DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Williams v Chief of Army [2016] ADFDAT 3

ORDERS

THE TRIBUNAL ORDERS THAT:

1.    The period within which the appeal and application for leave to appeal herein must be lodged be extended to the date on which it was lodged.

2.    Leave to appeal, insofar as it is required, be granted.

3.    The appeal be dismissed.

REASONS FOR DECISION

TRACEY and HILEY JJ:

1    The appellant, Sergeant Andrew Lewis Williams, pleaded not guilty to three charges, as follows (the crucial conduct in each being emphasised):

(1)    [DFDA s 61(3) and Crimes Act 1900 ACT s 60(1)] Engaging in conduct outside the Jervis Bay Territory that is a Territory offence, being the offence of an act of indecency without consent—Being a Defence member in Toowoomba, in the State of Queensland on or about 26 January 2014 committed an act of indecency in the presence of [the complainant, a female Army sergeant] by stroking his penis with his hand inside his pants, without her consent, knowing she was not consenting or being reckless as to whether she was consenting.

(2)    [DFDA s 61(3) and Crimes Act 1900 ACT s 60(1)] Engaging in conduct outside the Jervis Bay Territory that is a Territory offence, being the offence of an act of indecency without consent—Being a Defence member in Toowoomba, in the State of Queensland on or about 26 January 2014 committed an act of indecency on [the complainant] without her consent, knowing she was not consenting or being reckless as to whether she was consenting by pressing his penis against her thigh and moving it against her thigh.

(3)    [DFDA s 61(3) and Crimes Act 1900 ACT s 26] Engaging in conduct outside the Jervis Bay Territory that is a Territory offence, being the offence common assault—Being a Defence member in Toowoomba, in the State of Queensland on or about 26 January 2014 assaulted [the complainant] by touching her with his hand on her inner right thigh.

2    On 23 April 2015, a Defence Force Magistrate (“DFM”) convicted him of the first, but acquitted him of the second and third, charges. By notice of appeal dated 15 November 2015, he appeals to this Tribunal from his conviction on the first charge, and applies for an extension of time in which to do so. The respondent Chief of Army does not oppose an extension, under s 21(1)(b) of the Defence Force Discipline Appeals Act 1955 (Cth) (“the DFDAA”), of the time for appeal until the date on which it was lodged.

BACKGROUND

3    At the time of the conduct the subject of the charges, the appellant and the complainant were both Sergeants in the Australian Regular Army. They had met through their service and had known each other since about 2004, when they were both posted to Canberra. In 2011, they were both posted to the Defence Force School of Signals, Electronic Warfare Wing, at Borneo Barracks, Cabarlah, as instructors. By 2014, the appellant was posted to 7th Signals Regiment, also at Borneo Barracks, Cabarlah.

4    On 26 January 2014, SGT Williams and his wife Rachel hosted an Australia Day barbeque at their private residence in Toowoomba. Prior to the barbeque, it had been agreed between SGT Williams and the complainant that she would stay the night at SGT Williams’s residence, as she planned to consume alcohol and did not want to have to call a taxi for the 25-kilometre trip home to her residence.

5    On the morning of 26 January, the complainant went to the gym at Borneo Barracks before collecting some food and drinks for the barbeque—a carton (two dozen) premixed lemon/vodka drinks, a six-pack of beer, and an open bottle of Canadian Club whisky, which contained a quantity of whisky. She also took some decorations for the party.

6    At about midday, the complainant arrived at the Williams residence. She was the first guest to arrive. Others followed: Warrant Officer Class Two Chris Pleszkun (who was the complainant’s supervisor) and his wife and their children; Sergeant Scott Mair (also from the School of Signals) and his wife; and Sergeant Rebecca Domjahn (a close friend of the complainant) and her husband then Petty Officer (now Sub Lieutenant) David Myers (both of whom were posted to the School of Signals) and their children.

7    SGT Domjahn and PO Myers left at about 2100. They were followed by WO2 Pleszkun and his family, and then by SGT Mair and his family. The complainant was offered a lift home on a couple of occasions, but she was enjoying the evening and was not ready to leave; she confirmed with Mrs Williams that she could stay for the night, and a mattress was prepared for her and located in the dining room area. Once all the other guests had left, SGT Williams, Mrs Williams, and the complainant remained outside in the patio area and continued talking and drinking.

8    Mrs Williams retired at 0250. She noticed the time, and hers is the only evidence which establishes the time with any precision. The complainant and the appellant remained, listening to a song about Afghanistan and reminiscing.

9    It was at this point that, according to the complainant, she noticed that the appellant, who was sitting about 1.5 metres from her, had one hand—she believed it was his left hand—down and inside the front of his pants. She at first thought that the appellant might be adjusting himself or scratching, but after a while concluded that he was not, observing a “slow movement of his hand underneath his pants on his groin”. She asked, “Are you doing what I think you’re doing? That’s disgusting”, and told him to stop. She says that the appellant removed his hand from his pants without saying anything. That was the subject of Charge 1.

10    Not long afterwards, according to the complainant, she decided that she should go to bed. She stood up and moved towards the door to the room where she was going to sleep. The appellant then endeavoured to hug her, and to push his face in front of hers, as if trying to kiss her. She was trying to push him away, and could feel his body against her leg; it felt to her as if he was slowly rubbing himself on her and as if he had an erection. This continued for 20 to 30 seconds before she succeeded in pushing the appellant away. That was the subject of Charge 2.

11    The complainant says that she then moved inside to go to bed, on the mattress which had been prepared for her earlier in the day. After she had fallen asleep—possibly half an hour after she went to bed—she was awoken by the back of her shorts being pulled down. She was lying face down, and propped herself up and brushed or knocked away the hand and said, “Fuck off, leave me alone, and go to bed with your wife”. There was no response, but she believes the person—whom she did not see—left. At trial she did not recall what happened, or hearing the person walk away, although she accepted that in an earlier statement she had said that she heard footsteps leave the room.

12    Next, as she remained lying on her stomach, awake, in a state of some shock at what had happened, she felt someone come and lie in the bed next to her, and slide a hand underneath her right thigh, pushing towards her groin. This was the subject of Charge 3. She said, “Fuck off. Go away, leave me alone. Go to bed in your own bed with your wife”. This time she saw that it was the appellant. He did not get out of the bed, but remained there. She used her pillow and blanket to create a barrier between them. She says she lay on the bed sobbing, until she heard the Williams children wake in the morning, when she jumped up and moved over to the couch, where she sat with them. The appellant remained asleep on the other side of the bed. When Mrs Williams emerged and came to the kitchen and asked what he was doing on the bed, the complainant says she replied that the appellant was being an idiot, but did not go into further detail.

13    When she had sufficiently sobered up to drive, the complainant left. Later on 27 January she related what had happened to PO Myers and SGT Domjahn, and subsequently, in varying degrees of detail, to a number of others.

14    On 31 January, the appellant (who had been endeavouring to contact the complainant to arrange for the return of her esky) sent her a text message: “Hey, [complainant], have been trying to catch up and apologise for being a useless drunk the other night. I’m sorry about that. I dropped over your Esky this morning, just out the front of your place. I hope that was okay?”.

15    At the trial, the prosecution case comprised the evidence of the complainant (who the DFM found to be an honest and impressive witness, who made an earnest attempt to recall events to the best of her recollection, and whose evidence he accepted “in most respects”), and that of a number of witnesses to whom the complainant had related her complaint, to which it will be necessary to refer further. The defence case comprised the evidence of the appellant (whom the DFM found less impressive, and “less than convincing” in his record of interview, but unshaken in cross-examination), and that of Mrs Williams.

16    The appellant denied the conduct alleged against him. He said that after Mrs Williams went to bed, he finished his drink and had a cigarette, and told the complainant he was going to bed. They walked inside, he following her; she hopped into the bed that had been prepared for her as he went to his bedroom and went to bed. He and his wife talked briefly, had sex, and he went to sleep. When he woke the next morning it was early but light; he could hear the television, indicating that the children were up. He went to the kitchen, got a drink of water, and lay down on the floor in the lounge room, as the boys had one couch each and he needed to lie down. One of the boys joined him on the floor. It was quite cold, so he got up and saw the complainant sleeping on the mattress, with the blanket that was usually in the lounge. He walked over and said “you’ve got the blanket, I’m coming in, I’m cold” and got beneath the blanket; the complainant woke up, hopped straight out of bed and sat with the boys in the lounge. Later his wife told him that it was not appropriate for him to have got into the bed, and that he may have offended the complainant by doing so. This was consistent with the version he had given, apparently spontaneously, in his record of interview.

17    The evidence of Mrs Williams is of considerable importance, because the DFM accepted it. She said that she had gone to bed at 0250 (of which she was certain because she had looked at a clock), leaving the appellant and the complainant listening to a song about Afghanistan and reminiscing. About 15 minutes later the appellant came to bed. After some conversation (for 5 to 10 minutes), at her instigation they had sex (for, she estimated, between 45 minutes and an hour), and then went to sleep (which on her estimates would have been not before about 0400). When she woke in the morning, the sun was well and truly up; the appellant was awake or woke up and said that he was going to get a drink of water and left the bedroom. Shortly afterwards she heard the complainant and the children talking and decided to get up; she found the complainant on the couch with the two Williams children, and the appellant asleep on the mattress where the complainant had been sleeping. She looked at the complainant, and out to the mattress in the dining room where the appellant was asleep; the complainant said that he’d kicked her out and used a foot gesture; Mrs Williams said “Sorry”. Mrs Williams denied that the complainant had said, “He was being an idiot last night”. Mrs Williams said that later on, when the appellant had woken up, she suggested to him that he should send a text to the complainant to apologise for kicking her out of bed, and he agreed to do so.

18    On Charge 1, the evidence was fundamentally that of the complainant and the appellant. The DFM accepted the complainant, whose credibility he considered to be reinforced by the evidence of recent complaint, and rejected the appellant. Accordingly, the appellant was convicted on Charge 1.

19    On Charge 2, again, the evidence was fundamentally that of the complainant and the appellant. The DFM was satisfied beyond reasonable doubt, on the complainant’s evidence, that the appellant had approached her and tried to hug and kiss her, in the course of which his groin pressed up against her thigh. He rejected the appellant’s denial of having engaged in that conduct, but “having regard to the circumstances described by the complainant” was not satisfied beyond reasonable doubt that the appellant intentionally pressed and moved his penis against her thigh, and accordingly acquitted the appellant on this Charge.

