Defence Force Discipline Appeal Tribunal
Kantibye v Chief of Army (No 2)  ADFDAT 4
DATE OF ORDER:
THE TRIBUNAL ORDERS THAT:
1. There be no publication of any matters that identify or are likely to identify the complainant.
2. The appellant be granted the requisite extension of time within which to appeal and the appeal be heard instanter.
3. Insofar as the same may be necessary, having regard to the grounds pleaded in the notice of appeal, the appellant be granted leave to appeal.
4. The appeal be allowed and the conviction of the appellant by a Defence Force Magistrate on 10 December 2021 be quashed.
5. There be a new trial of the appellant in respect of the service offence charged.
1 The appellant Private Shadi Abdu Kantibye was convicted on 10 December 2021 after trial by a Defence Force Magistrate on one count of act of indecency, contrary to Crimes Act 1900 (ACT), s 60(1), and Defence Force Discipline Act 1982 (Cth) (DFDA), s 61(3). At the trial there was no issue that the appellant was and knew that he was a defence member, or that the alleged act was indecent. The appellant and the complainant knew each other and had had consensual sexual intercourse on prior occasions. The central issue in the trial was whether in the early hours of 23 February 2020 at Bandiana in the State of Victoria, the appellant entered the complainant’s room and sexually touched her. The DFM expressed himself to be satisfied beyond reasonable doubt that the appellant had done so, and convicted the appellant.
2 At the conclusion of the hearing of the appeal on 22 July 2022, the Tribunal made orders that:
(1) There be no publication of any matters that identify or are likely to identify the complainant;
(2) The appellant be granted the requisite extension of time within which to appeal and the appeal be heard instanter;
(3) Insofar as the same may be necessary, having regard to the grounds pleaded in the Notice of Appeal, the appellant be granted leave to appeal;
(4) The appeal be allowed and the conviction of the appellant by a Defence Force Magistrate on 10 December 2021 be quashed; and
(5) There be a new trial of the appellant in respect of the service offence charged.
3 The Tribunal indicated that its reasons would be elaborated and published in due course. These are the Tribunal’s reasons for making those orders.
The prosecution case
4 The appellant and the complainant met during their recruit training, which commenced at Kapooka on 29 October 2019. Following completion of their recruit training both were posted to the Army Logistics Training Centre at Bandiana for their initial employment training commencing on 5 February 2020. There, they were accommodated in the same accommodation block. The appellant’s room was on the ground floor, and the complainant’s on the first floor. Between 11 and 21 February 2020 they had consensual sexual intercourse on several occasions.
5 The prosecution case was that on 23 February 2020 at about 3:30 am, the appellant knocked on the complainant’s door, entered her room uninvited, climbed into her bed, and touched her sexually for a period of about 45 minutes before leaving when she refused to have further sexual intercourse.
6 The appellant voluntarily participated in a record of interview with service police on 21 July 2020, in the course of which he denied the allegation and said that he did not go to the complainant’s room that night. His version was that he had been at Paddy’s Bar in Albury with other trainees, and had returned to the base at approximately 3:30 am, and then remained on the veranda outside the accommodation block with others, including Private Mackie, for some time. In a later record of interview, he again denied that he entered the complainant’s room at the relevant time. When charged, the appellant gave notice of his intention to rely on an alibi.
7 At the trial, the complainant gave evidence that on 23 February 2020, at approximately 3:30 am, the appellant came to her room, was let into the room by her, climbed into her bed and proceeded to touch her sexually.
8 Two “recent complaint” witnesses gave evidence in the prosecution case. So did a number of other witnesses, including Private Mackie and Private Dingley, who attended Paddy’s Bar or were with the appellant or were otherwise in the vicinity of the accommodation block at around the relevant time.
9 The appellant gave evidence, consistent with his two records of interview. Good character evidence was also tendered on his behalf.
The DFM’s decision
10 The appellant having given evidence, the DFM appropriately gave himself a “Liberato direction” [as to which see Liberato v R (1985) 159 CLR 507, at 515;  HCA 66], which is set out later in these reasons [below at ].
