DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
DATE OF ORDER:
5 May 2017
THE TRIBUNAL ORDERS THAT:
2. The appeal against the conviction be dismissed.
1 It is a matter of history that, in May 1941, British, Australian, New Zealand and Greek troops were heavily engaged in a desperate but ultimately unsuccessful defence of the Greek island of Crete from a German airborne and seaborne invasion (Australian War Memorial War History, Crete, Kreta: the battles of May 1941: https://www.awm.gov.au/atwar/crete.asp accessed, 28 April 2017). The vital ground for the defence of the island comprised the airfields and ports along the north coast of the island. The ports were at Souda (then more commonly spelled, “Suda”) Bay and at the city of Chania. Ships of the Royal Navy and of the Royal Australian Navy (“the RAN”) made valiant efforts to interdict the seaborne elements of the invasion force and, once it became apparent that the invasion force had reached overwhelming strength, to evacuate the defenders. For their service in the waters around Crete in the Mediterranean Sea between 20 May and 1 June 1941 HMA Ships Perth, Napier, Nizam, Stuart, Voyager, Vampire, Vendetta and Waterhen received the Battle Honour, “Crete” (RAN website: http://www.navy.gov.au/history/battle-honours/crete-1941 accessed, 28 April 2017).
2 Some 74 years later, another Australian warship, HMAS ANZAC, came to Chania. The port city and Souda Bay, as with the rest of Crete, had long since reverted to peace and tranquillity. The ship was en route to the Gallipoli Peninsula, Turkey, where she and her crew were to undertake representational duties, in particular to participate in events related to the commemoration of the centenary of the Landing at ANZAC Cove on 25 April 1915.
3 A recollection of this history is not irrelevant to the disposition of this appeal. For it serves as a reminder that a warship and her crew must sometimes undertake roles which have no equivalent in civilian life and which correspondingly demand related norms of conduct by that crew, which also differ from, and are more exacting than, those of civilian life. The very name, “warship” indicates this.
4 Chania was HMAS ANZAC’s first port of call after departing Australia and some weeks at sea. Two of the then members of the crew of HMAS ANZAC were then Lieutenant Commander Nicholas Plenty and Leading Seaman Naval Police Coxswain (Leading Seaman) Mirjana Komljenovic. The then Lieutenant Commander Plenty has since reverted to the rank of Lieutenant but, for convenience and consistency, we shall continue to refer to him by reference to the rank which he held at the time of the incident charged. At that time, he was the ship’s Flying Officer and, as such, the head of HMAS ANZAC’s Aviation Department. “Departments” are the principal organisational units into which a ship’s company is divided. Leading Seaman Komljenovic was the junior of two naval police assigned to the ship (the more senior being a Chief Petty Officer). They were the representatives on the ship of the Naval Police Coxswain’s Branch of the RAN. The two naval police also had whole of ship co-ordination responsibilities aboard HMAS ANZAC.
5 Lieutenant Commander Plenty and Leading Seaman Komljenovic were amongst a group from the ship’s company who were granted shore leave in Chania. Early in the afternoon of 18 April 2015, Leading Seaman Komljenovic disembarked and caught a taxi to a hotel in the centre of Chania where she and other crew members were to stay overnight. She spent the balance of the afternoon swimming in the hotel pool and drinking some Corona beer. She and her female crew member roommates then changed into civilian evening attire prior to going out for the evening. Initially, they went to the Sports Bar, where they met members of the ship’s Aviation Department, including Lieutenant Commander Plenty. From the Sports Bar, they all went to the “Klik” nightclub. The nightclub had a large dancefloor and a disc jockey, as well as a bar. Over the course of the evening, Leading Seaman Komljenovic became progressively more intoxicated. At some stage, either in the late evening of 18 April 2015 or the early hours of the morning on 19 April 2015, Lieutenant Commander Plenty and Leading Seaman Komljenovic ventured on to the dancefloor. There, in full view of other crew members, Leading Seaman Komljenovic was observed to engage in intimate kissing and hugging with Lieutenant Commander Plenty.
