A former army officer has had his conviction overturned for violating a colleague with a beer bottle during drunken celebrations after his lawyer argued it was a simulated act.
Rhiley Boyson won his case in the Defence Force Discipline Appeal Tribunal in Brisbane on Thursday after last year being convicted of assaulting a man by putting the top of a beer bottle up his backside.
Barrister Edward Muston, for Boyson, told the hearing the case was against him was circumstantial and could not be supported by the evidence provided.
The night of the incident featured an “enormous consumption of alcohol”, the court heard.
The tribunal was shown video taken on the night of the incident which took place inside a men’s bathroom.
It showed the victim writhing on the ground trying to pull his pants up as other men could be heard laughing.
Mr Muston said the victim had pulled his pants down below his knees to use a urinal as through he were a “little boy” before the incident.
The video showed someone putting a pink safety sign over the man’s genitals as he tried to pull up his pants, the hearing was told.
Mr Muston said Boyson, who could not be seen in the video, had admitted putting the bottle between his male college’s thighs, below his backside, after he had pulled his pants down as part of a continuation of a “distasteful” joke.
Mr Muston said there were no fewer than six people in the bathroom and none of them saw the bottle inserted in the victim.
He said all of the witnesses said they would have done something about it had they seen it happen.
The hearing was told the night followed the completion of a lengthy military course.
Mr Munston said the “laws of geometry say it would have been extremely difficult” for him to have inserted the bottle.
In reading out the victim’s statement on how he was assaulted, he said it “smacks of him realising there is a physical impossibility”.
James Lawton, the lawyer for the respondent, the Chief of Army, said all the issues Mr Muston addressed were raised during the trial, after which a jury found Boyson guilty.
Of claims of a physical impossibility of penetration, Mr Lawton said the complainant’s evidence was “quite clear he was penetrated”.
The complainant testified feeling a sharp pain “in my anus” and believed he was penetrated “five centimetres or so”.
“He couldn’t say what the mechanism was but he was quite adamant,” Mr Lawton said.
The tribunal judges will publish their reasons at a later date.