20    On Charge 3, the relevant evidence included, in addition to that of the two chief protagonists, that of Mrs Williams. On this, the DFM concluded:

“The situation is less clear with the third charge. The evidence of Mrs Williams, which I do accept for the reasons outlined, would make the opportunity for the accused to have engaged in the conduct as alleged by the complainant less likely. This is not to lose sight of the fact that the accused did in fact lay down beside the complainant. Despite his evidence that the complainant immediately got up and went and sat on the couch with the accused’s children, it would be open, in my view, to find that some inappropriate touching by the accused on the complainant occurred at this time.

The accused’s explanation for doing so is far from convincing. That he was observed to sleep on the mattress even by his wife provides some support for the complainant’s allegations in respect of Charge 3. But in this trial I must be satisfied of the guilt of the accused beyond reasonable doubt. In my view, it is difficult to reconcile the evidence of Mrs Williams as to when the accused left the bedroom and went outside and that of the complainant as to when the touching alleged in Charge 3 occurred.

Again, in expressing this view, I am in no way doubting the honesty of the complainant. I suspect that the accused, perhaps in a drunken state, did engage in inappropriate conduct with the complainant as she lay on the mattress. But I am unable to be satisfied beyond reasonable doubt as to the reliability of the complainant’s evidence in respect of Charge 3 and, in particular, how it is particularised, as proving that conduct, particularly in light of the evidence of Mrs Williams, which, in my view, is not entirely consistent and arguably inconsistent with the timings and opportunities available to the accused to engage in the conduct alleged.

I have also had regard to the complaint evidence which I accept, in respect of Charge 3, may not be entirely consistent. In reaching these findings, I have also had regard to the text message sent by the accused on 31 January 2014. Whilst the text message might, on one view, be seen to be an admission by the accused, I cannot be satisfied that the accused’s explanation, supported as it is by his wife’s evidence, for sending that text message is untrue.”

THE APPEAL

21    The grounds of appeal specified in the notice are that:

(a)    the DFM lacked jurisdiction to hear and determine the charges and thereby wrongly concluded that the Court had jurisdiction to hear and determine the charges;

(b)    the finding of guilt on Charge 1 was inconsistent with the acquittals on Charges 2 and 3; and

(c)    the inconsistencies in the evidence of fresh or recent complaint were not taken into account or given due weight by the DFM such as to cause the trial to miscarry.

22    Under Ground (a), the appellant submitted that there was insufficient connection between the charged conduct and the maintenance of military discipline to justify the lawful exercise of jurisdiction under the Defence Force Discipline Act 1982 (Cth) (“the DFDA”). This plainly raises a question of law, under DFDAA s 23(1)(b). However, the appellant was astute to emphasise that no question of constitutional validity was raised; the argument was simply that, on the particular facts, jurisdiction was not attracted for want of sufficient service connection.

23    Ground (b) is a complaint of factual, not legal, inconsistency (cf MacKenzie v The Queen (1996) 190 CLR 348 at 366) between the conviction on Charge 1, and the acquittals on the other Charges. In substance it is a contention that the reasonable doubt which the DFM must have entertained about the complainant’s evidence on Charge 3 should have led to similar doubt about her evidence on Charge 1.

24    Ground (c), insofar as it is framed as a failure to take into account a relevant consideration and cloaked as a question of law, is misconceived. The DFM was not exercising a discretion attended by mandatory relevant considerations, but making findings of fact. In truth it is a complaint that the DFM should not have been satisfied beyond reasonable doubt of the appellant’s guilt on Charge 1 because of inconsistencies in the recent complaint evidence.

25    Thus both Grounds (b) and (c) are in reality factual, not legal, grounds of appeal under s 23(1)(d) (that, in all the circumstances of the case, the conviction is unsafe or unsatisfactory) or possibly s 23(1)(a) (that the conviction is unreasonable or cannot be supported having regard to the evidence), and require leave under s 20(1).

26    As will appear, at least Ground (b)—the complaint that the conviction is inconsistent with the acquittals—raises issues of substance, and accordingly leave to appeal on the “unsafe and unsatisfactory” ground should be granted.

THE JURISDICTIONAL OBJECTION—GROUND OF APPEAL (A)

27    It is contended in the first ground of appeal that there was insufficient connection between the charged conduct and the maintenance of military discipline to justify the lawful exercise of jurisdiction under the DFDA.

28    The appellant was first arraigned before COL Woodward DFM on 11 December 2014, at which time an objection was taken to jurisdiction. Applying the “service connection” test, that DFM held that there was sufficient connection to found jurisdiction. COL Woodward subsequently recused herself, and the appellant was again arraigned before WGCDR Lynham DFM, before whom the objection to jurisdiction was renewed and who again (on 20 April 2015) overruled the objection, essentially adopting the reasons which had been given by his predecessor.

29    As was submitted for the respondent, the appellant’s contention assumes that for jurisdiction under the DFDA to be available, the “service connection” test must be satisfied—that is, the proceedings can reasonably be regarded as serving the purpose of maintaining and enforcing service discipline. But the appellant concedes that, if the “service status” test is applicable, then there could be no doubt as to jurisdiction—because the appellant is, self-evidently, a defence member. The state of the law as to the requisite nexus was summarised by McHugh J in Re Aird; Ex parte Alpert (2004) 220 CLR 308, as follows:

“[31]    A trilogy of cases in this Court has held that, although a court martial tribunal exercises judicial power, it does not exercise the judicial power of the Commonwealth. That is because the power to make laws with respect to the defence of the Commonwealth under s 51(vi) of the Constitution contains the power to enact a disciplinary code that stands outside Ch III of the Constitution [Re Tracey; Ex parte Ryan (1989) 166 CLR 518; Re Nolan; Ex parte Young (1991) 172 CLR 460; Re Tyler; Ex parte Foley (1994) 181 CLR 18]. In Re Tracey; Ex parte Ryan, a majority of the Court held that a Defence Force magistrate, not appointed in accordance with Ch III of the Constitution, had jurisdiction to hear a charge of making an entry in a service document with intent to deceive, as well as two charges of being absent without leave. Mason CJ, Wilson and Dawson JJ held that ‘‘it is not possible to draw a clear and satisfactory line between offences committed by defence members which are of a military character and those which are not’’ [Re Tracey (1989) 166 CLR 518 at 544]. Their Honours said [Re Tracey (1989) 166 CLR 518 at 545]:

‘It is open to Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence, if committed by a defence member. As already explained, the proscription of that conduct is relevant to the maintenance of good order and discipline in the defence forces. The power to proscribe such conduct on the part of defence members is but an instance of Parliament’s power to regulate the defence forces and the conduct of the members of those forces. In exercising that power it is for Parliament to decide what it considers necessary and appropriate for the maintenance of good order and discipline in those forces.’

[32]    Two other Justices in the majority in Re Tracey (Brennan and Toohey JJ) took a different view of the power of Parliament to invest service tribunals with jurisdiction to hear offences. Brennan and Toohey JJ said that two constitutional objectives had to be reconciled [Re Tracey (1989) 166 CLR 518 at 569–570]. The first was dictated by s 51(vi) which empowered the parliament to give service authorities a broad authority to impose discipline on defence members and defence civilians. The second was dictated by Ch III and s 106 of the Constitution. It consisted in the recognition of the pre-ordinate jurisdiction of the civil courts and the protection of civil rights which those courts afforded civilians and defence members including defence civilians who are charged with criminal offences. Their Honours said [Re Tracey (1989) 166 CLR 518 at 570]:

‘To achieve these objectives, civil jurisdiction should be exercised when it can conveniently and appropriately be invoked and the jurisdiction of service tribunals should not be invoked, except for the purpose of maintaining or enforcing service discipline.’

[33]    They went on to say that “proceedings may be brought against a defence member or a defence civilian for a service offence if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline” [Re Tracey (1989) 166 CLR 518 at 570]. Brennan and Toohey JJ said that the power conferred on service tribunals was “sui generis which is supported solely by s 51(vi) for the purpose of maintaining or enforcing service discipline” [Re Tracey (1989) 166 CLR 518 at 574]. Deane and Gaudron JJ, the other justices who heard Re Tracey, dissented.

[34]    The division of opinion that arose in Re Tracey continued in Re Nolan; Ex parte Young [(1991) 172 CLR 460], a case decided after Wilson J had left the Court. In Re Nolan, a majority of the Court held that a Defence Force magistrate, not appointed in accordance with Ch III, had jurisdiction to hear charges concerning falsifying and using a service document—a pay list. Mason CJ and Dawson J said that they saw no reason to resile from the views that they had expressed in Re Tracey as to the scope of legislative power [Re Nolan (1991) 172 CLR 460 at 474]. They considered that it was open to the Parliament to provide that any conduct which constitutes a civil offence should constitute a service offence if committed by a defence member. Brennan and Toohey JJ also maintained the views that they had expressed in Re Tracey. They said that “the relevant power conferred by s 51(vi) does not extend to the making of a law to punish defence members and defence civilians for their conduct unless the proceedings taken in order to punish them can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline” [Re Nolan (1991) 172 CLR 460 at 484]. Later their Honours said [Re Nolan (1991) 172 CLR 460 at 489]:

‘Service discipline is not merely punishment for wrongdoing. It embraces the maintenance of standards and morale in the service community of which the offender is a member, the preservation of respect for and the habit of obedience to lawful service authority and the enhancing of efficiency in the performance of service functions. Here, the charges are obviously ‘service connected’ but that is not the ultimate criterion though it is an important element in determining whether proceedings on those charges could reasonably be regarded as serving the purpose of maintaining and enforcing service discipline.’

Deane and Gaudron JJ again dissented, holding to the views that they had expressed in Re Tracey. I agreed with the judgment of Deane J.

[35]    As I explained in the third of the trilogy—Re Tyler; Ex parte Foley—the “divergent reasoning of the majority judges in Re Tracey and Re Nolan means that neither of those cases has a ratio decidendi” [Re Tyler (1994) 181 CLR 18 at 37]. In Re Tyler, a majority of the Court held that a general court martial had jurisdiction to hear a charge against an Army officer that he had dishonestly appropriated property of the Commonwealth. Re Tyler also failed to obtain a majority of justices in favour of any particular construction of the defence power in relation to offences by service personnel.

[36]    The difference between the views of Mason CJ, Wilson and Dawson JJ and on the other hand Brennan and Toohey JJ in these cases is the difference between the “service status” view of the jurisdiction and the “service connection” view of that jurisdiction. The “service status” view—which is now applied in the United States [Solorio v United States (1987) 483 US 435]—gives a service tribunal jurisdiction over a person solely on the basis of the accused’s status as a member of the armed forces. The “service connection” view of the jurisdiction requires a connection between the service and the offence. It was the view formerly accepted in the United States [O’Callahan v Parker (1969) 395 US 258]. However, Solorio v United States rejected the “service connection” view. In Relford v US Disciplinary Commandant [401 US 355 (1971) at 365], the Supreme Court had referred to twelve factors which the Court considered O’Callahan v Parker [(1969) 395 US 258 at 273–274] had emphasised in requiring a service connection. They were:

‘1.    The serviceman’s proper absence from the base.

