CATCHWORDS

ADMINISTRATIVE LAW - judicial review - whether the making of findings and recommendations by an Investigating Officer under the Defence (Inquiry) Regulations involved decisions within the Administrative Decisions (Judicial Review) Act 1977 - whether, if not, the principle of Luu v. Renevier (1989) 91 ALR 39 at 49-50 was applicable to proceedings under s. 39B of the Judiciary Act 1903 - whether decisions were relevantly unreasonable - circumstances in which decision-maker was bound to seek further information - whether decision of an expert tribunal dealing with the same question was a matter decision-maker was bound to take into account - whether acceptance of resignation of Air Force officer could be revoked - whether decision was affected by bias.

CRIMINAL LAW - nature of consent in sexual assault charge - nature of the mens rea involved - effect of drunkenness of the party alleged to have been assaulted.

EVIDENCE  )

PRIVILEGE) - privilege against self-incrimination - effect of claiming - whether the fact that privilege had been claimed was improperly taken into account against the witness - requirement of law that proof in a civil proceeding of an act amounting to a criminal offence be clear and cogent.

Administrative Decisions (Judicial Review) Act 1977

Judiciary Act 1903, s. 39B

Defence Force Discipline Act 1982, s. 61

Defence (Inquiry) Regulations, regs. 50, 69, 70-75 and 78

Air Force Regulations, reg. 73

"X" v. McDermott (1994) 51 FCR 1

Dolan v. Australian and Overseas Telecommunications

  Corporation (1993) 42 FCR 206

Pappas v. New World Oil Developments Pty Limited (1993) 43 FCR

  594

Svikart v. Stewart (1994) 69 ALJR 35

McMaster v. The Queen, 21 March 1994, Court of Criminal Appeal

  of the Northern Territory, Thomas and Priestley JJ. and

  Gray A.J.

R v. Francis [1993] 2 Qd R 300

R v. Lambert [1919] VLR 205

Regina v. Linekar [1995] 2 WLR 237

R v. Bonora (1994) 35 NSWLR 74

Papadimitropoulos v. The Queen (1956) 98 CLR 249

Briginshaw v. Briginshaw (1938) 60 CLR 336

Neat Holdings Pty Ltd v. Karajan Holdings Pty Ltd (1992) 67

  ALJR 170

Luu v. Renevier (1989) 91 ALR 39

Teoh v. Minister for Immigration and Ethnic Affairs (1994) 49

  FCR 409

Associated Provincial Picture Houses Ltd v. Wednesbury

  Corporation [1948] 1 KB 223

Fuduche v. Minister for Immigration, Local Government and

  Ethnic Affairs (1993) 45 FCR 515

Raru v. Minister for Immigration, Local Government and Ethnic

  Affairs (1993) 46 FCR 453

Laws v. Australian Broadcasting Tribunal (1990) 170 CLR 70

Vakauta v. Kelly (1989) 167 CLR 568

Minister for Immigration, Local Government and Ethnic Affairs

  v. Mok Gek Bouy (1994) 127 ALR 223

General Medical Council v. Spackman [1943] AC 627

C v. T and OTHERS

DG 8 of 1994

Coram: Burchett J.

Place of Hearing: Darwin

Place of Judgment: Sydney

Date: 6 July 1995

IN THE FEDERAL COURT OF AUSTRALIA  )

                                    )

NORTHERN TERRITORY DISTRICT REGISTRY )DG 8 of 1994

                                    )

GENERAL DIVISION                    )

           BETWEEN:     C

                             Applicant

               AND:     T and OTHERS

                             Respondents

CORAM: Burchett J.

PLACE OF HEARING: Darwin

PLACE OF JUDGMENT: Sydney

DATE : 6 July 1995

                     ORDERS OF THE COURT

     THE COURT ORDERS THAT the applicant file and serve within 14 days short minutes of appropriate orders to reflect the reasons of the Court, and that the respondents file and serve within a further 14 days a document setting out any alternative form of orders for which they may contend.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  )

                                    )

NORTHERN TERRITORY DISTRICT REGISTRY )DG 8 of 1994

                                    )

GENERAL DIVISION                    )

           BETWEEN:     C

                             Applicant

               AND:     T and OTHERS

                             Respondents

CORAM: Burchett J.

PLACE OF HEARING: Darwin

PLACE OF JUDGMENT: Sydney

DATE : 6 July 1995

                    REASONS FOR JUDGMENT

BURCHETT J.:

     Lord Byron's famous evocation of the Battle of Waterloo in Childe Harold's Pilgrimage begins with the lines about the ball in Brussels -

    "On with the dance! Let joy be unconfined;

     No sleep till morn, when Youth and Pleasure meet

     To chase the glowing hours with flying feet ..."

This case also begins with a ball - the Officers Mess Ball at Tindal Air Force Base in the Northern Territory, held on the evening of Saturday 2 October and the morning of Sunday 3 October 1993.  But the evidence has less to do with the dance floor than with the bars.  For a number of those taking part, it appears to have been a night of heavy drinking.  The doings of three of them became the subject of two successive Royal Australian Air Force investigations, a hearing in the Medical Practitioners' Disciplinary Tribunal of the Northern Territory presided over by a Supreme Court Judge, a complaint to a senior officer of the Northern Territory police, and a referral to the Director of Public Prosecutions of the Northern Territory.  The report and recommendations resulting from the second of the Royal Australian Air Force investigations have now been brought before me for judicial review under the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") and s. 39B of the Judiciary Act 1903. 

     The report of the investigator, Squadron Leader Twigg, which is attacked on a number of grounds, deals with some very grave allegations, and makes very grave findings against the applicant.  It is only fair to him to add that the most serious of these findings is contrary to the conclusions reached by the previous investigator, the Medical Practitioners' Disciplinary Tribunal, the police and the Director of Public Prosecutions.  They saw no sufficient basis for the finding made by Squadron Leader Twigg - that the applicant, a young medical practitioner serving in the Royal Australian Air Force who has been referred to in these proceedings as Flight Lieutenant C, planned and committed a sexual assault, or in plain English a rape, upon a female officer, referred to as Flight Lieutenant M. 

     In order to understand the questions of law which have been raised in relation to the investigator's report, it is necessary to recount briefly the events that gave rise to it.  The ball was attended by both Flight Lieutenant M and her husband (he will be referred to as Wing Commander M, and I shall on occasion refer to them jointly as "the complainants"), but by reason of the considerable disparity between them in age and rank, after some time they joined different groups, and were not from then together at all.  It has not been suggested that this was because of any rift in their relationship.  They were a newly married couple, since only the previous March, and were planning to commence a family.  The applicant, who had been at football practice, arrived late for the ball, and it was even later, after 9.00 pm, when he joined a group of drinkers at what was called "the back bar".  He had had to go and change into his Red Sea rig (formal tropical wear involving shirt with epaulets, black trousers and cummerbund).  At the back bar, Flight Lieutenant M and the applicant were both members of a group of drinkers who, over a period of a number of hours, seem to have consumed a significant amount of alcohol.  The report of the initial investigation on behalf of the Royal Australian Air Force, carried out by Squadron Leader Butcher almost immediately after the events (it is dated 15 October 1993), makes the following finding in relation to the state of affairs as seen at 3.30 am:

    "... [the applicant] and [Flight Lieutenant M] had by approximately 0300 hours on Sunday 3 October, consumed a large quantity of alcohol and were visibly intoxicated.  Likewise the other members of the group at the back bar were also reasonably intoxicated."

Squadron Leader Twigg, who made some quite censorious comments about Squadron Leader Butcher's investigation, does not suggest that there was any shortage of evidence to support this finding.  (Indeed his criticisms of Squadron Leader Butcher are concerned with that officer's preliminary assessment of the situation, said to have created a bias [but see Laws v. Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100] and his ultimate conclusions on the issue whether the conduct of Flight Lieutenant M and the applicant was consensual - not with his intermediate findings of fact.)  Squadron Leader Twigg simply notes that the group "indulged in some drinking and horseplay [sic] at the back bar", that there were "some smutty comments ... made", and that the conversation was "in the spirit of the night".  He also notes that "at about this time" Flight Lieutenant M, "as she later testified, ceased to have any memory of what occurred thereafter", a claim the truth of which, of course, he had to consider.  If it was true, and unless her condition was induced by something other than alcohol, such a blackout argues a serious degree of intoxication. 

