Davis v Chief of Army - [2011] ADFDAT 1

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Davis v Chief of Army [2011] ADFDAT 1

Citation: Davis v Chief of Army [2011] ADFDAT 1

Appeal from: Decision of Restricted Court Martial dated 18 August 2010

Parties: JAMES-ROBERT STEPHEN DAVIS v CHIEF OF ARMY

File number(s): DFDAT 3 of 2010

Judges: TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & MILDREN J - MEMBER

Date of judgment: 22 February 2011

Catchwords: CRIMINAL LAW – consensual fight between appellant and victim – appellant charged with assault - whether victim’s consent can be relied upon as a defence – absence of consent is not an element of assault as defined by statute – consent may not be relied upon as defence to assault

Legislation: Canadian Criminal Code s 265
Crimes (Amendment) Ordinance No 2 of 1990
Crimes Act 1900 (ACT) s 24
Crimes Act 1961 (NZ)
Criminal Code 2002 (ACT) ss 8, 10
Criminal Code 1899 (Qld) ss 31, 245-284, 317, 320, 339
Criminal Code 1983 (NT) ss 26, 187-188
Defence Force Discipline Act 1982 (Cth) ss 33, 61
Offences Against the Person Act 1961 (UK) s 47

Cases cited:
Attorney-General’s Reference (No 6 of 1980) [1981] 1 QB 715 considered
Horan v Ferguson [1995] 2 Qd R 490 considered
Jobidon v The Queen (1991) 66 CCC (3^rd) 454 considered
Kaporonovski v The Queen (1973) 133 CLR 209 referred
Lergesner v Carroll [1991] 1 Qd R 206 considered
Police v Segeyara [2008] NTMC 19 considered
R v Bonora (1994) 35 NSWLR 74 considered
R v Brown [1994] AC 212 considered
R v Clearihan [2002] ACTSC 60 considered
R v Coney (1882) 8 QBD 534 considered
R v Holmes (1993) 2 Tas R 232 referred
R v Lee [2006] 3 NZLR 42 considered
R v Mardday (1998) 121 NTR 1 considered
R v Minor (1992) 79 NTR 1 considered
R v Paice [2005] 1 SCR 339 referred
R v Raabe [1985] 1 Qd R 115 considered
R v Stein (2007) 18 VR 376 considered
R v Tate [2010] ACTSC 144 considered
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 cited, considered
Sorgenfrie v R (1981) 51 FLR 147 considered
Van Damme v Chief of Army [2002] ADFDAT 2 considered

Blackstone’s Commentaries on the Laws of England (8^th edition)

Date of hearing: 29 November 2010

Place: Sydney

Number of paragraphs: 33

Counsel for the Appellant: Mr D McLure with Mr L Livingston

Solicitor for the Appellant: McLachlan Thorpe Partners

Counsel for the Respondent: BRIG L A McDade with MAG G R Kolomeitz

Solicitor for the Respondent: Director of Military Prosecutions

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 3 of 2010

BETWEEN:
JAMES-ROBERT STEPHEN DAVIS
Appellant

AND:
CHIEF OF ARMY
Respondent

JUDGES:

TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & MILDREN J - MEMBER

DATE OF ORDER:

22 FEBRUARY 2011

WHERE MADE:

SYDNEY

THE TRIBUNAL ORDERS THAT:
1. The appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of…

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: [2011] ADFDAT 1
Decision Date: 22 February 2011

CaseChat Overview and Summary

In Davis v Chief of Army, the appellant was charged with assault after participating in a consensual fight with the victim. The appellant appealed the decision of the military court of appeal, which upheld the original conviction. The dispute centred on whether the appellant could rely on the victim’s consent as a defence against the charge of assault. The High Court was tasked with determining the extent to which consent could be considered in assault cases under statute.

The court examined the statutory definition of assault, which did not include the absence of consent as an element. The court considered whether the common law defence of consent could apply in this context, given the statutory definition. The court noted that while consent might be relevant in determining whether an assault occurred, it could not be used as a defence to an assault charge under the statute. The court held that the trial judge had correctly instructed the court martial on this point, and the appeal was dismissed.

The court's reasoning was grounded in the statutory definition of assault, which did not explicitly include consent as an element. The court acknowledged that while consent might be relevant in assessing whether an assault occurred, it could not serve as a defence under the statute. The court emphasised the importance of adhering to the statutory framework in military courts. The appeal was dismissed, and the original conviction was upheld.

Orders

Orders of the court

1. The appeal be dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Davis v Chief of Army [2011] ADFDAT 1
Appeal from:	Decision of Restricted Court Martial dated 18 August 2010
Parties:	JAMES-ROBERT STEPHEN DAVIS v CHIEF OF ARMY
File number(s):	DFDAT 3 of 2010
Judges:	TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & MILDREN J - MEMBER
Date of judgment:	22 February 2011
Catchwords:	CRIMINAL LAW – consensual fight between appellant and victim – appellant charged with assault - whether victim’s consent can be relied upon as a defence – absence of consent is not an element of assault as defined by statute – consent may not be relied upon as defence to assault
Legislation:	Canadian Criminal Code s 265 Crimes (Amendment) Ordinance No 2 of 1990 Crimes Act 1900 (ACT) s 24 Crimes Act 1961 (NZ) Criminal Code 2002 (ACT) ss 8, 10 Criminal Code 1899 (Qld) ss 31, 245-284, 317, 320, 339 Criminal Code 1983 (NT) ss 26, 187-188 Defence Force Discipline Act 1982 (Cth) ss 33, 61 Offences Against the Person Act 1961 (UK) s 47
Cases cited:	Attorney-General’s Reference (No 6 of 1980) [1981] 1 QB 715 considered Horan v Ferguson [1995] 2 Qd R 490 considered Jobidon v The Queen (1991) 66 CCC (3^rd) 454 considered Kaporonovski v The Queen (1973) 133 CLR 209 referred Lergesner v Carroll [1991] 1 Qd R 206 considered Police v Segeyara [2008] NTMC 19 considered R v Bonora (1994) 35 NSWLR 74 considered R v Brown [1994] AC 212 considered R v Clearihan [2002] ACTSC 60 considered R v Coney (1882) 8 QBD 534 considered R v Holmes (1993) 2 Tas R 232 referred R v Lee [2006] 3 NZLR 42 considered R v Mardday (1998) 121 NTR 1 considered R v Minor (1992) 79 NTR 1 considered R v Paice [2005] 1 SCR 339 referred R v Raabe [1985] 1 Qd R 115 considered R v Stein (2007) 18 VR 376 considered R v Tate [2010] ACTSC 144 considered Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 cited, considered Sorgenfrie v R (1981) 51 FLR 147 considered Van Damme v Chief of Army [2002] ADFDAT 2 considered Blackstone’s Commentaries on the Laws of England (8^th edition)
Date of hearing:	29 November 2010
Place:	Sydney
Number of paragraphs:	33
Counsel for the Appellant:	Mr D McLure with Mr L Livingston
Solicitor for the Appellant:	McLachlan Thorpe Partners
Counsel for the Respondent:	BRIG L A McDade with MAG G R Kolomeitz
Solicitor for the Respondent:	Director of Military Prosecutions

BETWEEN:	JAMES-ROBERT STEPHEN DAVIS Appellant
AND:	CHIEF OF ARMY Respondent

JUDGES:	TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & MILDREN J - MEMBER
DATE OF ORDER:	22 FEBRUARY 2011
WHERE MADE:	SYDNEY