King v Chief of Army [2012] ADFDAT 4

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

King v Chief of Army [2012] ADFDAT 4 Citation: King v Chief of Army [2012] ADFDAT 4

Appeal from: Defence Force Magistrate

Parties: STEPHEN JOSEPH KING v CHIEF OF ARMY

File number: DFDAT 2 of 2012

Judges: TRACEY J - PRESIDENT, MILDREN J - MEMBER & COWDROY J - MEMBER

Date of judgment: 28 September 2012

Publication of reasons: 12 October 2012

Catchwords: DEFENCE – charges of disobeying lawful command, prejudicial conduct and giving false evidence – whether direction of an Assistant Inspector General of the Australian Defence Force was a lawful order – whether charges could be preferred under s 60 of the Defence Force Discipline Act 1982 when conduct proscribed by specific offence in Defence Force Discipline Act 1982 – whether conviction bad for latent ambiguity – whether substantial miscarriage of justice – whether charges duplicitous – adequacy of reasons – whether failure to comply with rule in Browne v Dunn (1893) 6 R 67 resulted in unfair rejection of appellant's evidence or denial of procedural fairness – whether verdicts inconsistent EVIDENCE – Admitting record of interview into evidence – evidence prima facie admissible – whether Defence Force Magistrate erred in not directing himself in accordance with s 165 of Evidence Act 1995 (Cth) –application for Tribunal to receive and act on new evidence – quality of new evidence not such as to demand verdict of acquittal

Legislation: Army Act 1955 (UK) Crimes Act 1914 (Cth) Criminal Code 1955 (Cth) Defence Act 1903 Defence Force Discipline Act 1982 Defence Force Discipline Rules 1985 Defence (Inquiry) Regulations 1985 Evidence Act 1995 (Cth) Jervis Bay Territory Acceptance Act 1915 (Cth) Supreme Court Act 1933 (ACT)