Li v Chief of Army - [2013] FCAFC 20

FEDERAL COURT OF AUSTRALIA
Li v Chief of Army [2013] FCAFC 20

Citation: Li v Chief of Army [2013] FCAFC 20

Appeal from: Li v Chief of Army (2012) 261 FLR 226

Parties: TING LI v CHIEF OF ARMY

File number: NSD 541 of 2012

Judges: KEANE CJ, DOWSETT, LOGAN, JAGOT & YATES JJ

Date of judgment: 26 February 2013

Catchwords: CRIMINAL LAW – court martial – restricted court martial – creating a disturbance – whether intention to commit disturbance required – meaning of “disturbance” – whether alternative charges available other than under Defence Force Discipline Act 1982 (Cth) – Criminal Code Act 1995 (Cth), Sch, ss 3.2, 4, Division 5 – Defence Force Discipline Act 1982 (Cth), ss 3, 20, 26, 33(b).

DEFENCE AND WAR – court martial – restricted court martial – creating a disturbance – whether intention to commit disturbance required – meaning of “disturbance” –Criminal Code Act 1995 (Cth), Sch, ss 4.1, 5.2, 5.6 – Defence Force Discipline Act 1982 (Cth), ss 3, 20, 26, 33(b).

HUMAN RIGHTS – discrimination – racial discrimination – whether person has consequential right to confront and protest another person who has allegedly engaged in racial discrimination –Racial Discrimination Act 1975 (Cth), s 18C.

Legislation:
Acts Interpretation Act 1901 (Cth) ss 13, 15AA
Court Martial and Defence Force Magistrate Rules (Cth) r 9(2)(b)
Criminal Code Act 1995 (Cth), ss 3, 4, 55 & Division 5
Defence Act 1903 (Cth) s 9A
Defence Force Discipline Act 1982 (Cth) ss 3, 20, 26, 33, 52, 56, 57, 60
Defence Force Discipline Appeals Act 1955 (Cth) ss 4.2, 5.2, 5.6, 23, 26, 52
Defence Legislation (Application of Criminal Code) Act 2001 (Cth)
Naval Defence Act 1910 (Cth)

Racial Discrimination Act 1995 (Cth), s 18C

Police Offences Act 1935 (Tas) ss 15, 15B
Summary Offences Act (NT) s 47
Vagrants, Gaming and Other Offences Act 1931 (Qld) s 7

Armed Forces Act 2006 (UK) s 21
Courts-Martial (Appeals) Act 1951
Naval Discipline Act 1661 s 22

Naval Discipline Act 1957

Criminal Code 1985 (Canada) ss 55, 175
Summary Offences Act 1981 (NZ) s 4

Cases cited:
Addison v Chief Constable of the West Midlands Police [2004] 1 WLR 29 considered
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 cited
Brooker v The Police [2007] 3 NZLR 91 considered
Burdett v Abbot (1812) 4 Taunt 401 considered
Coco v The Queen (1994) 179 CLR 427 applied
Coleman v Power (2004) 220 CLR 1 considered
Groves v The Commonwealth (1982) 150 CLR 113 cited
Hembury v Chief of General Staff (1998) 193 CLR 641 applied
Johnson v Miller (1937) 59 CLR 467 cited
Jones v Chief of Navy (2012) 205 FCR 458 cited
KBT v The Queen (KBT) (1997) 191 CLR 417 distinguished
Kuru v New South Wales (2008) 236 CLR 1 considered
Li v Chief of Army (2012) 261 FLR 226 referred to
McLeod v United Kingdom (1998) 27 EHRR 493 considered
Neave v Ryan [1958] Tas SR 58 considered
Nilsson v McDonald (2009) 19 Tas R 173 considered
Percy v Director of Public Prosecutions [1995] 1 WLR 1382 considered
PJ v R [2012] VSCA 146 cited
R (Laporte) v Chief Constable of Gloucestershire Constabulary (2007) 2 AC 105 cited
R v Chief Constable of Devon and Cornwall; ex parte Central Electricity Generating Board [1982] QB 458 considered
R v Howell [1982] QB 416 considered
R v Lohnes [1992] 1 SCR 167 considered

R v Saengsai-Or (2004) 61 NSWLR 135 approved

R v The Justices of Clifton; ex parte McGovern [1903] St R Qd 177 cited

R v Wei Tang (2008) 237 CLR 1 approved
Re an Appeal against the Conviction of Anning (No DFDAT 5 of 1989) considered
Re Pong Su (No 10)(2005) 154 A Crim R 19 approved

Re Tracey; ex parte Ryan (1989) 166 CLR 518 cited
Steel v United Kingdom (1998) 28 EHRR 603 considered
Stoke-Graham v R (1985) 16 DLR (4^th) 321 considered
Tully v The Queen (2006) 230 CLR 234 cited
Williams v Pinnuck (1983) 68 FLR 303 considered
X v Australian Prudential Regulation Authority (2007) 226 CLR 630 cited

New Shorter Oxford English Dictionary (Clarendon Press, 1993)

Date of hearing: 13 November 2012

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 216

Counsel for the Appellant: A. W. Street S.C. and P. Kerr

Solicitor for the Appellant: Wyatt Attorneys

Counsel for the Respondent: S. Lloyd S.C. and S. Callan

Solicitor for the Respondent: Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 541 of 2012

ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

BETWEEN:
TING LI
Appellant

AND:
CHIEF OF ARMY
Respondent

JUDGES:

KEANE CJ, DOWSETT, LOGAN, JAGOT & YATES JJ

DATE OF ORDER:

26 FEBRUARY 2013

WHERE MADE:

SYDNEY

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

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 541 of 2012

ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

BETWEEN:
TING LI
Appellant

AND:
CHIEF OF ARMY
Respondent

JUDGES:

KEANE CJ, DOWSETT, LOGAN, JAGOT & YATES JJ

DATE:

