Randall v Chief of Army - [2018] ADFDAT 3

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Randall v Chief of Army [2018] ADFDAT 3

Appeal from: Restricted Court Martial

File number: DFDAT 4 of 2017

Members: TRACEY (PRESIDENT), LOGAN (DEPUTY PRESIDENT) AND HILEY (MEMBER) JJ

Date of decision: 10 July 2018

Catchwords:
DEFENCE AND WAR – application for extension of time to appeal – application for leave to appeal against convictions by Restricted Court Martial – unauthorised access to restricted data – Defence Force Discipline Act 1982 (Cth) s 61(3), Criminal Code (Cth) s 478.1 – related alternative prejudicial conduct charges – Defence Force Discipline Act 1982 (Cth) s 60 – obligation of prosecution to prove absence of access authority beyond reasonable doubt – conclusion of panel as to proof of absence of authority on the evidence unsafe and unable to be supported – convictions quashed

EVIDENCE – proceeding for service offence before service tribunal – proof of absence of authority for conduct charge – general service knowledge – Defence Force Discipline Act 1982 (Cth) s 147 – cannot be used to contradict authority conferred by service instructions and explained in duty statements

Legislation:
Criminal Code (Cth) ss 6.1, 6.1(1)(a), 6.1(b), 6.1(2), 6.1(3), 13.1-13.5, 13.2(1), 13.2(2), 476.1, 476.2, 476.2(2), 478.1, 478.1(1), Ch 2

Defence Force Discipline Act 1982 (Cth) ss 3, 10, 60, 60(1), 61, 61(3), 61(6), 147, 154

Defence Force Discipline Appeals Act 1955 (Cth) ss 21, 23, 23(1)(a), 23(1)(d)

Army Act 1881 (UK), 44 & 45 Vict, c 58

Army Discipline and Regulation Act 1879 (UK), 42 & 43 Vict, c 33

Naval Discipline Act 1957 (UK), 5 & 6 Eliz 2, c 53, s 58(2)

Rules of Procedure 1947 (UK)

Rules of Procedure 1907 (UK) r 74

Cases cited:
Attorney General’s Reference No 4 of 2002; Sheldrake v Director of Public Prosecutions [2005] 1 AC 264

Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477

Fulton v Chief of Army [2005] ADFDAT 1

Komljenovic v Chief of Navy (2017) 319 FLR 215; [2017] ADFDAT 4

Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20

Li v Chief of Army (2013) 250 CLR 328; [2013] HCA 49

M v The Queen (1994) 181 CLR 487

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34

Nigerian Air Force v Obiosa (2003) 4 NWLR (pt 810) 233; (2003) 1 NILR 311

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Re Manion’s Appeal (1962) 9 FLR 91

Sorby v Commonwealth (1983) 152 CLR 281

Woolmington v Director of Public Prosecutions [1935] AC 462

Date of hearing: 26 and 27 April 2018

Date of last submissions: 9 May 2018

Place: Brisbane

Category: Catchwords

Number of paragraphs: 121

Counsel for the Appellant: R Pearce

Solicitor for the Appellant: Salerno Law

Counsel for the Respondent: R Cawte with H Dempsey

Solicitor for the Respondent: Office of the Director of Military Prosecutions

ORDERS

DFDAT 4 of 2017

BETWEEN:
PETER…

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: [2018] ADFDAT 3
Decision Date: 10 July 2018

CaseChat Overview and Summary

In the matter of Randall versus the Chief of Army, the Federal Court was tasked with assessing an application for an extension of time to appeal against the convictions rendered by a Restricted Court Martial. The appellant, Randall, was charged with unauthorised access to restricted data and faced related alternative prejudicial conduct charges. The Court was required to determine whether the convictions could stand given the evidence presented and whether the prosecution had met its burden of proving the absence of authority beyond reasonable doubt.

The legal issues centred on the interpretation and application of the Defence Force Discipline Act 1982 and the Criminal Code. Specifically, the Court needed to consider whether the panel's conclusion regarding the proof of the absence of authority on the evidence was unsafe and unsupportable. Additionally, the Court had to address the use of general service knowledge in proving the absence of authority for conduct charges, as per section 147 of the Defence Force Discipline Act, and whether this knowledge could contradict authority conferred by service instructions and explained in duty statements.

The Court found that the panel's conclusion on the proof of absence of authority was indeed unsafe and unsupportable on the evidence presented. The prosecution had not adequately proved the absence of authority beyond reasonable doubt. Furthermore, the use of general service knowledge could not contradict authority as explained in duty statements. Consequently, the Court quashed the convictions. The appellant's application for leave to appeal was allowed, and the matter was remitted to the Court Martial for a rehearing.

The Court ordered that the convictions be quashed and that the matter be remitted to the Court Martial for a rehearing. The Court also granted the application for leave to appeal and allowed the application for an extension of time to appeal.

Orders