Li v Chief of Army

The High Court has unanimously allowed appeal from the Full Federal Court’s decision to dismiss Li’s appeal against the ADF Discipline Appeal Tribunal, which had found Li guilty of ‘creating a disturbance’ contrary to s 33(b) of the Defence Force Discipline Act 1982 (Cth). Li, an ADF lawyer, was involved in a heated verbal confrontation with a financial claims officer which Li alleges was in response to a racial slur. Two questions were raised on appeal relating to the interpretation of s 33(b): is violence or a threat of violence required for a ‘disturbance’ to exist, and what physical and fault elements are involved in ‘creating’ a disturbance. The High Court held that a disturbance is a ‘non-trivial interruption of order’ and need not necessarily involve violence or the threat of violence: ‘[q]uarrelling may, in a particular factual context, be enough’. As to physical and fault elements, the Court held that the section requires that the accused did the act and meant to do so, that that act resulted in a disturbance, and that accused either believed it would result in a disturbance or was aware of a substantial risk that it would result in a disturbance (and, in the circumstances known, it was unjustifiable to take that risk). The Court thus held that the judge advocate’s original directions were erroneous, and quashed Li’s conviction.

High Court Judgment [2013] HCA 49 27 November 2013
Result Appeal allowed, conviction quashed, remitted to DFDAT
High Court Documents Li v Chief of Army
Full Court Hearing [2013] HCATrans 260  31 October 2013
Special Leave Hearing [2013] HCATrans 188 16 August 2013
Appeal from FCAFC [2013] FCAFC 20 26 February 2013
FCA Judgment
[2012] FCA 808 1 August 2012
Defence Force Discipline
Appeal Tribunal
[2012] ADFDAT 1 16 March 2012
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.