26 FEBRUARY 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT
KEANE CJ, JAGOT & YATES JJ:

The appellant is a legal officer with the Australian Defence Force (ADF). He was charged with an offence under s 33(b) of the Defence Force Discipline Act 1982 (Cth) (the Discipline Act) arising out of an incident which occurred on 3 February 2010 at the Department’s offices at Campbell Park in the Australian Capital Territory.
Section 33(b) of the Discipline Act provides relevantly:
33 Assault, insulting or provocative words etc.
A person who is a defence member or a defence civilian is guilty of an offence if the person is on service land, in a service ship, service aircraft or service vehicle or in a public place and the person:
…
(b) creates a disturbance or takes part in creating or continuing a disturbance…
The appellant was arraigned before a Restricted Court Martial. He pleaded not guilty to the charge which was framed as follows:
Being a Defence member at Defence Legal Division, Level 4 Campbell Park Offices on 3 February 2010 between approximately 10.30 and 11.00 in the vicinity of the office of Mr Andrew Snashall created a disturbance by causing a confrontation with Mr Snashall.
The amended particulars subjoined to the charge were that the appellant had:
a.        refused to leave Mr Snashall’s office when requested to do so by Mr Snashall and continued speaking to Mr Snashall in a raised voice;
b.        followed Mr Snashall and continued the conversation when Mr Snashall left his own office, ostensibly because MAJ Li would not;
c.        forcefully pushed against Mr Snashall’s office door placing his head and shoulder in the doorway while Mr Snashall was inside the office trying to close the door;
d.        re-entered Mr Snashall’s office and again refused to leave when requested to do so;
e.        stood approximately three inches from Mr Snashall’s face speaking with a raised voice and in an agitated and aggressive manner.
On 8 April 2011, the appellant was convicted of the charge. The appellant was sentenced to be severely reprimanded and fined $5,000, suspended as to $3,000.
The appellant appealed against his conviction to the Defence Force Discipline Appeal Tribunal (the Tribunal) pursuant to s 20 of the Defence Force Discipline Appeals Act 1955 (Cth) (the Appeals Act). He appealed on numerous grounds, most of which are no longer relevant.
On 16 March 2012, the Tribunal dismissed the appeal to it for reasons which are reported in Li v Chief of Army (2012) 261 FLR 226.
The appellant now appeals to this Court under s 52(1) of the Appeals Act. An appeal to this Court is available only “on a question of law involved in a decision of the Tribunal in respect of an appeal [to the Tribunal] under” the Appeals Act. Before turning to discuss the questions of law said to be involved in the decision of the Tribunal, it is desirable first to summarise the evidence adduced at the court martial and the issues raised in the appeal to the Tribunal insofar as those issues remain relevant to the questions agitated in the appeal to this Court.
THE EVIDENCE AT THE COURT MARTIAL
The evidence given to the court martial of the circumstances of the incident of 3 February 2010 was summarised by the Tribunal at [14]-[29] of its Reasons. What follows reflects that summary.
The appellant joined the ADF in 1995 as a sailor. After his discharge from the service, he studied law, joined the Army Reserve and, after qualifying as a lawyer, joined the Regular Army as a legal officer. At the time of this incident he was posted to Defence Legal in the office of the Director-General at the Campbell Park Offices, Campbell, in the Australian Capital Territory.
Mr Andrew Snashall held the position of Director of Special Financial Claims in the ADF. At all relevant times, Mr Snashall was the supervisor of staff who were located on a floor above the appellant’s office.
Mr Snashall first met the appellant when the appellant had sought to discuss a financial claim with Mr Snashall’s staff. Subsequently, in about July 2009, Mr Snashall encountered the appellant, his wife and infant child on a visit to the appellant’s workplace and allegedly made a remark: “I see you have been polluting the world with your genes”. The appellant thought this remark to be inappropriate and offensive, with a racial flavour, but said nothing. Nor did he make any complaint about Mr Snashall to the authorities.
The events giving rise to the charge took place during the morning of 3 February 2010 on the fourth level of the Campbell Park offices and mostly in and about an office occupied by Mr Snashall in the Special Financial Claims Directorate.
According to Mr Snashall, on various occasions through 2009, he observed the appellant talking to staff under Mr Snashall’s supervision. Mr Snashall considered some of the visits and their duration distracted his staff from their work. He spoke to the appellant on several occasions asking that the appellant cease these interruptions.
In the afternoon of 2 February 2010, Mr Snashall saw the appellant talking to an employee who was attending to urgent duties. Mr Snashall asked the appellant to leave and then returned to his office. The appellant went into an empty nearby office to make a private telephone call. Mr Snashall came into the room, queried the appellant’s presence in his directorate and asked him to leave. Each man gave evidence that the other spoke and acted aggressively.
The appellant gave evidence that, in the course of their subsequent conversation, Mr Snashall said words to the effect: “I meant everything I have said to you” over the past year. According to the appellant, this remark revived the comment made in July 2009 and indicated that it was meant offensively. According to the appellant, it was against this background that the appellant said that he returned to Mr Snashall’s office the following morning to seek an explanation for Mr Snashall’s attitude to him.
Mr Snashall did not accept that a conversation in these or similar terms occurred on 2 February 2010. He did make a note of the encounter and asked the appellant’s commanding officer, with whom he was discussing other matters that day, to remove the appellant from the spare office.
As to the incident of 3 February, Mr Snashall gave evidence that the appellant entered Mr Snashall’s office. Mr Snashall was using his telephone at the time. Mr Snashall observed the appellant leave his office. Mr Snashall was uncertain why the appellant had visited but, in view of the incident that had occurred on the previous evening, he spoke with Mr Mark Smith, who worked in an office next to Mr Snashall’s office, and asked him to wait in his (Mr Snashall’s) office. When the appellant did not re-appear, Mr Smith returned to his own office. Mr Snashall also spoke to Ms Donna Webster who worked next door in the Directorate.
Approximately 45 minutes later, the appellant returned to Mr Snashall’s office and initiated a conversation which related to the events of the previous day and to other grievances on the appellant’s part. Mr Snashall suggested that the appellant make a formal complaint and then asked him to leave his office. The appellant did not do so and continued talking. As a consequence, Mr Snashall left his office and commenced to walk along a hallway. The appellant followed and continued to talk to Mr Snashall.
Mr Snashall testified that he turned in the corridor and, still followed by the appellant, returned to his office. Mr Snashall attempted to close his office door but the appellant resisted and commenced to push against the door to prevent it closing. Mr Snashall said that after some seconds, he released the door and stepped back. According to Mr Snashall’s testimony, the appellant then walked over the threshold into the office, and stood directly in front of and in close proximity to him. The appellant spoke in a loud voice. Mr Snashall also spoke loudly, demanding that the appellant leave his office.
Ms Sandra Bennett, the Director of Litigation in Defence Legal, gave evidence. Her office was near Mr Snashall’s office. She heard Mr Snashall ask the appellant to leave several times. The voices were getting louder and more aggressive. There were other staff in the vicinity who were apparently drawn to the noise. Alarmed at the sound of raised voices, she left her office. Ms Bennett observed Mr Smith “standing close” to the two men. She asked the appellant to leave. He became quiet, apologised briefly to her and left.
Mr Smith also gave evidence. Mr Smith said that he was alerted to the confrontation between Mr Snashall and the appellant by Ms Webster. He had been deep in his work and had heard no raised voices. He then looked into Mr Snashall’s office and heard the appellant ask for an explanation. The argument became more heated. Mr Snashall asked the appellant to leave his office but he did not. Mr Smith heard Mr Snashall say that in that event he was leaving. Mr Smith saw Mr Snashall walk out of his office and down the corridor followed by the appellant. Mr Smith observed Mr Snashall return and enter his office followed by the appellant. Mr Snashall attempted to close his door; the appellant tried to open it. Mr Smith described this as “a bit of argy-bargy”. Mr Snashall released the door. The argument continued. Mr Smith felt he needed to intervene; and so he tried to step between them and put his hands up. Moments later, Ms Bennett intervened. The appellant then became calm and left.
Other personnel, who observed the altercation or were alerted to it, also gave evidence. Mr Andrew Towill, a civilian employed in Defence Legal, heard Mr Snashall ask the appellant several times to leave his office and the appellant say that he would not until he received an apology. He decided to stay in his office but noted other people congregating from different parts of the floor.
Mr Omar Khan, who worked in Defence Legal and was occupying an office in the vicinity of Mr Snashall’s, heard raised voices and observed that the appellant was agitated and heard mutual accusations of lack of professionalism. He heard Mr Snashall mention a complaint process but the appellant said that he wanted to be heard then. Mr Snashall returned. He heard, but did not see, the incident with the closing door. When the door opened Mr Khan was able to observe the two men face to face and thought the confrontation was “probably getting a bit out of hand” and got up from his desk. He observed Mr Smith, and then Ms Bennett, intervene.
Mr Matthew Pearson was employed in Defence Legal and on the morning of 3 February was discussing a work matter with Ms Webster whose office joined that of Mr Snashall. At the relevant time he was standing in the corridor near Mr Snashall’s office. He overheard the appellant and Mr Snashall engage in a conversation which became progressively louder. Mr Snashall asked the appellant to leave. Mr Pearson heard the appellant say he would not do so until he received an answer. Mr Pearson saw Mr Snashall leave his office, walk towards him down the corridor and followed by the appellant. He again heard Mr Snashall say the conversation was over and that the appellant should leave him alone. The appellant repeated that he would not do so until he received an answer. Before the two men reached Mr Pearson – some two or three metres away – Mr Snashall turned and attempted to enter his office and close the door. Mr Pearson saw the appellant put his foot in the doorway preventing its closure. He saw the door open and heard the appellant insist on an answer. He said the appellant was speaking “tersely”. Other witnesses had, by now, arrived. Mr Pearson noted the close proximity of the two men and was concerned that matters might escalate to physical contact. Mr Smith intervened and then Ms Bennett told the appellant to leave.
The appellant’s evidence of these events differed only somewhat from that of Mr Snashall and the other witnesses. The differences concern matters of detail which are not significant for the resolution of the issues agitated in this Court. The appellant acknowledged that he went to speak to Mr Snashall. He said that Mr Snashall was dismissive of him, stood up from his desk and walked past him out of the office. The appellant said that he was shocked at this behaviour, and he followed Mr Snashall saying that Mr Snashall had to listen to him wherever he was. The appellant followed Mr Snashall out into the corridor. The appellant said that he continued to ask for an explanation as he followed Mr Snashall down the corridor. The appellant said that when Mr Snashall turned back towards his office facing the appellant, Mr Snashall “had breached [his] personal space”.
The appellant accepted that Mr Snashall said that the conversation was over and that he should leave the area. The appellant said that he continued to say that he needed an explanation of Mr Snashall’s conduct towards him. By this time Mr Snashall was in his office and he, the appellant, was in the doorway. The appellant said that, notwithstanding Mr Snashall could see that he was in the doorway, Mr Snashall continued to shut the door onto him. The appellant raised his right arm to block the door because if he had not done so it would have slammed into his shoulder since he was between the door and the door frame. The appellant said that again Mr Snashall “deliberately breached [his] distance” [sic] and told him again to leave his office. According to the appellant, Mr Smith then came in to break up the confrontation. The appellant acknowledged in his evidence that, by the time Mr Smith sought to intervene between the appellant and Mr Snashall, “we had both lost control of the situation”.
THE APPEAL TO THE TRIBUNAL
Section 23(1) of the Appeals Act provides relevantly:
(1)       …[W]here in an appeal it appears to the Tribunal:
(a)that the conviction…is unreasonable, or cannot be supported, having regard to the evidence;
(b)       that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction was wrong in law and that a substantial miscarriage of justice has occurred;
(c)       that there was a material irregularity in the course of proceedings before the court martial…and that a substantial miscarriage of justice has occurred; or
(d)that, in all the circumstances of the case, the conviction is unsafe and unsatisfactory;
it shall allow the appeal and quash the conviction…
The grounds of appeal to the Tribunal were numerous. None of them were successful. It is sufficient to note here only those which concern the arguments agitated in this Court.