     Squadron Leader Butcher had reported that "at some time between 0330 and 0400 hours, [the applicant and Flight Lieutenant M] left the back bar area and proceeded to the staff drinks being held outside the back of the Officers Mess
adjacent to the kitchen area", where "there were a number of people at the staff drinks including Mess Staff and Officers".  He reported that they "sat together at the staff drinks and engaged in close conversation, kissing and other forms of intimate contact".  As to this, Squadron Leader Twigg says:

    "At about 0330 hours on Sunday 3 Oct 93, [the applicant] went around behind the mess to the staff entrance, where the staff were having some drinks of their own.  Some time later, [Flight Lieutenant M] also went to this staff gathering where apparently [the applicant] and she, amongst other things, sat close together, talked quietly and, according to some reports kissed each other."

As Flight Lieutenant M said she would not "have indulged in any such activity" when in her right mind, Squadron Leader Twigg concluded she "had already been substantially disinhibited by alcohol and/or a drug".  Although the reference to kissing is qualified by the words "according to some reports", the conclusion of disinhibition can hardly be seen as rejecting the independent evidence of uninhibited conduct, which seems to have been accepted, as it had been by Squadron Leader Butcher.  There does not appear to have been any evidence to the contrary.  Certainly, no alternative account of the night's doings that led up to the ultimate denouement was offered by Squadron Leader Twigg.  In another part of his report, he describes Flight Lieutenant M as having "put on the display at staff drinks as was seen".

     The next event, which Squadron Leader Butcher had reported occurred between 4.00 am and 4.30 am, is not related
by the second investigator to any particular time.  He simply says:

    "Some time later, [the applicant] left staff drinks and then proceeded in an anti-clockwise direction, going behind the eastern wall of the Mess, out of sight of the staff drinks, where he intended to urinate.  At some stage thereafter, [Flight Lieutenant M] also went in the same direction and appears to have joined him and the pair stayed there, according to [the applicant], until the sun rose."

That appears to have been, according to the report of Squadron Leader Butcher, "at some time between 0600 and 0620".  Both reports make it clear that the parties embraced, kissed, and indulged in intimate fondling in private in what was perhaps a garden area.  During this period, a light halter strap which supported Flight Lieutenant M's ball dress became broken, and her breasts were exposed.

     It will have been observed that the applicant left the area of the staff drinks alone, as he had previously left the back bar, and that on each occasion Flight Lieutenant M followed him later.  These were specific findings.  Other evidence not specifically reflected in Squadron Leader Twigg's account (but it was not suggested that there was any contradictory evidence) was to the effect that it was Flight Lieutenant M, and not the applicant, who had initiated the intimate contacts that had taken place during the night's drinking.

     Early in the morning (Squadron Leader Butcher reported "at some time between 0600 and 0620", but again Squadron Leader Twigg does not provide an indication of the time), the applicant decided to return to the room in which he was accommodated at the base.  Flight Lieutenant M accompanied him.  As the door was locked and the applicant did not have his key, he climbed in through the window, and then let Flight Lieutenant M in.  According to the applicant's account, and it will be understood that there was no account from Flight Lieutenant M since she claimed amnesia from a time several hours earlier, they kissed and he fondled her breasts, but then he fell asleep while still fully clothed.

     It was Flight Lieutenant M's husband, the applicant says, whose knocking at the door aroused him.  That was at about 6.30 am, an approximate time which was not in dispute.  Wing Commander M had decided, some time before that, to start looking for his wife.  He was apparently told that she had been with the applicant.  As he did not know the applicant's room, he went to the room occupied for the night by the duty officer, who may have been the only completely sober person involved, a Flight Lieutenant Baker.  That happened to be next door to the room of the applicant.  Flight Lieutenant Baker says that Wing Commander M "barged" straight into his room, where he was sleeping naked in the tropical heat, demanding to know where the applicant was.  Suddenly awakened, Flight Lieutenant Baker indicated the applicant's room.  Very shortly afterwards, Wing Commander M returned to repeat his question and, on again being told the applicant's room, went to it, knocking on the door. 

     Wing Commander M confirms that he went to Flight Lieutenant Baker's room to enquire where the applicant was, but denies that he went there twice.  The point seems trivial, particularly as there is evidence that the Wing Commander was at least to some extent inebriated, and his rudely disturbed informant may have been less than clear.  However, on the basis of this conflict and of his "evidence as to times and timings", which was said to be "unbelievable and unacceptable", Squadron Leader Twigg rejected the evidence of Flight Lieutenant Baker as "unreliable and untrustworthy".  Obviously, in a judicial review matter, findings of fact, even if illogical, are for the decision-maker.  However, in the present case, an argument of bias is raised by the applicant in respect of Squadron Leader Twigg, together with an argument that he failed to take into account relevant matters, namely, the findings of the Medical Practitioners' Disciplinary Tribunal, which "unqualifiedly accept[ed] the evidence of Flight Lieutenant Baker", after having the advantage over Squadron Leader Twigg of hearing him cross-examined by counsel appearing for Wing Commander M and Flight Lieutenant M.  I therefore think it appropriate to note, at this stage, that there was nothing in Flight Lieutenant Baker's evidence "as to times and timings" which displayed inconsistency with any fact otherwise established, or which could be said to be inherently
improbable.  He did say that he did not have a watch at the time. 

     There was some delay before the applicant opened his door in response to Wing Commander M's repeated knocking.  That delay was quite lengthy according to Wing Commander M, but not according to the applicant and Flight Lieutenant Baker.  When Wing Commander M entered the room, the applicant was fully clothed and still wearing, he says, his cummerbund - a detail Wing Commander M did not deny, and independent evidence (concerning the applicant's attire very shortly afterwards) confirmed.  However, Flight Lieutenant M was naked, lying, according to the applicant, under a doona on the bed.  According to her husband, she was uncovered.  The applicant at once went out.

     The further details of what Wing Commander M observed about his wife, and what happened next, are very much in dispute.  He describes his wife, in terms suggesting she was like a zombie, and quite unresponsive, whereas the applicant says that, when they were aroused by the knocking, they spoke for a few moments about what they would do, and it was she who told him to leave it to her and go.  Wing Commander M's version of her state is most conveniently set out in his statutory declaration of 11 October 1993, which was quoted in the decision of the Medical Practitioners' Disciplinary Tribunal, as follows:

    "My wife was lying diagonally across the bed, naked.  She had a stocking around her right arm and around her neck.  She had love bites down the right hand side of her neck and down her shoulder.  The right side of her hair was wet.  The area round her mouth was very red and appeared to be badly marked.  Her legs were spread wide apart and her vagina and the inside of her thighs were obviously wet.  She was completely uncovered.  Whilst her eyes were open and directed toward me they showed absolutely no signs of life.  She made no attempts to cover herself, or to speak.  The room smelt very strongly of sex.  I walked to the edge of the bed and I could see quite clearly semen running out of her vagina."

The applicant denied that sexual intercourse had taken place between them, then or ever.

     As to what happened next, Wing Commander M says he dressed his wife with difficulty and incompletely - the zipper on her dress jammed and its strap was missing - and got her to his car, to take her home, only by supporting her.  Flight Lieutenant Baker, to the contrary, describes her walking outside quite independently, with her shoes in her hand.  According to Flight Lieutenant M herself, it was only after her husband had put her to bed at home that she came to a full consciousness of where she was and what was happening.  Of all the previous events since some stage of her drinking at the back bar, she remembered only a banging noise and a vague awareness of the presence of her husband at a time when "all I could see was black".

