DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Betts v Chief of Army [2018] ADFDAT 2
ORDERS
Appellant | ||
AND: | Respondent | |
DATE OF ORDER: | 10 July 2018 |
WHERE MADE: | MELBOURNE |
THE TRIBUNAL ORDERS THAT:
1. Leave be granted to the appellant to appeal to the Tribunal on the grounds referred to in s 23(1)(a) and (d) of the Defence Force Discipline Appeals Act 1955 (Cth) insofar as those grounds do not involve questions of law.
2. The appeal be dismissed.
1 The appellant appeals from a decision of a Defence Force Magistrate (“the DFM”), made on 22 March 2017, finding him guilty of four counts of obtaining a financial advantage contrary to s 61(3) of the Defence Force Discipline Act 1982 (Cth) (“the DFDA”) and s 135.2(1) of the Schedule to the Criminal Code Act 1995 (Cth) (“the Criminal Code”) by reason of his failure to advise Defence Housing Australia (“DHA”) in writing, in accordance with cl 1.5.2(4) of Defence Determination 2005/15 (“the Determination”), that he was subletting part of his residence in Paddington, in the State of Queensland (“the premises”) to Mr Chris Williams, who was not his dependant, and, as a result, received overpayments of rental allowance (“RA”) of $27,439.56 in the period between 26 October 2011 and 6 January 2015, knowing or believing that he was not eligible to receive that financial advantage.
2 The first charge relates to the period between 26 October 2011 and 11 April 2012; the second to the period between 12 April 2012 and 22 April 2013; the third to the period between 23 April 2013 and 27 March 2014; and the fourth to the period between 28 March 2014 and 6 January 2015. Separate charges relating to different periods were preferred because, at the start of each of the second, third and fourth periods, the appellant had submitted an online RA review in which he represented that there had been no change to his status as the sole occupier of the premises (namely, as someone who was “not sharing”).
3 The circumstances which gave rise to the charges were the subject of substantial agreement. An agreed statement of facts was tendered at trial, which read:
1. At all material times, 8226471 LTCOL Travis William Betts was, and knew he was, a Defence member within the meaning of section 3 of the Defence Force Discipline Act 1982 (Cth).
Rent allowance
2. On 7 December 2010, LTCOL Betts moved into [the premises]. This residence was a three bedroom townhouse. He applied for and was granted Rent Allowance (RA) at the Member With Dependent (MWD) rate.
3. From 5 January 2011, LTCOL Betts commenced receipt of the first fortnightly RA payment in the amount of $711.93.
4. Between 26 October 2011 and 6 January 2015, LTCOL Betts received into his personal bank account a total of $27,810.00 in payments from Mr Williams as follows:
a. 26 October to 12 September 2012 – 46 weekly payments of $150.00, totalling $6,900.00.
b. 13 September 2012 to 6 January 2015, 123 weekly payments of $170.00 from Mr Williams, totalling $20,910.00.
5. LTCOL Betts’ personal bank account is Defence Bank – Travis Betts BSB [redacted] Account Number [redacted]. All payments were received into this account under the description “DIRECT CREDIT – CHRISTOPHER WILL – 327”.
RA paid by the Commonwealth to LTCOL Betts
6. Between 6 January 2011 and 6 January 2015, LTCOL Betts received a total of $55,770.94 in RA at the MWD rate in the following amounts:
a. 6 January 2011 to 11 May 2011 – $711.93 per fortnight;
b. 12 May 2011 to 28 March 2012 – $664.38 per fortnight;
c. 29 March 2012 to 13 March 2013 – $682.15 per fortnight;
d. 14 March 2013 to 12 March 2014 – $664.99 per fortnight; and
e. 13 March 2014 to 6 January 2015 – $667.89 per fortnight.
4 The appellant’s defences included that he did not know that he was not entitled to receive the full amount of RA over the period during which Mr Williams was making payments to him, and that the payments received into his personal bank account were not contributions towards the rent of the premises.
RELEVANT LEGISLATION
5 Various provisions of the Criminal Code, the Defence Act 1903 (Cth) (“the Defence Act”) and the Determination are relevant to the issues raised on this appeal.
Criminal Code
6 The charges of obtaining a financial advantage, of which the appellant was found guilty, were preferred under s 135 of the Criminal Code.
7 Section 135.2(1) and (1A) of the Criminal Code provided, at the relevant times:
(1) A person is guilty of an offence if:
(a) the person engages in conduct; and
(aa) as a result of that conduct, the person obtains a financial advantage for himself or herself from another person; and
(ab) the person knows or believes that he or she is not eligible to receive that financial advantage; and
(b) the other person is a Commonwealth entity.
…
(1A) Absolute liability applies to the paragraph (1)(b) element of the offence.
8 Section 4.1 of the Criminal Code provides:
(1) A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, occurs.
(2) In this Code:
conduct means an act, on omission to perform an act or a state of affairs.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
9 Voluntariness is dealt with in s 4.2, which relevantly provides that conduct can only be a physical element of an offence if it is voluntary (s 4.2(1)) and that an omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing (s 4.2(4)).
10 Omissions to perform an act are the subject of s 4.3 of the Criminal Code:
An omission to perform an act can only be a physical element if:
(a) the law creating the offence makes it so; or
(b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that there is a duty to perform by a law of the Commonwealth, a State or a Territory, or at common law.
11 The scope of s 4.3(b) was expanded in 2013 to make it clear that a duty to perform an act, arising under a law of a State or Territory or under the common law, and not only under a law of the Commonwealth, is sufficient to constitute the basis of the commission of an offence by omission under s 4.3: see Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) Sch 1 item 1. This renders it unnecessary to consider any further the observations of French CJ, Gummow, Kiefel and Bell JJ in Director of Public Prosecutions (DPP) (Cth) v Poniatowska (2011) 244 CLR 408 at 421; [2011] HCA 43 at [32] to the effect that the reference to “an act that by law there is a duty to perform” in the previous form of s 4.3(b) was confined to a duty imposed by a law of the Commonwealth. In any event, as we conclude below, the relevant duty in this case was imposed by the Determination, which is a law of the Commonwealth.
12 Section 5.3 defines “knowledge” for the purposes of the Criminal Code:
A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
Defence Act
13 Part IIIA, Div 1 of the Defence Act is concerned with determinations made by the Minister in relation to remuneration, allowances and other benefits to be paid to Defence Force members and their families. At the relevant time, when the Determination was made in 2005, s 58B provided:
(1) The Minister may, by instrument in writing, make determinations, not inconsistent with this Act, the Naval Defence Act 1910 or the Air Force Act 1923, providing for and in relation to:
(a) the remuneration of members or cadets; and
(b) the payment of allowances or other pecuniary benefits (except allowances or benefits by way of remuneration) to or for members or cadets, including the payment of additional compensation to members of the Reserves to whom compensation is payable under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988; and
(c) the payment of allowances or other pecuniary benefits to or in respect of members of the families of members or cadets; and
(d) leave of absence and long service leave of members; and
(e) the provision of other benefits to or in respect of members or cadets, or to or in respect of members of the families of members or cadets; and
(f) the payment of allowances and expenses to or in respect of, and the provision of travelling facilities for, applicants for appointment or engagement as members in respect of attendance at an enlistment centre of the Defence Force or attendance for interview or examination; and
(g) deductions from the remuneration of a member or cadet from allowances or other pecuniary benefits referred to in paragraphs (b) and (c); and
(ga) payments, by way of compensation, incentives or other benefits, to:
(i) members of the Reserves; or
(ii) their dependants; or
(iii) their employers, business or professional partners or other associates; or
(iv) other persons;
in relation to the availability of the members for defence service, or for losses incurred or inconvenience suffered because of the members' absence on defence service (including losses incurred or inconvenience suffered because of the operation of the Defence Reserve Service (Protection) Act 2001); and
(h) the meanings to be attributed to words and expressions used in existing determinations and future determinations made under this section, and the circumstances in which those meanings are to apply.
