Kearns v Chief of Army [2022] ADFDAT 3

Kearns v Chief of Army [2022] ADFDAT 3

The Palmer ground failed because, read in context, the Defence Force Magistrate's references to SCDT Y having no malice, no exaggeration and no axe to grind were observations about demeanour and reliability, not reasoning that her evidence was strengthened by the absence of a motive to lie. The unsafe and...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 August 2022
Procedural Posture
Appeal From Defence Force Magistrate Convictions for Service Offences Under the Defence Force Discipline Act 1982 (cth) / Application for Extension of Time, Leave to Amend Grounds, Leave to Appeal and Appeal
Outcome
Time extended, leave to amend granted, leave to appeal granted, appeal dismissed.
Legal Topics
['service Offences' 'assaulting a Subordinate' 'conduct Prejudicial to the Discipline of the Defence Force' 'extension of Time' 'unsafe or Unsatisfactory Convictions' 'motive to Lie' 'intoxicated Witnesses' 'superior Service Tribunals']
['defence Force Discipline' 'criminal Law' 'evidence' 'appeals'] ['service Offences' 'assaulting a Subordinate' 'conduct Prejudicial to the Discipline of the Defence Force' 'extension of Time' 'unsafe or Unsatisfactory Convictions' 'motive to Lie' 'intoxicated Witnesses' 'superior Service Tribunals']

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Procedural Posture

Appeal From Defence Force Magistrate Convictions for Service Offences Under the Defence Force Discipline Act 1982 (cth) / Application for Extension of Time, Leave to Amend Grounds, Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether time should be extended under Defence Force Discipline Appeals Act 1955 (Cth) s 21 to lodge the appeal out of time.' 'Whether the Defence Force Magistrate impermissibly took into account the absence of evidence of a motive to lie, contrary to Palmer v R, constituting a material irregularity and miscarriage of justice.' 'Whether the convictions were unreasonable, could not be supported by the evidence, or were unsafe or unsatisfactory under Defence Force Discipline Appeals Act 1955 (Cth) s 23(1)(a) and (d).' "Whether the Defence Force Magistrate erred in rejecting the appellant's sworn testimony on the basis of intoxication while accepting evidence from prosecution witnesses who had also consumed alcohol."]

Ratio Decidendi

The Palmer ground failed because, read in context, the Defence Force Magistrate's references to SCDT Y having no malice, no exaggeration and no axe to grind were observations about demeanour and reliability, not reasoning that her evidence was strengthened by the absence of a motive to lie. The unsafe and unsatisfactory grounds failed because the Defence Force Magistrate had multiple proper bases, including the appellant's own evidence, inconsistencies, demeanour, uncontested circumstances and corroborative evidence, for rejecting the appellant's evidence and accepting SCDT Y's account. The Tribunal was not satisfied that the evidence required the Defence Force Magistrate to entertain a...

Court Disposition

Time extended, leave to amend granted, leave to appeal granted, appeal dismissed.

Orders

  • ['Time be extended to the appellant to bring this appeal out of time.' 'The appellant have leave to amend the grounds of appeal so as to include a further ground in the following terms: "(c) The learned Defence Force Magistrate fell into error by impermissibly taking into account the absence of evidence of a motive...