FEDERAL COURT OF AUSTRALIA
Jones v Chief of Navy [2012] FCAFC 125
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
2. The applicant pay the respondent’s costs to be taxed if not earlier agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 841 of 2012 |
ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL |
BETWEEN: | JOHN ALAN JONES Applicant
|
AND: | CHIEF OF NAVY Respondent
|
JUDGES: | KEANE CJ, EMMETT, EDMONDS, BESANKO & ROBERTSON JJ |
DATE: | 7 SEPTEMBER 2012 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
THE COURT
1 The applicant was formerly a Lieutenant Commander in the Royal Australian Navy (Navy). On 29 November 2011 he was arraigned before a General Court Martial (GCM) on nine counts of committing an indecent act without consent on the complainant in contravention of s 61(3) of the Defence Force Discipline Act 1982 (Cth) (the Discipline Act) in that the applicant engaged in conduct outside the Jervis Bay Territory that would have been a “Territory offence” against s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act). He was also charged, in the alternative, with contraventions of s 34 of the Discipline Act.
2 The applicant pleaded not guilty to all of these charges. When arraigned, he pleaded guilty to a charge of attempting to destroy service property, namely a laptop computer, contrary to s 43(1) of the Discipline Act and s 11.1 of the Criminal Code 1995 (Cth) (Count 24).
3 On 13 December 2011, the GCM found the applicant guilty on seven of the nine counts of having committed an act of indecency without consent. He was acquitted on the other two counts.
4 An understanding of the issues which arise in this Court will be assisted by a brief summary of the case before the GCM and of the circumstances in which the matter has come to this Court.
THE CASE AT THE GCM
5 Counts 1, 4, 6, 9, 12, 15, 18, 20 and 22 alleged that the applicant had committed acts of indecency on the complainant without her consent.
6 The complainant was a 25 year-old female Able Seaman Steward who worked in the supply department aboard HMAS SIRIUS (the Ship). The applicant, who was 57 years of age, was the officer in charge of that department.
7 The complainant gave evidence in support of the counts of indecency. She gave evidence that on certain occasions, the applicant directed her to pull down her pants and lie across his knees while he spanked her bare bottom. On other occasions, he directed her to take off her top or remove her outer garments. The complainant’s evidence was that these incidents occurred on the Ship and at her private residence in Western Australia during 2010.
8 The laptop computer, the subject of Count 24, contained pornographic images involving spanking. The prosecution contended that the attempted destruction of the laptop computer supported its case against the applicant in that it suggested an indecent sexual interest in the kind of activity alleged against him as well as a consciousness of guilt.
9 The complainant’s evidence in relation to Counts 15 and 18 (on which the applicant was acquitted) was rather more diffuse than her evidence in respect of the other charges. It will be necessary to return to this point because the acquittals on Counts 15 and 18 are a central aspect of an argument put by the applicant to this Court that the verdicts are so inconsistent as to suggest that a miscarriage of justice had occurred.
10 The prosecution relied upon the record of a conversation between the complainant and the applicant which the complainant secretly recorded (“pretext” recording) contrary to s 5(1) of the Surveillance Devices Act 1998 (WA). In this regard, on 8 November 2010, the applicant and complainant were travelling in the applicant’s car between the Ship and the applicant’s home in a suburb of Perth. Unbeknown to the applicant, the complainant was recording on her iPhone her conversation with the applicant. She said she made the recording because she was concerned that she might not be believed if she made a complaint against the applicant.
11 The complainant provided the recording to the service police. The prosecution played the recording at trial over objection by the defending officer on the ground that it had been illegally obtained. The Judge Advocate ruled, pursuant to s 138 of the Evidence Act 1995 (Cth) (Evidence Act), that the recording of the conversation should be admitted into evidence even though it had been obtained unlawfully.
12 Extracts of the conversation were set out by the Defence Force Discipline Appeal Tribunal (the Tribunal) at Reasons [194]-[196] and [229]-[231]: The extracts are relevantly as follows:
194 …
[AB] Well I’m trying to comprehend like whether – like you helping me was that like necessary to have me like, you know, to pull my pants down and get me butt naked and say like, like that word, “naughty” … type of thing and whether that was like – I don’t know. But I was just really – I’m starting to feel like that was really awkward.
[Appellant] Yes, I understand that, mate. Look, it was awkward but did you misbehave? Yes. Did you benefit from it? You may say no but I thought you were a better person in the end and I understand that it was awkward for you but you were a girl that lacked discipline. You had no boundaries. You didn’t know where to settle yourself. And I think you’re a far better person now.
[AB] Do you think so? Because I got – because you hit me on your knee naked.
[Appellant] No, no. Not entirely.
[AB] Like butt naked.
[Appellant] It’s always hard to say isn’t it? Yes, look, I don’t know. There were times when I thought you acted such – so immature and so childish that that was one way in which to focus you to say hey, listen yes I really have been a bit silly here, I can do better and I can be smarter in the way I go about things. That was where my thinking was.
195 Again, at a later point in the conversation:
“[AB] Yeah, it’s just – I’m just starting to, you know, just feel weird with the whole, you know, taking my underwear off and laying there naked type of thing.
[Appellant] Yes, but remember I asked you at the time, I said, ‘Do you feel you’re being – you’ve misbehaved’ and every occasion you said, ‘Yes, I have’.”
196 And still later:
“[Appellant] … You were a naughty young girl. You weren’t 24. You’ve been acting like a 13-18 year old, okay? And a smacked bottom never hurt anybody. In fact, there’s a very famous saying in the English language – “Spare the rod and spoil [t]he child”. When they’re out of line, seriously out of line, let them know. Now, on nearly – just about every occasion I asked you if I started, I said, ‘Do you think you deserve this?’ and you said you did and mostly you’ve been brilliant ever since.”
229 Later in the conversation the appellant said:
Well what I was trying to do was to show you that by working with me and by me not abusing you there – you could see ‘Well there are some people who actually respect me for who I am and it’s trying to build up my confidence and if I misbehave he’s going to smack my backside but he cares about me. And he’s trying to help me all the way along.’ That’s where I was trying to get to. And if I crossed the line I apologise. There was never any intent there. It was all about trying to make you a better person and if I’ve caused you any anxiety and worries then I apologise profusely.
Shortly afterwards, he continued:
It wasn’t so much that I wanted you naked, mate. It was more of a test to see how obedient and compliant you were going to be. It was all about you doing exactly as you were told. The moment you did that that – things were fine because I had the feeling early on that even, without you knowing it, you were very undisciplined, ill-disciplined and you did the wrong thing without you even knowing you were doing the wrong thing and what I tried to do was put some structure around that, some boundaries around it and that’s what I was trying to do and certainly kids in Australia when they grow up that’s – that’s how they’re taught. Very early on, there’s the boundaries you work within and they grow up knowing that.
230 Later, the appellant told the complainant that she was “a naughty young girl” who had been acting like a teenager.
231 He then went on to make a number of complimentary remarks about the complainant’s subsequent improvement in the performance of her duties.
13 On 7 December 2010, service police conducted an interview with the applicant. The interviewing officers questioned the applicant about his statements in the secretly recorded conversation. The prosecution relied upon the record of the interview over objection by the defending officer. In the interview, the applicant, at first, denied that he had engaged in the conduct alleged against him. When the recording of the conversation was played to the applicant, he then claimed that he knew that the conversation was being recorded and asserted that the conversation recorded by the complainant on her iPhone was an example of fantasising on the complainant’s part and role-playing by him and that none of the events referred to had occurred. One of the interviewing police expressed incredulity at the applicant’s statements.
14 The prosecution case was that there was no consent by the complainant to the charged conduct because she did not voluntarily agree to participate in the activity. Alternatively, the prosecution argued that if there was consent, it was obtained by the abuse by the applicant of his position of authority over the complainant, and relied upon the provisions relating to the negation of consent contained in s 67 of the Crimes Act. The Judge Advocate, in summing up to the Panel, adverted to the further possibility that any consent by the complainant was negated by “fraudulent misrepresentation” of the kind contemplated by s 67(1)(g) of the Crimes Act. The first mention of negation of consent by fraudulent misrepresentation was raised by the defending officer. The Judge Advocate left the alternative case to the Panel on both the abuse of authority limb and the fraudulent misrepresentation limb, even though the evidence supporting the second limb was exiguous to say the least, and even though the second limb had not been opened by the prosecutor.
15 In the course of the prosecutor’s final address, he adverted to public perceptions of misogyny in the Navy, and urged upon the Panel the merits of “strong” women in the navy who had helped to bring the applicant’s misconduct to light. The Panel were directed by the Judge Advocate to ignore these comments.
16 The applicant admitted that the incidents alleged in Counts 1, 6 and 22 had occurred. In relation to these incidents the issue was consent and, in the case of Count 22, the indecency of the conduct was in issue. As to the incidents the subject of the other counts of indecency, there was a challenge to the complainant’s evidence that these incidents occurred.
17 The applicant did not give evidence. He did call character evidence to the effect that he was not a person who would require a female subordinate to engage in any kind of sexual activity without consent. The defence questioning of the complainant and its address to the Panel raised the suggestion that the complainant consented to the “discipline” administered by the applicant because he could “do” things for her in the Navy and beyond and she used him for her own purposes.
18 The applicant also advanced a number of legal arguments, contending that:
(1) charges under s 61 of the Discipline Act and s 60 of the Crimes Act were not open to the prosecution as a matter of law given the specific provisions of s 33(c) of the Discipline Act;
(2) the provisions of s 67(1) of the Crimes Act were not “picked up” and applied in the proceedings before the GCM by s 61 of the Discipline Act;
(3) section 80 of the Constitution guaranteed the applicant a right to trial by jury.
19 The Panel, having found the applicant guilty of seven counts of indecent conduct without consent, ordered that:
(1) the applicant be reduced in rank to Lieutenant with seniority in that rank to date from 14 December 2011;
(2) the applicant be dismissed from the Australian Defence Force;
(3) the applicant be imprisoned for concurrent terms of 12 and 18 months;
(4) with respect to the offence of attempting to destroy service property, the applicant be fined $2,000.00.
THE APPEAL TO THE TRIBUNAL
20 The applicant appealed against the convictions for indecent conduct without consent to the Tribunal under s 20 of the Defence Force Discipline Appeals Act 1955 (Cth) (the Appeals Act).
21 Section 23(1) of the Appeals Act provides relevantly:
(1) … [W]here in an appeal it appears to the Tribunal:
(a) that the conviction … is unreasonable, or cannot be supported, having regard to the evidence;
(b) that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction … was wrong in law and that a substantial miscarriage of justice has occurred;
(c) that there was a material irregularity in the course of the proceedings before the court martial … and that a substantial miscarriage of justice has occurred; or
(d) that, in all the circumstances of the case, the conviction … is unsafe or unsatisfactory;
it shall allow the appeal and quash the conviction …
22 On 22 May 2012 the Tribunal quashed the conviction on Count 22, and found the applicant guilty on the alternative Count 23. The Tribunal otherwise dismissed the appeal. We will return to discuss the basis on which Count 22 was quashed in the course of our discussion of Ground 3 of the amended notice of appeal to this Court.
23 The Tribunal’s principal conclusions may be summarised as follows:
(1) although the Judge Advocate erred in giving directions on fraudulent misrepresentation as one possible mode of negating consent, this error did not occasion a substantial miscarriage of justice;
(2) the provisions of s 67 of the Crimes Act on consent applied to the proceeding;
(3) although the comments about misogyny in the Navy made by the prosecutor in his closing address should not have been made, the subsequent directions of the Judge Advocate were sufficient to ensure a fair trial;
(4) as a matter of law it was open to the prosecutor to charge the applicant under s 61 of the Discipline Act, which picks up s 60 of the Crimes Act, rather than under s 33(c) of the Discipline Act because these sections create different offences;
(5) the Judge Advocate did not err in law in exercising her discretion to admit the pretext recording and the record of the police interview into evidence; and
(6) section 80 of the Constitution did not operate to require trial by jury of the charges of indecent acts without consent.
THE APPEAL TO THIS COURT
24 The applicant now appeals to this Court to challenge the conclusions of the Tribunal under s 52 of the Appeals Act. Under that provision the appeal to this Court from the Tribunal lies only on a question of law involved in the decision of the Tribunal. It is necessary to keep clearly in mind the limited scope of the appeal provided by s 52 of the Appeals Act.
25 It is well settled that where a statute confers a right of appeal on a question of law, the applicant must identify a decision on a question of law said to have been erroneously made by the Tribunal below. That is because it is the question of law which is “the subject matter of the appeal itself”: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; see also Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 at [19]-[22].
26 It is also important to understand that this Court, in hearing an appeal under s 52 of the Appeals Act, is “not exercising any jurisdiction analogous to that of a Court of Criminal Appeal”: Hembury v Chief of General Staff (1998) 193 CLR 641 (Hembury) at [31].
27 Consistently with the circumscribed function of this Court under s 52 of the Appeals Act, this Court may not “permit the ingenious extraction of alleged errors upon questions of law … so as to permit civilian interference with the military system of justice supervised by the Tribunal”: Hoffman v Chief of Army (2004) 137 FCR 520 (Hoffman) at [44].
28 Grounds of appeal 1, 2, 3, 5, 6, 7 and 8 of the applicant’s amended notice of appeal agitate complaints about the course of the proceedings before the GCM, the insufficiency of the evidence supporting the prosecution case and the Tribunal’s rejection of those complaints. The respondent argues that these grounds do not raise a question of law.
29 Ground 4 contends that, as a matter of law, it was not open to the prosecutor to charge the applicant under s 61 of the Discipline Act (and s 60 of the Crimes Act) rather than under s 33(c) of the Discipline Act.
30 The applicant has also raised, within Ground 5, an argument that s 67(1) of the Crimes Act was not “picked up” by s 61 of the Discipline Act so as to provide a basis on which the complainant’s consent could be said to be negated. It is also argued that if s 67 of the Crimes Act were applicable in this case on the true construction of s 61 of the Defence Act, then the legislation would be denied effect as a constitutionally impermissible interference with the determination of criminal guilt. Notices were given pursuant to s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act) in relation to this point.
31 Ground 9 argues that the trial of the charges of indecent acts without consent before the GCM was contrary to s 80 of the Commonwealth Constitution. Notices were given pursuant to s 78B of the Judiciary Act in relation to this point as well.