…
(1A) A determination made under this section may make provision for or in relation to a matter by applying, adopting or incorporating, with or without modification:
(a) the provisions of any Act or of any regulations made under an Act or of any determination made under this section, section 58H of this Act or section 24 of the Public Service Act 1999, as in force at a particular time or as in force from time to time; or
(b) any matter contained in any other instrument or writing as in force or existing at the time when the first-mentioned determination takes effect.
(1B) A determination under this section may provide that, where an amount has been paid (whether before or after the commencement of this subsection) to a member or to a member of the family of a member under the regulations or under a determination made under this section or under Division 2, the member of the family of the member is required to pay to the Commonwealth an amount, not exceeding the first-mentioned amount, upon the occurrence of an event specified in the determination, and may provide for the manner of recovery of such an amount.
(2) Subsection (1) does not authorize the making of a determination providing for or in relation to the payment to or in respect of a member, or to or in respect of a member of the family of a member, of a benefit of the nature of a pension.
(3) A determination shall not be made providing for or in relation to the forfeiture or assignment of the whole or part of:
(a) the remuneration of a member or cadet; or
(b) allowances or other pecuniary benefits referred to in paragraph (1)(b) or (c)
…
(9) In this section, a reference to this Act does not include a reference to the regulations.
14 Regulations permitted the Minister to delegate the power to make determinations. Section 58E of the Defence Act provided, at the time that the Determinations was made, as follows:
The regulations may make provision for and in relation to the delegation by the Minister of his or her power to make determinations with respect to such of the matters with respect to which determinations may be made as are specified in the regulations.
15 In 2005 the delegation of the Minister’s power to make determinations was provided for in reg 72A of the Defence Force Discipline Regulations 1952 (Cth).
The Determination
16 The Determination is dated 20 May 2005 and was made by a delegate of the Minister. It was reproduced and published in the Defence Force’s Pay and Conditions Manual (“PACMAN”) and was the principal determination governing conditions of service within Australia and overseas at the relevant times. It dealt with a wide range of conditions of service, and had comprehensive definitions and provisions. It is no longer in force and has been replaced by Defence Determination 2016/19 (Conditions of Service).
17 Chapter 1, Part 5 of the Determination dealt with the rights and obligations of members. Clauses 1.5.1-1.5.4 and 1.5.6 (as in force at the relevant time) provided:
1.5.1 Purpose
A member must meet certain obligations when they have an entitlement. This Part sets out those obligations.
1.5.2 Change in member’s circumstances
1. Members are responsible for keeping themselves informed about their entitlements.
2. This clause applies if a member or their dependants meet both these conditions.
a. They have qualified for an entitlement.
b. There is a change in the circumstances by which they qualified.
3. The member must tell their Commanding Officer about the change as soon as practicable.
Note: This requirement helps the Commonwealth prevent overpayments being made.
4. The member must also inform the approving authority for any housing assistance that the member is in receipt of about the change as soon as practicable.
5. A member must fill in and provide the relevant form at Annex 1.5.A of their Commanding Officer as soon as practicable after any of these events.
1.5.3 Overpayment
1. This clause applies if a person has been paid more than the amount they are entitled to.
2. The person must repay to the Commonwealth the difference between their entitlement and the amount they were paid.
Example: A member is paid vehicle allowance in advance of travel. They do not travel, or they travel less than they expected to. They must repay all or part of the allowance, whichever applies.
Exception: Where tax has been deducted from an amount overpaid and the amount was paid in a previous financial year.
1.5.4 Recovery by the Commonwealth
1. This clause applies if a member must repay an overpayment of salary or allowances to the Commonwealth.
2. The Commonwealth may recover the overpaid amount from the salary and allowances that the member has been – or may be – paid. The Commonwealth still has the right to recover the overpaid amount by other means.
…
1.5.6 Member to provide evidence of payment
1. This clause applies to a member who is entitled to be reimbursed a payment they made.
2. The member must provide either of the following as evidence that they made the payment.
a. Written evidence, including any original receipts.
b. A statutory declaration if written evidence is not available.
3. The member must provide the items when they lodge their claim for reimbursement or as soon as practical after that time.
18 We note that subclauses 1.5.2(4) and (5) were added by Defence Determination 2005/52, which was made on 30 November 2005 and which commenced operation on 1 December 2005.
19 Clause 7.6.19 of the Determination provided for the calculation of a member’s entitlement to RA and the variation of the member’s RA entitlement in the event that a rental property was sublet. “Rent”, for the purposes of the clause, was taken to be the lower of the amount of weekly rent paid by the member or the approved rent ceiling for the property. The rate of RA was to be worked out using this formula. There followed a series of tables which were designed to show how the formula was to be applied. The second “[e]xample table” dealt with RA for a member without dependants or a member with dependents (separated). It provided for the calculation of RA in circumstances in which the member was “sharing” with one other person.
20 Clause 7.6.21 dealt with the calculation of RA in the event that a member with dependents sublet part of a home in respect of which the member was receiving RA.
21 Subclause 7.6.21(3) imposed an obligation on a member, who was receiving RA, to inform the Housing Management Centre Manager in writing if another person would be living in the member’s home for longer than four weeks. The clause provided for the Chief of Defence Force (“the CDF”) to consider all the circumstances in which the person was living in the home, and to decide if the member was “sub-letting” the home.
22 By cl 7.6.3 “sub-lease rent” was defined to mean “the amount of income [a] member gets as rent for any part of the rental property that is sub-let”. An example was given in these terms: “Money made by sub-letting a downstairs flat or a spare bedroom to a boarder.”
THE GROUNDS OF APPEAL
23 The appellant advanced nine grounds of appeal:
Ground 1: the DFM erred in ruling that subclause 1.5.2(4) of the Determination imposed a “legal duty” on the appellant and that failure to perform the duty was capable of being understood as “conduct” by omission for the purposes of ss 4.3 and 135.2(1) of the Criminal Code and that such conduct was capable of giving rise to criminal sanction.
Ground 2: the DFM erred in refusing the appellant’s application to amend the charge sheet so as to avoid a multiplicity of charges.
Ground 3: the DFM erred by finding that the appellant was subletting his residence to Mr Williams at relevant times.
