Full Federal Court Quashes Common Assault Conviction

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v Chief of [RESPONDENT] [2004] FCAFC 148

[NAME] — [NAME] 1982 (Cth) — service offences — civil offences — Territory offences — assault provisions

STATUTORY INTERPRETATION — inconsistency between specific and [NAME] provisions — expressum facit cessare tacitum — generalia specialibus non derogant

CRIMINAL PROCEDURE — abuse of process — whether constituted by laying of charge under [NAME] provision to avoid time-bar on specific charge — whether constituted by delay in bringing charge — whether constituted by pressure upon applicant to plead guilty — whether stay of proceedings should have been granted

CONSTITUTION — validity of [NAME] 1982 (Cth) s 61 — [NAME] power (s 51(vi)) — judicial power — military law

[NAME] 1982 (Cth) ss 3(1), 33, 34(1), 61, 96(1) and (4) [NAME] [NAME] 1903 (Cth) ss 4, 55 [NAME] [NAME] 1955 (Cth) [NAME] 1900 ([NAME]) s 26 [NAME] Co [COMPANY] v [NAME] (1926) 37 CLR 466 discussed The Danube II [1921] P 183 discussed [APPELLANT] v Chief of [RESPONDENT] [2003] ADFDAT 4 reversing Lawson v Gault (2002) 125 FCR 1 distinguished [NAME] v [NAME] (1989) 168 CLR 289 discussed Re [NAME]; [NAME] [NAME] (1991) 172 CLR 460 discussed Re [NAME]; [NAME] [NAME] (1989) 166 CLR 518 discussed [NAME]; [NAME] [NAME] (1994) 181 CLR 18 discussed [NAME] v The Queen (1991) 172 CLR 1 discussed [NAME] [NAME], Statutory Interpretation 4th ed, [NAME], London, 2002 [NAME], A Selection of Legal Maxims, 10th ed, [NAME], London, 1939 [NAME]: Report of the 1973 [NAME] (1974) Parliamentary Paper No. 48, Canberra, 1974 [NAME[NAME] [NAME], Statutory Interpretation in Australia 5th ed, [NAME], [APPELLANT], 2001 [NAME] 7th ed, [NAME], London, 1971 [NAME] [APPELLANT] v CHIEF OF [RESPONDENT] N 1485 OF 2003 [NAME], BEAUMONT, WILCOX, [NAME] 31 MAY 2004 [APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1485 OF 2003

ON APPEAL FROM THE [NAME] TRIBUNAL

[APPELLANT]

APPELLANT

[RESPONDENT]

RESPONDENT

JUDGES: [NAME], BEAUMONT, [RESPONDENT], [NAME] OF ORDER: 31 MAY 2004

[APPELLANT]

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The order of the [NAME] Tribunal dismissing the appellant's appeal be set aside and in lieu thereof the appeal be upheld, the conviction of the appellant be quashed and a verdict of acquittal entered in its place.

3. The respondent pay the appellant's costs of this appeal.

4. Pursuant to s 37 of the [NAME] [NAME] 1955 (Cth), the respondent pay to the appellant such sums for the costs of the appeal to the Tribunal and of his [NAME] against the charge out of which the appeal arose as may be agreed or, failing agreement, such sum as is assessed by the Registrar of the Tribunal.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1485 OF 2003

ON APPEAL FROM THE [NAME] TRIBUNAL

[APPELLANT]

APPELLANT

[RESPONDENT]

RESPONDENT

JUDGES: [NAME], BEAUMONT, WILCOX, [NAME]: 31 MAY 2004

PLACE: [APPELLANT] FOR [NAME], [NAME]: 1 This is an appeal pursuant to s 52 of the [NAME] [NAME] 1955 (Cth) (the [NAME]) from a decision of the [NAME] Tribunal (the Tribunal) dismissing an appeal against the conviction of the appellant by a [NAME] for common assault contrary to s 61 of the [NAME] 1982 (the [NAME]) ([APPELLANT] v Chief of [RESPONDENT] [2003] ADFDAT 4).

Proceedings before the Tribunal 2 The charge, the proceedings before the Magistrate and the relevant statutory provisions are set out in the judgment of [NAME[NAME] which we have had the advantage of reading in draft. The appellant was legally [NAME] before the Magistrate and pleaded guilty. 3 The notice of appeal to the Tribunal was as follows: 'The applicant appeals from an order of a [NAME] at [NAME] made on 10 March 2003. Grounds of the appeal 1. The [NAME] [NAME] erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the [NAME] ('the [NAME]') by trying the charge and by convicting the applicant under s.135 of the [NAME], by taking action under part 4 of the [NAME] and by imposing punishment on the applicant pursuant to s.75 of the [NAME] because the proper construction of s.61(1) and s.190(5) of the [NAME] is that it does not proscribe as a service offence conduct that would constitute a civil offence under s.26 of [NAME] 1900 ([NAME]) when ss.33(a) and 34 of the [NAME] specifically provide for a service offence for substantially the same physical and mental elements and accordingly there was as a matter of jurisdiction no charge of a service offence and no conviction of a service offence.

2. Alternatively, the [NAME] [NAME] erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the [NAME] by trying the charge and by convicting the applicant under s.135 of the [NAME], by taking action under part 4 of the [NAME] and by imposing punishment on the applicant pursuant to s.75 of the [NAME] because s.61 of the [NAME] is beyond the legislative power of the Commonwealth and invalid and / or should be read down in so far as it purports to proscribe as a service offence conduct that would constitute a civil offence under s.26 of [NAME] 1900 ([NAME]) and accordingly the conviction is invalid and of no effect.

3. Alternatively, the [NAME] [NAME] erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the [NAME] by trying the charge and by convicting the applicant under s.135 of the [NAME], by taking action under part 4 of the [NAME] and by imposing punishment on the applicant pursuant to s.75 of the [NAME] because the [NAME] was purporting to exercise the judicial power of the Commonwealth. In so far as s.129 of the [NAME] purports to vest in the [NAME] jurisdiction to exercise the judicial power of the Commonwealth in respect of the hearing and determination of an offence against s.26 of [NAME] 1900 ([NAME]) as a service offence, it is contrary to ss. 71 and 72 of the Constitution and accordingly the conviction is invalid and of no effect.

4. Alternatively, the [NAME] [NAME] erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the [NAME] by trying the charge and by convicting the applicant under s.135 of the [NAME], by taking action under part 4 of the [NAME] and by imposing punishment on the applicant pursuant to s.75 of the [NAME] because the charge against the applicant pursuant to s.61 of the [NAME] applying s.26 of [NAME] 1900 ([NAME]) was an indictable offence against a law of the Commonwealth and was required to be tried by a jury pursuant to s.80 of the Constitution and accordingly the conviction is invalid and of no effect.

5. Alternatively, the [NAME] [NAME] erred in law by trying the charge and by convicting the applicant under s.135 of the [NAME], by taking action under part 4 of the [NAME] and by imposing punishment on the applicant pursuant to s.75 of the [NAME] because it was an abuse of process to permit the applicant to be charged and [NAME] under s.61 of the [NAME] applying s.26 of [NAME] 1900 ([NAME]) when: a) ss. 33(a) and 34 of the [NAME] provide for a service offence for substantially the same physical and mental elements; and b) at the time that the applicant was charged in 2002 with an offence against s.61 of the [NAME], s.96 prohibited him being charged with an offence against either of ss.33(a) and 34 of the [NAME].

6. Alternatively, the [NAME] [NAME] erred in law by trying the charge and by convicting the applicant under s.135 of the [NAME], by taking action under part 4 of the [NAME] and by imposing punishment on the applicant pursuant to s.75 of the [NAME] because it was an abuse of process to permit the applicant to be charged and [NAME] under the [NAME] in circumstances where: a) there had been extraordinary and unexplained delay between the commission of the alleged offence in 1996 and the hearing before the [NAME] on 10 March 2003; b) at the time that the applicant was charged in 2002 with an offence against s.61 of the [NAME], s.96 prohibited him being charged with an offence against either of ss.33(a) and 34 of the [NAME].

7. By reason of the matters above, the applicant's conviction resulted in a miscarriage of justice and should be quashed because in law he could not be [NAME] by the [NAME] of the offence charged.

8. Alternatively, the applicant's conviction resulted in a miscarriage of justice and should be quashed because he was not fully advised of: a) his right to raise each of the matters set out above and have them determined by the [NAME] expeditiously; b) the existence of reasonable prospects of success of the matters set out above; and in the premises his right to plead not guilty.

9. Alternatively, the applicant's conviction resulted in a miscarriage of justice and should be quashed because if the conviction be set aside, having received further advice the applicant disputes the elements of the offence and seeks to plead not guilty.' 4 Evidence was admitted by the Tribunal from the appellant and a legal officer who [NAME] the appellant during the course of proceedings in support of grounds 5 to 9 (inclusive). 5 The most comprehensive reasons in the Tribunal were given by [NAME]. [NAME] rejected the constitutional arguments reflected in grounds of appeal 2, 3 and 4 by reference to established authority in the High Court. He also rejected the legal argument underpinning ground of appeal 1 and, in particular, distinguished the decisions in [NAME] v The Queen (1991) 172 CLR 1 and [COMPANY] v [NAME[NAME] [NAME] (1932) 47 CLR 1. [NAME] then proceeded to examine in detail and reject each of the remaining grounds of appeal, taking into account the evidence which had been tendered before the Tribunal and referring to relevant authorities. [NAME] agreed generally with [NAME[NAME] that the appeal should be dismissed for the reasons given by [NAME]. [NAME] added some reasons of his own in relation to ground of appeal 1 and said (at [10]): 'No question of abuse of process arises. There is no suggestion in the material before the Tribunal of personal animus against the appellant, nor of any ulterior or improper purpose to be achieved by bringing the charge against him. The appellant was legally [NAME[NAME] pleaded guilty after the question of limitation periods was specifically raised by the [NAME].' [NAME[NAME] upheld ground of appeal 1, substantially basing himself upon the reasoning in [NAME]. [NAME] did not need to deal with the remaining grounds of appeal.

The appeal to this Court 6 The Notice of Appeal to this Court is as follows: 'The appellant appeals from the whole of the judgment of the [NAME] Tribunal given on 1 September 2003 at Melbourne. GROUNDS:

1. The [NAME] Tribunal ('the Tribunal') erred in law by failing to hold that the [NAME] [NAME] erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the [NAME] ('the [NAME]') by trying the charge and by convicting the appellant under s.135 of the [NAME], by taking action under part 4 of the [NAME] and by imposing punishment on the appellant pursuant to s.75 of the [NAME] because the proper construction of s.61(1) and s.190(5) of the [NAME] is that it does not proscribe as a service offence conduct that would constitute a civil offence under s.26 of [NAME] 1900 ([NAME]) when ss.33(a) and 34 of the [NAME] specifically provide for a service offence for substantially the same physical and mental elements and accordingly there was as a matter of jurisdiction no charge of a service offence and no conviction of a service offence.

2. Alternatively, the Tribunal erred in law by: a) taking into account at [10] that for an abuse of process to arise, it was necessary for there to have been personal animus against the appellant; b) failing to take into account that the [NAME] [NAME] erred in law by trying the charge and by convicting the appellant under s.135 of the [NAME], by taking action under part 4 of the [NAME] and by imposing punishment on the appellant pursuant to s.75 of the [NAME] because it was an abuse of process to permit the appellant to be charged and [NAME] under s.61 of the [NAME] applying s.26 of [NAME] 1900 ([NAME]) when: i) ss. 33(a) and 34 of the [NAME] provide for a service offence for substantially the same physical and mental elements; and ii) at the time that the appellant was charged in 2002 with an offence against s.61 of the [NAME], s.96 prohibited him being charged with an offence against either of ss.33(a) and 34 of the [NAME].

3. Alternatively, the Tribunal erred in law by failing to hold that the [NAME] [NAME] erred in law by trying the charge and by convicting the appellant under s.135 of the [NAME], by taking action under part 4 of the [NAME] and by imposing punishment on the appellant pursuant to s.75 of the [NAME] because it was an abuse of process to permit the appellant to be charged and [NAME] under the [NAME] in circumstances where: a) there had been extraordinary and unexplained delay between the commission of the alleged offence in 1996 and the hearing before the [NAME] on 10 March 2003; b) at the time that the appellant was charged in 2002 with an offence against s.61 of the [NAME], s.96 prohibited him being charged with an offence against either of ss.33(a) and 34 of the [NAME];

4. Alternatively, the Tribunal erred in law by: a) failing to hold that the appellant's conviction resulted in a miscarriage of justice and should be quashed because the instructions provided to his legal officers were inconsistent with his plea of not guilty; b) taking into account at [65] that there was a change of instructions by the appellant to his legal officers by the time the agreed facts were prepared.

5. Alternatively, the Tribunal erred in law by: a) holding at [66] that the appellant had not been placed under pressure by the advice that it would take up to a further 12 months to deal with his case if he pleaded not guilty; b) failing to take into account that the appellant's conviction resulted in a miscarriage of justice and should be quashed because he was not fully advised of: i) his right to raise each of the matters set out above and have them determined by the [NAME] expeditiously; ii) the existence of reasonable prospects of success of the matters set out above; and in the premises his right to plead not guilty.

6. Alternatively, the Tribunal erred in law by failing to hold that the appellant's conviction resulted in a miscarriage of justice and should be quashed, because he was induced into pleading guilty as a result of the incorrect advice from the head of the [NAME] ("[NAME]") [NAME] to the appellant's legal officer, that the only record of any conviction of the appellant would be within the [NAME].

7. Alternatively, the Tribunal erred in law by failing to hold that the [NAME] [NAME] erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the [NAME] by trying the charge and by convicting the appellant under s.135 of the [NAME], by taking action under part 4 of the [NAME] and by imposing punishment on the appellant pursuant to s.75 of the [NAME] because s.61 of the [NAME] is beyond the legislative power of the Commonwealth and invalid and / or should be read down in so far as it purports to proscribe as a service offence conduct that would constitute a civil offence under s.26 of [NAME] 1900 ([NAME]) and accordingly the conviction is invalid and of no effect.

8. Alternatively, the Tribunal erred in law by failing to hold that the [NAME] [NAME] erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the [NAME] by trying the charge and by convicting the appellant under s.135 of the [NAME], by taking action under part 4 of the [NAME] and by imposing punishment on the appellant pursuant to s.75 of the [NAME] because the [NAME] was purporting to exercise the judicial power of the Commonwealth and in so far as s.129 of the [NAME] purports to vest in the [NAME] jurisdiction to exercise the judicial power of the Commonwealth in respect of the hearing and determination of an offence against s.26 of [NAME] 1900 ([NAME]) as a service offence, it is contrary to ss. 71 and 72 of the Constitution and accordingly the conviction is invalid and of no effect.

9. Alternatively, the Tribunal erred in law by failing to hold that the [NAME] [NAME] erred in law by purporting to exercise jurisdiction under s.129 and s.115 of the [NAME] by trying the charge and by convicting the appellant under s.135 of the [NAME], by taking action under part 4 of the [NAME] and by imposing punishment on the appellant pursuant to s.75 of the [NAME] because the charge against the appellant pursuant to s.61 of the [NAME] applying s.26 of [NAME] 1900 ([NAME]) was an indictable offence against a law of the Commonwealth and was required to be tried by a jury pursuant to s.80 of the Constitution and accordingly the conviction is invalid and of no effect.'

