DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Thompson v Chief of Navy [2015] ADFDAT 1

THE TRIBUNAL ORDERS THAT:

1.    The time for the appellant to lodge his application for leave to appeal be extended to 27 November 2014.

2.    The appellant be granted leave, to the extent necessary, to permit him to appeal on all grounds contained in his notice of appeal.

3.    The appeal be allowed.

4.    The convictions of the appellant on Charges 1, 2 and 7 be quashed.

5.    There be a new trial.

REASONS FOR JUDGMENT

1    The appellant, Able Seaman Michael Thompson, and three other Able Seamen appeared before a General Court Martial in Sydney in September 2014. The four accused faced charges arising out of incidents which occurred aboard HMAS Newcastle off the Western Australian coast in August 2011. It was alleged that the four accused had set upon another sailor in the course of some form of initiation ritual.

2    Each of the accused faced eight charges. Those charges were:

    Forcible confinement (Charge 1);

    Engaging in an act of indecency without consent (Charge 2);

    Engaging in sexual intercourse without consent (Charge 3);

    Assault in a service ship (two counts) (Charges 4 and 5);

    Assault occasioning actual bodily harm (two counts) (Charges 6 and 7); and

    Prejudicial conduct (Charge 8).

3    Each of the accused was arraigned at the commencement of the trial. Each pleaded not guilty to all charges, save for one who pleaded guilty to one charge.

4    On the sixth day of the trial Able Seaman Thompson changed his pleas. He pleaded guilty to Charges 1, 2 and 7 pursuant to an agreement with the prosecutor under which those guilty pleas were accepted “in full satisfaction of the charges in the charge sheet.”

5    Two of Able Seaman Thompson’s co-accused maintained their pleas and were found not guilty of all charges.

6    Able Seaman Thompson has yet to be sentenced on the three charges to which he pleaded guilty.

7    He has appealed (or, as necessary, seeks leave to appeal) to this Tribunal on the ground that a substantial miscarriage of justice occurred at the trial because his pleas of guilty were induced by incorrect legal advice given by both the prosecution and his defending officers. He also contended that it would be an abuse of process for another General Court Martial to be convened to sentence him in respect of the offences of which he stood convicted.

8    Able Seaman Thompson did not commence his appeal within the time prescribed by s 21(1)(b) of the Defence Force Discipline Appeals Act 1955 (Cth). His delay was satisfactorily explained and the respondent did not oppose the application for an enlargement of time. The necessary order was made.

9    The appeal was supported by affidavits sworn by Able Seaman Thompson and his two defending officers. The respondent did not seek to challenge any of this evidence (save for certain immaterial evidentiary objections). The following account of relevant events is based on the material contained in and exhibited to these affidavits.

10    The Court Martial assembled on 15 September 2014. On the following day Able Seaman Thompson pleaded not guilty to each of the eight charges which he faced. The trial proceeded.

11    After the Court had adjourned on 19 September 2014 the prosecutor proposed that prosecuting and defence counsel should meet. They did so shortly afterwards. The prosecutor told defence counsel that, if Able Seaman Thompson was prepared to plead guilty to Charges 1, 2 and 7 on the basis that he was knowingly concerned in the offending of another and was not a principal offender, the pleas would be accepted by the prosecution in full satisfaction of the charges appearing in the Charge sheet, the charges would be withdrawn from the General Court Martial and would proceed before a Defence Force Magistrate (“DFM”) for sentencing, Charge 2 would be particularised in a way that favoured Able Seaman Thompson and the prosecution would not suggest to the DFM that imprisonment was an appropriate sentencing option. The agreement was conditional on the parties settling on a statement of agreed facts to be presented to the court.

12    Immediately after the meeting the defending officers advised Able Seaman Thompson of the prosecution’s proposals. They advised him of some of the advantages and disadvantages of him proceeding in the manner suggested by the prosecutor.

13    Able Seaman Thompson said that he wished to have time to think about the matter and to consult with his family. The defending officers then prepared an email to the prosecutor in which they confirmed what they understood to be the terms of the agreement. Those terms were recorded as:

“(a)    That [Able Seaman Thompson] plead guilty to charges 1, 2 and 7 on the basis of being knowingly concerned in the offending of another rather than as principal offender;

(b)    That a guilty plea to the above charges on the above basis will be accepted in full satisfaction of the charges in the charge sheet;

(c)    That the proposal is conditional on the parties reaching agreement on the facts;

(d)    The matters will be withdrawn from the General Court Martial and proceed before a Defence Force Magistrate at the earliest opportunity for sentencing;

(e)    That charge 2 will particularised (sic) as only the smearing of vegemite between the bottom cheeks of the complainant to humiliate him and carried no sexual connotation; and

(f)    The Prosecutor will not oppose, submit or argue against a submission from the defence that the proper sentencing disposition for the matter does not include imprisonment and will concede, if asked by the DFM, that a lesser sentence than imprisonment is reasonably open in the circumstances.”

