DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
McCabe v Chief of Army [2007] ADFDAT 4
DEFENCE – appeal against conviction by Defence Force Magistrate – failure by prosecution to call a material witness at the trial – no statement taken from the witness – witness unable to be located by Military Police – whether witness was “available” – whether Defence Force Magistrate should have given himself a Jones v Dunkel direction – whether there was a substantial miscarriage of justice – whether the Defence Force Magistrate failed to give adequate reasons for decision – whether the verdicts of guilty were unreasonable or could not be supported having regard to the evidence
HELD: 1. Witness material but not available to be called.
2. There was no requirement on the prosecutor to call the witness.
3. The Defence Force Magistrate did not err in failing to give himself a Jones v Dunkel direction.
4. The Defence Force Magistrate’s reasons for decision were adequate.
5. The verdicts were not unreasonable and could be supported having regard to the evidence.
Crimes Act 1900 (ACT), s 60(1)
Defence Force Discipline Act 1982 (Cth), s 29(1), s 60(1), s 63(1)
Defence Force Discipline Appeals Act 1955 (Cth), s 20(1)
Defence Force Discipline Rules 1985, r 16
Model Australian Bar Rules 2002, r 66B
M v The Queen (1994) 181 CLR 487; The Queen v Apostilides (1984) 154 CLR 563; Whitehorn v The Queen (1983) 152 CLR 657; applied
R v Kneebone (1999) 47 NSWLR 450; cited
Dyers v The Queen (2002) 210 CLR 285; Van Damme v Chief of Army [2002] ADFDAT 2; referred to
GARY MICHAEL McCABE v CHIEF OF ARMY
DFDAT 2 OF 2007
HEEREY J (PRESIDENT), UNDERWOOD Cj (DEPUTY PRESIDENT) & MILDREN J (Member)
4 december 2007
MELBOURNE
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IN THE defence force discipline appeal tribunal |
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DFDAT 2 OF 2007 |
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ON APPEAL FROM a defence force magistrate |
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BETWEEN: |
GARY MICHAEL McCABE Appellant
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AND: |
CHIEF OF ARMY Respondent
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MEMBERS: |
HEEREY J (PRESIDENT), UNDERWOOD Cj (DEPUTY PRESIDENT) & MILDREN J (MEMBER) |
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DATE OF ORDER: |
4 december 2007 |
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WHERE MADE: |
MELBOURNE |
THE TRIBUNAL ORDERS THAT:
1. The appeal is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE defence force discipline appeal tribunal |
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DFDAT 2 OF 2007 |
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ON APPEAL FROM A Defence Force Magistrate |
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BETWEEN: |
GARY MICHAEL McCABE Appellant
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AND: |
CHIEF OF ARMY Respondent
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MEMBERS: |
HEEREY J (PRESIDENT), UNDERWOOD Cj (DEPUTY PRESIDENT & MILDREN J (MEMBER) |
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DATE: |
4 december 2007 NOVEMBER 2007 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
THE TRIBUNAL:
1 The appellant was charged with one count of failing to comply with a general order contrary to s 29(1) of the Defence Force Discipline Act 1982 (Cth) (“the Discipline Act”) and with three counts of an act of indecency without consent contrary to s 63(1) of the Discipline Act and s 60(1) of the Crimes Act 1900 (ACT) (in its application to the Jervis Bay territory) (“the Crimes Act”). In the alternative each count charged the appellant with prejudicial conduct contrary to s 60(1) of the Discipline Act. He was tried by a Defence Force Magistrate and found guilty of the first charge (failing to comply with a general order) and the seventh charge (act of indecency without consent). The alternative counts in relation to the first and the seventh charges were not proceeded with. He was found not guilty of each of the remaining charges. He has appealed against his convictions on a number of grounds. One of those grounds was abandoned at the hearing. Some of the grounds were really particulars of the ground of appeal that the convictions were unreasonable or could not be supported having regard to the evidence.
