McCleave v Chief of Navy [2019] ADFDAT 1

McCleave v Chief of Navy [2019] ADFDAT 1

No unconditional representation or assurance was given by the relevant authority that the appellant would not face disciplinary charges under the Defence Force Discipline Act. The appellant did not act in reliance upon such a representation in making admissions, as those admissions had already been made previously. There was no unfairness or forensic disadvantage to the appellant and no abuse of process. The appeal was dismissed.

Jurisdiction
Australia
Judgment Date
21 February 2019
Procedural Posture
Appeal / Decision of Defence Force Magistrate Appealed to Defence Force Discipline Appeal Tribunal
Outcome
appeal dismissed
Legal Topics
['abuse of Process' 'right to Silence' 'permanent Stay of Proceedings' 'disciplinary Proceedings' 'procedural Fairness' 'concurrent Administrative and Disciplinary Action']
['military Law' 'criminal Law' 'administrative Law'] ['abuse of Process' 'right to Silence' 'permanent Stay of Proceedings' 'disciplinary Proceedings' 'procedural Fairness' 'concurrent Administrative and Disciplinary Action']

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Procedural Posture

Appeal / Decision of Defence Force Magistrate Appealed to Defence Force Discipline Appeal Tribunal

Legal Issues

  1. 1 ['Whether representations within the chain of command constituted an undertaking not to prosecute under the Defence Force Discipline Act 1982 (Cth)' 'Whether continued proceedings constituted an abuse of process when admissions were made on faith of those representations' 'Whether the appellant relied on said representations when making admissions' 'Effect of concurrent administrative and disciplinary action on fairness and right to silence']

Ratio Decidendi

No unconditional representation or assurance was given by the relevant authority that the appellant would not face disciplinary charges under the Defence Force Discipline Act. The appellant did not act in reliance upon such a representation in making admissions, as those admissions had already been made previously. There was no unfairness or forensic disadvantage to the appellant and no abuse of process. The appeal was dismissed.

Court Disposition

appeal dismissed

Orders

  • ['The period within which the appeal must be lodged be extended to the date on which it was lodged.' 'The appeal be dismissed.']