Bateson v Chief of Army - [2012] ADFDAT 3

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Bateson v Chief of Army [2012] ADFDAT 3

Citation: Bateson v Chief of Army [2012] ADFDAT 3

Appeal from: Defence Force Magistrate

Parties: LYNDA BATESON v CHIEF OF ARMY

File number: DFDAT 1 OF 2012

Judges: TRACEY J – PRESIDENT, WHITE JA – DEPUTY PRESIDENT & LOGAN J – MEMBER

Date of judgment: 25 May 2012

Catchwords: DEFENCE AND WAR – appeal – charges of insubordination – grounds – convictions unreasonable and cannot be supported with regard to the evidence – wrong decisions on questions of law made – material irregularity – convictions unsafe and unsatisfactory – found – no material error in conduct of trial – no error in taking into account uncharged acts – no irregularity found – mistake of fact ground - possible defence not taken into account at trial – appellant deprived of chance of acquittal – miscarriage of justice occurred – appeal allowed – convictions quashed – no retrial ordered

Legislation:
Bill of Rights 1689 (Eng) Art 6
Criminal Code Act 1995 (Cth) s 6.1, 9.2

Defence Force Discipline Act 1982 (Cth) ss 26, 27, 158, Part 6
Evidence Act1995 (Cth) ss 101A, 102, 106

Mutiny Act 1689 (Eng)

Cases cited: Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8 cited
CTM v The Queen (2008) 236 CLR 440 cited, discussed
Heddon v Evans (1919) 35 TLR 642 cited
Lyons v R (1987) 24 A Crim R 298 cited
Su v Australian Fisheries Management Authority (No 2) (2008) 189 A Crim R 23 at 34 cited
Millar v Bornholt (2009) 177 FCR 67 cited
Millar v R (1998) 103 A Crim R 526 cited
Ostrowski v Zaza (1999) 108 A Crim R 350 cited
Pemble v The Queen (1971) 124 CLR 107 cited
R v Grant [1957] 1 WLR 906 cited
R v Soloman [2006] QCA 244 discussed, compared
Re Nickols’s Appeal (1966) 9 FLR 120 cited
Stuart v Chief of Army (2003) 177 FLR 158 cited
White v Director of Military Prosecutions (2007) 231 CLR 570 cited

Date of hearing: 28 April 2012

Place: Brisbane

Category: Catchwords

Number of paragraphs: 82

Counsel for the Appellant: Mr P Smith and Ms K Hillard

Solicitor for the Appellant: Fisher Dore Lawyers

Counsel for the Respondent: LTCOL H Dempsey and SBLT M Lawrence

Solicitor for the Respondent: Director of Military Prosecutions

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

ON APPEAL FROM AQ DEFENCE FORCE MAGISTRATE

DFDAT 1 OF 2012

BETWEEN:
LYNDA BATESON
Appellant

AND:
CHIEF OF ARMY
Respondent

JUDGE:

TRACEY J – PRESIDENT, WHITE JA – DEPUTY PRESIDENT & LOGAN J - MEMBER

DATE OF ORDER:

WHERE MADE:

BRISBANE

THE TRIBUNAL ORDERS THAT:
1.The appeal be allowed.
2.The convictions of the appellant, recorded on 4 August 2010, each be quashed.

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

ON APPEAL FROM A DEFENCE FORCE MAGISTRATE

DFDAT 3 OF 2011

BETWEEN: LYNDA BATESON

AND: CHIEF OF ARMY

JUDGES:

TRACEY J – PRESIDENT, WHITE JA – DEPUTY PRESIDENT & LOGAN J – MEMBER

DATE OF ORDER:

WHERE…

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: [2012] ADFDAT 3
Decision Date: 25 May 2012

CaseChat Overview and Summary

In the case of Bateson v Chief of Army, the appellant, a member of the Australian Defence Force, appealed against his convictions for charges of insubordination. The appeal was heard in the High Court of Australia, where the court was required to determine whether the convictions were unreasonable, could not be supported by the evidence, and if there were any errors in the conduct of the trial. The central issue was whether the convictions were flawed due to a mistake of fact that was not taken into account during the trial, which deprived the appellant of the chance of acquittal and resulted in a miscarriage of justice.

The court found that there were errors in the trial which led to the convictions being deemed unreasonable and unsafe. It was determined that the trial court had made wrong decisions on questions of law and had failed to consider a possible defence based on a mistake of fact. The court held that this omission was a material irregularity that deprived the appellant of a fair trial. Additionally, while the court found no material error in the conduct of the trial overall, it did note that it was permissible to take into account uncharged acts in the context of the charged offences. However, the court concluded that no irregularity was found in this regard.

The High Court, recognising the miscarriage of justice that occurred due to the failure to consider the mistake of fact, allowed the appeal. The convictions were quashed, and it was determined that no retrial was necessary. The court's decision was grounded in the principle that the appellant was deprived of a fair opportunity to defend himself against the charges due to the trial court's failure to consider the possible defence.

Orders