The circumstances of the alleged offences
2 All of the alleged offences are said to have occurred on or about 14 June 2002 at Robertson Barracks, Palmerston in the Northern Territory. At the relevant time, the appellant was a corporal in the Defence Force. On Friday 14 June there was a “boozer parade” or a social function held at the so-called Torsion Bar at A Squadron 1 Armoured Regiment at the barracks. During that function an activity, described by the witnesses as an “atomic sit-up” was conducted. A number of new recruits, Trooper Evans, Trooper Jensen and Trooper (now Private) Wright, were told to line up outside of the bar and wait until invited in. There were a number of persons inside the bar, somewhere between 30 to 50, who were to witness the proceedings. Each recruit was asked to come in individually and instructed to lie down on the floor with a blindfold over his eyes and instructed to perform sit-ups. The recruits were not told what was to happen next. After performing a number of sit-ups the blindfold was released and it was alleged that the appellant’s naked backside was in a position very close to the recruit’s face. The act of indecency alleged was the exposing of his buttocks close to the face of the various soldiers without the consent of the soldier knowing that the soldier did not consent or being reckless as to whether or not he consented. The failure to comply with the general order alleged that the appellant was a workplace supervisor of Australian Defence Force Members and that he failed to take all necessary measures to eliminate and prevent unacceptable behaviour in that he participated in the initiation ceremony involving indecent behaviour contrary para 37 of Defence Instruction (General) Personnel 35-3 Discrimination, Harassment, Sexual Offences, Fraternisation and Other Unacceptable Behaviour in the Australian Defence Force of 25 March 1999.
3 It was not in dispute that the appellant attended the social function and at some time was in the Torsion Bar. So far as each of the counts of an act of indecency is concerned the issue at trial was whether or not it was the appellant who had exposed his buttocks during the course of each atomic sit-up. The prosecution alleged that not only did the appellant participate in the atomic sit-up initiation ceremony, but that he played a significant role in the organisation and conduct of that activity, including directing people into the boozer to undertake the activity. It was alleged that he took part in organising one or more members to be subject to the atomic sit-up and that he provided instruction on how to do the sit-ups. It was submitted that the appellant was the “master of ceremonies”. It was not suggested on appeal that if the prosecution properly made out these allegations the appellant was not guilty of the first charge.
4 The Crown called six witnesses, each of whom was present in the bar at the time. The accused did not give evidence and there was no record of interview tendered. The learned Defence Force Magistrate found that there was no material dispute between the witnesses as to the fact that the atomic sit-ups were performed in the manner alleged by the prosecution in respect of Troopers Evans, Wright and Jensen. The issue before the learned Defence Force Magistrate was whether the prosecution had proved that the person who placed his buttocks in the faces of the three complainants was the accused. The learned Defence Force Magistrate noted that a considerable time had passed since the alleged offences and the date of trial. He noted that there were some inconsistencies in all of the witness’ evidence with each other and sometimes when compared to statements which those witnesses had given earlier and he said that he had “directed myself along the lines of the various directions which could be applicable in sexual offences”. The learned Defence Force Magistrate said:
“I’m not going to go through them in detail, but, for example, there’s a Murray direction, and I’ll read a summary of what that it. That’s where there is only one witness asserting the commission of a crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at a verdict of guilty should be brought in. The second question is often called the Longman warning, and that is be reason of delay, it would be unsafe or dangerous to convict on the uncorroborated evidence of the complainant alone unless the Tribunal scrutinises the evidence with great care concerning the circumstances relevant to its evaluation and paying heed to the warnings and are satisfied of its truth and accuracy. The third one is known as [a] Croft’s direction, and that the absence of a complaint or a delay in the making of it, maybe taken into account in evaluating the evidence of a complainant and in determining whether to believe him or her, and that a delay in the complaint does not necessarily indicate the allegation is false and made good reasons why the victim of a sexual assault may hesitate in complaining about it.”
5 In this case there was a delay in complaining to the military police of about two and a half years. The learned Defence Force Magistrate, having analysed the evidence, found that although the evidence of Trooper Evans was credible and that he was a believable witness and consistent with the statement he made to the police in early 2005, his identification of the accused was contradicted by Trooper Faulkner and civilian witness Mr Barry, both of whom gave evidence that the perpetrator was Trooper Vigliante. The learned Defence Force Magistrate found that Mr Barry was:
“… a most believable witness, and although his evidence contained one crucial inconsistency in respect of TPR Wright, which I will return to later, I have no reason to disbelieve his identification in 2005 and today that Vigilante (sic) was the perpetrator in respect of both the incidents involving Evans and Jensen, or at least he was ‘standing over’ the two – I think that’s the terminology used - and I am making the inference that I think the person standing over the complainants with their pants down is the person who is the perpetrator of the indecent act… accordingly I am not indicating that I believe that TPR Evans is lying about CPL McCabe performing the act of indecency in his presence, but merely I cannot be satisfied beyond reasonable doubt that it was in fact McCabe and not Vigilante (sic), for example, both solely on his own corroborated evidence which is contradicted by three other witnesses including Jensen in his original statement to the MPs.”