32 None of the Attorneys-General of the Commonwealth, States or Territories sought to intervene in the proceedings in response to the s 78B notices.
33 In an endeavour to present, and address, coherently the arguments advanced by the applicant, we propose to set out separately the applicant’s arguments on each of these grounds together with the Tribunal’s reasons and our consideration of the applicant’s arguments.
34 It is convenient to set out now the terms of the relevant legislation, including the legislation under which the applicant was charged with indecency without consent and the alternative counts of assault.
RELEVANT LEGISLATION
35 Section 33(a) and (c) of the Discipline Act provided:
33 Assault, insulting or provocative words etc
A person who is a defence member or a defence civilian is guilty of an offence if the person is on service land, in a service ship, service aircraft or service vehicle or in a public place and the person:
(a) assaults another person; or
(b) …
(c) within the view or hearing of another person, engages in conduct that is obscene; or
(d) …
Maximum punishment: Imprisonment for 6 months.
36 Section 61 of the Discipline Act was in the following terms:
61 Offences based on Territory offences
(1) A person who is a defence member or a defence civilian is guilty of an offence if:
(a) the person engages in conduct in the Jervis Bay Territory; and
(b) engaging in that conduct is a Territory offence.
(2) A person who is a defence member or a defence civilian is guilty of an offence if:
(a) the person engages in conduct in a public place outside the Jervis Bay Territory; and
(b) engaging in that conduct would be a Territory offence, if it took place in a public place in the Jervis Bay Territory.
(3) A person who is a defence member or a defence civilian is guilty of an offence if:
(a) the person engages in conduct outside the Jervis Bay Territory (whether or not in a public place); and
(b) engaging in that conduct would be a Territory offence, if it took place in the Jervis Bay Territory (whether or not in a public place).
(4) The maximum punishment for an offence against this section is:
(a) if the relevant Territory offence is punishable by a fixed punishment – that fixed punishment; or
(b) otherwise – a punishment that is not more severe than the maximum punishment for the relevant Territory offence.
(5) Strict liability applies to paragraphs (1)(b), (2)(b) and (3)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) To avoid doubt, section 10 of this Act does not have the effect that Chapter 2 of the Criminal Code applies to the law in force in Jervis Bay, for the purpose of determining whether an offence against this section has been committed.
Note: Section 10 of this Act applies Chapter 2 of the Criminal Code to the content of this section, but not to the content of the law in force in Jervis Bay. To determine, for the purposes of this section, whether Chapter 2 of the Code applies to Jervis Bay law, it is necessary to consult Jervis Bay law.
37 Section 3(1) of the Discipline Act relevantly defined “Territory offence” as “ … an offence punishable under any law in force in the Jervis Bay Territory” – which includes the laws (such as the Crimes Act) in force in the Australian Capital Territory by virtue of s 4A of the Jervis Bay Territory Acceptance Act 1915 (Cth).
38 By s 96(1) of the Discipline Act, a person may not be charged with an offence under s 33 once a period of three years has expired following the time at which the offence is alleged to have been committed. By s 96(4) a charge against s 61(1) of the Discipline Act becomes time barred at the same time as the particular offence picked up by that sub-section would be barred in the Jervis Bay Territory.
39 Section 60(1) of the Crimes Act relevantly provided:
60 Acts of indecency without consent
(1) A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years.
40 Section 67 of the Crimes Act was relevantly as follows:
67 Consent
(1) For sections 54, 55(3)(b), 60 and 61(3)(b) and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused –
…
(g) by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person; or
(h) by the abuse by the other person of his or her position of authority over, or professional or other trust in relation to, the person; or
…
(2) A person who does not offer actual physical resistance to sexual intercourse shall
not, by reason only of that fact, be regarded as consenting to the sexual intercourse.
(3) If it is established that a person who knows the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means set out in subsection (1) (a) to (j), the person shall be deemed to know that the other person does not consent to the sexual intercourse or the act of indecency, as the case may be.
GROUND 1
41 Ground 1 is in the following terms:
Whether there was a substantial miscarriage of justice (per s 23(1)(c) of the Defence Force Discipline Appeals Act 1955 (Cth) (‘DFDA Act’) in that despite having correctly found (at [124]) that the learned Judge Advocate should not have made directions to the General Courts Martial Panel (the ‘Panel’) regarding fraudulent misrepresentations but, having done so, had given inadequate directions about them, the Tribunal erred in failing to find that there was a substantial miscarriage of justice (as the directions concerned an element of the offences, namely consent, with the result that the appellant thereby did not receive a fair trial in accordance with the law (Ground 7(d) of the Further Amended Notice of Appeal to the DFDAT).
42 The Judge Advocate directed the Panel to the following matters, summarised by the Tribunal at Reasons [95]:
She was no doubt emotionally dependent on him and in the prosecutor’s submission the relationship he was suggesting that you would infer was one where he effectively groomed her into the position where he was able to perpetrate these things upon her. The prosecutor also submitted to you in addition to the question of abuse of power and authority in relation to the consent he also considered the fraudulent misrepresentation made by the accused.
That is, particularly in relation to this charge. There are indications to the complainant that she gave evidence on repeated occasions that the accused had smacked his daughters like this and that she’d been told that SBLT Clarke and LEUT Cowling had done this and this was how Australians disciplined their children. He said that these were matters she gave evidence on and what appeared to be active in her mind as believing that he was – what was going on was not improper such that consent was obtained to engage in the conduct.
In this regard you’ll recall the evidence of SBLT Clarke the complainant was surprised when she advised her that she had never been smacked by the accused. She said in her evidence, “She told me that she thought it had been happening to me. I think she thought that it was. She tried to rationalise.
43 The suggestion as to fraudulent misrepresentation seems to have been that the complainant’s consent had been vitiated by the knowingly false representation by the applicant to the complainant that he had similarly disciplined his daughters and female service personnel, whereby the complainant was induced to submit to his directions. Curiously, this scenario seems to have originated, as a possible theory of the applicant’s guilt, with the defending officer.
44 The defending officer sought a redirection from the Judge Advocate to the effect that, if there was a fraudulent misrepresentation or abuse of the applicant’s position of authority, the Panel needed to be satisfied beyond reasonable doubt that one or other of these factors caused the complainant to consent to the acts of indecency upon her to the knowledge of the accused. The Judge Advocate redirected the Panel accordingly.
45 This gave rise to two issues before the Tribunal: first, whether the Judge Advocate erred in giving directions – or failing to give complete directions – with respect to fraudulent misrepresentation; and secondly, if she so erred, whether a substantial miscarriage of justice was occasioned thereby. The Tribunal at Reasons [101]-[124] resolved the first issue in favour of the applicant, and at Reasons [125]-[132] it resolved the second issue in favour of the prosecution.
46 In this Court, it was common ground that the Tribunal was correct in holding that the Judge Advocate should not have given these directions. Accordingly, it is sufficient to set out the Tribunal’s conclusions at Reasons [122] and [124]:
122 … No objection was taken by counsel for the accused that the Judge Advocate should not have directed the panel at all on this topic; nor that such direction was deficient because (1) no instruction was given to the panel as to what amounts in law to a fraudulent misrepresentation and (2) the panel was not directed as to which count or counts that subject might be relevant to, it being left on the basis that it could be considered in relation to each charge, when the evidence of the complainant at its highest related the “daughters” spanking only to Charges 1 and 4. This left the panel in the position that it could be considered in relation to all charges, as if this carried over as something affecting the complainant’s mind even before the first incident. Why defence counsel even raised it at all, and why objection was not taken at the trial is difficult to understand. Prior to the request for a redirection, the Judge Advocate in discussions with counsel as to what directions would be given at no time intimated that it was something that the panel needed to be instructed about; nor was it mentioned in the aide memoire which the Judge Advocate had prepared.
…
124 Because of the Judge Advocate’s approach to giving her directions in respect of the elements of each charge by referring back to her general directions on consent on each occasion, fraudulent representation was not explored as an element of each charge together with its constituent parts. The directions on fraudulent representation ought not to have been given at all but having embarked upon that course and, with the encouragement and participation of both counsel to embark on further clarifying directions, they were inadequate.
47 The Tribunal had summarised the evidence at Reasons [108]-[119] and, after reviewing authorities relevant to whether the erroneous direction occasioned a substantial miscarriage of justice, concluded at Reasons [131]-[132]:
It is highly unlikely that any member of the panel reasoned to guilt on the basis that the complainant’s consent was vitiated by “the fraudulent representation” of the appellant that he had similarly disciplined his daughters to their benefit (or SBLT Clarke or LS Cowling). There was no evidence to that effect from the complainant. In a thorough and lengthy cross-examination, any “lurking” inference to that effect was never put. As the review of the opening by the prosecutor, the evidence and the closing addresses demonstrates, this basis for negativing consent did not, in truth, get an airing.
The error in directions (or absence of a complete direction) in the circumstance of this case, was not such a departure from the essential requirements of the law that it went to the root of the proceedings. As the review of the evidence under each of the several grounds demonstrates, this was a very strong prosecution case. The charges upon which the appellant was acquitted did not involve issues of consent. Had that been the case then the prejudicial conduct charges would likely have been upheld. They were clearly incidents about which the panel had a doubt. The appellant has not demonstrated that a substantial miscarriage of justice occurred by reason of the irregularity in the proceedings.
48 The Tribunal approached the issue by reference to the test articulated in the decisions of the High Court in Weiss v The Queen (2005) 224 CLR 300 (Weiss) at [41]-[43] and Darkan v The Queen (2006) 227 CLR 373 at [84].
49 The applicant submits that it was not open to the Tribunal to speculate as to the impact of a trial in which the prosecutor had not advanced the essential element of the offence it sought to establish. That being so, the applicant alleges that the trial was not a trial according to law, and accordingly a miscarriage of justice occurred. The applicant argues that the evidence did not demonstrate a “very strong prosecution case” on the issue of want of consent and that the Tribunal’s review of the evidence had focussed only on the external aspects of the applicant’s conduct rather than the evidence on the issue of consent. He argues that, so far as the negation of consent was concerned, the case was a weak one.
50 The applicant submits that, having chosen the most serious offence with which to charge the applicant under s 61 of the Discipline Act, it was incumbent on the prosecution and on the Judge Advocate to ensure that evidence prejudicial to the applicant was not led, and that the relevant evidence put before the Panel was identified and relied upon in a way that ensured it was the subject of proper directions and instructions from the prosecutor and the Judge Advocate.
Consideration
51 The first flaw in the applicant’s argument is that it conflates an irregularity in the proceeding at the GCM with a miscarriage of justice. To conflate these concepts is to misconstrue s 23(1)(c) of the Appeals Act. In Hembury at [21] McHugh J said:
The question then is whether the Tribunal, having found that breach of r 33 was a material irregularity, was bound, as a matter of law, to find that the breach was a substantial miscarriage of justice. The appellant had the burden of showing that the material irregularity constituted a “substantial miscarriage of justice”. The plain words of s 23(1)(c) indicate that an appellant must show not only a material irregularity but also that it constituted a substantial miscarriage of justice. In that respect the onus under s 23 is different from that existing under the common form criminal appeal statutes. It is for the appellant to establish not only that there has been a material irregularity but also that it constituted a substantial miscarriage of justice. Not every material irregularity occurring in the course of a trial will constitute a miscarriage of justice, let alone a substantial miscarriage. Thus, a material irregularity occurring in the course of the proceedings may be corrected later in the proceedings. (See, eg, R v Riaz and Burke (1991) 94 Cr App R 339 at 344).
52 Gummow and Callinan JJ said at [33]-[35]:
There is no question here of appellate intervention in respect of an alleged mistrial conducted in the exercise of judicial power. Rather, the issue as understood before the Full Court was whether, as a matter of law, the Tribunal erred in its application of s 23(1)(c) of the Appeals Act. This obliged the Tribunal, with exceptions not presently material, to allow the appeal and quash the convictions if it appeared to the Tribunal:
that there was a material irregularity in the course of the proceedings before the court martial or the Defence Force magistrate and that a substantial miscarriage of justice has occurred.
…
Paragraph (c) contains the two elements of “material irregularity” and “substantial miscarriage of justice”. There may be a “material irregularity” which does not amount to a “substantial miscarriage of justice”. Further, an “irregularity” may not be “material” because, for example, it was cured by what was done later in the proceeding.
(Footnotes omitted)
53 It is to be noted that the irregularity of which the applicant complains here did not involve, as in Hembury, a failure to observe the requirements of the law as to the manner of rendering of the verdict of the GCM.
54 The text of s 23(1)(c) of the Appeals Act expressly contemplates that it is for an applicant to show a substantial miscarriage of justice in addition to an irregularity in the proceedings. It may well be that the Tribunal, in proceeding by reference to authorities on “the proviso” (i.e. the statutory provision whereby a court of criminal appeal may uphold a conviction notwithstanding that the trial was affected by error if the court of criminal appeal is satisfied that the conviction was not a substantial miscarriage of justice) approached the matter in a way which was unduly favourable to the applicant. Cases concerning the application of the proviso are concerned with the question whether, notwithstanding an irregularity in the trial, the Court of Criminal Appeal may nevertheless decline to set aside a conviction if it is satisfied that no substantial miscarriage of justice has occurred. Section 23(1)(c) of the Appeals Act, in terms, imposes on an applicant the burden of showing that a substantial miscarriage of justice has occurred, that is to say that he has been deprived of a fair chance of acquittal. Under the proviso, the Crown must persuade the appellate court that “the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty”: cf Weiss at [44].
55 It may, however, be accepted, for the sake of argument on this issue, that the question whether the misdirection on this point occasioned a substantial miscarriage of justice required the Tribunal to consider whether the Panel, acting reasonably on the evidence properly before it, and applying the correct onus and standard of proof, would inevitably have convicted the applicant (see Wilde v The Queen (1988) 164 CLR 365 at 373) if this blemish in the trial had not occurred.
