DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Low v Chief of Navy [2011] ADFDAT 3

Citation:

Low v Chief of Navy [2011] ADFDAT 3

Appeal from:

Restricted Court Martial

Parties:

JASON GEORGE LOW v CHIEF OF NAVY

File number:

DFDAT 1 of 2011

Judges:

TRACEY J - PRESIDENT, WHITE JA - DEPUTY PRESIDENT & MILDREN J - MEMBER

Date of judgment:

21 November 2011

Catchwords:

MILITARY LAW – whether Court Martial could be satisfied beyond reasonable doubt offence had occurred – whether conviction unsafe or unsatisfactory – whether substantial miscarriage of justice had occurred – refusal of application to sever pleas – unfairness – warning about credibility of complainant’s evidence

Legislation:

Crimes Act 1914 (Cth) s 90B

Crimes Act 1900 (ACT) s 60

Defence Force Discipline Act 1982 (Cth) ss 32, 33, 60, 61, 132, 141

Defence Force Discipline Appeals Act 1955 (Cth) ss 20, 23

Evidence Act 1995 (Cth) ss 66, 128, 135, 137, 164, 165

Cases cited:

Bullen (1998) 102 A Crim R 74 cited, compared

De Jesus v The Queen (1986) 61 ALJR 1 considered, compared

HML v The Queen (2008) 235 CLR 334 cited, applied

KRM v The Queen (2001) 206 CLR 221 cited

M v The Queen (1994) 181 CLR 487 applied

MFA v The Queen (2002) 213 CLR 606 applied

Papakosmas v The Queen (1999) 196 CLR 297 applied

R v BD (1997) 94 A Crim R 131 referred to

R v CHS (2006) 159 A Crim R 560 cited

R v Ditroia & Tucci [1981] VR 247 cited

SKA v R (2011) 276 ALR 423 cited

Stirland v DPP [1944] AC 315 cited

Sutton v The Queen (1984) 152 CLR 528 cited

Date of hearing:

16 September 2011

Place:

Melbourne (heard in Cairns)

Number of paragraphs:

99

Counsel for the Appellant:

Mr A Street SC and Mr P Hogan

Solicitor for the Appellant:

Wyatt Attorneys

Counsel for the Respondent:

Mr J Harris SC & LEUT M Hay

Solicitor for the Respondent:

Office of Director of Military Prosecutions

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 1 of 2011

ON APPEAL FROM RESTRICTED COURT MARTIAL

BETWEEN:

JASON GEORGE LOW

Appellant

AND:

CHIEF OF NAVY

Respondent

JUDGES:

TRACEY, WHITE & MILDREN JJ

DATE OF ORDER:

21 november 2011

WHERE MADE:

MELBOURNE (HEARD IN CAIRNS)

THE TRIBUNAL ORDERS THAT:

1.     Leave to appeal with respect to Ground 5 be granted.

2.    The appeal be dismissed.

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 1 of 2011

ON APPEAL FROM RESTRICTED COURT MARTIAL

BETWEEN:

JASON GEORGE LOW

Appellant

AND:

CHIEF OF NAVY

Respondent

JUDGES:

TRACEY, WHITE & MILDREN JJ

DATE:

21 november 2011

PLACE:

MELBOURNE (HEARD IN CAIRNS)

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellant, PO Low, was at all material times a Defence member posted to HS White Crew, which, in February 2010, was assigned to HMAS Leeuwin. In February 2010, HMAS Leeuwin was conducting surveys of the waters around Papua New Guinea. On 21 February 2010, HMAS Leeuwin was alongside at Rabaul. The appellant was given shore leave, and was due to stay the night at the Rapopo Plantation Resort, Kopoko, which, for the purpose of the Defence Force Discipline Act 1982 (Cth) (“the DFDA”), is a public place. On the afternoon of Sunday 21 February 2010, a number of crew members were in the resort’s pool, including the appellant, the complainant, who was a female Able Seaman, and AS Luke Housego. Another crew member, Seaman Owen Thornthwaite, was at the resort but not in the pool area at the relevant time.

2    It was alleged that the appellant became drunk, and whilst he and the complainant were in the pool, committed an act of indecency upon her without her consent by holding her by the wrist and moving her hand up and down against his penis. It was also alleged that the appellant, whilst at the swimming pool area, assaulted a subordinate by tackling AS Housego to the ground. It was further alleged that the appellant, whilst at the resort, used insulting words to Seaman Thornthwaite by saying to him, “you fat gay medic, open up or I’ll knock you the fuck out you faggot” or words to that effect.

3    On 24 September 2010, three charges were laid against the appellant. Count 1 alleged the commission of the act of indecency against the complainant, contrary to the DFDA s 61(3), and the Crimes Act 1900 (ACT), s 60 (1). Count 2 was a charge of assaulting a subordinate, contrary to the DFDA, s 32. Count 3 was a charge of using insulting words in a public place, contrary to the DFDA s 33(d), with an alternative charge, Count 4, of prejudicial conduct contrary to s 60(1) of the DFDA, the particulars being that he used the same insulting words to Seaman Thornthwaite.

