DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Baker v Chief of Army [2017] 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, to the extent necessary, be granted.

3.    The appeal be dismissed.

REASONS FOR DECISION

THE TRIBUNAL:

1    On 13 August 2015, the appellant, Major Wayne Donald Baker, was found guilty by a Defence Force Magistrate (“DFM”) of two charges of assaulting a subordinate contrary to s 34(1) of the Defence Force Discipline Act 1982 (Cth) (“the DFDA”). He was acquitted of a more serious charge.

2    The charges in respect of which he was convicted were Charges 1 and 3. Charge 1 alleged that the appellant:

[b]eing a Defence member in the State of Queensland on 24 April 2014 whilst travelling in a bus bound for Gallipoli Barracks, assaulted 8262392 Sergeant Michael Pithie, a member of the Australian Army who was subordinate to him in rank, by pulling Sergeant Pithie out of his seat.

Charge 3 alleged that the appellant:

[b]eing a Defence member in the State of Queensland on 24 April 2014 whilst travelling in a bus bound for Gallipoli Barracks, assaulted 8262392 Sergeant Michael Pithie, a member of the Australian Army who was subordinate to him in rank, by kicking Sergeant Michael Pithie whilst Sergeant Michael Pithie lay on the floor of the bus.

3    Charge 3 was an alternative to Charge 2, which was the more serious charge of engaging in conduct that is a Territory offence, being assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act 1900 (ACT).

4    By notice of appeal dated 30 May 2016, the appellant appeals to this Tribunal from his convictions (and seeks leave to do so to the extent necessary) 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 the notice of appeal was lodged.

background

Facts

5    The DFM made a number of findings, including the following, which he said were not in dispute.

6    On 24 April 2014, the appellant, Sergeant Michael Pithie, and other members of 8th/9th Battalion, Royal Australian Regiment attended the Kilcoy Races, as part of an organised outing by the unit. While at the Kilcoy Races, Sergeant Pithie, along with some members of the Signals Platoon, consumed too much alcohol and became intoxicated. When the buses left the Kilcoy Races to take the soldiers back to Gallipoli Barracks, the appellant, Warrant Officer Class Two Iago Walker and at least one other member were left behind, as a result of which one of the buses returned to collect them. At least one of the members on board the bus had vomited as a consequence of being intoxicated. Sergeant Pithie was behaving erratically, as a consequence of his intoxication.

7    Warrant Officer Walker and the appellant ended up sitting next to each other on the left-hand side of the bus; Warrant Officer Walker next to the window and the appellant next to the aisle. Sergeant Pithie was sitting in the same row as them, on the other side of the aisle. Shortly after the bus departed, Sergeant Pithie was leaning against the seat in front of him, and he began spitting, either on his feet or on the floor adjacent to his feet. There was some verbal interaction between Sergeant Pithie and Warrant Officer Walker. Almost immediately after this, the appellant stood up out of his seat and said to Sergeant Pithie, “What the fuck did you say to my CSM [Company Sergeant Major]?” or words to that effect. He said those words sufficiently loudly that others on the bus could hear. Sgt Pithie subsequently came to be on the floor of the bus.

8    How Sergeant Pithie came to be on the floor of the bus was the subject of dispute. The prosecution case was that the appellant crossed the aisle and assaulted Sgt Pithie by lifting him out of his seat. That conduct was the basis of Charge 1. The prosecution asserted that, after Sgt Pithie subsequently fell to the ground, the appellant then delivered a number of kicks to the upper body of Sergeant Pithie while he was on the floor of the bus. Sergeant Pithie sustained a number of injuries, which the DFM found would amount to actual bodily harm. Sergeant Pithie maintained that he sustained those injuries as a result of the kicking and being half thrown and pushed down the stairwell of the bus by the appellant. That conduct was the basis of Charge 2. The DFM was not satisfied beyond reasonable doubt that the injuries were the result of the actions of the appellant. The appellant was convicted of the alternative charge, Charge 3, the gravamen of which was the kicking of Sergeant Pithie while he lay on the floor of the bus.

9    There was evidence that the appellant had called out to the bus driver to stop the bus. When the bus stopped, Sgt Pithie was assisted off the bus, lay on the grass and was given water. When the bus and its passengers got back to barracks, Sgt Pithie’s injuries were attended to at the health clinic.

The hearing

10    At the trial before the DFM, which began on 4 August 2015, some 38 witnesses gave evidence, 33 called by the prosecution and 5 by the appellant. The appellant was one of those 5 witnesses. In his detailed reasons for decision on 13 August 2015, comprising about 67 pages of transcript, the DFM carefully summarised and considered the evidence of each witness.

11    In relation to Charge 1, the DFM accepted the version given by the appellant as to how Sergeant Pithie came to be removed from his seat. The appellant gave evidence that he put his hand under the armpit of Sergeant Pithie and lifted him up. He admitted in cross-examination that, by his actions, he pulled Sergeant Pithie from his seat. That was an intentional act involving the infliction of force sufficient to constitute an assault. Counsel for the appellant did not dispute that the appellant had engaged in that conduct; rather, he argued that the appellant was justified in doing so.

12    In relation to Charge 3, the appellant said he had no recollection of making contact with Sergeant Pithie using his foot but he conceded that it could have happened. Much of the cross-examination concerned the level of force used by the appellant, it being put to many of the witnesses that, if there was any contact by the appellant’s foot, it was in the nature of a nudge rather than a kick.

13    The DFM concluded that:

some 12 of the witnesses, the majority of whom were seated in the rear of the bus at the time of the incident, gave evidence consistent with a finding that they observed the accused kick Sgt Pithie whilst he lay on the floor of the bus. I accept that the descriptions given by the witnesses is not wholly consistent, either by reference to the number of kicks delivered, the force which was used or the part of the accused’s foot which made contact with Sgt Pithie’s body.