2.    The crime’s commission away from the base.

3.    Its commission at a place not under military control.

4.    Its commission within our territorial limits and not in an occupied zone of a foreign country.

5.    Its commission in peacetime and its being unrelated to authority stemming from the war power.

6.    The absence of any connection between the defendant’s military duties and the crime.

7.    The victim’s not being engaged in the performance of any duty relating to the military.

8.    The presence and availability of a civilian court in which the case can be prosecuted.

9.    The absence of any flouting of military authority.

10.    The absence of any threat to a military post.

11.    The absence of any violation of military property.

One might add still another factor implicit in the others:

12.    The offense’s being among those traditionally prosecuted in civilian courts.’

[37]    The argument of the parties in the present case accepted, sometimes expressly but more often by assumption, that the general words of s 51(vi) of the Constitution must be read down to comply with Ch III of the Constitution, as interpreted in the trilogy of Tracey, Nolan and Tyler. Since those cases, it seems to have been generally accepted [Tracey, “The Constitution and Military Justice”, paper delivered at the Annual Public Law Weekend: “The Australian Constitution in Troubled Times”, Canberra, 8 November 2003, p 13]—indeed it was accepted by the Judge Advocate in the present case—that the proper test is the “service connection” test and not the “service status” test.”

30    About that passage, the following observations may be made. First, the so-called “service connection” test requires, and requires only, that the proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline; while, in determining that question, “service connection” is an important aspect, it is not the ultimate criterion. Secondly, the factors listed by McHugh J (extracted from Relford v US Disciplinary Commandant 401 US 355 (1971)) are factors the existence of which may contribute to a finding of absence of service connection; however, as McHugh J explained, those factors are not exhaustive (Re Aird at 324 [45]), and it does not follow that it is necessary to exclude all or any of them in order to establish that proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline. Thirdly, the “general acceptance” since the trilogy cases of the “service connection” test has proceeded on the basis that it is the “lowest common denominator” and that if it is satisfied, the “service status” test will necessarily be satisfied; it has not proceeded on the basis of any judgment that it is necessarily the correct or preferable view.

31    The appellant pointed to the circumstances that the charged conduct took place when all concerned were off duty, on a public holiday, at a private dwelling, in town, not on base, and in a purely social and domestic setting. The appellant’s submissions stressed that the offence was complete when it was committed in those circumstances, and jurisdiction could not be attracted by later developments—such as any need to provide counselling for the complainant, or to make administrative arrangements for her posting because of difficulties that might be encountered by her working in close proximity to the appellant.

32    In his powerful if somewhat polemical dissent in Solorio v United States 483 US 435 (1987), Marshall J (with whom Brennan J and, in this respect, Blackmun J agreed)—who would have retained the “service connection” test—explained why (in his Honour’s view) it was not satisfied in that case, which concerned sexual abuse by the petitioner of children of fellow service personnel (483 US 435 at 462–463, emphasis added):

“Petitioner’s offenses did not detract from the performance of his military duties. He committed these crimes while properly absent from his unit, and there was no connection between his assigned duties and his crimes. Nor did petitioner’s crimes threaten people or areas under military control. The crimes were committed in petitioner’s private home in the civilian community in Juneau, where there is not even a base for Coast Guard personnel. Petitioner’s acts were not likely to go unpunished; the court-martial judge determined that the offenses were of a type traditionally prosecuted by civilian courts, that such courts were available, and that, while the Alaska courts had deferred prosecution in light of the court-martial proceeding, the State had not declined to prosecute the offenses. Nor did the crimes implicate any authority stemming from the war power; they were committed within the territorial United States while the Nation was at peace.

Moreover, the crimes caused no measurable interference with military relationships. Though the victims were dependents of Coast Guard members, the court-martial judge found that there was only de minimis military interaction between petitioner and the fathers of the victims, and that the relationships between petitioner and the families of the victims “were founded primarily upon the ages and activities of the children and additionally upon common sporting interests, common spousal interest and employment and neighborly relationships”, rather than the connection of petitioner and the families through the Coast Guard. Because the crimes did not take place in an area within military control or have any effect on petitioner’s military duties, their commission posed no challenge to the maintenance of order in the local command. The military judge found that the Government had not demonstrated any impact of the offenses on “morale, discipline, [or] the reputation or the integrity of the Coast Guard in Juneau”. The only connection between the military and the offenses at issue was the fact that the victims were military dependents. But the military judge found explicitly that the military association of petitioner and the victims’ fathers did not facilitate petitioner’s crimes, and that “[t]he impact apparent in this case, that is, on the parents and the victims themselves is no different than that which would be produced by a civilian perpetrator”.”

33    Even in that minority view of the service connection test there are apparent important distinctions with the present case, as appears from the emphasised passages in the above extract. Here, the victim was a military member, who worked in close proximity to the appellant, on the same base, and shared the same mess. The relationship between them was founded on their common service in the Australian Army. The conduct was calculated to affect their future ability to work together under those conditions. And whatever might have been the position in the United States in 1987, in Australia in 2014 such conduct if it became known would inevitably impact on the morale and reputation of the Army and the Australian Defence Force (“the ADF”), in Toowoomba and elsewhere.

34    The minority judgment in Solorio appears to insist that there be evidence that conduct has adversely impacted on good order, discipline, morale, welfare or reputation of a service or force element if its effect in that regard is to be relied on to establish service connection. However, whether conduct constitutes a service offence must be capable of ascertainment when it is committed, and cannot depend on its subsequent effect in fact. As the appellant argued, upon assumption that the service connection test governs, conduct which has no sufficient service connection when committed cannot be converted into a service offence by later events.

35    Nonetheless, the requisite impact on service discipline may lie in the inherent potential of the conduct to have future consequences in the service environment. If conduct is calculated to impact adversely on the good order, discipline, morale, welfare or reputation of a service or force element, that will tell in favour of a conclusion that the requisite service connection exists, regardless of whether or not such impact in fact eventuates. What is important is not its effect in fact, but its potential to have such an effect.

36    Sexual misconduct by one defence member against another—particularly when posted to the same location—is calculated to affect their working and service relationship, as well as the reputation of the Army and the ADF. This was referred to by McHugh J in Re Aird, in the following terms (at 323–324 [42] and 325 [45]):

“… And it need hardly be said that other members of the Defence Force will be reluctant to serve with personnel who are guilty of conduct that in the Australian Capital Territory amounts to rape or sexual assault. This may be out of fear for personal safety or rejection of such conduct or both. Such reluctance can only have a detrimental effect on the discipline and morale of the armed services.

…

… In any event, as Brennan and Toohey JJ pointed out in Re Tracey, a service connection is evidence of but not definitive of what is necessary to maintain discipline and morale in the armed forces. A soldier who rapes another person undermines the discipline and morale of his army. He does so whether he is on active service or recreation leave.”

37    In White v Director of Military Prosecutions (2007) 231 CLR 570, CPO White had been charged with seven Territory offences, involving acts of indecency or assault on five lower-ranking female members of the ADF, which occurred when the accused and the complainants were off duty, not in uniform, and away from Commonwealth premises. It was not suggested that there was insufficient service connection to found jurisdiction: see (2007) 231 CLR 570 at 580 [3] (Gleeson CJ), 650 [244] (Callinan J, with whom Heydon J agreed). In Lane v Morrison (2009) 239 CLR 230, LS Lane had been charged with an act of indecency after a day of drinking and golf while on a recruitment drive; he was off duty, out of uniform and on private property, but the suggestion that jurisdiction under the DFDA would not extend to such circumstances was rejected by French CJ and Gummow J ((2009) 239 CLR 230 at 251 [63]).

38    In our view, sufficient service connection is amply established in the present case. Both the complainant and the appellant were members of the ADF, in the Australian Regular Army. Both were members of the Royal Australian Signals, a relatively small corps. They knew each other through their service. From 2011 and at the time of the conduct charged, the complainant was posted to the Defence Force School of Signals, Electronic Warfare Wing, Borneo Barracks, Cabarlah. The appellant was, at the time of the conduct, posted to 7th Signal Regiment, also located at Borneo Barracks. While they were not then posted to the same unit and were not in the same chain of command, they were on the same base, in close geographical proximity, and shared the same mess, where they would inevitably encounter each other and be expected to socialise. The DFM adopted the reasoning of COL Woodward as to the jurisdictional question. COL Woodward, and hence the DFM, found:

“[T]he 7th Signal regiment at Cabarlah is a reasonably small and specialised unit located on its own, outside of Toowoomba. Although called a regiment, it is not the size of an infantry regiment. Members of the unit undergo specialised training that can only be generally utilised in a Signals unit. It would be clear that the size of the unit (and the corps) would lead to an inference being drawn that everyone would be acquainted with each other at some level, particularly at the Sergeant level, when they would both be members of the Sergeant’s mess, irrespective of the particular part of the regiment they were posted to.”

39    In addition, the function, though off base, was attended by defence members and their families: all the guests at the barbeque were ADF members (and their families).

40    Reference was made to a number of circumstances that arose after the charged conduct. At least on the minority view in Solorio, evidence of such matters is necessary to establish service connection; but the better view is that it is the potential of the conduct and not its actual effect that is significant, and that subsequent events cannot change the legal character of the conduct. However, subsequent events can illustrate the potential inherent in the conduct to have adverse service-related impacts, and it is in that way that these matters are significant. Thus, that the complainant made a complaint to another service member in the same unit, so that her allegations became known within the small unit; that the complainant was fearful after the incident that she would encounter the appellant when walking around the barracks; the consequent necessity to repost her because of the difficulties that would be encountered by her working in close proximity to the appellant; and her request not to return to her specialty of Electronic Warfare so long as the appellant was in that trade, are relevant as proof, if it be needed, of the inherent potential of the charged conduct to have adverse service-related impacts. The inherent potential of such conduct to impact adversely in the service environment is exacerbated when the members are members of the same small corps, working in the same physical environment. As the respondent submitted, because of their pre-existing relationship and the relatively small size of Borneo Barracks, this incident could never have been “left at the front gate”.

41    It follows that proceedings for the punishment of such conduct plainly serve the purpose of maintaining or enforcing service discipline.

