Boyson v Chief of Army - [2019] ADFDAT 2

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Boyson v Chief of Army [2019] ADFDAT 2

Appeal from: General Court Martial

File number: DFDAT 1 of 2019

Members: LOGAN J ( PRESIDENT), BRERETON JA (DEPUTY PRESIDENT) AND PERRY J (MEMBER)

Date of decision: 2 May 2019 (reasons for decision, published 30 May 2019)

Catchwords: DEFENCE AND WAR – application for an extension of time to appeal from a General Court Martial (“GCM”) – where the applicant was found guilty of one count of sexual intercourse without consent – whether the GCM’s verdict was unreasonable and could not be supported by the evidence – whether the GCM’s verdict was unsafe or unsatisfactory – where the complainant alleged the applicant had inserted a bottle into his rectum – where the complainant was sitting up at the time of the alleged insertion – where complainant gave evidence of feeling a sharp pain in his rectum – where prosecution case relied on purported admissions by the applicant – where there were several witnesses who saw the complainant sitting on the ground but none who gave evidence of seeing the alleged insertion – whether alleged insertion could be considered physically impossible – extension of time granted – leave to appeal granted – appeal allowed – conviction quashed.

Legislation:
Constitution ss 72, 80

Defence Force Discipline Act 1982 (Cth) ss 61, 146, 152, 176

Defence Force Discipline Appeals Act 1955 (Cth) ss 18, 21, 23

Crimes Act 1900 (ACT) ss 54, 60

Evidence Act 2011 (ACT) s 164

Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 74

Criminal Appeal Act 1907 (UK)

Cases cited:
Akai v R [2014] NSWCCA 210

Angre v Chief of Navy (No 3) [2017] ADFDAT 2

Betts v Chief of Army [2018] ADFDAT 2

Coulter v The Queen (1988) 164 CLR 350

Dickson v R (2017) 94 NSWLR 476

Haskins v The Commonwealth (2011) 244 CLR 22

Hodge v Chief of Navy [2015] ADFDAT 4

Lane v Morrison (2009) 239 CLR 230

Lane v The Queen (2018) 92 ALJR 689

Libke v The Queen (2007) 230 CLR 559

Low v Chief of Navy [2011] ADFDAT 3

M v The Queen (1994) 181 CLR 487

McKell v The Queen (2019) 93 ALJR 309

MFA v The Queen (2002) 213 CLR 606

Perara-Cathcart v The Queen (2017) 260 CLR 595

Rasic v The Queen [2009] NSWCCA 202

Re Tyler; Ex parte Foley (1991) 181 CLR 18

RWB v The Queen (2010) 202 A Crim R 209

SKA v The Queen (2011) 243 CLR 400

The Queen v Baden-Clay (2016) 258 CLR 308

White v Director of Military Prosecutions (2007) 231 CLR 570

Yewsang v Chief of Army [2013] ADFDAT 1

Date of hearing: 2 May 2019

Place: Brisbane

Category: Catchwords

Number of paragraphs: 105

Counsel for the Applicant: Mr E Muston SC with Ms M Barnes

Solicitor for the Applicant: Wyatts Lawyers

Counsel for the Respondent: Mr J Lawton with Ms J Woodward

Solicitor for the Respondent: Director of Military Prosecutions

Table of Corrections

4 June 2019 In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] ADFDAT 2
Decision Date: 2 May 2019 (reasons for decision, published 30 May 2019)

CaseChat Overview and Summary

The case of Boyson v Chief of Army involved an application for an extension of time to appeal a decision of the General Court Martial (GCM). The applicant, Boyson, was found guilty of sexual intercourse without consent. The central issue was whether the verdict of the GCM was unreasonable and could not be supported by the evidence, and whether it was unsafe or unsatisfactory. The complainant alleged that Boyson had inserted a bottle into his rectum while the complainant was sitting up. The complainant testified to feeling a sharp pain in his rectum. The prosecution case relied on purported admissions by Boyson. However, there were no witnesses who saw the alleged insertion, though several witnesses did see the complainant sitting on the ground. The question arose whether the alleged insertion could be considered physically impossible.

The court examined the evidence and the GCM's verdict, considering whether it was unreasonable and unsupported by the evidence, and whether it was unsafe or unsatisfactory. The court found that the evidence did not support the GCM's verdict and that the verdict was unreasonable. The court noted that the alleged insertion was physically implausible given the complainant's sitting position and the lack of any witness to the insertion. The court concluded that the GCM's verdict was unsafe and unsatisfactory. The extension of time to appeal was granted, leave to appeal was granted, and the appeal was allowed. The conviction was quashed.

In summary, the court found that the GCM's verdict was unreasonable and unsupported by the evidence, and that it was unsafe and unsatisfactory. The court granted the extension of time to appeal, allowed the appeal, and quashed the conviction. This decision highlights the importance of ensuring that verdicts are supported by credible and plausible evidence, particularly in cases involving serious allegations.

Orders