56 The Tribunal concluded, to adapt the words of the High Court in Weiss at [43], that this is a case in which it is “possible to conclude that the error made at the trial would, or at least should, have had no significance in determining the verdict that was returned” by the Panel. The Tribunal, on a review of the evidence in the case, concluded that the error had no significance in returning the verdict that was returned. That conclusion was a conclusion of fact involving judgments of impression and degree, not of law: Hoffman at [44]; see also M v The Queen (1994) 181 CLR 487 at 492-493; SKA v The Queen (2011) 243 CLR 400 at [14], [19]-[21].
57 We are unable to discern an error, much less an error of law, in the Tribunal’s conclusions. The applicant argues that the prosecution case of want of consent on the part of the complainant was not a strong one so that the prosecutor’s comments may have unfairly tipped a finely poised balance against the applicant. We are unable to accept that submission. It is wrong to say, as the applicant does, that the Tribunal did not consider the evidence bearing on the absence of consent and the applicant’s knowledge or recklessness as to the absence of consent.
58 The complainant’s evidence that she submitted to the applicant’s directions only because she was “scared” of him is uncontradicted. It is not difficult to accept her evidence as a matter of ordinary human experience. The applicant was in a position of authority over the complainant; and he was considerably older than she was. There is nothing in the evidence, or in the suggestion put by the applicant to the complainant, to suggest that the complainant either expressly invited the demeaning physical contact in which the applicant engaged or that she gave him any reason to think it was welcome by her. It was certainly not suggested that she derived sexual gratification from the incidents in question, or that her relationship with the applicant was such that she would be prepared voluntarily to indulge him in his desires.
59 The applicant’s statements in the pretext recording afford strong support for the complainant’s evidence and contain no hint of support for the suggestion that the complainant had been making use of the applicant for her own ends. Indeed, they are quite inconsistent with the suggestion that the complainant had agreed to accommodate the applicant’s desires in the expectation of what he could “do” for her in the Navy or beyond. There is no suggestion that the applicant and complainant had entered into any such arrangement or that the complainant had called upon the applicant for any favour in return for her indulging his desires. The applicant’s assertions in his record of interview with the service police are also quite inconsistent with any such suggestion. Further, they strongly indicate a consciousness of guilt on his part.
60 In these circumstances, it is hardly remarkable that the Tribunal described as “very strong” the prosecution case of a want of voluntary participation or of unwilling participation involving submission by the complainant to the abuse of authority exercised by the applicant’s directions to the complainant. To the extent that the applicant seeks to make something of the complainant’s failure to complain earlier about the applicant’s behaviour, it was open to the Tribunal to take the view that that was due to an understandable confusion on her part, given her continuing role as the applicant’s subordinate and the disparities between them in terms of age, experience and power. It is not unknown for victims of sexual abuse by authority figures to react to abuse in ways that reflect confusion and conflict in their attitude to their abusers. However that may be, the assessment of such factual considerations was a matter for the Tribunal. That is especially so, given that the Tribunal enjoys the benefit of knowledge and experience of members of the armed services and of service culture not enjoyed by this Court. The relative advantage enjoyed by the Tribunal is reflected in the limits imposed on this Court’s appellate role by s 52 of the Appeals Act.
61 Finally on this point, there is no room to doubt that the Panel clearly understood that they could convict the applicant only if they were satisfied beyond reasonable doubt that the activities alleged by the complainant occurred, that they were indecent, and either that the complainant did not voluntarily agree to participate in the applicant’s indecent activities, or that she was caused to submit to direction which amounted to abuse of his position of authority, and he knew that or was reckless as to it. We will return to this point in our discussion of the arguments agitated in respect of Ground 2.
62 We would reject the first ground of appeal.
GROUND 2
63 Ground 2 is the following terms:
Whether there were material irregularities and a substantial miscarriage of justice (cf s 23(1)(c) of the DFDA Act) in that the Tribunal erred in failing to severally consider and uphold the appellant’s grounds of appeal that the learned Judge Advocate erred when directing the Panel upon the potential application of s 67 of the Crimes Act 1900 (ACT) in that:
(a) the Judge Advocate failed to instruct it that there was a distinction between the appellant being in a position to influence or affect the complainant’s consent to acts of indecency because of his abuse of rank, position of authority and professional or other trust and the complainant’s consent actually being influenced or affected by his abuse of rank, position of authority, professional or other trust, such that there was a material irregularity in the course of the proceeding and a substantial miscarriage of justice arose (Ground 7(e) of the Further Amended Notice of Appeal to the DFDAT);
(b) the Judge Advocate should have directed the Panel that, on the basis of the prosecutor’s opening address, and the content of the charges, it was the prosecution’s case that the complainant consented to acts of indecency but only because she was ordered, or directed, by the appellant to do so, but that on the basis of her evidence, such case was not open on the evidence (Grounds 7(f)-(g) of the Further Amended Notice of Appeal to the DFDAT);
(c) the Judge Advocate erred in directing the Panel that the appellant had to know that the complainant’s consent to acts of indecency had been negated (by either or both of the grounds in s 67(1)(g) or (h) of the Crimes Act), when what the prosecution needed to establish beyond reasonable doubt was that the appellant knew that her consent had been caused by either or both of those grounds (Ground 7(l) of the Further Amended Notice of Appeal to the DFDAT);
(d) the Judge Advocate erred by failing to instruct the Panel that to the extent that the prosecution relied upon a case that the appellant was deemed to have known that the complainant’s consent to acts of indecency was caused by vitiating factors in s 67(1), a result of the operation of s 67(3) of the Crimes Act, in that [sic]:
(i) there was no reference in the directions to the evidence relied upon by the prosecution to establish that the appellant knew that the complainant’s consent to the acts of indecency had been caused by either his abuse of rank, position of authority and professional or other trust or any fraudulent misrepresentation; and
(ii) there was no reference in the directions to the evidence that the appellant did not in fact know that the complainant’s consent was caused by either or both of the grounds in s 67(1)(g) or (h) of the Crimes Act, but rather believed that the complainant had consented to acts of indecency, on the bases that:
A. the acts of indecency occurred over a period of months, without any, or any formal, complaint, in circumstances where:
(1) for all but two of the subject incidents, the acts occurred on the ship, in close proximity to ship’s crew;
(2) in two of the subject incidents, the acts occurred at the complainant’s private residence after dinners with the appellant;
B. the complainant revealed that it was only after the eighth of the ninth [sic] incidents (the subject of the indecency charges) that she swore on her grandmother’s grave not to let it (ie the appellant smack her) happen again; which revelation was consistent with her conduct reasonably signifying to the appellant that she had let him smack her previously;
C. the evidence that when, in respect to the circumstances leading up to the ninth incident, the complainant clearly indicated that she did not wish to be smacked by the appellant, the appellant refrained from smacking her;
D. the complainant’s explanation that she allowed it (acts of indecency) to occur because of several (inconsistent) internalised mental states, such as her trusting appellant; or being scared of him;
E. the content of the complainant’s [i]Phone sound recording, in which the appellant (without knowledge that he was being taped) indicated his belief that the complainant consented to the conduct.
64 It may be said immediately that the terms in which Ground 2 are couched do not facilitate the identification of a question of law involved in the decision of the Tribunal. The applicant disclaimed any suggestion that his complaint was that the Tribunal’s reasons were inadequate. The applicant’s complaints about the conduct of the prosecutor and Judge Advocate do not articulate an error of law on the part of the Tribunal. Rather, they invite this Court impermissibly to enter upon a consideration of points which, to the extent that they might claim the attention of a tribunal of fact, were for assessment by the Panel and by the Tribunal.
65 The applicant argues that the Judge Advocate ought to have instructed the Panel that there was a difference between the applicant merely being in a position to abuse his authority, rank and professional or other trust, and the complainant’s consent actually being caused by the applicant’s abuse of authority, rank and professional or other trust. It is the causal effect of that authority, rank and professional or other trust which is critical. The applicant argues that directions should have been made as to the way the prosecution put its alternative case on consent under s 67. The prosecutor’s opening address emphasised that if there was any consent by the complainant to the acts of indecency, it was vitiated because she was ordered to allow herself to be smacked.
66 The applicant argues that the Judge Advocate erroneously directed that the applicant needed to know that the complainant’s consent to the acts of indecency had been negated (a legal conclusion). Rather, the Judge Advocate ought to have directed that the applicant needed to know that the complainant’s consent had been caused by the vitiating factors in s 67(1) (a factual conclusion).
67 The applicant argues that the Judge Advocate should have directed the Panel to the evidence relied upon by the prosecution to establish that the applicant knew or did not know that the complainant’s consent had been caused by one or more of the vitiating factors in s 67(1) in circumstances in which, by virtue of s 67(3), the applicant was deemed to have known that the complainant’s consent was caused by the vitiating factors in s 67(1).
68 The applicant also contends that that case was “fatally undermined” when the complainant admitted that she did not consent to the conduct because of the belief that she was receiving from the applicant an order. The prosecution impermissibly moved from its alternative case that the complainant’s consent was vitiated because she was ordered to allow herself to be smacked, to a case that it was vitiated, in a vague sense, by reference to fraudulent misrepresentations and/or abuse of rank, position or authority.
69 The Judge Advocate directed the Panel as follows:
The next element is that [the complainant] did not consent to the act of indecency. In relation to this charge, this and the next element are the primary ones to focus your attention on. The accused does not have to prove that [the complainant] consented; it’s for the prosecution to prove beyond reasonable doubt that she did not. What, then you might ask is meant by “consent”?
Consent involves a conscious and voluntary agreement on the part of the complainant to have the act of indecency committed upon her by the accused. It can be given verbally or expressed by actions. Similarly, absence of consent does not have to be in words, it may be communicated in other ways. Consent which is obtained after persuasion is still consent, provided that it’s ultimately given freely and voluntarily.
The prosecutor has submitted to you that the reason that the complainant went along with the conduct and the alleged conduct of the accused was because she was afraid of the accused, most particularly because of his position of rank and authority.
I direct you that, as a matter of law, consent is negated by the abuse by the accused of his position and authority over, or professional or other trust in relation to, the complainant, and by a fraudulent misrepresentation of any fact made by the other person, or by a third person, to the knowledge of the complainant.
Although I refer to this again in relation to the next element, if it’s established that the accused knew the consent of the complainant was caused by the abuse by him of his position of authority over, or professional or other trust in relation to, the complainant, or by fraudulent misrepresentation made by him or another person to the knowledge of the complainant, then the accused shall be deemed to know that the other person, in this case, the complainant, does not consent to the act of indecency. Both the prosecutor and the defending officer have submitted to you that the nature of the relationship between the accused and the complainant is a critical matter in relation to this element of the offence. Again I reiterate to you, as the tribunal of fact, it is a matter for you to determine what you believe the nature of the relationship is.
70 The defending officer asked for a further direction in order to ensure that the Panel understood that they could convict the applicant only if they were satisfied that if there was an abuse by the applicant of his position, that any consent by the complainant was caused by that abuse of position. The Judge Advocate accepted that request and further directed the Panel as follows:
The prosecution puts its case in relation to the issue of consent in relation to the act of indecency charges on two alternative bases: either that the complainant did not consent and the accused knew or was reckless as to that consent; or that her consent was negated by an abuse by the accused of his position of power over her or by a fraudulent misrepresentation of fact made by the accused and known to the complainant.
If you find that the complainant consented but her consent was caused by either of those two factors, or both, then her consent is negated. That means that the position is the same as if she did not consent. Because the prosecution bears the onus of proof, you have to be satisfied beyond reasonable doubt that, if she did consent, it was caused by one of those two factors. You must first consider whether the complainant’s consent was negated. If you are satisfied that the complainant’s consent was caused by one or both of those factors, you must consider whether the accused knew that the consent had been negated by one or both of those factors. If that is the case, then, as a matter of law, the accused is taken to know that she was not consenting.
Would you like me to say that again?
PRESIDENT: I think the last bit in particular, yes.
JUDGE ADVOCATE: You must first consider whether the complainant’s consent was negated. If you are satisfied that the complainant’s consent was caused by one or both of those factors, then you must consider whether the accused knew that the consent had been negated by one or both of those factors. If that is the case, then, as a matter of law, the accused is taken to know that she was not consenting.
71 The Tribunal considered the Judge Advocate’s directions at Reasons [93]-[133] and concluded that the Panel had been sufficiently directed on the issues presented by ss 67(1)(g) and 67(1)(h) of the Crimes Act.
Consideration
72 We are unable to discern any error of law in the Tribunal’s conclusion.
73 The Judge Advocate’s function in directing the Panel was to explain to them so much of the law as they needed to know in deciding the real issue or issues in the case: see Azzopardi v The Queen (2001) 205 CLR 50 at [49]; Tully v The Queen (2006) 230 CLR 234 (Tully) at [75].
74 As Hayne J emphasised in Tully at [76]-[77]:
76 … The word "real" is no mere verbal flourish. It is important. By hypothesis, the accused has pleaded not guilty and, by that plea, has put in issue every element of the offence or offences charged. But it by no means follows that there is a "real" issue about every one of those elements. Leaving aside cases in which an accused makes some formal admission of one or more elements of an offence charged, by the time the judge comes to instruct the jury, it will often be apparent that evidence adduced by the prosecution in respect of one or more of the elements of the charge is not challenged, and that there is, therefore, no real issue about that element or those elements. To take a simple example, in a murder trial there will very often be no dispute that the victim is dead. There may be no dispute about how, when or where the victim died. In order to prove the case, the prosecution will lead evidence about those matters but it will be apparent, by the end of the trial (if not much sooner), that there is no "real" issue about those matters.
77 A fundamental part of the task of the trial judge is to decide what are the "real" issues in the case. And another, no less important, part of that task is to tell the jury what those real issues are. It is in respect of those issues (and only those issues) that the judge must instruct the jury about so much of the law as the jury must understand to decide the case.
75 Aside from the incidents in relation to Counts 1, 6 and 22, it was in issue whether each incident alleged by the complainant had occurred, whether, if it occurred, the applicant’s conduct was indecent, and whether the complainant had participated in the activity voluntarily or had succumbed by reason of the applicant’s knowing abuse of his authority over her.
