Bateson v Chief of Army [2012] ADFDAT 3

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Bateson v Chief of Army [2012] ADFDAT 3 Citation: Bateson v Chief of Army [2012] ADFDAT 3

Appeal from: Defence Force Magistrate

Parties: LYNDA BATESON v CHIEF OF ARMY

File number: DFDAT 1 OF 2012

Judges: TRACEY J – PRESIDENT, WHITE JA – DEPUTY PRESIDENT & LOGAN J – MEMBER

Date of judgment: 25 May 2012

Catchwords: DEFENCE AND WAR – appeal – charges of insubordination – grounds – convictions unreasonable and cannot be supported with regard to the evidence – wrong decisions on questions of law made – material irregularity – convictions unsafe and unsatisfactory – found – no material error in conduct of trial – no error in taking into account uncharged acts – no irregularity found – mistake of fact ground - possible defence not taken into account at trial – appellant deprived of chance of acquittal – miscarriage of justice occurred – appeal allowed – convictions quashed – no retrial ordered

Legislation: Bill of Rights 1689 (Eng) Art 6 Criminal Code Act 1995 (Cth) s 6.1, 9.2 Defence Force Discipline Act 1982 (Cth) ss 26, 27, 158, Part 6 Evidence Act 1995 (Cth) ss 101A, 102, 106 Mutiny Act 1689 (Eng)

Cases cited: Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8 cited CTM v The Queen (2008) 236 CLR 440 cited, discussed Heddon v Evans (1919) 35 TLR 642 cited Lyons v R (1987) 24 A Crim R 298 cited Su v Australian Fisheries Management Authority (No 2) (2008) 189 A Crim R 23 at 34 cited Millar v Bornholt (2009) 177 FCR 67 cited Millar v R (1998) 103 A Crim R 526 cited Ostrowski v Zaza (1999) 108 A Crim R 350 cited Pemble v The Queen (1971) 124 CLR 107 cited R v Grant [1957] 1 WLR 906 cited R v Soloman [2006] QCA 244 discussed, compared Re Nickols's Appeal (1966) 9 FLR 120 cited Stuart v Chief of Army (2003) 177 FLR 158 cited White v Director of Military Prosecutions (2007) 231 CLR 570 cited