11 When it came to considering the appellant’s evidence, the DFM began by observing “I cannot say that I found the accused as impressive a witness as the complainant” and then that he had carefully observed the accused in his two records of interview and when giving evidence and found that he was “less than convincing” [T401.10-14]. For that conclusion, the DFM gave three reasons. The first was that in his first record of interview, the appellant confidently invoked Private Mackie as an alibi, whereas the DFM found that he must have known Private Mackie was very drunk, concluding that “such confident reliance on Private Mackie as a witness who would put the accused with him, and at a different location at the relevant time, [was] misplaced, and most unconvincing” [T401.32-25]. The second was that the DFM formed the view that the appellant displayed an attitude of arrogance in some of his answers in respect of his relationship with the complainant at Bandiana. The third was that the appellant in his second record of interview was “unnecessarily defensive and combative”, having “repeatedly asked for clarification about what had happened, in specific terms and what was being said about him. Such behaviour also causes me to find the accused’s evidence unconvincing” [T402.01-07]. As will be explained, the appellant challenged this reasoning.
12 The learned DFM then said [T402.22-27]:
Although I accept that the accused was not shaken under cross examination, I find that his evidence was unconvincing. Accordingly, I set the evidence of the accused to one side, and return to the rest of the evidence and ask myself whether, on consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.
13 Then, having reviewed the other evidence [T402.29], the DFM accepted the evidence of the complainant beyond a reasonable doubt and found the elements of the offence charged proven beyond reasonable doubt [T405.20-34].
Extension of time
14 The appellant having been convicted on 10 December 2021 did not file his appeal until 3 May 2022 and requires an extension of time in which to do so.
15 Following his conviction, the outcome of the automatic review under DFDA s 152 was communicated to the appellant on 27 January 2022. He then petitioned for a review under s 154 on 7 February 2022, the result of which was communicated to him on 28 March 2022. His appeal was filed on 3 May 2022.
16 As the Tribunal has not infrequently observed, it is reasonable that an appellant should exhaust other review mechanisms – including the automatic review under s 152, and a petition of review under s 154 – before being expected to file an appeal to the Tribunal [see for example Boyson v Chief of Army  ADFDAT 2, at ]. Indeed, the Tribunal has previously suggested that amendment of s 21(2) of the Defence Force Discipline Appeals Act 1955 (Cth) (Appeals Act) ought to be considered, so as to provide that time for appeal runs at least from notification of the results of a review under s 152, or even notification of results of a review under s 154 if one is sought [Private R Army v Chief of Army  ADFDAT 1, at ; Kearns v Chief of Army  ADFDAT 3, at ]. The respondent did not oppose an extension of time.
Leave to appeal
17 Leave to appeal to the Tribunal is required, except on a question of law (Appeals Act, s 20(1)). The purpose of a requirement for leave to appeal in this context is generally to serve as a filter on unmeritorious or trifling appeals, so as to restrict the appeal procedure to appropriate matters and thereby promote the efficiency of the appeal procedure, and leave would not be refused if it appeared there had been a miscarriage of justice warranting the quashing of a conviction [Coulter v R (1988) 164 CLR 350, at 359;  HCA 3; Angre v Chief of Navy (No 3)  ADFDAT 2, at  – ].
18 Initially, the grounds of appeal included contentions that the conviction was unreasonable, or unsafe and unsatisfactory. Such grounds are not questions of law and require leave. As will appear, however, the critical ground was a question of law, for which leave was not required.
Reviewing the interview footage
19 One of the grounds of appeal challenged the DFM’s rejection of the appellant’s account on the basis that, in his second record of interview (or ‘ERISP’), he appeared unnecessarily defensive and combative. The DFM said [T401.45 – 402.07]:
With respect to the second interview conducted on 1 September 2020, that is exhibit 22, the accused, in my view, became unnecessarily defensive and combative at a very early stage of proceedings. Directly after Sergeant Jones explained that he was conducting further investigations into the allegations, which were succinctly summarised, the accused then repeatedly asked for clarification, what allegedly happened, in specific terms, and what was being said about him. Such behaviour also causes me to find the accused’s evidence unconvincing.
