Dunford v Chief of Army [2024] ADFDAT 1

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL Dunford v Chief of Army [2024] ADFDAT 1 Appeal from: Defence Force Magistrate

File number:

Judgment of: WRIGHT J (MEMBER), HALLEY J (MEMBER) AND CROWLEY J (MEMBER)

Date of judgment: 14 October 2024

Catchwords: DEFENCE AND WAR – appeal against conviction by Defence Force Magistrate (DFM) – where the applicant convicted of two counts of assault by unlawful touching – whether the convictions unreasonable or could not be supported having regard to the evidence – whether, on the whole of the evidence, there was a reasonable possibility that the touching was conduct which did not go beyond ordinary social interaction or that which was generally acceptable in the ordinary conduct of daily life, in the circumstances, and was thus not unlawful – no such reasonable possibility raised on the whole of the evidence – whether the DFM erred in failing to consider whether the prosecution had properly negatived beyond reasonable doubt any mistake, within s 9.1 of the Criminal Code (Cth), as to the issue of consent that was available to the applicant – issue of mistake not raised before the DFM – whether applicant identified evidence discharging the evidential burden under s 13.3(2) of the Criminal Code (Cth) so as to require the DFM to consider the issue of mistake – no evidence sufficient to discharge the evidential burden identified – whether mistake as a basis for relief from criminal liability available in the present case in light of s 9.1(a) and (b) of the Criminal Code (Cth) – no error by the DFM in failing to consider mistake as to the issue of consent – appeal dismissed

Defence Force Discipline Act 1982 (Cth) ss 33, 152, 153, 154 Legislation: Defence Force Discipline Appeals Act 1955 (Cth) ss 20, 21, 23 Criminal Code (Cth) ss 5.4, 5.6, 9.1, 10, 13.3