Randall v Chief of Army [2018] ADFDAT 3

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Randall v Chief of Army [2018] ADFDAT 3 Appeal from: Restricted Court Martial

File number: DFDAT 4 of 2017

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

Date of decision: 10 July 2018

Catchwords: DEFENCE AND WAR – application for extension of time to appeal – application for leave to appeal against convictions by Restricted Court Martial – unauthorised access to restricted data – Defence Force Discipline Act 1982 (Cth) s 61(3), Criminal Code (Cth) s 478.1 – related alternative prejudicial conduct charges – Defence Force Discipline Act 1982 (Cth) s 60 – obligation of prosecution to prove absence of access authority beyond reasonable doubt – conclusion of panel as to proof of absence of authority on the evidence unsafe and unable to be supported – convictions quashed EVIDENCE – proceeding for service offence before service tribunal – proof of absence of authority for conduct charge – general service knowledge – Defence Force Discipline Act 1982 (Cth) s 147 – cannot be used to contradict authority conferred by service instructions and explained in duty statements

Legislation: Criminal Code (Cth) ss 6.1, 6.1(1)(a), 6.1(b), 6.1(2), 6.1(3), 13.1-13.5, 13.2(1), 13.2(2), 476.1, 476.2, 476.2(2), 478.1, 478.1(1), Ch 2 Defence Force Discipline Act 1982 (Cth) ss 3, 10, 60, 60(1), 61, 61(3), 61(6), 147, 154 Defence Force Discipline Appeals Act 1955 (Cth) ss 21, 23, 23(1)(a), 23(1)(d) Army Act 1881 (UK), 44 & 45 Vict, c 58 Army Discipline and Regulation Act 1879 (UK), 42 & 43 Vict, c 33 Naval Discipline Act 1957 (UK), 5 & 6 Eliz 2, c 53, s 58(2) Rules of Procedure 1947 (UK) Rules of Procedure 1907 (UK) r 74