Van Damme v Chief of Army [2002] ADFDAT 2

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Van Damme v Chief of Army [2002] ADFDAT 2

CRIMINAL LAW – appeal from Defence Force Magistrate – convictions on three charges of assault – consent not raised at trail – no finding by Magistrate as to lack of consent – whether evidence gave rise to an inference of consent – whether substantial miscarriage of justice CRIMINAL LAW – differing accounts given by witnesses – Magistrate impressed by complainant but not by appellant – whether verdict unsafe and unsatisfactory CRIMINAL LAW – whether obligation on prosecution to call appellant's witnesses – whether obligation on prosecution to search for witnesses CRIMINAL LAW – three charges of assault – whether improperly joined and heard together CRIMINAL LAW – assault – charged as occurring within a period of several weeks – whether prejudice CRIMINAL LAW – charge of assault alleging placing of finger in complainant's ear and licking his face – whether bad for duplicity CRIMINAL LAW – assault – whether touching must be violent or hostile CRIMINAL LAW – assault by threats – whether evidence of intent to cause appellant to entertain a fear of immediate violence

Defence Force Discipline Act 1982 (Cth) s 33(a) Defence Force Discipline Appeals Act 1955 (Cth) s 23(1)(b) and (d) R v Coney (1882) 8 QBD 534 at 549 referred to Boughey v The Queen (1986) 161 CLR 10 at 24, 25-7 applied Pallante v Stadiums Pty Ltd (No. 1) (1976) VR 331 at 339 Kunjo S/O Ramalan v Public Prosecutor [1979] AC 135 at 143 cited M v The Queen (1994) 181 CLR 487 at 492-495 applied Edwards v The Queen (1993) 178 CLR 193 referred to Khaled Hamzy (1994) 74 A Crim R 341 at 345-6 and 349 cited Eades v R (1991) 57 A Crim R 151 at 156 referred to John Adrian Knight (1988) 35 A Crim R 314 at 317 cited Zanker v Vartzokas (1988) 34 A Crim R 11 distinguished Waller and Williams Criminal Law Text and Cases (9th Ed) at p 49 Smith and Hogan Criminal Law (7th Ed) at p 406