Mikus v Chief of Army [2020] ADFDAT 1

Defence Force Discipline Appeal Tribunal

Mikus v Chief of Army [2020] ADFDAT 1 Appeal from: Defence Force Magistrate

File number: DFDAT 1 of 2020

Judgment of: LOGAN J (President), BRERETON jA (deputy president) AND BARR J (MEMBER)

Date of judgment: 22 December 2020

Catchwords: DEFENCE AND WAR – appeal from a Defence Force Magistrate (DFM) – where the appellant was found guilty of assaulting a subordinate – Defence Force Discipline Act 1982 (Cth) (DFDA), s 34 – whether the reasons of the DFM for conviction were adequate – nature and source of obligation of a DFM to give reasons – Defence Force Discipline Appeals Act 1955 (Cth), ss 20, 23 – DFDA, s 135 – Court Martial and Defence Force Magistrates Rules 2020 (Cth), r 52 – whether the DFM's decision was unsafe or unsatisfactory – whether the DFM's decision was unreasonable and could not be supported by the evidence – where the prosecution alleged the appellant Lieutenant Colonel had slapped a subordinate Private on her buttocks on the dance floor at a function at an Other Ranks Club – conflict in evidence between eyewitnesses and that given by the appellant – Liberato v The Queen (1985) 159 CLR 507 – appeal dismissed

Legislation: Constitution (Cth) Ch III Defence Force Discipline Act 1982 (Cth) ss 34, 127, 132, 135, 149A, Pt VIIIA Defence Force Discipline Appeals Act 1955 (Cth) ss 20, 23 Evidence Act 1995 (Cth) ss 97, 101, 165 Court Martial and Defence Force Magistrate Rules 2020 (Cth) r 52 Australian Military Regulations 1916 (Cth) reg 494 Australian Military Regulations 1927 (Cth) reg 203 Defence Force Discipline Appeals Regulation 2016 (Cth) reg 8 Defence Force Discipline Regulations 2018 (Cth) Army Act 1881 (Imp) s 37 Army Discipline and Regulation Act 1879 (Imp)