DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

McKenna v Chief of Navy [2017] ADFDAT 1

Appeal from:

Defence Force Magistrate

File number:

DFDAT 2 of 2016

Judges:

TRACEY (President), LOGAN (Deputy President) AND GARDE (Member) JJ

Date of decision:

10 February 2017

Date of publication of reasons:

6 March 2017

Catchwords:

DEFENCE – application for extension of time within which to appeal – extension granted – Appellant convicted on charges 1, 4, and 6 – certain appeal grounds conceded by Respondent and, on that basis, also conceded by Respondent that conviction on charge 1 should be quashed – concession accepted by Tribunal – appeal ground in relation to charges 4 and 6 not pressed by Appellant – whether retrial should be ordered – where Director of Military Prosecutions did not consider that new trial should occur, whether or not the Tribunal minded to order retrial – retrial not ordered

Legislation:

Defence Force Discipline Appeals Act 1955 (Cth), ss 21(2), 24

Cases cited:

Gilham v The Queen [2012] NSWCCA 131

R v Murray (1987) 11 NSWLR 12

Date of hearing:

10 February 2017

Category:

Catchwords

Number of paragraphs:

28

Counsel for the Appellant:

Mr P Walker SC and Mr M Hay

Counsel for the Respondent:

Ms J Woodward and Mr J Nottle

Solicitor for the Respondent:

Office of the Director of Military Prosecutions

ORDERS

DFDAT 2 of 2016

BETWEEN:

DENIS MCKENNA

Appellant

AND:

CHIEF OF NAVY

Respondent

JUDGES:

TRACEY (PRESIDENT), LOGAN (DEPUTY PRESIDENT) AND GARDE (MEMBER) Jj

DATE OF ORDER:

10 FEBRUARY 2017

THE TRIBUNAL ORDERS THAT:

1.    The period within which the appeal and application for leave to appeal is required to be lodged be extended to 10 February 2017.

2.    To the extent necessary, leave to appeal be granted.

3.    The appeal be allowed in part.

4.    The appellant’s conviction on ground 1 be quashed.

5.    The appeal otherwise be dismissed.

REASONS FOR DECISION

THE TRIBUNAL:

1    The Tribunal heard this matter in Sydney on 10 February 2017. At the conclusion of argument the Tribunal pronounced the following orders:

(1)    The period within which the appeal and application for leave to appeal is required to be lodged be extended to 10 February 2017.

(2)    To the extent necessary, leave to appeal be granted.

(3)    The appeal be allowed in part.

(4)    The appellant’s conviction on ground 1 be quashed.

(5)    The appeal otherwise be dismissed.

2    We advised the parties that we would, at a later date, publish reasons for making those orders. These are those reasons.

3    Chief Petty Officer Naval Police Coxswain Denis McKenna had made application for an extension of time within which to appeal against convictions recorded by a Defence Force Magistrate (“DFM”), on 7 December 2015. The application was made on 28 July 2016. This was outside the period prescribed by s 21(2) of the Defence Force Discipline Appeals Act 1955 (Cth) (“the DFDA Act”). The reasons for the delay were explained on affidavit affirmed by CPO McKenna. They included an overseas deployment immediately after the DFM had handed down his decision. The Chief of Navy did not oppose the granting of an extension of time. We considered that the delay had been satisfactorily explained and that the application should be granted. The appeal was taken to have been instituted and heard instanter on 10 February 2017.

4    By a charge sheet dated 2 September 2015, CPO McKenna faced eight charges. Four of these were withdrawn, and by amended charge sheet dated 9 November 2015, CPO McKenna faced four charges, as follows:

First Charge

Defence Force Discipline Act 1982 subsection 61(3) and Criminal Code 1995 subsection 474.17(1)

Engaging in conduct outside the Jervis Bay Territory that is a Territory offence, being the offence of using a carriage service to menace, harass or cause offence

Being a defence member at HMAS Waterhen, in the state of New South Wales on 27 May 2014 used a carriage service, in such a way that reasonable persons would regard that use as being offensive in all the circumstances.

