Citation:	Parker v Chief of Air Force [2010] ADFDAT 2
Appeal from:	General Court Martial
Parties:	DEBRA JOANNE PARKER v CHIEF OF AIR FORCE
File number:	DFDAT 1 of 2010
Members:	TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & DUGGAN J - MEMBER
Date of judgment:	29 November 2010
Catchwords:	EVIDENCE – admissibility of interview with police - conducted while appellant intoxicated – no caution administered - discretion to exclude illegally obtained evidence CRIMINAL LAW - reasonable hypothesis consistent with innocence open on evidence – unreasonable or unsafe and unsatisfactory conviction recorded – defence of sudden or extraordinary emergency - unavailable to appellant – appellant may have taken steps to obviate threat
Legislation:	Criminal Code Act 1995 (Cth) s 10.3 Criminal Code Act 1899 (Qld) s 25 Criminal Code Act Compilation Act 1913 (WA) s 25 Defence Force Discipline Act 1982 (Cth) ss 20, 23, 101ZC Defence Force Discipline Appeals Act 1955 (Cth) ss 20, 23 Evidence Act 1995 (Cth) ss 60, 81, 84, 138, 191 Police Administration Act (NT) s 140
Cases cited:	Bayley v Police [2007] SASC 411 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Chidiac v The Queen (1991) 171 CLR 432 Flynn v Chief of Army [2010] ADFDAT 1 Kelly v The Queen (2004) 218 CLR 216 Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230 M v The Queen (1994) 181 CLR 487 MFA v The Queen [2002] HCA 43;(2002) 213 CLR 606; 193 ALR 184; 77 ALR 139 R v GH (2000) 105 FCR 419 R v Helmhout (2001) 125 A Crim R 186 R v Loughnan [1981] VR 443 R v Phung & Huynh [2001] NSWSC 115 Shepherd v The Queen (1990) 170 CLR 573 R S O’Regan, New Essays on the Australian Criminal Codes (LawBook Co, 1988)

Date of hearing:	20 August 2010
Place:	Townsville
Number of paragraphs:	102
Counsel for the Appellant:	SQNLDR G Lynham
Solicitor for the Appellant:	Guides & Elliott Solicitors Townsville
Counsel for the Respondent:	BRIG L A McDade and LIEUT Richards
Solicitor for the Respondent:	Director of Military Prosecutions

 

 

 

 

 

 

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 1 of 2010

 

 

BETWEEN:	DEBRA JOANNE PARKER Appellant
AND:	CHIEF OF AIR FORCE Respondent

 

MEMBERS:	TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & DUGGAN J - MEMBER
DATE OF ORDER:	29 November 2010
WHERE MADE:	SYDNEY (HEARD IN TOWNSVILLE)

 

THE TRIBUNAL ORDERS THAT:

 

1.                  Leave to appeal with respect to Grounds 2 and 3 granted.

2.                  Appeal against conviction on Charge 1 allowed.

3.                  Enter an acquittal on Charge 1.

4.                  Appeal against conviction on Charge 3 dismissed.

5.                  Set aside the punishment with respect to Charge 1.

6.                  Confirm the punishment imposed with respect to Charge 3.

THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 1 of 2010

 

BETWEEN:	DEBRA JOANNE PARKER Appellant
AND:	CHIEF OF AIR FORCE Respondent

 

MEMBERS:	TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & DUGGAN J - MEMBER
DATE:	29 NOVEMBER 2010
PLACE:	SYDNEY (HEARD IN TOWNSVILLE)

REASONS FOR JUDGMENT

INTRODUCTION

1                     The appellant was tried before a General Court Martial on three charges.  The first charge was:

“Being a Defence member outside the Jervis Bay Territory at Royal Australian Air Force Base Darwin in the Northern Territory on or about 15 February 2003 did by the culpable driving of a motor vehicle, namely by driving a motor vehicle whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle did cause grievous bodily harm to Leading Aircraftman Jamie William HAWKINS by colliding with him.”

The particulars were that the motor vehicle was a Toyota HiLux Utility with Northern Territory registration and the grievous bodily harm was a fractured skull, damage to the right eye socket, broken ribs, injuries to the stomach, lung, kidney and liver.

2                     The second charge, in the alternative to the first charge, was:

“Being a Defence member outside the Jervis Bay Territory at Royal Australian Air Force Base Darwin in the Northern Territory on or about 15 February 2003 did by the culpable driving of a motor vehicle, namely by driving a motor vehicle negligently, caused grievous bodily harm to Leading Aircraftman Jamie William HAWKINS by colliding with him.”

The particulars were the same as for Charge 1.

3                     The third charge was:

“Being a Defence member at Royal Australian Air Force Base Darwin in the Northern Territory on or about 15 February 2003 drove a Toyota HiLux utility registration number … from the Royal Australian Air Force Base Darwin gymnasium car park to Building 76 of Royal Australian Air Force Base Darwin whilst under the influence of intoxicating liquor to such an extent as to be incapable of having proper control of the vehicle.”

4                     The addition of “by colliding with him” was added to Charges 1 and 2 on the first day of the hearing.

5                     The appellant was convicted on Charges 1 and 3.

OVERVIEW

6                     On the evening of 15 February 2003 the appellant, her then fiancé (now husband), colleagues and civilian personnel attended a farewell party at the Truscott Club on the RAAF base at Darwin.  LAC Hawkins, a work colleague of the appellant’s fiancé, also attended.  Both LAC Hawkins and the appellant consumed alcohol during the evening.  They were observed to be in heated exchanges from time to time.  The appellant and her fiancé had driven to the party and parked in the gymnasium car park near the Truscott Club but planned to walk home (which was nearby).  When she was ready to leave at about 1.30 to 2.00am the appellant returned to the motor vehicle, a HiLux Toyota utility, to retrieve their security passes for re-entry to the base the next day.  LAC Hawkins was in the car park at about the same time and they resumed their confrontation.  The appellant locked herself in her motor vehicle, defensively, on her account.  LAC Hawkins banged on the vehicle, lay down on the front of the vehicle and then banged on the driver’s side window.  The appellant drove the utility a short distance so it was under overhead lights and remained in the stationary vehicle for 10 to 15 minutes.  LAC Hawkins continued with his previous conduct and the appellant, as she recounted, fearful for her safety, drove off.  She glanced in the rear vision mirror and saw LAC Hawkins lying on the ground. 

7                     The appellant drove about 300 metres to the Other Ranks (OR) Accommodation where LAC Johnson, a close friend and colleague, lived.  She roused him and his girlfriend and, in an incoherent and hysterical manner, conveyed that LAC Hawkins was likely injured in the car park.  LAC Johnson drove immediately to the car park where he found LAC Hawkins lying unconscious in a pool of blood on the ground.  He alerted the necessary services who attended, including civilian police.

8                     Police from the Northern Territory Police Service questioned the appellant at the scene and administered a roadside breath test which returned a positive result.  She was arrested and taken to Berrimah Watch House where a breath analysis was administered.  A blood alcohol concentration of .106 was recorded.  Investigating police recorded their conversation with the appellant at the watch house electronically.  They questioned her at some length without administering any caution.[1]

9                     The delay between these events on the evening of 15/16 February 2003 and the convening of the General Court Martial was explained as due to the eventual decision of the Northern Territory Director of Prosecutions not to proceed with charges against the appellant arising out of the incident.  It might be inferred that this was because of the paucity of the evidence, including that the investigating police took no photographs nor made any measurements at the scene; they engaged in no forensic crash investigation (including of the motor vehicle); the likely incompleteness of hospital records; and that no search was made for a possible eye witness.  There was the added feature that no caution had been given to the appellant after the breath test had been administered at the watch house. 

10                  The charges were signed by the Director of Military Prosecutions on 21 June 2007.  The material does not explain the further delay save that the charges were initially to be heard by the Australian Military Court,[2] the constitutional status of which was challenged in Lane v Morrison[3]and led to the restoration of courts martial.  The transitional arrangements were promulgated and the order convening the Court Martial was signed on 25 March 2010 and it convened on 13 April 2010.  The verdicts of guilty on Charges 1 and 3 were delivered on 19 April 2010, the appellant was sentenced on 20 April 2010 and lodged her appeal against conviction within time on 14 May 2010.  Directions were given by the President of the Tribunal to progress the appeal on 18 May 2010.  The Tribunal sat in Townsville, where the appellant was then posted, to hear her appeal on 20 August 2010.

11                  The appellant makes no complaint against the punishment imposed if the convictions are otherwise upheld.

