FEDERAL COURT OF AUSTRALIA

Li v Chief of Army [2013] FCAFC 20

Citation:		Li v Chief of Army [2013] FCAFC 20
Appeal from:		Li v Chief of Army (2012) 261 FLR 226
Parties:		TING LI v CHIEF OF ARMY
File number:		NSD 541 of 2012
Judges:		KEANE CJ, DOWSETT, LOGAN, JAGOT & YATES JJ
Date of judgment:		26 February 2013
Catchwords:		CRIMINAL LAW – court martial – restricted court martial – creating a disturbance – whether intention to commit disturbance required – meaning of “disturbance” – whether alternative charges available other than under Defence Force Discipline Act 1982 (Cth) – Criminal Code Act 1995 (Cth), Sch, ss 3.2, 4, Division 5 – Defence Force Discipline Act 1982 (Cth), ss 3, 20, 26, 33(b).
		DEFENCE AND WAR – court martial – restricted court martial – creating a disturbance – whether intention to commit disturbance required – meaning of “disturbance” –Criminal Code Act 1995 (Cth), Sch, ss 4.1, 5.2, 5.6 – Defence Force Discipline Act 1982 (Cth), ss 3, 20, 26, 33(b).
		HUMAN RIGHTS – discrimination – racial discrimination – whether person has consequential right to confront and protest another person who has allegedly engaged in racial discrimination –Racial Discrimination Act 1975 (Cth), s 18C.
Legislation:		Acts Interpretation Act 1901 (Cth) ss 13, 15AA Court Martial and Defence Force Magistrate Rules (Cth) r 9(2)(b) Criminal Code Act 1995 (Cth), ss 3, 4, 55 & Division 5 Defence Act 1903 (Cth) s 9A Defence Force Discipline Act 1982 (Cth) ss 3, 20, 26, 33, 52, 56, 57, 60 Defence Force Discipline Appeals Act 1955 (Cth) ss 4.2, 5.2, 5.6, 23, 26, 52 Defence Legislation (Application of Criminal Code) Act 2001 (Cth) Naval Defence Act 1910 (Cth) Racial Discrimination Act 1995 (Cth), s 18C Police Offences Act 1935 (Tas) ss 15, 15B Summary Offences Act (NT) s 47 Vagrants, Gaming and Other Offences Act 1931 (Qld) s 7 Armed Forces Act 2006 (UK) s 21 Courts-Martial (Appeals) Act 1951 Naval Discipline Act 1661 s 22 Naval Discipline Act 1957 Criminal Code 1985 (Canada) ss 55, 175 Summary Offences Act 1981 (NZ) s 4
Cases cited:		Addison v Chief Constable of the West Midlands Police [2004] 1 WLR 29 considered Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 cited Brooker v The Police [2007] 3 NZLR 91 considered Burdett v Abbot (1812) 4 Taunt 401 considered Coco v The Queen (1994) 179 CLR 427 applied Coleman v Power (2004) 220 CLR 1 considered Groves v The Commonwealth (1982) 150 CLR 113 cited Hembury v Chief of General Staff (1998) 193 CLR 641 applied Johnson v Miller (1937) 59 CLR 467 cited Jones v Chief of Navy (2012) 205 FCR 458 cited KBT v The Queen (KBT) (1997) 191 CLR 417 distinguished Kuru v New South Wales (2008) 236 CLR 1 considered Li v Chief of Army (2012) 261 FLR 226 referred to McLeod v United Kingdom (1998) 27 EHRR 493 considered Neave v Ryan [1958] Tas SR 58 considered Nilsson v McDonald (2009) 19 Tas R 173 considered Percy v Director of Public Prosecutions [1995] 1 WLR 1382 considered PJ v R [2012] VSCA 146 cited R (Laporte) v Chief Constable of Gloucestershire Constabulary (2007) 2 AC 105 cited R v Chief Constable of Devon and Cornwall; ex parte Central Electricity Generating Board [1982] QB 458 considered R v Howell [1982] QB 416 considered R v Lohnes [1992] 1 SCR 167 considered R v Saengsai-Or (2004) 61 NSWLR 135 approved R v The Justices of Clifton; ex parte McGovern [1903] St R Qd 177 cited R v Wei Tang (2008) 237 CLR 1 approved Re an Appeal against the Conviction of Anning (No DFDAT 5 of 1989) considered Re Pong Su (No 10)(2005) 154 A Crim R 19 approved Re Tracey; ex parte Ryan (1989) 166 CLR 518 cited Steel v United Kingdom (1998) 28 EHRR 603 considered Stoke-Graham v R (1985) 16 DLR (4th) 321 considered Tully v The Queen (2006) 230 CLR 234 cited Williams v Pinnuck (1983) 68 FLR 303 considered X v Australian Prudential Regulation Authority (2007) 226 CLR 630 cited New Shorter Oxford English Dictionary (Clarendon Press, 1993)
Date of hearing:	13 November 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	216
Counsel for the Appellant:	A. W. Street S.C. and P. Kerr
Solicitor for the Appellant:	Wyatt Attorneys
Counsel for the Respondent:	S. Lloyd S.C. and S. Callan
Solicitor for the Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 541 of 2012

ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

BETWEEN:	TING LI Appellant
AND:	CHIEF OF ARMY Respondent

JUDGES:	KEANE CJ, DOWSETT, LOGAN, JAGOT & YATES JJ
DATE OF ORDER:	26 FEBRUARY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 541 of 2012

ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

BETWEEN:	TING LI Appellant
AND:	CHIEF OF ARMY Respondent

JUDGES:	KEANE CJ, DOWSETT, LOGAN, JAGOT & YATES JJ
DATE:	26 FEBRUARY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

KEANE CJ, JAGOT & YATES JJ:

1    The appellant is a legal officer with the Australian Defence Force (ADF). He was charged with an offence under s 33(b) of the Defence Force Discipline Act 1982 (Cth) (the Discipline Act) arising out of an incident which occurred on 3 February 2010 at the Department’s offices at Campbell Park in the Australian Capital Territory.

2    Section 33(b) of the Discipline Act provides relevantly:

33    Assault, insulting or provocative words etc.

A person who is a defence member or a defence civilian is guilty of an offence if the person is on service land, in a service ship, service aircraft or service vehicle or in a public place and the person:

…

(b)  creates a disturbance or takes part in creating or continuing a disturbance…

3    The appellant was arraigned before a Restricted Court Martial. He pleaded not guilty to the charge which was framed as follows:

Being a Defence member at Defence Legal Division, Level 4 Campbell Park Offices on 3 February 2010 between approximately 10.30 and 11.00 in the vicinity of the office of Mr Andrew Snashall created a disturbance by causing a confrontation with Mr Snashall.

4    The amended particulars subjoined to the charge were that the appellant had:

a.    refused to leave Mr Snashall’s office when requested to do so by Mr Snashall and continued speaking to Mr Snashall in a raised voice;

b.    followed Mr Snashall and continued the conversation when Mr Snashall left his own office, ostensibly because MAJ Li would not;

c.    forcefully pushed against Mr Snashall’s office door placing his head and shoulder in the doorway while Mr Snashall was inside the office trying to close the door;

d.    re-entered Mr Snashall’s office and again refused to leave when requested to do so;

e.    stood approximately three inches from Mr Snashall’s face speaking with a raised voice and in an agitated and aggressive manner.

5    On 8 April 2011, the appellant was convicted of the charge. The appellant was sentenced to be severely reprimanded and fined $5,000, suspended as to $3,000.

6    The appellant appealed against his conviction to the Defence Force Discipline Appeal Tribunal (the Tribunal) pursuant to s 20 of the Defence Force Discipline Appeals Act 1955 (Cth) (the Appeals Act). He appealed on numerous grounds, most of which are no longer relevant.

7     On 16 March 2012, the Tribunal dismissed the appeal to it for reasons which are reported in Li v Chief of Army (2012) 261 FLR 226.

8    The appellant now appeals to this Court under s 52(1) of the Appeals Act. An appeal to this Court is available only “on a question of law involved in a decision of the Tribunal in respect of an appeal [to the Tribunal] under” the Appeals Act. Before turning to discuss the questions of law said to be involved in the decision of the Tribunal, it is desirable first to summarise the evidence adduced at the court martial and the issues raised in the appeal to the Tribunal insofar as those issues remain relevant to the questions agitated in the appeal to this Court.

THE EVIDENCE AT THE COURT MARTIAL

9    The evidence given to the court martial of the circumstances of the incident of 3 February 2010 was summarised by the Tribunal at [14]-[29] of its Reasons. What follows reflects that summary.

10    The appellant joined the ADF in 1995 as a sailor. After his discharge from the service, he studied law, joined the Army Reserve and, after qualifying as a lawyer, joined the Regular Army as a legal officer. At the time of this incident he was posted to Defence Legal in the office of the Director-General at the Campbell Park Offices, Campbell, in the Australian Capital Territory.

11    Mr Andrew Snashall held the position of Director of Special Financial Claims in the ADF. At all relevant times, Mr Snashall was the supervisor of staff who were located on a floor above the appellant’s office.

12    Mr Snashall first met the appellant when the appellant had sought to discuss a financial claim with Mr Snashall’s staff. Subsequently, in about July 2009, Mr Snashall encountered the appellant, his wife and infant child on a visit to the appellant’s workplace and allegedly made a remark: “I see you have been polluting the world with your genes”. The appellant thought this remark to be inappropriate and offensive, with a racial flavour, but said nothing. Nor did he make any complaint about Mr Snashall to the authorities.

13    The events giving rise to the charge took place during the morning of 3 February 2010 on the fourth level of the Campbell Park offices and mostly in and about an office occupied by Mr Snashall in the Special Financial Claims Directorate.

14    According to Mr Snashall, on various occasions through 2009, he observed the appellant talking to staff under Mr Snashall’s supervision. Mr Snashall considered some of the visits and their duration distracted his staff from their work. He spoke to the appellant on several occasions asking that the appellant cease these interruptions.

15    In the afternoon of 2 February 2010, Mr Snashall saw the appellant talking to an employee who was attending to urgent duties. Mr Snashall asked the appellant to leave and then returned to his office. The appellant went into an empty nearby office to make a private telephone call. Mr Snashall came into the room, queried the appellant’s presence in his directorate and asked him to leave. Each man gave evidence that the other spoke and acted aggressively.

16    The appellant gave evidence that, in the course of their subsequent conversation, Mr Snashall said words to the effect: “I meant everything I have said to you” over the past year. According to the appellant, this remark revived the comment made in July 2009 and indicated that it was meant offensively. According to the appellant, it was against this background that the appellant said that he returned to Mr Snashall’s office the following morning to seek an explanation for Mr Snashall’s attitude to him.

17    Mr Snashall did not accept that a conversation in these or similar terms occurred on 2 February 2010. He did make a note of the encounter and asked the appellant’s commanding officer, with whom he was discussing other matters that day, to remove the appellant from the spare office.

18    As to the incident of 3 February, Mr Snashall gave evidence that the appellant entered Mr Snashall’s office. Mr Snashall was using his telephone at the time. Mr Snashall observed the appellant leave his office. Mr Snashall was uncertain why the appellant had visited but, in view of the incident that had occurred on the previous evening, he spoke with Mr Mark Smith, who worked in an office next to Mr Snashall’s office, and asked him to wait in his (Mr Snashall’s) office. When the appellant did not re-appear, Mr Smith returned to his own office. Mr Snashall also spoke to Ms Donna Webster who worked next door in the Directorate.

19    Approximately 45 minutes later, the appellant returned to Mr Snashall’s office and initiated a conversation which related to the events of the previous day and to other grievances on the appellant’s part. Mr Snashall suggested that the appellant make a formal complaint and then asked him to leave his office. The appellant did not do so and continued talking. As a consequence, Mr Snashall left his office and commenced to walk along a hallway. The appellant followed and continued to talk to Mr Snashall.

20    Mr Snashall testified that he turned in the corridor and, still followed by the appellant, returned to his office. Mr Snashall attempted to close his office door but the appellant resisted and commenced to push against the door to prevent it closing. Mr Snashall said that after some seconds, he released the door and stepped back. According to Mr Snashall’s testimony, the appellant then walked over the threshold into the office, and stood directly in front of and in close proximity to him. The appellant spoke in a loud voice. Mr Snashall also spoke loudly, demanding that the appellant leave his office.

21    Ms Sandra Bennett, the Director of Litigation in Defence Legal, gave evidence. Her office was near Mr Snashall’s office. She heard Mr Snashall ask the appellant to leave several times. The voices were getting louder and more aggressive. There were other staff in the vicinity who were apparently drawn to the noise. Alarmed at the sound of raised voices, she left her office. Ms Bennett observed Mr Smith “standing close” to the two men. She asked the appellant to leave. He became quiet, apologised briefly to her and left.

22    Mr Smith also gave evidence. Mr Smith said that he was alerted to the confrontation between Mr Snashall and the appellant by Ms Webster. He had been deep in his work and had heard no raised voices. He then looked into Mr Snashall’s office and heard the appellant ask for an explanation. The argument became more heated. Mr Snashall asked the appellant to leave his office but he did not. Mr Smith heard Mr Snashall say that in that event he was leaving. Mr Smith saw Mr Snashall walk out of his office and down the corridor followed by the appellant. Mr Smith observed Mr Snashall return and enter his office followed by the appellant. Mr Snashall attempted to close his door; the appellant tried to open it. Mr Smith described this as “a bit of argy-bargy”. Mr Snashall released the door. The argument continued. Mr Smith felt he needed to intervene; and so he tried to step between them and put his hands up. Moments later, Ms Bennett intervened. The appellant then became calm and left.

23    Other personnel, who observed the altercation or were alerted to it, also gave evidence. Mr Andrew Towill, a civilian employed in Defence Legal, heard Mr Snashall ask the appellant several times to leave his office and the appellant say that he would not until he received an apology. He decided to stay in his office but noted other people congregating from different parts of the floor.

24    Mr Omar Khan, who worked in Defence Legal and was occupying an office in the vicinity of Mr Snashall’s, heard raised voices and observed that the appellant was agitated and heard mutual accusations of lack of professionalism. He heard Mr Snashall mention a complaint process but the appellant said that he wanted to be heard then. Mr Snashall returned. He heard, but did not see, the incident with the closing door. When the door opened Mr Khan was able to observe the two men face to face and thought the confrontation was “probably getting a bit out of hand” and got up from his desk. He observed Mr Smith, and then Ms Bennett, intervene.

25    Mr Matthew Pearson was employed in Defence Legal and on the morning of 3 February was discussing a work matter with Ms Webster whose office joined that of Mr Snashall. At the relevant time he was standing in the corridor near Mr Snashall’s office. He overheard the appellant and Mr Snashall engage in a conversation which became progressively louder. Mr Snashall asked the appellant to leave. Mr Pearson heard the appellant say he would not do so until he received an answer. Mr Pearson saw Mr Snashall leave his office, walk towards him down the corridor and followed by the appellant. He again heard Mr Snashall say the conversation was over and that the appellant should leave him alone. The appellant repeated that he would not do so until he received an answer. Before the two men reached Mr Pearson – some two or three metres away – Mr Snashall turned and attempted to enter his office and close the door. Mr Pearson saw the appellant put his foot in the doorway preventing its closure. He saw the door open and heard the appellant insist on an answer. He said the appellant was speaking “tersely”. Other witnesses had, by now, arrived. Mr Pearson noted the close proximity of the two men and was concerned that matters might escalate to physical contact. Mr Smith intervened and then Ms Bennett told the appellant to leave.

26    The appellant’s evidence of these events differed only somewhat from that of Mr Snashall and the other witnesses. The differences concern matters of detail which are not significant for the resolution of the issues agitated in this Court. The appellant acknowledged that he went to speak to Mr Snashall. He said that Mr Snashall was dismissive of him, stood up from his desk and walked past him out of the office. The appellant said that he was shocked at this behaviour, and he followed Mr Snashall saying that Mr Snashall had to listen to him wherever he was. The appellant followed Mr Snashall out into the corridor. The appellant said that he continued to ask for an explanation as he followed Mr Snashall down the corridor. The appellant said that when Mr Snashall turned back towards his office facing the appellant, Mr Snashall “had breached [his] personal space”.

27    The appellant accepted that Mr Snashall said that the conversation was over and that he should leave the area. The appellant said that he continued to say that he needed an explanation of Mr Snashall’s conduct towards him. By this time Mr Snashall was in his office and he, the appellant, was in the doorway. The appellant said that, notwithstanding Mr Snashall could see that he was in the doorway, Mr Snashall continued to shut the door onto him. The appellant raised his right arm to block the door because if he had not done so it would have slammed into his shoulder since he was between the door and the door frame. The appellant said that again Mr Snashall “deliberately breached [his] distance” [sic] and told him again to leave his office. According to the appellant, Mr Smith then came in to break up the confrontation. The appellant acknowledged in his evidence that, by the time Mr Smith sought to intervene between the appellant and Mr Snashall, “we had both lost control of the situation”.

THE APPEAL TO THE TRIBUNAL

28    Section 23(1) of the Appeals Act provides relevantly:

(1)    …[W]here 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 proceedings before the court martial…and that a substantial miscarriage of justice has occurred; or

    (d)    that, in all the circumstances of the case, the conviction is unsafe and unsatisfactory;

it shall allow the appeal and quash the conviction…

29    The grounds of appeal to the Tribunal were numerous. None of them were successful. It is sufficient to note here only those which concern the arguments agitated in this Court.

30    The first issue raised by the appellant before the Tribunal, which is pressed in this Court by the appellant, was whether the charge as formulated did not allege an offence known to the law, in that the words “causing a confrontation” in the charge were not part of s 33(b) of the Discipline Act. Further, it was argued that the panel were not directed, as they should have been, that “causing a confrontation” was required to be proved beyond reasonable doubt.

31    The Tribunal held that the expression “by causing a confrontation” was not charged as an element of the offence, but was given as a particular of the alleged contravention of s 33(b) of the Act. On that footing, it was not necessary that “causing a confrontation” be proved beyond reasonable doubt.

32    The second issue which was agitated before the Tribunal and which remains relevant in this Court was whether a charge under s 33(b) of the Discipline Act involves a fault element of recklessness under s 5.6.2 of the Criminal Code Act 1995 (Cth) (the Criminal Code), and that no sufficient direction was given to the panel in relation to this element of the offence.