14    Although the DFM doubted the reliability of the evidence of some witnesses, on account of their intoxication, he “found the evidence of the witnesses who testified to seeing the accused kicking Sgt Pithie to be honest and reliable, and sufficient to persuade [him] beyond reasonable doubt that the accused did kick Sgt Pithie at least once while he lay on the floor”. In particular, he accepted the evidence of nine witnesses, whom he named, and who he did not consider had exaggerated their evidence. (One of those nine was Lance Corporal Matthew Maher.) The DFM said that he was satisfied beyond reasonable doubt that the appellant kicked Sgt Pithie at least once whilst he lay on the floor of the bus. He also said that he was not satisfied that the appellant kicked Sgt Pithie with any great force. He concluded by saying:

In my view, the evidence of the other witnesses, who observed a kick or a kicking motion, is so numerous and so overwhelming that I have no hesitation in preferring their evidence to that of the accused.

15    After hearing submissions on sentence, the DFM imposed a reprimand in relation to Charge 1 and a fine of $1500 suspended as to $750 in relation to Charge 3.

16    The majority of the prosecution’s witnesses who were on the bus saw the appellant pull Sergeant Pithie from his seat or kick or nudge Sergeant Pithie with his foot when Sergeant Pithie was on the ground, or both, and said that this occurred before the bus stopped. Only two, one of whom was the appellant, suggested otherwise. Lance Corporal Joshua Walters said that the bus pulled over before Sergeant Pithie was lifted from his seat, and the appellant said that he instructed the bus driver to stop the bus, and waited for the bus to stop, before he lifted Sergeant Pithie from his seat. Warrant Officer Walker said that he heard the appellant tell the bus driver to stop the bus but could not recall whether it had stopped at the time when the appellant lifted Sergeant Pithie up. Certain other witnesses either did not recall the bus being told to stop or did not give evidence as to whether it was in motion at the relevant time.

GROUNDS OF APPEAL

17    The notice of appeal described five “grounds of appeal” as follows:

(a)    That the Defence Force Magistrate failed to take into account the overarching requirement to consider all of the elements of the alleged offending in a true military context. The appellant’s conduct, in a military context and in the circumstances then presented, was justified. This constituted a material irregularity in the course of the proceedings and a substantial miscarriage of justice has occurred.

(b)    That the finding of guilt on charges one and three was against the weight of the evidence.

(c)    That the Defence Force Magistrate in considering section 10.5 of the Commonwealth Criminal Code erred in his construction of that exculpatory provision.

(d)    That the Defence Force Magistrate in considering section 10.3 of the Commonwealth Criminal Code erred in finding against the weight of evidence that the appellant had not satisfied the evidential burden for the defence of sudden and extraordinary emergency, and/or, that there was no requirement for the prosecution to negative such a defence beyond reasonable doubt.

(e)    That leave be granted to introduce new and/or fresh evidence with consequential orders to flow therefrom.

18    By a document dated 2 November 2016 entitled “Amended Appeal”, the appellant sought leave to amend ground (c) and also to add an additional ground (c)(a). So amended, those grounds would be as follows:

(c)    That the Defence Force Magistrate in considering section 10.5 of the Commonwealth Criminal Code erred in his construction of that exculpatory provision and by determining that the prosecution had not negatived the defence raised by the appellant.

Particulars

(i)    That the justification or excuse as referred to therein related to “a law” and not specifically “a law of the Commonwealth”;

(ii)     That s 277 Criminal Code (Qld) is such “a law”;

(iii)     That s 281 Criminal Code (Qld) is such “a law”;

(iv)     That s 10.4(1) and ss (d) and (e) is such “a law” for the purpose of s 10.5.

(c)(a)    Alternatively, that pursuant to s 10.4(1) and (2) of the Commonwealth Criminal Code, the Defence Force Magistrate erred in failing to find that the defence as set out in s 10.4(2)(d) and (e) had been raised and not negatived by the prosecution.

19    What was identified as ground (e) is not in itself a ground of appeal, but an application for leave to introduce fresh evidence, presumably pursuant to DFDAA s 23(2), in aid of ground (b). That application was abandoned, and rightly so, during oral submissions. We indicated that we would provide brief reasons in relation to that application, and accordingly we shall do that first.

APPLICATION TO CALL FRESH EVIDENCE

20    The appellant sought leave to call fresh evidence from himself and his friend Major John Mickle about conversations they had with Lance Corporal Maher at Everton Park Hotel on 26 September 2015. The evidence was contained in the appellant’s affidavit sworn 9 August 2016 and in an affidavit of Major Mickle sworn 31 August 2016.

21    That evidence was to the effect that Lance Corporal Maher approached the appellant at the hotel and apologised for how everything had turned out following the hearing before the DFM. The appellant responded by accusing Lance Corporal Maher of lying when he had given evidence that the appellant had kicked Sergeant Pithie when he was on the ground. Lance Corporal Maher did not concede that he told that or any other lie, but said that he felt under some pressure to give the evidence that he did. During a later discussion that evening, Lance Corporal Maher told the appellant that he would call the Australian Defence Force (“ADF”) prosecutor the following Monday and tell him that he had perjured himself and that he would “fix the issue”.

22    That did not happen. Rather, the appellant was subsequently informed by Lance Corporal Maher’s company commander that Lance Corporal Maher told him that “he would not be altering or retracting his statement”.

23    In other words, the appellant seeks leave to tender hearsay evidence of what Lance Corporal Maher said to him on 26 September 2015. When asked whether he could point to any authority to support the contention that hearsay evidence could be used instead of direct evidence from the witness who is said to have recanted his evidence, counsel for the appellant was unable to assist. He then said that this application would no longer be pursued.

24    The following passage from the judgment of Fitzgerald P in R v Bryer (1994) 75 A Crim R 456; [1994] QCA 547 summarises the alternative conditions for setting aside a conviction on the ground of a recantation. His Honour said, at 458:

A conviction is set aside on the basis of a recantation if (i) the witness’s new version of events is sufficiently relevant, cogent and plausible to raise a doubt as to guilt in all the circumstances, including the original evidence and explanations given for the original evidence and the recantation, or (ii) the evidence of the recanting witness is so untrustworthy that it “ought not to be allowed to enter into the reasons for any verdict of guilty”: Davies and Cody (1937) 57 CLR 170. In the latter circumstance, it would be inappropriate for the recanting witness to be called in the event of a retrial.

