Li v Chief of Army

The High Court of Australia heard an appeal concerning the discipline of military personnel, specifically the offence of creating a disturbance on service land. The appellant, Major Li, sought to challenge his conviction for this offence, which had been upheld by the Defence Force Discipline Appeal Tribunal. The Chief of Army was the respondent in the proceedings.

The central legal issues before the High Court were whether the judge advocate at the court martial had misdirected the tribunal on a critical element of the offence, and whether this misdirection gave rise to a substantial miscarriage of justice. The court was required to consider the meaning of "creating a disturbance" and the fault elements associated with it, particularly whether violence or a threat of violence was a necessary component of a "disturbance" and whether "creating" a disturbance involved one or two physical elements.

The High Court found that the judge advocate's direction to the court martial had indeed involved a material error of law by treating a critical fault element – recklessness as to the result of intentional acts – as irrelevant. The Court held that the language of the "substantial miscarriage of justice" provision in the Defence Force Discipline Appeals Act 1955 (Cth) did not require the same stringent approach as the common law criminal proviso. It was sufficient that there was a real risk that the court martial's finding of guilt was influenced by the misdirection. Consequently, the High Court allowed the appeal, quashed Major Li's conviction, and remitted the matter to the Defence Force Discipline Appeal Tribunal for further orders.