     Plainly, this material raised a number of questions.  Among them was whether sexual intercourse had occurred between the applicant and Flight Lieutenant M; if so, whether, having regard to her claim of amnesia, there was reason to think that this intercourse was not consensual; whether the claim of amnesia should be accepted as genuine; and, if so, its cause. They were addressed, in the first instance, by the investigation carried out by Squadron Leader Butcher, and by the inquiries of a Detective Superintendent of the Northern Territory police, although the latter, after interviewing the Wing Commander and his wife, did not think the matter warranted the taking of further steps with a view to prosecution of the applicant on any charge.  Because of complaints and allegations made by Wing Commander M, which encompassed issues far beyond those concerning the applicant and extended to the functioning of the command structure of the base and even of the Royal Australian Air Force itself, a second investigator, Group Captain P.J. McDermott, was appointed by Air Vice-Marshal Fisher, Deputy Chief of the Air Staff, on 21 December 1993.  On 10 March 1994, the instrument of appointment was amended to take account of claims for compensation under the Safety Rehabilitation and Compensation Act 1988, made by both complainants, arising out of the alleged exacerbation by the Royal Australian Air Force of the consequences of the alleged sexual assault.  Then, on 2 May 1994, Group Captain McDermott was replaced as Investigating Officer by Squadron Leader Twigg, who had previously been acting as counsel assisting, and the terms of the instrument of appointment were further amended.  While the investigation was proceeding, the Medical Practitioners' Disciplinary Tribunal hearing went ahead, and its decision was handed down on 3 June 1994.  The Tribunal was assisted by counsel, the applicant and Wing Commander M and Flight Lieutenant M being also legally represented.  The principal witnesses were called and cross-examined.  As would be expected from the nature of the Tribunal (which consisted of a Supreme Court judge and two senior doctors), it had available to it scientific and medical information to assist it in the evaluation of the claim of amnesia made by Flight Lieutenant M, in the context of her ingestion of alcohol.  There was no evidence put before the Tribunal to suggest the administration to Flight Lieutenant M of any drug other than alcohol.  The decision of the Tribunal was produced to Squadron Leader Twigg, but, strangely, it is not included in his list of "exhibits".

     At this point, I should refer to the provisions that governed Squadron Leader Twigg's investigation.  Those provisions are contained in the Defence (Inquiry) Regulations (Statutory Rules 1985 No. 114), made under the Defence Act 1903, the Naval Defence Act 1910 and the Air Force Act 1923.  The Regulations provide for the setting up of Courts of Inquiry, but they also provide for the appointment of Investigating Officers.  It was under reg. 69 of these Regulations that Squadron Leader Butcher was appointed to inquire into the events at the ball.  When the decision was made that a further inquiry was called for, it was also under reg. 69 that each of Group Captain McDermott, initially, and Squadron Leader Twigg, subsequently, was appointed "for the purpose of investigating a matter concerning the part of the Defence Force that [was] under the appointing officer's command".  By reg. 70, the instrument of appointment was required to indicate "whether or not the Investigating Officer [was] empowered to make recommendations arising from [his] findings".  In this case, he was so empowered.  Regulation 71 should also be noted; it provides: "Subject to these Regulations, the procedure to be followed by an Investigating Officer shall be as the appointing officer directs."  But the Regulations themselves do contain specific restrictions; reg. 72 requires that the inquiry not be conducted in public, and reg. 73 forbids an Investigating Officer to take evidence on oath or affirmation.  Also, by reg. 78, certain regulations relating to Courts of Inquiry are made applicable, mutatis mutandis, to investigations conducted by Investigating Officers. 

     Regulations 74 and 75 assume some importance for the purposes of this case; so I set out relevant portions of those regulations:

    "74.(1) A member of the Defence Force appearing as a witness before an Investigating Officer shall not, without reasonable excuse, refuse or fail to answer a question relevant to the inquiry put to the member by the Investigating Officer.

     Penalty:  $500 or imprisonment for 3 months.

                            . . .

     75.(1) Where an Investigating Officer is satisfied that all information relevant to the inquiry that is practicable to obtain has been obtained, the Investigating Officer shall prepare a report setting out -

     (a)  the findings of the Investigating Officer; and

     (b)  if the Investigating Officer is empowered to make recommendations - any recommendations arising from the findings of the Investigating Officer that the Investigating Officer thinks fit to make.

     (2)  The report of an Investigating Officer shall be furnished to the appointing officer.

     (3)  Where a report of an Investigating Officer is furnished under this regulation, it shall be accompanied by a copy of -

     (a)  the transcript or other record of any oral evidence taken; and

     (b)  any documents received by the officer and accepted as evidence, during the course of the inquiry."

     Among the regulations governing Courts of Inquiry, made applicable by reg. 78 to an inquiry by an Investigating Officer, is reg. 50, which provides:

    "50.  Subject to these Regulations, a Court of Inquiry -

     (a)  shall conduct its inquiry without regard to legal forms;

     (b)  is not bound by any rules of evidence; and

     (c)  may inform itself on any matter relevant to its inquiry in such manner as the Court thinks fit."

Another regulation made applicable to an inquiry by an Investigating Officer is reg. 63 which forbids, under penalty of imprisonment, the disclosure of information contained in the records or report of the inquiry, while allowing the Minister, by instrument, to authorize disclosure if he or she chooses.  Finally, reg. 65, which is also made applicable by reg. 78 to an inquiry by an Investigating Officer, provides:

    "65.(1) In this regulation, `service tribunal' has the same meaning as in the Defence Force Discipline Act 1982.

     (2)  A statement or disclosure made by a member of the Defence Force before a Court of Inquiry, being a statement or disclosure that is not an answer to which sub-section 124(2B) of the Defence Act 1903 applies, is not admissible in evidence against that person in proceedings before a service tribunal except in a prosecution for an offence against these Regulations."

     Before the Inquiry got under way, there was an application to this Court, which was heard by Sheppard J., for judicial review of certain preliminary decisions made by Group Captain McDermott.  His Honour's judgment is reported: "X" v. McDermott (1994) 51 FCR 1.  In it (at 3), Sheppard J. referred to the investigation as "being conducted by a more senior and different investigating officer from the one who conducted the first investigation".  For the avoidance of misunderstanding, it should be made clear that this was a reference to the seniority of Group Captain McDermott; Squadron Leader Twigg holds, of course, the same rank as that of the first investigator.  Sheppard J. held that decisions had been made which were amenable to review under the Judicial Review Act and the Judiciary Act.  He also held that the applicant, contrary to the argument put on behalf of the Commonwealth, would be entitled to rely, upon any questioning about the complainants' allegations, upon the privilege against self-incrimination.  Sheppard J. added (at 12-13) some comments which it is worth-while to reproduce:

          "It remains to mention one other matter which was the subject of some discussion during the argument.  It was said that the investigating officer did not propose to allow the applicant to be represented by counsel at the hearing before him.  That, of course, is entirely a matter for the investigating officer.  But reflection on his part, and on the part of those responsible for his appointment, may suggest that it may be wise for the investigating officer to be assisted by a person who is legally qualified and to allow legal representation of the applicant by an appropriate legal practitioner so long as the assistance provided by the practitioner is given in a constructive way.

          The investigation will involve serious matters.  Its outcome could have serious consequences, directly or indirectly, for the applicant and, possibly, for the complainants.  There are many questions of difficulty that may arise.  Privilege against self-incrimination is one: see, for instance, Re Intercontinental Development Corporation Pty Ltd (1975) 1 ACLR 253 and Ex parte P; Re Hamilton (1957) 74 WN (NSW) 397 at 399, both referred to in Re New World Alliance Pty Ltd; Sycotex Pty Ltd v Baseler (1993) 47 FCR 90 at 96-97.  Another matter is the duty of an investigating officer, such as the respondent here, to observe the rules of natural justice, ie to proceed fairly and regularly.  This can be an uncertain exercise even for judges.  The decision of the Privy Council in Mahon v Air New Zealand Ltd [1984] AC 808 provides an example of what can sometimes happen.

          I hope that it will be understood that I have made these comments constructively.  The important thing is for the investigation to proceed with due dispatch and to be concluded as soon as reasonably possible.  It would be quite unfortunate if the manner in which the investigation were conducted led to further applications to this Court for judicial review with the consequent delay and expense that that would involve."

     It is unfortunate that these wise counsels from a very senior judge were ignored, and the inquiry proceeded in a manner which left room for arguments of bias, denial of natural justice, and other legal errors.

     The report of the Investigating Officer is a lengthy document.  That is partly due to its dealing with numerous questions outside the matter with which I am concerned.  The central finding against the applicant is made in the following terms:

    "Since I accept WGCDR [M's] evidence that there was, when he found his wife in [C's] room, semen emanating from her vagina, I am satisfied on the balance of probabilities that FLTLT [C] has sexually penetrated FLTLT [M] either without her consent or with her consent obtained when she was not in a fit state to give it.  I am satisfied therefore, that FLTLT [C] sexually assaulted FLTLT [M] in his room at the Officers' Mess at RAAF Base, Tindal between the hours of 0400 and 0630 on Sunday 3 October 1993.  I find that this was not a consensual act between two parties capable of giving their consent.  FLTLT [M] says ... , `I believe that someone took advantage of whatever state I was in, however I got in that state, and took liberties with my body that they didn't have any right to take.'"

