DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL Watson v Chief of Army [2010] ADFDAT 3 Citation: Watson v Chief of Army [2010] ADFDAT 3 Appeal from: Application for leave to appeal from a Defence Force Magistrate decision dated 24 June 2010 Parties: BRETT GRAHAM WATSON v CHIEF OF ARMY File number(s): DFDAT 2 of 2010 Members: TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & MILDREN J - MEMBER Date of judgment: 11 October 2010 Catchwords: DEFENCE AND WAR – communication of document from Appellant to defending officer – communication confidential – obtained as result of impropriety – not properly admitted Legislation: Commonwealth Constitution, Chapter III Criminal Code Act 1995 (Cth), s 145.1 Defence Force Discipline Act 1982, s 61(3) Evidence Act, Part 3.10, ss 120(1), 138 & 138(3) Summary Authority Rules, Rules 12, 12(2) & 44 Cases cited: Lane v Morrison (2009) 239 CLR 230 Ridgeway v The Queen (1995) 184 CLR 19 Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington) (2005) 64 NSWLR 612 Place: Sydney Division: General Number of paragraphs: 27 Counsel for the Appellant: Commander J Renwick with Flight Lieutenant P Thompson Solicitor for the Appellant: Wyatt Attorneys Counsel for the Respondent: Brigadier L McDade Solicitor for the Respondent: Director of Military Prosecutions DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL DFDAT 2 of 2010 BETWEEN: BRETT GRAHAM WATSON Appellant AND: CHIEF OF ARMY Respondent JUDGES: TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & MILDREN J - MEMBER DATE OF ORDER: 11 october 2010 WHERE MADE: melbourne (heard in sydney) THE TRIBUNAL ORDERS THAT: 1. Leave to appeal be granted. 2. The appeal be allowed. 3. The conviction and sentence imposed by the Defence Force Magistrate be quashed. 4. In lieu thereof a verdict of not guilty be entered. 5. Question of costs reserved. 6. Leave to the Appellant to provide written submissions as to costs within 28 days. 7. The Respondent is to provide written submissions in reply within a further 14 days. THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL DFDAT 2 of 2010 BETWEEN: BRETT GRAHAM WATSON Appellant AND: CHIEF OF ARMY Respondent JUDGES: TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & MILDREN J - MEMBER DATE: 11 october 2010 PLACE: melbourne (heard in sydney) REASONS FOR JUDGMENT 1 This is an application for leave to appeal against a conviction imposed by a Defence Force Magistrate. The grounds of appeal in the amended Notice of Appeal are as follows: "The grounds of the appeal are that the Defence Force Magistrate erred: (a) In both fact and law in his construction of s.138 of the Evidence Act (Cth), and its application to the facts of the case thereby admitting evidence in the prosecution case at trial of the Appellant's own defending officer (an Army corporal) in previous proceedings; (b) In law in determining whether there was a reasonable hypothesis consistent with innocence." 2 A third ground was intended to be argued, but that ground was abandoned at the hearing. 3 At his trial before the Defence Force Magistrate, the Appellant faced two charges. The first charge was one of engaging in conduct outside the Jervis Bay Territory that is a Territory offence, being the offence of forgery. In relation to that charge, he was found not guilty. In relation to the second charge of engaging in conduct outside the Jervis Bay Territory that is a Territory offence, being the offence of using a forged document contrary to the Defence Force Discipline Act 1982 s 61(3) and the Criminal Code Act 1995 (Cth) s 145.1, the appellant was found guilty. 4 The particulars of the second charge were as follows: "Being a Defence member at RAAF Base Richmond in the state of New South Wales on a day in May 2009, used a false document namely a purported New South Wales Police Witness Statement of 19 November 2008 headed 'In the matter of: Wilful damage of a motor vehicle', knowing it to be false, by giving that Statement to his Defending Officer, 8491408 Corporal Sylvio Szilvagyi, with the intention of dishonestly inducing Major Stephen Williams to accept it as genuine in his capacity as a public official, namely as a Summary Authority trying charges against Private Watson under the Defence Force Discipline Act 1982, and intending thereby to dishonestly influence the exercise by Major Williams of his public function in trying the charges against Private Watson." THE FACTS 5 The Appellant was a Private in the Army performing duties as an Air Dispatcher. In late 2009, the Appellant's divorce became acrimonious. He complained to NSW police that his dogs had been poisoned. 6 On 19 November 2008, he was 30 minutes late for work at 176 Air Dispatch Squadron at RAAF Base Richmond. The Appellant told his superiors that his car had been damaged and that he had been to the Windsor police to report the damage. The exchange with his superiors became acrimonious. He was told that he would be charged with absence without leave, disobeying a lawful command and engaging in insubordinate conduct. 7 The Appellant complained about his treatment. This resulted in a Quick Assessment being instituted. By at least 21 November 2008, the Assessor, FLT LT Mackey, had been given a document purporting to be a NSW police statement which the learned Magistrate ultimately found to be forged. The facts do not record who gave the forged NSW police statement to FLT LT Mackey. 