4    A Restricted Court Martial was convened to hear the charges on 14 March 2011. On the first day of the trial, the appellant’s counsel indicated to the learned Judge Advocate, in the absence of the Panel, that the appellant intended to plead guilty to count 2 and to count 4, and that the prosecution had indicated that in those circumstances, count 3 would not be pursued. Counsel for the appellant applied for severance of all counts from the charge sheet except for count 1. This course was opposed by the prosecutor. No submission was made that the counts were improperly joined. The basis of the application was that, if the Panel were to hear that the appellant had pleaded guilty to those counts, he would be unfairly prejudiced in his trial in relation to the first charge, on the basis of impermissible propensity reasoning. After considering submissions, the learned Judge Advocate ruled that there was no prejudice to the appellant, and if any prejudice did exist, it could be cured easily by a direction.

5    Subsequently the appellant was arraigned before the Panel. He pleaded not guilty to count 1, and guilty to counts 2 and 4 referred to as count 3 by the learned Judge Advocate. No mention was made of count 3. The learned judge Advocate said to the appellant:

“POB Low, if the President and members accept your pleas to the second and third charges, they’ll then proceed to convict you on those counts and, after we’ve dealt with the matters in relation to the first count, they’ll proceed to consider action in relation to those under part IV of the Defence Force Discipline Act, which has to do with punishment and orders. Before I advise the President and members that they may properly act on your pleas, I’ll explain to you the elements of the offences, to ensure that you wish to adhere to your pleas of guilty.”

6    The learned Judge Advocate then explained the elements of the charges, and asked the appellant if he still wished to maintain his pleas of guilty, to which he replied that he did. The Judge Advocate then invited the Panel to formally note that it had accepted the pleas of guilty and “will convict him in relation to those.” The President then said: “POB Low, we formally find you guilty of the second and third charge and note this.”

7    The trial then proceeded on count 1 in the usual manner. At the end of the trial, the accused was found guilty of count 1. The Panel had before it, when it retired to consider its verdict, the finding sheet, which included the findings of guilt on counts 2 and 4.

8    The appellant has appealed against his conviction on count 1 on five separate grounds.

GROUND 1

9    This ground is as follows:

“That the trial was unfair by reason of the error of law and a material irregularity in the failure of the Judge Advocate to sever the pleas of guilty to the separate offences of assaulting a subordinate and prejudicial conduct from the trial of the first charge, whereby a substantial miscarriage of justice has occurred [DFDAA s 23(1)(b) and (c)].”

10    The appellant’s written outline of argument complained that, as the prosecution did not intend to call any evidence at the trial in relation to counts 2 and 4, there was an easy and practical way of ensuring a fair trial by presenting a charge sheet with only one count on it. However, by forcing the appellant to enter pleas before the Court to two unrelated offences involving violence and the threat of violence on other members on the same date and place as the first count, there was a real risk of impermissible prejudice to the appellant of a kind which was irremediable, and which could not be cured by directions, whereby a substantial miscarriage of justice occurred.

11    At the hearing of the appeal, counsel for the appellant raised two fresh points, without seeking to amend the notice of appeal to add these points as additional grounds of appeal. First it was submitted that the counts were improperly joined. That matter was not pursued when it was pointed out that no objection was taken to the joinder at trial; indeed counsel for the appellant at trial specifically conceded this to the Judge Advocate (transcript 8.2).

12    The second point taken was that there was a fundamental departure from s 132(1)(a) of the DFDA, which, it was submitted, required the Judge Advocate, and not the Court, to find the accused guilty upon his pleas. This submission cannot be accepted. Section 132(1)(a) provides:

“(1)    A court martial shall try a charge in accordance with the following provisions:

(a)    before the court martial commences to hear the evidence on the charge, the judge advocate shall ask the accused person whether he or she pleads guilty or not guilty to the charge and, if the accused person pleads guilty and the judge advocate is satisfied that the accused person understands the effect of the plea, the court martial shall convict the accused person.”

13    Whilst there is a difference between a finding of guilt and a conviction, s 132(1)(a) makes no reference to it. There is nothing to indicate that the learned Judge Advocate made a formal finding of guilt. She was not required to do so; nor was the Court. The procedure which she adopted was essentially that required by s 132(1)(a), although the formal conviction did not occur until after the verdict on count 1. There is nothing in s 132(1)(a) which compelled the recording of a conviction by the Court at any particular time. Section 132 does not provide a procedure which specifically deals with the circumstance where an accused pleads guilty to some charges, and not guilty to others. The procedure to be followed is therefore a combination of s 132(1)(a) and s 132(1)(b), the latter of which deals with what is to occur if the accused pleads not guilty. Although the finding sheet indicates that the Panel found the accused guilty on each count, nothing turns on this. It was not required to make a finding of guilt on the two counts to which the accused pleaded guilty, only to convict him of those counts. There was no fundamental departure from the provisions of the Act.

14    The power to order severance is to be found in s 141(1)(a)(iii) of the DFDA which provides, relevantly, that: “at any time before an accused person is asked to plead at a trial by a service tribunal, the accused person may… if he or she is charged with more than one service offence, apply for each charge to be heard separately.”

15    Sub-section 141(5) of the DFDA provides that:

“Where:

(a)    an accused person makes an application under paragraph (1)(a); and

(b)    in the case of a court martial, the judge advocate of the court martial…is satisfied that the interests of justice require that the application be granted…the judge advocate must grant the application.”

