Decisions

DEFENCE AND WAR - appeal - charges of insubordination - grounds - convictions unreasonable and cannot be supported with regard to the evidence - wrong decisions on questions of law made - material irregularity - convictions unsafe and unsatisfactory - found - no material error in conduct of trial - no error in taking into account uncharged acts -…

25 May 2012 TRACEY J – PRESIDENT, WHITE JA – DEPUTY PRESIDENT & LOGAN J – MEMBER

DEFENCE AND WAR - charges of indecency - seven counts of indecency found by General Court Martial -appeal - grounds - prosecutor's final address at trial prejudicial - direction made by Judge Advocate to jury - any prejudice to appellant negatived - grounds not made out - ruling made by Judge Advocate on objections to charge sheet - provision…

22 May 2012 TRACEY J – PRESIDENT, WHITE JA – DEPUTY PRESIDENT & MILDREN J - MEMBER

MILITARY LAW - leave to appeal sought - granted - Restricted Court Martial - charges - creating a disturbance by causing a confrontation - service offence - whether charge not known in law - not a service charge - not capable of founding jurisdiction - ground failed - whether conviction bad for duplicity - series of acts may constitute course of…

16 Mar 2012 TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & COWDROY J - MEMBER

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

21 Nov 2011 TRACEY, WHITE & MILDREN JJ

CRIMINAL LAW - charge of obtaining financial advantage through false or misleading statement - in connection with an allowance- no mistaken belief as to possessory or proprietary right - defence of right open to applicant EVIDENCE - unsafe and unsatisfactory conviction alleged - new evidence - not admitted - ground not made out

22 Jun 2011 TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & DUGGAN J – MEMBER

CRIMINAL LAW - consensual fight between appellant and victim - appellant charged with assault - whether victim's consent can be relied upon as a defence - absence of consent is not an element of assault as defined by statute - consent may not be relied upon as defence to assault

22 Feb 2011 TRACEY J (PRESIDENT), WHITE JA (DEPUTY PRESIDENT) AND MILDREN J (MEMBER)

EVIDENCE – admissibility of interview with police - conducted while appellant intoxicated – no caution administered - discretion to exclude illegally obtained evidence CRIMINAL LAW - reasonable hypothesis consistent with innocence open on evidence – unreasonable or unsafe and unsatisfactory conviction recorded – defence of sudden or extraordinary…

29 Nov 2010 TRACEY J (PRESIDENT), WHITE JA (DEPUTY PRESIDENT) AND DUGGAN J (MEMBER)

DEFENCE AND WAR – communication of document from Appellant to defending officer – communication confidential – obtained as result of impropriety – not properly admitted

11 Oct 2010 TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & MILDREN J - MEMBER

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)