exercise the judicial power of the Commonwealth. Moreover, the contention added, a trial by general court martial was not trial by jury as required by s 80 of the Constitution.
145 Mason CJ and Dawson J disposed of the application in accordance with their reasoning in Re Tracey, but added (at 26 – 27) that, in accordance with the views expressed by Brennan J and Toohey J in Re Tracey, Mason CJ and Dawson J would themselves have held that the proceedings against the prosecutor in this case served the purpose of maintaining or enforcing service discipline.
146 Brennan J and Toohey J (at 29) maintained the view they held in Re Nolan. Their Honours continued (at 30):
‘We do not accept the argument that the relevant aspects of the Act cannot be supported under the first limb of par.(vi). The end to be pursued is, in the words of the Constitution, the "naval and military defence of the Commonwealth". Essential to that defence is the discipline of the armed forces. Traditionally, the maintenance of that discipline has been through courts martial. The conferral of jurisdiction on general courts martial is appropriate and adapted to the end stated when prosecution before a court martial can reasonably be regarded as substantially serving the purpose
of maintaining or enforcing service discipline.’
147 In concluding that the proceedings in question can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline, their Honours said (at 31 – 32):
‘The charge involves a misappropriation of "service property" as that term is defined in s. 3(1) of the Act. The TRA scheme giving rise to the charge is a scheme administered by the Australian Defence Force for the benefit of defence members. The authority for the TRA scheme is to be found in s. 58B of the Defence Act 1903 (Cth) and the elements of the scheme, in the form of INDMAN 0503, constitute a Defence Instruction (General) which is a "general order" as defined in s. 3(1) of the Act. The prosecutor was Commanding Officer of 33 Squadron and his alleged conduct related to a scheme instituted for the benefit of defence members, including those under the prosecutor’s command. The effect on service morale and discipline by a breach of the kind alleged[ly] committed by a commanding officer might reasonably be regarded as substantial.’
148 McHugh J said in Re Tyler (at 38) that in Re Nolan, he agreed with Deane J in both Re Tracey and Re Nolan that, unless a service tribunal is established under Ch III, it has jurisdiction to deal with an ‘offence’ only if that ‘offence’ is exclusively disciplinary in character, or is concerned with the disciplinary aspects of conduct which constitute an offence against the general law. However, that conclusion, whilst still his Honour’s view, was, McHugh J acknowledged, rejected by a majority of Justices in both cases. McHugh J added (at 39 – 40):
‘Furthermore, for the Court now to hold that a service tribunal had no jurisdiction to try this case after reaching the opposite conclusion twice in the past five and a half years would defeat the expectations of the Parliament and
those concerned with the administration of discipline in the defence forces. Both the Parliament and those responsible for the administration of service discipline could be fairly excused for thinking that the constitutional question had been settled. Moreover, the two decisions are confined to the special position of the defence forces and give effect to a tradition that has existed in this country from its earliest days. The decisions have no authority outside the situation of the defence forces.
Accordingly, in my opinion, the Court should continue to follow Re Tracey and Re Nolan in any case whose circumstances are not readily distinguishable from the circumstances of those two decisions, notwithstanding that they contain no binding ratio decidendi.’
149 If, for the moment, one puts aside the possible application here of the ‘context’ rule of statutory construction mentioned by McHugh J in Saraswati, it is, in my view, difficult to maintain, from any of these High Court decisions, a reading down interpretation of the kind now advanced by the appellant. Mason CJ and Dawson J were not prepared to read down s 61 at all. Brennan J and Toohey J read s 61 down in a different sense, that is to say, by requiring that the proceedings in question can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline. Deane J and McHugh J would also read the Discipline Act down to offences which are exclusively disciplinary in character, or concerned with the disciplinary aspects of conduct.
150 None of the High Court Justices has suggested, in any of these decisions, that the reading down construction now propounded by the appellant applied to s 61 of the Discipline Act. Although the specific issue did not, of course, then squarely arise for decision, it is only reasonable to expect that the four Justices who did allow some reading down would, in their reasons, have adverted to any other possible reading down. But they did not. At the same time, as has been said, Mason CJ and Dawson J were against any reading down at all.
151 Again, if for the moment, one leaves aside the ‘context’ rule of statutory construction mentioned by McHugh J in Saraswati, it must, in my view, be accepted in this Court that no Justice of the High Court, has expressly accepted the appellant’s contention, and, in my opinion, each Justice has, by necessary implication, declined to do so. In those circumstances, it is not open to this Court to hold to the contrary, as ground 1 now asks us to do.
152 Turning now to Saraswati, the appellant, as mentioned, relies upon the reference by McHugh J there to the observations of Gavan Duffy CJ and Dixon J in Anthony Hordern (at 7); that is to say, the rule that when Parliament ‘explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power’. His Honour described this as the ‘context’ rule (at 23). However, McHugh J also relied upon a purposive interpretation of the relevant statutory provision. In this connection, his Honour considered the history and purpose of the particular legislation. Toohey J agreed with McHugh J. However, although Gaudron J also concurred in allowing the appeal, she placed much emphasis (at 17) upon the different ‘basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied’. Deane J and Dawson J dissented.
153 Saraswati is, even on the approach taken by McHugh J, a decision upon the construction and interpretation of a statutory provision with no connection or analogy with the present legislation. When, as here, the High Court has considered the operation of the Discipline Act on four occasions in a ‘context’ quite different from Saraswati, but without any suggestion or mention of the reading down (significant as it is) now propounded by the appellant, it is not, I think, open to this Court to follow the path urged upon us by the appellant.