16    In deciding not to order severance, the learned Judge Advocate held that it was for the defence to persuade her that it was desirable and practical in order to ensure a fair trial, applying the guidance provided by Callaway JA in Bullen (1998) 102 A Crim R 74 at 84. After referring to Sutton v The Queen (1984) 152 CLR 528 at 541; R v CHS (2006) 159 A Crim R 560 at 575; and KRM v The Queen (2001) 206 CLR 221 at [38], the learned Judge Advocate said that there was no issue of cross admissibility of evidence; there was no consideration of convenience of witnesses, the cost of administration of justice, the preference that one Tribunal consider all matters and the efficient and effective dispatch of the matters, and that there was no prejudice to the appellant which could not be cured by directions to the Court Martial panel. As to the lack of prejudice, the learned Judge Advocate noted that the offences all involved different complainants, and quite discrete acts which were not of the same character. She went on to observe that the:

“Panel was made up of officers, all of whom have tertiary education and significant service experience with the Defence Force and have come from a hierarchical, disciplined and structured command system, where they are used to the taking of directions and orders.”

It is our opinion that the learned Judge Advocate properly considered the relevant issues, and no error has been shown in the exercise of her discretion.

17    Counsel drew our attention to De Jesus v The Queen (1986) 61 ALJR 1. In that case, the accused was charged with five counts, three of which related to one complainant, and the other two related to a different complainant. Both that case, and Sutton v The Queen (1984) 152 CLR 528, were cases where an accused had been charged with, and put on trial for, a number of sexual offences, and the evidence relating to one offence was not cross-admissible in relation to the other offences. The High Court held that in such cases, the counts should not be joined as sexual cases are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard. However, this case is different from those cases in two respects. First, the counts to which the accused intended to plead guilty are not sexual offences. Secondly, the accused intended to plead guilty to the counts which were not sexual offences in circumstances where the evidence relating to those counts was not to be placed before the Panel during the trial on count 1.

18    In her summing up, the learned Judge Advocate directed the Panel that in considering count 1, the Panel must decide whether the prosecution has proved beyond reasonable doubt the appellant’s guilt solely on the evidence. She also directed the Panel that it would be wrong to conclude that, because the appellant had pleaded guilty to the other counts, that he must be guilty of the first charge, or to reason that he is the kind of person likely to have committed the offence on the first charge. No exception was taken to the summing up by counsel for the appellant at trial. Counsel for the appellant criticised the summing up because it was put that the language of direction was not given. It is not necessary to use the time honoured words “I direct you that…” if it is clear that the Judge Advocate was in fact directing the Panel. As was said by Hayne J in HML v The Queen (2008) 235 CLR 334 at [120], whatever direction is required must be modelled to the circumstances of the case. In our opinion the Panel could not have been misled by the form of the words used by the learned Judge Advocate. Secondly, it was put that the Panel should have been directed that the pleas could not be used to add to the prosecution case by bolstering the credit of the complainant in relation to count 1. There was never any suggestion in the way the trial was conducted, either by counsel or by the Judge Advocate, that the evidence included the pleas of guilty. We do not think that there is any substance to this criticism.

19    In any event, it was not a ground of appeal, and no application was made to appeal against the summing up on the grounds of inadequacy of the direction given, notwithstanding that this point was raised during the hearing of the appeal. Counsel contended, somewhat bravely, that this was a relevant matter to be considered under ground 1, but plainly that is simply not so. If the appellant wished to raise inadequacy of the summing up, that should have been a separate ground of appeal.

20    We would, therefore, dismiss ground 1.

GROUND 2

21    This ground is as follows:

That the Judge Advocate erred in law and a material irregularity occurred by failing to hold that it was unfair pursuant to s 135 of the Evidence Act 1995 to permit the prosecution to call LEUT Peter Waring, RAN, to give evidence in respect of communications with the complainant that were not adduced in the evidence in chief of the complainant by the prosecutor, were not opened on or foreshadowed (and a statement was only provided to the defence after the cross examination of the complainant had concluded, in circumstances where the prosecution had the signed statement prior to the commencement of evidence by the complainant), whereby a substantial miscarriage of justice occurred [DFDAA s23(1)(b) and (c)].”

22    LEUT Peter Waring was the Quick Assessment Officer directed to investigate complaints against PO Low. He spoke to the complainant on 18 March 2010. In the Record of Conversation the complainant is recorded as saying to LEUT Waring:

“The alleged incident did not occur although I don’t reme[m]ber much of the evening due to alcohol consu[m]ption. The buffer was blind drunk … There were no incidents to report.” (Exhibit 14).

23    On the same occasion, in an off the record conversation with LEUT Waring, the complainant said words to the effect that PO Low grabbed her hand and forced it onto his genitals. If admitted into evidence and accepted, this conversation was evidence of complaint made to a person in authority within four weeks of the alleged assault. It was also capable of supporting the subject matter of the complaint. Her official statement of complaint was not made until September 2010.

24    It is necessary to understand the circumstances in which LEUT Waring came to give evidence of this “off the record” conversation at the trial in order to deal with this ground of appeal.

25    The prosecutor opened the case on the first day of the trial on Monday 14 March, 2011. He opened that the complainant would give evidence of the assault by PO Low on the night of 21 February 2010 between 1900 and 2000 hours; that there would be evidence of immediate complaint to work colleagues; that she indicated to CPOMPC Clarke about 18 March 2010 that something had happened but that she would not make an official statement; that such a statement was not given until September 2010; and that the complainant had sought to withdraw that statement.

