In the matter of an Appeal against conviction by Court-Martial of Ian Raymond Gulliver [1986] ADFDAT 1

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BEFORE THE DEFENCE FORCE

DISCIPLINE APPEAL TRIBUNAL

NO. 1 of 1985

IN THE MATTER of an Appeal against eonviction by Court-Martial of IAN RAYMOND GULLIVER

JUDGMENT

Sydney 27 March 1986 at 2.00 p.m.

The Honourable Xavier Connor, A.O., Q.C., President The Honourable Mr. Justice Murray, C.B.E., Deputy President

cy The Honourable Mr. Justice Gallop ~ Member

and

This is an appeal pursuant to s. 20(1) of the Defence Force Discipline Appeals Act 1955 against a conviction by general court-martial on 18 September 1985 at HMAS Penguin, Sydney. The appellant was convicted of an offence against s.19(1) of the Naval Discipline Act 1957 (UK) in its application to members of the Royal Australian Navy by virtue of s.34 of the Naval Defence Act 1910, which offence was tried as an "old system offence" under the Defence Force Discipline Act 1982.

On 31. May 1985 the appellant was the Commanding Officer of HMAS Wollongong, a Freemantle class Patrol Boat. The ship had left Eden with the intention of proceeding to Bass Strait in order to take up surveillance duties in relation to oil rigs. When some distance south of Malacoota the weather deteriorated and the ship began to pound. The appellant decided to seek shelter until the weather abated. He decided upon an anchorage outside Malacoota in respect of which the navigating officer prepared an anchorage plan. On reaching the position where it was intended to anchor, the appellant became apprehensive that the radar was not giving an accurate picture of the range offshore. He then decided to proceed to Gabo Island to take shelter. Gabo Island is a small island off the east coast of Victoria, a short distance north-east of Malacoota. There is a bay on the north-west of the island. The appellant at first intended to anchor at a position three cables (1800 feet) north of the southern headland of the bay and three cables west of the eastern edge of the bay. He subsequently decided to proceed further inshore and anchor in a position two cables from the headland and the shore. In the course of endeavouring to anchor in that position HMAS Wollongong stranded on an uncharted rocky ledge close to the western coastline of the island.