McCabe v Chief of Army [2007] ADFDAT 4

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL McCabe v Chief of Army [2007] ADFDAT 4 DEFENCE – appeal against conviction by Defence Force Magistrate – failure by prosecution to call a material witness at the trial – no statement taken from the witness – witness unable to be located by Military Police – whether witness was "available" – whether Defence Force Magistrate should have given himself a Jones v Dunkel direction – whether there was a substantial miscarriage of justice – whether the Defence Force Magistrate failed to give adequate reasons for decision – whether the verdicts of guilty were unreasonable or could not be supported having regard to the evidence HELD: 1. Witness material but not available to be called. 2. There was no requirement on the prosecutor to call the witness. 3. The Defence Force Magistrate did not err in failing to give himself a Jones v Dunkel direction. 4. The Defence Force Magistrate's reasons for decision were adequate. 5. The verdicts were not unreasonable and could be supported having regard to the evidence. Crimes Act 1900 (ACT), s 60(1) Defence Force Discipline Act 1982 (Cth), s 29(1), s 60(1), s 63(1) Defence Force Discipline Appeals Act 1955 (Cth), s 20(1) Defence Force Discipline Rules 1985, r 16 Model Australian Bar Rules 2002, r 66B M v The Queen (1994) 181 CLR 487; The Queen v Apostilides (1984) 154 CLR 563; Whitehorn v The Queen (1983) 152 CLR 657; applied R v Kneebone (1999) 47 NSWLR 450; cited Dyers v The Queen (2002) 210 CLR 285; Van Damme v Chief of Army [2002] ADFDAT 2; referred to GARY MICHAEL McCABE v CHIEF OF ARMY DFDAT 2 OF 2007

HEEREY J (PRESIDENT), UNDERWOOD Cj (DEPUTY PRESIDENT) & MILDREN J (Member)

4 december 2007

MELBOURNE IN THE defence force discipline appeal tribunal

DFDAT 2 OF 2007