Baker v Chief of Army - [2017] ADFDAT 3

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Baker v Chief of Army [2017] ADFDAT 3

Appeal from: Defence Force Magistrate

File number: DFDAT 1 of 2016

Judges: TRACEY (PRESIDENT), BRERETON AND HILEY (MEMBERS) JJ

Date of judgment: 28 April 2017

Catchwords: DEFENCE – Application for extension of time to appeal – application for leave to appeal against convictions by Defence Force magistrate – application for leave to introduce fresh evidence – whether failure to consider the military context of the offending – whether the findings of guilt were against the weight of the evidence – whether error in construing s 10.5 of the Commonwealth Criminal Code which applies when conduct constituting an offence is justified or excused by or under a law – meaning of “law” in s 10.5 – whether error in failure to find that the defence of sudden or extraordinary emergency in s 10.3 of the Commonwealth Criminal Code was made out – whether error in failure to find that the defence of self-defence in s 10.4 of the Commonwealth Criminal Code was made out

Legislation:
Crimes Act 1900 (ACT) s 24(1)

Crimes Act 1914 (Cth) s 15KN

Criminal Code Act 1899 (Qld) sch 1 (“Queensland Criminal Code”) ss 277, 281

Criminal Code Act 1995 (Cth) sch 1 (“Commonwealth Criminal Code”) ss 2.1, 4.3, 10.3, 10.4(1), 10.4(2)(d), 10.4(2)(e), 10.5, 13.3(2), 13.3(6), 105.21(3)

Defence Act 1903 (Cth) ss 9, 11

Defence Force Discipline Act 1982 (Cth) ss 10, 34(1), 89, 92

Defence Force Discipline Appeals Act 1955 (Cth) ss 21(1)(b), 23(2)

Evidence Act 1995 (Cth) ss 38, 192(2)

Work Health and Safety Act 2011 (Cth) ss 28, 29

Cases cited:
Ajayi v The Queen (2012) 263 FLR 465; [2012] WASCA 126 – considered

Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 – cited

Jerger v Pearce (1920) 27 CLR 526 – cited

Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 – cited

Mickelberg v The Queen (1989) 167 CLR 259 – cited

Nguyen v The Queen [2005] WASCA 22 – considered

Parker v Chief of Air Force [2010] ADFDAT 2 – considered

Quinn v Chief of Army [2001] ADFDAT 4 – considered

R v Bernasconi (1915) 19 CLR 629 – cited

R v Bryer (1994) 75 A Crim R 456; [1994] QCA 547 – considered

Re Colina; Ex parte Torney (1999) 200 CLR 386; [1999] HCA 57 – considered

Re Aird; Ex parte Alpert (2004) 220 CLR 308; [2004] HCA 44 – considered

Re Tracey; Ex parte Ryan (1989) 166 CLR 518R v Rogers (1996) 86 A Crim R 542 – considered

Van Damme v Chief of Army [2002] ADFDAT 2 – considered

Sankey v Whitlam (1978) 142 CLR 1 – cited

Western Australia v The Commonwealth (1995) 183 CLR 373 – cited

Date of hearing: 27 October 2016

Place: Brisbane

Date of last submissions: 2 November 2016 (Appellant)
9 November 2016 (Respondent)

Category: Catchwords

Number of paragraphs: 109

Counsel…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] ADFDAT 3
Decision Date: 28 April 2017

CaseChat Overview and Summary

In Baker v Chief of Army, the applicant, a former soldier, appealed against the decision of the Defence Force Magistrate to dismiss his appeal against convictions on charges of common assault and assault occasioning actual bodily harm. The applicant sought an extension of time to appeal, leave to appeal against the convictions, and leave to introduce fresh evidence. The central issues for the court were whether the Defence Force Magistrate failed to consider the military context of the offending, whether the findings of guilt were against the weight of the evidence, and whether there were errors in the interpretation of sections 10.3, 10.4 and 10.5 of the Commonwealth Criminal Code.

The court considered whether the Defence Force Magistrate erred in failing to consider the military context of the offending. It was held that the Defence Force Magistrate was required to consider the military context of the offending, but that the failure to do so did not result in a miscarriage of justice. The court also considered whether the findings of guilt were against the weight of the evidence. It was held that the findings of guilt were not against the weight of the evidence. The court further considered whether there were errors in the interpretation of sections 10.3, 10.4 and 10.5 of the Commonwealth Criminal Code. It was held that there was no error in the interpretation of these sections.

The application for an extension of time to appeal was dismissed. The application for leave to appeal against the convictions was dismissed. The application for leave to introduce fresh evidence was also dismissed. The convictions of the applicant were upheld.

Orders