The first ground of appeal: the application of s 61 7 The question raised by this ground is narrow. The appellant was charged pursuant to s 61 of the [NAME] (picking up s 26 of the [NAME] 1900 ([NAME]) (the [NAME])) that he, '[b]eing [NAME] at [NAME], Queensland … did assault … [NAME] [NAME], by pointing a pistol at him during an orders group on [NAME]'. That is the manner in which a charge pursuant to s 33(a) of the [NAME] would have been framed. The elements of the charged offence were identical to the elements of a charge, in respect of the same conduct, that might have been laid under s 33(a). However, there are two important differences between the charge as laid and any charge that might have been brought under s 33(a). First, the maximum penalty for breach of s 33 is six months' imprisonment whereas the maximum penalty for breach of s 61 is two years' imprisonment. Secondly, a charge pursuant to s 33 would have been time barred if laid at the time when the s 61 charge was brought. 8 The question that arises here concerns the construction of the one statute. It is not a question of inconsistency between different statutes. The offence charged is a breach of s 61 of the [NAME], a service offence, and not a breach of s 26 of the [NAME]. As [NAME[NAME] pointed out in [NAME] ([COMPANY]) v [COMPANY] (1939) 62 CLR 603 at 626: '…when two apparently inconsistent provisions occur in one [NAME] of [NAME], to reconcile them by interpretation is the only course open. They cannot both receive their full meaning as it is expressed.' 9 In [COMPANY] v [NAME] [COMPANY] [2004] HCA 14, (2004) 205 ALR 1, [NAME], [NAME[NAME] [NAME[NAME], after discussing various sections of a statute, said of the preferred interpretation (at 18 [61]): 'In this way, effect is given to each provision, while maintaining the unity of the statute in the sense discussed in [COMPANY] v [NAME] Authority (1998) 194 CLR 355 at 381–382 [69]–[70].' 10 The question of inconsistency and the related question of double jeopardy have often been discussed in relation to similar offences created by different statutes (eg, [NAME] v Attorney-[NAME] (Vic) (1961) 106 CLR 268; Rose v Hvric (1963) 108 CLR 353; Parramatta City Council v [NAME] ([COMPANY] [1971] 2 NSWLR 500; Environment Protection Authority v [COMPANY] (1992) 28 NSWLR 502). Sometimes the statutes are of different legislatures, giving rise to a constitutional question (eg [NAME] Co [COMPANY] v [NAME] (1926) 37 CLR 466; Hume v Palmer (1926) 38 CLR 441[NAME] [NAME] (1930) 43 CLR 472; The Queen v [NAME]; [NAME] [NAME] (1974) 131 CLR 338; The Queen v [NAME]; [NAME] [NAME] (1982) 152 CLR 211). Even in such circumstances, the provision for a different penalty for the same [NAME] in different statutes is regarded as inconsistent, unless there is a relevant point of distinction (see [NAME] in [NAME] v [NAME] at 489; [NAME] in Hume v Palmer at 462; Mason J in [NAME] [NAME] at 347; and [NAME] in Environment Protection Authority v [COMPANY] at 507G–508B). 11 Providing two different penalties for an offence with the same elements in two sections of the same statute gives rise to a question of construction that cannot be resolved otherwise than by choosing one section over the other. It is hardly likely that the [NAME] intended to allow the same conduct to be treated differently, where there is no relevant aggravating or distinguishing circumstance, dependent upon the whim of the prosecuting authority. Such a result would be capricious and arbitrary. As [NAME] pointed out in [NAME] v [NAME] (at 489): 'If an [NAME] of [NAME], for instance, prescribed 25 lashes for robbery under arms and a later [NAME] prescribed that such an [NAME] should be punished with 20 lashes, it could, of course, … be said that both provisions could be obeyed, and therefore, applying the suggested test [as to whether the two provisions were inconsistent], the [NAME] must receive 45 lashes. But surely the vital question would be: Was the second [NAME] on its true construction intended to cover the whole ground and, therefore, to supersede the first?' It is, of course, commonplace that the one [NAME] or course of conduct might lead to a variety of offences created by the same statute. However, those offences would all be different in character, one from the other, usually with an ascending order of gravity. 12 A conventional method of resolving such an inconsistency as arises here is for the [NAME] to yield to the particular, whether this be attributed to the maxim 'expressum facit cessare tacitum' or the maxim 'generalia specialibus non derogant' ([NAME], Statutory Interpretation in Australia, 5th Ed, para [4.28]–[4.30]). 13 The matter was put by [NAME[NAME] in [NAME] (A/Asia) [COMPANY] v [NAME] (1980) 29 ALR 333 at 347 as follows: 'As a matter of [NAME] construction, where there is repugnancy between the [NAME] provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the [NAME] provisions will be inapplicable to the subject matter of the special provisions. "The rule is, that wherever there is a particular enactment and a [NAME] enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative …" (per [NAME] MR: Pretty v Solly (1859) 26 Beav 606 at 610). Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where [NAME] provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter.' (See also White v Mason [1958] VR 79 per [NAME] at 81–82.) 14 In [NAME] v The Queen (1994) 181 CLR 338, [NAME], [NAME], [NAME[NAME] [NAME[NAME] said at 348: '…where there is a conflict between [NAME] and specific provisions, the specific provision prevails (generalia specialibus non derogant). That principle is based upon the presumed intention of [NAME[NAME] has, we think, a particular application where the conflict arises from different sections in the same [NAME]. … It is but common sense that [NAME] having before it two apparently conflicting sections at the same time cannot have intended the [NAME] provision to have deprived the specific provision of effect.' 15 In [NAME] [COMPANY] v [NAME] & [COMPANY] [1974] 1 Ch 229 [NAME] said at 235G: 'Put formally, it seems to me that the proper principle to apply if an enactment contains two similar prohibitions, one wide and the other applying only to a [COMPANY] class of case wholly within the wide prohibition, is to treat the wide prohibition as not applying to cases within the [COMPANY] prohibition, especially if the [COMPANY] prohibition is made subject to some exception and the wide prohibition is not.' 16 It becomes clear when the structure of the [NAME] is considered that s 33 is a particular provision and s 61 is a [NAME] provision for present purposes. Part III creates offences. There are nine divisions in the Part. The last division, headed 'Miscellaneous', does not create any primary offence. Division 8 headed 'Other Offences' is the last division that creates offences. It is constituted by s 61 which in terms picks up and incorporates the criminal law of the [NAME]. 17 It is correct to say that s 61 incorporates a series of particular offences. That does not detract from the proposition that the preceding provisions, such as s 33, each relate to a topic to which the [NAME] has given particular attention, whereas s 61 is a catch-all provision. The provisions of Part III which precede Division 8 can readily be recognised as offences which may reasonably be regarded as having a particular relevance to military discipline. The same cannot be said of s 61. 18 This conclusion is supported by the reasoning in [NAME] v The Queen (1991) 172 CLR 1 which had some prominence in the reasons of members of the Tribunal. The facts of that case are stated in the report (at 2–3) as follows: '[NAME] was [NAME] before the District Court of New South Wales upon three counts of committing an [NAME] of indecency with [NAME] under the age of sixteen years contrary to s. 61E(2) of the [NAME] 1900 (N.S.W.). The offences were all alleged to have occurred between 8 April and 3 November 1983. No [NAME] was commenced until 1987. The evidence led in support of two of the counts amounted to evidence of indecent assault, an offence created by s. 61E(1). The evidence led in support of the third count amounted to unlawful carnal knowledge under s. 71. [NAME] could not have been prosecuted for offences against s. 61E(1) or s. 71 because s. 78 required [NAME] for such offences to be commenced within twelve months from the time of the alleged offence. [NAME] appealed to the Court of Criminal Appeal (Mahoney J.A., [NAME] and [NAME[NAME].) on the ground that a charge of committing an [NAME] of indecency with [NAME] under the age of sixteen years could not be brought under s. 61E(2) when the conduct relied on was an indecent assault for the purpose of s. 61E(1) or an [NAME] of carnal knowledge for the purposes of s.

71. The appeal was dismissed.' 19 [APPELLANT[NAME] (with whom [APPELLANT[NAME] agreed) accepted the appellant's argument which he summarised as follows (at 20): 'Mr. [COUNSEL] Q.C., counsel for the applicant, did not dispute that the touching of the complainant's breasts, buttocks and vagina and the [NAME] of sexual intercourse each constituted an "[NAME] of indecency" within the meaning of that term as it has been judicially interpreted: see R. v. Sorlie (1925) 42 W.N. (N.S.W.) 152; [NAME]. v. Valence (1958) 76 W.N. (N.S.W.) 137; R. v. Hare (1933) 24 Cr. App. R. 108. He submitted, however, that, in the context of the [NAME], the term "[NAME] of indecency" in s. 61E(2) did not cover a case which fell within the terms of ss. 71, 72 or 61E(1). He submitted that, if s. 61E(2) was construed to cover a case which fell within any of those provisions, an [NAME] could lose the benefit of the protection given by s. 78 of the [NAME], and that it could not have been the intention of [NAME] in enacting s. 61E(2) to permit a [NAME] which s. 78 specifically prohibited.' 20 [NAME[NAME] summarised his opinion as follows (at 23): 'Two considerations persuade me that in the present case "the ordinary meaning" of the words "[NAME] of indecency" in s. 61E(2) is not their literal meaning. The first is that, when one has regard to the history of s. 61E(2), it is clear that the purpose of [NAME] in enacting s. 76A, the predecessor of s. 61E(2), was to deal with cases which did not constitute indecent assaults. The second is the rule that, when a statute specifically deals with a matter and makes it the subject of a condition or limitation, it excludes the right to use a [NAME] provision in the same statute to avoid that condition or limitation.' 21 As to the second of the two considerations identified, [NAME] said (at 24): 'The [NAME] makes it an offence for [NAME] to have carnal knowledge of or to indecently assault a girl under the age of sixteen. But if the girl is over fourteen years of age, the [NAME] requires the [NAME] to be instituted within twelve months of the commission of the offence. It is difficult to accept that, when [NAME] enacted s. 61E(2) and authorized the institution of [NAME] for acts of indecency under s. 61E(2), it intended that [NAME] power to be used to circumvent the limitation which s. 78 placed on ss. 61E(1), 71 and 72 of the same [NAME]. To use the words of [NAME] [NAME]. and [NAME]. in [COMPANY]. (1932) 47 [NAME]., at p. 7, the enactment of ss. 61E(1), 71, 72 and 78 "excludes the operation of [NAME] expressions in the same instrument which might otherwise have been relied upon for the same power".

Accordingly, in my opinion, the context of s. 61E(2) indicates that [NAME] did not intend the words "an [NAME] of indecency" to cover conduct which constitutes an indecent assault or carnal knowledge. And as s. 34 of the [NAME] makes plain, "the ordinary meaning" of a legislative provision in New South Wales can be ascertained only after taking account of its context in the [NAME].' 22 [NAME], the other member of the majority, arrived at the same result by different reasoning. [NAME] said (at 17–18): 'It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a [NAME] presumption that the [NAME] intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see [NAME] v Attorney-[NAME] (Vict.) (1961) 106 [NAME]. 268, at p. 276, per [NAME[NAME]., and per [NAME[NAME]. (1961) 106 [NAME]., at p. 290. More particularly, an intention to affect the earlier provision will not be implied if the later is of [NAME] application (as is the provision by which indecent dealing is constituted an offence under the [NAME]) and the earlier deals with some matter affecting the individual (as does the limitation provision in s. 78). Nor will an intention to affect the earlier provision be implied if the later is otherwise capable of sensible operation. … If s. 61E(2) of the [NAME] has the meaning for which the respondent contends, it necessarily derogates from the protection earlier afforded by s.

78. So much may be seen from the present case for, although, by [NAME] of s. 78, the applicant could not be charged with carnal knowledge and indecent assault, his [NAME] under s. 61E(2) required him, as a matter of practical reality, to answer those very charges. In my view s. 61E(2) has neither the meaning nor the effect for which the respondent contends.' 23 [RESPONDENT[NAME] gave the leading judgment for the minority. After stating that at common law the applicant might have been [NAME] of committing an [NAME] of indecency when charged only with that offence, notwithstanding that the facts amounted to carnal knowledge or indecent assault, [NAME] went on to say (at 14–15): 'The applicant placed great reliance upon the fact that the offence of committing an [NAME] of indecency was created to cover the gap left by the fact that the offence of indecent assault requires not only indecency, but also something in the nature of an assault. However, sexual offences are of their very nature progressive rather than mutually exclusive, so that the more serious offence includes the elements of the less serious offence. For the [NAME] to have sought to exclude from an [NAME] of indecency offences which otherwise would have included the [NAME] of indecency would have been to depart from the approach hitherto adopted by the law. Moreover, whilst the object of the [NAME] in creating the offence of committing an [NAME] of indecency appears to have been to close a gap which it perceived in the law, it does not follow that it chose to close that gap in a way which would give rise to incongruous results. If the applicant's argument is correct, [NAME] charged only with committing an [NAME] of indecency would be able to defeat that charge by proving by way of [NAME] that he had in fact committed an indecent assault or unlawful carnal knowledge. If the [NAME] were successful, he could not, upon the principles which I have endeavoured to explain, be subsequently [NAME] of either of the more serious offences whether or not the time for the commencement of [NAME] had expired. But more than that, even if the jury were satisfied beyond reasonable doubt that an [NAME] of indecency (in the ordinary sense and not the confined sense contended for as a matter of construction) had been committed, if they entertained a doubt whether the [NAME] was guilty of indecent assault or unlawful carnal knowledge – that is, if they considered that he might have committed those offences – it may be they must acquit upon the charge of committing an [NAME] of indecency (in the confined sense) because they would necessarily entertain a doubt whether what he had done amounted only to the commission of the latter offence …' 24 [NAME[NAME] agreed with [NAME[NAME] added some comments of his own in which he examined the charging of greater and lesser offences. [NAME] said (at 4): 'There are, upon analysis, compelling practical reasons why a statutory provision creating an offence should not be construed as inapplicable to circumstances where conduct which otherwise falls within its terms is aggravated by some circumstance (being part of a single transaction or course of action) which makes the overall conduct a more serious offence under some other statutory provision.' [NAME] further said (at 5): 'Common sense, the efficient working of the administration of criminal justice, and the presumption that the [NAME] intends that its words be given their ordinary meaning, combine to dictate that, in the absence of an identified legislative intent to the contrary, a [NAME] statutory provision which makes specified conduct an offence should be construed in accordance with its terms and should not be confined so as to be inapplicable to a case where, in its context within a single transaction or course of action, the designated conduct also constitutes an element of a more serious offence. In such a case, the [NAME] is guilty of both the basic offence and the more serious offence notwithstanding the fact that, as a matter of basic principle, he cannot be [NAME] of them both.' 25 [NAME] did not involve identical offences, and nothing said by any of the Justices is contrary to the conclusion that there is inconsistency in this case because of the differing penalties. 26 The use by [NAME[NAME] [NAME[NAME] in [NAME] of the principle that a [NAME] power cannot be used to circumvent the limitations on a specific power, did not command a majority of the Court. However, that does not cast doubt upon the principle itself. Indeed, a similar result was arrived at by [NAME[NAME] using reasoning that is directly applicable to the present case and which did not depend upon the legislative history in that case. 27 In the present statute the existence of the time limitation in relation to s 33 is an indicator that the [NAME] would not have contemplated that the same offence in substance could be pursued outside the prescribed limitation period. This provides independent support for the conclusion that the s 61 charge was not open that would anyway be indicated by the existence of different maximum penalties for the same conduct. There are a myriad of offences against s 61 of the [NAME]. The policy that s 96 of the [NAME] embodies is that an offence against s 61 will be governed by the same limitation period as would have applied if that offence had been charged as a [NAME] offence. That policy says nothing as to the availability of a charge under s 61. 28 It has not been necessary to resort to extrinsic material or to history to resolve the question of construction that arises in this case. However, if there were a necessity to do so, support would be obtained for the appellant's position. Consideration of the historical excursus by [NAME[NAME] [NAME[NAME] in Re [NAME]; [NAME] [NAME] (1989) 166 CLR 518 at 554–563 is sufficient to indicate that incorporation of the [NAME] criminal [NAME] was supplementary to the particular codes of military discipline. The Report of [NAME] which preceded the [NAME], and which was referred to in the Explanatory Memorandum for the Bill (at paragraphs 63–65, 575), makes it clear (at page ix) that Territory criminal law was to be substituted for the English criminal law for the same purpose in Australia. 29 Before the [NAME] was enacted [NAME] [NAME] personnel were subject to what was described in the Explanatory Memorandum as a compound of [NAME] legislation. The [RESPONDENT] had two codes of discipline, one for war service and [NAME] when serving in Australia in peacetime. There were different codes again for members of the [NAME[NAME] for members of the [NAME]. 30 A central problem identified by [NAME] was the deeply seated differences in the summary punishments that could be imposed for service offences in the three Services. The Report of [NAME] records the negotiation between the Services of "an acceptable compromise on summary punishments" (see Report at (ii) to (iii)). The levels of summary punishments incorporated in the draft legislation proposed by [NAME] were said to "represent a consensus achieved within [NAME[NAME] … are regarded as workable by the [NAME], the [RESPONDENT[NAME] the [NAME]." That consensus was reflected in the penalty provisions of the [NAME]. 31 [NAME] also proposed the reduction of maximum punishments to modern levels and "the demarcation of serious offences from breaches of discipline by the provision of appropriate maximum punishments ...". In explaining its approach [NAME] observed (at page v): "Part of the value of setting out offences in a disciplinary code lies in their declaratory significance as a code of military conduct. Their educational and preventative value have been obscured or distorted by unrealistic maximum punishments. It does not enhance discipline to hold out minor breaches as serious crimes and we have not hesitated to reduce drastically maximum punishments." (emphasis added) 32 The recommendations of [NAME] that there should be a demarcation of serious offences from breaches of discipline were adopted in the [NAME], as the Explanatory Memorandum recites and as its provisions make plain. 33 The offences created by s 33 of the [NAME] were evidently intended to be regarded as breaches of discipline, since the section was intended to embody the important elements of the former [NAME] offence of fighting and quarrelling ([NAME] [NAME] 1957 (UK) s 33) whilst reducing the maximum penalty from imprisonment for 2 years to imprisonment for 6 months. 34 The offences of assaulting a member of the [NAME] of [NAME] rank (s 34(1)) and assaulting a superior officer (s 25(1)) were plainly to be regarded as more serious. The two-year maximum term of imprisonment for a offences of obvious importance to discipline in the [NAME] takes on an added significance in the present context when it is seen that under the former law the maximum penalty for assaulting a superior officer, if committed in the [NAME], was life imprisonment. 35 The history of the legislation thus underlines the inconsistency between the intention of the [NAME] to make specific provision for particular offences, both as to content and as to penalty, when introducing a uniform modern "code" for the discipline of the [NAME[NAME] the application, in a case like the present, of a [NAME] provision such as s 61. 36 A further and related consideration that also underlines the inconsistency contended for by the appellant is that the policy objectives of laws imposing penalties for offences relating to the discipline of the [NAME[NAME] providing for time limits for the bringing of charges are necessarily different from the objectives of the [NAME] criminal law applying from time to time in the [NAME]. The different objectives are, in any event, mandated by the fundamentally different constitutional foundations of the two types of law. 37 In our opinion the decisions of the High Court in Re [NAME]; [NAME] v [NAME] (1989) 168 CLR 289; Re [NAME]; [NAME] [NAME] (1999) 172 CLR 460 and [NAME]; [NAME] [NAME] (1994) 181 CLR 18 are not inconsistent with the opinion we have expressed. No argument to that effect was referred to by the majority of the Tribunal which upheld the respondent's position on this issue or was presented by counsel for the respondent in this appeal. The two High Court decisions examine some of the issues thrown up by the co-existence of military and [NAME] systems particularly in the light of the incorporation of certain parts of the [NAME] system into the military system. This case does not involve such issues. The difference of opinion between [NAME[NAME] [NAME[NAME] on the one hand and [NAME[NAME] [NAME[NAME] in Re [NAME] which flowed through to the other decisions is not relevant to the point at issue here. 38 Counsel for the respondent submitted that the decision of the [ADDRESS] in Lawson v Gault (2002) 125 FCR 1 supports the reasoning of the majority of the Tribunal. In our opinion that case is distinguishable from this one. Section 99 of the [NAME] 1900 ([NAME]) provided: '[NAME] who steals is guilty of an offence, punishable on conviction, by imprisonment for ten years.' It had governed all charges of theft until the addition of s 99A in 1995 which provided as follows: '[NAME] who steals property the value of which does not exceed $1,000.00 is guilty of an offence punishable on conviction by imprisonment for six months, a fine not exceeding fifty penalty units or both.' By reason of other provisions of the [NAME], a charge pursuant to s 99 could be heard on indictment or, in certain events (which included the consent of the defendant), summarily. A charge pursuant to s 99A was to be heard summarily. There was a 12 month time limit for a [NAME] under s 99A and no time limit in relation to s 99. The defendant was charged with breach of s 99. The value of the property stolen did not exceed $1000. The charge was laid outside the 12 month time limit applicable to charges of breach of s 99A. The defendant was [NAME]. On appeal, the Supreme Court held that s 99 should be read as applying only to thefts of property the value of which exceeded $1000 and quashed the conviction. On appeal, [NAME[NAME] [NAME] (having referred to certain extrinsic material) held that the object of the amendment was to provide a mechanism for summary [NAME] of minor thefts, distinguished [NAME[NAME] declined to read s 99 as subject to s 99A. Their Honours said (at 8): 'The amendment simply inserted s 99A to follow s 99. If the intention was to exclude minor thefts from the ambit of operation of s 99, then it is virtually certain that the [NAME] would have said so expressly.' 39 There is no reason to review the correctness of that decision. It turned upon the particular legislative context and history and the extrinsic materials that were considered and provides no relevant guidance here. 40 Acceptance of the appellant's argument in this case does not mean that s 61 is not to be given full [NAME] and effect where it is applicable. Whilst, in circumstances such as the present, a charge cannot be preferred pursuant to s 61 with elements identical to those of a particular charge in the earlier divisions of Part III, if the charge laid pursuant to s 61 is truly different from (particularly if more serious than) that which might be laid pursuant to a particular earlier provision, then the fact that the conduct could have been charged pursuant to the earlier provision would be no answer, in itself, to the different charge pursuant to s 61. 41 The appellant has established Ground 1 and so is entitled to succeed on the appeal. The Tribunal erred on a question of law in rejecting this ground of appeal. That is sufficient to dispose of the appeal. However, it is appropriate that we indicate our opinion as to the other grounds of appeal in the event that the matter goes further.