Ground 4: the DFM erred in finding that the appellant was required to advise DHA of a change of circumstance relating to Mr Williams.
Ground 5: the DFM erred by admitting into evidence a financial statement that was said to have been improperly disclosed to investigators. This ground was abandoned during oral argument.
Ground 6: the DFM erred by amending the particulars on the charge sheet after the close of the evidence, by removing the references to “sharing” and substituting “subletting”.
Ground 7: the evidence did not support a finding that the appellant was subletting the premises at the relevant times.
Ground 8: a reasonable doubt existed as to the appellant’s knowledge or belief that he was not eligible to receive the relevant amount of RA.
Ground 9: the convictions were unsafe or unsatisfactory.
24 Grounds 1 to 4 were founded on s 23(1)(b) of the Defence Force Discipline Appeals Act 1955 (Cth) (“the DFDA Act”), which states that the Tribunal shall allow an appeal where, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction was wrong in law and that a substantial miscarriage of justice has occurred. Ground 6 was founded on s 23(1)(c), which refers to circumstances where there was a material irregularity in the course of proceedings before the DFM and a substantial miscarriage of justice has occurred. Grounds 7 and 8 were founded on s 23(1)(a), which refers to circumstance in which, having regard to the evidence, the conviction cannot be supported. Ground 9 was founded on s 23(1)(d), which provides that, in all the circumstances of the case, the conviction is unsafe or unsatisfactory.
GROUND 1
25 The appellant conceded that the Determination was a “law of the Commonwealth”. That concession was properly made, as was confirmed in Herbert v Chief of Air Force [2018] ADFDAT 1 at [53] (Tracey (President), Hiley and Garde (Members) JJ), which case was argued and decided after judgment in the present appeal was reserved.
26 The appellant also did not dispute the lawful authority of the Minister’s delegate to make the determination.
27 The appellant’s principal contention under this ground was that a failure to comply with the requirement contained in cl 1.5.2(4) of the Determination, that a member advise the DHA of any change to qualifying circumstances, could not give rise to a criminal offence. This was because the powers conferred on the Minister by s 58B of the Defence Act did not extend “to the making of criminal offences”.
28 The appellant argued that: the Determination was an instrument which had been designed for administrative purposes and did not impose legal duties on Defence members of a kind that could create criminal liability; the Determination could be made by a public servant who was the delegate of the Minister; and it could not have been Parliament’s intention, when enacting s 58B of the Defence Act, that the execution of an instrument by a public servant could create positive obligations on Defence members which, if not satisfied, could make the members liable for criminal sanctions.
29 In the alternative, it was argued that cl 1.5.2 of the Determination was void for uncertainty, vagueness or a lack of ascertainability. The appellant submitted that the terms “entitlement”, “inform”, “the approving authority”, “the change” and “as soon as practicable” found in cl 1.5.2(4) were not defined and were imprecise. Finally, it was submitted that cl 1.5.2 did not contain any enforcement mechanism (except receivers) and contained no hint of any of the penal consequences for non-compliance.
30 These arguments were advanced following the closure of the prosecution case at trial, as part of a “no case” submission by the appellant.
31 The DFM held that cl 1.5.2(4) created a legal duty for the purposes of s 4.3 of the Criminal Code. He reasoned:
The purpose of clause 1.5.2 can be regularly deduced from the note to subclause (3), while that note strictly attaches to subclause (3) it is evident the note more generally describes the purpose of the notification requirements imposed by clause 1.5.2, which, in the words of the note, is to help the Commonwealth prevent overpayments being made.
When read in context and as a whole it is apparent that clause 1.5.2(4) requires a member to inform the approving authority for any housing assistance if there is a change in the circumstances by which they qualified for an entitlement. This obligation is in addition to the obligation to notify the member’s CO. Relevantly to this matter, the approving authority for housing assistance was DHA.
Looking at subclause (4), not in isolation, but in the context of both clause 1.5.2 and the rest of the determination, and considering the apparent policy purpose behind clause 1.5.2, it is my view that the obligation imposed by subclause (4) is to notify DHA of a change of circumstances that is relevant to DHA’s decision making authority.
32 He distinguished between the creation of the duty under cl 1.5.2(4) and the criminal offence of failing to comply with the duty, which was created separately by the Criminal Code.
33 In Herbert, the Tribunal held that cl 1.5.2(4) created a duty to notify a change of circumstances and that a breach of that duty could give rise to a criminal offence pursuant to ss 4.3 and 135.2 of the Criminal Code: see at [48]-[49], [50] and [53]. For the reasons given there we consider that the DFM, in the present matter, was correct to hold that cl 1.5.2 gave rise to a legal duty which constituted a “law of the Commonwealth” for the purposes of s 4.3 of the Criminal Code. We would add that the opening phrase of s 58B(1), in providing that the Minister may make determinations providing for and in relation to the subsequently listed matters, makes clear that the delegated legislative power extends beyond making provision for payment of allowances etc, to making provisions reasonably related thereto. A provision which imposes an obligation to notify a change in a member’s circumstances relevant to eligibility for an allowance is plainly a provision “in relation to” the payment of the allowance.
34 The DFM also rejected the submissions relating to uncertainty. He ruled that:
With respect to the word “entitlement”, I am not satisfied that a member seeing the word “entitlement” in clause 1.5.2 would be unaware as to what that relates to. The Macquarie definition in the dictionary of “entitlement” is:
That to which one is entitled as part of a contract, will, employment arrangement, et cetera.
I am satisfied that when clause 1.5.2 is read as a whole in the context of the rest of the determination, a member would understand it to mean that where they are in receipt of an allowance, a pecuniary benefit or some other benefit due to their particular circumstances, that they would be under an obligation to notify if those circumstances which qualified them for that entitlement changed.
With respect to inform, the fact that the manner in which a member is to inform is not specified seems to me to be in the member’s favour, rather than a vagueness. It would allow a member to inform, relevantly, DHA orally, including both in person, over the phone, in writing by means of a signed hard copy, by email or by any other effective means.
With respect to the approving authority, the fact that the approving authority is not defined within the clause within the determination is no different from the fact that who a particular member’s commanding officer is is [sic] also not defined. It would be case or factor specific. The approving authority would be the person who approved the member’s housing assistance.
The member would be aware of this from the correspondence they received advising them that their housing assistance had been approved. If, per chance, the member was notified of the approval of their housing assistance by someone other than the actual authority who granted the approval, and that notification did not identify the actual approving authority, and so perhaps left the member with the impression that the notifier was the approver, then clause 1.5.2(4) could be construed in favour of the member, if the member informed the person who informed them of the approval.
With respect to the change… the change will relate to the changing circumstances by which the member qualified for the entitlement. By its very nature, that will be fact and case specific. I do not see any merit in that part of the objection.
…
In summary, “practicable” is not defined in the determination. It has its natural and ordinary meaning of capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible. The ordinary meaning of the word “practicable” includes at least some element of reasonableness. The phrase “as soon as practicable” should be read as “as soon as reasonably practicable”
“As soon as practicable” requires references to be made to the circumstances pertaining to the person and to the person’s capacity to comply with the obligation, as well as by reference to the obligation itself. A relevant circumstance is the ability of the [appellant]to give the notice required by the provision. This includes whether the [appellant]has all of the information that was required to be included in such a notice.