25    Clearly it would be difficult, if not impossible, for a tribunal to make these kinds of assessments unless the evidence of the witness is reduced to writing and the witness is available for cross-examination. The situation is even more complex in the present case because of Lance Corporal Maher’s indication that he would not be altering or retracting his evidence.

26    Even if Lance Corporal Maher was compelled to appear before this Tribunal to give evidence, his evidence would not assist the appellant if he adheres to his original testimony. The appellant would then have to seek and obtain leave under s 38 of the Evidence Act 1995 (Cth) (“the Evidence Act”) to cross-examine Lance Corporal Maher as an unfavourable witness in the hope of Lance Corporal Maher accepting as true what the appellant says he said at the hotel and more clearly identifying the alleged lie or lies. Having regard to factors such as those set out in s 192(2) of the Evidence Act, it is most unlikely that such leave would be given.

27    Further, assuming in favour of the appellant that Lance Corporal Maher would now say that he lied when he told the DFM that he saw the appellant kicking Sergeant Pithie, such a recantation would not raise a doubt as to the appellant’s guilt. There would not have been “a significant possibility that the [DFM], acting reasonably, would have acquitted the appellant had the fresh evidence been before [him]”: see Mickelberg v The Queen (1989) 167 CLR 259 at 273 (Mason CJ); see also at 275 (Brennan J) and 301–302 (Toohey and Gaudron JJ). It would not meet the first of the alternatives set out by Fitzgerald P in R v Bryer.

28    We say this because there was an abundance of evidence from other witnesses to the effect that the appellant kicked Sergeant Pithie while he lay on the floor of the bus. It also follows that, even if Lance Corporal Maher’s evidence before the DFM was disregarded, the result would have been the same.

29    Accordingly, we reject the application to adduce fresh evidence and ground (e).

MILITARY CONTEXT – GROUND OF APPEAL (A)

30    The appellant, at [33] of his Outline of Submissions, contends that the DFM “failed to take into account the framework of military law and discipline when making the findings he did, particularly with respect to its application to the behaviour of individual military personnel [and] most importantly, the behaviour of the complainant”. His submissions refer to cases such as Re Aird; Ex parte Alpert (2004) 220 CLR 308; [2004] HCA 44 and Re Tracey; Ex parte Ryan (1989) 166 CLR 518 where reference is made to service discipline as relating not only to punishment but also to promote the efficiency and morale of the service. However, as counsel for the respondent pointed out, these authorities relate to jurisdiction and recognise that the jurisdiction of a service tribunal will always depend upon the offences having a sufficient military context.

31    The appellant also referred to decisions of this Tribunal in Van Damme v Chief of Army [2002)] ADFDAT 2 and Quinn v Chief of Army [2001] ADFDAT 4.

32    Quinn concerned offences of ill-treating a subordinate contrary to s 34 of the DFDA. At [15] the Tribunal stated that the word “ill-treat” “takes flavour from its context in a statute concerning military discipline” and, at [16], that “whether conduct is ill-treatment … will depend on a careful assessment of all the circumstances, always bearing in mind the military environment in which the question arises”. As the respondent points out, at [12] of his Submissions, the Tribunal was recognising that “the mere causing of physical pain or mental suffering would not necessarily constitute ill-treatment as service personnel have to be trained to cope mentally and physically with the demands of warfare”. In such cases, the respondent submitted that “the military purpose and the context in which the events occurred are very relevant considerations”. This context involves circumstances and concepts quite different to those that would amount to an assault. An assault, being the unlawful infliction of force (or the apprehension of such force), is no less an assault just because it is committed “in a military context”.

33    Van Damme concerned the meaning of the word “assault” in the DFDA and proof of the fault element where the assault comprised threatening words but no physical contact. The Tribunal noted that the word “assault” is not defined in the DFDA and applied the common law authorities concerning assault, notwithstanding that the conduct occurred in a military context.

34    As the respondent points out, these cases do not stand for the proposition that a superior is authorised to exercise discipline by the use of force, either to compel compliance with a command or as a consequence of a subordinate’s disobedience of a command. A service member, like any other person, is entitled to be free from bodily interference, subject to any lawful excuse. Where a service member has disobeyed a lawful command, the appropriate sanction is disciplinary action, not the immediate use of unlawful force.

35    Counsel for the appellant stressed the need for the maintenance of discipline and a safe work environment, and submitted, at [36] of the Appellant’s Outline of Submissions, that the appellant found himself confronted with “a drunken and insubordinate Sergeant who failed to comply with a lawful command in circumstances where because of the conditions inside the bus, coupled with the complainant’s extremely intoxicated state, gave rise to workplace health and safety concerns which justified or excused the conduct of pulling him from his seat and trying to move him from the passage inside the coach”.

36    The command referred to is the appellant’s demand that Sergeant Pithie get up from his seat. This occurred after Sergeant Pithie had said words to the effect of, “What the fuck did you say to my CSM?”, and immediately before the appellant lifted Sergeant Pithie from his seat. The preponderance of evidence was to the effect that the bus was still in motion while all this was happening. It is difficult to imagine how it would have been safer for Sergeant Pithie, or anyone else, to require and force him to stand on the moving bus, particularly with vomit on the floor, than to have waited for the bus to stop before requiring him to stand.

37    The DFM did consider the military context where relevant. For example, he considered it in the context of the contentions regarding lawful excuse based upon s 10.5 of the Criminal Code Act 1995 (Cth) sch 1 (“Commonwealth Criminal Code”). However, the “military context” has nothing to do with whether the elements of an assault are established. This ground of appeal is misconceived.

38    Ground (a) is not made out.

Finding against the weight of the evidence – ground of appeal (B)

39    During oral submissions, counsel for the appellant conceded that this ground effectively does not extend beyond the points made in relation to grounds (c) and (d).