33    The Tribunal held that the directions which were given were sufficient because the relevant fault element was intention on the part of the appellant to act as he did because, in so acting, he was thereby creating a disturbance. In any event, the Tribunal held that no miscarriage of justice had occurred within the meaning of s 23(1) of the Appeals Act by reason of the absence of a direction as to the fault element of recklessness.

34    The third issue of present relevance raised before the Tribunal concerned the sufficiency of the Judge Advocate’s direction to the panel as to the meaning of the phrase “creates a disturbance”. The appellant argued that a substantial miscarriage of justice occurred because the Judge Advocate did not direct the Court to the “potential cause” of the confrontation for which Mr Snashall was responsible, namely the allegedly republished “racial slur”. The appellant’s argument on this point was somewhat fluid: in one of its iterations, the appellant sought to introduce a justification for his conduct by reference to the “racial slur” which he contended occurred the previous July and which was confirmed by Mr Snashall when he informed the appellant on 2 February 2010 that everything he had said to the appellant in the previous months he had meant. He contended that Mr Snashall’s statement was made in contravention of s 18C of the Racial Discrimination Act 1995 (Cth) (RDA) which gave rise to a “consequential right” on the part of the appellant to “confront and protest” Mr Snashall’s conduct. In another iteration of this argument, it was Mr Snashall’s racial slur, not the appellant’s conduct, which created the disturbance.

35    The Tribunal held that on no view of the evidence could Mr Snashall’s conduct excuse the conduct of the appellant in the sense of relieving him from responsibility under s 33(b) of the Discipline Act.

THE scope of an APPEAL TO THIS COUrt from the tribunal

36    As noted above, an appeal to this Court from the Tribunal lies under s 52 of the Appeals Act, and is confined to “a question of law involved in a decision of the Tribunal”. It is important to observe this limitation on the scope of an appeal to this Court under s 52. In Jones v Chief of Navy (2012) FCAFC 125 at [24]-[27], the Full Court of the Federal Court said of s 52 of the Act:

24    …Under that provision the appeal to this Court from the Tribunal lies only on a question of law involved in the decision of the Tribunal. It is necessary to keep clearly in mind the limited scope of the appeal provided by s 52 of the Appeals Act.

25    It is well settled that where a statute confers a right of appeal on a question of law, the applicant must identify a decision on a question of law said to have been erroneously made by the Tribunal below. That is because it is the question of law which is “the subject matter of the appeal itself”: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation… (1988) 82 ALR 175 at 178; see also Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority… (2009) 168 LGERA 1 at [19]-[22].

26    It is also important to understand that this Court, in hearing an appeal under s 52 of the Appeals Act, is “not exercising any jurisdiction analogous to that of a Court of Criminal Appeal”: Hembury v Chief of General Staff (1998) 193 CLR 641 (Hembury) at [31].

27    Consistently with the circumscribed function of this Court under s 52 of the Appeals Act, this Court may not “permit the ingenious extraction of alleged errors upon questions of law … so as to permit civilian interference with the military system of justice supervised by the Tribunal”:… Hoffman v Chief of Army (2004) 137 FCR 520 (Hoffman) at [44].

37    It is also pertinent to observe here that a conclusion by the Tribunal, that an error in the course of proceedings below had no significance in relation to the panel’s verdict so that no miscarriage of justice has occurred, has been held to be a conclusion upon an issue of fact, involving judgments of impression and degree, not upon a question of law for the purposes of s 52(1) of the Appeals Act: Hoffman v Chief of Army (2004) 137 FCR 520 at [44]; Jones v Chief of Navy [2012] FCAFC 125 at [56]. See also M v The Queen (1994) 181 CLR 487 at 492-493; SKA v The Queen (2011) 243 CLR 400 at [14], [19]-[21].

THE QUESTIONS OF LAW

38    The appellant’s notice of appeal to this Court raised many issues. The respondent filed a notice of objection to competency, asserting that all the issues sought to be raised by the appellant’s notice of appeal were not questions of law. These issues as to the competency of the appeal were largely resolved on the basis that the appellant abandoned several of his grounds of appeal, and Mr Lloyd SC, who appeared with Ms Callan of Counsel for the respondent, accepted that the following questions of law could be identified from the amended notice of appeal:

A    Is there an offence known to law constituted by a defence member on defence land creating a disturbance by causing a confrontation?

B    Is recklessness one of the fault elements for the offence established by s 33(b) of the Defence Force Discipline Act?

C    Does the Judge Advocate’s direction on the expression “creates a disturbance” reveal a misconstruction of s 33(b) of the DFDA because either or both:

    (i)    it wrongfully states the content of “disturbance”

(ii)    it failed to recognise that the content of “disturbance” was affected by the context of a person exercising a right to protest against an alleged breach of s 18C of the RDA

39    The appellant, by his Counsel, accepted that these formulations were effective to summarise the issues which the appellant sought to raise, save for two other contentions which the appellant still wishes to agitate. These contentions were: first, that the Tribunal erred in law in holding that the words “by causing a confrontation” were not an essential part of the charge that had to be proved beyond reasonable doubt; and, secondly, that the Tribunal erred in law in taking the view that Mr Snashall’s conduct was not relevant to the charge.

WAS THE APPELLANT CHARGED WITH AN OFFENCE KNOWN TO THE LAW?

40    The appellant argues that “causing a confrontation” was the gravamen of the offence alleged against the appellant and that the Tribunal erred in failing to appreciate that causing a confrontation is not an offence known to the law.

41    The respondent accepts that the answer to the question: “Is there an offence known to the law constituted by creating a disturbance by causing a confrontation?” is: “No”. But the respondent’s answer to the appellant’s point is that the Tribunal did not suggest that the answer is: “Yes”. The respondent submits that the charge was “creating a disturbance on service land” in conformity with the text of s 33(b) of the Discipline Act; and further, that the words “by causing a confrontation” were particulars of the facts supporting the charge, not the statement of an element of it, and so did not require to be proved beyond reasonable doubt.

42    The Tribunal explained its view as to the sufficiency of the charge at [36]-[38]:

36    The charge was “Creating a Disturbance on Service Land”. The balance of the words on the amended charge sheet were particulars which appraised the appellant fairly of the circumstances in respect of which he came to be charged. The appellant was arraigned on the charge of “Creating a Disturbance on Service Land” and on the alternative charge of “Prejudicial Conduct”. The principal particulars in respect of each as set out above at [5] and [7] were also read to him.

37    Rule 9 of the Court Martial and Defence Force Magistrate Rules provides:

(1)    A charge shall state 1 offence only.

(2)    A charge shall consist of 2 parts, namely:

(a)    a statement of the offence that the accused person is alleged to have committed; and

(b)    particulars of the act or omission constituting the offence.

(3)    A statement of an offence shall contain:

(a)    in the case of an offence other than an offence against the common law – a reference to the provision of the law creating the offence; and

(c)    in any case – a sufficient statement of the offence.

(4)    Without prejudice to any other sufficient manner of setting out the statement of an offence, the statement of an offence shall be sufficient if it is set out in the appropriate form in Schedule 1.

(5)    Particulars of an offence shall contain a sufficient statement of the circumstances of the offence to enable the accused person to know what it is intended to prove against that person as constituting the offence.

(6)    …

38    The charges appearing on the Charge Sheet and in respect of which the appellant was arraigned comply with r 9 and plainly were within ss 33(b) and 60(1) of the DFDA.

43    We respectfully agree with the view of the Tribunal. This is not a case where the statement of the elements of the offence in the charge was deficient or self-contradictory as, for example, in the case of a charge of “murder by accidental killing”.

44    In any event, it is important to note, in relation to this and the other questions agitated by the appellant, that both s 23(1)(b) and (c) of the Appeals Act require a substantial miscarriage of justice in addition to “a wrong decision of a question of law, or of mixed law and fact” or “a material irregularity in the course of the proceedings before the court martial” if an appeal is to be allowed by the Tribunal. In Hembury v Chief of General Staff (1998) 193 CLR 641 (Hembury) at [21] McHugh J said:

The question then is whether the Tribunal, having found that breach of r 33 was a material irregularity, was bound, as a matter of law, to find that the breach was a substantial miscarriage of justice. The appellant had the burden of showing that the material irregularity constituted a “substantial miscarriage of justice”. The plain words of s 23(1)(c) indicate that an appellant must show not only a material irregularity but also that it constituted a substantial miscarriage of justice. In that respect the onus under s 23 is different from that existing under the common form criminal appeal statutes. It is for the appellant to establish not only that there has been a material irregularity but also that it constituted a substantial miscarriage of justice. Not every material irregularity occurring in the course of a trial will constitute a miscarriage of justice, let alone a substantial miscarriage. Thus, a material irregularity occurring in the course of the proceedings may be corrected later in the proceedings. [See, eg, R v Riaz and Burke (1991) 94 Cr App R 339 at 344].

45    Similarly, in Hembury at [33] and [35] Gummow and Callinan JJ said:

[33]    There is no question here of appellate intervention in respect of an alleged mistrial conducted in the exercise of judicial power. Rather, the issue as understood before the Full Court was whether, as a matter of law, the Tribunal erred in its application of s 23(1)(c) of the Appeals Act. This obliged the Tribunal, with exceptions not presently material, to allow the appeal and quash the convictions if it appeared to the Tribunal:

“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.”

It is unnecessary to consider whether the misdirection also attracted par (b) of s 23(1). This is cast in the same form as par (c) and provides as a ground:

“that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction or the prescribed acquittal was wrong in law and that a substantial miscarriage of justice has occurred.”

…

[35]    Paragraph (c) contains the two elements of “material irregularity” and “substantial miscarriage of justice”. There may be a “material irregularity” which does not amount to a “substantial miscarriage of justice”[cf Director of Public Prosecutions v Shannon [1975] AC 717 at 757, 773; Pattenden, English Criminal Appeals 1844-1994 (1996), pp 158-161.] Further, an “irregularity” may not be “material” because, for example, it was cured by what was done later in the proceeding. [cf R v Riaz and Burke (1992) 94 Cr App R 339 at 344.]

46    The terms in which the charge was framed occasioned no injustice to the appellant, much less a substantial miscarriage of justice. At no stage during the course of the court martial did the appellant make any complaint as to the sufficiency of the terms in which the charge was framed or suggest that the charge as framed was apt to embarrass his defence of the charge. And even if there were some irregularity in the formulation of the charge, it would not have led to the appeal being allowed by the Tribunal, unless the Tribunal also concluded that a substantial miscarriage of justice had occurred. Whether the Tribunal was right not to be so satisfied is not a question of law. And in any event, subject to our discussion of the meaning of the expression “creates a disturbance”, the evidence did not leave it open to dispute or doubt that the appellant did create a disturbance on service land.

47    For these reasons, the appellant’s challenge to the decision of the Tribunal under this heading should be rejected.

IS RECKLESSNESS ONE OF THE FAULT ELEMENTS FOR THE OFFENCE?

48    The appellant contends that the Criminal Code prescribes a fault element for the charge, namely “recklessness” as to the result of the appellant’s conduct, and that the panel of the Restricted Court Martial was not given proper direction on this point. Associated with this argument is the contention that the Judge Advocate gave an erroneous direction as to the need for the prosecution to establish the appellant’s intention to engage in conduct rather than to produce a result.

49    In order to understand this argument, it is necessary to refer first to the provisions of the Criminal Code which address the fault element of an offence.

50    The Criminal Code provides, by s 3.2:

In order for a person to be found guilty of committing an offence the following must be proved:

(a)    the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;

(b)    in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.

51    The Criminal Code provides by s 4 in relation to the physical elements of an offence:

(1)    A physical element of an offence may be:

(a)    conduct; or

(b)    a result of conduct; or

(c)    a circumstance in which conduct, or a result of conduct, occurs.

(2)    In this Code:

    conduct means an act, an omission to perform an act or a state of affairs.

    engage in conduct means:

    (a)    to do an act; or

    (b)    omit to perform an act.

(emphasis added).

52    Division 5 of the Criminal Code provides in relation to the fault elements of an offence:

5.1    Fault elements

(1)    A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

(2)    Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.

5.2    Intention

(1)    A person has intention with respect to conduct if he or she means to engage in that conduct.

(2)    A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3)    A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

5.3    Knowledge

    A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

5.4    Recklessness

(1)    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.

(2)    A person is reckless with respect to a result if:

(a)    he or she is aware of a substantial risk that the result will occur; and

(b)    having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(3)    The question whether taking a risk is unjustifiable is one of fact.

(4)    If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

5.5    Negligence

    A person is negligent with respect to a physical element of an offence if his or her conduct involves:

(a)    such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b)    such a high risk that the physical element exists or will exist;

that the conduct merits criminal punishment for the offence.

5.6    Offences that do not specify fault elements

(1)    If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.

(2)    If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

    (emphasis added).

53    At [58] of the Reasons, the Tribunal quoted the Judge Advocate’s direction to the panel as follows:

[The] charge is made up of elements and ingredients that must be proved by the prosecution beyond a reasonable doubt. The elements fall into two categories, called physical and fault elements. The physical elements in this case are conduct and the circumstances. The fault elements are the states of mind accompanying the physical elements…

In the…charge before you, there are physical and fault elements…The… charge, of creating a disturbance, contains three physical elements and three fault elements. The first physical element is circumstance, that, at the time of the offence, the defendant was a Defence member. For our own purposes, the fault element is knowledge, but this particular element of the charges has been admitted.

The second physical element is circumstance; the offence occurred on Service Land. For our purposes the relevant fault element is knowledge of the facts which make it Service Land, and I’ll be explaining, shortly, what I mean by that.

The third physical element is conduct – that is, that the defendant engaged in conduct which created a disturbance – and the accompanying physical element is an intention, that is, he meant to engage in that conduct, not that he intended to create a disturbance, that he intended to engage in the conduct.

…Intention: a person has intention with respect to conduct if he means to engage in that conduct. “Creating a disturbance” is not a term or phrase that is defined in the Defence Force Discipline Act. I can say that creating a disturbance includes brawling and violent or disorderly disputation.

Here the prosecution case is that it involved violent or disorderly disputation. The conduct must be such as to be likely to cause a response from anyone present who saw or heard the incident; that response could be to intervene to stop the disturbance, or to report it, or to leave the area because of the unsettling effect of the disturbance. In other words, if you were working in an office and someone was playing loud music nearby, that might disturb you from your work but it wouldn’t be creating a disturbance within the meaning of the Act. There needs to be violent or disorderly disputation, as I say, and there needs to be conduct which must be such as to be likely to cause a response form anyone present who saw or heard the incident.

You must also be satisfied of the fault element, which is intention. That does not mean the prosecution has to prove the defendant intended to create a disturbance. The prosecution has to prove the accused intended to engage in the act that amounted to a disturbance if you find the conduct amounted to a disturbance.

To summarise, has the prosecution proved that the accused engaged in conduct that amounted to a disturbance? If yes, did he intend to engage in that conduct? As I said, the prosecution does not have to prove that the accused set out to create a disturbance; the prosecution has to prove that the conduct of the accused was such as to create a disturbance and he intended to engage in that conduct.

54    In relation to these directions, the Tribunal said at [59]-[61]:

59    The Judge Advocate continued, referring to the particulars (which the appellant contends were incorrect statements of what had to be proved):

…the defendant is entitled to know how it is said that he created a disturbance. The prosecution has provided particulars of that. You do not need to be satisfied beyond reasonable doubt that each of the particulars has been proved. What you are required to find is, having regard to the particulars, has the prosecution proved beyond reasonable doubt that the accused created a disturbance by conduct that he intended to engage in at that time. It may be you are satisfied that the accused did behave in the way set out in particular…but not any other particular.

The question then is, are you satisfied beyond reasonable doubt that the accused created a disturbance by that conduct and that he intended to engage in that conduct at that time.

60    It is the conduct of an offender which is the key to the offence. “Conduct” is defined in s 4.1(2) relevantly as “an act”. The plurality in X v Australian Prudential Regulation Authority (2007) 226 CLR 630 at [51], stated simply:

A person has intention with respect to conduct if he or she “means to engage in the conduct” (Criminal Code, s 5.2(1)).

Further elaboration was not required save to exclude somnambulism and the like or accident.

61    It will be a question for the trier of fact as to whether that conduct constitutes or creates a disturbance. Section 33(b) does not require that an offender “intends” to create a disturbance. What the prosecution had to prove, consistently with s 5.2(1), beyond reasonable doubt was that the appellant intended to conduct himself as he did. In fact, the appellant did not challenge the essential elements of the particulars. He challenged the prosecution characterisation of that conduct and who was at fault. The directions to the panel were orthodox and involved no error. Even if it were correct, as contended by the appellant, that the physical element of the offence consists of a circumstance or a result, failure to direct on “recklessness” did not give rise to any miscarriage of justice.

55    The Judge Advocate and the Tribunal proceeded on the footing that the expression “creates a disturbance” in s 33(b) of the Discipline Act is a reference to the conduct of the accused rather than a statement of separate physical elements consisting of conduct and result. In this regard, the Tribunal had said earlier at [51]:

The charge of creating a disturbance can be established by proof of a series of acts which constitute a course of conduct. A range of different acts performed either simultaneously or closely proximate in time, may create a disturbance. A person may, for example, cause a disturbance by shouting, banging on walls and by playing amplified music at the same time. The events relied upon by the prosecution in the present case occurred in an office and adjacent corridor in the space of a couple of minutes. The course of conduct began and ended in Mr Snashall’s office. At all times the appellant was, in varying ways, seeking to convey to Mr Snashall his objections to what he perceived to be the republication of a racial slur. The particulars relied on by the prosecution each identified different acts by the appellant in the course of his short but rowdy pursuit of Mr Snashall.

56    It is argued by the appellant that the disturbance created by the conduct is a result, so that recklessness is the fault element for the result of the appellant’s conduct. This is said to be so by virtue of the operation of s 5.6(2) of the Criminal Code.

57    The Tribunal did not observe the distinction between conduct and result for which the appellant argues. In our respectful opinion, the Tribunal did not err in this regard. Section 33(b) does not invite the drawing of this distinction. For the purpose of ss 3, 4 and 5 of the Criminal Code the physical element of the offence is the creation of a disturbance. The physical element is conduct, albeit conduct of a particular kind. One would not accurately or sensibly state the physical element of the offence in question as “creating”. The relevant physical element of the offence is conduct which “creates a disturbance”. For conduct, the fault element is intention. As the Tribunal explained, the relevant intention is the intention to engage in the conduct alleged in the particulars and the appellant did not dispute that this conduct had occurred. There was no issue as to whether that conduct was intentional.