12                  Because of the severity of his injuries LAC Hawkins had no recollection of the incident and gave no evidence at the hearing.

THE GROUNDS OF APPEAL

13                  The appellant, who was represented on the appeal by Squadron Leader G Lynham of counsel, appeals against her conviction on three grounds –

·        Ground 1:  the learned Judge Advocate erred in admitting into evidence the interview between the appellant and Constables Young and Nancarrow recorded at the Berrimah Watch House on 16 February 2003.

·        Ground 2:  the findings of guilt were unreasonable or cannot be supported having regard to the evidence.

·        Ground 3:  that in all the circumstances of the case the findings of guilt are unsafe and unsatisfactory.

The evidence was said to raise a defence of sudden emergency in respect of Charge 3 which, by the verdict of guilty, was rejected.  Its applicability was argued as a discrete issue although it was an aspect of Grounds 2 and 3.  Ground 3 was conceded to be encompassed in Ground 2.

GROUND 1 – “ADMISSIBILITY OF RECORD OF INTERVIEW WITH POLICE”

14                  This ground complains that the Judge Advocate erred in admitting into evidence the interview between the appellant and Constables Young and Nancarrow which took place at the Berrimah Watch House on 16 February 2003.

15                  After the incident in the car park was reported, Constables Young and Nancarrow of the Northern Territory police arrived at the scene.  LAC Hawkins was transported to hospital and LAC Johnson advised the police that the appellant was the driver of the vehicle which had been involved in the incident.  Constable Young then accompanied LAC Johnson back to his room where the appellant was located.  She agreed to return with them to the car park.

16                  The appellant was interviewed at the car park by SGT Hocking, the Darwin CBD police station supervisor.  Sergeant Hocking obtained some personal particulars from her and a brief description of the incident. 

17                  Constables Young and Nancarrow also questioned the appellant at the car park.  The appellant told them that she had been drinking and a roadside breath test was administered to her at the scene.  She was then placed under arrest by Constable Nancarrow and transported to the Berrimah Watch House where a breath analysis took place.  The appellant was recorded as having a blood alcohol concentration of .106 grams in 100 millilitres of blood.

18                  The entire conversation between Constables Nancarrow, Young and the appellant at the Watch House was electronically recorded.

19                  The initial conversation at the watch house related to the breath analysis procedure.  It is apparent from the evidence that the appellant was significantly affected by alcohol while she was at the watch house.  After the breath analysis was conducted, the conversation between the appellant and the police officers continued.  It is clear that she was willing to talk to them about the incident and she was questioned at some length about the circumstances.  The appellant was not cautioned at any time before or during the interview.

20                  The defence applied to the learned Judge Advocate to exclude the evidence of the interview.  It was argued that the evidence was obtained improperly by reason of the failure to caution the appellant and, further, it would be unfair to admit the evidence by reason of the intoxication and emotional state of mind of the appellant at the time of the interview. 

21                  At the time of the interview the Northern Territory police officers were investigating whether the appellant had committed any offence or offences against the law of the Northern Territory.

22                  Part VI Division II of the Defence Force Discipline Act 1982 (Cth) (“the DFDA”) deals with the duties of investigating officers when interviewing suspects in relation to service offences.  Section 101ZC of the DFDA deals with investigations by civilian investigators such as Commonwealth and State police officers.  It states:

“Nothing in this Part shall be taken to limit or restrict, by implication:

(a)       any action that may be taken, in accordance with any other law of the Commonwealth or the law of a State or Territory, for a purpose not connected with the investigation of a service offence; or

(b)       any action that a constable, or any other person who is not an investigating officer, may take, in accordance with any other law of the Commonwealth or the law of a State or Territory, for the purpose of investigating a service offence.”

23                  It was common ground at the hearing that the Northern Territory police officers were required to conduct the interview with the appellant in accordance with the laws of the Northern Territory.  However, the admissibility of the interview in the proceedings before the Court Martial was regulated by the Evidence Act 1995 (Cth) (“the Evidence Act”).

24                  Section 140 of the Police Administration Act (NT) requires that a person under arrest must be cautioned before being questioned about an offence.  The Judge Advocate found that there was a breach of this requirement.

25                  Section 138 of the Evidence Act deals with the exercise of the discretion to exclude improperly obtained evidence.  It states:

“(1)      Evidence that was obtained:

(a)        improperly or in contravention of an Australian law; or

(b)       in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2)       Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a)       did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b)       made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3)       Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a)       the probative value of the evidence; and

(b)       the importance of the evidence in the proceeding; and

(c)       the nature of the relevant offence, cause of action or defence and the nature of the subject‑matter of the proceeding; and

(d)       the gravity of the impropriety or contravention; and

(e)       whether the impropriety or contravention was deliberate or reckless; and

(f)        whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g)       whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h)       the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”

26                  In her reasons for ruling on this issue the Judge Advocate noted that the majority of the interview related to the appellant’s version of the circumstances surrounding the incident in the car park.  She said that the appellant’s answers in this respect were exculpatory.  She distinguished these exculpatory statements from statements by the appellant that she had been drinking and subsequently drove her vehicle.  The Judge Advocate found that these latter statements were inculpatory.

27                  The Judge Advocate then considered whether the statements she categorised as exculpatory were “admissions” for the purposes of the Evidence Act.  She referred to the Dictionary to the Evidence Act which defines “admission” as:

“a previous representation that is:

(a)       made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

(b)       adverse to the person’s interest in the outcome of the proceeding.”

28                  There is a difference of legal opinion as to the interpretation of the definition of “admission” in the Evidence Act.[4]  In R v GH,[5] the issue was whether statements by an accused that he accidentally shot himself were admissions and could be excluded from evidence on the ground that they were involuntary statements in the sense referred to in s 84 of the Evidence Act.  Spender J said:[6]

“The statements in question on this reference appeal, namely those by GH that he shot himself and that he accidentally shot himself, are each clearly a previous representation that is an express oral representation. The short question is, therefore, whether either of those statements is “adverse to the person's interest in the outcome of the proceeding?”

In my opinion, each representation is not a representation that is adverse to GH’s interest in the outcome of the trial. Each representation is not inadmissible as being contrary to s 84 of the Act.

Exculpatory statements such as “I did not do it” or “I was not there”, even if shown to be false, are not previous representations that are adverse to the interests of an accused at his trial; what may be adverse to the interests of an accused is the falsity of the statements made by him, because the fact of the untruth makes available a rational inference supportive of guilt: one may infer that the telling of the lie stems from a consciousness of guilt. So too, in my opinion, the statement of an alibi for a particular time by an accused person, which the Crown alleges to be false, is not an admission. It is the telling of a lie — that is, the making of a representation that is knowingly false — that may permit an inference of guilt.

The essential requirement of the definition of “admission” in the Dictionary to the Act is that it is the representation itself which has to be adverse to the interests of the accused on his trial, not the surrounding circumstances or the state of mind of the maker at the time of the making of the representation. A statement which is exculpatory on its face is not a representation which is adverse to the interests of the accused: it is the addition of other circumstances which may import that quality. It is not the representation, but the proof of its untruth, which is or may be adverse.

The view expressed above is contrary to the view of the majority of the Full Court of the New South Wales Court of Criminal Appeal in R v Duff (unreported, Court of Criminal Appeal, NSW, Full Court, No 60701 of 1997, 17 September 1998); R v Horton (1998) 45 NSWLR 426 and R v Esposito (1998) 45 NSWLR 442. The view there expressed is that exculpatory statements that may turn out to be harmful for the defence are encompassed within the Dictionary definition of an “admission” in the Act. On the broad interpretation adopted by the Full Court of the Court of Criminal Appeal in New South Wales, some representations are admissions if, and only if, they are lies. It would follow that a judge would have to determine whether the representations are lies in order to determine whether s 84 of the Act would apply.”

29                  The Judge Advocate determined that she should follow the decision in R v GH.  For reasons which will become evident later, it is unnecessary to decide whether she was correct in doing so.  It followed from the finding that the exculpatory statements were not admissions that their admissibility was not to be determined by reference to ss 81 and 138 of the Evidence Act.

