DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Jones v Chief of Navy [2012] ADFDAT 2
| DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL | |
| DFDAT 3 OF 2011 |
| AND: |
| TRACEY J – PRESIDENT, WHITE JA – DEPUTY PRESIDENT & MILDREN j - MEMBER | |
| DATE OF ORDER: | |
| WHERE MADE: |
THE TRIBUNAL ORDERS THAT:
1. Leave be granted to the appellant to appeal on the grounds appearing in his amended notice of appeal dated 21 February 2012.
2. The appeal be allowed in part.
3. The appellant’s conviction on Count 22 be quashed.
4. The appellant be found guilty as charged on Count 23 and that he be severely reprimanded.
5. The appeal otherwise be dismissed.
| ON APPEAL FROM GENERAL COURT MARTIAL | DFDAT 3 OF 2011 |
| BETWEEN: | JOHN ALAN JONES |
| AND: | CHIEF OF NAVY |
| JUDGES: | TRACEY J – PRESIDENT, WHITE JA – DEPUTY PRESIDENT & MILDREN j – MEMBER |
| DATE OF ORDER: | 22 may 2012 |
| WHERE MADE: | MELBOURNE (HEARD IN SYDNEY) |
REASONS FOR JUDGMENT
1 The appellant, a Lieutenant Commander in the Royal Australian Navy, aged 57 years, was charged with nine counts of having committed an act of indecency without consent on the complainant, aged 25 years, pursuant to s 61 of the Defence Force Discipline Act 1982 (Cth) (“the DFDA”) and s 60 of the Crimes Act 1900 (ACT) (“the Crimes Act”). There were five alternative counts of assaulting a subordinate pursuant to s 34(1) of the DFDA and nine alternative counts of prejudicial conduct. Those charges related to nine incidents.
2 The appellant pleaded not guilty to those charges when arraigned on 29 November 2011. He pleaded guilty to a charge of attempting to destroy service property, namely a laptop computer (Charge 24). That charge was relevant to the other charges because the laptop contained pornographic images involving spanking which had some coincidence with the impugned conduct.
3 On 13 December 2011, after an 11 day trial, the General Court Martial (“the GCM”) found the appellant guilty of seven counts of acts of indecency. The alternative charges relating to these counts were not, therefore, the subject of verdicts. The appellant was found not guilty of two counts of acts of indecency (Charges 15 and 18), the alternative count of assaulting a subordinate (Charge 16) and prejudicial conduct (Charges 17 and 19). The GCM imposed the punishments of reduction in the rank to Lieutenant with seniority in that rank to date from 14 December 2011; dismissal from the Australian Defence Force; imprisonment for concurrent terms of 12 and 18 months in respect of certain of the charges; and a fine of $2,000 with respect to Charge 24 – the attempt to destroy the service computer. In sentencing the appellant to imprisonment the GCM panel stated:
“The Court has determined that no other sentence is appropriate because of a gross abuse of authority and position – deleterious effect on the victim, recognition of Australian Defence Force and community standards and high moral culpability of the convicted.”
SUMMARY
4 The incidents that gave rise to the charges occurred on board HMAS SIRIUS and at the complainant’s private residence in Western Australia extending over the period from February 2010 to November 2010.
5 The complainant was an AB Steward on HMAS SIRIUS during the relevant period. The appellant was the supply officer on board during the period of the charges until October 2010. The complainant worked in the supply department of the ship. The appellant was the head of that department which comprised some 13 personnel.
6 The appellant took a close interest in the complainant’s career and her personal life and offered her advice on occasions in the privacy of his cabin. In about February 2010 the first charged incident occurred – the conduct was admitted by the appellant but he denied that it occurred without consent; similarly with the third charged incident and the ninth. The prosecution case was that there was no consent to the charged conduct, or if there was it was obtained by the abuse by the appellant of his position of authority over the complainant or he was reckless as to whether or not she consented.
7 The charged conduct consisted for some of the incidents in the appellant directing the complainant to pull down her pants, lie across his knees while he spanked her on her bare bottom after he had directed her to say that she had been “naughty” and deserved to be spanked. On other occasions he allegedly directed her to take off her top or remove her outer garments. Where the incidents involved no touching they did not give rise to alternative charges of assault.
8 The complainant said that there were many other occasions of uncharged “smacking” conduct.
9 Towards the end of 2010 the complainant recorded on her iPhone a “pretext” conversation with the appellant when she was in a car with him. The prosecution played that recorded conversation over defence objection.
10 The appellant pleaded guilty to attempting to destroy a service laptop computer on which he had stored a large number of pornographic images related to spanking. The prosecution led this evidence as evidence corroborating the appellant’s sexual interest in such activity and to show that the impugned conduct was indecent and that the attempted destruction of the computer showed some consciousness of guilt.
11 A number of days were taken up with objections to evidence. Vigorous objection to the reception of certain parts of the complainant’s and other witnesses’ evidence occurred throughout the trial.
12 The appellant did not give evidence. He did call character evidence to the effect that he was not a person who would require a female subordinate to engage in any kind of sexual activity without consent.
13 The thrust of the defence questioning was that the complainant consented to the “discipline” which was admitted by the appellant because he could “do” things for her in the Navy and beyond and she used him for her own ends.
14 Part of the appellant’s medical file was admitted into evidence for a limited purpose relating to Charge 9.
THE APPEAL
15 The appellant filed a notice of appeal in this Tribunal in which he relied on a number of grounds. At the hearing of the appeal he sought leave to file a further amended notice of appeal which contained amended and additional grounds – 12 grounds in all. The further amended notice of appeal had been served on the Director of Military Prosecutions (“the DMP”) and she was in a position to and did address argument on the grounds appearing in the further amended notice of appeal. We reserved our decision on the application and heard full argument on the grounds raised in the amended notice. We have determined that leave should be granted to the appellant to rely on the further amended notice of appeal.
GROUNDS 1 TO 3
16 These grounds are related. They each relate to certain statements, made by the prosecutor, in the course of his final address to the Court. The prosecutor referred to a number of female members of the Navy who had been involved in responding to the complainant’s allegations. He said:
“Again, this comes back to Don Walker a little bit. She, another one of what I’ll submit are the strong women in this case – this is the type of case that – of course, it’s been in the media and gives people the impression that the navy’s a misogynistic service where there’s no support for women. Mr President , ma’am, sirs, this man was undone by the strong women in the navy, who all displayed courage, integrity, loyalty, honour, honesty, in all their dealings, all of them, from Amanda Ferrell, who stood up to this man and said: ‘You should let her go’. Renee Cowling who said: ‘I will not write a fake job letter of this nature for this woman. I will not be a role player to tell her how to lie to the psychs’.
To Mel Clarke who did everything appropriately when she became aware of this. [Strong] Coxswain whom the supply officer didn’t get on well with and one might imagine why, to the lead investigator, Patrisha Chaplin. As much as, in my submission, the offences committed by this man bring the Navy into disrepute because of his conduct the New Generation Navy has, in my submission, stood up well because of the women in this case who did exhibit every aspect of Navy values.
And it is somewhat of an irony that that’s the way this man, in my submission, has been brought undone is by these strong women demonstrating that no, that is not the way the Navy operates. It is not a misogynistic place where women are powerless. Where women cannot get ahead where they are too afraid to stick up for themselves that there will be adverse consequences to them if they stick up for themselves.”
17 The defending officer did not immediately object to what the prosecutor had said. On the following day, however, the defending officer made what the Judge Advocate understood to be an application to dissolve the Court pursuant to s 125 of the DFDA on the ground that they were prejudicial to the accused.
18 The Judge Advocate accepted that the prosecutor’s comments were, in part, irrelevant but considered that their prejudicial effect could be overcome by an appropriate direction. She ruled that:
“I am of the view that the matters put by the prosecutor concerning the fact that the accused was undone by strong women in the Navy may have been inflammatory in the context of an accused who has come before this court denying all the conduct alleged against him. But in the context of the case where the defending officer has conceded that the relationship between the accused and the complainant was a relationship which should never have occurred and was antithetical to the values which naval officers, and even Defence members more generally, should adhere to, and in the circumstances where there has been an admission of at least two occasions of smacking the complainant, that such a concern does not arise.
… (a)lthough the comments made concerning the perception of a misogynistic navy are unfortunate and have introduced an irrelevancy and a potential to elicit sympathy for women in the Navy, I am of the opinion that this third panel can be properly directed at the appropriate time as to deciding the case only upon the evidence properly before it. The fact that the onus is on the prosecution to establish each element of the offence to a standard beyond reasonable doubt before they can find the accused guilty on any of the charges and not to decide this case on the basis of sympathy. I am also satisfied that the accused will continue to receive a fair trial.”
19 The Judge Advocate then invited the defending officer to identify the directions which she should give to overcome any risk of irrelevant matters intruding on the Court’s deliberations. The defending officer responded:
“I think much of it is, with respect, encapsulated in the reasons that you’ve just given. The substance is I think that it’s appropriate that they should be expressly referred to the passage that you’ve quoted. They should be expressly directed to ignore it and reject it as being irrelevant and they should be of course reminded, as you’ve indicated in your reasons, that they are to base their deliberations solely upon the evidence that is before them and nothing else and not to be influenced by extraneous considerations of sympathy or otherwise.”
20 In due course the Judge Advocate gave a direction along the lines contemplated in her ruling. She did not read out the offending remarks but she did draw the Court’s attention to the fact that the prosecutor had made a comment about the potentially misogynistic nature of the Navy and the media reports of that nature. She specifically directed that such comments were to be put out of the Court’s mind and reiterated an earlier direction that the Court was not to let sympathy sway its judgment in any way.
21 The appellant alleged that these remarks were inflammatory in content and tone and that they gave rise to a miscarriage of justice. He complained that the Judge Advocate had erred in law by failing to declare a mistrial and, instead, determining to give a remedial direction to the Court. He also complained that the directions given by the Judge Advocate were inadequate to avoid a miscarriage of justice.
22 When an application to dissolve a Court is made the Judge Advocate has a discretion which must be exercised in the interests of justice. Justice requires that the accused must receive a fair trial according to law.
23 Much has been said over the years by superior courts about the principles which govern the conduct of prosecutors in criminal trials: see, for example, Whitehorn v The Queen (1983) 152 CLR 657 at 663-4 (per Deane J); Libke v The Queen (2007) 230 CLR 559 at 576-87 (per Kirby, Callinan and Hayne JJ). In Libke Hayne J (with whom Heydon J agreed) quoted with approval from the reasons of Rand J in the Supreme Court of Canada, where His Lordship had observed that the role of the prosecutor “is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.” Hayne J went on to stress that the prosecution case must be presented with fairness to the accused.