The second to sixth grounds of appeal: abuse of process 42 In our opinion these grounds should be rejected. They do not give rise to any appeal on a question of law arising out of the decision of the Tribunal as is required by s 52 of the [NAME]. The appellant was [NAME] before the [NAME] [NAME]. The Magistrate squarely raised the issues relevant to the abuse of process argument before a plea was taken. No application was made to stay the proceeding as an abuse of process. The appellant pleaded guilty. There was an agreed statement of facts. 43 The available grounds of appeal to the Tribunal pursuant to the [NAME] were as follows: '23. (1) … where in an appeal it appears to the Tribunal: (a) that the conviction or the prescribed acquittal is unreasonable, or cannot be supported, having regard to the evidence;

(b) that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction or the prescribed acquittal was wrong in law and that a substantial miscarriage of justice has occurred;

(c) that there was a material irregularity in the course of the proceedings before the court martial or the [NAME] magistrate and that a substantial miscarriage of justice has occurred; or

(d) that, in all the circumstances of the case, the conviction or the prescribed acquittal is unsafe or unsatisfactory;

it shall allow the appeal and quash the conviction or the prescribed acquittal.' 44 Leaving aside grounds of appeal 1, 7, 8 and 9, relieving the appellant of the consequences of a plea of guilty could only be justified in the present case if the Tribunal were satisfied that, in all the circumstances of the case, either s 23(1)(c) or (d) was satisfied. Deciding such questions is traditionally the role of a court of criminal appeal and involves judgments of fact and degree and the balancing of various factors. These tasks require a good knowledge of the practical workings of the trial system. [ADDRESS] does not exercise a [NAME] supervisory jurisdiction (per [NAME[NAME] [NAME[NAME] in [NAME] v [NAME] (1998) 193 CLR 641 at 653) and it is important that the jurisdictional limit be maintained. It is, of course, possible that questions of law can arise before the Tribunal even in the exercise of such practical judgments about the application of s 23(1)(c) or (d) of the [NAME]. However, it would be wrong to permit the ingenious extraction of alleged errors upon questions of law from the language in which such a balancing exercise is expressed so as to permit [NAME] interference with the military system of justice supervised by the Tribunal. 45 The [NAME] approach of courts of criminal appeal to quashing a conviction based upon a plea of guilty by a [NAME] was summarised by [NAME] at CL in [NAME] [2000] NSWCCA 453 at [19]–[21] as follows: 'What is required, for an exercise of the relevant discretion is the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question: [NAME] 1 November 1995, [NAME] 17 September 1998, [NAME], [[1999] NSWCCA 320], and [NAME] [1999] NSWCCA 352. However, as [NAME] pointed out in Liberti at 122: "For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high [NAME] interest in the finality of legal proceedings and upon the principle that a plea of guilty by [NAME] in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see [NAME] [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; [NAME] (1986) 22 A Crim R 73 at 81." Relevantly for the present case, it may be noted that in [NAME] (1986) 22 A Crim R 73, [NAME[NAME], said: "the substantial [NAME] proposition which emerges from these cases is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken. It is clear that in the case of mistake of [sic] other circumstances affecting the integrity of the plea as an admission of guilt, the court should readily grant leave. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by [NAME] in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence ([NAME]) and as the most cogent admission of guilt that can be made, for the court is prepared to [NAME] upon it and proceed to conviction or final disposal of the proceedings. [emphasis added]" This passage was cited with approval in [NAME] 16 December 1993 and again in [NAME] (1994) 73 A Crim R 91. The onus of establishing that there has been a miscarriage of justice lies on the applicant: [redacted] (See also, [NAME] [1965] VR 187 at 188–189; Birks v R (1990) 48 A Crim R 385 at 392; Miladinovic v R (1993) 47 FCR 190 at 198–199; and Meissner v R (1994) 184 CLR 132). 46 We have considered the reasons of [NAME[NAME] for rejecting the arguments now encompassed by grounds 2–6 (inclusive) in the light of those authorities and can find no error on any operative question of law disclosed by those reasons. [NAME] agreed generally with those reasons. We do not read what [NAME] said at [10] to be a comprehensive statement of reasons for rejecting the claimed abuse of process or as intended to be a complete statement of the requirements of law as to what is needed to be found to constitute abuse of process. Rather, we read what [NAME] said as being remarks that were supplementary to the reasons of [NAME] with which [NAME] expressly agreed. Furthermore, assuming that a particular charge is available to be preferred, it is difficult to see how an abuse of process could arise merely from use of that charge, absent the kind of factors to which [NAME] adverted. [NAME[NAME] did not need to discuss those issues.

The seventh to ninth grounds of appeal: constitutional issues 47 The constitutional arguments reflected in these grounds were formally put to the Tribunal, it being accepted for the purpose of argument that it was bound to the contrary by the High Court authorities referred to in [37] above. [NAME[NAME] (agreed with by [NAME[NAME]) held accordingly (at [29]–[33]). We cannot see any basis upon which it can be held that this Court is not bound by the same line of authority (see also [NAME[NAME] [NAME] in [NAME] v [NAME] at 654).

Conclusion 48 We agree with [NAME[NAME] that the appeal to the Tribunal should have succeeded and a verdict of not guilty entered. The appellant could not have been [NAME] in law of the offence with which he was charged, and is entitled to the benefit of an acquittal. Section 52(4) of the [NAME] enables appropriate orders to be made. The orders of the Tribunal should be set aside; in lieu thereof the appeal from the conviction of the appellant should be allowed, the conviction quashed and a verdict of not guilty substituted. The respondent should pay the appellant's costs of this appeal. Pursuant to s 37 of the [NAME], the Commonwealth should pay to the appellant such sums for the costs of the appeal to the Tribunal and of carrying on his [NAME] against the charge out of which the appeal arose as may be agreed, failing agreement, such sum to be assessed by the Registrar of the Tribunal. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, Justice Wilcox and Justice Gyles.

Associate: Dated: 31 May 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1485 OF 2003

ON APPEAL FROM THE [NAME] TRIBUNAL

BETWEEN: [NAME] [APPELLANT]

APPELLANT

AND: CHIEF OF [RESPONDENT]

RESPONDENT

JUDGES: [NAME], BEAUMONT, WILCOX, [NAME]: 31 MAY 2004

PLACE: [APPELLANT] FOR JUDGMENT

BEAUMONT J:

Introduction 49 This is an appeal on a question of law only (see s 52 of the [NAME] [NAME] 1955 (Cth)), from a decision of the [NAME] Tribunal ('The Tribunal') given on 1 September 2003, dismissing an appeal against the conviction of the appellant for the offence of common assault contrary to s 26 of the [NAME] 1900 ([NAME]) (see [APPELLANT] v Chief of [RESPONDENT] [2003] ADFDAT 4). 50 The issues arising in the appeal are complex and cannot be shortly described. However, one of the arguments advanced by the appellant, upheld by [APPELLANT[NAME] in dissent in the Tribunal, is that the appellant could not, for substantive reasons which will appear, have been charged with the offence mentioned. The appellant also advanced alternative arguments, including a procedural contention that, even if the charge were technically available, it amounted to an abuse of process. 51 Before coming to the appellant's arguments, it is necessary to describe the statutory scheme and the trial process itself.

The charge 52 Pursuant to the provisions of s 103(1)(c) of the [NAME] 1982 (Cth) ('the [NAME]'), a convening authority, appointed under s 102 of the [NAME] by a chief of staff for the purpose of convening [NAME], referred the following charge to a [NAME] magistrate for trial: '[The appellant], an officer in the [NAME] [RESPONDENT[NAME], at the time of the offences specified in the following charges, [NAME] under the ... [[NAME]], is charged as follows: [NAME] section 61 & [NAME] 1900 ([NAME]) s.26 Other Offences – Commission of Territory offences being the offence of common assault. [NAME] at [NAME], Queensland, on a date unknown, between 31 July, 1996 and 1 September 1996, did assault [NAME] [NAME], by pointing a pistol at him during an orders group on [NAME].'

[NAME] 'offence' provisions 53 Section 61 of the [NAME] is included in Part III of the [NAME] (ss 15 – 65). The Part is entitled 'Offences'. In order to understand the arguments in the appeal, it is necessary to explain next the structure, and some of the detail, of Part III. 54 Division 1 (ss 15 – 19) of Part III creates several specific offences as 'Offences relating to operations against the enemy'. Division 2 (ss 20 – 24) of Part III creates several specific offences as 'Offences relating to mutiny, desertion, and unauthorised absence'. Division 3 (ss 25 – 34) of Part III creates several specific offences as 'Offences relating to insubordination and violence'. 55 As Division 3 assumed some significance in argument, it is necessary to say something more about it. The table of provisions for Division 3 gives the following indication of those provisions: 'Division 3 – Offences relating to insubordination and violence 25. Assault on superior officer 26. Insubordinate behaviour with respect to superior officer 27. Disobedience of command 28. Failure to comply with direction of person in command 29. Failure to comply with [NAME] order 30. Assault on a [NAME]

31. Obstruction of service policeman 32. [NAME]

33. Assault, insulting or provocative words etc.

34. Assault on [NAME]'. 56 Sections 33 and 34 (which, along with s 96(1) of the [NAME] (see below) were much emphasised in the appellant's argument) provide: 'Assault, insulting or provocative words etc. 33. [NAME], being [NAME] or a [NAME], who, on service land, in a service ship, service aircraft or service vehicle or in a [NAME] place: (a) assaults [NAME]; (b) creates a disturbance or takes part in creating or continuing a disturbance; (c) behaves in an obscene manner within the view or hearing of [NAME]; or (d) uses insulting or provocative words to [NAME]; is guilty of an offence for which the maximum punishment is imprisonment for 6 months. Assault on [NAME] 34. [NAME] who assaults, or ill-treats, a member of the [NAME] who is of [NAME] rank to the [NAME] is guilty of an offence for which the maximum punishment is imprisonment for 2 years.' (Emphasis added.) 57 (At the time of the alleged offence, [NAME] [APPELLANT] was of [NAME] rank to the appellant.) 58 Divisions 4, 5, 6 and 6A of Part III create several specific offences relating 'to performance of duty'; 'to ships, vehicles, aircraft, weapons or property'; 'to arrest, custody and proceedings before service tribunals'; and 'Custodial offences'. 59 Division 7 of Part III creates several 'Miscellaneous offences'. The table of contents describes them as follows: 'Division 7 – Miscellaneous offences 55. Falsification of service documents 56. False statement in relation to application for benefit 57. False statement in relation to appointment or enlistment 58. Unauthorised disclosure of information 59. Dealing in, or possessing, narcotic goods 60. Prejudicial behaviour'. 60 Division 8, which contains s 61, was central to the argument before us. It provides: 'Division 8 – Other offences Other offences 61. (1) [NAME], being [NAME] or a [NAME], is guilty of an offence if: (a) he does or omits to do, in the [NAME], an [NAME] or thing the doing or omission of which is a Territory offence; (b) he does or omits to do, in a [NAME] place outside the [NAME], an [NAME] or thing the doing or omission of which, if it took place in a [NAME] place in the [NAME], would be a Territory offence; or (c) he does or omits to do (whether in a [NAME] place or not) outside the [NAME] an [NAME] or thing the doing or omission of which, if it took place (whether in a [NAME] place or not) in the [NAME], would be a Territory offence. (2) The punishment for an offence against subsection (1) is: (a) if the relevant Territory offence is punishable by a fixed punishment – that fixed punishment; or (b) in any other case – a punishment not more severe than the maximum punishment for the relevant Territory offence.' 61 A 'Territory offence' is defined by s 3(1) as follows: "Territory offence" means: (a) an offence against a law of the Commonwealth in [NAME] in the [NAME] other than this [NAME] or the regulations; (b) an offence punishable under the [NAME], 1900 of the [NAME], in its application to the [NAME], as amended or affected by Ordinances in [NAME] in that Territory; or (c) an offence against the [NAME] 1930 of the [NAME], in its application to the [NAME], as amended or affected by Ordinances from time to time in [NAME] in the [NAME];... ' 62 Division 9 of the [NAME], entitled 'Miscellaneous', deals with punishment (ss 62, 64 and 65), and with consent for proceedings for certain offences (s 63). 63 Section 63(1) provides: '63. (1) Except with the consent of the Director of [NAME] [NAME], proceedings under this [NAME] shall not be instituted for: (a) an offence against subsection 61(1) that is alleged to have been committed in Australia and in relation to which the relevant Territory offence is: (i) treason, murder, manslaughter or bigamy; (ia) an offence against section 92A, 92B, 92C, 92D or 92E of the [NAME] 1900 of the [NAME], in its application to the [NAME], as amended or affected by Ordinances in [NAME] in that Territory; (ii) an offence in respect of which proceedings could not be brought in the [NAME] without the consent of a Minister, the Director of [NAME] [NAME] or [NAME] authorised by the Director of [NAME] [NAME] to give consent; or (iii) an offence prescribed for the purposes of this section; or (b) a service offence that is an ancillary offence in relation to an offence referred to in paragraph (a).' 64 A 'service offence' is defined by s 34(1) to mean: '(a) an offence against this [NAME] or the regulations; (b) an offence that: (i) is an ancillary offence in relation to an offence against this [NAME] or the regulations; and (ii) was committed by [NAME] at a time when he was [NAME] or a [NAME]; or (c) an old system offence; ….' 65 An 'old system offence' is defined by s 3(1) to mean: '... an offence under previous service law that was committed by a member of the [NAME] at any time during the period of 3 years that ended on the [NAME] immediately before the proclaimed date; ….' 66 Part IV of the [NAME] (ss 66 – 85) deals with punishments imposed, and orders made by service tribunals. 67 Part V (ss 86 – 100) deals with summons, arrest, custody and suspension from duty.