14    The respondent did not seek to contend that these were not agreed terms.

15    On the following day Able Seaman Thompson advised his defending officers that he wished the matter to end as soon as possible and that he accepted the prosecution’s proposal. This position was promptly conveyed to the prosecutors.

16    At some stage over the weekend Able Seaman Thompson told one of his defence counsel, Wing Commander Glenn Cridland, that he was not keen to enter a plea of guilty but was concerned about the prospect of imprisonment and wished to be sentenced by a tribunal with only the reduced powers of punishment conferred on a DFM.

17    On 22 September 2014 Able Seaman Thompson signed an agreed statement of facts. The final paragraph of the statement read:

“By agreeing to these facts, the accused agrees to plead guilty to the stated offences even if the current proceedings are dissolved. In making the above admissions, the accused agrees that he has done so having taken legal advice from [defence] counsel …”

18    Later that day counsel appearing for Able Seaman Thompson and another accused who had also agreed to plead guilty to three charges advised the Judge Advocate (in the absence of the Court panel) of the change in their clients’ positions. One issue which arose in the course of the discussion between the Judge Advocate and counsel was how sentencing on the charges would proceed. It was proposed that, after the Court had completed the trial of the other two accused, it would be dissolved and the task of sentencing Able Seaman Thompson and his co-accused would be referred to a DFM. When this suggestion was made the Judge Advocate responded to the defending officers as follows:

“… [S]ection 125 of the Defence Force Discipline Act provides that, at any time after a conviction, if I’m of the view that, in the interests of justice, the court martial should be dissolved, I can ask the Registrar [of Military Justice] to dissolve the court martial, and a new court martial, not a DFM, would have to be convened for action under Part IV of the DFDA. When this trial against the others is completed, I guess that you’d withdraw but we’d keep you in the loop in relation to transcript, to enable you to make any application at the end of the trial – that I dissolve the court martial after the hearing of the other matters, depending on what the outcome is for the other accused.”

The Judge Advocate then asked “are you happy with that course?” The officer defending the other accused answered: “For present purposes, yes.”

19    Counsel for Able Seaman Thompson did not respond.

20    The statement of agreed facts was tendered and marked for identification.

21    Shortly afterwards there was further discussion (in the absence of the Court panel) about when and by whom Able Seaman Thompson would be sentenced after he had changed his plea to guilty to three of the charges. The following exchange occurred between the Judge Advocate and one of Able Seaman Thompson’s defence counsel:

“DEFENDING OFFICER NASH:    I do not feel I need to put this on the record though. When we make that application we are of the understanding that the matter goes back to DMP and DMP can refer it to a Defence Force magistrate.

JUDGE ADVOCATE:    Once it’s dissolved, it has to go back to the DMP.

DEFENDING OFFICER NASH:    DMP, which would have the capacity to refer it to a Defence Force magistrate, if they so choose. That’s our understanding.

JUDGE ADVOCATE:    It’s a matter for the DMP, yes.

DEFENDING OFFICER NASH:    That’s our expectation, if I can say that. I appreciate at the end of the day it’s your decision whether or not to dissolve the panel.

JUDGE ADVOCATE:    Yes, but I can deal with that application. I understand the issues involved.

DEFENDING OFFICER NASH:    Thank you.”

22    Following this exchange Lieutenant Commander Nash told Able Seaman Thompson, at the Bar table, that he was satisfied, given the exchange in open court, that Able Seaman Thompson could “enter pleas of guilty to Charges 1, 2 and 7 before the panel consistently with the terms of the plea bargain we had reached with the Prosecutors.”

23    The panel returned to Court and Able Seaman Thompson was re-arraigned on Charges 1, 2, 3, 4 and 7. He pleaded guilty to Charges 1, 2, and 7 and not guilty to Charges 3 and 4. The prosecution advised the Court that it was not proposing to offer any evidence in relation to Charges 3 and 4. The Judge Advocate then explained to Able Seaman Thompson the elements of each of the three charges to which he had pleaded guilty and confirmed that he understood what she had said.