30                  However, the Judge Advocate accepted the prosecution’s contention that the exculpatory statements were relevant to prove lies which disclosed consciousness of guilt.  In doing so, she referred to the appellant’s explanation as to how the incident occurred.  She went on to say:[7]

“The defending officer submitted that there has been an interpretation by the prosecution that when CPL Parker spoke about looking in her rear vision mirror and seeing the complainant lying on the ground, she must have been talking about an area close to where the vehicle had been parked and, therefore that was impossible because his physical injuries would not have allowed him then to have walked to where he was later located.  That appears to be precisely the concoction relied upon by the prosecution.  Much of what she says in the record of interview relates to the time when she first drove off from where the vehicle was parked which appears to be inconsistent with where the complainant was ultimately found to be lying.

The facts relevant to my assessment of whether a court martial panel would be able to draw an inference of consciousness of guilt in relation to the series of representations concerning the accused’s fear of LAC Hawkins her need to escape him, that she left the club to get away from him, that she sought refuge in her car to get away from him and that she only drove the car to get away from LAC Hawkins are that there were a considerable number of people still within the Truscott Club where the accused had been drinking including her fiancé, LAC Parker.

Consequently, in relation to the numerous representations concerning the above matters, there is sufficient relevance established to draw an inference of consciousness of guilt to allow the representations to be admitted into evidence for a non‑hearsay purpose.   That is that the evidence will be led by the prosecution for a non‑hearsay purpose – simply as evidence that the representations were made, not in order to prove the truth of what was said.”

31                  It appears that the Judge Advocate admitted the evidence of the exculpatory statements pursuant to s 60 of the Evidence Act which provides as follows:

“Exception: evidence relevant for a non-hearsay purpose

(1)       The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2)       This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2)).

Note:   Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594.

(3)       However, this section does not apply in a criminal proceeding to evidence of an admission.

32                  It is difficult to see how the statements could have been used to establish consciousness of guilt in any circumstances.  Be that as it may, prior to summing up to the Court Martial Panel, the Judge Advocate indicated that she would not be leaving the evidence on this basis to the jury.  She said:[8]

“As the evidence has fallen, I can’t see any basis on which that [sic] I could give an Edwards direction or even a Zoneff direction to this panel, but I thought that it was important that we raised it in open Court, considering that that was the whole basis that the prosecution submitted that they were proposing to rely on the evidence of the record of conversation. Furthermore, there was nothing ever put in cross‑examination to CPL Parker that she had lied.”

33                  There was further discussion on the issue in the course of which the Judge Advocate Panel confirmed her view that the evidence could not be left to the jury for the purpose for which it was led.

34                  Before dealing with the consequences of allowing the exculpatory statements into evidence it is necessary to say something about the statements which the Judge Advocate considered were inculpatory.  The Judge Advocate determined that, as these statements were admissions, it was necessary to consider whether, in the light of the absence of a caution, the evidence should nevertheless be admitted because the desirability of admitting it outweighed the undesirability of admitting evidence obtained in this way.[9]  In approaching this task she referred to the matters relevant to the exercise of the discretion which are set out in s 138(3) of the Evidence Act.

35                  She said:[10]

“By reference to the matters listed in subsection 138(3) matters that I should take into account are:

a.         the admissions made by the accused relating to her drinking, her state of intoxication and the fact that she drove her vehicle have significant probative value considering the charges for which the accused is before this court;

b.         the representations given by the accused to the Northern Territory police are of limited importance as there is other evidence that the accused had been drinking, was intoxicated (particularly the evidence of the breath analysis reading) and had been driving her motor vehicle;

c.         while the accused’s offending does not fall into the same category of offending such as murder or serious drug offending which might otherwise involve a greater public interest, it is a very serious allegation and perhaps one of the most serious offences to be dealt with by this court;

d.         the gravity of the impropriety of police in failing to warn the accused is to be seen in the context of the events known to them at the time of the interview.  The accused had already admitted to driving after consuming alcohol, had already taken part in a roadside breath test which [showed she] had consumed alcohol in excess of the proscribed concentration, and she had already spoken to the police officer, Andrew Hocking about the circumstances of her driving.  In all of the circumstances, the conduct of the police in failing to caution the accused was not a minor or technical breach.  However that has to be tempered with the fact that the accused was a service police officer and it could be inferred that she would have been aware of her rights, even after having consumed alcohol;

e.         The failure to warn the accused does not appear to have been deliberate.  There is no suggestion that they [failed] to warn her to obtain admission that they would not otherwise have obtained without giving the warning.  In fact, the admissions that were made by the accused, were already available to them at the time the record of interview was conducted;

f.         The impropriety in failing to caution does not appear to be inconsistent with any other right conferred by the International Covenant on Civil and Political Rights;

g.         No other proceedings has been taken in relation to the impropriety;

h.         The police could easily have cautioned the accused at the time of her arrest and prior to questioning her.  Therefore, there was no apparent impediment confronting the police to administer a warning to the accused.”

36                  The Judge Advocate then referred to the fact that she was also required to consider fairness to the accused in the exercise of her discretion.[11]  She continued:[12]

“Consequently, in the exercise of my discretion I must both consider whether the desirability of admitting the evidence outweighs the undesirability of admitting it taking into account all the factors I have referred to involving the seriousness of the impropriety and whether it would be unfair to the accused to use the admissions in evidence.  It is a fundamental right for an accused person, having been arrested to be cautioned and advised of his or her right to silence.  [That] this was not done so is, on its face, a serious breach.  That has to be tempered with the fact that the accused was a service police officer and it can be inferred that she would be conscious of her right to remain silent.

In this case, the exercise of my discretion must also be considered in the context that the evidence contained in the accused’s admissions is not really in contest.  There appears to be no contest that the accused had consumed a considerable number of “bourbon and cokes” at the Truscott Club and then she drove her vehicle from the RAAF gym car park to the other ranks accommodation lines occupied by LAC Johnson.  LAC Johnson had seen the accused drinking in the Truscott Club and she told him that she had been drinking.  The accused also told Andrew Hocking, her fiancé, LAC Casey Pearce and LACW Kristin Lightfoot that she had driven her motor vehicle at the relevant time.  There were numerous witnesses who saw the accused drinking in the Truscott Club.

Further, I have already determined that a considerable proportion of the record of interview can be admitted into evidence.  It seems desirable, in consideration of all the other factors, that the admissions that form an integral part of the exculpatory representations also be admitted.  Consequently, I am of the view that in relation to the exercise of my discretion under section 138 of the Evidence Act 1995, the inculpatory representations made by the accused should be admitted.”

37                  It is clear that the exculpatory statements should not have been admitted into evidence.  Originally, the Judge Advocate admitted them on the basis that they were capable of being used to prove consciousness of guilt.  It is not apparent on the face of the statements how they could be capable of being so used.  The evidence led at the hearing did not alter that situation and, before summing up, the Judge Advocate decided that no foundation had been laid for using the statements for the purpose for which they were admitted.  There was no other basis for admitting them.  This, in turn, has implications for the admissibility of the inculpatory statements.  It is apparent from the Judge Advocate’s reasons that an important consideration in exercising her discretion to admit the admissions was that they were intertwined with the exculpatory responses made by the appellant.

38                  If the exculpatory statements had been excluded from evidence as they should have been, it would not have been appropriate to select the few inculpatory statements from the interview and admit them into evidence.  Apart from the difficulty involved in admitting only a minor part of the interview, the failure to caution the appellant was the result of a deliberate decision by the police.  Constable Nancarrow said in evidence that he did not consider that the conversation the police were having with the appellant would be used in a court and so did not administer the caution.  None of the other matters relevant to the exercise of the discretion which are set out in s 138(3) of the Evidence Act would outweigh these considerations so as to justify the admission of the inculpatory material.  In these circumstances the entire interview should have been excluded from evidence.

39                  The question remains, however, whether a substantial miscarriage of justice[13] arose by reason of the wrongful admission of the evidence.

40                  The inculpatory statements were confined to the intoxication of the appellant and the fact that she drove the vehicle in the car park at the relevant time.  As the Judge Advocate pointed out when considering the admissibility of the inculpatory statements, there was ample evidence from other sources to prove these matters.  The defence case was not prejudiced by reason of the admission of this evidence when the facts in issue to which it was directed were not contested and had been proved by other evidence.

41                  The exculpatory statements were favourable to the defence.  It was not established that the appellant told any lies to the police.  Her cross-examination did not reveal any significant inconsistencies between what she said to the police and her evidence.  In her summing up the Judge Advocate commented:[14]

“… there are some matters that the prosecution rely upon as being a little bit inconsistent with what was said in [CPL Parker’s] evidence.”

42                  The only basis put forward on appeal to support the argument that there had been a substantial miscarriage of justice by reason of the admission of the interview was that it placed the appellant in a difficult position when deciding whether to give evidence.  According to the argument, this decision had to be made in the light of the Judge Advocate’s intimation that some of the answers in the interview could be used as evidence of consciousness of guilt.