The first issue raised by the appellant before the Tribunal, which is pressed in this Court by the appellant, was whether the charge as formulated did not allege an offence known to the law, in that the words “causing a confrontation” in the charge were not part of
s 33(b) of the Discipline Act. Further, it was argued that the panel were not directed, as they should have been, that “causing a confrontation” was required to be proved beyond reasonable doubt.
The Tribunal held that the expression “by causing a confrontation” was not charged as an element of the offence, but was given as a particular of the alleged contravention of s 33(b) of the Act. On that footing, it was not necessary that “causing a confrontation” be proved beyond reasonable doubt.
The second issue which was agitated before the Tribunal and which remains relevant in this Court was whether a charge under s 33(b) of the Discipline Act involves a fault element of recklessness under s 5.6.2 of the Criminal Code Act 1995 (Cth) (the Criminal Code), and that no sufficient direction was given to the panel in relation to this element of the offence.
The Tribunal held that the directions which were given were sufficient because the relevant fault element was intention on the part of the appellant to act as he did because, in so acting, he was thereby creating a disturbance. In any event, the Tribunal held that no miscarriage of justice had occurred within the meaning of s 23(1) of the Appeals Act by reason of the absence of a direction as to the fault element of recklessness.
The third issue of present relevance raised before the Tribunal concerned the sufficiency of the Judge Advocate’s direction to the panel as to the meaning of the phrase “creates a disturbance”. The appellant argued that a substantial miscarriage of justice occurred because the Judge Advocate did not direct the Court to the “potential cause” of the confrontation for which Mr Snashall was responsible, namely the allegedly republished “racial slur”. The appellant’s argument on this point was somewhat fluid: in one of its iterations, the appellant sought to introduce a justification for his conduct by reference to the “racial slur” which he contended occurred the previous July and which was confirmed by Mr Snashall when he informed the appellant on 2 February 2010 that everything he had said to the appellant in the previous months he had meant. He contended that Mr Snashall’s statement was made in contravention of s 18C of the Racial Discrimination Act 1995 (Cth) (RDA) which gave rise to a “consequential right” on the part of the appellant to “confront and protest” Mr Snashall’s conduct. In another iteration of this argument, it was Mr Snashall’s racial slur, not the appellant’s conduct, which created the disturbance.
The Tribunal held that on no view of the evidence could Mr Snashall’s conduct excuse the conduct of the appellant in the sense of relieving him from responsibility under s 33(b) of the Discipline Act.
THE SCOPE OF AN APPEAL TO THIS COURT FROM THE TRIBUNAL
As noted above, an appeal to this Court from the Tribunal lies under s 52 of the Appeals Act, and is confined to “a question of law involved in a decision of the Tribunal”. It is important to observe this limitation on the scope of an appeal to this Court under s 52. In Jones v Chief of Navy (2012) FCAFC 125 at [24]-[27], the Full Court of the Federal Court said of s 52 of the Act:
24 …Under that provision the appeal to this Court from the Tribunal lies only on a question of law involved in the decision of the Tribunal. It is necessary to keep clearly in mind the limited scope of the appeal provided by s 52 of the Appeals Act.
25 It is well settled that where a statute confers a right of appeal on a question of law, the applicant must identify a decision on a question of law said to have been erroneously made by the Tribunal below. That is because it is the question of law which is “the subject matter of the appeal itself”: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation… (1988) 82 ALR 175 at 178; see also Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority… (2009) 168 LGERA 1 at [19]-[22].
26 It is also important to understand that this Court, in hearing an appeal under s 52 of the Appeals Act, is “not exercising any jurisdiction analogous to that of a Court of Criminal Appeal”: Hembury v Chief of General Staff (1998) 193 CLR 641 (Hembury) at [31].
27 Consistently with the circumscribed function of this Court under s 52 of the Appeals Act, this Court may not “permit the ingenious extraction of alleged errors upon questions of law … so as to permit civilian interference with the military system of justice supervised by the Tribunal”:… Hoffman v Chief of Army (2004) 137 FCR 520 (Hoffman) at [44].
It is also pertinent to observe here that a conclusion by the Tribunal, that an error in the course of proceedings below had no significance in relation to the panel’s verdict so that no miscarriage of justice has occurred, has been held to be a conclusion upon an issue of fact, involving judgments of impression and degree, not upon a question of law for the purposes of s 52(1) of the Appeals Act: Hoffman v Chief of Army (2004) 137 FCR 520 at [44]; Jones v Chief of Navy [2012] FCAFC 125 at [56]. See also M v The Queen (1994) 181 CLR 487 at 492-493; SKA v The Queen (2011) 243 CLR 400 at [14], [19]-[21].
THE QUESTIONS OF LAW
The appellant’s notice of appeal to this Court raised many issues. The respondent filed a notice of objection to competency, asserting that all the issues sought to be raised by the appellant’s notice of appeal were not questions of law. These issues as to the competency of the appeal were largely resolved on the basis that the appellant abandoned several of his grounds of appeal, and Mr Lloyd SC, who appeared with Ms Callan of Counsel for the respondent, accepted that the following questions of law could be identified from the amended notice of appeal:
A        Is there an offence known to law constituted by a defence member on defence land creating a disturbance by causing a confrontation?
B        Is recklessness one of the fault elements for the offence established by s 33(b) of the Defence Force Discipline Act?
C Does the Judge Advocate’s direction on the expression “creates a disturbance” reveal a misconstruction of s 33(b) of the DFDA because either or both:
(i)        it wrongfully states the content of “disturbance”
(ii)it failed to recognise that the content of “disturbance” was affected by the context of a person exercising a right to protest against an alleged breach of s 18C of the RDA
The appellant, by his Counsel, accepted that these formulations were effective to summarise the issues which the appellant sought to raise, save for two other contentions which the appellant still wishes to agitate. These contentions were: first, that the Tribunal erred in law in holding that the words “by causing a confrontation” were not an essential part of the charge that had to be proved beyond reasonable doubt; and, secondly, that the Tribunal erred in law in taking the view that Mr Snashall’s conduct was not relevant to the charge.
WAS THE APPELLANT CHARGED WITH AN OFFENCE KNOWN TO THE LAW?
The appellant argues that “causing a confrontation” was the gravamen of the offence alleged against the appellant and that the Tribunal erred in failing to appreciate that causing a confrontation is not an offence known to the law.
The respondent accepts that the answer to the question: “Is there an offence known to the law constituted by creating a disturbance by causing a confrontation?” is: “No”. But the respondent’s answer to the appellant’s point is that the Tribunal did not suggest that the answer is: “Yes”. The respondent submits that the charge was “creating a disturbance on service land” in conformity with the text of s 33(b) of the Discipline Act; and further, that the words “by causing a confrontation” were particulars of the facts supporting the charge, not the statement of an element of it, and so did not require to be proved beyond reasonable doubt.
The Tribunal explained its view as to the sufficiency of the charge at [36]-[38]:
36       The charge was “Creating a Disturbance on Service Land”. The balance of the words on the amended charge sheet were particulars which appraised the appellant fairly of the circumstances in respect of which he came to be charged. The appellant was arraigned on the charge of “Creating a Disturbance on Service Land” and on the alternative charge of “Prejudicial Conduct”. The principal particulars in respect of each as set out above at [5] and [7] were also read to him.
37       Rule 9 of the Court Martial and Defence Force Magistrate Rules provides:
(1)       A charge shall state 1 offence only.
(2)       A charge shall consist of 2 parts, namely:
(a)a statement of the offence that the accused person is alleged to have committed; and
(b)       particulars of the act or omission constituting the offence.
(3)       A statement of an offence shall contain:
(a)in the case of an offence other than an offence against the common law – a reference to the provision of the law creating the offence; and
(c)       in any case – a sufficient statement of the offence.
(4)       Without prejudice to any other sufficient manner of setting out the statement of an offence, the statement of an offence shall be sufficient if it is set out in the appropriate form in Schedule 1.
(5)       Particulars of an offence shall contain a sufficient statement of the circumstances of the offence to enable the accused person to know what it is intended to prove against that person as constituting the offence.
(6)       …
38 The charges appearing on the Charge Sheet and in respect of which the appellant was arraigned comply with r 9 and plainly were within ss 33(b) and 60(1) of the DFDA.
We respectfully agree with the view of the Tribunal. This is not a case where the statement of the elements of the offence in the charge was deficient or self-contradictory as, for example, in the case of a charge of “murder by accidental killing”.
In any event, it is important to note, in relation to this and the other questions agitated by the appellant, that both s 23(1)(b) and (c) of the Appeals Act require a substantial miscarriage of justice in addition to “a wrong decision of a question of law, or of mixed law and fact” or “a material irregularity in the course of the proceedings before the court martial” if an appeal is to be allowed by the Tribunal. In Hembury v Chief of General Staff (1998) 193 CLR 641 (Hembury) at [21] McHugh J said:
The question then is whether the Tribunal, having found that breach of r 33 was a material irregularity, was bound, as a matter of law, to find that the breach was a substantial miscarriage of justice. The appellant had the burden of showing that the material irregularity constituted a “substantial miscarriage of justice”. The plain words of s 23(1)(c) indicate that an appellant must show not only a material irregularity but also that it constituted a substantial miscarriage of justice. In that respect the onus under s 23 is different from that existing under the common form criminal appeal statutes. It is for the appellant to establish not only that there has been a material irregularity but also that it constituted a substantial miscarriage of justice. Not every material irregularity occurring in the course of a trial will constitute a miscarriage of justice, let alone a substantial miscarriage. Thus, a material irregularity occurring in the course of the proceedings may be corrected later in the proceedings. [See, eg, R v Riaz and Burke (1991) 94 Cr App R 339 at 344].
Similarly, in Hembury at [33] and [35] Gummow and Callinan JJ said:
[33] There is no question here of appellate intervention in respect of an alleged mistrial conducted in the exercise of judicial power. Rather, the issue as understood before the Full Court was whether, as a matter of law, the Tribunal erred in its application of s 23(1)(c) of the Appeals Act. This obliged the Tribunal, with exceptions not presently material, to allow the appeal and quash the convictions if it appeared to the Tribunal:
“that there was a material irregularity in the course of the proceedings before the court martial or the Defence Force magistrate and that a substantial miscarriage of justice has occurred.”
It is unnecessary to consider whether the misdirection also attracted par (b) of s 23(1). This is cast in the same form as par (c) and provides as a ground:
“that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction or the prescribed acquittal was wrong in law and that a substantial miscarriage of justice has occurred.”
…
[35] Paragraph (c) contains the two elements of “material irregularity” and “substantial miscarriage of justice”. There may be a “material irregularity” which does not amount to a “substantial miscarriage of justice”[cf Director of Public Prosecutions v Shannon [1975] AC 717 at 757, 773; Pattenden, English Criminal Appeals 1844-1994 (1996), pp 158-161.] Further, an “irregularity” may not be “material” because, for example, it was cured by what was done later in the proceeding. [cf R v Riaz and Burke (1992) 94 Cr App R 339 at 344.]
The terms in which the charge was framed occasioned no injustice to the appellant, much less a substantial miscarriage of justice. At no stage during the course of the court martial did the appellant make any complaint as to the sufficiency of the terms in which the charge was framed or suggest that the charge as framed was apt to embarrass his defence of the charge. And even if there were some irregularity in the formulation of the charge, it would not have led to the appeal being allowed by the Tribunal, unless the Tribunal also concluded that a substantial miscarriage of justice had occurred. Whether the Tribunal was right not to be so satisfied is not a question of law. And in any event, subject to our discussion of the meaning of the expression “creates a disturbance”, the evidence did not leave it open to dispute or doubt that the appellant did create a disturbance on service land.
For these reasons, the appellant’s challenge to the decision of the Tribunal under this heading should be rejected.
IS RECKLESSNESS ONE OF THE FAULT ELEMENTS FOR THE OFFENCE?
The appellant contends that the Criminal Code prescribes a fault element for the charge, namely “recklessness” as to the result of the appellant’s conduct, and that the panel of the Restricted Court Martial was not given proper direction on this point. Associated with this argument is the contention that the Judge Advocate gave an erroneous direction as to the need for the prosecution to establish the appellant’s intention to engage in conduct rather than to produce a result.
In order to understand this argument, it is necessary to refer first to the provisions of the Criminal Code which address the fault element of an offence.
The Criminal Code provides, by s 3.2:
In order for a person to be found guilty of committing an offence the following must be proved:
(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
(b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.
The Criminal Code provides by s 4 in relation to the physical elements of an offence:
(1)       A physical element of an offence may be:
(a)       conduct; or
(b)       a result of conduct; or
(c)       a circumstance in which conduct, or a result of conduct, occurs.
(2)       In this Code:
          conduct means an act, an omission to perform an act or a state of affairs.
          engage in conduct means:
          (a)       to do an act; or
          (b)       omit to perform an act.
(emphasis added).
Division 5 of the Criminal Code provides in relation to the fault elements of an offence:
5.1Fault elements
(1)A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
(2)Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.
5.2Intention
(1)A person has intention with respect to conduct if he or she means to engage in that conduct.
(2)A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3)A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
5.3Knowledge
A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
5.4Recklessness
(1)A person is reckless with respect to a circumstance if:
(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2)A person is reckless with respect to a result if:
(a)he or she is aware of a substantial risk that the result will occur; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3)The question whether taking a risk is unjustifiable is one of fact.
(4)If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
5.5Negligence
A person is negligent with respect to a physical element of an offence if his or her conduct involves:
(a)such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b)such a high risk that the physical element exists or will exist;
that the conduct merits criminal punishment for the offence.
5.6 Offences that do not specify fault elements
(1)If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2)If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.
(emphasis added).
At [58] of the Reasons, the Tribunal quoted the Judge Advocate’s direction to the panel as follows:
[The] charge is made up of elements and ingredients that must be proved by the prosecution beyond a reasonable doubt. The elements fall into two categories, called physical and fault elements. The physical elements in this case are conduct and the circumstances. The fault elements are the states of mind accompanying the physical elements…
In the…charge before you, there are physical and fault elements…The… charge, of creating a disturbance, contains three physical elements and three fault elements. The first physical element is circumstance, that, at the time of the offence, the defendant was a Defence member. For our own purposes, the fault element is knowledge, but this particular element of the charges has been admitted.
The second physical element is circumstance; the offence occurred on Service Land. For our purposes the relevant fault element is knowledge of the facts which make it Service Land, and I’ll be explaining, shortly, what I mean by that.
The third physical element is conduct – that is, that the defendant engaged in conduct which created a disturbance – and the accompanying physical element is an intention, that is, he meant to engage in that conduct, not that he intended to create a disturbance, that he intended to engage in the conduct.
…Intention: a person has intention with respect to conduct if he means to engage in that conduct. “Creating a disturbance” is not a term or phrase that is defined in the Defence Force Discipline Act. I can say that creating a disturbance includes brawling and violent or disorderly disputation.
Here the prosecution case is that it involved violent or disorderly disputation. The conduct must be such as to be likely to cause a response from anyone present who saw or heard the incident; that response could be to intervene to stop the disturbance, or to report it, or to leave the area because of the unsettling effect of the disturbance. In other words, if you were working in an office and someone was playing loud music nearby, that might disturb you from your work but it wouldn’t be creating a disturbance within the meaning of the Act. There needs to be violent or disorderly disputation, as I say, and there needs to be conduct which must be such as to be likely to cause a response form anyone present who saw or heard the incident.
You must also be satisfied of the fault element, which is intention. That does not mean the prosecution has to prove the defendant intended to create a disturbance. The prosecution has to prove the accused intended to engage in the act that amounted to a disturbance if you find the conduct amounted to a disturbance.
To summarise, has the prosecution proved that the accused engaged in conduct that amounted to a disturbance? If yes, did he intend to engage in that conduct? As I said, the prosecution does not have to prove that the accused set out to create a disturbance; the prosecution has to prove that the conduct of the accused was such as to create a disturbance and he intended to engage in that conduct.