154 I should add, for completeness, that, in my view, there is nothing in the 1973 Working Party Report or the Explanatory Memorandum which assists either party here. No mention is made there of any need to ‘read down’ the operation of s 61 in the way the appellant now suggests. It is true that par 577 of the Explanatory Memorandum speaks of s 61 as ‘complementary’, but this is quite consistent with the reasoning of Mason CJ and Dawson J, and of Brennan J and Toohey J.
155 Accordingly, I would reject ground 1 of the appeal.
Grounds 2, 3 and 5(b)(i) of the appeal
156 In his second ground of appeal, the appellant submits that these proceedings were an abuse of process, and should have been stayed.
157 The appellant contends that the Tribunal erred by holding that for an abuse of process to arise, it was necessary for there to have been ‘personal animus’ against the appellant; by failing to take into account that the Defence Force magistrate erred in law by trying the charge and by convicting the appellant under s 135 of the Discipline Act; by taking action under Part 4 of the Discipline Act; and by imposing punishment on the appellant pursuant to s 75 of the Discipline Act. The appellant contends that it was an abuse of process to permit the appellant to be charged and convicted under s 61 of the Discipline Act, applying s 26 of the Crimes Act 1900 (ACT), when ss 33(a) and 34 of the Discipline Act provide for a service offence for substantially the same physical and mental elements and, when, at the time that the appellant was charged in 2002 with an offence against s 61 of the Discipline Act, s 96 prohibited him from being charged with an offence against either of ss 33(a) and 34 of the Discipline Act.
158 Specifically, the appellant submits that:
• Australian superior courts have inherent jurisdiction to stay criminal proceedings which are an abuse of process (citing Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509); and a Defence Force magistrate has the power to stay proceedings pursuant to the provisions of s 141(1)(a)(v) and s 141(5) of the Discipline Act.
• The only rational reason why the appellant was charged under s 61 instead of ss 33 and 34 was to avoid the time limitation applying to those latter sections by s 96. The issue of whether s 61 was being used in this way was of obvious concern to the Defence Force magistrate. The prosecutor’s answer to the Defence Force magistrate (above) was indirect and empty. No legitimate rational purpose was advanced by the prosecutor. It is for all practical purposes impossible to conceive of how in the circumstances of this case, s 26 of the Crimes Act 1900 (ACT) expressed an offence of common assault more adequately than ss 33 or 34 of the Discipline Act, other than to avoid the time limitation set by s 96(1).
• To use s 61 to defeat the prohibition provided by s 96 was undoubtedly a serious abuse of process and an error of law by the Defence Force magistrate to allow and convict the appellant. Reference is made to sentencing remarks (cited above) and to Maxwell v The Queen [1995] HCA 62; (1995) 184 CLR 501 at 512 – 513, 535.
• It was not necessary, as was held by Heerey J, to find that the use of s 61 in the way that it was in this case was motivated by ‘personal animus’ against the appellant. The power to stay criminal proceedings on the ground that they constitute an abuse of process is not confined to circumstances giving rise to unfairness or oppression to the accused (citing R v Brown (1989) 17 NSWLR 472 at 478G – 479G). It can be an abuse of process for the prosecution to charge an offender with a less serious offence than that which he or she had allegedly committed; or to use s 60 in substitution for or on the same alleged facts together with a substantive offence under another section of the Discipline Act. A Defence Force magistrate has a clear legal obligation to prevent a patent abuse of process and the exercise of powers recording the conviction in the present case by the Defence Force magistrate was an error of law.
159 It will be convenient to consider ground 2 in conjunction with grounds 3 and 5(b)(i) of the appeal.
160 By ground 3, the appellant contends that the Tribunal should have held that the Defence Force magistrate erred in law since it was an abuse of process to permit the appellant to be charged and convicted under the Discipline Act in circumstances where there had been extraordinary and unexplained delay between the commission of the alleged offence in 1996 and the hearing before the Defence Force magistrate on 10 March 2003; and where, at the time that the appellant was charged in 2002 with an offence against s 61 of the Discipline Act, s 96 prohibited him being charged with an offence against either s 33(a) or s 34 of the Discipline Act.
161 By ground 5(b)(i), the appellant contends that the Tribunal erred in law by failing to take into account the fact that the appellant’s conviction resulted in a miscarriage of justice and should be quashed because he was not fully advised of his right to raise each of the matters set out above and have them determined by a Defence Force magistrate expeditiously; and, in the premises, his right to plead not guilty.
162 In support of these grounds, the appellant submits that:
• The basis upon which proceedings might be stayed are not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the party being afforded a fair hearing. Proceedings can and should be stayed if the continuation of them would involve unacceptable injustice or unfairness (citing Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378).
• According to the charge sheet, the alleged offence occurred ‘on a date unknown between 31 July 1996 and 1 September 1996’. There can be no doubt that the elapse of almost seven years by the time of the hearing before the Defence Force magistrate would have dramatically reduced the probative value of the witnesses’ evidence. (As mentioned), it was the Defence Force magistrate’s ‘very strong view that the delay [was] inexcusable’. Heerey J also criticised the delay.
163 In my opinion, the Defence Force magistrate should have considered whether, in the unusual circumstances of this case, a stay of proceedings should have been granted.
164 It will be recalled that in Re Tracey, Brennan and Toohey JJ held (at 570) that proceedings may be brought ‘if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline,’ and that in the application of this test, ‘much depends upon matters of impression and degree, especially on the needs of service discipline’. It will further be recalled that their Honours said (at 570 – 571) that the test was an objective one, and that it must be applied by those (including a convening authority) in whom the Discipline Act vests certain procedural powers, who may have a discretion to decide whether or not a step in proceedings ‘should be taken’.