6 This incident was reported to the ship’s commanding officer, who directed that a preliminary investigation (termed a “Quick Assessment”) be conducted. Thereafter, the matter was referred to the Director of Military Prosecutions (“the DMP”) for consideration of prosecution under the Defence Force Discipline Act 1982 (Cth) (“the DFDA”). In the result, in August 2015, the DMP came to lay the following charge of prejudicial conduct, contrary to s 60(1) of the DFDA, against Leading Seaman Komljenovic:
“Being a Defence member at Chania, Crete between 17 April 2015 and 20 April 2015, did behave in a manner likely to prejudice the discipline of the Defence Force, by engaging in intimate relations, namely kissing and touching, with a superior officer, namely LTCDR NE Plenty (as he was then), while in the presence of HMAS Anzac’s ships company.”
A like charge was laid against Lieutenant Commander Plenty, save that the allegation concerned engaging in intimate relations with a subordinate rather than a superior.
7 In October 2015, the Registrar of Military Justice (“the RMJ”) referred the charges for hearing before a Defence Force Magistrate (“DFM”), Wing Commander Gregory Lynham. The hearing took place in Sydney, commencing on 30 November 2015. Lieutenant Commander Plenty and Leading Seaman Komljenovic each pleaded, “Not Guilty”. On 3 December 2015, the DFM found each of them guilty. He imposed on each the sentence of a “Severe Reprimand”.
8 LSNPC Leading Seaman Komljenovic has sought an extension of time within which to appeal against her conviction. The Chief of Navy who, as the relevant Service Chief, is the respondent did not oppose the granting of that extension. Initially, the grounds of appeal included an alleged error on the part of the DFM in failing to hold that a defence of involuntary intoxication had been made out. On the hearing, only two grounds of appeal came to be pressed. These were that:
(a) in the circumstances prevailing, the DFM ought to have recused himself on the basis that a reasonable apprehension of bias existed; and
(b) the conduct charged did not constitute an offence against s 60 of the DFDA.
9 In our view, those remaining grounds of appeal raise questions of law alone such that no grant of leave to raise them is required. We shall consider the merits of each of them in turn.
A reasonable apprehension of bias?
10 The background circumstances said to give rise to a reasonable apprehension of bias on the part of the DFM were not controversial.
11 In August 2015, as now, the person holding the appointment of DMP was (and is) Brigadier Jennifer Woodward CSC, a member of the Australian Regular Army. Prior to taking up office as DMP, Brigadier Woodward was a member of the judge advocates’ panel and a DFM. She came to hold these appointments as part of the sequel to the judgement of the High Court in Lane v Morrison (2009) 239 CLR 230. In that case, the High Court held that the Australian Military Court (“the AMC”) was not validly established. Brigadier Woodward had been one of the appointees to that court. A sequel to that case saw the restoration of the system of trial of service offences by court martial or DFM. Another was that the appointees to the AMC translated to becoming judge advocates (and one the Chief Judge Advocate) and DFM.
12 For a time prior to her appointment as DMP, Brigadier Woodward and Wing Commander Lynham were each simultaneously members of the judge advocates’ panel and DFM. Brigadier Woodward relinquished her appointments as a member of the judge advocates’ panel and a DFM upon her appointment as DMP.
13 This past coincidence of office holding was said to give rise to a reasonable apprehension of bias on the part of the DFM. The point was taken before the DFM, who ruled on it adversely to Leading Seaman Komljenovic. The background circumstances, that ruling and the conclusion which Wing Commander Lynham reached on the merits of the charge were then said before us to give rise to a reasonable apprehension of bias.
14 There was no dispute as to the applicable principle. As with the parties and the DFM, we take that principle to be as stated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at , “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. In respect of past relationships, that principle was more particularly described in this way in that joint judgement in Ebner, at :
“It is not only association with a party to litigation that may be incompatible with the appearance of impartiality. There may be a disqualifying association with a party’s lawyer, or a witness, or some other person concerned with the case. In each case, however, the question must be how it is said that the existence of the “association” or “interest” might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits. As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies. Similarly, the bare identification of an “association” will not suffice to answer the relevant question.”
15 Though she signed the charge sheet in respect of Leading Seaman Komljenovic in her capacity as the DMP, Brigadier Woodward did not appear personally to prosecute the charge laid. The duty of prosecuting officer was undertaken by another legal officer. The present case is thus one where it is possible to identify a bare, past association and a tenuous one at that.