Time limitations 68 Section 96, which was also, as mentioned, much emphasised in the appellant's argument, provides: 'Time limitation on charges 96. (1) [NAME] shall not be charged with: (a) an offence against this [NAME] (other than subsection 61 (1)) or the regulations; or (b) a service offence that is an ancillary offence in relation to an offence referred to in paragraph (a), after the expiration of a period of 3 years after the time at which the offence is alleged to have been committed. (2) Notwithstanding anything in subsection (1), [NAME] may be charged with: (a) an offence against section 15, 16, 20 or 22; or (b) a service offence that is an ancillary offence in relation to an offence referred to in paragraph (a); at any time. (3) A reference in subsection (1) to a period shall be read as not including a reference to a period during which the person: (a) was a prisoner of war; (b) was absent without leave; or (c) was serving a sentence of imprisonment. (4) [NAME] shall not be charged with an offence against sub-section 61 (1) or a service offence that is an ancillary offence in relation to an offence against subsection 61 (1) if the time that has elapsed since the offence is alleged to have been committed equals or exceeds the period of time that would bar trial by, or institution of proceedings in, a court exercising jurisdiction in or in relation to the [NAME] for the relevant Territory offence. (5) [NAME] shall not be charged with, or tried for, an old system offence if he could not have been charged with, or tried for, as the case may be, that offence if the provisions of previous service law imposing a time limitation on such a charge or trial were still in [NAME]. (6) [NAME] who has ceased to be a member of the [NAME] or a [NAME] shall not be charged with a service offence unless: (a) the period that has elapsed since he so ceased does not exceed 6 months; and (b) the maximum punishment for the service offence is imprisonment for a period of 2 years or a punishment that is more severe than that punishment.' (Emphasis added.) 69 Part XII of the [NAME] deals with miscellaneous matters, including s 190, which provides as follows: 'Jurisdiction of [NAME] in relation to offences 190. (1) Subject to the Constitution, a civil court does not have jurisdiction to try a charge of a service offence. (2) Subject to sub-sections (3), (4) and (5), the jurisdiction of a civil court to try a charge for a civil court offence is not affected by this [NAME]. (3) Where a court martial or a [NAME] magistrate has, under section 77, taken a service offence into consideration in relation to a [NAME], the person is not liable to be tried by a civil court for a civil court offence that is substantially the same offence. [See below] (4) A civil court does not have jurisdiction to try a charge of a civil court offence that: (a) is an ancillary offence in relation to an offence against this [NAME] (other than sub-section 61 (1)) or the regulations; and (b) was committed by [NAME] at a time when he was [NAME] or a [NAME]. (5) Where [NAME] has been acquitted or [NAME] of a service offence, the person is not liable to be tried by a civil court for a civil court offence that is substantially the same offence. [See below] (6) For the purposes of this section: (a) the dismissal of a charge under section 130, 132 or 135 shall be deemed to be an acquittal of the service offence the subject of the charge; (b) the dismissal of a charge under previous service law shall be deemed to be an acquittal of the service offence the subject of the charge; and (c) a direction under section 103, 110 or 111 that a charge be not proceeded with shall be deemed not to be an acquittal of the service offence the subject of the charge.' 70 (In Re [NAME]; [NAME] [NAME] (1989) 166 CLR 518, to which reference will be made later, the High Court held that s 190(3) and (5) were constitutionally invalid, but severable.)

'Other offences' – Jervis Bay 'Territory offences' 71 As mentioned, the charge referred to s 61 and s 26 of the [NAME] 1900 ([NAME]), and to 'Other offences – Commission of Territory offences being the offence of common assault'. 72 It will be recalled that s 61(1)(b) provided, inter alia, that [NAME] is guilty of an offence if he does, in a [NAME] place outside the [NAME], an [NAME] the doing of which, if it took place in a [NAME] place in the [NAME], would be a 'Territory offence'. 73 By s 4A of the [NAME] [NAME] 1915 (Cth), the criminal law applying in that Territory was, in effect, that enacted in the [NAME] 1900 ([NAME]), as picked up in the latter Territory. However, upon the grant of self-government to the [NAME], the ([NAME]) Crimes Legislation (Statutory and Citation) [NAME] 1992 referred to the ([NAME]) [NAME] 1900. Although par (b) of the definition of 'Territory Offence' in s 3(1) of the [NAME] refers to an Ordinance, the [NAME] is not such. Nor did the ([NAME]) [NAME] 1900 apply. But, on 8 November 1996, the [NAME] was amended (retrospectively to 28 May 1992) to change references in the [NAME] to ([NAME]) [NAME] 1900 to ([NAME]) [NAME] 1900. The Schedule of the amendment provided, in case of any doubt, that the validity of steps taken between 1992 and 1996 was not unlawful. 74 The [NAME] 1900 ([NAME]) creates, of course, a full range of offences. Section 26, mentioned in the charge, is found in Part III of that [NAME] (ss 10 – 47) – 'Offences against the person'. The offences include murder (s 12); manslaughter (s 15) and several kinds of assault, including assault occasioning actual bodily harm (s 24 – five years imprisonment), and common assault (s 26 – two years imprisonment) (emphasis added). No time limit for [NAME] of this offence (s 26) is stipulated in that [NAME].

The [NAME] procedural provisions

Provisions with respect to [NAME] 75 These provisions are in Division 3 (ss 114 – 126) of Part VII, which deals with service tribunals. Section 115(1) of the [NAME] confers, subject to s 63, jurisdiction to try any charge against any person.

Provisions with respect to [NAME[NAME] 76 Section 129(1) (found in Division 4 of Part VII) provides that a [NAME] magistrate has the same jurisdiction and powers as a restricted court martial.

Provisions as to trial by a [NAME] magistrate 77 These are found in Division 2 of Part VIII, which deals with procedure of service tribunals. 78 Section 135(1) provides: 'Trial by [NAME] magistrate 135. (1) A [NAME] magistrate shall try a charge in accordance with the following provisions: (a) before the [NAME] magistrate commences to hear the evidence on the charge, the [NAME] magistrate shall ask the [NAME] whether he pleads guilty or not guilty to the charge and, if the [NAME] pleads guilty and the [NAME] magistrate is satisfied that the [NAME] understands the effect of that plea, the [NAME] magistrate shall convict the [NAME]; (b) if the [NAME] pleads not guilty or if the [NAME] magistrate is not satisfied that the [NAME], in pleading guilty, understands the effect of that plea, the [NAME] magistrate shall record a plea of not guilty and proceed to hear the evidence on the charge; (c) if the [NAME] magistrate, after hearing the evidence on the charge adduced by the [NAME], rules that that evidence is insufficient to support the charge, the [NAME] magistrate shall dismiss the charge; (d if the [NAME] magistrate, after hearing the evidence on the charge adduced by the [NAME], rules that that evidence is sufficient to support the charge, the [NAME] magistrate shall proceed with the trial; (e) if the [NAME] magistrate finds the [NAME] not guilty, the [NAME] magistrate shall acquit the [NAME]; (f) if the [NAME] magistrate finds the [NAME] guilty, the [NAME] magistrate shall convict the [NAME]; (g) if the [NAME] magistrate convicts the [NAME], the [NAME] magistrate shall take action under Part IV in relation to the [NAME].'

Provisions with respect to applications and objections by an [NAME] 79 Section 141(1) (within the '[NAME]' part of Division 3 of Part VIII) provides: 'Applications and objections 141. (1) At any time before an [NAME] is asked to plead at a trial by a service tribunal, the [NAME] - (a) may do any one or more of the following: (i) apply for an adjournment on the ground that he has not had an adequate opportunity to prepare his [NAME] or to choose [NAME] to represent or advise him; (ii) apply to secure the attendance of witnesses or additional witnesses on his behalf; (iii) if he is charged with more than one service offence, apply for each charge to be heard separately; (iv) if he is charged with one or more other persons, apply to be dealt with separately on the ground that he would otherwise be prejudiced in his [NAME]; (v) make such other applications as he considers relevant in connection with the trial; and (b) may enter an objection to the charge on any ground, including any of the following grounds: (i) that, by virtue of section 144, he is not liable to be tried by the service tribunal for the service offence with which he has been charged; (ii) that the charge was made in contravention of section 96; (iii) that he has, in the exercise of the royal prerogative of mercy, been pardoned for the service offence with which he has been charged or for a civil court offence that is substantially the same offence; (iv) that the charge does not disclose a service offence or is otherwise wrong in law; (v) that the service tribunal does not have jurisdiction.' (Emphasis added.) 80 By s 141(5) where a service tribunal is satisfied that the interests of justice require that the application be granted, the tribunal shall grant it.

Previous acquittal or conviction 81 Section 144(3) provides that where [NAME] has been acquitted or [NAME] by a civil court of a civil court offence, the person is not liable to be tried by a service tribunal for a service offence that is substantially the same offence.

Procedure similar to court of [NAME] 82 The procedure at a trial is similar to that which is followed in a trial or indictment of a court of the [NAME]. As [NAME[NAME], [NAME[NAME] [NAME[NAME] said in Re [NAME] at 537: '[I]n trying offences under Pt III of the [NAME], a service tribunal has practically all the characteristics of a court exercising judicial power.' 83 Section 146(1) (in Division 3 of Part VIII) provides: 'Rules of evidence 146. (1) Subject to regulations in [NAME] under subsection (2), the rules of evidence in [NAME] in the [NAME] apply to proceedings before a service tribunal as if: (a) the tribunal were a court exercising jurisdiction in or in relation to that Territory; and (b) the proceedings were criminal proceedings in such a court.'

Events leading to the trial 84 In his affidavit sworn 24 July 2003 read to the Tribunal, the appellant said: '6. …[M]y legal officers also advised me that there was an issue about the legal validity of the charge. [NAME] advised me that they could argue that the charge was legally invalid, however, if that argument failed, I should plead guilty because I was technically guilty of assaulting [NAME]. I agreed to take that course.

7. On the [NAME] of my trial my counsel, [NAME] [COUNSEL], said to me words to the effect: "I have spoken to [NAME] about the objection to the validity of the charge. They are not prepared to deal with that issue today. If we want to run that argument the matter will have to be adjourned for up to 12 months. [NAME] also told me that a senior barrister had already considered the argument I propose to make about the validity of the charge and he thinks that it is wrong. Your options are to either plead guilty today and get it over and done with, or have the matter adjourned for 12 months. I think you should plead guilty."

8. As a result of what my [NAME] officer told me, I did not feel that I had any other realistic option but to plead guilty. I was conscious of the fact that having had this matter hang over my head for the past five years was causing my family and me significant stress and depression. So much so we had been seeking counselling from a psychologist. I decided that I could not subject myself and my family to [NAME] 12 months of that trauma, for the sake of advancing what I was told was a wrong argument about the validity of the charge, only then to have to plead guilty anyway. For those reasons, I told my [NAME] officers I would plead guilty. If I was aware that there were reasonable prospects of succeeding on a challenge to the charge on the grounds proposed to be advanced in this appeal and that I was entitled to have those arguments put to the [NAME] magistrate much sooner than 12 months time, I would not have pleaded guilty.'

The trial before the [NAME] magistrate 85 At the commencement of the hearing, the appellant pleaded guilty to the charge. 86 The following exchange then took place between the [NAME] magistrate (Lt [APPELLANT]) and Flt Lt [APPELLANT] (for the appellant): '[NAME]: One of the points that is exercising my mind is that the charge relates to events which occurred almost 7 years ago. [NAME]: Yes, sir. [NAME]: As the [NAME] stood at that stage, there was a time limit of 3 years for any offence pursuant to the [NAME]. [NAME]: That is correct, sir. [NAME]: There was a specific offence of assault in relation to [NAME], which this offence seems to relate to, and in normal accord – start again. In accord with normal principles, one would expect that an offence of this type would have been prosecuted in accord with the specific offence as provided for under the [NAME] itself, rather than incorporating it under the Territory offence. Do you see where I'm coming from? [NAME]: Yes, sir, I do. [NAME]: And I am just concerned that the [NAME] is being – and I use this in no pejorative sense but simply a statement of an apparent fact on the face of it, seems to be being caught by the territorial provisions of the [NAME] to escape, and I use that not in a pejorative sense, to escape the time limits which are otherwise imposed by the [NAME]. Could you assure me that this matter has been looked at, rather than simply – and I use this term neutrally, "glossed over"? [NAME]: Sir, it has been the subject of a considerable amount of research by the current [NAME] team and the issue identified somewhat earlier in the piece, advice from a very senior representative of the [NAME] was sought, specifically to address the concerns which you have raised, sir, and the opinion of that Senior Member of the Panel, and with great respect to that Senior Member which is shared by the entire [NAME] team, was that the nature and effect of the [NAME] upon which the [NAME] relies to found the charge was more adequately expressed in terms of the [NAME] rather than the disciplinary [NAME] under the [NAME]. [NAME]: Yes, thank you. [NAME], I ask of you the same question and specifically give you the opportunity for the sake of the transcript to take objection should you wish at this stage. Now, I know that you have considered this matter but I would like it on the transcript that this matter is effectively being dealt with today despite any problem that might otherwise have existed with time limits. [NAME]: Upon my instructions, sir, I take no objection.' 87 Lt [NAME] (for the [NAME]) then tendered a statement of agreed facts, as follows: 'Agreed Facts In August 96 [APPELLANT] (the [NAME]) was the OC 2 [NAME]. At that time the unit was taking part in [NAME] in the [NAME] ([NAME]). 240262 [NAME]. [NAME]. [NAME] was at that time a LT in [NAME]. [NAME] was present at a briefing in the [NAME] briefing tent at [NAME], [NAME] together with other officers and senior NCOs, including the [NAME]. During the briefing, the [NAME] made a comment that prior to the exercise he had been receiving many calls from a [NAME] [NAME] in Melbourne and that he was tired of receiving such calls. [NAME] suggested that the [NAME] get the calls put through to [NAME]. [NAME] intended this comment as a joke. He was on exercise and could not receive calls. The [NAME] drew his pistol and pointed it at [NAME]. The [NAME] then made a comment to [NAME] which had the effect of causing alarm to [NAME]. The [NAME] did not intend to alarm [NAME]. He then returned the weapon to its holster. [NAME] felt shock. He also felt threatened and scared. [NAME] was unaware of the state of the weapon. He was not aware as to whether the weapon was at load, action or instant. He was aware that at that range even a blank cartridge could cause injury or worse. The [NAME] has stated that he did not intend to assault [NAME] by this action. The [NAME] concedes that he was reckless as to the consequences of his action. Immediately after the incident [NAME] spoke to a number of his fellow junior officers and because of his position as a recent officer graduate he believed that the matter if reported may affect his subsequent career. A formal complaint was made in late 1999 and a service police statement was taken on 19 sep 00, which has led to the present proceedings.' 88 The [NAME] magistrate then decided to convict the appellant, but without punishment. 89 In his sentencing remarks, the [NAME] magistrate said: 'In the normal course of events, one would have expected that this charge would have been preferred under [s] 34 of the [[NAME]], assault on [NAME]. Had that occurred, then the offence would be now statute barred. At the time that the offence was committed, that is somewhere in August 1996, the time limit which was then in place was a period of 3 years. In 1999, the [[NAME]] was amended to extend that period to 5 years, so on either version of thoselimitation periods, the charge being preferred in 2002 would have been out of time. However, the [NAME] have bought this charge by reason of [s] 61 of the [[NAME]], which allows the inclusion of what is known as, "territorial offences", and by relying on the charge of common assault as it appears in [s] 26 of the [[NAME]] [NAME], then, the [NAME] are able to bring this offence, despite the fact that it is more than 6 years old. I go into that in some detail because it is a very relevant factor in the sentencing options which I must consider.' 90 He later added: 'I will not attach blame to the delay which has occurred, but it is my very strong view that the delay is inexcusable. That any person, pardon me, be they [NAME], a [NAME], or [NAME], could have an investigation hanging over their heads since, at the very earliest 1999 through today, brings no credit to the [NAME]. Had this man been properly dealt with and properly punished in 1996, or seven, or indeed in 1998, or nine, then the effects of any punishment which may have been awarded would have been today effectively overcome. Even if dealt with in 1999, then the [NAME] would currently still have at least three or four clear reporting periods at that time and would be now in a position where he would be eligible for consideration for promotion. All of his reporting periods sine this offence have been clear. All of them have been, as I have mentioned before, of the very highest standing.'

The decision of the [NAME] Tribunal 91 By a majority ([NAME[NAME] [NAME[NAME], [NAME[NAME] dissenting) the appeal was dismissed. 92 The leading reasons for decision were given by [NAME]. 93 [NAME] rejected the appellant's argument, which was based on the reasoning of [APPELLANT[NAME] ([NAME[NAME] concurring) in [NAME] v The Queen (1991) 172 CLR 1 at 30 (see below), that a Territory offence (such as s 26 of the [NAME] 1900 ([NAME])) could not be used where the conduct alleged also amounted to specific service offences, e.g. ss 33 or 34 of the [NAME]; that is, the argument went, s 61 was intended to supplement, but not duplicate the specific service offences created by the [NAME], so that, it was said, s 61 must be read down so as to pick up Territory offence only where there is (as here) no service offence under ss 15 to 60 with substantially the same physical and mental elements. 94 Referring to the principle explained by [NAME] [NAME[NAME] and [NAME] in [COMPANY] v [NAME[NAME] [NAME] (1932) 47 CLR 1 at 7 that a 'statutory power, expressed in [NAME] form, is not to be construed so as to avoid any condition or limitation placed on the exercise of a specific power', relied on by the appellant, [APPELLANT[NAME] said (at [49]): 'The principle of interpretation expressed in [NAME] does not govern the present case. Section 61 is expressed in [NAME] terms in the sense that it picks up all offences applicable to the Territory. However, the effect of the section is to add an extensive group of offences to those which may be charged against [NAME]. In those cases where the conduct could amount to the commission of more than one offence, the particular offence to be charged is left to prosecutorial discretion. I am also of the view that the existence of a limitation period for charging offences other than s 61 offences does not advance the appellant's argument. I have pointed out that in [APPELLANT[NAME] took into account the principle that a [NAME] expression of power is not to be used to defeat a limitation on the exercise of a specific power. However, the issue of limitation periods is dealt with in detail in s 96 of the [[NAME]] ….' 95 [APPELLANT[NAME] turned next to the appellant's argument that the proceedings constituted an abuse of the process of the court, since [NAME] charged the appellant with the s 61 offence so as to avoid the limitation period applicable to the offences under ss 33 and 34 of the [NAME]. 96 Rejecting the argument, [NAME[NAME] said (at [53] – [55]): 'It would appear that the limitation period for the offences under ss 33 and 34 had expired by the time the victim reported the matter. It is stated in the agreed facts that he delayed reporting the incident because he was a recent officer graduate and believed that if he reported the matter it could [a]ffect his subsequent career. In these circumstances and bearing in mind that the charging of an s 61 offence was one of the options available to the prosecuting authority, it cannot be said that the exercise of that option was an abuse of the process of the court. In any event, the [NAME] magistrate drew attention to the time limit issue at the commencement of the proceedings before him. He gave the [NAME] officer the opportunity to object on this ground but the latter stated that, upon his instructions he took no objection.' 97 In considering the appellant's claim for a stay of proceedings because of the delay of almost seven years since the alleged offence, [NAME[NAME] said (at [56]): 'There will be some cases in which delay and its consequences render a fair trial impossible: Watson v Gardiner (1993) 177 CLR 378, [NAME] v District Court ([NAME]) (1998) 168 CLR 23. However, there was no evidence to support that conclusion in the present case. There was no application before the [NAME] magistrate to stay the proceedings. Instead, the appellant pleaded guilty to the charge. The appellant cannot succeed on this ground.' 98 [APPELLANT[NAME] added (at [57]): 'I would reject the further argument that the conviction should be set aside because the appellant was not advised that he could apply to have the charge stayed as an abuse of process. The grounds upon which it was suggested that such an application might have been made could not have succeeded for the reasons I have canvassed.'