Particulars of the use

1.    On 27 May 2014 around 0906 hours, CPO McKenna used his desktop telephone number … located at HMAS Waterhen and contacted CPO W. L. Robinson on number … and said to him words to the effect of, ‘Billy, you’re a fat cunt, get out and do some fucking sea time, ya cunt’ before terminating the call.

2.    The phone call lasted approx 6–7 seconds.

Second charge

(In the Alternative to the First charge)

Defence Force Discipline Act 1982 subsection 33(d)

Using insulting words on Service Land

Being a defence member at HMAS Waterhen, in the state of New South Wales on 27 May 2014 used insulting words to CPO Robinson by saying to him words to the effect of, ‘Billy, you’re a fat cunt, get out and do some fucking sea time, ya cunt’.

Fourth charge

Defence Force Discipline Act 1982 subsection 29(1)

Failing to comply with a general order

Being a defence member at HMAS Waterhen, in the state of New South Wales on 5 Mar 2014 did not comply with a lawful general order that was applicable to him by being critical of CPO Robinson to CPO Aaron Parker and stating ‘In fact the bloke is a toolster’ through the Microsoft Defence Lync system and thereby engaging in abusive conduct contrary to paragraph 20(j) of Defence Instruction (General) CIS 6-1-001 Appropriate and inappropriate use of Information and Communication Technology Resources.

Sixth charge

Defence Force Discipline Act 1982 subsection 29(1)

Failing to comply with a general order

Being a defence member at HMAS Waterhen, in the state of New South Wales on 27 May 2014 did not comply with a lawful general order that was applicable to him by being critical of CPO Robinson to CPO Aaron Parker and stating ‘That grub Robinson ended up at Penguino. Seems if you don’t do your job you are rewarded’ through the Microsoft Defence Lync system and thereby engaging in abusive conduct contrary to paragraph 20(j) of Defence Instruction (General) CIS 6-1-001 Appropriate and inappropriate use of Information and Communication Technology Resources.”

5    CPO McKenna pleaded not guilty to all charges. The DFM found CPO McKenna guilty of the first, fourth, and sixth charges. The second was not proceeded with.

6    On 28 July 2016, CPO McKenna filed his application for an extension of time within which to appeal. His proposed grounds of appeal were as follows:

a.    the conviction WRT [sic] count 1 was unreasonable or cannot be supported having regard to the evidence; or

b.    the conviction WRT [sic] count 1 was, in all the circumstances of the case, unsafe or unsatisfactory

c.    that the learned Defence Force Magistrate made an error of law by failing to give himself a Murray direction, which was, in the circumstances, required;

d.    The DFM made an error of law by failing to give proper consideration to the sworn evidence of the appellant denying the offence, and failed to identify his reasons for preferring the evidence of the complainant where the evidence of the two sailors was in conflict;

e.    The DFM made an error of law by effectively reversing the onus of proof with respect to certain telephone records;

f.    The reversal of the onus of proof (as described in e.) represented an irregularity in the proceedings that led to a substantial miscarriage of justice;

g.    The DFM made an error of law by incorrectly applying the ‘abusive’ test with respect to counts 4 and 6.”

7    While this was not made explicit in the proposed grounds of appeal, it is apparent from CPO McKenna’s written submissions that each of proposed grounds (a)–(f) relates to the conviction on charge 1. Ground (g) relates to the convictions on each of charges 4 and 6.

8    CPO McKenna filed written submissions dated 1 December 2016. The Chief of Navy filed written submissions dated 21 December 2016. The Chief of Navy’s written submissions contained concessions that grounds (d), (e), and (f) had been made good. It will be necessary, later in these reasons, to consider the implications of these concessions. The Chief of Navy submitted that grounds (a), (b), (c), and (g) had not been established.

