Federal Court of Australia
Defence Force Discipline Appeal Tribunal
Howieson v Chief of Army [2021] ADFDAT 1 Appeal from: General Court Martial
File number: DFDAT 1 of 2021
Judgment of: LOGAN J (PRESIDENT), BRERETON JA (DEPUTY PRESIDENT) AND PERRY J (MEMBER)
Date of judgment: 9 July 2021
Catchwords: DEFENCE AND WAR – appeal from a General Court Martial – where the appellant was found guilty of prejudicial conduct per s 60(1) of the Defence Force Discipline Act 1982 (Cth) – where the prosecution had adduced tendency evidence to the effect that the appellant had a tendency to expose his penis to female members of the Papua New Guinea Defence Force – where the Judge Advocate had directed an acquittal on a charge of an act of indecency without consent after the close of the prosecution's case – where the tendency evidence was no longer admissible – where the directed acquittal was made before the appellant had an opportunity to produce evidence inconsistent with the prosecution's case on the charge subject to the directed acquittal – whether there was a material irregularity in the course of the proceedings before the General Court Martial and whether a substantial miscarriage of justice had occurred in the terms of s 23(1)(c) of the Defence Force Discipline Appeals Act 1955 (Cth) – where the Judge Advocate gave clear directions to the panel – where the panel was formed of experienced officers – held that the panel was exposed to highly prejudicial evidence irrelevant in the circumstances which had a tendency to induce subconscious bias against the appellant – material irregularity occasioning substantial miscarriage of justice – appeal allowed
Legislation: Constitution Ch III Defence Force Discipline Act 1982 (Cth) ss 9, 116, 125, 134, 147, 154 Defence Force Discipline Appeals Act 1955 (Cth) ss 21, 23, 24 Migration Act 1958 (Cth) Pt 7AA Defence Force Discipline Appeals Regulation 2016 (Cth) reg 8 Defence Regulation 2016 (Cth) reg 24 Criminal Appeal Act 1912 (NSW) s 6 Criminal Appeal Act 1907 (UK) s 4
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