165 In my opinion, these observations are pertinent here. Yet, the proceedings before the Defence Force magistrate indicated that no real, or any, consideration was given to the responsibilities carried by the convening authority here, in endowing the proceedings with the specific purpose described by Brennan J and Toohey J; that is to say, of substantially serving the purpose of maintaining or enforcing service discipline. In particular, no proper consideration was then given to the question whether, by virtue of the long delay in prosecution, and the impact of that delay on the maintenance and enforcement of service discipline, a stay of proceedings should have been granted.
166 The power to stay criminal proceedings, permanently if necessary, to prevent an abuse of the court’s process exists in order to ensure that its processes are used fairly by State and citizen alike. The power is available to every court of justice (see R v Carroll [2002] HCA 55; (2002) 77 ALJR 157 per McHugh J at [145]). The statutory framework for taking this objection is contained within s 141 of the Discipline Act. Examples may be given of the width of the court’s power.
167 One example of abuse by the Crown in manipulating or misusing procedural practices in criminal proceedings may be seen in Rona v District Court (SA) (1995) 77 Crim R 16, where King CJ said (at 18 – 19):
‘...That the power of a Court to stay criminal proceedings for abuse of process includes the power to stay permanently, has been authoritatively settled; ... . Although the cases have been mostly concerned with preventing the prosecution of proceedings which will result in an unfair trial, ...which is strictly speaking a distinct rubric from that of abuse of process, and with preventing the prosecution of proceedings brought for an improper purpose, ..."it is not possible to state exhaustively all the categories of abuse of process" .... The underlying principle was stated in wide terms in the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ in Williams v Spautz at 520; 437:
"As Lord Scarman said in Reg v Sang [1979] UKHL 3; [1980] AC 402, at 455; ... every court is ‘in duty bound to protect itself’ against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J referred to them in Moevao v Department of Labour [1980] 1 NZLR 464, at 481 in a passage which Mason CJ quoted in Jago [ [1989] HCA 46; (1989) 168 CLR 23], at 30. The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice."
The remedy may be granted where "the prosecutor can be said to have manipulated or misused the rules of procedure"; R v Derby Crown Court; Ex parte Brooks (1985) 80 Cr App R 164 at 168; R v Horsham Justices; Ex parte Reeves (1982) 75 Cr App R 236, R v Brentford Justices; Ex parte Wong (1981) 73 Cr App R 67.
Case management rules are now essential equipment for courts exercising criminal jurisdiction, just as they are for Courts exercising civil jurisdiction.’
168 In Rona, a stay of a criminal prosecution was granted, before trial, on the ground that the Crown had misused pre-trial procedural directions.
169 Another example of an abuse of process, perhaps more analogous to the case now advanced by the appellant, is Whitten v Hall (1993) 29 NSWLR 680. The Justices Act 1902 (NSW) (s 56) allowed an information to be ‘laid or made at any time within six months ...’ from the time the matter arose, but there was no provision about when the summons should issue. It was held that it is an abuse of process to lay an information before a decision to prosecute is made and to delay the issue of the summons to allow further information to be collected.
170 Campbell J said (at 685):
‘Mr Lakatos has put that there has been no relevant prejudice to the plaintiff, in particular because he does have his own analysis. Further, he submitted that there has been no deliberate manipulation by the prosecution: see R v Derby Crown Court; Ex parte Brooks (1984) 80 Cr App R 164.
In R v Newcastle-upon-Tyne Justices: Ex parte John Bryce (Contractors) Ltd [1976] 1 WLR 517; [1976] 2 All ER 611, May J, who gave the judgment with which the other two judges agreed, said (at 520; 614):
"In my view the six months’ limitation provision in section 104 of the Magistrates’ Court Act 1952 is to ensure that summary offences are charged and tried as soon as reasonably possible after their alleged commission, so that the recollection of witnesses may still be reasonably clear, and so that there shall be no unnecessary delay in the disposal by magistrates’ courts throughout the country of the summary offences brought before them to be tried."
I respectfully agree. I would, however, add that one effect, if not a purpose, of the provision, is to allow persons who might be involved in the type of offences to which this limitation applies to put them behind them after a reasonably short and defined time.
In my view the events which occurred in this case, albeit not knowingly intended to be so by the first defendant and those who gave him his instructions, amounted to an abuse of process of an order such that it is a proper exercise of my discretion to permanently stay the proceedings.’
171 Whitten may also be seen as an application of the principle that ‘whatever is prohibited by law to be done directly cannot legally be effected by an indirect and circuitous contrivance’ (see, H Broom, A Selection of Legal Maxims, 10th ed, Sweet & Maxwell, London (1939) at 315; Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 per Dixon J at 350; Container Terminals Australia Ltd v Xeras (1991) 23 NSWLR 214 at 217 and the cases there cited).
172 None of these questions was properly raised before the Defence Force magistrate. In my opinion, they should have been put to him, in the form of an application brought under s 141(5) of the Discipline Act, seeking a direction that the interests of justice required that the proceedings be permanently stayed.
173 In Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, Gibbs CJ and Mason J said (at 95 – 96):
‘It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite another thing to say the courts are powerless to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice. The courts exercise no control over the Attorney-General’s decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial.’
174 So here, it may be said that, even if it was technically open to the convening authority to lay a charge under s 61, the Defence Force magistrate was not powerless to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which would result in a trial which is unfair, when judged by reference to accepted standards of justice.