42    The respondent submitted that, regardless of satisfaction of the “service connection” test, jurisdiction should be upheld on the footing of the “service status” test. As mentioned above, the “service connection” test has been generally applied since the trilogy cases, not by way of rejection of the “service status” test, but because it represents the “lowest common denominator”, and in the factual situations that have arisen it has not been necessary to resort to “service status” alone to found jurisdiction. As explained in the above extract from the judgment of McHugh J in Re Aird, the “service status” test was preferred by Mason CJ, Wilson and Dawson JJ in Re Tracey; Ex parte Ryan (1989) 166 CLR 518, and adhered to by Mason CJ and Dawson J in Re Nolan; Ex parte Young (1991) 172 CLR 460. Its rationale, as expressed by Mason CJ, Wilson and Dawson JJ in Re Tracey (at 543–544), is this:

“Suffice it to say that both as a matter of history and of contemporary practice, it has commonly been considered appropriate for the proper discipline of a defence force to subject its members to penalties under service law for the commission of offences punishable under civil law even where the only connexion between the offences and the defence force is the service membership of the offender. Such legislation is based upon the premise that, as a matter of discipline, the proper administration of a defence force requires the observance by its members of the standards of behaviour demanded of ordinary citizens and the enforcement of those standards by military tribunals. To act in contravention of those standards is not only to break the law, but also to act to the prejudice of good order and military discipline. It is appropriate that such conduct should be punished in the interests not only of the community but of the defence force as well. There can be little doubt that in war-time or upon overseas service such considerations warrant the treatment of civil offences as service offences and it is open to the legislature to regard the position in peace-time as warranting similar treatment. Good order and military discipline, upon which the proper functioning of any defence force must rest, are required no less at home in peace-time than upon overseas service or in war-time.”

43    The service status test has been adopted by the United States Supreme Court in Solorio—overruling its earlier preference for the service connection test in O'Callahan v Parker 395 US 258 (1969). This appears to have been dependent primarily on giving full and unconstrained effect to the constitutional power of Congress “[t]o make Rules for the Government and Regulation of the land and naval Forces”, but was also supported by policy considerations (483 US 435 at 449–450):

“Since O'Callahan and Relford, military courts have identified numerous categories of offences requiring specialized analysis of the service connection requirement. For example, the courts have highlighted subtle distinctions among offences committed on a military base, offences committed off-base, offences arising from events occurring both on and off a base, and offences committed on or near the boundaries of a base. Much time and energy has also been expended in litigation over other jurisdictional factors, such as the status of the victim of the crime, and the results are difficult to reconcile. The confusion created by the complexity of the service connection requirement, however, is perhaps best illustrated in the area of off-base drug offences. Soon after O'Callahan, the Court of Military Appeals held that drug offences were of such ‘special military significance’ that their trial by court-martial was unaffected by the decision: United States v Beeker, 18 U.S.C.M.A. 563, 565; 40 C.M.R. 275, 277 (1969). Nevertheless, the court has changed its position on the issue no less than two times since Beeker, each time basing its decision on O'Callahan and Relford.”

(Footnotes omitted.)

44    While the High Court cases subsequent to the trilogy cases have not presented the necessity to resolve the issue—because “service connection” was established in any event—there are indications favourable to the “service status” test in Re Aird, in the judgment of Gummow J—with whose judgment Gleeson CJ and Hayne J expressed agreement. While stating that “this [was] no occasion to choose between ‘the service connection’ or any other ‘test’”, his Honour made the following relevant observations:

“[65]    Two passages from the joint judgment of Mason CJ, Wilson and Dawson JJ in Tracey make what for the present case is the essential point. The first passage followed acceptance by their Honours of the premise that [Re Tracey (1989) 166 CLR 518 at 543]:

‘as a matter of discipline, the proper administration of a defence force requires the observance by its members of the standards of behaviour demanded of ordinary citizens and the enforcement of those standards by military tribunals.’

Their Honours continued [Re Tracey (1989) 166 CLR 518 at 544]:

‘There can be little doubt that in war-time or upon overseas service such considerations warrant the treatment of civil offences as service offences and it is open to the legislature to regard the position in peace-time as warranting similar treatment. Good order and military discipline, upon which the proper functioning of any defence force must rest, are required no less at home in peace-time than upon overseas service or in war-time.’

[66]    The second passage in the joint judgment of Mason CJ, Wilson and Dawson JJ in Tracey is as follows [Re Tracey (1989) 166 CLR 518 at 545]:

‘In exercising that power it is for Parliament to decide what it considers necessary and appropriate for the maintenance of good order and discipline in those forces. And Parliament’s decision will prevail so long at any rate as the rule which it prescribes is sufficiently connected with the regulation of the forces and the good order and discipline of defence members.’ (Emphasis added.)

[67]    Article 1, s 8, cl 14 of the Constitution of the United States empowers the Congress “to make Rules for the Government and Regulation of the land and naval Forces”. In his judgment in O’Callahan v Parker [(1969) 395 US 258], Harlan J, in the course of construing that provision, made observations of present significance. This is nonetheless so given that, whilst Harlan J was in dissent, his views later achieved acceptance by the Supreme Court [Solorio v United States (1987) 483 US 435 at 441, 444, 446]. Harlan J said [O’Callahan (1969) 395 US 258 at 281–2 (footnote omitted)]:

‘The United States has a vital interest in creating and maintaining an armed force of honest, upright, and well-disciplined persons, and in preserving the reputation, morale, and integrity of the military services. Furthermore, because its personnel must, perforce, live and work in close proximity to one another, the military has an obligation to protect each of its members from the misconduct of fellow servicemen. The commission of offenses against the civil order manifests qualities of attitude and character equally destructive of military order and safety. The soldier who acts the part of Mr Hyde while on leave is, at best, a precarious Dr Jekyll when back on duty. Thus, as General George Washington recognised: ‘All improper treatment of an inhabitant by an officer or soldier being destructive of good order and discipline as well as subversive of the rights of society is as much a breach of military, as civil law and as punishable by the one as the other’ [Writings of George Washington, vol 14, pp 140–141 (Bicent ed).]’

[68]    Harlan J went on to stress a consideration of particular importance where defence personnel are stationed in other countries, namely, that [O’Callahan (1969) 395 US 258 at 282]:

‘[a] soldier’s misconduct directed against civilians, moreover, brings discredit upon the service of which he is a member.’

[69]    With these further reasons, I support the conclusion that the provisions of the DFDA which permit the trial by general court martial of the prosecutor in respect of the alleged offence are not invalid. The offence provisions of the DFDA are sufficiently connected with the regulation of the Regular Army of which the prosecutor is a member, and with the maintenance of good order and discipline among its members.”

45    The context of Re Aird was admittedly an overseas deployment—in which scope for military jurisdiction is arguably wider than in a domestic Australian peacetime context—albeit a training as distinct from an operational deployment; and the charged conduct occurred while PTE Alpert was on recreational leave. Nonetheless, Gummow J’s endorsement of the passages cited by his Honour from Mason CJ, Wilson and Dawson JJ in Tracey and from Harlan J in O’Callahan v Parker—which judgment was influential in the reinstatement of the “service status” test in Solorio—tends to lend some support to the “service status” test.

46    The Constitution vests command of the Defence Force in the Governor-General as Commander-in-Chief. Command of the Defence Force is an aspect of the executive power. The discipline of the force is an aspect of its command. Service tribunals may act judicially, but they operate within the chain of command to “inform the conscience of the commanding officer”: see Mills v Martin (1821) 19 Johnson’s Supreme Court Reports (NY) 7 at 30, cited with approval in Lane at 257. Ultimately, they operate as part of the command (executive) function, albeit that they act judicially; the presence of the “trappings” of a trial is a necessary and appropriate concomitant of any formal process of adjudication of alleged violations of a disciplinary code in order to afford procedural fairness, but it does not transform the essentially executive nature of the function of maintaining a disciplined and effective defence force into a judicial one: see R v White; Ex parte Byrnes (1963) 109 CLR 665 at 670, 671; cf Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 65; The Shell Company of Australia Limited v Federal Commissioner of Taxation (1930) 44 CLR 530 at 544; R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 5, 6, 8–9, 12. Amenability to service discipline is an incident of being under command of the relevant Service Chief (or, as is now the case, the Chief of the Defence Force) and ultimately the Governor-General—that is to say, having the status of a defence member.

47    The objects of disciplinary proceedings conventionally include protecting the public, maintaining proper standards of professional conduct by members of the relevant profession (here, the ADF), and protecting the profession’s reputation. Thus, conduct extraneous to professional practice attracts professional discipline because it can inform questions of “fitness” of the individual, and the reputation of the profession as a whole. In his dissent in Solorio, Marshall J decried the prospect that under the “service status” test any member of the Armed Forces could be subjected to military jurisdiction for any offense, “from tax fraud to passing a bad check, regardless of its lack of relation to ‘military discipline, morale and fitness’” (483 US 435 at 467). However, “tax fraud” has been held to provide a basis for disciplinary proceedings against barristers (see, e.g., New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284), as no doubt would issuing bad cheques. The notion that disciplinary tribunals can impose disciplinary sanctions for conduct that is also a criminal offence, without offending the rule against double jeopardy, is well established: see, for example, Hardcastle v Commissioner of Police (1984) 53 ALR 593, 596–597. As was said (by a Full Court of the Federal Court) in Hardcastle (a case concerning disciplinary proceedings against a police officer for misconduct which was also a criminal offence) (at 597):’

“If the appellant were charged with, and convicted of, the same unlawful assaults as are the subject of the disciplinary offences he would not face double jeopardy or be punished twice for the same offence. He would be convicted of an offence against the criminal law and be guilty of a breach of the disciplinary code of the Australian Federal Police. The two proceedings are essentially different in character and result.”

48    Likewise, if a defence member be convicted of a service offence under the DFDA and subsequently prosecuted under civilian criminal law in respect of the same conduct, he or she does not face double jeopardy, but would be convicted of an offence against the criminal law and be guilty of a breach of the disciplinary code constituted by the DFDA.

49    It is, as pointed out in Re Tracey by Mason CJ, Wilson and Dawson JJ, in the passage subsequently endorsed in Re Aird by Gummow J with the concurrence of Gleeson CJ and Hayne J, for Parliament to decide what it considers necessary and appropriate for the maintenance of good order and discipline in those forces, and Parliament’s decision will prevail so long at any rate as the rule which it prescribes is sufficiently connected with the regulation of the forces and the good order and discipline of defence members. In the military context, the commission of crimes by defence members, even when off duty and extraneous to their service, can reflect on their fitness, and on the reputation of the ADF as a whole. Parliament may thus decide, as it has, that any crime committed by a defence member may be prosecuted as a service offence.