40    As we have pointed out in [11]–[14] above, the weight of the evidence clearly supported the conclusions reached by the DFM.

41    Accordingly, ground (b) is not made out.

erroneous construction of s 10.5 – ground of appeal (c)

42    Section 10.5 of the Commonwealth Criminal Code provides that “a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law”. The Dictionary to the Code provides that “law” means “a law of the Commonwealth, and includes this Code”.

43    The DFM said:

Dealing first with the defence of lawful authority, no authority was cited to me supporting the submission. Section 10.5 provides that:

A person is not criminal [sic] responsible for an offence if the conduct constituting the offence is justified or excused under a law.

“Law” is defined under the Criminal Code to mean the law of the Commonwealth.

44    The appellant makes two complaints about the last sentence quoted above: first, that s 10.5 refers to “a law”, not “the law”; and secondly, that the DFM should not have applied the definition of “law” in the Code. In relation to the first point, the reference to “the law” was clearly a minor slip which had no relevant bearing upon the DFM’s approach to the matter. As we have noted (in [47] below) the DFM proceeded to consider whether there was “a law” that fell within the scope of s 10.5.

45    The second point was of no consequence, as the DFM was only asked to consider and apply s 9 of the Defence Act 1903 (Cth) and ss 28 and 29 of the Work Health and Safety Act 2011 (Cth), which are both clearly laws of the Commonwealth. No reference was made before the DFM to the provisions now relied upon, namely Defence Instruction (General) Personnel 35-3 titled Management and Reporting of Unacceptable Behaviour (“DI(G) PERS 35-3”) and, belatedly after this Tribunal had heard submissions and reserved its decision, ss 277 and 281 of the Criminal Code Act 1899 (Qld) sch 1 (“Queensland Criminal Code”).

46    The DFM summarised counsel’s submission to be that:

the circumstances which confronted the accused, which involved a drunken and insubordinate sergeant, who had failed to comply with a lawful command to stand up, and which occurred in circumstances where, because of the conditions inside the bus, coupled with Sgt Pithie’s extremely intoxicated state, gave rise to workplace health and safety concerns which justified or excused the accused’s conduct of pulling Sgt Pithie from his seat, under section 10.5.

47    The DFM rejected that submission. He said that the application of s 10.5 “is dependent on a law of the Commonwealth, expressly providing a justification or excuse.” He referred to s 15KN of the Crimes Act 1914 (Cth), the example referred to in [10.5.100] of Principles of Federal Criminal Law, Stephen Odgers, 3rd edition (2015) (“Odgers”). He said that:

neither section 9 of the Defence Act, which relates to command of the Defence Force, or sections 28 and 29 of the Workplace Health and Safety Act [sic], which impose certain duties on workers and others in a workplace, can be interpreted as providing a justification or excuse as contemplated under section 10.5. To put it another way, the argument seems to be that, if an officer gives a subordinate a lawful command which is then disobeyed, the officer would be entitled to resort to using physical coercion on the subordinate in order to get them to comply with the order. That, in my view cannot be accepted. I therefore find that the accused has not satisfied the evidential burden of raising a defence under s 10.5 and that he has no defence available to him under that section.

Meaning of “law” in s 10.5 of the Commonwealth Criminal Code

48    In the document dated 2 November 2016 entitled “Amended Appeal”, the appellant particularised three “laws” said to be laws within the meaning of s 10.5 of the Commonwealth Criminal Code: s 277 of the Queensland Criminal Code; s 281 of the Queensland Criminal Code; and “s 10.4(1) and ss (d) and (e)” of the Commonwealth Criminal Code. We take the third reference as being to ss 10.4(2)(d) and 10.4(2)(e) of the Commonwealth Criminal Code.

49    The appellant contends that the DFM erred in his construction of s 10.5 because he wrongly applied the definition of “law” as it appears in the Dictionary to the Code. He should have had regard to the words “a law” and thus not confined himself to laws of the Commonwealth that might provide justification or excuse. Counsel did not provide any relevant authority in support of this contention.

50    Rather, he submitted that had Parliament intended to confine this defence to laws of the Commonwealth it would have expressly said so in s 10.5. We reject this submission. The fundamental function of the Dictionary is to define and give content to words such as this word, namely “law”, which are frequently referred to in the statute. Where Parliament has found it necessary to distinguish between a law of the kind defined in the Dictionary and some other law, it has done so in clear terms. An example of that is s 4.3 of the Commonwealth Criminal Code, which expressly refers to “the law” in one part (s 4.3(a)) and “a law of the Commonwealth, a State or a Territory, or … common law” in another (s 4.3(b)).

51    In addition, in the Appellant’s Amended Outline of Submissions, counsel, referring to the uncontroversial fact that State laws will continue to operate in conjunction with Commonwealth laws provided that there is no relevant inconsistency, submitted that a justification or excuse provided under a State law would fall within the scope of “a law” of the kind referred to in s 10.5.

52    Such a construction would lead to all manner of anomalies and uncertainties, depending upon where the alleged offence was committed. In particular, conduct that might be “lawful” (in the sense of “justified”, “excused”, “authorised” or “necessary”, to identify common “defences” under a Code or at common law) in one State or Territory might not be so in another. It would be odd if, and cannot have been intended by Parliament that, conduct that would otherwise constitute a Commonwealth offence would be criminal if committed in one State or Territory but not if committed in another State or Territory.

53    Further, as the respondent has pointed out, s 10.5 is contained in Division 10 of Part 2.3 of Chapter 2 of the Commonwealth Criminal Code. Part 2.3 provides for circumstances in which there is no criminal responsibility, and Division 10 specifically provides for “circumstances involving external factors”. Division 10 comprises sections headed “10.1 Intervening conduct or event”, “10.2 Duress”, “10.3 Sudden or extraordinary emergency”, “10.4 Self-defence” and “10.5 Lawful authority”.