24    The Judge Advocate explained to the panel the implications of what had just occurred. The President then made formal findings that Able Seaman Thompson was guilty of the first, second and seventh Charges and not guilty of the third and fourth Charges. He recorded convictions on the first, second and seventh Charges.

25    On 28 October 2014, after the Court Martial had acquitted the two remaining accused on all charges, argument took place, before the Judge Advocate, as to the appropriate forum for the sentencing of Able Seaman Thompson and his co-accused. One possibility was that the Court Martial, before which they had pleaded guilty, should proceed to sentence them. Defence counsel were anxious to avoid this possibility because the panel had heard evidence, in the course of the trial of the two accused who had been acquitted, which may have impacted adversely on the panel’s appreciation of the culpability of the two members who had pleaded guilty. As a result, counsel for Able Seaman Thompson and his co-accused argued that the Judge Advocate should direct the Registrar to dissolve the Court Martial under s 125(3) of the Defence Force Discipline Act 1982 (Cth) (“the DFDA”) “in the interests of justice”, with a view to the Registrar convening another Court Martial to deal with sentencing. For reasons published the following day the Judge Advocate acceded to the accuseds’ request and foreshadowed giving a direction to the Registrar to dissolve the Court Martial.

26    Once the direction had been given, but before the Registrar had acted on it, Able Seaman Thompson’s defending officer sought to persuade the Registrar to refer the sentencing task to a DFM. The Registrar advised counsel that she did not propose to adopt this course because, in her view, s 125(6) of the DFDA required her to convene another Court Martial.

27    On the hearing of this appeal counsel for Able Seaman Thompson and the Chief of Navy agreed that the Registrar’s understanding of her duty was correct.

LEGAL PRINCIPLES

28    The principles which guide courts of criminal appeal when they are called on to quash convictions which have been recorded following pleas of guilty are well established. Even though this Tribunal does not sit as a Court of Criminal Appeal, neither party submitted that those principles did not materially inform the exercise of the Tribunal’s jurisdiction under s 23 of the Defence Force Discipline Appeals Act 1955 (Cth); to the contrary, the appeal was conducted on the basis that they did. Those principles were authoritatively stated by Brennan, Toohey and McHugh JJ in Meissner v The Queen (1995) 184 CLR 132 at 141-2. Their Honours said that:

“A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence. The principle is stated by Lawton LJ in R v Inns:

‘The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment, a nullity.’

It may not be strictly accurate to describe what follows as a nullity, but it is certainly liable to be set aside and a new trial ordered. If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person’s own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice. In such a case, the court is falsely led to dispense with a trial on the faith of a defective plea. The course of justice is thus perverted.” (citations omitted.)

29    It is for an appellant to establish, on the balance of probabilities, that a miscarriage of justice has occurred: R v Collis (1989) 43 A Crim R 371 at 374; Sauer v The Queen [2006] NSWCA 81 at [10]; R v Kennedy [2014] NSWSC 1921 at [63].

30    A finding to this effect will not lightly be made. As Kirby P observed in Liberti v The Queen (1991) 55 A Crim R 120 at 122:

“For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence …”

See also: Borsa v The Queen [2003] WASCA 254 at [20]; R v Carkeet [2009] 1 Qd R 190.

31    It has been held that a miscarriage of justice will not arise unless some circumstance exists which suggests that the guilty plea “was not really attributable to a genuine consciousness of guilt”: R v Murphy [1965] VR 187 at 191. See also R v Sagiv (1986) 22 A Crim R 73 at 80-1; Hura v The Queen (2001) 121 A Crim R 472 at 478. After Meissner, however, a more guarded approach is evident. In R v Pugh (2005) 158 A Crim R 302 at 311, for example, Doyle CJ held that “[t]he presence or absence of a genuine consciousness of guilt on the part of the accused may well be relevant, but will not be decisive” in determining whether a miscarriage of justice has occurred.

32    Despite these limitations and strong reservations courts of criminal appeal have found miscarriages of justice to have occurred in a wide range of circumstances in which accused have pleaded guilty: see, for example, Hura at 478; Sauer at [8].

33    In Maxwell v The Queen (1996) 184 CLR 501 at 510-11 Dawson and McHugh JJ emphasised that, normally, a plea of guilty will constitute an admission of all the essential elements of the relevant offence. Their Honours qualified this proposition (at 511) by adding:

“The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage.”

