DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Davis v Chief of Army [2011] ADFDAT 1
DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL |
| Appellant | |
AND: | Respondent |
TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & MILDREN J - MEMBER | |
DATE OF ORDER: | |
WHERE MADE: | sydney |
THE TRIBUNAL ORDERS THAT:
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.
DFDAT 3 of 2009 |
BETWEEN: | JAMES-ROBERT STEPHEN DAVIS Appellant
|
AND: | CHIEF OF ARMY Respondent
|
JUDGES: | TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & MILDREN J - MEMBER |
DATE: | 22 february 2011
|
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 This is an appeal against a conviction imposed by a Restricted Court Martial. The only ground of appeal is that the learned Judge Advocate erred by declining to direct the Court Martial that consent was an element of the first charge of assault occasioning actual bodily harm, contrary to s 61 of the Defence Force Discipline Act 1982 (Cth) applying s 24(1) of the Crimes Act 1900 (ACT).
THE FACTS
2 The appellant was a member of the Australian Army Active Reserve and a member of Delta Company 4/3 Royal New South Wales Regiment, holding the rank of LCPL. On the evening of Tuesday 5 May 2009, the appellant paraded along with the complainant, LCPL Russell and other members of his unit at Coral Lines, Holsworthy Barracks, New South Wales. After the knock off parade at about 2200 hours, the appellant and other members, including the complainant, attended the unit bar, the Edward Kenna VC Club. After the club closed the accused and four other members of his unit remained in an open area near the entrance to the club.
3 The prosecution’s case was that in the early hours of the morning of Wednesday 6 May 2009, the complainant commented on the appellant’s dress and bearing in the context of their training junior members or being involved in the training of junior members in their unit. He said that they should set a good example to these newer members of the unit. He also said to the appellant words to the effect that “the only reason you’re in the Reserve is because you couldn’t make it in the regular Army”. The prosecution alleged that the appellant then stepped forward and struck the complainant in his face with a fist, causing the complainant to start falling to the ground. He then struck the complainant again with a fist. These strikes caused the complainant to bleed from the lips. After the complainant fell to the ground, it was alleged that the appellant followed the complainant onto the ground and put him into a headlock which caused the complainant to lose consciousness. In his opening address the prosecutor said that the complainant would give evidence that he did not consent to the infliction of force upon himself.
4 The principal basis of the appellant’s case at the hearing was that he acted in self-defence. But it was also submitted by his counsel that the prosecution had to prove that the complainant did not consent to the application of force upon his person and he requested the Judge Advocate to so instruct the Court. After hearing submissions from counsel and considering the authorities overnight, the learned Judge Advocate ruled that “the current state of the law in the Australian Capital Territory is that consent is irrelevant for the purposes of an offence under s 24 where the harm caused amounts to actual bodily harm” and he so instructed the Court.
Is consent irrelevant?
5 Section 24(1) of the Crimes Act 1900 (ACT) provides:
“A person who assaults another person and by the assault occasions actual bodily harm is guilty of an offence punishable, on conviction, by imprisonment for 5 years.”
6 The principal submission of counsel for the appellant was that the leading authority in Australia on the question of whether a person may consent to an assault occasioning actual bodily harm was the decision of the Queensland Court of Criminal Appeal in Lergesner v Carroll [1991] 1 Qd R 206, which decided that where there is evidence capable of amounting to consent, in a case of a charge of an assault occasioning actual bodily harm, the prosecution was required to prove beyond reasonable doubt that either there was no consent given, or that the degree of violence exceeded that to which consent had been given. It was put that, notwithstanding that the criminal law of Queensland is codified, this represented the common law of Australia and should be followed unless it was plainly wrong and that it could not be said to be plainly wrong. In support of this argument, we were also referred to a decision of the Full Federal Court on appeal from the Supreme Court of the Australian Capital Territory which accepted that consent was capable of being a defence to this charge: Sorgenfrie v R (1981) 51 FLR 147; as well as two decisions of single Judges of the Supreme Court of the Australian Capital Territory to the same effect: R v Clearihan [2002] ACTSC 60 and R v Tate [2010] ACTSC 144. Counsel for the appellant also referred us to decisions from Victoria and Tasmania and to a number of decisions from other common law countries including England, Canada and New Zealand which did not support his case, which he sought to distinguish or submit did not represent the law in Australia for other reasons.
