Federal Court of Australia
DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Davis v Chief of Army [2011] ADFDAT 1 Citation: Davis v Chief of Army [2011] ADFDAT 1
Appeal from: Decision of Restricted Court Martial dated 18 August 2010
Parties: JAMES-ROBERT STEPHEN DAVIS v CHIEF OF ARMY
File number(s): DFDAT 3 of 2010
Judges: TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & MILDREN J - MEMBER
Date of judgment: 22 February 2011
Catchwords: CRIMINAL LAW – consensual fight between appellant and victim – appellant charged with assault - whether victim's consent can be relied upon as a defence – absence of consent is not an element of assault as defined by statute – consent may not be relied upon as defence to assault
Legislation: Canadian Criminal Code s 265 Crimes (Amendment) Ordinance No 2 of 1990 Crimes Act 1900 (ACT) s 24 Crimes Act 1961 (NZ) Criminal Code 2002 (ACT) ss 8, 10 Criminal Code 1899 (Qld) ss 31, 245-284, 317, 320, 339 Criminal Code 1983 (NT) ss 26, 187-188 Defence Force Discipline Act 1982 (Cth) ss 33, 61 Offences Against the Person Act 1961 (UK) s 47
Cases cited: Attorney-General's Reference (No 6 of 1980) [1981] 1 QB 715 considered Horan v Ferguson [1995] 2 Qd R 490 considered Jobidon v The Queen (1991) 66 CCC (3rd) 454 considered Kaporonovski v The Queen (1973) 133 CLR 209 referred Lergesner v Carroll [1991] 1 Qd R 206 considered Police v Segeyara [2008] NTMC 19 considered R v Bonora (1994) 35 NSWLR 74 considered R v Brown [1994] AC 212 considered R v Clearihan [2002] ACTSC 60 considered R v Coney (1882) 8 QBD 534 considered R v Holmes (1993) 2 Tas R 232 referred R v Lee [2006] 3 NZLR 42 considered R v Mardday (1998) 121 NTR 1 considered R v Minor (1992) 79 NTR 1 considered R v Paice [2005] 1 SCR 339 referred R v Raabe [1985] 1 Qd R 115 considered R v Stein (2007) 18 VR 376 considered R v Tate [2010] ACTSC 144 considered Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 cited, considered Sorgenfrie v R (1981) 51 FLR 147 considered Van Damme v Chief of Army [2002] ADFDAT 2 considered Blackstone's Commentaries on the Laws of England (8th edition)
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