175 In my opinion, although some prima facie evidence in this connection is provided in the appellant’s affidavit (pars 6 – 8, cited above), the whole question of abuse of process should be remitted back to a Defence Force magistrate to decide finally whether a stay of the proceedings ought to be granted (see, as to the similar course taken in Barton, above, per Gibbs CJ and Mason J at 103).
Grounds 4, 5(a), (b)(ii) and 6
176 In these grounds, the appellant seeks, in essence, to challenge the Tribunal’s finding that he had not been placed under pressure to plead guilty. In view of my conclusion, based on grounds 2, 3 and 5(b)(i), that the matter be remitted, it is not necessary for me to consider this challenge.
177 In these grounds, the appellant now seeks, in essence, to challenge in this Court the constitutional validity of s 61. However, as has been seen, the High Court has rejected similar challenges on several recent occasions. It is not, in my opinion, a claim which this Court can entertain.
178 I would order that:
1. The appeal be allowed in part, but with costs.
2. The orders made by the Defence Force Disciplinary Tribunal be set aside; in lieu thereof, the appeal to that Tribunal be allowed, and that the orders made by the Defence Force magistrate be set aside; and in lieu thereof, order that the matter be remitted back to a different Defence Force magistrate to decide, in accordance with this judgment, whether a stay of proceedings should be granted.
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I certify that the preceding one hundred and thirty (130) numbered
paragraphs are a true copy of the Reasons for Judgment herein of
the Honourable
Justice Beaumont.
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Associate:
Dated: 31 May 2004
ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
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BETWEEN:
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MICHAEL WILLIAM HOFFMAN
APPELLANT |
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AND:
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CHIEF OF ARMY
RESPONDENT |
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JUDGES:
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BLACK CJ, BEAUMONT, WILCOX, LINDGREN AND GYLES JJ
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DATE:
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31 MAY 2004
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
LINDGREN J:
179 I have had the benefit of reading drafts of the reasons for judgment of Black CJ, Wilcox and Gyles JJ and of Beaumont J, and am relieved of the necessity of summarising the background to the appeal.
Ground of appeal 1 – the construction question
180 I agree with Black CJ, Wilcox and Gyles JJ in relation to the first ground of appeal, and add the following observations.
General
181 The historical background to the relationship between military law and the general law is recounted in Re Tracey; ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 (‘Tracey’) at 541-547 per Mason CJ, Wilson and Dawson JJ, and at 554-563 per Brennan and Toohey JJ. The approach of English law has long been that members of the armed forces are amenable to the ordinary criminal law enforced in the ordinary criminal courts, and that military law creates an additional set of rights and duties which are enforced in special courts: Groves v The Commonwealth [1982] HCA 21; (1981) 150 CLR 113 at 125; Tracey per Mason CJ, Wilson and Dawson JJ at 546, per Brennan and Toohey JJ at 575-576, per Deane J at 585-586; but cf Gaudron J at 599-600.
182 It was never in question in the present case that Major Hoffman was amenable to Queensland’s Criminal Code (‘the Code’). The misdemeanour of unlawful assault was provided for by s 335 of the Code with a maximum penalty of imprisonment for one year -the period was increased to three years by s 56 of the Criminal Law Amendment Act 1997 (Qld) (s 245 of the Code defined ‘assault’, and s 246 provided that an assault was unlawful unless it was authorised or justified or excused by law). The misdemeanour of unlawful assault was a ‘civil court offence’ within s 3(1) of the Defence Force Discipline Act 1982 (Cth) (‘the Discipline Act’).
183 Indeed, in Tracey it was held that ss 190(3) and (5) were invalid as being beyond the legislative power conferred on the Commonwealth Parliament by s 51(vi) of the Constitution, because they interfered with the exercise by the ordinary courts of their general criminal jurisdiction. Accordingly, subject to any operation of the general law principles of autrefois convict and autrefois acquit, conviction or acquittal before a Defence Force Magistrate would not prevent the laying and prosecution of a charge against Major Hoffman for the misdemeanour of unlawful assault under the Code in an appropriate Queensland ‘civil court’ (in the Discipline Act, the expression ‘civil court’ was used to mean ‘a federal court or a court of a State or Territory’: s 3(1)). Section 144 of the Discipline Act, however, provided that acquittal or conviction of a service offence before a service tribunal, or of a civil court offence before a civil court (or of an overseas offence before an overseas court) rendered the person acquitted or convicted not liable to be tried by a service tribunal for a service offence that was substantially the same offence.
184 The purpose of the Discipline Act is ‘to create a disciplinary code for the promotion of the efficiency, good order and discipline of the defence forces and no more’: McWaters v Day [1989] HCA 59; (1989) 168 CLR 289 at 297, citing Tracey at 538. That is the purpose of s 61, as well as of ss 33 and 34 of the Discipline Act. The Constitutional underpinning of all three sections is s 51(vi), rather than Ch III, of the Constitution: Tracey; Re Nolan; ex parte Young [1991] HCA 29; (1991) 172 CLR 460.
185 The question to be resolved is one of the proper construction of provisions within the same Act, with the same purpose and supported by the same Constitutional provision. The provisions are those relating to the two service offences created by ss 33 and 34(1), and the single general service offence created by s 61, of the Discipline Act. All three are service offences created by the Discipline Act.
Legislative history
186 Section 55 of the Defence Act 1903 (Cth) (‘the Defence Act’), in its original form, provided:
‘55. The Military Forces shall at all times, while on active service, be subject to the Army Act save so far as it is inconsistent with this Act; but so that the regulations may prescribe that any provisions of the Army Act shall not apply to the Military Forces.’
