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

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

The alleged lie found by the Defence Force Magistrate was only that the appellant falsely said a Minute in terms of exhibit 15 had been placed on Major Simpkins' desk on or about 15 June 2002. The Tribunal held that this finding was relevant to credibility but did not amount to an implied admission of guilt because the truth of the matter, that the Minute was not delivered, would not itself implicate the appellant in the forgery or using offences. The unwarranted use of the lie as positive evidence of guilt played an important role in a case turning on credibility and produced a substantial miscarriage of justice. The appeal was therefore allowed on that ground, while the Tribunal...

Jurisdiction
Australia
Judgment Date
10 September 2007
Procedural Posture
Appeal Against Convictions by a Defence Force Magistrate for Forgery and Using a Forged Document Contrary to Ss 144.1 and 145.1 of the Criminal Code (cth) / Appeal Judgment
Outcome
Appeal allowed on the grounds concerning consciousness of guilt; other grounds dismissed; convictions and punishment quashed; no order for a retrial.
Legal Topics
['forgery' 'using a Forged Document' 'long Service Leave Application' 'consciousness of Guilt Lies' 'credibility' 'accessorial Liability' 'unreasonable Verdict' 'retrial']
['defence' 'criminal Law' 'military Justice'] ['forgery' 'using a Forged Document' 'long Service Leave Application' 'consciousness of Guilt Lies' 'credibility' 'accessorial Liability' 'unreasonable Verdict' 'retrial']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Against Convictions by a Defence Force Magistrate for Forgery and Using a Forged Document Contrary to Ss 144.1 and 145.1 of the Criminal Code (cth) / Appeal Judgment

Legal Issues

  1. 1 ["Whether the Defence Force Magistrate erred in finding that the appellant's alleged lie about placing exhibit 15 on Major Simpkins' desk was told out of consciousness of guilt and could be used as positive evidence of guilt." 'Whether the convictions were unreasonable or could not be supported having regard to the evidence.' 'Whether it was open to convict the appellant where the Defence Force Magistrate could not determine whether he acted as principal or as an accessory.' 'Whether a retrial should be ordered.']

Ratio Decidendi

The alleged lie found by the Defence Force Magistrate was only that the appellant falsely said a Minute in terms of exhibit 15 had been placed on Major Simpkins' desk on or about 15 June 2002. The Tribunal held that this finding was relevant to credibility but did not amount to an implied admission of guilt because the truth of the matter, that the Minute was not delivered, would not itself implicate the appellant in the forgery or using offences. The unwarranted use of the lie as positive evidence of guilt played an important role in a case turning on credibility and produced a substantial miscarriage of justice. The appeal was therefore allowed on that ground, while the Tribunal...

Court Disposition

Appeal allowed on the grounds concerning consciousness of guilt; other grounds dismissed; convictions and punishment quashed; no order for a retrial.

Orders

  • ['The appeal be allowed.' 'The convictions and punishment be quashed.' 'There will be no order for a retrial.']