In the matter of an appeal against conviction from restricted Court Martial of 312924 Corporal Steven Paul McInnes [1987] ADFDAT 2

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2 8) NT NACA | 02090060000

CATCHWORDS

Appeal - Offence of assaulting a superior officer - elements thereof - statutory defence that the accused neither knew, nor could reasonably be expected to have known that the victim was a superior officer - onus of

proof of defence - standard of proof

Criminal Law - onus of proof of statutory defence contained in provision

creating the offence - standard of proof

Defence Force Discipline Act 1982, ss.25 and 12

R v_Reynhoudt (1962} 107 CLR 381

In Re M (sunmarised in Justitia In Ammis Vol.4 No. 1, p.78) He Kaw Teh v The Queen (1985) 157 CLR 523

Sherras v De Rutzen [1895] 1 QB 918

IN THE MATTER OF The Defence Force Discipline Appeal Act 1955

AND IN THE MATTER OF An appeal against conviction from Restricted Court- Martial of 312924 Corporal Steven Paul McInnes

No. DFDAT 2 of 1987

Adelaide, 27 August 1987

Before: The Hon FX Connor, President The Hon Mr Justice Gallop }

His Honour Judge Broad ) Members

IN THE DEFENCE FORCE ) ) No. DFDAT 2 of 1987

DISCIPLINE APPEAL TRIBUNAL )

IN THE MATTER OF:

THE DEFENCE FORCE, DISCIPLINE APPEAL ACT, 1955

AND IN THE MATTER OF:

AN APPEAL AGAINST CONVICTION FROM RESTRICTED COURT MARTIAL OF 312924 CORPORAL STEVEN PAUL McINNES

Adelaide 27 August 1987

Before

The Hon FX Connor, President The Hon Mr Justice Gallop )

His Honour Judge Broad )

This is an appeal against a conviction of the appellant at a Restricted Court-Martial held at Bandiana Barracks on Friday, 27 March 1987. The appellant was found guilty of assaulting his superior officer contrary

to s.25(1) of the Defence Force Discipline Act 1982 (the Act). The only grounds of appeal argued on the hearing were that the Judge Advocate erred in his directions to the Court that in order to establish the offence the prosecution had to prove that the accused assaulted the victim and that