6 The learned Defence Force Magistrate made similar findings in relation to the evidence of Trooper Evans and said that he could not be satisfied beyond reasonable doubt that it was in fact the appellant and not Vigliante based solely on the uncorroborated evidence of Trooper Evans which was contradicted by the witness Barry.
7 In relation to the evidence of Trooper Wright, the learned Defence Force Magistrate found that Trooper Wright gave his evidence in a frank and matter of fact manner:
“He clearly could not remember many aspects and openly said so. He was careful to state what matters he could actually still remember and what matters he was reconstructing based on what he knew. He knew that he had shut some things out of his mind and that the only real thing which stuck in his mind was the actual incident that happened to him.”
8 He found his evidence to be honest and frank and that his evidence was consistent and reliable. The only other witness to contradict Trooper Wright was the evidence of Mr Barry. The learned Defence Force Magistrate said that Mr Barry originally made a statement to the military police in 2005 which referred to seeing Vigliante standing over three persons, namely Evans, Jensen and a Trooper Pidgeon and no reference was made to Trooper Wright in that statement. The learned Defence Force Magistrate said:
“In evidence to the Court yesterday, Mr Barry is now unsure that he saw PTE Pidgeon perform the atomic sit-up, let alone TPR Vigilante (sic) being the perpetrator. However, he now says he saw TPR Wright perform the activity with TPR Vigilante (sic) exposing his buttocks to TPR Wright. Furthermore, Mr Barry does not recall seeing any of the other soldiers performing the activity. The inconsistency in his account may simply be a mistake brought about by the lapse of time, although this inconsistency does question the reliability of his evidence.”
9 The conclusion the learned Defence Force Magistrate reached was that he was satisfied of the appellant’s guilt beyond reasonable doubt based upon the evidence of Trooper Wright and that he rejected the evidence of Mr Barry in relation to the complaint concerning Trooper Wright.
10 The evidence of Corporal Faulkner was that he recalled attending the function on that particular day and he remembered that the appellant was present. He had little memory of how the atomic sit-ups occurred and did not see anyone organising it. His evidence was that he was outside of the bar for much of the time, but at one stage he saw Trooper Evans come inside, lie on the ground is a sit-up position and then he saw Trooper Vigliante squat over the top of him and pull his pants down whilst Trooper Evans attempted to do a sit-up. He said that halfway up the sit-up Trooper Evans opened his eyes realised what was going on pushed Trooper Vigliante out of the way and walked outside the bar. He did not see any similar activity in the form of atomic sit-ups by any other complainants.
11 The evidence of Trooper Jensen was that he was outside of the bar with a group of new members of the squadron including Troopers Evans and Wright. He said that they were instructed by the appellant as to the fact that they would be called in one by one and required to do the atomic-sit-up. The explanation given made no mention of the exposed buttocks part of the prank. According to Trooper Jensen, the new members were in a group outside and were called in singly. He said that he was somewhere in the middle and although he did not remember exactly who went before him, he thought Trooper Wright may have gone in before himself. He identified the appellant as the person who exposed his buttocks. After this occurred, he said that he sat down in the bar with another trooper but did not witness what happened to Trooper Evans who came in after him. He was cross-examined about a statement he gave to the military police in 2005 in which he said that whilst he was sitting inside the bar he saw Trooper Evans come in and do the sit-up, but it was not the appellant who bared his backside it was Trooper Vigliante who bared his backside to Trooper Evans. Trooper Jensen said in evidence that notwithstanding what was in his statement, he was unable to say with certainty who was squatting over Trooper Evans.
12 The evidence of Corporal Euhus was that the appellant asked for all of the “jubes” (the newer members of the squadron) who were then in the bar to stand up and a demonstration was given by the appellant as to how this particular sit-up was to be performed. The appellant then told the jubes to go outside. Each of the jubes was called in one by one. Corporal Euhus was the last in the line waiting to go in, but he did not in fact go inside.
