Shadi Kantibye: details emerge about soldier’s quashed sex conviction

Details have emerged about why a soldier’s sex offence conviction was quashed by the Defence Force Appeal Tribunal. Find out why.

A soldier’s sex offence conviction has been quashed after the Defence Force Discipline Appeal Tribunal found that due to a legal error, the magistrate could not have found the crime proved beyond reasonable doubt.

Private Shadi Abdu Kantibye had his conviction of an act of indecency without consent quashed by the tribunal last month.

He was convicted of the offence in December last year following a week long judge-only trial.

During the trial it was alleged Mr Kantibye indecently touched a female colleague in her room while they were training at Bandiana Barracks near Albury-Wodonga in February 2020.

Throughout the trial the soldier maintained he was not in the room during the alleged incident.

In sentencing Defence Force Magistrate Group Captain Scott Geeves dismissed Mr Kantibye from the Australian Defence Force.

Shadi Kantibye has had his conviction quashed in the Defence Force Appeals Tribunal. Picture: Julia Kanapathippillai

However the tribunal found Group Captain Geeves “erred” in his application of a crucial legal direction when he convicted Kantibye.

The decision said Group Captain Geeves did not adequately address sections of the Liberato direction, and “did not disbelieve the accused, as distinct from finding his evidence unconvincing”.

"The tribunal is, therefore, satisfied that the appeal must succeed, at least on that ground and that there ought to be a new trial,” the tribunal stated.

“In so doing, it records that this does not reflect the slightest on the credibility of the complainant.”

The Defence Force Appeals Tribunal found the magistrate did not find the alleged crime proven beyond reasonable doubt. Picture: Alix Sweeney

The Liberato direction compels judges and magistrates to acquit a defendant if they believe their evidence or if they think evidence given by the defendant might be true.

The direction also compels judges and magistrates to disregard any evidence from the defendant they do not believe is true when making a decision to convict or acquit them.

If a magistrate or judge does not believe evidence provided by a defendant, they must consider if the prosecution has proved the defendant's guilt beyond reasonable doubt; as the onus of proof lies on the prosecution.

No dates have been set for the retrial.