9    A directions hearing was convened before the President on 25 January 2017. Somewhat obliquely, Senior Counsel for CPO McKenna intimated that, if the Tribunal were minded to act on the concessions of the Chief of Navy, CPO McKenna would consider whether or not to press ground (g) of his appeal.

10    The Tribunal considered the parties’ written submissions. On 30 January 2017 the President’s Chambers sent to the parties an email advising that:

The members of the Tribunal have … had the opportunity of considering the parties’ submissions and the material on which those submissions were based. The Tribunal is of the view that the appeal should be allowed on the basis conceded by the Director. The question of whether a new trial should be ordered and the remaining grounds of appeal (if pressed) will be considered by the Tribunal at the scheduled hearing on 10 February 2017.

11    On 3 February 2017, Junior Counsel for CPO McKenna emailed the President’s Chambers confirming that:

“… the Appellant intends to withdraw ground of appeal (g) on 10 Feb 17.

12    At the hearing, counsel for CPO McKenna confirmed that ground (g) had been withdrawn.

The basis for allowing the appeal in respect of the conviction on charge 1

13    The grounds that were conceded by the Chief of Navy were, as re-phrased in CPO McKenna’s written submissions, as follows:

“(iv)    that the DFM made an error of law by failing to give proper consideration to the sworn evidence of the appellant denying the offence, and failed to identify his reasons for preferring the evidence of the complainant where the evidence of the two sailors was in conflict (DFDAA s23(1)(d))

(v)    the DFM made an error of law by effectively reversing the onus of proof with respect to certain telephone records;

(vi)    The reversal of the onus of proof (as described in paragraph v above) represented an irregularity in the proceedings which led to a substantial miscarriage of justice (DFDAA s23(1)(c))”

14    In a statement of agreed facts dated 9 November 2015 it was accepted that CPO McKenna had made a call from his desktop telephone to the mobile telephone of CPO Robinson, and that the duration of the call was six seconds. CPO McKenna, however, denied that he had uttered the words set out in the charge in the course of that telephone call. CPO McKenna’s written submissions on appeal confirmed that “[t]he defence case was always that [he] did not at any stage make an anonymous call to CPO Robinson in which he said ‘Billy, you’re a fat cunt, get out and do some fucking sea time, ya cunt’ or any words to that effect.”

15    The principal factual issue in dispute in relation to charge 1 was whether CPO McKenna spoke these words. Grounds (a)–(f) are, in effect, various ways of attacking CPO McKenna’s conviction on charge 1. Not all were conceded. The Chief of Navy accepted that some of the grounds must be upheld. The precise basis for those concessions is set out in his written submissions, in particular at [65]–[71]. It is appropriate that those paragraphs be set out:

“65.    Certainly, there are identifiable reasons in the DFM’s judgment that could found an argument that he by implication, correctly applied the law in his rejection of the appellant’s evidence. However, it is conceded by the respondent that this is seriously compromised by the statement: ‘there remains the oral testimony of Chief Robinson which must be weighed up against the denial of saying those words by the defendant’.

66.    While it may be argued that this may be simply an example of inelegance, the respondent concedes that there is no specific statement in his reasons for decision that the DFM rejected the appellant’s evidence, which makes his judgment vulnerable to the contention by the appellant that the DFM did weigh up the two versions against each other.

67.    This difficulty is further compounded by the passage referred to by the DFM as the ‘critical findings’. The DFM states:

To reject the evidence of Chief Robinson relating to the content of the call he received on 27 May would require the Court to find: (1) that he was not a witness of truth; (2) that the diary entry on 27 May is a fabrication; (3) the statement which became exhibit 34 is false in relation to the entry of 27 May. It would require the Court to uphold the assertion, which was expressly denied, of fabrication of the diary entry.

68.    CAPT Cowdroy, the DFM, is a very experienced judicial officer and a very experienced Navy Legal Officer, having served as a member of this Honourable Tribunal. It could be argued that he could not have meant this in the terms that it implies. However, it is conceded that when considered literally, the passage suggests that there is some onus of proof on the appellant.