8 On 1 April 2009, the Appellant was charged with the offences of absence without leave, engaging in insubordinate conduct and disobeying a lawful command. On the same date, MAJ Williams was appointed as a summary authority to hear the charges. As is usually the case in summary hearings, there was no legal representation by either party. CPL Szilvagyi was appointed to defend the appellant and a CPL Gitsham was appointed as the prosecutor. At the summary hearing, the appellant gave evidence in his defence. The essence of his defence related to an allegation that his car had been interfered with and he was unable to start it until he obtained some assistance from a friend. He claimed also to have gone to the police station to report the matter before arriving at his work place. He gave no evidence in chief of having made a statement to the police. In cross-examination however, the prosecuting officer cross-examined the Appellant on the police statement with a view to establishing a prior inconsistent statement. After the cross-examination had concluded, CPL Szilvagyi handed up the statement to MAJ Williams. The prosecutor then said to MAJ Williams that the statement should not be taken into consideration as he had been informed by the police at the Windsor police station that they have no record of the statement being taken and no record of the matter being reported to the police that day. MAJ Williams said he would take into account the prosecutor's objection. After adjourning for a short time, MAJ Williams found the charges proved and imposed minor penalties. 9 The prosecutor obtained a copy of the purported police statement from the Appellant's unit records. 10 The Appellant appealed against his convictions to the former Australian Military Court, where he was represented by the same counsel who appeared on the appeal to this Tribunal. The appeal was heard, but before the appeal was decided, the High Court delivered judgment in Lane v Morrison (2009) 239 CLR 230. The effect of that decision was that the Australian Military Court was constituted to exercise the judicial power of the Commonwealth otherwise than in accordance with Chapter III of the Commonwealth Constitution and hence its establishment was invalid. The three charges were ultimately quashed by petition on grounds which are not relevant, with an order that there be no new trial. 11 An affidavit was obtained from CPL Szilvagyi for use by the Director of Military Prosecutions in the appeal to the Australian Military Court. A copy of that affidavit was not before us. A further statement was obtained on 22 October 2009. It is not disputed that no consent was given by the Appellant, or by any lawyer representing the Appellant, for the contents of any communications between the Appellant and CPL Szilvagyi to be divulged on either occasion. 12 At the trial before the learned Defence Force Magistrate, an element of the offence which the prosecution needed to prove was that the Appellant gave the police statement to his defending officer, CPL Szilvagyi. The only person who could give that evidence in the prosecution case was CPL Szilvagyi. 13 At the hearing before the learned Defence Force Magistrate, objection was taken that the evidence of that communication had been obtained as the result of an "impropriety" within the meaning of s 138 of the Evidence Act 1955 ("the Evidence Act"). The learned Defence Force Magistrate found that there was no reason to believe that, at the time the Appellant provided CPL Szilvagyi with the witness statement, he intended that either the contents of that document or his supply of it to him was to remain confidential. It was not in contention that the document itself was not confidential or privileged. The contention was that the communication of the document to CPL Szilvagyi was a confidential one and ought not to have been led in evidence. The learned Defence Force Magistrate found that not only was there no reason to believe that the communication and the circumstances of the communication of the document to CPL Szilvagyi were intended to be confidential, but that he could see no impropriety in CPL Szilvagyi being asked to confirm that he was supplied with a copy of the witness statement by the Appellant. Therefore, the learned Defence Force Magistrate said that he did not need to consider whether he should exercise his discretion to exclude the communications between the Appellant and CPL Szilvagyi. At the conclusion of the hearing before the learned Defence Force Magistrate the Appellant was convicted, fined $500 and in addition, ordered to be dismissed from the Defence Force. THE SUBMISSIONS OF THE PARTIES 14 Essentially the argument of counsel for the Appellant was that the learned Defence Force Magistrate ought to have found that the communications between the Appellant and his defending officer were confidential and that he also ought to have found that evidence of those communications was improperly obtained. The essence of the Respondent's argument was that there was no impropriety on the part of the Australian Defence Force Investigative Service ("ADFIS") in obtaining that information from CPL Szilvagyi, that the communication was not confidential and, even if it were, it fell within the fraud exception. Alternatively, it was submitted that the extent of any impropriety was very minor and that the discretion to admit the evidence should have led to the admission of it because the desirability of admitting the evidence outweighed the undesirability of admitting it. OUR DECISION 15 It is common ground that the occasion when the Appellant was conferring with his defending officer is not a privileged occasion for the purposes of Part 3.10 of the Evidence Act. The Evidence Act does not apply to the circumstances for a number of reasons. First, a Summary Authority is not a Court. Therefore, s 120(1) did not apply. Secondly, CPL Szilvagyi is not a lawyer and therefore the provisions of Part 3.10 of the Evidence Act relating to lawyer/client privilege have no application. Thirdly, because Rule 44 of the Summary Authority Rules protects only confidential communications between an accused and a person representing the accused before the Summary Authority itself, that Rule could not assist the Appellant. 