7 Counsel for the respondent submitted that the law in Australia was correctly expounded by Wright J in R v Holmes (1993) 2 Tas R 232 who held that, in such a case, consent was irrelevant. In support of her argument, she relied on English, Canadian and New Zealand authorities, as well as a decision of this Tribunal in Van Damme v Chief of Army [2002] ADFDAT 2, and sought to distinguish Lergesner v Carroll. As to Sorgenfrie v R and the decisions from the Supreme Court of the Australian Capital Territory, her submission was that the point was not argued in any of those decisions and that therefore they were of little weight.
English authorities
8 According to Blackstone, the common law distinguished between assaults, batteries and affrays. He described an assault as “an attempt or offer to beat another, without touching him” and a battery as “the unlawful beating of another” (Commentaries, 8th Ed, Vol III, p 120). As to a battery, he wrote (ibid):
“The least touching of another’s person wilfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred and no other having a right to meddle with it, in any the slightest manner.”
9 Blackstone recognised that there were some cases where a battery was justifiable or lawful. He listed the authority of a parent or master to give moderate correction to a child, scholar or apprentice; self-defence; in defence of one’s own goods or possessions, or in the exercise of an office (ibid, pp 120-121). As to an affray, this was “the fighting of two or more persons in some public place, to the terror of his majesty’s subjects: for if the fighting be in private, it is no affray but an assault. Affrays may be suppressed by any private person present, who is justifiable in endeavouring to part the combatants, whatever consequences may ensue” (Commentaries, 8th Ed, Vol IV, p 145). Blackstone does not mention consent as either justification for or lawful excuse for fighting whether it be an assault or an affray.
10 In the 19th century, it was established that consent was not a defence to prize fighting. The basis for this was expressed differently by the Judges who considered this question in R v Coney (1882) 8 QBD 534. Cave J, at 539, said that if the blow struck was intended or likely to do corporal hurt, it was an assault, because it was a breach of the peace, but organised sporting contests were an exception to this. Stephen J, at 549, was of the same opinion, but he described consent in other sporting contests as a “defence”. Hawkins J, at 553, said that consent could not be given because it amounted to, or had a tendency to create, a breach of the peace. Lord Coleridge CJ, at 567, said that consent could not be given to what amounted to a breach of the peace.
11 In Attorney-General’s Reference [1981] 1 QB 715, the Court of Appeal held that it was an essential element of an assault that the force used was without the consent of the person assaulted, but there was an exception to this where the force used was intended to or actually caused bodily harm. No distinction was to be made between whether the fight took place in public or in private. The Court did not follow the reasoning for its decision based upon a breach of the peace, but held that it was not in the public interest. Exceptions to the general rule were based either on the exercise of a legal right, such as chastisement or self-defence, or in the case of sporting contests (boxing included), surgical intervention, etc, on the basis of a need in the public interest.
12 The question was finally settled by the decision of the House of Lords in R v Brown [1994] AC 212, where it was held by a majority that the ultimate decision in Attorney-General’s Reference and the public policy considerations which justified the decision were correct. However, differing views were expressed as to whether consent was a defence or lack of consent was an element of the charge of assault. Lord Templeton, at 233-234, described the issue of consent as a “defence” when properly raised in other circumstances. Lord Jauncey of Tullichettle described it as “irrelevant” in cases where there was either an intention to cause bodily harm, or where bodily harm was in fact caused (at 243) and that, if he had to decide the question, he preferred the view that consent, when properly raised, was a defence and lack of consent was not a necessary ingredient of assault (at 246-247). Lord Lowry also described consent as a “defence” to common assault (at 248, 250) but “immaterial” where there was an intent to cause bodily harm, or where bodily harm was in fact caused (at 255). Lord Mustill, in dissent, preferred the theory that absence of consent was an element of the offence of assault (at 259). Lord Slynn, also in dissent, thought that consent could be a defence to a charge of assault occasioning bodily harm (at 280).
Canadian authorities
13 In Jobidon v The Queen (1991) 66 CCC (3rd) 454, the Supreme Court of Canada concluded that absence of consent was an element of the offence of assault which the Crown had to negative (at 495), but that consent was vitiated between adults who intentionally apply force causing serious hurt or non-trivial bodily harm to each other in a fist fight (at 494). It is clear that under this formulation if bodily harm were caused, the intent required was an intent to cause bodily harm (at 490) and that this departure from the decision in Attorney-General’s Reference was required because of the definition of assault in s 265 of the Canadian Criminal Code. The most recent decision of the Supreme Court of Canada, R v Paice [2005] 1 SCR 339 applied Jobidon v The Queen.