54    The purpose of Chapter 2 of the Commonwealth Criminal Code is to provide for the general principles of criminal responsibility that apply under “laws of the Commonwealth”. Section 2.1 provides that:

The purpose of this Chapter is to codify the general principles of criminal responsibility under laws of the Commonwealth.  It contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.

55    The respondent submitted, and we agree, that there are no textual or contextual features of s 10.5 that would support the appellant’s construction that a Queensland statutory provision can be “a law” for the purposes of s 10.5. On the contrary, the appellant’s submissions, in effect, provide a construction of the legislation that is at odds with the internal logical consistency and overall consistency of the legislation.

56    As was observed in Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 at 22; [2015] HCA 14 at [35] (French CJ, Hayne, Kiefel and Nettle JJ):

The best that can be done is to reason in terms of relative consistency — internal logical consistency and overall consistency in accordance with the principles of statutory interpretation adumbrated in Project Blue Sky — to determine which of the two competing constructions of “adversely affect” is more harmonious overall.

57    If the purpose of Chapter 2 of the Commonwealth Criminal Code is to provide for the principles of criminal responsibility for offences to which Chapter 2 applies (such as DFDA s 34(1), which is subject to the Code by virtue of s 10 of the DFDA), then construing s 10.5 as applying to Queensland provisions would promote a logical inconsistency within Chapter 2.

58    In his original submissions, the respondent referred to part of page 233 of The Commonwealth Criminal Code: A Guide for Practitioners, a document published in 2002 by the Commonwealth Attorney-General’s Department in association with the Australian Institute of Judicial Administration. Page 233 relevantly states in relation to s 10.5:

Accordingly it was necessary to provide a general defence which will excuse or justify conduct which is authorised by law. The law in question must be a law of the Commonwealth: Dictionary. Typical examples for an application of s 10.5 are those provisions which confer investigatory powers on police and other officials, and permits for the import or manufacture weapons, explosives or drugs … &c. The reference to conduct which is justified or excused “by or under a law” recognises that the authorisation may be indirect or implied, rather than explicit.

(Citations omitted. Emphasis added.)

59    Although no authority was cited in support of the sentence italicised in the passage quoted above, such an inference has also been drawn by other learned authors such as Odgers (at [10.5.100]) and Watson & Watson, Australian Criminal Law: Federal Offences, at [10.4620].

60    We agree with the conclusion that a law referred to in s 10.5 must be a law of the Commonwealth.

61    As Gleeson CJ and Gummow J said in Re Colina; Ex parte Torney (1999) 200 CLR 386 at 397; [1999] HCA 57 at [25] (“Re Colina”), in the context of s 80 of the Constitution:

The term “law of the Commonwealth” refers to laws made under the legislative powers of the Commonwealth. This meaning is settled by a long line of authority.

(Citations omitted.)

62    Their Honours referred to the following cases as examples of this line of authority: R v Bernasconi (1915) 19 CLR 629 at 635; Jerger v Pearce (1920) 27 CLR 526 at 531; Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 at 431; Sankey v Whitlam (1978) 142 CLR 1 at 91–92; Western Australia v The Commonwealth (1995) 183 CLR 373 at 436–437.

63    In Re Colina, McHugh J said at 402 [45]: “A law of the Commonwealth is simply a law made under or by the authority of the Parliament of the Commonwealth.”

64    Sections 277 and 281 of the Queensland Criminal Code are not laws of the Commonwealth. They are laws of a State. These provisions therefore cannot provide the appellant the requisite justification or excuse to the offence of assaulting a subordinate contrary to s 34(1) of the DFDA.

Defence Instruction (General) Personnel 35-3

65    Because neither DI(G) PERS 35-3 nor any other similar instrument was referred to by the appellant at his trial before the DFM, in his petition to the reviewing authority, or in his request for a further review by the Chief of Army, this issue arose for the first time when the appellant provided the Appellant’s Outline of Submissions for the purpose of this appeal. Counsel for the appellant was wrong to complain at [44] of the Appellant’s Outline of Submissions, that “the learned DFM did not take into account this relevant instruction in the emerging situation that occurred”.

66    With reference to s 10.5, counsel for the appellant contended at [40] of the Appellant’s Outline of Submissions:

The maintenance of discipline would constitute such justification. In addition, the restraint of a person by virtue of the common law with such person presenting in a mischievous, disrespectful, and manner that was insubordinate or otherwise hitherto, lacked discipline in the ADF is both consistent with a civilian arrest is [sic] a “or and or” [sic], restrained [sic] placed upon an individual by a Commanding Officer in a situation of emergency is “a law” deriving its genesis from the Defence Act 1903 and subordinate instructions such as DI(G) PERS 35-3.

67    Counsel for the appellant submitted that Defence Instructions issued for the purposes of the administration of the Defence Force pursuant to s 11 of the Defence Act 1903 (Cth) have the force of law. The respondent has not suggested otherwise or that Defence Instructions are not laws of the Commonwealth.

68    Counsel for the appellant referred to parts of DI(G) PERS 35-3, such as clause 13, which says that “defence personnel have a responsibility to take all reasonably practicable steps to protect the health and safety of themselves and others in the workplace”, and clause 14, which includes a statement that “[s]upervisors will be accountable for … taking all reasonably practicable action to prevent unacceptable behaviour in the workplace”. The appellant also referred to clause 15, which relevantly provides that Commanders and managers must also “manage and report all unacceptable behaviour complaints promptly and impartially in accordance with this Instruction”.

69    We do not consider these to be laws of the kind contemplated in s 10.5. They are, in effect, aspirational statements of policy, not provisions which purport to justify or excuse conduct that would otherwise constitute an offence. In any event, “reasonably practicable action” would not include action that is unlawful. Thus a supervisor could not, in reliance on DI(G) PERS 35-3, physically restrain an unruly worker in handcuffs or detain him or her in a locked room without lawful authority, such as a warrant.