24 One of the ways in which a prosecutor may depart from these standards will occur when an attempt is made to persuade a jury that they should approach a complainant’s predicament with sympathy and act to protect her and others like her in the community interest.
25 It does not, however, follow that all departures by the prosecutor from the appropriate standards warrant a discharge of the jury (or, in the context of a Court Martial, the dissolution of the Court). As Deane J said in Whitehorn (at 664):
“The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered.”
26 When an application is made to discharge a jury in a civil criminal trial the correct approach, identified by the High Court in Crofts v The Queen (1996) 186 CLR 427 at 440, is that:
“No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.”
27 The impugned remarks of the prosecutor were made as an aside in three paragraphs which formed part of a lengthy address. That address continued over some 37 pages of transcript. The prosecutor himself referred to his remarks as being a digression. He then returned to his summary of evidence. When he had completed his address the Judge Advocate asked the defending officer whether he would like a short adjournment. The defending officer said that he would, and a 20 minute adjournment followed. When the hearing resumed there were some short exchanges between the prosecutor and the Judge Advocate. The defending officer then commenced his address to the Court which continued for the rest of the day. He raised no objection, at that stage, to the prosecutor’s remarks. No application was then made.
28 Whilst the delay in making the application may have occurred for many possible reasons, it is at least suggestive that the defending officer did not, when he heard the comments, regard them as being particularly egregious.
29 In cases in which an accused is alleged to have taken sexual or other advantage of a minor prosecutors are “required to be particularly vigilant not to do anything which appeals to the prejudice or sympathy of the jury where such emotions are so easily aroused”: R v M [1991] 1 Qd R 60 at 82 (per Cooper J). Similar vigilance must be exercised by service tribunals where it is alleged that the accused has abused the trust of a subordinate or taken advantage of his or her position of authority to mistreat a subordinate.
30 The prosecutor’s comments were, in our opinion, unnecessary and unfortunate. They should not have been made. They were, however, made as an aside and were not made in a deliberate attempt to prejudice the Court against the appellant. They were not repeated or proffered as matters of particular significance. They received no implicit endorsement by the Judge Advocate in her address to the panel: cf R v Wheatley [2012] QCA 55 at [58]-[62] (per Muir JA, with whom Wilson AJA and Applegarth J agreed).
31 The Judge Advocate recognised the need to direct the Court that what had been said was irrelevant and was not to play any part in the Court’s deliberation. The panel was so directed. Her direction was apt to negative any prejudice to the appellant and to ensure that he was accorded a fair trial.
32 These grounds have not been established.
GROUND 4
33 This ground arises out of a pre-trial ruling made by the Judge Advocate. In that ruling she dealt with certain objections to the efficacy of the charge sheet which were raised by the defending officer. The objections fell into two broad categories: those which asserted that it was not open to the DMP to lay charges against the appellant under s 60 of the Crimes Act; and those which alleged that three of the charges were bad for duplicity.
The Availability of s 60 of the Crimes Act
34 Charges 1, 4, 6, 9, 12, 15, 18, 20 and 22 alleged that the appellant had committed acts of indecency on the complainant. The charges were laid under s 60 of the Crimes act as picked up by s 61 of the DFDA. The defending officer submitted that it was not open to the DMP to prefer charges under s 60 of the Crimes Act because she had the option of laying charges against the appellant under s 33(c) of the DFDA. It was contended that, in these circumstances, the decisions of Saraswati v The Queen (1991) 172 CLR 1 and Hoffman v Chief of Army (2004) 137 FCR 520 precluded reliance on s 60 of the Crimes Act.
35 The Judge Advocate dismissed the appellant’s objection. She held that the offences created by ss 60 and 33(c) were “very different”. She pointed to the different elements which had to be established to make good charges under the two provisions. She found that the charges preferred under s 60 were “more serious” than those covered by s 33(c). She also noted that two of the charges (9 and 12) could not have been preferred under s 33(c) because the relevant conduct had occurred in private premises and not on service land.
36 Section 60(1) of the Crimes Act relevantly provided:
“60 Acts of indecency without consent
(1) A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years.”
37 Paragraphs (a) and (c) of s 33(c) of the DFDA provided:
“33 A person who is a defence member or a defence civilian is guilty of an offence if the person is on service land, in a service ship, service aircraft or service vehicle or in a public place and the person:
(a) assaults another person;
(b) …
(c) within the view or hearing of another person, engages in conduct that is obscene; or
(d) …
Maximum punishment: imprisonment for 6 months.”
38 By s 96(1) a person may not be charged with an offence under s 33 once a period of three years has expired following the time at which the offence is alleged to have been committed. By s 96(4) a charge against s 61(1) of the DFDA becomes time barred at the same time as the particular offence picked up by that sub-section would be barred in the Jervis Bay Territory.
39 It may first be noted that, while it is possible that the same act may constitute an offence under both s 60(1) of the Crimes Act and s 33(c) of the DFDA, the elements of the two offences are not the same. That which is indecent may not be obscene. “Indecent” is a milder term than “obscene”: see R v Stanley [1964] 2 KB 327 at 333. Thus “[o]bscenities are always indecent but all indecency is not obscene”: see Crowe v Graham (1968) 121 CLR 375 at 392 (per Windeyer J). An offence under s 33(c) can be committed if the conduct occurs within the hearing of another person but s 60(1) of the Crimes Act requires that the relevant act be performed on, or in the presence of, the victim.
40 In Saraswati the High Court was concerned with the impact of a time bar on the construction of a provision which established the offence of performing “an act of indecency”. The offence was created by the Crimes Act 1900 (NSW). That same Act also created the offences of indecent assault and having carnal knowledge. Section 78 of the Act required that prosecutions for these two offences had to be commenced within 12 months of the time of the alleged offence. No such limitation attached to the offence of performing “an act of indecency”. The majority of the Court (Toohey, Gaudron and McHugh JJ; Deane and Dawson JJ dissenting) held that the “act of indecency” offence was not to be construed as applying to conduct which constituted an indecent assault or carnal knowledge notwithstanding the fact that the ordinary meaning of the words “act of indecency” were apt to cover such conduct. Toohey and McHugh JJ reached this conclusion, in part, upon the application of the rule “that, when a statute specifically deals with a matter and makes it the subject of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation” (at 23). They treated the section which created the offence of committing an “act of indecency” as a general power which could not be used to circumvent the limitation which s 78 placed on the commencement of prosecutions for the two more serious offences. Gaudron J came to the same conclusion upon the application of a different principle. The offence of committing “an act of indecency” was inserted in the Act after the provisions which created the offences of indecent assault and having carnal knowledge of the victim and also after the inclusion of the limitation provision (s 78). Gaudron J held that it was “a basic rule of construction that, in the absence of express words, an earlier statutory provision (s 78) is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied.” (at 17). Were a restrictive construction not placed on the offence of committing an “act of indecency” there would be a derogation from the protection afforded by s 78.
41 In Hoffman the accused had been charged with assault on another service member. The charge was laid pursuant to s 61(1) of the DFDA, picking up s 26 of the Crimes Act. The elements of the offence created by s 26 were identical with those of s 33(a) of the DFDA. At the time the charge was laid the prosecution was prevented, by the s 96(1) time bar, from relying on s 33(a). No relevant time bar applied to a charge under s 26. The maximum penalties which attached to the two provisions differed. The maximum penalty which could be imposed under s 33(a) was six months imprisonment; the maximum for an offence under s 26 was two years imprisonment. A Full Court of the Federal Court (Black CJ, Wilcox, Lindgren and Gyles JJ, Beaumont J dissenting) held that the accused could not be proceeded against under s 26 of the Crimes Act when reliance could, but for the time bar, have been placed on s 33(a) of the DFDA.
42 The majority referred to Saraswati. It noted that Saraswati did not involve identical offences and that nothing said by the majority in that case was “contrary to the conclusion that there is inconsistency in this case because of the differing penalties.” (at 532). Their Honours referred to the principles on which Toohey and McHugh JJ and Gaudron J had acted in Saraswati and continued (at 532):
“In the present statute the existence of the time limitation in relation to s 33 is an indicator that the legislature would not have contemplated that the same offence in substance could be pursued outside the prescribed limitation period. This provides independent support for the conclusion that the s 61 charge was not open that would anyway be indicated by the existence of different maximum penalties for the same conduct.”
43 Their Honours considered that, having regard to the structure of the DFDA, s 33 was to be regarded as a particular provision and s 61 as a general provision. The general power could not be used to avoid the limitations placed by s 96 of the DFDA on the laying of charges against s 33(a).
44 The circumstances of the present case differ in important respects from those which obtained in Saraswati and Hoffman. The first distinguishing feature is that the limitation periods prescribed by s 96 of the DFDA did not prevent the DMP from laying charges under either s 33(c) or s 60 of the Crimes Act. The relevant events in the present matter occurred in 2010 and the charges were laid during the following year. There was, therefore, no basis for suggesting that the DMP was resorting to s 60 in an attempt to circumvent a limitation on her power to prefer charges under s 33 of the DFDA.
45 A second important difference has already been adverted to: the elements of the offences created by s 33(c) of the DFDA and s 60 of the Crimes Act are materially different. The latter offence is the more serious and this is reflected in the higher maximum penalty which attaches to it.
46 The DMP was not precluded from resorting to the more serious offence even if she could have chosen to lay one or more of the relevant charges under s 33(c). She was entitled to have regard to the gravity of the appellant’s conduct on each occasion. So much was recognised by the Full Court in Hoffman where Black CJ, Wilcox and Gyles JJ said (at 534) that:
“Acceptance of the appellant’s argument in this case does not mean that s 61 [of the DFDA] is not to be given full force and effect where it is applicable. Whilst, in circumstances such as the present, a charge cannot be preferred pursuant to s 61 with elements identical to those of a particular charge in the earlier divisions of Pt III, if the charge laid pursuant to s 61 is truly different from (particularly if more serious than) that which might be laid pursuant to a particular earlier provision, then the fact that the conduct could have been charged pursuant to the earlier provision would be no answer, in itself, to the different charge pursuant to s 61.” (Emphasis added).
47 There was no reason, in the circumstances of the present case, to restrict the options open to the DMP. The charges which she laid under s 60 of the Crimes Act required her to establish elements which were different from and more serious than those which she would have had to prove had she laid the charges under s 33(c).
Duplicity
48 The duplicity objection was taken in relation to the framing of charges 4, 6 and 9.
49 These charges read:
“4. Being a Defence member onboard HMAS SIRIUS during the ship’s transit from Fleet Base West to Sydney between 01 and 14 February 2010 committed an act of indecency upon AB … without her consent knowing she was not consenting or being reckless as to whether she was consenting by directing AB … to stand up and take her pants off, before he pulled her underpants down to her knees exposing her genitals.
