Soldier’s sexual conviction labelled ‘substantial miscarriage of justice’

A sexual conviction against an Aussie soldier has been quashed and labelled a ‘substantial miscarriage of justice’ amid calls to better supervise ‘junior soldiers’ completing training.

The Australian Defence Force Discipline Appeals Tribunal has described the conviction of Shadi Kantibye (pictured) as a “substantial miscarriage of justice”. Picture: Julia Kanapathippillai

A sexual conviction against an Aussie soldier has been labelled a “substantial miscarriage of justice” amid calls to better supervise ‘junior soldiers’ completing training.

Army Private Shadi Kantibye was found guilty on December 10 last year after a trial where he was fighting allegations he indecently touched a colleague without her consent while she was in her bed.

But the Defence Force Discipline Appeal Tribunal later quashed the conviction for an act of indecency without consent against a female soldier.

Defence Force Magistrate Group Captain Scott Geeves held the judge-only trial at the Defence Force Magistrates Court in Canberra.

During the trial, it was alleged Mr Kantibye went into the room of a female colleague during the early hours of the morning, and indecently touched her, while they were at Bandiana Barracks near Albury-Wodonga undertaking training in February 2020.

Mr Kantibye has maintained he did not enter the room.

After convicting the soldier, Group Captain Geeves dismissed Kantibye from the Australian Defence Force.

The tribunal decided to quash the conviction in July after finding Group Captain Geeves had “erred” in his application of a crucial legal principle known as the Liberato direction.

But it has stated the success of the appeal did not “reflect the slightest on the credibility” of the female soldier.

A written judgment released on Friday provided more detail and context for the appeal decision, labelling the soldier’s conviction a “substantial miscarriage of justice”.

The Australian Defence Force Discipline Appeals Tribunal has described the conviction of Shadi Kantibye (pictured) as a “substantial miscarriage of justice”. Picture: Julia Kanapathippillai

The Liberato Direction compels judges and magistrates to acquit a defendant if they believe their evidence is true or if they think it 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.

In the detailed written decision, Tribunal president Justice John Logan, Deputy President Honourable Justice Paul Le Gay Brereton and tribunal member Honourable Justice Melissa Perry stated Group Captain Geeves appropriately recited the Liberato direction during sentencing.

However, the tribunal noted the magistrate said “I cannot say that I found the accused as impressive a witness as the complainant” and said Mr Kantibye was “less than convincing” after giving himself the direction.

The judgment states Group Captain Geeves did not address the “crucial” second question of the direction and did not consider if Kantibye’s evidence “though unconvincing” had a “reasonable possibility (it) might be true” or if it could leave the magistrate in a state of reasonable doubt.

The tribunal found the magistrate “erred” in his application of the Liberato Direction when convicting Kantibye. Picture: Alix Sweeney

“The learned (defence force magistrate’s) reasons disclosed that although originally reciting an appropriate Liberato direction, he did not in fact apply it and thereby erred in law,” the judgment read.

“(Kantibye) was thereby deprived of a reasonable possibility of an acquittal, and thus a substantial miscarriage of justice occurred.”

The appeal judgment also raised concerns about an apparent lack of supervision for junior soldiers stationed at Bandiana Barracks near Albury-Wodonga.

“The participants and witnesses were trainees on their initial employment training,” the judgment read.

“They were, at least generally speaking, young soldiers, who had only just completed their recruit training at Kapooka.

“The environment, in which the complainant and the appellant had been able to have consensual intercourse in her barracks room on multiple occasions, was one which the complainant described in her diary.”

The female soldier said: “So, [initial employment training] is so much better than Kapooka, holy sh-t. I really like my course mates! I don’t have any roommate which is great too. … Frat is still a thing here but not policed like at all...”

The judgment noted “observations” had been made “elsewhere about the apparent absence of the supervision of soldiers in their lines”.

“In the operational context, the insidious effects of an absence of supervision and inspection of the lines and personnel was noted by the IGADF Afghanistan Inquiry," it read.

“In the present case, adherence to traditional practices in respect of supervision of junior soldiers in their lines might well have averted any incident.”

No dates have been set for a retrial.