Kearns v Chief of Army [2022] ADFDAT 3

Defence Force Discipline Appeal Tribunal

Kearns v Chief of Army [2022] ADFDAT 3 Appeal from: Defence Force Magistrate

File number: DFDAT 1 of 2022

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

Date of judgment: 12 August 2022

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 – and of conduct prejudicial to the discipline of the Defence Force under DFDA, s 60 – Defence Force Discipline Appeals Act 1955 (Cth), ss 20, 23 (Appeals Act) – whether time should be extended under Appeals Act, s 21 for lodging the appeal – the appellant, a Lieutenant Colonel had attended a function at the Australian Defence Force Academy Cadets Mess the appellant was convicted of conduct under DFDA, s 60 by placing his hand at the function upon the thigh of a female Officer Cadet whilst intoxicated and convicted of assaulting the same female Officer Cadet , a subordinate, under DFDA, s 34 by twirling her hair and massaging her shoulder – whether the DFM impermissibly took into account the absence of evidence of a motive to lie contrary to Palmer v The Queen, constituting a material irregularity and resulting in a miscarriage of justice warranting the conviction being quashed under Appeals Act s 23(1)(c) – whether the convictions were unreasonable, or cannot be supported having regard to the evidence or in all the circumstances of the case are unsafe or unsatisfactory warranting the conviction being quashed under Appeals Act, s 23(1)(a) and (d) – appeal dismissed – observations about the authority of superior service tribunals under the DFDA