Betts v Chief of Army [2018] ADFDAT 2

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Betts v Chief of Army [2018] ADFDAT 2 Appeal from: Defence Force Magistrate

File number: DFDAT 2 of 2017

Members: TRACEY (PRESIDENT), BRERETON AND GARDE (MEMBERS) JJ

Date of Decision: 10 July 2018

Catchwords: DEFENCE AND WAR – appeal from a decision of a Defence Force Magistrate ("DFM") – where the appellant was found guilty of four counts of obtaining a financial advantage contrary to s 61(3) of the Defence Force Discipline Act 1982 (Cth) and s 135.2(1) of the Criminal Code (Cth) by way of an overpayment of rental allowance, knowing or believing that he was not eligible to receive that advantage – where the appellant failed to advise Defence Housing Australia in accordance with cl 1.5.2(4) of the Defence Determination 2005/15 that he was subletting his residence to his friend – whether the DFM erred in ruling that cl 1.5.2(4) imposed a legal duty on the appellant such that failure to perform that duty constituted conduct by omission for the purposes of ss 4.3 and 135.2(1) of the Criminal Code (Cth) – whether the DFM erred in refusing the appellant's application to amend the charge sheet to avoid a multiplicity of charges – whether the DFM erred in finding that the appellant was subletting his residence and that he was therefore required to report that circumstance – whether the DFM erred by amending the charge sheet so that it read "subletting" rather than "sharing" – whether a reasonable doubt existed as to the appellant's knowledge or belief that he was not eligible to receive the relevant amount of rental allowance STATUTORY INTERPRETATION – meaning of "sub-letting" in Ch 7 of Defence Determination 2005/15

Legislation: Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) Sch 1 item 1 Criminal Code (Cth) ss 4.1, 4.2, 4.2(1), 4.2(4), 4.3, 4.3(b), 5.3, 135.2(1), 135.2(1A) Defence Act 1903 (Cth) ss 58B, 58E Defence Force Discipline Act 1982 (Cth) s 61(3) Defence Force Discipline Appeals Act 1955 (Cth) ss 20(1), 23(2), 23(1)(a), 23(1)(b), 23(1)(c), 23(1)(d) Defence Determination 2005/15 cls 1.5.1-1.5.4, 1.5.6, 1.5.2(4), 1.5.2(5), 7.1.2, 7.1.3(1), 7.6.2, 7.6.3, 7.6.19, 7.6.21, 7.6.21(3) Defence Determination 2005/52 Defence Determination 2016/19 (Conditions of Service)