34    It may readily be accepted that the trial environment is a stressful one for most, if not all, accused: cf R v Chiron [1980] 1 NSWLR 218 at 241 (Lee J). In such an atmosphere an accused’s legal adviser may also experience pressure and may tender advice to the accused which may lead the accused to plead guilty to some or all charges. Such advice may reflect counsel’s assessment of the likelihood, on the evidence called, of a conviction being recorded and advantages which may accrue to the accused if the prosecution is prepared to agree to accept pleas to less serious offences in return for not seeking convictions on more serious ones. If such advice leads to a change of plea, a miscarriage of justice will, ordinarily, not be found to have occurred even if the advice is imprudent or plainly wrong: see, for example, R v Pugh at 354-5.

35    Where, however, counsel tenders imprudent and inappropriate advice about more substantial matters, this may lead to a miscarriage of justice. In R v McLean (2001) 121 A Crim R 484 the New South Wales Court of Criminal Appeal found that such a miscarriage had occurred when counsel did not intervene to prevent the accused being sentenced on the basis of incorrect facts with which the accused did not agree, having wrongly advised the accused that, if he wished to challenge the accuracy of any parts of the statement of facts, he would need to go into the witness box and expose himself to cross-examination in relation to the identity and roles of his co-conspirators in a drug importation case. The Court found that a miscarriage of justice had occurred, quashed the sentence in relation to the relevant count and ordered that the matter be remitted to the trial court for sentencing on the basis of agreed facts.

36    Similarly, a miscarriage of justice was found by the same Court in Wilkes v The Queen (2001) 122 A Crim R 310 where a public defender, who had advised the accused to plead guilty, subsequently accepted that he had made a mistake in his assessment of the merits of the case and in advice which he had given (or failed to give) relating to available defences and issues on which prosecution witnesses might be vulnerable on cross-examination. Wood CJ at CL (with whom Giles JA and Simpson J agreed) said (at 318) that:

“Although no evidence was given by the appellant to us expressly asserting his innocence, the inference to be drawn from the entirety of the evidence before us is that the plea of guilty was entered solely because of the advice which he had received as to the likely outcome of the trial. That advice, as I have observed, counsel now regards as having been incorrect and imprudent. Moreover, if the facts are as have been stated, then it must be accepted that the plea was not one attributable to a genuine consciousness of guilt.”

37    A different approach is also evident in cases in which the accused has been told by counsel that the trial judge has expressed certain views relating to guilt and sentencing. One such case was R v KCH (2001) 124 A Crim R 233. The accused had been advised by his lawyer that the trial judge had expressed the view that it was possible he would be convicted on the more serious of two charges and that he should plead guilty to a less serious, alternative, charge. On the basis of this advice the accused had pleaded guilty to the lesser offence. By majority, the New South Wales Court of Criminal Appeal held that the accused’s free will had been overborne and that a substantial miscarriage of justice had occurred. The majority placed particular emphasis on the significant weight which the accused was presumed to have placed on the views of the trial judge. Ipp AJA (with whom Sperling J agreed) said (at 239) that advice from a judicial source “would carry immeasurable weight and would be very difficult to resist.” Any free choice which the accused might have had would have been displaced by the expression of the judge’s views (at 239-40). In such circumstances, his Honour held (at 248), “it follows inevitably that a miscarriage of justice has occurred, and whether there might be a real question about the appellant’s guilt is irrelevant.”

38    In R v Wade [2012] 2 Qd R 31 Muir JA (with whom Wilson AJA agreed) held (at 42) that it was implicit in the joint reasons in Meissner “that a guilty plea may be set aside as a miscarriage of justice where it is not ‘entered in the exercise of a free choice in the interests of the person entering the plea’.” In deciding whether or not a plea of guilty had been freely entered his Honour adopted an approach analogous to that used when deciding whether a confession had been voluntarily made. In Collins v The Queen (1980) 31 ALR 257 at 307 Brennan J said that:

“The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused.”

CONSIDERATION

39    In the present case the miscarriage of justice is said to have arisen because Able Seaman Thompson had pleaded guilty to the three charges and signed the agreed statement of facts after he had been advised and understood, that if he did so, he would be sentenced by a DFM rather than by a General Court Martial.

40    The difference was significant. The maximum penalties which were available to a General Court Martial in respect of the charges to which Able Seaman Thompson pleaded guilty were 10 years imprisonment (Charge 1), seven years imprisonment (Charge 2) and five years imprisonment (Charge 7). The third charge, of which he was acquitted, under the terms of the agreement, attracted a maximum punishment of 12 years imprisonment. A DFM, however, could not impose a sentence of imprisonment for any offence for a period exceeding six months: see DFDA s 67 and Schedule 2.