In relation to these directions, the Tribunal said at [59]-[61]:
59 The Judge Advocate continued, referring to the particulars (which the appellant contends were incorrect statements of what had to be proved):
…the defendant is entitled to know how it is said that he created a disturbance. The prosecution has provided particulars of that. You do not need to be satisfied beyond reasonable doubt that each of the particulars has been proved. What you are required to find is, having regard to the particulars, has the prosecution proved beyond reasonable doubt that the accused created a disturbance by conduct that he intended to engage in at that time. It may be you are satisfied that the accused did behave in the way set out in particular…but not any other particular.
The question then is, are you satisfied beyond reasonable doubt that the accused created a disturbance by that conduct and that he intended to engage in that conduct at that time.
60 It is the conduct of an offender which is the key to the offence. “Conduct” is defined in s 4.1(2) relevantly as “an act”. The plurality in X v Australian Prudential Regulation Authority (2007) 226 CLR 630 at [51], stated simply:
A person has intention with respect to conduct if he or she “means to engage in the conduct” (Criminal Code, s 5.2(1)).
Further elaboration was not required save to exclude somnambulism and the like or accident.
61 It will be a question for the trier of fact as to whether that conduct constitutes or creates a disturbance. Section 33(b) does not require that an offender “intends” to create a disturbance. What the prosecution had to prove, consistently with s 5.2(1), beyond reasonable doubt was that the appellant intended to conduct himself as he did. In fact, the appellant did not challenge the essential elements of the particulars. He challenged the prosecution characterisation of that conduct and who was at fault. The directions to the panel were orthodox and involved no error. Even if it were correct, as contended by the appellant, that the physical element of the offence consists of a circumstance or a result, failure to direct on “recklessness” did not give rise to any miscarriage of justice.
The Judge Advocate and the Tribunal proceeded on the footing that the expression “creates a disturbance” in s 33(b) of the Discipline Act is a reference to the conduct of the accused rather than a statement of separate physical elements consisting of conduct and result. In this regard, the Tribunal had said earlier at [51]:
The charge of creating a disturbance can be established by proof of a series of acts which constitute a course of conduct. A range of different acts performed either simultaneously or closely proximate in time, may create a disturbance. A person may, for example, cause a disturbance by shouting, banging on walls and by playing amplified music at the same time. The events relied upon by the prosecution in the present case occurred in an office and adjacent corridor in the space of a couple of minutes. The course of conduct began and ended in Mr Snashall’s office. At all times the appellant was, in varying ways, seeking to convey to Mr Snashall his objections to what he perceived to be the republication of a racial slur. The particulars relied on by the prosecution each identified different acts by the appellant in the course of his short but rowdy pursuit of Mr Snashall.
It is argued by the appellant that the disturbance created by the conduct is a result, so that recklessness is the fault element for the result of the appellant’s conduct. This is said to be so by virtue of the operation of s 5.6(2) of the Criminal Code.
The Tribunal did not observe the distinction between conduct and result for which the appellant argues. In our respectful opinion, the Tribunal did not err in this regard. Section 33(b) does not invite the drawing of this distinction. For the purpose of ss 3, 4 and 5 of the Criminal Code the physical element of the offence is the creation of a disturbance. The physical element is conduct, albeit conduct of a particular kind. One would not accurately or sensibly state the physical element of the offence in question as “creating”. The relevant physical element of the offence is conduct which “creates a disturbance”. For conduct, the fault element is intention. As the Tribunal explained, the relevant intention is the intention to engage in the conduct alleged in the particulars and the appellant did not dispute that this conduct had occurred. There was no issue as to whether that conduct was intentional.
There could be no doubt that the appellant intended to confront Mr Snashall in his office, to insist that Mr Snashall address the appellant’s concerns rather than his ordinary duties, and to persist in that confrontation “in the course of his short but rowdy pursuit of Mr Snashall” [58]. The appellant’s argument in relation to recklessness should be rejected.
In the course of the hearing of the appeal, a question was raised as to the sufficiency of the Judge Advocate’s direction in relation to the need for the panel to be instructed that the charge could be made out only if the panel were satisfied beyond reasonable doubt that one or more of the particulars of the charge had been proved. The appellant, taking up this question, relies upon the decision of the High Court in KBT v The Queen (KBT) (1997) 191 CLR 417 especially at 424 to support the argument that the Judge Advocate erred in directing the panel that “you do not need to be satisfied beyond reasonable doubt that each of the particulars has been proved”. But in KBT the High Court was concerned to make the point that to prove the offence of maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years (which offence required that the accused had on at least three occasions within the period charged committed an offence of a sexual nature upon the complainant), it was essential that the jury understand that it had to be satisfied beyond reasonable doubt that each of the same three offences of a sexual nature had been committed. To insist that the same three offences of a sexual nature had been proved to the satisfaction of the jury beyond reasonable doubt was to insist that the elements of an offence must be proved beyond reasonable doubt; it was not to depart from the general rule that, while the jury must be satisfied that the factual elements of the offence have been proved, it is not necessary that the prosecution prove the particulars furnished by it or any of them: Dare v Pulham (1982) 148 CLR 658 at 664; Coleman v Kinbacher & Anor (2003) QCA 575 at [14], HML v The Queen (2008) 235 CLR 334 at [4].
Mr Lloyd SC submitted that, in any event, this question had not been raised at the court martial or before the Tribunal, and accordingly, it was not a question of law involved in a decision of the Tribunal in respect of an appeal to the Tribunal under the Appeals Act. The appellant countered that he had argued before the Tribunal that the Judge Advocate had erred by “incorrect statements of what had to be proved”, but this contention was not apt to raise the issue now sought to be raised. That issue is fairly described as relating to the manner in which the panel was required to go about its task of assessing the evidence and reasoning to a conclusion. The only issue fairly agitated by the appellant before the Tribunal related to the questions whether the addition of the words “by causing a confrontation” after the words of the charge “creating a disturbance” meant that the charge was not one known to the law, and, if that question were resolved in the negative, whether the jury should have been directed that it could not convict unless it was proved beyond reasonable doubt that the appellant caused a confrontation. It must, therefore, be accepted that the Tribunal was not invited to resolve the question which is now said to be raised in this Court.
In our view, it is not necessary to decide whether it is open to the appellant to raise this issue as a question of law involved in the decision of the Tribunal in respect of the appeal to it. That is because, in our opinion, it was not incumbent on the prosecution to prove the particulars of the charge, or any of them. And further, even if that view were incorrect, one cannot proceed on the footing that the Tribunal would or should have concluded that the absence of the direction occasioned a substantial miscarriage of justice.
THE ADEQUACY OF THE JUDGE ADVOCATE’S DIRECTIONS AS TO THE EXPRESSION “CREATES A DISTURBANCE”
To understand the prohibition in s 33(b) on creating a disturbance one must bear in mind that the conduct at which the prohibition is directed is criminal conduct punishable by imprisonment. One would not lightly conclude that a loud argument, involving no more than the vigorous exercise of the right of free speech by the participants, would be within the prohibition. That having been said, the desire to speak one’s mind does not furnish one with a licence to ignore the proscriptions of the Discipline Act. Within the Defence Force as a disciplined force, there are “proper channels” for the making of complaints about the conduct of others.
In our view, s 33(b) encompasses, as a matter of ordinary language, conduct whereby defence personnel and those with whom they work on service land are disrupted in, or distracted from, the performance of their duties by other members of the defence force. To say this is not to stretch the meaning of the proscription beyond commonplace usage. According to the Macquarie Dictionary “disturbance” includes “an outbreak of disorder”. In the Oxford English Dictionary, the primary meaning given for disturbance is “[T]he interruption and breaking up of tranquillity, peace, rest or settled condition; agitation (physical, social or political)”. It may also be noted that, in Black’s Law Dictionary 8^th Ed, the primary meaning of “disturbance” is given as “[a]n act causing annoyance or disquiet, or interfering with a person’s pursuit of a lawful occupation or the peace and order of a neighbourhood, community or meeting.” And it must be borne in mind that the proscription in s 33(b) occurs in a statute concerned (among other things) with the maintenance of discipline in the defence force and in and around its facilities.
The immediate context in which s 33(b) appears includes s 33(a) which covers brawling, and s 33(d) which covers the case of words apt to provoke a violent response in the person to whom they are addressed. Section 33 provides, relevantly, that:
A person who is a defence member or a defence civilian is guilty of an offence if the person is on service land, in a service ship, service aircraft or service vehicle or in a public place and the person:
(a) assaults another person; or
…
(c) within the view or hearing of another person, engages in conduct that is obscene; or
(d) uses insulting or provocative words to another person.
The maximum punishment for these acts is imprisonment for 6 months.
To the extent that the word “disturbance” is said by the Oxford English Dictionary to include “a breach of public peace, a tumult, an uproar, an outbreak of disorder”, the context supplied by the other provisions of s 33 suggests that the phrase used in s 33(b) is not confined to tumultuous events involving general lawlessness. The interruption of the order of a given social setting may be a disturbance even though it is a small one.
Further, in this regard, s 33 sits within Division 3 of the Discipline Act which deals with a broad range of behaviour that may be characterised as violent or insubordinate. Section 26 deals with insubordinate conduct as follows:
(1) A defence member is guilty of an offence if:
(a) the member engages in conduct that is threatening, insubordinate or insulting to a person; and
(b) the person is a superior officer.
Maximum punishment: Imprisonment for 6 months.
(2) A defence member is guilty of an offence if:
(a) the member uses language that is threatening, insubordinate or insulting about a person; and
(b) the language is used in that person's presence; and
(c) the person is a superior officer.
Maximum punishment: Imprisonment for 6 months.
(3) An offence against this section is an offence of strict liability.
(4) It is a defence to a charge under this section if the person proves that he or she neither knew, nor could reasonably be expected to have known, that the person against whom the offence is alleged to have been committed was a superior officer.
The Discipline Act also provides for the offence of mutiny at s 20 as follows:
(1)A defence member who takes part in a mutiny is guilty of an offence.
Maximum punishment: Imprisonment for 10 years.
(2) A defence member is guilty of an offence if:
(a) the member takes part in a mutiny; and
(b) the mutiny's object, or one of its objects, is the refusal or avoidance of duty or service in connection with operations against the enemy or the impeding of the performance of such a duty or service.
Maximum punishment: Imprisonment for life.
According to s 3, “mutiny” is defined as “a combination between persons who are, or of whom at least 2, are members of the Defence Force:
(a) to overthrow lawful authority in the Defence Force or in an allied force; or
(b) to resist such lawful authority in such a manner as to prejudice substantially the operational efficiency of the Defence Force or of, or of a part of, an allied force.
Having regard to both the immediate and the broader context in which s 33(b) appears, it is not a leap to conclude that it is not limited to “tumults” or “riots” or breaches of the peace, but is, as a matter of ordinary parlance, apt to proscribe the disruption of the orderly conduct of defence personnel in and around defence facilities. On that footing, one may say that s 33(b) of the Act is transgressed, and free speech has passed its limits, when loud argument disrupts the orderly performance by others of their duties. On this view, conduct which disrupts the orderly performance of their duties by those subject to, or witnessing it, is conduct which creates a disturbance.
As to whether the appellant had “created a disturbance”, the Tribunal said at [76]-[77] that:
76 There was ample evidence from the witnesses that the confrontation with Mr Snashall instigated by the appellant and persisted in by him, could be characterised as a disturbance within the meaning of the [Act] and under any of the approaches urged upon the Tribunal by Senior Counsel. A brief summary will suffice here.
77 Mr Smith was drawn to "raised voices"; Ms Librando: "felt quite uncomfortable and scared that something might happen"; Mr Towill was prompted to leave his office because of the noise coming from Mr Snashall's office and tried to stop people coming down "and adding to the melee there". Ms Bennett heard raised voices which "got to a point where I thought this is getting a bit aggressive and I think I need to do something about it"; "the conversations was escalating to the point where I got concerned that it may turn physical"; she noticed other defence legal staff congregating and watching. It was "a very heated situation"; "I'd never come across a situation like this in all of my working history". Even the appellant when he gave evidence thought "realistically we had lost control of the situation".
In our respectful opinion, this passage does not reveal any error of law. The direction identified that the conduct must disrupt the work of the person to whom it was directed or persons who may have observed it.
In any event, the Tribunal was entitled to conclude that if the direction were deficient it did not lead to a substantial miscarriage of justice, in that, on any view of the evidence, the appellant’s conduct was both apt, and indeed intended, to create a disturbance consisting of:
(a)the appellant’s confronting Mr Snashall without invitation (express or implied) with a view to airing the appellant’s grievances;
(b)the appellant’s insistence on pursuing with Mr Snashall a conversation which Mr Snashall did not wish to have, even though Mr Snashall made his unwillingness in this regard clear beyond any shadow of doubt;
(c)the appellant’s obviously unwelcome attempt to re-enter Mr Snashall’s office; and
(d)the appellant’s physical resistance to Mr Snashall’s attempt to close the door to his office.
There is no room for doubt that the appellant intentionally confronted Mr Snashall and persisted in conduct which was disruptive of Mr Snashall’s conduct of his duties within the Directorate. On the appellant’s behalf it is said that he desisted from his confrontation with Mr Snashall as soon as he was asked to do so by Ms Bennett, but that observation fails to acknowledge the appellant’s earlier persistence after Mr Snashall made clear his wish to terminate the conversation. There can be no doubt as to the appellant’s determination to use force so as not to allow Mr Snashall to be left in peace to get on with his duties.
The function of the Judge Advocate was to explain to the panel “in a simple, understandable fashion the law which is applicable to the particular case before them”: Tully v The Queen (2006) 230 CLR 234 at [79] (emphasis in original). See also Azzopardi v the Queen (2001) 205 CLR 50 at [49]. The discharge of this function did not require the Judge Advocate to draw the attention of the panel to possible scenarios factually remote from the evidence in the case in order to elucidate the meaning of the phrase “creates a disturbance”. Accordingly, it was not necessary for the Judge Advocate to direct the jury to bear in mind that a loud argument does not fall within the meaning of a disturbance, because on no view of the evidence adduced by either side could the incident disclosed by that evidence fairly be described as no more than a loud argument in the vigorous exercise of the appellant’s right of free speech. The appellant enjoyed no right which obliged Mr Snashall to subject himself to the appellant’s demand for an explanation for perceived slurs or slights. A desire on the appellant’s part to speak his mind did not furnish an occasion of privilege sufficient to excuse non-compliance with s 33(b) of the Discipline Act.
It will be apparent from what we have written thus far that we consider that, as a matter of ordinary language and having regard to the context in which the phrase “creates a disturbance” appears, s 33(b) of the Discipline Act is breached by conduct which falls short of an assault upon a person or damage to property. It is arguable that the legislative history of “disturbance” in the context of military law is limited to such conduct.
It was not argued on behalf of the appellant, either before the Tribunal or in this Court, that the history of the usage of “disturbance” warrants the conclusion that the phrase “creates a disturbance” means “breaches the peace” by some form of violent conduct which actually harms a person, or in a person’s presence that person’s property. Indeed, the appellant eschewed any suggestion that considerations of legislative history could assist the proper construction of s 33(b) of the Discipline Act. There is, therefore, a question as to whether, as a matter of procedural fairness or the proper scope of this Court’s jurisdiction under s 52(1) of the Appeals Act, this Court might properly concern itself with an argument to the effect that, as a matter of history, “disturbance” should be confined to “a breach of the peace” in the sense of an assault upon a person or damage to property.
In our respectful opinion, it is not necessary to resolve this question. It is quite unlikely, given the existence of s 33(a), that the expression “creates a disturbance” encompasses only conduct which, insofar as it is directed against a person, also amounts to an assault upon a person. And to treat “disturbance” as a term of art which can only be understood by reference to another term of art, viz “breach of the peace”, is to travel a long way from the text of the Act. Further, to the extent that such an argument might be said to draw support from the observations of Lord Browne in R (Laporte) v Chief Constable of Gloucestershire Constabulary (2007) 2 AC 105 at [159] where his Lordship said: “An actual, as opposed to an apprehended, breach of the peace connotes some form of violent disturbance or occurrence”, one might say that these observations make the point that a commotion which is not sufficiently violent to constitute a breach of the peace, in the sense explained by his Lordship, may nevertheless be referred to, in ordinary parlance, as a “disturbance”.