58    There could be no doubt that the appellant intended to confront Mr Snashall in his office, to insist that Mr Snashall address the appellant’s concerns rather than his ordinary duties, and to persist in that confrontation “in the course of his short but rowdy pursuit of Mr Snashall” [58]. The appellant’s argument in relation to recklessness should be rejected.

59    In the course of the hearing of the appeal, a question was raised as to the sufficiency of the Judge Advocate’s direction in relation to the need for the panel to be instructed that the charge could be made out only if the panel were satisfied beyond reasonable doubt that one or more of the particulars of the charge had been proved. The appellant, taking up this question, relies upon the decision of the High Court in KBT v The Queen (KBT) (1997) 191 CLR 417 especially at 424 to support the argument that the Judge Advocate erred in directing the panel that “you do not need to be satisfied beyond reasonable doubt that each of the particulars has been proved”. But in KBT the High Court was concerned to make the point that to prove the offence of maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years (which offence required that the accused had on at least three occasions within the period charged committed an offence of a sexual nature upon the complainant), it was essential that the jury understand that it had to be satisfied beyond reasonable doubt that each of the same three offences of a sexual nature had been committed. To insist that the same three offences of a sexual nature had been proved to the satisfaction of the jury beyond reasonable doubt was to insist that the elements of an offence must be proved beyond reasonable doubt; it was not to depart from the general rule that, while the jury must be satisfied that the factual elements of the offence have been proved, it is not necessary that the prosecution prove the particulars furnished by it or any of them: Dare v Pulham (1982) 148 CLR 658 at 664; Coleman v Kinbacher & Anor (2003) QCA 575 at [14], HML v The Queen (2008) 235 CLR 334 at [4].

60    Mr Lloyd SC submitted that, in any event, this question had not been raised at the court martial or before the Tribunal, and accordingly, it was not a question of law involved in a decision of the Tribunal in respect of an appeal to the Tribunal under the Appeals Act. The appellant countered that he had argued before the Tribunal that the Judge Advocate had erred by “incorrect statements of what had to be proved”, but this contention was not apt to raise the issue now sought to be raised. That issue is fairly described as relating to the manner in which the panel was required to go about its task of assessing the evidence and reasoning to a conclusion. The only issue fairly agitated by the appellant before the Tribunal related to the questions whether the addition of the words “by causing a confrontation” after the words of the charge “creating a disturbance” meant that the charge was not one known to the law, and, if that question were resolved in the negative, whether the jury should have been directed that it could not convict unless it was proved beyond reasonable doubt that the appellant caused a confrontation. It must, therefore, be accepted that the Tribunal was not invited to resolve the question which is now said to be raised in this Court.

61    In our view, it is not necessary to decide whether it is open to the appellant to raise this issue as a question of law involved in the decision of the Tribunal in respect of the appeal to it. That is because, in our opinion, it was not incumbent on the prosecution to prove the particulars of the charge, or any of them. And further, even if that view were incorrect, one cannot proceed on the footing that the Tribunal would or should have concluded that the absence of the direction occasioned a substantial miscarriage of justice.

THE ADEQUACY OF THE JUDGE ADVOCATE’S DIRECTIONS AS TO THE EXPRESSION “CREATES A DISTURBANCE”

62    To understand the prohibition in s 33(b) on creating a disturbance one must bear in mind that the conduct at which the prohibition is directed is criminal conduct punishable by imprisonment. One would not lightly conclude that a loud argument, involving no more than the vigorous exercise of the right of free speech by the participants, would be within the prohibition. That having been said, the desire to speak one’s mind does not furnish one with a licence to ignore the proscriptions of the Discipline Act. Within the Defence Force as a disciplined force, there are “proper channels” for the making of complaints about the conduct of others.

63    In our view, s 33(b) encompasses, as a matter of ordinary language, conduct whereby defence personnel and those with whom they work on service land are disrupted in, or distracted from, the performance of their duties by other members of the defence force. To say this is not to stretch the meaning of the proscription beyond commonplace usage. According to the Macquarie Dictionary “disturbance” includes “an outbreak of disorder”. In the Oxford English Dictionary, the primary meaning given for disturbance is “[T]he interruption and breaking up of tranquillity, peace, rest or settled condition; agitation (physical, social or political)”. It may also be noted that, in Black’s Law Dictionary 8th Ed, the primary meaning of “disturbance” is given as “[a]n act causing annoyance or disquiet, or interfering with a person’s pursuit of a lawful occupation or the peace and order of a neighbourhood, community or meeting.” And it must be borne in mind that the proscription in s 33(b) occurs in a statute concerned (among other things) with the maintenance of discipline in the defence force and in and around its facilities.

64    The immediate context in which s 33(b) appears includes s 33(a) which covers brawling, and s 33(d) which covers the case of words apt to provoke a violent response in the person to whom they are addressed. Section 33 provides, relevantly, that:

A person who is a defence member or a defence civilian is guilty of an offence if the person is on service land, in a service ship, service aircraft or service vehicle or in a public place and the person:

(a) assaults another person; or

…

(c) within the view or hearing of another person, engages in conduct that is obscene; or

(d) uses insulting or provocative words to another person.

The maximum punishment for these acts is imprisonment for 6 months.

65    To the extent that the word “disturbance” is said by the Oxford English Dictionary to include “a breach of public peace, a tumult, an uproar, an outbreak of disorder”, the context supplied by the other provisions of s 33 suggests that the phrase used in s 33(b) is not confined to tumultuous events involving general lawlessness. The interruption of the order of a given social setting may be a disturbance even though it is a small one.

66    Further, in this regard, s 33 sits within Division 3 of the Discipline Act which deals with a broad range of behaviour that may be characterised as violent or insubordinate. Section 26 deals with insubordinate conduct as follows:

(1) A defence member is guilty of an offence if:

(a) the member engages in conduct that is threatening, insubordinate or insulting to a person; and

(b) the person is a superior officer.

Maximum punishment: Imprisonment for 6 months.

(2) A defence member is guilty of an offence if:

(a) the member uses language that is threatening, insubordinate or insulting about a person; and

(b) the language is used in that person's presence; and

(c) the person is a superior officer.

Maximum punishment: Imprisonment for 6 months.

(3) An offence against this section is an offence of strict liability.

(4) It is a defence to a charge under this section if the person proves that he or she neither knew, nor could reasonably be expected to have known, that the person against whom the offence is alleged to have been committed was a superior officer.

67    The Discipline Act also provides for the offence of mutiny at s 20 as follows:

(1)    A defence member who takes part in a mutiny is guilty of an offence.

Maximum punishment: Imprisonment for 10 years.

(2) A defence member is guilty of an offence if:

(a) the member takes part in a mutiny; and

(b) the mutiny's object, or one of its objects, is the refusal or avoidance of duty or service in connection with operations against the enemy or the impeding of the performance of such a duty or service.

Maximum punishment: Imprisonment for life.

68    According to s 3, “mutiny” is defined as “a combination between persons who are, or of whom at least 2, are members of the Defence Force:

(a) to overthrow lawful authority in the Defence Force or in an allied force; or

(b) to resist such lawful authority in such a manner as to prejudice substantially the operational efficiency of the Defence Force or of, or of a part of, an allied force.

69    Having regard to both the immediate and the broader context in which s 33(b) appears, it is not a leap to conclude that it is not limited to “tumults” or “riots” or breaches of the peace, but is, as a matter of ordinary parlance, apt to proscribe the disruption of the orderly conduct of defence personnel in and around defence facilities. On that footing, one may say that s 33(b) of the Act is transgressed, and free speech has passed its limits, when loud argument disrupts the orderly performance by others of their duties. On this view, conduct which disrupts the orderly performance of their duties by those subject to, or witnessing it, is conduct which creates a disturbance.

70    As to whether the appellant had “created a disturbance”, the Tribunal said at [76]-[77] that:

76    There was ample evidence from the witnesses that the confrontation with Mr Snashall instigated by the appellant and persisted in by him, could be characterised as a disturbance within the meaning of the [Act] and under any of the approaches urged upon the Tribunal by Senior Counsel. A brief summary will suffice here.

77    Mr Smith was drawn to "raised voices"; Ms Librando: "felt quite uncomfortable and scared that something might happen"; Mr Towill was prompted to leave his office because of the noise coming from Mr Snashall's office and tried to stop people coming down "and adding to the melee there". Ms Bennett heard raised voices which "got to a point where I thought this is getting a bit aggressive and I think I need to do something about it"; "the conversations was escalating to the point where I got concerned that it may turn physical"; she noticed other defence legal staff congregating and watching. It was "a very heated situation"; "I'd never come across a situation like this in all of my working history". Even the appellant when he gave evidence thought "realistically we had lost control of the situation".

71    In our respectful opinion, this passage does not reveal any error of law. The direction identified that the conduct must disrupt the work of the person to whom it was directed or persons who may have observed it.

72    In any event, the Tribunal was entitled to conclude that if the direction were deficient it did not lead to a substantial miscarriage of justice, in that, on any view of the evidence, the appellant’s conduct was both apt, and indeed intended, to create a disturbance consisting of:

(a)    the appellant’s confronting Mr Snashall without invitation (express or implied) with a view to airing the appellant’s grievances;

(b)    the appellant’s insistence on pursuing with Mr Snashall a conversation which Mr Snashall did not wish to have, even though Mr Snashall made his unwillingness in this regard clear beyond any shadow of doubt;

(c)    the appellant’s obviously unwelcome attempt to re-enter Mr Snashall’s office; and

(d)    the appellant’s physical resistance to Mr Snashall’s attempt to close the door to his office.

73    There is no room for doubt that the appellant intentionally confronted Mr Snashall and persisted in conduct which was disruptive of Mr Snashall’s conduct of his duties within the Directorate. On the appellant’s behalf it is said that he desisted from his confrontation with Mr Snashall as soon as he was asked to do so by Ms Bennett, but that observation fails to acknowledge the appellant’s earlier persistence after Mr Snashall made clear his wish to terminate the conversation. There can be no doubt as to the appellant’s determination to use force so as not to allow Mr Snashall to be left in peace to get on with his duties.

74    The function of the Judge Advocate was to explain to the panel “in a simple, understandable fashion the law which is applicable to the particular case before them”: Tully v The Queen (2006) 230 CLR 234 at [79] (emphasis in original). See also Azzopardi v the Queen (2001) 205 CLR 50 at [49]. The discharge of this function did not require the Judge Advocate to draw the attention of the panel to possible scenarios factually remote from the evidence in the case in order to elucidate the meaning of the phrase “creates a disturbance”. Accordingly, it was not necessary for the Judge Advocate to direct the jury to bear in mind that a loud argument does not fall within the meaning of a disturbance, because on no view of the evidence adduced by either side could the incident disclosed by that evidence fairly be described as no more than a loud argument in the vigorous exercise of the appellant’s right of free speech. The appellant enjoyed no right which obliged Mr Snashall to subject himself to the appellant’s demand for an explanation for perceived slurs or slights. A desire on the appellant’s part to speak his mind did not furnish an occasion of privilege sufficient to excuse non-compliance with s 33(b) of the Discipline Act.

75    It will be apparent from what we have written thus far that we consider that, as a matter of ordinary language and having regard to the context in which the phrase “creates a disturbance” appears, s 33(b) of the Discipline Act is breached by conduct which falls short of an assault upon a person or damage to property. It is arguable that the legislative history of “disturbance” in the context of military law is limited to such conduct.

76    It was not argued on behalf of the appellant, either before the Tribunal or in this Court, that the history of the usage of “disturbance” warrants the conclusion that the phrase “creates a disturbance” means “breaches the peace” by some form of violent conduct which actually harms a person, or in a person’s presence that person’s property. Indeed, the appellant eschewed any suggestion that considerations of legislative history could assist the proper construction of s 33(b) of the Discipline Act. There is, therefore, a question as to whether, as a matter of procedural fairness or the proper scope of this Court’s jurisdiction under s 52(1) of the Appeals Act, this Court might properly concern itself with an argument to the effect that, as a matter of history, “disturbance” should be confined to “a breach of the peace” in the sense of an assault upon a person or damage to property.

77    In our respectful opinion, it is not necessary to resolve this question. It is quite unlikely, given the existence of s 33(a), that the expression “creates a disturbance” encompasses only conduct which, insofar as it is directed against a person, also amounts to an assault upon a person. And to treat “disturbance” as a term of art which can only be understood by reference to another term of art, viz “breach of the peace”, is to travel a long way from the text of the Act. Further, to the extent that such an argument might be said to draw support from the observations of Lord Browne in R (Laporte) v Chief Constable of Gloucestershire Constabulary (2007) 2 AC 105 at [159] where his Lordship said: “An actual, as opposed to an apprehended, breach of the peace connotes some form of violent disturbance or occurrence”, one might say that these observations make the point that a commotion which is not sufficiently violent to constitute a breach of the peace, in the sense explained by his Lordship, may nevertheless be referred to, in ordinary parlance, as a “disturbance”.

78    In our respectful opinion, on any view of the evidence, the appellant’s conduct, in forcing his unwelcome attentions upon Mr Snashall to the point of physical contact between the appellant and the door to Mr Snashall’s office as the appellant persisted in his obviously unwelcome pursuit, is not fairly described as a loud argument or a commotion. It is fairly described as creating a disturbance.

79    Finally, it is necessary to address the appellant’s argument that Mr Snashall had made a racial slur against the appellant which fell within s 18C of the RDA and within the Commonwealth’s duty under s 18E and consequently that “any person within the ADF subjected to an unlawful racial slur is unquestionably entitled to confront the perpetrator”. It is argued that “the right of MAJ Li to confront the person who had now twice engaged in conduct constituting an unlawful racial slur meant that the prosecution could not sustain the alleged offence of creating a disturbance by causing a confrontation with Mr Snashall”.

80    Of this argument, the Tribunal said at [95] and [96]:

The appellant failed to explain how a contravention of the RDA by Mr Snashall (assuming that it occurred) impinged in any way on the prosecution of the charge under s 33 of the [Act]. Furthermore he offered no convincing argument to support the claim that evidence relating to Mr Snashall's motivation in making the remarks which gave rise to offence or the appellant's motivation for confronting Mr Snashall in order to lodge a protest was admissible at the trial.

There is nothing in s 18C of the RDA or any ancillary provision which creates or recognises any "consequential right" of the kind asserted by the appellant. Furthermore s 18E deals with vicarious liability for contraventions of the RDA. It imposes no duty on the Commonwealth or anyone else.

81    In our respectful opinion, the Tribunal was correct.

82    Sections 18C and 18E of the RDA provided:

Section 18C

(1)    It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

(2)    For the purposes of subsection (1), an act is taken not to be done in private if it:

(a) causes words, sounds, images or writing to be communicated to the public; or

(b) is done in a public place; or

(c) is done in the sight or hearing of people who are in a public place.

(3)    In this section:

public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

...

Section 18E

(1)    Subject to subsection (2), if:

(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and

(b) the act would be unlawful under this Part if it were done by the person; this Act applies in relation to the person as if the person had also done the act.

(2)    Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.

83    The appellant’s argument proceeds on the assumption that the commission by Mr Snashall of an offence against the RDA might be available as a matter of law as a justification or excuse in respect of an offence under the Discipline Act. That assumption is quite misconceived. It finds no support in the text of the legislation or in any interpretive principle of the common law. Further, it is impossible to attribute to the legislature which enacted s 18C of the RDA an intention to create a right of self-help in a person affected by a contravention of the provision. This purpose of the proscription in the RDA is, in part at least, to prevent the breaches of the peace which the proscribed conduct is likely to provoke. In Coleman v Power (2004) 220 CLR 1 at [323] Heydon J, discussing the purposes of a legislative proscription of offensive language, identified the first end of such legislation as diminishing the “risk of acrimony leading to breaches of the peace, disorder and violence”. To similar effect are the observations of Gleeson CJ at [9], Gummow and Hayne JJ at [183], and Callinan J at [287].

84    It is entirely unlikely that Parliament intended to authorise a breach of the peace as a self-help remedy for a contravention of s 18C. The appellant’s argument should be rejected.

85    Finally, there is the appellant’s argument that, in all the circumstances, and particularly the circumstance that the appellant was actuated by a concern to receive an explanation from Mr Snashall for a racial slur which he perceived had been made, the panel should have been instructed to consider whether Mr Snashall, rather than the appellant, created the disturbance. This argument, too, must be rejected. On a strict view, the appellant could still be guilty of causing a disturbance even if Mr Snashall could also be said to have created the disturbance; but on any view of the evidence, it is clear beyond reasonable doubt that the appellant, by initiating and pursuing the confrontation with Mr Snashall, created the disturbance which occurred on 3 February 2010.

CONCLUSION AND ORDERS

86    The appellant’s contentions should be rejected.

87    The appeal should be dismissed.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Keane and the Honourable Justices Jagot & Yates.

Associate:

Dated:    26 February 2013

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 541 of 2012

ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

BETWEEN:	TING LI Appellant
AND:	CHIEF OF ARMY Respondent

JUDGES:	KEANE CJ, DOWSETT, LOGAN, JAGOT & YATES JJ
DATE:	26 FEBRUARY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

DOWSETT J:

INTRODUCTION

88    On 8 April 2011, after a trial by restricted court martial, the appellant was convicted of the offence of creating a disturbance contrary to s 33 of the Defence Force Discipline Act 1982 (Cth) (the “DFDA”). No verdict was taken on an alternative charge of prejudicial conduct. The appellant appealed unsuccessfully to the Defence Force Discipline Appeal Tribunal (the “Tribunal”) and now appeals to this Court. Pursuant to s 52 of the Defence Force Discipline Appeals Act 1955 (Cth) (the “Appeals Act”), such an appeal must be “on a question of law involved in a decision of the Tribunal in respect of an appeal under this Act”.

89    Section 33 of the DFDA provides:

A person who is a defence member or a defence civilian is guilty of an offence if the person is on service land, in a service ship, service aircraft or service vehicle or in a public place and the person:

(a)    assaults another person; or

(b)    creates a disturbance or takes part in creating or continuing a disturbance; or

(c)    within the view or hearing of another person, engages in conduct that is obscene; or

(d)    uses insulting or provocative words to another person.