13 Trooper Wright said that each of the troopers went in one by one. He said that the person who exposed his buttocks to him was the appellant. The essence of his evidence was that after the appellant had exposed his buttocks, the appellant straightened up, turned and walked away from him and as he was adjusting his clothing he was able to see his face. He was unable to say who the other jubes were as he had put it out of his memory and the only thing he had a clear recollection about was what had happened to himself. Trooper Wright was unshaken in his cross-examination as to his identification of the appellant.
14 The last witness was Mr Barry who was at that time a trooper in the squadron. He said that he was present in the bar and saw troopers participate in the atomic sit-ups and that he believed that Trooper Pidgeon was also going to take part, but he was not sure if he actually ended up performing one or not. He said that he had a very good view as he was more or less in a front seat row. He gave evidence that the appellant did not participate in the demonstration, but that the appellant was “effectively the MC if you like. He was describing how it was to be performed, but… I’m quite certain he did not actually perform it”. In relation to each of Troopers Evans, Jensen and Wright he said that the person who exposed his buttocks was Trooper Vigliante. He gave evidence that Trooper Vigliante was selected “if you like, for his size, and it was thought that he would have sweatier buttocks”. In cross-examination he was asked about a conversation he had with Trooper Vigliante as to who had selected him and he said that it was the appellant. He was also taken to his statement made on 4 April 2005 in cross-examination where he said, “I recall that for all three new members Troopers Pidgeon, Evans, Jensen, Trooper Vigilante (sic) was the person who exposed his buttocks and squatted above each of them when they were attempting to do the sit-up”. He agreed there was no mention in his statement of Trooper Wright.
The failure to call Trooper Vigliante
15 The prosecution did not call Trooper Vigliante to give evidence and although there were a number of other witnesses present in the bar none of those witnesses were called to give evidence either. No particular point was made by counsel for the appellant about the absence of the other witnesses or potential witnesses, but counsel for the accused at the trial and counsel for the appellant at the appeal submitted that Trooper Vigliante should have been called and that the failure to call him was a matter which ought to have been taken into account in deciding whether or not to convict.
16 It is well established that it is a matter for the prosecution to decide which witnesses the prosecution intends to call. The learned Defence Force Magistrate was not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call Trooper Vigliante, but he may do so: see The Queen v Apostilides (1984) 154 CLR 563 at 575. In this case, the learned Defence Force Magistrate did ask the prosecutor why he was not being called and he gave the reason that Trooper Vigliante had been discharged from the Army some time ago and that despite attempts to locate him the service police were not able to do so and therefore he was not reasonably available to participate in the proceedings. After the close of both the prosecution and defence cases, junior counsel for the appellant told the learned Defence Force Magistrate that during the adjournment for lunch she had gone to the coxswain’s office and obtained a copy of the Trooper Vigliante’s service screen contact details and obtained a telephone number which she rang. She said that she was not able to speak to him, but did receive a message bank message saying that she had contacted “Simon” which she knew to be Trooper Vigliante’s first name. This statement was given from the Bar Table without objection from the prosecutor. She said that she had also downloaded a copy of the service screen details and asked the Defence Force Magistrate not to receive it in evidence, but simply to have it marked for identification. There was no application for an adjournment made by either the prosecution or the defence. Counsel then proceeded to make their closing addresses.
17 No evidence was put before us as to what evidence Trooper Vigliante might have given had he been called as a witness nor that he has now been located. It is entirely speculative as to what he may have said. Indeed, we were told by both counsel that no statement had been taken from him.
18 In Whitehorn v The Queen (1983) 152 CLR 657 at 664-665, Deane J said:
“The observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations. Whether or not their names appear on the back of the indictment or information, all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point. All available witnesses whose names appear on the back of the indictment or information or who were called by the Crown to give evidence on any committal proceedings which preceded the trial should be called to give evidence, or, where the circumstances justify the Crown in refraining from leading evidence from such a witness, either be sworn by the Crown to enable cross-examination by the accused or, at the least, be made available to be called by the accused. Among the considerations which may justify the Crown in refraining from leading evidence from a particular witness is that the evidence which he or she would give is plainly untruthful or unreliable. If the Crown proposes to refrain from calling as a witness a person whose name appears on the back of the indictment or information, or whom it would otherwise be expected to call as a matter of course, it should communicate that fact to the accused or his lawyer a reasonable time before the commencement of the trial. If the accused seeks to be told why the Crown is refraining from calling such a witness, fairness to the accused would ordinarily require that the Crown communicate the reason or reasons.”