I am satisfied that the inclusion of the words “as soon as practicable” assists a person who is under an obligation to give a notice, rather than making the obligation vague or uncertain.
With respect to consequences of non-compliance, for the reasons given when finding the clause 1.5.2 does impose a legal duty, I am not persuaded that the fact the clause 1.5.2 does not of itself indicate consequences of non-compliance, makes that clause void of not capable of imposing a legal duty.
35 Substantially the same arguments were advanced before the Tribunal.
36 There can be no doubt that subordinate legislation may be held void for uncertainty: see King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184; Cann’s Pty Ltd v The Commonwealth (1946) 71 CLR 210. If a failure to comply with subordinate legislation is a basis for a criminal charge any ambiguity or doubt in relation to that subordinate legislation must be resolved in favour of the defendant: see Beckwith v The Queen (1976) 135 CLR 569 at 576 (Gibbs J) and 585 (Murphy J).
37 However, we do not accept that any or all of the elements of cl 1.5.2, about which the appellant complains, are void for uncertainty. They are expressed with sufficient clarity to enable a service member to understand that, if he or she is in receipt of a benefit such as RA and the circumstances which are relevant to entitlement to that benefit materially change, the relevant authority must be advised of that change as soon as reasonably practicable.
38 We consider that the DFM was correct to reject the challenge to the validity of cl 1.5.2(4) for the reasons which he gave.
39 Ground 1 must be rejected.
GROUND 2
40 The charge sheet contained four charges. The first charge of obtaining a financial advantage was laid under s 135.2(1) of the Criminal Code. The second, third and fourth charges each alleged obtaining financial advantage by deception contrary to s 134.2(1) of the Criminal Code. There were alternative charges, preferred under s 135.2(1), which were laid as alternatives to each of the second, third and fourth charges.
41 The appellant pleaded not guilty to all charges.
42 As has already been noted, each of the four sets of charges related to a different time period. Separate charges were preferred in relation to the later periods because, at the commencement of those periods, the appellant had submitted an online RA review in which he advised that there had been no change to his status as the sole occupier of the premises.
43 At the close of the prosecution case, the appellant made successful “no case” submissions in relation to Charges 2, 3 and 4, which were thereupon dismissed. He then applied to the DFM to amend the charge sheet. His proposal was that Charge 1 be amended to cover the whole of the period between 26 October 2011 and 6 January 2015. He contended that the overpayment figure should be amended to record the aggregate overpayment figure for the whole period. It was submitted that the alternative to the second charge should be expressed as an alternative to the first charge, as should be the alternatives to both the third and fourth charges.
44 The DFM refused this application. He did not consider that the alternative charges could become alternatives to an amended first charge, that the charge sheet was “overloaded”, or that the charge sheet was unfair or prejudicial to the conduct of the defence.
45 Under Ground 2, the appellant submitted that, because each of the four remaining charges were based on the same omission: a single charge should have been preferred; the refusal to make the amendment exposed him to “double punishment”; and the alternative charges were unduly oppressive as, had the amendment been made, he would have only confronted the possibility of one set of penalties upon conviction.
46 We do not consider that the DFM erred in refusing the appellant’s amendment application. The three alternative charges were alternatives to charges which had been dismissed. They were not alternatives to the first charge. The appellant had pleaded to each of them when arraigned.
47 The amendment proposed was, in those circumstances, impractical. The proper application of sentencing principles (a matter with which the Tribunal is not concerned) would have ensured that there was no “double punishment” in the event that (as ultimately occurred) the appellant was convicted on each of the remaining charges. There was no error in law committed by the DFM, and no miscarriage of justice.
48 This ground must fail.
GROUND 6
49 It is convenient next to deal with Ground 6.
50 At the conclusion of the prosecution case, on the application of the prosecutor, the DFM amended the charge sheet to replace the word “sharing” in the first charge with “subletting part of his residence”. Other minor consequential amendments were also made. In its amended form, the first charge read:
Engaging in conduct outside the Jervis Bay Territory that is a Territory offence, being the offence of obtaining financial advantage
Being a defence member at Brisbane, in the State of Queensland, between 26 October 2011 and 11 April 2012 engaged in conduct by failing to advise the approving authority for housing assistance, namely Defence Housing Australia (DHA), in writing that his circumstances had changed in accordance with Defence Determination 15/2005 Chapter 1, part 5, clause 1.5.2, namely that he was sharing subletting part of his residence at … Paddington in the State of Queensland with to Mr Chris Williams, who was not his dependant, and as a result of that conduct obtained a financial advantage from the Commonwealth being Rent Allowance in the amount of $3600.00, knowing or believing he was not eligible to receive that financial advantage.
(Emphasis in the original.)
Similar amendments were made to the alternatives to the second, third and fourth charges.
51 The DFM directed himself in accordance with the decision of Refshauge J in R v Bo [2014] ACTSC 287 at [12], [13] and [16]. He was satisfied that the amendments proposed would not lead to any injustice to the appellant or, at the least, injustice that could not otherwise be remedied. He was also satisfied that the amendments would not lead to a miscarriage of justice.
52 In allowing the amendment, the DFM informed the appellant’s counsel that, should he wish to recall any of the prosecution witnesses for cross-examination as a result of the amendment, he would consider such an application. No such application was made.
53 Under Ground 6, the appellant complained that the DFM erred in acceding to the prosecution’s application to substitute “subletting” for “sharing” in the charges. This was said to have constituted a material irregularity, and one which gave rise to a substantial miscarriage of justice, because the amendment was made late in the trial after the evidence was completed, such that it gave rise to an injustice which the appellant could not possibly remedy. It was contended that the effect of the amendment was to shift the focus of the charge away from the appellant’s state of mind, concerning his relationship with Mr Williams, to whether the appellant was, as a matter of law, subletting, within the meaning of the Determination.
54 The respondent submitted that there was no substantive difference between “subletting” and “sharing” and that, if anything, the prosecution case was being narrowed, because the concept of “sharing” was wider than that of “subletting”. In our view there is force in that submission, but the more important point is that the amendment did not alter the real issue in the trial, which was whether or not the appellant knew that he was not eligible to receive the amount of RA which he was receiving, in circumstances where he was also receiving regular weekly payments from Mr Williams who was residing in the premises. There is no reason to think that the evidence would have been any different had the charge originally alleged subletting rather than sharing. It is most significant that, although the DFM expressly offered the appellant the opportunity to apply to have witnesses recalled if the amendment prejudiced his position, no such application was made.
55 In our view, no relevant prejudice was occasioned to the appellant by the amendment, and it occasioned no substantial miscarriage of justice.
GROUNDS 3 AND 4
56 Grounds 3 and 4, which flow from the amendment of the charges to refer to “subletting”, are next conveniently considered together. The appellant contends that the DFM erred by finding that he had “sublet” the premises to Mr Williams (Ground 3) and that, in the absence of any subletting, there was no requirement to advise the approving authority of a change in circumstances (Ground 4). These are mixed grounds of law (as to the content, for relevant purposes, of the term “sublet” or “sublease”) and of fact (as to whether the evidence supported a conclusion that there was a sublease). Insofar as they raise questions as to whether the evidence sufficiently established a sublease, they overlap with aspects of Ground 7, 8 and 9.