Maximum punishment:    Imprisonment for 6 months.

90    The appellant was charged as follows:

First charge

Defence Force Discipline Act 1982

Creating a disturbance on service land Being a Defence member at Defence Legal Division, Level 4 Campbell Park Offices on 3 February 2010 between approximately 1030 and 1100 hours, in the vicinity of the office of Mr Andrew Snashall created a disturbance by causing a confrontation with Mr Snashall. Particulars: (a)    refused to leave Mr Snashall’s office when requested to do so by Mr Snashall and continued speaking to Mr Snashall with a raised voice; (b)    followed Mr Snashall and continued the conversation when Mr Snashall left his own office, ostensibly because MAJ Li would not; (c)    forcefully pushed against Mr Snashall’s office door placing his head and shoulder in the doorway while Mr Snashall was inside the office trying to close the door; (d)    re-entered Mr Snashall’s office and again refused to leave when requested to do so; (e)    stood approximately three inches from Mr Snashall’s face speaking with a raised voice and in an agitated and aggressive manner.

Second charge	(in the alternative to the First charge)
Defence Force Discipline Act 1982 subsection 60(1)	Prejudicial conduct
	Being a Defence member at Defence Legal Division, Level 4 Campbell Park Offices on 3 February 2010 between approximately 1030 and 1100 hours acted in a manner likely to bring discredit on The Australian Army by causing a confrontation with Mr Andrew Snashell while wearing uniform. Particulars: (a)    refused to leave Mr Snashall’s office when requested to do so by Mr Snashall and continued speaking to Mr Snashall with a raised voice; (b)    followed Mr Snashall and continued the conversation when Mr Snashall left his own office, ostensibly because MAJ Li would not; (c)    forcefully pushed against Mr Snashall’s office door placing his head and shoulder in the doorway while Mr Snashall was inside the office trying to close the door; (d)    re-entered Mr Snashall’s office and again refused to leave when requested to do so; (e)    stood approximately three inches from Mr Snashall’s face speaking with a raised voice and in an agitated and aggressive manner.

91    Although the appellant raises numerous other criticisms of the proceedings at first instance and in the Tribunal, I propose to address only:

    the approach taken to the construction of s 33 of the DFDA;

    the particularization of the prosecution case; and

    the directions given as to these matters.

92    In all other respects I agree with the approach taken by Keane CJ and Jagot and Yates JJ whose draft reasons I have read. Their Honours have set out the evidence and principal statutory provisions, making it unnecessary that I do so. I have also read the reasons prepared by Logan J.

THE JUDGE ADVOCATE’S DIRECTIONS CONCERNING THE CHARGE

93    Concerning the offence of creating a disturbance, the Judge Advocate said, in his directions, that it contained three physical elements and three fault elements. He continued:

The first physical element is circumstance, that, at the time of the offence, the defendant was a defence member. For our own purposes, the fault is knowledge, but this particular element of the charge has been admitted.

The second physical element is circumstance, the offence occurred on service land. For our purposes the relevant fault element is knowledge of the facts which make it service land, and I will be explaining, shortly, what I mean by that.

The third physical element is conduct – that is, that the defendant engaged in conduct which created a disturbance, and the accompanying physical element is an intention, that is, he meant to engage in that conduct, not that he intended to create a disturbance, that he intended to engage in the conduct.

Let me say a little more about those elements before I go on to the second charge. Intention: a person has intention with respect to conduct if he means to engage in that conduct. “Creating a disturbance” is not a term or phrase that is defined in the [DFDA]. I can say that creating a disturbance includes brawling and violent or disorderly disputation.

Here, the prosecution case is that it involved violent or disorderly disputation. The conduct must be such as to be likely to cause a response from anyone present who saw or heard the incident; that response could be to intervene to stop the disturbance, or to report it, or to leave the area because of the unsettling effect of the disturbance. In other words, if you were working in an office and someone was playing loud music nearby, that might disturb you from your work but it wouldn’t be creating a disturbance within the meaning of the Act. There needs to be violent or disorderly disputation, as I say, and there needs to be conduct which must be such as to be likely to cause a response from anyone present who saw or heard the incident.

You must also be satisfied of the fault element, which is intention. That does not mean the prosecution has to prove the defendant intended to create a disturbance. The prosecution has to prove the accused intended to engage in the acts that amounted to a disturbance, if you find the conduct amounted to a disturbance.

To summarize, has the prosecution proved that the accused engaged in conduct that amounted to a disturbance? If yes, did he intend to engage in that conduct? As I said, the prosecution does not have to prove that the accused set out to create a disturbance; the prosecution has to prove that the conduct of the accused was such as to create a disturbance and he intended to engage in that conduct.

94    Defence counsel asked the Judge Advocate to direct the panel that it was no part of creating a disturbance that the relevant conduct be likely to cause a response from a bystander. The Judge Advocate refused to do so, observing that:

As to the first submitted misdirection, that direction was based partly upon a decision of the [Tribunal], in Anning, and the s 154 Report of Foster and Hannaford by the Deputy Judge Advocate General – Navy, CDRE Taylor. In that s 154 Report – it’s Foster & Hannaford and the report is dated 30 November 2003, the DJAG referred to Anning and the history of the section. Anning was concerned with a different limb of s 33 but the Court went into the history of s 33, as did the DJAG. He referred to dictionary definitions and he said, at para 9:

“Anning’s case makes it clear that the conduct must be such as likely to excite an overt response from anyone present who heard and saw the incident.”

That being so, I am of the opinion that there was no misdirection in respect of that part of my charge to the panel.

95    It may seem odd that defence counsel should have sought such a redirection. Its presence in the Judge Advocate’s charge made its overall effect more favourable to the appellant than it would have been, absent such direction. The effect was to limit the conduct which could engage the provisions of s 33(b). However defence counsel’s position was that the panel should have been directed that the prosecution had to prove that the appellant was reckless as to whether his conduct might create a disturbance. The notices of appeal to the Tribunal and to this Court also seem to suggest that the Judge Advocate ought to have directed the panel that the prosecution had to prove that the appellant intended to create a disturbance. Either direction would also have had the effect of limiting the circumstances in which the appellant could be convicted.

THE DECISION IN ANNING

96    The reference to Anning is to a decision of the Tribunal in Re an Appeal against the Conviction of Anning (No DFDAT 5 of 1989). In that case a defence member was charged with using provocative words contrary to s 33(d) of the DFDA. The passage cited by the Judge Advocate in the present case concerned the meaning of the word “provocative”, and the directions given by the Defence Force Magistrate to himself in connection with such meaning. As to those directions the Tribunal said at pp 7-9:

The Defence Force Magistrate ruled that the word “provocative” should be taken in its ordinary sense, adding that the context in which the word is used in the legislation is to be considered. He rejected the view that it should only be given a meaning such as “exciting anger or violence” or “causing disturbance” and directed himself that the word should be construed “in the ordinary general way along the lines of the Concise Oxford Dictionary definitions cited to [him] namely “tending to cause provocation (of curiosity, anger, lust, etc, intentionally annoying)”. He continued:

“Provocation is defined as “incitement, especially to anger etc, instigation, irritation, cause of annoyance”. I think that the words and their context have to be considered, of course. The tendency to provoke is not to be measured in terms solely of the effect which words have on a recipient or an addressee although any such effects are a relevant consideration.”

In our view, this contained a misdirection. The section is derived from s 13 of the Naval Defence Act 1910, the previous service law applicable to the Navy. There was no corresponding Army or Air Force offence. That section provided:

“Every person subject to this Act who –

(a)    fights or quarrels with any other person whether subject to this Act or not: or

(b)    uses threatening, abusive, insulting or provocative words or behaviour likely to cause a disturbance,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorized by this Act.

The effect of the enactment of s 33 in the [DFDA] is to extend the liability to conviction for such an offence to the whole of the Defence Force, to define with more precision the conduct formally embraced by the wide terms “fighting” and “quarrelling” and to confine the ambit of the offences to service land, and public places. The omission of the reference to threatening or abusive words, and to “behaviour likely to cause a disturbance”, does not in our view alter the essential character of the conduct the section is designed to prohibit. That character is indicated by the context in which the section appears and by a consideration of the kind of behaviour specifically mentioned, namely assaults, actual disturbances, behaviour within the view or hearing of another person which is offensive to ordinary standards of propriety to a degree more marked then is conveyed by the expression “indecent” … and using insulting words to another. The behaviour described in paras (a) and (b) of the section connotes actual force or disturbance while that contemplated by paras (c) and (d) is of a kind likely to cause others to take offence in such a way that the use of force violence or the creation of disturbance might reasonably be expected to ensue.

The words complained of in the circumstances found by the Defence Force Magistrate could not reasonably be said, in our view, to have had that character. Tasteless, embarrassing and offensive though the remark was, it could not reasonably have been interpreted in the circumstances as a threat by the appellant of any immediate action. Nor could it be said that it was likely to excite any overt response amounting to a disturbance to anyone present who heard it. Though the words were such that they should have prompted an immediate rebuke ... and might well have led to some protest from the two WRANs, they could not be said to be provocative within the meaning of s 33 of the Act.

97    In Anning the Tribunal distinguished between the kind of conduct identified in ss 33(a) and (b) and that identified in ss 33(c) and (d) on the basis that ss 33(a) and (b) deal with actual assault or the creation of an actual disturbance, whilst ss 33(c) and (d) deal with conduct which might provoke other persons to assault or to create a disturbance. The decision is not authority for the proposition that, for the purposes of s 33(b), conduct which causes a disturbance must be likely to produce a response from a bystander, nor does the wording of s 33(b) suggest such an approach. In Anning the Tribunal appears to have decided simply that in s 33(d), the word “provocative” means “likely to produce violence or the creation of disturbance”, and not merely to cause “irritation” or “annoyance”, as suggested by the Defence Force Magistrate. In my view Anning’s only relevance for present purposes is that it suggests that the offence of creating a disturbance must involve an actual disturbance.

CONSTRUCTION OF S 33

98    Chapter 2 of the Criminal Code Act 1995 (Cth) (the “Criminal Code”) prescribes the principles of criminal responsibility for offences created under Commonwealth law. Section 3.1 provides that each offence consists of physical elements and fault elements. Section 4.1 provides that a physical element may be conduct, a result of conduct or a circumstance in which conduct, or a result of conduct occurs. For present purposes “conduct” means an “act”. Fault elements attach to physical elements, but laws creating offences may provide that a particular physical element has no fault element, or that there be different fault elements for different physical elements. Section 4.2 provides:

(1)    Conduct can only be a physical element if it is voluntary.

(2)    Conduct is only voluntary if it is a product of the will of the person whose conduct it is.

(3)    The following are examples of conduct that is not voluntary:

(a)    a spasm, convulsion or other unwilled bodily movement;

(b)    an act performed during sleep or unconsciousness;

(c)    an act performed during impaired consciousness depriving the person of the will to act.

(4)    An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing.

(5)    If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.

(6)    Evidence of self-induced intoxication cannot be considered in determining whether conduct is voluntary.

(7)    intoxication is self-induced unless it came about:

(a)    involuntarily; or

(b)    as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.

99    Section 5.1 provides that fault elements may be intention, knowledge, recklessness or negligence. These terms are defined in ss 5.2, 5.3, 5.4 and 5.5. Section 5.6 provides that in the event that the law creating an offence does not specify a fault element for a physical element, the default fault elements are:

    for conduct, intention; and

    for a circumstance or result, recklessness.

100    For present purposes, s 33 must be construed so as to identify the physical and fault elements contemplated by Ch 2 of the Criminal Code. Each of the offences created by s 33 includes the preliminary words of the section which prescribe the ambit of its operation. Each offence may only be committed by a defence member or defence civilian whilst he or she is:

    on service land;

    in a service ship, a service aircraft or a service vehicle; or

    in a public place.

101    The Judge Advocate directed the panel as to the physical and fault elements arising out of the preliminary words. It is not necessary that I deal with those aspects of the case. They are not controversial. I turn to s 33(b). The Judge Advocate directed the panel that s 33(b) contains only one physical element which he described as “(engaging) in conduct which created a disturbance”. He also said that the prosecution had to prove that “the accused intended to engage in the acts that amounted to a disturbance”, and that “the conduct of the accused was such as to create a disturbance and he intended to engage in that conduct”. I doubt whether it is necessary or correct so to gloss the words of s 33(b). That section makes a person criminally liable if he or she “creates a disturbance”.

102    The Tribunal seems to have taken an approach similar to that adopted by the Judge Advocate. At [60]-[61] the Tribunal said that:

60    It is the conduct of an offender which is the key to the offence. “Conduct” is defined in s 4.1(2) relevantly as “an act”. The plurality in X v APRA …at [51], stated simply:

“A person has intention with respect to conduct if he or she ‘means to engage in the conduct’ (Criminal Code, s 5.2(1)).”

61    It will be a question for the trier of fact as to whether that conduct constitutes or creates a disturbance.

103    As to the fault element relative to that physical element, the Judge Advocate directed the panel that the fault element was an intention to engage in the alleged conduct, and not an intention to create a disturbance. Concerning this question the Tribunal said, again at [61]:

Section 33(b) does not require that an offender “intends” to create a disturbance. What the prosecution had to prove, consistently with s 5.2(1), beyond reasonable doubt was that the appellant intended to conduct himself as he did. In fact, the appellant did not challenge the essential elements of the particulars. He challenged the prosecution characterisation of that conduct and who was at fault. The directions to the panel were orthodox and involved no error. Even if it were correct, as contended by the appellant, that the physical element of the offence consists of a circumstance or a result, failure to direct on “recklessness” did not give rise to any miscarriage of justice.

104    The word “conduct” does not appear in s 33(b). It therefore seems odd that the Tribunal should have described conduct as being “the key to the offence”. The word “conduct” appears in s 4.1 of the Criminal Code. There seems to be no good reason for treating the physical element as being any more the “key” than the fault element. The proposition may have led the Tribunal to overlook the fact that in this case, the relevant conduct constituting the physical element of the offence is causing a disturbance. Section 3.2 provides that a person may only be found guilty of an offence if the prosecution proves:

    the physical element; and

    one of any prescribed fault elements for that physical element.

105    Section 4.1 identifies conduct as one form of physical element. It is to be identified by reference to the statutory provision creating the offence, not the actual, physical conduct of an alleged offender. The fault elements identified in s 5.1 are said to be “for” a particular physical element. If the physical element is conduct, then the fault element must be “for” that conduct (as identified in the statutory provision creating the offence). The word “conduct” in ss 5.2(1) and 5.6 should be understood in that context so that those sections only apply to an alleged offender whose conduct falls within the description of the physical element identified in the relevant statutory provision.

106    The Judge Advocate and the Tribunal seem to have assumed that the words “creates a disturbance” only include conduct which itself amounts to a disturbance. The words are capable of a wider meaning which would include conduct which does not, itself constitute a disturbance, but causes a disturbance. Another difficulty with the approach taken by the Judge Advocate and the Tribunal is that, save for the direction as to the likelihood of provoking a reaction, any conduct constituting (or perhaps causing) a disturbance would be caught by the section, notwithstanding the fact that such conduct was quite unlikely to produce that result. As I have pointed out, neither s 33 nor the decision in Anning offers any support for that direction. There was no suggested reliance on any other decision. It seems at least arguable that the Judge Advocate’s approach replaces the offence defined in s 33(b) with the offence of engaging in conduct which is likely to provoke a reaction by a bystander, which conduct amounts to a disturbance.

Disturbance

107    Whatever else may be said about s 33(b), occurrence of a disturbance is essential to its engagement. As Logan J demonstrates, the word “disturbance” may have a variety of meanings. The New Shorter Oxford English Dictionary (Clarendon Press, 1993) relevantly suggests:

The action of disturbing or fact of being disturbed. …

The interruption and breaking up of tranquillity, peace, rest or settled condition; agitation (physical, social or political).

Thus it seems that the word has broader and narrower meanings.

108    In the present case, the Tribunal, in seeking to define the word “disturbance”, referred to Canadian and New Zealand cases which were concerned with conduct in public places. As I have previously observed, s 33 is not limited in its operation to conduct in public places. In the present case, the relevant conduct occurred on service land. Whether or not events occurring on such land constitute a disturbance may depend upon the normal use to which the relevant area is put, and the conditions established on the land to facilitate such use. In the present case, the question was whether the appellant’s conduct interrupted or broke up the settled conditions in which persons employed in the relevant area usually performed their duties. Minor changes in such conditions, or changes of very short duration may not amount to an interruption or breaking up. Whether or not a particular event constitutes a disturbance is a matter for the tribunal of fact.

Creates

109    The Oxford English Dictionary offers the following relevant definition of the word “create”:

To cause, occasion, produce, give rise to (a condition or set of circumstances).

110    The question, then, is whether the appellant caused, occasioned or produced an interruption of settled conditions in the relevant location.

The positions adopted by the parties

111    As I have said the Judge Advocate and the Tribunal appear to have considered that s 33(b) prescribes only one physical element, creating a disturbance or conduct creating a disturbance, and one fault element, intention to engage in the conduct comprising the disturbance. The appellant’s position is not so clear. In argument counsel tended to focus on the assertion that s 33(b) required that the disturbance be treated as a result of conduct for the purposes of the Criminal Code. However, in the notice of appeal to the Tribunal, and in the notice of appeal to this Court, the appellant asserts that the fault element was “intention or recklessness in creating the result”. This suggests that there must have been either an intention to cause a disturbance or recklessness as to that possible outcome. In this connection the appellant cites s 5.6(2). Section 5.6(2) deals only with recklessness. Section 5.6(1) deals with intention. It may be that the appellant was taking into account s 5.4(4) of the Criminal Code which provides that proof of intention or knowledge will satisfy the requirement to prove recklessness. However it seems more likely that the appellant was asserting that the Judge Advocate should have directed that either the intention to create a disturbance or recklessness as to such an outcome was the relevant fault element.

