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 Boyson v Chief of Army [2019] ADFDAT 2 Carmichael v Chief of Navy [2009] ADFDAT 3 Collins v Wilcock [1984] 1 WLR 1172; [1984] 3 All ER 374 Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 Cases cited: Kantibye v Chief of Army (No 2) [2022] ADFDAT 4 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Pemble v The Queen (1971) 124 CLR 107 Poulton v Chief of Navy [2023] ADFDAT 1 Private R Army v Chief of Army [2022] ADFDAT 1 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Number of paragraphs: 103 Date of hearing: 2 September 2024 Counsel for the Applicant: Mr R Clutterbuck Solicitor for the Applicant: Taylor Rose Lawyers Counsel for the Respondent: Mr R de Vietri with Mr J Thomson Solicitor for the Respondent: Office of the Director of Military Prosecutions ORDERS DFDAT 1 of 2024 BETWEEN: LUKE EVAN DUNFORD Applicant AND: CHIEF OF ARMY Respondent order made by: WRIGHT J (MEMBER), HALLEY J (MEMBER) AND CROWLEY J (MEMBER) DATE OF ORDER: 14 October 2024 THE TRIBUNAL ORDERS THAT: 1. Pursuant to s 21(1)(b) of the Defence Force Discipline Appeals Act 1955 (Cth), the time for lodging of the applicant's Notice of appeal and Application for leave to appeal is extended to 4 June 2024. 2. Pursuant to s 20(1) of the Defence Force Discipline Appeals Act 1955 (Cth), the applicant is granted leave to appeal. 3. The appeal is dismissed. REASONS FOR DECISION THE TRIBUNAL: Introduction 1 By a notice filed on 4 June 2024, the applicant Sergeant Luke Evan Dunford seeks an extension of time in which to appeal and, if an extension is granted, he appeals or seeks leave to appeal against his conviction on 21 November 2023 on two charges of assault. Background 2 The background to this matter is that the applicant was charged with two service offences contrary to s 33(a) of the Defence Force Discipline Act 1982 (Cth) (DFDA), namely: (1) being a defence member at the Airmen's Mess, RAAF Base Williamtown, in the State of New South Wales, on or about 18 April 2023 he assaulted Leading Cadet T by touching his upper body or thereabouts; and (2) being a defence member at the Airmen's Mess, RAAF Base Williamtown, in the State of New South Wales, on or about 18 April 2023 he assaulted Leading Cadet V by touching his upper body or thereabouts. 3 Since both cadets were children at the time of the incident giving rise to the charges against the applicant and it is not necessary for a proper understanding of these reasons to identify them by name, the two children complainants have been referred to by a letter, T or V, rather than by name. 4 The prosecution case was that while the two cadets had been waiting in line at the Airmen's mess to be served lunch, the applicant assaulted them by placing his hands on their upper bodies in order to move them aside so that two of his "real soldiers" could proceed closer to the food. 5 At the hearing of this matter before a Defence Force Magistrate (DFM) on 20 November 2023, the elements of the offences were identified and the defending officer effectively confined the defence case to whether the prosecution had proved beyond reasonable doubt that the conduct, the touching of the cadets, was unlawful, having regard to the principle in Collins v Wilcock [1984] 1 WLR 1172; [1984] 3 All ER 374 (Collins v Wilcock), in that the conduct was submitted not to have gone beyond ordinary social interaction. 6 On 21 November 2023, the applicant was convicted by the DFM of the two charges and on that same day, he was sentenced in respect of both convictions to be severely reprimanded. 7 The proceedings were reviewed as required by s 152 of the DFDA by Brigadier Calhoun DSC, as a competent reviewing authority, after receiving a report under s 154(1)(a) of the DFDA from a legal officer, Major Barnes. Brigadier Calhoun determined that the conviction and punishment should be upheld. The notification of outcome of automatic review of DFM trial was apparently dated 1 February 2024. It is not known when the applicant received that notification. 8 On 27 February 2024, the applicant lodged with the reviewing authority a petition for a review under s 153 of the DFDA. A report dated 7 March 2024 was obtained in accordance with s 154(1)(a) of the DFDA from Brigadier his Honour Judge P E Smith, Deputy Judge Advocate General. 9 On 26 March 2024, in a minute noting the outcome of the petition, Brigadier Calhoun upheld and approved the applicant's convictions but quashed the punishment of a severe reprimand and imposed a lesser punishment of a reprimand for each offence. A copy of the Deputy Judge Advocate General's report was enclosed with that minute. 10 On 22 May 2024, a notice of appeal to the Tribunal was lodged on the applicant's behalf but apparently there were deficiencies in this document. The appeal, application for leave to appeal and application for extension of time 11 On 4 June 2024, a document headed "Appeal/Application for leave to appeal/Application for extension of time" was filed on behalf of the applicant. 12 Under s 21(1)(b) of the Defence Force Discipline Appeals Act 1955 (Cth) (the Appeals Act), an appeal or an application for leave to appeal must be lodged within the "appropriate period", or within such further period as the Tribunal, either before or after the expiration of the appropriate period, allows. 13 Subsection (2) of s 21 relevantly defines "appropriate period" to mean 30 days commencing immediately after the earlier of: (1) the day on which the results of a review under s 152 of the DFDA are notified to the convicted person, which in the present case could not have been earlier than 1 February 2024; or (2) the last day of the period of 30 days after the conviction, which was 21 December 2023. 14 Thus, in the present case, the "appropriate period" commenced on 22 December 2023 and expired on 20 January 2024. Accordingly, the applicant requires an extension of time in which to lodge his appeal and application for leave to appeal. The grounds of appeal or proposed appeal 15 The applicant's grounds of appeal or proposed appeal were formulated as follows: a. That the learned Defence Force Magistrate in finding the Appellant guilty of the offences of Assault contrary to Section 33A [sic, s 33(a)] of the Defence Force Discipline Act of 1982 erred in so finding as the finding was, upon analysis, against the weight of the evidence given by the majority of witnesses who were present at the scene of the incident and as a whole the evidence as presented was not capable of excluding a reasonable doubt as to the Appellant's guilt. b. Secondly that the learned Defence Force Magistrate erred in failing to consider whether the Prosecution had properly negatived beyond reasonable doubt any defence of mistake as to the issue of consent that was available to the Appellant. 16 The applicant's right to appeal is governed by s 20(1) of the Appeals Act which relevantly provides: Subject to this Act, a convicted person … may appeal to the Tribunal against his or her conviction … but an appeal on a ground that is not a question of law may not be brought except by leave of the Tribunal. 17 Section 23(1) of the Appeals Act sets out the grounds on which the Tribunal may quash a conviction and it relevantly includes: …, where in an appeal it appears to the Tribunal: (a) that the conviction … is unreasonable, or cannot be supported, having regard to the evidence; (b) that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction … was wrong in law and that a substantial miscarriage of justice has occurred; (c) that there was a material irregularity in the course of the proceedings before the court martial or the Defence Force magistrate and that a substantial miscarriage of justice has occurred; or (d) that, in all the circumstances of the case, the conviction … is unsafe or unsatisfactory; it shall allow the appeal and quash the conviction …. 18 The first ground of appeal, which includes that "as a whole the evidence as presented was not capable of excluding a reasonable doubt as to the Appellant's guilt", raises in substance the question of whether the convictions "cannot be supported, having regard to the evidence" and thus falls within s 23(1)(a) of the Appeals Act. Given the nature of this ground, it involves an appeal on a ground that is not a question of law: Boyson v Chief of Army [2019] ADFDAT 2 at [45] (Brereton JA, with Perry J agreeing). Consequently, leave to appeal in respect of the first ground of appeal is required. 