16 To dispose of this ground, it is necessary to refer to a number of provisions of the DFDA.
17 The DFDA mandates that there be a panel of officers known as the “judge advocates’ panel”: s 196(1). Officers are appointed to that panel for a term of three years (which may be extended) by the Chief of the Defence Force or a Service Chief, in each instance upon the nomination of the Judge Advocate General (“JAG”): s 196(2) and s 196(2A), DFDA. An officer is not eligible for appointment to the judge advocates’ panel unless the officer is enrolled as a legal practitioner and has been so enrolled for not less than five years: s 196(3), DFDA. Officers so appointed must make a prescribed oath or affirmation before the JAG or an officer nominated by him: s 196(4) and s 196(5), DFDA. The prescribed form of oath or affirmation adopts a time honoured form taken by civilian judicial officers in the United Kingdom, Australia and elsewhere in the Commonwealth: “I will do right to all manner of people according to law, without fear or favour, affection or ill-will” (s 196 and Sch 5, DFDA).
18 The office of JAG is established by the DFDA and must be filled by a person who is or has been a Justice or Judge of a “Federal Court” or of a Supreme Court of a State or Territory: s 179 and s 180 of the DFDA. The DFDA does not define “federal court” but evinces no intention to the contrary of the application of the definition of that term offered by s 2B of the Acts Interpretation Act 1901 (Cth). That provision defines “federal court” to mean, “the High Court or any court created by the Parliament”. Prior to the establishment of what is now known as the Federal Circuit Court (“the FCC”), the application in practice of the definition resulted in symmetry in the appointment pool for JAG as between the Federal, State and Territory judiciary in that one of the eligibility criteria was membership of a superior court. The FCC is not a superior court. The present application of that definition is therefore anomalous. Even so, that does not detract from it being a feature of the system of military justice established by the DFDA that particular, significant value judgements, described below, are consigned to a person who also holds a judicial office. A defence member may be appointed as JAG: s 180(3), DFDA. The DFDA thus proceeds on the footing that there is no necessary antipathy between the holding of a judicial office and membership of the Defence Force.
19 DFM are appointed by the JAG from amongst the membership of the judge advocates’ panel: s 127, DFDA. A DFM must also make an oath or affirmation akin to the civilian judicial oath before the JAG or an officer nominated by him (s 128 and Sch 4, DFDA). There is no requirement that either a member of the judge advocates’ panel or a DFM must be a member of the Permanent Forces. Wing Commander Lynham was a member of the Air Force Reserve.
20 Under the DFDA, the trial of a service offence by a DFM is an alternative to the trial of that offence by a restricted court martial. A DFM adjudicates both matters of fact and law, as to the former performing a role akin to that of a court martial panel and, as to the latter, performing a role consigned to a judge advocate in a court martial. More serious service offences must be tried by general court martial. When acting as such, a judge advocate and a DFM each enjoy the same protection and immunity as a Justice of the High Court: s 193(1), DFDA.
21 The DFDA does not establish a permanent Defence Force Magistrates Court. Rather, as occasion requires, the JAG nominates a particular DFM to try the charge(s) laid against a particular defence member with the RMJ then referring the charge(s) to that DFM for trial accordingly: s 129C, DFDA.
22 It is settled that the trial of a service offence by a DFM does not entail any violation of Chapter III of the Constitution: Re Tracey; Ex parte Ryan (1989) 166 CLR 518; White v Director of Military Prosecutions (2007) 231 CLR 570. That does not mean that a DFM is not bound by the rules of natural justice. One of those rules is that there ought not to be an appearance of bias, as described in Ebner, on the part of the DFM.
23 Upon becoming DMP, Brigadier Woodward ceased to hold office as both a member of the judge advocates’ panel and a DFM, as each would be incompatible with the duties of her office as DMP. The DFDA assumes that incompatibility by providing that the DMP ceases to hold office if the DMP engages in practice as a legal practitioner outside the duties of his or her office or, without the approval of the Minister, engages in paid employment outside the duties of his or her office: ss 188GN(2)(c) and (d), DFDA. Further, the DMP is subject to a standing obligation to disclose to the Minister any interest, direct or indirect, which could give rise to a conflict with the duties of the office of DMP: s 188GO, DFDA.