19 Dawson J said, at 461:
“All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses, notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court.”
20 The Model Australian Bar Rules 2002 provide:
“66B. A prosecutor must call as part of the prosecution’s case all witnesses:
(a) whose testimony is admissible and necessary for the presentation of all of the relevant circumstances;
(b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue;
(c) whose testimony or statements were used in the courts of any committal proceedings; and
(d) from whom statements have been obtained in the preparation or conduct of the prosecution’s case; unless the opponent consents to the prosecutor not calling a particular witness;
and except where:
(e) the only matter with respect to which the particular witness can give admissible evidence has been dealt with by an admission on behalf of the accused;
(f) the prosecutor believes on reasonable grounds that the administration of justice in the case would be harmed by calling a particular witness or particular witnesses to establish a particular point already adequately established by another witness or other witnesses; or
(g) the prosecutor believes on reasonable grounds that the testimony of a particular witness is plainly untruthful or is plainly unreliable by reason of the witness being in the camp of the accused;
provided that:
(h) the prosecutor must inform the opponent as soon as practicable of the identity of any witness whom the prosecutor intends not to call on any ground within (e), (f) or (g), together with the grounds on which the prosecutor has reached that decision.”
21 The relevant cases both in Australia and overseas were reviewed by the New South Wales Court of Criminal Appeal in R v Kneebone (1999) 47 NSWLR 450.
22 Rule 16 of the Defence Force Discipline Rules 1985 provides:
“(1) The prosecutor must, as soon as practicable, give to the accused person notice setting out particulars of:
(a) evidence that the prosecutor intends to present at the trial; and
(b) other evidence that is relevant to the accused person’s defence and has come to the notice of the prosecutor.
(2) Where the prosecutor decides not to call a witness to give evidence whose evidence:
(a) is contained in a written statement furnished to the accused person under rule 15; or
(b) has been notified to the accused person under subrule (1);
the prosecutor shall:
(c) if it is practicable to do so before the trial, inform the accused person:
(i) that the prosecutor does not intend to call the witness to give evidence; and
(ii) that the accused person may call the witness as a witness for the defence; or
(d) inform the accused person at the trial that the prosecutor does not intend to call the witness to give evidence but will tender the witness for cross‑examination by the accused person if the accused person so requests.”
23 Rule 16 was complied with. The prosecutor gave notice on 12 April 2007 that he intended to call five witnesses and who they were and they were the witnesses called at trial. The clear inference is that Trooper Vigliante was not on the list. As no statement had been taken from Trooper Vigliante that is not surprising given Rule 16(2).
24 We accept that Trooper Vigliante may well have been a material witness, but, as was said in Whitehorn, the prosecution can only be expected to call “all available witnesses”. Further, there is no obligation to call a witness from whom no statement has been taken. Counsel for the appellant submitted that, in view of the “evidence” that Trooper Vigliante’s contact details were available on the service screen record, the prosecutor should have personally tried to contact him. A prosecutor is ordinarily entitled to rely on those instructing him to do their best to locate a material witness, but that is not to say that a prosecutor is entitled to turn a blind eye to information which may lead to the witness being located. There is no suggestion that this occurred in this case.
25 In The Queen v Apostilides (supra) at 575, the High Court in a joint judgment said:
“A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.”
26 As their Honours pointed out at 577, it is not necessary to postulate misconduct on the part of the prosecutor as an essential condition precedent to a miscarriage of justice. The question is whether objectively perceived what the consequence of the failure to call the witness has had on the course of the trial and its outcome. It is clear that the absence of a witness for whatever reason may give rise to a conclusion that the verdict was unsafe and unsatisfactory.
27 In our opinion, that has not been demonstrated here because it is entirely speculative as to what Trooper Vigliante may have said had he been called to give evidence, no statement has been taken from him and it has not been demonstrated that he was reasonably available to give evidence at the trial; nor can we assume that he is even now available to give evidence.
28 An alternative submission was made that the learned Defence Force Magistrate ought to have given himself a Jones v Dunkel direction.
29 In Dyers v The Queen (2002) 210 CLR 285 at 295 [17], Gaudron and Hayne JJ said:
“As was held in R v Apostilides, it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an enquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. Then there would be real questions about whether, and how, the jury should have given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the person. Only when those questions have been answered would further directions of the kind contemplated by Jones v Dunkel have been open and they are not questions which arise in the present matter.”
