Li v Chief of Army

HIGH COURT OF AUSTRALIA

FRENCH CJ,
CRENNAN, KIEFEL, BELL AND GAGELER JJ

TING LI  APPELLANT

AND

CHIEF OF ARMY  RESPONDENT

Li v Chief of Army

[2013] HCA 49

27 November 2013

S162/2013

ORDER

1.Appeal allowed with costs.

2.Set aside the order of the Full Court of the Federal Court of Australia made on 26 February 2013 and, in its place, order that:

(a)      the appeal to that Court be allowed;

(b)the appellant's conviction be quashed and the sentence imposed on 8 April 2011 be set aside; and

(c)the matter be remitted to the Defence Force Discipline Appeal Tribunal for the making of further orders, if any.

3.Set aside the order of the Full Court of the Federal Court made on 19 April 2013 and, in its place, order that the respondent pay the appellant's costs of the appeal to that Court, including the costs of submissions concerning the issue of costs.

On appeal from the Federal Court of Australia

Representation

A W Street SC with A K Flecknoe-Brown for the appellant (instructed by Wyatt Attorneys)

S B Lloyd SC with S G Callan for the respondent (instructed by Clayton Utz)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Li v Chief of Army

Defence – Military forces – Discipline – Service offences ­– Offence of creating a disturbance on service land – Meaning of "disturbance" – Physical and fault elements of "creating" a disturbance – Whether violence or threat of violence necessary to existence of "disturbance" – Whether "creating" a disturbance has one or two physical elements.

Words and phrases – "creating a disturbance", "disturbance".

Criminal Code (Cth), Ch 2.
Defence Force Discipline Act 1982 (Cth), s 33(b).
Defence Force Discipline Appeals Act 1955 (Cth).

FRENCH CJ, CRENNAN, KIEFEL, BELL AND GAGELER JJ.

Introduction

1. Major Ting Li, a member of the Australian Defence Force ("the ADF"), was involved one morning in an incident in the Campbell Park Offices in the Australian Capital Territory.  He was subsequently charged before a restricted court martial constituted under the Defence Force Discipline Act 1982 (Cth) ("the DFDA") with the service offence of having created a disturbance on service land contrary to s 33(b) of the DFDA and, in the alternative, with the service offence of having acted in a manner likely to bring discredit on the ADF contrary to s 60(1) of the DFDA.

2. The particulars of each charge were identical.  They were that Major Li, after entering the office of Mr Snashall, a Commonwealth public servant:  refused to leave that office when Mr Snashall requested him to do so; continued speaking to Mr Snashall in a raised voice; followed Mr Snashall and continued the conversation when Mr Snashall walked out of that office; forcefully pushed against the office door placing his head and shoulder in the doorway when Mr Snashall had returned to the office and was inside the office trying to…