70    Odgers identifies, at [10.5.100], s 15KN of the Crimes Act 1914 (Cth) as an example of a statutory justification within the meaning of s 10.5. That section provides:

15KN Protection from criminal liability – officers of issuing agencies

The chief officer, or an officer, of an issuing agency who does something that, apart from his section, would be a Commonwealth offence or an offence against a law of a State or Territory, is not criminally responsible for the offence if the thing is done to comply with a request under section 15KI or a direction under section 15KL.

71    Odgers also provides, at [10.5.100], an example of a statutory excuse, namely s 105.21(3) of the Commonwealth Criminal Code, which provides that the provision in that Code making it an offence for a person to refuse or fail to comply with the request of a police officer to provide the person’s name and address “does not apply if the person has a reasonable excuse”.

72    Counsel for the appellant also contended, at [45] of the Appellant’s Outline of Submissions, that the circumstances that confronted the appellant “gave rise to a workplace health & safety concern which justified or excused the conduct of pulling Sergeant Pithie from his seat (under s 10.5)”. Not only is this wrong as a matter of law, it is difficult to imagine how workplace health and safety could have been better served by the appellant acting as he did, namely by lifting and kicking Sergeant Pithie on a moving bus with vomit on the floor, than it would have been by leaving Sergeant Pithie in his seat, at least until the bus stopped.

Ground (c)(iv)

73    Although the appellant has purported to add, without requesting or obtaining leave prior to or at the hearing, a further particular relying upon the self-defence provisions in s 10.4 of the Commonwealth Criminal Code, and in particular in ss 10.4(2)(d) and (e), as being laws for the purposes of s 10.5, no assistance has been provided to this Tribunal by way of submissions on that point.

74    We will deal with the defences raised under s 10.4 later in these reasons.

Conclusions

75    None of the laws to which the appellant has referred, either before the DFM or in this Tribunal, are laws of the kind that could have applied under s 10.5 in order to justify or excuse his conduct.

76    Assuming that the appellant did order Sergeant Pithie to stand up, and assuming that such an order was lawful, no law of the Commonwealth authorised the use of force amounting to an assault to procure compliance with it. (There is no suggestion that the appellant was exercising a power of arrest without warrant under s 89 of the DFDA, in connection with which use of reasonable force might have been permissible, having regard to s 92 of the DFDA.)

sudden or extraordinary emergency – ground of appeal (d)

77    The appellant contends, at page 14 of his Outline of Submissions, that the DFM erred in finding “against the weight of evidence that a defence of sudden extraordinary emergency had not been raised and/or the prosecution had not negatived such defence beyond reasonable doubt pursuant to s 10.3”.

78    Section 10.3 of the Commonwealth Criminal Code provides:

(1)    A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.

(2)    This section applies if and only if the person carrying out the conduct reasonably believes that:

(a)    circumstances of sudden or extraordinary emergency exists; and

(b)    committing the offence is the only reasonable way to deal with the emergency; and

(c)    the conduct is a reasonable response to the emergency.

79    This defence was also only raised in passing by the defending officer during closing submissions before the DFM, and even then (at least explicitly) only in relation to Charge 1. He said:

Also could you look at sudden and extraordinary emergency at 10.3? He hasn’t raised what codified laws would normal [sic] consider to be an extraordinary emergency but certainly there are cases that go so far as to say that the emergency doesn’t have to be life or death. He had a situation where no one was doing anything and reacting to it. To that extent, it was an emergency. He wanted the bus stopped to get him off, that’s certainly consistent with an emergency, and he did what he had to do to effect that; that is, pick the man up.

80    Before us, the appellant submitted, at [51] of the Appellant’s Outline of Submissions, that:

the appellant presented evidence identifying that the commission of the offence of which he had been convicted was the only reasonable way to deal with the alleged sudden or extraordinary emergency, and that his conduct in constituting the offence was of [sic] reasonable response to the emergency. This taken, with the overall res gestae of the events and circumstances that were taking place at the relevant time aboard the bus could readily be identified by the following …

81    The submission at [51] proceeded to refer to a number of circumstances, namely that: the appellant had boarded the bus and noted that a number of individuals were very drunk; he was required as a supervisor and as an officer commanding to exercise management, care and discipline; a number of people had been physically sick on the bus; in particular, Sergeant Pithie “was behaving in a particularly irrational and intoxicated manner, which was both in any objective view unhealthy and comprised [sic] the position in so far as workplace, health & safety was concerned, a severe health danger and concern”; Sergeant Pithie’s actions “were non-compliant with DI(G) PERS 35-3 contravening the standards applicable to service personnel and in particular the orders of his Commanding Officer, with respect to consumption of alcohol and behaviour generally”; Sergeant Pithie posed a risk both to himself and others; and that “a senior Non-Commissioned Officer, including a Warrant Officer did nothing to assist in administering or at least condemning or disciplining the behaviour of Pithie”. The submission continued at [52] as follows:

The appellant called out “stop the bus”, and taken in the context of things, all happened very quickly. The appellant reasonably perceived that the situation existed that he had to deal with was vital and bearing in mind the competing factors, he had to administer regularity, discipline and appropriate supervision for the health and well-being of others.

82    The DFM concluded:

Likewise, in my view, the accused cannot avail himself of a defence under s 10.3 of the Criminal Code because, on any view of the circumstances confronting him on the bus, there was no sudden or extraordinary emergency which then justified him pulling Sgt Pithie from his seat. I find the accused also has not satisfied the evidential burden in raising a defence on the evidence.

83    We agree with these conclusions. We also agree with the following submissions made by the respondent.

84    In Parker v Chief of Air Force [2010] ADFDAT 2, the members of this Tribunal were required to consider whether a factual foundation for the operation of the defence of sudden or extraordinary emergency had been established. Parker was prosecuted for causing grievous bodily harm to LAC Hawkins when she struck him with the motor vehicle that she was driving. Parker and Hawkins had been involved in several verbal confrontations that evening. When she went to get into her car, Hawkins continued to confront her, including by banging on the vehicle and on the driver’s side window after she had locked herself in her car for protection.