43                  In our view the fact that it might have been one consideration in the decision to give evidence does not provide a sufficient reason to conclude that there was a substantial miscarriage of justice.  On one view of the facts the interview was advantageous to the defence in that it provided an explanation of the facts consistent with innocence and with the appellant’s version to the Court. 

44                  This ground must be dismissed.

GROUNDS 2 AND 3 – “UNREASONABLE” OR “UNSAFE AND UNSATISFACTORY”

45                  Grounds 2 and 3 engage s 23(1)(a) and (d) of the Defence Force Discipline Appeals Act 1955 (Cth) (“the Defence Force Discipline Appeals Act”), namely:

“(1)(a)  that the conviction … is unreasonable, or cannot be supported, having regard to the evidence;

      (d)  that, in all the circumstances of the case, the conviction … is unsafe or unsatisfactory.”

Both counsel considered Grounds 2 and 3 as one.[15]  Leave as required by s 20(1) of the Defence Force Discipline Appeals Act was granted in respect of these grounds at the hearing of the appeal. 

46                  The approach of an appellate tribunal where it is contended that the verdict of the finder of fact is unreasonable or cannot be supported having regard to the evidence, or is unsafe or unsatisfactory, was discussed in M v The Queen.[16] The test there enunciated was followed in MFA v The Queen:[17]

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” [18]

47                  Guidance as to what anappellate tribunal should consider is set out in the following passage in M v The Queen:[19]

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.[20]  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate questions must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[21]  Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.”

That approach was recently applied by this Tribunal in Flynn v Chief of Army.[22]

48                  The defence agreed, pursuant to s 191 of the Evidence Act 1995, to certain facts:

“1.        At all material times CPL Parker (aka LAC Bennett) was a defence member within the meaning ascribed to that term by section 3 of the Defence Force Discipline Act 1982.

2.         At all material times CPL Parker was serving in the RAAF as a member of the Security Police muster, CPL Parker joined the RAAF on 20 Jun 00 [sic].

3.         RAAF Base Darwin is service land within the meaning ascribed to that term by section 3 of the Defence Force Discipline Act 1982.

4.         That the car park known as the “Gym Car Park” has not changed since 15 Feb 03.

5.         That on or about 15 February 2003, CPL Parker and her fiancé (LAC M.B. Parker) attended a function at the Truscott Club, RAAF Darwin, NT.

6.         The breath analysis indicated that CPL Parker had a blood alcohol concentration of 0.106% per 100 ml, certificate is at enclosure 1.

7.         The meteorological conditions are detailed at enclosures 2.

8.         LAC Hawkins was living in at the time in the male accommodation facilities, in building 65, in the vicinity of the main entrance gate to the base.  LAC Hawkins was found lying in the gym car park at or about 2 am on 16 Feb 03.  A blood test taken from LAC Hawkins after admission to hospital returned a blood alcohol reading of 0.245% per 100 ml.  LAC Hawkins sustained injuries that constitute grievous bodily harm as detailed in the charges.  Separately, as a result of his injuries LAC Hawkins has no recollection of the events.”

49                  The weather was agreed as follows:

“In general the weather was cloudy with rain periods during the two days (15^th and 16^th February 2003).

Six eighths (six parts out of total eight parts) of the sky is covered mostly by low and middle level clouds between 0000hours and 0300hours on the 16^th February 2003.

No showers or rain was recorded during the period of investigation and the visibility was 10km.  However, it was raining before and drizzling after the above three-hour period.  The visibility was reported to 2km at 2335hours on the 15^th February 2003.

Given the fact that more than three fourths of the sky is covered by low and middle level cloud during the period of investigation and precipitation was recorded before and after the period of investigation, it will not rule out the possibility of occurrence of showers/rain/drizzle in the vicinity of area of investigation between 0100hours and 0200hours on the 16^th February 2003.”

50                  The prosecution case was largely a circumstantial one as there was no independent witness called to give evidence about the occurrence in the car park.  The appellant gave evidence.  The prosecution relied on observations of the appellant and of LAC Hawkins at the Truscott Club by attendees at the party, statements made by the appellant to LAC Johnson immediately following the incident, and to investigating police at the car park, and on expert evidence from Dr MS O’Dell, a forensic medical specialist, and Sergeant DR Neit, an AFP accident specialist.  The prosecution also relied on alleged inculpatory statements made by the appellant in her interview with police at the Berrimah Watch House.  The defence called Mr GL McDonald, an engineer specialising in accident scene reconstruction. 

51                  The relationship evidence between the appellant and LAC Hawkins leading up to their encounter at the Truscott Club on the evening of 15 February and while at the Club has been set out under the discussion on sudden emergency that follows and need not be repeated.  While the whole of the evidence is relevant to grounds based on s 23(1)(a) and (d) of the DFDAT, the focus of the submissions was principally concerned with an analysis of the evidence at the car park, particularly the evidence attempting to reconstruct how LAC Hawkins sustained his injuries.  It was essential for the prosecution to persuade the Court Martial Panel beyond reasonable doubt that those injuries were sustained as a consequence of the appellant’s culpable driving of the HiLux due to the ingestion of alcohol causing her to collide with his person. 

52                  There was ample evidence apart from the inculpatory statements made at the watch house as discussed under Ground 1 to support a finding that by virtue of her ingestion of alcohol the appellant’s capacity to drive responsibly was impaired.  Professor Starmer, a pharmacologist with expertise in the effects of alcohol and drugs on human skills performance, assessed the appellant’s blood alcohol reading at the time of the incident at .121,[23] her crash risk at nine,[24] and said that:

“It’s generally accepted that all people are measurably impaired, that’s their driving skills, at a level of 0.100 gms per 100 mls.”[25]

This body of evidence was not challenged.

53                  The element of the offence(s) contained in Charges 1 and 2 in vigorous contest was that the grievous bodily harm suffered by LAC Hawkins was caused by the appellant’s vehicle colliding with him.  What the prosecution needed to demonstrate beyond reasonable doubt in respect of those charges was that the appellant’s vehicle “collided with” LAC Hawkins.  The appellant could give no explanation about how LAC Hawkins came to be lying injured in the car park but denied colliding with him.  Dr O’Dell, while acknowledging the paucity of evidence such as photographs of LAC Hawkins’ position on the ground and of the vehicle, as well as some, apparently, missing x-rays and information about the state of his clothing, concluded that LAC Hawkins was more likely struck by the front of the appellant’s vehicle on his right side consistently with his injuries.  Sergeant Neit concluded similarly.  Mr McDonald opined the more likely scenario as one in which LAC Hawkins attached himself to the appellant’s vehicle as she drove away before falling on the raised concrete median strip.  This was largely because the injuries to LAC Hawkins’ ribs were inconsistent with the height of the bull bar on the exemplar vehicle he used for testing his theory.  It is the appellant’s contention that this was an hypothesis consistent with innocence which was reasonably open on the evidence.  Or, expressed differently, that the prosecution expert witnesses were unable to exclude other reasonable explanations as to how LAC Hawkins was injured which did not depend on the appellant’s vehicle colliding with him.

54                  The HiLux utility was parked in the gym car park nose in, in the line of car parking spaces closest to the Truscott Club.  The HiLux was in the parking bay second from the right; there was another vehicle parked in the first bay.  A raised garden bed containing trees and shrubs with a cement kerb separated the car park from the building housing the Club.  The car park itself had concrete kerbing borders and a paved surface.  An oblong raised concrete median strip was located in the centre of the car park in which was embedded a post with overhead lights.  CPL Parker, the appellant’s fiancé, parked the HiLux when he and the appellant arrived about 7.00pm.

55                  At about 1.30am to 2.00am when the appellant left the Club and was in the car park, near the HiLux, she noticed LAC Hawkins heading towards her.  She had not seen him for about half an hour and thought that he had gone home.  As the appellant opened the car door and was attempting to get into the driver’s seat, LAC Hawkins reached her and grabbed her by the shoulder, verbally challenging her.  The appellant had her leg and buttocks on the seat of the car and was attempting to get her other leg in.  She grabbed his shirt and hit him several times in the chest with her fist and on the shoulder with the car door.  She managed to unbalance him, knocking him backwards, and got the car door shut and locked.  The appellant said LAC Hawkins was “fuming”.  He went to the front of the vehicle and bounced up and down on the bull bar, using his whole body weight, although he was unsteady and kept rocking back. 