Conclusions on this appeal 99 It is submitted, on behalf of the appellant, that a plea of guilty should be set aside on an appeal against conviction if a substantial miscarriage of justice has occurred (see [NAME] v [NAME] (1998) 193 CLR 641); and that such miscarriage will have occurred where the [NAME] could not in law have been [NAME] of the offences charged (see [NAME] [2000] NSWCCA 453 at [16]; [NAME] (1991) 55 A Crim R 120 at 121 – 122; [NAME] (1988) 37 A Crim R 1); or where it appeared that the [NAME] had not been properly advised by counsel and had 'an arguable case' for acquittal, or by logical extension, to have the charges stayed for an abuse of process (see [NAME] [1999] NSWCCA 320; [NAME] [2000] NSWCCA 400 at [25] – [29]). That is to say, the argument goes, little significance may attach to the plea of guilty if, as the appellant contends, the charge was wrong in law or an incorrect exercise of jurisdiction. Such defects go to the heart of the conviction. The appellant cannot give validity to a charge merely by pleading guilty. A valid charge for an offence within the jurisdiction of the [NAME] magistrate was an essential jurisdictional fact, so that the erroneous exercise of jurisdiction in this case amounts to a substantial miscarriage of justice. If the charge and conviction in the circumstances of the present case was a serious abuse of process that should never have been allowed, this amounts to a substantial miscarriage of justice. 100 These [NAME] principles are not, and could not be, in issue. But their application in the present circumstances is seriously disputed by the respondent.

Ground 1 of the appeal 101 In his first ground of appeal, the appellant contends that the [NAME] have held that the [NAME] magistrate erred in law by purporting to exercise jurisdiction under s 129 and s 115 by trying the charge; convicting the appellant under s 135; and taking action under Part IV and by imposing punishment pursuant to s 75 – because upon their proper construction, s 61(1) and s 190(5) of the [NAME] do not proscribe as a service offence conduct that would constitute a civil offence under s 26 of the [NAME] 1900 ([NAME]), when ss 33(a) and 34 of the [NAME] specifically provide for a service offence for substantially the same physical and mental elements.

Accordingly, it is said, there was, as a matter of jurisdiction, no charge of a service offence and no conviction of a service offence. 102 The appellant again relies upon the passage from the reference in the judgment of [NAME[NAME] in [NAME] (at 30) (mentioned above) – '... to the context rule of statutory construction which holds that a [NAME] provision in a statute is not to be construed so as to avoid the conditions or limitations contained in a specific provision in the same statute.' 103 The appellant submits that the circumstances of this case are almost indistinguishable from [NAME]: that is to say, ss 15 – 60 of Part III of the [NAME] set out a number of specific military offences; most of those provisions proscribe specific military conduct that, by their very subject matter, meet the requirement of 'substantially serving the purpose of maintaining or enforcing service discipline' as held in Re [NAME]; s 61 is a more [NAME] provision in the context of military discipline, in that the offence provisions that it picks up do not, on their face, have any service connection; s 61 must, the argument goes, have been intended to supplement rather than duplicate the specific service offence provisions of the [NAME]; indeed, the Explanatory Memorandum for the Bill at par 577 (see below) speaks of the provision being 'complementary' and there is no apparent intention or purpose in a construction amounting to duplication; nor, the argument runs, did s 190 in its original form address the consequence of this type of duplication.

The 1973 [NAME] 104 The origins of the [NAME] are found in the [NAME]: Report of the 1973 [NAME] (1974) Parliamentary Paper No. 48 ('the 1973 [NAME]') which reported with a proposal for a [NAME] (Discipline and Justice) Bill 1974. [NAME] stated that it had 'tried to produce a disciplinary code which is uniform [i.e. unifying the codes of the [NAME], the [RESPONDENT[NAME] the [NAME]], [NAME[NAME] modern'. 105 In its description of the '[NAME] changes' in its proposed draft, the Party said, inter alia: 'An analysis of offences of conduct to the prejudice of good order and discipline tried by court martial led to the creation of additional specific offences (section 61 – driving offences, section 62 – assaults and disturbances ... ) which should minimise the use of charges of "conduct to the prejudice". ... Part of the value of setting out offences in a disciplinary code lies in their declaratory significance as a code of military conduct. Their educational and preventative value has been obscured or distorted by unrealistic maximum punishments. It does not enhance discipline to hold out minor breaches as serious crimes and we have not hesitated to reduce drastically maximum punishments.' 106 In its description of 'collateral matters', the Party referred to the [NAME] and said: 'Disciplinary codes traditionally rely on the ordinary criminal law for the less frequently committed criminal offences. One of the more striking anomalies of the present service codes is their dependence on the criminal [NAME]. We have proposed in section 68 to substitute the criminal law of the [NAME].' 107 In Part III of the Report's draft Bill, dealing with 'offences', Division 1 dealt with 'service offences'. Section 61 dealt with 'offences in relation to vehicles'; and s 62 with 'assaults, insulting words etc.'. 108 Division 2 dealt with 'civil offences', and s 68 dealt with that topic specifically. 109 Section 68 provided: '68. (1) [NAME] who commits a civil offence whether in Australia or elsewhere shall be guilty of an offence. (2) In this Division, the expression "civil offence" means an [NAME] or omission punishable by a law in [NAME] in the [NAME] (other than this [NAME]) or which if committed in that Territory would be punishable by that law. (3) [NAME] [NAME] of a civil offence is liable to be sentenced in accordance with the following provisions – (a) if the civil offence is punishable by a fixed punishment, he shall be sentenced to that punishment; and (b) if the civil offence is punishable by a maximum punishment, he may be sentenced to that punishment or to a punishment that under this [NAME] is less severe. (4) The regulations may provide that notwithstanding sub-section (2) – (a) a specific provision of a law in [NAME] in the [NAME] is not to be incorporated, in this Division; or (b) the provisions of a specific law in [NAME] in the [NAME] are not to be, or are to cease to be, incorporated in this Division.'

The Explanatory Memorandum for the [NAME] 1982 110 The Memorandum noted (par 7) that the procedure under the Bill by which charges against an [NAME] are heard and brought to trial 'is in many respects analogous to that by which an alleged offence is heard and tried by the [NAME]'. 111 In relation to the offences and punishments, the Memorandum explained that the principal changes from existing law were: 'Offences and punishments a. Revision of all service offences, including the discarding of outmoded offences, the introduction of new offences in order to reduce the reliance on charges of "conduct to the prejudice" and a systematic review of the mental elements of each offence. b. Reduction of maximum punishments to modern levels, the demarcation of serious offences from mere breaches of discipline by the provision of appropriate maximum punishments and the correlation of the mental elements of offences and maximum punishments. c. Substitution of the law of the [NAME] for the [NAME] as the appropriate law for the purposes of providing offences, not purely military in character, that may be tried by service tribunals.' 112 In its explanation of 'other offences' in Division 8 of Part III, the Memorandum said (of cl 61 of the Bill): '576. This clause creates certain offences triable by service tribunals that are offences against the ordinary law. The offences are applicable to [NAME] members and [NAME] civilians. 577. The selection of offences for this purpose is, to a degree, dictated by the scope of the Crimes (Overseas) [NAME] 1964, to which the Bill is, in this respect, complementary . ...' 113 The Memorandum added: '578. Sub-clause (1) creates offences of acts or omissions which would be Territory offences if they took place in the [NAME]. The definition of "Territory offence" in sub-clause 3(1) identifies the offences that are to be offences for this purpose as being offences against the laws of the Commonwealth (excluding this Bill and the Criminal Investigation Bill 1982), the [NAME] 1900 ([NAME]) in its application in the [NAME], and the Police Offences Ordinance 1930 ([NAME]). ...' 114 The Memorandum noted (par 585) that cl 68 of the Bill made similar provision to that under the previous law (which picked up offences against the laws of England) except that it provided for any offence under the law in [NAME] in the [NAME] to be triable.

Decisions of the High Court on the operation of the [NAME] 115 The operation of the [NAME] has been considered by the High Court on several occasions. In my opinion, it is essential to have regard to the reasoning in these cases. Although the issues before the Court were constitutional in form, the substance of the reasoning adopted bears upon the appellant's argument, at least by necessary implication.

Re [NAME] 116 [NAME] there was charged with three offences under the [NAME]: one of making a false entry in a service document, contrary to s 55(1)(b); and two charges of being absent without leave, contrary to s 24(1). The charges came before a [NAME] magistrate. In the [NAME] claimed, firstly, that the [NAME] magistrate was exercising the judicial power of the Commonwealth, contrary to Ch III of the Constitution; secondly, that each of the charges was an indictable offence against a law of the Commonwealth and, as such, was required by s 80 of the Constitution to be heard before a jury as a trial on indictment; and thirdly, that s 190 of the [NAME] was invalid as contrary to Ch III. The Full High Court ([NAME[NAME], [NAME[NAME] [NAME[NAME]) held that trials for service offences were not, under the [NAME], trials on indictment. 117 A majority of the Court ([NAME[NAME], [NAME[NAME] [NAME[NAME]) held that although a service tribunal exercised judicial power, it did not exercise the judicial power of the Commonwealth since the [NAME] power (s 51(vi)) contained power to enact a disciplinary code standing outside Ch III, and to impose upon those administering it a duty to [NAME] judicially. 118 [NAME[NAME] was of the opinion that jurisdiction could be validly conferred on a service tribunal for exclusively disciplinary offences only. 119 [NAME[NAME] was of the opinion that jurisdiction could be validly conferred only for service charges in respect of conduct outside Australia which were not substantially the same as civil court offences. 120 It was further held by [NAME[NAME] [NAME[NAME] that s 61 is valid on the ground that it is within the power of the [NAME] to provide that any conduct which constitutes a civil offence shall constitute a service offence if committed by a member. 121 (As mentioned above) [NAME], [NAME], [NAME], [NAME[NAME] [NAME[NAME] held that the provisions of ss 190(3) and (5) are beyond the [NAME] power since they interfere with the exercise by State courts of their [NAME] criminal jurisdiction, but that they are severable from the [NAME]'s valid provisions. 122 In rejecting [NAME]'s submission that s 61(1) of the [NAME] exceeded the [NAME] power, [NAME[NAME] [NAME[NAME] noted (at 541) first, that the scope of s 61(1) is 'severely [COMPANY]' by s 63, requiring the Attorney-[NAME]'s consent for certain proceedings; and, secondly, the circumstance that pre-1900 in the United Kingdom and in the [NAME] colonies, there was legislation conferring powers upon courts-martial to try members of the forces for civil offences, including a provision that [NAME] might be [NAME] in a civil court, having been sentenced by a court martial for the same offence, but that any military punishment that he had already undergone should be taken into account (at 542). 123 Their Honours said (at 543 – 544): '[B]oth as a matter of history and of contemporary practice, it has commonly been considered appropriate for the proper discipline of a [NAME] to subject its members to penalties under service law for the commission of offences punishable under civil law even where the only connexion between the offences and the [NAME] is the service membership of the [NAME]. Such legislation is based upon the premise that, as a matter of discipline, the proper administration of a [NAME] requires the observance by its members of the standards of behaviour demanded of ordinary citizens and the enforcement of those standards by military tribunals. To [NAME] in contravention of those standards is not only to break the law, but also to [NAME] to the prejudice of good order and military discipline. It is appropriate that such conduct should be punished in the interests not only of the community but of the [NAME] as well.' 124 Their Honours went on to say (at 544) that 'it is not possible to draw a clear and satisfactory line between offences committed by [NAME] members which are of a military character and those which are not'. 125 It followed, their Honours said (at 545), that – '... it is for [NAME] to decide what it considers necessary and appropriate for the maintenance of good order and discipline in those forces. And [NAME]'s decision will prevail so long at any rate as the rule which it prescribes is sufficiently connected with the regulation of the forces and the good order and discipline of [NAME] members.' 126 It further followed, their Honours held (at 545), that 'the selection of a law or laws defining such civil offences for that purpose must also be a matter for [NAME]'. 127 Accordingly, [NAME[NAME], [NAME[NAME] [NAME[NAME] held (at 545) that s 61 is validly enacted. 128 As mentioned, [NAME[NAME] [NAME[NAME] were of the same conclusion, but with somewhat different reasoning. 129 Their Honours said (at 569 – 570): 'There are two sets of constitutional objectives to be reconciled. The first set of objectives, dictated by s. 51(vi), consist of the [NAME] of the Commonwealth and of the several States and the control of the [NAME]. To achieve these objectives, it is appropriate to repose in service authorities a broad authority, to be exercised according to the exigencies of time, place and circumstance, to impose discipline on [NAME] members and [NAME] civilians. The second set of objectives, dictated both by Ch. III and s. 106 of the Constitution and by the constitutional history we have traced, consist of recognition of the pre-ordinate jurisdiction of the [NAME[NAME] the protection of civil rights which those courts assure alike to civilians and to [NAME] members and [NAME] civilians who are charged with criminal offences. To achieve these objectives, civil jurisdiction should be exercised when it can conveniently and appropriately be invoked and the jurisdiction of service tribunals should not be invoked, except for the purpose of maintaining or enforcing service discipline. These two sets of constitutional imperatives point to the limits of the valid operation of the [NAME]. It may not impair civil jurisdiction but it may empower service tribunals to maintain or enforce discipline. Therefore proceedings may be brought against [NAME] or a [NAME] for a service offence, if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline. In the application of this test, much depends on the facts of the case and the outcome may depend upon matters of impression and degree, especially on the needs of service discipline.' (Emphasis added.) 130 [NAME[NAME] [NAME[NAME] noted, however, that the test is an objective one and added (at 570 – 571): 'It must be applied by those in whom the [NAME] vests certain procedural powers. The repositories include the Attorney-[NAME] (s. 63(1)), a convening authority (ss. 103(1), 129a(1)), a [NAME] officer (s. 110(1)) and a summary authority (ss. 109, 110(1), 111(2)) who may have a discretion to decide whether or not a step in proceedings for the [NAME] of a service offence should be taken.' 131 Their Honours noted (at 571) that any such decision is examinable under s 75(v) of the Constitution, and added (at 571): 'Section 51(vi) does not support a jurisdiction standing outside Ch. III of the Constitution except to the extent that the jurisdiction serves the purpose of maintaining or enforcing service discipline. That being the purpose which is essential to the jurisdiction, it is the purpose to which its exercise must be directed.' 132 [NAME[NAME] [NAME[NAME] went on to say (at 574): 'Just as the scope of s. 51(vi) changes according to time, place and circumstance, so does the jurisdiction of service tribunals. But, when that jurisdiction falls to be exercised, the power which is exercised is not the judicial power of the Commonwealth; it is a power sui generis which is supported solely by s. 51(vi) for the purpose of maintaining or enforcing service discipline.'