The expression ‘Army Act’ appearing in this provision was defined in s 4 of the Defence Act to mean the Imperial Act so called (this was the Army Act 1881 (UK) (44 & 45 Vict c58) and any Act amending, or in substitution for, that Act and for the time being in force.
187 Section 55 was amended over the years, and immediately prior to the commencement of the relevant provisions of the Discipline Act on 3 July 1985, it provided:
‘The Army shall at all times, whilst on war service, whether within or without the limits of Australia, be subject to the Army Act save so far as it is inconsistent with this Act and subject to such modifications and adaptations as are prescribed, including the imposition of a fine not exceeding $40 for an offence either in addition to or in substitution for the punishment provided by the Army Act, and the increase or reduction of the amount of a fine provided by the Army Act.’
The reference to ‘the Army Act’ was still to the Army Act 1881 (UK), as in force on 29 October 1956, even though the Army Act 1955 (UK) had been enacted in the meanwhile with a commencing date of 1 January 1957.
188 Neither of the provisions set out above would have applied in the circumstances of the present case. ‘Active service’ and ‘war service’ were defined so as to be referable, in various ways, to times of war or to a state of war. A member of the Army, such as Major Hoffman, who was within Australia and not on war service, would have been subject only to the specific offence provisions of the Defence Act and of the Australian Military Regulations, as well, of course, as to the ordinary criminal law of the State of Queensland.
189 From the beginning, the Army Act 1881 (UK) created both specific service offences, and a general service offence by reference to ‘the law of England’. Thus, immediately prior to the commencement of the Discipline Act, s 41 of the Army Act 1881 (UK) provided, relevantly, as follows:
‘41. Subject to such regulations for the purpose of preventing interference with the jurisdiction of the civil courts as are in this Act after mentioned, every person who, whilst he is subject to military law, shall commit any of the offences in this section mentioned shall be deemed to be guilty of an offence against military law, and if charged under this section with any such offence (in this Act referred to as a civil offence) shall be liable to be tried by court-martial, and on conviction to be punished as follows; that is to say,
(1) If he is convicted of treason, be liable to suffer penal servitude, or such less punishment as is in this Act mentioned; and
(2) If he is convicted of murder, be liable to suffer penal servitude; and
(2A) If he is convicted of an offence under the Treachery Act, 1940, be liable to suffer penal servitude;
(3) If he is convicted of manslaughter or treason-felony, be liable to suffer penal servitude, or such less punishment as is in this Act mentioned; and
(4) If he is convicted of rape, be liable to suffer penal servitude, or such less punishment as is in this Act mentioned; and
(5) If he is convicted of any offence not before in this section particularly specified, which when committed in England is punishable by the law of England, be liable, whether the offence is committed in England or elsewhere, either to suffer such punishment as might be awarded to him in pursuance of this Act in respect of an act to the prejudice of good order and military discipline, or to suffer any punishment assigned for such offence by the law of England ...’
190 It is noteworthy that ss 70(1), (2) and (6) of the Army Act 1955 (UK) provide:
‘70 (1) Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against this section.
(2) In this Act the expression "civil offence" means any act or omission punishable by the law of England or which, if committed in England, would be punishable by that law; and in this Act the expression "the corresponding civil offence" means the civil offence the commission of which constitutes the offence against this section.’
‘(6) A person subject to military law may be charged with an offence against this section notwithstanding that he could on the same facts be charged with an offence against any other provision of this Part of this Act.’
No provision to the effect of subs (6) was taken into the Discipline Act by the Australian Parliament, even though that subsection had been inserted in the United Kingdom Act of 1955 by the Armed Forces Act 1971 (UK) s 34(1).
191 The limitation that a member of the Army must be serving outside Australia, or on war service within Australia, noted at [10] above, did not apply to members of the Navy or Air Force: they were made triable with offences against the ordinary laws of England generally, and, in the case of the Navy, also with offences against the laws of the Commonwealth (see the Explanatory Memorandum which accompanied the Bill for the Discipline Act (‘the Explanatory Memorandum’) at par [584]).
192 The introduction of the Discipline Act was preceded by a report in 1973 of a Working Party on the ‘Defence Force Disciplinary Code’. This report recommended a single disciplinary code relating to Army, Navy and Air Force. Accordingly, the difference just mentioned, as between the Army on the one hand and the Navy and the Air Force on the other, was to disappear. The report also noted that:
‘Disciplinary codes traditionally rely on the ordinary criminal law for the less frequently committed criminal offences. One of the more striking anomalies of the present service codes is their dependence on the criminal law of England. We have proposed ... to substitute the criminal law of the Australian Capital Territory.’ (my emphasis)
193 The Explanatory Memorandum noted that these two changes were adopted in the Bill. The expression ‘Territory offence’ was defined in s 3(1) of the Discipline Act, as originally enacted, by reference to the Australian Capital Territory (‘ACT’), rather than, as now, by reference to the Jervis Bay Territory (‘JBT’).
194 Major Hoffman was charged with having committed an offence ‘on a date unknown, between 31 July 1996 and 1 September 1996’. At that time s 4A of the Jervis Bay Territory Acceptance Act 1991 (Cth) provided that, subject to that Act, ‘the laws ... in force from time to time in the [ACT] [were], ... in force in the [JBT] as if the [JBT] formed part of the [ACT]’. This provision was not much different from s 4 of that Act in its original form (No 19 of 1915), which provided that the JBT was to be annexed to and be deemed to form part of the ACT ‘to the intent that all laws, ordinances and regulations ... from time to time in force in the [ACT] [should] so far as applicable apply to and be in force in the [JBT]’. In 1915, it was contemplated that only laws, ordinances and regulations of the Commonwealth would be made for the ACT: self-government of the ACT was not in prospect.