New Zealand authorities
14 In R v Lee [2006] 3 NZLR 42, the Court of Appeal consisting of five Justices comprehensively considered the law relating to consent in Australia, England, Canada, New Zealand and under the American Law Institute Model Penal Code. The Court declined to follow the results-based test in Attorney General’s Reference approved in R v Brown, i.e. that bodily harm need not be intended if it is in fact caused, because that test did not fit conceptually with certain statutory offences provided for in the Crimes Act 1961 (NZ). The Court concluded that “consent should be a defence where no serious injury is intended and caused” (at 115, para [295]). However, the Court considered that fighting should be an exception to this rule on public policy grounds (at 115, para [296]).
Australian authorities
15 In Lergesner v Carroll, the appellant was charged under s 339 of the Criminal Code 1899 (Qld) which provided that “any person who unlawfully assaults another and thereby does the other person bodily harm is guilty of a misdemeanour”. The definition of “assault” in s 245(1) of the Code included the application of force of any kind without the other person’s consent.
16 The facts of the case were that the appellant had got involved in a fight with the alleged victim at a police social club which caused him bodily harm. At issue was whether consent was an issue which should have been considered by the magistrate who had convicted the appellant. Section 246(1) provided that “an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law”. Various provisions of the Code dealt with instances under which the use of force was authorised, justified or excused: see ss 31 and 247-284. There was no specific provision authorising consent to the use of force to cause either bodily harm or grievous harm, but s 284 provided that “consent by a person to the causing of the person’s own death does not affect the criminal responsibility of any person by whom such death is caused”. The sections dealing with causing grievous harm (s 320) and intentionally causing grievous harm (s 317) were defined without reference to the word “assault” and hence the issue of consent did not arise in those situations. The judgment of Cooper J rested on the view that, as a matter of construction of the provisions of the Code, the absence of consent was an element of the offence of assault which had to be disproved, applying observations of the High Court in Kaporonovski v The Queen (1973) 133 CLR 209 at 217 and 223 in which these provisions of the Code were discussed. Consequently, absence of consent was an element of the offence of assault causing bodily harm, although not in the case of causing grievous harm, whether intentionally or not. In his opinion, there was no room for policy considerations of the kind referred to in Attorney-General’s Reference because the legislature had spoken on this issue. Shepherdson J decided that if there were evidence capable of amounting to consent, the tribunal of fact, in deciding whether the assault was unlawful, would have to consider whether the degree of violence exceeded the consent of the person assaulted, the burden of proof being on the prosecution to prove otherwise beyond reasonable doubt. His Honour seems to have regarded the issue of consent as a defence rather than an element of the charge, but his reasoning is not clear. In arriving at his conclusion, his Honour said that this “generally accords” with Derrington J’s view in R v Raabe [1985] 1 Qd R 115. An examination of Derrington J’s judgment reveals that his approach was that absence of consent was an element of the offence which the Crown needed to disprove (at 124-125), which is consistent with the approach of Cooper J. The other member of the Court, Kneipp J, agreed with both Shepherson and Cooper JJ. In our opinion, Cooper J’s reasoning is plainly correct and should be preferred. However, the point to be made is that the case did not depend on the common law, but on the construction given to the provisions of the Code.
17 In Horan v Ferguson [1995] 2 Qd R 490, which held that consent could be implied from the common law’s acceptance of the ordinary physical contact experienced in everyday life (a matter not expressly dealt with by the Code), McPherson JA, at 494, cited Lergesner v Carroll as authority for the proposition that the absence of consent was an element of the offence which the prosecution must prove beyond reasonable doubt.
18 In R v Bonora (1994) 35 NSWLR 74, the Court of Appeal of New South Wales had occasion to consider the issue of consent in relation to a charge of indecent assault. Finlay J said, at 75, that for there to be an assault, “the law requires an intentional application of force to the person of another which is unlawful. For it to be an unlawful act of the accused there must be no lawful justification for it. Consent in this case would be lawful justification or excuse”. Abadee J said, at 80:
“...where consent is in issue and is raised on the facts, the trial judge should direct the jury that the Crown also has to prove that the accused was aware that the complainant did not consent or was reckless as to whether the complainant consented or not.”
19 Counsel for the appellant cited this case as authority for the proposition that at common law “an assault with consent is not an assault at all”. If what is meant by that submission is that absence of consent is an element of the offence of assault at common law, we do not think that decision supports that submission. The passages referred to seem to suggest that consent is only an issue if it is raised on the facts.
