Hembury v Chief of the General Staff

DEFENCE FORCE DISCIPLINE

APPEAL TRIBUNAL DFDAT No 2 of 1994

DFA 44

BETWEEN:

WAY: 4 Appellant AND >: CHIEF OF THE GENERAL STAFF Respondent

TRIBUNAL: NORTHROP J - PRESIDENT COX J - DEPUTY PRESIDENT

BADGERY-PARKER J - MEMBER

PLACE: MELBOURNE

DATE: 9 JUNE 1994 MINUTES OF ORDER THE TRIBUNAL ORDERS:

That the appeal be dismissed and the convictions confirmed.

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL DFDAT No 2 of 1994

IN THE MATTER OF THE DEFENCE FORCE DISCIPLINE APPEALS ACT 1955 AND THE DEFENCE FORCE DISCIPLINE ACT 1982

'

BETWEEN:

WAYNE RONALD HEMBURY Appellant

AND

Pry

CHIEF OF THE GENERAL STAFF Respondent

TRIBUNAL: NORTHROP J - PRESIDENT COX J - DEPUTY PRESIDENT BADGERY-PARKER J ~ MEMBER

PLACE: MELBOURNE DATE: 9 JUNE 1994

REASONS FOR DECISION

THE TRIBUNAL: On 19 April 1993 the appellant, Sergeant Wayne Ronald Hembury, was charged before a restricted court martial on a total of six counts, three of which were expressed as

alternatives. The charges were:

1. That being a defence member at Watsonia on a date between 1 December 1991 and 25 December 1991 he did commit an act of indecency in the presence of Private C.M. Smith in that he stood behind Private Smith and thrust his hips forward towards her without the consent of Private Smith, knowing that she did not consent, or was reckless as to whether

Private Smith consented.

2. (In the alternative to the first charge) that being a defence member at Watsonia on a date between * and 25 December 1991 he did behave in a manner likely to prejudice

the discipline of the Army in that he did stand behind

Private Smith and thrust his hips towards her.

That being a defence member at Watsonia on a date between 20 January 1992 and 6 February 1992 he did commit an act of indecency upon Private C.M. Smith in that he touched her on the area of the right breast without the consent of Private Smith, knowing that she did not consent, or was reckless as