Decisions

DEFENCE AND WAR – appeal against service conviction by General Court Martial on ground that conviction unsafe or unsatisfactory – defences of involuntary intoxication and honest and reasonable mistake pursuant to Criminal Code 1995 (Cth) clearly raised by the evidence – only defence of honest and reasonable mistake raised at trial - submissions…

11 Jun 2010 TRACEY J (PRESIDENT), WHITE J (DEPUTY PRESIDENT) & MILDREN J (MEMBER)

PRACTICE AND PROCEDURE – application for an extension of time within which to appeal against conviction – consideration of matters relevant to the exercise of the discretion to grant an extension of time within which to appeal – consideration of how the discretion granted by s 21(b) of the Defence Force Discipline Appeals Act 1955 (Cth) should be…

18 May 2009 TRACEY J (PRESIDENT), MILDREN J (MEMBER) AND DUGGAN J (MEMBER)

DEFENCE – appeal from Australian Military Court – Corporal convicted of reckless threat to kill another corporal – defence that act was a threat of self-harm rather than threat to kill another – whether Military Judge failed to identify inconsistent statements and to direct as to use of consistent statements – whether error in regard to…

13 Feb 2009 HEEREY J (PRESIDENT), WHITE J (DEPUTY PRESIDENT) AND DUGGAN J (MEMBER)

DEFENCE – appeal from Australian Military Court – corporal convicted of breach of general orders prohibiting “fraternisation” by making inappropriate sexual advances toward recruit – sentence of reduction in rank to private – whether failure by prosecution to call a witness resulted in material irregularity or substantial miscarriage of justice –…

13 Feb 2009 HEEREY J (PRESIDENT), WHITE J (DEPUTY PRESIDENT) AND DUGGAN J (MEMBER)

DEFENCE – appeal against conviction and sentence in relation to unauthorised withdrawals from Defence Travel Card – whether Military Judge erred in failing to take account of certain evidence – application of coincidence evidence rule – whether sufficient regard had to repayment of moneys, intention to cease service and service record

9 Oct 2008 HEEREY J (PRESIDENT), MILDREN AND DUGGAN JJ (MEMBERS)

DEFENCE – appeal against convictions for forgery and use of forged documents – alleged misapplication of onus of proof – Australian Defence Force members as “public officials” performing a “public duty or function” – whether convictions unsafe and unsatisfactory – whether mistake of fact or claim of right

28 Jul 2008 HEEREY J (PRESIDENT), MILDREN AND DUGGAN JJ(MEMBERS)

DEFENCE – trial before General Court Martial – appellant claimed various allowances depending on her classification as a Member with Dependents (Separated) in respect of her spouse – prosecution alleged that at time of claims appellant aware marriage relationship over – appellant convicted of obtaining financial advantage and making a false…

26 Mar 2008 HEEREY J (PRESIDENT), MILDREN AND DUGGAN JJ (MEMBERS)

DEFENCE – appeal against sentence – whether manifestly excessive – misuse of Commonwealth credit card – connection with illegal drug use – full restitution made – exceptional mitigating factors ; Held: appeal allowed – mitigating factors sufficient to overcome seriousness of offences

5 Mar 2008 HEEREY J (PRESIDENT), MILDREN & DUGGAN JJ (MEMBERS)

DEFENCE – appeal against conviction by Defence Force Magistrate – failure by prosecution to call a material witness at the trial – no statement taken from the witness – witness unable to be located by Military Police – whether witness was “available” – whether Defence Force Magistrate should have given himself a Jones v Dunkel direction – whether…

4 Dec 2007 HEEREY J (PRESIDENT), UNDERWOOD CJ (DEPUTY PRESIDENT) & MILDREN J (MEMBER)

DEFENCE – appeal against conviction by Defence Force Magistrate of forgery and using a forged document – appellant entitled to leave for service in the Australian Defence Force – applied for leave – appellant indicated an interest in acquiring a franchise – required to produce documentary evidence of future commitments – document submitted to…

10 Sep 2007 HEEREY J (PRESIDENT), MILDREN & DUGGAN JJ (MEMBERS)