DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Jesser v Chief of Air Force [2015] ADFDAT 3

THE TRIBUNAL ORDERS THAT:

1.    The appeal be allowed.

2.    The conviction of the appellant be quashed.

REASONS FOR JUDGMENT

1    On 19 November 2014, following a trial before a Defence Force Magistrate, Leading Aircraftwoman (LACW) Megan Louise Jesser, a member of the Royal Australian Air Force, was convicted of an offence against s 61(3) of the Defence Force Discipline Act 1982 (Cth) (DFDA) constituted by threatening to cause grievous bodily harm, contrary to s 31 of the Crimes Act 1900 (ACT) (Crimes Act). The sentence imposed on her that day was dismissal from the Defence Force.

2    The conviction and sentence were subsequently confirmed by a reviewing authority.

THE APPEAL

3    LACW Jesser has appealed to the Tribunal by leave against the conviction. The sole ground of appeal is that specified in s 23(1)(a) of the Defence Force Discipline Appeals Act 1955 (Cth) (DFD Appeals Act) namely, that the conviction is unreasonable, having regard to the evidence. Even so, it became apparent during the course of oral submissions for LACW Jesser that one basis upon which it was put on her behalf that the conviction was unreasonable necessarily entailed consideration of the true meaning of, in particular, s 31(b)(ii) of the Crimes Act and its application in the circumstances of this case. Strictly speaking, that submission probably ought to have been founded upon an additional ground of appeal, based on s 23(1)(b) of the DFD Appeals Act, which alleged that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction was wrong in law and that a substantial miscarriage of justice had occurred. Even so, the Chief of Air Force, with commendable fairness, did not object to the submission but instead engaged fully with it in his submissions. In the circumstances, we are satisfied that no procedural unfairness is involved in dealing with the appeal on this additional basis.

THE OFFENCE CHARGED

4    The effect of s 61(3) of the DFDA in relation to a defence member such as LACW Jesser is that it is a “service offence” if that member engages in conduct outside the Jervis Bay Territory (whether or not in a public place) which would be a “Territory offence”, if it took place in the Jervis Bay Territory (whether or not in a public place). The material “Territory offence” incorporated by reference into service discipline law in this way is that created by s 31 of the Crimes Act. Section 31 provides:

31    Threat to inflict grievous bodily harm

If—

(a)    a person makes a threat to another person to inflict grievous bodily harm on that other person or any third person—

(i)    intending that other person to fear that the threat would be carried out; or

(ii)    being reckless whether or not that other person would fear that the threat would be carried out; and

(b)    the threat is made—

(i)    without lawful excuse; and

(ii)    in circumstances in which a reasonable person would fear that the threat would be carried out;

the firstmentioned person is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

5    The charge laid against LACW Jesser was in these terms:

Being a defence member at RAAF Base Amberley, in the State of Queensland, on 14 January 2014, did without lawful excuse and in circumstances in which a reasonable person would fear that the threat would be carried out, made a threat to Dr Shane Smith that she was going to stab FLTLT Candice Gardner in the neck with a letter opener by saying to him “I’m going to pick it up and stab her in the neck and then watch the bitch bleed” or words to that effect, being reckless to whether or not Dr Smith would fear that the threat would be carried out.

THE INCIDENT GIVING RISE TO THE CHARGE

6    The evidence for the prosecution consisted of the audio recording of a record of interview in which LACW Jesser participated on 12 March 2014, together with a related transcription, each admitted by consent (Exhibits 1 and 2), the oral testimony of Dr Shane Smith and email exchanges between Dr Smith and FLTLT Candice Gardner in December 2013 and January 2014 concerning LACW Jesser, together with related medical records of that period also concerning her (Exhibit 3).

7    As the Defence Force Magistrate acknowledged, there was no obligation for LACW Jesser to give evidence and he correctly drew no adverse inference on the basis of her choosing not to give evidence.

8    There was never any contest that, on the date alleged in the charge, LACW Jesser was a “defence member” and thus amenable to the DFDA. It was likewise uncontroversial that FLTLT Gardner was then the Logistics Officer (LOGO) at 36 Squadron, based at RAAF Base Amberley, that this was the same unit to which LACW Jesser was posted, and that she was LACW Jesser’s superior officer.

9    At the time of the alleged service offence, Dr Smith was a civilian general practitioner and aviation medical officer practising at the Amberley Health Centre at RAAF Base Amberley.

10    Dr Smith’s evidence included his recounting LACW Jesser’s stating to him on 14 January 2014 in the course of a clinical consultation at the Amberley Health Centre at RAAF Base Amberley that she was going to pick up a letter opener on FLTLT Gardner’s desk and, “I will stab her in the neck, and then watch the bitch bleed.” That account was given in oral evidence without Dr Smith seeking to refresh his memory by reference to a contemporaneous note in the form of an “Outpatient Clinical Record” of 14 January 2014. That record formed part of the bundle of documents which, at the conclusion of Dr Smith’s cross-examination, was tendered by consent and became Exhibit 3.