56                  Because they were in the shadows from the trees, the appellant turned on the headlights so that she could see what LAC Hawkins was doing.  He returned to the driver’s door, thumping on the guard and pushing on the side of the car with his hands while verbally abusing the applicant.  The appellant said it was difficult to see because it had been raining and there was dew on the window.  She thought that if she reversed the car out of its parked position and under the car park lights, she would be able to see what was going on.  As she commenced this manoeuvre, LAC Hawkins was at the side of the vehicle, near the front guard.  The appellant reversed the HiLux straight back, then into a semi-circle and drove forward.  She stopped the HiLux near the end of the raised oblong cement median strip containing the overhead lights, switched off the engine and put on the handbrake but still had the headlights illuminated.  The appellant sketched the path that she took in this manoeuvre.[26]  The appellant estimated that she remained near the raised median strip for “10 to 15 even up to 20 minutes”. 

57                  LAC Hawkins returned to the front of the vehicle, pulling himself up on the bull bar and half on the bonnet from the bull bar while continuing to verbally abuse the appellant.  The appellant attempted to talk to him, then turned the radio on, but to no avail.  LAC Hawkins then appeared to go to sleep while resting his head and hands on the front of the car.  The appellant saw a person nearby walking along the front of the gymnasium and tooted the car horn to attract that person’s attention, without success. The sound of the horn startled LAC Hawkins, and on the appellant’s evidence, infuriated him.  He shook the bull bar, walked around to the driver’s side and then punched the driver’s window.  The appellant waited until he leaned back to take a second punch at the window and, while he was off balance leaning back, started the car, released the handbrake and drove forward, focussing, she said, on the exit of the car park which was straight ahead.  She “just went as quickly as an old diesel could …”.[27]  Shewas challenged about how fast she was travelling as she left but was adamant it was not fast, because she had to turn right out of the car park and that the HiLux was an old diesel.  As she approached the exit, she looked in the rear view mirror and saw LAC Hawkins on the ground in the lights from the median strip lighting.  She marked Exhibit 17 with the letter “J” just adjacent to that raised median strip to indicate where she saw him.  The appellant was unable to explain how LAC Hawkins came to be on the ground.  She felt no bump and heard no noise to suggest her vehicle had run over him.  She did not believe at the time that he was seriously injured, indeed suggested that she did not go back to investigate for fear he was “faking” being injured.

58                  The appellant drove about 300 metres to the OR accommodation lines because she knew that her good friend and colleague LAC Johnson, who had the early morning shift, would be there and would not be intoxicated as would be the remaining members of the Truscott Club party including her fiancé.  LAC Johnson, who at the time of giving his evidence had left the Air Force and was a Victorian police officer, was in his accommodation with his then girlfriend, CPL Casey Fitzell.  He had some difficulty recalling the actual words of his conversation with the appellant some seven years later.  He noted the appellant’s hysterical and distressed state but understood enough from her account that she may have run someone over in the gym car park and, as a consequence, he drove to the car park. 

59                  When LAC Johnson arrived he saw LAC Hawkins lying on the ground. He positioned his vehicle to have the headlights shining on him.  He noted that he was breathing heavily and grunting but did not appear conscious and was lying with a pool of blood around his head.  He called 000 on his mobile phone and attempted first aid but did not move him.  He made no observations about his clothing, nor any observations about marks in the car park, for example, signs that might indicate that he had been dragged or had moved.  LAC Johnson was unable to recall whether the car park lights were illuminated when he arrived but he kept his vehicle lights on in order to see LAC Hawkins.  He had stopped his vehicle pointing slightly towards the gymnasium on the opposite side of the car park to the Truscott Club.  In evidence he sketched his recollection of LAC Hawkins’ position.  He expressed his uncertainty about which side of the raised median strip he was lying and finally settled for the side nearest the exit.  When he was shown a mud map which he had drawn in October 2004 he accepted that his recollection would have been more accurate then when he had placed LAC Hawkins on the other side of the median strip.  He re-drew a stick figure on the map in that new position.  He was confident that LAC Hawkins was lying with his head towards the gym and his feet towards the Truscott Club.  His evidence about the position of LAC Hawkins was generally consistent with that of the appellant. 

60                  Of the police who attended the scene, Constable Young gave evidence of seeing LAC Hawkins in much the same position as LAC Johnson described.  Sergeant Hocking was uncertain as to LAC Hawkin’s position but placed him very broadly in an area associated with the raised concrete median strip.  However, FSGT A Fuller who was on security duty that night and attended to LAC Hawkins prior to the arrival of ambulance officers, said that Sergeant Hocking had placed a bin over blood on the ground where LAC Hawkins had been lying.  Sergeant Barrett’s placement of the bin was inconsistent with Sergeant Hocking’s placement of LAC Hawkins.  On the other hand, Constable Nancarrow placed LAC Hawkins on the opposite side of the median strip and further back towards the Truscott Club.[28]  Sergeant Barrett saw only a bin placed over a patch of blood as LAC Hawkins had, by the time of his arrival, been removed.  He drew the bin on the plan in the same position as Constable Nancarrow had marked where LAC Hawkins was lying.  Sergeant Barrett was from the Traffic Investigation Unit and looked at (he did not closely examine) the HiLux where it was parked outside the OR accommodation.  He did not notice any relevant damage to the vehicle nor anything else of interest.  He saw no marks in the car park apart from the blood on the ground under the bin.

61                  The ambulance officers who attended at the scene were not called to give evidence.

62                  Corporal Fitzell remained with the appellant after LAC Johnson went to the car park.  She noted the appellant’s distressed and hysterical state and understood her to be saying “I think I have hit someone”.  She did not know to whom the appellant was referring.  The appellant returned to the car park with police.

63                  The prosecution called Dr M O’Dell whose expertise included engineering as well as medical and forensic qualifications.  He was a senior forensic physician at the Victorian Institute of Forensic Medicine with a particular speciality in traffic medicine concerned with the prevention and interpretation of traffic related injuries in crashes.  He examined LAC Hawkins’ medical file including the ambulance record at the scene, the notes at the Darwin Hospital, some x-ray reports and photographs of LAC Hawkins’ injuries in the hospital.  He emphasised that he did not have any reports of forensic investigations of the crash scene or the vehicle or other witness statements or emergency admission notes.  From the ambulance records Dr O’Dell described a Glasgow Coma Score of seven which deteriorated to four at the scene.  On arrival at the Darwin Hospital Emergency Department LAC Hawkins’ injuries were recorded as:

·        abrasions or scraping kind of injuries on the back;

·        abrasions on the front of the right shoulder;

·        abrasions to the front of the right knee;

·        abrasion over the cheek bone;

·        abrasion on the back of the head on the right side;

·        some bleeding from the left ear and nose;

·        abrasions on the right temple extending over the back of the right shoulder.

64                  Although notes were taken at the emergency department they were not available to Dr O’Dell or to the Court Martial having, apparently, been lost. Other notes revealed that LAC Hawkins had sustained a number of injuries:

·        fracture of the base of the skull;

·        a line of fractures extending up behind the eye socket and over the cheek bone and the upper jaw sinus;

·        posterior fractures at the back of the ribs close to the join with the spine;

·        collapsed right lung and bruising to both lungs;

·        abdominal injuries involving a tear to the right side of the liver, bruising to part of the gut and to the right side of the adrenal gland.

65                  Dr O’Dell opined that the nature of the injuries were such that he could conclude that there had been severe force applied to the right side of the body sufficient to cause severe internal injuries.  Dr O’Dell acknowledged the deficiencies in the evidence which may have assisted in identifying a possible cause of those injuries.  He particularly noted the want of examination of the car park surface and LAC Hawkins’ clothing.  He said:[29]

“Now the possibilities are many as to how a person might interact with a vehicle and they range from being hit by a vehicle in such a way that he’d go down onto the car park surface and sustain severe injuries from both those impacts [scenario 1], he might have been run over by the vehicle causing a crushing injury [scenario 2] or he might have fallen off the vehicle, is also perhaps a less likely possibility [scenario 3].  All those things can only be explicable if you take into consideration how severe forces like this could have been inflicted on the right side of the body.  I think that the most likely possibility as I see it is that, is that he’s been hit on the right side of the body, possibly by the front of the vehicle.”