In our respectful opinion, on any view of the evidence, the appellant’s conduct, in forcing his unwelcome attentions upon Mr Snashall to the point of physical contact between the appellant and the door to Mr Snashall’s office as the appellant persisted in his obviously unwelcome pursuit, is not fairly described as a loud argument or a commotion. It is fairly described as creating a disturbance.
Finally, it is necessary to address the appellant’s argument that Mr Snashall had made a racial slur against the appellant which fell within s 18C of the RDA and within the Commonwealth’s duty under s 18E and consequently that “any person within the ADF subjected to an unlawful racial slur is unquestionably entitled to confront the perpetrator”. It is argued that “the right of MAJ Li to confront the person who had now twice engaged in conduct constituting an unlawful racial slur meant that the prosecution could not sustain the alleged offence of creating a disturbance by causing a confrontation with Mr Snashall”.
Of this argument, the Tribunal said at [95] and [96]:
The appellant failed to explain how a contravention of the RDA by Mr Snashall (assuming that it occurred) impinged in any way on the prosecution of the charge under s 33 of the [Act]. Furthermore he offered no convincing argument to support the claim that evidence relating to Mr Snashall's motivation in making the remarks which gave rise to offence or the appellant's motivation for confronting Mr Snashall in order to lodge a protest was admissible at the trial.
There is nothing in s 18C of the RDA or any ancillary provision which creates or recognises any "consequential right" of the kind asserted by the appellant. Furthermore s 18E deals with vicarious liability for contraventions of the RDA. It imposes no duty on the Commonwealth or anyone else.
In our respectful opinion, the Tribunal was correct.
Sections 18C and 18E of the RDA provided:
Section 18C
(1)       It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
(2)       For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3)       In this section:
public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
...
Section 18E
(1)       Subject to subsection (2), if:
(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b) the act would be unlawful under this Part if it were done by the person; this Act applies in relation to the person as if the person had also done the act.
(2)       Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.
The appellant’s argument proceeds on the assumption that the commission by Mr Snashall of an offence against the RDA might be available as a matter of law as a justification or excuse in respect of an offence under the Discipline Act. That assumption is quite misconceived. It finds no support in the text of the legislation or in any interpretive principle of the common law. Further, it is impossible to attribute to the legislature which enacted s 18C of the RDA an intention to create a right of self-help in a person affected by a contravention of the provision. This purpose of the proscription in the RDA is, in part at least, to prevent the breaches of the peace which the proscribed conduct is likely to provoke. In Coleman v Power (2004) 220 CLR 1 at [323] Heydon J, discussing the purposes of a legislative proscription of offensive language, identified the first end of such legislation as diminishing the “risk of acrimony leading to breaches of the peace, disorder and violence”. To similar effect are the observations of Gleeson CJ at [9], Gummow and Hayne JJ at [183], and Callinan J at [287].
It is entirely unlikely that Parliament intended to authorise a breach of the peace as a self-help remedy for a contravention of s 18C. The appellant’s argument should be rejected.
Finally, there is the appellant’s argument that, in all the circumstances, and particularly the circumstance that the appellant was actuated by a concern to receive an explanation from Mr Snashall for a racial slur which he perceived had been made, the panel should have been instructed to consider whether Mr Snashall, rather than the appellant, created the disturbance. This argument, too, must be rejected. On a strict view, the appellant could still be guilty of causing a disturbance even if Mr Snashall could also be said to have created the disturbance; but on any view of the evidence, it is clear beyond reasonable doubt that the appellant, by initiating and pursuing the confrontation with Mr Snashall, created the disturbance which occurred on 3 February 2010.
CONCLUSION AND ORDERS
The appellant’s contentions should be rejected.
The appeal should be dismissed.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Keane and the Honourable Justices Jagot & Yates.
Associate:
Dated: 26 February 2013

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 541 of 2012

ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

BETWEEN:
TING LI
Appellant

AND:
CHIEF OF ARMY
Respondent

JUDGES:

KEANE CJ, DOWSETT, LOGAN, JAGOT & YATES JJ

DATE:

26 FEBRUARY 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT
DOWSETT J:
INTRODUCTION

On 8 April 2011, after a trial by restricted court martial, the appellant was convicted of the offence of creating a disturbance contrary to s 33 of the Defence Force Discipline Act 1982 (Cth) (the “DFDA”). No verdict was taken on an alternative charge of prejudicial conduct. The appellant appealed unsuccessfully to the Defence Force Discipline Appeal Tribunal (the “Tribunal”) and now appeals to this Court. Pursuant to s 52 of the Defence Force Discipline Appeals Act 1955 (Cth) (the “Appeals Act”), such an appeal must be “on a question of law involved in a decision of the Tribunal in respect of an appeal under this Act”.
Section 33 of the DFDA provides:
A person who is a defence member or a defence civilian is guilty of an offence if the person is on service land, in a service ship, service aircraft or service vehicle or in a public place and the person:
(a)assaults another person; or
(b)creates a disturbance or takes part in creating or continuing a disturbance; or
(c)within the view or hearing of another person, engages in conduct that is obscene; or
(d)uses insulting or provocative words to another person.
Maximum punishment: Imprisonment for 6 months.
The appellant was charged as follows:

First charge

Defence Force Discipline Act 1982
Creating a disturbance on service land

Being a Defence member at Defence Legal Division, Level 4 Campbell Park Offices on 3 February 2010 between approximately 1030 and 1100 hours, in the vicinity of the office of Mr Andrew Snashall created a disturbance by causing a confrontation with Mr Snashall.

