In Poulton v Chief of Navy [2023] ADFDAT 1 (22 December 2023), the Defence Force Discipline Appeal Tribunal (Tribunal) (Logan J – President), Perry J – Deputy President) and Slattery J – Member)) dismissed an appeal against conviction by a Defence Force Magistrate (DFM) where the appellant had been found guilty of committing an act of indecency without consent.
The Tribunal lamented “yet another appeal” related to off-duty conduct between members of the Australian Defence Force (ADF) that involved excessive alcohol consumption (at [1]).
The charges concerned the appellant engaging in unacceptable behaviour towards a vulnerable female officer according to military norms and civilian criminal law (at [1]).
The appellant was convicted in May 2023 after trial by a DFM on four counts of committing an act of indecency without consent. These counts were in contravention of s60(1) of the Crimes Act 1900 (ACT) in its application to the appellant as a “defence member” via s61(3) of the Defence Force Discipline Act 1982 (Cth) (DFDA). As a result, the appellant was dismissed from the ADF (at [2]).
The charge sheet pleaded four charges against the appellant. These charges alleged that the appellant, as a defence member, at the relevant date and location, committed acts of indecency on the complainant by getting into her bed without consent or being reckless as to whether she consented, kissing the back of her neck and/or shoulders without her consent and being reckless as to whether she consented, undoing her bra and/or touching her breast without her consent and being reckless as to whether she consented and touching her upper thigh without her consent and being reckless as to whether she consented (at [4]).
The grounds of appeal were as follows (at [15]):
- the learned DFM erred in acting contrary to the evidence and engaging in speculation in rejecting evidence given by the Appellant about his wife’s state of knowledge as to his whereabouts
- by reason of (a), the conviction is unreasonable, and cannot be supported, having regard to the evidence.
The appellant contended that the DFM’s reasons were attended with illogicality such as to make the guilty verdict unreasonable or unsupportable based on the whole of the evidence (at [67]).
In part of his reasons, the DFM stated (at [68]):
“In deciding to reject the evidence of the accused, I particularly remind myself of the reasons he gave as to why he did not contact his wife at 0100 hours, while checking social media on his mobile phone and lying next to the complainant on her bed. His reasons under cross-examination were that it did not seem required and that it did not seem to him that he needed to tell her. [We interpolate that this is an accurate rendition of an explanation LCDR Poulton gave in his evidence.] Such reasons, to my mind, fly in the face of the content of Exhibit 9 and the oral evidence of LCDR A.
“The accused’s wife had, at about 0200 hours, tried to call LCDR A. It seemed to me that his wife was at least interested in his whereabouts. This was hardly surprising in my view, considering the accused had departed his house about six hours earlier on 8 July 2022, dressed in his pyjama bottoms, a T-shirt, a puffer jacket and carrying a near full bottle of wine. I find his answers unconvincing in terms of content and the manner he gave them.”
Among other things, the appellant argued that the reasons disclosed an illogicality in discounting the appellant’s credibility based on a missed call from the appellant’s wife to another person in circumstances where the appellant did not know that the call had occurred. The appellant further argued that the DFM had engaged in unwarranted and unsupported speculation about the appellant’s wife’s knowledge about the appellant’s location (at [69]).
The Tribunal did not accept this argument and instead found (among other things) that the DFM’s statements in relation to the appellant’s wife’s missed call to LCDR A were a means of emphasising the incredibility that the DFM found in the appellant’s explanation for his false statement (at [84]). The DFM found it implausible that the appellant did not consider it necessary to inform his wife of his location. This finding does not mean that the appellant was aware that LCDR A had missed a call from his wife before the text exchange between the appellant and LCDR A (at [85]).
In another part of his reasons, the DFM stated (at [70]):
“I have also, in deciding to reject the evidence of the accused, borne in mind the deliberate lie he told LCDR A, and I refer to exhibits 9 and 10, about passing out on the couch at the complainant’s house and the reasons for telling it, his reason being to save the complainant embarrassment.
“The complainant had already, according to Exhibit 6, disclosed to LCDR A at about 0911 hours on 9 July ’22, that she had been sick and thrown up while the accused was at her house. His text message to LCDR A about passing out on the couch was sent at about 0945 hours. The content of Exhibit 6 is, in my view, consistent with the evidence of the complainant under cross-examination that she was not embarrassed about vomiting and, as it turned out, soiling herself. I have used this lie as only going to credit. I find his answers unconvincing in terms of content and the manner he gave them. I have also, in deciding to reject the evidence of the accused, borne in mind his text to the complainant, that is Exhibit 9, which referred to among other things:
‘WTF happened. Flashes of vomiting and stumbling home at 0500 hours’.
“And his explanation for doing so. I find that the message suggested that he did not recall what had happened that night. The accused himself accepted that this was not true, he did recall. I find that the text message constituted a deliberate lie. The explanation offered was that it was an easy way to check in if the complainant was still alive and feeling okay and also an attempt to save embarrassment. Again, according to Exhibit 6, the complainant had already, at about 0911 hours on 9 July ’22, been in contact with LCDR A about having been sick and throwing up.
“The accused sent this text message to the complainant at about 1045. The accused could have simply asked how the complainant was feeling without suggesting that he did not recall earlier events. I confirm that I have used this lie as only going to credit. I find his answers unconvincing in terms of content and the manner he gave them. I find that the reasons the accused gave for lying to LCDR A and the complainant were vague and illogical [emphasis in original].”
The appellant argued that this text disclosed an illogicality in that the appellant could not have known that the complainant was not embarrassed after the complainant had been sick from consuming a high volume of alcohol (at [71]).
Ultimately, the Tribunal did not accept this argument. The Tribunal further noted that the DFM’s conclusions about the appellant’s credibility were based on the DFM’s observation of the appellant during oral evidence (at [87].
The Tribunal emphasised that a DFM operating in a disciplinary system designed to function in times of both war and peace cannot be expected to, among other things, give reasons for the decisions they make that are as detailed as those expected from judges in higher courts delivering reasons for judgment. Moreover, to demand as much “may be to render that system incapable in practice of serving the purpose for which it has been enacted” (at [80]).
The Tribunal’s assessment of the evidence before the DFM led the Tribunal to conclude that the Tribunal was “without a doubt” that it was sufficient to convict the appellant of the relevant service charges (at [90]).
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