Dr O’Dell continued:[30]

“I understand it was quite a large vehicle, it wasn’t a sedan type car it was a utility truck kind of vehicle.  And if he was hit by that vehicle in such a way that you know some part of the front of the vehicle such as a bull bar or bumper impacted to that general height of the body, that could have explained the severe injury to the right side of the body, to the chest and to the abdomen.  Falling onto a surface could explain how some abrasions were sustained, they’re generally frictional injuries which come from moving contact with a rough surface.  Severe blunt impact to the right side of the head sufficient to cause the broken facial skeleton and the fracture base to the skull could have come from the head impacting on the ground.  And if it was a rough concrete surface there would be the abrasion to the head as it was described.  I think things that go against there being a lot of movement, the fact that there’s not a lot of other soft tissue injuries described.”

Dr O’Dell explained that minimal soft tissue injury suggested that LAC Hawkins had not been hit at speed or rolled around on the ground.

66                  Dr O’Dell further noted:

“Unfortunately there are no photographs or record of what his back looked like which is a significant limitation on being able to interpret exactly what went on.  If there had been crush injuries from being hit with the wheel of the car or being compressed in that way, it would have been helpful to have known if there were any injuries that could have mimicked perhaps a tyre tread or some other feature of the vehicle. … So I think looking at it from the point of view of a man who has got severe blunt injury to the right side of his chest and abdomen and that head injury, that the scenario that I find most plausible is that he’s been hit by some blunt feature of the front of the car and to the right side that’s caused him to be propelled on to the surface, hit his head and that would explain how those injuries occurred.”[31]

67                  In cross-examination Dr O’Dell was asked about the three possible scenarios which were consistent with the identified injuries found on LAC Hawkins and their status.  He responded:[32]

“Well, you can’t say absolutely 100 per cent which of those possibilities happened and, in fact, there could have been other mechanisms too.  There’s just not enough information to be absolutely precise about the scenario.  I think though that there are certain relevant negatives:  the absence of a lot of other abrasions and bruises around the body would seem to go against him rolling around on the ground or being flung with some speed.  You know I think that the injury happened and he would have been lying there rather than actually moving around a lot ‘cause that would have caused him to sustain even more soft tissue injury.  And as I say that, that pattern that exists there suggests to me that, well firstly that there’s no evidence that he was specifically run over because there’s no tyre tracks but that’s, may or may not be relevant because we don’t have enough information about his injuries and him being hit by the bumper – sorry by the front of the vehicle and about the height that those injuries were would, would be what might be, those injuries are what might be expected if he’d been hit in such a way and fallen to the ground and I think that’s a, that’s probably a more plausible explanation for how these injuries happened.”

Dr O’Dell conceded that he could not positively rule any possibilities “out or in”.

68                  Detective Sergeant DR Neit had extensive experience investigating traffic accidents including a number of “hit and run” accidents.  He was asked to review the file on behalf of the prosecution in relation to the injuries sustained by LAC Hawkins.  He readily acknowledged the deficits in the investigation and the material available for him to engage in the reconstruction of the way in which LAC Hawkins’ injuries were sustained.  As an example, he had not been provided with the blood alcohol reading of LAC Hawkins although he did appreciate that he was intoxicated.  He identified a real difficulty in knowing how tolerant LAC Hawkins was to that high level of alcohol.  This was relevant to the correlation between the injuries observed from the ambulance and medical history and Dr O’Dell’s interpretation of them and the possible scenario that LAC Hawkins had fallen from the HiLux.  He did not favour this scenario as the defensive injuries he would have expected such as a broken wrist or wrists and a greater level of abrasion were not present. 

69                  Sergeant Neit’s preferred scenario was that LAC Hawkins was struck by the vehicle and went down onto the surface of the car park close to where he was found.  Sergeant Neit had conducted a number of tests which had entailed LAC Hawkins’ body being found in a somewhat different position from where he was placed by LAC Johnson.  In the event it mattered little to his analysis of the evidence where LAC Hawkins had lain.  Sergeant Neit’s ultimate position was that although he favoured an explanation for LAC Hawkins’ injuries as being caused by being hit by the HiLux, he was unable, reasonably, to exclude other scenarios.  The following passages from his evidence in cross-examination (there was no
re-examination) illustrate this:

“One of the disadvantages you have I suggest in trying to do a reconstruction more than five years after the incident is that there are so many variables that you simply cannot find answers to, that at the end of the day the best you can do is speculate as to a likely cause of how these injuries were incurred.  You can’t really take it beyond that?--- I would have to agree with that.  I mean, and any other reconstruction expert – there is nothing there really to hang your hat on.  So, you know, we could bring in 20 experts in here and I’d still say they’d all have the same problem because there’s no evidence which was gleaned by the Northern Territory Police, by SECPOL or anyone else about the scene.”[33]

He emphasised this when he observed:

“Look, if this investigation had been done properly in the beginning we wouldn’t be having as many difficulties as we’ve got now.”[34]

Finally, the following exchange occurred with defence counsel:

“Would I be right in suggesting this to you Mr Neit:  that there are potentially any number of possible scenarios that may well fit the injuries that were found on Mr Hawkins, but you can’t rule out one to the exclusion of the other?--- No, I can’t.

Can’t say one occurred to the exclusion of the others?--- And without having other evidence to exclude them, no.  We could go round and round all afternoon and adding more bits to it, adding this and adding that, taking this away, subtracting; we could be here ‘til midnight.

I think, as I suggested to you before, when you undertook this exercise the conclusions you came to involve a fair degree of speculation without being more definitive than that.  So this is what happened?--- I wouldn’t say speculate, but I had to assume quite a lot.  There was a lot of assumptions which in my world and for the courts is not a happy place to be going.”[35]

70                  Mr Geoff McDonald, a mechanical engineer with a special interest in safety carried out tests on an exemplar vehicle similar, but with some differences, to the HiLux.  He compared the location of LAC Hawkins’ injuries with the height and dimensions of the bull bar fitted to the exemplar vehicle using his own height and weight (which was approximate to that of LAC Hawkins) to exclude a scenario that LAC Hawkins was struck with the front of the HiLux.  He particularly noted that the posterior rib injuries were significantly higher than the top of the bull bar which, therefore, arguably, could not have caused those injuries.  He excluded the possibility that LAC Hawkins could have been crouching down or in some lower position since the injuries were inconsistent with that body position. 

71                  Mr McDonald’s preferred explanation for LAC Hawkins’ injuries was that LAC Hawkins had attached himself to the HiLux as the appellant drove from a stationary position near the concrete median strip and fell from the vehicle as it drove forward, striking the raised concrete median strip.  He explained the lack of abrasions all over the body as possibly due to LAC Hawkins engaging in a rolling motion.  Mr McDonald was challenged by the prosecutor about differences between the exemplar vehicle and the HiLux and that he had not “tested” his theory adequately.  These criticisms Mr McDonald discounted.  He emphasised that the number of “unknowns” such as the speed of the vehicle made precise measurements both unrealistic and unnecessary. 

72                  One further piece of evidence of relevance related to Sergeant Hocking’s observations.  When he arrived, both Constables Nancarrow and Young and LAC Johnson and FSGT Fuller were present.  They were standing around LAC Hawkins.  Sergeant Hocking did not examine LAC Hawkins.  He thought the area was rather dark, although FSGT Fuller thought the car park lights were illuminated, but had light from the gymnasium and either then, or when the ambulance officers arrived, saw:

“… the tread marks from the tyres or from the tyre on his chest were on the side of his abdomen and from what it indicated to me or from the shape of those tyre marks I came to the conclusion that it was probably a four-wheel drive type tyre.  The shape of the marks and the distance apart of the marks appeared to be from a four-wheel drive type tyre with a fairly aggressive tread pattern, and when I say aggressive I mean a chunky kind of tyre that would be used mud or sand, or soft sand.”[36]

He added:

“The way the marks appeared on his body it looked as if he had basically been on the ground in front of the tyre, as the car had gone to basically push its way over his body at that point it had skidded down his body instead of being able to get enough purchase to get up and over the top of him initially, and there are a number of rake marks in the shape of that tread pattern along his side before the tyre managed to claw its way up go over the top of him.”[37]

Notwithstanding this rather dramatically detailed evidence he was not able to recall whether the marks were on LAC Hawkins’ right side or left side.  Neither was Sergeant Hocking able to recall whether LAC Hawkins was wearing a shirt although he accepted that he would not have been able to see the tyre marks on his torso as he described them if he were wearing a shirt.  He was unable to say what colour clothing he was wearing but had an impression that he was wearing a collared shirt and shorts.  His evidence was that he saw LAC Hawkins lying on his right side but when challenged that the tyre marks must have been on his left rib cage he was unable to be more precise and could not recall when he saw the mark, whether it was when LAC Hawkins was lying on the ground or when he was dealt with by the ambulance officers. 

