Private R Army v Chief of Army [2022] ADFDAT 1

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Private R Army v Chief of Army [2022] ADFDAT 1 File number: DFDAT 2 of 2021

Judgment of: LOGAN J (president), PERRY j (member) AND BARR J (MEMBER)

Date of judgment: 1 April 2022

Catchwords: DEFENCE AND WAR – appeal against conviction by Defence Force Magistrate – whether verdict was unreasonable or could not be supported, having regard to the evidence – whether in all the circumstances of the case the verdict was unsafe or unsatisfactory – where appellant alleges various inconsistencies and implausibilities in the evidence before the Defence Force Magistrate – where role of the Tribunal in exercising appellate criminal jurisdiction is to assess record to determine if the Defence Force Magistrate, acting rationally, ought to have entertained a reasonable doubt as to the proof of guilt – where Defence Force Magistrate found the complainant to be a credible, honest and reliable witness – where examination of evidence demonstrated that the case was not one in which the Defence Force Magistrate rationally must have entertained a reasonable doubt as to the commission of the offense – appeal dismissed DEFENCE AND WAR – appeal against conviction by Defence Force Magistrate – whether there as a material irregularity in the course of the proceeding – whether a miscarriage of justice occurred – where appellant alleges failings in the conduct of the trial by the assigned legal officers – where appellant represented by two assigned legal officers – where one of the assigned legal officers continued to act for the appellant in the Tribunal – where the appellant seeks to raise new arguments on appeal – where there is a societal interest in the finality of litigation concerning service offences – where appellant ought to be held to forensic decisions made by his assigned legal officers at trial – where prosecutor engaged in cross-examination which implied that the appellant was obliged to explain why certain matters were not put to the complainant – where neither party made mention of impugned cross-examination in closing submissions – where the Defence Force Magistrate did not refer to impugned cross-examination in reasons – where viewing trial objectively and as a whole discloses no substantial miscarriage of justice – appeal dismissed DEFENCE AND WAR – appeal against conviction by Defence Force Magistrate – whether the Defence Force Magistrate made a wrong decision on a question of law – whether conviction was wrong in law – whether a substantial miscarriage of justice occurred – whether the Defence Force Magistrate erred in exercising discretion to not allow an adjournment of the proceedings – where appellant must establish error of principle of the kind described in House v The King (1936) 55 CLR 499 – where Defence Force Magistrate made discretionary judgment reasonably open upon application of relevant principles – no error of principle established – appeal dismissed DEFENCE AND WAR – appeal against conviction of Defence Force Magistrate – whether there as a material irregularity in the course of the proceeding before the Defence Force Magistrate – whether miscarriage of justice occurred – whether absence of "new" evidence led to a miscarriage of justice – where "new" evidence goes only to issue of credit – where failure to lead evidence did not result in a substantial miscarriage of justice – appeal dismissed DEFENCE AND WAR – practice & procedure – extension of time to lodge appeal against conviction by Defence Force Magistrate – where appeal lodged outside time stipulated in s 21(2) of the Defence Force Discipline Appeals Act 1955 (Cth) – where delay in instituting appeal attributable to prospective appellant awaiting outcome of the automatic review conducted pursuant to s 152 of the Defence Force Discipline Act 1982 (Cth) – where application not opposed by the Chief of Army – extension granted DEFENCE AND WAR – practice & procedure – suppression orders – application by Commonwealth for pseudonym be assigned to appellant – appropriate evidentiary basis for order pursuant to s 18(2) of the Defence Force Discipline Appeals Act 1955 (Cth) – where appellant serving member of a Special Forces unit – where evidence in support of application initially given by Brigadier and then Major General – importance of open justice in appeals and related need for suppression applications to be supported by Ministerial or other high level policymaker evidence – where evidence in support subsequently given by the Chief of the Defence Force – where evidence of the Chief of the Defence Force discloses risk to appellant of becoming target to of State and non-State actors – application granted DEFENCE AND WAR – practice & procedure – suppression orders – suppression of complainant's identity – where complaint made in relation to sexual offenses – where permitting the identification of complainant can be antithetical to the willingness of a complainant to make a complaint to authorities or give evidence concerning the commission of a sexual offence – where no competing public interest in naming the complainant – complainant's name suppressed COSTS – principles applicable to award of costs pursuant to s 37 of the Defence Force Discipline Appeals Act 1955 (Cth) – application for costs by successful Chief of Army – where Chief of Army contends costs should follow the event – where purpose of Tribunal is to assist in the securing and maintaining service discipline – where securing and maintaining service discipline would be undermined in circumstances where a defence member with an arguable case faced the risk of adverse costs order – where appellant Private granted legal aid for the purposes of prosecuting appeal – where grounds of appeal were at least arguable – where appeal could not be described as frivolous or vexatious – where circumstances of case not fit to make cost order in favour of successful party – no order as to costs made