24 The DMP has no command or supervisory functions in respect of members of the judge advocates’ panel, including DFM.
25 Service tribunals, be they courts martial or DFM, are ad hoc tribunals, appointed and convened as the exigencies of service discipline require. For that purpose, it is necessary that there be a pool of suitably qualified officers who can serve as a judge advocate or, as the case may be, a DFM. That is why the DFDA makes provision for the judge advocates’ panel. Each of the officers appointed to that panel is also, by definition, a “legal officer” for the purposes of the DFDA: s 3 - an officer who is a legal practitioner. Subject to the exigencies of the service, an accused person awaiting trial before a service tribunal is to be given the opportunity of being represented and advised by a legal officer: s 137(1), DFDA. It is in furtherance of that right that the Director of Defence Counsel Services is obliged to maintain lists of legal officers at prescribed places who are willing to undertake these duties: s 101F, DFDA.
26 Not every legal officer must be appointed to the judge advocates’ panel and not every member of that panel must be appointed as a DFM. The DFDA envisages that the JAG will make a value judgement about the appointment of particular officers to that panel and, in turn, as a DFM. But that Act does not proceed on the basis that an officer ceases to be a legal officer upon his or her appointment to that panel or as a DFM.
27 There is good reason not to construe the DFDA as if these appointments necessarily gave rise to a reasonable apprehension of bias if their holder undertakes other duties of a legal officer.
28 It is axiomatic that not every officer in the Defence Force is also a legal practitioner and thus a “legal officer” as defined by s 3 of the DFDA. The DFDA is meant to govern the discipline of the Defence Force in peace and war, both in Australia and anywhere abroad. A construction which would promote that purpose is to be preferred to one which would be subversive of it. It is readily possible to envisage circumstances arising on overseas deployment where the already limited pool of officers who are also “legal officers” would, at a given location, be very limited indeed, to say nothing of those who are members of the judge advocates’ panel, much less also a DFM. In particular circumstances, it may well be necessary for a legal officer who is a member of the judge advocates’ panel to act as a defending officer in a given case, while another member of that panel appears as prosecutor and yet another serves as the judge advocate for a court martial or even, if also so appointed, as a DFM. And on another occasion in a theatre of operations the roles might have to be reversed. The DFDA does also envisage that representational roles may be undertaken by legal practitioners who are not “legal officers” but access to this wider class may be problematic in a theatre of operations. Even in peacetime garrison duties in Australia, it is also possible, particularly in places away from the State or Territory capitals, to envisage circumstances where no civilian legal practitioner is accessible or has either interest or inclination to appear in a service tribunal and in which it would not be practical to administer the DFDA on the basis that a member of the judge advocates’ panel could never be a defending officer or a prosecuting officer. Yet further, by not confining those officers who may be a member of the judge advocates’ panel or a DFM just to those who are members of the Permanent Forces, the DFDA necessarily assumes that suitably qualified and experienced officers to undertake these duties may very well be found in the Reserve Forces.
29 Once these features of the DFDA are understood, in particular that a service tribunal is always an ad hoc one, that a judge advocate or DFM exercising that office enjoys the immunities mentioned, must undertake that duty without fear, favour or ill-will but can never simultaneously hold office as DMP, even though he or she nonetheless remains a legal officer, there could be no reasonable apprehension of bias arising from the signing of a charge sheet by the DMP in respect of a charge to be heard by a DFM. And that is so even if that DFM had once also been a member of the judge advocates’ panel and a DFM. Indeed, the provisions of the DFDA mentioned demonstrate that the Parliament has gone to elaborate lengths to ensure that there could never be any such apprehension.
30 It was put on behalf of Leading Seaman Komljenovic that, nonetheless, a reasonable apprehension of bias did exist because the DMP was undertaking a function (the signing of the charge sheet) in respect of a tribunal of which she was once a member. This undertaking of function was said to require that Wing Commander Lynham recuse himself from his role as the DFM appointed to hear the charge.
31 In support of this submission, reference was made to the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) (“Solicitors Conduct Rules”), made under the Legal Profession Act 2006 (ACT). This reference was made on a twofold basis. It was first submitted that Brigadier Woodward was admitted as a solicitor in the ACT and held a practising certificate as such. This was not proven but, as did the respondent Chief of Navy, we shall assume that these facts were established. The other basis of the submission was that a DFM had, materially, the powers of the judge advocate of a restricted court martial judge advocate (s 129(1), DFDA) and that such a judge advocate was obliged to give any ruling, and exercise any discretion, that, in accordance with the law in force in the Jervis Bay Territory, would be given or exercised by a judge in a trial by jury (s 134(1), DFDA). The Legal Profession Act 2006 (ACT) and the Solicitors Conduct Rules were said to be laws applicable in the Jervis Bay Territory. We accept that, even though the Jervis Bay Territory is separate from the ACT, the laws of the ACT apply in the Jervis Bay Territory, in so far as they are applicable and, providing they are not inconsistent with an Ordinance, by virtue of the Jervis Bay Acceptance Act 1915 (Cth).
32 By rule 38, the Solicitors Conduct Rules provide:
“38 RETURNING JUDICIAL OFFICERS
38.1 A solicitor who is a former judicial officer must not appear in:
38.1.1 any court if the solicitor has been a member thereof or presided therein; or
38.1.2 any court from which appeals to any court of which solicitor was formerly a member may be made or brought,
for a period of two years after ceasing to hold that office unless permitted by the relevant court.”
33 Even though the DMP did not personally appear, it was put that she had appeared by a legal practitioner (as s 188GB(b)(i) of the DFDA permits).
34 From this it was said to follow that, such an appearance having been made, Wing Commander Lynham, in the exercise of an appointment having like powers to those of a judge in the Jervis Bay Territory, ought to have recused himself on the basis of past association with the office holder (the DMP) on whose behalf the appearance was made.
35 There are many difficulties, all fatal, with this submission.
36 First and foremost, the Solicitors Conduct Rules were not, as the Chief of Navy correctly submitted, in force at the time of the trial before the DFM. They did not commence until 1 January 2016. At the time of the trial, the relevant rules were the Legal Profession (Solicitors) Rules 2007 (ACT) (“the repealed rules”). The repealed rules did not contain an equivalent of rule 38 in the Solicitors Conduct Rules.
37 In response, it was submitted on behalf of Leading Seaman Komljenovic that the absence of express provision in professional conduct rules meant that the common law position was applicable. This was said to be as stated by Sir William Boulton in his seminal work, Conduct and Etiquette at the Bar (6th Edn, p  – “Boulton”):
“The Bar Council does not approve as a matter of principle of former Judges returning to practice at the Bar in any capacity.”
38 Boulton refers (at ) to the Bar Council’s recognition of an exception to this dogmatic position in respect of Recorders and deputy Circuit Judges. In England and Wales, these are part time appointments held by members of the Bar who otherwise remain in active practice. The exception recognised is that barristers holding such appointments “ought not to act as such in a Magistrates Court or the Crown Court at a place at which he sits as a recorder if a professionally embarrassing situation were liable to be created by his doing so” (examples are cited but it is not necessary to refer to these).
39 As to what was said to be the common law, we were also taken to Harrison’s Law on Conduct of the Legal Profession in Queensland (2nd Edn, 1984, G N Williams – “Harrison”) in which, at 17, the following ethical ruling of the Queensland Bar Council is cited:
“A member of the bar who was formerly a judge (other than an Acting Judge) shall not practice before the court of which he was a member.”
40 The position as stated in Harrison, notably including the exception in respect of Acting Judges, is consistent with that set out in Boulton. Even assuming that this represents the common law position (which it is not necessary for us to decide), there is no relevant analogy to be drawn as between the position of the DMP and that of the DFM. As we have mentioned, there is no DFM Court. All service tribunals are ad hoc. Further, a DFM sits alone. Brigadier Woodward had never, and could never, have sat on a bench of which Wing Commander Lynham was a member. They were but once and simultaneously members of an eligibility pool (the judge advocates’ panel) from which DFM could be appointed and each had once simultaneously held such an appointment. Yet further, even if there were an analogy, the position of a DFM is akin to that of a recorder or Acting Judge in respect of which office there has never been an absolute prohibition from practice as an advocate. The circumstances prevailing as between Wing Commander Lynham as DFM and Brigadier Woodward as DMP and a former DFM gave rise to no “professionally embarrassing situation”. Further again and more fundamentally, the bar rules mentioned envisage that it is the barrister, not the judge, who should withdraw. It was never satisfactorily explained in the submissions made on behalf of Leading Seaman Komljenovic why it was, if there were an analogy, that the DFM had to recuse himself.