[NAME] v [NAME] 133 Re [NAME] was applied by the Full High Court ([NAME], [NAME[NAME] [RESPONDENT[NAME]) in [NAME] v [NAME] (1989) 168 CLR 289. The respondent, a member of the [NAME], was involved in a traffic accident within [RESPONDENT] barracks, and charged under a State [NAME]. It had been held in the Supreme Court that the respondent's behaviour was relevantly governed by s 40(2) of the [NAME], which creates a number of offences which may be committed by [NAME] in connection with the use of a vehicle; and that this provision was inconsistent with the State [NAME], which was therefore invalid to the extent of the inconsistency by reason of s 109 of the Constitution. However, it was held by the Full High Court that there was no inconsistency. 134 Of the decision in [NAME], the Court said (at 297): ... [A] majority of the Court found that the [NAME] was to be interpreted so as to ensure that the military disciplinary code it enacted was cumulative upon and not exclusive of the ordinary criminal law ...' 135 Their Honours added (at 298): '... [I]t is clear that the [NAME] contemplates parallel systems of military and ordinary criminal law and does not evince any intention that [NAME] members enjoy an absolute immunity from liability under the ordinary criminal law, notwithstanding that the [NAME] addresses the question of double jeopardy. As is implicit in the judgments in [NAME], the [NAME] does not seek to do other than enact a system of military law in accordance with the traditional and constitutional view of the supplementary function of such law. The different purposes underlying military discipline and the ordinary criminal law were emphasized.' 136 The Full High Court went on to say (at 298 – 299): '[NAME] included in the [NAME] provisions which were designed to prevent [NAME] from hearing charges of civil offences which were substantially the same as service offences. The operation of these provisions depended upon a trial for the service offence having taken place: s. 190(3), (5). Their purpose was not to exclude the criminal law, but rather to enact a statutory rule against double jeopardy. But s. 190(3) and (5) were held in Re [NAME] to be invalid because they involved an impermissible ouster of the jurisdiction of the courts to try charges of civil offences. [ADDRESS] found that their invalidity did not affect the validity of the [NAME] as a whole. Nor does it prevent the Court from making reference to the provisions as they were enacted, for the purpose of ascertaining the intention of the [NAME] in enacting the remainder of the [NAME]: see [NAME] v. [NAME] [(1922) 257 O.S. 478 at 483 – 485]. But even had s. 190(3) and (5) been held valid, they would not have demonstrated a legislative intention that the disciplinary code established by the [NAME] operate to the exclusion of the ordinary criminal law. Similarly, s. 144(3) provides that where [NAME] has been tried for a civil offence he shall not subsequently be tried for a service offence which is substantially the same offence. Viewed in their context, these provisions do not suggest that the [NAME] intends to exclude the operation of State criminal law.'

[NAME] 137 Re [NAME] was further considered by the High Court in Re [NAME]; [NAME] [NAME] (1991) 172 CLR 460. A member of the [NAME] was charged before a service tribunal with falsifying a service pay list, contrary to s 55(1)(a) of the [NAME], and with using that list contrary to s 61(1) of the [NAME]. Conduct of this kind was also contrary to comparable provisions of the [NAME] 1914 (Cth). Moreover, in respect of the second charge, of using a false instrument, the charge was laid under s 61(1) of the [NAME], which adopts s 135C(2) of the [NAME] 1900 ([NAME]) in its application to the [NAME]. 138 [NAME] sought prohibition against the Commonwealth and the [NAME] magistrate upon these grounds (at 462): '1. The offences with which [NAME] has been charged are all offences for which a [NAME] equivalent exists.

2. There is no reason, pertinent to the maintenance of military discipline, why the charges should not be laid, heard and determined under the [NAME] law.

3. That being so – (a) the [NAME] lacks jurisdiction to hear and determine the charges; or (b) in the alternative, if the [NAME] does have jurisdiction to hear and determine the charges, he should nevertheless decline to exercise that jurisdiction on the ground that there exists a forum (namely, the [NAME] court) by which jurisdiction might more appropriately be exercised.' 139 [NAME[NAME] and [NAME[NAME] said (at 472 – 473): [NAME] presented the Magistrate with a very considerable problem. There was no majority for any one of the three opinions expressed in the judgments; indeed, there was a majority rejection, at least by way of preferred view, for each of the three opinions. However, the Magistrate seems to have thought, mistakenly as we understand their Honours' judgment, that [NAME[NAME] [NAME[NAME]. considered that, "upon a service authority or a tribunal finding that a sufficient service connexion exists, then [NAME] of [a service] offence automatically serves a substantial disciplinary purpose". The Magistrate therefore treated the "serving of a substantial disciplinary purpose" as synonymous with a "sufficient service connection" and, on this footing, thought that there was some identity of approach between their [NAME] [NAME]., [NAME[NAME] [NAME[NAME]. However, we do not find anything in the judgment of [NAME[NAME] [NAME[NAME]. which suggests that the presence of a sufficient service connexion means automatically that the [NAME] will serve a substantial disciplinary purpose. The Magistrate's reasoning was mistaken in this regard.' 140 Having heard further argument on the scope of the power conferred by s 51(vi) and its interrelationship with Ch III, their Honours could 'see no reason to resile from the view which we expressed in [NAME] as to the scope of the legislative power ... [that is to say] it is open to [NAME] to provide that any conduct which constitutes a civil offence shall constitute a service offence, if committed by [NAME]' (at 474). 141 [NAME] and [NAME] said (at 482): 'The doctrine that military law is supplementary and subordinate to the [NAME] law is not expressed in the text of the Constitution any more than the doctrine of responsible government, yet both doctrines underpin the Constitution, inform its interpretation, and are calculated to secure the democratic freedom to which the Constitution and the nation it formed aspire. A power in the [NAME], acting in aid of the executive, to enact a criminal law binding on [NAME] members and [NAME] civilians in times of peace which would prevail over the ordinary criminal law would be destructive of the discipline which the power to enact a supplementary criminal law is calculated to achieve. The creation of a military class immune from the [NAME] criminal law would be antithetical to the constitutional function of the [NAME] "to execute and maintain the laws of the Commonwealth" (s. 51(vi) and to be available to protect a State against domestic violence (s. 119).' (Emphasis added.) 142 Their Honours added (at 483): 'A law creating a service offence is denied an operation inconsistent with the operation of an ordinary criminal law of a State, not because the will of the State [NAME] prevails over the will of the [NAME] but because the support of s. 51(vi) of the Constitution for the creation of service offences vanishes when it is impracticable to obey simultaneously the law creating the service offence and the ordinary criminal law enforceable by the courts of this country.' 143 Reiterating the view they had expressed in [NAME[NAME] [NAME[NAME] said (at 484 – 485): 'In some circumstances conduct amounting to a service offence calls for proceedings to be taken before a service tribunal in order to maintain or enforce service discipline; in other circumstances, it does not. That being so, Pts III and VII of the [NAME], which are drawn in [NAME] terms, must be held invalid unless they can be read down to apply only in the circumstances in which their application is constitutionally supportable. Though it may be impossible to prescribe a priori the times and circumstances in which proceedings before a service tribunal will be regarded as substantially serving the purpose of maintaining or enforcing service discipline, it does not follow that a failure by the [NAME] expressly to restrict the application of these [NAME] provisions destroys its validity. Though the [NAME] appears to authorize an exercise of jurisdiction in every case literally falling within its terms, and thus to authorize an invalid as well as a valid exercise of the jurisdiction to hear and determine charges of committing service offences, the distributive operation of the [NAME] is confined by s. 15a of the [NAME] so that the jurisdiction conferred on service tribunals is available for exercise only on occasions when there is constitutional support for its exercise.' (Emphasis added.)

[NAME] 144 [NAME] was further considered by the High Court in Re [NAME]; [NAME] [NAME] (1994) 181 CLR 18. [NAME] was charged before a [NAME] court martial with dishonestly appropriating Commonwealth property in New South Wales (by receipt of a temporary rent allowance ('TRA') improperly claimed in connection with his posting to the RAAF base, Richmond) contrary to s 47(1) of the [NAME] (an offence substantially the same as s 71 of the [NAME] 1914 (Cth)), and s 178BA of the [NAME] 1900 ([NAME]). The basis of the application for prerogative relief was that, the offence under s 47(1) being inherently criminal in character and there being an appropriate civil court to determine the charge against the [NAME], the [NAME] court martial lacked jurisdiction. Specifically, the [NAME] asserted that the offence with which he was charged was substantially the same as an offence against s 71 of the [NAME] 1914 (Cth) and as an offence against s 178ba of the [NAME] 1900 ([NAME]). He further contended that the [NAME] court martial was not constituted in accordance with Ch III of the Constitution and had no authority to exercise the judicial power of the Commonwealth. Moreover, the contention added, a trial by [NAME] court martial was not trial by jury as required by s 80 of the Constitution. 145 [NAME[NAME] [NAME[NAME] disposed of the application in accordance with their reasoning in [NAME], but added (at 26 – 27) that, in accordance with the views expressed by [NAME[NAME] [NAME[NAME] in [NAME], [NAME[NAME] [NAME] would themselves have held that the proceedings against [NAME] in this case served the purpose of maintaining or enforcing service discipline. 146 [NAME[NAME] [NAME[NAME] (at 29) maintained the view they held in [NAME]. Their Honours continued (at 30): 'We do not accept the argument that the relevant aspects of the [NAME] cannot be supported under the first limb of par.(vi). The end to be pursued is, in the words of the Constitution, the "naval and military [NAME] of the Commonwealth". Essential to that [NAME] is the discipline of the [NAME]. Traditionally, the maintenance of that discipline has been through [NAME]. The conferral of jurisdiction on [NAME] [NAME] is appropriate and adapted to the end stated when [NAME] before a court martial can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline.' 147 In concluding that the proceedings in question can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline, their Honours said (at 31 – 32): 'The charge involves a misappropriation of "service property" as that term is defined in s. 3(1) of the [NAME]. The TRA scheme giving rise to the charge is a scheme administered by the [NAME] for the benefit of [NAME] members. The authority for the TRA scheme is to be found in s. 58B of the [NAME] [NAME] 1903 (Cth) and the elements of the scheme, in the form of INDMAN 0503, constitute a [NAME] ([NAME]) which is a "[NAME] order" as defined in s. 3(1) of the [NAME]. [NAME] was [NAME] and his alleged conduct related to a scheme instituted for the benefit of [NAME] members, including those under [NAME]'s command. The effect on service morale and discipline by a breach of the kind alleged[ly] committed by a [NAME] officer might reasonably be regarded as substantial.' 148 [NAME[NAME] said in Re [NAME] (at 38) that in Re [NAME], he agreed with [NAME[NAME] in both Re [NAME[NAME] Re [NAME] that, unless a service tribunal is established under Ch III, it has jurisdiction to deal with an 'offence' only if that 'offence' is exclusively disciplinary in character, or is concerned with the disciplinary aspects of conduct which constitute an offence against the [NAME] law. However, that conclusion, whilst still [NAME]'s view, was, [NAME] acknowledged, rejected by a majority of Justices in both cases. [NAME[NAME] added (at 39 – 40): 'Furthermore, for the Court now to hold that a service tribunal had no jurisdiction to try this case after reaching the opposite conclusion twice in the past five and a half years would defeat the expectations of the [NAME[NAME] those concerned with the administration of discipline in the [NAME]. Both the [NAME[NAME] those responsible for the administration of service discipline could be fairly excused for thinking that the constitutional question had been settled. Moreover, the two decisions are confined to the special position of the [NAME[NAME] give effect to a tradition that has existed in this country from its earliest days. The decisions have no authority outside the situation of the [NAME].

Accordingly, in my opinion, the Court should continue to follow [NAME[NAME] [NAME] in any case whose circumstances are not readily distinguishable from the circumstances of those two decisions, notwithstanding that they contain no binding ratio decidendi.' 149 If, for the moment, one puts aside the possible application here of the 'context' rule of statutory construction mentioned by [NAME] in [NAME], it is, in my view, difficult to maintain, from any of these High Court decisions, a reading down interpretation of the kind now advanced by the appellant. [APPELLANT[NAME] [APPELLANT] were not prepared to read down s 61 at all. [NAME[NAME] and [NAME[NAME] read s 61 down in a different sense, that is to say, by requiring that the proceedings in question can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline. [NAME[NAME] [NAME[NAME] would also read the [NAME] down to offences which are exclusively disciplinary in character, or concerned with the disciplinary aspects of conduct. 150 None of the High Court Justices has suggested, in any of these decisions, that the reading down construction now propounded by the appellant applied to s 61 of the [NAME]. Although the specific issue did not, of course, then squarely arise for decision, it is only reasonable to expect that the four Justices who did allow some reading down would, in their reasons, have adverted to any other possible reading down. But they did not. At the same time, as has been said, [NAME[NAME] [NAME] were against any reading down at all. 151 Again, if for the moment, one leaves aside the 'context' rule of statutory construction mentioned by [NAME] in [NAME], it must, in my view, be accepted in this Court that no Justice of the High Court, has expressly accepted the appellant's contention, and, in my opinion, each Justice has, by necessary implication, declined to do so. In those circumstances, it is not open to this Court to hold to the contrary, as ground 1 now asks us to do.

[APPELLANT] 152 Turning now to [APPELLANT], the appellant, as mentioned, relies upon the reference by [APPELLANT[NAME] there to the observations of [NAME[NAME] and [NAME[NAME] in [NAME] (at 7); that is to say, the rule that when [NAME] 'explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of [NAME] expressions in the same instrument which might otherwise have been relied upon for the same power'. [NAME] described this as the 'context' rule (at 23). However, [NAME[NAME] also relied upon a purposive interpretation of the relevant statutory provision. In this connection, [NAME] considered the history and purpose of the particular legislation. [NAME[NAME] agreed with [NAME[NAME]. However, although [NAME[NAME] also concurred in allowing the appeal, she placed much emphasis (at 17) upon the different 'basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied'. [NAME[NAME] [NAME[NAME] dissented. 153 [NAME] is, even on the approach taken by [NAME[NAME], a decision upon the construction and interpretation of a statutory provision with no connection or analogy with the present legislation. When, as here, the High Court has considered the operation of the [NAME] on four occasions in a 'context' quite different from [NAME], but without any suggestion or mention of the reading down (significant as it is) now propounded by the appellant, it is not, I think, open to this Court to follow the path urged upon us by the appellant. 154 I should add, for completeness, that, in my view, there is nothing in the 1973 [NAME] or the Explanatory Memorandum which assists either party here. No mention is made there of any need to 'read down' the operation of s 61 in the way the appellant now suggests. It is true that par 577 of the Explanatory Memorandum speaks of s 61 as 'complementary', but this is quite consistent with the reasoning of [NAME[NAME] and [NAME[NAME], and of [NAME[NAME] and [NAME[NAME]. 155 Accordingly, I would reject ground 1 of the appeal.