69    Furthermore, in order to acquit the appellant in this case the DFM would not have to make any of the positive findings listed. The court would simply have to find that any of these matters was a reasonable possibility. From the text of the passage it does not appear that this is the way that the task was approached. It is further conceded that even reading the judgment as a whole does not assist to remedy the impression created.

70.    As a matter of law the DFM was not required to uphold the assertion that the diary entry was a fabrication to have a reasonable doubt about the evidence of the complainant as such a course would clearly reverse the onus of proof.

71.    The respondent further concedes that upon a reading of the whole of the evidence, the DFM did not explicitly reject the evidence of the appellant and, at least as the judgment reads, appears to have approached a consideration of the evidence of the complainant in a manner inconsistent with the onus and standard of proof of beyond reasonable doubt.

72.    The respondent concedes that this ground of appeal has been established.”

16    In relation to grounds (e) and (f), the Chief of Navy accepted that certain legally-erroneous submissions in relation to telephone records were put to the DFM by the prosecutor. The error was that the submissions—which were to the effect that the defence had not been able to impugn the evidence of CPO Robinson—reversed the onus of proof. The Chief of Navy submitted that the issue pertaining to the telephone records was peripheral only, and that, had it not been for an incorrect test being applied to the rejection of CPO McKenna’s evidence (which was the subject of ground (d)), no substantial miscarriage of justice would have occurred.

17    In the light of the concession of ground (d), the Chief of Navy accepted (at [85]) that there had been a substantial miscarriage of justice in respect of the conviction on charge 1 and that the conviction on that charge should be quashed. In other words, taking all conceded errors together, the Chief of Navy agreed that grounds (e) and (f) should be upheld. The Chief of Navy would not, however, have so conceded were it not for the error which was the subject of ground (d).

18    The Chief of Navy disputed other contentions advanced by CPO McKenna. They were that:

(a)    on the evidence, it was not open to the DFM to convict on charge 1 (such that, for that reason, the conviction was unreasonable, unsafe, or unsatisfactory);

(b)    the DFM erred by failing to give the kind of direction contemplated in R v Murray (1987) 11 NSWLR 12;

(c)    the DFM erred by failing to give a direction under s 165 of the Evidence Act 2011 (ACT);

(d)    the DFM failed to warn himself, either adequately or at all, regarding the weaknesses associated with aural identification evidence; and

(e)    the DFM failed to give himself standard directions concerning the conduct of a criminal trial.

19    We consider that the concessions were properly made for the reasons articulated in the Chief of Navy’s submissions. The appeal was allowed on the basis of the concessions set out at [65]–[72] and [85] of those submissions, but not for any of the disputed reasons.

Should there be a retrial?

20    Section 24 of the DFDA Act provides that, where the Tribunal quashes a conviction, it may, if it considers that it is in the interests of justice that the person should be tried again, order a new trial of the accused person for the particular offence.

21    CPO McKenna opposed the making of such an order.

22    The Director of Military Prosecutions (“DMP”), who appeared on behalf of the Chief of Navy, advised the Tribunal that she did not consider, as a matter of prosecutorial discretion, that a new trial should occur whether or not the Tribunal was minded to make an order under s 24 of the DFDA Act.

23    Both parties accepted that it was a matter for the Tribunal to determine whether the interests of justice required that a new trial be ordered.

24    CPO McKenna advanced a number of reasons which, he submitted, rendered it inappropriate to order a new trial. They included that:

    The relevant events had occurred almost three years ago, in May 2014.

    The trial had proceeded over nine days and nine witnesses were called.

    The DFM’s ultimate findings turned on his assessment of the credibility of some of those witnesses.

    The offence which was the subject of charge 1 was not of sufficient gravity.

CPO McKenna also contended that the prosecution should not get a second go” at bolstering what he said was a weak case.

