Wethling v Chief of Army (No 2) [2007] ADFDAT 3

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Wethling v Chief of Army (No 2) [2007] ADFDAT 3 DEFENCE – appeal against conviction by Defence Force Magistrate of forgery and using a forged document – appellant entitled to leave for service in the Australian Defence Force – applied for leave – appellant indicated an interest in acquiring a franchise – required to produce documentary evidence of future commitments – document submitted to Commanding Officer alleged to be forgery – DFM found that appellant lied in saying another document was delivered to the Commanding Officer – disbelief of appellant – lie told out of consciousness of guilt used as positive evidence of guilt of offences under Criminal Code (Cth) Held: 1. Lie relevant to the credibility of the appellant but not to be used as an implied admission of guilt of the forgery: appeal on these grounds allowed. 2. Appeal otherwise dismissed. 3. No retrial

Criminal Code (Cth) ss 11.2, 144.1 and 145.1 Criminal Code (Qld), s 568(4) Criminal Code (WA), s 586(4) Edwards v The Queen (1993) 178 CLR 193 applied Harris v The Queen (1990) 55 SASR 321 referred to R v Sutton (1986) 5 NSWLR 697 referred to R v Heyde (1990) 20 NSWLR 234 cited R v Webb (1992) 59 SASR 563 cited Gilson v The Queen (1991) 172 CLR 353 cited M v R (unreported; SA Court of Criminal Appeal; 18 August 1993) cited Credland v Knowler (1951), 35 Cr App R 48 cited Tripodi v The Queen (1961), 104 CLR 1 cited Reg v Buck (1982) 8 A Crim R 208 cited Reg v Preval [1984] 3 NSWLR 647 cited R v Evans (1985) 38 SASR 344 cited People v Showers (1968) 440 P 2d 939 cited Broadhurst v The Queen [1964] AC 441 R v Lucas [1981]QB 720 cited BRYAN DAVID WETHLING v CHIEF OF ARMY (No 2) DFDAT 3 OF 2006

HEEREY J (PRESIDENT), MILDREN & DUGGAN JJ (Members)

10 SEPTEMBER 2007