Jones v Chief of Navy [2012] FCAFC 125

FEDERAL COURT OF AUSTRALIA

Jones v Chief of Navy [2012] FCAFC 125 Citation: Jones v Chief of Navy [2012] FCAFC 125

Appeal from: John Jones v Chief of Navy [2012] ADFDAT 2

Parties: JOHN ALAN JONES v CHIEF OF NAVY

File number: NSD 841 of 2012

Judges: KEANE CJ, EMMETT, EDMONDS, BESANKO & ROBERTSON JJ

Date of judgment: 7 September 2012

Catchwords: DEFENCE AND WAR – charges of indecency – applicant convicted on seven counts before General Court Martial (GCM)– appeal from GCM to Defence Force Discipline Appeals Tribunal (Tribunal) – appeal on a question of law from Tribunal to the Court – grounds – whether Tribunal erred in failing to find substantial miscarriage of justice – prosecutor's final address at trial said to be prejudicial – direction made by Judge Advocate to jury – direction itself said to be prejudicial – any prejudice to applicant negatived – irregularity in proceeding at GCM not tantamount to miscarriage of justice – no error of law – grounds not made out – whether Tribunal erred in failing to find that Judge Advocate erred when directing Panel on s 67 of Crimes Act 1900 (ACT) – directions on law sufficient for Panel to dispose of real issues – ss 60 and 67 of the Crimes Act 1900 (ACT) not inconsistent – no error of law – ground rejected – whether Tribunal erred in failing to find that convictions were unreasonable because inconsistent with acquittals – open to Panel to conclude to requisite standard that applicant guilty – independent examination of evidence by Tribunal – open to Tribunal to conclude that Panel could be satisfied to requisite standard that applicant guilty – ground rejected – whether Tribunal erred in failing to find convictions were wrong in law– ruling made by Judge Advocate on objections to charge sheet – offence under s 60 of Crimes Act 1900 (ACT) said to be unavailable – offence under s 33(c) of Defence Force Discipline Act 1982 (Cth) said to be equivalent – duplicity alleged – materially different offences – ground rejected – s 67 of Crimes Act 1900 (ACT) on consent said not to apply – s 67 need not be "picked up" – operation of s 67 not impermissible legislative interference with exercise of judicial power – not contrary to Ch III of Constitution – ground rejected – whether Tribunal erred in failing to find that Judge Advocate erred in failing to dissolve Panel after misconduct by prosecutor in closing address – no reversal of onus of proof – complaint not put before Tribunal – ground rejected – whether Tribunal erred in failing to find that Judge Advocate erred in admitting into evidence recording of police interview with applicant – part of interview referring to covert recording – admission of this part of interview said to be erroneous – no error – ground rejected – offences subject of convictions said to be indictable offences – entitlement to trial by jury – ground rejected COSTS – s 52 Defence Force Discipline Appeals Act 1955 (Cth) – not exhaustive statement of powers of the Court – general power of the Court to award costs available – s 43 Federal Court of Australia Act 1976 (Cth)