50    Moreover, as recognised in Solorio, the “service status” test has the advantage of providing a much clearer and cleaner test than that of “service connection”.

51    The DFDA attaches amenability to service discipline to status as a “defence member” (and, in certain cases, a “defence civilian”). In other words, the legislation is framed in terms of the “service status” test. As explained above, no decision of the High Court rejects the “service status” test, and it has never been held that, insofar as the DFDA embraces the “service status” test, it is beyond power. Accordingly, even if the “service connection” test were not satisfied, in the absence of any decision of the High Court precluding its acceptance, we would find jurisdiction on the basis of the “service status” test.

52    Ground of appeal (a) therefore fails.

UNSAFE AND UNSATISFACTORY—GROUND OF APPEAL (B) AND (C)

53    As explained above, both Grounds (b) and (c) are in reality factual, not legal, grounds of appeal under s 23(1)(d) (that in all the circumstances of the case, the conviction is unsafe or unsatisfactory), or s 23(1)(a) (that the conviction is unreasonable or cannot be supported having regard to the evidence). Ground (b) is essentially that, the DFM having found that he could not be satisfied beyond reasonable doubt of the reliability of the complainant’s evidence on Charge 3, he ought to have entertained a similar doubt in respect of her evidence on Charge 1. Ground (c) is in essence that there are such shortcomings in the “recent complaint” evidence as to render reliance on it unsafe. It is convenient first to address the “recent complaint” aspect, because it has some relevance also to Ground (b).

The “recent complaint” evidence—Ground (c)

54    Ground (c) is that “[t]he inconsistencies in the evidence of fresh or recent complaint were not taken into account or given due weight by the learned Defence Force Magistrate such as to cause the trial to miscarry.” The appellant contended that the DFM ignored a significant number of “inconsistencies in the evidence”, failed to take into account “the important issue of credit” and should not have believed the complainant because of the inconsistencies in the complaint evidence. As already explained, this is in reality an aspect of a complaint that the conviction is unsafe or unsatisfactory.

55    Evidence of “recent complaint” on the part of the complainant was received at the trial, in respect of reports she had made to numerous others. That evidence may be summarised as follows.

56    According to SGT Domjahn, in the mid-morning of 27 January, while at the shops, she received a phone call from the complainant, who asked if she was at home and if she could come over, and said that she had “had to stop something” the previous evening; she sounded upset. The complainant arrived at the residence which SGT Domjahn shared with her husband, PO Myers, and spent most of the day there. The complainant appeared distressed and upset, and was crying. Similarly, PO Myers described the complainant as being “all over the place” and crying, and blaming herself for “hanging out with guys”. SGT Domjahn asked the complainant “what happened last night?”, and she replied “Willy had a go at me”. SGT Domjahn asked, “what do you mean ‘a go’?”, and the complainant said “No, he had a go”, and then described, using a hand gesture, an act of masturbation.

57    The complainant subsequently explained that, after the appellant’s wife had gone inside and did not return, the appellant had his hand down his pants and it looked like he was scratching himself. She recounted that she had said, “Stop. That’s filthy”, to which the appellant replied, “Stop what?”. The appellant kept doing it for a while; the complainant said something like, “That’s disgusting. Go to bed. Your wife’s inside”. The appellant said “Sorry. I’m going to bed”, and gave the complainant a long hug, during which “she could feel his groin pushing up against her”. She then went to bed on the mattress. She said that she woke up and could feel the appellant’s hand down the front area of her pants, in the groin region. At some point she said that the appellant was standing at the end of her mattress and appeared to be masturbating.

58    SGT Domjahn pictured from what she was told that the appellant fell asleep next to the complainant, and that the complainant stayed awake and prepared a text message to SGT Domjahn, which she did not send, but showed to SGT Domjahn the next day. It was quite a long message and SGT Domjahn did not read it fully, but it commenced “with something like she was laying there and something happened”. SGT Domjahn described the complainant’s recount as being “scattered”; she said that each time they went back over the events the complainant’s story did not change, but more detail was provided.

59    PO Myers said that the complainant reported that the appellant “decided to have a crack, have a go at me”, and that the complainant told him that she was “standing there” and “[the appellant] started pulling himself”, on account of which the complainant said “[c]ut it out, that’s gross”. In cross-examination, PO Myers accepted the proposition that the complainant had reported to him that “[the appellant] then started touching his penis and rubbing it and getting it hard”. The complainant used gestures to indicate what she said the appellant had been doing. She told PO Myers that after she went to bed the appellant laid down beside her and started rubbing her, and that she woke up to find her pants were “semi-undone” and his hand was down around her vagina.

60    At work the following day, 28 January, SGT Domjahn persuaded the complainant to speak to her Executive Officer, LT Janelle Stewart and the Padre, CHAP Bruce Johnson, about the matter. CHAP Johnson’s recollection was that the complainant wanted to be assured of confidentiality concerning the matter. The complainant said that on the Australia Day weekend a sergeant had tried to touch her and later to remove her panties.

61    The complainant also spoke to a friend, SGT Hollie McBride, a medic, who had previously worked at the Cabarlah Clinic. SGT McBride said that the complainant told her that the appellant started masturbating in front of her and that she had told him to put it away. After she went to bed the appellant had spooned her, and she pushed him away and told him to go back to his wife. He later attempted to pull down her pants, following which she pushed him away and he passed out beside her.

62    SGT McBride advised the complainant to speak to a psychologist or a doctor, and encouraged her to see Dr Philip Wills, a doctor who worked for the ADF at Cabarlah Clinic, Borneo Barracks, Cabarlah. The complainant made an appointment to see Dr Wills. Dr Wills did not give oral evidence before the DFM, but provided a statement made on 1 April 2014 which was admitted. Dr Wills saw the complainant for psychiatric examination. She told him that she had attended a social event at the home of friends (whom she did not identify) on the night of 26 January, and that at the end of the evening, after “the wife” had gone to bed, “the husband” had “pulled out his penis and started playing with it”, or words to that effect. Dr Wills referred the complainant to Ms Janice Clark, a psychologist. Dr Wills saw the complainant again on 29 January, the following day, after she had seen Ms Clark, and noted that she was still “quiet and reserved”. He authorised her to take a week’s convalescence leave. In his opinion she had presented with distress following the incident she described, but at no time did he diagnose any psychological or psychiatric disorder.

63    Ms Clark had previously performed a post-deployment screening of the complainant, and had seen her on various occasions around the base. On this occasion she described the complainant as being highly distressed and extremely fragile. Ms Clark said that Dr Wills had told her that the complainant’s distress levels required psychological support. When the complainant was telling her about the events that had happened at the Williams’s house she became highly emotional, overwhelmed and teary. Ms Clark had never previously seen the complainant other than confident and forthright. The complainant told her that after everyone had left the party, the appellant exposed himself on a couple of occasions; she told him to stop, and he did. After retiring to her bed, and falling asleep, the complainant awoke with SGT Williams on top of her and in an undressed state. She pushed him away, and he then left, but returned sometime later and the same thing occurred—he tried to force himself on her, being on top of her and trying to remove her clothing. Later, he again returned, and she again fought him off. “[S]he made a point that there was no penetration and that he returned to his room, and that was the end of it until the next morning”.

64    Ms Angela Maher, who had known the complainant since 2013, saw her at a meeting early on 28 January. The complainant appeared unusually distracted and emotional, and broke down in tears. Ms Maher took the complainant out of the meeting and asked if everything was okay. The complainant told Ms Maher that, following the party, at the end of the evening, when she was in bed, she saw a person standing in the room, masturbating in front of her. She asked him to stop, but he did not. He then approached her, rubbed against her, and, when she proceeded to go to sleep, was attempting to force himself onto her. In response to questions from Ms Maher, the complainant eventually said that the person was the appellant. The complainant was not sure what she should do about the matter and whether she should take it any further, and said that she did not have faith in her chain of command.

65    The complainant’s mother recalled having received a missed call from her daughter on the Tuesday after Australia Day, and when she returned the call her daughter sounded upset and she realised that something was wrong. The complainant told her that something happened at an Australia Day party to the effect that she was assaulted by a person at whose house she had been. She said, “I was on the mattress asleep and the man who owned the house, the husband, came out and attacked me, tried to grope me”. She did not want to talk any further about it. The following day—Wednesday evening—the complainant’s mother and her husband took the complainant back to their home in Toowoomba where she stayed for about a week. She noticed that her daughter was “definitely different” and “down”. The complainant was particularly upset after receiving a text message from the appellant (presumably the message which he sent on 31 January). In cross-examination, the complainant’s mother said that the complainant told her, “Well, it was awful, mum. He groped me. He tried to pull my pants off and he tried to put his penis in my face”. The complainant’s mother agreed that in a statement to Service Police she reported: “She [the complainant] said she had been asleep in the middle of the night. The guy she worked with, whose house it was, had come out and groped her. He had then tried to rip her clothes off and he tried to masturbate in her mouth, during which time she had tried to fight him off”.

66    During the trial, counsel for the appellant put to the complainant that none of the things that she alleged the appellant had done to her had happened, and cross-examined her about what she had said to various other people about what had happened. She had difficulty recalling exactly what she had said to each of those people. It is evident that, in addition to telling people about the conduct the subject of the three charges, the complainant also told some people of other things that she believed the appellant had done to her after she had gone to bed on the mattress, in particular the attempted pulling down of her pants and the appellant standing at the end of the bed and masturbating. She did not deny (although she did not remember) having made such reports. However, her complaints about the events that preceded her going to bed were consistent, namely the appellant stroking his penis with his hand and attempting to hug her and pressing his erect penis against her thigh. Some may have assumed, wrongly, that her reference to the appellant masturbating implied that he was also exposing himself at the same time. With the exception of the medical witnesses, Dr Wills and Ms Clark, it does not appear that any of those to whom the complainant spoke about the matter made contemporaneous notes. It is hardly surprising, therefore, that their recollections of what the complainant had said to them some 15 months earlier would be imprecise.

67    It must be noted that this “recent complaint” evidence involves multiple witnesses separately recalling what the complainant reported to them on separate occasions. Their evidence is ultimately of their recollection or perception of what the complainant told them. It is to be expected that the complainant’s report would not be identical on each occasion, and that she would very understandably relate different amounts of detail to different persons, depending on the context and her relationship with them. The fact that two accounts are not identical and do not descend to the same detail does not mean that they are necessarily inconsistent. Thus, even if each witness’s recollection of the complainant’s recount was perfect, some variation between them—according to the detail of the complainant’s report to them—is to be expected. Moreover, the perception and recollection of the witnesses to whom she made complaint will not be perfect: each may have interpreted or recalled what the complainant recounted in his or her own way. Particularly in the absence of contemporaneous notes, their recollections will be of varying degrees of accuracy. Some discrepancies are to be expected.