11    It will be necessary to refer to other evidence given by Dr Smith and accepted by the Defence Force Magistrate (DFM) in deciding whether or not the conviction was unreasonable.

12    The account given by LACW Jesser in the record of interview included an admission of her stating to Dr Smith that she was going to pick up a letter opener from FLTLT Gardner’s desk and stab her in the neck but did not include the additional statement that she would “watch the bitch bleed”. In his reasons, the DFM preferred the account given by Dr Smith of the incident in which the alleged conduct took place over that given by LACW Jesser in the record of interview. It was not submitted for LACW Jesser that it was not open to the DFM to accept and act on Dr Smith’s evidence. Indeed, it was at the heart of her case that, accepting the whole of Dr Smith’s evidence, the conviction was unreasonable.

13    The DFM thus had evidence before him, which he was entitled to and did accept, that the words charged were said by LACW Jesser on the date and at the place alleged. He also found, as he was entitled to do, that those words were not stated in response to a hypothetical question.

14    In the appeal, LACW Jesser conceded that her statement constituted a threat. In the context of this type of offence, a “threat” has been described as including a “declaration of hostile intent”: R v Moore-McQuillan [2014] SASCFC 113 at [40]. The words charged and found to have been uttered certainly amounted to such a declaration. LACW Jesser also conceded that the element of recklessness was made out and that she had no lawful excuse for the making of the threat.

15    The upshot is that the question of whether the conviction was unreasonable turns on the element specified by s 31(b)(ii) of the Crimes Act, which requires proof that the threat was made “in circumstances in which a reasonable person would fear that the threat would be carried out”. It is first necessary to consider what is entailed in that element.

THE NATURE OF THE OFFENCE CHARGED

16    Section 31 of the Crimes Act forms part of what became a new Part 2, introduced into the Crimes Act in 1990 by the Crimes (Amendment) Ordinance (No 2) 1990 (ACT) (the 1990 Ordinance) during the transition to the Australian Capital Territory’s self-government. The amendments made by the 1990 Ordinance resulted in a substantial divergence from the Crimes Act 1900 (NSW), which had hitherto been adopted as the foundation for Territory criminal law. There is no equivalent offence in New South Wales. It appears that s 31 (b)(ii) was adopted from s 16 of the Offences Against the Person Act 1861 (UK). That section reads (relevantly):

A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out, to kill that other or a third person shall be guilty of an offence …

Neither the researches of counsel nor our own have disclosed any English authority concerning that provision which would be of present assistance.

17    Also found in the new Part 2 of the Crimes Act is s 30 which creates a kindred but more serious version of the offence for which s 31 provides in that the threat specified is not to inflict grievous bodily harm but rather to kill with the maximum punishment being greater. Save for these distinctions, the language of ss 30 and 31 is identical.

18    Since its introduction as part of the criminal law in the Australian Capital Territory and as the reasons of the DFM disclose, s 30 has been considered by the ACT Supreme Court at single judge level on appeal from the Magistrates Court on a number of occasions, most recently in McEwan v Rohan [2012] ACTSC 181 (McEwan v Rohan), where Burns J collected and analysed the prior authorities.

19    The DFM was not, in terms, bound by judgements of the ACT Supreme Court concerning the meaning of the Crimes Act, as that court does not form part of the hierarchy within the service discipline law system. Even so, given that it is part of the scheme of the DFDA, found in s 61, to incorporate by reference and make service offences “Territory offences” and thus conduct made an offence by the Crimes Act, judgements of the ACT Supreme Court concerning the meaning of an offence created by the Crimes Act carry a particularly high persuasive authority for DFM’s, as they do for judge advocates when directing a court martial. That must be so in respect of judgements of the superior court in the jurisdiction as to the meaning of a provision of that criminal law which is incorporated by reference.

20    Given the near identity of language of the sections and the issue before him, the course of ACT authority concerning the meaning of s 30 of the Crimes Act was undoubtedly relevant to the DFM’s consideration of the meaning of s 31 and whether the offence charged was proved beyond reasonable doubt. The DFM was not just correct to look to McEwan v Rohan and earlier ACT authority for guidance but, in the absence of any authority to the contrary by this Tribunal, the Full Court of the Federal Court or the High Court, had little choice other than to follow that authority. As will be seen, that he did so may well explain the resultant conviction.

21    For like reasons, we consider that, when constituting the Tribunal, we should regard judgements of the ACT Supreme Court concerning the Crimes Act as being of persuasive authority. Neither party considered that we were bound by such authority. We do not consider that we are. Persuasive though such authority is, if we consider it clearly wrong, we consider it our duty not to follow it and to apply the law as we understand it to be.