…
6. Being a Defence member onboard HMAS SIRIUS while SIRIUS was alongside Fleet Base East between 26 and 28 February 2010 committed an act of indecency upon AB … without her consent knowing she was not consenting or being reckless as to whether she was consenting by telling her to pull down her pants and lie across his lap before pulling her underpants to her ankles, and smacking her bare buttocks several times with an open hand.
…
9. Being a Defence member at ….. in the State of Western Australia between 26 and 30 March 2010 committed an act of indecency upon AB … without her consent knowing she was not consenting or being reckless as to whether she was consenting by pulling her stockings and underpants down to expose her genitals and bare buttocks, directing her to lie across his lap, spreading her buttock cheeks exposing her anus and vagina and smacking her bare buttocks a number of times.”
50 The appellant submitted that, because multiple acts were relied on, it was not possible for him or the panel to be certain as to what particular conduct was being relied on in order to support the charge of performing an act of indecency. There was, therefore, it was submitted, a latent ambiguity which was, potentially, unfair to him.
51 The Judge Advocate rejected the appellant’s submissions. She ruled that “the acts referred to in each case are, in practical terms, all part of the same course of conduct, all preliminary to the alleged act of indecency and the alleged act of indecency itself.” She continued:
“There is no suggestion in this case that the accused does not know the detail of the allegations in each of the three charges. However the prosecution has made it clear that particularly in relation to charges 6 and 9, the allegation of indecency is the smacking of the complainant’s buttocks. This will no doubt be made clear to the court martial panel and be the subject of appropriate directions by me at the relevant time. In relation to charge 4, following the decision in Sims v Drewson there is no requirement for the prosecution to elect as between acts alleged.”
52 It has often been said that the rule against duplicity is easy to state but is often difficult to apply. The rule requires that only one offence should be charged in any charge on an indictment or charge sheet.
53 In analysing the terms of the charges which arise out of a course of conduct nice questions can arise as to whether there is a single charge arising from a series of acts which constitute a course of conduct, on the one hand, and whether two or more acts might give rise to individual offences. Such difficulty often attends theft cases where money or goods have been appropriated on multiple occasions or assault cases where a number of blows have been struck: see, for example, R v Poulier (2007) 19 NTLR 91; Haskett v Police [2005] SASC 174; Sims v Drewson (2008) 188 A Crim R 445.
54 In the latter case Besanko J said (at [16]) that:
“In my opinion … there was no obligation on the [informant] that he elect between the various ‘acts’. Nor was the charge defeated if the [informant] failed to establish his case in relation to one ‘act’ so long as it was established in relation to one or more of the other acts. In my opinion, this case is similar to those cases where, for example, a charge of the theft of a number of items is alleged and the charge is not defeated simply because the prosecution fails to prove its case in relation to one or some of the items, or a charge of assault said by the prosecution to be constituted by a number of blows is alleged and the charge is not defeated simply because the prosecution fails to prove its case in relation to one or some of the blows.”
55 When a complaint of duplicity is raised it is necessary for a Court to adopt “a practical approach”. In some cases such an approach can justify a single charge being laid when “a number of acts of a similar nature … [are] connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise …”: see Director of Public Prosecutions v Merriman [1973] AC 584 at 607.
56 Such exceptions from the strict rule against duplicity were explained by Kirby J in Walsh v Tattersall (1996) 188 CLR 77 at 109 as follows:
“Exceptions to the general rule against duplicity have been allowed where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity; where the offence is one that can be classified as continuing in nature; and in other anomalous cases.”
57 In R v Goodwin [2009] ACTSC 111 at [81] Refshauge J said that:
“In determining whether an offence is a continuing offence or a ‘composite offence’, relevant indicia include but are not limited to the connection of the acts in point of time, their similarity, the physical proximity where they occurred and the alleged intention of the accused throughout the conduct.”
58 Each of the charges particularised a series of directions and actions on the part of the appellant which led to the complainant disrobing or having underclothing removed. The sixth and ninth charges also alleged that the appellant had administered multiple smacks to the complainant.
59 Each of the three charges related to a discrete incident. In each case the appellant’s impugned conduct occurred over a period of a few minutes. The conduct in each case involved successive steps by which the appellant achieved the objective of having the complainant appear before him naked from the waist down. In two of the instances the appellant took advantage of the complainant’s nakedness to spank her on the buttocks. In the circumstances each offence can be regarded as a continuing offence albeit one which persisted for only a short time. Each was also properly to be regarded as a composite offence of committing an act of indecency on the complainant.
60 The appellant submitted that the panel would have been uncertain as to the particular conduct that they were asked to find was indecent. It was possible, he said, that the panel members, when dealing with Charges 6 and 9, could have regarded his alleged conduct, prior to smacking the complainant, to be the relevant indecent conduct. Attention was directed to an aide memoire which had been given to the panel by the Judge Advocate. The aide memoire set out the elements which the prosecution was required to establish in respect of each charge. The appellant’s conduct which was said to constitute an act of indecency was identified, in relation to Charges 6 and 9 as being the entirety of the conduct referred to in the charge, that is, the conduct preparatory to the smacking and the smacking itself. The conduct constituting an act of indecency under Charge 4 was said to be all of the acts commencing with the order to stand up and concluding with the complainant appearing before the appellant naked below the waist.
61 At trial the complainant gave evidence which, if accepted, would have established that all of the conduct referred to in each of the charges had occurred. The appellant denied that any of the conduct alleged in Charges 4 and 9 had occurred. He admitted the conduct alleged in Charge 6 but claimed that it was consensual.
62 When she directed the panel in relation to Charge 4, the Judge Advocate treated all of the directions and actions of the appellant as together constituting the act of indecency. These events occurred over a very short period of time. They involved, in quick succession, the removal of items of the complainant’s clothing so that she appeared naked from the waist down. They were acts which could, without unfairness to the appellant, be treated as forming a composite element of the offence charged.
63 When she came to her directions in relation to Charges 6 and 9 the Judge Advocate specifically reminded the panel that the “allegation relate[d] to smacking.” She thereby made it clear that the smacking and the immediate circumstances in which it occurred in each case was the relevant act of indecency relied on by the prosecution. It is also to be borne in mind that each of the acts referred to in Charge 6 were admitted by the appellant.
64 We do not, therefore, consider that the panel would have been left in any doubt about the conduct which the prosecution was alleging, in respect of each of the charges, amounted to an act of indecency.
65 Charges 4, 6 and 9 were not bad for duplicity.
GROUND 5
66 The nub of this ground is that s 67 of the Crimes Act which applies in the Jervis Bay Territory, is not picked up by s 61 of the DFDA even if s 60 of the Crimes Act applies to the circumstances of this case.
67 The terms of s 60(1) of the Crimes Act have been set out in dealing with ground 4 (see above at [36]).
68 Section 67 provides:
“Consent
(1) For sections 54, 55 (3) (b), 60 and 61 (3) (b) and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused –
(a) by the infliction of violence or force on the person, or on a third person who is present or nearby; or
(b) by a threat to inflict violence or force on the person, or on a third person who is present or nearby; or
(c) by a threat to inflict violence or force on, or to use extortion against, the person or another person; or
(d) by a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person; or
(e) by the effect of intoxicating liquor, a drug or an anaesthetic; or
(f) by a mistaken belief as to the identity of that other person; or
(g) by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person; or
(h) by the abuse by the other person of his or her position of authority over, or professional or other trust in relation to, the person; or
(i) by the person’s physical helplessness or mental incapacity to understand the nature of the act in relation to which the consent is given; or
(j) by the unlawful detention of the person.
(2) A person who does not offer actual physical resistance to sexual intercourse shall not, by reason only of that fact, be regarded as consenting to the sexual intercourse.
(3) If it is established that a person who knows the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means set out in subsection (1) (a) to (j), the person shall be deemed to know that the other person does not consent to the sexual intercourse or the act of indecency, as the case may be.”
69 Section 67 is intended to achieve several purposes. First, it provides the circumstances under which consent is “negated.” The Shorter Oxford Dictionary defines “negate” to mean to “deny; negative, to deny the existence of; to destroy, nullify, render ineffective.” Secondly, it does not purport to define what is consent; only what is not consent. Thirdly, it is not a complete definition of all of the “grounds” on which consent is negated. Some, at least, of the grounds set out would have vitiated consent at common law. Others, such as a sleeping victim, are not specifically mentioned, although it is well settled that a person who is asleep cannot consent to anything. Fourthly, whilst s 67 (1) and (2) are concerned with the physical element of whether or not the complainant consented, or whether such consent as he or she may have given was vitiated (or negated), subsection 67 (3) is concerned with the accused’s knowledge. In effect, it provides that knowledge that the complainant’s consent has been caused by one or other of the vitiating factors is sufficient to prove the relevant mental element, or fault element, as it is now called.
70 What is plain is that the words “without that person’s consent” contained in s 60 (1) of the Crimes Act take their meaning, at least in part, by reference to s 67 (1) and (3). In other words, s 67 operates in the same way as a definition section.
71 It is a well established principle of statutory interpretation that a provision of an Act is not to be read in isolation; the Act must be read as a whole. To read s 60 (1) in isolation would be to offend this basic principle. The argument of counsel for the appellant is premised on an assumption that there needs to be a source of power, separate from s 61 of the DFDA, before s 67 of the Crimes Act is “picked up.” This argument must be rejected. If s 61 of the DFDA picks up s 60 (1) of the Crimes Act, the result is that s 67, in so far as it gives meaning to s 60 (1), applies as well.
72 A subsidiary argument was that s 67 of the Crimes Act was not “picked up” because it required the Court “to find a fact, or not find a fact, in a particular way.” It was put that, it was “a law that purports to direct the manner in which judicial power should be exercised” and was consequently invalid, citing Nicholas v The Queen (1998) 193 CLR 173 at 187, 236.
73 The first answer to this contention is that the Court was not exercising the judicial power of the Commonwealth, and therefore arguments based on the separation of powers doctrine enshrined in Chapter III of the Constitution have no applicability: Re Tracey; Ex parte Ryan (1989) 166 CLR 518. The second answer is that, in any event, s 67 of the Crimes Act does not require the Court to decide a fact in a particular way. All it does is to mark out what is not meant by the concept of consent. As to s 67 (3), in our opinion it does not create a statutory fiction. As a matter of logic and common sense, knowledge of circumstances which negate consent means that not only was there no consent at all, but the accused knew there was no consent. Section 67 (3) is merely a provision for the removal of any doubt on that subject: see Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 at 207 (per Gleeson CJ). This subsection also makes clear that honest and reasonable mistake of fact is not available as a defence in the circumstances to which s 67 (3) applies, (although as a matter of logic, if the fault element is knowledge, it is difficult to see how one could be mistaken about something when it was proved that the accused had the relevant knowledge).