76 The directions given by the Judge Advocate were sufficient to explain to the Panel the real issues in the case and the law which the Panel needed to know in determining those issues, including the law bearing on the question of consent. That the Judge Advocate’s directions might have been, but were not, more elaborate does not mean that they were not sufficient. As Hayne J said in Tully at [79]:
79 It is of the first importance to the proper administration of criminal justice that trials not be made longer or more elaborate than they need to be. That object is defeated if trial judges do not focus the minds of the jurors upon what are the real issues in the case and confine the instructions that are given to the jury to only so much of the law as the jury needs to decide those issues. Prudence may well be said to suggest that the judge should err on the side of stating more rather than fewer issues. But it is important to recognise that doing that tends to defeat the object of confining the length and complexity of criminal trials to what is necessary for the attainment of justice. The trial judge must, therefore, steer a difficult course between stating only the real issues in the case, and stating too many issues for the jury's consideration, with consequent over-elaboration and prolongation of the trial. As Owen J said in Commissioner for Road Transport and Tramways v Prerauer, the first duty of the trial judge is "to explain to a jury in a simple, understandable fashion the law which is applicable to the particular case before them".
(Original emphasis. Footnotes omitted.)
77 On the applicant’s behalf it was argued that the Judge Advocate’s directions to the Panel were insufficient in that they failed to alert the Panel to what was said to be a fundamental inconsistency between a charge of which the absence of consent is an element and a charge which depends on the negation of consent. In truth, there was no such inconsistency. The absence of consent is an element of the offence created by s 60(1) of the Crimes Act. Section 67(1)(h) of the Crimes Act provides that “For section[] … 60 [of the Crimes Act] and without limiting the grounds on which it may be established that consent is negated, the consent of [the complainant] … is negated if that consent is caused by the abuse by the other person of his … position of authority over … [the complainant]”. The text of s 60 and s 67 could have been included in one section. Section 67 is not different from, or inconsistent with, s 60: it serves to ensure that submission to an act of indecency resulting from, inter alia, the abuse of a position of authority is not regarded as consent.
78 In the light of the directions which were given by the Judge Advocate there can be no room for doubt that the members of the Panel understood that they could convict the applicant of each of the indecency offences only if satisfied beyond reasonable doubt that each alleged incident occurred, it was indecent, and that the complainant did not voluntarily agree to participate in the acts of indecency or that she submitted to the applicant’s directions only because of his abuse of his authority over her and he knew that to be so or was reckless about it.
79 In this regard, the Judge Advocate directed the Panel explicitly in relation to the need for a causative link between the applicant’s abuse of his authority and her compliance with his direction, and the need for knowledge on the applicant’s part of the facts negating consent.
80 The applicant sought to make much of the complainant’s concession in cross-examination that the applicant had not ordered her to participate in the acts of indecency, but the Panel was not bound to regard this as a fatal concession on the complainant’s part. The complainant’s concession might well have been regarded as no more than an acknowledgment that the applicant’s directions were not formal orders. That concession is hardly surprising: they were not engaged in the performance of their duties as members of the armed forces. One can readily understand that the Panel was not disposed to regard the concession as an answer to the powerful case that her compliance with his directions was obtained by the exercise of his position of authority over her and that he knew that that was so.
81 In the course of oral argument in this Court, senior counsel for the applicant fixed upon [94] of the Tribunal’s Reasons. It is in the following terms:
The directions which the learned Judge Advocate gave to the panel included that consent is negated “by a fraudulent misrepresentation of any fact made by the other person, or by a third person, to the knowledge of the complainant.” This was clearly wrong; it is the knowledge of the accused which the Judge Advocate meant to convey, not the knowledge of the complainant, but no point is taken in relation to that error, although the error is repeated on a number of occasions (the direction was also inadequate for other reasons, one being that it did not deal with causation).
82 The applicant’s counsel sought to suggest that the passage in parenthesis represented the Tribunal’s concluded view of the insufficiency of the Judge Advocate’s direction on the issue of causation in relation to the negation of consent. There are two answers to this submission. The first is that what the Tribunal said at [94] must be read subject to the Tribunal’s finding at [96] in relation to the later direction on causation. The second answer is that, in relation to s 67(1)(h), the Tribunal’s conclusions at [96] and [98] deal with the submissions put to it in relation to causation and the accused’s knowledge.
83 Accordingly, we would reject Ground 2 of the appeal.
GROUND 3
84 Ground 3 is in the following terms:
Whether the convictions on counts one, four, six, nine, twelve and twenty were unsafe and unsatisfactory (per s 23(1)(d) of the DFDA Act) and/or unreasonable, having regard to all the evidence (per s 23(1)(a) of the DFDA Act) having regard to the Judge Advocate’s directions on s 67 that were made referred to in Ground 1, and the matters that were not addressed by the Judge Advocate in relation to s 67, referred to in Ground 2 above.
85 The GCM found the applicant guilty of Counts 1, 4, 6, 9, 12, 20 and 22 and not guilty with respect to Counts 15, 16, 17, 18 and 19. The applicant admitted the conduct alleged in Counts 1, 6 and 22 but denied that it was non-consensual or indecent. The applicant contended before the Tribunal that the convictions were unreasonable because they were inconsistent with the acquittals, and that the acquittals reflected so adversely on the credibility of the complainant that, in combination with other factors, it was unreasonable of the Panel to convict on the other charges.
86 The Tribunal summarised the principles relating to inconsistent verdicts at Reasons [142]-[144]:
142 A particular case may compel the conclusion that a jury which found that it had a reasonable doubt with respect to a complainant’s evidence on one charge ought to have had such a doubt with respect to the other charges. But, as the observations above demonstrate, whether a not guilty verdict involves a diminution in the complainant’s credibility or reliability so that the jury ought to have had a reasonable doubt with respect to other charges depends on the quality of the complainant’s evidence and the surrounding circumstances. As was pointed out by the plurality in Jones, the issue remains one of fact and degree in the circumstances of the particular case as to whether the difference in verdicts is such that, as a matter of logic and reasonableness, they should be regarded as inconsistent.
143 There may be an acceptable explanation for divergent verdicts in a case in which there is not “an integral connection between the counts” R v Markuleski at [239] or where there are circumstances present which do not compel the conclusion that the complainant’s overall credibility was so diminished that the jury should have acquitted on the other charges.
…
144 … [W]hen the evidence against an accused, particularly in a sexual case, is the word of the complainant, and the jury convicts on one or more charges and acquits on one or more, the evidence must be scrutinised with some care.
(Footnote omitted.)
87 The Tribunal considered the evidence relating to Counts 1 and 6 at Reasons [146]-[148] and [153]-[156]:
146 Charge 1: During HMAS SIRIUS’ transit from Fleet Base West to Sydney between 1-7 February 2010 the appellant smacked the complainant’s buttocks approximately 10 times with an open hand. This was the first occasion any impugned conduct occurred. It was admitted by the appellant. The complainant described it in some detail:
“He called me to his cabin and he closed the door and he put that black smoke curtain – and then he said to me, ‘I finally figured out what’s the best way to deal with you,’ to punish me, so that I don’t get out of line, so I have some boundaries, so I know how to be disciplined the way that Australians were disciplined, and at first I didn’t know what he was doing. I was just sitting there in a chair and he was sitting in his chair …”
147 The complainant described what she was wearing and that the appellant required her to stand and sit a few times to test if she were obeying. Her evidence proceeded:
“First he said to me that ‘I respect you. Do you trust me? Are you comfortable with me?’ Got me to look in his eyes. Got me – saying, ‘Do you respect me? I just want what’s best for you. This is what a father should have done. I’m like a father to you. Everyone in the supply department respect [sic] me. You’re just like my daughter.’ He said to me this is for my own benefit, that he should – he should smack me … He reached over and – I leant back, I wasn’t sure what he was – he was going to do, and he just grabbed my hand, my right hand, and then he led me to – to lie on his lap … He was sitting on his chair … I was sitting on the chair close to the – to the window … [a]nd then he sat there in his corner and then got me to lie on his lap … [a]nd I wasn’t sure what I should do and he said to me, ‘Do you think you deserve to be smacked? Do you think you’ve been naughty? This is what I’m going to say to you,’ and he said he was going to give me 10 smacks and he made me said, ‘I’ve been a naughty girl. I want you to smack me – spank me.’”
148 The complainant agreed to do so and she spoke those words. As he spanked her he wanted her to say, “I deserve to be smacked” ten times and she repeated those words. The complainant said she agreed with the appellant’s demand because she was scared.
…
153 Charge 6: The complainant met a man named Karl after HMAS SIRIUS berthed in Sydney in February 2010. They commenced a romantic attachment which she discussed with the appellant. The appellant helped her to write affectionate emails to him. She mentioned this assistance to SBLT Clarke who was the assistant supply officer. SBLT Clarke gave evidence (by then she was LT Clarke) confirming that the complainant showed her the emails which had been drafted by the appellant and she then raised the matter with the appellant.
154 The complainant was called into the appellant’s cabin after he had spoken with SBLT Clarke. He shut and locked the door and asked why she had betrayed his trust, adding that she could get him into trouble through helping her write the email. He was upset and asked her “Do you think you deserve a smack?” The appellant told her to remove the bottom part of her uniform. She did not wish to do so:
“I was scared of him and he told me to do it. I didn’t know what to do. He was so upset with me. His face was red and I can see him very angry … He grabbed me and then got me to bend over and then while I was bending on his lap he took my underwear off … [W]hen I was lying on his lap he pulled my underwear and hit me. It was hard … He wants me to say ‘I’ve been a naughty girl. JJ, smack me’ … he always wants me to call him JJ … I did. I repeated it.”
155 The appellant asked her how many times she should be smacked; she said five but he smacked her more than that. The complainant said the appellant was “really, really upset”:
“It was about 10 times or more, and he wanted to get my bottom red … he said … ‘I want to get your bottom nice red and pink’. He even described it. ‘Now it’s turning pink. Now it’s red.’”
156 The complainant said that made her feel “gross”. After he finished smacking her he asked if she were “okay”. She said she was and left and apologised to the appellant saying that she was sorry.
88 The Tribunal’s discussion of the evidence relating to Counts 4, 9, 12 and 20, being charges in respect of which the applicant did not admit the conduct alleged against him are set out at the Tribunal’s Reasons at [149]-[152], [158]-[165] and [170]-[175]:
149 Charge 4: The conduct constituting this charge was alleged to have occurred during HMAS SIRIUS’ transit to Sydney between 1-14 February 2010 about a week after the conduct, the subject of Charge 1. The complainant gave evidence of being called to the appellant’s cabin. She was wearing her bum bag and had her radio. She went inside and sat on a chair. The appellant asked her if she had been “naughty today”. She responded that she was young and made mistakes:
He got me to stand up and he – before that he tried to take the buckle off my bum bag – and told me to take that off and he reached over and take that off, so I stood up and put it on his bed, and he told me to take my pants off. … He said to me that “This what Australians do to their children”.
150 She said she complied because he said that his daughters were so successful. She took off her pants and he asked her to take off her underwear. She did not do so:
He was looking at me and then pulled my underwear down to my knees … and then suddenly there was a knock on the door and then he went ‘Shush’ … [i]t was LEUT Lamberth; he opened it and he got - and I quickly put my pants on and then he told me that ‘This is just our secret stuff and it must remain between us’.
151 The complainant was on duty and there was a muster immediately after.
152 LEUT W Lamberth could recall only one occasion when he attended the appellant’s cabin and found the complainant there. He had paperwork that needed to be signed by the appellant. He knocked on the door which was not locked, was told to enter and saw the complainant, whom he described as appearing distressed and upset, and the appellant as looking angry, “frustrated would probably be the word”. He elaborated in cross-examination that it was the appellant’s short tone and manner of speaking to him that led him to that characterisation.
…
158 Charge 9: The conduct constituting this charge allegedly occurred at the complainant’s residence in Western Australia between 26 and 30 March 2010 after HMAS SIRIUS had returned to Perth. The complainant won an award in the supply department, the prize for which was a bottle of wine or dinner with the appellant. The complainant chose dinner with the appellant because, she explained, he expected her to, on either a Friday or Saturday night at a named restaurant which was also attended by SBLT Clarke and some of her friends. SBLT Clarke confirmed that she saw them in April 2010 at a (differently named) restaurant in the same suburb. She was celebrating with her boyfriend and some friends. SBLT Clarke challenged the appellant the following week at work asking what it was about. He explained that the complainant was having a bad time and he needed to take her out.
159 The complainant had had other dinners alone with the appellant and he had attended at her residence on other occasions.
160 After dinner the appellant drove her home. He saw the complainant’s car and the complainant told him that she had been driving without a licence. She thought that the appellant may know of it because it was known in the wardroom that she did not have a licence. For that reason she “confessed”. She told him that she did so because she thought that if she were truthful he would not hit her. The appellant was upset and asked her if she deserved a smacking to which she responded that she did not because she had confessed.
161 They were sitting on a couch and he got her to take off her sandshoes and laid her across his lap, feeling her bottom. The complainant was wearing a black dress and stockings. The appellant tried to remove the stockings but they were stuck at her knees. He instructed her to take them off. After she took her stockings off she said she did not wish to go back on his lap. She was still wearing underwear. He told her that it was for her own good and that she was acting like a 12 year old school girl. He grabbed her wrist and put a pillow on his lap. He lifted her skirt and took off her underwear and spread her legs open. He told the complainant that she would be on her own and he would not help her any more if she did not allow this to happen. She was hit hard many times. After he finished he asked her if she were “okay” and said that he had done this for her own good.
162 Charge 12: The conduct alleged in respect of this charge was that between 26 and 30 March 2010 at the complainant’s residence in Western Australia he pulled her across his lap and smacked her buttocks several times with an open hand. The complainant identified this in her evidence-in-chief as occurring in about “May-ish”, after she and the appellant had had dinner at a named Chinese restaurant close to where she lived. They spoke of her being promoted to acting leading seaman because the ship was going on deployment to Hawaii. He spoke of what a good job the complainant had been doing and how much she had improved, especially after the administration of discipline.
163 When they arrived at her residence and went inside the appellant said he wanted to smack her on her bottom but she refused. He was very upset. She described saliva coming out of his mouth. He threatened that she would be on her own and he would not help her any more. She said:
I got so scared, I didn’t know what to do; I was beginning to rely on him. I was seeking his advice about everything, just about everything, and I was so glad that I was given the opportunity to be an acting kellick. I didn’t know what to do, but he cornered me. He was on my face … He was so angry. He grabbed me on my wrist and I still felt his hand on my forearm … I was pushed into a corner … I said to him ‘I don’t want to do it.’ He got even more upset.