22    The passage in McEwan v Rohan in which Burns J collects and analyses the course of ACT authority concerning s 30 is lengthy but, in the circumstances of the present case, it is necessary to set it out in full:

32.    The section makes no reference to the belief of a reasonable person, or the belief of the recipient of the threat. The word belief, or any of its derivatives, does not appear in the section at all. It appears that the proposition that the belief of the reasonable person, or of the recipient of the threat, is relevant to establishing an offence under s 30 has arisen by virtue of some of the earlier cases which considered the section.

33.    In the earliest reported case considering s 30 there is no reference to belief at all. In Doyle v Ranse (1991) 103 FLR 419 Higgins J (as his Honour then was) referred to the need for the reasonable person to fear that the threat would be carried out. This formula follows the words of the section. Whilst his Honour referred to the fact that the complainant had not testified that she feared that the threat would be carried out, he did not suggest that proof of that fact was a prerequisite to a conviction under s 30.

34.    In R v Leece (1995) 125 ACTR 1; 78 A Crim R 531, Higgins J granted a stay of proceedings with respect to a charge under s 30. The case is concerned primarily with what constitutes a “threat to kill”, but in the course of discussion of this question, and how it applies in s 30, his Honour makes no reference to the belief of the reasonable person, or the belief of the complainant as to whether the accused would carry out his threat.

35.    The first reference to the belief of either the reasonable person or the complainant being relevant to a charge under s 30 is, I believe, found in the decision of Higgins J in Barbaro v Quilty [1999] ACTSC 119, where in considering the elements of an offence under s 30 his Honour said at [60] - [64]:

I considered the elements necessary to find an offence under s 30 of the Crimes Act in Doyle v Ranse (1991) 103 FLR 419.

The first point to make is that s 30 carries a maximum sentence of ten years imprisonment. The legislature has ranked it more seriously than an actual assault occasioning actual bodily harm (s 23) or intentional wounding (s 21). It ranks with aiding suicide (s 17) and recklessly inflicting grievous bodily harm (s 20).

The threat must be one of inflicting physical harm so as to cause death. That is, that the person threatened will be murdered (though not necessarily by the defendant personally nor then and there).

Doyle v Ranse (supra) illustrates that the person threatened must be expressly put in fear not merely that the alleged offender might offer violence, but that the alleged offender would attempt to kill (personally or otherwise) the person threatened. It is not enough that the person threatened says that he or she took the threat “seriously”, assuming that is to be equated with a belief that it would be carried out. There is also an objective element. It is whether a reasonable person in the position of the person threatened would fear that the threat would be carried out.

Further, the circumstances must be such as to satisfy the tribunal of fact that the person threatened was intended to believe that the threat would be carried out. In Doyle v Ranse neither of those elements was made out.

36.    In applying the subjective test found in s 30 (that is, s 30(a)) to the evidence in the case, his Honour expressed considerable doubt whether the complainant “seriously believed” that the appellant would have attempted to have her murdered. In applying the objective test found in the section Higgins J said at [72] - [73]:

It should be borne in mind that, whilst it is not an element of the offence that the offender intended to carry out his or her threat, it is an element that the person threatened actually believed that to have been the offender’s intention. That must also be the belief of the objective reasonable bystander.

One advantage the objective bystander would have had over Ms Jones in coming to that conclusion would be an absence of any belief that the appellant possessed a gun. There were no reasonable grounds established for a reasonable bystander to have made such an assumption. Nor would that bystander have any grounds to believe that Ms Jones entertained such a belief.

37.    Subsequently, in Luu v Cook [2008] ACTSC 54, Penfold J considered the decision of Higgins J in Barbaro and noted that among the propositions which emerged from it were:

a.    that with respect to a charge under s 30 alleging intention rather than recklessness, the person threatened must be intended to believe that the threat will be carried out; and

b.    there must be a threat that an objective and reasonable bystander, knowing the history of the prior dealings between the accused and the person threatened, would believe is intended to be carried out.

38.    Penfold J went on to say at [16] - [18]:

Barbaro includes several references to the objective or reasonable bystander, but does not clearly answer the question of what such a bystander can be assumed to know in forming a view whether the threat is likely to be carried out. Higgins J refers to the objective reasonable bystander “knowing the relationship between the protagonists” (Barbaro supra at [71]), and “knowing the material facts” (Barbaro supra at [75]), but also points out that the objective reasonable bystander, in contrast to the person threatened in Barbaro, would have had the advantage of “an absence of any belief that the [accused] possessed a gun” (Barbaro, supra at [73]).