74 Ground 5 must, therefore, be rejected.
GROUND 6
75 On 29 November 2011 in a pre-trial ruling the Judge Advocate considered an objection from the defence, pursuant to s 141(2) of the DFDA, to LCDR C E Hillam constituting a member of the panel. The Judge Advocate refused the application after questioning LCDR Hillam in the absence of the other members of the panel.
76 The appellant contends that in so ruling the Judge Advocate erred and that there were reasonable grounds for inferring ostensible bias so that the convictions were wrong in law and resulted in a substantial miscarriage of justice and/or a material irregularity pursuant to s 23(1)(b) and (c) of the DFDA.
77 The basis of the objection set out in written submissions for an earlier pre-trial hearing was that LCDR Hillam had some past professional association with CMDR D Mullins, the assistant prosecutor. A further basis for objection was raised, namely, that LCDR Hillam had given inconsistent information to the Registrar of Military Justice about the connection with CMDR Mullins; and, on appeal, that the Judge Advocate’s reasons were inadequate.
78 CMDR Mullins revealed to the trial manager, defence counsel and to other relevant persons in late October 2011 that he knew, on a professional basis, LCDR Hillam. This had occurred in 2007 when he was Commanding Officer of HMAS SHEPPARTON and in that capacity was required to take under his charge S8 drugs. He would attend at HMAS CAIRNS Medical Centre to sign out the drugs. “On at least one occasion” he could recall LCDR Hillam was the medical representative counter-signing his signature for the purpose of passing those drugs to his charge. He added:
“I can also remember ‘coming across’ her in the HMAS CAIRNS wardroom on a number of occasions. We may have had polite conversation on a couple of occasions. If I was to walk past her in a shopping mall, I would not be surprised if she failed to recognise me.”
79 Initially, when approached by the trial administrator, LCDR Hillam indicated that she had no knowledge of CMDR Mullins. She subsequently said that she had no recollection of CMDR Mullins but thought that she might have come across him when she was the Director at HMAS CAIRNS’ Medical Centre. She commented that when working there she “dealt with a lot of people between 2007 and 2010”. This was the impugned inconsistency.
80 Defence continued to press objection to LCDR Hillam’s inclusion on the panel during the pre-trial hearings. The Judge Advocate deferred dealing with the matter until 29 November 2010 – the first day of the trial. She foreshadowed with counsel that she would bring LCDR Hillam in separately from the rest of the panel and ask her if she knew the assistant prosecutor, CMDR Mullins, and the nature of her dealings with him, if she did recall him. Having foreshadowed those questions the defending officer had no further submissions.
81 When questioned, LCDR Hillam did not recall CMDR Mullins, but added that “somebody” did say to her that he had said that he knew her. She had no memory of him. LCDR Hillam was excused and asked not to discuss the matter with other members of the panel. The defending officer made no further submissions but maintained the objection. The Judge Advocate ruled that since LCDR Hillam had no specific recollection of CMDR Mullins she was satisfied that no apprehension of bias arose and dismissed the application commenting that since the members of a court martial are to be assembled from the Defence Force which was a “comparatively [small] service”, it was:
“… by no means unremarkable that officers will have had dealings with their comrades at some stage over the years and I do not think that that would give rise to an apprehension of bias.”
82 By s 141(2)(c) of the DFDA at any time before a court martial is sworn or affirmed, an accused person may object to any member of the court martial on the ground that the member “is likely to be thought, on reasonable grounds, to be biased.” The appellant did not contend below or on appeal that the statutory test is any different in substance from the common law test applicable to a civilian juror or judge.
83 The High Court has established, through a number of decisions, culminating most recently in Michael Wilson & Partners v Nicholls (2011) 86 ALJR 14, that the test to be applied in Australia in determining whether a judge is disqualified by reason of the apprehension of bias:
“…is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” [at 31].
84 In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gleeson CJ, McHugh, Gummow and Hayne JJ said at [8]:
“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision-making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”
85 The appellant submitted that the “association” (see: Webb v The Queen (1994) 181 CLR 41 at 74 per Deane J) between CMDR Mullins and LCDR Hillam gave rise to an apprehension of bias. The plurality in Ebner said of such a contention at [30]:
“In each case, however, the question must be how it is said that the existence of the ‘association’ or ’interest’ might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits. As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies. Similarly, the bare identification of an ‘association’ will not suffice to answer the relevant question. Having a mortgage with a bank, or knowing a party’s lawyer (may and in many cases will) have no logical connection with the disposition of the case on its merits.”
86 The contact between the assistant prosecutor and LCDR Hillam was of a professional nature and minor. CMDR Mullins likely recalled LCDR Hillam because he was the principal actor, as it were, required to attend at the medical centre to collect authorised S8 drugs for his ship. On occasions (but not often, it may be inferred) LCDR Hillam authorised that collection. CMDR Mullins remembered speaking to her in the wardroom at HMAS CAIRNS but there was nothing memorable about their encounters. LCDR Hillam did not recall CMDR Mullins even after seeing him.
87 The appellant complains that the inquiry was not an exhaustive examination and that the separation of LCDR Hillam for questioning was inappropriate; the conclusion that in a small service some contact between members was unremarkable was reached without actual evidence of the size of the Navy; and the reasons for rejecting the application were inadequate.
88 There was no attempt by the appellant below (or on appeal) to identify what it was that might lead LCDR Hillam to decide on the appellant’s guilt or otherwise other than on its legal and factual merits. There was some vague assertion of superiority in command and some assertion that at some time in the course of the proceedings LCDR Hillam might remember something about CMDR Mullins, but what that something might be and how it would affect her decision impermissibly was not identified. Mere knowledge is insufficient. The application, therefore, rightly failed at the threshold.
89 Questioning LCDR Hillam separately from the balance of the panel did not give rise to any prejudice against the appellant. She was not appraised of which party (if either) had raised the matter. The approach to her had initially come through the trial administrator.
90 The Judge Advocate was entitled to make the observation from her own general knowledge that the service was a small one and that individual contact between members unremarkable.
91 In the absence of any clearly articulated and relevant basis for the application to discharge LCDR Hillam the Judge Advocate gave adequate reasons for refusing the application.
92 This ground must fail.
GROUND 7
93 This ground complains that, for a variety of reasons, the learned Judge Advocate erred in giving her directions to the panel on the question of whether or not the complainant’s consent was negated by a fraudulent misrepresentation of fact.
94 The directions which the learned Judge Advocate gave to the panel included that consent is negated “by a fraudulent misrepresentation of any fact made by the other person, or by a third person, to the knowledge of the complainant.” This was clearly wrong; it is the knowledge of the accused which the Judge Advocate meant to convey, not the knowledge of the complainant, but no point is taken in relation to that error, although the error is repeated on a number of occasions (the direction was also inadequate for other reasons, one being that it did not deal with causation).
95 The Judge Advocate directed the panel to the following matters (referring to the prosecutor’s address):
“She was no doubt emotionally dependent on him and in the prosecutor’s submission the relationship he was suggesting that you would infer was one where he effectively groomed her into the position where he was able to perpetrate these things upon her. The prosecutor also submitted to you in addition to the question of abuse of power and authority in relation to the consent he also considered the fraudulent misrepresentation made by the accused.
That is, particularly in relation to this charge. There are indications to the complainant that she gave evidence on repeated occasions that the accused had smacked his daughters like this and that she’d been told that SBLT Clarke and LEUT Cowling had done this and this was how Australians disciplined their children. He said that these were matters she gave evidence on and what appeared to be active in her mind as believing that he was – what was going on was not improper such that consent was obtained to engage in the conduct.
In this regard you’ll recall the evidence of SBLT Clarke the complainant was surprised when she advised her that she had never been smacked by the accused. She said in her evidence, “She told me that she thought it had been happening to me. I think she thought that it was. She tried to rationalise.”
96 Counsel for the appellant sought a redirection from the Judge Advocate on this direction on the question of causation, that is, that the panel should be directed that if there was a fraudulent misrepresentation or abuse of the appellant’s position of authority, the panel needed to be satisfied beyond reasonable doubt that one or other of these factors caused the complainant to consent to the acts of indecency upon her, to the knowledge of the accused. The Judge Advocate redirected the panel accordingly. No submission was made by counsel for the appellant that the prosecution did not advance a case based on a fraudulent misrepresentation of fact. No specific direction was given as to what amounts in law to a fraudulent misrepresentation. No complaint was raised at trial by the appellant’s counsel about that. It is not a matter complained of in this appeal, and no argument has been directed to this issue.
97 What untrue statement of facts can be considered to be fraudulent is not clear. The provision in s 67(1)(g) of the Crimes Act (which applies to this offence as well as a number of other offences including sexual intercourse without consent) was clearly intended to extend fraud beyond the concept as stated by the High Court in Papadimitropoulos v The Queen (1957) 98 CLR 249 at 261, which limited the kinds of fraud which would vitiate consent, namely, fraud as to the indentity of the accused, and fraud as to the true character of the sexual act. Fisse, in Howard’s Criminal Law 5th Edn, at 182, opines that the change to the common law by the Crimes Act and by a similar provision in s 319(2)(a) of the Criminal Code 1913 (WA) was so sweeping that even trivial acts of deceit may amount to fraud. This view of what might amount to fraud has been criticised by academic writers and by some judges see Michael v The State of Western Australia (2008) 183 A Crim R 348 at [61] - [89] per Steytler P; at [359] – [373] per EM Heenan AJA; R v Winchester [2011] QCA 374 at [82] – [84] per Muir JA. Much of the discussion in those cases about what might amount to fraudulent behaviour must be read in the context of different legislative provisions, and particularly as in Queensland and Western Australia, consent is defined to mean ‘consent freely and voluntarily given’, whereas there is no similar definition in the Crimes Act, a difference which some judges believe has changed the notion of the ordinary meaning of consent when it relates to sexual offences. We are not called upon to decide these issues in this case, and they are mentioned only for completeness – although counsel did complain that the Judge Advocate’s directions were flawed because the elements of what needed to be proved to sustain a conviction based on fraudulent misrepresentation were not explained to the panel.
Inconsistent alternatives
98 The first matter raised by the appellant was that the Judge Advocate should have directed the panel that the prosecution had put its case on alternative bases, namely that the complainant did not consent, or, if she did consent, her consent was negated by vitiating factors in s 67(1)(g) and (h) of the Crimes Act. There is no substance to this submission. The issue was whether the prosecution had proved lack of consent by the complainant to the accused’s knowledge. The prosecution was entitled to prove this issue in different ways, and it was not necessary for the panel to be unanimous in how it arrived at its conclusions on these elements: see Michael v The State of Western Australia at [185] – [190]; [281-282]; [370]; R v Walsh (2002) 131 A Crim R 299 (Court of Appeal Victoria). There was nothing mutually inconsistent if some members of the panel arrived at their conclusions by one path, whilst others adopted a different path.