73                  The ambulance officers made no note of any tyre pattern on LAC Hawkins.  Neither LAC Johnson, who had rendered first aid to LAC Hawkins, nor the other police present and close to LAC Hawkins reported seeing any marks on his body.  Importantly, FSGT Fuller, whose evidence was quite detailed, described attending to LAC Hawkins, who had been placed in the recovery position, and checking him “from his feet up.”[38]  He described various abrasions, having looked at both front and back of his body.  He described no tyre tracks on the torso or anywhere else.  He thought he may have removed LAC Hawkins’ shirt to use as a pillow.  He was confident that LAC Hawkins was wearing jeans and was barefoot.

74                  The prosecution challenged very little of the appellant’s evidence, only suggesting that she was not paying attention or keeping a proper lookout for LAC Hawkins as she drove towards the exit of the car park at speed, which she denied; that she told LAC Johnson that she had “hit” LAC Hawkins, which she said related to her punching him as she tried to get into the vehicle; and that she told Constable Nancarrow that she thought she had “bumped” LAC Hawkins, which the appellant said was a possible explanation for him being on the ground.  The highest suggestion that the appellant was giving false evidence was in the following exchange:[39]

“Do you say now in the circumstances you know you hit him?--- No.

Do you know you bumped him?--- No, I don’t.

Do you know you ran over him?--- No, I don’t.

But evidence has been given to that effect already; you’d agree with that, wouldn’t you?--- I don’t know what you can draw from the conclusion of the evidence that has been given.  I am still, even now, unsure of the events that took place after he left my peripheral vision.”

75                  Although there was evidence by several witnesses of what the appellant said to them at the time, the prosecution case relied primarily on the evidence of the experts it called to contend that the appellant had collided with LAC Hawkins.  There is no criticism of the directions given by the Judge Advocate to the Court Martial Panel as to how they should approach their task.  In order for the Court Martial Panel to return a verdict of guilty to either Charge 1 or Charge 2 in what was a substantially circumstantial case, it was necessary for them to be satisfied beyond reasonable doubt that guilt should not only be a rational inference but that it should be the only rational inference which could be drawn from the circumstances.[40]  If there were any reasonable hypothesis consistent with innocence open on the evidence, it was their duty to acquit.  As is well recognised, this manner of directing when the evidence in a criminal trial is largely circumstantial is merely a different way of reminding the finder of fact that there must be an acquittal unless there is satisfaction of guilt beyond reasonable doubt of all the elements that make up the particular offence.  If there is a reasonable possibility of innocence, the charge has not been proved to the requisite standard.

76                  The Court Martial Panel could well have been sceptical about the appellant’s explanation for her use of the expression “hit” when speaking to LAC Johnson, that she meant that she had hit him with her fist or, perhaps, with the door of the utility.  However, she made no clear admission of colliding with him and, as she attempted to explain in cross‑examination, she was endeavouring, in her distraught state, to work out what might have happened to have caused LAC Hawkins to be lying on the ground.  LAC Johnson and CPL Fitzell recalled expressions such as “may have” and “I think I have” which support this recollection.  The appellant’s distressed state was attested to by the witnesses and, although we have found that the record of interview ought not to have been admitted, it does, nonetheless, convey very graphically just how distressed and hysterical and hard to understand the appellant was that night.  For the rest of the evidence, the prosecution depended upon a reconstruction by three experienced experts.  Although Dr O’Dell and Sergeant Neit preferred a scenario which had LAC Hawkins being struck by the front of the HiLux, it was no more than the most likely of the several hypotheses advanced and they were quite clear that they could not exclude at least one hypothesis, that is, that LAC Hawkins clung to the vehicle and fell off, a scenario consistent with the applicant’s innocence.  The passages from their evidence set out above demonstrate clear acceptance of that proposition.

77                  When regard is had to the significant investigation deficits and the paucity of evidence about the scene; the lapse of seven years after the event; the variations in the evidence of police and others about the place where LAC Hawkins was found; and the unsatisfactory evidence of Sergeant Hocking about the tyre marks on LAC Hawkins’ torso, a sense of unease is engendered that the Court Martial Panel may have been satisfied to a standard well short of that required.  On the whole of the evidence, the Panel ought to have experienced a doubt about the appellant’s guilt in respect of Charges 1 and 2.  This raises the significant possibility that, in accordance with the requirement that guilt be proved beyond reasonable doubt, an innocent person has been convicted.  These grounds are upheld.  This necessarily means that the verdict of guilty on Charge 1 must be set aside and a verdict of acquittal entered.

GROUND 3: “DEFENCE OF EMERGENCY”

78                  What was referred to in argument as “Ground 3” related to the third charge pursuant to which the appellant was found guilty of driving a vehicle on service land while intoxicated.

79                  At trial she raised and relied upon a defence of emergency.  In his written submissions, counsel for the appellant submitted that:

“With respect to charge 3 the appellant raised and relied upon a defence of emergency.  It is submitted that the finding of guilt with respect to charge 1 by the Court Martial must inevitably have entailed an acceptance by them that the appellant ‘collided with’ Hawkins.  If this finding was not the only finding reasonably open on the evidence but rather, if it was reasonably open on the evidence that Hawkins had attached himself to the appellant’s vehicle and fell off as she exited the car park then it is submitted that it is not open to the Court Martial to be satisfied the appellant had not acted under an emergency when she drove the vehicle whilst intoxicated in order to drive to the OR accommodation lines to seek help from Johnson.  On the appellant’s evidence as to the conduct of Hawkins in the car park which prompted her to drive the vehicle which was not contradicted by any other evidence it is submitted that there was no evidence upon which the prosecution could rebut the defence of emergency and the appellant was entitled to an acquittal with respect to charge 3.”

80                  The appellant accepted that the primary elements of the charged offence had been established.  She submitted, however, that a defence of emergency was available.

81                  The issues at trial and on this appeal are whether a factual foundation for the operation of the defence of sudden or extraordinary emergency had been established and, if so, whether this defence had been excluded by the prosecution.

82                  The evidence heard by the Court Martial in relation to the interaction between the appellant and LAC Hawkins in the Truscott Club and in the car park has already been outlined.  The only direct evidence about what occurred in the car park came from the appellant.  It is necessary, in order to deal with her defence to Charge 3, to outline some of her evidence in greater detail.

83                  There was no dispute that Hawkins had behaved objectionably towards the appellant in the Truscott Club on the night of 15/16 February 2003.  These exchanges apparently arose out of an incident which had occurred about two weeks earlier.  LAC Hawkins had made a series of telephone calls to the Parker residence after the family had retired for the night.  Both the appellant and her fiancé were woken by the calls.  So too were some of the children.  LAC Hawkins was under the influence of alcohol and wanted the appellant’s fiancé to pick him up and take him to his residence.  Her fiancé refused and when the calls continued, the appellant spoke to LAC Hawkins and, in strong words, told him to stop making the calls.

84                  Shortly after the appellant had arrived at the Truscott Club on 15 February 2003 she was approach by LAC Hawkins who said he wanted to have a word to her.  She said that she did not wish to speak to him and told him to “just piss off”.  Undaunted, LAC Hawkins made a number further approaches during the evening.  On each occasion the appellant made it clear that she didn’t wish to speak to him.  On the last occasion LAC Hawkins interrupted a conversation the appellant was having with another woman and asked the other woman to leave.  He stood in front of the appellant and lent over her.  At this stage the appellant’s fiancé intervened, grabbed LAC Hawkins and pushed him up against a wall.  He told LAC Hawkins to leave the appellant alone.

85                  Not long afterwards, the appellant decided to go to the car park to retrieve the identity cards.  In her evidence-in-chief she said that, as she approached the vehicle, she noticed LAC Hawkins coming towards her.  She described his demeanour as agitated.  She opened the door to the car, withdrew the keys from the lock and then dropped them on the floor of the vehicle.  As she tried to get into the vehicle and retrieve the keys LAC Hawkins grabbed her on the shoulder, clothing and hair, and said:  “You’re not going – we’re not done yet.”  The appellant again told him to “piss off”.  A short scuffle broke out during which the appellant hit LAC Hawkins in the chest and pushed the car door against him.  He became unbalanced and moved backwards.  She shut the door and locked it.  LAC Hawkins checked that the car door was locked and then moved to the front of the vehicle.  He bounced up and down on the bull bar.  The appellant looked for a telephone in the car but could not find one.  The appellant turned on the headlights to see what LAC Hawkins was doing.  At that point he came back around to the driver’s door.  On the way he pushed the side of the car with his hands.  He was yelling abuse at the appellant.  She told him:  “Look, I can sit here all night, I am not going anywhere, just go home, go home.”  LAC Hawkins did not leave.  The appellant then reversed the vehicle in what she described as “a semi circle or J”.  She brought the vehicle to a spot in a lighted area of the car park.  LAC Hawkins followed the car to where it had stopped and got on to the bonnet.  The appellant said that he was “not that co-ordinated” and was “stumbling”.  He appeared to be “very upset” and was yelling abuse. 

