DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

McCleave v Chief of Navy [2019] ADFDAT 1

ORDERS

THE TRIBUNAL ORDERS THAT:

1.    The period within which the appeal must be lodged be extended to the date on which it was lodged.

2.    The appeal be dismissed.

REASONS FOR DECISION

LOGAN J:

1    In Burdett v Abbot [1812] 128 ER 384; 4 Taunt 401, at p 403, pp 449-450 (Burdett v Abbot), Lord Mansfield CJ stated:

I will correct a strange mistaken notion which has got abroad, that because men are soldiers they cease to be citizens; a soldier is gifted with all the rights of other citizens … It is therefore highly important that the mistake should he corrected which supposed that an Englishman, by taking upon him the additional character of a soldier, puts off any of the right and duties of an Englishman.

Referring to Burdett v Abbot and to constitutional developments in the aftermath of, successively, the English Civil War, the experience of the Cromwellian Protectorate backed by the New Model Army, the Restoration and the Glorious Revolution, Mr C M Clode, Legal Adviser at the War Office, in his enduringly authoritative work, The Military Forces of the Crown: Their Administration and Government, 1869, Vol 1, p 144, makes the point that the political class in what became the United Kingdom were then and have remained astute to ensure that the military never developed as a separate caste, isolated from the people. This astuteness was at once protective of society from the threat of military dictatorship of the kind into which the republican ideal of the Protectorate descended but also premised on the principle that members of the military remained in the first instance members of the society they served, giving up no more of the rights of an ordinary citizen than was necessary in order to render that service.

2    It is elementary that this same understanding is applicable to members of the Australian Defence Force (ADF). Reflecting this understanding, Lord Mansfield’s statement in Burdett v Abbot was expressly approved by Stephen, Mason, Aickin and Wilson JJ in their joint judgement in Groves v Commonwealth of Australia (1982) 150 CLR 113 at 126 (Groves). The emphatic rejection in Groves of a contention by the Commonwealth that it was immune from suit for damages in respect of a tortious wrong inflicted on a member of the ADF merely because that had occurred in the course of military service is a manifestation of this understanding. Members of the ADF enjoy both the protection of the common law and are subject to responsibilities at common law in the same way as are others in Australia, subject only to those which, by statute or by necessary implication from particular circumstances of service, are removed.

3    Recent High Court authority, Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 93 ALJR 1, (Strickland), serves to remind that especially important common law rights are found in what is compendiously termed the “right to silence”. Strickland also serves to remind that, in certain circumstances, the continuance of a prosecution where an accused has been denied a right to silence can amount to an abuse of the criminal justice process such that further proceedings against that accused should be stayed.

4    The appellant, Justin Peter McCleave, holds the rank of Lieutenant (LEUT McCleave) in the Royal Australian Navy. He is also a legal practitioner. He holds an appointment as a legal officer in the Royal Australian Navy Reserve (RANR).

5    LEUT McCleave contends that on the basis of a representation made to him, via his legal representative, within his chain of command, by the Executive Officer of the commissioned shore establishment, HMAS Cerberus, that administrative action, rather than proceedings under the Defence Force Discipline Act 1982 (Cth) (DFDA), would be taken against him, he acknowledged in writing a wrongful claim by him for RANR training pay. He claims that DFDA proceedings before a Defence Force Magistrate (DFM) subsequently commenced against him by the Director of Military Prosecutions (DMP) were an abuse of process. An application by him to the DFM permanently to stay the proceedings failed. Thereafter, LEUT McCleave pleaded guilty to and was convicted of the service offence of recklessly making a false or misleading statement in relation to an application for a benefit contrary to s 56(4) of the DFDA. In respect of this offence, the DFM sentenced LEUT McCleave to be severely reprimanded.

6    LEUT McCleave’s further contention is that his being called upon to enter a plea, his conviction consequential upon his entry of his plea of guilty and his sentence were each features of proceedings which were an abuse of process. For these reasons, he seeks an order that his conviction be quashed and that there be no order for a new trial.

7    In some respects (taking of fingerprints and identification photographs, participation in identification parades), the DFDA modifies or abrogates the privilege against self-incrimination. That privilege forms part of the “right to silence”: Lee v New South Wales Crime Commission (2013) 251 CLR 196 at 313 [318] (Lee No 1) per Gageler and Keane JJ. No such abrogation or modification is applicable in the present case. Therefore, the effect of Burdett v Abbot and Groves is that LEUT McCleave did not, by his membership of the ADF, lose his common law “right to silence”.

8    LEUT McCleave filed his notice of appeal to the Tribunal outside the time prescribed by the Defence Force Discipline Appeals Act 1955 (Cth) (Appeals Act). In essence, that was because, not unreasonably, he was awaiting the result of the review of conviction for which the DFDA provides. It is not necessary further to detail the reasons for the delay in the filing of his notice of appeal. That is because, very fairly, the respondent Chief of Navy expressly refrained from opposing the granting of an extension at the hearing before the Tribunal. Accordingly, LEUT McCleave should be granted an extension of time to the date on which he filed his notice of appeal.

9    In their reasons, Hiley and Garde JJ set out more comprehensively the relevant facts as briefly summarised above. I gratefully adopt their account.

10    The critical facts are found in the exchange of emails on 1 December 2016 between CMDR Verho (on behalf of the Commanding Officer of HMAS Cerberus) and CMDR Welbourne (on behalf of LEUT McCleave), viewed in the wider context in which they occurred. The culmination of the exchange was the statement made by CMDR Verho to CMDR Welbourne, “No I will not be taking DFDA action.” So viewed, I am quite unable to regard the latter statement as indicating only that CMDR Verho personally or even only that the naval officer commanding HMAS Cerberus and each of that officer’s subordinates would not take action under the DFDA against LEUT McCleave, leaving open the prospect that the DMP may later choose to take such action. The statement was made and received and intended to be made and received on the basis that LEUT McCleave could be assured that no action under the DFDA would be taken against him.

11    On the strength of the representation made to CMDR Welbourne, LEUT McCleave waived the right to silence to which his legal representative had referred in the exchange of emails. He made comprehensive admissions in respect of his conduct in his response to the notice to show cause. He was then dealt with administratively accordingly.

12    At the heart of LEUT McCleave’s submissions was the proposition that, in terms of principle and outcome, the present appeal should be regarded as a replication, in the context of the Australian military justice system, of circumstances which moved a Divisional Court in R v Croyden Justices, Ex parte Dean [1993] QB 769 (Croyden Justices Case) to quash an order made by justices committing an accused for trial. It will be necessary to consider that case and authorities to which reference is made in it in greater detail shortly. Suffice it to say, notwithstanding representations made by police officers to a person who had been assisting them with their investigations that he would not be prosecuted, on the strength of which he had made a self-incriminating statement, the Crown Prosecution Service later instituted criminal proceedings against him which resulted in the making of the committal order challenged. That order was quashed on the basis that the committal proceedings were, in the circumstances, an abuse of process. The resemblance with the present case is indeed striking. That resemblance is heightened by the fact that the submissions made by the Crown Prosecution Service in that case in relation to the independent prosecutorial discretion vested in that service bore an uncanny similarity to the submissions of the DMP as to the independent role which she undertook under the DFDA.

13    Before turning to the Croyden Justices Case in greater detail, it is desirable to make some observations in relation to the course of action adopted by LEUT McCleave after the DFM ruled against his application for a stay of the proceedings. That ruling having been made, LEUT McCleave chose to enter a plea of guilty. Before so doing, it would have been open to him to seek an adjournment so as to institute a proceeding in the original jurisdiction of the High Court of Australia under s 75(v) of the Constitution claiming the constitutional writs of prohibition and certiorari, naming the Chief of Navy, DFM and perhaps also the DMP as respondents. Alternatively, he could, under s 39B of the Judiciary Act 1903 (Cth), have sought like relief in the original jurisdiction of the Federal Court of Australia. It would not have been possible for him alternatively to seek relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth), because the effect of s 3 (definition of “decision to which this Act applies”) and para (o) of Sch 1 to that Act is to exclude its application to decisions under the DFDA.

14    The end to which such judicial review proceedings in the High Court or the Federal Court might have been directed was the quashing of the DFM’s ruling and the prohibition of the continuance of the DFDA proceedings on the basis that they were an abuse of process. As against that course of challenge and by analogy with observations made in Sankey v Whitlam (1978) 142 CLR 1 at 25-26 per Gibbs ACJ and at 80 per Stephen J (with whom Aickin J agreed) and Lamb v Moss (1983) 76 FLR 296 at 308, concerning interference with the ordinary course of civilian criminal justice proceedings, it might have been put that only in exceptional circumstances would a superior court interfere with the ordinary course of military justice proceedings. Yet the Croyden Justices Case itself offers an example of such interference in the civilian criminal justice system, notwithstanding an acknowledgement that such a course was exceptional. Further, though in outcome it was ultimately unsuccessful, Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308 offers an example of a willingness on the part of the High Court to grant an order nisi for prohibition which had the effect of interrupting the ordinary course of a court martial proceeding.

15    These possible, public law courses of action acknowledged, that LEUT McCleave chose to plead guilty so as to generate the conviction which is a condition precedent to his exercising a right of appeal to the Tribunal (and to spare the public purse the cost of a trial) does not, in my view, render the point he has taken academic. That is because if, truly, the proceedings were an abuse of process, that abuse necessarily included his being requested by the DFM to enter a plea to the charges. Prior to so doing, LEUT McCleave had taken objection to the continuance of the proceedings and sought a ruling. In my view, that means that he did not waive his right of seeking the quashing of his conviction on the basis that the proceedings were an abuse of process.

16    More detailed reference should now be made to the Croyden Justices Case and the authorities referred to therein. The headnote is a convenient and accurate source for a detailing of the facts. The applicant, Dean, who was then aged 17, was arrested and interviewed by the police in the course of a murder investigation. During the interview he effectively admitted that he had assisted in the destruction of a car with intent to impede the apprehension or prosecution of others knowing or believing that they were guilty of an arrestable offence. He was released without charge on the basis that he was to be a prosecution witness. The applicant duly made a prosecution witness statement and continued to assist the police voluntarily for a period of over five weeks. The police continued to refer to him as a prosecution witness and he alleged that they made specific assurances that he would not be prosecuted in connection with the murder. Thereafter the Crown Prosecution Service decided that the applicant should be charged with doing acts with intent to impede the apprehension of another, contrary to s 4(1) of the Criminal Law Act 1967 (UK). The applicant was interviewed on two subsequent occasions, but no mention was made of that decision, nor was he offered legal advice or cautioned. The applicant was later charged. At committal proceedings the applicant submitted that the justices should not proceed as examining justices to inquire into the alleged offence on the ground that the trial would be an abuse of the process of the court. The justices rejected that submission, refused to adjourn the proceedings pending an application to the High Court for a stay, and committed the applicant for trial.

17    Materially, s 3(2)(b) of the Prosecution of Offences Act 1985 (UK) provided, in relation to the Director of Public Prosecutions, the official in charge of the Crown Prosecutions Service:

(2)    It shall be the duty of the Director- …

…

(b)    to institute and have the conduct of criminal proceedings in any case where it appears to him that-

(i)    the importance or difficulty of the case makes it appropriate that proceedings should be instituted by him ; or

(ii)    it is otherwise appropriate for proceedings to be instituted by him ;

At the time when the Croyden Justices Case was decided, constables in the United Kingdom also possessed the power at common law to arrest without warrant and charge a person suspected of committing a felony and enjoyed a somewhat broader power of arrest without warrant under the Police and Criminal Evidence Act 1984 (UK).

18    There was no suggestion in the Croyden Justices Case that, either in making the representation to Dean that no prosecution would be instituted or in later instituting such proceedings respectively, the police or the Crown Prosecutions Service had acted in bad faith.