85    After reviewing the law regarding the defence of sudden or extraordinary emergency, the Tribunal expressed the following conclusion at [98]:

In order for the defence of sudden or extraordinary emergency (or necessity) to be available to the appellant it was necessary for the Court to be satisfied that when she commenced to drive from the car park to the accommodation block, she was facing “an imminent peril”. This would only be the case if she believed on reasonable grounds that she confronted a threat of death or serious injury from LAC Hawkins.

86    At [83], the Tribunal found that “[t]here was no dispute that Hawkins [the complainant] had behaved objectionably towards the appellant”. The respondent submitted, at [54] of his Submissions, that similar circumstances exist in the present case, though in Parker, the victim actually posed a real and physical threat to the appellant. In this case, Sergeant Pithie never posed a threat to the appellant and there was no imminent peril which required the appellant to pull Sergeant Pithie from his seat on the moving bus, let alone to kick him. As the respondent submitted, at [54], the sole basis for the appellant’s conduct in relation to Charge 1 was that, as he said at trial, he “had an extremely intoxicated individual who was not complying with any orders. [His] only wish at that point was to have him removed from the bus”.

87    A person who wishes to escape criminal responsibility by relying on a provision of Part 2.3 of the Commonwealth Criminal Code (other than s 7.3) bears an “evidential burden” in relation to that matter: Commonwealth Criminal Code s 13.3(2). The term “evidential burden” is defined to mean “the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist”: Commonwealth Criminal Code s 13.3(6).

88    This issue, in the context of s 10.3 of the Commonwealth Criminal Code, was considered by the Court of Appeal of Western Australia, by Buss JA (McLure P and Mazza JA agreeing), in Ajayi v The Queen (2012) 263 FLR 465; [2012] WASCA 126. In that case, the appellant, charged with the transporting of prohibited drugs to Australia, maintained that she did this under duress, or alternatively in response to circumstances of sudden or extraordinary emergency. The duress comprised the threat of physical danger to her immediate family if she did not comply with the request to transport the drugs. The extraordinary emergency was the existence of physical danger to her immediate family if she did not transport the drugs.

89    Buss JA discussed in some detail the genesis of Chapter 2 of the Commonwealth Criminal Code, and in particular ss 10.2 and 10.3, namely the report of the Criminal Law Officers Committee of the Standing Committee of Attorneys-General (“the Committee”) entitled Model Criminal Code Chapter 2: General Principles of Criminal Responsibility, Final Report (1992). At 468 [28], his Honour said:

Section 10.3 was … enacted in the form recommended by the Committee. The Committee’s commentary on the draft provision which became s 10.3 reads (at p 67):

This section recognises that an accused person is excused from committing what would otherwise be a criminal act in very limited circumstances. Like duress, the necessity of the occasion and the response to it are both subject to an objective test. The Committee’s proposal is an amalgam of the principles underlying the common law of necessity and the Griffith Code equivalent.

(Emphasis added.)

90    His Honour continued at 468–469 [31]–[35]:

31    Section 10.3(2) specifies the elements of the defence. If the accused satisfies the evidential burden in relation to each of the elements (see s 13.3) and the Crown fails to negative beyond reasonable doubt at least one of the elements (see ss 13.1 and 13.2), then the accused will be taken to have carried out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency within s 10.3(1).

32    As to s 10.3(2)(a), it is an element of the defence that, at the material time, the accused reasonably believed that “circumstances of sudden or extraordinary emergency [existed]”. This element incorporates a subjective component and an objective component. The subjective component is the existence of a belief by the accused that circumstances of sudden or extraordinary emergency existed. The objective component is that any such subjective belief by the accused must have been reasonable.

33    It is unnecessary for an emergency to be both sudden and extraordinary. The emergency may be either sudden or extraordinary: see Nguyen v The Queen [2005] WASCA 22 at [17] (Templeman J, Murray J agreeing and McLure J agreeing generally).

34    However, the concepts of a “sudden” emergency and an “extraordinary” emergency may, in a particular case, overlap. That is, an emergency may, in a particular case, be both “sudden” and “extraordinary”'.

35    The phrase “sudden or extraordinary emergency” in s 10.3 bears its natural and ordinary meaning. This is apparent from the statutory text and the decision of the Parliament not to define the phrase or any of the words that comprise it.

91    At 469 [40], Buss JA summarised what the Court of Appeal had said previously in Nguyen v The Queen [2005] WASCA 22 about s 10.3:

(a)    It may be relevant, in deciding whether an emergency is sudden or extraordinary, to have regard to the time which elapsed between the accused becoming aware of the emergency, on the one hand, and his or her acting in response to it, on the other. However, delay is not a ‘determinative factor’.

(b)    The Crown cannot negative the defence by proving that no sudden or extraordinary emergency in fact existed. Although the absence of an actual sudden or extraordinary emergency may be a relevant factor, the ultimate question is whether the accused reasonably believed, in terms of s 10.3(2)(a), that circumstances of sudden or extraordinary emergency existed. See [17] [of Nguyen v The Queen [2005] WASCA 22].

92    In Nguyen at [17], Templeman J (Murray J agreeing, and McLure J agreeing generally) had made the following observations about s 10.3:

(a)     The circumstances in which the defence may be raised include a sudden emergency or an extraordinary emergency. It is not necessary for the emergency to be both sudden and extraordinary.

(b)     In determining whether an emergency is sudden or extraordinary it may be relevant to have regard to the time which elapsed between the offender becoming aware of the emergency and his or her acting in response to it. However, delay is not a determinative factor.

(c)     The prosecution cannot exclude the defence by proving that no sudden or extraordinary emergency actually existed. Although that fact may be relevant, the ultimate question is whether the offender reasonably believed in the existence of the emergency.

93    Buss JA proceeded to explain that, similar to what he had said at [32] about s 10.3(2)(a), the elements in ss 10.3(2)(b) and 10.3(2)(c) involve not only a subjective element concerning the belief of the accused but also an objective component concerning the reasonableness of such belief: at 470 [41]–[42].

