Dunford v Chief of Army [2024] ADFDAT 1

Parties

Procedural Posture

Defence Force Discipline Appeal / Appeal Against Conviction (post Review and Petition, Application for Extension of Time and Leave to Appeal)

Legal Issues

1. 1 Whether the convictions for assault by unlawful touching were unreasonable or could not be supported having regard to the evidence
2. 2 Whether 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, and was thus not unlawful
3. 3 Whether the Defence Force Magistrate erred in failing to consider whether the prosecution had negatived beyond reasonable doubt any mistake (Criminal Code s 9.1) as to the issue of consent available to the applicant

Ratio Decidendi

On independent assessment of the evidence, there was no reasonable possibility that the applicant’s physical contact with the cadets was generally acceptable in the ordinary conduct of daily life or did not go beyond ordinary social interaction, particularly given the applicant’s authority and the age and supervised status of the cadets. There was no evidential basis for a mistake of fact defence as to consent that negatived the fault element, and no error or material irregularity was established in the proceedings. The appeal was dismissed.

Court Disposition

appeal dismissed

Orders

• Extension of time to 4 June 2024 for lodging notice of appeal and application for leave to appeal (s 21(1)(b) Defence Force Discipline Appeals Act 1955 (Cth))
• Applicant granted leave to appeal (s 20(1))