112    A document headed “Appellant’s Elements of Alleged Offence” was handed up at the hearing of the appeal. It identifies a number of physical and fault elements, including “causing” and “creating” both of which have, as their fault elements, intention. In argument, at ts 36 ll 30-35, counsel suggested that there must be either intention or recklessness as to the result of conduct, namely a disturbance. At ts 37 ll 9-12, counsel seems to agree that his case is that the appellant’s intention was other than to cause a disturbance. The respondent’s counsel seems also to have, at some stage understood that intention and recklessness were in issue. See the respondent’s written submissions at para 28.

113    In the appellant’s written submissions at para 19, after a discussion of recklessness, he submits that:

The second error raised is the erroneous direction referred to above as to no intention as to causing a disturbance whereas there clearly was a fault element that had to be addressed. Again this was relieving the prosecution of a material burden, and constituted a substantial miscarriage of justice.

114    Counsel did not, in oral argument, develop the point.

One or two physical elements?

115    In my view s 33(b) either prescribes one physical element: creating a disturbance; or two physical elements: conduct and a resulting disturbance. I prefer the approach taken by the Judge Advocate and the Tribunal. There is only one physical element prescribed by s 33(b) (apart from those identified in the introductory words of s 33). That physical element is “creating a disturbance”. It should be classified as “conduct” for the purposes of s 4.1. One might say that a person “creates” without identifying the subject matter created, implying that the person is “creative”. However the verb is almost always followed by identification of that which is created. It is otherwise difficult to give any precise meaning to the word “create”. The notion of creating a disturbance contains one concept, not two. Section 5.2 provides that a person has intention with respect to conduct if he or she means to engage in that conduct. For present purposes the conduct is creating a disturbance. It follows that the prosecution was obliged to prove intention to create a disturbance.

116    This approach is consistent with that taken by the Court of Criminal Appeal in New South Wales in R v Saengsai-Or (2004) 61 NSWLR 135. In that case, the Court was considering the Commonwealth offence of importing a prohibited import. The appellant arrived at Sydney airport carrying two bottles of cognac. A hole had been drilled in each bottle and then sealed. The bottles contained substantial quantities of heroin, a prohibited import. On appeal, a primary question was identification of the physical and fault elements. Although the trial Judge apparently had not directed in terms of the Criminal Code, it seems that he had directed that the prosecution had to prove that the appellant was reckless as to the content of each bottle.

117    On appeal the appellant submitted that there was only one physical element - importing a prohibited import, the fault element being intention. The prosecution submitted that there were two physical elements – conduct in importing a “thing”; and a circumstance in which the conduct occurred – that the thing was a prohibited import. Thus the fault elements were said to be intention and recklessness. At [65]-[72] Bell J said: (Wood CJ at CL and Simpson J concurring):

65    In the Crown’s submission the analysis for which it contends does not produce a result that is materially different in terms of proof of the mental or fault ingredient/s of the offence under s 233B(1)(b) from the position that obtained by application of common law principles of criminal responsibility to it as it stood before the introduction of the [Criminal Code]. Gibbs CJ in He Kaw Teh observed of mens rea that it is an “ambiguous and imprecise” expression (at 530). The analysis of the mental states of intention, knowledge and recklessness as they bear on proof of mens rea at common law involves a measure of overlap. See He Kaw Teh, per Brennan J (at 568-569). The [Criminal Code] by contrast draws a clear distinction between each.

66    In He Kaw Teh, Gibbs CJ (with whom Mason J agreed) considered that proof of mens rea with respect to the offence under s 233B(1)(b) required proof that the accused knew he was importing narcotic goods and that wilful blindness may amount to knowledge (at 531) (the equation of wilful blindness with knowledge was subsequently rejected in Pereira v Director of Public Prosecutions … . Brennan J considered knowledge of the likelihood of the goods being narcotic goods to be sufficient to establish mens rea (at 570 and 585). Dawson J, while acknowledging that the element of purpose or intention is usually an obvious inference from the surrounding circumstances, did not discuss whether the inference of intention was to be drawn from awareness of the likelihood that the goods comprised narcotic goods (at 596).

67    The High Court returned to a consideration of how the Crown might prove mens rea with respect to an offence under s 233B(1)(b) in Kural. In their joint judgment Mason CJ, Deane J and Dawson J observed that proof of an accused person’s intention to import narcotic drugs would, of course, be established by proof of knowledge that the article he or she was intentionally importing contained narcotic drugs (at 504). Their Honours explained that actual knowledge is not required to establish mens rea and that knowledge or belief is relevant to proof of intention. Their Honours went on to say at 505:

“So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug.”

68    In the Crown’s submission, proof of the fault element of recklessness with respect to the circumstance that the thing imported contained narcotic goods does not involve a significant departure from proof of mens rea of the offence under s 233B(1)(b) (as it then stood) conformably with the decisions in He Kaw Teh and Kural. An awareness of a substantial risk that the thing intentionally imported contains narcotic goods was said to be of a piece with an awareness of a real and significant chance that the thing imported is narcotic goods and the decision to intentionally import the thing nonetheless.

69    The distinction between proof that an accused person intended to import narcotic goods and proof that he or she was reckless as to the circumstance that the thing imported contained narcotic goods is to my mind a real one. The joint judgment in Kural contains discussion of how the Crown might prove the existence of the intention to import the prohibited imports by a process of inferential reasoning. The inquiry remains one of proof of intention. Their Honours emphasised that their comments were not designed as a direction to be given to juries but rather as guidance for trial judges in formulating directions appropriate to a given case to assist the jury in determining this factual question.

70    Recklessness with respect to a circumstance under the [Criminal Code] invites consideration of (i) the accused’s awareness of a substantial risk that the circumstance exists, and (ii) having regard to the known circumstances whether it was unjustifiable to take the risk. The latter consideration does not involve a question of fact. It requires that the jury make a moral or value judgment concerning the accused’s advertent disregard of the risk.

71    I do not accept the Crown’s submission that the analysis of s 233B(1)(b) for which it contends does not involve a significant change in terms of the mental or fault elements of the offence. Recklessness as defined by the [Criminal Code] is more readily susceptible of proof than is proof of intention by reference to common law principles as explained in He Kaw Teh and Kural (or as defined in s 5.2(1)). The circumstance that s 233B was amended in anticipation of the application of the [Criminal Code] to it and that the legislature did not make clear that it was an offence comprising both a physical element of conduct and a physical element of circumstance tells against the construction for which the Crown contends. If the legislature had intended to make proof of the offence less burdensome for the Crown it might be expected to have done so in clear terms: Krakouer v The Queen … at 233 …, per McHugh J.

72    I consider that the physical element of the offence created by s 233B(1)(b) is one of conduct: the act of importing into Australia any prohibited import to which the section applies. In respect of this physical element, which consists only of conduct, the provisions of s 5.6(1) of the [Criminal Code] apply. Intention is the fault element.

118    Clearly, her Honour meant that the necessary intention was intention to import a prohibited substance, not merely to import a “thing”. There are differences between that case and this. Saengsai-Or concerned a circumstance rather than a result, but it is difficult to see any reason to distinguish between the two cases on that score. Bell J referred to the history of the section and circumstances surrounding its enactment, but those factors seem to have been treated as supporting the ordinary meaning of the words of the section rather than as a basis for departure from such meaning. If the offence of importing a prohibited substance contains one physical element, namely conduct, so that the fault element is intention to import a prohibited substance, then it is difficult to justify a different approach in connection with s 33(b). The decision in Saengsai-Or was followed by Kellam J in Re Pong Su (No 10) (2005) 154 A Crim R 19 at [37]. In that case the prosecution accepted the correctness of the decision in Saengsai-Or. See the judgment in Pong Su at [9].

119    In R v Wei Tang (2008) 237 CLR 1, the High Court considered charges of intentionally possessing a slave and intentionally exercising over a slave, any of the other powers attaching to the right of ownership, in that case, use of a slave. The High Court considered that the physical element of the offence was conduct and the fault element, intention. Concerning intention, Gleeson CJ said at [48]-[50]:

48    The terms of s 270.3(1) reinforce the conclusion that intention is the relevant fault element. The offences in question were of intentionally possessing a slave or intentionally exercising over a slave another power (here, using) attaching to the right of ownership. It is agreed on all sides that it was unnecessary for the prosecution to prove that the respondent knew or believed that the complainant was a slave, or even that she knew what a slave was. … If a person is known by an accused to possess the qualities that, by virtue of s 270.1, go to make that person a slave, then the state of knowledge relevant to intention, and therefore intention itself, may be established regardless of whether the accused appreciates the legal significance of those qualities. An accused does not have to know anything about the law in order to contravene s 270.3(1)(a).

49    In so far as a state of knowledge or belief is factually relevant to intention as the fault element of the offence, it is knowledge or belief about the facts relevant to possession or using, and knowledge or belief about the facts which determine the existence of the condition described in s 270.1. This is a condition that results from the exercise of certain powers. Whether the powers that are exercised over a person are “any or all of the powers attaching to the right of ownership” is for a jury to decide in the light of a judge’s directions as to the nature and extent of the powers that are capable of satisfying that description. This is not to ignore the word “intentionally” in s 270.3(1). Rather, it involves no more than the common exercise of relating the fault element to the physical elements of the offence … .

50    In this case, the critical powers the exercise of which was disclosed (or the exercise of which a jury reasonably might find disclosed) by the evidence were the power to make the complainants an object of purchase, the capacity, for the duration of the contracts, to use the complainants and their labour in a substantially unrestricted manner, the power to control and restrict their movements, and the power to use their services without commensurate compensation. As to the last three powers, their extent, as well as their nature, was relevant. As to the first, it was capable of being regarded by a jury as the key to an understanding of the condition of the complainants. The evidence could be understood as showing that they had been bought and paid for, and that their commodification explained the conditions of control and exploitation under which they were living and working.

120    Gummow, Hayne, Heydon, Crennan and Kiefel JJ all agreed with this aspect of the Chief Justice’s reasoning. As I understand this passage, it establishes that the fault element, intention to possess or use a slave, was to be inferred from the fact that the accused person knew of the conditions which led to the conclusion that the relevant victim was a slave. Possession or use had to be accompanied by such knowledge in order to constitute the offence. In the case of possession, the physical element, possession will often be proved by showing the circumstances of the dealings and relationship between the alleged possessor and the alleged slave. The fault element will often be inferred from knowledge of those matters. The offence of using a slave is a particular form of the offence of exercising any of the powers attaching to ownership, use being one such power. The offence contemplates use by a person who is not the possessor of the slave. The physical element is the exercise of the right to use. The fault element, intention, may be proven by proving knowledge of the facts which lead to the victim being characterized as a slave. The relevant knowledge will often be knowledge of the circumstances which establish that another person has possession of the slave. In the case of possession, intentional acts by the alleged possessor may be enough to prove the fault element but, in the case of use, it will often be the user’s knowledge of another person’s acts which will be the basis for inferring presence of the fault element. In either case it will be for the jury to determine whether the possessor or user had the necessary intention. In the case of use, it will not be sufficient to show simply that the user acted intentionally in using the slave.

121    The present offence is much simpler than the offence of slavery. However it is difficult to see any justification for concluding that s 33(b) was intended to attach criminality to any conduct which resulted in a disturbance, regardless of whether it was likely to do so, and regardless of the actual intention of the alleged offender. I have concluded that a disturbance involves the disruption of existing conditions. An intention to act in a particular way does not necessarily involve an intention to create a disturbance as a result thereof. An intention to disturb might well have been inferred from the appellant’s conduct, but that was not the only possible intention. His intention was a question for the tribunal of fact.

122    In my view, although the Judge Advocate and the Tribunal were correct in treating s 33(b) as prescribing only one physical element, both erred in concluding that the fault element was an intention to perform the acts comprising or causing the disturbance. The fault element was the intention to create a disturbance. I again point out that the word “conduct” in s 4.1 describes conduct identified in the statutory provision which creates the offence. Section 5.2(1) applies only to conduct of that kind.

123    As I have said, on appeal the appellant primarily argued that s 33(b) prescribes two physical elements, conduct and result, and two fault elements, intention and recklessness. However, as I have also indicated, the notices of appeal to the Tribunal and to this Court go further, as does the appellant’s written outline and as did his oral submissions. Although little attempt was made to explain the case based on the fault element of intention, the issue is squarely raised. It is true that the appellant’s counsel said that he thought that a document provided by the respondent accurately summarized the matters in issue. The document refers only to the fault element of recklessness in connection with causing a disturbance. However counsel’s statement should not be construed as abandonment of a point expressly taken in the amended notice of appeal and addressed in submissions. If he intended to abandon the point, he would have said so.

PARTICULARS

124    The appellant complains that the words in the charge sheet “created a disturbance by causing a confrontation” are fatal to the appellant’s conviction because they constitute a charge unknown to the law. The respondent asserts that the words are merely particulars of the charge. The appellant submits that the prosecution had to prove occurrence of a confrontation. The respondent asserts that the prosecution did not have to prove that a “confrontation” occurred, that allegation being merely a “particular”.

125    It may be correct to describe the words in question as being a “particular”. However other particulars (described as such) were given. The allegation of causing a confrontation was not a particularization of the charge in the same sense as were those particulars. To my mind, in describing the alleged disturbance as a confrontation, the prosecution cast its case in a particular way. Those words identified the nature of the incident about which the panel was to hear and the case which the appellant had to answer. It was also the case which the prosecution had to prove. The Judge Advocate directed that the prosecution had to establish a violent or disorderly disputation. I shall deal with the adequacy of this direction in the next part of my reasons. The prosecution did not have to prove each of the five identified particulars but, in my view, it had to prove that the appellant had caused a confrontation. That obligation arose from the way in which it had “particularized” its case. It also had to prove that such confrontation constituted a disturbance.

THE DIRECTIONS

126    Two aspects of the Judge Advocate’s directions require consideration. They are the directions as to:

    the elements of the alleged offence; and

    the extent to which the prosecution had to prove a confrontation.

127    As to the second matter, I consider that the Judge Advocate’s directions were adequate. He made it clear that:

    each element of the offence had to be proven beyond reasonable doubt;

    the prosecution case was that the appellant had engaged in “violent or disorderly disputation”;

    the prosecution had to prove that such disputation amounted to a disturbance; and

    the relevant conduct had to be likely to cause a response from a bystander.

128    The last-mentioned direction was, in my view, incorrect, but it could not have caused any prejudice to the appellant. The panel could have been in no doubt that these matters were to be proven beyond reasonable doubt. The Judge Advocate also correctly directed the panel that it was not necessary that each particular be so proven. The Judge Advocate used the words “a violent or disorderly disputation”. I consider that those words were appropriate to describe the confrontation relied upon by the prosecution as constituting the alleged disturbance. I see no error in these directions.

129    For reasons which I have given, I do not accept that the Judge Advocate correctly directed the panel as to the elements of the offence.

AN ERROR OF LAW INVOLVED IN THE TRIBUNAL’S DECISION

130    Although the appellant did not seek redirections at trial, the Tribunal allowed him to advance argument concerning the directions as to the physical and fault elements and decided the questions which he had raised. In those circumstances, a question of law as to the proper construction of s 33(b) for the purposes of Ch 2 of the Criminal Code is a question of law involved in the Tribunal’s decision. I do not understand the respondent to have submitted to the contrary.

A SUBSTANTIAL MISCARRIAGE OF JUSTICE

131    Pursuant to s 23(1)(b) of the Appeals Act, the Tribunal could only have allowed the appeal if it was satisfied that it led to a substantial miscarriage of justice. I must therefore consider whether there was such a miscarriage. That I should do so is demonstrated by the decision of the High Court in Hembury v Chief of the General Staff (1998) 193 CLR 641. In the present case, the Tribunal held at [61] that, even if there should have been a direction as to recklessness, such failure “did not give rise to any miscarriage of justice”. It gave no reasons for this conclusion. The Tribunal did not consider whether the default fault element was intention to create a disturbance.

132    The notion of a substantial miscarriage of justice was considered by the High Court in Hembury. In that case the Judge Advocate had directed the members of a court martial that in voting on the question of guilt they should vote orally, in order of seniority. The Defence Force Discipline Rules required that they vote orally, in order of seniority, commencing with the most junior in rank. The Tribunal held that the irregularity had not given rise to a substantial miscarriage of justice. The Full Federal Court upheld that decision. The High Court (McHugh, Gummow, Kirby, Hayne and Callinan JJ) allowed an appeal from that decision, allowed the appeal from the Tribunal’s decision, quashed the conviction and remitted the matter to the Tribunal for the making of appropriate consequential orders.

133    The appeal to the Tribunal was based upon s 23(1)(c) of the Appeals Act which deals with material irregularities in the course of proceedings. Section 23(1)(b) (with which this Court is presently concerned) deals with errors of law. In each case the Tribunal may only allow an appeal if there has been a substantial miscarriage of justice. In Hembury it was accepted that there had been a material irregularity at the trial. The only question was whether the Full Court should have concluded that the Tribunal had erred in concluding that there had been no substantial miscarriage of justice.

134    At 656 Gummow and Callinan JJ said (Hayne J concurring):

38    In Holdford …, in a passage adopted by Dixon CJ in Balenzuela v De Gail …, Cussen J referred to the position with respect to the trial of common law actions at nisi prius before the adoption of Rules of Court such as O 39, r 6 under Judicature Act procedure. Cussen J was of the view that the new Rules had made very little difference and that it was an error to think that there could never be a wrong or miscarriage unless it could be shown that the jury was in fact influenced in giving their verdict by a misdirection. He continued:

“There is a wrong or miscarriage occasioned by a misdirection in law, or as to the application of evidence, if, as a final result of what has been said by the Judge, the jury retire to their room under a wrong impression in relation to these matters, and the result of the case is such as to show that they may have been influenced in their verdict by the misdirection.”

39    In Balenzuela …, Windeyer J expressed his agreement with Dixon CJ and Cussen J that the common law principles then still obtaining in New South Wales and the judicature system rules were, in relation to new trials, “not so far apart as might appear”. Windeyer J also emphasised that, where the complaint was of misdirection of law, “there has been an error in law; and the court must assume that it has, or may have, resulted in a miscarriage of justice, for a party has a right to have his case tried according to law”.

40    Here, the adjective “substantial” qualifies “miscarriage of justice”. However, Windeyer J’s reasoning applies with added force where the proceeding in question leads to the imposition of a punishment yet is not conducted by a court. Here, there was a misdirection on a matter of law which was a material irregularity in the course of the proceeding. The appellant, under the present state of authority in this Court, did not have the right to the determination of his guilt, on charges of offending against a law of the Commonwealth, by a court exercising the judicial power of the Commonwealth. Nevertheless, he had, at the least, a right to have his case determined by a court-martial which proceeded according to the law of the Commonwealth.