Particulars:

(a)       refused to leave Mr Snashall’s office when requested to do so by Mr Snashall and continued speaking to Mr Snashall with a raised voice;

(b)       followed Mr Snashall and continued the conversation when Mr Snashall left his own office, ostensibly because MAJ Li would not;

(c)       forcefully pushed against Mr Snashall’s office door placing his head and shoulder in the doorway while Mr Snashall was inside the office trying to close the door;

(d)       re-entered Mr Snashall’s office and again refused to leave when requested to do so;

(e)       stood approximately three inches from Mr Snashall’s face speaking with a raised voice and in an agitated and aggressive manner.

Second charge (in the alternative to the First charge)

Defence Force Discipline Act 1982

subsection 60(1)

Prejudicial conduct

Being a Defence member at Defence Legal Division, Level 4 Campbell Park Offices on 3 February 2010 between approximately 1030 and 1100 hours acted in a manner likely to bring discredit on The Australian Army by causing a confrontation with Mr Andrew Snashell while wearing uniform.

Particulars:

(a)       refused to leave Mr Snashall’s office when requested to do so by Mr Snashall and continued speaking to Mr Snashall with a raised voice;

(b)       followed Mr Snashall and continued the conversation when Mr Snashall left his own office, ostensibly because MAJ Li would not;

(c)       forcefully pushed against Mr Snashall’s office door placing his head and shoulder in the doorway while Mr Snashall was inside the office trying to close the door;

(d)       re-entered Mr Snashall’s office and again refused to leave when requested to do so;

(e)       stood approximately three inches from Mr Snashall’s face speaking with a raised voice and in an agitated and aggressive manner.

Although the appellant raises numerous other criticisms of the proceedings at first instance and in the Tribunal, I propose to address only:
·the approach taken to the construction of s 33 of the DFDA;
·the particularization of the prosecution case; and
·the directions given as to these matters.
In all other respects I agree with the approach taken by Keane CJ and Jagot and Yates JJ whose draft reasons I have read. Their Honours have set out the evidence and principal statutory provisions, making it unnecessary that I do so. I have also read the reasons prepared by Logan J.
THE JUDGE ADVOCATE’S DIRECTIONS CONCERNING THE CHARGE
Concerning the offence of creating a disturbance, the Judge Advocate said, in his directions, that it contained three physical elements and three fault elements. He continued:
The first physical element is circumstance, that, at the time of the offence, the defendant was a defence member. For our own purposes, the fault is knowledge, but this particular element of the charge has been admitted.
The second physical element is circumstance, the offence occurred on service land. For our purposes the relevant fault element is knowledge of the facts which make it service land, and I will be explaining, shortly, what I mean by that.
The third physical element is conduct – that is, that the defendant engaged in conduct which created a disturbance, and the accompanying physical element is an intention, that is, he meant to engage in that conduct, not that he intended to create a disturbance, that he intended to engage in the conduct.
Let me say a little more about those elements before I go on to the second charge. Intention: a person has intention with respect to conduct if he means to engage in that conduct. “Creating a disturbance” is not a term or phrase that is defined in the [DFDA]. I can say that creating a disturbance includes brawling and violent or disorderly disputation.
Here, the prosecution case is that it involved violent or disorderly disputation. The conduct must be such as to be likely to cause a response from anyone present who saw or heard the incident; that response could be to intervene to stop the disturbance, or to report it, or to leave the area because of the unsettling effect of the disturbance. In other words, if you were working in an office and someone was playing loud music nearby, that might disturb you from your work but it wouldn’t be creating a disturbance within the meaning of the Act. There needs to be violent or disorderly disputation, as I say, and there needs to be conduct which must be such as to be likely to cause a response from anyone present who saw or heard the incident.
You must also be satisfied of the fault element, which is intention. That does not mean the prosecution has to prove the defendant intended to create a disturbance. The prosecution has to prove the accused intended to engage in the acts that amounted to a disturbance, if you find the conduct amounted to a disturbance.
To summarize, has the prosecution proved that the accused engaged in conduct that amounted to a disturbance? If yes, did he intend to engage in that conduct? As I said, the prosecution does not have to prove that the accused set out to create a disturbance; the prosecution has to prove that the conduct of the accused was such as to create a disturbance and he intended to engage in that conduct.
Defence counsel asked the Judge Advocate to direct the panel that it was no part of creating a disturbance that the relevant conduct be likely to cause a response from a bystander. The Judge Advocate refused to do so, observing that:
As to the first submitted misdirection, that direction was based partly upon a decision of the [Tribunal], in Anning, and the s 154 Report of Foster and Hannaford by the Deputy Judge Advocate General – Navy, CDRE Taylor. In that s 154 Report – it’s Foster & Hannaford and the report is dated 30 November 2003, the DJAG referred to Anning and the history of the section. Anning was concerned with a different limb of s 33 but the Court went into the history of s 33, as did the DJAG. He referred to dictionary definitions and he said, at para 9:
“Anning’s case makes it clear that the conduct must be such as likely to excite an overt response from anyone present who heard and saw the incident.”
That being so, I am of the opinion that there was no misdirection in respect of that part of my charge to the panel.
It may seem odd that defence counsel should have sought such a redirection. Its presence in the Judge Advocate’s charge made its overall effect more favourable to the appellant than it would have been, absent such direction. The effect was to limit the conduct which could engage the provisions of s 33(b). However defence counsel’s position was that the panel should have been directed that the prosecution had to prove that the appellant was reckless as to whether his conduct might create a disturbance. The notices of appeal to the Tribunal and to this Court also seem to suggest that the Judge Advocate ought to have directed the panel that the prosecution had to prove that the appellant intended to create a disturbance. Either direction would also have had the effect of limiting the circumstances in which the appellant could be convicted.
THE DECISION IN ANNING
The reference to Anning is to a decision of the Tribunal in Re an Appeal against the Conviction of Anning (No DFDAT 5 of 1989). In that case a defence member was charged with using provocative words contrary to s 33(d) of the DFDA. The passage cited by the Judge Advocate in the present case concerned the meaning of the word “provocative”, and the directions given by the Defence Force Magistrate to himself in connection with such meaning. As to those directions the Tribunal said at pp 7-9:
The Defence Force Magistrate ruled that the word “provocative” should be taken in its ordinary sense, adding that the context in which the word is used in the legislation is to be considered. He rejected the view that it should only be given a meaning such as “exciting anger or violence” or “causing disturbance” and directed himself that the word should be construed “in the ordinary general way along the lines of the Concise Oxford Dictionary definitions cited to [him] namely “tending to cause provocation (of curiosity, anger, lust, etc, intentionally annoying)”. He continued:
“Provocation is defined as “incitement, especially to anger etc, instigation, irritation, cause of annoyance”. I think that the words and their context have to be considered, of course. The tendency to provoke is not to be measured in terms solely of the effect which words have on a recipient or an addressee although any such effects are a relevant consideration.”
In our view, this contained a misdirection. The section is derived from s 13 of the Naval Defence Act 1910, the previous service law applicable to the Navy. There was no corresponding Army or Air Force offence. That section provided:
“Every person subject to this Act who –
(a)fights or quarrels with any other person whether subject to this Act or not: or
(b)uses threatening, abusive, insulting or provocative words or behaviour likely to cause a disturbance,
shall be liable to imprisonment for a term not exceeding two years or any less punishment authorized by this Act.
The effect of the enactment of s 33 in the [DFDA] is to extend the liability to conviction for such an offence to the whole of the Defence Force, to define with more precision the conduct formally embraced by the wide terms “fighting” and “quarrelling” and to confine the ambit of the offences to service land, and public places. The omission of the reference to threatening or abusive words, and to “behaviour likely to cause a disturbance”, does not in our view alter the essential character of the conduct the section is designed to prohibit. That character is indicated by the context in which the section appears and by a consideration of the kind of behaviour specifically mentioned, namely assaults, actual disturbances, behaviour within the view or hearing of another person which is offensive to ordinary standards of propriety to a degree more marked then is conveyed by the expression “indecent” … and using insulting words to another. The behaviour described in paras (a) and (b) of the section connotes actual force or disturbance while that contemplated by paras (c) and (d) is of a kind likely to cause others to take offence in such a way that the use of force violence or the creation of disturbance might reasonably be expected to ensue.
The words complained of in the circumstances found by the Defence Force Magistrate could not reasonably be said, in our view, to have had that character. Tasteless, embarrassing and offensive though the remark was, it could not reasonably have been interpreted in the circumstances as a threat by the appellant of any immediate action. Nor could it be said that it was likely to excite any overt response amounting to a disturbance to anyone present who heard it. Though the words were such that they should have prompted an immediate rebuke ... and might well have led to some protest from the two WRANs, they could not be said to be provocative within the meaning of s 33 of the Act.
In Anning the Tribunal distinguished between the kind of conduct identified in ss 33(a) and (b) and that identified in ss 33(c) and (d) on the basis that ss 33(a) and (b) deal with actual assault or the creation of an actual disturbance, whilst ss 33(c) and (d) deal with conduct which might provoke other persons to assault or to create a disturbance. The decision is not authority for the proposition that, for the purposes of s 33(b), conduct which causes a disturbance must be likely to produce a response from a bystander, nor does the wording of s 33(b) suggest such an approach. In Anning the Tribunal appears to have decided simply that in s 33(d), the word “provocative” means “likely to produce violence or the creation of disturbance”, and not merely to cause “irritation” or “annoyance”, as suggested by the Defence Force Magistrate. In my view Anning’s only relevance for present purposes is that it suggests that the offence of creating a disturbance must involve an actual disturbance.
CONSTRUCTION OF S 33
Chapter 2 of the Criminal Code Act 1995 (Cth) (the “Criminal Code”) prescribes the principles of criminal responsibility for offences created under Commonwealth law. Section 3.1 provides that each offence consists of physical elements and fault elements. Section 4.1 provides that a physical element may be conduct, a result of conduct or a circumstance in which conduct, or a result of conduct occurs. For present purposes “conduct” means an “act”. Fault elements attach to physical elements, but laws creating offences may provide that a particular physical element has no fault element, or that there be different fault elements for different physical elements. Section 4.2 provides:
(1)Conduct can only be a physical element if it is voluntary.
(2)Conduct is only voluntary if it is a product of the will of the person whose conduct it is.
(3)The following are examples of conduct that is not voluntary:
(a)a spasm, convulsion or other unwilled bodily movement;
(b)an act performed during sleep or unconsciousness;
(c)an act performed during impaired consciousness depriving the person of the will to act.
(4)An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing.
(5)If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.
(6)Evidence of self-induced intoxication cannot be considered in determining whether conduct is voluntary.
(7)intoxication is self-induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.