195 At the time of the alleged offence by Major Hoffman at some time between 31 July 1996 and 1 September 1996, the definition of ‘Territory offence’ in s 3(1) of the Discipline Act referred to ‘(b) an offence punishable under the Crimes Act, 1900 of the State of New South Wales, in its application to the [JBT]’. As will appear below, the Crimes Act 1900 of the State of New South Wales was not applicable in the JBT at that time: the (ACT) Crimes Act 1900 was.
196 The ACT became self-governing in 1988 by the operation of the Australian Capital Territory (Self-Government) Act 1988 (Cth). Section 22 of that Act gave the ACT Legislative Assembly power to make laws for the peace, order and good government of the ACT. Subsection 34(4) of that Act had the effect that the Crimes Act 1900 (NSW) continued to apply in the ACT, but was taken to be a law made by the ACT Legislative Assembly, and could be amended or repealed by that Legislative Assembly.
197 Section 3 of the Crimes Legislation (Status and Citation) Act 1992 (‘the CL(S&C) Act’), an Act of the ACT Legislative Assembly, which was gazetted and commenced on 28 March 1992, provided that the Crimes Act 1900 (NSW) (‘the applied State Act’), in its application in the ACT immediately before the commencement of the CL(S&C) Act, was to be ‘taken to be, for all purposes, a law made by the Legislative Assembly as if the provisions of the applied State Act had been re-enacted in an Act passed by the Assembly and taking effect on the commencement of [the CL(S&C) Act]’. Section 4 of the CL(S&C) Act provided that the applied State Act might be ‘cited as the Crimes Act 1900’. This last Act has been referred to variously as the (ACT) Crimes Act 1900 and as the Crimes Act 1900 (ACT). It is this (ACT) Crimes Act 1900 which s 4A of the Jervis Bay Territory Acceptance Act 1915 (Cth) caused to be in force in the JBT at the time of Major Hoffman’s alleged offences in 1996. The terms of the charge against Major Hoffman correctly referred to the Crimes Act 1900 (ACT). The problem was that the definition of ‘Territory offence’ in s 3(1) of the Discipline Act continued to refer, at the time of Major Hoffman’s alleged offence in 1996, to an offence punishable under the ‘Crimes Act, 1900 of the State of New South Wales, in its application to the [JBT]’. At the time of Major Hoffman’s alleged offence in 1996, the Crimes Act 1900 of the State of New South Wales did not apply to the [JBT].
198 The discrepancy was addressed by the Defence Legislation Amendment Act (No 1) 1996 (Cth) (No 56, 1996) (assented to on 8 November 1996) which:
• amended the definition of ‘Territory offence’ by substituting for the words just quoted the words ‘Crimes Act 1900 of the Australian Capital Territory, in its application to the Jervis Bay Territory’; and
• provided that this amendment was ‘taken to have commenced on 28 May 1992’.
Provisions of the Discipline Act relating to the two service offences created by ss 33 and 34(1)
199 Sections 33 and 34(1) of the Discipline Act provided, relevantly, as follows:
‘33. A person, being a defence member ... who, on service land ...:
(a) assaults another person;
(b) ...;
(c) ...; ...
(d) ...;
is guilty of an offence for which the maximum punishment is imprisonment for 6 months.’
‘34. (1) A defence member who [anywhere] assaults ...a member of the Defence Force who is of inferior rank to the defence member is guilty of an offence for which the maximum punishment is imprisonment for 2 years.’
(A defence to the s 34(1) offence is provided for in s 34(2).)
200 The time within which a person may be charged with an offence against s 33 or s 34 was fixed by s 96(1):
‘96 (1) A person shall not be charged with:
(a) an offence against this Act (other than subsection 61(1)) ...;...
(b) ...;
after the expiration of a period of 3 years after the time at which the offence is alleged to have been committed.’
Subsections (2) and (3) of s 96 qualified this provision as follows:
‘(2) Notwithstanding anything in subsection (1), a person may be charged with:
(a) an offence against section 15, 16, 20 or 22; or
(b) a service offence that is an ancillary offence in relation to an offence referred to in paragraph (a);
at any time.
(3) A reference in subsection (1) to a period shall be read as not including
a reference to a period during which the person:
(a) was a prisoner of war;
(b) was absent without leave; or
(c) was serving a sentence of imprisonment.’
Provisions of the Discipline Act relating to the service offence created by s 61(1)
201 Subsections 61(1) and (2) of the Discipline Act were as follows:
’61. (1) A person, being a defence member ... , is guilty of an offence if:
(a) ...
(b) ...
(c) the person does or omits to do (whether in a public place or not) outside the Jervis Bay Territory an act or thing the doing or omission of which, if it took place (whether in a public place or not) in the Jervis Bay Territory, would be a Territory offence.’
‘(2) The punishment for an offence against subsection (1) is:
(a) if the relevant Territory offence is punishable by a fixed punishment – that fixed punishment; or
(b) in any other case – a punishment not more severe than the maximum punishment for the relevant Territory offence.’
202 By reason of the definition of ‘Territory offence’ in s 3(1) of the Discipline Act and the legislative provisions referred to by Beaumont J, the offence of common assault, being the offence described in s 26 of the Crimes Act 1900 (ACT), was a ‘Territory offence’. That section was as follows:
‘A person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for two years.’