Higgins J found in that case that the belief of the person threatened that the appellant had a gun was unjustified. This suggests that the objective reasonable bystander is only assumed to have reasonable beliefs as to the facts, rather than to have the same beliefs, however mistaken, as the person threatened. The significance of the comment that such a bystander would not have had any grounds to believe that the person threatened believed in the existence of the gun (Barbaro, supra at [73]) is obscure, I interpret it as a reference to a basis on which the bystander in that case might have acquired a reasonable belief about the existence of the gun, rather than as expressing a further requirement for the bystander’s beliefs.

Barbaro also contains the proposition that the person threatened must believe that the accused intended that the threat to kill would be carried out (Barbaro, supra at [63], [65] and [72]). However, this requirement (that the person threatened must believe that the accused intended that the threat would be carried out) does not seem to be either explicit or implicit in any of the specific elements of the offence. Neither the requirement that the victim be intended to fear that the threat be carried out (subpar 30 (a)(i)), nor the requirement that a reasonable person would fear that the threat would be carried out (subpar 30(b)(ii)), in its terms requires that the victim in fact held such a fear.

39.    With respect, I fully endorse these statements. However, I would go further and say that the section does not require any person, whether actual or hypothetical, to form a belief as to whether the threat will be carried out.

40.    The objective element of the offence, as set out in s 30 (b) (ii) requires the prosecution to prove that the threat was made “in circumstances in which a reasonable person would fear that the threat would be carried out”. What this requires is proof of what a reasonable person in the position of the recipient of the threat would fear, not what they believed. Similarly, the subjective element of the offence requires the prosecution to prove that the accused intended to put the recipient of the threat in fear that it would be carried out.

41.    The Macquarie Dictionary, 5th edition, defines the words “fear”, “belief” and “believe” as follows:

fear noun 1. A painful feeling of impending danger, evil, trouble, etc; the feeling or condition of being afraid. 2. A specific instance of such a feeling. 3. Anxiety; solicitude. 4. Reverential awe, especially towards God. 5. A cause for fear – verb (t) 6. To regard with fear; be afraid of. 7. To have reverential awe of. 8. Archaic to be afraid (used reflexively). 9. Archaic to frighten – verb (i) 10. To have fear; be afraid.

belief noun 1. That which is believed; an accepted opinion. 2. Conviction of the truth or reality of a thing, based upon grounds insufficient to afford positive knowledge; statements unworthy of belief. 3. Confidence; faith; trust; children’s belief in their parents. 4. A religious tenet or tenets; the Christian belief.

believe verb (t) (believed, believing) 1. To have belief in: to believe a person 2. To think: I believe she has left the city. 3. To credit; accept as true; to believe a story.

42.    The word fear, where it appears in s 30, is a verb, in my opinion carrying the meaning “be afraid of”. On the other hand the word “belief” would usually connote a conviction held as to the truth of a thing.

43.    A belief that a threat will be carried out involves a higher degree of certitude than a fear that it will be carried out. Belief implies a conviction on the part of the believer that a certain proposition is true. An individual or a hypothetical reasonable person may be afraid that a threat will be carried out in circumstances where they may not have formed, or be able to form, a belief that it will be carried out. Indeed, the uncertainty that comes with an inability to form a belief that a threat will not be carried out will often be part of the basis for holding a fear that it will.

44.    This does not mean that the belief of a recipient of a threat that the maker of the threat will not carry out the threat is irrelevant. Where such a belief is based upon knowledge of the person making the threat, the recipient’s belief may be evidence that the person making the threat did not intend the recipient to fear that the threat would be carried out, and may also be evidence relevant to determining whether a reasonable person would fear that the threat would be carried out. The basis of the belief of the recipient may be proved by direct evidence, or it may be inferred from direct evidence. But the belief of the recipient that the threat will not be carried out is only one piece of evidence, and the tribunal of fact may give it such weight as seems appropriate. Where there is other evidence suggesting that the intention of the person making the threat was to make the recipient fear that it would be carried out, then the belief of the recipient may not be given great weight. Similarly, the evidence may be such as to establish that a reasonable person would fear that the threat would be carried out even if the recipient did not so believe. In neither case is the belief of the recipient that the threat would not be carried out necessarily conclusive.

23    In Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at 421, in the course of an analysis later referred to with approval in the joint judgment in Bropho v Western Australia (1991) 171 CLR 1 at 20, McHugh JA (as his Honour then was) stated:

A rule of law enacted by statute consists of a proposition which gives rise to legal consequences when the act or omission of some person falls within the factual outline delineated by that proposition ... The difficulty is to determine whether Parliament intended a particular set of facts to fall within the factual outline of the proposition. That is, the difficulty is to determine the ambit of the factual outline which Parliament intended to enact.

The “ambit” of that “factual outline” is delineated by the text of the statute; here, s 31 of the Crimes Act.

24    As Burns J correctly observes, at [32] in the passage quoted from McEwan v Rohan, s 30 makes no reference to the word, “belief”, that word having been introduced only in the course of explanations given in earlier authorities as to the meaning of that section. As with s 30, so with s 31. The word, “belief” does not appear in it.

