Kantibye v Chief of Army

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Kantibye v Chief of Army [2022] ADFDAT 2

Appeal from: General Court Martial

File number: DFDAT 2 of 2022

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

Date of judgment: 22 July 2022

Cases cited: Liberato v The Queen (1985) 159 CLR 507

Number of paragraphs: 1

Date of hearing: 22 July 2022

Counsel for the Appellant: Mr J Nottle

Solicitor for the Appellant: David Healey Solicitors

Counsel for the Respondent: Mr A Johnson

Solicitor for the Respondent: Office of the Director of Military Prosecutions

ORDERS

DFDAT 2 of 2022

BETWEEN:
SHADI ABDUKANTIBYE

Appellant

AND:
CHIEF OF ARMY

Respondent

ORDER MADE BY:

LOGAN J, BRERETON JA AND PERRY J

DATE OF ORDER:

22 JULY 2022

THE COURT 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.

REASONS FOR DECISION
(REVISED FROM TRANSCRIPT)
THE TRIBUNAL:

For reasons which will be elaborated and published in due course, and in circumstances where the appellant no longer presses the grounds that the conviction was unreasonable or unsafe and unsatisfactory, the Tribunal is of the view that the Defence Force Magistrate erred in the application of the Liberato v The Queen (1985) 159 CLR 507 direction in that he did not address the second limb and did not disbelieve the accused, as distinct from finding his evidence unconvincing, before proceeding to the third limb. The Tribunal is, therefore, satisfied that the appeal must succeed, at least on that ground and that there ought to be a new trial. In so doing, it records that this does not reflect the slightest on the credibility of the complainant.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justices Logan, Brereton and Perry.
Associate:
Dated: 8 August 2022

CaseChat Overview and Summary

The Defence Force Discipline Appeal Tribunal heard an appeal by Shadi Abdukantibeye against a conviction by a Defence Force Magistrate. The appellant was found guilty of a service offence, and the appeal was heard by Logan J, Brereton JA, and Perry J. The primary issue before the Tribunal was whether the Defence Force Magistrate erred in the application of the Liberato v The Queen (1985) 159 CLR 507 direction. The Tribunal found that the Defence Force Magistrate did not address the second limb of the direction and did not disbelieve the accused, as distinct from finding his evidence unconvincing, before proceeding to the third limb. As a result, the Tribunal held that the appeal must succeed on this ground and ordered a new trial for the appellant. The Tribunal emphasised that its decision did not reflect on the credibility of the complainant.

The Tribunal considered the applicable legal principles and the evidence presented in the case. The direction in Liberato v The Queen sets out a three-limb test for determining whether a conviction can be upheld where the only evidence against the accused is that of an accomplice. The second limb of the test requires the trial judge to consider whether the evidence of the accomplice is so undependable that a prudent person could not safely act on it in the circumstances. The Tribunal found that the Defence Force Magistrate did not adequately address this limb of the test in the present case. Instead, the Defence Force Magistrate found the accused's evidence unconvincing, which is not the same as disbelieving the accused. The Tribunal held that this error was sufficient to warrant a new trial for the appellant.

The Tribunal's decision was based on a careful analysis of the evidence and the applicable legal principles. The Tribunal found that the Defence Force Magistrate's failure to properly apply the Liberato direction was a significant error that warranted a new trial for the appellant. The Tribunal emphasised that its decision did not reflect on the credibility of the complainant, and that the appellant was entitled to a fair trial. The Tribunal ordered a new trial for the appellant and granted the requisite extension of time for the appellant to appeal. The Tribunal also made an order for no publication of any matters that identify or are likely to identify the complainant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Appeal from:	General Court Martial
File number:	DFDAT 2 of 2022
Judgment of:	LOGAN J (PRESIDENT), BRERETON JA (DEPUTY PRESIDENT) AND PERRY J (MEMBER)
Date of judgment:	22 July 2022
Cases cited:	Liberato v The Queen (1985) 159 CLR 507
Number of paragraphs:	1
Date of hearing:	22 July 2022
Counsel for the Appellant:	Mr J Nottle
Solicitor for the Appellant:	David Healey Solicitors
Counsel for the Respondent:	Mr A Johnson
Solicitor for the Respondent:	Office of the Director of Military Prosecutions

ORDER MADE BY:	LOGAN J, BRERETON JA AND PERRY J
DATE OF ORDER:	22 JULY 2022