16 Section 138 of the Evidence Act provides as follows: "(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) … (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject‑matter of the proceeding; and (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 17 The first question is whether the learned Defence Force Magistrate was wrong in finding that the communication was not a confidential one. First, it is to be noted that in the absence of proof to the contrary, a communication in any form between an accused person and a person representing an accused person in relation to proceedings before a Summary Authority are regarded as confidential pursuant to Rule 44 of the Summary Authority Rules. Whilst it is true that the rule only seeks to protect the confidentiality in respect of proceedings before the Summary Authority itself, we are not in any doubt that the Appellant was entitled to regard whatever he said to his defending officer as confidential, not only for the purposes of the proceedings before the Summary Authority but for all purposes. No one would expect a communication between the Appellant and his defending officer to be able to be later revealed by his defending officer to other persons. Were it otherwise, the trust which is necessary between a defending officer and an accused person would be undermined. Further, we note that, under the Summary Authority Rules Rule 12, an accused person has no right to be represented by a legal officer at a hearing before a Commanding Officer or Superior Summary Authority unless leave is given and the services of a legal officer are reasonably available. In practice, legal officers are rarely given permission to defend an accused person before a Summary Authority. 18 In the case of hearings before a Subordinate Summary Authority, an accused person is not entitled to be represented by a legal officer and there is no power to grant leave: see Rule 12(2). 19 So far as the learned Defence Force Magistrate's ruling that the supply of the document by the Appellant to the defending officer was not intended to be confidential is concerned, there are simply no facts to support that finding. Prima facie, the communication was at least protected by Rule 44 of the Summary Authority Rules to the extent that those rules operated. In the absence of any evidence suggesting otherwise, and there is none, the proper conclusion to be drawn from the evidence is that the Appellant's communication to his defending officer was of a confidential nature. 20 The focus of s 138 does not depend upon the evidence being confidential, although, the fact that it is confidential may properly inform the question of whether the evidence was improperly obtained. 21 We were referred to the discussion by the NSW Court of Appeal in Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington) (2005) 64 NSWLR 612 which provides some guidance as to what may be regarded as evidence which has been obtained improperly. In that case, Basten JA (with whom Barr J concurred) said, after referring to the decision of the High Court in Ridgeway v The Queen (1995) 184 CLR 19, that impropriety was to be understood as concerned with "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement": at 617. 22 We note that there is no definition of "improperly" in the Evidence Act. With respect, the test suggested by Basten JA is a useful one. Adapting it to the circumstances of an investigation by the ADFIS, could it be said that the minimum standards of a society such as ours and, in particular, the standards required of the ADFIS require that no inquiry should be made which is intended to elicit the disclosure of a communication which the Appellant understood to be confidential in the circumstances of this case? We have no hesitation in answering that question by saying that prima facie an inquiry of that nature is improper. The investigator may be taken to have been aware of the circumstances in which and the purpose for which the document was given to CPL Szilvagyi. He should have been alert to the possibility that the Appellant might consider the exchanges between the Appellant and his appointed defending officer to be confidential. No attempt to obtain the evidence from CPL Szilvagyi should have been made before the questions of whether the Appellant held that view and, if so, whether it was properly held, were resolved. ADFIS operates in a military environment. In that environment those in whom confidences are reposed may feel obligated to breach confidences when questioned by an investigator, especially if the investigator is senior in rank to the person from whom the information is sought. Accordingly, we are satisfied that the only reasonable conclusion open to the learned Defence Force Magistrate was that the Appellant had established, the burden being on the Appellant, that the evidence was obtained improperly. That being so, the burden of proof of establishing that the evidence ought to be admitted because the desirability of admitting the evidence outweighed the undesirability of not admitting it, taking into account the factors referred in s 138(3), rested with the prosecution: see Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington) (2005) 64 NSWLR 612 at 621. 23 The learned Defence Force Magistrate made no findings as to whether or not the discretion should be exercised to admit the evidence and it is a matter that we do not think we are able to decide for ourselves. 24 In those circumstances, it has not been established that the evidence was properly admitted. It was conceded by BRIG McDade that if the evidence was not properly admitted, the only appropriate course is to quash the conviction. An order for a new trial is not sought. 25 For the sake of completeness, we record that no argument was presented to us as to whether or not leave was required. To the extent that leave may have been required, we would grant leave to appeal. 26 The orders of the Tribunal are: 1. Leave to appeal granted. 2. The appeal is allowed. 3. The finding of guilt and the conviction and sentences are set aside and a verdict of not guilty substituted. 27 We reserve the question of the costs of the appeal and grant leave to the Appellant to provide written submissions as to costs within 28 days. The Respondent is to provide written submissions in reply within a further 14 days. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey - President, White - Deputy President & Mildren - Member. Associate: Dated: 11 October 2010