164 The appellant told her that it was for her own good. She asked for guidance from him by just talking to her and asked whether it was necessary “to do that thing to me”. The complainant went to the toilet and put in a napkin and told the appellant that she was having her period. He still made her lie on his lap and felt for the napkin. He required the complainant to say, “JJ, I’ve been naughty. I want you to smack me.” The appellant smacked her a few times. He asked whether she was okay afterwards, as he did on each occasion.
165 Although the complainant, when challenged, could not offer a narrower range of dates than 60 days, she did give the incident context.
…
170 Charge 20: This charge was alleged to have occurred between 1 and 30 June 2010 while HMAS SIRIUS was in Melbourne. The appellant had signed the complainant’s leave application so that she could visit Karl. While the complainant was in the appellant’s cabin wearing civilian clothes including a purple top, he told her to take her top off. She said she was not sure if she wanted to take it off but the appellant came “really close”, helping her to get it off “until I had to take it”. She said she was wearing a bra and covered her breasts with her hands:
He got hold of my hand and he was looking in my eyes and said, ‘I only do it so you can trust men. I’m not your father. I’m here as a person without any interest in you. I’m just here to help you. I’m not abusing you or anything like that’. So I can trust men.
171 The appellant said she was a good girl and he did it to see if she were obedient. He then signed her leave.
172 In the iPhone recording the complainant said, “You … got me to take my top off”. The appellant responded, “Because, I think the top, if I remember right, as soon as you took it off I said, ‘Right, now put it back on’.”
173 In cross-examination the complainant was challenged that the sequence of these two incidents (pulling down her pants and showing her lacy underwear and taking off her top to show her bra) were reversed in evidence-in-chief to their order in her first statement to investigators. She responded that her mind was “jumbled” and became defensive/aggressive in her answers. She said that she remembered the two events clearly but conceded that she may have got the dates wrong. More tellingly, in her statement, the complainant had expressly said that the appellant did not touch her when he told her to pull down her trousers to expose her lacy underwear, whereas in her evidence-in-chief she said, “He kept smacking me and feeling my bottom”.
174 Also, she agreed that when she was complaining about her treatment at the hands of the appellant to her colleagues she did not mention this incident. Neither did she mention it to the investigators in her first interview.
175 On the other hand, although she agreed in cross-examination that she did not tell LS D J Price in March 2010 or SBLT Clarke nor LS Cowling or AB A L Ferrell in November 2010 of the bra incident, it was not put to her that she had not mentioned this incident to WO P A Chaplin, one of the investigators.
89 The evidence in relation to Count 18, on which charge the applicant was acquitted, is discussed at Reasons [168]:
Charge 18: The conduct constituting this charge of which the appellant was found not guilty (as well as Charge 19) allegedly occurred between 1 and 30 June 2010 when HMAS SIRIUS was alongside in Melbourne. The complainant had arranged to visit her friend Karl in Sydney. In evidence-in-chief the complainant said that at about midnight the appellant called her into his cabin and told her to take her jeans off. She was wearing lacy black underwear. The appellant was looking at her salaciously. In response to the prosecutor’s question, could she not say “no”, the complainant answered that she had no choice and also that she did not say “no” because she was excited to tell the appellant about her date with Karl. The course of her evidence then meandered off to a statement by the complainant about her sick grandmother and her unsuccessful attempt to get leave of absence from the ship to visit her in the Philippines.
90 In relation to Count 22, the Tribunal said at Reasons [176]-[179]:
Charge 22: The conduct constituting this charge allegedly occurred between 27 September and 20 October 2010 when HMAS SIRIUS was alongside Fleet Base West. This occurred after the complainant had been to the Philippines where her grandmother (with whom she was very close) had died. It was a Sunday and the complainant had come to the ship to pick up her things. She described the civilian clothes being worn by the appellant. She had driven to the gangway and while ferrying her goods to and from the car she spoke to the appellant. He offered to assist. The appellant asked the complainant for a lift to the wardroom where he was then staying.
177 The appellant challenged the complainant for driving unlicensed and told her it was a bad thing to do. When she parked the car he told her to follow him into the wardroom. He said that she had been “naughty” driving and that she should be punished. The complainant told the appellant:
“No, because I promised my mum – my grandma that I wouldn’t do it anymore, I promised it silently on her grave.”
178 Just before she departed the appellant hugged her and
“he tapped me on my bottom, he was like going that on my bum. He said ‘Next time, when you’re ready - I’ll let you go off this time because your grandmother died and you’re so emotional, but I’m afraid that you might have gone backwards’ since I’m coming from the Philippines.”
She did not agree in cross-examination that the conduct was a friendly tap.
179 The appellant admitted to this conduct but challenged its characterisation as indecent as well as the complainant’s consent.
91 The Tribunal noted the Judge Advocate’s direction to the Panel at Reasons [180]:
In her summing up the Judge Advocate emphasised:
“… the prosecution has brought 24 charges against the accused. He has pleaded guilty to the 24th charge and that charge has been put aside while you consider the evidence in relation to the other 23 charges, or nine separate incidents. While these are separate matters, they’re all being dealt with in one trial. This is done for convenience, as it would be expensive and time-consuming to hold a separate trial before a different court martial panel for each charge. However, you must be careful not to allow convenience to override justice. Both the prosecution and the accused are entitled to have each charge considered separately.
Each charge must be considered separately in light only of the evidence which applies to it and which in due course I’ll refer you to. You must ask yourselves in relation to each charge whether the evidence relating to that charge has satisfied you beyond reasonable doubt that the accused is guilty of that particular offence.
It would therefore be wrong to say that, simply because you have found the accused guilty following his plea of guilty to the 24th charge that he must be guilty of the other charges. Furthermore, because the accused has admitted the conduct that may amount to prejudicial conduct in relation to the first, third and ninth incidents, it does not mean that you should rationalise that he may be guilty of the other offences or the more serious offences in relation to each of those three incidents.”
92 The Tribunal explained why, in its view, the Panel’s acquittals did not throw doubt upon the reasonableness of the conviction at Reasons [182]-[187]:
182 The panel could well have had a reasonable doubt about whether Charge 15, the sixth incident, together with the alternative Charges 16 and 17 (spanking before proceeding to Hawaii) occurred.
183 The context of that conduct was inconsistent with other conduct in which the appellant disciplined the complainant only for past “wrongdoing” – “I deserve to be smacked”. The evidence of the complainant in respect of this charge was bereft of the minute detail which gave colour to her evidence about the other charges on which the appellant was found guilty. Neither was there any other evidence to add to her bare statement.
184 Charge 18 (and the alternative Charge 19), the seventh incident, was plagued with a muddled account by the complainant about whether the direction to show her lacy underwear after pulling down her pants occurred on the same day as the occasion on which she raised her top (Charge 20).
185 There was more than one visit to Karl while alongside in Melbourne. There was also the inconsistency with her statement that the appellant had not touched her on that occasion and her evidence-in-chief that he had, and the complainant’s failure to mention that conduct. The verdict of acquittal on the alternative Charge 19 of prejudicial conduct makes clear that the doubt held by the panel was about the fact of the occasion rather than any issue of consent.
186 On the other hand, the evidence in respect of the eighth incident, Charge 20 (alternative Charge 21), was consistent and had some support in the iPhone conversation.
187 There are, accordingly, cogent and acceptable explanations for the verdicts of acquittal which do not compel the conclusion that the verdicts of guilty are unreasonable.
93 The Tribunal addressed the applicant’s argument that the evidence showed that the complainant was an unreliable witness. The Tribunal said at Reasons [188]-[190]:
188 The appellant contends that the complainant was neither a credible nor reliable witness and her evidence ought to have been rejected. The complainant gave evidence over several days. She was seen (as recorded in the transcript) to be distressed on many occasions. She was also seen to be aggressive and sometimes rude to defence counsel and non-responsive to questioning. That she was not comfortable with the trial process and revisiting the evidence about the charges more than once was apparent. She said she was not well educated and that English was her second language. She asked to have less complex language used from time to time. It is often forgotten by counsel that some rather unusual expressions are employed by them when questioning witnesses. One example will suffice:
“DEFENDING OFFICER: You say that you were – when you were asked by my friend ---? --- Who’s your friend?”
189 Overall, the complainant’s evidence was consistent, and materially so, with her initial statement to investigators and between her evidence-in-chief and cross-examination.
190 The complainant’s credibility or reliability was for the panel to evaluate with the benefit of extensive submissions from the defending officer about how suspect that credibility was together with the Judge Advocate’s exhortation to evaluate her evidence carefully. There is no reason for doubting that the panel adhered to their task faithfully and the verdicts are neither inconsistent nor unreasonable.
94 The applicant submits that the Tribunal should have made its own independent assessment of the evidence, and on that assessment, it should have been in doubt as to whether there was an absence of consent by the complainant in respect of the indecency charges and also doubt as to whether the applicant knew there was an absence of consent. That submission cannot be accepted.
Consideration
95 It is apparent that the Tribunal did indeed make its own assessment of the evidence. In this regard, the Tribunal said at Reasons [192]-[204]:
192 While no adverse inference may be drawn against an accused for failure to give or call evidence, that failure did mean that the only evidence for the panel to consider was that led by the prosecution. Any doubt may thus be more readily discounted in that circumstance: Azzopardi v The Queen (2001) 205 CLR 50; Bridge v The Queen (1964) 118 CLR 600.
193 It was of significance that the defence admitted the conduct constituting Charges 1 and 6 (the conduct the subject of Charge 22 was admitted but, as we find below, the trier of fact could not be satisfied to the requisite standard that it was indecent).
194 The iPhone recorded conversation supported the claimant’s evidence that incidents other than those admitted occurred. Some exchanges will suffice:
“[AB] Well I’m trying to comprehend like whether – like you helping me was that like necessary to have me like, you know, to pull my pants down and get me butt naked and say like, like that word, “naughty” … type of thing and whether that was like – I don’t know. But I was just really – I’m starting to feel like that was really awkward.
[Appellant] Yes, I understand that, mate. Look, it was awkward but did you misbehave? Yes. Did you benefit from it? You may say no but I thought you were a better person in the end and I understand that it was awkward for you but you were a girl that lacked discipline. You had no boundaries. You didn’t know where to settle yourself. And I think you’re a far better person now.
[AB] Do you think so? Because I got – because you hit me on your knee naked.
[Appellant] No, no. Not entirely.
[AB] Like butt naked.
[Appellant] It’s always hard to say isn’t it? Yes, look, I don’t know. There were times when I thought you acted such – so immature and so childish that that was one way in which to focus you to say hey, listen yes I really have been a bit silly here, I can do better and I can be smarter in the way I go about things. That was where my thinking was.”
195 Again, at a later point in the conversation:
“[AB] Yeah, it’s just – I’m just starting to, you know, just feel weird with the whole, you know, taking my underwear off and laying there naked type of thing.
[Appellant] Yes, but remember I asked you at the time, I said, ‘Do you feel you’re being – you’ve misbehaved’ and every occasion you said, ‘Yes, I have’.”
196 And still later:
“[Appellant] … You were a naughty young girl. You weren’t 24. You’ve been acting like a 13-18 year old, okay? And a smacked bottom never hurt anybody. In fact, there’s a very famous saying in the English language – “Spare the rod and spoil [t]he child”. When they’re out of line, seriously out of line, let them know. Now, on nearly – just about every occasion I asked you if I started, I said, ‘Do you think you deserve this?’ and you said you did and mostly you’ve been brilliant ever since.”
197 The appellant gave a recorded interview on 7 December 2010 which was played to the Court in which he generally denied any inappropriate conduct with the complainant. He specifically denied the conduct which constituted the first, third and ninth incidents which, through his defending officer, he subsequently admitted had occurred. The appellant described the allegations to the investigators as a figment of the complainant’s imagination. When the interviewers played to the appellant the iPhone recorded conversation the appellant maintained that what was important was the conversation immediately before the recording commenced:
“Five minutes before that she had basically said that ‘I’m going to say that you punished me because my resignation is not happening as quickly as I can and that might help me get out quickly. I’ve got a good rapport with the psychologist and this will help me’. And so I said, ‘Okay. This is you fantasising again. Don’t do it. You’re going to cause trouble.”
198 In his closing address the defending officer accepted that lies were told by the appellant but contended that it was due to panic rather than any consciousness of guilt. This was because he had engaged not only in reprehensible conduct as a member of the Australian Defence Force, but also without morality as a married man with daughters. The defending officer suggested that it could be inferred that the complainant was turning around their relationship for her own advantage and to his detriment.
199 Notwithstanding those submissions, the lies told by the appellant did support a consciousness of guilt that the charged conduct did occur.
200 The iPhone recorded conversation was relevant to and supported the want of consent and abuse of authority.
201 The thrust of the defence case was that the complainant was manipulating the appellant to further her own career prospects both in the Navy and in smoothing her transition from the Navy into an advantageous position in the private sector. The evidence, however, also supported the inference that the appellant manipulated the complainant who experienced difficulties in fitting in in the ship’s company by lending her a sympathetic ear with respect to her personal problems. He gave her other personal assistance well beyond that which a superior in their respective positions would do without some other motive.
202 It was put to the complainant that she had received training about dealing with abuse of authority and how to make a complaint and there was delay in complaining in that she did not do so until after she had returned from her visit home to her family in the Philippines. It was suggested to her that she only complained after the appellant was posted elsewhere and could no longer be of use to her. However, the delay was also consistent with the complainant no longer being under the appellant’s control.
203 There was also the evidence of the material found on the service computer assigned to the appellant which he had attempted to destroy. It showed that he had an interest in pornographic images which involved smacking on the buttocks for sexual gratification. This pointed to a strong motive for him to engage in the conduct about which there was complaint.
204 On a review of the whole of the evidence we do not entertain any reasonable doubt that it was open to the panel to conclude to the requisite standard that the appellant was guilty of the offences with which he was charged and found guilty.
96 It is the function of a court of criminal appeal to determine whether a jury verdict is unsafe or unreasonable by undertaking an independent examination of all the evidence to determine whether the verdict was reasonably open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused. As has already been said, that is not the function of this Court in an appeal under s 52 of the Appeals Act.