25    Even so, as is also apparent from the passage quoted, a comparison between the ordinary meaning of the word “fear” and that of the word, “belief” has come to influence the meaning given to the word “fear” in s 30 and thus, by analogy, s 31. That influence is most readily apparent at [42] of the passage quoted from, McEwan v Rohan and, at [43] in the statement, “A belief that a threat will be carried out involves a higher degree of certitude than a fear that it will be carried out. The word, “fear” has been regarded by Burns J as “carrying the meaning “be afraid of”” but not so as to entail a “belief”, which “would usually connote a conviction held as to the truth of a thing” (at [42]).

26    With the greatest of respect, this is not a permissible approach to the construction of s 30 and thus, by analogy, s 31. It proceeds not by reference to the language of the statute, read in the context in which it appears, but rather by comparison between a word used in that statute and a word used in earlier judicial authority in an endeavour to highlight the meaning of that statute. It has had the incongruous effect of lessening the gravity of an element of what must be proved in order that a person may be convicted of either of these offences.

27    In deciding whether a person has committed an offence against s 31 of the Crimes Act, the task of a court is not to paraphrase the language of that statute and then to apply what it understands that paraphrase to mean. A court is obliged to apply “the law that Parliament has enacted, not a judicial rewording of the law”: Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112, at [118] per Campbell JA, with whom Hodgson and Young JJA agreed on this point. The same stricture applies, in the military discipline context, when a DFM has the task of deciding whether s 61(3) has been contravened because a defence member has engaged in conduct which constitutes an offence against s 31 of the Crimes Act.

28    A like vice to that evident in McEwan v Rohan is also present when recourse is had to an explanatory memorandum or Ministerial second reading speech for the purpose of construing a statute and the focus shifts from the language employed by Parliament to the meaning given in the explanation in that explanatory memorandum or speech and, in turn, to the meaning of that explanation.

29    An extract from The Macquarie Dictionary meaning of the word, “fear” appears in the passage quoted from McEwan v Rohan. It is helpful also to have recourse to the Oxford Dictionary (Online Edition, accessed, 21 July 2015). In each instance when it is used in s 31, the word, “fear” is used as a transitive verb, the object of the fear being, “that the threat would be carried out”. So used, the Oxford Dictionary materially defines “fear” to be, “To feel fear; to regard with fear.” This, in turn, directs attention to what “fear” connotes as a noun. Putting aside an Old English meaning of the word, that same dictionary gives this as the primary meaning of “fear” when used as a noun:

a.    The emotion of pain or uneasiness caused by the sense of impending danger, or by the prospect of some possible evil.

Now the general term for all degrees of the emotion; in early use applied to its more violent extremes, now denoted by alarm, terror, fright, dread. In 14th c. sometimes pleonastically dread and fear.

The authors of that dictionary also acknowledge a further meaning which the word, “fear” may have, which is an “Apprehension or dread of something that will or may happen in the future”.

30    The contemporary approach to statutory construction has as its object the construing of a provision “so that it is consistent with the language and purpose of all the provisions of the statute”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]. Put another way, the text must be considered in the context in which it appears. Like s 30, s 31 appears in Part 2 of the Crimes Act, which sets out a range of “Offences against the Person”, the most serious of which is murder. Within Part 2 and in its civil law application, the penalty for an offence against s 31 in the Crimes Act is imprisonment for five years. The offence created by s 31 is, within Part 2 of the Crimes Act, equated in severity with Wounding (without a circumstance of aggravation) (s 21); Assault with intent to commit other offence against Part 2 (s 22); Inflicting actual bodily harm (without a circumstance of aggravation) (s 23); Assault occasioning actual bodily harm (without a circumstance of aggravation) (s 24); Causing grievous bodily harm (s 25); Acts endangering health (s 28); Possession of object with intent to kill (s 33); Stalking (with a circumstance of aggravation) (s 35); Abduction of young person (s 37); and Exposing or abandoning a child (s 41). It is also, in that civil law application, a more serious offence than, for example, Common assault (s 26) or Affray (s 35A). Consideration of context discloses that the offence created by s 31 is not a minor one.

31    Within Part 2 and apart from in s 30 and s 31, “fear” also forms part of an element of an offence in s 35 (Stalking) but here it is used as an alternative to “apprehension” and in this context looks to be used in its more generic sense. It is also used in s 35A (Affray) but this use is akin to that in s 30 and s 31.

32    In these circumstances, it is highly unlikely that the element of “fear” which is specified in s 31 was intended to be mere apprehension. Nor, for like reasons, is it likely that, as used in that section, “fear” was intended to carry a meaning at the lower end of the range of emotions that, as a general term, “fear” can embrace in modern English usage. Rather, the “fear” entailed must be that sense of dread which carries with it “alarm, terror or fright”. Construing “fear” in this way ensures that conduct constituted by disconcerting statements of no particular moment when viewed in context is not criminalised.