135    Section 133 of the DFDA provides that in the case of trial by court martial, all questions are to be determined by the members. On my view of the case, a question for determination was whether the appellant intended to create a disturbance. That question should have been determined by the panel. The result of the error in the Judge Advocate’s direction was that the appellant was deprived of the opportunity to have the question of intention decided by the designated tribunal of fact. It follows that there was a substantial miscarriage of justice.

136    I would:

    allow the appeal against the Tribunal’s decision;

    set aside that decision;

    quash the appellant’s conviction and penalty; and

    remit the matter to the Tribunal for the purpose of making such orders as are necessary and conformable with this decision.

137    I should add one further comment. If I am wrong in my view of s 33(b), then the section should be construed as requiring a physical element, conduct, and a result of such conduct, the creation of a disturbance. The fault element for the conduct is intention and for the result, recklessness. On that approach to the case, I would again conclude that there was a substantial miscarriage of justice as the question of recklessness ought to have been determined by the panel.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:    26 February 2013

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 541 of 2012

ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

BETWEEN:	TING LI Appellant
AND:	CHIEF OF ARMY Respondent

JUDGES:	KEANE CJ, DOWSETT, LOGAN, JAGOT & YATES JJ
DATE:	26 FEBRUARY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

LOGAN J:

138    On 28 September 1942 at Port Moresby in the then Australian Territory of Papua, now part of the Independent State of Papua New Guinea, Lieutenant General Sydney Rowell was relieved of his command as General Officer Commanding New Guinea Force, a Corps commander appointment, by his superior, General Sir Thomas Blamey, Commander in Chief, Australian Military Forces and Commander of Allied Land Forces, South West Pacific Area.

139    Blamey had arrived in Port Moresby on 23 September 1942 on the instructions of General Douglas MacArthur, Commander in Chief, South West Pacific Area and the Australian Prime Minister, The Rt Hon John Curtin. Blamey’s instructions from MacArthur were to “energise the situation”. This he certainly did. What followed between Rowell and Blamey after the latter’s arrival was, even in the restrained language of the Official History (Volume V – South–West Pacific Area – First Year: Kokoda to Wau, 1st edition, 1959, p 237), a “very strained situation”. Other accounts are less prosaic, describing their encounters as a “blazing row” (Rickard J, 20 November 2008, General Edmund F. Herring, 1892-1982, http://www.historyofwar.org/articles/people_herring_edmund.html, accessed 1 February 2013). Rowell himself, in a letter to his Royal Military College, Duntroon classmate, Major General Cyril Clowes, the Commander, Milne Force, described one of his exchanges with Blamey thus (The Commanders, D M Horner Ed, p 237 and fn 32, infra):

I fairly rose. I then got off my chest what I’d been storing up since April 1941. Told him he’d already dumped me twice and was in the process of doing it a third time and so on. In the end, he rose, as I hoped he would …

140    The exchanges between Rowell and Blamey were multi-factorial and lengthy in their origins, ranging from differences in personality, lifestyle, service experience in World War 1 and careers in the inter-war period, events during service together in the Middle East and Greece in 1940 and 1941 to the intense stresses of high command and relationships with Australian politicians and American allies in 1942 at a time when the Japanese southern advance in was at its zenith. It is not relevant to explore these factors in detail. What is relevant to recall is that, on one view of the meaning of the word, the exchanges between Rowell and Blamey in Port Moresby in 1942 were a “disturbance”. Their exchanges undoubtedly “disturbed” the equanimity of many posted to Headquarters, New Guinea Command, for the accounts of them are not confined to Rowell and Blamey personally. Indeed, on that same view of the meaning of the word, those exchanges are arguably the most notorious “disturbance” in Australian military history.

141    Exchanges of that kind, which entail verbal rather than physical violence, but which may be accompanied by emphatic physical gestures, are neither confined to the highest levels of command, nor to active service. They can and do occur in the course of peacetime field exercises, the product of events deliberately introduced to generate, as closely as possible, stresses encountered in wartime. Nor are they confined to the field. Further, their origins can be more banal. The circumstances of military service, in which men and women whose only common ground may be a shared but transient membership of a unit, headquarters, training course or ship’s company and whose character, temperament and interests may be radically different but who are required to live and work in close proximity can and do produce such exchanges at times. So, too, sometimes, does the interface between civilian and military personnel which is a feature of the diarchy of general administration of the Defence Department [s 9A, Defence Act 1903 (Cth)] produce such exchanges. The present is an example of the latter two kinds of cases.

142    The facts of the present case are summarised in the joint judgment of the Chief Justice and Jagot and Yates JJ, which I have had the advantage of reading. There, too, are described the charge laid against the appellant, Major Li under s 33(b) of the Defence Force Discipline Act 1982 (Cth) (DFDA), the course of proceedings below, the grounds of appeal and the submissions of the parties. I gratefully adopt these parts of the joint judgment.

143    I agree with the Chief Justice and Jagot and Yates JJ that the challenge to the tribunal’s decision based on the Racial Discrimination Act 1974 (Cth) must fail.

144    I respectfully differ from the Chief Justice and Jagot and Yates JJ and, for that matter, the tribunal, as to what constitutes a “disturbance” for the purpose of the service offence of creating a disturbance for which s 33(b) of the DFDA provides. I also respectfully differ from their Honours as to the adequacy of the directions given to the court martial by the judge advocate with respect to that offence. These differences have dictated that I have reached a different conclusion as to the outcome of the appeal.

145    In construing s 33(b) of the DFDA, it is necessary to commence by reference to the language which Parliament has employed in that provision. As was emphasised by Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47]:

Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

[Footnote references omitted]

146    For the reasons set out below, approaching the matter in this way discloses that the relevant physical element of the offence created by s 33(b) of the DFDA is the creation of a disturbance. It does not yield a clear meaning as to what constitutes a “disturbance”. That is because more than one meaning can be given to that word. According to the Oxford Dictionary (Online Edition, accessed 1 February 2013), it may mean, “[t]he interruption and breaking up of tranquillity, peace, rest, or settled condition; agitation (physical, social, or political)” but the word disturbance may also carry a less expansive, special meaning, “a breach of public peace, a tumult, an uproar, an outbreak of disorder”. The meanings offered by the Macquarie Dictionary (Online Edition, accessed 1 February 2013) are to no different effect and notably expressly include, “an outbreak of disorder; a breach of public peace”.

147    This is a case where it is both permissible and necessary, having regard to the range of meanings which the word “disturbance” may carry, to have regard to historical considerations, extrinsic materials and statutory purpose to reach a conclusion as to the meaning of the word in the context in which it appears. Some of the relevant historical considerations and extrinsic materials were explored in the tribunal’s earlier decision in Re Anning (unreported, Defence Force Discipline Appeal Tribunal, No DFDAT 5 of 1989, 11 May 1990), referred to in the decision under appeal.

148    In its present form, the service offence of “creating a disturbance” found in s 33(b) of the DFDA is the result of the repeal and replacement by the Defence Legislation (Application of Criminal Code) Act 2001 (Cth) (Defence Legislation (Application of Criminal Code) Act) of the section as originally enacted. It is stated in the Explanatory Memorandum for the Defence Legislation (Application of Criminal Code) Act that the amendments made by it to the DFDA “include amendments to harmonise the offence-creating and related provisions within the Act with the general principles of criminal responsibility as codified in Ch 2 of the Criminal Code, whilst at the same time ensuring that the offences continue to operate as intended by Parliament [are to the text]”. However that may be, in the case of s 33 of the DFDA, a comparison between the section as originally enacted and its present form discloses nothing more than a minor change in drafting style rather than any change of substance either to the text of the provision or the context in which the provision appears. It will though later in these reasons be necessary separately to make reference to the Criminal Code which appears in the Schedule to the Criminal Code Act 1995 (Cth) (Criminal Code) for the purpose of determining what constitutes the “fault element” of s 33(b).

149    The Explanatory Memorandum for the DFDA discloses that a source of inspiration for s 33(b) was an analogous offence found in s 13 of the Naval Discipline Act 1957 (Naval Discipline Act). Prior to the enactment of the DFDA, the effect of the then s 34 of the Naval Defence Act 1910 (Cth) (Naval Defence Act) was that, subject to such modifications and adaptations as were provided by regulations made under that Act, the Naval Discipline Act and the Queen's Regulations and Admiralty Instructions, each as in force on 6 November 1964, governed discipline in the Royal Australian Navy. The Explanatory Memorandum further discloses that there were then no equivalent disciplinary offences in either Army or Air Force service discipline law. Section 13 of the Naval Discipline Act provided:

13.    Every person subject to this Act who –

(a)    fights or quarrels with any other person, whether subject to this Act or not; or

(b)    uses threatening, abusive, insulting or provocative words or behaviour likely to cause a disturbance,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

150    In turn, the origins of s 13 of the Naval Discipline Act may be traced to s 22 of the Post-Restoration “Act for the Establishing Articles and Orders for the regulating and better Government of His Majesties Navies Ships of Warr & Forces by Sea”, 1661, 13 Car II c 9 (Naval Discipline Act 1661), the very first English statutory rendition of Articles of War in respect of discipline in the navy. That Act was prepared by Mr Samuel Pepys, then clerk of the Acts and, as such officeholder, the executive Secretary to the Navy Board. It found its origins in articles concerning martial law for the government of the Navy drawn by the Commissioners at the Navy Office during the period of the Commonwealth: “An Historical Summary of Development of Discipline in the Armed Forces, Part 1 - Historical Introduction to Naval Discipline (to 1957)” (United Kingdom Ministry of Defence: http://www.mod.uk/NR/rdonlyres/B7964294-913F-4B60-A375-8E401660C7C9/0/

ServiceHistories.pdf Accessed 5 December 2012). Section 22 of the 1661 Act provided:

22.    If any of the Fleet finde cause of Complaint of the unwholesomnes of his Victuals or upon other just ground he shall quietly make the same knowne to his Superior or Captaine or Commander in Cheife as the occasion may deserve that such present remedy may bee had as the matter may require and the said Superior or Commander is to cause the same to be presently remedied accordingly but no person upon any such or other pretence shall privately attempt to stirr up any disturbance upon pain of such severe punishment as a Court martiall shall finde meete to inflict.

[Emphasis added]

151    A cognate offence in respect of “behaviour likely to cause a disturbance” still appears in British service discipline law: s 21(2)(a)(ii) of the Armed Forces Act 2006 (UK).

152    The differences evident between the text of s 33 of the DFDA and s 13 of the Naval Defence Act are not happenstance but are instead the result of a deliberate choice by Parliament more closely to confine the scope of conduct caught by the new provision in comparison with its naval discipline predecessor. A comparison of the wording of the respective provisions suggests such a conclusion and it is confirmed by regard to the Explanatory Memorandum to the DFDA, where it is stated:

353.    NDA 13 is in excessively wide terms dealing as it does with “fighting and quarrelling” (which could include relatively inoffensive conduct) and applying to such conduct whenever it occurs (which could include conduct in a private residence).

354.    Clause 33 accordingly spells out the elements of reprehensible conduct embraced by fighting and quarrelling and confines the ambit of the offences to service land, etc, and public places.

“Quarrelling”, conspicuously, was not carried over into s 33(b) of the DFDA as a service offence.

153    A clause very similar to what became s 33(b) of the DFDA appeared as cl 62(b) of a draft Defence (Discipline and Justice) Bill 1974, never enacted, which formed part of the “Defence Force Disciplinary Code, Report of the 1973 Working Party” (Parliamentary Paper No 48/1974) (1973 Working Party Report). The 1973 Working Party was chaired by an in-house, criminal law expert within the Attorney-General’s Department, Mr Arthur Watson (who would later co-author Australian Criminal Law: Federal Offences, Law Book Co, 1985) and included senior military lawyers drawn from each branch of the Permanent Forces. The DFDA was based on the 1973 Working Party Report (Explanatory Memorandum, para 62). That is made especially evident in respect of s 33 of the DFDA by the reference to cl 62 at para 355 of the Explanatory Memorandum.

154    In outlining their general approach in their report, the 1973 Working Party expressly identified cl 62 as one of a number of specific service offences included as a result of an analysis court martial trials of offences of conduct to the prejudice of good order and discipline, a service offence of a generic character, then found in army and air force discipline law.

155    Parliament’s purpose in enacting s 33 of the DFDA was evidently to delineate, for the benefit of all arms of the Defence Force (and defence civilians subject to the DFDA), a more particular touchstone, derived from an offence which had long formed part of naval discipline law, in respect of conduct it regarded as unacceptable. At the same time, Parliament chose, by the inclusion of s 60, to retain in the DFDA an offence of a more general character, doing an act that is likely to prejudice the discipline of, or bring discredit on, the Defence Force, inferentially to cover conduct falling short of a more specific offence but which was nonetheless antithetical to what was acceptable in the profession of arms.

156    For all its long history in naval discipline law, guidance as to what constituted the initially English and then British service offence of causing a disturbance is not to be found in reported cases from the United Kingdom. In itself, that is not surprising as, until the enactment of the Courts-Martial (Appeals) Act 1951, the United Kingdom’s military justice system did not provide for an appeal to a court against a court martial conviction. Instead, review was undertaken within the higher levels of the chain of command. It was rare for service disciplinary cases to find their way into the High Court of Justice by way of prerogative writ proceedings.

157    That is not to say that in earlier times there was an absence of understanding in the United Kingdom as to the meaning of the word “disturbance” as used in the context of the criminal or public order law. In his seminal 19th century work, “The Military Forces of the Crown: their administration and government”, 1869, at pp 649-650, Mr Charles Clode, Legal Adviser at the War Office, in the course of discussing the circumstances in which the military might lawfully afford aid to the civil power, reproduces as relevant an advice dated 1 April 1801 furnished by the then Attorney-General, Sir Edward Law (later, Lord Elenborough, Lord Chief Justice), to the War Office. That advice was responsive to an inquiry made of the Attorney as to when, in case of a riot or disturbance, such aid might be furnished? The Attorney commenced his advice by more precisely defining the circumstances under contemplation in the request for his advice:

I understand the disturbances here to be such as to amount to the legal description of riots. The word ‘disturbance’ has no legal and appropriate meaning beyond a mere breach of the peace, which is not however the sense in which the word is used in this case; the case plainly importing a breach of the peace by an assembled multitude.

[Emphasis in original]

158    It is important to note that Sir Edward Law’s opinion that, “the word ‘disturbance’ has no legal and appropriate meaning beyond a mere ‘breach of the peace’” exactly corresponds with a particular, special meaning which the word carries to this day. That the word carries this meaning in s 33(b) is supported by the expression of intent in the Explanatory Memorandum more closely to confine the conduct made an offence than that covered by the provision’s naval predecessor.

159    I can find nothing which would suggest that the understanding which Sir Edward Law had as to the meaning in a particular context of the word “disturbance” was either idiosyncratic or the product of a usage of the word having its origins in the early 19th century.

160    It is highly unlikely that there was any different understanding of the meaning of the word “disturbance” when it was used in the offence created by the Naval Discipline Act 1661. At common law, one of the Monarch’s primary responsibilities is the general conservation of the peace of the kingdom, qv Holdsworth, A History of English Law, Volume X, p 414, citing Blackstone’s Commentaries. So longstanding and basal, even in the 17th century, was the concept of the Monarch’s Peace that it is inherently likely that Pepys when drafting and the English Parliament, when enacting, brought this understanding of the meaning of the word “disturbance” to s 22 of the Naval Discipline Act 1661 and that this same understanding has permeated successor provisions. In other words, the word “disturbance” was used so as to ensure that behaviour which would amount to a breach of the peace by a civilian would constitute a breach of naval discipline if engaged in by an officer or seaman.

161    Language must, of course, take paramountcy over history in the interpretation of a particular provision but there is nothing in the use of the word “disturbance” in s 33(b) of the DFDA which suggests a departure from history. Insofar as the concept of a breach of the peace in civilian criminal law may carry with it a requirement that the conduct be in a public place, the preamble in s 33 makes it plain that, so far as the service offence is concerned, no distinction is to be drawn between a public place (defined in s 3 of the DFDA in a way consistent with civilian criminal law notions of the term) and service land, a service ship, a service aircraft or a service vehicle (terms each also defined in s 3), each of which will frequently, if not usually, not be a public place. What amounts to a “disturbance” does not mean one thing in a public place and another on service land.

162    It is also relevant to consider statutory purpose either to confirm the meaning of a statutory provision or to resolve ambiguity. Indeed, s 15AA of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) counsels that preference be given to a meaning that would best achieve the purpose of an enactment.

163    The overall purpose of the DFDA is evident both from the title of the statute and from the application of its provisions regulating conduct to “defence members” and, in certain instances, to “defence civilians”. The purpose of the DFDA is to provide a disciplinary code for the Australian profession of arms and for certain civilians who accompany the members of that profession.

164    In light of that purpose and recalling the behaviours described at the outset of these reasons for judgment, each of the meanings, general and narrow, might be plausibly supported. Neither would result in an absurd application of the offence created by s 33(b). That acknowledged, there is nothing about the nature of military service which compels a preference for the more general meaning of “disturbance” so as better to serve the purpose of the DFDA. The military environment, even in peacetime, is hardly a place of monastic peace or solitude where interpersonal conversation must occur only in muted tones lest the tranquillity of one’s fellow soldiers, sailors or airmen or collocated civil servants be “disturbed”.

165    Apart from historical considerations, two considerations of principle also tell in favour of affording the word “disturbance” its more specialised meaning. The first is that, “a soldier is gifted with all the rights of other citizens … the mistake should be corrected which presupposes that an Englishman, by taking upon him the additional character of a soldier, puts off any of the rights and duties of an Englishman”: Burdett v Abbot (1812) 4 Taunt 401 at 449-450 [128 ER 384 at 403], a principle just as applicable in Australia as it is in the United Kingdom: Groves v The Commonwealth (1982) 150 CLR 113 at 125-126; Re Tracey; ex parte Ryan (1989) 166 CLR 518 at 538, 546, 575 and 584. The second is that, subject always to express or necessary implication to the contrary, a statute ought not to be construed so as to diminish personal rights and freedoms: Coco v The Queen (1994) 179 CLR 427 at 436-438. R v The Justices of Clifton; ex parte McGovern [1903] St R Qd 177 at 181-182 (McGovern) offers an example of the application of this principle by a Queensland Full Court presided over by Griffith CJ so as to prefer a narrower construction of the reach of a cognate, civilian public order offence to that created by s 33(b) of the DFDA.