26    The prosecution did not intend to call LEUT Waring but after the opening when preliminary matters were being discussed with the Judge Advocate, the defending officer asked if the Judge Advocate had a document signed by LEUT Waring. The defending officer said:

“All right. What it relates to, and I can say that this officer has been arranged for by the defence. He was meant to post out somewhere last week, but he’s waiting to give evidence. He interviewed [the complainant] in March 2010 as part of a quick assessment, explained to her his role and what her task and obligation was in answering questions to him … He’s on standby, that’s simply – I don’t want to prolong the debate, but someone that we, the defence would submit is a relevant and material witness and that the prosecution who ordinarily should call [all] relevant material witnesses … So in any case, the witness will be called and I’m sure that if it comes down to it and the defence have to call them because the prosecutor has made some assessment, then I’ll make an application to cross-examine under s 38 … I’ve had a conference with the witness and I don’t anticipate there will be any need for that …” (Transcript 59-60).

27    The Judge Advocate asked the prosecutor whether consideration had been given to calling LEUT Waring. The prosecutor responded that he had made an attempt “last week” to make contact but was told that he was on leave and he expressed his surprise that the defending officer had been able to make contact with him. The Judge Advocate then asked if the prosecutor would make an assessment as to whether LEUT Waring would be called by the prosecution and the prosecutor expressed his agreement with that course.

28    At the beginning of the second day of the trial, Tuesday 15 March, in the absence of the Panel, the prosecutor said he had mistaken LEUT Waring for the complainant’s Divisional Officer when he had mentioned the previous day that he had thought LEUT Waring was not available. He now recalled that he had spoken to him and explained:

“… but, given that he was a QAO and that, strictly speaking, according to the DI(G) on QAs, there’s some question of admissibility of the QA in any event, I had decided not to call him. Having spoken to him yesterday and taking on board the comments of my friend yesterday, I have decided that I will call him in the prosecution case. He is currently giving a statement to ADFIS investigators as we speak and I will serve that on my friend before he is called.” (Transcript 63).

29    Later that day, at the end of her evidence in chief, the complainant was asked about the interview by the Quick Assessment Officer on her ship in March 2010. She was asked what she remembered saying to him and answered:

“I said that ‘Nothing happened’, and that ‘POB Low is a great buffer’, and ‘I enjoy working with him’, and ‘He gives opportunities when you ask for them’.” (Transcript 99).

The prosecutor asked, in light of her earlier evidence of the assault, why she had told the Quick Assessment Officer that nothing had happened, to which she answered: “Because I didn’t want to take it any further, sir.” (Transcript 99).

30    In cross-examination the defending officer put to the complainant the Record of Conversation which became Exhibit 14. She was asked to identify her signature on the document. Later, he returned to the Record of Conversation and the following exchange occurred:

“In relation to the petty officer you said in that record of conversation, which is exhibit – I just showed you – he’s professional, very good at his job and so forth and he set out all those things to the QA officer on 18 March, was that how you characterised him, your assessment of him on 18 March? --- Those words are my words, sir.

That’s why you signed it? --- Exactly right, sir.

As the truth? --- Yes, sir.

I suggest that you also signed, as the truth, the alleged incident did not occur? --- Yes, sir.

Correct? --- Yes, sir.” (AR 130).

31    At the end of her re-examination the complainant was asked:

“When you spoke to the QAO, that’s LEUT Waring you told him nothing happened at Rapopo, was that true? --- What do you mean, sir, was that – what I’d said true or ---

PROSECUTOR: Yes. You will see in the – forgive me just for a moment. If you have a look at the first time in the body of the record of conversation that your name is mentioned, [the complainant], do you see that? --- Yes.

The words starting, ‘the alleged incident did not occur’ when you used those words, we’re not talking about whether or nor what you said was recorded, just saying when you said that nothing occurred was that true? --- No, sir.” (Transcript 143-44).

32    On the third day of the trial, Wednesday, 16 March 2011, in the absence of the Panel, the defending officer handed a copy of LEUT Waring’s statement, dated 15 March 2011, to the Judge Advocate (which the defence had been given about 9.30 am on 15 March). He said:

“And we received this statement after we had arranged for him to be summonsed and the prosecutor said he’d get instructions and he yesterday he informed us that – or informed you, ma’am, that he would be calling that witness. We now have a three page statement where – and I will just let your Honour read that, but in particular 7 [the off the record conversation].” (Transcript 202).

The defending officer said that LEUT Waring had not told him in conference the previous week, or more recently, that the complainant had told him (on 18 March 2010) that the incident did, in fact, occur. The defending officer said the statement was highly prejudicial evidence which had arisen on the second day of the trial and announced that the defence did not require LEUT Waring to give evidence. He made an application to have that evidence excluded on two bases – that the evidence was inadmissible hearsay, and pursuant to s 135 of the Evidence Act 1995 (Cth) (“the Evidence Act”).

33    The defending officer explained more fully:

“Yes, because of the way that this evidence and the way that – as I said I conferenced him on the phone last Thursday, and Friday, arranged for a summons for him to attend, spoke to him on Monday evening about whether he’d been on compassionate leave, and I accept that the prosecutor was informed with some details and it was confused with another, I think … spoke to him on Monday evening, took him through, asked him to go and get the original file from the ship, talked to him about his report and made notes, and he made no mention at all of any of this paragraph 7 in his statement in any of those conferences that I had, and so then we get the statement dated 15 March at 9.29 am, so one minute before we started yesterday when the daily mail was delivered and I digested it and that’s why I object to it in relation to it is unfair to the accused where we’ve arranged for a witness, conferenced the witness, the prosecutor says we’ll call him, I’m not suggesting anything other than the prosecutor has arranged for a statement to be obtained. …. He was aware that he would be – he was summonsed by Defence Counsel Services as a defence witness, so it’s actually a witness really who’s given contradictory instructions, if you like.” (Transcript 204).