99 Nor was it necessary to obtain a special verdict on whether s 67 was applied: cf Stanton v R (2003) 198 ALR 41 at [26]. There is no statutory authority for a special verdict from the panel, and the sort of case where a special verdict is generally open did not arise in the circumstances of this case because it was unnecessary.
Election
100 It was submitted that the Judge Advocate should have required the prosecutor to elect on the nature of the case he was presenting concerning the issue of consent. There is no substance to this submission. Election is a remedy used where there is duplicity or latent ambiguity: see Johnson v Miller (1937) 59 CLR 467 at 489 per Dixon J (as he then was). In this case, there is neither. The charges in the charge sheet each revealed only one offence, and the facts relied upon to prove each charge proved only one offence.
Fraudulent misrepresentation should not have been left to the panel
101 Counsel for the appellant raised a number of different matters in support of this submission, the main one being that fraudulent misrepresentation was never any part of the prosecution case. The substance of the submission was that such evidence as might have borne on this question was led as “grooming evidence” or relationship evidence, and relied on for that purpose alone, with the result that this was not an issue the defence were required to meet at trial, and hence, should not have been left to the panel.
102 The evidence is that, prior to trial, the prosecutor, in a document headed ‘Prosecution Alleged Matters of Fact,” indicated that at trial the prosecutor intended to rely upon s 67 of the Crimes Act to prove that any consent was vitiated by:
“a. the abuse by LCDR Jones of his position of authority over, or professional and other trust in relation to [the complainant] (s 67 (1) (g)); and/or
b. threats by LCDR Jones to publicly humiliate or disgrace or to physically or mentally harass [the complainant] (s 67 (1) (d)); and/or
c. LCDR Jones making fraudulent misrepresentations as to matter of fact (sic) he knew to be false to [the complainant].”
103 That document then set out at considerable length the evidence upon which the prosecution intended to rely at trial. There is nothing in the document about any evidence which might amount to a fraudulent misrepresentation of fact, and, indeed, no mention is made of how the prosecution intended to put its case on this issue, and evidence concerning the allegations of smacking daughters or others is not even mentioned.
104 The prosecutor, in his opening address, did not specifically open a case based on fraudulent misrepresentation. The way the case was put, so far as s 67 is concerned, was:
“But for the purpose of consent, as it relates to an act of indecency for this charge, consent can be negated. Somebody who is appearing to give consent can be negated. And it’s common sense, when somebody, not this case obviously, consents to some form of sexual activity so threats to inflict violence on a third person are not carried out, that is obviously not real consent. That consent is negated. Under the relevant law that applies in this case, consent can be negated if it is obtained by the abuse of a person of his or position of authority over or professional or other trust in relation to that person, amongst a number of other reasons.
Obviously you will have anticipated that by virtue of his position as head of her department, by virtue of his rank as a lieutenant commander, by virtue of the huge rank disparity between him and her, and other aspects of the evidence that you will hear about that relationship, we will say firstly it’s the prosecution case that there was at no stage any real consent by the complainant to this activity. But if there be some question that perhaps by allowing this conduct to happen the accused was entitled to believe there was consent, you recall I said he has to know she’s not consenting, I would be submitting ultimately that even if you were unsure beyond reasonable doubt whether she was willingly taking part or not in the sense that she has bent over his knee and been smacked, there was not real consent in this case because that consent was obtained by an abuse of this position of authority over. In effect, she’s ordered to do something, she does it. That’s not real consent in our submission. Or that’s our case.”
105 Elsewhere in his opening address, the prosecutor twice referred to consent being negated by abuse of authority, but no case was opened on either threats or fraudulent misrepresentation.
106 It was conceded by BRIG L McDade for the respondent that the evidence concerning smacking his children was led as “grooming evidence,” and relationship evidence.
107 The first mention of the appellant’s daughters was early made in the complainant’s evidence-in-chief, when she was asked whether the appellant ever spoke to her about his own career:
“He told me a little bit how he was vice-president of Telstra company and also how he was working in Woodside and his daughters were – you know, were earning a hundred plus a year and very successful, and they’re just the same age as me.”
When and where this was said is not entirely clear, but it may have occurred at some time prior to the events involved Charge 1 in the appellant’s cabin.
108 As to Charge 1, there was no allegation about spanking his daughters, although there was some reference to the spanking being so that the complainant would know “how to be disciplined the way that Australians were disciplined” and “This is what a father should have done. I’m like a father to you....You’re just like my daughter.” The complainant’s evidence was that she complied because:
“I don’t know. I was scared of him...I didn’t know what I should do.”
109 As to the second incident (Charge 4), there was evidence that the appellant said “This is what Australians do to their children” and she took her pants off when told to do so because the appellant said: “Look at my daughters, they’re so successful.” However, when told to remove her underpants, she did not know what to do. She stood there, the appellant pulled her underpants down to her knees, but nothing further happened because there was an interruption caused by a knock at the door.
110 As to the third incident, Charge 6, the evidence was that the appellant demanded that the complainant remove her DPNVs because she had betrayed his trust by revealing to SBLT M Clarke that he had assisted her to write an e-mail. She said she complied because “I was scared of him and he told me to do it. I didn’t know what to do. He was so upset with me. His face was red and I can see him very angry.” He then grabbed her, got her to bend over his lap, pulled her underwear down and hit her hard about 10 times on the buttocks. It was not alleged that there was any false representation of fact of any kind.
111 As to the fourth incident, Charge 9, this related to an incident when the complainant admitted to driving without a licence. The appellant became very angry, said she deserved a smacking because what she did was very wrong, grabbed her hand and guided her onto his lap. Although there were some comments made about her acting like a child, the complainant was not asked if she consented to being smacked or not. To the extent that absence of consent might be inferred, there was nothing to suggest it had anything to do with a fraudulent misrepresentation of fact.
112 As to the fifth incident, Charge 12, the circumstances as conveyed by the complainant were that when she and the appellant arrived at the complainant’s house, after going out to dinner together, the appellant, for no particular reason apart from, it may be inferred, his own sexual gratification, decided he wanted to smack the complainant on her bottom. The complainant said “No.” The appellant became upset, and said that he would not help her any more. The complainant was “scared”, “didn’t know what to do”, “was beginning to rely on him” “glad of the opportunity to be an Acting Killick,” but there is no mention of any fraudulent misrepresentation. Her evidence was that she maintained that she did not want to do it, told him she had her period so as to avoid having to remove her underpants, but was nevertheless spanked whilst wearing a dress.
113 The sixth and seventh incidents, Charges 15 and 18, resulted in an acquittal.
114 The eighth incident, Charge 20, concerned an occasion when the complainant returned to the ship after a date with a person named Karl. Again there is no mention of anything which could be suggestive of fraudulent misrepresentation. The assault was apparently accepted by the panel as non-consensual, although the basis for this is not clear.
115 The ninth incident, Charge 22, related to an incident after the complainant had returned from leave in the Philippines. The complainant’s evidence was that whilst there, she had told her grandmother what had been going on, and promised her grandmother “it wouldn’t happen again” and she “couldn’t let him anymore.” The appellant told her to remove her clothes in front of him because he wanted to see her naked. The evidence is somewhat vague as to what exactly happened and where, but the high point of the prosecution case was that all that happened was that the appellant patted her on the bottom.
116 No cross-examination was directed towards whether or not there was a fraudulent misrepresentation of fact which induced the complainant to consent.
117 The next piece of evidence came from the witness, SBLT Clarke who was called to give evidence about, amongst other things, what the complainant had revealed to her about the spanking incidents. In the course of this conversation, the complainant told SBLT Clarke that the appellant had told her that, not only had he spanked his daughters, but he had spanked SBLT Clarke as well. When SBLT Clarke told the complainant that this had not happened to her, the effect on her was to cause her to become more distressed and embarrassed. No evidence to this effect was given by the complainant, and it was conceded that the prosecution was taken by surprise when this evidence came out at trial. No cross-examination was directed towards this issue.
118 Evidence was given by LS R Cowling about a number of matters, none of which related to this issue, until on cross-examination, a question was put (which was directed towards a different issue) which led to a further question in re-examination, when the prosecutor asked, (without objection):
“Did she ever ask whether such things had ever happened to you? --- She asked the question to myself and SBLT Clarke if we’d ever been involved or know of any incidents that happened. Both myself and SBLT Clarke discussed something that happened to both of us when we were quite younger...”.
119 This was the extent of her evidence on this topic, and the whole of the evidence potentially relevant to this topic.
120 In the prosecutor’s address to the panel, he referred to the evidence of the suggestion that the appellant told the complainant that he had done this to his daughters, as the “grooming of a vulnerable person to engage in acts of indecency with or without her consent.” Elsewhere he said that the relationship “was one where he effectively groomed her into that position where he was able to perpetrate these things upon her. He was a Lieutenant Commander.” The effect of the address was that in relation to some specific charges, there was simply no consent at all, whilst in relation to others, the complainant’s consent was negated by the abuse of his position as her superior officer. The prosecutor said that having taken the panel through the charges, that in relation to many of them “it’s clear there was no consent and she made it clear to him. And in some of the others she didn’t have any choice, it was orders.” Fraudulent misrepresentation of fact was not mentioned at all.
121 During the course of defence counsel’s address to the panel, he said:
“It seems to have been faintly suggested that [the complainant] consented to this conduct as a result of some kind of fraudulent misrepresentation, and that, it is said, vitiated the consent that she gave. However, it was not, in my respectful submission, altogether clear what the misrepresentation was and, if there was any misrepresentation, how it is said to be fraudulent. In this sense – misrepresentations can be of many kinds, they can be innocent, they can be knowing, they could even be negligent but when it’s suggested that there has been a fraudulent misrepresentation, then, it’s up to my friend to establish [to] the requisite standard of proof that it was a knowingly false (sic) misrepresentation. In my submission, he wouldn’t get close to having you accept that that occurred.”
That was the only reference to that topic in his address.