Lest there be any doubt what he meant by his reference to a sexual assault, Squadron Leader Twigg also wrote:

    "Unfortunately, ... many people believed that, because it was not reported to the police first but reported to the professional head of the medicos, it was therefore not rape but merely an indiscretion which could be dealt with on a professional basis."

In various parts of his report, he used the expressions "sexually assaulted" and "raped" interchangeably.

     In arriving at the conclusion that the applicant had had sexual intercourse with Flight Lieutenant M, the investigator did not discuss medical evidence that identification of semen,
so as to distinguish it from other discharges, is not easy.  More importantly, he rejected certain significant evidence given by the applicant.  He said he had told Flight Lieutenant M later on the Sunday, when she was claiming amnesia for the night's events, that, if she had any doubts, she could have herself medically examined to prove whether she had had sexual intercourse.  If the applicant, as a doctor, said this, at a time when an examination was still possible to prove the point, plainly enough, the inference can be drawn that he had nothing to hide, at least in this respect.  Squadron Leader Twigg had evidence from a Dr Black (confirmed as "absolutely correct" by a senior medical officer, Group Captain Peel) that "vaginal swabs can be taken up to 72 hours after the event" in order to prove a case of sexual assault.  This is well beyond the time in question.  However, Squadron Leader Twigg held: "I am also satisfied that [the applicant] did not at any stage suggest to [Flight Lieutenant M] that she undertake a medical examination."  He gave no reason for this finding, except that it can be inferred from the whole tone of the report, and his other findings, that he was simply not prepared in general to accept evidence offered by the applicant in his defence.

     But, in this instance, it is a matter of some concern that no reference is made to the findings of the Medical Practitioners' Disciplinary Tribunal.  That Tribunal's decision, as I have said, was placed before Squadron Leader Twigg.  It rejected the evidence of the complainants, and accepted the evidence of the applicant.  It cleared the applicant of the charge of sexual assault, and of any misconduct sufficient to warrant any penalty other than a reprimand.  (As to whether a decision involving a reprimand amounts to a finding of professional misconduct, see the learned article Proving Professional Misconduct in the Practice of Medicine or Law: Does the Common Law Test Still Apply? by C.J. Whitelaw (1995) 13 Aust Bar Rev 65.)  However, a reprimand was administered, because the applicant had engaged in the conduct which has been described, although at the instigation of Flight Lieutenant M, while she remained his patient.  The Tribunal considered he had not exploited his position as a doctor, but had been "actively pursued" by Flight Lieutenant M, and had "succumbed to temptation through a combination of drink and tiredness, and particularly to [her] blandishments and advances".  In deciding that no more than a reprimand was called for, the Tribunal noted that counsel for the Medical Board had "submitted that the case was not one for striking [the applicant] off the register or suspending him from practising for a specified period".  What is important for the present point is that the Tribunal's findings include the following:

    "When speaking to the complainant on 3 October 1993, the respondent medical practitioner squarely denied that sexual intercourse had ever taken place and suggested the complainant undertake a medical examination to confirm that this was so.  The complainant was not taking the contraceptive pill at the time and said that she feared pregnancy as a consequence of what the respondent medical practitioner had done.  However she did not undertake a medical examination as suggested, telling both the respondent medical practitioner at the time and the tribunal at the hearing, that by then - mid to late afternoon of 3 October 1993 - it was `too late'.  Whether as a medical fact it was `too late' or not, she had no reasonable ground for believing this at the time, having never sought or obtained any medical advice to that effect and it may be inferred that in reality she knew there was no need because she was, contrary to her evidence, well aware of the events of that night."

It will be observed that the language of this finding makes it quite clear that Flight Lieutenant M had herself told the Tribunal, not that the applicant had never made the suggestion he claimed to have made that she could prove the matter by having a medical examination, but that she considered it was too late for her to satisfy herself in that way. 

     An Investigating Officer is expressly not bound by the rules of evidence and may inform himself in such manner as he thinks fit.  But he is under a duty to investigate, and may not decline to inform himself.  Regulation 75 requires him to be "satisfied that all information relevant to the inquiry that is practicable to obtain has been obtained".  In my opinion, the Investigating Officer was bound to take into account the information furnished in the passage I have quoted from the decision of the Tribunal.  Indeed, there is very high authority dealing with an analogous situation.  In General Medical Council v. Spackman [1943] AC 627, the House of Lords held that the Council, a statutory tribunal not bound by the laws of evidence, which had power to strike off a doctor, had erred in accepting a Divorce Court decision as conclusive evidence of the respondent doctor's adultery with a patient.  But the House was unanimous in holding that the conclusion of
the Divorce Court (or, Viscount Simon L.C. said at 635, of a bench of magistrates, which in England might have consisted of lay persons) was prima facie evidence.  If the fact that the statutory tribunal was not bound by the laws of evidence resulted in such conclusions being available at a hearing before it of the most serious kind as prima facie evidence, a fortiori the conclusions of the Medical Practitioners' Disciplinary Tribunal were evidence in a mere inquiry, which was also not bound by the rules of evidence and could lead only to a report and recommendations.  In any case, the particular part of the Tribunal's decision I am presently discussing records what Flight Lieutenant M told the Tribunal. That, as the rule against hearsay did not apply, was evidence.

     Furthermore, if the information contained in the decision of the Tribunal left the Investigating Officer in any doubt, one thing at least must have been plain.  Flight Lieutenant M had told the Tribunal something about this particular matter of the applicant's claim to have advised her she could prove by a medical examination the truth of his assertion that he had not had sexual intercourse with her.  All that was needed to clear up any doubt whether the Tribunal had fairly represented her response, in its reasons, was to obtain a copy of the transcript of her evidence.  It is true that such a transcript would not have been available without the leave of the Tribunal.  However, Squadron Leader Twigg made no attempt to obtain that leave, which was readily obtained for the purposes of the hearing before me and, I have no doubt, would have been equally readily obtained for the purposes of Squadron Leader Twigg's investigation, had he sought it.  In any case, he was able to use yet another means of ascertaining the evidence given to the Tribunal; he could ask witnesses who were there.  And he did use this means against the applicant to find out what he had said about when the strap of Flight Lieutenant M's dress became broken.  Had he also sought (by getting the transcript or otherwise) to know what evidence the Tribunal was referring to in the passage I have quoted, he would have ascertained that Flight Lieutenant M was directly asked in cross-examination, in the Tribunal hearing, about two telephone calls she had made to the applicant "that day"  (i.e. 3 October 1993), in the second of which, she acknowledged, "Dr [C] was at pains to inform [her] that no intercourse had taken place".  The question was put:

    "Do you recall him telling you in the second telephone call, that if you were concerned, to satisfy yourself whether or not intercourse had taken place, you could undergo an examination, including a swab?"

She answered:

    "Yes, he did, but it was too late."

Pressed as to whether this was her own view, rather than a medical view, she replied: "I think so".  It is, accordingly, plain that if the investigating officer had performed his duty to obtain all information that it was practicable to obtain, he could not have rejected the applicant's claim to have challenged Flight Lieutenant M, on the very day of the alleged sexual assault, to procure medical evidence in verification of his assertion that no sexual intercourse had occurred.

     This is not the only feature of the Investigating Officer's treatment of the Medical Practitioners' Disciplinary Tribunal decision which calls for comment.  At a fairly early point in his report, he wrote:

    "Both [Wing Commander and Flight Lieutenant M] told of having been patients of [Flight Lieutenant C] at Tindal.  Indeed the NT Medical Board Disciplinary Tribunal [sic] found, and I accept, that at the time of the critical incident, [Flight Lieutenant M] was still his patient."

That is the sole reference in the report to the decision of the Tribunal.  It is extraordinary, considering the expertise of the Tribunal and the fact that it had held a hearing over a number of days during which the principal witnesses were called and cross-examined, that the Investigating Officer should have denied to the Air Vice-Marshal to whom his report was directed the benefit of all findings favourable to the applicant, while this one adverse finding was insinuated into the report.  It is the more remarkable, since the Tribunal's decision was not listed among the exhibits put before the inquiry.  In my opinion, compliance with reg. 75(1) and (3)(b) demanded that it should have been.  If it had been, the Air Vice-Marshal could have seen for himself how very contrary a view the Tribunal had taken compared with that of the
Investigating Officer.  In the clash of views as to the major issues in the case, it may seem a small point to note too that the passage I have quoted from the report refers to Wing Commander M's claim to have been a patient of the applicant's, as well as to Flight Lieutenant M's position as a patient.  While quoting the Tribunal's confirmation of her position, the report omits mention of the Tribunal's rejection of her husband's claim.  On that issue, the Medical Practitioners' Disciplinary Tribunal might have been thought the ultimate authority.  Yet the Investigating Officer's report leaves it for the reader to conclude that the applicant was recreant to professional duties owed, not only to Flight Lieutenant M, but to Wing Commander M as well.