19 The second ground of appeal concerns whether the DFM erred by not considering whether the prosecution had negatived beyond reasonable doubt that the applicant was acting under a mistake "as to the issue of consent". It was accepted that this ground involves the contentions that there was a material irregularity in the course of the proceedings and a substantial miscarriage of justice occurred, falling within s 23(1)(c) of the Appeals Act. Since the ground goes beyond an appeal on a question of law, leave to appeal is also required in respect of this second ground of appeal. 20 After dealing with the issues of whether there should be an extension of time and whether leave to appeal should be granted, it is appropriate to consider the second ground of appeal which raises a specific error before addressing the more general, first ground of appeal. Extension of time to appeal 21 In relation to the question of whether an extension of time should be granted, the evidence of the applicant's solicitor, Mr Niven, established that the applicant, an Army Reserve senior non-commissioned officer, did not generally have access to his Australian Defence Force email other than when he was serving at a Defence Force establishment. As explained above, the review on petition, under s 153 of the DFDA, of the applicant's conviction and punishment was not determined until 26 March 2024 and we are prepared to accept, in light of Mr Niven's evidence and that of Flight Lieutenant Hiatt, that the applicant did not become aware of the outcome until about 10 April 2024, several weeks after it was provided to the applicant's defence email address. 22 On 6 May 2024, Mr Niven was retained to represent the applicant in relation to the present proceedings. On 10 May 2024, Mr Niven prepared a brief for counsel, Mr Clutterbuck, who advised Mr Niven that he had several interstate matters that required his urgent attention. It was not until 22 May 2024 that a notice of appeal to the Tribunal was lodged on the applicant's behalf but the Registry required further information to be included in the form. With Mr Clutterbuck's assistance, Mr Niven prepared revised documentation which was eventually filed on 4 June 2024. 23 Whether the Tribunal should grant an extension of time to appeal against convictions depends on what the interests of justice require in all the circumstances, having regard to the principles stated by McHugh J in Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; Carmichael v Chief of Navy [2009] ADFDAT 3 at [3] (Tracey, Mildren and Duggan JJ) and Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [30] (French CJ, Hayne, Bell and Keane JJ). The grant of an extension of time should not be seen as automatic and the object of the power to extend the "appropriate period" effectively conferred by s 21(1)(b) of the Appeals Act is to be understood as being to ensure that the appropriate period fixed by that section does not become an instrument of injustice. Consequently, one essential consideration when determining whether an extension of time should be granted is the prospects of success of the person seeking the extension. Other considerations include whether there is a satisfactory explanation for the delay and whether there is any prejudice to the other party caused by the failure to comply with the relevant time limit. 24 In the present case, part of the delay can be accounted for by the time taken for the automatic review and the review on petition, under ss 152 and 153 of the DFDA. As observed by the Tribunal on numerous occasions, it is reasonable that an appellant should exhaust these other review mechanisms before being expected to file an appeal to the Tribunal: Poulton v Chief of Navy [2023] ADFDAT 1 (Poulton) at [12] (Logan, Perry and Slattery JJ). There is, however, an additional period of delay which is said to have been caused by the applicant's lack of access to his Defence Force email, then a delay in instructing a solicitor and a further period of delay attributable to counsel's other work commitments and some deficiencies in the documentation originally filed. The explanation for these periods of additional delay appeared to us to be somewhat exiguous. 25 Nonetheless, having regard to the lack of prejudice to the respondent and the fact that the grounds of appeal are reasonably arguable and raise a point of significant general concern regarding whether physical contact between more senior service personnel and very junior service personnel could reasonably possibly be characterised as occurring in the ordinary course of social interaction in the circumstances so as not to constitute an offence of assault, we are satisfied that it is in the interests of justice that an extension of time should be granted. Leave to appeal 26 The applicant also requires leave to appeal in respect of both proposed grounds of appeal for the reasons we have outlined above. The principles in this regard are well established and were recently stated in Poulton at [17] as follows: As the Tribunal has observed in the past (Angre v Chief of Navy (No 3) [2017] ADFDAT 2, at [42] – [43]), by analogy with observations which have been made in relation to purpose of a requirement for leave to appeal generally (Coulter v R (1988) 164 CLR 350, at 359), the purpose of the requirement for leave found in s 20(1) of the Appeals Act is to serve as a filter on unmeritorious or trifling appeals, or those which would obviously fail. But where, as particularised, a proposed ground of appeal is reasonably arguable and, if upheld, would result in a conviction being set aside if leave were to be granted and the appeal heard, it is difficult to envisage circumstances in which it would be appropriate to refuse leave. 27 As we observed in relation to the question of whether an extension of time should be granted, the proposed grounds of appeal in the present case are reasonably arguable and raise a point of general concern. Accordingly, it is appropriate to grant leave to appeal in the present case. Second ground of appeal 28 The second ground of appeal was that the DFM erred in failing to consider whether the prosecution had properly negatived beyond reasonable doubt "any defence of mistake as to the issue of consent that was available to the Appellant". The mistaken belief relied upon in the present case was formulated at one point by Mr Clutterbuck of counsel, who appeared for the applicant, as being that the applicant "had lawful authority to touch the two cadets in the way in which he did to move them out of the way". It was implicit that this belief that the touching of the cadets was not unlawful was based on the contention that it did not go beyond ordinary social interaction, relying on the principle in Collins v Wilcock at WLR 1177. 29 Whether a person is criminally responsible for a service offence when acting under a mistake of fact is governed by s 9.1, in Ch 2 of the Criminal Code (Cth) (the Criminal Code). Chapter 2 of the Code is applicable to all service offences under the DFDA by virtue of s 10 of that Act. 30 Section 9.1 of the Criminal Code states: (1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if: (a) at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and (b) the existence of that mistaken belief or ignorance negates any fault element applying to that physical element. (2) In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances. 31 In the present case, the relevant physical element for the purposes of s 9.1 of the Criminal Code was that the applicant's conduct of touching the two cadets was unlawful and the corresponding fault element, in accordance with s 5.6 of the Code, was that the applicant was reckless as to whether the conduct was unlawful. Since the fault element was one other than negligence, s 9.1 was potentially engaged. 32 Where, however, a defendant, such as the applicant, wishes to rely on the exemption from criminal responsibility such as that arising under s 9.1 of the Criminal Code, s 13.3 of the Code applies and relevantly provides: … (2) A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 [which includes s 9.1] … bears an evidential burden in relation to that matter. … (4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court. (5) The question whether an evidential burden has been discharged is one of law. (6) In this Code: evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. [emphasis in original] 33 At the hearing before the DFM, the applicant contended that his conduct was lawful under Collins v Wilcock, being nothing more than ordinary social interaction. The question of whether the applicant was mistaken as to whether his conduct was lawful on that basis, and therefore he was not criminally responsible under s 9.1 of the Criminal Code, was not expressly raised before the DFM. Nevertheless, we accept that the failure to raise the matter during the hearing before the DFM does not foreclose consideration of the issue. The DFM was required to consider any defence reasonably available to the applicant on the evidence adduced: Pemble v The Queen (1971) 124 CLR 107 at 117-118 (Barwick CJ); [1971] HCA 20; Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 at [83] (McHugh J). 34 At the hearing in the Tribunal, the applicant identified the relevant evidence said to discharge his evidential onus on this issue as the following answers he had given in response to questions asked of him by Military Police when they interviewed him about the assault allegations on 21 April 2023: Q60. Just something to reiterate what Mel asked earlier, is it common practice for ARA or G Res to get in front of a line of the cadets? A Once again, that depends on the scenario on the day. It depends on the – I'll use the term "supervisor". If there's a supervisor of the cadets, some of them will ensure that every single time an air force or an army or tri-service person walks in, that they are to get out of the road. Some of them don't police that. Other kids will do it of their own accord. Other cadet kids themselves will tell other kids to get out of the road, and some don't care. There is - I'll say there's no written law or rule about it. Sometimes they do, sometimes they don't. If we've got nowhere to be, I don't care. I'll stand in there and, you know, to be honest the mess food isn't that great. I don't really need to be at the front of the queue. It's not exciting, right, but as a general rule someone will instruct them to get out of our road, because they're on, for the lack of a better word, more important things than a bivouac on school holidays. Q61. Yes, okay. So more like an unspoken, unwritten SOP type thing? A In a roundabout way, yes. Once again, depending on who is overseeing at the time and - and whether they do or don't police that and - and at what level they police it. Q62. Yes, all right. Thanks for that. The next question I do want to ask is, you've just mentioned "real soldiers" a couple of times. I just want to get an understanding of what you mean by "real soldiers". A As opposed to cadets. Q63. Okay. So that's not like ARA, G Res? Just anyone other than cadets? A Anyone other than cadets. Yes, okay. Thank you. Q64. Just to sum up what you've already explained to us, and then what - is that - particularly with the cadets, is that you had noticed that there was the cadet instructor there. At that time she wasn't really policing your guys coming through. You've approached them, just placed your hands on their shoulders, asked them to move, as the other guys needed to come in. You didn't hear them say anything, or you can't recall if they did say anything, but they've stepped back, allowed them to go through, and that was pretty much it; you're all done. A That was it. Q65. Just to reiterate with the questions, is that you have been to Williamtown numerous times before, but you've got here the start of this week, so Monday, and that usually, if you're doing a course, you'll eat at the airmen's mess. It's kind of just a thing, that you guys all eat together, and that you've just mentioned that, when you're referring to real soldiers, it's ones that are not cadets, that are school-aged. That's the ones that - - - A Correct, but yeah, permanent air force, reserve air force, permanent army, reserve army, SERCAT 3. Q66. That's what you're referring to as - - - A The delineation was not a cadet. Q67. Yes, and you can't speak for others, but usually you'd say that when they go in it's usually a one for one. Some of the cadets will tell people to move out of the way if other ones are coming through that are required to be served earlier, and that when you did approach them their backs were facing towards you. They were facing the bain-maries. They hadn't received their food yet. They were just waiting there in line. A Correct. 35 The applicant contended that this portion of his interview amounted to evidence that suggested a reasonable possibility that he held a mistaken belief as to the lawfulness of his touching of the cadets. 36 We disagree. 37 It is apparent that the answers given by the applicant were with respect to his general understanding of how cadets lining up to be served at the Airmen's mess might be supervised and what practices might be adopted to allow other personnel to be served before them. His answers were not specific to his state of mind on the particular occasion in question, when it was apparent that the cadets were not under his command and there were numerous supervisors on hand, proactively regulating the flow of cadets in the meal line. Further, the applicant said nothing that might suggest he had a mistaken belief that he was authorised or entitled to touch the cadets as part of any supervision of their activities. By his own admission, when it was necessary to intervene someone would "instruct" the cadets to make way for other personnel. Moreover, as we discuss further below, when later asked in the interview why he had touched the cadets the applicant said, "I don't know." 38 In our view, there was no evidence adduced at the hearing before the DFM capable of discharging the evidential burden cast upon the applicant by virtue of s 13.3 of the Criminal Code. Consequently, there was no defence of mistake as to the issue of consent available to the applicant for the DFM to consider. 39 In any event, the terms of s 9.1 of the Criminal Code present a number of other difficulties for this ground of appeal. First, in order to come within the operation of that section, the applicant must at the relevant time have been "under a mistaken belief about … facts", as referred to in s 9.1(1)(a). If the belief that "he had lawful authority to touch the two cadets to move out of the way" identified in oral submissions is relied on, such a belief appears to be about a matter of law, or mixed fact and law, rather than a belief about facts. Consequently, s 9.1, which is relevantly limited to mistaken beliefs about facts, would not be available to the applicant in respect of that mistaken belief. If, however, the relevant belief was that his conduct did not go beyond ordinary social interaction, this would be a belief about facts, and would attract the operation of s 9.1, if it were otherwise applicable. 40 Secondly, even if the applicant was at the relevant time acting under a mistaken belief about facts, he would only be relieved of criminal responsibility under s 9.1 if the existence of that mistaken belief negated the fault element applying to the physical element, namely the unlawfulness of the touching, by virtue of s 9.1(1)(b). As noted above, the fault element in relation to the circumstance that the touching was unlawful is recklessness. Under s 5.4(1) of the Criminal Code, a person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. 41 Accordingly, the fault element in relation to the unlawfulness of the touching would be established if the applicant was aware of a substantial risk that the touching was unlawful and, in the circumstances known to the applicant, it was unjustifiable to take the risk. Assuming for the purposes of argument that there was a reasonable possibility that the applicant was acting under a mistaken belief that the touching was lawful because it did not go beyond ordinary social interaction, that would not by itself negate the fault element of recklessness. This is because even if the applicant was mistaken as to whether his conduct was lawful this would not negate that, as the DFM found, he was also aware of a substantial risk that his conduct was not lawful and, in the circumstances known to him, it was unjustifiable to take the risk. If the existence of the mistaken belief would not negate the relevant fault element, as required by s 9.1(1)(b), the applicant could not be relieved of criminal responsibility under s 9.1(1) and thus there would be no material irregularity as a result of the DFM's failure to consider the issue of mistake. 42 Finally, even if the applicant had a mistaken belief that the touching was lawful because it did not go beyond ordinary social interaction, we consider that would not have been a reasonable belief for the applicant to have held in all the circumstances. 43 Thus, the DFM did not err by failing expressly to consider whether the prosecution had "properly negatived beyond reasonable doubt any defence of mistake as to the issue of consent available to the Appellant". The relief from criminal responsibility provided by s 9.1 of the Criminal Code was not "available to the Appellant" in the circumstances of the present case. Thus, there was no "material irregularity in the course of the proceedings before the … Defence Force Magistrate" within s 23(1)(c). 44 Given this conclusion, the issue of whether a substantial miscarriage of justice has occurred, for the purposes of s 23(1)(c) of the DFDA Act, does not arise. 45 For these reasons, the second ground of appeal should be rejected. First ground of appeal 46 As noted above, the first ground of appeal raised the issue of whether the two convictions were unreasonable or could not be supported, having regard to the evidence. Relevant principles 47 The principles to be applied by the Tribunal in determining such a ground of appeal are well established and reflect the principles applied by Courts of Criminal Appeal in civilian criminal appeals involving the same, or substantially the same, ground of appeal. The principles have been summarised in Private R Army v Chief of Army [2022] ADFDAT 1 (Private R) at [34] (Logan, Perry and Barr JJ) as follows: (a) The Tribunal must address the question whether, upon the whole of the evidence, it was open to the DFM to be satisfied beyond a reasonable doubt that the applicant was guilty? (b) To address that question, the Tribunal must make an independent assessment of the sufficiency and quality of the evidence. (c) The conviction must be set aside if the Tribunal decides that the DFM must, not might, have had a reasonable doubt about the appellant's guilt, even if there is sufficient evidence in law to support it. (d) A doubt experienced by the Tribunal will be a doubt which a DFM ought also to have experienced, except where the DFM's advantage of seeing and hearing the evidence is capable of resolving a doubt experienced by the Tribunal. [Emphasis in original] 48 An appeal from a DFM is analogous to an appeal from a judge sitting alone in a civilian criminal trial: Private R at [36]. For this reason, the comments by the High Court in Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (Dansie) concerning an appeal from a judge alone trial on an unreasonable verdict ground are applicable, mutatis mutandis, to the Tribunal in the present case. In Dansie, Gageler, Keane, Gordon, Steward and Gleeson JJ held at [7], [16] and [17]: 7. Nevertheless, as the decision under appeal illustrates, undue attention to the factual findings on which the trial judge relied in returning a verdict of guilty can distract the Court of Criminal Appeal from the proper performance of the assessment required of it … when determining on an appeal against conviction whether the verdict 'should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence'. That is because the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence. … 16. Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial. 17. The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial. … 49 In short, the question for the Tribunal in relation to the first ground of appeal is whether the Tribunal's assessment of the totality of the evidence leaves it with a reasonable doubt as to guilt which cannot be assuaged by having regard to such advantage as the DFM had by reason of having seen and heard the evidence at first instance. 50 Finally, it can be noted that the evidence in the present case included Exhibit 2, a video recording of the applicant's interview with Leading Seaman Slade and Corporal Ryan on 21 April 2023. In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell), the High Court held, at [36] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ), that a Court of Criminal Appeal should not, as a general rule, view a video recording of a witness's evidence when making its independent assessment of the evidence for the purposes of determining an unreasonable verdict ground of appeal. Their Honours went on, however, to say at [36]: … There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the video-recording. But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court. [Footnotes omitted] 51 The issue was also considered by the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [28]-[35] (French CJ, Gummow and Kiefel JJ) where, inter alia, their Honours endorsed the reasoning of Simpson J in the Court of Criminal Appeal that viewing the recording of one witness might create an imbalance, given that the Court would not be viewing video recordings of the evidence of other witnesses. 52 The general approach endorsed by the High Court was said to reflect the functional demarcation between the province of the jury (or other tribunal of fact) and the province of the appellate court, which demarcation had not been superseded by the improvements in technology that have made the video-recording of witnesses possible: Pell at [38]. Similar reasoning applies to the Tribunal in its role in dealing with appeals from a court martial or a DFM. 53 The approach identified above has been taken in the Tribunal in relation to an appellant's video recorded interview, in Kantibye v Chief of Army (No 2) [2022] ADFDAT 4 at [19]-[22] (Logan J, Brereton JA and Perry J). In that case, however, the Tribunal determined to view a portion of the video recording on the basis that the relevant part – a relatively short excerpt – was identified and the appellant in that case wished to submit that the DFM erred in considering the appellant's response on that occasion to be "unnecessarily defensive and combative" such as to contribute to a conclusion that his evidence was unconvincing and that submission could not fairly be evaluated without reviewing that portion of the video recording. 54 In the present case, a limited portion of Exhibit 2 was identified and was accepted by both parties as being appropriate for the Tribunal to view as it contained a demonstration by the applicant of what he did not and did do when touching the two cadets, and this demonstration was not described in the transcript. In our view, it was necessary and appropriate to view this portion in order to understand the applicant's answer and to carry out an independent review of the evidence as a whole. Review of the evidence as a whole 55 In light of these principles, the members of the Tribunal have each conducted their own independent assessments of the evidence, taking into account the parties' arguments in the appeal and treating the DFM's findings of fact with circumspection so as not to be diverted from the task required to be performed but taking into account, where appropriate, the DFM's findings about which no issue was taken in the appeal. 56 At the commencement of the hearing before the DFM on 20 November 2023, the applicant was arraigned and pleaded not guilty to both charges of assault. The elements which the prosecution was required to prove beyond reasonable doubt in respect of each charge were identified in opening as follows: (1) The accused was a Defence member; (2) The accused was at least reckless as to the fact that he was a Defence member; (3) The accused was on service land; (4) The accused was at least reckless as to being on service land; (5) The accused engaged in conduct alleged in the charge, mainly [sic namely] that he touched the upper bodies of LCDTs [T] and [V]; (6) The accused's conduct alleged in the charge was intentional; (7) The accused's conduct resulted in the infliction of force on LCDT's [T] and [V]; (8) The accused was at least reckless as to whether his conduct would inflict force on the LCDTs [T] and [V]; (9) That LCDT's [T] and [V] did not consented to the conduct of the accused; (10) The accused was at least reckless as to whether LCDTs [T] and [V] consented to the conduct of the accused; (11) The accused's conduct was unlawful; and (12) The accused was at least reckless as to the unlawfulness of the conduct. 57 After the prosecution opening, the defending officer identified that the defence case was that, whilst it was conceded that the applicant touched the cadets, that touching was lawful in that it was nothing more than ordinary social interaction, relying on Collins v Wilcock. In other words, and as was made clear during closing addresses, the only elements in issue were elements (11) and (12). The DFM was satisfied that each of the elements (1) to (10) had been proved beyond reasonable doubt and there was no challenge on this appeal to that aspect of the DFM's reasons. 58 All the evidence has been reviewed, as a whole. For the purposes of these reasons, however, it is sufficient to note that the most pertinent aspects of the evidence include what follows. 59 Exhibit 1 was the CCTV footage of the foyer of the Airmen's mess, which also provided a limited view of the area of the mess between the bain-marie and the meal pass table and other tables. Exhibit 3 was a timeline aide-memoire which identified persons and activities shown on the CCTV footage at various time stamps on the footage. Portions of the footage were played during the hearing and the entire footage has also been reviewed separately. From the CCTV footage, it was not possible to see exactly what occurred in the interaction between the applicant and the two cadets in the meal line. The significant aspects of the footage included that: (1) both in the foyer of the Airmen's mess and in the meal line, the Air Force Cadets including Leading Cadets T and V were supervised by Air Force Cadet instructors (Corporal Hinton, Leading Aircraftwoman Davies and Aircraftwoman Jimmieson) and the cadets' conduct was appropriate and orderly; (2) other Air Force and Army personnel were in the meal line from time to time and the meal line appeared to be progressing smoothly prior to the incident; (3) Army personnel, Corporal Cheriyapaniyeri and Private Crangle, were in the meal line behind Leading Cadets T and V; (4) after the applicant approached the cadets in the meal line, the cadet farther away from the bain-marie appeared to take a step back to his right; (5) the incident took place at about 11:49 am; and (6) less than 30 seconds after the interaction between the applicant and the two cadets, Corporal Hinton, who had been supervising the cadets in the meal line, came out into the foyer and spoke to Flying Officer Hinton, who was the officer in charge of the cadets, and two other Air Force Cadet staff members. Corporal Hinton could be seen demonstrating the nature of the touching of the cadets that she had seen in the meal line. Her demonstration was of pushing from the front at about the level of the upper chest just below the shoulder with flat, open palms. 60 While it is difficult to ascertain precisely what occurred from the CCTV footage, it appeared that as a result of the applicant's intervention, Corporal Cheriyapaniyeri and Private Crangle were served before Leading Cadets T and V and may have received their meals up to about a minute earlier than would have been the case if the two cadets had not been moved out of their place in the meal line. 61 The next exhibit played at trial was Exhibit 2, the video recording of the interview with the applicant. Exhibit 4 was a transcript of the interview. As explained above, the members of the Tribunal watched the portion of Exhibit 2 played during the Tribunal hearing in which the applicant explained how he did and did not touch the cadets but otherwise reviewed the transcript of the interview. We have taken into account all of that material except for the last question in Q92 and the answer to that question, which the DFM rejected. Salient aspects of the interview included that: (1) Corporal Cheriyapaniyeri and Private Crangle were instructing on a course with the applicant and they were held up as a result of a task that they were completing. The applicant saw them enter the mess and attempt to get their meals but he noticed that there were two Air Force Cadets in front of them. (2) The applicant was aware that there was an Air Force Cadet staff member who was prioritising Air Force and Army soldiers to overtake cadets to get their meals "as a matter of respect or the fact that we've got places to be and jobs to do…". (3) As to the specific incident, the applicant's account was "I placed my right hand on the right shoulder of the right [cadet] and my left hand on the left shoulder of the left [cadet]" and asked them to "jump out of the road" to make way for two "real soldiers" who were on a tight schedule and the two cadets stepped rearwards and to the left and the corporal and private moved to the front of the queue. (4) The applicant was first informed that there had been a complaint in a telephone call from the Regimental Sergeant Major about five hours later. (5) The applicant did not speak to the Air Force Cadet staff member supervising the cadets. (6) When the applicant approached the two cadets they had their backs to him as they were facing the bain-marie. The interview then included: Q51. Was it just, like, or how did you get their attention to tell them to move out of the way? A By speaking to them. 'Excuse me, guys. Can use jump out of the road? I've got real soldiers need to come through'. I didn't pick them up and throw them out of the road. There was absolutely no violence involved in it whatsoever, and any referral to that is a complete fabricated bullshit. So I placed my hand on their shoulders. … Q54. Did they make any comments? A Did they say anything? I didn't hear them say anything, but they obliged by standing back, and I would say they did it at their will. At no stage did I have to physically draw them back. (7) The applicant explained that in the mess as a general rule someone would instruct cadets to get out of the road for other Defence Force personnel "because they're on, for the lack of a better word, more important things than a bivouac on school holidays". He also clarified that when he referred to "real soldiers" he was referring to "anyone other than cadets". (8) The applicant had undertaken mandatory awareness training in relation to Defence youth protection on 30 March 2023 and explained his understanding of aspects of this training. (9) The applicant specifically denied that in touching the cadets he put his hands out in front of himself and then separated the cadets by pushing one hand fully out to the left and the other to the right. He said, and demonstrated, that he put his hands with flat palms down on the cadets' shoulders and "moved them, essentially, beside me [indicating to his left] to allow other people to walk to their front". The applicant said the cadets "moved under their own steam" and he "did not physically shove them from anywhere". (10) The interview then included: Q99. Why did you place your hands on them? A I don't know. Q100. Did you think that your voice would be able enough to get their attention to move? A I don't know. … Q106. Right. Just to clarify, is that usually – to get someone's attention, be it child or adult over the age of 18, would you typically place your hand on them to get their attention if they were facing away from you, or is that something that's --- A Depending on the scenario. 62 It was not in dispute that both cadets were 13 years old at the relevant time. 63 The first witness called to give evidence was Leading Cadet V. A sketch of the Airmen's mess and some photographs of the mess became Exhibits 5, 6 and 7. Leading Cadet V's evidence included: I had already grabbed a plate and I let two RAAF members in front of me, which they did go in front of me. And after that, there were also two RAAF members behind me, and so which I insisted on letting them in front. But one of my staff members told me not to, as we had places to be, and so I didn't let them in front. And a few moments later, a sergeant in green camo with a bald head and glasses, he intercepted and he put his right hand just below my shoulder, and he held my friend [T] with the other, and he pushed us behind in order to let two RAAF members in front, which I wasn't too sure what happened after that. 64 Leading Cadet V said that he felt "pretty confused" by what occurred and he "kept replaying the event when [he] sat down for lunch because [he] wasn't too sure if [he] was right or wrong during that incident". He also said that he did not consent to the person putting his hand on him. 65 In cross examination, Leading Cadet V said that he spoke to the Military Police and the person in command of his detachment about the incident and that he and Leading Cadet T, that night or over lunch, "asked each other what sort of happened" but otherwise denied that he had spoken to anyone about what happened in the period before his interview with the Military Police. 66 Leading Cadet V agreed that in the Airmen's mess there was general noise of people having conversations. When the applicant came over to him, Leading Cadet V said he was facing towards the front of the line and Leading Cadet T was behind him. The applicant came from his right side and put his hand on his left shoulder, which the witness demonstrated by placing "his right hand between the breast and collarbone of his left shoulder with a flat hand". The cadet in effect denied that the applicant said "excuse me guys" and only remembered him saying that "they had places to go". He believed that the applicant put his hand on both himself and the other cadet at about the same time. Leading Cadet V said that as soon as the applicant put his hand on his shoulder, he "felt his force against when [he] was trying to walk forward so [he] just walked back to let those two members in front" but he did not stumble. He agreed that he felt the weight of the applicant's hand directing him back so that he could let the two members in front. Although he had previously described the two members as being from the RAAF, he said he did not remember whether they were Air Force or Army. The witness also agreed that he felt "a small amount of force that was directing [him] where to go" and it was not a shove or anything like that; nor was he grabbed or restrained. Rather, he said "[h]e just pushed me back". The cadet also agreed that in his statement to the Military Police he described what occurred as "kind of pushed us back" and agreed that his memory at that time was better than it was when he gave evidence. He said that he did not remember any of the Air Force Cadet staff coming over to him and asking how he was after the incident. 67 The next witness was Leading Cadet T whose account of what happened included: It was a really busy day, we lined up to get food, me and [V], and I saw two people in green flight suits. I let them in front of me and then the LACW told me not to do – not let anyone in front of me because we have a really busy day and we can't really – we have to rush it. So – and then I saw – and then a loud noise happened. I had to look. I didn't really see what it was, looked back and continued my conversation with [V], and then picked up my plate. I was about to grab the spoon for my food and I got left – I believe touched on the back of my neck in the back of my right shoulder and pulled away. 68 The witness said that the person, whom he identified as a sergeant, said "[w]e've got places to be" with an angry face. He said it made him feel shocked and surprised. The cadet also described what happened as "[h]e pulled me towards like the cutlery and I stumbled a bit. I was about to trip over and he let go…". It was then said that the applicant went "to grab food and then the staff, which was the LACW, the ACW and Corporal … came up to me and asked if I was all right and if [V] was all right". He denied that he had given consent for the applicant to touch him and also said that he believed that Corporal Hinton had spoken to him just when he sat down to get food. 69 Leading Cadet T explained how he came to provide a statement to the Military Police. He then agreed that he was facing towards the food and the plates and [V] was to his left, although he could not remember which way he was facing just before the applicant touched him. The witness said that he felt two hands, one on the back of the neck and another hand on the shoulder, and agreed that he was pulled back and he remembered seeing the applicant grab the other cadet on his upper body after the applicant had touched the witness for two or four seconds. The cadet said that when he stumbled it was "kind of short but it … wasn't like just one step it was like five, six, seven steps" backwards towards the cutlery. The cadet maintained that the applicant did place a hand on his shoulder and rejected the suggestion that the applicant did not touch the back of his neck or that he was not dragged. He also said that he saw the applicant grab food, pick up a plate, put food on his plate and walk away towards the tables. 70 Leading Cadet T said it was when he was sitting at the table with his food that Corporal Hinton came and spoke to him after two minutes. The witness also confirmed that he did not consent to the applicant touching him. 71 Private Crangle was the next witness. He was an instructor on a course designed to qualify drivers on various vehicles along with the applicant and Corporal Cheriyapaniyeri, also known as Raj. The private recounted that he and Raj turned up to lunch late at about 12 noon and then described what happened as follows: There was quite a big lineup. There was a lot of people in there at the time so at least three or four Defence personnel in the front of the line and then followed by two Air Force cadets and then myself and Raj. And then [the applicant] came over to the air cadets, came up behind them and placed his right hand on the right shoulder of the cadet on the right because they were both facing towards the… cafeteria like where you have the food. So there were facing towards that, … and then his left hand on the left shoulder of the one behind, next to that air cadet. I believe it would have been for no longer than five seconds. He didn't apply any force or push them in any way and he asked them to move behind myself and Raj as we had timings to meet, and then try push us forward through the line. 72 The witness said that he left the mess at about 12:30 pm. He also said that the mess was not extremely loud. In cross examination, Private Crangle said that he was about a metre behind the cadet on the left of the applicant. 73 Corporal Hinton was called as the next witness and gave evidence of her service with the Australian Air Force Cadets. She said that on 18 April 2023 at lunch in the Airmen's mess her role was, as a staff member, to supervise the cadets, making sure they were using appropriate manners, lining up correctly, washing their hands and just keeping a general eye on them, together with other instructors, Aircraftwoman Jimmieson and Leading Aircraftwoman Davies. Corporal Hinton described what she saw as follows: I saw a member stand-up, who was sitting at the table directly in front of me. He was on the second chair to the right. I saw him stand up, pushed his chair backwards, and walk over to the bain-marie at the front of the line, with two of the detachment cadets were standing. From there, I saw the member raised both his left and right hands, with an open palm, and place them on the shoulder/chest region, pushing the two cadets backwards. [Her demonstration was recorded as being "a pushing motion forward"] … From there, the cadets had to grab themselves, so take a small step pace just to steady themselves so they didn't fall over, and then I saw the member indicate with his left hand to call what I believe are members that were with him, to move forward to the front of the line so they could be served before the two cadets that were there. 74 The witness said she took steps to identify the member who had pushed the cadets including his name and rank. Her evidence was that she then walked directly from where she was standing to meet the two other staff members and asked if they had seen what occurred. She then said that after making sure the member had returned to his seat and there were no other incidents, she went directly out of the door to tell the detachment commander, who was standing in the foyer, what had happened. The corporal then returned and checked on the cadets, asking them if they were okay. 75 In cross examination, Corporal Hinton said that from memory the two cadets were facing the bain-marie and she was standing at the back of the drink station which she estimated to be about no more than 10 to 12 m away, also saying "it wasn't far". She described the applicant approaching them as "definitely [not] straight on. There was movement around to the side" but he approached them from their front. The witness agreed that the mess was largely full and that there was a hum of conversation. She also gave evidence that she was instructed by her detachment commander to write up an incident report which she did separately from ACW Jimmieson. 76 Corporal Hinton's evidence was that the applicant had one hand on one cadet and one hand on the other cadet's shoulder or chest region, "like the collarbone area", and she could see an open palm of each hand. She rejected the suggestion that the applicant had touched the cadets from behind reaching over their shoulders because she remembered him with openhanded palms pushing forward not from behind. The corporal said that Leading Cadet V stumbled backwards maybe about 0.2 m, saying "it wasn't a lot", and she confirmed that her evidence was that the applicant just walked up to the cadets and pushed them backwards. 77 Aircraftwoman Jimmieson was called next and she explained her role in the Australian Air Force Cadets. On 18 April 2023 in the Airmen's mess her role was to supervise the cadets, ensuring that everything ran smoothly and there was no impeding of Air Force members and service personnel who were in the mess at the same time. Her evidence was that at the relevant time she was standing at the table where people swipe their passes as they come in from the foyer into the mess hall and what occurred was as follows: … that day we were in at the same time as the military personnel, realised that it was going to be quite a mission to get our cadets through at the same time as the Defence personnel and maintain the schedules that we needed to. So on that day we decided to single file in a zipper fashion with the cadets and the serving members, that way we could all go to where we normally go, because generally we would let the Defence personnel in. So that day we were doing that. … we had two of our cadets that were waiting ready to go. There were two army members behind them, and one of – a senior sergeant from the army walked from somewhere behind me towards our cadets in the mess line, and essentially moved them out of the way, or directed them out of the way, and gestured for his men, I guess, to jump in front of them as they had places to be. 78 She went on to describe the applicant coming in front of the cadets and moving them towards his left to get the two members to come forward. In doing so, she said "he touched them on the shoulders essentially and moved them towards – it wasn't an extremely aggressive movement or anything, but it was more like just a tap on the shoulder. It wasn't going to knock them off their feet or anything like that". She clarified that it was a "tap kind of push" and it was not a "forceful push" and the cadets stepped backwards, as they were touched, and she said they looked confused. As to what she did next, the witness said: I looked for one of my superior or supervising staff members to ask them essentially if they'd seen what I saw, and that's where Georgia [Hinton] came up beside me and I'd asked her did she see that, and she said yes, and then she went and reported to Andrew Hinton as well, and I just continued to supervise the cadets. 79 In cross examination, Aircraftwoman Jimmieson estimated that she was roughly 2 to 3 m away from the two cadets at the time of the incident. 80 Corporal Cheriyapaniyeri was the next witness called. His evidence was that on 18 April 2023 he was an instructor on a drivers' course along with the applicant, Private Crangle and others. He said that he and Private Crangle were a little late getting to the mess for lunch and while they were in the line waiting to be served the applicant "came in and asked us to move forward and we had two air force cadets in front of us, and they moved back". On this witness's account, the cadets moved back behind them because the applicant asked them to but he did not hear what was said. The witness said that he was in the mess for 15 to 20 minutes. 81 In cross examination, the corporal said that the cadets were approximately 3 m or so in front of him and he could not remember properly seeing any cadets stumble backwards or anything like that. The witness accepted that there was nothing about the interaction of the applicant and the cadets that drew his attention to them. As the Tribunal understood it, this witness's evidence was not that the incident did not occur but rather that he did not observe anything that relevantly occurred. 82 Aircraftwoman Davies gave evidence next and she indicated that on 18 April 2023 at lunchtime in the Airmen's mess, her role was supervising cadets in the mess. Her evidence was that she was standing 2 or 3 m away from the table where members scan their passes as they come in from the foyer. Her account of what occurred was as follows: … I do remember kind of turning around and seeing I suppose what was happening and there was someone standing there in front of our two cadets sort of like – I remember somewhat of an arm being up I suppose. And then two Defence Force members wearing the green cams were kind of pointed at and said like, 'get over here', and they moved in front of our cadets and just carried on with their mess from there. 83 The person with their arm up was described as tall, wearing green cams as well with short hair or bald hair but the witness only saw the back of their head at the time. The witness's evidence was that it was very noisy in the mess that day. 84 In cross examination, Aircraftwoman Davies said that her attention was drawn to the incident as it was happening and "it was quite abrupt … The way that he kind of went about saying that". She also said that she did not "particularly see [the cadets] take any steps, but they looked quite, like, taken aback, I suppose, from what was happening. Confused, … as was I". 85 The last witness called was Sergeant Tustian who was the ADF Investigations Team Leader who conducted the investigation, took witness statements from Leading Cadets T and V and obtained the CCTV footage from the Airmen's mess. In cross examination, the witness was asked questions concerning the conduct of the investigation and the obtaining of evidence. 86 In the applicant's case, three character references were tendered: a reference from Major Green dated 6 November 2023, Exhibit 9; a reference from Major Taylor dated 2 November 2023, Exhibit 10; and a reference from Squadron Leader Machan dated 2 November 2023, Exhibit 11. Furthermore, it was expressly agreed by the parties that the applicant had no service offences on his record and that he was of good character. 87 After the close of the defence case, the DFM expressly confirmed with the parties that "the only element in question … the only fact in issue is whether [the applicant's placing hands on the cadets] was unlawful" and thus "the prosecution have to prove beyond a reasonable doubt it's unlawful, that any application of force, however slight, has gone beyond that to be expected in ordinary social intercourse". In addition, apart from a good character direction and standard directions, no other directions were sought by defence counsel when the DFM enquired in that regard. Consideration of whether the DFM must have had a reasonable doubt about the applicant's guilt 88 There was no dispute about elements (1) to (10). The evidence provided more than adequate support for each of those elements to be found to have been proved beyond reasonable doubt and the DFM made such findings, which were unchallenged. Most significantly, there was no dispute and the applicant conceded in his interview that he touched the two cadets. There was also unchallenged evidence that those cadets did not consent to being touched by the applicant. 89 On a review of the evidence as a whole, it appeared that Leading Cadet T's evidence of being grabbed by the applicant and stumbling back "five, six, seven steps" was inconsistent not only with what could be seen on the CCTV footage but also with the evidence of the other witnesses who actually observed the interaction between the applicant and the two cadets. Accordingly, there would be a reasonable basis for rejecting Leading Cadet T's evidence to the extent that it was inconsistent with the evidence of the other witnesses. The rejection of that evidence would not, however, give rise to a reasonable doubt about the applicant's touching the two cadets or the circumstances in which that occurred. 90 Although there were some minor differences in descriptions by the witnesses who observed what occurred from different perspectives and positions, their accounts were in substance consistent with one another and with the CCTV footage. On the evidence as a whole, it appeared that the applicant left the table at which he was sitting, walked towards the meal line, did not speak to the Air Force Cadet instructors who were supervising the cadets in the meal line, put his open palms on the two cadets and moved them to his left in order to make way for Private Crangle and Corporal Cheriyapaniyeri, saying something to the effect that the cadets should get out of the way of the "real soldiers". There was no basis to entertain a reasonable doubt as to whether the applicant physically touched the cadets by putting his open palms on their upper chests or shoulders in order to move them out of the way. The only matter in issue was, in substance, whether that touching went beyond ordinary social interaction and was thus unlawful and, when taken into account with the other relevant elements, amounted to an assault. 91 In this regard, the principles in relation to battery, which apply equally to assault in the present case, were stated in Collins v Wilcock by Lord Goff of Chieveley (then Robert Goff LJ) at WLR 1177 as follows: The fundamental principle, plain and incontestable, is that every person's body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery. So Holt CJ held in 1704 that 'the least touching of another in anger is a battery': see Cole v Turner 6 Mod Rep 149, 90 ER 958. The breadth of the principle reflects the fundamental nature of the interest so protected; as Blackstone wrote in his Commentaries, 'the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner' (see 3 Bl Com 120). The effect is that everybody is protected not only against physical injury but against any form of physical molestation. But so widely drawn a principle must inevitably be subject to exceptions. For example, children may be subjected to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence or for the prevention of crime. But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped (see Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684). Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. We observe that, although in the past it has sometimes been stated that a battery is only committed where the action is 'angry, or revengeful, or rude, or insolent' (see 1 Hawk PC c 62, s 2), we think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception. 92 These principles in relation to assault have been endorsed by the High Court in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 233 (Mason CJ, Dawson, Toohey and Gaudron JJ) [1992] HCA 15: A further exception of this kind is reflected in Collins v. Wilcock, [(1984) 1 WLR 1172, at p 1177; (1984) 3 All ER 374, at p 378] where it was said that in respect of physical contact arising from the exigencies of everyday life – jostling in a street, social contact at parties and the like – there is an implied consent 'by all who move in society and so expose themselves to the risk of bodily contact', or that such encounters fall 'within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life'. 93 Whether physical contact is generally acceptable in the ordinary conduct of daily life will depend on the particular circumstances in which it occurs. 94 The first ground of appeal effectively requires the Tribunal to consider principally whether, on the whole of the evidence, there was a reasonable possibility that the applicant's touching the cadets 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. 95 The circumstances in which the touching of the cadets occurred in the present case were not substantially disputed. The circumstances included that the applicant was a senior non-commissioned officer and the cadets were young children, under the supervision of their instructors. The cadets along with the Defence Force personnel were entitled to be present and to be served meals in the Airmen's mess, the cadets were being supervised both in the foyer and in the meal line by Air Force Cadet instructors and the cadets were generally permitting adult service personnel to go in front of them in the meal line except where they were directed not to do so by their instructors. There was no evidence to suggest that the cadets were misbehaving in any way or causing any undue delay to the service of meals in the mess. In his interview, the applicant acknowledged that Air Force Cadet staff were supervising the cadets and were prioritising Air Force and Army personnel getting their meals. 96 The only inference reasonably available on the evidence was that the applicant's concern was that his fellow instructors on the drivers' course should not be delayed in being served their meals by the presence of two Air Force Cadets in front of them in the meal line. There was no evidence to suggest that the applicant was responsible for organising or supervising the meal line in the Airmen's mess. Nor was there evidence to suggest that Corporal Cheriyapaniyeri and Private Crangle going in front of the two cadets in the meal line would have achieved any substantial time saving for the Army personnel. 97 On the evidence as a whole, there was no, or no sufficient, basis to conclude that it was reasonably necessary for the applicant himself to move the two cadets out of the way to allow the Army personnel to go ahead of them in the meal line. Moreover, even if the applicant's intervention had been reasonably necessary, the obvious option available to him was to ask the Air Force Cadet instructors to direct the two cadets to allow Corporal Cheriyapaniyeri and Private Crangle to go ahead of the two cadets in the meal line. If that had been unsuccessful, the applicant might himself have asked, or directed, the two cadets to allow the corporal and the private to go ahead of them. On the evidence as a whole, it could not be concluded that the applicant was unaware of these options or that there was a reasonable possibility that he was not aware. Indeed, in his interview he responded to the question "how did you get their attention to tell them to move out of the way?" with the answer "[b]y speaking to them". There was no explanation on the evidence as to why the applicant could not or did not address his concern about the position of the private and the corporal in the meal line in those ways rather than by touching the cadets. 98 Furthermore, it is significant, when considering whether on the evidence in the present case there was a reasonable possibility that the applicant's touching the cadets did not go beyond ordinary social interaction or that which was generally acceptable in the ordinary conduct of daily life, that Leading Cadets T and V were young children, 13 years of age, members of the Australian Air Force Cadets under appropriate supervision, and that the applicant was a senior non-commissioned officer in the Army Reserve with significant authority but without any responsibility or role in respect of the cadets. 99 All of these considerations in the circumstances of the present case support the conclusion that the evidence as a whole did not raise the reasonable possibility that the applicant's conduct in touching the cadets in order to have them move out of the way was conduct which was generally acceptable in the ordinary conduct of daily life, particularly in the Australian Defence Force. What occurred in the present case was not reasonably necessary or appropriate in order to address the applicant's concerns about his fellow instructors being fed and was far removed from a person tapping someone on the shoulder because it was a reasonable way to get the person's attention, inevitable jostling in a supermarket, train station or a busy street, or social physical contact between adults. 100 The conclusion that the evidence as a whole did not raise the reasonable possibility that the conduct was such as to be generally acceptable in the ordinary conduct of daily life in the Australian Defence Force was reinforced by the evidence of a number of witnesses as to their reactions to the incident. Leading Cadet V and Leading Aircraftwoman Davies described being confused by what occurred. Leading Cadet T said he was shocked. Corporal Hinton immediately reported what had occurred to the officer in charge of the cadets and Aircraftwoman Jimmieson discussed what had occurred with her fellow cadet instructors. The evidence of these reactions, viewed in light of the evidence as a whole and not piecemeal, was inconsistent with what occurred being not out of the ordinary or being part of the usual conduct of daily life, in the circumstances. 101 In addition, having regard to the evidence as a whole, including what has been referred to in some detail above and the applicant's evidence in his recorded interview that he did not know why he touched the cadets, we did not experience any reasonable doubt as to whether the applicant was aware of a substantial risk that his conduct was unlawful, in that it was not such as to be generally acceptable in the ordinary conduct of daily life, or as to whether it was justifiable for the applicant to take the risk in the circumstances known to him. 102 For these reasons, on the independent assessment of the sufficiency and quality of the evidence made by each of us, we concluded that there was no, or no sufficient, reason why the DFM must have had a reasonable doubt as to any of the elements or as to the applicant's guilt on either charge. Accordingly, we reject the first ground of appeal to the effect that the applicant's conviction on each charge of assault was unreasonable, or could not be supported, having regard to the evidence. Orders 103 For these reasons, the orders of the Tribunal are: (1) Pursuant to s 21(1)(b) of the Defence Force Discipline Appeals Act 1955 (Cth), the time for lodging of the applicant's Notice of appeal and Application for leave to appeal is extended to 4 June 2024. (2) Pursuant to s 20(1) of the Defence Force Discipline Appeals Act 1955 (Cth), the applicant is granted leave to appeal. (3) The appeal is dismissed. I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Decision of the Honourable Justices Wright, Halley and Crowley. Associate: Dated: 14 October 2024