Komljenovic v Chief of Navy [2017] ADFDAT 4

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Komljenovic v Chief of Navy [2017] ADFDAT 4 Appeal from: Defence Force Magistrate

File number: DFDAT 4 of 2016

Judges: TRACEY (PRESIDENT), LOGAN (DEPUTY PRESIDENT) AND HILEY (MEMBER) JJ

Date of judgment: 5 May 2017

Catchwords: DEFENCE AND WAR – discipline of members of forces – conduct likely to prejudice service discipline – what constitutes – acts of physical intimacy between a male Lieutenant Commander and a female Leading Seaman in view of subordinates while on temporary shore leave in the course of an overseas deployment of the warship of which all were crew members – holding by each person charged of responsible, service discipline related appointments on board ship – requirement for objective assessment of conduct charged in the context of surrounding circumstances – Defence Force Discipline Appeal Act 1981 (Cth), s 60(1) DEFENCE AND WAR – service tribunals – Defence Force Magistrates – past simultaneous holding of appointments as Defence Force Magistrate and member of judge advocates' panel by Defence Force Magistrate appointed to try charge of a service offence and the Director of Military Prosecutions – Director of Military Prosecutions had signed charge sheet concerned but did not appear personally but instead by a legal practitioner on the hearing before the Defence Force Magistrate – whether circumstances gave rise to a reasonable apprehension of bias and thus a denial of natural justice by the Defence Force Magistrate - Defence Force Discipline Act 1982 (Cth) ss 3, 60, 127, 129, 134, 137, 188GB, 188GN, 196

Legislation: Army Act 1881 (UK) s 40 Australian Military Regulations 1927 (Cth) r 203(1)(lx) (repealed) Constitution s 51(vi) Defence Act 1903 (Cth) s 21 Defence Force Discipline Act 1982 (Cth) ss 3, 60, 127, 129, 134, 137, 188GB, 188GN, 196 Jervis Bay Acceptance Act 1915 (Cth) Legal Profession (Barristers) Rules 2014 (ACT), rule 87A Legal Profession (Solicitors) Conduct Rules 2015 (ACT), rule 38 Legal Profession (Solicitors) Rules 2007 (ACT) (repealed) Legal Profession Act 2006 (ACT)