57 Mr Williams gave evidence at the trial as to how he came to live, from time to time, at the premises. In 2010, he had been living in Wodonga in rental accommodation. Towards the end of that year the appellant, who was resident in Brisbane, telephoned him, said that he was separating from his wife, and invited Mr Williams to come to Brisbane. Mr Williams responded positively, because at that time he had no job opportunities in Wodonga. Once the appellant found a property in which to live (the premises), Mr Williams made arrangements to move his “gear” from Wodonga to the premises. This “gear” included two queen size beds, whitegoods (including a fridge, washer, dryer and microwave), a six-seater couch, some “bed set” drawers and personal clothing. Mr Williams subsequently began to live in the premises.
58 After his arrival, Mr Williams set about applying for jobs. He was successful in obtaining employment as a catering attendant for Queensland Rail, commencing on or about 7 August 2011. When he commenced employment he completed a form requiring his personal details. These included his residential address, which he nominated as being at the premises. He also gave the same address to Telstra and to the Queensland licensing authority for drivers.
59 Mr Williams agreed that, on 26 October 2011, he commenced paying rent to the appellant at the rate of $150 per week. Between then and 12 September 2012, 46 weekly payments of that amount had been made. Between 13 September 2012 and 6 January 2015, he had made 123 weekly payments to the appellant at the rate of $170 per week. His evidence was that he considered it in his best interests to start paying the appellant rent. The $150 figure was nominated by the appellant. Mr Williams was not paying rent for any other premises at the relevant times. The change from $150 per week to $170 per week in 2012 coincided with an increase in the rent payable by the appellant.
60 In the course of his evidence, Mr Williams displayed some uncertainty about his legal status as an occupant of the premises and whether the payments which he made should be characterised as “rent”. He had not entered into any formal sublease with the appellant. He denied that he was a co-tenant, but said, “I pretty much had all my gear there but I was moving around from either Kingston or going down to the Gold Coast to see my friends and then coming up to Brisbane.” He did not consider himself to be the owner of the room he occupied and said that he would not have minded if anybody else had used that room in his absence.
61 Counsel on both sides explored the question of the amount of time Mr Williams spent at the premises. Mr Williams said that, on average, his Queensland Rail duties meant that he was away four days a week. On the other days he either lived at the premises or with a friend who lived in Kingston. He also spent some time with his mother on the Gold Coast.
62 Mr Gregory Prossor and Ms Keri Welsh, friends of the appellant, were called as defence witnesses. Both had visited the premises from time to time.
63 Mr Prosser visited the premises on about 15 occasions over a two to three year period and went inside about 10 to 12 times. He had seen Mr Williams at the premises on about three occasions.
64 Ms Welsh visited the premises approximately six to eight times in about 2014. She had only gone inside on a couple of occasions. On one occasion the appellant had not been at home but he had told her that another male, whose name she could not recall, would be there and let her in. This occurred. She had also seen the same other male at the premises on a later occasion.
65 The DFM concluded that the appellant had sublet the premises to Mr Williams during the relevant period. Having considered the evidence of Mr Williams, Mr Prosser and Ms Welsh, the DFM declared himself satisfied that Mr Williams was living with the appellant during the relevant period and that the weekly payments were for rent. This was the only rational hypothesis. He said:
“Subletting” is not defined in the determination. As such, it bears its ordinary meaning. The Macquarie Dictionary defines “subletting” as, not so helpfully:
To sublet is to let to another person, the party letting being already a lessee. A sublease is a lease granted by someone who is already a lessee of the property.
Butterworth’s Australian Legal Dictionary defines a sublease as being:
A sublease may be in respect of whole or part only of the premises and must terminate before the termination of the head lease. It also must not conflict with the terms of the head lease. Finally, there is no direct contractual relationship between the head lessor and the sublessee.
Hornsby’s [sic] Laws of Australia more pithily describes it as:
A sublease is a lease by a tenant for a term that is less than the tenant has.
The DFM said that, in order for him to determine whether there was a sublease, he needed to consider where Mr Williams resided at the relevant times. This was because of defence submissions that Mr Williams, by reason of his employment and social commitments, spent so little time at the premises that he could not be regarded as residing there.
66 The DFM rejected these submissions:
I am satisfied that the preponderance of the prosecution evidence is that Chris Williams was living with the [appellant]. He was there regularly over a period of three years. There was a particular unchanging room that he used. He kept his clothes there. Any absences can be explained by either the nature of his work. An analogy could be made with a fly in/fly out worker or as a single man his pursuit of a golfing interest with a friend who lived far enough away to warrant staying at that friend’s house.
…
Mr Williams had mail addressed to the rental allowance property, he used that address in his CV, he had that address on his Queensland licence, he paid money associated, at the least, with him staying there. There is no evidence that he had mail addressed elsewhere, paid rent elsewhere or used another address on other official records.
There is no contemporaneous material that is actually inconsistent, with the exception of some opinions formed by a few of the defence witnesses which were based on infrequent visits and contact, and for which there was little foundation adduced to support those opinions, as opposed to their actual observations of seeing Mr Williams there, including his use of one of the bedrooms and the fact that he would let another visitor in while the [appellant] wasn’t home. It is particularly notable that Mr Williams was regularly present when those witnesses visited.
The absence of personal items, the keeping of a few clothes in a golf bag at another friend’s house which is conveniently located to a golf course, is not something that I think rises to the level of an inconsistency with were him residing at the rental allowance property.
67 The DFM also concluded that the money paid by Mr Williams to the appellant was sublease rent:
There is no evidence of an existing holiday debt. Suggesting it was for furniture storage, which was not accepted by Mr Williams, is fanciful. The furniture was not stored, it was being used to the advantage of the [appellant]. No other rational hypothesis is reasonably available. I am satisfied beyond a reasonable doubt that all of the money was for rent.
I am satisfied beyond reasonable doubt that there was, via an oral agreement and a pattern of conduct over an extended period, a sublease in place. I am satisfied there is no other reasonable description for the arrangement. The fact that Mr Williams was either acquiescing in, or willing to allow other people to use the bedroom that he otherwise occupied, I do not consider to be inconsistent with that finding.
68 The appellant submitted that the payment, by Mr Williams, of the regular weekly sums whilst he was staying at the premises did not equate to a subletting of all or part of the premises in the absence of any right of exclusive possession being conferred on Mr Williams. He argued that lodgers and boarders also make payment for use of a room and household facilities. He denied that Mr Williams was a subtenant. He further argued that, in considering where Mr Williams resided, the DFM fell into error because what was in issue was not where Mr Williams lived but what rights of occupancy had been conferred on him by the appellant. It was submitted that the DFM had not considered whether Mr Williams should be characterised as a guest, lodger, boarder or tenant.