     In her statutory declaration submitted to the Medical Board, made 11 October 1993, Flight Lieutenant M stated, inter alia:

    "This statement is in support of my husband's ... statement of 11 October 1993, in regard to events involving [the applicant] on 3 October 1993 and the basis of a complaint against [the applicant] for unprofessional conduct.  ...  I acknowledge that I drank in excess and recall socialising and drinking in the back bar with a number of people.  Dr [C] was amongst this group.  Drinks were being bought in `shouts'.  I was drinking spirits.  I do not recall being in any other location until I was conscious of a banging noise ... ."

That is a far cry from evidence, or even allegation, that the applicant had tampered with her drinks.  She also told
Squadron Leader Twigg, according to his report, in a passage detailing what she had said to Squadron Leader Butcher:

    "I completely acknowledged that ... I had drunk more than I would normally drink, but that ... I had suspicions about what had contributed to the state I was in."

But the "suspicions" were remarkably vague.  Squadron Leader Twigg, having referred to her claim of amnesia, commented: "The other person involved in the critical incident was a doctor who has relatively easy access to certain drugs which could be used."  He made the following finding:

    "FLTLT [M] had some alcoholic drinks on that evening.  She began to be affected by alcohol as the evening wore on.  It is a possibility that she may have been administered some sort of drug such as Valium (diazepam), which had an amnesic effect and obliterated her memory.  It is also possible that this was done by alcohol alone.  AIRCDRE G.G. Moller [Director-General Air Force Health Services], GPCAPT Peel and Dr Black testified as to these possibilities.  Indeed, FLTLT [M] has testified, and I believe her, that she felt some of her drinks tasted different to usual.  She also gave evidence that I accept despite, FLTLT [C's] denial, that he had once previously `spiked' her drink.  Whether her loss of memory was caused by alcohol alone or a mixture of alcohol and a drug, I do not know.  However, I am satisfied that her memory of the remainder of the evening and early morning was obliterated and that the actions that followed occurred because she had been disinhibited by alcohol either alone or in combination with some other substance.  I am further satisfied that FLTLT [C] was responsible.  This indicates some degree of planning."

     The suggestion that the applicant had planned to drug Flight Lieutenant M, either with alcohol or with some medical drug, and that he was responsible for doing so, was made notwithstanding the statement in the decision of the Medical Practitioners' Disciplinary Tribunal: "It was never suggested to [Dr C] in the witness box that he had drugged the complainant."  Squadron Leader Twigg, who did suggest it, received from the applicant a strong denial.  No one gave evidence of any suspicious action of the applicant at any time during the night's drinking. 

     The alleged prior occasion was also strongly denied by the applicant, and a third party claimed by Flight Lieutenant M to have been involved in it was asked no questions about it by the Investigating Officer.  The applicant's evidence, if untrue, would have invited rebuttal from that third party.  In any case, the allegation about this prior event amounted to no more than that the applicant had shouted Flight Lieutenant M a drink, expected by her to be a Galliano and orange, and so called when asked for, which contained vodka.  This drink, she said, had the same taste as a drink the applicant procured for her on the night of the ball.  It was not suggested he had on the earlier occasion made any amorous advances towards her or, indeed, that he had ever made any amorous advances to her on any occasion before the ball.  Nor, if the applicant did procure for Flight Lieutenant M a Galliano and orange with added vodka during the ball, could it reasonably be suggested that this would have made a significant contribution to the amount of alcohol she consumed on that occasion.  She only told the investigator that "one [Galliano and orange juice] was bought in the shout by [C]".  With this should be compared the investigator's statement that Flight Lieutenant M "has testified, and I believe her, that some of her drinks tasted different to usual" (emphasis added).  It will have been observed that her statutory declaration stated she was drinking spirits.  She claimed to be able to distinguish the taste of vodka in a Galliano and orange, so any drinks of this kind that she did consume must have been partaken of knowingly.  But, on all the material, they could have formed but a few drops in a large amount of alcohol.  Furthermore, senior counsel for the respondent conceded, at the hearing before me, that the first time Flight Lieutenant M made the allegation, that the applicant had admitted to putting some vodka in her Galliano and orange juice on some earlier occasion than the night of the ball, was on 5 July 1994.  This is so even although both complainants had given evidence in January suggesting she was drugged at the ball.

     In the absence of any direct evidence that Flight Lieutenant M's drinks at the ball were "spiked", Squadron Leader Twigg seems to have placed some weight on evidence given by her that she "thought that it was really odd that [she] didn't feel anything at all as far as a hangover [sic] goes".  She said she first thought this "at some stage through the day" (that is, the Sunday 3 October 1993).  But Wing Commander M said it was a chaplain who, on the following Tuesday, first raised the suggestion that it was peculiar his wife did not have a hang-over after she had been "supposed to have drunk all this alcohol", and had been in a stupor.  According to Wing Commander M, his response was: "Look, the thought had never even crossed my mind".  It is, of course, obvious that the whole idea of some other drug than alcohol accounting for a state of intoxication, without the normal after effects of drunkenness, is quite inconsistent with the suggestion, also seriously made in a passage I have quoted from the Investigating Officer's report, that Flight Lieutenant M's drinks had been "spiked" with vodka.  But the inconsistency is obvious because I have pointed out that the only evidence of "spiking" related to vodka; the Air Vice-Marshal to whom the report was sent would not know that, unless he combed through the more than 4,000 pages of transcript.

     It is in this situation that Squadron Leader Twigg ignored the complainants' failure, given an opportunity to cross-examine the applicant before an expert tribunal, even to raise a suggestion that he had drugged Flight Lieutenant M.  The Investigating Officer preferred to rely on her claim that after, on any view, an unusual night of drinking, culminating in a great emotional shock, she had not had a usual "hangover reaction".  Such an attitude seems plainly perverse.  The perversity is compounded by the complete absence of any evidence of any suspicious action by the applicant on the night of the ball, or any evidence of motive, such as prior infatuation with, or even slight prior attraction to, Flight Lieutenant M, in order to account for the extreme step of "planning" to drug her.

     Several times during the course of his report, the Investigating Officer made adverse comments about the "unhelpful" nature of the applicant's evidence.  He found: "I am satisfied that [the applicant] remembers far more than he was prepared to tell this Inquiry or that of SQNLDR Butcher."  He said: "FLTLT [C] was most unhelpful when interviewed by this Inquiry."  This latter comment was in the course of a recounting of the evidence concerning the vital events in the applicant's room.  That was a subject upon which the applicant had given evidence both to Squadron Leader Butcher and to the Medical Practitioners' Disciplinary Tribunal, but, while he denied that sexual relations had occurred, it was also a subject which otherwise provoked claims of privilege, in accordance with the ruling given by Sheppard J., when Squadron Leader Twigg sought to go over the same ground.  At the end of his treatment of this aspect of the matter, Squadron Leader Twigg again referred to the nature of the applicant's evidence, saying:

    "I believe little of what [the applicant] told this or SQNLDR Butcher's Inquiry.  I found his evidence to be, frankly, largely incredible.  He seemed to be making some things up as he went along.  Further, when giving his evidence, he regularly prevaricated, he was dishonest, evasive, unresponsive and unhelpful.  He often changed his ground and had resort to poor memory when it suited him.  Except where noted to the contrary, I believe little that he said."

Yet the evidence of the applicant to Squadron Leader Twigg was essentially the same, apart from the claims of privilege, as the evidence he had given to Squadron Leader Butcher, and as
the evidence which the reasons of the Medical Practitioners' Disciplinary Tribunal show that it had heard from him.