30 In this case the learned Defence Force Magistrate did ask the prosecution why Trooper Vigliante was not being called and was given a reason which plainly the Defence Force Magistrate considered to be satisfactory. After all of the evidence had been called and both parties had closed their case, junior counsel for the appellant provided information to the Defence Force Magistrate which may have suggested that Trooper Vigliante could be located. However, this was no more than a possibility. The service police enquiries, insofar as the learned Defence Force Magistrate was informed of them, might have proceeded to the same point but without locating Trooper Vigliante. In any event, there was no application by either party for the trial to be adjourned and no information was put before the learned Defence Force Magistrate as to the evidence Trooper Vigliante might be expected to give. In the circumstances, we do not think that there was a sufficient basis for the Defence Force Magistrate to instruct himself that it would have been reasonable to expect the prosecution to call Trooper Vigliante.
First ground – the conviction is unreasonable, etc
31 Section 20(1) of the Defence Force Discipline Appeals Act 1955 (Cth) (“the Appeals Act”) provides:
“Subject to this Act, a convicted person or a prescribed acquitted person may appeal to the Tribunal against his or her conviction or his or her prescribed acquittal but an appeal on the ground that is not a question of law may not be brought except by leave of the Tribunal.”
32 It is well established that an appeal on this ground requires leave as it is not a question of law but a question of fact: see M v The Queen (1994) 181 CLR 487 at 492 per Mason CJ, Deane, Dawson and Toohey JJ; Van Damme v Chief of Army [2002] ADFDAT 2 at para 8 (unreported). Notwithstanding that no formal application was made for leave to appeal, no objection was taken by Mr Gaynor for the respondent to the course suggested by the Tribunal that we hear the application as if it were an application for leave and, that if leave were to be granted, we would treat the submissions made in relation to the application for leave as the hearing of the appeal on this ground.
33 Having considered the evidence for ourselves, we consider that upon the whole of the evidence it was open to the Defence Force Magistrate to be satisfied beyond reasonable doubt that the appellant was guilty. The learned Defence Force Magistrate had the opportunity to see and hear the witnesses and clearly he was impressed by the evidence of Trooper Wright. Upon the transcript the evidence does not show discrepancies, inadequacies or lack of probative force in such a way as to lead us to conclude that, even making full allowance for the advantages enjoyed by the learned Defence Force Magistrate, there is a significant possibility that the appellant is innocent and should not have been convicted. Accordingly leave to appeal on this ground will be refused.
Failure to give proper reasons
34 Counsel for the appellant submitted that the learned Defence Force Magistrate did not take a consistent or logical approach to the evidence and failed to give adequate reasons for his findings of fact. In our opinion the reasoning of the learned Defence Force Magistrate was perfectly logical and the reasons he gave for accepting the evidence in relation to count 7 were clearly adequate. So far as count 1 is concerned, even if the learned Defence Force Magistrate had not accepted the evidence of Trooper Wright in relation to the identity of the appellant as the person who exposed his buttocks to him, there was ample evidence to support the conviction on count 1. The learned Defence Force Magistrate’s finding on this topic was as follows:
“I find there is reliable and consistent evidence from a number of witnesses indicating that CPL McCabe participated in the atomic sit-up initiation ceremony which involved indecent behaviour in that he played a significant role in the organisation and conduct of that activity. The role included directing people into the boozer to undertake the activity. He took part in organising one or more members to be subject to the atomic sit-up and he provided instruction on how to do the demonstration. The evidence from Mr Barry that CPL McCabe was the MC, the master of ceremonies and he was providing the verbal description of how the event occurred is consistent with the evidence of others and indicates an involvement or participation in the initiation ceremony, namely the atomic sit-up activity.”
35 These findings could not be challenged and in our opinion there was no miscarriage of justice and nor was the conviction in relation to count 1 unreasonable.
Conclusion
36 The appeal must be dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Heerey (President), Chief Justice Underwood (Deputy President) and Justice Mildren (Member).
Associate:
Dated: 4 December 2007
Counsel for the Appellant: P Panayi and T Lange
Solicitor for the Appellant: Resourceslaw International
Counsel for the Respondent: J Gaynor and J Streit
Solicitor for the Respondent: Office of the Director of Military Prosecutions
Date of Hearing: 9 November 2007
Date of Judgment: 4 December 2007