Tuesday, December 22, 2020

No, you may not do that, Colonel!

Here's the inviting lede from today's decision of the Australian Defence Force Discipline Appeal Tribunal in Mikus v. Chief of Army, [2020] ADFDAT 1 (Dec. 22, 2020):
In the Australian Army, it has never been lawful for a superior to strike a subordinate.
The present appeal offers a useful opportunity to recall just how longstanding this prohibition is, and the reason for it.
And here is where the Appeal Tribunal wound up:
88 The issue before the Tribunal is therefore whether it was open (in the sense described in SKA and Libke), on the whole of the evidence, for the DFM to be satisfied, beyond reasonable doubt, that the appellant had, as alleged, slapped the complainant’s buttocks. For the reasons set out above for concluding that there has been no substantial miscarriage of justice, it was.
89 It was submitted that the inherent unlikelihood of a Commanding Officer, who had a reputation of being reserved, engaging in the conduct alleged was a significant factor weighing against its probability. That may be, but four witnesses gave direct, consistent evidence of it. It is also clear that LT COL Mikus was disinhibited on this occasion: he had, on his own evidence, consumed seven – eight alcoholic drinks, immediately following a lengthy flight from the Middle East via Darwin and Sydney to Brisbane and then a two-hour road trip from Brisbane to Cabarlah (all in company with his RSM); he asked SIG Callum Edwards whether he was planning to “hook up” with either of the Edwards twins; he was prevailed upon to remove his mess jacket and wear a hi-vis jacket, and to dance with his soldiers; perhaps most tellingly, he was prepared to pick up and carry his female subordinate CAPT Harrison-Wolff out of the room when leaving, in response to her complaint that she had sore feet. The argument that this was highly improbable conduct for a Commanding Officer is countered by the direct evidence, and the evidence of his disinhibition. In making these observations, we have expressly taken into account the evidence, mentioned by the DFM in his Liberato direction, that LT COL Mikus was, for a time, engaged in conversation with fellow Lieutenant Colonels at the Gordon VC Club. That evidence did not include any contradiction by direct observation of the incident on the dance floor as related by the prosecution witnesses.
90 The Tribunal recognises that, in this day and age, there may be occasions when it is appropriate for officers, including a Commanding Officer, to attend all ranks social functions, notwithstanding the longstanding prudent practice of separate messing arrangements for officers, senior non-commissioned officers and other ranks. However, on the evidence, the situation on the dance floor that evening for officers, who had already been at a separate Officers’ Mess function, was truly fraught.
91 The Chief of Army rightly submitted that in distinction to Pell and Boyson, this was not a case in which, despite credible evidence supporting the prosecution case, there was such evidence pointing to its improbability as to raise a reasonable doubt. It was well open on the whole of the evidence for the DFM to be satisfied, beyond reasonable doubt, that LT COL Mikus had, as alleged, slapped the complainant’s buttocks. This is not a case in which the DFM ought to have had a reasonable doubt.
Appeal dismissed.

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