34    The prosecutor explained to the Judge Advocate, in terms of the timing of witnesses, that LEUT Waring was a member of a ship’s company which had left Cairns on Monday and “he stayed here so that he could comply with a summons issued by my friend to appear”. (Transcript 204).

35    The Judge Advocate rejected the application to have LEUT Waring’s evidence excluded and gave her reasons the next day, Thursday, 17 March. (Transcript 329 and following).

36    LEUT Waring was called in the afternoon of 16 March. In evidence in chief he was taken to Exhibit 14 and said that it merely reflected what the complainant was “happy for it to reflect”. She asked if she could speak off the record but that she would not sign anything that would reflect what she was about to tell him. LEUT Waring then described that off the record conversation. He recalled her reason for not wishing that matter to be recorded (which has no relevance to this appeal). LEUT Waring said the Quick Assessment was brought to an end because he conveyed a notifiable incident to his superior officer.

37    In cross-examination, the defending officer reminded LEUT Waring of their conversation the previous week, and that he had told LEUT Waring that the defence had his Quick Assessment report and would arrange for a summons to call him as a defence witness if the prosecution did not call him. The defending officer asked:

“It may be that I didn’t ask the question, because I didn’t know anything about it, but you did not volunteer anything about this off-the-record conversation, about [the complainant] --?--, No I did not.” (Transcript 265).

38    LEUT Waring confirmed that the afternoon of Monday 15 March was the first time he had told “anyone” about the off the record conversation:

“You understood that you were being called by this prosecutor on Monday afternoon, and you can take it that we were served this statement sometime yesterday morning – you understood that you were going to be called as a witness by the prosecution, in relation to an allegation of an act of indecency by PO Low on [the complainant]. Correct? - -Yes, that’s correct. (Transcript 266).

When you spoke to the prosecutor did you volunteer – I’m saying, whose initiative was it for paragraph 7? Did you volunteer it to the prosecutor? --- Yes.” (Transcript 268).

That revelation of the off the record conversation, LEUT Waring said, had evolved in the conversation between himself and the prosecutor. There was no re-examination.

39    The prosecutor sought leave to have the complainant recalled so that the off the record conversation could be put to her to satisfy the requirements of s 66(1) and (2) of the Evidence Act. He withdrew his application. Defence opposed any recall.

40    The Judge Advocate ruled, correctly with respect, that the evidence of complaint by the complainant was relevant, was first hand hearsay, and fell within the exception in s 66. The evidence, thus, was not just evidence of recent complaint which went to the complainant’s credit but was admissible as evidence of the asserted fact. In re-examination the complainant had said the Record of Conversation was not a true account of what had happened.

41    The Judge Advocate’s approach to the s 66 aspect of her ruling was consistent with the analysis of the High Court in Papakosmas v The Queen (1999) 196 CLR 297. There is no complaint about it.

42    The second basis advanced for the exclusion of LEUT Waring’s evidence, was that its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant (Evidence Act ss 135(a); 137). The Judge Advocate referred to the definition of “probative value” in the dictionary to the Evidence Act as the “extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. The disputed fact in issue was whether the complainant told anyone in authority that the indecent act had occurred as distinct from complaint to her friends. The Judge Advocate concluded that the evidence of LEUT Waring would, if accepted by the Panel, play a significant role in the resolution of the disputed fact. (Transcript 332).

43    On the issue of prejudice, the Judge Advocate referred to Papakosmas where McHugh J said:

“Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted.”

His Honour had quoted from the judgment of Hunt CJ at CL in R v BD (1997) 94 A Crim R 131 at 139 that the prejudice to which those provisions in the Evidence Act referred was prejudice which was unfair “because there is a real risk that the evidence will be misused by the jury in some unfair way” [at 325].

44    The unfair aspect of the prejudice before the Judge Advocate was the late service of LEUT Waring’s statement and that the complainant had not given evidence in chief about that conversation and that it was neither foreshadowed nor opened. On appeal Mr A Street SC for the appellant did not press the lateness of the receipt of the statement. The Judge Advocate had concluded that there was no suggestion “that the accused was not in a position to cross-examine the witness because of the delay in providing the statement” (transcript 332).

45    As the analysis of the transcript which we have undertaken demonstrates, it was only at the defence’s instigation on the first day of trial that LEUT Waring was identified as a relevant witness. He had been summonsed to appear by the defence. He had not been proofed by the prosecution because he was not regarded as a relevant witness. The defence was provided with his statement of evidence on the second morning of the trial, that statement having been obtained late the previous evening. The complainant was then in the witness box and remained there until well into that day. She was not cross-examined on LEUT Waring’s statement but could have been. There was no application for an adjournment to consider the implication of his statement if time were needed to discuss forensic issues with the defendant and to take instructions. There was no want of fairness in the conduct of the trial. Disadvantage, if any, was of the defence’s own making. It had LEUT Waring’s Quick Assessment documents in which LEUT Waring had, apparently, said that he thought the complainant may not have been telling the truth (transcript 263 and 265), and could have explored this further.

46    The Judge Advocate’s discretion did not miscarry in ruling that LEUT Waring could give evidence of the off the record conversation. We would conclude that there is no basis for ground 2.