69 Housing assistance, which was dealt with in Chapter 7 of the Determination, was intended to help members “handle the hardships caused by the need to move location regularly or at short notice”: cl 7.1.2. There were various forms of housing assistance, including rental allowance, which was available to a member who lived in a rented home. The purpose of rental allowance was to “assist with the rent”: see cls 7.1.3(1) and 7.6.2.
70 Division 4 of Chapter 7 of the Determination was entitled, “How rent allowance is worked out.” It is plain that, if a member was receiving RA and sublet part of the premises to another person, that subletting had implications for the rate at which RA was to be paid. In particular, it is also plain that money, received by way of sublease rent, was to be taken into account and reduce the RA payable to the member. The terms “rent” and “sub-letting” were not defined in the Determination and must be construed in the context in which they appeared. In its ordinary and natural meaning, “rent” refers to a periodic payment paid by a tenant of premises to the landlord in consideration of the tenant’s right exclusively to occupy the premises: see Junghenn v Wood (1958) 58 SR(NSW) 327 at 330 (Owen J). However, in cl 7.6.3, the term “sub-lease rent” was defined as the “amount of income the member receives in rent for any part of the rental property that is sub-let”.
71 Whilst it is true that it is a definitive feature of a lease or sublease that it confers on the tenant or subtenant a right of exclusive occupation of the premises, it does not follow that, in the context of the Determination, “sub-letting” had a corresponding meaning. In our view, it had a much wider meaning. The term “sub-lease” in the definition of “sub-lease rent” was expanded by the example of “sub-letting” a spare bedroom to a boarder. Liability for a reduction in RA because part of the home was “sublet” would, in the circumstances contemplated by cl 7.6.21(3), depend upon a determination by the CDF, who was given an overriding discretion to decide whether or not a member was subletting, having regard to all the circumstances in which a person was living in the residence. These provisions indicate that the delegate who made the Determination did not intend that the term “sub-lease” bear its strict conventional sense. In our view, “sub-letting”, for the purposes of the Determination, was used in a broad sense which extended to arrangements such as lodging and boarding, under which the head lessee received revenue from a person for the use of all or part of the rental property. No concept of exclusivity of possession was involved, as the example of “sub-letting” a spare bedroom to a boarder makes clear.
72 For these reasons, we do not consider that the DFM erred in holding that the appellant had sublet part of the premises to Mr Williams. This finding was open on the evidence. Mr Williams resided at the premises as his employment permitted. He provided bedding, furniture and whitegoods for his own use, and for common use at the premises. He kept his clothing and other personal belongings at the premises over a protracted period. He enjoyed access to the premises and to his bedroom at will over the period during which he was making these payments. His “official” address was at the premises. He made regular weekly payments to the appellant, and (most strikingly) the amount of those payments was increased when the rent payable by the appellant was increased. Mr Williams was a boarder occupying a bedroom consistently with the example found in the definition of “sub-lease rent” in the table in cl 7.6.3. The DFM was correct when he decided that the appellant had sublet the premises to Mr Williams, in the sense in which that term is used in the Determination.
GROUNDS 7 TO 9
73 We turn, then, to the submissions that the conviction cannot be supported having regard to the evidence and that, in all the circumstances of the case, the conviction is unsafe or unsatisfactory. While these are separate grounds, under ss 23(1)(a) and 23(1)(d) respectively of the DFDA Act, they are the same in legal substance: the phrases “cannot be supported, having regard to the evidence” and “unsafe and unsatisfactory” are different ways of stating the same legal concept: M v The Queen (1994) 181 CLR 487 at 492 (Mason CJ, Deane, Dawson and Toohey JJ); MFA v The Queen (2002) 213 CLR 606 at 623-624; [2002] HCA 53 at [55]-[59] (McHugh, Gummow and Kirby JJ); Yewsang v Chief of Army [2013] ADFDAT 1 at [56] (Tracey J (President), White JA (Deputy President) and Logan J (Member)).
74 The scope of these grounds is now well-established and was explained by this Tribunal in Yewsang at [56]-[59], with reference to M v The Queen, MFA v The Queen, and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The central principles are:
First, the question for the Tribunal is whether it considers that, upon the whole of the evidence, it was open to the DFM to be satisfied beyond reasonable doubt that the appellant was guilty: see M v The Queen at 493.
Secondly, to address that question, the Tribunal must make an independent assessment of the sufficiency and quality of the evidence: see SKA at 406 [14] (French CJ, Gummow and Kiefel JJ); Yewsang at [57]-[59].
Thirdly, the conviction must be set aside if the Tribunal decides that the DFM should have had a reasonable doubt about the appellant’s guilt, even if there is sufficient evidence in law to support it: M at 493-495; Low v Chief of Navy [2011] ADFDAT 3 at [70]-[74] (Tracey J (President), White JA (Deputy President) and Mildren J (Member)).
Fourthly, a doubt experienced by the Tribunal will be a doubt which the DFM ought also to have experienced, except where the DFM’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the Tribunal: M v The Queen at 494.
75 Under these grounds, which were argued together, the appellant essentially submitted that the conviction was unsafe and unsatisfactory because of an insufficiency of evidence to support the findings that the appellant was subletting to Mr Williams and that, at the relevant times, he knew that he was not eligible to receive RA at the rate at which it was being paid. Before us, the issue was whether it was open, on the whole of the evidence, to find beyond reasonable doubt, as the DFM did, first, that the appellant had sublet his premises to Mr Williams and, secondly, that he knew that, thereafter, he was not eligible to receive RA at the rate at which it was being paid. The prosecution had the burden of proving both allegations beyond reasonable doubt. To do so, any rational hypothesis consistent with innocence had to be excluded.
76 These grounds are factual, and require leave: see DFDA Act s 20(1). We consider that the appellant’s case in relation to these grounds is sufficiently arguable to warrant leave, which we accordingly grant.
77 As to the first aspect, we have referred above, under Grounds 3 and 4, to the evidence relevant to the question of subletting, and to our conclusion that, on that evidence, it was not only open but also correct for the DFM to conclude that the appellant had sublet his premises, within the meaning of the Determination, to Mr Williams. It is unnecessary to repeat that analysis here; for the reasons given above, the conclusion that the appellant had sublet the premises to Mr Williams was not unsupportable, having regard to the evidence, nor unsafe or unsatisfactory.
78 As to the second aspect, the prosecution case at trial was that the appellant was aware that he was not entitled or eligible to receive rental allowance at the rate at which he in fact received it. The appellant did not give evidence at trial. That, of course, did not affect the circumstance that the prosecution had to establish, beyond reasonable doubt, that the appellant had intentionally engaged in the relevant conduct by failing to notify DHA as soon as practicable after Mr Williams had commenced residing at the premises and started to make regular weekly payments, and that he knew or believed that he was not eligible to receive the financial advantage that he obtained as a result of that omission. In that respect, the DFM directed himself:
[I]n a conduct or omission case, the test that I will [be] applying is has the prosecution established beyond reasonable doubt that the only rational inference is the [appellant] must have known or believed that by failing to report his change of circumstances, he would obtain, in the ordinary course of events, a benefit that he was not eligible to receive.