41 As we observed in the course of the submissions on behalf of Leading Seaman Komljenovic, a corollary of them would be that no person who had ever been a member of the judge advocates’ panel or a DFM could ever be appointed as the DMP. The DFDA does not expressly mandate that prohibition in prescribing the appointment criteria for the DMP (s 188GG, DFDA) but instead envisages that it is not possible simultaneously to hold office as DMP and retain membership of the judge advocates’ panel and an appointment as a DFM. The experience required for that appointment might desirably include experience as a legal officer not only in prosecuting and defending service offences but also in acting as a judge advocate or DFM. Given this, it would be odd to find such a necessary implication.
42 In the course of submissions, reference was also made to the Legal Profession (Barristers) Rules 2014 (ACT), rule 87A of which prescribes a less dogmatic position in respect of return to practice by a former judge than that in the rules set out in Boulton or Harrison. It is not necessary to refer to this rule as, even making the very large assumption that it had any relevant application, the result of that application could be no different than that already described.
43 It only comes to this; however one approaches this ground, it has no merit.
An absence of prejudicial conduct?
44 By s 60(1) of the DFDA it is provided:
(1) A defence member commits an offence if the member does an act that is likely to prejudice the discipline of, or bring discredit on, the Defence Force.
Maximum punishment: Imprisonment for 3 months.”
45 Leading Seaman Komljenovic did not submit that it was beyond the constitutional legislative competence of the Parliament for the application of the DFDA to be extended to the conduct charged. The ground is therefore not, in terms, one which raises the same question as that considered in Re Aird; Ex parte Alpert (2004) 220 CLR 308 (Alpert). Even so, the conduct charged having occurred on shore leave while the defence members charged were in civilian attire at a non-military venue, there may be some inherent tension with respect to a charge such as the present between a submission which concedes jurisdiction and yet denies that the conduct could be regarded as likely to prejudice the discipline of the Defence Force. That is because, on the assumption (cf Williams v Chief of Army  ADFDAT 3) that it was accepted in Alpert that the mere status of the person charged as a defence member at the time when the alleged service offence was committed was insufficient foundation under s 51(vi) of the Constitution for legislative competence, a relevant “service connection” would be required.
46 In the present case, the service connection is very much stronger than that which persuaded a bare majority in Alpert that the offence charged fell within the lawful application of the DFDA. In Alpert, the defence member was not just on leave and in civilian attire but in a different country, hundreds of kilometres away from where he was temporarily stationed abroad and had entered that different country on his civilian passport. In the present case, Lieutenant Commander Plenty and Leading Seaman Komljenovic were on short term shore leave as crew members from a warship in the course of an ongoing overseas deployment and temporarily moored in the same port as where the alleged offending conduct occurred. Consent does not confer jurisdiction. Insofar as it may be necessary for us to be satisfied on that subject, we are well satisfied that a service connection necessary to enliven the lawful application of the DFDA is present.
47 In concluding that the conduct charged constituted an offence against s 60(1) of the DFDA, the DFM reasoned:
(a) It was not necessary for the prosecution to prove that the discipline of the Defence Force was prejudiced, it being sufficient if it were proved that this was a reasonable probability, as opposed to a mere possibility.
(b) Such a reasonable probability arose because:
(i) Lieutenant Commander Plenty, as the head of a ship’s department held an important position on board the ship for the enforcement and maintenance of discipline and the setting of standards for other members of the crew;
(ii) Leading Seaman Komljenovic was one of only two coxswains on board the ship carrying out those duties and, by virtue of that position, heavily involved in the enforcement and maintenance of discipline on board the ship;
(iii) each of them, by virtue of their appointments, was subject to an expectation that they would behave in an exemplary fashion;
(iv) the reaction (for which there was evidence at the trial) of some of the witnesses who observed the kissing indicated that they felt uncomfortable about what they were observing Lieutenant Commander Plenty and Leading Seaman Komljenovic to be doing; and
(v) passionate kissing between a Lieutenant Commander and a Coxswain, in front of a number of the ship’s company, in a nightclub environment, was conduct likely to prejudice the discipline of those on board the ship.