122 Reference has already been made to the direction which the Judge Advocate gave on this topic, the discussion with counsel for a redirection, and the very brief redirection given. No objection was taken by counsel for the accused that the Judge Advocate should not have directed the panel at all on this topic; nor that such direction was deficient because (1) no instruction was given to the panel as to what amounts in law to a fraudulent misrepresentation and (2) the panel was not directed as to which count or counts that subject might be relevant to, it being left on the basis that it could be considered in relation to each charge, when the evidence of the complainant at its highest related the “daughters” spanking only to Charges 1 and 4. This left the panel in the position that it could be considered in relation to all charges, as if this carried over as something affecting the complainant’s mind even before the first incident. Why defence counsel even raised it at all, and why objection was not taken at the trial is difficult to understand. Prior to the request for a redirection, the Judge Advocate in discussions with counsel as to what directions would be given at no time intimated that it was something that the panel needed to be instructed about; nor was it mentioned in the aide memoire which the Judge Advocate had prepared.
123 To the extent that SBLT Clarke and LS Cowling were permitted to give evidence about an allegation made to them by the complainant suggestive that the appellant had told the complainant that he had smacked both of them, the complainant gave no evidence of this. There was no evidence that this caused the complainant to consent to any of the relevant indecent acts. It was a hearsay account, and although not objected to, it was possibly admissible as evidence of complaint going only to credit under s 68 of the Evidence Act 1995 (Cth) (“the Evidence Act”); but it was not made clear that it was being admitted for all purposes under s 60. Even if admissible under s 60, the appellant was in no position to challenge it, or to cross-examine the complainant about it, except by giving evidence himself. No direction was given to the panel about that aspect of this evidence. Although no complaint is raised in this appeal about this aspect of the direction, at the very least, the panel should have been reminded that the complainant gave no evidence of this, and therefore could not be cross-examined upon it; alternatively, the Judge Advocate could have been asked to limit its use under s 136, but counsel did not do so.
124 Because of the Judge Advocate’s approach to giving her directions in respect of the elements of each charge by referring back to her general directions on consent on each occasion, fraudulent representation was not explored as an element of each charge together with its constituent parts. The directions on fraudulent representation ought not to have been given at all but having embarked upon that course and, with the encouragement and participation of both counsel to embark on further clarifying directions, they were inadequate.
125 The issue, then, is whether, as a consequence, a substantial miscarriage of justice has occurred (s 23(1)(c)).
126 In Darkan v The Queen (2006) 227 CLR 373 Gleeson CJ, Gummow, Heydon and Crennan JJ said at [84]:
“An appellate court invited to consider whether a substantial miscarriage of justice has actually occurred is to proceed in the same way as an appellate court invited to decide whether a jury verdict should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence.”
127 Their Honours referred to the statement of principle in Weiss v The Queen (2005) 224 CLR 300 at 316 [41]. The Court in that case said:
“But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials … and that the standard of proof is beyond reasonable doubt.” (at 317 [43]).
128 The Court considered it important that the appellate court reflect whether a substantial miscarriage of justice had actually occurred at 317 [44]:
“No single universally applicable description of what constitutes ‘no substantial miscarriage of justice’ can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.” (emphasis in original)
129 The Court in Weiss referred to Wilde v The Queen (1988) 164 CLR 365 particularly at 373 where Brennan, Dawson and Toohey JJ referred to the phrase employed by Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514 that:
“[I]t cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost ‘a chance which was fairly open to him of being acquitted’ …”
and
“Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused …” (at 371-372).
130 Their Honours further concluded that, even if the prosecution case were strong and a reasonable jury would inevitably have convicted, if the proceeding is ‘fundamentally flawed’ in a way which went to the root of the proceedings, then the accused person did not have a proper trial and, therefore, there has been a substantial miscarriage of justice.
131 It is highly unlikely that any member of the panel reasoned to guilt on the basis that the complainant’s consent was vitiated by “the fraudulent representation” of the appellant that he had similarly disciplined his daughters to their benefit (or SBLT Clarke or LS Cowling). There was no evidence to that effect from the complainant. In a thorough and lengthy cross-examination, any “lurking” inference to that effect was never put. As the review of the opening by the prosecutor, the evidence and the closing addresses demonstrates, this basis for negativing consent did not, in truth, get an airing.
132 The error in directions (or absence of a complete direction) in the circumstance of this case, was not such a departure from the essential requirements of the law that it went to the root of the proceedings. As the review of the evidence under each of the several grounds demonstrates, this was a very strong prosecution case. The charges upon which the appellant was acquitted did not involve issues of consent. Had that been the case then the prejudicial conduct charges would likely have been upheld. They were clearly incidents about which the panel had a doubt. The appellant has not demonstrated that a substantial miscarriage of justice occurred by reason of the irregularity in the proceedings.
133 This ground is not made out.
GROUND 8
134 The appellant contends that the convictions are unreasonable because they are inconsistent with the acquittals. The appellant was found guilty of Charges 1, 4, 6, 9, 12, 20 and 22 and not guilty with respect to Charges 15, 16, 17, 18 and 19. The appellant contends that the verdicts of acquittal manifest a rejection of the complainant’s credibility and could not be reconciled with the acceptance of her evidence in relation to the counts on which the appellant was found guilty. At the heart of the appellant’s submission is the contention that this case falls within that “residue of cases”:
“…where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty.”
See: MacKenzie v The Queen (1996) 190 CLR 348 at 368 (per Gaudron, Gummow and Kirby JJ).
135 As the plurality observed in MacKenzie (at 368), “it all depends upon the facts of the case”. However, before embarking upon that analysis some propositions may be stated. In MacKenzie the plurality said (at 367):
“Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries.”
136 Their Honours described as “practical and sensible” the remarks of King CJ, with whom Olsson and O’Loughlin JJ concurred, in R v Kirkman (1987) 44 SASR 591 at 593:
“[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.” [at 367-8].
137 Sometimes different verdicts may be explicable on the basis that a complainant’s evidence was supported in respect of some charges but not others. It is important to acknowledge that a verdict of acquittal on some counts does not amount to a positive finding that the events as recounted by the complainant did not occur. Such a verdict shows no more than that the jury was not satisfied to the requisite standard that the acts alleged in those counts occurred or occurred at the time or in the circumstances particularised in them: R v SBL [2009] QCA 130 (per Applegarth J) at [32].
138 In Jones v The Queen (1997) 191 CLR 439 a decision relied on by the appellant, the High Court considered a submission of unreasonable verdicts of guilty because of inconsistency with verdicts of acquittal in a broader analysis of the test to be applied by an appellate court for determining whether a verdict is unsafe or unsatisfactory. The plurality settled that the test formulated by the majority in M v The Queen (1994) 181 CLR 487 at 492 was to be applied. That test was endorsed by all the judges in MFA v The Queen (2002) 213 CLR 606, and more recently in SKA v The Queen (2011) 243 CLR 400.
139 The facts in Jones are germane to this ground of appeal: the jury convicted the accused of two charges (1 and 3) of sexual intercourse with a female child and acquitted him on the second charge. The child made no allegations until four years after the first act. On her evidence the offending occurred when there were no other persons present. Since the quality of the complainant’s evidence on the charge on which the accused was acquitted was no better or worse than on the other two on which he was convicted, and there was nothing in the surrounding circumstances to suggest her evidence was more reliable on Charges 1 and 3, the High Court set aside the convictions on the basis that they were unsafe and unsatisfactory.
140 In R v KET [1998] VSCA 73 Winneke P observed at [29]:
“…[I]t would be wrong to draw from the decision of Jones’ case the general proposition that, in cases where multiple sexual offences are alleged involving the one complainant, the jury’s acquittal on some of those counts should compel an appellate court to conclude that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was impacted upon in respect of the counts upon which they had convicted.”
141 Wood CJ at CL approving those observations in KET stated in R v Markuleski (2001) 52 NSWLR 81 at 130-131 [234]-[235]:
“There may well be cases where the fact of acquittal on one or more counts will support an argument that the jury looked with real disfavour upon the credibility of the complainant or central witness … In many cases, conversely, it will be possible to identify a possible basis for a differentiation between verdicts …”
142 A particular case may compel the conclusion that a jury which found that it had a reasonable doubt with respect to a complainant’s evidence on one charge ought to have had such a doubt with respect to the other charges. But, as the observations above demonstrate, whether a not guilty verdict involves a diminution in the complainant’s credibility or reliability so that the jury ought to have had a reasonable doubt with respect to other charges depends on the quality of the complainant’s evidence and the surrounding circumstances. As was pointed out by the plurality in Jones, the issue remains one of fact and degree in the circumstances of the particular case as to whether the difference in verdicts is such that, as a matter of logic and reasonableness, they should be regarded as inconsistent.
143 There may be an acceptable explanation for divergent verdicts in a case in which there is not “an integral connection between the counts” R v Markuleski at [239] or where there are circumstances present which do not compel the conclusion that the complainant’s overall credibility was so diminished that the jury should have acquitted on the other charges. The essential issue is whether the acquittal so affects the credibility or reliability of the complainant that, in combination with all the other relevant factors, it was unreasonable of the jury to convict on the other charges.
144 Accordingly, when the evidence against an accused, particularly in a sexual case, is the word of the complainant, and the jury convicts on one or more charges and acquits on one or more, the evidence must be scrutinised with some care.
145 The appellant admitted the conduct in respect of Charges 1, 6 and 22. With respect to the admitted conduct, the central issue was consent, and indecency in the case of Charge 22. The complainant was challenged that the other charged conduct did not occur. The evidence in respect of the charges is as follows:
146 Charge 1: During HMAS SIRIUS’ transit from Fleet Base West to Sydney between 1-7 February 2010 the appellant smacked the complainant’s buttocks approximately 10 times with an open hand. This was the first occasion any impugned conduct occurred. It was admitted by the appellant. The complainant described it in some detail:
“He called me to his cabin and he closed the door and he put that black smoke curtain – and then he said to me, ‘I finally figured out what’s the best way to deal with you,’ to punish me, so that I don’t get out of line, so I have some boundaries, so I know how to be disciplined the way that Australians were disciplined, and at first I didn’t know what he was doing. I was just sitting there in a chair and he was sitting in his chair …”
147 The complainant described what she was wearing and that the appellant required her to stand and sit a few times to test if she were obeying. Her evidence proceeded:
“First he said to me that ‘I respect you. Do you trust me? Are you comfortable with me?’ Got me to look in his eyes. Got me – saying, ‘Do you respect me? I just want what’s best for you. This is what a father should have done. I’m like a father to you. Everyone in the supply department respect [sic] me. You’re just like my daughter.’ He said to me this is for my own benefit, that he should – he should smack me … He reached over and – I leant back, I wasn’t sure what he was – he was going to do, and he just grabbed my hand, my right hand, and then he led me to – to lie on his lap … He was sitting on his chair … I was sitting on the chair close to the – to the window … [a]nd then he sat there in his corner and then got me to lie on his lap … [a]nd I wasn’t sure what I should do and he said to me, ‘Do you think you deserve to be smacked? Do you think you’ve been naughty? This is what I’m going to say to you,’ and he said he was going to give me 10 smacks and he made me said, ‘I’ve been a naughty girl. I want you to smack me – spank me.’”
