Li v Chief of Army [2012] ADFDAT 1

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Li v Chief of Army [2012] ADFDAT 1 Citation: Li v Chief of Army [2012] ADFDAT 1

Appeal from: Restricted Court Martial

Parties: TING LI v CHIEF OF ARMY

File number: DFDAT 2 of 2011

Judges: TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & COWDROY J - MEMBER

Date of judgment: 16 March 2012

Catchwords: MILITARY LAW – leave to appeal sought - granted – Restricted Court Martial - charges – creating a disturbance by causing a confrontation – service offence – whether charge not known in law – not a service charge – not capable of founding jurisdiction – ground failed – whether conviction bad for duplicity – series of acts may constitute course of conduct – ground failed – whether conviction wrong in law – whether no direction given - whether fault element to charge – physical element - intention – recklessness – direction involved no error – no miscarriage – ground failed – whether requirement for direction as to onus of proof - element of charge – no error – whether erroneous direction as to meaning of "disturbance" – whether disturbance justified by conduct of other officer involved – disturbance correctly characterised – other officer's conduct not relevant to charge – ground failed – whether first charge oppressive when combined with second charge – charges were preferred in the alternative – not oppressive to prefer charges in the alternative – no exhaustive statement of offences which may be regarded as alternatives under Defence Force Discipline Appeal Act - ground failed – whether failure to direct that potential cause of confrontation was a comment made previously by officer involved in confrontation with appellant – whether comment made contrary to Racial Discrimination Act – giving rise to consequential right to protest – duty on Commonwealth to prevent such conduct – no consequential right created – no duty imposed on Commonwealth or other person – ground failed - whether evidence should have been called as to cause of confrontation – evidence was before the court at trial – whether evidence incorrectly ruled as irrelevant and inadmissible – whether questions asked by defending officer were irrelevant and should have been disallowed – no substance to grounds – whether defending officer affected by apprehended bias – whether discretion in relation to adjournment application wrongly exercised – whether Judge Advocate should have disqualified himself – complaint amounted to appellant's dissatisfaction with rulings on adjournment application – no bias discerned – ground failed – whether ruling of inadmissibility with respect to evidence going to credit of officer in error – ruling correct – ground failed – whether error in not providing Jones v Dunkel direction in relation to failure to call particular evidence – witness was unavailable – evidence supportive of prosecution – no proper basis to infer otherwise – ground failed – whether remarks made by Judge Advocate gave rise to actual or apprehended bias – no complaint made with respect to bias at trial – no rulings the subject of complaints alleged to be tainted by error – no reasonable observer could have apprehended the Judge Advocate might not bring an impartial mind to the resolution of the issues – ground failed – procedural defect in original charge sheet – said to give rise to want of delegation – no failure to properly exercise power of delegation – did not render trial nullity – ground failed – whether conviction unsafe and unsatisfactory by virtue of all matters raised above – evidence sufficient to conclude beyond reasonable doubt that service offence committed by appellant – ground failed – appeal dismissed