Fulton v Chief of Army [2005] ADFDAT 1

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Fulton v Chief of Army [2005] ADFDAT 1

CRIMINAL LAW – reckless infliction of actual bodily harm – self-defence – fear of apprehended attack – voluntarily induced intoxication – mistaken view of facts – whether conviction unreasonable, unsafe or unsatisfactory

Crimes Act 1900 (ACT) s 23 Defence Force Discipline Act 1982 (Cth) s 61 Defence Force Discipline Appeals Act 1955 (Cth) s 23(1)(a) and (d)

Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 at 662 applied Dziduch (1990) 47 A Crim R 378 applied Osland v The Queen (1998) 197 CLR 316 at [172] cited The Queen v Hackell [2002] NZCA 221 at [13] cited Ninnes v Walker (1998) 143 FLR 239 applied M v R (1994) 181 CLR 487 applied MFA v R (2002) 213 CLR 606 applied DAVID WILLIAM FULTON v CHIEF OF ARMY DFDAT 1 OF 2005 HEEREY J (President), UNDERWOOD CJ (Deputy President) and DUGGAN J (Member)

9 DECEMBER 2005 HOBART ( HEARD IN SYDNEY)

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 1 OF 2005

BETWEEN: DAVID WILLIAM FULTON

AND: CHIEF OF ARMY

TRIBUNAL: HEEREY J (President), UNDERWOOD CJ (Deputy President) and DUGGAN J (Member)

DATE OF ORDER: 9 DECEMBER 2005

WHERE MADE: HOBART (HEARD IN SYDNEY)

THE TRIBUNAL ORDERS THAT: The appeal is dismissed.

IN THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 1 OF 2005

BETWEEN: DAVID WILLIAM FULTON

AND: CHIEF OF ARMY

TRIBUNAL: HEEREY J (President), UNDERWOOD CJ (Deputy President) and DUGGAN J (Member)

DATE: 9 DECEMBER 2005

PLACE: HOBART (HEARD IN SYDNEY)

REASONS FOR DECISION 1 The appellant appeals from a conviction by a Defence Force Magistrate (Colonel Morrison) of one count of recklessly inflicting actual bodily harm, contrary to s 23 of the Crimes Act 1900 (ACT), applicable by virtue of s 61 of the Defence Force Discipline Act 1982 (Cth). 2 Argument on the appeal involved two basic submissions: * The DFM failed to direct himself as to certain significant aspects of the evidence; * The conviction was unreasonable or cannot be supported, having regard to the evidence and/or was unsafe or unsatisfactory (Defence Force Discipline Appeals Act 1955 (Cth) s 23(1)(a) and (d)).