86                  The appellant noted that LAC Hawkins was unsteady on his feet and a little uncoordinated.  He was across the front of the vehicle.  He then slid himself back with his feet on the ground and commenced again verbally abusing her.  He was positioned in front of the vehicle.  The appellant attempted unsuccessfully to talk to LAC Hawkins through the closed windows, then turned the radio on high volume but that did not cause him to cease his abuse.  She recounted that he then placed his hands on the bonnet of the vehicle, almost folded or one beside the other, and rested his head on his hands leaning on the front of the vehicle.  The appellant thought that he was going to sleep and at that moment saw a person nearby walking along the front of the gymnasium.  She tooted the horn of the car to attract that person’s attention.  That person continued walking and did not intervene. [41]  At this point the appellant said that she was starting to get scared.  The sound of the horn startled LAC Hawkins, and, according to the appellant’s evidence, infuriated him.  He grabbed the bull bar and shook it, then walked around to the driver’s side, thumping his fist on the edge panel of the car.  He took a swing at the driver’s side window and hit the window. 

87                  The appellant said that she was absolutely terrified and thought “if he breaks that window I don’t know what I am going to – I am going to be in a world of hurt here.”  She was too terrified to leave the car and return to the Truscott Club.  LAC Hawkins shaped to punch the window a second time.  When he was leaning back and off balance the appellant started the car and drove towards the car park exit.  She drove to Mr Johnson’s accommodation block in about 10 to 15 seconds.  She said that she was “hysterical” and in an “absolute state of panic.”

88                  Under cross-examination the appellant variously described LAC Hawkins’s condition on the night as “very, very intoxicated”, “stone cold drunk” and “heavily intoxicated”.  She said that, because of his intoxication, LAC Hawkins did not have very good balance and had fallen forward onto the bonnet after he had climbed on the bull bar.

89                  The appellant agreed that, as a service policewoman, she considered herself capable of looking after herself.  Towards the end of the incident in the car park, however, she said that she had got to a stage where she felt that she did not have control over LAC Hawkins or the situation.

90                  She agreed that she did not say anything to LAC Johnson about being fearful for her own safety when she spoke to him after arriving in his room.

91                  When it was put to her that she could have “crawled” the vehicle along to the Truscott Club where her fiancé and fellow service police officers were present she said that this “wasn’t something that was in my mind at the time …”.

92                  When it was put to her that she had told LAC Hawkins that she “could sit there all night”, the appellant responded:

“That was when I had the vehicle in the second point after I had reversed it back and that was before he escalated from when he (sic) tooted the horn.  He absolutely – his mannerisms got absolutely – he was escalating it.  He was certainly – if he had stayed in the situation that we were in earlier, fine, but it wasn’t, it was escalating.  I knew he was going to smash that window and I was going to be in serious trouble.”

93                  Counsel for the appellant at trial submitted that a situation of sudden or extraordinary emergency was created by Hawkins’ conduct in the car park.  At the point at which he punched the window of her vehicle, the appellant had no other choice but to drive off.  This was the only reasonable response available to her in order to remove herself from the stressful situation.  The prosecution, it was said, had failed to establish beyond reasonable doubt that the appellant had not driven the vehicle while intoxicated as a result of being confronted by a sudden or extraordinary emergency.

94                  The Judge Advocate explained the defence to the Court Martial Panel in terms which were not the subject of complaint.

95                  Section 25 of the Criminal Code Act 1899 (Qld) makes the defence available “for an act or omission done or made under such circumstances of sudden or extra-ordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise”.[42]

96                  The defence of necessity also rarely succeeds.  In Bayley, having reviewed authorities in Australia, the United Kingdom and Canada, Gray J (with whom Sulan and White JJ agreed) summarised the relevant principles as follows:

“[53]    Against the background of the above discussion, it is convenient to summarise the approach to be taken in the present case. 

-                     The issues raised by the defence of necessity are whether an accused believed on reasonable grounds that commission of the crime charged was necessary in all the circumstances in order to remove a threat of death or serious injury to himself or another.  Accordingly, there are subjective and objective considerations.

-                     A defence of necessity can only succeed if it is reasonably possible that an accused believed on reasonable grounds that there was a threat of death or serious injury to himself or another, and that the commission of the offence with which he was charged was necessary in order to remove the threat.  Further, objectively viewed, there must have been no reasonable alternative course of action open to the accused. 

-                     Assuming there was an imminent peril, a defendant must have honestly believed on reasonable grounds that it was necessary for him to do the acts which were alleged to constitute the offence in order to avoid the threat and peril.  That test will, as a matter of fact, not be met if it is proved that the conduct was disproportionate to the threat.  A response is not proportionate to the threat if there are reasonable grounds for believing there were alternative courses of action available.

…

-                     The response must be proportionate to the danger and cannot go further.  If alternatives are reasonably available, the offending is not proportionate and therefore not reasonably necessary.  The threat must be imminent and operative.  An accused must be afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law, or involve some lesser breach of the law.  Reasonableness and proportionality has to be assessed objectively.  The existence of any alternative courses of action is of central factual importance.

-                     The event justifying the conduct must be imminent and operational.  If the threat abates there can be no emergency, nor can action in response be said to be reasonable or proportionate.  This is an obvious limiting factual consideration on the ‘reasonable necessity’ element.

-                     The defence may only be expected to arise on rare occasions.”

97                  The Judge Advocate’s charge to the Court accurately reflected this statement of the relevant legal principles.

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.

99                  Although it was suggested to the appellant in cross-examination that there were other steps she could have taken to extract herself from her predicament, her claim to have been “hysterical” and in an “absolute state of panic” at the time at which she drove off was not directly challenged.  It may, therefore, be accepted that she believed at that time that she might have been assaulted by LAC Hawkins if he had succeeded in smashing the car window.  Even if it be assumed in the appellant’s favour that she believed that the assault would inflict serious injury on her, the Court would have to have been satisfied that there were reasonable grounds for such a belief.  There was evidence which, if accepted, would have entitled the Court to answer this question in the negative.  LAC Hawkins was severely intoxicated.  He was uncoordinated.  Shortly before the appellant drove off he had placed his head on the bonnet and, for some time, had appeared that he might have gone to sleep.  He was aroused by the tooting of the horn and punched the side of the vehicle.  He had punched the window once without breaking it.  He appeared to be about to punch the window a second time when the appellant drove off.  The appellant had earlier felt secure inside the locked vehicle and told LAC Hawkins that she was prepared to sit there all night.  The Court may have concluded that she remained secure: that, in his inebriated condition, LAC Hawkins was unlikely to have broken the window and, even if he had, he would not have been in a position to inflict serious harm on the appellant.

100               It was also open to the Court, on the evidence, to conclude that the appellant could have taken steps, other than driving, to obviate the threat to her posed by LAC Hawkins.  One possibility, already mentioned, was that she remained in the locked, stationary vehicle.  Another was that she moved to the other side of the cabin and left the vehicle through the passenger side door while LAC Hawkins was on the driver’s side of the vehicle.  Given LAC Hawkins’s severe intoxication and his uncoordination, it was open to the Court to accept that the appellant could have escaped from him on foot should he have sought to pursue her.

101               In these circumstances, it cannot be concluded that the Court erred in rejecting CPL Parker’s defence to Charge 3.  This ground must fail.

ORDERS

102               The orders are:

1.         Leave to appeal with respect to Grounds 2 and 3 granted.

2.         Appeal against conviction on Charge 1 allowed.

3.         Enter an acquittal on Charge 1.

4.         Appeal against conviction on Charge 3 dismissed.

5.         Set aside the punishment with respect to Charge 1.

6.         Confirm the punishment imposed with respect to Charge 3.

 

 

I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, White and Duggan.

Associate:

Date:   29 November 2010