In so far as ss 61(1) and (2) refer to s 26 of the Crimes Act 1900 (ACT), the punishment for an offence against s 61(1) was not to exceed imprisonment for two years.
203 The time within which a person might be charged with an offence against s 61(1) was provided for in s 96(4):
‘96. (4) A person shall not be charged with an offence against subsection 61(1) ...if the time that has elapsed since the offence is alleged to have been committed equals or exceeds the period of time that would bar trial by, or institution of proceedings in, a court exercising jurisdiction in or in relation to the Jervis Bay Territory for the relevant Territory offence.’
There was no period of time that would bar trial by, or institution of proceedings in, a court exercising jurisdiction in or in relation to the JBT for the crime of common assault described in s 26 of the Crimes Act 1900 (ACT). Therefore, there was no time bar to the charging and prosecuting of the service offence created by s 61(1) in so far as that subsection referred to s 26 of the Crimes Act 1900 (ACT).
204 The appellant was, at the relevant time (between 31 July 1996 and 1 September 1996) a Major in the Australian Regular Army. The person whom he was alleged to have assaulted, Captain Paul Barrie Higgins, was a Captain in that Army. Major Hoffman was ‘a defence member’ as defined in s 3(1) of the Discipline Act and Captain Higgins was ‘a member of the Defence Force who [was] of inferior rank to [Major Hoffman]’. According to the charge sheet, the assault took place at Shoalwater Bay Training Area, Queensland (on a date unknown within the period mentioned). That Training Area was ‘service land’ because it was used or occupied by the Defence Force or by an institution of the Defence Force (see the definition of ‘service land’ in s 3(1) of the Discipline Act).
205 It follows that the charge sheet alleged facts which showed, not only an offence against s 61(1), but also offences against ss 33 and 34(1) of the Discipline Act.
206 By reason of ss 33 and 96(1) of the Discipline Act:
• a defence member who assaulted any other person on service land committed a service offence; • the defence member was liable to imprisonment for a maximum period of six months; and • there was a three-year time bar on charging the defence member with the offence against s 33.
207 By reason of ss 34(1) and 96(1) of the Discipline Act:
• a defence member who (anywhere) assaulted a member of the Defence Force of inferior rank (‘an Inferior’) committed a service offence; • the defence member was liable to imprisonment for a maximum period of two years; and • there was a three year time bar on charging the person with the offence against s 34.
208 By reason of ss 61(1) and (2) (invoking s 26 of the Crimes Act 1900 (ACT)) and 96(4) of the Discipline Act:
• a defence member who (anywhere) assaulted any other person committed a service offence; • the defence member was liable to imprisonment for a maximum period of two years; and • there was no time bar on charging the defence member with the offence against s 61(1).
Is there inconsistency?
209 According to s 33 of the Discipline Act, the maximum penalty that could be imposed on a defence member for assaulting anyone on service land was imprisonment for six months, but according to s 61(2), the maximum penalty that could be imposed on a defence member for assaulting anyone anywhere was imprisonment for two years. The two provisions are inconsistent. The additional nexus with Defence present in s 33 makes no difference. The ‘assault by a defence member anywhere’ provided for in s 61(1) is not a more serious offence than the ‘assault by a defence member on service land’ provided for in s 33 – a factor which might have been seen to attract a heavier penalty.
210 In s 96(1) the legislature expressed an intention that a defence member should not be able to be charged with having assaulted a person on service land (s 33) later than three years after the alleged assault, yet s 96(4) allows such a defence member to be charged under s 61(1) (by reference to the offence described in s 26 of the Crimes Act 1900 (ACT)) at any time. In this respect, ss 96(1) and 96(4) are inconsistent.
211 I turn now from s 33 to s 34(l). According to s 34(1), the maximum penalty that could be imposed on a defence member who assaulted (anywhere) an Inferior was imprisonment for two years. According to s 61(1) the maximum penalty that could be imposed on a defence member for assaulting anyone was also imprisonment for two years. Notwithstanding the identical maximum terms of imprisonment, there is inconsistency, because inconsistent legislative intentions are exposed. The reason is that ss 33 and 34(1), read together, reveal a legislative intention that assault by a defence member of an Inferior was to be treated as a more serious offence than assault by a defence member of persons in general and was to attract a greater maximum penalty. This policy is defeated by the intention expressed in s 61(1).
212 Subsection 96(1) provided, in effect and relevantly, that a defence member was not to be charged with having assaulted an Inferior (s 34(1)) more than three years after the alleged assault, yet s 96(4) provided, in effect and relevantly, that a defence member might be charged under s 61(1) of the Discipline Act (by reference to s 26 of the Crimes Act 1900 (ACT)) with having assaulted (anywhere) any person (including an Inferior) at any time. In this respect, ss 96(1) and 96(4) are inconsistent with each other.
213 It is not possible to construe the provisions to which I have referred as working harmoniously towards the same goal: cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
How is the inconsistency to be resolved?
214 Two competing answers to this question have been suggested. Major Hoffman submits that ss 61(1) and 96(4) are ‘general’ provisions which must yield to the ‘specific’ provisions of ss 33, 34(1) and 96(1). He calls in aid the maxim generalia specialibus non derogant. The respondent submits that the legislative intention is that it is a matter of prosecutorial discretion under which provision to lay a charge. I do not think the latter solution available in a case of irreconcilably conflicting expressions of the legislature’s intention.