In examining what constituted a “disturbance” the tribunal also referred to Brooker v The Police [2007] 3 NZLR 91 (Brooker) but this was a case concerning the offence of engaging in disorderly behaviour contrary to s 4(1)(a) of the Summary Offences Act 1981 (NZ), an enactment which, like s 7(1) of the Vagrants, Gaming and Other Offences Act 1931 (Qld), omitted as an element a breach of the peace. It was true of Brooker, as the tribunal, at [70] observed, that:
The Supreme Court concluded, by a majority, that the conduct in question was not disorderly because it could not be characterised as disruptive of public order in the particular circumstances of time and place. There had to be anxiety or disturbance beyond what reasonable citizens should, in the circumstances, be expected to bear.
Assuming though that “disturbance” is to be regarded as a term used to connote what at common law is a breach of the peace, it was apt to mislead as to what constituted a breach of the peace to regard Brooker as of assistance, because the Supreme Court of New Zealand was there giving meaning to a statute which had deliberately excluded a breach of the peace as an element of the offence created.
Accepting as I do the formulations of Lords Brown and Mance respectively in Laporte, a breach of the peace is some form of actual harm done to a person or his or her property in that person’s presence or some other form of violent disorder. There is a difference, blurred by conflation in many formulations, between a breach of the peace and an apprehended breach of the peace.
Such conflation is evident in the direction given to the court martial by the judge advocate, quoted at [65] of the tribunal’s reasons and apparently regarded by the tribunal as correct:
Here, the prosecution case is that it involved violent or disorderly disputation. The conduct must be such as to be likely to cause a response from anyone present who saw or heard the incident; that response could be to intervene to stop the disturbance, or to report it, or to leave the area because of the unsettling effect of the disturbance. In other words, if you were working in an office and someone was playing loud music nearby, that might disturb you from your work but it wouldn’t be creating a disturbance within the meaning of the Act. There needs to be violent or disorderly disputation, as I say, and there needs to be conduct which must be such as to be likely to cause a response from anyone present who saw or heard the incident.
[Emphasis added]
Further, the observation in Lohnes that a breach of the peace “may consist in something as small as being distracted from one's work”, with respect, seriously understates the conduct which must be entailed.
Once the meaning of breach of the peace is understood, context also supports affording “disturbance” a meaning commensurate with a breach of the peace. The use of insulting or provocative words is made a separate offence by s 33(d) of the DFDA; so, too, by s 33(a), is the actual commission of an assault on another person. In some circumstances, but not invariably, there may be an overlap between conduct caught by s 33(a) and conduct caught by s 33(d). A person may intend to assault another but not to create a disturbance. Indeed, the assault may occur in circumstances which could never amount to a disturbance, intended or otherwise. Yet further, given that a disturbance may entail harm to property, not a person, a defence member might for that reason engage in conduct which amounted to the creation of a disturbance without assaulting anyone. That there may be an overlap in some circumstances is no warrant for violating defence members the benefit of the principles discussed above. The heading of the Division in which s 33 of the DFDA appears, which forms part of that Act (s 13 of the Acts Interpretation Act), is “Insubordination and violence”. Given the use there of the word, “violence”, to afford “disturbance” the meaning of a breach of the peace is in harmony with this divisional heading and with the other paragraphs of s 33.
Thus, while I accept that the evidence before the tribunal did, according to the formulation in Lohnes, “fit comfortably” within the meaning of “disturbance” as explained in that case, that explanation does not correctly state the meaning of that term as it appears in s 33(b) of the DFDA. As that term is correctly to be construed, the evidence before the court martial did not, even taken at its highest, demonstrate that Major Li had created a “disturbance”. There was no actual harm to any person or property. It follows from this that the tribunal was bound to conclude that his conviction in respect of an offence against s 33(b) was wrong in law and that a substantial miscarriage of justice had occurred.
Even if, contrary to my conclusion, the evidence did disclose the creation of a breach of the peace, there are other reasons, related to the directions given by the judge advocate with respect to the fault element in the offence of creating a disturbance and with respect to the particulars, why the tribunal ought to have concluded that Major Li’s conviction was wrong in law and that a substantial miscarriage of justice had occurred.
As mentioned above, the physical elements of the offence created by s 33(b) of the DFDA are evident on the face of the provision. They are firstly and materially the creation of a disturbance and secondly, and presently immaterially, that the disturbance created be on service land etc or in a public place. It was uncontroversial that the location was “service land”.
“Conduct” is defined by s 4.1 of the Criminal Code to mean, materially, an “act”. In s 33(b), the creation of the disturbance is the “act”: see, by analogy, R vSaengsai-Or (2004) 61 NSWLR 135 at [72] per Bell J, Wood CJ at CL, Simpson J agreeing (Saengsai-Or). That means that, in terms of s 4.1(1)(a) of the Criminal Code, it is the conduct to which s 33(b) of the DFDA is directed. A “disturbance” may be said to be the result of conduct, but that does not engage s 4.1(1)(b) of the Criminal Code, because that ignores the requirement in s 33(b) that the offender must “create” the disturbance.
The fault element is not specified in s 33(b) of the DFDA itself. The relevant physical element of the service offence created by that provision consists only of conduct namely, the creation of a disturbance. In those circumstances, the effect of s 5.6(1) of the Criminal Code is that intention is the fault element for that physical element: Saengsai-Or at [72]. Once again, because that physical element of this service offence does not consist solely of a circumstance or a result (the disturbance) but also entails the creation of the same by the offender, recklessness cannot be the fault element for that physical element. Major Li’s submission to the contrary should be rejected. It does not follow from that conclusion that the summing up did not lead to a miscarriage of justice.
Materially, the judge advocate directed the court martial:
You must also be satisfied of the fault element, which is intention. That does not mean the prosecution has to prove the defendant intended to create a disturbance. The prosecution has to prove the accused intended to engage in the act that amounted to a disturbance if you find the conduct amounted to a disturbance.
[Emphasis added]
The words emphasised misstated the position. That is because it was incumbent on the prosecution to prove beyond reasonable doubt that Major Li intended to create a disturbance. By virtue of s 5.2 of the Criminal Code, a person has intention with respect to conduct constituting a physical element if he or she means to engage in that conduct as specified in the provision creating the offence: see, by analogy, PJ v R [2012] VSCA 146 at [85]. More particularly, in X v Australian Prudential Regulation Authority (2007) 232 ALR 421 at [51] (X v APRA), Gleeson CJ, Gummow, Hayne, Heydon, Callinan and Crennan JJ stated:
A person has intention with respect to conduct if he or she "means to engage in that conduct" (Criminal Code, s 5.2(1)). When this is applied to s 6O of the Royal Commissions Act, the upshot is consistent with the construction of s 6O in its earlier form by Davies J in R v O'Dea. His Honour adopted what had been said by Isaacs and Rich JJ in Bell v Stewart:
"It is clear to our minds that the word 'wilfully' does more than negative 'accidentally' or 'unconsciously'. The Legislature was, of course, not simply excluding acts done in sleep or hypnosis or under compulsion. To speak of a person 'wilfully insulting or disturbing the Court' means that he intended to insult or disturb the Court, and not in the sense that his volition impelled the word or the act, but that his purpose was that his word or his act should have the effect of conveying the insult or causing the disturbance. And similarly with all the matters governed by the word 'wilfully'."
[Footnote references omitted - emphasis added]
Having regard to this passage from X v APRA and especially to the portion emphasised, it must follow that, to commit the service offence, even on the more general view of the meaning of the word “disturbance”, Major Li had not only to intend to undertake the conduct particularised but also to intend that those actions would have the quality of disturbing others. It is that intention which is the fault element for that physical element. It was not sufficient, because s 5.2(3) was not applicable, that the prosecution proved either that he meant to bring about the disturbance or was aware that it would occur in the ordinary course of events.
It was not by reason of a failure on the part of the judge advocate, derived from disturbance being a “result” in terms of 5.2(3) of the Criminal Code, to direct on recklessness that any error lay in the tribunal’s decision. Instead, the relevant conduct, creating a disturbance, occasioned a requirement to give a direction as to intention. For the reasons given, this was where the error lay. The adequacy of the direction given to the court martial with respect to the fault element was an issue before the tribunal. It is also a question of law involved in the appeal. As a result of this misdirection described, the requisite fault element never came to be considered by the court martial. Major Li was thereby deprived of a “fair chance of an acquittal”: Jones v Chief of Navy (2012) 205 FCR 458 at [54]. The result was a substantial miscarriage of justice.
The direction given by the judge advocate with respect to the so-called particulars of the charge is set out at [59] of the tribunal’s decision:
… [The] defendant is entitled to know how it is said that he created a disturbance. The prosecution has provided particulars of that. You do not need to be satisfied beyond reasonable doubt that each of the particulars has been proved. What you are required to find is, having regard to the particulars, has the prosecution proved beyond reasonable doubt that the accused created a disturbance by conduct that he intended to engage in at that time. It may be you are satisfied that the accused did behave in the way set out in particular ... but not any other particular.
The question then is, are you satisfied beyond reasonable doubt that the accused created a disturbance by that conduct and that he intended to engage in that conduct at that time.
[Emphasis added]
As they came to be amended, the “particulars” of the charge were given in this way. It was alleged that Major Li had:
(a)refused to leave Mr Snashall’s office when requested to do so by Mr Snashall and continued speaking to Mr Snashall with a raised voice;
(b)followed Mr Snashall and continued the conversation when Mr Snashall left his own office, ostensibly because MAJ Li would not;
(c)forcefully pushed against Mr Snashall’s office door placing his head and shoulder in the doorway while Mr Snashall was inside the office trying to close the door;
(d)re-entered Mr Snashall’s office and again refused to leave when requested to do so;
(e)stood approximately three inches from Mr Snashall’s face speaking with a raised voice and in an agitated and aggressive manner.
In terms of r 9(2)(b) of the Court Martial and Defence Force Magistrate Rules, the words “by causing a confrontation with Mr Snashall”, which appeared in the statement of the charge, ought instead to have been specified as particulars of what constituted the creation of the disturbance alleged in the statement of the charge. The way the charge was drafted and particularised did not violate the basal requirement that a defendant “is entitled to be appraised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge”: Johnson v Miller (1937) 59 CLR 467 at 489 per Dixon J; see also to like effect Evatt J at 497 and McTiernan J at 501. The charge made against Major Li did specify an offence known to law, that of creating a disturbance contrary to s 33(b) of the DFDA. It is just that the way particularity was given to what constituted the disturbance concerned was the result of infelicitous drafting.
Though the way in which the charge and so-called particulars were drafted did not in itself give rise to any miscarriage of justice, much less a substantial one, it did create the potential for one arising from what was said of them in the summing up. Having regard to words emphasised in the direction given by the judge advocate, this potential was realised in this case.
The drafter of the charge used neither the conjunctive nor the disjunctive in what were termed the “particulars”. These “particulars” were descriptive of the “confrontation” which constituted the “disturbance” allegedly created by Major Li.
The tribunal correctly concluded that the charge was not duplex. I respectfully agree with the tribunal’s observation (at [51]) that, “[t]he charge of creating a disturbance can be established by proof of a series of acts which constitute a course of conduct.” Having regard to the conclusion which I have reached as to the meaning of the word “disturbance” as used in s 33(b) of the DFDA, it does not follow from this that I agree with the tribunal’s further statement (also at [51]) that, “[a] person may, for example, cause a disturbance by shouting, banging on walls and by playing amplified music at the same time.” Even considered as a course of conduct this example would not, in law, amount to such a “disturbance”.
The series of acts constituting the course of conduct which allegedly amounted to the creation of a disturbance was the series of acts specified in the so-called particulars. No one act was alleged, in itself, to constitute the creation of a disturbance.
This was not an offence such as those created by s 56 and s 57 of the DFDA where the physical element of making a false statement might permissibly be alleged and particularised as the making of a statement false in one or more of a number of particularised ways. In those circumstances, the proof of any one or more of those alleged falsehoods would prove that the statement made was false. The allegation that the statement was false in more than one way could not give rise to any complaint of duplicity, because the physical element charged would be the making of but one statement. If the prosecution proved neither alleged falsehood in the statement made the accused would have to be acquitted.
The issue is not whether as a matter of practice it is necessary that the prosecution prove the particulars furnished by him or any of them. The issue is the adequacy of the summing up by reference to those particulars as to conduct which would constitute the creation of a disturbance.
The relevant physical element was the creation of but one alleged disturbance. Even on the more general definition of what constitutes a “disturbance”, proof of but one or some of the “particulars” of this charge could not constitute the offence. For Major Li to have “followed Mr Snashall and continued the conversation when Mr Snashall left his own office, ostensibly because MAJ Li would not” (particular (b)) could not in law have been to create even that generalised kind of disturbance, much less a breach of the peace. The same may be said of particular (c) “re-entered Mr Snashall’s office and again refused to leave when requested to do so”.
These so-called particulars were meant to be read conjunctively as a more detailed description of the confrontation constituting the disturbance allegedly created by Major Li. That is the way in which the prosecution case was conducted. That is not, having regard to the excerpt from the judge advocate’s directions which I have set out above, the way in which the prosecution case was left to the court martial. As it stands, some members might, in conformity with the judge advocate’s direction, have considered it sufficient if but one of the particulars was proved beyond reasonable doubt, ie that such conduct alone would have been sufficient to constitute the creation of a disturbance. Further, adopting this approach, one member may have considered that the offence constituted by a certain particular was so proved and other members may have considered that it was so proved but only as constituted by a different particular or particulars.
The grounds of appeal before the tribunal included the following:
1(h)The charge upon which the appellant was convicted was not the subject of any direction to the Restricted Court Martial as to the burden and onus of proving the nature of the alleged offence “by causing a confrontation”;
1(i)the charge upon which the appellant was convicted was the subject of an erroneous direction as to the meaning of disturbance;
[emphasis in original]
These were, in my respectful opinion, sufficient to raise the issue, derived from what was said as to the particulars in the judge advocate’s summing up, which came to be raised on the appeal. The direction was wrong in law and the result was a substantial miscarriage of justice.
It was not put to the tribunal that, even if Major Li’s appeal in respect of the offence of creating a disturbance contrary to s 33(b) of the DFDA succeeded such that his conviction for that offence should be quashed, a conviction for another service offence, for example prejudicial conduct contrary to s 60 of the DFDA, should be substituted under s 26 of the Defence Force Discipline Appeals Act 1955 (Cth) (DFDAT Act). Nor on the hearing of the appeal was any submission put on behalf of the respondent Chief of Army that, even in the absence of such an order having been sought from the tribunal, it was nonetheless both permissible and appropriate, having regard to the breadth of power conferred on the Court by s 52 of the DFDAT Act to make such an order. It would not be possible in these circumstances for Major Li again to be tried in respect of the alternative charge.
In these circumstances, the orders which I would make are that:
1.the appeal be allowed, with costs;
2.save to the extent that it granted leave to appeal, the order of the tribunal made on 16 March 2012 dismissing the appeal be set aside; and
3.in lieu of that order, it be ordered that the appellant’s appeal be allowed and his conviction in respect of the offence of creating a disturbance on service land on 3 February 2010 contrary to s 33(b) of the Defence Force Discipline Act 1982 (Cth) be quashed; and
4.liberty be reserved to the appellant to apply for an order that the Commonwealth pay his costs either in the tribunal or in respect of his defence to the charge before the court martial in the event that either or each such costs have not been met at public expense (unless in agreeing to meet such costs the Commonwealth expressly reserved to the appellant liberty to make application for costs).
I desire to add that, since preparing my reasons for judgment, I have also had the advantage of reading the judgement prepared by Dowsett J. Save that Dowsett J and I differ as to what constitutes a “disturbance”, I otherwise agree with his Honour’s reasoning under the heading, “One or two physical elements” for his conclusion (para 122) that the fault element was the intention to create a disturbance. I regard that reasoning as consistent with my own reasoning (paras 169 to 200 above) by which I reached that same conclusion, including, in particular, the reasoning evident in the passage quoted from X v APRA. I agree, too, with his Honour’s closing observation (para 137) that, if contrary to this conclusion, intention was not the fault element but recklessness was, this was never, as it ought in that circumstance to have been, put to the court martial in which case this amounted to a substantial miscarriage of justice.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.
Associate:
Dated: 26 February 2013