25    As already noted the DMP advised the Tribunal that she did not consider it appropriate to proceed with a new trial. She explained her reasons for this view:

I have considered the authorities and taken into account a number of factors. Those factors are that there has been a withdrawal of appeal in relation to the fourth and the sixth counts and, in my view, that there is some reflection of the misconduct of the appellant in relation to the standing convictions in relation to those matters that were almost contemporaneous with the conduct in the first charge. The offending is at the lowest end of the scale of offending of this type. It is a serious criminal offence, but this is very much at the lower end of the scale, as my learned friend has said, that there was no – there were no threats, it was just a – there were offending comments.

Another factor that – that there is a delay. The question of general deterrence weighs very low in prosecuting the matter again. The appellant has continued to serve on deployment with distinction since the conviction on the matter.”

26    The power to award a new trial is discretionary. Some of the considerations which guide the exercise of the discretion were summarised by McClellan CJ at CL in Gilham v The Queen [2012] NSWCCA 131 at [649]:

The relevant principles were discussed in Reid v The Queen [1980] 1 AC 343 and Fowler: R v Anderson (1991) 53 A Crim R 421 at 453 (Gleeson CJ). The overriding consideration is whether the interests of justice require a new trial: Fowler at 630. Unless the interests of justice require the entry of a verdict of acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge: Spies v The Queen [2000] HCA 43; (2001) 201 CLR 603 at [104]. The court determines where the interests of justice lie by considering various factors, including:

    the public interest in the due prosecution and conviction of offenders (R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at [49]; Anderson at 453; Reid at 349);

    the seriousness of the alleged crimes (Anderson at 453; Reid at 350; Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331 at [164] (Johnson J));

    the strength of the Crown case (Anderson at 453);

    the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury, which, according to the constitutional arrangements applicable in New South Wales, is the appropriate body to make such a decision (Taufahema at [51]; Anderson at 453; Reid at 350);

    the length of time between the alleged offence and the new trial, and in particular whether the delay will occasion prejudice to the accused (Taufahema at [55]; Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 at 520 (Dawson, Toohey and McHugh JJ); Anderson at 453);

    whether the grant of a new trial would impermissibly give the prosecution an opportunity to supplement or "patch up" a defective case or to present a case significantly different to that presented to the jury in the previous trial (R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 at 518; King v The Queen [1986] HCA 59; (1986) 161 CLR 423 at 433 (Dawson J); Parker at 520 (Dawson, Toohey and McHugh J); Reid at 350; Fowler at 630; Anderson at 453; Taufahema at [59]);

    the interests of the individual accused, and in particular whether it would be unduly oppressive to put the accused to the expense and worry of a further trial (Spies at [103]; Reid at 350);

    whether a significant part of the sentence imposed upon conviction has already been served (Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 590 (McHugh J));

    the expense and length of a further trial (Reid at 350);

    whether a successful appellant to the Court of Criminal Appeal has been released from custody (Taufahema at [55]; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 302 (Brennan, Deane, Dawson and Gaudron JJ); R v Wilton (1981) 28 SASR 362; (1981) A Crim R 5 at 36768 (King CJ)); and

    whether an acquittal would usurp the functions of the properly constituted prosecutorial authorities, which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions (R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512 at [27]).

27    As can be seen there are many potentially-relevant considerations which, depending on the circumstances of a particular case, may tend both for and against the ordering of a new trial.

28    Having weighed the competing considerations the Tribunal concluded that a new trial should not be ordered. It was mindful of the considerations raised by the DMP and the long period which had elapsed since the offence had allegedly been committed. In the meantime, CPO McKenna had rendered distinguished service to the Navy and the nation on deployment. We gave considerable weight to the advice that the DMP did not, despite any order which might be made by the Tribunal, propose to prosecute a new trial. She had made this considered decision for reasons which we found to be persuasive. It would be a rare case in which the Tribunal would consider it to be in the interests of justice to order a new trial where the prosecuting authority had determined, for good reason, not to proceed with such a trial.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justices Tracey, Logan and Garde.

Associate:

Dated:    6 March 2017