41    The relevant advice came not from a judge or defence counsel acting alone. Nor did it flow from a prediction about the outcome of the trial based on an assessment of the manner in which it was progressing. The prosecutor took the initiative, in the course of the trial, and offered not to press for guilty verdicts on some of the more serious charges faced by Able Seaman Thompson if he pleaded guilty to some charges and various other conditions were met. One of the terms agreed to between prosecution and defence counsel was that, if Able Seaman Thompson pleaded guilty to lesser offences, the matter would be withdrawn from the General Court Martial “and proceed before a Defence Force Magistrate at the earliest opportunity for sentencing.” It was clearly implied that it was the joint view of counsel that recourse to a DFM was a legally available option. It was not. This is now conceded. It was, however, the view of counsel, despite some observations to the contrary by the Judge Advocate, which persisted until after Able Seaman Thompson had changed his pleas to guilty on three charges and convictions had been recorded.

42    Able Seaman Thompson was advised, directly by his defending officers and, indirectly, by the prosecutor that he could expect to be sentenced by a DFM if he pleaded guilty to the three offences. There was considerable advantage to him if this course were to be followed. He was a young man and a relatively junior seaman. The advice was being given to him by specialist legal officers who, in the military environment, he could expect would provide him with authoritative and accurate advice on which he could rely.

43    The respondent emphasised that Able Seaman Thompson had not, in his affidavit, deposed that he acted on the advice of counsel or that, but for that advice, he would not have changed his pleas. Nor had he sought to suggest that the facts, appearing in the agreed statement, were other than correct.

44    The sequence of events, however, supports a strong inference that Able Seaman Thompson would not have changed his pleas or signed an agreed statement of facts, had he not been told that, if he pleaded guilty to some charges, he would be sentenced by a DFM. Before the prosecutor raised the prospect of some form of plea bargain, Able Seaman Thompson had not displayed any interest in changing his pleas. The agreement was negotiated between counsel and then put to him. Even at this stage he was reluctant to accept the arrangement, took time to consult his family, and only changed his plea after being reassured, by one of his defence counsel, that he would be sentenced by a DFM. This was important to him because it significantly reduced the risk that he might be sentenced to imprisonment were he found to be guilty by the General Court Martial. When, some months later, it transpired that the advice which he had been given was wrong he complained that he had “been seriously misled.” He deposed that he had “agreed to the original proposal, made the admissions, and entered my pleas, on the basis and understanding that following the dissolution of the General Court Martial, charges in terms of the Charges 1, 2 and 7 in the Charge Sheet would be dealt with by a DFM.”

45    This was not a case in which an accused had acted on the recommendation of defence counsel who had formed the view, in the course of a trial, that it was likely that the accused would be convicted and had recommended that he change his plea. Able Seaman Thompson was attracted to a proposal which had been negotiated by counsel and which offered him a technical advantage by significantly reducing his risk of being sentenced to imprisonment. That advantage was not available to him on a proper construction of the DFDA. The prospect of him being sentenced by a DFM was, however, presented to him as an available option by counsel on both sides. For understandable reasons Able Seaman Thompson accepted the advice as being correct and acted on it to his detriment.

46    The respondent also argued that, in making the admissions contained in the agreed statement of facts, Able Seaman Thompson had evinced a genuine consciousness of guilt. That may or may not be so. Even if it is it is not a decisive consideration in the circumstances of the present case. This is because Able Seaman Thompson would not have changed his pleas and endorsed the agreed statement of facts had he not been materially and wrongly advised about him being sentenced by a DFM.

47    It follows, in our view, that a substantial miscarriage of justice has occurred whether or not the agreed facts might have supported convictions on the three charges.

48    The three convictions must be quashed. A new trial should be had.

Abuse of Process

49    The appellant’s second proposed ground asserts that it “would be an abuse of process for another General Court Martial convened under section 125(6) of the [DFDA] to proceed to sentence [Able Seaman Thompson] in respect of the convictions, and they should accordingly be set aside.”

50    The appeal should not be allowed on this ground. The principal ground of appeal has been upheld. A new trial has been ordered. There is no reason to assume that any retrial will proceed other than fairly. It will be a matter for the Registrar of Military Justice to determine how her powers under s 125(6) should be exercised and then for the Director of Military Prosecutions to determine whether or not to lead evidence in support of some or all of the charges which have been levelled against Able Seaman Thompson other than those of which he has been acquitted. It will be a matter for Able Seaman Thompson to determine how he pleads to the charges if and when he is re-arraigned.

Associate:

Dated:    22 May 2015