33    It is important to appreciate that the victim is the recipient of the threat – even when the threat is of harm to a third party. The provision is intended to protect such persons from the psychological harm of being put in fear, by a threat of harm to themselves or others. One might think that the type of “others” that the legislature had in mind were family and friends of the victim, a threat of harm to whom would be calculated to create terror or fright in the victim.

34    It is this type of “fear” which informs the content of the subjective mental element which, by s 31(a), must be proved in respect of the person charged as well as informs the objective standard posited by s 31(b)(ii), which must also be proved.

35    Because the word does not appear in the section, it is a distraction and conducive of error to posit that a “belief” of any kind must be proved or, for that matter, that a “belief that a threat will be carried out involves a higher degree of certitude than a fear that it will be carried out”. The latter point may be illustrated in this way. An adherent to the Christian faith may “believe” in the Apostolic Confession of Faith, in the Ten Commandments and that a transgression of the same will, at Judgement Day, see the transgressor consigned to Hell. Because of these beliefs, a person may well “fear” being sent to Hell in the event of a transgression. That one has these beliefs is a circumstance which grounds the fear but it does not mean that any less certitude attends that fear by comparison with those beliefs.

36    In McEwan v Rohan, at [39], Burns J remarked of s 30 (and thus, by analogy, s 31) of the Crimes Act that it “[did] not require any person, whether actual or hypothetical, to form a belief as to whether the threat will be carried out”. With respect, that, too, is apt to be conducive of error. First and foremost, that is because it is “fear” of the kind we have stated, not “belief”, which is a constituent part of elements of the offence. Secondly, it is because of the meaning in context of the word “would”, a subject with which we deal below.

37    There are other indications within s 31(b)(ii) of the gravity of the offence. The threat concerned must be made “in circumstances in which a reasonable person would fear that the threat would be carried out”. That the specified “fear” must be measured by the objective standard of a reasonable person serves to exclude fear which might be engendered in a person who is of unusual sensitivity or perhaps paranoid. Further, the word “would”, as the subjunctive of “will”, is twice employed in s 31(b)(ii), on each occasion “expressing a determinate or necessary consequence (without the notion of futurity)” (Oxford English Dictionary, Online Edition, “Will”, used as a verb, meaning. 15c). This double employment of “would”, carrying this meaning, is another means by which a threat admitting of nothing more than the possibility of the specified fear is excluded from criminal consequence.

38    Further, we respectfully agree with Higgins J (as his Honour then was) in Barbaro v Quilty [1999] ACTSC 119 (Barbaro), the last in a succession of cases in which he considered the aspects of the meaning of the offence created by s 30, that the words “in circumstances” include “knowing of the relationship between the protagonists” (Barbaro supra at [71]), and “knowing the material facts” (Barbaro supra at [75]).

39    In short, the objective standard by which a threat is measured in accordance with the element of the offence specified in s 31(b)(ii) is a demanding one.

40    The Chief of Air Force relied in submissions upon the correctness of the views expressed in McEwan v Rohan and, in particular, on the distinction drawn in that case between a “fear” and a “belief”. It necessarily follows that, to the extent that our discussion of the proof of an offence against s 31 differs from those views, we regard them as incorrect and reject those submissions.

41    In the circumstances of this case, it is not necessary to determine the correctness of another view expressed in McEwan v Rohan, at [44], which is that, although the fact that the conduct alleged engendered a fear in the person to whom the threat was made is relevant, it is not determinative, because the standard posited by s 31(b)(ii) is objective. There is a conflict of authority on this point, albeit that this conflict was not in submissions drawn to the attention of either the DFM or this Tribunal. The Criminal Code of the Northern Territory (Schedule 1 to the Criminal Code Act (NT)), s 166, creates an offence which is analogous to the offence created by s 30 of the Crimes Act. In respect of that Northern Territory offence, Mildren J, in Bunting v Gokel [2001] NTSC 24 at [20], held that evidence of the subjective engendering of fear in the person to whom the threat was made was not relevant. Bunting v Gokel was not drawn to the attention of Burns J in McEwan v Rohan.

42    The reason why determination of the correctness of that proposition is not necessary is because the DFM “proceeded on the basis that I am not satisfied that Dr Smith himself believed that the actual threat particularised in the charge would be necessarily carried out” (Transcript of Proceedings, 19 November 2014, p 58). Though he took this into account for this purpose, the DFM then proceeded to measure the charged threat by an objective standard; the “hypothetical person” as he termed it. Neither party submitted that Dr Smith’s evidence as to what he made of the threat ought not to have been taken into account at all and each accepted that, having been taken into account, it was not determinative. We proceed on this same basis. As it seems to us, if the impact of the threat on the victim is relevant, it is because the victim may (at least in some cases) be a proxy for a reasonable person in the same circumstances, and if fear was not inculcated in the victim it may be difficult to sustain beyond reasonable doubt the view that a reasonable person in the same circumstances would be fearful.

