Decisions

DEFENCE - appellant convicted of one charge before Defence Force Magistrate, acquitted of two other charges - whether DFM had jurisdiction to hear and determine the charges - consideration of "service connection" and "service status" tests of jurisdiction - DFM had jurisdiction - whether DFM erred in consideration of any inconsistencies in…

16 Dec 2016 TRACEY J (PRESIDENT), BRERETON AND HILEY JJ (MEMBERS)

DEFENCE - application for leave to amend grounds of appeal - application for leave to adduce and rely on additional documentary evidence - whether s 23(1) of the Defence Force Discipline Appeals Act 1955 (Cth) confers incidental powers on the Tribunal to receive fresh or new evidence on appeal - whether s 23(2) of the Defence Force Discipline Act…

29 Aug 2016 TRACEY (PRESIDENT), LOGAN (DEPUTY PRESIDENT) AND BRERETON JJ

DEFENCE - application for leave to appeal out of time against convictions entered by a General Court Martial - where application under s 134(1) of the Defence Force Discipline Act 1982 (Cth) and r 38 of the Court Martial and Defence Force Magistrate Rules to substitute a plea of not guilty dismissed - whether appellant precluded from bringing…

24 Jun 2016 TRACEY (PRESIDENT), LOGAN (DEPUTY PRESIDENT) AND BRERETON (MEMBER) JJ

DEFENCE FORCE - discipline - appeals against conviction - conviction arising out of receipt of rental allowance - obtaining financial advantage by deception - whether Defence Force Magistrate failed to consider appellant's intention in concluding that selection of "not sharing" option in online application for rental allowance was "false and hence …

4 Sep 2015 TRACEY J (PRESIDENT), BRERETON AND HILEY JJ (MEMBERS)

DEFENCE - conviction relating to threat to inflict grievous bodily harm under s 31 of the Crimes Act 1900 (ACT) (the Act) - whether open to conclude beyond reasonable doubt that appellant guilty of charge on which she was convicted - where threat spoken by appellant to her treating doctor during medical consultation and in respect of appellant's…

25 Aug 2015 TRACEY J (PRESIDENT), LOGAN J (DEPUTY PRESIDENT) AND BRERETON J

DEFENCE - conviction relating to receipt of rental allowance - whether appellant guilty of the charge on which he was convicted - consideration of proper construction of the offence of "obtaining a financial advantage" under s 135.2(1) of the Criminal Code Act 1995 (Cth) - whether physical and fault elements must exist contemporaneously - whether…

17 Jul 2015 TRACEY (PRESIDENT), LOGAN AND BRERETON JJ (MEMBERS)

DEFENCE - whether convictions recorded following pleas of guilty should be quashed - whether plea bargain based on incorrect construction of the Defence Force Discipline Act 1982 (Cth) resulted in miscarriage of justice

22 May 2015 TRACEY (PRESIDENT), BYRNE (DEPUTY PRESIDENT) AND LOGAN JJ

DEFENCE FORCE - appeal from Restricted Court Martial against convictions for committing an act of indecency - circumstantial evidence - whether Judge Advocate erred in failing to give proper direction - admissibility of evidence based on inference drawn by witness from observed facts - whether substantial miscarriage of justice - meaning of…

29 Nov 2013 TRACEY J (PRESIDENT), LOGAN AND BRERETON JJ (MEMBERS) JJ

DEFENCE - convictions relating to theft of ammunitions and disobedience of lawful command - whether Judge Advocate erred in admitting evidence - consideration of "special circumstances" under s 101JA(3) of the Defence Force Discipline Act 1982 ("the DFDA") - balancing the interests of justice - double jeopardy - whether the Judge Advocate erred in …

20 Aug 2013 TRACEY, COWDROY & LOGAN JJ

DEFENCE - Convictions relating to receipt of rental and other allowances - whether Judge Advocate erred in direction to panel about whether appellant and his wife "normally lived together" for purposes of relevant Defence Determination - whether verdicts entered against appellant inconsistent with other verdicts of acquittal - whether Judge…

28 May 2013 TRACEY J – PRESIDENT, COWDROY AND LOGAN JJ – MEMBERS