Davis v Chief of Army

The case of Davis v Chief of Army concerns an appeal against a conviction by a Restricted Court Martial. The appellant, LCPL Davis, was convicted of assault occasioning actual bodily harm under section 61 of the Defence Force Discipline Act 1982 (Cth). The conviction arose from an incident in which LCPL Davis allegedly struck LCPL Russell, causing him to bleed from the lips and lose consciousness. The only ground of appeal is that the Judge Advocate erred in declining to direct the Court Martial that consent was an element of the offence of assault. Specifically, the appellant argues that the absence of consent should have been a necessary element of the charge under section 24(1) of the Crimes Act 1900 (ACT).

The central legal issue in this case is whether the absence of consent can be relied upon as a defence to the offence of assault occasioning actual bodily harm. The appellant contends that the Judge Advocate should have instructed the Court Martial that consent is an element of the offence, thereby requiring the prosecution to prove the absence of consent. However, the Court considered the statutory definition of assault under section 24(1) of the Crimes Act 1900 (ACT) and found that lack of consent is not an element of the offence as defined by statute. The Court concluded that the statutory definition of assault does not include the requirement of absence of consent, and therefore, consent cannot be relied upon as a defence to an assault that results in actual bodily harm.

The Court found that the offence prescribed by section 24(1) of the Crimes Act 1900 (ACT) is a "pre-2003" offence, meaning it is not subject to the amendments introduced by the Crimes (Amendment) Act 2003 (ACT). The Court further determined that there is no provision in the Code that alters the meaning of "assault" in section 24(1) or that provides that lack of consent is an element of the offence. Therefore, the Court upheld the Judge Advocate’s ruling that consent is irrelevant for the purposes of the offence under section 24(1) where the harm caused amounts to actual bodily harm.

Based on the Court's reasoning, the appeal was dismissed. The Court confirmed that the absence of consent is not an element of the offence of assault occasioning actual bodily harm as defined by statute, and accordingly, the conviction stands.