     Clearly enough, what Squadron Leader Twigg found unhelpful was the applicant's claim of privilege.  So strongly did the Investigating Officer feel about this that he referred to it in his final conclusions, making it the subject of a special recommendation "that steps be taken to have the privilege against self-incrimination removed in inquiry by Investigating Officer".  It is not at all clear to me how the legal rules governing such inquiries generally fell within the matters on which the Investigating Officer was empowered to make recommendations (see the terms of regs. 70 and 75(1)(b)).  The point is not that he did so, but that his strong feeling led him to base an unfavourable view of the applicant in part on the applicant's invocation of the privilege.  The applicant, he thought, was "most unhelpful when interviewed by this Inquiry".  In the context, I think he meant the same as the Administrative Appeals Tribunal meant by very similar comments in Dolan v. Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 at 212. 

     In Dolan (at 213), Spender J. cited the remark of Parke B. (as Lord Wensleydale then was) in Boyle v. Wiseman (1855) 10 Ex 647 at 651; 156 ER 598 at 600, who said:

    "The protection given by the statute would be of no avail, if the refusal to answer was construed into evidence of guilt."

Spender J. concluded (at 214) that "no adverse inference is to be drawn against a person by reason that the person has asserted a claim of privilege against self-incrimination".  He pointed out (at 215) that

    "since the privilege is able to be relied on if the answer might tend to incriminate, it is impermissible to draw any adverse inference, because the drawing of an adverse inference necessarily assumes that the answer would incriminate" (emphasis original).

Accordingly, his Honour held (at 216) that

    "the fact-finding process of the Tribunal has been tainted by a legal error in relation to the inference, if any, which might be drawn from a self-incrimination privilege claim.  It may be that the other bases were sufficient to reach the same conclusion, but it is not possible to say that the same conclusion would have been reached, absent the impermissible adverse inference based on the claimed privilege against self-incrimination."

I think the same reasoning requires the same conclusion in the present case.  I note that Dolan has been followed by Lee J.: Pappas v. New World Oil Developments Pty Limited (1993) 43 FCR 594.

     Squadron Leader Twigg's finding of an actual sexual assault, amounting to a rape, also raises serious legal questions.  He said, in a passage I have already quoted, "I am satisfied on the balance of probabilities that [the applicant] has sexually penetrated [Flight Lieutenant M] either without her consent or with her consent obtained when she was not in a fit state to give it.  I am satisfied therefore, that [the applicant] sexually assaulted [Flight Lieutenant M] ... ."  To reason in this way, without giving any consideration at all to the question whether Flight Lieutenant M in fact consented, whether or not her state of inebriation made her "fit" to do so, was to run counter to the clear requirements of the law.  Furthermore, it was also an error of law to find a serious crime, requiring a guilty mind, without considering whether the alleged lack of consent was known to the applicant at the time or whether, at least, he knew she might not be consenting and proceeded regardless.  The law on this subject is not in doubt.  The essential principle is the same, both under the Code of the Northern Territory (which may be applicable: Svikart v. Stewart (1994) 69 ALJR 35), and under the modified common law obtaining in New South Wales (which may also be applicable by virtue of s. 61 of the Defence Force Discipline Act 1982).  In McMaster v. The Queen (as yet unreported, 21 March 1994, Court of Criminal Appeal of the Northern Territory, Thomas and Priestley JJ. and Gray A.J.) a strong Court of Criminal Appeal held, in a judgment delivered by Gray A.J.:

    "In States where the elements of the crime of rape are governed by the common law, it is clear that it is an element of the crime that the accused intended to have sexual intercourse without consent.  This requires proof by the Crown that the appellant knew the woman was not consenting or knew she may not be consenting and proceeded regardless.  See R v Saragozza [1984] VR 187, R v McEwan (1979) 2 NSWLR 926 and R v Brown (1975) 10 SASR 139.

     This means that a jury should be directed along these lines in all cases ... .  The above authorities show that, under the common law doctrine, the belief on the accused's part that the woman is consenting need not be a reasonable belief.  What the Crown must negative is a genuine belief, whether reasonable or not. 

     In my opinion, the same result is reached in the Northern Territory by virtue of s 31(1) of the Code which provides:

         `A person is excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct.'

                            . . .

     In my opinion, s 31(1) produces the result that the prosecution must prove that it was the intention of the accused to assault the victim without his or her consent.  This involves the proposition that the accused knew that the victim was not consenting or knew that he or she may not be consenting and proceeded regardless."

     In R v. Francis [1993] 2 Qd R 300, the Court of Appeal of Queensland, which was also unanimous, decided a case where the evidence suggested consent had been induced by the excessive consumption of alcohol.  In their joint judgment, Davies J.A. and Demack J. said (at 305):

    "It is not correct as a matter of law that it is rape to have carnal knowledge of a woman who is drunk who does not resist because her submission is due to the fact that she is drunk.  The reason why it is not is that that at least includes the case where the carnal knowledge is consensual notwithstanding that the consent is induced by excessive consumption of alcohol.  The critical question in this case was whether the complainant had, by reason of sleep or a drunken stupor, been rendered incapable of deciding whether to consent or not."

See also R v. Bonora (1994) 35 NSWLR 74 at 80 and R v. Lambert [1919] VLR 205 at 213, where Cussen J., speaking for the Full Court of the Supreme Court of Victoria, quoted a dictum of Parke B. that rape was "committed by violating a woman when she is in a state of insensibility and has no power over her will ... the accused knowing at the time that she is in that state".  This is in keeping with the principle affirmed by the High Court in Papadimitropoulos v. The Queen (1956) 98 CLR 249, where Dixon C.J., McTiernan, Webb, Kitto and Taylor JJ. referred (at 255) to R v. Lambert "as to the need of the man's being aware of the absence of consent", and said (at 261):

    "To return to the central point; rape is carnal knowledge of a woman without her consent: ... such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing.  But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape."

That decision of the High Court has recently been followed by the Court of Appeal in England in Regina v. Linekar [1995] 2 WLR 237, where (at 244) it was described as a "highly persuasive authority".

     Senior counsel for the respondent endeavoured to avoid the force of the applicant's submission, based on these cases, by arguing that Squadron Leader Twigg's references to sexual assault and rape were not to be taken as literal references to infringements of the criminal law.  I find it impossible to accept this submission.  Squadron Leader Twigg used the
language of the criminal law; he criticized the Detective Superintendent of the Northern Territory Police Force for not having "taken the allegation of sexual assault too seriously"; and he recommended that the "matter be referred to the Northern Territory Director of Public Prosecutions for his consideration" - a recommendation which, it may be added, produced a formal letter from the Director advising that, after considering the transcript of the proceedings in the Medical Practitioners' Disciplinary Tribunal, he did not propose to take any action.

     I conclude that the Investigating Officer did make a finding of sexual assault, intending to find, although on the balance of probabilities, that an act constituting a serious criminal offence had occurred, but he did so in disregard of the elementary requirements of both the common law and the Northern Territory Code.  At the same time, he disregarded also the fundamental proposition laid down by Dixon J. in Briginshaw v. Briginshaw (1938) 60 CLR 336 at 362:

    "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ... ." 

As Mason C.J., Brennan, Deane and Gaudron JJ. said in Neat Holdings Pty Ltd v. Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, statements that clear, cogent or strict proof is necessary where, for example, fraud is alleged reflect

    "a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."

Far from accepting the restraint that the law requires, the Investigating Officer made his findings without any evidence at all that Flight Lieutenant M (who said she had no recollection) had not in fact consented to whatever occurred, and, although his finding is couched in terms acknowledging that she might have consented, without giving any consideration to the question whether a consent influenced by inebriation might, none the less, have been a real consent.  It is almost a supererogation to add that no consideration at all was given to the question whether, even if a consent was vitiated by inebriation, the applicant may not have genuinely believed that Flight Lieutenant M was consenting to whatever he did.

     In a passage I have quoted from his report, Squadron Leader Twigg states:

    "It is a possibility that she [Flight Lieutenant M] may have been administered some sort of drug such as Valium ... which had an amnesic effect and obliterated her memory.  It is also possible that this was done by alcohol alone."

He then added the statement that Air Commodore Moller, Group Captain Peel and Dr Black "testified as to these possibilities".  In fact, Squadron Leader Twigg himself put the suggestion quite strongly to a number of witnesses.  As might be expected, no medical witness was prepared to express, on the known facts, the opinion that any drug had been administered to Flight Lieutenant M, apart from the alcohol she drank.  In the case of Dr Black, a number of leading questions were asked, culminating in: "Is there anything that indicates to you in this particular instance, whether there may have been some sort of drug involved?" - to which the doctor responded:

    "Well, I don't think that I can really comment on that.  I'm aware that people are - that there is this problem, if you like, that she didn't seem to have a hang-over, but I didn't see her, so I can't really comment on how much of a hang-over she did or didn't have." 