Citation:		Li v Chief of Army [2013] FCAFC 20
Appeal from:		Li v Chief of Army (2012) 261 FLR 226
Parties:		TING LI v CHIEF OF ARMY
File number:		NSD 541 of 2012
Judges:		KEANE CJ, DOWSETT, LOGAN, JAGOT & YATES JJ
Date of judgment:		26 February 2013
Catchwords:		CRIMINAL LAW – court martial – restricted court martial – creating a disturbance – whether intention to commit disturbance required – meaning of “disturbance” – whether alternative charges available other than under Defence Force Discipline Act 1982 (Cth) – Criminal Code Act 1995 (Cth), Sch, ss 3.2, 4, Division 5 – Defence Force Discipline Act 1982 (Cth), ss 3, 20, 26, 33(b).
DEFENCE AND WAR – court martial – restricted court martial – creating a disturbance – whether intention to commit disturbance required – meaning of “disturbance” –Criminal Code Act 1995 (Cth), Sch, ss 4.1, 5.2, 5.6 – Defence Force Discipline Act 1982 (Cth), ss 3, 20, 26, 33(b).
HUMAN RIGHTS – discrimination – racial discrimination – whether person has consequential right to confront and protest another person who has allegedly engaged in racial discrimination –Racial Discrimination Act 1975 (Cth), s 18C.
Legislation:		Acts Interpretation Act 1901 (Cth) ss 13, 15AA Court Martial and Defence Force Magistrate Rules (Cth) r 9(2)(b) Criminal Code Act 1995 (Cth), ss 3, 4, 55 & Division 5 Defence Act 1903 (Cth) s 9A Defence Force Discipline Act 1982 (Cth) ss 3, 20, 26, 33, 52, 56, 57, 60 Defence Force Discipline Appeals Act 1955 (Cth) ss 4.2, 5.2, 5.6, 23, 26, 52 Defence Legislation (Application of Criminal Code) Act 2001 (Cth) Naval Defence Act 1910 (Cth) Racial Discrimination Act 1995 (Cth), s 18C Police Offences Act 1935 (Tas) ss 15, 15B Summary Offences Act (NT) s 47 Vagrants, Gaming and Other Offences Act 1931 (Qld) s 7 Armed Forces Act 2006 (UK) s 21 Courts-Martial (Appeals) Act 1951 Naval Discipline Act 1661 s 22 Naval Discipline Act 1957 Criminal Code 1985 (Canada) ss 55, 175 Summary Offences Act 1981 (NZ) s 4
Cases cited:		Addison v Chief Constable of the West Midlands Police [2004] 1 WLR 29 considered Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 cited Brooker v The Police [2007] 3 NZLR 91 considered Burdett v Abbot (1812) 4 Taunt 401 considered Coco v The Queen (1994) 179 CLR 427 applied Coleman v Power (2004) 220 CLR 1 considered Groves v The Commonwealth (1982) 150 CLR 113 cited Hembury v Chief of General Staff (1998) 193 CLR 641 applied Johnson v Miller (1937) 59 CLR 467 cited Jones v Chief of Navy (2012) 205 FCR 458 cited KBT v The Queen (KBT) (1997) 191 CLR 417 distinguished Kuru v New South Wales (2008) 236 CLR 1 considered Li v Chief of Army (2012) 261 FLR 226 referred to McLeod v United Kingdom (1998) 27 EHRR 493 considered Neave v Ryan [1958] Tas SR 58 considered Nilsson v McDonald (2009) 19 Tas R 173 considered Percy v Director of Public Prosecutions [1995] 1 WLR 1382 considered PJ v R [2012] VSCA 146 cited R (Laporte) v Chief Constable of Gloucestershire Constabulary (2007) 2 AC 105 cited R v Chief Constable of Devon and Cornwall; ex parte Central Electricity Generating Board [1982] QB 458 considered R v Howell [1982] QB 416 considered R v Lohnes [1992] 1 SCR 167 considered R v Saengsai-Or (2004) 61 NSWLR 135 approved R v The Justices of Clifton; ex parte McGovern [1903] St R Qd 177 cited R v Wei Tang (2008) 237 CLR 1 approved Re an Appeal against the Conviction of Anning (No DFDAT 5 of 1989) considered Re Pong Su (No 10)(2005) 154 A Crim R 19 approved Re Tracey; ex parte Ryan (1989) 166 CLR 518 cited Steel v United Kingdom (1998) 28 EHRR 603 considered Stoke-Graham v R (1985) 16 DLR (4^th) 321 considered Tully v The Queen (2006) 230 CLR 234 cited Williams v Pinnuck (1983) 68 FLR 303 considered X v Australian Prudential Regulation Authority (2007) 226 CLR 630 cited New Shorter Oxford English Dictionary (Clarendon Press, 1993)
Date of hearing:	13 November 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	216
Counsel for the Appellant:	A. W. Street S.C. and P. Kerr
Solicitor for the Appellant:	Wyatt Attorneys
Counsel for the Respondent:	S. Lloyd S.C. and S. Callan
Solicitor for the Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 541 of 2012

BETWEEN:	TING LI Appellant
AND:	CHIEF OF ARMY Respondent

JUDGES:	KEANE CJ, DOWSETT, LOGAN, JAGOT & YATES JJ
DATE OF ORDER:	26 FEBRUARY 2013
WHERE MADE:	SYDNEY

JUDGES:	KEANE CJ, DOWSETT, LOGAN, JAGOT & YATES JJ
DATE:	26 FEBRUARY 2013
PLACE:	SYDNEY