19    The leading judgement in the Croyden Justices Case was that of Staughton LJ, with whom Buckley J agreed. His Lordship (at 777) derived from statements in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (Hunter v Chief Constable) and Connelly v Director of Public Prosecutions [1964] AC 1254 (Connelly v Director of Public Prosecutions) the principle that a court in the United Kingdom possessed a broad inherent power to stay criminal proceedings as an abuse of process. In Hunter v Chief Constable, Lord Diplock (at 536) referred to:

[The] inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; …

In Connelly v Director of Public Prosecutions Lord Devlin said:

Are the courts to rely on the executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them? To questions of this sort there is only one possible answer.

20    Having referred to these statements, Staughton LJ (at 778) surveyed a number of Commonwealth authorities, including Australian authorities, in which a like judicial disposition was evident:

Other Commonwealth cases have considered whether there should be a stay when the defendant has been promised immunity or something of that sort. In Reg. v. Milnes and Green (1983) 33 S.A.S.R. 211 the Supreme Court of South Australia held that a stay would not be granted, because an implied condition of the promise of a pardon, that the defendant would give truthful information, had been broken. But Cox J., whose judgment was approved on appeal, accepted, at pp. 225–226, that there should be a stay when the grounds for one were clearly made out. In the Supreme Court of Victoria, Ormiston J. was apparently disposed to grant a stay in Reg. v. Georgiadis [1984] V.R. 1030. In Reg. v. Betesh (1975) 30 C.C.C. (2d) 233 a stay was granted by a county court judge in Ontario. In Reg. v. Crneck, Bradley and Shelley (1980) 116 D.L.R. (3d) 675, Krever J. granted a stay to one defendant, but refused a stay to another. Most significant, to my mind, is Chu Piu-wing v. Attorney-General [1984] H.K.L.R. 411. There the Hong Kong Court of Appeal set aside a subpoena to a witness, as an abuse of process, and the consequent conviction of the witness for contempt of court. The ground was that the witness had been assured by the Independent Commission Against Corruption that he would not be required to give evidence, although the subpoena was in the event obtained by the police. Both were held to be “arms of the executive in its investigative function.” McMullin V.-P. said, at pp. 417–418:

“there is a clear public interest to be observed in holding officials of the state to promises made by them in full understanding of what is entailed by the bargain.”

21    His Lordship then stated (at 778), “In my judgment the prosecution of a person who has received a promise, undertaking or representation from the police that he will not be prosecuted is capable of being an abuse of process”.

22    It is noteworthy that Staughton LJ did not qualify the principle which he derived by reference to the youth of the person to whom the representation was made or hold that it was rendered inapplicable because he had made certain admissions prior to the making of the representations. Nor did his Lordship regard the statutory power vested in the Director and members of the Crown Prosecutions Service to institute proceedings as inhibiting the court’s ability to determine that the committal proceedings were an abuse of process and to quash the resultant committal order.

23    Why then, LEUT McCleave submitted, should the position be any different in his circumstances?

24    The starting point of answering this question should be s 87 of the DFDA, which materially provides:

Summons and order in the nature of summons

(1)    Where an authorized member of the Defence Force believes, on reasonable grounds, that a person has committed a service offence, the authorized member may:

(a)    if the person is a defence member:

(i)    charge the defence member with the service offence;

…

(6)    In this section:

“authorized member of the Defence Force” means:

(a)    the Director of Military Prosecutions; or

(b)    a member of the Defence Force, or a member of the Defence Force included in a class of members of the Defence Force, authorized, in writing, by a commanding officer for the purposes of this section.

25    Section 89 of the DFDA provides for the alternative of proceedings under the DFDA to be instituted by the arrest of a specified defence member or defence civilian by particular defence members in certain circumstances. It is not necessary for present purposes to consider this alternative.

26    Section 188GA of the DFDA materially provides:

Functions of the Director of Military Prosecutions

(1)    The Director of Military Prosecutions has the following functions:

(a)    to carry on prosecutions for service offences in proceedings before a court martial or a Defence Force magistrate, whether or not instituted by the Director of Military Prosecutions;

27    The DFDA also expressly confers on the DMP a power to give undertakings to a person on particular terms that a statement if given will not be used in evidence or that a person will not be prosecuted for a service offence, s 188GD providing:

188 GD Undertakings by the Director of Military Prosecutions

(1)    The Director of Military Prosecutions may, if he or she considers it appropriate to do so, give to a person an undertaking that:

(a)    an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in proceedings for a service offence; or

(b)    the fact that the person discloses or produces a document or other thing in proceedings for a service offence; or

(c)    any information, document or other thing that is obtained as a direct or indirect consequence of an answer that is given, a statement or disclosure that is made, or a document or other thing that is disclosed or produced in proceedings for a service offence;

will not be used in evidence against the person in any other proceedings for a service offence.

(2)    If the Director of Military Prosecutions gives an undertaking under subsection (1):

(a)    an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in the proceedings; or

(b)    the fact that the person discloses or produces a document or other thing in the proceedings; or

(c)    any information, document or other thing that is obtained as mentioned in paragraph (1)(c);

as the case may be, is not admissible in evidence against the person in any other proceedings for a service offence, other than proceedings in respect of the falsity of evidence given by the person.

(3)    The Director of Military Prosecutions may, if he or she considers it appropriate to do so, give to a person an undertaking that the person will not be prosecuted:

  (a)    for a specified service offence; or

(b)    in respect of specified acts or omissions that constitute, or may constitute, a service offence.

(4)    If the Director of Military Prosecutions gives an undertaking to a person under subsection (3), no prosecution may be instituted against the person in respect of the specified service offence or a service offence in respect of the specified acts or omissions.

(5)    An undertaking under subsection (3) may be subject to any conditions that the Director of Military Prosecutions considers appropriate.

28    Thus, under the DFDA, the DMP shares with particular defence members the power to institute proceedings in respect of a service offence. Irrespective of who institutes such a proceeding, the DMP is expressly empowered to carry on its prosecution. There is, therefore, no material distinction to be drawn between the position of the DMP and that of the Crown Prosecution Service considered in the Croyden Justices Case. In that case, the police did not possess any exclusive power to institute criminal proceedings yet that was not regarded as having the effect of vitiating a representation by them that no prosecution would be instituted. Neither, contrary to the submission which was made on their behalf, was the express statutory authority possessed by the Director and the Crown Prosecution Service to institute proceedings regarded as having that effect.

29    As in in the Croyden Justices Case, there is no suggestion of bad faith in the conduct of the Executive Officer who made the representation or on the part of the DMP in instituting the proceedings before the DFM. Each of these officers was doing his or her duty as he or she understood it.

30    The following observations made by Staughton LJ in the Croydon Justices Case (at 776-777) are applicable in the present case by analogy:

It is submitted on behalf of the Crown Prosecution Service that they alone are entitled, and bound, to decide who shall be prosecuted, at any rate in this category of case; and that the police had no authority and no right to tell the applicant that he would not be prosecuted for any offence in connection with the murder: see section 3(2) of the Prosecution of Offences Act 1985. I can readily accept that. I also accept that the point is one of constitutional importance. But I cannot accept the submission of Mr. Collins that, in consequence, no such conduct by the police can ever give rise to an abuse of process. The effect on the applicant or for that matter on his father, of an undertaking or promise or representation by the police was likely to have been the same in this case whether it was or was not authorised by the Crown Prosecution Service. It is true that they might have asked their solicitor whether an undertaking, promise or representation by the police was binding and he might have asked the Crown Prosecution Service whether it was made with their authority. But it seems unreasonable to expect that in this case. If the Crown Prosecution Service find that their powers are being usurped by the police, the remedy must surely be a greater degree of liaison at an early stage.

[Mr Collins appeared on behalf of the DPP]

31    To paraphrase, I readily accept that the DFDA confers an independent discretion to institute proceedings on the DMP. That Act also expressly (s 188GD) confers on the DMP a power to give undertakings. But I cannot accept that, in consequence, no conduct within a defence member’s (here, LEUT McCleave’s) chain of command can ever give rise to an abuse of process by the later institution of proceedings under the DFDA for a service offence. The effect on both LEUT McCleave and, for that matter, his legal advisers of the undertaking by the Executive Officer of his unit, given apparently on the basis of legal advice to that officer, was likely to have been the same whether an undertaking, promise or representation by the Executive Officer was binding and he might have asked the DMP whether it was made with her authority. Especially given the imperatives which attended the making of a response by LEUT McCleave to the notice to show cause, it seems unreasonable to expect that in this case. If the DMP finds that her powers are being usurped in respect of particular defence members by officers within that member’s chain of command, the remedy must surely be a greater degree of liaison at an early stage. It may be that this case highlights a high level failure of command within the ADF to bring home to all officers the independent role assigned by Parliament to the DMP. With its revelation of the initiation of administrative discipline-related proceedings (the notice to show cause) prior to the making of a definitive decision by the DMP as to whether to institute service offence proceedings, it may also be that the case highlights a systemic disjunct between administrative and prosecutorial disciplinary process within the ADF. This, disjunct, too, may be indicative of a high level failure of command within the ADF. Neither of these is a reason to treat the representation made to LEUT McCleave as anything less than a bargain.

32    No less than in the civilian criminal justice system, it is a fundamental feature of proceedings in respect of a service offence before either a court martial or a DFM under the DFDA entail “an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt” Lee No 1, at [318] per Gageler and Keane JJ; RPS v The Queen (2000) 199 CLR 620 at 630 [22]. See also Azzopardi v The Queen (2001) 205 CLR 50 at 64 [34]; Carr v Western Australia (2007) 232 CLR 138 at 152 [36]-[37]. The comprehensive admissions made by LEUT McCleave following the representation made to him conferred on any prosecuting authority a considerable and enduring forensic advantage in the event that any such proceedings were instituted.

33    In their joint judgement in Strickland, at [99]-[100], Kiefel CJ, Bell and Nettle JJ stated:

99    … As the majority of this Court stated in Moti v The Queen, decided cases should not be read as attempting to chart the boundaries of abuse of process. Nor should they be read as attempting to define exhaustively the circumstances that warrant exercise of the power to stay criminal proceedings or as providing some “exhaustive dictionary of words” by one or more of which executive action must be capable of description before proceedings may be stayed. As Kirby J aptly summarised the position in Truong v The Queen:

    “relief is not confined to cases of deliberate and knowing misconduct, although that may be sufficient to enliven the jurisdiction. It extends to serious cases where, whatever the initial motivation or purpose of the offending party, and whether deliberate, reckless or seriously negligent, the result is one which the courts, exercising the judicial power, cannot tolerate or be part of.”

100    No doubt, society and therefore the law ordinarily looks more askance on instances of deliberate or advertent reckless disregard of a duty or obligation than upon the accidents of incompetence. As a rule, the former are conceived of as entailing greater moral culpability and for that reason their condonation is conceived of as more likely to bring the administration of justice into disrepute. But ultimately it is a question of degree which substantially depends upon the nature of the duty or obligation. If a duty or obligation is of no more than peripheral significance, condonation of its breach, even of an intentional breach, may appear justified in the interests of relatively more pressing considerations of justice. The power to stay proceedings is not available to cure venial irregularities. But if, as here, the duty or obligation is of a kind that goes to the very root of the administration of justice, condonation of its breach will bring the administration of justice into disrepute regardless of the culprit’s mentality. Ultimately, these appeals turn on that distinction.

In my respectful view, no difference in principle is disclosed in this passage in relation to the power to stay a proceeding as an abuse of process from that derived by Staughton LJ in the Croydon Justices Case.

34    In their joint judgement in White v Director of Military Prosecutions (2007) 231 CLR 570, at [70] – [72] (White v DMP) Gummow, Hayne and Crennan JJ stated:

70.    In many instances, service as a defence member involves additional responsibilities whose enforcement calls for more than the application of the general law by civilian courts. …

71.    A more adequate starting point for analysis is apparent in the following passage in the title “Royal Forces” in the first edition of Halsbury’s Laws of England. The passage is as follows:

“It is one of the cardinal features of the law of England that a soldier does not by enlisting in the regular forces thereby cease to be a citizen, so as to deprive him of any of his rights or to exempt him from any of his liabilities under the ordinary law of the land. He does, however, in his capacity as a soldier, incur additional responsibilities, for he becomes subject at all times and in all circumstances to a code of military law contained in the Army Act, the King’s Regulations and Orders for the Army, and Army Orders.”

