Coleman v Chief of Army [2003] ADFDAT 2

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Coleman v Chief of Army [2003] ADFDAT 2 CRIMINAL LAW – theft- appellant's property in possession of police after search and seizure – whether "property belonging to another person" CRIMINAL LAW – plea of guilty - circumstances in which conviction may be set aside WORDS AND PHRASES – "property belonging to another person" Defence Force Discipline Act 1982 (Cth) s 47 Defence Force Discipline Appeals Act 1955 (Cth) s 23 (1) (b) and (c) Meissner v The Queen (1995) 184 CLR 132 applied R v Kardogeros [1991] 1 VR 269 cited R v Hough (1894) 15 LR(NSW) 204 cited R v Cameron (1924) 24 SR(NSW) 302 cited Rose v Matt [1951] 1 KB 810 cited R v Turner (No 2) [1971] 2 All ER 441 cited C R Williams, Property Offences, 3rd ed, 1999, at 15 Rupert Cross Larceny by an Owner and Animus Furandi (1952) 68 LQR 99 DEAN WILLIAM COLEMAN V CHIEF OF ARMY DFDAT 1 OF 2003 HEEREY J (President), UNDERWOOD J (Deputy President) and MILDREN J (Member)

1 AUGUST 2003 MELBOURNE

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL DFDAT 1 OF 2003

BETWEEN: DEAN WILLIAM COLEMAN

APPELLANT

AND: CHIEF OF ARMY

RESPONDENT

TRIBUNAL: HEEREY J (President), UNDERWOOD J (Deputy President) and MILDREN J (Member)

DATE OF ORDER: 1 AUGUST 2003

WHERE MADE: MELBOURNE

THE TRIBUNAL ORDERS THAT:

The appeal is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL DFDAT 1 OF 2003

BETWEEN: DEAN WILLIAM COLEMAN

APPELLANT

AND: CHIEF OF ARMY

RESPONDENT

TRIBUNAL: HEEREY J (President), UNDERWOOD J (Deputy President) and MILDREN J (Member)

DATE: 1 AUGUST 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellant appeals against convictions by a Defence Force Magistrate (DFM) on two charges. The first was a charge of burglary contrary to s 61 of the Defence Force Discipline Act 1982 (Cth) (DFDA) incorporating s 102(1) of the Crimes Act 1900 (ACT) in that, being a Defence member, at the Military Police Office, Simpson Barracks, Macleod, Victoria between 3 and 4 December 2001 he did enter a building as a trespasser within intent to steal. The second was a charge of stealing contrary to s 47(1) DFDA (as it then stood) in that, being a Defence member, at the place mentioned between 3 and 4 December 2001 he did dishonestly appropriate a Military Police exhibit namely WAW/5 comprising two VHS video tapes being the property of the Commonwealth with the intention of permanently depriving it thereof. 2 The appellant was also convicted on a charge of damaging service property, namely a glass panel on a door of the Military Police Office. No appeal is brought against that conviction. 3 The appellant, who was represented by a legally qualified officer, pleaded guilty to all charges. Thus the appellant must bring himself within the limited circumstances in which convictions after a plea of guilty can be set aside: Meissner v The Queen (1995) 184 CLR 132. 4 Broadly speaking, the case of the appellant is that the evidence before the DFM disclosed no offence because the video tapes in question were his own property.