Asked:

    "What sort of person or expert would be the suitable sort of person to give that sort of information?"

she said:

    "I think that someone like an anaesthetist would know a lot about drug reactions and inter-reactions.  Other than that, someone from a drug and alcohol service." 

Air Commodore Moller, who is a Senior Doctor in the Royal Australian Air Force, when asked about the possibility that a drug had been added to Flight Lieutenant M's liquor, acknowledged that he had thought about this on the basis of an
allegation "that she was more drunk ... than she perhaps should have been for the amount of alcohol she had taken", but he used the word "paranoid" in that connection.  He made it clear that he had not raised the suggestion.  He said:

    "Yes, it's possible to put something in it, yes.  I didn't make an allegation that that happened.  I think it was in response to a question that her state was seen to be worse than what should have been the case, given that, I gather, she had not drunk as much as people would have been led to have believed by her behaviour." 

Asked specifically about the effects of Valium, he made it clear that he did not think it would have a disinhibiting effect.  On the assumption that a person had taken both alcohol and Valium, he said: "The alcohol is the disinhibiting factor, I would have thought, in that situation."  The third medical practitioner mentioned by the Investigating Officer in the passage I have quoted, Group Captain Peel, also did not support the suggestion that the applicant had planned to introduce a drug into Flight Lieutenant M's drinks.  He said: "I believe the [M] incident was largely precipitated by excessive alcohol consumption", meaning, in the context, that the applicant, for his part, had acted inappropriately because of inebriation.  Group Captain Peel, to whom Wing Commander M first reported the matter at about 8.00 am on Sunday 3 October 1993 by telephone, a report that did not include any reference to semen, was pressed by Squadron Leader Twigg, at a number of separate points in his examination, as to whether the facts were such as to "ring any alarm bells in [his] mind" or that "everything was not quite right".  He said: "The only issue that was perhaps inconsistent was [Flight Lieutenant M's] state of alertness, you know, but given the story that she had been drinking heavily, I don't think again there was enough - there [were] sufficient inconsistencies to ring alarm bells."  Pressed about it again, he said that as late as the Tuesday following the incident the detail of the pantyhose had not been mentioned at all by Wing Commander M, and he repeated that alarm bells were not rung in his mind. 

     In short, the evidence of Air Commodore Moller, Group Captain Peel and Dr Black makes it difficult to understand what Squadron Leader Twigg meant by his reference to their testimony in the passage I have quoted from his report.  Another medical witness, the Senior Medical Officer at Tindal, Flight Lieutenant Kuru, when the same suggestion was put to him by Squadron Leader Twigg, said:

    "I don't believe he would have done that.  And from the transcript and the behaviour, I don't think - you know, to me it's clear that it's not that, that sort of problem."

     The advice, that specialists might better be able to comment on the inferences that Squadron Leader Twigg was seeking to draw from Flight Lieutenant M's account of her symptoms, was not taken up by him.  There was, however, some relevant lay evidence.  As to any suggestion that Flight Lieutenant M's conduct on the night of the ball was inconsistent with the effects of inebriation, Wing Commander
Hudson gave evidence that Wing Commander M had told him Flight Lieutenant M "gets horny when she's had a few drinks".  And Flight Lieutenant Fladun gave evidence that Wing Commander M, questioned about his own indulgence in liquor on the night of the ball,

    "said he was intoxicated but he has an ability to recall, in detail, events and things that happened around him when he was intoxicated.  He added to that, that [Flight Lieutenant M] is not able to, as a rule, when she does have a few drinks, to recall things that do happen."

     I accept the view, which seems to me to be implicit in the decision of Sheppard J. in "X" v. McDermott (supra), that the decisions of an Investigating Officer are amenable to review under the Judicial Review Act and the Judiciary Act.  Counsel for the respondents, while not contesting that the Judiciary Act applies, argued that there was no decision for the purposes of the Judicial Review Act, since the Investigating Officer's function was merely to report.  However, Squadron Leader Twigg was specifically authorized to make recommendations "arising from [his] findings".  It seems to me that findings which may ground recommendations of the most serious nature are decisions for the purposes of the Act.  Since it was not disputed that the Judiciary Act applies, the point may not, however, be of great significance. 

     I am satisfied that a number of errors of law occurred.  I have already found there was a fundamental failure to take account of a material consideration, namely, the decision of
the Medical Practitioners' Disciplinary Tribunal.  Within that broad failure, there was a narrower failure to take account, when making a very significant finding against the applicant, of the fact, revealed by the Tribunal's decision, that Flight Lieutenant M had conceded to the Tribunal the substance of the applicant's claim to have advised her to undertake a medical examination for the purpose of confirming that he had not had sexual intercourse with her.  This was material that had actually been made available to the investigating officer, but of which he did not take account.  Indeed, he did not even list the decision containing the material among the exhibits.

     Additionally to that, I have already drawn attention to the fact that the Investigating Officer was under a duty, by virtue of the terms of reg. 75, to obtain a copy of the transcript of the evidence before the Tribunal, which was information it was "practicable to obtain".  Senior counsel for the applicant put this point on an alternative basis.  He submitted that the decision of the Full Court in Luu v. Renevier (1989) 91 ALR 39 at 49-50, quite apart from the terms of reg. 75, would have required the Investigating Officer to follow up centrally relevant information which was readily available to him, simply by applying to the Medical Practitioners' Disciplinary Tribunal.  Senior counsel for the respondents contended that Luu is a decision under the Judicial Review Act and, consistently with his argument that my jurisdiction depends on the Judiciary Act, he submitted the decision was inapplicable.  However, the joint judgment of the Full Court makes it clear (at 50) that "[t]he underlying rationale of the approach [which it took] is that the ground of unreasonableness, in the context of the Administrative Decisions (Judicial Review) Act 1977 may be related to the manner in which power is exercised".  I do not think this means that a ground of unreasonableness may not be so related in other contexts.  After all, Luu was a case under the Judicial Review Act.  The finding of the Court (at 50) was that

    "one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained".

This proposition appeals to a ground of review which was recognised by the common law long before the enactment of the Judicial Review Act: Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 at 229-233.  In my opinion, it was unreasonable in the Wednesbury sense for the Investigating Officer, knowing of the decision of the Tribunal, to reject evidence given by the applicant as to which it was plain, on the face of the Tribunal's decision, that its transcript would be likely to throw considerable light on it, and to do so without attempting to obtain the benefit of that transcript.  So to conclude is in keeping with the proposition stated (with citation of a wealth of authority, which I omit in quoting it) by Black C.J. in Teoh v. Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 413-414:

    "Although it is in general not for the decision-maker to make out a case for someone seeking the exercise of a discretion in their favour it has been recognised that there are occasions when the adequate consideration of a relevant matter necessarily involves the making of some inquiry as to the facts ... . ...  It should also be noted that a failure by a decision-maker to obtain readily available factual material likely to be of critical importance in relation to a central issue may lead to the conclusion that a decision has been unreasonably  made ... ."

It is true that when the High Court rejected an appeal in Minister for Immigration and Ethnic Affairs v. Teoh (1995) 128 ALR 353, it did so on a different ground.  But there was no disapproval of the principle stated by Black C.J., only of its application, as is perhaps made most clear in the dissenting judgment of McHugh J. at 389.

     Furthermore, it was unreasonable in the Wednesbury sense, having regard to the applicable legal tests and the standard of satisfaction required, to reach the positive conclusions of guilt enunciated by the Investigating Officer upon the meagre material that was before him.  This was unreasonable in itself, and it also accentuated the unreasonableness of his failure to obtain further information which was readily obtainable.  In particular, the finding that the applicant "was responsible" for the disinhibition of Flight Lieutenant M "by alcohol either alone or in combination with some other substance", so as to indicate "some degree of planning", was
not open, and was made without evidence: see Fuduche v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 at 529. 