No issue was, or could be, taken with that direction.
79 The most important evidence on the question of the appellant’s state of mind was his record of interview, which was conducted on 17 June 2015 in Melbourne.
80 In course of the interview, the allegation was put to the appellant that, while he was living at the premises, he had Mr Williams with him as a co-tenant. The investigator described Mr Williams as “a financial member of the household”. When invited to respond to the allegation, the appellant declined, saying that he would have to look at it. Later, the appellant said that three nights was about the longest period that Mr Williams stayed at the property at any one time over the four year period.
81 The appellant gave a variety of inconsistent explanations as to why the periodical payments were made to him by Mr Williams. When asked whether, at any time during that period, Mr Williams had given him any money for staying at the premises, the appellant responded that Mr Williams had not given him money to stay there, but that Mr Williams had “given me money”. That money was said to have been paid by Mr Williams in repayment of a debt of about two and a half thousand dollars which had been incurred by Mr Williams when he and the appellant had been backpacking in Europe some decade earlier.
82 At a later point in the interview, the appellant suggested that the payments may have been made because he had told Mr Williams that he (Mr Williams) should pay for storing his furniture in the premises. The appellant did not explain how this was consistent with his earlier answers.
83 When confronted with the regular payments, the appellant denied that they were made for rent. He advanced other suggestions, such as that Mr Williams “used to eat my food and things like that”, that he had been “consuming my utilities and things like that, me storing … his furniture”, and paying back the debt.
84 When asked to explain why the amount of the regular payment rose from $150 to $170 in September 2012, when the appellant’s rent rose, his explanation was:
We talked about him using utilities, using food and I said, you know, “I – you know, it’s not – it’s not – it’s not fair that if you – if you do eat stuff out of the fridge and things like that, that – you know, that I’m continually paying for that, like – you know, it’s only, you know, maybe a couple of eggs or something like that, or – or you might share our – our bloody stir fry with us one night or something like that, but it’s – it’s not – it’s not fair that you do that and not, you know - - -”
That answer was no explanation at all of why an increase from $150 to $170 coincided with an increase in the appellant’s rent. The appellant asserted that the fact that Mr Wilson paid about half of the appellant’s total rent was a coincidence.
85 The appellant was unable to explain at all how it was that the payments commenced when Mr Williams commenced his stay at the premises and ceased when he left.
86 The appellant denied that he deliberately failed to advise DHA that he was receiving the regular weekly payments. At one point during the interview he said:
I’m not saying it is something I should have declared. I’m saying, if that is something that I should have declared, it escapes me. It escapes me because it didn’t happen right now, it happened over a long period of time. I think – I think you already established, “You’ve got a lot on your plate and now you’re going off and buying another thing,” et cetera. Maybe I have not – I should have done something but I did not genuinely try to – to – to – to – to get a gain for – which I wasn’t entitled to. I – I was being forthright and open, as much as I was thinking that I was supposed to be, with answering the DHA things.
87 After an adjournment, the appellant said that he wished to make a statement. He said that he had been “broadsided” by questions put to him by the investigators earlier and wished to clarify his position. He then provided a further explanation, in the course of which he said:
At no time did I look to defraud the government or defraud DHA or gain something from – from DHA in regards to accommodations [sic].
…
That friend [Mr Williams] was in the habit of dropping by my house, which I considered my house. The purpose of that dwelling as to – for me and my daughter to reside in. What I used that dwelling for, from that point on, I didn’t consider, unless I had, you know, a change in – in – in my categorisation of member with dependants or that the system had decided that it would be – that there was a married quarter now available that I could move into, and then they would cease RA. I was not – I was not aware of that friend’s day-to-day business. I was not aware that he had made my address as the address for his licence in November ’14, when he regained a – he renewed his licence. I was unaware that he even owned a car. I do know that he does own a car now because he’s talked about driving around to do what he – his work that he’s doing up in Cairns at the moment.
…
And so he [Mr Williams] derived a benefit from being able to crash at a friend’s place, which I did not think was untoward at all.
…
… but I was supplying a lot of the – well, you know, if he [Mr Williams] was staying for dinner, I’d – I’d provide a steak and I would buy a carton of beer and he would consume those things, and I felt – and this is what I mean by abuse – I felt it a bit – or I felt it unfair that I was constantly providing my home, you know, entertainment, food and wine and, you know, we’re not sort of – we’re talking about sort of more-expensive sort of things on a shopping list and – and conversation progressed that he would pay me money. I did not think of that money as rent.
…
I felt that I was paying the rent.
…
My understanding was that I was receiving rental assistance for a member with dependants. I was the member, my dependant was [the appellant’s daughter who lived with him for half the year under shared-parenting arrangements] and that’s what I was receiving that money for.
…
I was under the impression that he [Mr Williams] was residing with a friend of his who was also in Queensland Rail, out of Logan. I had visited their residence in Kingston.
88 After this statement was made, the questioning resumed. The appellant then said:
… I’m saying I do not believe that I had received a financial gain. If I believed I had a financial gain or had received some other form of benefit, I would have declared it, if I believe that is the case.
…
I did not know that I had done anything wrong. I did not suspect that I had done anything wrong, nor was I trying to hide anything, and, in fact, I have practised being open and honest in regards to my housing situation as I thought I was to be. So, at no time did I think I had got – at no time did I deliberately try to get a financial gain or any other gain and at no time did I realise I had a financial gain and then decide not to declare it. Does that make sense?”
…
I did not believe that I was being paid money for rent.
89 The DFM analysed the record of interview and concluded that the appellant’s explanation of his financial arrangements with Mr Williams was unbelievable. The DFM referred to the guarded answer to the question about whether Mr Williams had given him money. The DFM found the subsequent references to payments to cover furniture storage and the repayment of a decade old debt to be implausible. He found that the weekly amounts exceeded that which would reasonably be attributable to the cost of food and utilities, and did not accept that none of the amount could be attributed to rent:
There is no evidence of an existing holiday debt. Suggesting it was for furniture storage, which was not accepted by Mr Williams, is fanciful. The furniture was not stored, it was being used to the advantage of the [appellant]. No other rational hypothesis is reasonably available. I am satisfied beyond a reasonable doubt that all of the money was for rent.
90 These conclusions were unsurprising on the evidence, and were open to the DFM. The DFM was also entitled to think that it was implausible that the increase in the weekly payment from $150 to $170 at the same time as the appellant’s rent increased was merely a coincidence.
91 The DFM rejected the appellant’s assertion, in his record of interview, that he did not know or believe that his circumstances were such as to disentitle him to receive the rate of RA which was being paid to him at the relevant time for each of the charges. While accepting that the prosecution case was circumstantial, the DFM found that the evidence supported an inference that the appellant knew or believed at relevant times that the receipt of payments from Mr Williams affected his entitlement to receive a full RA payment. In addition to the inconsistent and implausible explanations that he had offered, the DFM also had regard to the regularity of the rental payments, the increase of those payments which coincided with the increase in the rent being paid by the appellant, the length of the appellant’s service and his prior receipt of RA, the appellant’s familiarity with the need to comply with rules such as those contained in the Determination, the appellant’s standard of education, and his senior rank.