GROUND 3

47    This ground is as follows:

“That the Judge Advocate erred in law and a material irregularity occurred by reason of the failure to warn LEUT Peter Waring, RAN, under s 128 of the Evidence Act 1995, in relation to his witness signature to the record of conversation (Ex 14) that he allegedly knew was false given s 90B of the Crimes Act 1914 whereby a substantial miscarriage of justice occurred [DFDAA s 23(1)(b) and (c)].

48    This ground was not raised below, before, during or after LEUT Waring’s evidence when, if there were any basis for a warning to have been given, that was the time for an application: see R v Ditroia & Tucci [1981] VR 247; Stirland v DPP [1944] AC 313 at 328.

49    The purpose for which this warning ought to have been given so as to prevent a substantial miscarriage of justice from occurring is far from clear. In his written submissions Mr Street wrote:

“That warning had the real potential to impact on his [LEUT Waring’s] evidence and his credibility.”

Oral argument was not more illuminating but s 60 of the DFDA was mentioned – “an act that is likely to prejudice the discipline of, or bring discredit on, the Defence Force”. The contention may be, that if the Panel observed LEUT Waring being given a warning, in some fashion, his evidence might thereby be rendered less reliable or credible.

50    It was not suggested to LEUT Waring that his evidence about the off the record conversation was a fabrication. He was challenged only about the detail of the description he gave of the indecent act in his statement compared to his evidence in chief.

51    The contention is that LEUT Waring signed the Record of Conversation knowing it to be false thereby exposing himself to a penalty. (see Crimes Act 1914 (Cth) s 90B). LEUT Waring explained in evidence that the Record of Conversation recorded only that part of the conversation with the complainant that she was prepared to have recorded officially and to sign off on. She confirmed in evidence that what was recorded was what she said.

52    It is unnecessary to explore this further because the failure to give a warning, even if there had been an application, and even if the Judge Advocate was persuaded that it was necessary, does not have any consequences for the fair conduct or otherwise of the trial.

53    This is because s 128 of the Evidence Act arises for consideration “if a witness objects to giving particular evidence, or evidence on a particular matter” on the ground that to do so may prove that he had committed an offence against or arising under an Australian law: see s 128(1)(a). Presumably, in a situation like this, the witness would only take the objection if he were informed that he was at risk. The consequences, then, are that if the court determines that there are reasonable grounds for the objection, the court must inform the witness that the witness need not give the evidence unless required to do so; and that the court will give a certificate if the witness willingly gives the evidence without being required to do so, or gives the evidence after being required to do so. The court must explain to the witness the effect of the certificate which is that the evidence cannot be used against the person.

54    To the extent that this Tribunal can second guess what the Judge Advocate might have done, she regarded the evidence of LEUT Waring about the off the record conversation as “significant”. More than likely she would have required LEUT Waring to give that evidence if he were not prepared to do so willingly.

55    This ground is without any foundation, not only because it was not raised below when it ought to have been, but also because the failure to do so, if it be accepted that the Judge Advocate ought, of her own initiative, to have identified the risk to LEUT Waring of self-incrimination, and given the warning, would not have had an effect on the outcome of the trial.

GROUND 4

56    Under Ground 4 the appellant complains that the Judge Advocate failed to give a direction to the Court in relation to the complainant’s credibility. He contended that such a direction was required by s 165 of the Evidence Act. The need for such a direction was said to have arisen because the complainant had attempted to withdraw her service statement which implicated the appellant and because of what were said to be inducements held out and threats made by the prosecution in order to have her give evidence.

57    On 18 March 2010 the complainant had been interviewed by LEUT Waring. In the course of that conversation, as already noted, she had said that there were no incidents to report.

58    On 29 March 2010 the complainant told the navy police investigator, CPO NPC Clarke, that she had decided not to provide a statement relating to the incident. She had subsequently changed her mind and, on 8 September 2010, she had made a statement implicating PO Low. On 29 October 2010, however, the complainant told two naval police officers that she wished to withdraw the statement. When asked why she wanted to withdraw the statement she said that she wanted the matter to go away and that she had felt threatened to make the statement. She had been confronted with an “ultimatum” that, if she provided a statement, she would be protected and she would be able to give her evidence via a video link to the court. If she did not provide a statement then she would be “left on her own”, be summoned to attend court and be required to give her evidence in open court. The police officers told her that the matter was in the hands of the Office of the Director of Military Prosecutions and that they would advise that office of her wish to withdraw the statement. Upon doing so they were advised that the Director would not permit her to do so and that if she did not co-operate with the office she would be treated as a hostile witness.

59    Under cross-examination the complainant had acknowledged that she had not wanted to make a statement but she had done so “because I thought it was the right thing to do.” She understood that a consequence of making the statement was that she would be required to attend court notwithstanding her reluctance to do so.

60    Section 165 of the Evidence Act relevantly provides that:

(1)    This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(a)     evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies;

(b)     identification evidence;

(c)    evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;

(d)    …;

(e)    ;

(f)     …;

(g)    

(2)     If there is a jury and a party so requests, the judge is to:

(a)     warn the jury that the evidence may be unreliable; and

(b)     inform the jury of matters that may cause it to be unreliable; and

(c)     warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3)     The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4)     It is not necessary that a particular form of words be used in giving the warning or information.

(5)     This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

(6)     ...

61    The defending officer at trial specifically requested that the Judge Advocate give a direction under s 165. He did not, however, make the request because of the complainant’s attempt to withdraw her statement or because of any pressure said to have been placed on her by the prosecution. Rather the defending officer pointed to evidence which he said was suggestive of fabrication of the complaint, inconsistent statements made by the complainant and the fact that the complainant was affected by alcohol at relevant times. The prosecutor accepted that a warning should be given at least for the reason that the complainant was under the influence of alcohol at the time that the alleged offence was committed.