20 At a time when the appellant’s grounds included the factual grounds that the conviction was “unreasonable” or “unsafe and unsatisfactory”, the appellant requested that the Tribunal view the relevant portion of the ERISP. In Pell v R (2020) 268 CLR 123;  HCA 12, the High Court endorsed its earlier rejection in SKA v R (2011) 243 CLR 400;  HCA 13, at , of the proposition that where a video recording of a witness’s evidence at trial was available, proper discharge of the appellate Court’s function of independently reviewing and assessing the evidence required a viewing of the recording. The Court said (at ):
The position maintained by the respondent [that the existence of the recordings was enough to make it appropriate for them to be watched by the Court of Appeal] is not one that should generally be adopted by courts of criminal appeal. In SKA, French CJ, Gummow and Kiefel JJ rejected the suggestion that the mere availability of a video-recording of a witness’ evidence at trial meant that the proper discharge of the function of the appellate court, to make its independent assessment of the evidence, necessitated a viewing of the recording. There may be cases where there is something particular in the video-recording that is apt to affect an appellate court’s assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court’s examination of the video-recording. But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court.
21 In Scott v R  NSWCCA 81, the NSW Court of Criminal Appeal acceded to an appellant’s submission that the Court should view the recording of a number of interviews, notwithstanding that no particular forensic reason for doing so was identified. As was explained by Hamill J, with whom Brereton JA and Fagan J agreed, an understanding of the complainant’s evidence was facilitated by reviewing her interview.
22 At least when the appeal included contentions that the conviction was unreasonable or unsafe and unsatisfactory, the present was a significantly stronger case than Scott for acceding to the submission that the Tribunal should review the relevant part of the ERISP. First, the relevant part – a relatively short excerpt – was identified. Secondly, the appellant wished to submit that the DFM erred in considering the appellant’s response on that occasion to be “unnecessarily defensive and combative” such as to contribute to a conclusion that his evidence was unconvincing. Where the very same material on which the DFM relied for that conclusion – the ERISP – was available to the Tribunal, that submission could not fairly be evaluated without reviewing that material. Accordingly, the Tribunal acceded to the request that it do so.
Grounds of appeal
23 Before the hearing, the appellant abandoned grounds of appeal which complained that he was denied an opportunity for an acquittal by reason of an oversight of his counsel in failing to cross-examine a witness on a matter important to his alibi defence. Late in the hearing, the appellant abandoned the grounds of appeal which complained that the conviction was unreasonable, or unsafe and unsatisfactory. Thus the contention that it was not open to the DFM on the evidence to be satisfied beyond reasonable doubt of the appellant’s guilt was not pressed. However, such a conclusion was not inevitable.
24 Although the appellant also complained, not without force, that the three reasons given by the DFM for finding the appellant “unconvincing” were not good reasons for doing so, his main complaint was that although the DFM at the outset correctly stated the Liberato direction, he did not in fact apply it.
25 When stating at the outset of his reasons the directions he gave himself, the DFM relevantly said [T377.27 – 378.24]:
As I have already stated, the accused does not have to give evidence or call other witnesses to give evidence on his behalf; that he has done so does not mean that he has assumed the responsibility of proving his innocence. The burden of proof has not shifted to him.
His evidence, and that of those who have provided statements in respect of his good character … is added to the evidence called by the prosecution. The prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case, before the accused may be convicted.
In a criminal trial, it is not a question of my making a choice between the evidence of the complainant and the other prosecution witnesses, and the evidence of the accused and others who have attested to his otherwise good character.
The proper approach is to understand that the prosecution case depends upon my accepting that evidence of the complainant was true and accurate, beyond reasonable doubt, despite the sworn evidence of the accused.
I have directed myself that I do not have to believe the accused is telling the truth, before he is entitled to be found not guilty. Here, it is often said that usually, one of three possibilities results; that is, where there is defence evidence:
(1) First, I may think that the accused’s evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case. If so, my verdict would be not guilty.
(2) Secondly, I might think that although the accused’s evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was. If so, my verdict would be not guilty.
(3) Thirdly, I might think that the accused’s evidence should not be accepted. If that is my view, I must be careful not to jump from that view to an automatic conclusion of guilt. If I find the accused’s evidence unconvincing, I must set it to one side and go back to the rest of the evidence and ask myself whether, on consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the events in question.