68    In fact, the concordance of the complaint evidence, particularly in respect of Charge 1, is remarkable. Most of the reports attributed by the witnesses to the complainant are entirely consistent with the prosecution case on Charge 1. Into this category falls the evidence of PO Myers, SGT Domjahn, and SGT McBride.

69    Ms Maher recalls masturbation being mentioned, but when the complainant had gone to bed; it is highly probable that this is simply a misunderstanding of what the complainant was describing. Dr Wills noted the complainant referring to “the husband” pulling out his penis and playing with it; again, this might well be his interpretation of what the complainant reported. The complainant’s mother also referred to masturbation, although apparently after the complainant had gone to bed; but the complainant appears to have not gone into much detail with her mother, whose recollection might well have been coloured by a mother’s horrified reaction to her daughter’s report and distress. The report to the Chaplain contained little detail. It alone did not refer to an incident which could have been masturbation; but the complainant explained that she was concerned about confidentiality with the Chaplain—which his evidence corroborated—and she did not tell him much.

70    Counsel for the appellant emphasised Ms Clark’s evidence: Ms Clark did not report explicit mention of masturbation, but said that the complainant told her that the appellant “exposed himself” on a couple of occasions before she went to bed. However, the contemporaneous notes which Ms Clark made, some 15 months earlier, on 29 January 2014, contained no such reference; they referred only to the complainant describing “a recent event involving a colleague which has caused her immense psychological distress. Although she was able to physically defend against the persistent and unwelcome advances she described feeling emotionally defenceless and confused at the time”. If the complainant had told Ms Clark about the conduct the subject of Charges 1 and 2, Ms Clark could well have recalled and construed it, 15 months later, as the appellant having “exposed himself”.

71    The evidence suggested that the complainant was very upset and that she provided different amounts of detail to different people. However, there were no clear inconsistencies between what the complainant said in her evidence and what she is reported to have said to others, about the conduct the subject of Charges 1 and 2. The variations between the complainant’s evidence and those to whom she complained related mainly to events that occurred after the complainant had gone to sleep. It is understandable that a person who has been asleep and intoxicated may not have as clear a memory about the details involved in the conduct alleged as she would have in respect of the events that occurred earlier, notwithstanding that she was also intoxicated at that time. The minor discrepancies in respect of Charge 1 are explicable by interpretation and perception on the part of the witnesses of what the complainant related, and by her not being as comprehensive with some (such as the Chaplain) as with others (such as her good friends PO Myers and SGT Domjahn).

72    The critical fact for the purposes of Charge 1 was that she saw the appellant’s hand moving inside his pants and in the area of his genitals in a way that appeared as though he was masturbating. Counsel for the appellant frankly conceded that the complainant’s evidence about Charge 1 was consistent with her complaint to SGT Domjahn about that incident. He could only point to Ms Clark’s evidence that the complainant told her that the appellant exposed himself as a basis for the submission that there were relevant inconsistences within the complaint evidence in relation to Charges 1 and 2. The complainant’s evidence about Charges 1 and 2 was also consistent with what she said about those events to PO Myers, SGT McBride and Dr Wills, and not inconsistent with what she had said to anyone else. The overall impression, in fact, is very much of consistency rather than inconsistency.

73    The DFM devoted much of his reasons to assessing credit, particularly that of the complainant, having correctly directed himself of the need to carefully scrutinise her evidence consistently with the principle in R v Murray (1987) 11 NSWLR 12. After summarising all of the evidence in the prosecution case, the DFM expressly observed that findings of credit were “paramount” in the matter. As we have already observed, he found the complainant to be an honest and impressive witness.

74    The DFM carefully and accurately summarised the complaint evidence, and considered the inconsistencies between the complainant’s evidence and the evidence of complaint made by her to others. He accepted that there were “inconsistencies in the various accounts the complainant gave to various witnesses”, and took them into account. He said:

“Whilst inconsistency between what a witness alleges occurred and what the witness may have told someone else on another occasion are always important in making an assessment of honesty and reliability, I form the view that whilst there are clearly inconsistencies in some of the versions described by the complainant, this does not affect my overall assessment of the complainant’s credit as a witness.”

75    He found a “general consistency between what the complainant told the witness Rebecca Domjahn only [sic] after leaving the accused’s residence”, and noted that SGT Domjahn and others had observed that the complainant was distressed and emotional when she was describing what had happened to her.

76    The DFM did carefully consider and take into account the inconsistencies in the evidence of complaint. There was no inconsistency in the recent complaint evidence sufficient to render it an unreliable basis for considering the complainant a credible witness in respect of Charge 1. Ground (c) is not made out.

Inconsistent outcomes—Ground (b)

77    Ground (b) is that the finding of guilt on Charge 1 was inconsistent with the acquittals on Charges 2 and 3. In essence, the appellant contends that, the DFM having found that he could not be satisfied beyond reasonable doubt of the reliability of the complainant’s evidence on Charge 3, he ought to have entertained a similar doubt in respect of her evidence on Charge 1, and acquitted on that Charge also.

78    This ground relies upon the principle that a conviction following a verdict of guilty which is inconsistent with a verdict of not guilty of another charge is liable to be set aside as being unsafe and unsatisfactory because it would be illogical or unreasonable for the conviction to stand.

79    Principles relevant to the present matter are included within the general propositions stated in MacKenzie, in the context of inconsistent jury verdicts, at 366–368:

“3.    Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone (Unreported, 13 December 1954, per Devlin J) is often cited as expressing the test:

He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who have applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.

…

5.    … a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. … It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. “It all depends upon the facts of the case.”

6.    The obligation to establish inconsistency of verdicts rests upon the person making the submission.”

80    After announcing his decision and reasons in relation to the first two charges, the DFM provided the following reasons in relation to the third charge:

“The situation is less clear with the third charge. The evidence of Mrs Williams, which I do accept for the reasons outlined, would make the opportunity for the accused to have engaged in the conduct as alleged by the complainant less likely. This is not to lose sight of the fact that the accused did in fact lay down beside the complainant. Despite his evidence that the complainant immediately got up and went and sat on the couch with the accused’s children, it would be open, in my view, to find that some inappropriate touching by the accused on the complainant occurred at this time.

The accused’s explanation for doing so is far from convincing. That he was observed to sleep on the mattress even by his wife provides some support for the complainant’s allegations in respect of Charge 3. But in this trial I must be satisfied of the guilt of the accused beyond reasonable doubt. In my view, it is difficult to reconcile the evidence of Mrs Williams as to when the accused left the bedroom and went outside and that of the complainant as to when the touching alleged in Charge 3 occurred

Again, in expressing this view, I am in no way doubting the honesty of the complainant. I suspect that the accused, perhaps in a drunken state, did engage in inappropriate conduct with the complainant as she lay on the mattress. But I am unable to be satisfied beyond reasonable doubt as to the reliability of the complainant’s evidence in respect of Charge 3 and, in particular, how it is particularised, as proving that conduct, particularly in light of the evidence of Mrs Williams, which, in my view, is not entirely consistent and arguably inconsistent with the timings and opportunities available to the accused to engage in the conduct alleged.

I have also had regard to the complaint evidence which I accept, in respect of Charge 3, may not be entirely consistent. In reaching these findings, I have also had regard to the text message sent by the accused on 31 January 2014. Whilst the text message might, on one view, be seen to be an admission by the accused, I cannot be satisfied that the accused’s explanation, supported as it is by his wife’s evidence, for sending that text message is untrue.

The end result is this: that I find the accused guilty of Charge 1. I find the accused not guilty of Charges 2 and 3.”

(Emphasis added.)

81    The primary submission in relation to ground (b) was that, because the DFM was not satisfied beyond reasonable doubt about the reliability of the complainant’s evidence in respect of the third charge, he should have had a reasonable doubt about the reliability of her other evidence and therefore acquitted the appellant of the first charge. The appellant also contended that his acquittal of the second charge was inconsistent with the guilty verdict on the first charge.

82    The DFM correctly directed himself about the onus and standard of proof, how to treat the evidence of the appellant, the need to carefully scrutinise the evidence of the complainant, the need to consider the evidence in relation to each charge separately and how to treat complaint evidence.

83    The DFM found that the complainant, based on her demeanour, was an “honest and impressive witness”, who made “an earnest effort to recall events to the best of her recollection.” On the other hand the DFM formed the view that the appellant was “less than convincing” and was not “as impressive a witness as the complainant when giving evidence.” The DFM was satisfied beyond reasonable doubt as to the complainant’s evidence relevant to Charges 1 and 2, including that the offending conduct occurred.

84    In relation to the second charge, the DFM was not satisfied that the appellant intended to press his penis against the complainant’s thigh. As we have noted, intent on the part of the appellant to engage in the relevant conduct was an essential element of that offence. The appellant’s acquittal of that charge had nothing to do with the DFM’s assessment of the complainant’s credibility and was not inconsistent with the guilty verdict in relation to the first charge.

85    However, it is apparent from the DFM’s reasons quoted above that the reliability of the complainant’s evidence about the conduct the subject of the third charge was one of a number of factors which caused the DFM to have a reasonable doubt about the appellant’s guilt of that charge. It is relevant to note that the DFM’s reservations about the complainant’s evidence were confined to the reliability of her evidence about this particular conduct, “and, in particular, how it [was] particularised, as proving that conduct”, and that his reservations concerned the reliability of the complainant’s evidence, as distinct from the complainant’s honesty.

86    The conduct had been “particularised” in the prosecutor’s opening address. The prosecutor told the DFM that “each charge relates to a very short period of time sometime after 2200 hours on 26 January 2014.” After outlining the facts in relation to the first two charges he said:

“… She then made her way inside the house, to the bed and bedding that had been set aside for her, in an area inside the house, off the dining room. She went to bed and remained fully clothed but went to bed, on her stomach, covered from about the waist down, and proceeded to sleep.

She’ll tell you, sir, that she didn’t get into a very heavy sleep before she noticed that somebody was beside her and was attempting to pull the shorts which she had been wearing down as she laid in that position. … [T]hat allegation is … not the subject of charge. At the time, [the complainant] was not able to make out who it was who was in the bed with her at that time. She assumed, you might infer, that the person who was engaging in that conduct was in fact SGT Williams but it cannot be taken any further than that at this stage.