166     It would be a large step not to give full voice to these principles when construing s 33(b). An Australian soldier, sailor or airman does not, by putting on our nation’s uniform, forfeit the benefit of these principles. To afford the word “disturbance” its more general meaning would violate these principles by enlarging the scope of conduct rendered a service offence by s 33(b), an offence which, on conviction, may result in imprisonment.

167    Any concern that the adoption of the narrower, specialised meaning of the word might lead to the disruption of others, military or civilian, on duty or otherwise, is met by a consideration of the DFDA as a disciplinary code as a whole. That disciplinary code contains ample provision for the addressing of conduct which has disruptive qualities but which does not constitute a breach of the peace. The use to another person of insulting or provocative words is proscribed by s 33(d). Insubordinate conduct is a service offence: s 26 of the DFDA. A defence member whose tone, manner and volume of conversation is disruptive could lawfully be ordered by a superior to desist in that conduct or to quit a location. Failure to obey such an order would be a service offence: s 27 of the DFDA. Collective disobedience by defence members to lawful authority, which military history instructs is not uncommonly accompanied by riotous behaviour, constitutes mutiny and is punishable under s 20 of the DFDA. Yet further, the service offence of engaging in prejudicial conduct created by s 60 of the DFDA may be used to address less severe but nonetheless disruptive behaviour by individuals or groups in particular cases.

168    If, for example, there were ever a replication by modern counterparts of the tone and manner of Rowell’s exchanges with Blamey, to say nothing of a myriad of more banal situations, the DFDA makes ample provision to address such behaviour without requiring an expansive meaning to be given to the word, “disturbance” in s 33(b). That is not to say that every such exchange must result on a charge. Sometimes (and Rowell’s situation may offer a case in point), there may be extenuating circumstances. Decisions on the subject of whether resort to formal processes of the disciplinary code is necessary can and are left by the DFDA to the value judgment of those in the profession of arms responsible for the administration of its disciplinary code. What it is to say is that there is no need to afford the word “disturbance” a wider meaning than its historic, specialised meaning to overcome any perceived gap in the disciplinary code.

169    For these reasons I conclude that, as used in s 33(b) of the DFDA, “disturbance” means a breach of the peace. The material physical element of the service offence is, in effect, to create a breach of the peace.

170    For all its longevity in the common law and as the following survey of authority demonstrates, giving precision to what constitutes a breach of the peace has proved elusive and divisive.

171    The notion that a “disturbance” is a breach of the peace is evident in the approach in Canada to the meaning of that word as it appears in s 175(1)(a) of the Criminal Code 1985 (Can), which provides:

175.    (1)    Every one who

(a)    not being in a dwelling-house, causes a disturbance in or near a public place,

(i)    by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

(ii)    by being drunk …

is guilty of an offence

[Emphasis added]

172    In R v Lohnes [1992] 1 SCR 167 at 168, 171-172 (Lohnes), a case in respect of an alleged offence against s 175(1)(a), McLachlin J (as Her Honour then was), delivering judgment on behalf of a court which comprised, L'Heureux Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ, stated:

[The] noun "disturbance" may have a different connotation than the verb "to disturb". Not everything that disturbs people results in a disturbance (e.g., smoking). A definition which posits identity between "disturb" and "disturbance" is contrary to ordinary usage, the most fundamental principle of statutory construction. This is not to say that one cannot speak of a purely emotional disturbance, but rather that "disturbance" has a secondary meaning which "disturb" does not possess; a meaning which suggests interference with an ordinary and customary conduct or use.

…

[The] disturbance contemplated by s. 175(1)(a) is something more than mere emotional upset. There must be an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public. There may be direct evidence of such an effect or interference, or it may be inferred from the evidence of a police officer as to the conduct of a person or persons under s. 175(2). The disturbance may consist of the impugned act itself, as in the case of a fight interfering with the peaceful use of a barroom, or it may flow as a consequence of the impugned act, as where shouting and swearing produce a scuffle. As the cases illustrate, the interference with the ordinary and customary conduct in or near the public place may consist in something as small as being distracted from one's work. But it must be present and it must be externally manifested.

[Emphasis added]

See also to like effect Stoke-Graham v R (1985) 16 DLR (4th) 321 at 331 per Dickson J where his Honour observed that it was “necessary for the conduct to be disorderly in itself or productive of disorder in order to be rendered criminal”.

173    Lohnes was particularly influential in the tribunal’s conclusion that the conclusion was open that the impugned conduct constituted a “disturbance” within the meaning of s 33(b) of the DFDA. Consideration of other authorities calls into question the correctness of all of the observations made in Lohnes as to what constitutes a disturbance or, which is the same thing, a breach of the peace, especially whether something as small as distracting another from his or her work constitutes a “disturbance”.

174    There is a difference in English authority as to what conduct must entail in order for it to constitute a breach of the peace. In R v Chief Constable of Devon and Cornwall; ex parte Central Electricity Generating Board [1982] QB 458 at 471 Lord Denning MR (CEGB Case), who alone of the members of the Court of Appeal made observations on this subject, equated a breach of the peace with an unlawful obstruction of anyone going about their lawful business.

175    A more stringent view of what is required is evident in another case decided earlier in that same year by a differently constituted Court of Appeal, R v Howell [1982] QB 416 (Howell). In Howell, the Court of Appeal made the following observations in relation to what constituted a breach of the peace:

A comprehensive definition of the term 'breach of the peace' has very rarely been formulated so far as we have been able, with considerable help from counsel, to discover from cases which go as far back as the eighteenth century. The older cases are of considerable interest but they are not a sure guide to what the term is understood to mean today, since keeping the peace in this country in the latter half of the twentieth century presents formidable problems which bear on the evolving process of the development of this branch of the common law. Nevertheless, even in these days when affrays, riotous behaviour and other disturbances happen all too frequently, we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done. There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks on a person's body or property.

In Halsbury's Laws of England 4th Ed, Vol 11 (1976) para 108 it is stated:

'For the purpose of the common law powers of arrest without warrant, a breach of the peace arises where there is an actual assault, or where public alarm and excitement are caused by a person's wrongful act. Mere annoyance and disturbance or insults to a person or abusive language, or great heat and fury without personal violence, are not generally sufficient.'

That is an amalgam of opinions expressed in various old cases which is principally criticised by counsel for the appellant for its failure to attach the actual commission of violence to all acts which are said to be capable of causing a breach of the peace. He makes a similar criticism of the crisp definition provided by the Attorney General, referred to in Gelberg v Miller [1961] 1 All ER 291 at 295; [1961] 1 WLR 153 at 158 with reference to the word disturbance. Lord Parker CJ said:

'The Attorney-General, to whom the court is grateful for his assistance, has appeared and has told the court that he feels unable to contend that a constable is entitled to arrest somebody for obstructing him in the course of his duty—which, of course, is a misdemeanour under s 2 of the Prevention of Crimes Amendment Act, 1885—unless the circumstances show that a breach of the peace or an apprehended breach of the peace is involved, meaning by that some affray or violence or possibly disturbance.'

The statement in Halsbury's Laws of England is in parts, we think, inaccurate because of its failure to relate all the kinds of behaviour there mentioned to violence. Furthermore, we think, the word 'disturbance' when used in isolation cannot constitute a breach of the peace. We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, an unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant.

[Emphasis added]

176    On this approach, only a disturbance which is violent or likely to provoke violence is a breach of the peace. Later, in Percy v Director of Public Prosecutions [1995] 1 WLR 1382 (Percy), having considered both the CEGB Case and Howell, the Court of Appeal concluded that the formulation in Howell was the better view and concluded that, “breach of the peace is limited to violence or threats of violence as set out in Howell and any observations which may indicate something wider ought not to be followed”. The Howell formulation as to what constitutes a “breach of the peace” is not readily reconcilable with the words emphasised in the passage quoted from Lohnes, the formulation in which, while more stringent than that offered by Lord Denning in the CEBG Case, is less stringent than that offered in Howell.

177    As the CEGB Case highlights, what constitutes a breach of the peace is important for at common law it is the responsibility of all citizens but especially constables of police to prevent a breach of the peace. No less important is the adverse impact on civil liberties of too wide a formulation of what constitutes a breach of the peace. This is no less important in relation to an armed, disciplined force such as the Australian Defence Force. The prevention of a disturbance would be a special responsibility of officers and non-commissioned officers and military or service and regimental police. There is no need arising from those responsibilities or the nature of the Australian Defence Force to adopt some different meaning of “disturbance” to that which it bears in respect of civilian behaviour because, as I have already highlighted, consideration of the disciplinary code in the DFDA as a whole discloses that there are ample other provisions available to address behaviours which do not constitute a breach of the peace.

178    This interrelationship between a breach of the peace and the responsibilities of constables formed the factual foundation of McLeod v United Kingdom (1998) 27 EHRR 493 (McLeod), a case which concerned the power of the police to enter premises to prevent an anticipated breach of the peace. In that case, the Howell formulation of what constituted a breach of the peace, as approved in Percy, was later challenged before the European Court of Human Rights on the basis that it was too imprecise to constitute “prescribed by law”, as required by, Articles 5.1, and 10.2 of the European Convention on Human Rights, or “in accordance with law” as required by Article 8.2 of that convention. That court concluded in McLeod (at [42]):

[The] concept of breach of the peace has been clarified by the English courts over the last two decades, to the extent that it is now sufficiently established that a breach of the peace is committed only when an individual causes harm, or appears likely to cause harm, to persons or property, or acts in a manner the natural consequence of which would be to provoke violence in others.

On the basis of this conclusion, the challenge failed because the court considered that what constituted a “breach of the peace” was defined with sufficient precision to enable a person to foresee, “to a degree that is reasonable in the circumstances”, the consequences of their actions. Thus the entry power asserted met the requirement of being “prescribed by law” or “in accordance with law”.

179    The Howell formulation as to what constitutes a breach of the peace was later accepted as correct in R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105 (Laporte) by Lord Bingham at [27] and by Lord Rodger at [60]. Lord Brown, at [111], opined that:

A breach of the peace, as I understand it, involves actual harm done either to a person or to a person's property in his presence or some other form of violent disorder or disturbance and itself necessarily involves a criminal offence.

That is an even stricter formulation of what constitutes a breach of the peace than that in Howell, excluding as it does conduct likely to cause harm to a person or property. Lord Mance adopted a similar formulation of a breach of the peace to that of Lord Brown, remarking, at [137]:

An actual, as opposed to an apprehended, breach of the peace connotes some form of violent disturbance or occurrence.

180    So far as what constitutes a breach of the peace is concerned, this remark is preceded by what, in my respectful opinion, is a compelling critique by Lord Mance (at [137]) of a passage in the judgment of the European Court of Human Rights in Steel v United Kingdom (1998) 28 EHRR 603. That critique offers further insight into his Lordship’s understanding as to what constitutes a breach of the peace:

[137]    The common law requirement to keep the peace has been held by the European Court of Human Rights to be sufficiently clear to be regarded as “prescribed by law”: see Steel v United Kingdom (1998) 28 EHRR 603, paras 25-29 and 55. This was on the basis that:

“. . . the concept of breach of the peace has been clarified by the English courts over the last two decades, to the extent that it is now sufficiently established that a breach of the peace is committed only when an individual causes harm, or appears likely to cause harm, to persons or property or acts in a manner the natural consequence of which would be to provoke others to violence. It is also clear that a person may be arrested for causing a breach of the peace or where it is reasonably apprehended that he or she is likely to cause a breach of the peace.”

The first sentence in this citation appears to me to embrace both situations in which a person has committed an actual breach of the peace and situations in which he merely threatens to cause one, in other words to embrace all the situations in which a person may be bound over to keep the peace, and committed to custody if he or she refuses to be so …

181    In other words, according to Lord Mance the deficiency in the Howell formulation is that it conflates what truly constitutes a breach of the peace with other, lesser conduct which nonetheless justifies the arrest and binding over of a person engaged in that conduct. Lord Brown made this same point, at [111] when he observed of the formulation in that case of what constituted a breach of the peace that it “seems to me to confuse a breach of the peace with a reasonable apprehension of such a breach (a confusion by no means confined to that judgment)”. I respectfully agree with their Lordships views.

182    In Australia, the view has been taken that something more than mere annoyance is needed in order for there to be a disturbance of the public peace. Thus, Burbury CJ in Neave v Ryan [1958] Tas SR 58 at 59-60 stated:

Shouting loudly in a public place or addressing a crowd in loud tones cannot possibly of itself amount to conduct creating a disturbance of the public peace. There must be some other element-use of insulting, abusive or threatening words or words inciting a breach of the peace. To hold otherwise would endanger free speech. It would bring within the ambit of the criminal law the street corner preachers, the Domain orators and the politicians on the hustings. Even shouting in a loud voice in a public place accompanied by the discordant tones of a cornet has been held not to constitute the offence of disturbing the public peace [Beaty v Glenister (1884) 51 LT 304]. Noise in public places may be an annoyance to citizens and may contravene city by-laws but it does not constitute a disturbance of the public peace in the legal sense. The “public peace” is not “peace and quiet”-it is “public order”.

183    To like effect is Williams v Pinnuck (1983) 68 FLR 303, a case in which an Aboriginal woman was charged under s 47(b) of the Summary Offences Act (NT) with disturbing the peace in circumstances where, near to an aboriginal camp, she had been loudly haranguing four other women who were sitting around a camp fire. Her shouts were accompanied by much waving of her arms but the evidence was that the scene was otherwise peaceful. There was no evidence of a melee of bystanders being aroused. Applying Neave v Ryan, Muirhead ACJ quashed her conviction although he allowed that the position might have been different if there had been proof of substantial annoyance to another person.

184    Later in time and in the High Court is Kuru v New South Wales (2008) 236 CLR 1 (Kuru). That case arose against the background of an alleged trespass to land by police officers responding to a domestic violence complaint. The defence pleaded justification for entry and remaining on the land in question arising under both statute and common law. In the course of discussing the latter, Gleeson CJ, Gummow, Kirby and Hayne JJ referred (at [49] - [50]) to the right at common law to prevent a breach of the peace and to what constituted a breach of the peace:

49    These considerations apart, when it is said that a police officer may enter premises to “prevent” a breach of the peace, it is necessary to examine what is meant by “prevent” and what exactly is the power of entry that is contemplated. Is the power to enter one which permits forcible entry? Does preventing a breach of the peace extend beyond moral suasion to include arrest? Is the preventing of a breach of the peace that is contemplated directed ultimately to prevention by arrest?

50    Some of these questions have since been considered in English decisions. Those later decisions proceed from the premise stated by Lord Diplock in Albert v Lavin that:

“[E]very citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will.”

As is evident, not only from the passage just cited but also from some of the later English decisions, working out the application of a premise so broadly stated is not free from difficulty, not least in deciding what constitutes an actual or threatened breach of the peace and what steps, short of arrest, may be taken in response.

[Footnote references omitted]

185    The words emphasised are accompanied by a footnote reference to Addison v Chief Constable of the West Midlands Police [2004] 1 WLR 29 at 31-32 (Addison). In Addison, at 30-31, Ward LJ, Saville and McCowan LJJ agreeing, cited both the Howell and the CEBG Case formulations as to what constitutes a breach of the peace. Percy is not cited in Addison. To hold that Kuru does more than acknowledge that the limits of what constitutes a breach of the peace are elusive would be to afford the passage quoted more weight than it can bear.

186    Another High Court case, Coleman v Power (2004) 220 CLR 1 (Coleman v Power), should also be noted. Materially, the appellant, Coleman had been charged with the use of insulting words in a public place, contrary to s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld). That provision replaced an earlier offence, the meaning of which was considered in McGovern, of using insulting words in a public place with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned. The importance of the case for present purposes is that, in giving meaning to what constituted the offence created by the replacement provision, some of the judges did so by reference to and by way of contrast with the earlier legislation, in the course of concluding that the replacement provision extended to conduct which would not have constituted a breach of the peace: see Gleeson CJ at [6] and [7], McHugh J at [67] and [68] and Gummow and Hayne JJ at [183].

187    The most recent Australian authority I have located is Nilsson v McDonald (2009) 19 Tas R 173. That was an appeal against a conviction for failing to comply with the direction of a police officer, contrary to s 15B(2) of the Police Offences Act 1935 (Tas). Section 15B(1)(d) of that Act permitted the giving to a person by a police officer of a direction if that officer had reasonable grounds for believing that the person “has committed or is likely to commit a breach of the peace”. Each of the judges constituting the Full Court of the Supreme Court of Tasmania reviewed the authorities here and in the United Kingdom as to what constituted a breach of the peace. The Chief Justice, Crawford CJ, noted the divergence in formulations as between Howell and the CEGU case but did not find it necessary to resolve which was correct although he allowed (at [7]) the possibility that the formulation in Howell was not exhaustive as to the circumstances which constituted a breach of the peace, concluding his judgement in this way:

6.    In Percy v Director of Public Prosecutions (1995) 1 WLR 1382, the Queens Bench Division was concerned with a situation where a protester, although acting peacefully while protesting, was likely to provoke violence by others as a natural consequence of what she was doing. The court applied Howell and accepted that a breach of the peace occurs where the violence, or threatened violence, is not that of the offender but of others likely to be provoked by the offender's conduct. In Edwards v Raabe (2000) 117 A Crim R 191 at 197 – 200, Smith J applied that principle.

7.    It was suggested by Marks J in Nicholson v Avon [1991] 1 VR 212 at 221, that the definition in Howell and other cases may not be exhaustive. See also New South Wales v Tyszyk [2008] NSWCA 107 per Campbell JA at par 101. Possibly that is so. However, I am unaware of any authority in which it was held that a breach of the peace can occur in circumstances where the person concerned is merely argumentative or making excessive noise, without a consequent likelihood of violence or harm to any person or property, or of persons being put in fear of such violence or harm.