     There was also a less far reaching error of law in the report of the Investigating Officer.  He "recommend[ed] that acceptance of [the applicant's] application for resignation be revoked and that he be required to show cause why he should not be dismissed from the RAAF".  It was not in dispute, at the hearing before me, that under the applicable provisions (see reg. 73 of the Air Force Regulations) an acceptance of a resignation, which has been duly accepted, cannot be revoked.  That is in accordance with the general law of this country, and of other countries.  I discussed some of the authorities in Raru v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 46 FCR 453 at 460-461, referring, among other decisions, to the Israeli case Brandwein v. Commissioner of Gaols (1956) 10 Piskei Din 617, cited in Rubinstein, Jurisdiction and Illegality (1965) at 207.  I concluded (at 461):

    "It will be apparent from the various quotations I have made that, in widely differing contexts, the concept of the incompleteness of the effect of a notice has been held to be significant for the question whether it could be withdrawn."

Here the notice of resignation was completed by acceptance, and it was no longer possible for it to be withdrawn or its acceptance to be revoked.

     I have already held that there was error of law in Squadron Leader Twigg's perception of the effect of the applicant's claims to privilege against self-incrimination.  This error went to the root of all findings which depended on a rejection of the evidence of the applicant. 

     A number of other arguments were advanced for the applicant, but I do not think it is necessary to examine them in detail, since the conclusions I have reached are sufficient to dispose of this application.  It must be declared that the report, so far as its findings and recommendations relate to the applicant, is vitiated by fundamental errors of law. 

     One matter which should be mentioned is the applicant's argument that the refusal to allow him to have legal representation before the inquiry was a denial of natural justice.  That was plainly not the view of Sheppard J. in "X" v. McDermott (supra), although he made it clear that denials of natural justice would be apt to occur at an inquiry into such serious allegations if the person accused was not represented.  It seems to me that the Regulations do not provide a right of representation: cf. Krstic v. Australian Telecommunications Commission (1988) 20 FCR 486.  Accordingly I do not uphold this ground.

     The final ground which I shall mention was bias.  For the applicant, reliance was placed on what was said by Gaudron and
McHugh JJ. in Laws v. Australian Broadcasting Tribunal (supra) at 99-100.  In the course of that passage, their Honours said:

    "When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her."

See also Vakauta v. Kelly (1989) 167 CLR 568, and Minister for Immigration, Local Government and Ethnic Affairs v. Mok Gek Bouy (1994) 127 ALR 223.

     In my opinion, a perusal of the transcript does provide powerful support for the argument that Squadron Leader Twigg approached his task from a fixed point of view, so strongly held as to leave little prospect that evidence or persuasion would alter it.  An example is his approach to evidence from Group Captain Mouatt denying that Wing Commander M had told him "he had found his wife tied up, naked and unconscious".  The matter was of critical importance, since the disputed conversation (if it occurred) took place very shortly after Wing Commander M claimed to have found his wife in that condition.  What Group Captain Mouatt said was that Wing Commander M asserted he had "found his wife in bed with [the applicant]".  Squadron Leader Twigg, apparently unable to reject the honesty of Group Captain Mouatt's account, found: "I consider it most likely that [Wing Commander M] did, very early on that day, tell GPCAPT Mouatt that he had found his wife tied up, naked and unconscious, but that GRCAPT Mouatt simply did not absorb it."  It seems quite incredible that a witness could be held to have been told something so searingly dramatic and not to have absorbed it.  Another passage in the report which strikingly shows the Investigating Officer's attitude is the following:

    "FLTLT [C], somewhat amazingly, largely corroborates the basic thrust of [a passage in Flight Lieutenant M's evidence about asking him on the telephone what had happened and being assured sexual relations had not taken place]: he confirms that FLTLT [M] wanted to know what had happened and that he told her.  I say amazingly because it clearly supports the contention that FLTLT [M] has no memory of events and that he accepted this.  ..."

The validity of the reasoning, as far as it goes, is one thing; but the expression of amazement that the applicant should have been prepared to tell the truth is quite another.  Yet a third example is the Investigating Officer's comment about evidence the applicant, immediately after the incident, told people that both he and Flight Lieutenant M had been fully clothed when her husband found them together.  The comment put the worst possible construction on this: "I find that FLTLT [C] purposely lied to these persons about FLTLT [M's] state of dress, and, having realised that he was in trouble, was setting about trying to establish a defence for himself to the allegations that he knew would likely follow."  Not only a more generous, but a far more likely explanation, one might think, is that he was trying to spare the lady the humiliation of an excess of prurient gossip about her state of nakedness under particularly shaming circumstances.  There is ancient precedent for his acting from that motive (cf. Genesis 9:22-23), and no reason to think the most debauched young man would do otherwise.  As a defence, the lies were pointless, since the truth was never denied at the official level.

     The particular passages I have referred to are striking, but isolated, examples.  More important is the strong impression received by a perusal of a great deal of the transcript that, throughout his consideration of the matter, the Investigating Officer was pressing witnesses to take a view of the circumstances seriously damaging to the applicant.  He seemed to brush aside objections, insisting there was ground for suspicion of the applicant when witnesses were stating the contrary.  To this must be added a number of arresting passages in the report, which have been mentioned during the course of these reasons, the effect of which appears to be unfair or unreasonable towards the applicant.  The whole extraordinary treatment by the Investigating Officer of the allegation that the applicant had planned to drug Flight Lieutenant M is replete with examples.

     It is, however, a very strong thing to find bias.  The decision of the case does not require that I should come to a conclusion on this point.  I am mindful of the fact that, although the case was very capably argued on both sides, and counsel are entitled to my acknowledgment of that fact, much of the time at the hearing was taken up with other points.  I do not think that I should go the length of finding bias without a very much more detailed examination of the whole of the extremely lengthy transcript.  As far as I am concerned, it remains an open question whether such a finding would be warranted.

     The only order I shall make at this stage, except in respect of a matter I shall now mention, is to provide for the bringing in of appropriate short minutes, which are to include an order for costs in favour of the applicant.

     The outstanding matter relates to interlocutory orders which were made, until further order, at the commencement at the hearing.  I was then told that the following orders had been made by O'Loughlin J. on 25 November 1994 in a directions hearing:

     First [it was actually numbered six of a series of interlocutory orders] "The publication of the evidence, the names of the parties and the witnesses that may appear in these proceedings prohibited pursuant to s. 50 of the Federal Court of Australia Act 1976 until further order of the Court;"

     Secondly [this was numbered seven] "For all purposes, including the publication of the cause list within the Court registry and in the press and in any other respect other than the formal heading of documents in these proceedings, that these proceedings be described by the letters "C" v. "T"."

When I was informed of these orders, I emphasized that I did not think they were intended to result in the Court being closed, and I did not close it.  I continued the orders in their existing form only until further order, but I stated that I thought the prohibition went further than would ultimately be required

    "because it prohibits publication of the evidence, and some thought might have to be given to how long that should remain in that form.  The alternative would be to frame an order that was not quite so absolute but forbade publication that would reveal the identities of the parties."

I invited counsel to "give that some thought", making it clear that the order remained in that form only "at the moment".  No submission at all was put to me, suggesting that the order was not appropriate, but I was concerned that the restriction on publication of proceedings conducted in open court should not be greater than the interests of justice in this particular case absolutely required.  No further submission has been put to me on either side.

     I have since ascertained from the Court papers that a still earlier interlocutory order had been made, of which there was no mention at the hearing.  This dealt with publication of the investigating officer's report.  Having regard to the terms of  reg. 63 of the Defence (Inquiry) Regulations, it is a matter of Commonwealth law, quite apart from any Court order, that the publication of this report is restricted, although the Minister, apart from such a restraint as an injunction, may authorize its disclosure.  Whether there is any need to continue the interlocutory injunction in that regard is a matter that can be dealt with on the bringing in of the short minutes.  It may be that the delivery of this judgment, together with arrangements the parties may be able to reach, will cause this particular problem to disappear. 

     While the report is not a public document, the proceedings in the court are public.  Their openness is essential to the proper functioning of the common law system of justice, which is a fundamental part of the Australian heritage.  Accordingly, to dispel any doubt, I order that the interlocutory restrictions have no application so as to prevent the publication of any part of these reasons, and I direct that the short minutes make appropriate provision for the modification, or alternatively the termination, of the interlocutory order first made on 25 November 1994.

     I certify that this and the preceding fifty (50) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

     Associate:

     Date: 6 July 1995

     Counsel for the Applicant:        Mr G. Hiley Q.C. with Mr B.J. Cassells

     Solicitors for the Applicant:         Ward Keller

     Counsel for the Respondents:      Mr R.R.S. Tracey Q.C. with Ms J. Bonsey

     Solicitor for the Respondents:    Australian Government Solicitor

     Dates of hearing:                 21, 22, 23 and 24 March 1995