Fulton v Chief of Army - [2005] ADFDAT 1

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Fulton v Chief of Army [2005] ADFDAT 1
CRIMINAL LAW – reckless infliction of actual bodily harm – self-defence – fear of apprehended attack – voluntarily induced intoxication – mistaken view of facts – whether conviction unreasonable, unsafe or unsatisfactory
Crimes Act 1900 (ACT) s 23
Defence Force Discipline Act 1982 (Cth) s 61
Defence Force Discipline Appeals Act 1955 (Cth) s 23(1)(a) and (d)
Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 at 662 applied
Dziduch (1990) 47 A Crim R 378 applied
Osland v The Queen (1998) 197 CLR 316 at [172] cited
The Queen v Hackell [2002] NZCA 221 at [13] cited
Ninnes v Walker (1998) 143 FLR 239 applied
M v R (1994) 181 CLR 487 applied
MFA v R (2002) 213 CLR 606 applied
DAVID WILLIAM FULTON v CHIEF OF ARMY
DFDAT 1 OF 2005

HEEREY J (President), UNDERWOOD CJ (Deputy President) and DUGGAN J (Member)

9 DECEMBER 2005
HOBART ( HEARD IN SYDNEY)

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 1 OF 2005

BETWEEN:

DAVID WILLIAM FULTON

AND:

CHIEF OF ARMY

TRIBUNAL:

HEEREY J (President), UNDERWOOD CJ (Deputy President) and DUGGAN J (Member)

DATE OF ORDER:

9 DECEMBER 2005

WHERE MADE:

HOBART (HEARD IN SYDNEY)

THE TRIBUNAL ORDERS THAT:
The appeal is dismissed.

IN THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 1 OF 2005

BETWEEN:

DAVID WILLIAM FULTON

AND:

CHIEF OF ARMY

TRIBUNAL:

HEEREY J (President), UNDERWOOD CJ (Deputy President) and DUGGAN J (Member)

DATE:

9 DECEMBER 2005

PLACE:

HOBART (HEARD IN SYDNEY)

REASONS FOR DECISION

The appellant appeals from a conviction by a Defence Force Magistrate (Colonel Morrison) of one count of recklessly inflicting actual bodily harm, contrary to s 23 of the Crimes Act 1900 (ACT), applicable by virtue of s 61 of the Defence Force Discipline Act 1982 (Cth).
Argument on the appeal involved two basic submissions:
- The DFM failed to direct himself as to certain significant aspects of the evidence;
- The conviction was unreasonable or cannot be supported, having regard to the evidence and/or was unsafe or unsatisfactory (Defence Force Discipline Appeals Act 1955 (Cth) s 23(1)(a) and (d)).
Events of 21/22 February 2003
The appellant was a signalman in the Australian Regular Army. He was posted to the Defence Force School of Signals – Electronic Warfare Wing.
On the evening of Friday 21 February, 2003, together with other service members from the School, the appellant attended the Gordon Club, a social club at Borneo Barracks, Cabarlah.
Also present at the Club was the complainant Sig David Cummane. Throughout the evening the complainant behaved towards a number of those present, including the appellant, in a loud, aggressive, annoying and obnoxious manner. At one stage the complainant came up to the appellant with his hands raised in an aggressive stance and said: “Fulto, I’m going to flog you”. The complainant made similar approaches to others present at the Club. However none of this behaviour resulted in any physical violence. One such incident…

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: [2005] ADFDAT 1
Decision Date: 9 DECEMBER 2005

CaseChat Overview and Summary

The Defence Force Discipline Appeal Tribunal was asked to consider an appeal by David William Fulton against a conviction by a Defence Force Magistrate of recklessly inflicting actual bodily harm, contrary to s 23 of the Crimes Act 1900 (ACT). The appellant argued that the Defence Force Magistrate erred in law or misapplied the law to the evidence in a way that rendered the conviction unreasonable, unsafe, or unsatisfactory. The appellant also argued that the Defence Force Magistrate failed to properly consider the intoxication of the appellant, a mistaken view of facts, and the lack of opportunity for calm deliberation when assessing self-defence. The Tribunal found that the Defence Force Magistrate had not erred in law or misapplied the law and that the conviction was not unreasonable, unsafe, or unsatisfactory.

The Tribunal reviewed the evidence and found that the Defence Force Magistrate had considered the whole of the circumstances, including the appellant's statement, the evidence of witnesses, and the appellant's intoxication. The Tribunal found that the Defence Force Magistrate had correctly assessed the proportionality of the appellant's response to the contact made by the complainant. The Tribunal concluded that the Defence Force Magistrate's findings were supported by the evidence and that there was no significant possibility that the appellant was wrongly convicted. The appeal was dismissed.

Orders