92 The DFM declared himself satisfied that the appellant knew that he was under an obligation to report a change of circumstances, and that he knew that his circumstances had changed. This led to a strong inference that the appellant knew or believed that the change in circumstances would result in him no longer being eligible for the full rate of RA. The DFM continued:
But a strong inference alone is not enough. It must be the only rational inference consistent with guilt. I have carefully reviewed the evidence and considered the submissions of counsel.
It is improbable that a member with his years in the army, his rank, experience and intelligence would believe that despite being in receipt of RA as a member with dependants, that the [appellant] might have thought or believed that he could be in receipt of a fixed weekly payment for Mr Williams for over three years that was clearly in respect of Mr Williams staying at the RA property and that would not be a circumstance that would affect not his entitlement to rental allowance but the rate of that rental allowance.
For completeness, I note that Mr Williams was not a dependant, nor did the [appellant] think he was. I am satisfied beyond reasonable doubt that from 26 October 2011, the [appellant] knew or believed that he was not entitled to receive rental allowance at the rate at which he was receiving it, i.e. he knew or believed he was receiving a financial advantage to which he was not entitled.
93 Having considered the whole of the evidence, we are satisfied that it was open to the DFM to be satisfied, beyond reasonable doubt, that the appellant knew or believed that he was not entitled to receive rental allowance at the rate at which he was receiving it, and thus that he was receiving a financial advantage to which he was not entitled. In the context of the regularity of the rental payments, their increase at a time which coincided with the increase in the appellant’s rent, the appellant’s prior receipt of RA, his standard of education, seniority and familiarity with the need to comply with rules such as those contained in the Determination and, most significantly, the inconsistent and implausible explanations offered during his record of interview, there was no reasonable hypothesis consistent with innocence.
94 It was not submitted that the DFM had erred in finding that the other elements of the offences, the subject of each of the four charges, were established beyond reasonable doubt.
95 Accordingly, these grounds must be rejected.
FRESH EVIDENCE
96 At the outset of the hearing of the appeal, counsel for the appellant sought the leave of the Tribunal to adduce and rely on, by way of fresh evidence, an undated one page statement signed by Mr Williams.
97 The statement, entitled “TO WHOM IT MAY CONCERN”, read:
I, Chris Williams, hereby make this statement in relation to Travis Betts, and my stay with him at Unit 1/25 Ferhnerg Road, Paddington.
As Travis prepared most of the meals, we discussed victualling and decided he would purchase all foodstuffs and beverages.
In return, I offered to pay him a sum of money allotted to his bank account on a regular basis.
I spent about three (3) days a week in his unit.
RENT: I did not pay Travis for rent. To suggest that I did is untrue and a nonsense.
98 In an affidavit affirmed on 31 August 2017 Ms Deanna Roberts confirmed that she had witnessed the statement in mid to late June 2015 at the request of Mr Williams.
99 The father of the appellant, Major James Betts (retd), deposed, in his affidavit affirmed on 1 September 2017, that he had visited Mr Williams in June 2015 “and spoke to him about the matter involving his [Mr Williams’] stay with the appellant” at the premises. Mr Williams had agreed to sign a statement, the original of which he subsequently gave to the appellant’s father. Mr Betts had not advised the appellant of the existence of the statement until after the trial because he had assumed (for no stated reason) that Mr Williams would give a copy of the statement directly to the appellant or the appellant’s legal counsel at trial. He deposed that he had given the original statement to the appellant’s solicitor in mid-August 2017.
100 In an affidavit, affirmed on 1 September 2017, the appellant deposed that he was unaware of the existence of the letter prior to mid-August 2017, at which time his father informed him of its existence.
101 Having heard argument, the Tribunal informed the parties that it would rule on the application after it had had the benefit of argument in relation to the other grounds of appeal.
102 The application was made pursuant to s 23(2) of the DFDA Act, which provides:
(2) Subject to subsection (5), where in an appeal it appears to the Tribunal that there is evidence that:
(a) was not reasonably available during the proceedings before the court martial or the Defence Force magistrate;
(b) is likely to be credible; and
(c) would have been admissible in the proceedings before the court martial or the Defence Force magistrate;
it shall receive and consider that evidence and, if it appears to the Tribunal that the conviction or the prescribed acquittal cannot be supported having regard to that evidence, it shall allow the appeal and quash the conviction or the prescribed acquittal.
103 Counsel for the appellant referred to the evidence given by Mr Williams at trial about paying rent to the appellant and contended that, had the statement been available to him at trial, he would have been able to confront Mr Williams with it and tender it as a prior inconsistent statement.
104 We do not consider that the conditions for the receipt of the statement, prescribed by s 23(2) of the DFDA Act, have been satisfied.
105 The statement was created in mid-2015, well before the charges were laid. The statement was solicited by the appellant’s father. His purpose in obtaining the statement is not disclosed but, assuming that it was intended to assist his son, his failure to produce the original, which he was holding, at or before the trial, is inexplicable. No foundation has been provided for the alleged assumption that Mr Williams would have provided a copy to the appellant. We are not persuaded that the statement was not reasonably available at the time of the DFM hearing. To the contrary, there was no reason why it could not have been provided to the appellant or his legal representatives long before the hearing by the DFM. Although he may not personally have been aware of it, it was in the possession of the appellant’s camp.
106 The statement acknowledges that Mr Williams did offer to pay the appellant a sum of money allotted to his bank account on a regular basis, as the evidence shows he did. It also verifies that Mr Williams spent about three days a week at the premises.
107 The statement, “I did not pay Travis for rent”, attributed to Mr Williams, lacks clarity and is uncertain in meaning. It may well have been inadmissible and, at best, would have been of little value and provided little assistance to the DFM in determining the facts surrounding Mr Williams’ occupancy of the premises or the character of that occupancy. The legal nature of the payment was a matter for the DFM to determine on an objective assessment of the facts. Mr Williams’s characterisation of the payments which he made could not have been determinative of that question and would have carried little if any weight.
108 At trial, Mr Williams was cross-examined about an oral statement which he had earlier made, to similar effect to the letter. In that way, the substance of what was in the statement made by Mr Williams, on which the appellant now seeks to rely, was available and was deployed before the DFM.
109 In these circumstances we do not consider that, in any event, there existed a significant possibility that the DFM, acting reasonably, would have acquitted the appellant had the statement been before him: cf Mickelberg v The Queen (1989) 167 CLR 259 at 273 (Mason CJ), 275 (Brennan J), 301-302 (Toohey and Gaudron JJ). See also R v Bryer (1994) 75 A Crim R 456 at 458 (Fitzgerald P); Baker v Chief of Army [2017] ADFDAT 3 at [27] (Tracey (President), Brereton and Hiley (Members) JJ). We do not consider that, even if the statement were to be received in evidence and considered, the convictions of the appellant could not be supported having regard to that evidence.
110 For these reasons, we have determined not to accede to the appellant’s application to adduce fresh evidence.
CONCLUSION
111 All the grounds of appeal therefore fail, and the appeal must be dismissed.
Associate: