In the mater of an Appeal against conviction by a Defence Force Magistrate of Petty Officer Fire Control Linsey Peter Anning R113024 [1990] ADFDAT 2

In the mater of an Appeal against conviction by a Defence Force Magistrate of Petty Officer Fire Control Linsey Peter Anning R113024 [1990] ADFDAT 2

The Defence Force Magistrate applied an incorrect test for whether words were provocative under s.33, because the words had to be assessed in context as likely to lead to force, violence or disturbance, and the remarks in the first two charges, though tasteless and improper, did not have that character. The third conviction could not stand because the evidence supported at most encouragement of the recruit class leader, not the charged encouragement of members of the Recruit School. The fourth conviction could not stand because the improper comment, standing alone, was not of sufficient gravity to constitute behaviour likely to prejudice the discipline of the Defence Force under s.60.

Jurisdiction
Australia
Judgment Date
11 May 1990
Procedural Posture
Appeal Pursuant to S.20(1) of the Defence Force Discipline Appeal Act 1955 Against Convictions by a Defence Force Magistrate / Appeal Against Conviction
Outcome
Appeal allowed; four convictions quashed.
Legal Topics
['provocative Words' 'prejudicial Behaviour' 'sexual Harassment' 'adequacy of Particulars' 'discipline of the Defence Force']
['defence Force Discipline' 'military Law'] ['provocative Words' 'prejudicial Behaviour' 'sexual Harassment' 'adequacy of Particulars' 'discipline of the Defence Force']

Case Brief

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Procedural Posture

Appeal Pursuant to S.20(1) of the Defence Force Discipline Appeal Act 1955 Against Convictions by a Defence Force Magistrate / Appeal Against Conviction

Legal Issues

  1. 1 ['Whether the words alleged in the first and second charges were provocative words within the meaning of s.33 of the Defence Force Discipline Act 1982.' 'Whether adequate particulars were provided for the second charge under R.9(5) of the Defence Force Discipline Rules.' 'Whether the evidence supported a finding on the third charge that the appellant encouraged members of the Recruit School to rate the posteriors of female recruits.' 'Whether the remark alleged in the fourth charge constituted behaviour likely to prejudice the discipline of the Royal Australian Navy under s.60 of the Defence Force Discipline Act 1982.']

Ratio Decidendi

The Defence Force Magistrate applied an incorrect test for whether words were provocative under s.33, because the words had to be assessed in context as likely to lead to force, violence or disturbance, and the remarks in the first two charges, though tasteless and improper, did not have that character. The third conviction could not stand because the evidence supported at most encouragement of the recruit class leader, not the charged encouragement of members of the Recruit School. The fourth conviction could not stand because the improper comment, standing alone, was not of sufficient gravity to constitute behaviour likely to prejudice the discipline of the Defence Force under s.60.

Court Disposition

Appeal allowed; four convictions quashed.

Orders

  • ['The appeal is allowed.' 'The four convictions are quashed.']