CIRCUMSTANCES IN WHICH THE THREAT WAS MADE

43    The DFM’s acceptance of Dr Smith’s evidence carried with it acceptance of the circumstance that the statement constituting the threat alleged was found to have been made in the course of a clinical consultation on 14 January 2014. It also carried with it acceptance that LACW Jesser seemed distressed upon presentation to Dr Smith that day and that he asked her a series of questions designed to elicit from her the nature, cause and extent of that seeming distress. The words charged were uttered not spontaneously by LACW Jesser but rather in the course of that clinical questioning. They were responsive, in particular, to a question deliberately asked by Dr Smith because, as the DFM found, he “wanted to ascertain if she had a plan” as to how LACW Jesser was going to inflict the harm on FLTLT Gardner to which she had earlier referred in that clinical questioning. Following the making of this statement by LACW Jesser, the clinical questioning continued. In the course of that, Dr Smith deliberately probed further about LACW Jesser’s feelings towards FLTLT Gardner, asking whether she had a backup plan, ascertaining that she did (following her into the kitchen and using a knife found there) and that she was aware that the conduct concerned might see her sent to gaol. All of this was done so that Dr Smith could better diagnose and treat LACW Jesser.

44    That the statement charged was elicited by deliberate probing in the course of a clinical consultation for this purpose is a circumstance of which the reasonable person referred to in s 31(b)(ii) is taken to be aware.

45    Other such circumstances, evident from the Outpatient Clinical Record of 17 December 2013 (part of Exhibit 3) are that:

(a)    LACW had attended upon another medical practitioner, Dr Hampson, at the Amberley Health Centre on 17 December 2013.

(b)    In the course of that consultation, she had stated to that practitioner that she had thoughts of harm to two superiors, noted in his clinical notes as “SGT and FLTLT” (the latter, inferentially, FLTLT Gardner).

(c)    LACW Jesser had then appeared agitated.

(d)    Notwithstanding these statements, no harm was inflicted by LACW Jesser on FLTLT Gardner or any other superior in the period between this consultation and 14 January 2014.

46    As the DFM noted in his reasons, Dr Smith was equivocal in his evidence as to whether he had seen the Outpatient Clinical Record of 17 December 2013 prior to the consultation on 14 January 2014. That was because the two consultations respectively occurred just before and just after the Defence Stand Down period. Even if he did not, because the element posits an objective rather than a subjective test, it does not follow from his possible ignorance that a reasonable person would be in that same position. Further, as the Chief of Air Force correctly put in his submissions, the reasonable person is presumed to know the history of the relationship between the person threatened and the person making the threat.

47    Another part of that history, also found in Exhibit 3, was Dr Smith’s initial email to FLTLT Gardner, sent on 3 December 2013. In that email, Dr Smith opined (taking into account his review of her medical file, which included consultations with a psychiatrist by LACW Jesser) that it was more than likely that LACW Jesser had a personality disorder the management of which was “rather straight forward in concept but difficult to apply”.

48    Also part of that history was FLTLT Gardner’s query on 17 December 2013 by email of Dr Smith and Dr Hampson, following her “back briefing” by FSGT Simpson (who had accompanied LACW Jesser), apparently as intended by either or each of these medical officers, about the consultation that day. Her query arose from being briefed that LACW Jesser had said that she “wants to harm people”. She informed Dr Smith that this concerned her and queried “[A]re there other staff members in danger that I ought to be aware of?” In oral evidence, Dr Smith stated that he may not have seen this email at the time, as he was probably on leave at the time.

49    Exhibit 3 also discloses that Dr Smith was back from leave by 13 January 2014. On that day he sent an email to FLTLT Gardner in which he postulated about discharge alternatives (unsuitability or medical) for LACW Jesser and concluded, “I will hopefully have more answers after I see her tomorrow.” Dr Smith was probing for those answers when he elicited the words which became the subject of the charge. In that email Dr Smith also makes reference to a consultation by another medical officer at the Enoggera Medical Centre (inferentially at Gallipoli Barracks) with LACW Jesser on 13 January 2014 in which he describes her behaviour that day as “a ranting and raving patient”. The nature of that “ranting and raving” is not specified but there was no evidence of any adverse physical behavioural sequel by LACW Jesser.