48 It might be thought that the fifth of the criteria mentioned by the DFM was itself a conclusion rather than a separate fact leading to a conclusion of the requisite likelihood of prejudice. We take that reference by the DFM to the ranks and appointments of the two accused to carry with it recognition that the rank of Lieutenant Commander is superior to that of Leading Seaman. So much is, in any event, a matter of law: s 21 and Sch 1, Defence Act 1903 (Cth). The DFM did not base his conclusion as to likelihood of prejudice solely upon intimacy between persons having that difference in rank but rather considered that in conjunction with the appointments which each then held and their related responsibilities, the fact that the intimacy was observed by other crew members, including subordinates and that both the accused and the observers were then stationed aboard the ship where the responsibilities of rank and appointment fell to be exercised. So viewed, the conclusion of the DFM is an unremarkable one and one which, on the facts found, we share.
49 The lengthy provenance of s 60 of the DFDA as it then stood in military law was notably reviewed by Lockhart J in Chief of the General Staff v Stuart (1995) 58 FCR 299. That was prior to amendments which expressly made the offence created by s 60 one of strict liability. As it previously stood, Black CJ (Davies J agreeing) considered that the conduct alleged to be prejudicial had, objectively, to have that quality: Stuart, at p 309. This accords with a view earlier expressed by this Tribunal in respect of the analogue offence once found in reg 203(1)(lx) of the Australian Military Regulations: Re Nickols’s Appeal (1966) 9 FLR 120 at 123. As the Tribunal there observed, referring to the task at trial, “This question must be considered objectively but not in accordance with the unguided whim of the tribunal. The answer is to be given after proper guidance as to the meaning of insubordination and the accepted standards of service life.”
50 In our view, the test remains an objective one. Making due allowance for the slightly different wording of s 60(1) of the DFDA, an annotation in the Manual of Military Law (HMSO, 1907, at p 299) in respect of the analogue offence found in s 40 of the Army Act 1881 (UK) continues to be apt:
“A court is not warranted in convicting unless of opinion that the conduct charged (1) was committed by the accused, and (2) was to the prejudice both of good order and military discipline having regard to the conduct itself and the circumstances in which it took place.”
51 An offence against s 60(1) of the DFDA is not committed unless, objectively, having regard to the conduct itself and the circumstances in which it took place, the conduct charged is likely to prejudice the discipline of, or bring discredit on, the Defence Force. “Likely” does not entail a mere possibility. Approaching the construction and application of the section in this way will exclude from its purview the trivial and also idiosyncratic conceptions of likely prejudicial conduct. It is by virtue of this understanding of the nature of the offence charged that we share the conclusion of the DFM that it was established in the circumstances of the present case.
52 Lest it be thought otherwise, we should add that it is nothing to the point (as the submissions of Leading Seaman Komljenovic seemed to assume) that the conduct concerned, if viewed from the perspective of consensual intimacy between two consenting adults, would have been lawful if engaged in by civilians. The point of the matter is that neither Lieutenant Commander Plenty nor Leading Seaman Komljenovic were civilians but crew members of a warship on deployment holding different ranks and very particular appointments who chose to disport themselves intimately in front of other crew members while on temporary shore leave. The surrounding circumstances will always give crucial context in respect of an alleged offence against s 60(1) of the DFDA.
53 Objectively, a conclusion of likely prejudice was clear to the point of demonstration in the circumstances of the present case. Leading Seaman Komljenovic was not a passenger on a cruise ship who engaged in consensual intimacy with a fellow passenger while on a shore excursion. She was a serving member of the RAN, posted in a particular capacity as a member of the crew of a warship on ongoing deployment overseas, who engaged in an act of physical intimacy with a superior officer posted to that same warship while each was on short term shore leave in the port where that ship was temporarily moored and in the view of other crew members, some of whom were subordinates of her or her superior officer.
54 For these reasons, there is no merit in the other remaining ground of appeal.
55 We consider that we should add the following. Acts of physical intimacy and even socialising between persons of different rank in any disciplined force can be fraught with a potential likelihood of prejudice to the discipline of that force. However, as has long been understood in respect of the offence created by s 60(1) of the DFDA and earlier analogues, it is always necessary to judge the likelihood of prejudice to discipline objectively not just by reference to the conduct charged but also by reference to its surrounding circumstances. The outcome of such adjudication will, necessarily, be fact specific. It is essential that such outcomes not uncritically be elevated to a matter of principle to the detriment of an objective consideration of the facts of another case.
56 It follows that the appeal must be dismissed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justices Tracey (President), Logan (Deputy President) and Hiley (Member).
Dated: 5 May 2017