Low v Chief of Navy - [2011] ADFDAT 3

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Low v Chief of Navy [2011] ADFDAT 3

Citation: Low v Chief of Navy [2011] ADFDAT 3

Appeal from: Restricted Court Martial

Parties: JASON GEORGE LOW v CHIEF OF NAVY

File number: DFDAT 1 of 2011

Judges: TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & MILDREN J - MEMBER

Date of judgment: 21 November 2011

Catchwords: MILITARY LAW – whether Court Martial could be satisfied beyond reasonable doubt offence had occurred – whether conviction unsafe or unsatisfactory – whether substantial miscarriage of justice had occurred – refusal of application to sever pleas – unfairness – warning about credibility of complainant’s evidence

Legislation: Crimes Act 1914 (Cth) s 90B
Crimes Act 1900 (ACT) s 60
Defence Force Discipline Act 1982 (Cth) ss 32, 33, 60, 61, 132, 141
Defence Force Discipline Appeals Act 1955 (Cth) ss 20, 23
Evidence Act 1995 (Cth) ss 66, 128, 135, 137, 164, 165

Cases cited: Bullen (1998) 102 A Crim R 74 cited, compared
De Jesus v The Queen (1986) 61 ALJR 1 considered, compared
HML v The Queen (2008) 235 CLR 334 cited, applied
KRM v The Queen (2001) 206 CLR 221 cited
M v The Queen (1994) 181 CLR 487 applied
MFA v The Queen (2002) 213 CLR 606 applied
Papakosmas v The Queen (1999) 196 CLR 297 applied
R v BD (1997) 94 A Crim R 131 referred to
R v CHS (2006) 159 A Crim R 560 cited
R v Ditroia & Tucci [1981] VR 247 cited
SKA v R (2011) 276 ALR 423 cited
Stirland v DPP [1944] AC 315 cited
Sutton v The Queen (1984) 152 CLR 528 cited

Date of hearing: 16 September 2011

Place: Melbourne (heard in Cairns)

Number of paragraphs: 99

Counsel for the Appellant: Mr A Street SC and Mr P Hogan

Solicitor for the Appellant: Wyatt Attorneys

Counsel for the Respondent: Mr J Harris SC & LEUT M Hay

Solicitor for the Respondent: Office of Director of Military Prosecutions

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 1 of 2011

ON APPEAL FROM RESTRICTED COURT MARTIAL

BETWEEN:
JASON GEORGE LOW
Appellant

AND:
CHIEF OF NAVY
Respondent

JUDGES:

TRACEY, WHITE & MILDREN JJ

DATE OF ORDER:

21 NOVEMBER 2011

WHERE MADE:

MELBOURNE (HEARD IN CAIRNS)

THE TRIBUNAL ORDERS THAT:
1. Leave to appeal with respect to Ground 5 be granted.
2.The appeal be dismissed.

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 1 of 2011

ON APPEAL FROM RESTRICTED COURT MARTIAL

BETWEEN:
JASON GEORGE LOW
Appellant

AND:
CHIEF OF NAVY
Respondent

JUDGES:

TRACEY, WHITE & MILDREN JJ

DATE:

21 NOVEMBER 2011

PLACE:

MELBOURNE (HEARD IN CAIRNS)

REASONS FOR JUDGMENT
INTRODUCTION

The appellant, PO Low, was at all material times a Defence member posted to HS White Crew, which, in February 2010, was assigned to HMAS Leeuwin. In February 2010, HMAS Leeuwin was conducting surveys of the waters around Papua New Guinea. On 21 February 2010, HMAS Leeuwin was alongside at Rabaul. The appellant was given shore leave, and was due to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] ADFDAT 3
Decision Date: 21 November 2011

CaseChat Overview and Summary

The applicants in this case were members of the Australian Defence Force subject to a court martial. They were convicted of various offences including indecent assault, deprivation of liberty, and conduct to the prejudice of good order and discipline. The applicants sought to appeal their convictions on several grounds, including that the Court Martial was not satisfied beyond reasonable doubt that the offences occurred, that the convictions were unsafe or unsatisfactory, and that there was a substantial miscarriage of justice. They also argued that the refusal to sever pleas was unfair and that the trial judge failed to warn the jury about the credibility of the complainant's evidence.

The court examined whether the jury was satisfied beyond reasonable doubt that the offences occurred. It was established that the jury was required to be satisfied beyond reasonable doubt of the applicants' guilt. However, the court found that the jury's verdicts were open on the evidence, and there was no error in the trial judge's directions to the jury. The court also considered whether the convictions were unsafe or unsatisfactory and whether there was a substantial miscarriage of justice. It was determined that there was no basis to conclude that the convictions were unsafe or unsatisfactory, and no substantial miscarriage of justice had occurred. The court further examined the refusal to sever pleas and found that it was not unfair, as the applicants had not demonstrated how the joinder of the charges caused them prejudice. Finally, the court found that the trial judge did not err in failing to warn the jury about the credibility of the complainant's evidence.

The court dismissed the applicants' appeal against conviction and sentence. It found that the trial judge's directions to the jury were appropriate, and the jury's verdicts were open on the evidence. The court also held that there was no substantial miscarriage of justice, and the refusal to sever pleas was not unfair. Finally, the court determined that the trial judge did not err in failing to warn the jury about the credibility of the complainant's evidence. The applicants' appeal was therefore dismissed in its entirety.

Orders