94    Buss JA gave two reasons for rejecting the appellant’s contentions that she had any factual basis for a defence under s 10.3. At 472 [50], his Honour stated:

First, the appellant did not satisfy the evidential burden in relation to those objective elements of s 10.3(2) which required it to have been reasonable for her subjectively to believe that:

(a)    committing the offence was the only reasonable way to deal with the alleged sudden or extraordinary emergency; or

(b)    the conduct constituting the offence was a reasonable response to the alleged emergency.

(Emphasis in original.)

95    His Honour referred to a number of decisions which refer to notions of public policy which should be taken into account when considering the reasonableness of conduct said to have occurred in response to a sudden or extraordinary emergency. One such decision was R v Rogers (1996) 86 A Crim R 542, where the appellant was convicted of attempting to escape from lawful custody. He alleged that he had attempted to escape from prison because he feared a life-threatening attack was going to be committed on him and he declined to be placed in protection by the prison authorities because he considered that would place him in greater danger. Gleeson CJ (Clarke JA and Ireland J agreeing) observed at 546 that:

[t]he corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.

96    At 473 [53]–[54], Buss JA continued:

53    In the present case, on the evidence as a whole, it was not open to the jury to find, as a reasonable possibility, that at the material time the appellant reasonably believed that:

(a)    committing the offence was the only reasonable way to deal with the alleged sudden or extraordinary emergency; or

(b)    the conduct constituting the offence was a reasonable response to the alleged emergency.

54    At the material time, and on the evidence as a whole, the only reasonable belief open to the appellant, in relation to the factual basis for the alleged sudden or extraordinary emergency, was that reporting the relevant facts and circumstances:

(a)    to the authorities (for example, at Perth International Airport immediately upon her arrival);

(b)    further or alternatively, to the captain or senior purser of the aircraft while it was in transit to Perth,

was a reasonable way to deal with the alleged emergency, further or alternatively, a reasonable response to the alleged emergency.

(Emphasis in original.)

97    As the respondent has pointed out, the appellant referred to various circumstances which he submits supports the contention that the evidential burden in s 10.3 was met. We have summarised them in [80]–[81] above. There is nothing to indicate how the appellant believed, reasonably or at all, that there was an emergency in the relevant sense (such as a person’s life or safety being in peril), let alone such an emergency as could only be addressed by pulling Sergeant Pithie from his seat, while the bus was still in motion, and kicking him on the floor.

98    Objectively, there was no emergency that made it reasonable for the appellant to pull Sergeant Pithie from his seat at all, let alone while the bus was moving and Sergeant Pithie was so intoxicated. Indeed the unreasonableness of him doing this in those circumstances was demonstrated by what happened next, namely Sergeant Pithie falling to the floor. Nor was there any emergency that made it reasonable for the appellant to kick Sergeant Pithie when he was on the ground.

99    In our view, the appellant did not satisfy his evidentiary burden in relation to any of the requirements in ss 10.3(2)(a), (b) and (c), let alone all three of them.

self-defence – ground of appeal (c)(a)

100    The appellant contends that the DFM erred by failing to find that the prosecution had failed to negative self-defence of the kind referred to in ss 10.4(2)(d) and (e), after such a defence had been raised by the appellant.

101    Those provisions provide that a person is excused from criminal responsibility for conduct that would otherwise be criminal if he or she believed that his or her conduct was necessary to prevent criminal trespass to any land or premises (s 10.4(2)(d)), or to remove from any land or premises a person who was committing a criminal trespass (s 10.4(2)(e)). Like s 10.3, s 10.4 also contains subjective elements concerning the belief of the accused, and an objective requirement that the conduct is a reasonable response in the circumstances as he or she perceived them.

102    As we have noted, this ground was raised after the Tribunal had concluded the hearing of the appeal. As is the case with grounds (c) and (d), this is a matter that, if it were to be relied upon, ought to have been raised before the DFM. This would have been particularly important in relation to this ground, because had it been raised then, the evidence and case may have taken a different course. For example, it might have been expected that the appellant would have been cross-examined as to his actual belief as to whether Sergeant Pithie was committing or was about to commit a criminal trespass, and whether he believed that it was necessary to pull Sergeant Pithie from his seat while the bus were still moving, in order to prevent any such criminal trespass.

103    For those reasons, there is a strong case that leave to add that ground at this late stage should be refused. However, it is preferable to dispose of the ground on the merits.

104    The appellant contends that Sergeant Pithie became a trespasser because his tenure aboard the bus had been terminated following his failure to obey a lawful command. The Appellant’s Amended Outline of Submissions at [46H] state as follows:

His insubordination and failure to remove himself, get up or otherwise handle himself in a fashion, the subject of direct order, and remove himself off the bus put him in the position as a trespasser as at and from the time of the command.

105    Counsel for the appellant has not provided any authority to support the contention that such conduct could amount to trespass — let alone criminal trespass. The appellant would need to at least demonstrate that he believed his conduct was necessary either to prevent Sergeant Pithie committing criminal trespass or to remove him because he was committing such a crime.

106    Secondly, even if the appellant believed that Sergeant Pithie was engaged in criminal trespass, we doubt that the bus would fall within the scope of “land” or “premises”; rather, it is a “vehicle”.

107    Thirdly, even if the appellant believed that Sergeant Pithie was trespassing and “premises” included a bus, before resorting to force to remove a trespasser, the appellant would have been required to give a direction to Sergeant Pithie to leave and then give him a reasonable opportunity to comply with that direction. We agree with the respondent that, on any view of the facts, the appellant removed Sergeant Pithie from his seat before he could have been expected to comply with any direction given. And in any event, the administration of a kick, even of only moderate force, exceeded what could reasonably have been considered a reasonable response.

108    Accordingly, this ground also fails.

CONCLUSION

109    We grant the extension of time required in order for the notice of appeal and application for leave to appeal to be lodged. We also grant leave to appeal to the extent necessary. None of the grounds has been made out. The appeal must be dismissed.

Associate:

Dated:    28 April 2017