215 The generalia specialibus maxim has a particular application when the question is whether a specific provision is to be regarded as repealed by an inconsistent general provision of a later enactment: see, for example, Pearce and Geddes, Statutory Interpretation in Australia (5th ed, Butterworths, 2001) at [7.18]–[7.21]; Bennion, Statutory Interpretation (4th ed, Butterworths, 2002) at 255-257; Craies on Statute Law (7th ed, Sweet & Maxwell, 1971) at 377-380. The same general means of resolving inconsistency may, however, also be invoked where the inconsistency occurs within the one enactment: cf Pearce and Geddes at [4.30]; Bennion at 998-999; Craies at 222-223, and cases referred to in those works, such as, Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation (No 2) (1980) 44 FLR 455. If the legislature can be seen to have provided for the specific kind of factual circumstances that have occurred, its ‘special’ provision for them will prevail over an inconsistent general provision in the same Act, within which those circumstances also fall. ‘The generalia specialibus maxim, ... , is not a technical rule peculiar to English statutory interpretation. Rather it represents simple common sense and ordinary usage’: Effort Shipping Co Ltd v Linden Management SA (‘The Giannis NK’) [1998] UKHL 1; [1998] 1 All ER 495 at 513 per Lord Cooke.
216 No doubt the reason why the generalia specialibus maxim has had a particular application in the context of separate Acts is that the legislature is more likely to have overlooked an inconsistent specific provision located somewhere within the vast corpus of earlier statutes, than it is to have overlooked an inconsistent specific provision within the same statute.
217 Once it is accepted that the approach indicated by the maxim may be invoked to resolve internal inconsistency, there is no reason why cases of external inconsistency may not illuminate those, such as the present case, of internal inconsistency. The Danube II [1921] P 183, concerned the Public Authorities Protection Act 1893 (UK) and the Maritime Conventions Act 1911 (UK). Section 1 of the earlier Act provided for a limitation period of six months in respect of, inter alia, any action, prosecution or proceeding against persons in respect of an act done in intended execution of any Act of Parliament, public duty or authority. Section 8 of the later Act, however, provided for a limitation period of two years for any action to enforce any claim against a vessel or her owners in respect of damage to, or loss of, another vessel. An action was brought against the master of tug which was in the service of the Crown. It was towing a battle target to a place for the practice of the fleet. Allegedly because of the negligent navigation by the master of the tug, the battle target collided with a ship belonging to the plaintiffs and sank her.
218 The Court of Appeal held that the six-month time bar availed the master. The Court so held, disavowing any finding of inconsistency, preferring to say that under the later Act there was a general time bar of two years, while under the earlier Act there was a special time bar of six months in the particular circumstances provided for in that Act. With respect, I would have preferred to characterise the two provisions as inconsistent, but this is not of present importance.
219 The Court of Appeal’s conclusion would have been the same if the two provisions had occurred within the one Act.
220 Sections 33 and 34(1) are specific provisions and s 61(1) is a general provision for the purposes of the application of the maxim. All three provisions are concerned with conduct by, relevantly, defence members. The concern of s 33 is specifically with assaults at places of certain kinds while the concern of s 34 is specifically with such assaults upon an Inferior. The concern of s 61(1), by contrast, is with nothing less than all Territory offences, a notion which happens to include the offence of common assault.
221 This ‘specific-general’ relationship between s 33 and 34(1) on the one hand and s 61(1) on the other, also suggests a conclusion that s 96(1) is a specific provision and s 96(4) a general one for present purposes. In any event, that the legislature attended specifically to the question of the appropriateness of the three-year limitation period for the ss 33 and 34(1) offences is shown by the qualification of s 96(1) found in ss 96(2) and (3) (set out at [20] above). In contrast, s 96(4) (set out at [25] above) adopts, by reference and without qualification, whatever time bars may happen to apply to the many Territory offences.
222 With respect, I do not share Beaumont J’s view that the course of High Court authority to which his Honour refers precludes a ‘reading down’ of s 61. The process of construction in question is one which makes s 61 yield to ss 33 and 34(1) in order to resolve the inconsistency. The High Court has not had occasion to address the question of the resolution of inconsistency between constitutionally valid offence provisions of the Discipline Act.
223 For the above reasons, and the reasons which Black CJ, Wilcox and Gyles JJ have given, I agree with their conclusion in relation to the first ground of appeal.
Grounds of appeal 2–9 (inclusive)
224 In relation to these grounds too, I agree with the reasons and conclusions of Black CJ, Wilcox and Gyles JJ, and add this observation.
225 Senior counsel for Major Hoffman submitted that once the three-year period for the charging of an offence against s 33 or s 34(1) had expired, it became an abuse of process to charge Major Hoffman with having committed an offence against s 61(1). But the abuse of process argument must assume, contrary to senior counsel’s argument on the first ground of appeal and my acceptance of it, that there is no inconsistency, and that it was a matter of legitimate prosecutorial discretion whether to charge under s 33, 34(1) or 61(1). On that assumption, the expiry of the three year period would not, without more, characterise the charging of an offence against s 61(1) as an abuse of process.
CONCLUSION
226 For their reasons and for mine above, I agree with the conclusion reached, and orders proposed, by Black CJ, Wilcox and Gyles JJ.
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I certify that the preceding forty-eight (48)
numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. |
Associate:
Dated: 31 May 2004
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Counsel for the Appellant:
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Mr A W Street SC, Mr D A McLure
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Solicitor for the Appellant:
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Shearman Lawyers
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Counsel for the Respondent:
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Mr R R S Tracey QC, Dr J G Renwick
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Solicitor for the Respondent:
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Australian Government Solicitor
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Date of Hearing:
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11 February 2004
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Date of Judgment:
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31 May 2004
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