The High Court delivered judgment in two cases today.
In Li v Chief of Army the High Court quashed a conviction for the service offence of creating a disturbance on service land. Major Li was involved in an incident with Andrew Snashall, a Commonwealth public servant, following statements made by Mr Snashall which Major Li found offensive and suspected to have been racially motivated. Major Li refused to leave Mr Snashall's office when asked him to do so, followed Mr Snashall out of the office while speaking in a raised voice, forcefully pushed against the office door when Mr Snashall returned and attempted to close it, and stood close to Mr Snashall's face speaking in an agitated and aggressive manner.
Major Li was charged before a restricted court martial with the service offence of having created a disturbance on service land. The judge advocate directed the court martial that the prosecution did not need to prove that Major Li intended to create a disturbance, but needed to prove only that Major Li intended to engage in the acts that amounted to a disturbance. That direction was upheld by the Defence Force Discipline Appeal Tribunal and subsequently by the Full Court of the Federal Court of Australia.
The High Court unanimously allowed the appeal. The High Court held in order to convict for the offence of “creating a disturbance”, it must be proved that the person charged intended to do the act, that the act resulted in a disturbance, and that the person charged either believed that the act would result in a disturbance or was aware of a substantial risk that the act would result in a disturbance and, having regard to the circumstances known to him or her, it was unjustifiable to take that risk. The High Court held, however, that a “disturbance” is a non-trivial interruption of order and that it is not necessary to the existence of a disturbance that there be violence or a threat of violence.
In BCM v The Queen the High Court unanimously dismissed an appeal from a decision of the Queensland Court of Appeal which upheld the conviction of BCM on two counts of unlawfully and indecently dealing with a child under 12 years. While the High Court accepted BCM’s complaint that the Queensland Court of Appeal’s reasons did not sufficiently disclose its assessment of the capacity of the evidence to support the verdict, and in particular its reasons for accepting the evidence of the complainant, notwithstanding various inconsistencies in that evidence. The High Court held that those inconsistencies were to be considered in light of her age at the date of the offences and the intervals between the offending, her first interview with police and her evidence. While the Court of Appeal’s reasons were inadequate, it was correct to treat as believable the complainant’s explanation that she was scared and embarrassed as the reason for her delay in coming forward.