Newboult v Chief of the General Staff [1990] ADFDAT 1

cE, 10

2H ODE

IN THE DEFENCE FORCE DISCIPLINE)

) . APPEAL TRIBUNAL ) DFDAT No.3 of 1989

) SYDNEY REGISTRY )

IN THE MATTER of the Defence Force Discipline Act 1982 AND the Defence Force Discipline

Appeals Act 1955

wWO1 GRAHAM JOHN NEWBOULT

Appellant

CHIEF OF THE GENERAL STAFF

Respondent

REASONS FOR JUDGMENT

Members: The Hon. Mr Justice Woodward (President) His Honour Judge Broad (Member) The Hon. Mr Justice Gallop (Member)

Date: 11 May 1990. Melbourne

In this matter the appellant has applied for leave to appeal and has also filed Notice of Appeal against his conviction and sentence for an offence against s.60 of the Defence Force Discipline Act 1982 in that he, a defence member, at 21 Supply Battalion, Moorebank, in the State of New South Wales, during February 1988 and March 1988 did behave in a manner likely to prejudice the discipline of the Defence Force, and in particular 21 Supply Battalion, by importuning F234164 Pte $.L. Johansson to have sexual intercourse with him. The appellant seeks leave to appeal on the following grounds:

{a) that the conviction is unreasonable and cannot be supported having regard to the evidence;

(b) that the conviction constitutes a substantial miscarriage of justice; and

(c) that the conviction is unsafe and unsatisfactory having regard to all the evidence.

The grounds of appeal set out in the Notice of

Appeal are:

{1) that the finding of the Defence Force Magistrate was unreasonable having regard to the evidence; and (2) further and in addition the penalty imposed further to conviction was overly severe in all the circumstances. This Tribunal has no power to entertain avpeals against sentence and the second ground of appeal was not argued.

The appellant needs leave to appeal pursuant to s.20 of the Defence Force Discipline Appeals Act 1955 because he seeks to have his conviction quashed on a ground