26 With respect, use of the word “unconvincing” in the third limb tends to conflate the second and the third limb which, as will ultimately be seen, is what happened in this case. The approach required of the judge of the facts embodied in the “Liberato direction” is that:
(1) if the accused’s evidence is believed, the accused must be acquitted;
(2) if the accused’s evidence is difficult to accept (or unconvincing) but may nonetheless, as a matter of reasonable possibility, be true, the accused must be acquitted;
(3) if the accused’s evidence is disbelieved, then it should be put to one side, but the question remains, has the prosecution, on the basis of evidence that is accepted, proved the accused’s guilt beyond reasonable doubt.
[See Liberato v R (1985) 159 CLR 507, at 515;  HCA 66 (Brennan J); De Silva v R (2019) 268 CLR 57;  HCA 48, at  (Kiefel CJ, Bell, Gageler, Gordon and Nettle JJ); Frew v R  NSWCCA 165, at ].
27 Nonetheless, had this been a trial by Court Martial, in which the reasons of the tribunal of fact are inscrutable, the appeal would have failed: the direction as initially stated by the DFM and set out above was not on its face obviously erroneous. However, in a judge alone trial, the appellate Court is able to see how the judge (or here, the DFM) applied the direction and whether in fact it was complied with. It is one thing to set out a litany of directions at the outset of reasons for decision; what is really of importance is whether the later reasoning and analysis of the evidence reflects obedience to those directions. Here, as has been noted, the DFM said: “I cannot say that I found the accused as impressive a witness as the complainant” [T401.10-11], and that he was “less than convincing” [T401.13-14]. After explaining his three reasons for that view, he concluded that the appellant’s “evidence was unconvincing” [T402.23]. The learned DFM then immediately proceeded: “accordingly, I set the evidence of the accused to one side…” [T402.23-24]. The DFM did not address the crucial second question, namely whether the appellant’s evidence, though unconvincing, nonetheless as a matter of reasonable possibility might be true, or, to use the words of the DFM’s direction, whether “it leaves me in a state of reasonable doubt”. The pre-condition to embarking on the third limb enquiry is not merely that the accused’s evidence is unconvincing, but that it is disbelieved in the sense that it could not as a matter of reasonable possibility be true. The learned DFM did not undertake that step. The DFM did not state that he disbelieved the appellant, nor that his evidence could not as a matter of reasonable possibility be true. This is not a merely formulaic matter: it is an important element of judicial discipline to state “I disbelieve the accused’s evidence” or “the accused’s evidence could not as a matter of reasonable possibility be true”, because it requires the judge’s mind to address that critical issue, which is fundamental to the operation of the burden and standard of proof in matters involving criminal conviction.
28 Accordingly, the learned DFM’s reasons disclosed that although originally reciting an appropriate Liberato direction, he did not in fact apply it and thereby erred in law. The appellant was thereby deprived of a reasonable possibility of an acquittal, and thus a substantial miscarriage of justice occurred.
Conclusion and an observation
29 It was for those reasons that we concluded that the appeal must be allowed and made the orders which were made on 22 July 2022.
30 One further matter, however, warrants comment. The events the subject of and surrounding the charge took place in barracks accommodation at Bandiana. The participants and witnesses were trainees on their initial employment training. They were, at least generally speaking, young soldiers, who had only just completed their recruit training at Kapooka. The environment, in which the complainant and the appellant had been able to have consensual intercourse in her barracks room on multiple occasions, was one which the complainant described in her diary as follows:
So, [initial employment training] is so much better than Kapooka, holy shit. I really like my course mates!! I don’t have any room mate which is great too. … Frat is still a thing here but not policed like at all. ….
31 Observations have been made elsewhere about the apparent absence of the supervision of soldiers in their lines, which is traditionally the immediate responsibility of non-commissioned officers, subject to the overarching scrutiny of an appointed duty officer. In the operational context, the insidious effects of an absence of supervision and inspection of the lines and personnel was noted by the IGADF Afghanistan Inquiry [Afghanistan Inquiry Report, Part 3, Chapter 3.03 at ]. In the present case, adherence to traditional practices in respect of supervision of junior soldiers in their lines might well have averted any incident.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Decision of the Honourable Justices Logan (President), Brereton (Deputy President) and Perry (Member).