McCleave v Chief of Navy [2019] ADFDAT 1

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

McCleave v Chief of Navy [2019] ADFDAT 1 Appeal from: Defence Force Magistrate

File number: DFDAT 1 of 2018

Members: LOGAN (PRESIDENT), Hiley (MEMBER) AND GARDE (MEMBER) JJ

Date of decision: 21 February 2019

Catchwords: DEFENCE AND WAR – appeal from a decision of a Defence Force Magistrate – abuse of process – where appellant admitted to offences under s 56(4) of the Defence Force Discipline Act 1982 (Cth) – where admissions were made after the appellant received representations within his chain of command that he would not be prosecuted – whether representations made constituted an undertaking not to prosecute – representations not made by Director of Military Prosecutions (DMP) – no bad faith – role of the DMP – whether representations relied on by the appellant – effect of concurrent administrative and disciplinary action – no abuse of process – appeal dismissed.

Legislation: The Constitution s 75(v) Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3 Australian Crime Commission Act 2002 (Cth) ss 7A, 25, 28, 30 Criminal Law Act 1967 (UK) s 4(1) Defence Force Discipline Act 1982 (Cth) ss 23(1)(d), 56(1), 56(4), 87(1)(c)(ii), 98, 129(1), 129C(1), 134, 143, 144(4)(b), 188GD(3) Defence Force Discipline Appeals Act 1955 (Cth) ss 23(1)(b), 23(1)(c) Evidence Act 1995 (Cth) s 85, 90, 128, 135, 137, 138 Judiciary Act 1903 (Cth) s 39B Police Administration Act 1978 (NT) s 79A Police and Criminal Evidence Act 1984 (UK) Prosecution of Offences Act 1985 (UK) s 3(2)(b)