148 The complainant agreed to do so and she spoke those words. As he spanked her he wanted her to say, “I deserve to be smacked” ten times and she repeated those words. The complainant said she agreed with the appellant’s demand because she was scared.
149 Charge 4: The conduct constituting this charge was alleged to have occurred during HMAS SIRIUS’ transit to Sydney between 1-14 February 2010 about a week after the conduct, the subject of Charge 1. The complainant gave evidence of being called to the appellant’s cabin. She was wearing her bum bag and had her radio. She went inside and sat on a chair. The appellant asked her if she had been “naughty today”. She responded that she was young and made mistakes:
“He got me to stand up and he – before that he tried to take the buckle off my bum bag – and told me to take that off and he reached over and take that off, so I stood up and put it on his bed, and he told me to take my pants off. … He said to me that ‘This what Australians do to their children’.”
150 She said she complied because he said that his daughters were so successful. She took off her pants and he asked her to take off her underwear. She did not do so:
“He was looking at me and then pulled my underwear down to my knees … and then suddenly there was a knock on the door and then he went ‘Shush’ … [i]t was LEUT Lamberth; he opened it and he got - and I quickly put my pants on and then he told me that ‘This is just our secret stuff and it must remain between us’.”
151 The complainant was on duty and there was a muster immediately after.
152 LEUT W Lamberth could recall only one occasion when he attended the appellant’s cabin and found the complainant there. He had paperwork that needed to be signed by the appellant. He knocked on the door which was not locked, was told to enter and saw the complainant, whom he described as appearing distressed and upset, and the appellant as looking angry, “frustrated would probably be the word”. He elaborated in cross-examination that it was the appellant’s short tone and manner of speaking to him that led him to that characterisation.
153 Charge 6: The complainant met a man named Karl after HMAS SIRIUS berthed in Sydney in February 2010. They commenced a romantic attachment which she discussed with the appellant. The appellant helped her to write affectionate emails to him. She mentioned this assistance to SBLT Clarke who was the assistant supply officer. SBLT Clarke gave evidence (by then she was LT Clarke) confirming that the complainant showed her the emails which had been drafted by the appellant and she then raised the matter with the appellant.
154 The complainant was called into the appellant’s cabin after he had spoken with SBLT Clarke. He shut and locked the door and asked why she had betrayed his trust, adding that she could get him into trouble through helping her write the email. He was upset and asked her “Do you think you deserve a smack?” The appellant told her to remove the bottom part of her uniform. She did not wish to do so:
“I was scared of him and he told me to do it. I didn’t know what to do. He was so upset with me. His face was red and I can see him very angry … He grabbed me and then got me to bend over and then while I was bending on his lap he took my underwear off … [W]hen I was lying on his lap he pulled my underwear and hit me. It was hard … He wants me to say ‘I’ve been a naughty girl. JJ, smack me’ … he always wants me to call him JJ … I did. I repeated it.”
155 The appellant asked her how many times she should be smacked; she said five but he smacked her more than that. The complainant said the appellant was “really, really upset”:
“It was about 10 times or more, and he wanted to get my bottom red … he said … ‘I want to get your bottom nice red and pink’. He even described it. ‘Now it’s turning pink. Now it’s red.’”
156 The complainant said that made her feel “gross”. After he finished smacking her he asked if she were “okay”. She said she was and left and apologised to the appellant saying that she was sorry.
157 That conduct was admitted.
158 Charge 9: The conduct constituting this charge allegedly occurred at the complainant’s residence in Western Australia between 26 and 30 March 2010 after HMAS SIRIUS had returned to Perth. The complainant won an award in the supply department, the prize for which was a bottle of wine or dinner with the appellant. The complainant chose dinner with the appellant because, she explained, he expected her to, on either a Friday or Saturday night at a named restaurant which was also attended by SBLT Clarke and some of her friends. SBLT Clarke confirmed that she saw them in April 2010 at a (differently named) restaurant in the same suburb. She was celebrating with her boyfriend and some friends. SBLT Clarke challenged the appellant the following week at work asking what it was about. He explained that the complainant was having a bad time and he needed to take her out.
159 The complainant had had other dinners alone with the appellant and he had attended at her residence on other occasions.
160 After dinner the appellant drove her home. He saw the complainant’s car and the complainant told him that she had been driving without a licence. She thought that the appellant may know of it because it was known in the wardroom that she did not have a licence. For that reason she “confessed”. She told him that she did so because she thought that if she were truthful he would not hit her. The appellant was upset and asked her if she deserved a smacking to which she responded that she did not because she had confessed.
161 They were sitting on a couch and he got her to take off her sandshoes and laid her across his lap, feeling her bottom. The complainant was wearing a black dress and stockings. The appellant tried to remove the stockings but they were stuck at her knees. He instructed her to take them off. After she took her stockings off she said she did not wish to go back on his lap. She was still wearing underwear. He told her that it was for her own good and that she was acting like a 12 year old school girl. He grabbed her wrist and put a pillow on his lap. He lifted her skirt and took off her underwear and spread her legs open. He told the complainant that she would be on her own and he would not help her any more if she did not allow this to happen. She was hit hard many times. After he finished he asked her if she were “okay” and said that he had done this for her own good.
162 Charge 12: The conduct alleged in respect of this charge was that between 26 and 30 March 2010 at the complainant’s residence in Western Australia he pulled her across his lap and smacked her buttocks several times with an open hand. The complainant identified this in her evidence-in-chief as occurring in about “May-ish”, after she and the appellant had had dinner at a named Chinese restaurant close to where she lived. They spoke of her being promoted to acting leading seaman because the ship was going on deployment to Hawaii. He spoke of what a good job the complainant had been doing and how much she had improved, especially after the administration of discipline.
163 When they arrived at her residence and went inside the appellant said he wanted to smack her on her bottom but she refused. He was very upset. She described saliva coming out of his mouth. He threatened that she would be on her own and he would not help her any more. She said:
“I got so scared, I didn’t know what to do; I was beginning to rely on him. I was seeking his advice about everything, just about everything, and I was so glad that I was given the opportunity to be an acting kellick. I didn’t know what to do, but he cornered me. He was on my face … He was so angry. He grabbed me on my wrist and I still felt his hand on my forearm … I was pushed into a corner … I said to him ‘I don’t want to do it.’ He got even more upset.”
164 The appellant told her that it was for her own good. She asked for guidance from him by just talking to her and asked whether it was necessary “to do that thing to me”. The complainant went to the toilet and put in a napkin and told the appellant that she was having her period. He still made her lie on his lap and felt for the napkin. He required the complainant to say, “JJ, I’ve been naughty. I want you to smack me.” The appellant smacked her a few times. He asked whether she was okay afterwards, as he did on each occasion.
165 Although the complainant, when challenged, could not offer a narrower range of dates than 60 days, she did give the incident context.
166 Charge 15: This was a charge in respect of which a not guilty verdict was returned together with not guilty verdicts on the alternative Charges 16 and 17. The timing was identified as being between 4 and 8 April 2010 on board HMAS SIRIUS while the vessel was alongside Fleet Base West shortly before the appellant left HMAS SIRIUS to go to the United States. In response to the question, “Did anything happen shortly before he left?” the complainant said:
“Yes, he called me up to his cabin. He closed the door. He got me to bend over. He was sitting on his desk and he hit me and he said to me, ‘I should take your pants off, but I won’t. I’m doing this so you don’t cross the line and you behave.’”
167 The complainant said that he hit her “[j]ust to remind me not to misbehave, so I wouldn’t go out of line”. There was no other evidence about this charge.
168 Charge 18: The conduct constituting this charge of which the appellant was found not guilty (as well as Charge 19) allegedly occurred between 1 and 30 June 2010 when HMAS SIRIUS was alongside in Melbourne. The complainant had arranged to visit her friend Karl in Sydney. In evidence-in-chief the complainant said that at about midnight the appellant called her into his cabin and told her to take her jeans off. She was wearing lacy black underwear. The appellant was looking at her salaciously. In response to the prosecutor’s question, could she not say “no”, the complainant answered that she had no choice and also that she did not say “no” because she was excited to tell the appellant about her date with Karl. The course of her evidence then meandered off to a statement by the complainant about her sick grandmother and her unsuccessful attempt to get leave of absence from the ship to visit her in the Philippines.
169 The evidence in respect of Charge 18 needs to be considered with the evidence in respect of Charge 20, for which the appellant was found guilty.
170 Charge 20: This charge was alleged to have occurred between 1 and 30 June 2010 while HMAS SIRIUS was in Melbourne. The appellant had signed the complainant’s leave application so that she could visit Karl. While the complainant was in the appellant’s cabin wearing civilian clothes including a purple top, he told her to take her top off. She said she was not sure if she wanted to take it off but the appellant came “really close”, helping her to get it off “until I had to take it”. She said she was wearing a bra and covered her breasts with her hands:
“He got hold of my hand and he was looking in my eyes and said, ‘I only do it so you can trust men. I’m not your father. I’m here as a person without any interest in you. I’m just here to help you. I’m not abusing you or anything like that’. So I can trust men.”
171 The appellant said she was a good girl and he did it to see if she were obedient. He then signed her leave.
172 In the iPhone recording the complainant said, “You … got me to take my top off”. The appellant responded, “Because, I think the top, if I remember right, as soon as you took it off I said, ‘Right, now put it back on’.”
173 In cross-examination the complainant was challenged that the sequence of these two incidents (pulling down her pants and showing her lacy underwear and taking off her top to show her bra) were reversed in evidence-in-chief to their order in her first statement to investigators. She responded that her mind was “jumbled” and became defensive/aggressive in her answers. She said that she remembered the two events clearly but conceded that she may have got the dates wrong. More tellingly, in her statement, the complainant had expressly said that the appellant did not touch her when he told her to pull down her trousers to expose her lacy underwear, whereas in her evidence-in-chief she said, “He kept smacking me and feeling my bottom”.
174 Also, she agreed that when she was complaining about her treatment at the hands of the appellant to her colleagues she did not mention this incident. Neither did she mention it to the investigators in her first interview.
175 On the other hand, although she agreed in cross-examination that she did not tell LS D J Price in March 2010 or SBLT Clarke nor LS Cowling or AB A L Ferrell in November 2010 of the bra incident, it was not put to her that she had not mentioned this incident to WO P A Chaplin, one of the investigators.