62    The Judge Advocate commenced her direction in relation to the reliability of the complainant’s evidence by telling the Court that:

“I provided you with some general directions concerning your consideration of the reliability of the evidence of witnesses earlier in my directions and specifically warned you that you’re only entitled to convict the accused on the evidence of the complainant after you have carefully examined the evidence and satisfied yourself that it’s reliable beyond reasonable doubt. I further warn you that the evidence of AB Sullivan and [the complainant] may be unreliable on a number of bases that I’ll address you on shortly. On the basis of those matters, I warn you of the need to exercise further caution in determining whether to accept the evidence and the weight that you should give it.”

63    She then proceeded to deal with the various matters which the defending officer had identified as impinging on the complainant’s reliability. These included matters such as inconsistencies in her evidence, her consumption of alcohol and an alleged motive for her to lie and to concoct the allegation. She also referred, in this context, to what the complainant told LEUT Waring in the course of his quick assessment and, in particular, her reluctance “to go on the record”. The Judge Advocate then directed the Court’s attention to various passages in the complainant’s evidence in which she sought to explain her wish to retract her statement.

64    The Judge Advocate concluded this section of her direction by telling the Court that:

“As I said to you earlier, it’s a matter for the prosecution to satisfy you that the complainant is telling the truth. … the accused has no onus of proof in relation to the motive to lie. And you take all these factors into account in determining whether you think that the complainant is a reliable witness, and in fact whether she had a motive to lie.”

65    The defending officer took no exception to the charge.

66    In our view the Judge Advocate’s directions satisfied the requirements of s 165(2) of the Evidence Act. They were responsive to the request made by defence counsel. Although the matters of the attempted withdrawal of the complainant’s statement and prosecution pressure were not specifically referred to in the context of reliability, the Judge Advocate’s general direction that the panel was “only entitled to convict the accused on the evidence of the complainant after you have carefully examined the evidence and satisfied yourself that its reliable beyond reasonable doubt” clearly had application to these two matters. They were matters drawn to the panel’s attention at other points in the charge. This, perhaps, explains the lack of any objection to the charge.

67    This ground must be rejected.

GROUND 5

68    Under Ground 5 the appellant submits that his conviction was unreasonable or that it cannot be supported having regard to the evidence and/or was unsafe or unsatisfactory.

69    He particularised this ground by reference to five matters. They were:

“(i)    the inconsistency between the complainant’s evidence and her signed record of conversation dated 18 March 2010 stating that the alleged incident did not occur and her admission made to that effect in cross-examination;

(ii)    the intoxication and lack of recall of the complainant;

(iii)    the inconsistencies as to the nature and delay in the alleged complaint;

(iv)    the absence of corroborative evidence at the time of the alleged offence;

(v)    the evidence of the suggested motive to lie of the complainant …”

70    Although expressed as a single ground, it is, in fact, an amalgam of the grounds provided for in s 23(1)(a) and (d) of the Defence Force Discipline Appeals Act 1955 (Cth) (“the DFDAA”) The multiple grounds, as there expressed, are:

“(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.”

By s 20(1) of the DFDAA leave is required to pursue these grounds. We determined that such leave should be granted.

71    The grounds are related. The words and phrases “unreasonable”, “cannot be supported, having regard to the evidence” and “unsafe or unsatisfactory” have all at times been equated: see MFA v The Queen (2002) 213 CLR 606 at 623-4 (McHugh, Gummow and Kirby JJ). Counsel on both sides proceeded on the basis that the same set of arguments related to each of the multiple grounds.

72    In MFA Gleeson CJ, Hayne and Callinan JJ said (at 614-5) that:

“Where it us argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen. … Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, the joint judgment said:

‘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.’”

73    In M v The Queen (1994) 181 CLR 487 the joint judgment provided guidance to appellate tribunals which are called on to apply this test. Their Honours said (at 494-5) that:

“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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question 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. 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.”

74    More recently, in SKA v R (2011) 276 ALR 423 French CJ, Gummow and Kiefel JJ stressed (at 427) that “by applying the test set down in M and restated in MFA, the court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’”. Elsewhere in their reasons (at 429) their Honours said that the appellate court “was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged” and that the appellate court’s task “was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported.” Heydon J and Crennan J, while dissenting as to the result, reaffirmed that the test propounded in M v The Queen should continue to be applied.

75    The particulars, identified by the appellant direct attention to what are said to be matters which, individually or collectively, tend against the conclusion that it was open to the Court Martial to be satisfied beyond reasonable doubt that PO Low was guilty. They must, however, be considered in the context of the evidence as a whole. Ultimately, the resolution of this ground depends upon our independent assessment of the whole of the evidence.

76    Particular (i). There was, undoubtedly, an inconsistency of the kind alleged in this particular. We have explained the circumstances in which the conflicting statements came to be made in dealing with Ground 2. We have also set out (above at [29]-[31]) the evidence given by the complainant at trial when she was questioned about these statements.

77    Put shortly, the complainant told the Court that she had told LEUT Waring that “nothing happened” but that she had done so because she didn’t want to take the matter any further. The statement was untrue.

78    The Court accepted her evidence to that effect.

79    Particular (ii). PO Low contended that the verdict of the Court was unsafe because of what he described as “the extreme intoxication” of the complainant at the time of the alleged offence and her lack of recall of relevant events.