[Footnotes omitted]

72.    The matter was taken up by Windeyer J in the following passage in Marks v The Commonwealth:

“The relationship of members of the armed Services to the Crown differs essentially from that of civil servants whose service is governed by the regulations of the Public Service. The members of the Forces are under a discipline that the others are not: they have duties and obligations more stern than theirs: and rights and privileges that they cannot claim.”

[Footnote references omitted]

35    The service tribunal system the constitutional validity of which was emphatically vindicated in White v DMP exists to buttress the discipline of the members of the ADF, to ensure that they adhere to a code of military law found in the DFDA. Discipline ensures conformity with a chain of command at the very pinnacle of which is not a serving military officer but rather, by virtue of s 68 of the Constitution, the Governor-General, as the Queen’s representative. In turn, the Governor-General exercises that command on the advice of the Federal Executive Council (usually via the Minister for Defence), comprised of Ministers responsible to Parliament. Once this is understood, nothing could be more subversive of a military justice system than to countenance its use to try a member of the ADF who has been assured within his chain of command that no proceedings under the DFDA will be taken against him and, on the strength of that, has waived a right to silence and made admissions. The proceedings instituted and continued against LEUT McCleave were, for this reason, an abuse of the service tribunal process. That they constitute an abuse of process is in complete conformity with the understanding of what, in the civilian criminal justice system may, as explained in the Croydon Justices Case and Strickland, amount to an abuse of process. The DFM’s failure to appreciate this constituted an error of law.

36    The appeal and the application before the DFM proceeded on the footing that the DFM possessed power to stay the proceeding as an abuse of process. White v DMP confirms that a service tribunal such as a DFM does not exercise the judicial power of the Commonwealth under Chapter III of the Constitution but does nonetheless exercise a form of judicial power adapted to the end of trying cases in respect of alleged service offences under the military justice system. The jurisdiction of a DFM is wholly statutory. Relevantly, it is found in the obligation created by s 135(1) of the DFDA to “try a charge”. As a DFM does not constitute a superior court of record, it would not, in my view, be appropriate to source the power to stay a proceeding in inherent power. Rather, the power to try a charge must, by necessary implication, carry with it a power to prevent a trial which is an abuse of process. Thus, I discern no error in the position adopted by the parties.

37    The Appeals Act by s 23(1), confers upon the Tribunal a power to quash a conviction, where it appears to the Tribunal materially:

(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;

Each is apt to cover the present case. The DFM’s error of law led to the continuance of a proceeding which was an abuse of process. The calling on LEUT McCleave to plead was a material irregularity, because it occurred in a proceeding which should have been halted as an abuse of process. For each reason, a substantial miscarriage of justice occurred.

38    LEUT McCleave’s conviction should therefore be quashed. Given that the proceeding was an abuse of process, the interests of justice are such that the Tribunal should not exercise its power under s 24 of the Appeals Act to order a new trial. At least initially, LEUT McCleave also sought an order that there be a permanent stay of proceedings under the DFDA against him. The Tribunal is not a court but rather a body established by the Appeals Act to serve the ends of the military justice system. That being so, the absence of any express power in the Appeals Act to order a stay of proceedings tells against the Tribunal having any power to make such an order. As I understood it, this was accepted in the end by those representing LEUT McCleave. The absence of any such power is not, in my view of any moment for LEUT McCleave. That is because the Tribunal’s decision will bind not just the Chief of Navy but derivatively each of those who might institute a proceeding for a service offence. The basis upon which his conviction has been quashed and no new trial ordered is such that it is axiomatic that the institution of any further proceeding would be an unlawful abuse of process.

39    I would make orders accordingly.

Associate:

Dated:    21 February 2019

HILEY AND GARDE JJ:

introduction

Background

40    This appeal concerns the dismissal by a Defence Force Magistrate (DFM) on 15 December 2017 of an application by LEUT McCleave for a permanent stay under ss 129(1) and 134 of the Defence Force Discipline Act 1982 (Cth) (DFDA) of disciplinary proceedings commenced against him by the Director of Military Prosecutions (DMP).

41    LEUT McCleave was charged with “knowingly making a false or misleading statement in relation to application for a benefit” contrary to s 56(1) of the DFDA, alternatively “recklessly making a false or misleading statement in relation to application for a benefit” contrary to s 56(4) of the DFDA. The offending was said to have occurred on or about 24 June 2015 when LEUT McCleave completed an application and signed a declaration claiming an allowance for performing reserve service that he had not in fact done.

42    Following the dismissal of the application for a stay, LEUT McCleave entered a plea of guilty to the alternative charge of recklessly making a false or misleading statement and was convicted and sentenced. If his appeal against the dismissal of his stay application is to succeed, it is common ground that the conviction and sentence should be set aside.

43    In their outline of submissions, counsel for LEUT McCleave said:

In broad terms, the basis of the application to stay the disciplinary proceedings was that the continuation of those proceedings would constitute an abuse of process in circumstances where the Appellant had, expressly on the faith of an assurance given by the Executive Officer, Cerberus, that no disciplinary proceedings would be brought against him, provided full and candid disclosure of his conduct, motivation and personal and family circumstances. The Appellant had subsequently been issued with a formal warning in relation to his conduct. Notwithstanding these matters, several months later, disciplinary proceedings were brought against the Appellant by the DMP.

A consequence of the refusal to grant a permanent stay of the disciplinary proceedings in these circumstances is that the ultimate conviction of the Appellant was wrong in law and a substantial miscarriage of justice occurred.

44    We note, as conceded by counsel at the hearing that, LEUT McCleave was never in fact issued with a formal warning. However nothing turns on this. The main issue concerns the assurance given by the Executive Officer (XO) and the extent of any reliance upon that assurance by LEUT McCleave.

Facts

Offending – June 2015

45    On 10 June 2015, LEUT McCleave was authorised by LCDR Joseph Lindsay, the Command Legal Officer HMAS Cerberus, to perform reserve service from 21 to 23 June 2015, inclusive by completing three training courses at Defence Plaza, Melbourne (Defence Plaza) entitled:

(a)    Objective training;

(b)    Defence WHS refresher, asbestos and responsible record keeping training; and

(c)    Inquiry course training.

46    LEUT McCleave did not perform reserve service, attend Defence Plaza, or log in to the Defence Restricted Network over this period. He did not inform anyone at HMAS Cerberus of his failure to complete the training.

47    On 24 June 2015 LEUT McCleave sent an email to LCDR Lindsay attaching a Reserve Attendance Diary (RAD) certifying that he had performed the reserve service and was entitled to allowances for the dates shown in the RAD. The email included the following:

I attach my RAD for some online training I did this week at defence Plaza.

The mandatory training I did was the annual WHS training, asbestos and responsible book record keeping training.

The Inquiry officer training is a precondition to undertake the Inquiry Officer Course I’m doing in July at the MLC.

I have 24 training days available to use to apply to this RAD.

I certify that I have performed the attendances and am entitled to the allowances as claimed on the dates shown in the attached RAD.

Could you please forward it to payroll for processing.

48    HMAS Cerberus paralegal, LS Lisa Blake, noticed that the training listed in the RAD did not appear on PMKeyS (the Australian Defence Force’s information system for personnel management). She informed LCDR Lindsay. LCDR Lindsay directed LEUT McCleave to complete the three days of reserve service as a matter of priority, and that he be counselled about his conduct in submitting the RAD. LEUT McCleave was counselled by CMDR Welbourne. CMDR Welbourne is a very experienced former Director Navy Legal Services, and former permanent Navy Legal Officer and acted as Legal Officer mentor and supervisor of LEUT McCleave.

49    On 3 August 2015, LS Blake observed that PMKeyS still contained no confirmation that LEUT McCleave had completed the courses. LS Blake sent an email to LEUT McCleave querying his completion of the courses. On 4 August 2015, LEUT McCleave sent a text message to LCDR Lindsay, attaching a screenshot detailing courses he completed on the ADF online application, ‘CAMPUS’. The screenshot confirmed the completion online of ‘Objective User Training’ and ‘Defence Asbestos Awareness’ on 3 August 2015, and ‘Defence WHS Awareness – Refresher’ and ‘Living Navy Behaviours – Part 1’ on 4 August 2015. It is common ground that LEUT McCleave performed the three days of reserve service in August 2015.

ADFIS investigation

50    An investigation into this incident was conducted by the Australian Defence Force Investigative Service (ADFIS). LCDR Panayi, a legal officer, was appointed to provide legal advice and assistance to LEUT McCleave. LEUT McCleave declined to participate in the formal interview, not wishing to incriminate himself.

51    On 22 February 2016 LCDR Panayi sent a submission on behalf of LEUT McCleave to the investigating officer, CPL Daniel Rubio (Panayi submission). The submission contained 31 paragraphs and attached a number of other documents.

52    In the submission LCDR Panayi contended that:

(a)    the issue relates to the timing of LEUT McCleave’s claim for remuneration;

(b)    LEUT McCleave’s chain of command has already dealt with the matter administratively and he has completed the training; and

(c)    accordingly, the investigation should be formally concluded.

53    The Panayi submission included statements to the effect that:

(a)    LEUT McCleave intended to complete the training but was unable to do so by the end of the financial year;

(b)    LEUT McCleave submitted his claim in order to meet the cut off for the financial year as he was of the belief that this was permissible and appropriate given a number of circumstances existing at the time in his workplace;

(c)    There was no pecuniary loss to the Commonwealth because LEUT McCleave did complete the training in question (albeit in the next financial year);

(d)    LEUT McCleave had no intention to defraud or to gain a monetary benefit to which he was not entitled. He was required to undertake the training and he received the correct remuneration for the work he completed;

(e)    LEUT McCleave discussed his failure to complete the training in a timely manner with his immediate supervisor, apologised for the incident and explained other work and family issues he had at the time. These included the fact that his wife was seriously ill and that he was involved in a number of highly sensitive investigations as part of his civilian employment;

(f)    LCDR Lindsay had acknowledged these personal and work pressures and counselled LEUT McCleave as to the need to fully complete the online training before submitting claims for remuneration;

(g)    CMDR Welbourne prepared LEUT McCleave’s Naval Officer Performance Appraisal Report for 2015 (2015 NOPAR). He counselled LEUT McCleave on his handling of competing work demands, and on the correct process for remuneration claims. He advised LEUT McCleave that the counselling would be formally recorded in his 2015 NOPAR. “As such, this completed the administrative sanction as determined by his immediate superiors in his Chain of Command”; and

(h)    LEUT McCleave recognised his error in making the claim prior to fully completing the online training and has been counselled about his error of judgement.

54    On 24 August 2016 ADFIS provided a brief of evidence to the Commanding Officer (CO), HMAS Cerberus. The brief of evidence was provided to the XO of HMAS Cerberus, CMDR Verho. CMDR Verho considered the brief of evidence, took legal advice, and decided to proceed with administrative action, as opposed to disciplinary action.

The NTSC process

55    On 21 November 2016 a Notice to Show Cause (NTSC) signed by CMDR Verho was given to LEUT McCleave requiring him to show cause as to why he should not be formally censured for his conduct.

56    The NTSC:

(a)    stated that it had been brought to the author’s attention that:

while you were performing your duties as a Reserve Legal Officer your conduct may have been unacceptable for a person in your position as a Legal Officer of the Royal Australian Navy.