Sir, at that stage, [the complainant] will tell you, she rolled to her side and again attempted to go to sleep. She then felt the person who was beside her place his hand between the mattress and her inner right thigh. At this point in time, you’ll hear [the complainant] tell you, there was enough ambient light in that location for her to make out SGT Williams; there is no doubt in her mind who the person was who placed his hand between the mattress of the bed and her inner right thigh. She then placed a barrier, using the pillows in the bedding, between herself and SGT Williams and she laid in that position for the rest of the night. She’ll tell you, sir, that SGT Williams fell asleep and he slept in that location for the entire night, but that she could not sleep.

…

She’ll tell you, sir, that the next morning, as the children and wife of the accused started to make their way around the house, watching television and making breakfast, [the complainant] left the bed made up for her and she put herself in a safe location, with the children, in the lounge room, watching television, until it was safe for her to leave.”

87    The prosecutor’s opening gave the clear impression that the conduct the subject of the third charge occurred soon after the complainant had gone to bed that night and before the appellant went to bed. It also conveyed that the appellant slept on the same mattress as the complainant for the entire night. This was contrary to the evidence of both the appellant and Mrs Williams.

88    In his summary of the complainant’s evidence about this charge and the events leading up to it, the DFM noted that the complainant thought that she woke up feeling her pants being pulled down possibly half an hour after she went to bed. It was some time after that when the appellant lay down beside her on the mattress and put his hand underneath her thigh, near her groin. The complainant had the impression that the appellant stayed on her mattress for some time after that (the complainant said that “he stayed there” after she had told him to go to his own bed), during which time she constructed a barrier made of blankets and pillows to separate her from the appellant and drafted a text message which she was going to send to SGT Domjahn.

89    Mrs Williams gave evidence that she went to bed at 0250. She knew that because she saw the time on her bedside clock. She said that the appellant came to bed about 15 minutes later. She said that she and the appellant engaged in sexual intercourse for some time before both falling asleep, and that the appellant remained in the bed until he got up in the morning to go to the kitchen to get some water. When she got up, the complainant was on a couch with her two children, and the appellant had fallen asleep on the mattress where the complainant had been sleeping.

90    The DFM accepted the evidence of Mrs Williams, particularly in relation to the time when she went to bed and the fact that the appellant came to bed about 15 minutes later. The DFM also seems to have accepted her evidence that the appellant remained in bed until he got up in the morning to get some water, thereby excluding the possibility of him getting out of bed after she was asleep, engaging in the conduct alleged, then returning to bed. Although the prosecutor had referred to the three events occurring within “a very short time sometime after 2200 hours on 26 January 2014”, there was no other evidence about the time when the events occurred, both the complainant and the appellant being very vague about timing.

91    The 15-minute period between 0250 and the time when the appellant went to bed did leave sufficient time for the events the subject of the first two charges to occur, but not for the later conduct on the mattress to take place. The complainant estimated that the conduct which led to Charge 3 occurred about half an hour after she had gone to bed. At that time, on Mrs Williams’s account, the appellant was with her in the matrimonial bed. There he had remained until morning. It was not suggested to Mrs Williams that the appellant had left the bedroom between 0305 and when she observed him to get up in the morning after sunrise. Accordingly, the DFM concluded that the only opportunity for the appellant to have engaged in the conduct alleged would have been after the appellant had got up in the morning and when the family was stirring. This was quite different to the timing particularised by the prosecutor during his opening address and would have caused the DFM to have a reasonable doubt as to whether the actual conduct the subject of the third charge occurred. It would not have required the DFM to have had a reasonable doubt about the occurrence of the two events occurring some time earlier, before the appellant went to bed.

92    The DFM had the difficult task of reconciling the competing evidence of the complainant and Mrs Williams about the timing of events, in circumstances where both of them were heavily affected by alcohol at the time.

93    Although he considered it would be open to find that the appellant engaged in some inappropriate touching of the complainant after the appellant’s wife saw him get out of bed, the DFM was concerned about a number of matters. As we have just observed, his main concern was the timing of the alleged offending, in light of how the prosecutor had particularised that offending during his opening, the complainant’s uncertainty (perhaps understandable in light of her having been asleep and her intoxication), and the wife’s evidence suggesting that the only opportunity for such conduct to have occurred would have been after the appellant got up in the morning. The complainant’s evidence was that the charged conduct occurred when it was dark. Patio lights illuminated the area where her mattress was placed. Mrs Williams’s evidence—which was accepted—was that, when the appellant arose in the morning, the “sun was well and truly up”. It is, therefore, hard to see how the DFM could have been satisfied beyond a reasonable doubt that the conduct alleged in Charge 3, assuming it occurred, occurred in the morning.

94    We agree with counsel for the respondent that the DFM’s reasoning did not require or in fact involve an adverse finding as to the complainant’s credibility that creates doubt about her evidence in relation to Charges 1 and 2. The conduct the subject of Charges 1 and 2 occurred at a relevantly different place and time to the conduct the subject of Charge 3. The former occurred at the patio area before the complainant and the appellant went inside to go to bed. The conduct the subject of Charge 3 was alleged to have occurred sometime after the complainant had gone to sleep on the mattress in the dining room.

95    The complainant’s evidence in relation to Charges 1 and 2 was clear. As we have observed, the DFM found that the complainant, based on her demeanour, was an “honest and impressive witness”, who made “an earnest effort to recall events to the best of her recollection.” Her evidence about those charges was also corroborated by the complaint evidence, particularly that of SGT Domjahn and PO Myers. As well as using the complaint evidence to assess the complainant’s credibility, the DFM was entitled to treat that evidence, although hearsay, as evidence of the facts asserted by the complainant: s 66(2), Evidence Act 1995 (Cth); Papakosmas v The Queen (1999) 196 CLR 297.

96    The complainant’s evidence in relation to the third charge was not as clear as her evidence in relation to the first two charges, particularly in relation to the time when the alleged conduct occurred. She had been sleeping and was intoxicated, and would have been trying to get back to sleep, when she thought the conduct occurred.

97    It is not illogical or unreasonable for the conviction in relation to the first charge to stand.

CONCLUSION

98    Accordingly, each of the appellant’s grounds fails, and the appeal must be dismissed.

Associate:

Dated:    16 December 2016

REASONS FOR DECISION

BRERETON J:

99    I am in agreement with Tracey and Hiley JJ that grounds of appeal (a) and (c) fail, and the reasons given by their Honours in respect of those grounds are my reasons also.

100    However, in my opinion, for the reasons that follow, the appellant is entitled to succeed on ground (b).

101    Ground (b) is that the finding of guilt on Charge 1 was inconsistent with the acquittals on Charges 2 and 3. In essence, the appellant contends that, the DFM having found that he could not be satisfied, beyond reasonable doubt, of the reliability of the complainant’s evidence on Count 3, he ought to have entertained a similar doubt in respect of her evidence on Count 1, and acquitted on that count also.

102    The present is not a case of legal inconsistency. In MacKenzie, the High Court explained that the argument that two or more jury verdicts are inconsistent (or repugnant or illogical) ordinarily arises, in the context of criminal trials, when it is suggested that a conviction resting upon one of those verdicts is thereby demonstrated to be unsafe or unsatisfactory. In respect of suggested factual inconsistency, Gaudron, Gummow and Kirby JJ said (at 366–368):

“(3)    Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone [Unreported, 13 December 1954, per Devlin J.] is often cited as expressing the test [See, eg, R v Hunt [1968] 2 QB 433 at 438; R v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966; cf Archbold, Criminal Pleading, Evidence & Practice, 43rd ed (1995), vol 1, par 4-457]:

‘He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.’

(4)    Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense [See Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 at 595; Ward v Roy W Sandford Ltd (1919) 19 SR(NSW) 172]. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted [R v Wilkinson [1970] Crim LR 176]. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury [Hayes v The Queen (1973) 47 ALJR 603 at 604–605]. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt [R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40]. Alternatively, the appellate court may conclude that the jury took a “merciful” view of the facts upon one count: a function which has always been open to, and often exercised by, juries [R v Hunt [1968] 2 QB 433 at 436]. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation [Castles, An Australian Legal History (1982), p 56]. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman [(1987) 44 SASR 591 at 593], in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:

‘[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that, although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.’

We agree with these practical and sensible remarks.

(5)    Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty [R v Irvine [1976] 1 NZLR 96 at 99; R v Morgan [1981] 2 NZLR 164 at 168–169; R v Cooper (1993) 149 AR 207; Ewaschuk, Criminal Pleadings and Practice in Canada, (1983), §15.212, requiring that the verdicts be “so mutually contradictory or violently at odds in relation to the evidence that they cannot stand together in the sense that no reasonable jury, who had applied their mind to the facts of the case, could have arrived at the same conclusion”: R v Peterson (1996) 106 CCC (3d) 64 at 79; cf Hall v Poyser (1845) 13 M & W 600 [153 ER 251]; Bedford v Crapper [1949] 3 DLR 153]. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law [R v Zundel (1987) 35 DLR (4d) 338 at 401–402 applying R v McShannock (1980) 55 CCC (2d) 53 at 55–56; cf Mack v Elvy (1916) 16 SR(NSW) 313]. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside [R v Drury (1971) 56 Cr App R 104 at 105]. It is impossible to state hard and fast rules. “It all depends upon the facts of the case.””

103    However, the reasons for the reluctance of appellate courts to go behind jury verdicts in respect of inconsistent verdicts, which is manifest in that passage, are less compelling in the case of a trial by a judge (or, in present circumstances, DFM) alone, where reasons are required and given.

104    Mr McLure SC, for the respondent, submitted that the reasons on account of which the DFM entertained a reasonable doubt on Counts 2 and 3 did not necessitate a similar doubt in respect of Count 1. This is largely correct in respect of Count 2: the accused was acquitted in respect of that count not by reason of any doubt about the reliability of the complainant’s evidence, but because the DFM was not satisfied, beyond reasonable doubt, that when the accused’s groin made contact with the complainant’s thigh, he intentionally pressed and moved his penis against her thigh. That involved no reflection upon the reliability of the complainant’s evidence. Nonetheless, it is not without significance in the whole context of the events of that night that this involved acceptance, as a reasonable possibility, that the appellant’s conduct involved in Count 2 was not actuated by sexual motives.

105    The position with Count 3, however, is more difficult. In order to convict on Count 3, the DFM had to be satisfied beyond reasonable doubt that the appellant had touched the complainant on the thigh. The complainant gave evidence that sometime after she had gone to sleep, she was awoken by a person—presumably the appellant—attempting to pull down her pants, and subsequently, while she was lying awake in a state of shock, she felt somebody come and lie in the bed, next to her. Then:

“After you had felt somebody get into bed with you, what did you do, if anything?---I was quite tense, I believe. I was still in shock.