20 In Sorgenfrie v R, the appellant had been convicted of assault occasioning actual bodily harm by the Supreme Court of the Australian Capital Territory. The assault occurred during a fight in a public place in Canberra. The appellant contended at trial that he was acting in self-defence or that the alleged victim consented to the skirmish, relying on what fell from his unsworn statement to the jury. The grounds of appeal did not raise as an issue whether or not consent was either a defence to the charge or absence of consent was an element of the offence which in either case the Crown had to disprove. The case was decided on the basis that in either case, despite errors made by the trial Judge with respect to the way in which his Honour directed the jury in relation to the evidence and the weight to be given to the accused’s unsworn statement, the facts were such that, at the final stage of the skirmish, the appellant was acting through loss of temper and continued to punch the victim when the blows were unnecessary and a verdict of guilty was inevitable. This case is not authority that the Crown must prove that the victim did not consent to the fight in order to secure a conviction.
21 In R v Clearihan, the accused was charged with common assault. He was tried by Higgins J in the Supreme Court of the Australian Capital Territory without a jury. Higgins J directed himself that the Crown had to prove that there was no consent and no lawful excuse or justification for the use of force. Why this was so, does not appear from his Honour’s reasons and no issue as to consent, lawful excuse or justification was raised in the evidence to which his Honour referred. His Honour acquitted the accused because he considered that the Crown had not proved that the force used was intentional. We are unable to see how this case is helpful.
22 In R v Tate [2010] ACTSC 144, the accused was charged with two counts of assault occasioning actual bodily harm and tried by Penfold J without a jury in the Supreme Court of the Australian Capital Territory. Her Honour accepted that the Crown had to prove that the alleged victims had not consented to the assaults, but there was no discussion of the relevant authorities dealing with assault occasioning bodily harm on this question, although her Honour did mention authorities which referred to assaults generally. In the result, her Honour found on the evidence that neither victim consented to the assaults, that the Crown had not proved that the victims had suffered bodily harm and dismissed the charges, but convicted the accused of the alternative offence of common assault on each count. This case is not persuasive authority that consent can be relevant to a charge of this nature.
23 Counsel for the appellant referred to two decisions from the Northern Territory which he said gave support to his case. The first was R v Minor (1992) 79 NTR 1. That case dealt with the relevance of payback punishment in sentencing an Aboriginal for various violent offences. Only Mildren J commented on whether consent could be a defence to a charge of assault occasioning bodily harm under the Criminal Code 1983 (NT). His Honour said that it was, referring to s 26(3) of the Code. The basis for this conclusion was not otherwise explained, but may be discerned from the provisions of the Code. Section 187 of the Code defined “assault” in terms similar to the Queensland Code, i.e. that it means the application of force to a person without that person’s consent. The offence of common assault was stated in s 188 of the Code in terms that “any person who unlawfully assaults another is guilty of an offence”. If the person assaulted suffers bodily harm, that is a circumstance of aggravation under s 188(2) which increased the maximum penalty and turned the offence into a crime rather than a simple offence. “Unlawfully” was defined to mean “without authorization justification or excuse”: s 1. Section 26(1)(d) of the Code provided that an act was authorized if, subject to sub-section (3), it is done pursuant to authority or permission lawfully granted. Section 26(3) provided that a person “cannot authorize or permit another to kill him, or, except in the case of medical treatment, to cause him grievous harm”. By not excepting bodily harm in s 26(3), the inference is that a person can authorize or permit bodily harm to be caused to himself. His Honour’s comment was plainly based on the provisions of the Code and not on the general law.
24 The second case was a decision of Blokland CM (as she then was) in Police v Segeyara [2008] NTMC 19 where her Honour held that lack of consent had to be proved in such a case. Her Honour’s reasons depended upon the provisions of the Code, the definition of “assault”, the fact that lack of consent is an element of the definition of what is an assault and that intent or foresight does not have to be proved in relation to a circumstance of aggravation citing R v Mardday (1998) 121 NTR 1. Her Honour also referred to Lergesner v Carroll, but only in respect of the observations of the Court concerning the need to prove that, where consent is in issue, the force used exceeded the consent given. That case depended upon the provisions of the Code and not on the common law.
25 Counsel for the respondent referred us to the decision of Wright J in R v Holmes. In that case his Honour followed Attorney-General’s Reference and R v Brown, which he accepted expressed the common law.