(b)    invited LEUT McCleave to show cause:

(i)    why the Imposing Authority should not be satisfied that the facts and circumstances, as alleged, occurred; and

(ii)    why the Imposing Authority should not impose a Censure upon him;

(c)    stated that the author was informed that:

a.    On 24 Jun 15 you emailed LCDR J Lindsay, RAN, Form AE 126-1 Reserve Attendance Diary where you certified that you had completed annual WHS training, asbestos, responsible book record keeping, and Inquiry Officer training courses at Defence Plaza, Melbourne, over the period 21-23 Jun 15. …

b.    A review of the Defence Electronic Access Control System indicated that you did not access Defence Plaza, Melbourne, over the period 21-23 Jun 15. …

c.    A review of the Defence Information Communication Technology Cell indicated that you did not access the Defence Restricted Network over the period 21-13 Jun 15. …

(d)    identified the evidence in support of each of the above allegations by reference to documents attached to the NTSC;

(e)    stated:

Subject to any response you may wish to submit, I may recommend to the Imposing Authority a Censure be imposed upon you. The details of my possible recommendation are as follows:

a.    your performance as a Legal Officer in the ADF was below that expected of an Officer of your training, profession, rank and experience

b.    your inability to demonstrate professionalism as an Officer has resulted in a loss of confidence towards you by your supervisors and Command team

c.    you have failed to demonstrate adherence to Navy Values and Signature Behaviours

   d.    and as a result of a Censure should be imposed on you.

(f)    stated:

You have 14 days from receipt of this Notice within which to provide a Statement of Reasons. Any Statement of Reasons is to be in writing and any relevant evidence, compelling circumstances or information you wish to be considered is to be attached to your response. In your response you may address the facts, the conclusions drawn from them and what action, if any, should be taken.

If you do not provide a Statement of Reasons within the specified period, I will refer the matter to the Imposing Authority for consideration with a recommendation that a Censure be imposed on you.

You may consult a legal officer if there is one reasonably available, or you may have another person assist you in preparing a Statement of Reasons. If you wish to apply for an extension of time for submitting a response, you are to apply to me …

After receiving any Statement of Reason you submit, I may decide to refer the matter to the Imposing Authority and make a recommendation to impose a Censure or a lesser administrative sanction, such as a Formal Warning for a period of 12 months or less, or Formal Counselling. I will rely on the issues and evidence raised at paragraphs 2 and 3 above to substantiate the imposition of an alternative adverse administrative sanction against you. …

(g)    identified as possible consequences of the NTSC:

a.    You will be recorded as not individually ready in the employment section of your Individual Readiness record for a period of 12 months from the date of imposition in the case of a Censure, or the period of the Formal Warning. This may affect your employability and eligibility to receive certain allowances that require individual readiness.

b.    You should not expect to be promoted or selected for certain postings or training courses for a period of 12 months …

c.    A Censure or Formal Warning will remain permanently on your personal record, and will remain in force for the duration of your career for a Censure, and the duration of the Formal Warning for a Formal Warning. Both may be considered in future reporting and career decisions, including consideration for promotion and selective positions.

d.    …

e.    The Censure, Formal Warning or Formal Counselling will be reported on in your Performance Appraisal Reports for five, two or one annual reporting periods respectively …

f.    …

(h)    noted that:

the Imposing Authority is not compelled to impose a Censure if your Statement of Reasons provide a sufficient basis for them to consider and impose a less severe administrative action against you … The Imposing Authority may also decide that no action should be taken.

(i)    advised that the Imposing Authority would consider a wide range of material including “your Statement of Reasons (if any) and additional material you wish to submit;” and

(j)    required LEUT McCleave to sign an acknowledgement that he had read and understood the NTSC.

57    On 1 December 2016, CMDR Verho and CMDR Welbourne had the following email exchange:

(a)    at 10:58am, an email from CMDR Welbourne to CMDR Verho:

I have been appointed … to represent LEUT McCleave in relation to the Notice to Show Cause (NTSC) issued by you to him. …

You may or may not be aware that he is being represented by LCDR Paul Panayi in relation to an ongoing ADFIS investigation concerning the very same issue raised in the NTSC.

It is presumed that the issuance of the NTSC follows the completion of those investigations, however, neither LEUT McCleave or his legal representative have been advised.

As a matter of procedural fairness, it is requested that you confirm that the ADFIS investigation has been discontinued and that DFDA charges will not be brought. This is necessary to permit LEUT McCleave to respond to the NTSC. Naturally, he is very willing to do so and wishes to be in a position to respond. However, for legal reasons, this is not possible should the ADFIS investigation remain afoot.

You will be aware of the legal principle of the right to silence concerning investigations by police and ADFIS. LEUT McCleave exercised his right to silence concerning the request from ADFIS to interview him.

As such, he is unable to openly respond to the administrative matters raised in the NTSC unless formally advised of the discontinuance of the ADFIS investigation. This is because he would effectively lose his right to silence and the contents of his response could be made available to ADFIS. You may be aware that in addition to Defence policy there is also legal guidance on this situation, which has been issued by Defence Legal. There is also legal precedent for intervention in the Federal Court on such matters and there are Federal Court rulings on the such matters.

Accordingly, it is respectfully requested that you confirm in writing that the ADFIS investigation has been discontinued and that DFDA charges will not be brought now that the administrative process has now commenced, in lieu, through the issuance of the NTSC by you. This will enable a speedy response for your consideration.

(Emphasis added)

(b)    at 1:31pm, an email from CMDR Verho to CMDR Welbourne:

Good afternoon Tony,

I can confirm that ADFIS has concluded their investigation and passed the BOE to Cerberus Command for DFDA and/or Administrative action.

I have determined that Administrative action is the most appropriate action to take hence the issue of the NTSC.

Cerberus does not intend taking any DFDA action. …

(Emphasis added)

(c)    at 1:51pm, an email from CMDR Welbourne to CMDR Verho:

Thank you Mel for your quick response.

Sorry to bother you about semantics, though, can you also please confirm that no DFDA charges will be brought, noting that you have determined that administrative action is the most appropriate course of action. …

(d)    at 2.24pm, an email from CMDR Verho to CMDR Welbourne:

No I will not be taking DFDA action.

58    On 9 January 2017, LEUT McCleave responded to the NTSC (NTSC submission). The NTSC submission was signed by LEUT McCleave and contained 78 paragraphs. It annexed 14 documents including five character references.

59    The NTSC submission requested CMDR Verho to take into account the fact that LEUT McCleave had already been administratively dealt with, and had been counselled in relation to the incident. The NTSC submission noted that a record of his counselling was included in his 2015 NOPAR and that at that time the matter was considered to be closed with no further action required.

60    The NTSC submission then stated:

I willingly provide this statement on the basis of the written advice provided by CMDR Verho, to my Legal Adviser, CMDR Welbourne, on 1 December 2016 namely that:

a.    the ADFIS investigation of the issues described in the Notice has concluded and that the matter was referred to Cerberus Command for determination of Defence Force Discipline Act or administrative action (sic);

b.    the Executive Officer of HMAS Cerberus, CMDR Verho, determined to initiate administrative action against me (as opposed to DFDA action) and that this is evidenced by the issue of the Notice and her email correspondence … ;

c.    no DFDA action will be taken against me regarding the issues described in the Notice; and

d.    that this Response to the Notice will not be used against me in any DFDA or criminal prosecution of the matters described in the Notice.

61    In the NTSC submission, LEUT McCleave proceeded to:

(a)    admit the facts stated in paragraph [2] of the NTSC;

(b)    admit that he had certified that he completed various training activities, whereas he had not completed them. Rather, he had commenced some components of the training and fully intended to (and did) complete the training soon thereafter;

(c)    apologise for what he had done and acknowledge that he had made an error of judgement which was out of character, exceptional, and would not happen again;

(d)    repeat and expand upon much of what had been said in the Panayi submission, particularly in relation to the history of the matter, issues within the Naval Reserve in relation to training and payment, his family and work pressures at the relevant time and administrative action already taken;

(e)    give details of his good character and extensive references; and

(f)    stress that he had no intention to defraud anyone.

62    The NTSC submission was tendered at the Tribunal hearing. It was not provided to the DMP prior to this time. However some parts of it, in particular the passage quoted in [60] above, were read out by the defending officer during the hearing of the stay application by the DFM.

63    Following receipt of the NTSC submission, the XO of HMAS Cerberus (by then CMDR Hoffman) determined that a formal warning would be issued to LEUT McCleave. That determination was endorsed by the CO of HMAS Cerberus. However no instrument was signed, no entry was made on the PMKeys system, and there was no notification to the Director General Navy People Career Management Agency.

64    On or about 5 March 2017, the DMP sought and was given access to the ADFIS brief of evidence. On 2 June 2017, the DMP signed a charge sheet. The Registrar of Military Justice referred the charge sheet to the DFM under ss 87(1)(c)(ii) and 129C(1) of the DFDA.

65    On 20 July 2017 the CO HMAS Cerberus wrote to LEUT McCleave and stated:

I have recently been informed that you have been charged by the Director of Military Prosecutions in relation to the matters that form the basis for [the NTSC submission].

Stay application

66    LEUT McCleave applied to the DFM for a permanent stay of the disciplinary proceedings on the basis that the continuation of those proceedings would constitute an abuse of process. That application was heard by the DFM on various days in November and December 2017, and dismissed on 15 December 2017.

67    At a subsequent directions hearing, LEUT McCleave made it plain that he intended to challenge the DFM’s dismissal of his stay application. Discussion ensued as to whether he should do that by bringing proceedings in the Federal Court or by entering a guilty plea before the DFM that would result in a conviction that could then be challenged by way of appeal to this Tribunal. He adopted the latter course. On 21 March 2018, he pleaded guilty to the alternative charge, namely “recklessly making a false or misleading statement in relation to application for a benefit” contrary to s 56(4) of the DFDA. He was convicted and given a severe reprimand.

Rescission of NTSC and appeal

68    On 9 May 2018, Commanding Officer HMAS Cerberus advised LEUT McCleave that he had been dealt with and punished by a DFM under the DFDA, the NTSC would be rescinded.

69    LEUT McCleave was informed of the result of a s 152 review of his conviction and punishment and the result of a s 154 report on 31 May 2018. His solicitors filed a notice of appeal on 21 June 2018.

the nature and legal effect of the assurance given to leut mccleave

MCDR Verho’s assurance

Appellant’s contentions

70    The main contentions of the appellant are based upon the two important propositions stated in the Appellant's Outline of Submissions. They are that LEUT McCleave:

(a)    had been assured (by the XO Cerberus), in writing, that no disciplinary proceedings or charges would be brought against him; that the representation was unconditional; and

(b)    made complete and candid disclosure of his conduct, motivation and personal and family circumstances in reliance of that assurance.

The evidence

71    The representation given by CMDR Verho is contained in the email exchange of 1 December 2016 with CMDR Welbourne.

72    CMDR Welbourne was clearly seeking confirmation from CMDR Verho that the ADFIS investigation had been discontinued and that charges would not be brought under the DFDA. CMDR Welbourne also expressed the concern that without those assurances LEUT McCleave’s right to silence would be lost. Although confirming that ADFIS had concluded its investigation, CMDR Verho did not confirm that charges would not be brought under the DFDA. Her response was qualified and confined to her own command and authority at HMAS Cerberus. She did not purport to speak for the Chief of Navy or for any person exercising higher authority than her own. She did not express a view on behalf of the independent DMP, and was not authorised to do so.

73    We are satisfied that CMDR Welbourne was well aware of CMDR Verho’s inability to give an assurance in the wide form he sought and her refusal to do so. Quite apart from his own considerable military legal knowledge and understanding of the role of the DMP, this is plain from the exchange of emails following CMDR Verho’s email of 1.31pm that “Cerberus does not intend taking any DFDA action.” In his email of 1.51pm CMDR Welbourne restated that he was seeking confirmation from CMDR Verho that “no DFDA charges will be brought”. CMDR Verho’s response was clear: “No I will not be taking DFDA action.” (set out at [57] above).

74    The exchange of emails is evidence that CMDR Verho spoke only for herself and for HMAS Cerberus. She was the XO who reported to the CO HMAS Cerberus. She did not speak for anyone else who had authority to prosecute and was not taken as doing so.

75    Accordingly LEUT McCleave’s assertion in para 4(c) of his response to the NTSC - that CMDR Verho had provided written advice to his legal advisor, CMDR Welbourne, that “no DFDA action will be taken against [him] regarding the issues described in the Notice” - was incorrect. CMDR Verho had not given any advice of this character – rather she had expressly refrained from doing so.

76    In summary, the assurance given by CMDR Verho was that she and HMAS Cerberus would not be taking any action under the DFDA.

77    We reject the submission made on behalf of the appellant to the effect that CMDR Verho assured LEUT McCleave that no disciplinary proceedings would be brought against him. The submission misstates what CMDR Verho actually said and is not supported by the email exchange between CMDR Welbourne and CMDR Verho on 1 December 2016.

Reliance

78    Further, we do not agree that LEUT McCleave relied on an assurance to the effect that no disciplinary charges would be taken against him by any authority when he provided the response to the NTSC.

79    Apart from his assertion in para 4(c) of the NTSC submission, there is no direct evidence of reliance by LEUT McCleave. Had he given evidence that he understood the assurance given by CMDR Verho to apply to all authorities capable of taking proceedings against him, he would have been cross-examined as to why this was so having regard to the email exchange of 1 December 2016. In the absence of evidence from him, or any other evidence called on his behalf, it is not open for us to surmise that he did in fact rely upon an assurance of the type he alleged was made by CMDR Verho.

80    Both he and CMDR Welbourne were military legal officers and were well aware of the existence of the office of the DMP and the authority of the DMP to bring charges under the DFDA. CMDR Welbourne had held a very senior naval legal appointment. While the DMP might be favourably influenced by a decision at unit level not to take administrative action, both were well aware of the statutory authority and independent discretion of the DMP to decide whether or not to prosecute under the DFDA.

81    Having failed to obtain the desired assurance from CMDR Verho that charges would not be brought under the DFDA by any authority, LEUT McCleave, advised by CMDR Welbourne, might have approached the DMP and sought an undertaking under s 188GD(3) of the DFDA that LEUT McCleave would not be prosecuted. However, such an approach might have had the reverse effect to that intended, and triggered a decision by the DMP to proceed to prosecute. In any event, LEUT McCleave did not do this.

82    LEUT McCleave was asked to respond to the NTSC, and did so. The NTSC made it plain that CMDR Verho considered there was a strong basis for the imposition of a censure and was likely to refer the matter to the Imposing Authority with a recommendation that a censure be imposed on LEUT McCleave. Moreover, the basic facts, set out in para 2 of the NTSC, were not in dispute and were admitted in the Panayi submission.

83    All of the evidence suggests that LEUT McCleave responded to the NTSC because he wished to avoid the imposition of a censure. There is no evidence that he relied on any assurance other than that actually given by CMDR Verho.

84    Quite apart from what we have said above, there was no change of position or reliance on an assurance by CMDR Verho of the type contended for by LEUT McCleave.

85    As we have said, the charges preferred against LEUT McCleave are similar in that each alleged that LEUT McCleave had made a false or misleading statement in relation to an application for a benefit. They differed only as to the mental element – the primary charge, under s 56(1) of the DFDA, required that the statement be made ‘knowingly’ while the alternative charge, under s 56(4), required only that the statement be made ‘recklessly’.

86    As we have also said, there was never any issue or doubt as to the underlying circumstances of the alleged offences, viz that LEUT McCleave had not completed the training for which he claimed payment. There was no dispute that he made a false or misleading statement regarding the completion of his training.

87    The only issue relating to the charges as to which there was any doubt was the mental element. In the Panayi submission, LEUT McCleave, while declining to be interviewed by ADFIS, admitted the underlying circumstances of the offences contending that he had no intention to defraud or to gain any monetary benefit to which he was not entitled. As we have noted, he said that he was of the belief that it was permissible and appropriate for him to do what he did, and that he had made an error of judgment which had been dealt with by counselling.

88    In the NTSC submission, LEUT McCleave again admitted the underlying facts relating to his actions as alleged in the NTSC. Again he stated that he had no intention to defraud or to gain a monetary benefit to which he was not entitled. Again he said that he believed that what he did was permissible and appropriate referring to the circumstances existing at the time.

89    There was no change of position by LEUT McCleave, either as to the underlying facts or the mental element of the charges between the Panayi submission and the NTSC submission. To the contrary, the evidence shows a high level of continuity in the position of LEUT McCleave before and after the exchange of emails on 1 December 2016. There was no new disclosure or revelation made by LEUT McCleave after 1 December 2016 concerning the underlying circumstances of the charges. His position as to the facts and intent relating to his conduct was unchanged.

90    Accordingly, we reject the submission that LEUT McCleave acted in reliance on an assurance by CMDR Verho to the effect that there would be no disciplinary proceedings brought against him.

Concurrent administrative and disciplinary action

The intertwined nature of administrative and disciplinary action

91    In the ideal world, disciplinary action under the DFDA would precede, and inform subsequent administrative action. However, as counsel for the respondent submitted, the real world is very different. The respondent’s submission to the Tribunal highlighted that a member of the ADF facing charges often experiences concurrent administrative processes and consequences. There is usually a requirement for a response by an accused member to a notice to show cause well before disciplinary investigations are complete, charges laid or hearings completed. As the facts of this case show, courts martial, defence force magistrates and legal advisers may frequently have to consider the legal effect and consequences of administrative actions when disciplinary charges are preferred or heard.

92    There is no simple solution to the difficulties that may arise because of the concurrent conduct of disciplinary and administrative action. One consequence is that the need to respond to administrative action may well affect the right of an accused to silence.

93    Counsel for the respondent referred to the situation of personnel accused of serious offences on deployment who may need to be returned to Australia, resulting in financial disadvantage, professional and personal embarrassment and adverse career impact. Procedural fairness requires personnel who are to be suspended under s 98 of the DFDA to be issued a NTSC as to why they should not be suspended. Those facing charges who are appointed to command must be afforded procedural fairness before removal from office. In most circumstances where an NTSC is given to an ADF member, it will be necessary for the ADF member to respond to the NTSC, and deal with circumstances that may later be the subject of DFDA action.

Existing guidance to commanders and legal officers

94    It is well recognised within the ADF that certain conduct is likely to result in both administrative and disciplinary action. Included in the Appeal book is an instruction entitled “Concurrent Administrative and Disciplinary / Criminal Action – Guidance for Commanders”. Annex A to that document is another document entitled “Additional Guidance to Service Legal Officers.”

95    Those references recognise that administrative action might be appropriate and taken even though disciplinary proceedings are ongoing or contemplated. Some of the points made are:

(a)    “Except in unusual cases, concurrent administrative action should not be taken if it will prejudice ongoing disciplinary or criminal proceedings.”

(b)    “Evidence obtained using compulsory powers can, as a general rule, be used only for the principal purpose for which it was originally obtained. … [A] statement obtained from a member by an inquiry officer under the authority of the Defence (Inquiry) Regulations 1985 that compel a person to answer the inquiry officer’s questions cannot be used against that person in DFDA proceedings (other than for giving false evidence to the enquiry officer).”

(c)    “There is the potential to prejudice the right to a fair trial simply by sharing information gathered under administrative processes with investigators or prosecutors, even where that information is not subsequently used at trial. The concern is giving prosecutors a tactical advantage contrary to the usual adversarial (common law) trial process.” –

(d)    “If a member has been charged with an offence, or is reasonably suspected of having committed an offence, information which they have previously provided to an administrative inquiry conducted under the Defence (Inquiry) Regulations should not be provided to investigators or prosecutors to preserve the fairness of any subsequent trial of that member. The legal issue is not just about the admissibility of evidence, but also providing the prosecution with an unfair forensic advantage.” (X7 v Australian Crime Commission [2013] 248 CLR 92 (X7); Lee v NSW Crime Commission [2013] HCA 39; Lee v R [2014] HCA 20) (emphasis added).

(e)    “Provided appropriate care is taken, in most instances it will be an option to initiate administrative action before the conclusion of disciplinary or criminal proceedings, especially interim administrative action.”

(f)    “… administrative inquiries should not be used for the purpose of obtaining evidence for use in disciplinary or criminal proceedings …”

(g)    “Where an administrative inquiry was conducted for a legitimate purpose, there are still legal issues associated with providing the inquiry report and its enclosures to investigators or prosecutors.”

96    The possibility of a member being issued with a NTSC is referred to in Annex A. Relevant matters in advising on the risks of concurrent administrative and disciplinary or criminal action include:

the impact on the accused member … of having to prepare for and respond to both sets of proceedings. For example, a member may decline to respond to a notice to show cause … on the grounds that any response may be admissible against them in a later trial. If this is the case, the commander should not draw an adverse inference against the member based on the lack of response … However, in not responding a member may give up the opportunity to provide additional evidence in their own favour with the consequence that the sanction is imposed. This should be weighed against the seriousness of the misconduct and the extent to which it is supported by evidence available to the administrative decision maker.

97    We note that while the references do refer to the need for early consultation between commanders and legal officers with investigative or prosecution authorities, they do not highlight the desirability of consultation with and clearance by the DMP before decisions are made by commanders to pursue administrative action rather than disciplinary action under the DFDA.

The NTSC process

98    The right of ADF members to procedural fairness governs the NTSC process. An ADF member who receives a NTSC is given the time and opportunity to provide a considered response to the subject matter of the notice. The member can elect to address the matters raised in the notice in whole or in part, or not at all; to provide additional material which might cast a different light on the matters raised in the notice; or provide evidence of past exemplary conduct. The member has the opportunity to obtain the assistance of legal counsel, or advisers, and to exercise a degree of choice and selectivity as to what is said, or not said, in the response.

The ACC Act process

99    While there is a risk that a NTSC response, even a response voluntarily submitted with legal assistance, may cause prejudice to an accused member who desires to rely on the right to silence, the risk is very much less than that experienced by an accused person under the compulsory Australian Crime Commission Act 2002 (Cth) (ACC Act) process.

100    The processes open to the Australian Crime Commission under the ACC Act and considered by the High Court in X7 and in Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53 (Strickland) are starkly different, and exist for the very different reasons of collecting criminal information and intelligence, and investigating criminal activity (see ACC Act s 7A).

101    Under the ACC Act process, a person may be summonsed to give evidence and produce documents before an examiner. The examination may be on oath or affirmation. It is an indictable offence, punishable by up to 5 years imprisonment for the person appearing as a witness at an examination to refuse or fail to answer a question that the examiner requires the person to answer. If objection is taken to answering a question on the ground that the answer might tend to incriminate the person or make the person liable to a penalty, the answer must nonetheless be given, but the answer is not admissible in evidence against the person in a criminal proceeding or proceeding for a penalty, except for confiscation proceedings, or proceedings in respect of the falsity of an answer. A witness may be examined or cross-examined on any matter that the examiner considers relevant by counsel assisting the examiner, or any person authorised to appear, as well as a legal representative of the person at the examination (ACC Act ss 28, 30; Strickland at [9]–[13] per Kiefel CJ, Bell and Nettle JJ).

102    A person subjected to the ACC process has no notice of, and may have very little control over, the subject matter and substance of a compulsory interrogation.

Prevention of unfairness

Remedies to prevent unfairness or prejudice to an accused person

103    There is a wide range of remedies available to a person whose right to a fair trial might be prejudiced in circumstances where admissions or other evidence have been obtained by unfair or unlawful means, or where an accused person has been required or felt obliged to waive his or her “right to silence”.

104    Where a person is required under statute to answer questions notwithstanding his or her common law “right to silence” there will often be statutory provisions prohibiting the use of such evidence in other proceedings (see for example s 128 of the Evidence Act 1995 (Cth) and s 30 of the ACC Act). An example can be found in legislation that confers a power upon a Commissioner of Police to compel a member of the police force to answer questions or provide information in relation to an alleged or suspected breach of discipline notwithstanding that such answers or information might incriminate the member or make the member liable to a penalty (see for example s 79A of the Police Administration Act 1978 (NT)).

105    The so-called “right to silence” is not a “constitutional or legal principle of immutable content” (X7 at [39] per French CJ and Crennan J, quoting Gleeson CJ in Azzopardi v The Queen (2001) 205 CLR 50 at 57 [7]). Rather it is an expression used to refer to a variety of immunities. One of these is the immunity of a person suspected of a crime from being compelled to answer questions put by the police or other persons in authority, namely the privilege against self-incrimination. Another is the immunity of an accused person at trial from being compelled to give evidence or to answer questions. This immunity reflects not only the privilege against self-incrimination but also the broader consideration that the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt and the presumption of innocence (X7 at [41]–[51]).

106    Further, courts have extensive discretions, and in some cases obligations, to reject evidence that has been obtained unlawfully, or in contravention of an Australian law, or in consequence of an impropriety (Evidence Act 1995 (Cth) s 138), to reject admissions made by a defendant in the presence of an investigating official, or as a result of an act of another person who the defendant reasonably believes is capable of influencing a decision as to whether the defendant should be prosecuted (s 85), or where it would be unfair to a defendant to use evidence of an admission having regard to the circumstances in which the admission was made (s 90). These are in addition to the more common provisions regarding the admission of evidence where its probative value is outweighed by the danger of unfair prejudice to the defendant (ss 135, 137).

107    The possibility of the prosecutor even having such evidence, whether for the purpose of using it at trial or for some other purpose, is regulated in some cases by statutory provisions such as s 25A of the ACC Act.

108    A trial judge also has other powers to prevent unfairness to an accused person. These include the ability to make orders regarding access to materials and to give directions to a jury. In certain circumstances the court also has the power stay a proceeding.

109    As we have already noted, the Minute entitled “Concurrent Administrative and Disciplinary / Criminal Action – Guidance for Commanders” contains provisions designed to have similar effect. The fact that the DMP never had a copy of the NTSC submission suggests that those provisions were adhered to in the present matter.

Grant of a permanent stay of proceedings

110    Important principles regarding the permanent stay of proceedings were restated recently by the High Court in Strickland. In that matter the primary judge had permanently stayed the proceedings which were tainted by the fact that the Australian Federal Police invalidly relied on the powers of the Australian Crime Commission to examine the defendants and thereby obtained evidence from them unlawfully, which was passed on to the prosecutors. Their Honours stressed the rarity of the circumstances in which it would be appropriate to permanently stay a proceeding.

111    Kiefel CJ, Bell and Nettle JJ said at [106]:

Certainly, as this Court has stated repeatedly, a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified. There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial. But, as this Court has also stated (citing Jago v District Court (NSW) (1989) 168 CLR 23 at [34] per Mason CJ, at [75] per Gaudron J (Jago); R v Glennon (1992) 173 CLR 592 at 605 per Mason CJ and Toohey J (Glennon); Truong v The Queen (2004) 223 CLR 122 at 172 [136] per Kirby J (Truong); Dupas v The Queen (2010) 241 CLR 237 at 251 [37] (Dupas); Moti v The Queen (2011) 245 CLR 456 at 478 [57] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), there is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.

112    Keane J said that at [169]:

… the decision by the primary judge to take the extraordinary step of staying the prosecutions of the appellants was warranted in the extraordinary circumstances of that case.

113    Gordon J (dissenting) said at [203]–[204]:

There is, of course, a “substantial public interest” in having persons charged with criminal offences brought to trial (citing Dupas at 251 [37] and Glennon at 598). To grant a permanent stay of a criminal proceeding is “tantamount to a continuing immunity from prosecution”. It is a drastic remedy. Often there are less drastic steps available to courts which are capable of preserving the fairness of a trial (citing Dietrich v R (1992) 177 CLR 292 at 365). And there is no defined list of such steps.

The question raised by these appeals is whether, in all the circumstances, each appellant would receive a fair trial or whether, in any event, there should be a permanent stay of the prosecution of the charges against the appellants to prevent the court's processes being used in a manner inconsistent with the recognised purposes of the administration of justice. The ACC’s conduct may be condemned. But if a fair trial can be had, or if it is not possible to say now that a fair trial cannot be had, why would the administration of justice be brought into disrepute?

114    Edelman J said at [248]:

A permanent stay of proceedings for an abuse of process is a measure of last resort. It will be ordered where there is no other way to prevent an unfair trial. It will also be ordered where there is no other way to protect the integrity of the system of justice administered by the court. The latter category, which can be conveniently described as protecting the “integrity of the court”, is the concern of these appeals.

115    Kiefel CJ, Bell and Nettle JJ said at [97]:

It is true that, in previous decisions regarding unlawful ACC examinations, the only circumstances in which it has been held necessary permanently to stay a prosecution to prevent the administration of justice falling into disrepute have been where there has been deliberately unlawful conduct on the part of investigative or prosecutorial authorities or at least advertent reckless disregard of lawful requirements.

…

The power to stay proceedings is not available to cure venial irregularities (see R v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42 at 77 per Lord Lowry; Truong at 172 [136] per Kirby J). But if, as here, the duty or obligation is of a kind that goes to the very root of the administration of justice (see and compare Jago; Williams v Spautz (1992) 174 CLR 509 at 518–520 per Mason CJ, Dawson, Toohey and McHugh JJ; Lee v The Queen (2014) 253 CLR 455 at 472–473 [50]), condonation of its breach will bring the administration of justice into disrepute regardless of the culprit's mentality.

Primary contentions of the appellant

Appellant’s submissions

116    In their written submissions counsel for the appellant said that the DFM correctly identified the principles governing the determination of an application for a permanent stay by reference to Clark v R [2016] VSCA 96 at [13]–[19] (Clark). In that decision the Victorian Court of Appeal held that:

The power to order a permanent stay derives from the inherent (or, in some cases, implied) power of a court, including the County Court, to protect the integrity of its processes where the administration of justice so requires. It is a remedy that is invoked in order to prevent an abuse of process.

The concept of abuse of process extends to the use of the court’s processes in a way that is inconsistent with two fundamental requirements arising in criminal proceedings. These are, first, 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 to function in that way, its failure will lead to an erosion of public confidence. The court’s processes will be seen as lending themselves to oppression and injustice.

The continuation of proceedings that are unjustifiably and unfairly oppressive will, of itself, amount to an abuse of process. Moreover, as is well understood, a prosecution can be stayed if it has been instituted and maintained for an improper purpose.

In a criminal context, the term ‘abuse of process’ encompasses not only circumstances within the narrowest conception of that term (such as bringing a prosecution for an improper purpose, or maintaining one that is clearly foredoomed to fail), but also pursuing a criminal proceeding in a manner that is unfair, and gives rise to oppression.

It is only in an extreme case that a permanent stay of proceedings will be ordered. Necessarily, such cases will be rare. It follows that an applicant for a permanent stay must discharge a heavy onus if a court is to be persuaded to grant that remedy.

In determining whether a permanent stay should be granted, a court must have regard to the substantial public interest in having those charged with serious criminal offences brought to trial. A stay of that kind is tantamount to an immunity from prosecution, and is not therefore lightly to be granted.

There is more to a court’s decision as to whether a trial should proceed than fairness to the accused. An applicant for a stay must establish that the continuation of the proceedings would, not merely could, involve unacceptable injustice or unfairness. It must be shown that the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to itself constitute an abuse of process.

117    Counsel contended in submissions:

The basis for the appellant’s application to the DFM for a permanent stay was that the continuation of the disciplinary proceedings would be oppressive and constitute an abuse of process, because:

a.    both the disciplinary proceedings and the adverse administrative action were based on the same conduct;

b.    the appellant had exercised, and expressed an intention to continue to exercise, his right to silence in any disciplinary proceedings (see Commander Welbourne’s email of 1 December 2016, 10:58am);

c.    in response to specific inquiries made by the appellant, he had been assured in writing there would be no disciplinary proceedings brought against him;

d.    that assurance was proffered by the Executive Officer, HMAS Cerberus, who was empowered to make such representation;

e.    relying on the assurance, the appellant then provided disclosure in response to the NTSC. In the response, the appellant conveyed to the Executive Officer, a comprehensive explanation of his conduct and the motivation for that conduct, as well as a forthright disclosure of his personal and family circumstances;

f.    the appellant stipulated that the disclosure was made on the basis of the representation from the Executive Officer, and his consequent understanding, that there would be no disciplinary proceedings brought against him;

g.    assuming there is no legislative prohibition to the use in the disciplinary proceedings of the information disclosed in response to the NTSC, such information could be used to the appellant’s detriment in the disciplinary proceedings (and even if there was such a prohibition, it may not necessarily cure the prejudice); and

h.    the information disclosed by the appellant in response to the NTSC was also acted on by Command, in that a formal warning had issued.

118    We pause here to note that, as explained elsewhere in these reasons, we do not agree with the contentions in subparagraphs (c), (d) or (e). While the stipulation referred to in subparagraph (f) was contained in [4] of the NTSC submission, no such representation was made by the XO. Further, as counsel acknowledged during the hearing of appeal, subparagraph (h) is incorrect. A formal warning was not issued.

Appellant’s contentions concerning the DFM’s ruling

The DFM’s ruling

119    The DFM gave written reasons for his refusal of a permanent stay of proceedings. After referring to the prosecution case, the DFM summarised the relevant principles relating to applications for permanent stays referring to relevant authorities. The DFM then referred to and quoted from authority as to the onus, fairness, the need to identify the prejudice at trial, and the availability of other remedies (referring to R v Gilham [2007] NSWSC 231 at [87] per Howie J (Gilham); Jago at 57 per Deane J; R v Slattery [2002] NSWCCA 367; Barton v The Queen (1980) 147 CLR 75 at 111 per Wilson J).

120    In Gilham, Howie J observed that it was for the accused to prove that the trial would be so unfair as to require a stay and that such an onus is not easily satisfied given the exceptional nature of the remedy. In Clark at [17], the Victorian Court of Appeal acknowledged that it is only in an extreme case that a permanent stay will be ordered, and that such cases are rare.

121    The DFM’s statement of the principles relating to applications for a permanent stay and reference to authority was not challenged by the appellant.

Categories of abuse of process

122    Although the categories of abuse of process are not closed, the usual categories of abuse of process are well-established:

(1)    the court’s procedures are involved for an illegitimate purpose;

(2)    the use of the court’s procedures was unjustifiably oppressive to one of the parties; or

(3)    the use of the court’s procedures would bring the administration of justice into disrepute (cited in Batistatos v Roads and Traffic Authority (NSW) (2006) 222 CLR 256 at 267 [15]; PNJ v The Queen (2009) 83 ALJR 384 at 386 [3]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 452 [89]; Roti v The Queen (2011) 245 CLR 456 at 464 [10]; Strickland at 82 [256]–[259]).

The DFM’s approach

123    After considering cases outlining the principles to be applied to an application for a permanent stay, the DFM gave consideration to what he described as the numerous cases referred to and handed up by counsel for LEUT McCleave. He considered that the cases could be readily split into two groups. They were where a stay was granted principally on the basis that:

(a)    the mere fact of future proceeding would be an abuse of process; and

(b)    particular facts such that the accused would be unable to receive a fair trial in the circumstances.

124    He then considered whether a permanent stay should be granted on the basis of abuse of process, first by reason of the prosecution of charges at all, and then secondly because there were in the circumstances particular facts that would preclude the accused from receiving a fair trial. The second issue concerned whether there was unfairness in the circumstances of the case due to the NTSC submission by LEUT McCleave.

125    We note that the dichotomy adopted by the DFM in considering abuse of process viz in pursuing a criminal proceeding in a manner which is unfair and gives rise to oppression, or in continuing a proceeding that is unfairly and unjustifiably oppressive so as to constitute an abuse of process is similar to that adopted by the Victorian Court of Appeal in Clark at [15]–[19].

Abuse of process by proceeding to prosecute at all

126    As to whether there was abuse of process by prosecuting at all, the DFM noted that Parliament had amended the DFDA in 2006 to establish the Office of the Director Military Prosecutions with power to prefer charges and decide whether they would be referred to trial by court martial or DFM.

127    The DFM said that it was significant in his mind that the 2006 changes were a major and deliberate structural reform of the discipline system by Parliament. This significant change to the operation of the discipline system was “a factor of some weight”. While it was not “a determinative factor” in either the granting or dismissing of the current application, the DFM considered that it would be a retrograde step to grant a permanent stay based merely on a representation from command that there would be no DFDA action. It would be defeating the clear legislative intent expressed in ss 143 and 144(4)(b) to grant a permanent stay “on the basis that there would be no DFDA charges”. The DFM was not satisfied that the bringing of the proceeding by the DMP was an abuse of process.

128    It was not disputed that an application for a permanent stay is not the occasion for an administrative law challenge seeking judicial review of the exercise of a decision to prosecute. It was not suggested by the appellant before the DFM or the Tribunal that there was any impropriety on the part of the DMP in deciding to prosecute. To the contrary, the appellant disavowed any suggestion of impropriety by the DMP. Nor was it suggested that there was a lack of statutory power or any excess of power by the DMP in bringing the charges.

129    As Mason CJ said in Jago at 28:

The question is not whether the prosecution should have been brought, but whether the court, whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves, should permit its processes to be employed in a manner which gives rise to unfairness. Such a question arises when proceedings have been set in train by the bringing of charges. It is a question for the judicial arm of government to address and, as such, mere silence on the part of the legislature cannot be taken as a command to the courts as to how it should be answered.

130    In Baker v Director of Public Prosecutions [2017] VSCA 58 at [43], Tate JA said :

… when a court is entertaining an application for a permanent stay of a criminal prosecution, the focus is upon whether the continuation of a proceeding within the court would be an abuse of process; it is not a review of a prosecutorial decision. The source of the jurisdiction to grant a stay is inherent to a court in order for it to protect the integrity of its processes where the administration of justice so requires.

131    In circumstances where there is no suggestion of lack or excess of power on the part of the prosecuting authority, or of improper purpose in bringing the charges, we see no basis on which it can be contended that there is any abuse of process by reason of the fact that the DMP decided to prosecute.

Abuse of process by continuation of the proceeding

132    The appellant challenged the DFM’s ruling that there was no abuse of process by continuation of the proceeding and made four submissions. They were:

(a)    the DFM wrongly identified as an issue, and misdirected himself by focusing attention on the fact that there was no impropriety in the part of the DMP; the DFM misconceived the true effect of a permanent stay;

(c)    the DFM misconceived the true effect of a permanent stay;

(d)    the DFM failed to appreciate properly the nature of the prejudice that LEUT McCleave would suffer as a result of the disclosure of information in response to the NTSC; and

(e)    the DFM failed to appreciate that it is the combination of the relevant circumstances that produces the relevant unfairness, or oppression rather than each circumstance considered in isolation.

133    As to the first submission, while the DFM describes the DMP as acting independently of command, and not solely or necessarily in the interest of command, we do not consider that the DFM was excessively or inappropriately concerned with any absence of impropriety on the part of the DMP. This was a relevant matter and a material fact in considering whether the decision of the DMP to proceed to prosecution was an abuse of process. The consideration was not given any significant weight (if any at all) when the DFM came to consider whether the continuation of the proceeding in the circumstances of the case was an abuse of process.

134    As to the second submission, we do not consider that the DFM misconceived the nature or effect of an application for a permanent stay. He said that he accepted the submission that the application was not aimed at the DMP’s decision to prefer the charges, but rather it was a matter for the court as to whether the trial should proceed. He remarked that the granting of a stay was “nonetheless tantamount to an immunity” from prosecution, and that “it would be an unusual case indeed in which a representation from command itself warrant such an outcome”. We do not consider that the remarks demonstrate or indicate that the DFM did not understand the nature or effect of a permanent stay or the circumstances in which a permanent stay should be considered. Nor do the remarks show that the DFM did not understand the difference between a permanent stay and the grant of immunity. It is plain from the DFM’s ruling that he understood the nature of and general principles relating to an application for permanent stay. We also note that the DFM’s observation that the granting of a stay was tantamount to an immunity from prosecution appears to be taken from the decision of the Victorian Court of Appeal in Clark, and is, we expect, adopted from that paragraph which was quoted earlier in the DFM’s ruling.

135    As to the third submission, we consider that there were inadequacies in the way the DFM considered the application for a permanent stay on the ground of unfairness. We will describe the inadequacies shortly. Nonetheless we are of the view that in the end result there was no substantial miscarriage of justice.

136    The fourth submission is incorrect. The DFM stated that he had considered the appellant’s grounds both individually and collectively and was not satisfied that the grounds when viewed in combination would be so unfair or unjustifiably oppressive as to constitute an abuse of process.

Fairness

137    In Jago at 57, Deane J said:

The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment.

138    In considering the issues of fairness, consideration must be given to forensic advantages that may be sustained by the prosecution or disadvantages suffered by the defendant. In X7, the court noted the forensic advantage that may be sustained by a defendant who could no longer decide the course that he should adopt at trial according only as to the strength of the prosecution’s case as revealed by the material provided by the prosecution before trial or to the strength of the evidence led by the prosecution at trial (at 142–3 [75]–[80] per Hayne and Bell JJ, Kiefel J agreeing).

139    In Strickland, Kiefel CJ, Bell and Nettle JJ refer to the forensic disadvantage to defendants of being locked into a version of events from which they could not credibly depart (at 23 [75]). The answer that a person of interest is compelled to give may fundamentally alter the accusatorial process for the investigation, prosecution and trial of an offence by compelling the person to provide the prosecution with information (at 24 [77]).

The DFM’s consideration of fairness

140    Counsel for LEUT McCleave submitted that a permanent stay should have been given on the basis of the assurance given by CMDR Verho and the matters set out in the NTSC submission.

141    As to the email exchange between CMDR Verho and CMDR Welbourne, the DFM noted, as we have done, that the XO had replied that ‘Cerberus does not intend taking DFDA action’ and that when asked again she replied ‘No. I would not be taking DFDA action.’ The DFM observed that it was not suggested that the XO was being anything other than frank and forthright. It was not suggested that she was being cute in her reply or playing word games.

142    We have already set out the evidence before the DFM relating to the email exchange between CMDR Verho and CMDR Welbourne (see above [57]). In our view, the appellant has not shown that the DFM erred in the assessment and findings that he made concerning the assurance given by CMDR Verho. Contrary to the appellant’s submission, the assurance given by CMDR Verho related, and was understood as relating, only to HMAS Cerberus and not to the DMP as an independent prosecution authority.

143    We now turn to the consideration by the DFM of the effect on the hearing and determination of the charges arising from the NTSC submission, and in particular whether any unfairness or forensic disadvantage was suffered by LEUT McCleave as a consequence of the making of the NTSC submission.

144    The DFM was not provided with a copy of the NTSC submission, as the Tribunal has been. In our view, careful review of the NTSC submission was essential to determine whether there was any forensic advantage to the prosecution or any unfairness, or forensic disadvantage to the accused as a result of its content. The DFM identified some of the difficulties he experienced in ruling on the issue of unfairness without the benefit of the NTSC submission. He described himself as “not privy to the full details of the response submitted by the accused” although he had some material in an exhibit.

145    As a result, the DFM was “prepared to assume for current purposes that his disclosures to command were broader than those made by his counsel (LCDR Panayi) during the ADFIS investigation”.

146    In our view, the DFM’s ruling on unfairness should not have been based on assumptions as to the extent of the accused’s disclosures in the NTSC submission even if seen as favourable to the accused. The NTSC submission should have been tendered in evidence before the DFM and made the subject of submissions by counsel. There should have been a proper evidentiary foundation on which the DFM’s ruling could be made.

147    The DFM observed that he had no evidence as to whether the accused was minded to contest the charges, or contest the prosecution evidence in a manner contrary to the NTSC submission or merely put the prosecution to its proof. Again, these difficulties arose because the NTSC submission was not produced to the DFM, and no evidence was led as to the course intended to be followed or the real nature of the unfairness or prejudice said to be suffered by the accused.

148    As he had no evidence, the DFM said that he was faced with the prospect of reconvening the pre-trial hearing and seeking further evidence. Rather than reconvening the pre-trial hearing, and obtaining the missing information, the DFM elected to proceed on what he described as “the most favourable basis to the accused”. In the absence of the NTSC submission, and in the absence of evidence relating to the stay application or as to reliance, the DFM had little to go on in determining the stay application.

149    Nevertheless, the DFM concluded that “there was no legal impediment to the accused contesting the charges to the fullest”, and that the prosecution had not been put in a more advantageous position than they otherwise should be in an accusatorial system. LEUT McCleave was still able to have a fair trial.

150    The DFM held that he was not persuaded that the potential for practical embarrassment was sufficiently grave when compared with the public interest in having the charges tried.

Determination of the appeal by the Tribunal

151    We agree with Logan P that the appeal can, and should be finally determined by the Tribunal. The Tribunal has been provided with a copy of the NTSC submission, and is familiar with the evidence before the DFM. The Tribunal is able to determine whether there was a substantial miscarriage of justice without the need to remit the proceeding back to the DFM for further hearing.

Was there a substantial miscarriage of justice?

152    Under ss 23(1)(b) and (c) of the Defence Force Discipline Appeals Act 1955 (Cth) (‘DFDA Act’), the Tribunal is required to consider whether a substantial miscarriage of justice has occurred. Under s 23(1)(d) of the DFDA Act, the Tribunal must also consider whether in all the circumstances of the case, the conviction is unsafe or unsatisfactory.

153    Despite the inadequacies in the determination of the stay application by the DFM, we are not satisfied that a substantial miscarriage of justice has occurred, or that the conviction of LEUT McCleave is unsafe or unsatisfactory.

154    As we have said, review of the NTSC submission by LEUT McCleave shows that he made no concession beyond those earlier made by him in the Panayi submission. While the NTSC submission is a comprehensive and persuasive submission which includes an apology, an explanation of LEUT McCleave’s conduct, work and personal issues, it makes no greater concession as to the underlying circumstances of the charges than had previously been made. Both the Panayi submission and the NTSC submission deal with personal issues such as work stress, and family medical issues, the NTSC submission doing so more extensively.

155    As for the circumstances underlying the charges, and the mental intent of LEUT McCleave, the NTSC submission simply reiterates the position already put in the Panayi submission prior to the service of the NTSC.

156    As we have said, both the Panayi submission and the NTSC submission admit the underlying factual circumstances relating to the charges and contend that LEUT McCleave had no intention to defraud or gain a monetary benefit to which he was not entitled. Both documents contend that LEUT McCleave believed his conduct was permissible and appropriate in the circumstances.

157    In short, while admitting that false certification of entitlement for payment was made by LEUT McCleave in relation to training that had not been completed, both documents seek to submit that the contravention did not occur intentionally or knowingly.

158    The material provided in the NTSC submission is supportive of LEUT McCleave’s position and good character, describes his work stresses, and refers to delays and failures in service pay administration. A similar case was mounted on LEUT McCleave’s behalf in the Panayi submission.

159    Ultimately, the prosecution accepted LEUT McCleave’s case that his contravention was not made ‘knowingly’. LEUT McCleave elected to plead guilty to the alternative charge which alleged reckless conduct on his part. We note that his plea of guilty to that charge is entirely consistent with his case as presented in the Panayi submission and the NTSC submission.

160    Having compared the Panayi submission and the NTSC submission, and having regard to the earlier admissions, we are not satisfied that there was any material forensic advantage obtained by the prosecution from the making of the NTSC submission (which in any event the prosecution had not seen). Nor are we satisfied that LEUT McCleave suffered any material unfairness or forensic disadvantage from the making of the NTSC submission. He was no more locked into a position as a result of the NTSC submission than he was following the Panayi submission. In substance his forensic position remained the same.

161    This is not a case where the accused could not receive a fair trial as a result of what had been done, or where the continuation of the prosecution would bring the administration of military justice into disrepute. Rather it is a case where the public interest required the charges brought by the DMP to be heard and determined. It is not one of those rare cases where a permanent stay of proceedings should be granted.

162    In all of the circumstances, we are not satisfied that the appellant has satisfied the ‘heavy onus’ that needs to be shown if a permanent stay is to be granted. We are not satisfied that there was any substantial miscarriage of justice, or any reason to conclude that his conviction after his plea of guilty to the alternative charge was unsafe or unsatisfactory.

Authorities referred to by appellant regarding a stay following a particular representation

163    Counsel identified a number of cases in which courts have specifically considered whether there should be a permanent stay of criminal proceedings where a representation, promise or undertaking was made or given to the accused to the effect that they would not be subject to criminal prosecution. In response to the submissions of counsel, we should comment on these cases.

164    In R v Milnes and Green (1983) 33 SASR 211, an accused charged with murder sought at trial a permanent stay of proceedings in the Supreme Court of South Australia. Soon after the murder was committed, police received anonymous calls from a man who said he had information about the crime. Investigators made public statements to the effect that, if the man with the information came forward, he would not be prosecuted provided that he was not implicated in the death of the victim in any way. The accused came forward and made statements to police.

165    The trial judge said that the Crown’s promise came with conditions that were not met, and that it was not unjust or oppressive to continue the trial. However he excluded from evidence the conversations with police officers in which negotiations were conducted and confessions made. On appeal, Wells J (with whom White J agreed) agreed with the trial judge, noting that the trial had been conducted in a way so as to minimise any prejudice that may have arisen. The appeal was dismissed.

166    Counsel for the appellant sought to distinguish this case by contending that the representation made by CMDR Verho to the appellant was unconditional. We disagree. CMDR Verho did not represent that the appellant would not be prosecuted.

167    The next case referred to by counsel was R v Georgiadis [1984] VR 1030. The accused was prosecuted even though he had previously been given a written undertaking of indemnity signed by the Attorney-General of Victoria that amount to an undertaking not to prosecute him. He had been given that indemnity in order to induce him to give evidence against others in a trial for conspiracy to import heroin, and in the course of cross examination in that trial he had made admissions that were the basis of the subsequent charges against him.

168    The trial judge, Ormiston J, cited with approval the Privy Council’s observation in R v McDonald [1983] NZLR 252 at 255 that, “it is quite unthinkable that such an undertaking [an immunity from prosecution] would not be honoured”, and found that the indemnity in the case before him was an undertaking not to prosecute. Both the Privy Council and Ormiston J emphasised the practical effect of the undertaking in inducing the accused to give evidence that he would not otherwise have given and the practical effect of allowing the Crown to go back on such agreements. Sources such as the accused would no longer give vital evidence, or would be wary about the evidence they gave. This was contrary to the public interest in bringing criminals to justice.

169    Counsel for the appellant relied upon that authority too, contending that the appellant was induced to respond to the NTSC by the representation that would be no disciplinary action. Again, we disagree with that contention. There was no such representation.

170    Counsel next referred to matter of Williamson v Trainor [1992] 2 Qd R 572. The accused was charged with assault occasioning bodily harm. On the first day of the trial in the Magistrates Court the prosecution requested an adjournment, which was refused. The accused opposed the adjournment because his primary witness was about to leave the State. The matter was stood down, and in the course of the break the accused, at the prosecutor’s request, signed an agreement that he would not seek costs and “the Crown … agreed not to proceed further with the … charge” (at 576). The prosecutor then informed the magistrate that no evidence would be presented and the accused was discharged. No costs order was sought. A few months later the accused was charged, tried and convicted of the same offence. The accused’s witness was not available at the second trial.

171    The Court of Appeal allowed the appeal, overturned the conviction and stayed the proceeding for abuse of process. Ambrose J (with whom Derrington J agreed) said it would be unconscionable to bring the second proceeding after representing that the Crown would not proceed with the charge. His Honour found that public confidence in judicial processes would be eroded if those processes were “used in an unconscionable manner designed to or having the effect of placing difficulties in the way of an accused person defending himself” (at 582). Emphasis was placed on the fact that the accused’s inability to call his witness was caused by the prosecution’s conduct in bringing about the delay. This prejudiced the accused’s ability to procure a fair trial, which was enough to render the proceedings an abuse of process. Dowsett J commented that “[n]othing is more likely to bring the judicial process into disrepute than to permit either the Crown or the police force to resile from such an agreement” (at 583).

172    Again, that case is readily distinguishable from the present.

173    Counsel next referred to R v Tilley (1992) 109 FLR 155 at 163. The accused had admitted to engaging in sexual intercourse with a child on two occasions. Following consultation between the accused and the family of the child a deliberate decision was taken by responsible members of the Australian Federal Police Sexual Assault Unit not to institute proceedings against him for those criminal offences. Two years later a member of the Australian Federal Police presented an information charging the accused with those offences. The accused sought to have the proceedings stayed as an abuse of process. The trial judge, Gallop J, found that there was an agreement reached with the accused and his family that no criminal proceedings would be instituted unless the safety of the girl from further sexual attack by the accused could not be ensured. In particular, his Honour held that there was an oral agreement to that effect, and that by the institution of the proceedings by the police and their continuation by the Director of Public Prosecutions, the authorities had not kept faith with the accused. His Honour said at 166:

Nothing is more likely to bring the judicial process into disrepute than to permit the Crown or the police force to resile from such an agreement without proper reason. The institution of the committal proceedings and their continuation in this Court by the Director of Public Prosecutions, in my opinion, constitute an abuse of process.

174    Again, that matter is readily distinguishable from the present matter. There has been no representation that criminal proceedings would not be instituted.

175    Counsel for the appellant relied heavily upon R v Croydon Justices, Ex parte Dean [1993] QB 769. The applicant, aged 17, and two other persons were arrested on suspicion of murdering the victim. During his interview by police the applicant made significant self-incriminating admissions to conduct in the nature of assisting the other persons to destroy incriminating evidence. He was released without charge on the basis that he was to be a prosecution witness. He continued to assist the police voluntarily for a period of over five weeks on his understanding that he would be a prosecution witness and because he was told by police that he would not be prosecuted for any offence in connection with the murder.

176    Staunton L.J., with whom Buckley J agreed, said at 776:

It is submitted on behalf of the Crown Prosecution Service that they alone are entitled, and bound, to decide who shall be prosecuted, at any rate in this category of case; and that the police had no authority and no right to tell the applicant that he would not be prosecuted for any offence in connection with the murder: see section 3(2) of the Prosecution of Offences Act 1985. I can readily accept that. I also accept that the point is one of constitutional importance. But I cannot accept the submission of Mr. Collins that, in consequence, no such conduct by the police can ever give rise to an abuse of process. The effect on the applicant or for that matter on his father, of an undertaking or promise or representation by the police was likely to have been the same in this case whether it was or was not authorised by the Crown Prosecution Service. It is true that they might have asked their solicitor whether an undertaking, promise or representation by the police was binding and he might have asked the Crown Prosecution Service whether it was made with their authority. But it seems unreasonable to expect that in this case. If the Crown Prosecution Service find that their powers are being usurped by the police, the remedy must surely be a greater degree of liaison at an early stage.

177    His Lordship concluded his consideration of this point with the following at 778:

In my judgment the prosecution of a person who has received a promise, undertaking or representation from the police that he will not be prosecuted is capable of being an abuse of process. Mr. Collins was eventually disposed to concede as much, provided (i) that the promisor had power to decide, and (ii) that the case was one of bad faith or something akin to that. I do not accept either of those requirements as essential.

178    Counsel for the appellant referred to this case as authority for the proposition that there could be an abuse of process notwithstanding that CMDR Verho did not have authority to make a representation that purported to bind the DMP. Counsel contended that if the DMP finds her powers being usurped by commanders “the remedy must surely be a greater degree of liaison at an early stage.”

179    As with the other cases already discussed, Croydon is readily distinguishable from the present matter because CMDR Verho did not represent that the appellant would not be prosecuted. Moreover, unlike the ordinary man in the street such as the 17-year-old involved in the murder investigation in Croydon, as we have already noted, the appellant and CMDR Welbourne had considerable military legal experience, were well aware of the independent role of the DMP and of the limited authority of CMDR Verho as XO of HMAS Cerberus. They were well aware of the fact that the DMP had authority to commence disciplinary proceedings notwithstanding the existence of administrative action.

180    The other decision referred to by counsel for the appellant was that of Martin J in R v Mohi [2000] SASC 384. The accused was treated as a witness in the course of a murder investigation. He gave two detailed statements (without a caution) in which he admitted to assisting two suspected murders by, among other things, washing away the victim’s blood. Police and prosecutors repeatedly confirmed that the accused would be a witness and would not be charged. However he was ultimately charged with assisting, and was brought to trial with the two offenders. The trial came more than a year after the accused gave his initial statement. In the course of the trial the accused sought a permanent stay of the proceedings against him. The trial judge, Martin J, stayed the proceedings insofar as they concerned the accused. Martin J identified relevant considerations as including the length of time during which the accused was treated as a witness, the nature of the statements (not being made under caution), the repeated confirmations that he would be a witness and would not be charged, and the reliance on his statements at the preliminary hearing.

181    Again that case is readily distinguishable from the present matter, where there was no representation that LEUT McCleave would not be charged and there was no reliance upon such a representation.

182    Further, as counsel for the respondent pointed out, most if not all of those cases involved the police or some other prosecution authority offering or at least appearing to offer an indemnity to induce the witness to provide information and give evidence, a scheme envisaged under s 188GD of the DFDA. In the present case, it was CMDR Welbourne who initiated the request for advice as to whether the investigation had been completed and whether disciplinary proceedings would occur, not any prosecutorial authority. CMDR Welbourne and LEUT McCleave did not receive the unequivocal answer to their enquiries that they were hoping for.

conclusion

General conclusion

183    As we have already pointed out the assurance asserted by LEUT McCleave to have been given by CMDR Verho was not made. LEUT McCleave was not entitled to and did not rely upon such an assurance when he responded to the NTSC in the way that he did. He had already set out his position in the Panayi submission.

184    In our opinion the circumstances, particularly those revealed in the email exchange of 1 December 2016, were not such as to render it an abuse of process for the appellant to be prosecuted under the DFDA. There was no unfairness, injustice or prejudice to LEUT McCleave as should result in the grant of a permanent stay. It also follows that leave should not be given for the appellant to withdraw his guilty plea.

185    Accordingly we would dismiss the appeal.

Comment

186    However we would add some brief comments. It is regrettable that despite the early action taken by LEUT McCleave to perform the service, apologise for his conduct, receive counselling from his superiors, and provide a detailed explanation for his conduct in the Panayi submission, all within nine months of his offending in June 2015, proceedings were not commenced against him until June 2017. By then, he had received and responded to the NTSC. He was assured in December 2016 that the ADFIS investigation had been concluded and that disciplinary action would not be taken by HMAS Cerberus. There is a need to harmonise the advice to be given to an ADF member where, at unit or equivalent level, a commander is of the view that administrative action is appropriate and sufficient, with the DMP’s independent power to proceed with disciplinary action under the DFDA. These are matters for the ADF to resolve and for the DMP to take into consideration when deciding whether proceedings should be instituted. They were also matters for the DFM to take into account when sentencing the appellant.

Associate:

Dated:    21 February 2019