Grounds 2, 3 and 5(b)(i) of the appeal 156 In his second ground of appeal, the appellant submits that these proceedings were an abuse of process, and should have been stayed. 157 The appellant contends that the Tribunal erred by holding that for an abuse of process to arise, it was necessary for there to have been 'personal animus' against the appellant; by failing to take into account that the [NAME] magistrate erred in law by trying the charge and by convicting the appellant under s 135 of the [NAME]; by taking action under Part 4 of the [NAME]; and by imposing punishment on the appellant pursuant to s 75 of the [NAME]. The appellant contends that it was an abuse of process to permit the appellant to be charged and [NAME] under s 61 of the [NAME], applying s 26 of the [NAME] 1900 ([NAME]), when ss 33(a) and 34 of the [NAME] provide for a service offence for substantially the same physical and mental elements and, when, at the time that the appellant was charged in 2002 with an offence against s 61 of the [NAME], s 96 prohibited him from being charged with an offence against either of ss 33(a) and 34 of the [NAME]. 158 Specifically, the appellant submits that: · [NAME] have inherent jurisdiction to stay criminal proceedings which are an abuse of process (citing [NAME] (1992) 174 CLR 509); and a [NAME] magistrate has the power to stay proceedings pursuant to the provisions of s 141(1)(a)(v) and s 141(5) of the [NAME]. · The only rational reason why the appellant was charged under s 61 instead of ss 33 and 34 was to avoid the time limitation applying to those latter sections by s 96. The issue of whether s 61 was being used in this way was of obvious concern to the [NAME] magistrate. [NAME]'s answer to the [NAME] magistrate (above) was indirect and empty. No legitimate rational purpose was advanced by [NAME]. It is for all practical purposes impossible to conceive of how in the circumstances of this case, s 26 of the [NAME] 1900 ([NAME]) expressed an offence of common assault more adequately than ss 33 or 34 of the [NAME], other than to avoid the time limitation set by s 96(1). · To use s 61 to defeat the prohibition provided by s 96 was undoubtedly a serious abuse of process and an error of law by the [NAME] magistrate to allow and convict the appellant. Reference is made to sentencing remarks (cited above) and to [NAME] v The Queen (1995) 184 CLR 501 at 512 – 513, 535. · It was not necessary, as was held by [NAME[NAME], to find that the use of s 61 in the way that it was in this case was motivated by 'personal animus' against the appellant. The power to stay criminal proceedings on the ground that they constitute an abuse of process is not confined to circumstances giving rise to unfairness or oppression to the [NAME] (citing [NAME] (1989) 17 NSWLR 472 at 478G – 479G). It can be an abuse of process for the [NAME] to charge an [NAME] with a less serious offence than that which he or she had allegedly committed; or to use s 60 in substitution for or on the same alleged facts together with a substantive offence under [NAME] section of the [NAME]. A [NAME] magistrate has a clear legal obligation to prevent a patent abuse of process and the exercise of powers recording the conviction in the present case by the [NAME] magistrate was an error of law. 159 It will be convenient to consider ground 2 in conjunction with grounds 3 and 5(b)(i) of the appeal. 160 By ground 3, the appellant contends that the Tribunal should have held that the [NAME] magistrate erred in law since it was an abuse of process to permit the appellant to be charged and [NAME] under the [NAME] in circumstances where there had been extraordinary and unexplained delay between the commission of the alleged offence in 1996 and the hearing before the [NAME] magistrate on 10 March 2003; and where, at the time that the appellant was charged in 2002 with an offence against s 61 of the [NAME], s 96 prohibited him being charged with an offence against either s 33(a) or s 34 of the [NAME]. 161 By ground 5(b)(i), the appellant contends that the Tribunal erred in law by failing to take into account the fact that the appellant's conviction resulted in a miscarriage of justice and should be quashed because he was not fully advised of his right to raise each of the matters set out above and have them determined by a [NAME] magistrate expeditiously; and, in the premises, his right to plead not guilty. 162 In support of these grounds, the appellant submits that: · The basis upon which proceedings might be stayed are not [COMPANY] to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the party being afforded a fair hearing. Proceedings can and should be stayed if the continuation of them would involve unacceptable injustice or unfairness (citing Walton v Gardiner (1993) 177 CLR 378). · According to the charge sheet, the alleged offence occurred 'on a date unknown between 31 July 1996 and 1 September 1996'. There can be no doubt that the elapse of almost seven years by the time of the hearing before the [NAME] magistrate would have dramatically reduced the probative value of the witnesses' evidence. (As mentioned), it was the [NAME] magistrate's 'very strong view that the delay [was] inexcusable'. [NAME[NAME] also criticised the delay. 163 In my opinion, the [NAME] magistrate should have considered whether, in the unusual circumstances of this case, a stay of proceedings should have been granted. 164 It will be recalled that in [NAME[NAME] [NAME[NAME] held (at 570) that proceedings may be brought 'if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline,' and that in the application of this test, 'much depends upon matters of impression and degree, especially on the needs of service discipline'. It will further be recalled that their Honours said (at 570 – 571) that the test was an objective one, and that it must be applied by those (including a convening authority) in whom the [NAME] vests certain procedural powers, who may have a discretion to decide whether or not a step in proceedings 'should be taken'. 165 In my opinion, these observations are pertinent here. Yet, the proceedings before the [NAME] magistrate indicated that no real, or any, consideration was given to the responsibilities carried by the convening authority here, in endowing the proceedings with the specific purpose described by [NAME[NAME] and [NAME[NAME]; that is to say, of substantially serving the purpose of maintaining or enforcing service discipline. In particular, no proper consideration was then given to the question whether, by virtue of the long delay in [NAME], and the impact of that delay on the maintenance and enforcement of service discipline, a stay of proceedings should have been granted. 166 The power to stay criminal proceedings, permanently if necessary, to prevent an abuse of the court's process exists in order to ensure that its processes are used fairly by State and citizen alike. The power is available to every court of justice (see [NAME] (2002) 77 ALJR 157 per [NAME] at [145]). The statutory framework for taking this objection is contained within s 141 of the [NAME]. Examples may be given of the width of the court's power. 167 One example of abuse by the Crown in manipulating or misusing procedural practices in criminal proceedings may be seen in [NAME] v District Court ([COMPANY]) (1995) 77 Crim R 16, where [NAME] said (at 18 – 19): '…That the power of a Court to stay criminal proceedings for abuse of process includes the power to stay permanently, has been authoritatively settled; ... . Although the cases have been mostly concerned with preventing the [NAME] of proceedings which will result in an unfair trial, …which is strictly speaking a distinct rubric from that of abuse of process, and with preventing the [NAME] of proceedings brought for an improper purpose, …"it is not possible to state exhaustively all the categories of abuse of process" …. The underlying principle was stated in wide terms in the joint judgment of [NAME], [NAME], [NAME[NAME] [NAME[NAME] in [NAME] at 520; 437: "As Lord [NAME] said in [NAME] v Sang [1980] AC 402, at 455; ... every court is 'in duty bound to protect itself' against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. [NAME] referred to them in [NAME] v Department of Labour [1980] 1 NZLR 464, at 481 in a passage which [NAME] quoted in [NAME] [(1989) 168 CLR 23], at 30. The first is that the [NAME] interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of [NAME] confidence by reason of concern that the court's processes may lend themselves to oppression and injustice." The remedy may be granted where "[NAME] can be said to have manipulated or misused the rules of procedure"; [NAME][NAME] [NAME] (1985) 80 Cr App R 164 at 168; [NAME] [NAME]; [NAME] [NAME] (1982) 75 Cr App R 236, [NAME] [NAME]; [NAME] [NAME] (1981) 73 Cr App R 67. Case management rules are now essential equipment for courts exercising criminal jurisdiction, just as they are for Courts exercising civil jurisdiction.'

168 In [NAME], a stay of a criminal [NAME] was granted, before trial, on the ground that the Crown had misused pre-trial procedural directions.

169 [NAME] example of an abuse of process, perhaps more analogous to the case now advanced by the appellant, is [NAME] (1993) 29 NSWLR 680. The [NAME] 1902 ([NAME]) (s 56) allowed an information to be 'laid or made at any time within six months ...' from the time the matter arose, but there was no provision about when the summons should issue. It was held that it is an abuse of process to lay an information before a decision to prosecute is made and to delay the issue of the summons to allow further information to be collected.

170 [NAME[NAME] said (at 685):

'Mr [NAME] has put that there has been no relevant prejudice to the plaintiff, in particular because he does have his own analysis. Further, he submitted that there has been no deliberate manipulation by the [NAME]: see [NAME][NAME] [NAME] (1984) 80 Cr App R 164. In [NAME] [NAME]: [NAME] [NAME] (Contractors) [COMPANY] [1976] 1 WLR 517; [1976] 2 All ER 611, [NAME[NAME], who gave the judgment with which the other two judges agreed, said (at 520; 614): "In my view the six months' limitation provision in section 104 of the [NAME]' [NAME] 1952 is to ensure that summary offences are charged and tried as soon as reasonably possible after their alleged commission, so that the recollection of witnesses may still be reasonably clear, and so that there shall be no unnecessary delay in the disposal by [NAME]' courts throughout the country of the summary offences brought before them to be tried." I respectfully agree. I would, however, add that one effect, if not a purpose, of the provision, is to allow persons who might be involved in the type of offences to which this limitation applies to put them behind them after a reasonably short and defined time. In my view the events which occurred in this case, albeit not knowingly intended to be so by the first defendant and those who gave him his instructions, amounted to an abuse of process of an order such that it is a proper exercise of my discretion to permanently stay the proceedings.' 171 [NAME] may also be seen as an application of the principle that 'whatever is prohibited by law to be done directly cannot legally be effected by an indirect and circuitous contrivance' (see, [NAME], A Selection of Legal Maxims, 10th ed, [NAME], London (1939) at 315; [COMPANY] v The Commonwealth (1948) 76 CLR 1 per [NAME] at 350; [NAME] [COMPANY] v [NAME] (1991) 23 NSWLR 214 at 217 and the cases there cited). 172 None of these questions was properly raised before the [NAME] magistrate. In my opinion, they should have been put to him, in the form of an application brought under s 141(5) of the [NAME], seeking a direction that the interests of justice required that the proceedings be permanently stayed. 173 In [NAME] v The Queen (1980) 147 CLR 75, [NAME[NAME] J said (at 95 – 96): 'It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite [NAME] thing to say the courts are powerless to prevent an abuse of process or the [NAME] of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice. The courts exercise no control over the Attorney-[NAME]'s decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the [NAME] receives a fair trial.' 174 So here, it may be said that, even if it was technically open to the convening authority to lay a charge under s 61, the [NAME] magistrate was not powerless to prevent an abuse of process or the [NAME] of a criminal proceeding in a manner which would result in a trial which is unfair, when judged by reference to accepted standards of justice. 175 In my opinion, although some prima facie evidence in this connection is provided in the appellant's affidavit (pars 6 – 8, cited above), the whole question of abuse of process should be remitted back to a [NAME] magistrate to decide finally whether a stay of the proceedings ought to be granted (see, as to the similar course taken in [NAME], above, per [NAME[NAME] and [NAME[NAME] at 103).

Grounds 4, 5(a), (b)(ii) and 6 176 In these grounds, the appellant seeks, in essence, to challenge the Tribunal's finding that he had not been placed under pressure to plead guilty. In view of my conclusion, based on grounds 2, 3 and 5(b)(i), that the matter be remitted, it is not necessary for me to consider this challenge.

Grounds 7, 8 and 9 177 In these grounds, the appellant now seeks, in essence, to challenge in this Court the constitutional validity of s 61. However, as has been seen, the High Court has rejected similar challenges on several recent occasions. It is not, in my opinion, a claim which this Court can entertain.

Orders proposed 178 I would order that:

1. The appeal be allowed in part, but with costs.

2. The orders made by the [NAME] Tribunal be set aside; in lieu thereof, the appeal to that Tribunal be allowed, and that the orders made by the [NAME] magistrate be set aside; and in lieu thereof, order that the matter be remitted back to a different [NAME] magistrate to decide, in accordance with this judgment, whether a stay of proceedings should be granted. I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate: Dated: 31 May 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1485 OF 2003

ON APPEAL FROM THE [NAME] TRIBUNAL

BETWEEN: [NAME] [APPELLANT]

APPELLANT

AND: CHIEF OF [RESPONDENT]

RESPONDENT

JUDGES: [NAME], BEAUMONT, [RESPONDENT], [APPELLANT[NAME] [NAME]: 31 MAY 2004

PLACE: [APPELLANT] FOR JUDGMENT

[APPELLANT[NAME]: 179 I have had the benefit of reading drafts of the reasons for judgment of [NAME], [NAME[NAME] [NAME[NAME] and of [NAME[NAME], and am relieved of the necessity of summarising the background to the appeal.

Ground of appeal 1 – the construction question 180 I agree with [NAME[NAME] [NAME[NAME] in relation to the first ground of appeal, and add the following observations.

[NAME] 181 The historical background to the relationship between military law and the [NAME] law is recounted in Re [NAME]; [NAME] [NAME] (1989) 166 CLR 518 ([NAME]) at 541-547 per [NAME[NAME], [NAME[NAME] [NAME[NAME], and at 554-563 per [NAME[NAME] [NAME[NAME]. The approach of English law has long been that members of the [NAME] are amenable to the ordinary criminal law enforced in the ordinary criminal courts, and that military law creates an additional set of rights and duties which are enforced in special courts: [NAME] v The Commonwealth (1981) 150 CLR 113 at 125; [NAME] per [NAME], [NAME] and [NAME] at 546, per [NAME[NAME] [NAME[NAME] at 575-576, per [NAME[NAME] at 585-586; but cf [NAME] at 599-600. 182 It was never in question in the present case that [NAME] [APPELLANT] was amenable to Queensland's Criminal Code ('the Code'). The misdemeanour of unlawful assault was provided for by s 335 of the Code with a maximum penalty of imprisonment for one year -the period was increased to three years by s 56 of the [NAME] 1997 (Qld) (s 245 of the Code defined 'assault', and s 246 provided that an assault was unlawful unless it was authorised or justified or excused by law). The misdemeanour of unlawful assault was a 'civil court offence' within s 3(1) of the [NAME] 1982 (Cth) ('the [NAME]'). 183 Indeed, in [NAME] it was held that ss 190(3) and (5) were invalid as being beyond the legislative power conferred on the [NAME] by s 51(vi) of the Constitution, because they interfered with the exercise by the ordinary courts of their [NAME] criminal jurisdiction.

Accordingly, subject to any operation of the [NAME] law principles of autrefois convict and autrefois acquit, conviction or acquittal before a [NAME] would not prevent the laying and [NAME] of a charge against [NAME] [APPELLANT] for the misdemeanour of unlawful assault under the Code in an appropriate Queensland 'civil court' (in the [NAME], the expression 'civil court' was used to mean 'a federal court or a court of a State or Territory': s 3(1)). Section 144 of the [NAME], however, provided that acquittal or conviction of a service offence before a service tribunal, or of a civil court offence before a civil court (or of an overseas offence before an overseas court) rendered the person acquitted or [NAME] not liable to be tried by a service tribunal for a service offence that was substantially the same offence. 184 The purpose of the [NAME] is 'to create a disciplinary code for the promotion of the efficiency, good order and discipline of the [NAME[NAME] no more': [NAME] v [NAME] (1989) 168 CLR 289 at 297, citing [NAME] at 538. That is the purpose of s 61, as well as of ss 33 and 34 of the [NAME]. The Constitutional underpinning of all three sections is s 51(vi), rather than Ch III, of the Constitution: [NAME]; [NAME]; [NAME] [NAME] (1991) 172 CLR 460. 185 The question to be resolved is one of the proper construction of provisions within the same [NAME], with the same purpose and supported by the same Constitutional provision. The provisions are those relating to the two service offences created by ss 33 and 34(1), and the single [NAME] service offence created by s 61, of the [NAME]. All three are service offences created by the [NAME].

Legislative history 186 Section 55 of the [NAME] [NAME] 1903 (Cth) ('the [NAME] [NAME]'), in its original form, provided: '55. The [NAME] shall at all times, while on active service, be subject to the [RESPONDENT] [NAME] save so far as it is inconsistent with this [NAME]; but so that the regulations may prescribe that any provisions of the [RESPONDENT] [NAME] shall not apply to the [NAME].' The expression '[RESPONDENT] [NAME]' appearing in this provision was defined in s 4 of the [NAME] [NAME] to mean the [NAME] so called (this was the [RESPONDENT] [NAME] 1881 (UK) (44 & 45 Vict c58) and any [NAME] amending, or in substitution for, that [NAME] and for the time being in [NAME]. 187 Section 55 was amended over the years, and immediately prior to the commencement of the relevant provisions of the [NAME] on 3 July 1985, it provided: 'The [RESPONDENT] shall at all times, whilst on war service, whether within or without the limits of Australia, be subject to the [RESPONDENT] [NAME] save so far as it is inconsistent with this [NAME] and subject to such modifications and adaptations as are prescribed, including the imposition of a fine not exceeding $40 for an offence either in addition to or in substitution for the punishment provided by the [RESPONDENT] [NAME], and the increase or reduction of the amount of a fine provided by the [RESPONDENT] [NAME].' The reference to 'the [RESPONDENT] [NAME]' was still to the [RESPONDENT] [NAME] 1881 (UK), as in [NAME] on 29 October 1956, even though the [RESPONDENT] [NAME] 1955 (UK) had been enacted in the meanwhile with a commencing date of 1 January 1957. 188 Neither of the provisions set out above would have applied in the circumstances of the present case. 'Active service' and 'war service' were defined so as to be referable, in various ways, to times of war or to a state of war. A member of the [RESPONDENT], such as [NAME] [APPELLANT], who was within Australia and not on war service, would have been subject only to the specific offence provisions of the [NAME] [NAME] and of the [NAME], as well, of course, as to the ordinary criminal law of the State of Queensland. 189 From the beginning, the [RESPONDENT] [NAME] 1881 (UK) created both specific service offences, and a [NAME] service offence by reference to 'the [NAME]'. Thus, immediately prior to the commencement of the [NAME], s 41 of the [RESPONDENT] [NAME] 1881 (UK) provided, relevantly, as follows: '41. Subject to such regulations for the purpose of preventing interference with the jurisdiction of the [NAME] as are in this [NAME] after mentioned, every person who, whilst he is subject to military law, shall commit any of the offences in this section mentioned shall be deemed to be guilty of an offence against military law, and if charged under this section with any such offence (in this [NAME] referred to as a civil offence) shall be liable to be tried by court-martial, and on conviction to be punished as follows; that is to say,

(1) If he is [NAME] of treason, be liable to suffer penal servitude, or such less punishment as is in this [NAME] mentioned; and

(2) If he is [NAME] of murder, be liable to suffer penal servitude; and

(2A) If he is [NAME] of an offence under the [NAME], 1940, be liable to suffer penal servitude;

(3) If he is [NAME] of manslaughter or treason-felony, be liable to suffer penal servitude, or such less punishment as is in this [NAME] mentioned; and

(4) If he is [NAME] of rape, be liable to suffer penal servitude, or such less punishment as is in this [NAME] mentioned; and

(5) If he is [NAME] of any offence not before in this section particularly specified, which when committed in England is punishable by the [NAME], be liable, whether the offence is committed in England or elsewhere, either to suffer such punishment as might be awarded to him in pursuance of this [NAME] in respect of an [NAME] to the prejudice of good order and military discipline, or to suffer any punishment assigned for such offence by the [NAME] …'

190 It is noteworthy that ss 70(1), (2) and (6) of the [RESPONDENT] [NAME] 1955 (UK) provide: '70 (1) Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against this section. (2) In this [NAME] the expression "civil offence" means any [NAME] or omission punishable by the [NAME] or which, if committed in England, would be punishable by that law; and in this [NAME] the expression "the corresponding civil offence" means the civil offence the commission of which constitutes the offence against this section.' '(6) [NAME] subject to military law may be charged with an offence against this section notwithstanding that he could on the same facts be charged with an offence against any other provision of this Part of this [NAME].' No provision to the effect of subs (6) was taken into the [NAME] by the [NAME] [NAME], even though that subsection had been inserted in the [NAME] of 1955 by the [NAME] [NAME] 1971 (UK) s 34(1). 191 The limitation that a member of the [RESPONDENT] must be serving outside Australia, or on war service within Australia, noted at [10] above, did not apply to members of the [NAME] or [NAME]: they were made triable with offences against the ordinary laws of England generally, and, in the case of the [NAME], also with offences against the laws of the Commonwealth (see the Explanatory Memorandum which accompanied the Bill for the [NAME] ('the Explanatory Memorandum') at par [584]). 192 The introduction of the [NAME] was preceded by a report in 1973 of a [NAME] on the '[NAME]'. This report recommended a single disciplinary code relating to [RESPONDENT], [NAME] and [NAME].