Did you stay in that position?---Yes.

Did anything else happen at that point in time that you can remember?---Yes, I felt a hand come underneath my right thigh, trying to push further towards my groin.”

106    She told him: “Fuck off. Go away, leave me alone. Go to bed in your own bed with your wife”. The appellant did not leave the bed, but remained there. She erected a barrier with a pillow and blankets between them, and lay there and sobbed for some time, until she heard the Williams children get up in the morning.

107    That evidence, if accepted, would have resulted in a conviction on Count 3. The DFM must have entertained a doubt that it was accurate. The question is whether, once the DFM had found that he could not be satisfied, beyond reasonable doubt, of the reliability of the complainant’s evidence on Count 3, that similarly affected her reliability on Count 1. That requires analysis of what was involved in the DFM’s doubt about Count 3.

108    The DFM’s reasons for being unable to be satisfied beyond reasonable doubt as to the reliability of the complainant’s evidence in respect of Charge 3 as particularised were founded in his acceptance of the evidence of Mrs Williams, which was “difficult to reconcile … as to when the accused left the bedroom and went outside” with “that of the complainant as to when the touching alleged in Charge 3 occurred” and was “not entirely consistent and arguably inconsistent with the timings and opportunities available to the accused to engage in the conduct alleged”. Those reasons involve, not a mere doubt that the complainant had perhaps mistaken or misinterpreted what happened on the mattress, but—founded on acceptance of Mrs Williams’ evidence—doubt that there had been time and opportunity for the appellant to engage in the conduct alleged at all.

109    The conduct the subject of Counts 1 and 2 is said to have occurred after Mrs Williams left the party to go to bed. On Mrs Williams’ evidence it must have taken place in the 10 to 15 minutes after she left the party, before she was joined in bed by her husband. On the complainant’s version, the attempt to pull down her pants happened as best she can recall possibly half an hour after she went to bed, but given her state of inebriation and sleep, and the hour (which must have been after 0300) it could conceivably have occurred before the appellant went to bed, or after he woke up in the morning and (admittedly) jumped onto her mattress.

110    Acceptance of Mrs Williams’ evidence did not render it impossible for the appellant to have committed the conduct the subject of Count 3: as the DFM explained, it was still possible for it to have occurred, when the appellant admittedly lay on the mattress beside her. The DFM concluded that it was open to find, consistently with acceptance of Mrs Williams’ evidence, that some inappropriate touching by the accused of the complainant occurred at that time, and indeed he “suspected” that it had. Thus, the doubt that resulted in the acquittal on Count 3 was not occasioned by the evidence of Mrs Williams rendering it impossible that the conduct concerned could have occurred. Rather, the effect of her evidence was to reduce the possibility of its having occurred—by narrowing the opportunity for it to have occurred: it left only the possibility that Count 3 occurred in the morning, after the appellant had got up, while the children were watching television in the next room; and that timing did not accord well with the complainant’s version, and even less well with the way in which the prosecution case had been opened. This cast doubt on the accuracy and reliability of the complainant’s version, and left open a reasonable possibility that the appellant’s version was correct.

111    Moreover, Mrs Williams’ evidence impacted not only on the opportunity for the conduct alleged to have occurred, but on the whole of the events from 15 minutes after she went to bed, until the appellant arose in the morning. Mrs Williams’ evidence substantially corroborated the appellant’s version of events between about 0305 and when he awoke; and if accepted—as it was—created the reasonable possibility that the appellant was telling the truth about those matters. Essentially, Mrs Williams’ evidence founded acceptance of a reasonable possibility that the appellant’s version of events from shortly after Mrs Williams went to bed until he arose in the morning was accurate. Logically, that cast a corresponding doubt on the whole of the complainant’s version of events, at least from the moment the complainant went to bed.

112    Mrs Williams’ evidence does not, of course, bear directly on the events during the 15 minutes after she went to bed before the appellant joined her, during which the conduct the subject of Counts 1 and 2 is said to have—and could have—occurred. However, the prosecution case, in respect of all three counts, depended on the complainant’s evidence, though it was considerably fortified—on all three counts—by the evidence of recent complaint, including of the complainant’s demeanour when making those complaints. Yet the DFM accepted that there were reasonable possibilities (1) (in respect of Count 2) that the appellant did not intend to rub his penis against the complainant’s thigh (that is, that he did not have a sexual intent); and (2) (in respect of Count 3) that the conduct the subject of Count 3 did not happen. In particular, in the light of Mrs Williams’ evidence, the complainant’s evidence was not enough to exclude a reasonable possibility that the appellant’s version of events from about 0305 onwards was accurate.

113    Critically, the differences between the appellant’s (possibly true) version, and the complainant’s version, in respect of the post-0305 period, cannot be explained by possibly minor defects of perception or recollection which could be restricted to the post-0305 timeframe. To the contrary, in the admittedly-possible event that the appellant’s version—substantially corroborated by the accepted evidence of his wife—be true, the complainant’s version of events after about 0305—as given in evidence, and as recounted to others—would be fanciful. Consistent with the DFM’s acceptance of the complainant as honest, that doubt is explicable only as one that she may have imagined or misinterpreted those events. That being so, it is not readily apparent why the same possibility was not equally applicable in respect of the 15 minutes before 0305, and the conduct the subject of Count 1, as it was to the later period, and the conduct the subject of Count 3. In this respect it is not without significance that the conduct the subject of Count 1, involving as it did no allegation of exposure, depends on the complainant’s interpretation of what she perceived the accused to be doing with his hand in his pants.

114    The DFM’s reasons do not explain why the complainant’s evidence on Count 1 can logically be regarded as less susceptible to doubt than her evidence on Count 3. Reasons why it might be so regarded can be imagined—for example, that whereas the complainant was awake albeit affected by alcohol before 0300, at the time of the later events a combination of alcohol, tiredness and sleep—even dreams—may have affected her perception and recollection. However, these were not the DFM’s reasons, nor did anyone suggest that to be the case. The closest the DFM comes to an explanation is the comment that the complaint evidence in respect of Charge 3, “may not be entirely consistent”. It is a fair observation that there were more discrepancies between the reports of the complainant’s recounts of conduct after she went to bed than before; and in particular that nowhere in the complaint evidence is there to be found any complaint of conduct in the precise terms of that referred to in Count 3. But as is explained in the reasons of Tracey and Hiley JJ, such discrepancies are to be expected in complaint evidence and are explicable by differences in the amount of detail that she related to different persons, and differences in their perception and recollection of what she reported. Moreover, the evidence given by PO Myers, SGT Domjahn, and SGT McBride of the complainant’s recounts to them is substantially consistent with Count 3. Thus while it can fairly be said that the complaint evidence in respect of Count 3 was a little less cogent than in respect of Count 1, this seems a faint basis for a conclusion that the complainant’s evidence in respect of Count 3 did not establish the case beyond reasonable doubt, when her evidence in respect of Count 1 did.

115    Plainly, the substantial reason for the different outcomes was the evidence of Mrs Williams. It can scarcely be doubted from the DFM’s reasons that, but for Mrs Williams’ evidence, the appellant would have been convicted on Count 3. And that accentuates the problem: in essence, Mrs Williams’ evidence created a reasonable doubt for the DFM in respect of Count 3, when he did not entertain one in respect of Count 1. But while there was no evidence of Mrs Williams to corroborate the accused’s denial of Count 1, it was not for the accused to raise a reasonable doubt, but for the prosecution to exclude it. Conviction on Count 1 depended on the acceptance of the evidence of the complainant, which was contradicted only by the accused. There was no conviction on Count 3, because the accused’s contradiction of the complainant’s evidence was, to an extent, corroborated—though not in such a manner as to render commission of the offence impossible. The acquittal on Count 3 manifests a conclusion by the DFM that, in respect of the period from about 0305 onwards, there was a reasonable possibility that the appellant’s version of the relevant events was accurate (and, thus, that the complainant’s was not). Inability to produce a corroborating witness in respect of the 15 minutes before 0305 does not render insusceptible to doubt the evidence of a witness whose evidence, apparently credible as it was, was nonetheless insufficient to surmount the hurdle of reasonable doubt where the appellant could produce a partly corroborating witness for the following period. The DFM has, inadvertently, required the defence to raise a reasonable doubt, rather than the prosecution to exclude it. Alternatively put, there being reasonable doubt about the accuracy and the reliability of the complainant’s evidence in significant respects on Count 3, which is not adequately explained by factors confined to Count 3, her evidence on Count 1 could not be inoculated from it.

116    The DFM suspected that the conduct the subject of Count 3 had happened. It may well be that it was open to him, on the evidence, to convict on that count. But he rightly distinguished between what might have seemed suspicious—even probable—and what was proved beyond reasonable doubt. He entertained a reasonable doubt about the complainant’s evidence set out at [105] above (and implicitly also about other aspects of her evidence in respect of the period after she went to bed which were inconsistent with Mrs Williams’ evidence). However, that same rigour insisted upon by the criminal standard of proof necessitated that if, as he found, there was a reasonable doubt about the accuracy and reliability of the complainant’s evidence in significant respects on Count 3, in the factual circumstances of this case the doubt was one which logically extended to her evidence in respect of Count 1. Having entertained a reasonable doubt about the reliability of the complainant’s evidence on Count 3, it was unsafe and unsatisfactory to convict on Count 1.

117    For those reasons, in my opinion Ground (b) succeeds.

118    As the DFM emphasised, this involves no reflection on the honesty of the complainant, who on any view perceived events on the occasion in question which enormously distressed her. But the requirement for proof beyond reasonable doubt means that in the circumstances of this case, where the DFM entertained reasonable doubt as to whether the conduct the subject of Count 2 was sexually motivated, and as to the reliability of the complainant’s evidence of the events after about 0305, there ought also have been reasonable doubt about the reliability of her evidence and interpretation of events in the preceding 15 minutes, when the conduct the subject of Count 1 occurred.

119    It follows in my opinion that the conviction on Charge 1 should be quashed and, by operation of DFDAA s 41(a), the appellant deemed to have been acquitted. The orders which I would favour are:

(1)    The period within which the appeal and application for leave to appeal herein must be lodged be extended to the date on which it was lodged.

(2)    Leave to appeal, insofar as it is required, be granted.

(3)    The appeal be allowed.

(4)    The conviction on Charge 1 be quashed.

Associate:

Dated:    16 December 2016