8.    In other words, "peace", in the expression "breach of the peace", does not mean quietness.

[Emphasis added]

Evans J, also, highlighted (at [13] - [14]) the divergence in authority but likewise did not find it necessary to resolve the question as to what constituted a breach of the peace, instead regarding it as sufficient in that case to proceed on the basis that, in order to establish a breach of the peace it was necessary to establish actual or likely personal harm. His Honour considered that there was an evidentiary foundation for the constable in question to have reasonable grounds to form the required belief and so dissented as to the outcome of the appeal. The remaining judge, Blow J, conducted (at [27] and following) an extensive review of authority concerning a breach of the peace from its origins in the common law concept of the King’s peace to the present day, ultimately concluding (at [42]) that the concept of a breach of the peace had been authoritatively determined in Howell. The analysis conducted by Blow J would support a conclusion that at least threatened, if not actual, violence to a person or property is an element of a breach of the peace. However and with respect, the critique of Howell by Lords Brown and Mance in Laporte demonstrates that it is erroneous to include in a formulation of what constitutes a breach of the peace conduct falling short of actual violence to a person or property.

188    The members of the tribunal did not have the benefit of any such extensive review of authority concerning what constituted a breach of the peace and whether “disturbance” should be so measured. The tribunal (at [68]), did not in terms adopt as the meaning of the word “disturbance” in s 33(b) of the DFDA the meaning given to that word in the context of s 175(1)(a) of the Canadian Criminal Code in Lohnes. Instead, it noted (at [68]) that, while the context in which the word appeared in that statute and the circumstances of that case were different to the present, what had occurred in the present case “fits comfortably” within the meaning given to that word in Lohnes. A difficulty about that conclusion is that Lohnes does not fit comfortably with a discernable trend in modern authority here and in the United Kingdom concerning what constitutes a breach of the peace, which requires conduct to carry with it an element of harm to a person or his property or, at the very least and (if one, as I do, accepts the correctness of what was said by Lords Brown and Mance in Laporte) probably erroneously, the likelihood of the same in order for there to be a breach of the peace.

189    In examining what constituted a “disturbance” the tribunal also referred to Brooker v The Police [2007] 3 NZLR 91 (Brooker) but this was a case concerning the offence of engaging in disorderly behaviour contrary to s 4(1)(a) of the Summary Offences Act 1981 (NZ), an enactment which, like s 7(1) of the Vagrants, Gaming and Other Offences Act 1931 (Qld), omitted as an element a breach of the peace. It was true of Brooker, as the tribunal, at [70] observed, that:

The Supreme Court concluded, by a majority, that the conduct in question was not disorderly because it could not be characterised as disruptive of public order in the particular circumstances of time and place. There had to be anxiety or disturbance beyond what reasonable citizens should, in the circumstances, be expected to bear.

Assuming though that “disturbance” is to be regarded as a term used to connote what at common law is a breach of the peace, it was apt to mislead as to what constituted a breach of the peace to regard Brooker as of assistance, because the Supreme Court of New Zealand was there giving meaning to a statute which had deliberately excluded a breach of the peace as an element of the offence created.

190    Accepting as I do the formulations of Lords Brown and Mance respectively in Laporte, a breach of the peace is some form of actual harm done to a person or his or her property in that person’s presence or some other form of violent disorder. There is a difference, blurred by conflation in many formulations, between a breach of the peace and an apprehended breach of the peace.

191    Such conflation is evident in the direction given to the court martial by the judge advocate, quoted at [65] of the tribunal’s reasons and apparently regarded by the tribunal as correct:

Here, the prosecution case is that it involved violent or disorderly disputation. The conduct must be such as to be likely to cause a response from anyone present who saw or heard the incident; that response could be to intervene to stop the disturbance, or to report it, or to leave the area because of the unsettling effect of the disturbance. In other words, if you were working in an office and someone was playing loud music nearby, that might disturb you from your work but it wouldn’t be creating a disturbance within the meaning of the Act. There needs to be violent or disorderly disputation, as I say, and there needs to be conduct which must be such as to be likely to cause a response from anyone present who saw or heard the incident.

[Emphasis added]

192    Further, the observation in Lohnes that a breach of the peace “may consist in something as small as being distracted from one's work”, with respect, seriously understates the conduct which must be entailed.

193    Once the meaning of breach of the peace is understood, context also supports affording “disturbance” a meaning commensurate with a breach of the peace. The use of insulting or provocative words is made a separate offence by s 33(d) of the DFDA; so, too, by s 33(a), is the actual commission of an assault on another person. In some circumstances, but not invariably, there may be an overlap between conduct caught by s 33(a) and conduct caught by s 33(d). A person may intend to assault another but not to create a disturbance. Indeed, the assault may occur in circumstances which could never amount to a disturbance, intended or otherwise. Yet further, given that a disturbance may entail harm to property, not a person, a defence member might for that reason engage in conduct which amounted to the creation of a disturbance without assaulting anyone. That there may be an overlap in some circumstances is no warrant for violating defence members the benefit of the principles discussed above. The heading of the Division in which s 33 of the DFDA appears, which forms part of that Act (s 13 of the Acts Interpretation Act), is “Insubordination and violence”. Given the use there of the word, “violence”, to afford “disturbance” the meaning of a breach of the peace is in harmony with this divisional heading and with the other paragraphs of s 33.

194    Thus, while I accept that the evidence before the tribunal did, according to the formulation in Lohnes, “fit comfortably” within the meaning of “disturbance” as explained in that case, that explanation does not correctly state the meaning of that term as it appears in s 33(b) of the DFDA. As that term is correctly to be construed, the evidence before the court martial did not, even taken at its highest, demonstrate that Major Li had created a “disturbance”. There was no actual harm to any person or property. It follows from this that the tribunal was bound to conclude that his conviction in respect of an offence against s 33(b) was wrong in law and that a substantial miscarriage of justice had occurred.

195    Even if, contrary to my conclusion, the evidence did disclose the creation of a breach of the peace, there are other reasons, related to the directions given by the judge advocate with respect to the fault element in the offence of creating a disturbance and with respect to the particulars, why the tribunal ought to have concluded that Major Li’s conviction was wrong in law and that a substantial miscarriage of justice had occurred.

196    As mentioned above, the physical elements of the offence created by s 33(b) of the DFDA are evident on the face of the provision. They are firstly and materially the creation of a disturbance and secondly, and presently immaterially, that the disturbance created be on service land etc or in a public place. It was uncontroversial that the location was “service land”.

197    “Conduct” is defined by s 4.1 of the Criminal Code to mean, materially, an “act”. In s 33(b), the creation of the disturbance is the “act”: see, by analogy, R v Saengsai-Or (2004) 61 NSWLR 135 at [72] per Bell J, Wood CJ at CL, Simpson J agreeing (Saengsai-Or). That means that, in terms of s 4.1(1)(a) of the Criminal Code, it is the conduct to which s 33(b) of the DFDA is directed. A “disturbance” may be said to be the result of conduct, but that does not engage s 4.1(1)(b) of the Criminal Code, because that ignores the requirement in s 33(b) that the offender must “create” the disturbance.

198    The fault element is not specified in s 33(b) of the DFDA itself. The relevant physical element of the service offence created by that provision consists only of conduct namely, the creation of a disturbance. In those circumstances, the effect of s 5.6(1) of the Criminal Code is that intention is the fault element for that physical element: Saengsai-Or at [72]. Once again, because that physical element of this service offence does not consist solely of a circumstance or a result (the disturbance) but also entails the creation of the same by the offender, recklessness cannot be the fault element for that physical element. Major Li’s submission to the contrary should be rejected. It does not follow from that conclusion that the summing up did not lead to a miscarriage of justice.

199    Materially, the judge advocate directed the court martial:

You must also be satisfied of the fault element, which is intention. That does not mean the prosecution has to prove the defendant intended to create a disturbance. The prosecution has to prove the accused intended to engage in the act that amounted to a disturbance if you find the conduct amounted to a disturbance.

[Emphasis added]

The words emphasised misstated the position. That is because it was incumbent on the prosecution to prove beyond reasonable doubt that Major Li intended to create a disturbance. By virtue of s 5.2 of the Criminal Code, a person has intention with respect to conduct constituting a physical element if he or she means to engage in that conduct as specified in the provision creating the offence: see, by analogy, PJ v R [2012] VSCA 146 at [85]. More particularly, in X v Australian Prudential Regulation Authority (2007) 232 ALR 421 at [51] (X v APRA), Gleeson CJ, Gummow, Hayne, Heydon, Callinan and Crennan JJ stated:

A person has intention with respect to conduct if he or she "means to engage in that conduct" (Criminal Code, s 5.2(1)). When this is applied to s 6O of the Royal Commissions Act, the upshot is consistent with the construction of s 6O in its earlier form by Davies J in R v O'Dea. His Honour adopted what had been said by Isaacs and Rich JJ in Bell v Stewart:

"It is clear to our minds that the word 'wilfully' does more than negative 'accidentally' or 'unconsciously'. The Legislature was, of course, not simply excluding acts done in sleep or hypnosis or under compulsion. To speak of a person 'wilfully insulting or disturbing the Court' means that he intended to insult or disturb the Court, and not in the sense that his volition impelled the word or the act, but that his purpose was that his word or his act should have the effect of conveying the insult or causing the disturbance. And similarly with all the matters governed by the word 'wilfully'."

[Footnote references omitted - emphasis added]

Having regard to this passage from X v APRA and especially to the portion emphasised, it must follow that, to commit the service offence, even on the more general view of the meaning of the word “disturbance”, Major Li had not only to intend to undertake the conduct particularised but also to intend that those actions would have the quality of disturbing others. It is that intention which is the fault element for that physical element. It was not sufficient, because s 5.2(3) was not applicable, that the prosecution proved either that he meant to bring about the disturbance or was aware that it would occur in the ordinary course of events.

200    It was not by reason of a failure on the part of the judge advocate, derived from disturbance being a “result” in terms of 5.2(3) of the Criminal Code, to direct on recklessness that any error lay in the tribunal’s decision. Instead, the relevant conduct, creating a disturbance, occasioned a requirement to give a direction as to intention. For the reasons given, this was where the error lay. The adequacy of the direction given to the court martial with respect to the fault element was an issue before the tribunal. It is also a question of law involved in the appeal. As a result of this misdirection described, the requisite fault element never came to be considered by the court martial. Major Li was thereby deprived of a “fair chance of an acquittal”: Jones v Chief of Navy (2012) 205 FCR 458 at [54]. The result was a substantial miscarriage of justice.

201    The direction given by the judge advocate with respect to the so-called particulars of the charge is set out at [59] of the tribunal’s decision:

… [The] defendant is entitled to know how it is said that he created a disturbance. The prosecution has provided particulars of that. You do not need to be satisfied beyond reasonable doubt that each of the particulars has been proved. What you are required to find is, having regard to the particulars, has the prosecution proved beyond reasonable doubt that the accused created a disturbance by conduct that he intended to engage in at that time. It may be you are satisfied that the accused did behave in the way set out in particular ... but not any other particular.

The question then is, are you satisfied beyond reasonable doubt that the accused created a disturbance by that conduct and that he intended to engage in that conduct at that time.

[Emphasis added]

202    As they came to be amended, the “particulars” of the charge were given in this way. It was alleged that Major Li had:

(a)    refused to leave Mr Snashall’s office when requested to do so by Mr Snashall and continued speaking to Mr Snashall with a raised voice;

(b)    followed Mr Snashall and continued the conversation when Mr Snashall left his own office, ostensibly because MAJ Li would not;

(c)    forcefully pushed against Mr Snashall’s office door placing his head and shoulder in the doorway while Mr Snashall was inside the office trying to close the door;

(d)    re-entered Mr Snashall’s office and again refused to leave when requested to do so;

(e)    stood approximately three inches from Mr Snashall’s face speaking with a raised voice and in an agitated and aggressive manner.

203    In terms of r 9(2)(b) of the Court Martial and Defence Force Magistrate Rules, the words “by causing a confrontation with Mr Snashall”, which appeared in the statement of the charge, ought instead to have been specified as particulars of what constituted the creation of the disturbance alleged in the statement of the charge. The way the charge was drafted and particularised did not violate the basal requirement that a defendant “is entitled to be appraised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge”: Johnson v Miller (1937) 59 CLR 467 at 489 per Dixon J; see also to like effect Evatt J at 497 and McTiernan J at 501. The charge made against Major Li did specify an offence known to law, that of creating a disturbance contrary to s 33(b) of the DFDA. It is just that the way particularity was given to what constituted the disturbance concerned was the result of infelicitous drafting.

204    Though the way in which the charge and so-called particulars were drafted did not in itself give rise to any miscarriage of justice, much less a substantial one, it did create the potential for one arising from what was said of them in the summing up. Having regard to words emphasised in the direction given by the judge advocate, this potential was realised in this case.

205    The drafter of the charge used neither the conjunctive nor the disjunctive in what were termed the “particulars”. These “particulars” were descriptive of the “confrontation” which constituted the “disturbance” allegedly created by Major Li.

206    The tribunal correctly concluded that the charge was not duplex. I respectfully agree with the tribunal’s observation (at [51]) that, “[t]he charge of creating a disturbance can be established by proof of a series of acts which constitute a course of conduct.” Having regard to the conclusion which I have reached as to the meaning of the word “disturbance” as used in s 33(b) of the DFDA, it does not follow from this that I agree with the tribunal’s further statement (also at [51]) that, “[a] person may, for example, cause a disturbance by shouting, banging on walls and by playing amplified music at the same time.” Even considered as a course of conduct this example would not, in law, amount to such a “disturbance”.

207    The series of acts constituting the course of conduct which allegedly amounted to the creation of a disturbance was the series of acts specified in the so-called particulars. No one act was alleged, in itself, to constitute the creation of a disturbance.

208    This was not an offence such as those created by s 56 and s 57 of the DFDA where the physical element of making a false statement might permissibly be alleged and particularised as the making of a statement false in one or more of a number of particularised ways. In those circumstances, the proof of any one or more of those alleged falsehoods would prove that the statement made was false. The allegation that the statement was false in more than one way could not give rise to any complaint of duplicity, because the physical element charged would be the making of but one statement. If the prosecution proved neither alleged falsehood in the statement made the accused would have to be acquitted.

209    The issue is not whether as a matter of practice it is necessary that the prosecution prove the particulars furnished by him or any of them. The issue is the adequacy of the summing up by reference to those particulars as to conduct which would constitute the creation of a disturbance.

210    The relevant physical element was the creation of but one alleged disturbance. Even on the more general definition of what constitutes a “disturbance”, proof of but one or some of the “particulars” of this charge could not constitute the offence. For Major Li to have “followed Mr Snashall and continued the conversation when Mr Snashall left his own office, ostensibly because MAJ Li would not” (particular (b)) could not in law have been to create even that generalised kind of disturbance, much less a breach of the peace. The same may be said of particular (c) “re-entered Mr Snashall’s office and again refused to leave when requested to do so”.

211    These so-called particulars were meant to be read conjunctively as a more detailed description of the confrontation constituting the disturbance allegedly created by Major Li. That is the way in which the prosecution case was conducted. That is not, having regard to the excerpt from the judge advocate’s directions which I have set out above, the way in which the prosecution case was left to the court martial. As it stands, some members might, in conformity with the judge advocate’s direction, have considered it sufficient if but one of the particulars was proved beyond reasonable doubt, ie that such conduct alone would have been sufficient to constitute the creation of a disturbance. Further, adopting this approach, one member may have considered that the offence constituted by a certain particular was so proved and other members may have considered that it was so proved but only as constituted by a different particular or particulars.

212    The grounds of appeal before the tribunal included the following:

1(h)    The charge upon which the appellant was convicted was not the subject of any direction to the Restricted Court Martial as to the burden and onus of proving the nature of the alleged offence “by causing a confrontation”;

1(i)    the charge upon which the appellant was convicted was the subject of an erroneous direction as to the meaning of disturbance;

[emphasis in original]

213    These were, in my respectful opinion, sufficient to raise the issue, derived from what was said as to the particulars in the judge advocate’s summing up, which came to be raised on the appeal. The direction was wrong in law and the result was a substantial miscarriage of justice.

214    It was not put to the tribunal that, even if Major Li’s appeal in respect of the offence of creating a disturbance contrary to s 33(b) of the DFDA succeeded such that his conviction for that offence should be quashed, a conviction for another service offence, for example prejudicial conduct contrary to s 60 of the DFDA, should be substituted under s 26 of the Defence Force Discipline Appeals Act 1955 (Cth) (DFDAT Act). Nor on the hearing of the appeal was any submission put on behalf of the respondent Chief of Army that, even in the absence of such an order having been sought from the tribunal, it was nonetheless both permissible and appropriate, having regard to the breadth of power conferred on the Court by s 52 of the DFDAT Act to make such an order. It would not be possible in these circumstances for Major Li again to be tried in respect of the alternative charge.

215    In these circumstances, the orders which I would make are that:

1.    the appeal be allowed, with costs;

2.    save to the extent that it granted leave to appeal, the order of the tribunal made on 16 March 2012 dismissing the appeal be set aside; and

3.    in lieu of that order, it be ordered that the appellant’s appeal be allowed and his conviction in respect of the offence of creating a disturbance on service land on 3 February 2010 contrary to s 33(b) of the Defence Force Discipline Act 1982 (Cth) be quashed; and

4.    liberty be reserved to the appellant to apply for an order that the Commonwealth pay his costs either in the tribunal or in respect of his defence to the charge before the court martial in the event that either or each such costs have not been met at public expense (unless in agreeing to meet such costs the Commonwealth expressly reserved to the appellant liberty to make application for costs).

216    I desire to add that, since preparing my reasons for judgment, I have also had the advantage of reading the judgement prepared by Dowsett J. Save that Dowsett J and I differ as to what constitutes a “disturbance”, I otherwise agree with his Honour’s reasoning under the heading, “One or two physical elements” for his conclusion (para 122) that the fault element was the intention to create a disturbance. I regard that reasoning as consistent with my own reasoning (paras 169 to 200 above) by which I reached that same conclusion, including, in particular, the reasoning evident in the passage quoted from X v APRA. I agree, too, with his Honour’s closing observation (para 137) that, if contrary to this conclusion, intention was not the fault element but recklessness was, this was never, as it ought in that circumstance to have been, put to the court martial in which case this amounted to a substantial miscarriage of justice.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:    26 February 2013