Obiter dictum in Australia

In Kantibye v Chief of Army (No 2) [2022] ADFDAT 4, the Defence Force Discipline Appeal Tribunal of Australia today set aside a conviction for indecency by one trainee against another on the ground that the Defence Force Magistrate had misdirected himself on a key point of law.

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.

Having granted the appeal, the court added some important advice to military leadership:

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 [51]]. In the present case, adherence to traditional practices in respect of supervision of junior soldiers in their lines might well have averted any incident.