26 We were also referred to the decision of the Court of Appeal of Victoria in R v Stein (2007) 18 VR 376. In that case the appellant and his partner agreed with one M to engage in a bondage session. The partner dressed up M in women’s clothing, tied him up using leather restraints and rope and left him spread-eagled on his back on the bed. The appellant then came in and tied a knotted handkerchief around his mouth as a gag. The appellant noticed that M’s breathing was distressed, but did nothing to relieve the gag. M subsequently died. The appellant was charged with murder, but convicted of manslaughter. The Court of Appeal dismissed the appeal against conviction for the reasons given by Kellam JA. One of the arguments put forward on the appellant’s behalf was that the jury could not have been satisfied that the appellant had committed an unlawful and dangerous act because the jury could not have been satisfied that the tying of the gag and leaving it there was non-consensual. Kellam JA held that there was no evidence, implied or otherwise, that the deceased had consented to the gag being tied around his mouth and being left there. Although there was reference to R v Brown, it is plain that what the Court accepted was that there could be no recognition given to consent to the infliction of “significant physical injury”. We accept counsel for the appellant’s submission that this decision is distinguishable from the situation we are dealing with in this case.
27 Counsel for the respondent drew our attention to the decision of this Tribunal in Van Damme v Chief of Army. That case involved charges of assault on service land and in a public place contrary to s 33(a) of the Defence Force Discipline Act. The Tribunal considered the offence of assault at common law and concluded that consent was not an element of the offence, but may be a defence to a charge of assault, except that “it is well established that consent cannot lawfully be given to bodily harm or grievous bodily harm” (at para [6]).
28 Finally, we were referred to Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 233 where Mason CJ, Dawson, Toohey and Gaudron JJ said:
“Consent ordinarily has the effect of transforming what would otherwise be unlawful into accepted, and therefore acceptable, contact. Consensual contact does not, ordinarily, amount to assault. However, there are exceptions to the requirement for, and the neutralizing effect of, consent and therefore qualifications to the very broadly stated principle of bodily inviolability. In some instances consent is insufficient to make application of force to another person lawful and sometimes consent is not needed to make force lawful. For example, a person in the Northern Territory cannot render a killing lawful by consenting to be killed and at common law a comparable qualification exists with respect to assault in some circumstances. Attorney-General’s Reference [No 6 of 1980] held that those entering into a consensual fight were guilty of assault if they intended to inflict bodily harm. The rationale for this exception appears to rest in the idea that some harms involve public, not just personal, interests.”
29 In our opinion the weight of judicial opinion which has considered the question of the common law’s position as to whether or not consent can be given to an assault causing bodily harm in circumstances such as the present, where there was a fight between combatants, whether in public or private, is that consent is irrelevant and does not have to be disproved by the prosecution. The only decisions to the contrary depend upon statutory provisions such as the criminal codes in Queensland and the Northern Territory. In our opinion, unless the provisions of the Crimes Act 1900 (ACT) compel otherwise, the decision of the learned Judge Advocate was correct. If it were necessary to do so, we would find that absence of consent is not an element of the offence of assault at common law, but if it is raised, the prosecution must disprove it beyond reasonable doubt in those circumstances where the law recognizes that consent may be a defence; and that the law does not recognize consent as a defence where there is either an intention to cause bodily harm or where bodily harm is in fact caused. In our opinion that is consistent with the majority opinion in R v Brown and the decisions in R v Lee and Van Damme v Chief of Army.
30 The Crimes Act 1900 (ACT) does not provide a definition of assault. Section 24(1) of the Act is in similar terms to s 47 of the Offences Against the Person Act 1861 (UK) referred to by Lord Templeman in R v Brown (at 230). That provision was not thought to have altered the common law. There is nothing in the structure of the provisions of the Crimes Act 1900 (ACT) to indicate an intention to alter the common law.
31 Neither party referred us to the Criminal Code 2002 (ACT). Section 8(1) of the Code provides that the general principles of criminal responsibility contained in Chapter 2 of the Code do not apply to a pre-2003 offence unless the offence has been omitted and reenacted. A “pre-2003 offence” is defined to mean an offence in force before 1 January 2003. Section 8 of the Code expires on “the default application date” which is defined by s 10(1) to mean 1 July 2013 or any other date prescribed by regulation. No regulation was tendered to prove another date.
32 Is the offence prescribed by s 24(1) of the Crimes Act 1900 a “pre-2003” offence? Section 24 of the Act was repealed and re-enacted by the Crimes (Amendment) Ordinance No 2 of 1990, which came into force on 15 June 1990. Section 24 was amended in 2002 and 2006, but neither amendment amounted to an omission and re-enactment. It therefore appears that s 24 is a “pre-2003” offence as to which the Code does not apply. In any event, there is nothing in the Code which alters the meaning of “assault” in s 24(1) or which provides that lack of consent is an element of that offence, either by a direct provision, or indirectly.
Conclusion
33 The appeal should be dismissed.
Associate: