Federal Court of Australia
Defence Force Discipline Appeal Tribunal
Kantibye v Chief of Army (No 2) [2022] ADFDAT 4 Appeal from: Defence Force Magistrate
File number: DFDAT 2 of 2022
Judgment of: LOGAN J (PRESIDENT), BRERETON ja (DEPUTY PRESIDENT) AND PERRY J (MEMBER)
Date of judgment: 21 October 2022
Catchwords: DEFENCE AND WAR – appeal against conviction by Defence Force Magistrate (DFM) – where appellant gave evidence at trial – where DFM gave self Liberato direction – formulation and application of Liberato direction – held that DFM conflated second and third limbs of Liberato direction and therefore did not in fact apply the direction – error of law – appellant deprived of reasonable possibility of acquittal – miscarriage of justice – conviction quashed and retrial ordered
Legislation: Defence Force Discipline Act 1982 (Cth) ss 61, 152, 154 Defence Force Discipline Appeals Act 1955 (Cth) ss 20, 21 Crimes Act 1900 (ACT) s 60
Cases cited: Angre v Chief of Navy (No 3) [2017] ADFDAT 2 Boyson v Chief of Army [2019] ADFDAT 2 Coulter v R (1988) 164 CLR 350; [1988] HCA 3 De Silva v R (2019) 268 CLR 57; [2019] HCA 48 Frew v R [2022] NSWCCA 165 Kearns v Chief of Army [2022] ADFDAT 3 Liberato v R (1985) 159 CLR 507; [1985] HCA 66 Pell v R (2020) 268 CLR 123; [2020] HCA 12 Private R Army v Chief of Army [2022] ADFDAT 1 Scott v R [2020] NSWCCA 81 SKA v R (2011) 243 CLR 400; [2011] HCA 13
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