50    After the consultation, Dr Smith gave LACW Jesser a week’s sick leave. He also contacted some members of 36 Squadron, including FLTLT Gardner. As we have already noted, the DFM was not satisfied that Dr Smith believed the particularised threat would be carried out. Exhibit 3 also contains a Defence Health Information record in respect of LACW Jesser in which an “update” entry of 21 January 2014 records a diagnostic and treatment note in respect of her consultation with Dr Smith on 14 January 2014. In that note, general reference is made to the threat charged, as well as to the course of the consultation with the following opinion expressed (apparently by Dr Smith):

The threat, albeit unlikely to eventuate, was serious with significant intent displayed. The member has been assessed by a consultant psychiatrist, who has attested to the fact that the member has a mild anxiety disorder, but most of her reaction is due to personality conflict. The member has been made J34 – “Non-effective” on medical grounds in order to give the unit time to organise an administrative plan for the member. The member is deemed safe and at no time has conveyed any thoughts of self harm.”

[Emphasis added]

Dr Smith was not just the person to whom the threat charged was made but also, as it happened, qualified to express an opinion about her condition and how that might or might not manifest itself. This opinion, too, is a circumstance of which the reasonable person is taken to be aware.

51    Another circumstance, to which the Chief of Air Force referred in submissions, was that LACW Jesser was a member of a disciplined service and that the threat was made by her in respect of her superior officer.

UNREASONABLE TO CONVICT?

52    The pleaded ground of appeal requires us independently to consider whether, on the whole of the evidence, it was open to the DFM to be satisfied beyond reasonable doubt that LACW Jesser was guilty of the offence charged: M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606; SKA v R (2011) 243 CLR 400. That entails consideration of both the sufficiency and the quality of the evidence.

53    In Bunting v Gokel at [12] Mildren J observed that, “common sense dictates that the whole of the conduct of the accused, including the nature of the statements and the context and manner in which they were spoken, must be considered by the tribunal before it can be determined whether a threat [in the present case, to inflict grievous bodily harm] has been made”. That was in relation to whether there was a threat at all but the same common sense requirement of context attends deciding whether it was open to conclude beyond reasonable doubt, objectively, that a reasonable person would have had the fear specified in s 31(b)(ii). Here, also, as in Bunting v Gokel, context does not mean “snap shots” from what is a continuous episode.

54    We accept that it does not necessarily follow from a conclusion that Dr Smith was not himself put in fear that a reasonable doubt must exist. However, Dr Smith was as good a proxy for a reasonable person in the circumstances as could be conceived. The relevant circumstances included that the words charged were uttered to a medical practitioner who was, for the best of clinical and therapeutic reasons, deliberately probing, if not provoking, LACW Jesser’s thoughts in the privacy of a consultation room; and the knowledge that LACW Jesser was in distress, and had in the past been prone to make dramatic threats of harm, never carried out; and that the statement charged was made in an environment of expected and medically solicited candour. All those are very important aspects of context – or “circumstances” - in this case. In those circumstances, it does not seems to us that a person to whom the words charged were uttered would be put into the kind of fear, alarm or terror, the prevention of which is the rationale of the offence.

55    The Chief of Air Force was right to highlight the circumstance of LACW Jesser’s membership of a disciplined force and that the threat charged related to her superior officer. This circumstance is not to be dismissed as a trite given. That a member of a disciplined force would so conduct herself is, measured by the standard of a reasonable person, confronting, as one might reasonably expect that subordination would carry with it an appreciation of just how unacceptable is such behaviour in relation to a superior. The Chief of Air Force’s point was that the uttering of the threat in this circumstance made it all the more objectively shocking and thus assisted in the proof of the element for which s 31(b)(ii) provides. We have expressly taken this into account but the countervailing consideration, and it is a telling one, is that Dr Smith was deliberately and for the best of reasons engendering a clinical diagnostic dialogue in which the inhibitions of rank were relaxed so as to enable him better to understand LACW Jesser’s condition. Context, truly, is everything in relation to this element of the offence, as it can be also in other cases, as Bunting v Gokel highlights, in deciding whether there is even a threat at all.

56    When all of these factors are taken into account and the true meaning of the s 31(b)(ii) element appreciated, especially what is entailed in “fear” and “would”, our firm conclusion is that it was not open for the DFM to conclude beyond reasonable doubt that a reasonable person in the circumstances would fear that the threat would be carried out. That the DFM concluded otherwise appears to us to have been the result of his applying, as he understandably considered he was obliged, statements about this element made in McEwan v Rohan.

DISPOSITION

57    It follows that the appeal should be allowed and the conviction quashed.

58    Necessarily, quashing of the conviction means that the foundation for the sentence of dismissal from the Defence Force no longer exists and that LACW Jesser remains a member of the Defence Force. The allowing of her appeal does not mean that the Chief of Air Force is prohibited from making, according to law, such decision, if any, under Reg 87 of the Defence (Personnel) Regulations 2002 (Cth) as he may be disposed in respect of LACW Jesser’s continued membership of the Defence Force.

Associate:

Dated:    25 August 2015