80    The complainant gave evidence that she was “moderately intoxicated” when the incident took place and was “fuzzy” about the details of some of the events which occurred that evening.

81    As the following exchanges during her cross-examination make clear, however, she maintained that she had a clear recollection of the event which led to the laying of the indecent act charge:

“Question: Would it be fair to say … that your memory is somewhat unreliable in relation to this whole weekend in February?

Answer: Not the incident that occurred, sir, no, but for the rest, for the dates concerning the time, times and dates, yes, Sir.

Question: Alright, so that’s an example, if you like, of where I’m suggesting to you that your memory is somewhat unreliable about this very incident, do you agree?

Answer: Not about the incident, no, sir.

Question: I suggest to you that never happened, he never grabbed your hand, put it on the outside or the inside or anything like that, on that day or any other day you stand by your evidence and you say you have a recollection of that happening?

Answer: I do, sir.”

This was evidence which, if accepted by the Court, established that the complainant, despite having consumed some alcohol, was able to recall the essential details of the incident.

82    Particular (iii). The complainant did not shout out or otherwise draw attention to PO Low’s conduct while they both remained in the pool. At the time there were other members of the ship’s company nearby the pool. They included LS Jaide Maguire. LS Maguire gave evidence that, about 1900 hours, she went to dinner at a restaurant at the resort. She said that the complainant and AB Sullivan came up to her table. She observed the complainant to be visibly shaken and appeared to have been crying. She asked the complainant “what’s the matter?”. The complainant responded “can I talk to you?”. They moved away from the table together. LS Maguire asked the complainant “what’s wrong?”. The complainant responded that PO Low had just “groped” her. LS Maguire then asked AB Sullivan to take the complainant away from the restaurant.

83    AB Sullivan, on the other hand, said that the complainant had told him about the incident when he was in the pool. He said that LS Maguire was also present. The substance of the complainant’s statement was that PO Low had grabbed her hand and put it down the front of his shorts.

84    The complainant made similar statements to CPO NPO Clarke and to LEUT Waring “off the record”.

85    The complainant made it clear to each of these witnesses and to other members of the ship’s company that she did not wish to make an official complaint. She only reluctantly changed her mind some six months after the event.

86    Whilst there were, undoubtedly, inconsistencies in the evidence called by the prosecution, there was evidence before the Court, on which it was entitled to act, from the complainant and some of the other witnesses which was consistent with the substance of her claim to have been sexually assaulted by PO Low.

87    Particular (iv). PO Low also contended that the verdict was unsafe because of the absence of any corroborative evidence of the alleged offence from any of the other people who were in the pool at the time at which it was alleged to have occurred.

88    Section 164(1) of the Evidence Act provides that it is not necessary that evidence on which a party relies at trial be corroborated. By s 164(3) the Judge Advocate was not required to warn the Court that it was dangerous to act on uncorroborated evidence, give a warning to the same or similar effect or to give a direction relating to the absence of corroboration.

89    Nonetheless, this is a matter to be brought into account, as part of the evidence as a whole, when determining whether the test propounded in M v The Queen has been satisfied.

90    Particular (v). PO Low submitted that the complainant had a motive to lie about his alleged misconduct.

91    This suggestion arose from a concession made by the complainant under cross-examination. It was put to her that, when she and PO Low were in the pool together, he had accused her of conducting an affair with AB Sullivan. The complainant conceded that it was possible that PO Low had levelled this accusation against her. It was then put to her that she had fabricated the whole account of her allegation against PO Low because she wanted to cover up her “own unacceptable behaviour with AB Sullivan.” She denied this allegation.

92    Earlier it had been put to the complainant that PO Low had said to her that, because of her conduct with AB Sullivan, “you’re gone, you’re not going anywhere” and that she understood this to be a suggestion that her career progression was being threatened. She said that she did not recall the conversation but that it could have happened.

93    The Court was entitled to accept the complainant’s denial that she had made a false allegation for these reasons.

94    It was unlikely, as the prosecutor put to the Court, that the complainant would have delayed for six months in making a formal complaint against PO Low if she felt any immediate threat to her career.

95    Conclusion on Ground 5. We have had regard to all of the evidence led before the Court Martial, including the evidence to which the appellant has directed particular attention. Having done so we consider that it was open to the Court Martial to be satisfied beyond reasonable doubt of PO Low’s guilt. The complainant, whose evidence was critical to the prosecution case, had been reluctant to implicate PO Low and had made inconsistent statements to investigators. She explained her reasons for being reluctant to make a statement and give evidence for the prosecution. Her reasons were credible and not uncommon in cases of sexual assault, particularly in a hierarchical military environment. The members of the Court Martial saw the complainant being cross-examined at length about these matters and accepted her explanations.

96    There was also inconsistency in some of the evidence given by other prosecution witnesses about such matters as when and in what terms the complainant told them about the incident with PO Low. These differences in detail did not significantly undermine the prosecution case. They may reasonably be understood to have been caused by the insobriety at the time of some of the witnesses and the fading of memory of events which had occurred over 12 months earlier. Among this inconsistent evidence was evidence of a timely complaint by the complainant to LS McGuire.

97    There was, therefore, in our view, evidence before the Court Martial on which, when considered as a whole, it could be satisfied beyond reasonable doubt that the offence had occurred.

98    Ground 5 must fail.

DISPOSITION

99    The appeal must be dismissed.

I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, White & Mildren.

Associate:

Dated:    21 November 2011