97 No error on a question of law has been identified under this ground. Whether a verdict is unsafe or unsatisfactory depends on whether an independent examination of the evidence establishes that it was open to the Panel to be satisfied of the guilt of the applicant beyond doubt. The Tribunal applied this test.
98 The Tribunal’s review of the evidence set out in the passages cited earlier under this heading could not be said to be anything other than a thorough independent assessment.
99 That the Tribunal did indeed conduct a thorough review of the evidence is also confirmed by the reference to the reasoning which led it to quash Count 22. The Tribunal said at Reasons [206]-[212]:
206 Under this ground the appellant contends that his conviction under Charge 22 was unreasonable and/or could not be supported by the evidence.
207 The details of this charge and the complainant’s evidence relating to it have been set out in dealing with ground 8 (above at [176] – [179]).
208 In his address to the Court the prosecutor said little about Charge 22. What he did say was that:
“If it was a stand-alone charge without anything else, I concede you would have perhaps some difficulty in reconciling was that an indecent act, was it perhaps unacceptable behaviour, but does it get to a level of a sexual offence. He’s admitted that conduct.”
209 In our view the complainant’s evidence does not support the prosecution case that the appellant committed an offence under s 60(1) of the Crimes Act. The evidence supports the appellant’s claim that all that he did was to offer comfort to the complainant by hugging her and, in doing so, placed his hand on her buttocks. Noticeably absent was any conduct that could support the prosecution claim that any indecency attended the appellant’s action.
210 This ground should be upheld. The conviction on Charge 22 should be quashed.
211 Charge 23 was laid as an alternative to Charge 22. It alleged that, by reason of the same conduct, the appellant had acted in a manner likely to prejudice the discipline of HMAS SIRIUS contrary to s 60 of the DFDA. Because of its finding that the appellant was guilty of Charge 22, the panel did not proceed to deal with Charge 23. On the hearing of the appeal the appellant conceded that it would have been open to the panel to return a verdict of guilty on Charge 23. He invited the Tribunal to make such a finding rather than to order a re trial.
212 The Tribunal considers that the evidence does support Charge 23 and that the appropriate course is to record a conviction on that charge and to sentence the appellant on that charge to a severe reprimand.
100 The Tribunal did not err in law in holding that it was open to the Panel to accept that the applicant had manipulated the complainant and that the lies told by the applicant were capable of supporting the conclusions, not only that the applicant was conscious of his guilt, but also that he was not an innocent dupe of the complainant.
101 It was open to the Tribunal to consider that the complainant’s delay in complaining about the misconduct did not support an inference that the complainant waited to do so until after the applicant was posted elsewhere (and could no longer be of use to her) and that her hesitation was explained on the footing that it was only after the applicant had been posted that the complainant was no longer under the applicant’s control.
102 It was open to the Tribunal, on the whole of the evidence, to conclude that the Panel could be satisfied to the requisite standard that the applicant was guilty of those offences for which the GCM found him guilty. As Hayne J (with whom Gleeson CJ agreed) said in Libke v The Queen (2007) 230 CLR 559 at [113], it “is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard”.
103 As to the applicant’s complaint that the Tribunal failed to refer to the significance of character evidence from two well-respected Naval Captains to the effect that the applicant was not a person who would forcibly perform indecent acts without consent, it was open to the GCM and the Tribunal to regard this evidence as of little weight, given the uncontradicted evidence of the complainant, the terms of the pretext recording and the statements made by the applicant in his record of interview by the service police. Both Captains were surprised that the applicant had engaged in the smacking activities which he admitted. Neither Captain was able to square the applicant’s admitted offence in relation to the laptop with their knowledge of him. In any event, this knowledge of the applicant was not close: one Captain had never worked directly with him and the other had never served on a ship with him.
104 In this Court the applicant’s Counsel emphasised that the complainant said that she made the pretext recording because she was concerned that she might not be believed if she complained about the applicant’s misconduct. Why that evidence should be thought to have adversely affected her credibility was not made clear. It might well have been thought to have been a reasonable precaution on her part given the disparity in rank between the applicant and her.
105 In the end, however, the complainant’s honesty and reliability were for the Panel to evaluate. The Panel had the benefit of extensive submissions from the defending officer about how suspect that credibility was together with an exhortation from the Judge Advocate to evaluate the complainant’s evidence carefully. The Tribunal concluded that there was no reason for doubting that the Panel had dutifully adhered to their task. The observations of the New South Wales Court of Criminal Appeal in RSW v R [2012] NSWCCA 13 at [34] are apposite:
In making its own assessment, this Court must however bear in mind the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and, in that regard, the jury will have had the benefit of having seen and heard witnesses: M v R (1994) 181 CLR at 493. This qualification is particularly important in relation to the fact that the jury would have seen and heard the complainant’s evidence, she being the only witness whose credit and reliability was fundamental to the prosecution case.
106 This ground of appeal should be rejected.
GROUND 4
107 Ground 4 is in the following terms:
Whether the convictions on counts one, four, six, nine, twelve and twenty upheld by the Tribunal were wrong in law resulting in a substantial miscarriage of justice (cf s 23(1)(b) and (c) of the DFDA Act) in that each of those counts were purportedly brought pursuant to the general territorial offence of s 61 of the Defence Force Discipline Act (picking up s 60 of the Crimes Act) but were not open in law, given the specific offence under s 33(c) of the DFD Act, and whether the Tribunal erred in holding ([45]-[46]) that the former offence was “materially different” to and “more serious” than the latter offence, as charged, when that was not so and when the Tribunal failed to distinguish between the charges and the offences in determining whether the offences were truly different (Ground 4(a) of the Further Amended Notice of Appeal to the DFDAT).
108 In a pre-trial ruling, the Judge Advocate dealt with a submission by the defending officer that it was not open to the prosecutor to charge the applicant under s 60 of the Crimes Act because the prosecutor had the option of laying charges against the applicant under the equivalent s 33(c) of the Discipline Act. This submission was said to be based on the decisions of Saraswati v The Queen (1991) 172 CLR 1 (Saraswati) and Hoffman. The Judge Advocate dismissed the argument on the basis that the offences created by ss 60 and 33(c) differed both in content and in seriousness.
109 The Tribunal agreed with the conclusion of the Judge Advocate. It said at Reasons [39]:
… [W]hile it is possible that the same act may constitute an offence under both s 60(1) of the Crimes Act and s 33(c) of the DFDA, the elements of the two offences are not the same. That which is indecent may not be obscene. “Indecent” is a milder term than “obscene”: see R v Stanley [1964] 2 KB 327 at 333. Thus “[o]bscenities are always indecent but all indecency is not obscene”: see Crowe v Graham (1968) 121 CLR 375 at 392 (per Windeyer J). An offence under s 33(c) can be committed if the conduct occurs within the hearing of another person but s 60(1) of the Crimes Act requires that the relevant act be performed on, or in the presence of, the victim.
110 The Tribunal distinguished the decisions of Saraswati and Hoffman which, in the submission of the defending officer, had precluded reliance on s 60 of the Crimes Act. The first distinguishing feature was that the limitation period prescribed by s 96 of the Discipline Act did not prevent the prosecutor from laying charges under either s 33(c) or s 60 of the Crimes Act. There was, therefore, no basis for suggesting that the prosecutor was resorting to s 60 in an attempt to circumvent a limitation on her power to prefer charges under s 33 of the Discipline Act, as was the case in Hoffman, where the Court applied Saraswati. The second distinguishing feature was that the elements of the offences created by s 33(c) and s 60 are materially different. Section 60 creates a more serious offence. The Tribunal said at Reasons [46]:
The [prosecutor] was not precluded from resorting to the more serious offence even if she could have chosen to lay one or more of the relevant charges under s 33(c). She was entitled to have regard to the gravity of the appellant’s conduct on each occasion. So much was recognised by the Full Court in Hoffman where Black CJ, Wilcox and Gyles JJ said (at 534) that:
Acceptance of the appellant’s argument in this case does not mean that s 61 [of the DFDA] is not to be given full force and effect where it is applicable. Whilst, in circumstances such as the present, a charge cannot be preferred pursuant to s 61 with elements identical to those of a particular charge in the earlier divisions of Pt III, if the charge laid pursuant to s 61 is truly different from (particularly if more serious than) that which might be laid pursuant to a particular earlier provision, then the fact that the conduct could have been charged pursuant to the earlier provision would be no answer, in itself, to the different charge pursuant to s 61. (Emphasis added).
111 As to the first of these distinguishing features, the applicant contends, on appeal to this Court, that the statutory time limitation was not decisive to the determination of the issues in Saraswati or Hoffman. The leading judgment for the majority in Saraswati of McHugh J (with whom Toohey J agreed) expressly indicated that it was sufficient to reach the result that the Crown was precluded from relying on one provision instead of another provision, as a matter of construction; the time bar was merely an additional consideration in support of the majority’s conclusion. Similarly, in Hoffman, the Full Court reasoned to its conclusions on the basis of inconsistencies between the general and specific offence; the time bar issue merely re-enforced a conclusion reached on other grounds.
112 With respect to the second distinguishing feature discussed by the Tribunal, the applicant asserts that neither seriousness by reference to a penalty nor specificity of location are proper bases on which to distinguish this case. That the maximum penalty for the s 61 offence is more onerous than for the s 33 offence is said to facilitate the application of the maxim that the general offence should yield to the specific. The applicant cites Hoffman in support of his argument that s 61 of the Discipline Act should be treated as a general “catch-all” provision which should yield to the specific provisions of s 33 of that Act. There were no aggravating circumstances justifying the invocation of the catch-all provision instead of the specific offence in s 33, relevant to military discipline.
Consideration
113 In our respectful opinion, the applicant’s reliance upon the decisions in Saraswati and Hoffman is misconceived. These decisions afford no support for the proposition that the prosecutor was precluded from laying a charge against the applicant under s 60 of the Crimes Act because a charge could have been laid under s 33(a) and (c) of the Discipline Act.
114 First, there is no question in this case of a prosecutor seeking to circumvent an otherwise applicable limitation provision. Even if, as the applicant contends, the time bar was not itself decisive to the determination of the issues in Saraswati, it is apparent from McHugh J’s reasoning, that the limitation provision influenced his conclusion. His Honour said at 23:
Two considerations persuade me that in the present case "the ordinary meaning" of the words "act of indecency" in s 61E(2) is not their literal meaning. The first is that, when one has regard to the history of s 61E(2), it is clear that the purpose of Parliament in enacting s 76A, the predecessor of s 61E(2), was to deal with cases
which did not constitute indecent assaults. The second is the rule that, when a statute specifically deals with a matter and makes it the subject of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation.
115 Secondly, the conduct in issue in this case was not such as to give rise to the application of overlapping general and specific offence provisions. While the applicant’s conduct might constitute an offence under both s 60 of the Crimes Act and s 33(c) of the Discipline Act, the elements of the offence differ materially. Section 60 refers explicitly to the absence of consent and to mens rea on the part of the accused whereas s 33(c) makes no such reference. The applicant’s argument simply fails to come to grips with the point that the conduct at issue did not fall within both s 60 of the Crimes Act and s 33(c) of the Discipline Act. Section 33(c) of the Discipline Act requires the offending conduct to occur on service land, or a service ship, aircraft or vehicle or a public place. The conduct alleged in two of the counts against the applicant (Counts 9 and 12) occurred at the complainant’s private residence in Perth. More generally, and more importantly, s 60 of the Crimes Act requires a want of consent and knowledge or recklessness on the part of the offender. Section 33(c) of the Defence Act has no such requirement.
116 Thus in Hoffman at [40] Black CJ, Wilcox and Gyles JJ expressly said that if the charge laid pursuant to the provision picking up the general provision of the Crimes Act is “truly different from (particularly if more serious than) that which might be laid pursuant to a particular earlier provision” of the Discipline Act then “the fact that the conduct could have been charged pursuant to the earlier provision would be no answer, in itself, to the different charge” pursuant to the general provision.
117 This ground of appeal must be rejected.
GROUND 5
118 Ground 5 is in the following terms:
Whether the directions as to consent by the Judge Advocate, by their reference to s 67(1) of the Crimes Act, were wrong in law and a material irregularity in the course of the proceeding before the Court Martial; thereby resulting in a substantial miscarriage of justice and whether the Tribunal erred in failing to find that the Panel erred in giving effect to s 67(1) of the Crimes Act in that the provision constituted an impermissible interference in the determination of criminal guilt by the purported conclusive determination (upon satisfaction of the enumerated grounds in (a)-(j) as to when consent is negated, that the said provision is not picked up by s 61, or any other provision of the DFD Act (cf s 23(1)(c) of the DFDA Act; Ground 5 of the Further Amended Notice of Appeal to the DFDAT).
119 The Tribunal observed that s 67 does not purport to define what consent is; only what it is not. The Tribunal reasoned that whereas s 67(1) and (2) are concerned with the physical element of whether or not the complainant consented, s 67(3), the fault element, is concerned with the applicant’s knowledge of whether the complainant’s consent was caused by one or other of the vitiating factors. What is plain, the Tribunal observed, is that the words “without that person’s consent” in s 60(1) of the Crimes Act take their meaning, at least in part, by reference to s 67(1) and (3).
120 The Tribunal rejected the argument of the applicant that there needs to be a source of power, separate from s 61 of the Discipline Act, before s 67 of the Crimes Act is “picked up”. If s 61 of the Discipline Act picks up s 60(1) of the Crimes Act, the result is that s 67, to the extent that it gives meaning to s 60(1), applies as well.
121 The applicant argues, on appeal to this Court, that s 61 is an offence essentially referrable only to conduct. This is said to be reinforced by sub-section (5) which provides that paragraphs 1(b), 2(b) and 3(b) are strict liability offences; that is, offences for which there are no fault elements in respect of the physical elements (per s 6.1 of the Criminal Code (Cth)).
122 The elements of the offence identified in s 60 are, so the applicant submits, exhaustively “picked up” by s 61. Given the obligation found in s 132 of the Discipline Act to hear the evidence on the charge, there is no reason why s 61, or any other provision of the Discipline Act, should be construed as picking up s 67.
123 The applicant advanced a further argument to the effect that s 67 of the Crimes Act was not “picked up” because it required the Court “to find a fact, or not find a fact, in a particular way”. Specifically, it was put that s 67(2)(b) is a law that purports to direct the manner in which judicial power should be exercised and is therefore invalid on the basis of its inconsistency with the judicial independence guaranteed by Ch III of the Constitution: see Nicholas v The Queen (1998) 193 CLR 173 (Nicholas) at 187 and 236.
124 The Tribunal held that the Court was not exercising the judicial power of the Commonwealth. Accordingly, arguments based on the separation of powers doctrine in Chapter III of the Constitution have no application: Re Tracey; Ex parte Ryan (1989) 166 CLR 518 (Re Tracey).
125 The Tribunal also held that, in any event, s 67 of the Crimes Act does not require the Court to decide a fact in particular way. It merely marks out what is not meant by the concept of consent. As to s 67(3), as a matter of logic and common sense, knowledge of circumstances which negate consent means that not only was there no consent at all but that the accused knew there was no consent.
126 The applicant also re-agitates in this Court an argument put below to the effect that a provision that would offend the principles identified in Nicholas would be equally contrary to the requirements of impartiality applicable in a military court. He submits that to avoid constitutional invalidity, and pursuant to s 15A of the Acts Interpretation Act 1901(Cth), the provisions of the Discipline Act should be read down so as not to pick up s 67. The applicant relies upon the observations of Brennan CJ in Nicholas at [19]-[20]:
The finding of facts is a curial determination of the actual existence or occurrence of the acts, matters and things on which criminal liability for the offence charged depends …
[T]he duty to act impartially is inconsistent with the acceptance of instructions from the legislature to find a fact or otherwise to exercise judicial power in a particular way. A law that purports to direct the manner in which judicial power should be exercised is constitutionally invalid.
(Footnotes omitted.)
127 In this regard, the applicant argues, that it does not matter that the Panel was not exercising the judicial power of the Commonwealth.
Consideration
128 Section 61(3)(b) of the Discipline Act operates to make it an offence for a defence member to engage in conduct outside the Jervis Bay Territory if engaging in that conduct would be a Territory offence if it took place in the Jervis Bay Territory. Under s 60 of the Crimes Act it is an offence in the Jervis Bay Territory to commit an act of indecency on, or in the presence of, another person without the consent of that person and the person who commits the act knows that the other person does not consent, or is reckless as to whether that other person consents to the commission of the act. Section 67(1)(h) of the Crimes Act operates, for the purposes of s 61(3)(b) of the Discipline Act, to negate the consent of a person to the committing of an act of indecency by another person which involves, inter alia, the “abuse by the other person of his position of authority over or professional or other trust in relation to, the person”.
129 Accordingly, by reason of the operation of s 67(1)(h) of the Crimes Act, a person who committed an act of indecency on another person in circumstances where the facts referred to in s 67(1)(h) were proved to have occurred, would be guilty of an offence, being a contravention of s 60 of the Crimes Act. That offence would be a Territory offence if it took place within the Jervis Bay Territory. There is no need for any additional provision to “pick up” s 67(1)(h) of the Crimes Act.
130 That s 67(1)(h) of the Crimes Act operates in this way by virtue of s 61(3)(b) of the Discipline Act does not involve an impermissible legislative interference with the exercise of the judicial power contrary to Ch III of the Constitution. First, as Gummow and Callinan JJ explained in Hembury at [32], a GCM is not exercising the judicial power of the Commonwealth; and secondly, s 67(1)(h) of the Crimes Act is not an instruction as to what facts the GCM must or may find, or how it must or may go about finding them; it is a part of a substantive provision making certain conduct an offence. Its substantive operation is no different to what it would be if it had been enacted as an addition to s 60 of the Crimes Act by way of amplification of the circumstances in which consent does not exist for the purpose of s 60.
131 Accordingly, the observations of Brennan CJ in Nicholas at [19]-[20] on which the applicant relies have no relevance to this case.
132 We would reject Ground 5 of the amended notice of appeal.
133 Ground 6 is in the following terms:
Whether the Tribunal erred in failing to find that the Judge Advocate erred when failing to dissolve the Panel after the prosecutor’s misconduct during his closing address where (at T627-628) the prosecutor invited determination of issues and credit of witnesses by stereotype and matters of prejudicial generality not the subject of evidence, which misconduct occurred in the context of the prosecutor’s statements (at T597 & 633) that the prosecutorial team had been wondering, but could not work out, what the defence was (thereby reversing the onus of proof) and submitted that it would be wrong for the Panel to reason from an inability to work out what the defence was to the conclusion that it must have a reasonable doubt as to the appellant’s guilt (cf s 23(1)(b)(c) & (d) of the DFDA Act; Grounds 1-2 of the Further Amended Notice of Appeal to the DFDAT).
134 The prosecutor, in his final address to the Panel, referred on two occasions to his inability to work out what the defence being advanced by the applicant was. The applicant argues that this advocate’s flourish served to reverse the onus of proof of guilt. While it might have been better had the prosecutor refrained from this sort of rhetorical self-indulgence, it is inconceivable, given the directions administered by the Judge Advocate on the onus of proof, and discussed in relation to Ground 2 above, that the members of the Panel did not have a clear understanding that the prosecution bore the onus of proof. In fact, the Judge Advocate had expressly stated that the accused bore no onus on a number of occasions in her summing up prior to administering her directions. It is not apparent that applicant’s complaint was made to the Tribunal; but in any event, it is devoid of substance.
GROUND 7
135 Ground 7 is in the following terms:
Whether a material irregularity, not curable by directions, and which deprived the appellant of a fair trial (thereby procuring a substantial miscarriage of justice) resulted from the said misconduct not being unambiguously denounced by the Judge Advocate, that the direction which was given to the Panel was not (in the absence of denunciation) fairly reflective of the Judge Advocate’s reasons for rejecting the discharge application and was not otherwise the subject of appropriate direction and which resulted in [sic] (cf s 23(1)(b) & (c) of the DFDA Act; Ground 3 of the Further Amended Notice of Appeal to the DFDAT).
136 The prosecutor also made certain statements in his final address to the GCM in which he referred to a number of female members of the Navy who were mentioned in the course of the case. The prosecutor said:
… [T]his is the type of case that – of course, it’s been in the media and gives people the impression that the navy’s a misogynistic service where there’s no support for women. Mr President, ma’am, sirs, this man was undone by the strong women in the navy, who all displayed courage, integrity, loyalty, honour, honesty, in all their dealings, all of them, from Amanda Ferrell, who stood up to this man and said: ‘You should let her go’. Renee Cowling who said: ‘I will not write a fake job letter of this nature for this woman. I will not be a role player to tell her how to lie to the psychs’.
To Mel Clarke who did everything appropriately when she became aware of this. Strom Coxswain whom the supply officer didn’t get on well with and one might imagine why, to the lead investigator, Patrisha Chaplin. As much as, in my submission, the offences committed by this man bring the Navy into disrepute because of his conduct the New Generation Navy has, in my submission, stood up well because of the women in this case who did exhibit every aspect of Navy values.
And it is somewhat of an irony that that’s the way this man, in my submission, has been brought undone is by these strong women demonstrating that no, that is not the way the Navy operates. It is not a misogynistic place where women are powerless. Where women cannot get ahead where they are too afraid to stick up for themselves that there will be adverse consequences to them if they stick up for themselves.
137 The applicant’s defending officer did not immediately object to these statements. The following day, however, the defending officer made what the Judge Advocate understood to be an application to dissolve the GCM pursuant to s 125 of the Discipline Act on the basis that the prosecutor’s statements were prejudicial to the applicant.
138 The Judge Advocate accepted that the prosecutor’s comments were, in part, irrelevant, but considered that their prejudicial effect could be overcome by an appropriate direction. She ruled that:
I am of the view that the matters put by the prosecutor concerning the fact that the accused was undone by strong women in the Navy may have been inflammatory in the context of an accused who has come before this court denying all the conduct alleged against him. But in the context of the case where the defending officer has conceded that the relationship between the accused and the complainant was a relationship which should never have occurred and was antithetical to the values which naval officers, and even Defence members more generally, should adhere to, and in the circumstances where there has been an admission of at least two occasions of smacking the complainant, that such a concern does not arise.
… Although the comments made concerning the perception of a misogynistic navy are unfortunate and have introduced an irrelevancy and a potential to elicit sympathy for women in the Navy, I am of the opinion that this third panel can be properly directed at the appropriate time as to deciding the case only upon the evidence properly before it. The fact that the onus is on the prosecution to establish each element of the offence to a standard beyond reasonable doubt before they can find the accused guilty on any of the charges and not to decide this case on the basis of sympathy. I am also satisfied that the accused will continue to receive a fair trial.
139 The Judge Advocate then invited the defending officer to identify the directions which she might give to overcome any risk of irrelevant matters intruding on the GCM’s deliberations. The defending officer responded:
I think much of it is, with respect, encapsulated in the reasons that you’ve just given. The substance is I think that it’s appropriate that they should be expressly referred to the passage that you’ve quoted. They should be expressly directed to ignore it and reject it as being irrelevant and they should be of course reminded, as you’ve indicated in your reasons, that they are to base their deliberations solely upon the evidence that is before them and nothing else and not to be influenced by extraneous considerations of sympathy or otherwise.
140 The Judge Advocate gave a direction along the lines contemplated in her ruling. She drew the GCM’s attention to the prosecutor’s comment about the potentially misogynistic nature of the Navy and the media reports to that effect. She specifically directed that these comments were to be disregarded by the GCM.
141 On appeal to the Tribunal, the applicant argued that these directions were themselves inflammatory in content and tone and gave rise to a miscarriage of justice. The applicant argued that the Judge Advocate erred in failing to uphold the defending officer’s application to dissolve the GCM.
142 The Tribunal considered that the remarks of the prosecutor, which he himself had referred to as a digression, were a relatively harmless aside, occupying three paragraphs over some 37 pages of transcript of his address. On completion of the prosecutor’s address, the defending officer was offered a 20 minute adjournment which he accepted. Following this, and some short exchanges between the prosecutor and the Judge Advocate, the defending officer commenced his address to the GCM. He neither raised an objection to, nor made an application in respect of, the prosecutor’s remarks until the following day. The Tribunal treated the defending officer’s delay in making the application as an indication that he did not regard the statements as harmful to his client’s prospects of acquittal.
143 The Tribunal concluded that the Judge Advocate’s direction was sufficient to negative any prejudice to the applicant. In this regard, the Tribunal concluded at Reasons [29]-[31]:
29 In cases in which an accused is alleged to have taken sexual or other advantage of a minor prosecutors are “required to be particularly vigilant not to do anything which appeals to the prejudice or sympathy of the jury where such emotions are so easily aroused”: R v M [1991] 1 Qd R 60 at 82 (per Cooper J). Similar vigilance must be exercised by service tribunals where it is alleged that the accused has abused the trust of a subordinate or taken advantage of his or her position of authority to mistreat a subordinate.
30 The prosecutor’s comments were, in our opinion, unnecessary and unfortunate. They should not have been made. They were, however, made as an aside and were not made in a deliberate attempt to prejudice the Court against the appellant. They were not repeated or proffered as matters of particular significance. They received no implicit endorsement by the Judge Advocate in her address to the panel: cf R v Wheatley [2012] QCA 55 at [58]-[62] (per Muir JA, with whom Wilson AJA and Applegarth J agreed).
31 The Judge Advocate recognised the need to direct the Court that what had been said was irrelevant and was not to play any part in the Court’s deliberation. The panel was so directed. Her direction was apt to negative any prejudice to the appellant and to ensure that he was accorded a fair trial.
144 In this Court, the applicant contends that the comments of the prosecutor were apt to divert the Panel from the task of considering the real issue, namely whether the complainant’s consent was caused by vitiating factors by focussing on whether the modern Navy sufficiently protects the rights of female defence members.
Consideration
145 Once again it is difficult to identify the question of law which is involved in this aspect of the Tribunal’s decision. To allow the appeal on this ground would be to sanction the kind of “ingenious extraction” of an alleged error on a question of law against which the Court cautioned in Hoffman.
146 The Tribunal’s decision on this point was a discretionary judgment which turned on matters of fact and degree. In Crofts v The Queen (1996) 186 CLR 427 Toohey, Gaudron, Gummow and Kirby JJ said at 440-1:
No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading [the] transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?
147 It was open to the Tribunal to conclude that the prosecutor’s comments were a harmless digression which did not occasion significant prejudice to the applicant. In giving weight to the Judge Advocate’s assessment that any prejudice could be suitably negatived by an appropriately formulated direction, which she then gave, the Tribunal’s approach was orthodox.
148 In Gilbert v The Queen (2000) 201 CLR 414 at [32], McHugh J said:
In my respectful opinion, the fundamental assumption of the criminal jury trial requires us to proceed on the basis that the jury acted in this case on the evidence and in accordance with the trial judge’s directions and that they would have done so even if manslaughter had been left as an issue, as it should have been left. In Spratt [(1982) 8 A Crim R 361 at 372], Pidgeon J said, correctly in my opinion, “that an appellate court must proceed on the basis that the jury have understood and applied the law in reaching a true verdict”.
149 In any event, given the strength of the prosecution case to which we have already referred, we are unable to discern an error of law in the Tribunal’s inability to discern a substantial miscarriage of justice.
150 It was open to the Tribunal to reject as fanciful the applicant’s assertion that the prosecutor’s comments were likely to incline the Panel to follow some impermissible path of reasoning to their conclusion of guilt. The Tribunal, by reason of its knowledge and experience of the armed services, was well placed to conclude that the Panel was unlikely to be influenced in its deliberations by the brief digression into pious platitudes on the part of the prosecutor of which the applicant complains.
151 This ground of appeal should be rejected.
GROUND 8
152 Ground 8 is in the following terms:
Whether the Tribunal erred in failing to find that the Judge Advocate erred in law in admitting in evidence, pursuant to a discretion in s 138 of the Evidence Act, the content of a record of interview between service police and the appellant on or about 8 December 2010 which content constituted the derivative use of an illegally taped sound recording of a private conversation between the appellant and complainant, in that the Tribunal failed:
(a) to give adequate weight to the prosecution’s failure to adduce any independent evidence of legal advice to corroborate the service police’ [sic] view that the taped recording had been lawfully procured; and
(b) to take into account, as a relevant consideration that should have been taken into account the service police’[sic] deployment of the taped recording in a manner that was unfairly prejudicial to the appellant, in that service police used the illegally procured sound recording to cross-examine him as to the credibility of answers he had given earlier in the record of interview
with the result that evidence was wrongly admitted and thereby occasioned a substantial miscarriage of justice (cf s 23(1)(c) of the DFDA Act; Ground 11 of the further Amended Notice of Appeal to the DFDAT).
153 This ground arises from the admission into evidence of parts of the record of interview between the applicant and service police which referred to the covert pretext recording made by the complainant on her iPhone. It is, therefore, necessary to refer to the admission into evidence of the pretext recording itself.
154 The complainant said that she had recorded the conversation so that she would have proof that the applicant had misconducted himself towards her. The prosecution proposed to tender it as evidence at trial. The applicant objected to its admission on the ground that it had been made illegally. A voir dire was held to determine whether the recording was admissible.
155 Section 5(1) of the Surveillance Devices Act 1998 (WA) (Surveillance Devices Act) is in the following terms:
(1) Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device —
(a) to record, monitor, or listen to a private conversation to which that person is not a party; or
(b) to record a private conversation to which that person is a party.
156 Subsections (2) and (3) of s 5 of the Surveillance Devices Act are not presently material.
157 Section 138 of the Evidence Act provides:
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law:
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) …
(3) Without limiting the matters that the court may take into account under sub-section (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence … and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australia law.
158 The Judge Advocate concluded that the complainant’s recording of the conversation had contravened s 5(1) of the Surveillance Devices Act. Nonetheless, the Judge Advocate exercised her discretion to admit the recording into evidence pursuant to s 138 of the Evidence Act.
159 The Tribunal thoroughly considered the Judge Advocate’s conclusions in relation to the issues raised by s 138(3) of the Evidence Act in respect of the pretext recording. After that thorough review at Reasons [223]-[267], the Tribunal rejected the applicant’s submission that the Judge Advocate erred in the exercise of her discretion. The Tribunal concluded that there was no reason to disturb the Judge Advocate’s exercise of discretion: House v The King (1936) 55 CLR 499 (House) at 504-5.
160 As to the part of the record of interview to which objection was taken, the Tribunal held at Reasons [251] that the Judge Advocate had appropriately directed herself that it was for the prosecution to show that the desirability of admitting the portion of the record of interview with service police in which the pretext recording was referred to outweighed the undesirability of its admission.
161 The Judge Advocate identified four “additional factors” beyond those referred to in her discussion of the admissibility of the pretext recording as relevant to the exercise of her discretion. These factors were referred to by the Tribunal at Reasons [252]. They were as follows:
A. The accused’s responses to the answers given are highly probative. They provide an explanation by the accused as to the statements he made on the covert tape recording. A panel could infer that they amount to a false denial because there is evidence that there was no elaborate fantasy on the part of the complainant about being smacked. In addition, it is not in contest that the conduct alleged in relation to the first second [sic – third] and ninth incidents took place;
B. These are very serious allegations’ [sic], particularly in the service context where there has been [sic] serious allegations of abuse of authority and power;
C. The service police officers, in their evidence, both indicated that legal advice had been received in relation to the playing of the tape to the accused and that they understood that it was permissible to do so and that issues of admissibility could be resolved at the trial. The fact that the service police admit the possibility that the covert recording may not have been admissible, does not in the context, justify treating the conduct of the service police officers as improper;
D. The covert tape recording has already been admitted into evidence.
162 The Tribunal considered at Reasons [253]-[267] that those factors were relevant to determining the admissibility of the record of interview and that the Judge Advocate had not erred in exercising her discretion to admit the parts of the record of interview referring to the covert recording: House at 504-5.
163 With respect to additional factor A, the Tribunal accepted, as had the Judge Advocate, that the applicant’s denials could support a prosecution claim that the applicant’s reaction to the questioning displayed a consciousness of guilt.
164 The Tribunal did not deal with additional factor B as the applicant did not, in argument, seek to diminish the seriousness of the smacking allegations.
165 As to additional factor C, the evidence revealed that the interviewing officers were uncertain about the legality of the recording and took the view that its admissibility was a matter to be resolved at trial. The Tribunal held that this conclusion was open on the evidence that the interviewing officers had not made the recording; they were not in a position to make a legal judgment about its admissibility; they considered that the admissibility of the recording was a matter to be resolved at trial; and they proceeded on the basis that fairness required that its contents should be placed before the applicant so that he could deal with them.
166 As to additional factor D, the Tribunal found that the Judge Advocate did no more than record that the covert conversation was already in evidence. This was the same recording which had been played to the applicant on which several of the interviewing officers’ questions were based.
167 The applicant on appeal to this Court contends that the additional factors that the Tribunal took into account were considerations which were irrelevant to the exercise of the discretion to admit the record of interview.
168 The applicant contends, on appeal, that additional factor C was an irrelevant consideration in that the Judge Advocate took into account the belief of the interviewing officers that it was permissible to play the recording in circumstances where the content of the legal advice was not proven despite request.
169 Finally the applicant argues that the principal focus of his objection to the admissibility of the record of interview was not the content of the covert sound recording but the derivative use of it: i.e. the cross-examination style questions and answers that followed the playing of the sound recording in a manner that constituted an attack on the applicant’s credit. This examination undertaken by the interviewing officers is said to have had a profoundly unfair and prejudicial impact on the Panel.
Consideration
170 This last mentioned argument does not seem to have been put to the Tribunal. Accordingly, it is not apt to give rise to a question of law involved in the decision of the Tribunal within s 52 of the Appeals Act since the Tribunal was not even invited to decide that issue.
171 In any event, expressions of incredulity on the part of the interviewing police officers are unlikely to have adversely affected the applicant’s prospects of acquittal. The applicant’s answers were themselves sufficiently remarkable to cause any comment they may have elicited from the service police to pale into insignificance in the deliberations of the Panel. The applicant’s extraordinary responses to the questioning about the pretext recording was distinctly probative as tending to show a consciousness on his part that his conduct towards the complainant involved knowing manipulation of her.
172 The argument that it was irrelevant for the Judge Advocate to consider the knowledge of the service police of potential illegality in deploying the pretext recording in interviewing the applicant cannot be accepted. It was relevant to the exercise of the Judge Advocate’s discretion that this is not a case where the police deliberately flouted the law.
173 This ground of appeal should be rejected.
GROUND 9
174 Ground 9 is in the following terms:
Whether the Tribunal erred in failing to find that the service offences upon which the appellant was convicted are offences against the law of the Commonwealth being indictable offences, based on the provisions applicable to and the form of the charges signed by the Director of Military Prosecutions, to which the appellant was entitled to trial by jury under s 80 of the Constitution, regardless of whether the trial was an exercise of the judicial power of the Commonwealth, such that there was a material irregularity occasioning a substantial miscarriage of justice (cf s 23(1)(c) of the DFDA Act; Ground 12 of the Further Amended Notice of Appeal to the DFDAT).
175 Section 80 of the Constitution provides:
Trial by jury
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
176 The applicant contended before the Tribunal that the offences on which he was convicted were offences against the laws of the Commonwealth, and were, in substance, indictable offences, in respect of which he was entitled to trial by jury under s 80 of the Constitution.
177 The Tribunal rejected the applicant’s contention on the footing that decisions of the High Court establish that service members may be prosecuted for service offences (including civil criminal offences picked up through s 61 of the Discipline Act) before service tribunals on the basis that s 80 of the Constitution does not operate to require a trial by jury of such offences: Re Tracey at 545 and 570; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 480; Re Tyler; Ex parte Foley (1994) 181 CLR 18 (Re Tyler) at 28-29.
178 The first limb of the applicant’s argument in this Court is that these decisions are distinguishable, having regard to the changed nature of trial procedure whereby a statutorily-appointed Director of Military Prosecutions (DMP) institutes criminal proceedings by signing a charge sheet. This charge sheet is said to be, in substance, an indictment. It is argued that the decisions on which the Tribunal relied are distinguishable because this procedure was not considered in them.
179 The second limb of the applicant’s argument in this Court is that the history and language of s 80, as well as the principles of interpretation that deprecate the reading of words of limitation into a constitutional guarantee of individual rights, support the view that its operation is not limited to trial by a court exercising the judicial power of the Commonwealth. In particular, the words “the trial on indictment of any offence against the law of the Commonwealth” do not require “the trial on an indictment” to be by the exercise of “the judicial power of the Commonwealth”: Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 424.
Consideration
180 The first limb of the applicant’s argument is not supported by the history of s 80 explained by French CJ in R v LK (2010) 241 CLR 177 (LK) at [32]-[33]:
Andrew Inglis Clark's first draft Constitution, placed before the National Australasian Convention in Sydney in 1891, provided, inter alia, in cl 65 that "[t]he trial of all crimes cognisable by any Court established under the authority of this Act shall be by Jury". As adopted by the Convention, it became cl 11 of Ch III of the draft Constitution and relevantly followed the wording of Inglis Clark's draft save for the substitution of "indictable offences" for "crimes". There was no recorded debate about the provision. It embodied the form and substance of Art III §2, cl 3 of the United States Constitution.
An attempt at the 1898 Convention to delete the reference to trial by jury was defeated. Isaac Isaacs pointed out that the federal Parliament would not be fettered because it could, in creating an offence, “say it is not to be prosecuted by indictment, and immediately it does it is not within the protection of this clause of the Constitution”. However, the words “on indictment of any offence” were substituted on Edmund Barton’s motion for the words “of all indictable offences”. The object was to avoid limiting the power of the Commonwealth Parliament to provide that certain offences could be tried summarily.
(Footnotes omitted)
181 This passage suggests that the expectations of the framers of the Constitution discussed in this passage would be defeated if a statute which creates an offence but does not say that the offence is to be prosecuted on indictment were to be interpreted as if it did and thereby attract the operation of s 80 of the Constitution. As French CJ explained in LK at [24] the limitation on the judicial and legislative powers of the Commonwealth “is enlivened when a law of the Commonwealth provides that the trial of an offence against a law of the Commonwealth shall be on indictment.” It is to be noted that, as French CJ further explained, this condition of the engagement of s 80 of the Constitution “lies in the discretion of the Commonwealth Parliament”. It may also be noted that Gummow, Hayne, Crennan, Kiefel and Bell JJ at [88] expressed their agreement with the reasons of French CJ in this regard. When the Commonwealth Parliament passed the Discipline Act, it exercised its discretion not to provide that the trial of any offence picked up by s 61 should be on indictment.
182 As to the second limb of the applicant’s argument under this heading, the decisions of the High Court to which the Tribunal referred establish that the system of trial by GCM of a member of the defence forces established by the Discipline Act depends upon s 51(vi) of the Constitution. These decisions stand as authority for the proposition that service members may be prosecuted before service tribunals for service offences which may, by virtue of s 61 of the Discipline Act, include offences which are indictable offences under the ordinary criminal law. To accept the second limb of the applicant’s argument, it would be necessary for these decisions to be overruled. That course is not open to this Court. Even if such a course were open to this Court, the case for taking that course is not compelling.
183 In Re Tyler at 29 Brennan and Toohey JJ said:
It is clear from the judgments in Re Tracey [(1989) 166 CLR at pp 548-549, 578-579, 591, 596) and Re Nolan (1991) 172 CLR at 480] that the trial of a defence member for a service offence lies outside the judicial power of the Commonwealth and does not attract the operation of s.80.
184 The view of Brennan and Toohey JJ reflects the important consideration that, as a matter of the structure of the Constitution, s 80 is to be found in Ch III which is concerned to establish, and regulate the exercise of, the judicial power of the Commonwealth. While it is true to say, as the applicant does, that in Re Tyler at 26 Mason CJ and Dawson J expressly put their conclusion that s 80 does not apply to trial by court martial on the footing that such a trial is not a trial on indictment, there is no express disagreement, in any of the judgments of the majority Justices of the High Court in these cases, with the views of Brennan and Toohey JJ set out above. And, in any event, the view expressed by Mason CJ and Dawson J would be subverted by the invention of a doctrine that some offences are sufficiently serious that the trial of those offences are to be deemed by the judiciary, rather than the Parliament, to be trials on indictment.
185 In White v Director of Military Prosecutions (2007) 231 CLR 570, only in the dissenting judgment of Kirby J at [166]-[167] is there support for the view that s 80 is engaged in relation to trials of offences which do not involve the exercise of the judicial power of the Commonwealth.
186 Earlier in the course of the proceedings in White, Gleeson CJ dismissed as unarguable the contention that the trial of a serious offence against s 61 of the Discipline Act is within s 80 of the Constitution: see White v Director of Military Prosecutions [2006] HCA Trans 566 (11 October 2006) at 770-805. In Lane v Morrison (2009) 252 ALR 605 at [13]-[14], [19], [26] French CJ summarily dismissed a claim to the same effect.
187 For these reasons we consider that neither limb of the applicant’s argument is tenable.
188 This ground of appeal should be rejected.
CONCLUSION
189 None of the applicant’s grounds of appeal have been made out.
190 The appeal should be dismissed.
COSTS
191 The respondent sought an order that, in the event that the appeal is dismissed, the costs of the appeal should be borne by the applicant. The applicant resisted that application on the basis that the proceedings are criminal in character and conventionally orders for costs are not made in such proceedings.
192 It was not suggested that the provisions of s 52 of the Appeals Act contain an exhaustive statement of the powers of this Court on appeal. Accordingly, this Court’s general power to make an award of costs conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) is available.
193 The orders made in Hoffman at [48] confirm that it is not the practice of this Court on appeals under s 52 of the Appeals Act to make no order as to costs. Under s 43 of the Federal Court Act, the usual rule is that costs follow the event. We see no reason not to follow that approach.
194 Indeed, in addition to the usual rule, there is a further reason for making an order for costs against the applicant: much of the applicant’s argument was put in disregard of the statutory limitations on the scope of an appeal to this Court; and further, the applicant’s arguments which did raise questions of law were plainly untenable. In these circumstances, it would not be fair to impose the expense incurred by the respondent in meeting the appeal on the public purse by declining to make an order for costs in favour of the respondent.
195 We would order that the applicant pay the respondent’s costs to be taxed if not earlier agreed.
Associate:
Dated: 7 September 2012