Accordingly, the difference just mentioned, as between the [RESPONDENT] on the one hand and the [NAME] and the [NAME] on the other, was to disappear. The report also noted that: 'Disciplinary codes traditionally rely on the ordinary criminal law for the less frequently committed criminal offences. One of the more striking anomalies of the present service codes is their dependence on the criminal [NAME]. We have proposed … to substitute the criminal law of the [NAME].' (my emphasis) 193 The Explanatory Memorandum noted that these two changes were adopted in the Bill. The expression 'Territory offence' was defined in s 3(1) of the [NAME], as originally enacted, by reference to the [NAME] ('[NAME]'), rather than, as now, by reference to the [NAME] ('[NAME]'). 194 [NAME] [APPELLANT] was charged with having committed an offence 'on a date unknown, between 31 July 1996 and 1 September 1996'. At that time s 4A of the [NAME] [NAME] 1991 (Cth) provided that, subject to that [NAME], 'the laws … in [NAME] from time to time in the [[NAME]] [were], … in [NAME] in the [[NAME]] as if the [[NAME]] formed part of the [[NAME]]'. This provision was not much different from s 4 of that [NAME] in its original form (No 19 of 1915), which provided that the [NAME] was to be annexed to and be deemed to form part of the [NAME] 'to the intent that all laws, ordinances and regulations … from time to time in [NAME] in the [[NAME]] [should] so far as applicable apply to and be in [NAME] in the [[NAME]]'. In 1915, it was contemplated that only laws, ordinances and regulations of the Commonwealth would be made for the [NAME]: self-government of the [NAME] was not in prospect. 195 At the time of the alleged offence by [NAME] [APPELLANT] at some time between 31 July 1996 and 1 September 1996, the definition of 'Territory offence' in s 3(1) of the [NAME] referred to '(b) an offence punishable under the [NAME], 1900 of the [NAME], in its application to the [[NAME]]'. As will appear below, the [NAME] 1900 of the [NAME] was not applicable in the [NAME] at that time: the ([NAME]) [NAME] 1900 was. 196 The [NAME] became self-governing in 1988 by the operation of the [NAME] (Self-Government) [NAME] 1988 (Cth). Section 22 of that [NAME] gave the [NAME] power to make laws for the peace, order and good government of the [NAME]. Subsection 34(4) of that [NAME] had the effect that the [NAME] 1900 ([NAME]) continued to apply in the [NAME], but was taken to be a law made by the [NAME], and could be amended or repealed by that [NAME]. 197 Section 3 of the Crimes Legislation (Status and Citation) [NAME] 1992 ('the [NAME]) [NAME]'), an [NAME] of the [NAME], which was gazetted and commenced on 28 March 1992, provided that the [NAME] 1900 ([NAME]) ('the applied State [NAME]'), in its application in the [NAME] immediately before the commencement of the [NAME]) [NAME], was to be 'taken to be, for all purposes, a law made by the [NAME] as if the provisions of the applied State [NAME] had been re-enacted in an [NAME] passed by the Assembly and taking effect on the commencement of [the [NAME]) [NAME]]'. Section 4 of the [NAME]) [NAME] provided that the applied State [NAME] might be 'cited as the [NAME] 1900'. This last [NAME] has been referred to variously as the ([NAME]) [NAME] 1900 and as the [NAME] 1900 ([NAME]). It is this ([NAME]) [NAME] 1900 which s 4A of the [NAME] [NAME] 1915 (Cth) caused to be in [NAME] in the [NAME] at the time of [NAME] [APPELLANT]'s alleged offences in 1996. The terms of the charge against [NAME] [APPELLANT] correctly referred to the [NAME] 1900 ([NAME]). The problem was that the definition of 'Territory offence' in s 3(1) of the [NAME] continued to refer, at the time of [NAME] [APPELLANT]'s alleged offence in 1996, to an offence punishable under the '[NAME], 1900 of the [NAME], in its application to the [[NAME]]'. At the time of [NAME] [APPELLANT]'s alleged offence in 1996, the [NAME] 1900 of the [NAME] did not apply to the [[NAME]]. 198 The discrepancy was addressed by the [NAME] [NAME] (No 1) 1996 (Cth) (No 56, 1996) (assented to on 8 November 1996) which: * amended the definition of 'Territory offence' by substituting for the words just quoted the words '[NAME] 1900 of the [NAME], in its application to the [NAME]'; and * provided that this amendment was 'taken to have commenced on 28 May 1992'.

Provisions of the [NAME] relating to the two service offences created by ss 33 and 34(1) 199 Sections 33 and 34(1) of the [NAME] provided, relevantly, as follows: '33. [NAME], being [NAME] … who, on service land …: (a) assaults [NAME]; (b) …; (c) …; … (d) …; is guilty of an offence for which the maximum punishment is imprisonment for 6 months.' '34. (1) [NAME] who [anywhere] assaults …a member of the [NAME] who is of [NAME] rank to the [NAME] is guilty of an offence for which the maximum punishment is imprisonment for 2 years.' (A [NAME] to the s 34(1) offence is provided for in s 34(2).) 200 The time within which [NAME] may be charged with an offence against s 33 or s 34 was fixed by s 96(1): '96 (1) [NAME] shall not be charged with: (a) an offence against this [NAME] (other than subsection 61(1)) …;… (b) …; after the expiration of a period of 3 years after the time at which the offence is alleged to have been committed.' Subsections (2) and (3) of s 96 qualified this provision as follows: '(2) Notwithstanding anything in subsection (1), [NAME] may be charged with: (a) an offence against section 15, 16, 20 or 22; or (b) a service offence that is an ancillary offence in relation to an offence referred to in paragraph (a); at any time. (3) A reference in subsection (1) to a period shall be read as not including a reference to a period during which the person: (a) was a prisoner of war; (b) was absent without leave; or (c) was serving a sentence of imprisonment.'

Provisions of the [NAME] relating to the service offence created by s 61(1) 201 Subsections 61(1) and (2) of the [NAME] were as follows: '61. (1) [NAME], being [NAME] … , is guilty of an offence if: (a) … (b) … (c) the person does or omits to do (whether in a [NAME] place or not) outside the [NAME] an [NAME] or thing the doing or omission of which, if it took place (whether in a [NAME] place or not) in the [NAME], would be a Territory offence.' '(2) The punishment for an offence against subsection (1) is: (a) if the relevant Territory offence is punishable by a fixed punishment – that fixed punishment; or (b) in any other case – a punishment not more severe than the maximum punishment for the relevant Territory offence.' 202 By reason of the definition of 'Territory offence' in s 3(1) of the [NAME] and the legislative provisions referred to by [NAME[NAME], the offence of common assault, being the offence described in s 26 of the [NAME] 1900 ([NAME]),was a 'Territory offence'. That section was as follows: '[NAME] who assaults [NAME] is guilty of an offence punishable, on conviction, by imprisonment for two years.' In so far as ss 61(1) and (2) refer to s 26 of the [NAME] 1900 ([NAME]), the punishment for an offence against s 61(1) was not to exceed imprisonment for two years. 203 The time within which [NAME] might be charged with an offence against s 61(1) was provided for in s 96(4): '96. (4) [NAME] shall not be charged with an offence against subsection 61(1) …if the time that has elapsed since the offence is alleged to have been committed equals or exceeds the period of time that would bar trial by, or institution of proceedings in, a court exercising jurisdiction in or in relation to the [NAME] for the relevant Territory offence.' There was no period of time that would bar trial by, or institution of proceedings in, a court exercising jurisdiction in or in relation to the [NAME] for the crime of common assault described in s 26 of the [NAME] 1900 ([NAME]). Therefore, there was no time bar to the charging and prosecuting of the service offence created by s 61(1) in so far as that subsection referred to s 26 of the [NAME] 1900 ([NAME]). 204 The appellant was, at the relevant time (between 31 July 1996 and 1 September 1996) a [NAME] [RESPONDENT]. The person whom he was alleged to have assaulted, [NAME] [APPELLANT], was a [NAME] in that [RESPONDENT]. [NAME] [APPELLANT] was '[NAME]' as defined in s 3(1) of the [NAME] and [NAME] was 'a member of the [NAME] who [was] of [NAME] rank to [[NAME] [APPELLANT]]'. According to the charge sheet, the assault took place at [NAME], Queensland (on a date unknown within the period mentioned). That Training Area was 'service land' because it was used or occupied by the [NAME] or by an institution of the [NAME] (see the definition of 'service land' in s 3(1) of the [NAME]). 205 It follows that the charge sheet alleged facts which showed, not only an offence against s 61(1), but also offences against ss 33 and 34(1) of the [NAME]. 206 By reason of ss 33 and 96(1) of the [NAME]: · [NAME] who assaulted any other person on service land committed a service offence; · the [NAME] was liable to imprisonment for a maximum period of six months; and · there was a three-year time bar on charging the [NAME] with the offence against s 33.

207 By reason of ss 34(1) and 96(1) of the [NAME]: · [NAME] who (anywhere) assaulted a member of the [NAME] of [NAME] rank ('[NAME]') committed a service offence; · the [NAME] was liable to imprisonment for a maximum period of two years; and · there was a three year time bar on charging the person with the offence against s 34.

208 By reason of ss 61(1) and (2) (invoking s 26 of the [NAME] 1900 ([NAME])) and 96(4) of the [NAME]: · [NAME] who (anywhere) assaulted any other person committed a service offence; · the [NAME] was liable to imprisonment for a maximum period of two years; and · there was no time bar on charging the [NAME] with the offence against s 61(1).

Is there inconsistency? 209 According to s 33 of the [NAME], the maximum penalty that could be imposed on [NAME] for assaulting anyone on service land was imprisonment for six months, but according to s 61(2), the maximum penalty that could be imposed on [NAME] for assaulting anyone anywhere was imprisonment for two years. The two provisions are inconsistent. The additional nexus with [NAME] present in s 33 makes no difference. The 'assault by [NAME] anywhere' provided for in s 61(1) is not a more serious offence than the 'assault by [NAME] on service land' provided for in s 33 – a factor which might have been seen to attract a heavier penalty. 210 In s 96(1) the [NAME] expressed an intention that [NAME] should not be able to be charged with having assaulted [NAME] on service land (s 33) later than three years after the alleged assault, yet s 96(4) allows such [NAME] to be charged under s 61(1) (by reference to the offence described in s 26 of the [NAME] 1900 ([NAME])) at any time. In this respect, ss 96(1) and 96(4) are inconsistent. 211 I turn now from s 33 to s 34(l). According to s 34(1), the maximum penalty that could be imposed on [NAME] who assaulted (anywhere) [NAME] was imprisonment for two years. According to s 61(1) the maximum penalty that could be imposed on [NAME] for assaulting anyone was also imprisonment for two years. Notwithstanding the identical maximum terms of imprisonment, there is inconsistency, because inconsistent legislative intentions are exposed. The reason is that ss 33 and 34(1), read together, reveal a legislative intention that assault by [NAME] of [NAME] was to be treated as a more serious offence than assault by [NAME] of persons in [NAME] and was to attract a greater maximum penalty. This policy is defeated by the intention expressed in s 61(1). 212 Subsection 96(1) provided, in effect and relevantly, that [NAME] was not to be charged with having assaulted [NAME] (s 34(1)) more than three years after the alleged assault, yet s 96(4) provided, in effect and relevantly, that [NAME] might be charged under s 61(1) of the [NAME] (by reference to s 26 of the [NAME] 1900 ([NAME])) with having assaulted (anywhere) any person (including [NAME]) at any time. In this respect, ss 96(1) and 96(4) are inconsistent with each other. 213 It is not possible to construe the provisions to which I have referred as working harmoniously towards the same goal: cf [COMPANY] v [NAME] Authority (1998) 194 CLR 355.

How is the inconsistency to be resolved? 214 Two competing answers to this question have been suggested. [NAME] [APPELLANT] submits that ss 61(1) and 96(4) are '[NAME]' provisions which must yield to the 'specific' provisions of ss 33, 34(1) and 96(1). He calls in aid the maxim generalia specialibus non derogant. The respondent submits that the legislative intention is that it is a matter of prosecutorial discretion under which provision to lay a charge. I do not think the latter solution available in a case of irreconcilably conflicting expressions of the [NAME]'s intention. 215 The generalia specialibus maxim has a particular application when the question is whether a specific provision is to be regarded as repealed by an inconsistent [NAME] provision of a later enactment: see, for example, [NAME], Statutory Interpretation in Australia (5th ed, [NAME], 2001) at [7.18]–[7.21]; [NAME], Statutory Interpretation (4th ed, [NAME], 2002) at 255-257; [NAME] (7th ed, [NAME], 1971) at 377-380. The same [NAME] means of resolving inconsistency may, however, also be invoked where the inconsistency occurs within the one enactment: cf [NAME] at [4.30]; [NAME] at 998-999; [NAME] at 222-223, and cases referred to in those works, such as, [NAME]) [COMPANY] v [COMPANY] (No 2) (1980) 44 FLR 455. If the [NAME] can be seen to have provided for the specific kind of factual circumstances that have occurred, its 'special' provision for them will prevail over an inconsistent [NAME] provision in the same [NAME], within which those circumstances also fall. 'The generalia specialibus maxim, … , is not a technical rule peculiar to English statutory interpretation. Rather it represents simple common sense and ordinary usage': [COMPANY] v [COMPANY] ('The [NAME]') [1998] 1 All ER 495 at 513 per Lord [NAME]. 216 No doubt the reason why the generalia specialibus maxim has had a particular application in the context of separate Acts is that the [NAME] is more likely to have overlooked an inconsistent specific provision located somewhere within the vast corpus of earlier statutes, than it is to have overlooked an inconsistent specific provision within the same statute. 217 Once it is accepted that the approach indicated by the maxim may be invoked to resolve internal inconsistency, there is no reason why cases of external inconsistency may not illuminate those, such as the present case, of internal inconsistency. The Danube II [1921] P 183, concerned the [NAME] [NAME] 1893 (UK) and the [NAME] 1911 (UK). Section 1 of the earlier [NAME] provided for a limitation period of six months in respect of, inter alia, any action, [NAME] or proceeding against persons in respect of an [NAME] done in intended execution of any [NAME] of [NAME], [NAME] duty or authority. Section 8 of the later [NAME], however, provided for a limitation period of two years for any action to enforce any claim against a vessel or her owners in respect of damage to, or loss of, [NAME] vessel. An action was brought against the [NAME] which was in the service of the Crown. It was towing a battle target to a place for the practice of the fleet. Allegedly because of the negligent navigation by the [NAME] of the tug, the battle target collided with a ship belonging to the [NAME[NAME] sank her. [ADDRESS] of Appeal held that the six-month time bar availed the [NAME]. [ADDRESS] so held, disavowing any finding of inconsistency, preferring to say that under the later [NAME] there was a [NAME] time bar of two years, while under the earlier [NAME] there was a special time bar of six months in the particular circumstances provided for in that [NAME]. With respect, I would have preferred to characterise the two provisions as inconsistent, but this is not of present importance. [ADDRESS] of Appeal's conclusion would have been the same if the two provisions had occurred within the one [NAME]. 220 Sections 33 and 34(1) are specific provisions and s 61(1) is a [NAME] provision for the purposes of the application of the maxim. All three provisions are concerned with conduct by, relevantly, [NAME] members. The concern of s 33 is specifically with assaults at places of certain kinds while the concern of s 34 is specifically with such assaults upon [NAME]. The concern of s 61(1), by contrast, is with nothing less than all Territory offences, a notion which happens to include the offence of common assault. 221 This 'specific-[NAME]' relationship between s 33 and 34(1) on the one hand and s 61(1) on the other, also suggests a conclusion that s 96(1) is a specific provision and s 96(4) a [NAME] one for present purposes. In any event, that the [NAME] attended specifically to the question of the appropriateness of the three-year limitation period for the ss 33 and 34(1) offences is shown by the qualification of s 96(1) found in ss 96(2) and (3) (set out at [20] above). In contrast, s 96(4) (set out at [25] above) adopts, by reference and without qualification, whatever time bars may happen to apply to the many Territory offences. 222 With respect, I do not share [NAME] view that the course of High Court authority to which [NAME] refers precludes a 'reading down' of s 61. The process of construction in question is one which makes s 61 yield to ss 33 and 34(1) in order to resolve the inconsistency. The High Court has not had occasion to address the question of the resolution of inconsistency between constitutionally valid offence provisions of the [NAME]. 223 For the above reasons, and the reasons which [NAME[NAME] [NAME[NAME] have given, I agree with their conclusion in relation to the first ground of appeal.

Grounds of appeal 2–9 (inclusive) 224 In relation to these grounds too, I agree with the reasons and conclusions of [NAME[NAME] [COUNSEL[NAME], and add this observation. 225 [NAME] for [NAME] [APPELLANT] submitted that once the three-year period for the charging of an offence against s 33 or s 34(1) had expired, it became an abuse of process to charge [NAME] [APPELLANT] with having committed an offence against s 61(1). But the abuse of process argument must assume, contrary to [NAME]'s argument on the first ground of appeal and my acceptance of it, that there is no inconsistency, and that it was a matter of legitimate prosecutorial discretion whether to charge under s 33, 34(1) or 61(1). On that assumption, the expiry of the three year period would not, without more, characterise the charging of an offence against s 61(1) as an abuse of process.

CONCLUSION 226 For their reasons and for mine above, I agree with the conclusion reached, and orders proposed, by [NAME], [NAME]. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate: Dated: 31 May 2004 Counsel for the Appellant: [redacted]

[NAME]: [APPELLANT]

Counsel for the Respondent: [redacted]

Solicitor for the Respondent: [redacted]

Date of Hearing: 11 February 2004

Date of Judgment: 31 May 2004