176 Charge 22: The conduct constituting this charge allegedly occurred between 27 September and 20 October 2010 when HMAS SIRIUS was alongside Fleet Base West. This occurred after the complainant had been to the Philippines where her grandmother (with whom she was very close) had died. It was a Sunday and the complainant had come to the ship to pick up her things. She described the civilian clothes being worn by the appellant. She had driven to the gangway and while ferrying her goods to and from the car she spoke to the appellant. He offered to assist. The appellant asked the complainant for a lift to the wardroom where he was then staying.
177 The appellant challenged the complainant for driving unlicensed and told her it was a bad thing to do. When she parked the car he told her to follow him into the wardroom. He said that she had been “naughty” driving and that she should be punished. The complainant told the appellant:
“No, because I promised my mum – my grandma that I wouldn’t do it anymore, I promised it silently on her grave.”
178 Just before she departed the appellant hugged her and
“he tapped me on my bottom, he was like going that on my bum. He said ‘Next time, when you’re ready - I’ll let you go off this time because your grandmother died and you’re so emotional, but I’m afraid that you might have gone backwards’ since I’m coming from the Philippines.”
She did not agree in cross-examination that the conduct was a friendly tap.
179 The appellant admitted to this conduct but challenged its characterisation as indecent as well as the complainant’s consent.
Discussion
180 In her summing up the Judge Advocate emphasised:
“… the prosecution has brought 24 charges against the accused. He has pleaded guilty to the 24th charge and that charge has been put aside while you consider the evidence in relation to the other 23 charges, or nine separate incidents. While these are separate matters, they’re all being dealt with in one trial. This is done for convenience, as it would be expensive and time-consuming to hold a separate trial before a different court martial panel for each charge. However, you must be careful not to allow convenience to override justice. Both the prosecution and the accused are entitled to have each charge considered separately.
Each charge must be considered separately in light only of the evidence which applies to it and which in due course I’ll refer you to. You must ask yourselves in relation to each charge whether the evidence relating to that charge has satisfied you beyond reasonable doubt that the accused is guilty of that particular offence.
It would therefore be wrong to say that, simply because you have found the accused guilty following his plea of guilty to the 24th charge that he must be guilty of the other charges. Furthermore, because the accused has admitted the conduct that may amount to prejudicial conduct in relation to the first, third and ninth incidents, it does not mean that you should rationalise that he may be guilty of the other offences or the more serious offences in relation to each of those three incidents.”
181 The Judge Advocate said that the complainant’s evidence should be scrutinised carefully in respect of each charge.
182 The panel could well have had a reasonable doubt about whether Charge 15, the sixth incident, together with the alternative Charges 16 and 17 (spanking before proceeding to Hawaii) occurred.
183 The context of that conduct was inconsistent with other conduct in which the appellant disciplined the complainant only for past “wrongdoing” – “I deserve to be smacked”. The evidence of the complainant in respect of this charge was bereft of the minute detail which gave colour to her evidence about the other charges on which the appellant was found guilty. Neither was there any other evidence to add to her bare statement.
184 Charge 18 (and the alternative Charge 19), the seventh incident, was plagued with a muddled account by the complainant about whether the direction to show her lacy underwear after pulling down her pants occurred on the same day as the occasion on which she raised her top (Charge 20).
185 There was more than one visit to Karl while alongside in Melbourne. There was also the inconsistency with her statement that the appellant had not touched her on that occasion and her evidence-in-chief that he had, and the complainant’s failure to mention that conduct. The verdict of acquittal on the alternative Charge 19 of prejudicial conduct makes clear that the doubt held by the panel was about the fact of the occasion rather than any issue of consent.
186 On the other hand, the evidence in respect of the eighth incident, Charge 20 (alternative Charge 21), was consistent and had some support in the iPhone conversation.
187 There are, accordingly, cogent and acceptable explanations for the verdicts of acquittal which do not compel the conclusion that the verdicts of guilty are unreasonable.
188 The appellant contends that the complainant was neither a credible nor reliable witness and her evidence ought to have been rejected. The complainant gave evidence over several days. She was seen (as recorded in the transcript) to be distressed on many occasions. She was also seen to be aggressive and sometimes rude to defence counsel and non-responsive to questioning. That she was not comfortable with the trial process and revisiting the evidence about the charges more than once was apparent. She said she was not well educated and that English was her second language. She asked to have less complex language used from time to time. It is often forgotten by counsel that some rather unusual expressions are employed by them when questioning witnesses. One example will suffice:
“DEFENDING OFFICER: You say that you were – when you were asked by my friend ---? --- Who’s your friend?”
189 Overall, the complainant’s evidence was consistent, and materially so, with her initial statement to investigators and between her evidence-in-chief and cross-examination.
190 The complainant’s credibility or reliability was for the panel to evaluate with the benefit of extensive submissions from the defending officer about how suspect that credibility was together with the Judge Advocate’s exhortation to evaluate her evidence carefully. There is no reason for doubting that the panel adhered to their task faithfully and the verdicts are neither inconsistent nor unreasonable.
191 In addition to rejecting the appellant’s contention that the verdicts of guilty are unreasonable because they are inconsistent with the verdicts of acquittal, there are other reasons for concluding that the verdicts of guilt are not unreasonable: see M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606; and SKA v The Queen (2011) 243 CLR 400.
192 While no adverse inference may be drawn against an accused for failure to give or call evidence, that failure did mean that the only evidence for the panel to consider was that led by the prosecution. Any doubt may thus be more readily discounted in that circumstance: Azzopardi v The Queen (2001) 205 CLR 50; Bridge v The Queen (1964) 118 CLR 600.
193 It was of significance that the defence admitted the conduct constituting Charges 1 and 6 (the conduct the subject of Charge 22 was admitted but, as we find below, the trier of fact could not be satisfied to the requisite standard that it was indecent).
194 The iPhone recorded conversation supported the claimant’s evidence that incidents other than those admitted occurred. Some exchanges will suffice:
“[AB] Well I’m trying to comprehend like whether – like you helping me was that like necessary to have me like, you know, to pull my pants down and get me butt naked and say like, like that word, “naughty” … type of thing and whether that was like – I don’t know. But I was just really – I’m starting to feel like that was really awkward.
[Appellant] Yes, I understand that, mate. Look, it was awkward but did you misbehave? Yes. Did you benefit from it? You may say no but I thought you were a better person in the end and I understand that it was awkward for you but you were a girl that lacked discipline. You had no boundaries. You didn’t know where to settle yourself. And I think you’re a far better person now.
[AB] Do you think so? Because I got – because you hit me on your knee naked.
[Appellant] No, no. Not entirely.
[AB] Like butt naked.
[Appellant] It’s always hard to say isn’t it? Yes, look, I don’t know. There were times when I thought you acted such – so immature and so childish that that was one way in which to focus you to say hey, listen yes I really have been a bit silly here, I can do better and I can be smarter in the way I go about things. That was where my thinking was.”
195 Again, at a later point in the conversation:
“[AB] Yeah, it’s just – I’m just starting to, you know, just feel weird with the whole, you know, taking my underwear off and laying there naked type of thing.
[Appellant] Yes, but remember I asked you at the time, I said, ‘Do you feel you’re being – you’ve misbehaved’ and every occasion you said, ‘Yes, I have’.”
196 And still later:
“[Appellant] … You were a naughty young girl. You weren’t 24. You’ve been acting like a 13-18 year old, okay? And a smacked bottom never hurt anybody. In fact, there’s a very famous saying in the English language – “Spare the rod and spoil [t]he child”. When they’re out of line, seriously out of line, let them know. Now, on nearly – just about every occasion I asked you if I started, I said, ‘Do you think you deserve this?’ and you said you did and mostly you’ve been brilliant every since.”
197 The appellant gave a recorded interview on 7 December 2010 which was played to the Court in which he generally denied any inappropriate conduct with the complainant. He specifically denied the conduct which constituted the first, third and ninth incidents which, through his defending officer, he subsequently admitted had occurred. The appellant described the allegations to the investigators as a figment of the complainant’s imagination. When the interviewers played to the appellant the iPhone recorded conversation the appellant maintained that what was important was the conversation immediately before the recording commenced:
“Five minutes before that she had basically said that ‘I’m going to say that you punished me because my resignation is not happening as quickly as I can and that might help me get out quickly. I’ve got a good rapport with the psychologist and this will help me’. And so I said, ‘Okay. This is you fantasising again. Don’t do it. You’re going to cause trouble.”
198 In his closing address the defending officer accepted that lies were told by the appellant but contended that it was due to panic rather than any consciousness of guilt. This was because he had engaged not only in reprehensible conduct as a member of the Australian Defence Force, but also without morality as a married man with daughters. The defending officer suggested that it could be inferred that the complainant was turning around their relationship for her own advantage and to his detriment.
199 Notwithstanding those submissions, the lies told by the appellant did support a consciousness of guilt that the charged conduct did occur.
200 The iPhone recorded conversation was relevant to and supported the want of consent and abuse of authority.
201 The thrust of the defence case was that the complainant was manipulating the appellant to further her own career prospects both in the Navy and in smoothing her transition from the Navy into an advantageous position in the private sector. The evidence, however, also supported the inference that the appellant manipulated the complainant who experienced difficulties in fitting in in the ship’s company by lending her a sympathetic ear with respect to her personal problems. He gave her other personal assistance well beyond that which a superior in their respective positions would do without some other motive.
202 It was put to the complainant that she had received training about dealing with abuse of authority and how to make a complaint and there was delay in complaining in that she did not do so until after she had returned from her visit home to her family in the Philippines. It was suggested to her that she only complained after the appellant was posted elsewhere and could no longer be of use to her. However, the delay was also consistent with the complainant no longer being under the appellant’s control.
203 There was also the evidence of the material found on the service computer assigned to the appellant which he had attempted to destroy. It showed that he had an interest in pornographic images which involved smacking on the buttocks for sexual gratification. This pointed to a strong motive for him to engage in the conduct about which there was complaint.
204 On a review of the whole of the evidence we do not entertain any reasonable doubt that it was open to the panel to conclude to the requisite standard that the appellant was guilty of the offences with which he was charged and found guilty.
205 This ground must be rejected.
GROUND 9
206 Under this ground the appellant contends that his conviction under Charge 22 was unreasonable and/or could not be supported by the evidence.
207 The details of this charge and the complainant’s evidence relating to it have been set out in dealing with ground 8 (above at [176] – [179]).
208 In his address to the Court the prosecutor said little about Charge 22. What he did say was that:
“If it was a stand-alone charge without anything else, I concede you would have perhaps some difficulty in reconciling was that an indecent act, was it perhaps unacceptable behaviour, but does it get to a level of a sexual offence. He’s admitted that conduct.”
209 In our view the complainant’s evidence does not support the prosecution case that the appellant committed an offence under s 60(1) of the Crimes Act. The evidence supports the appellant’s claim that all that he did was to offer comfort to the complainant by hugging her and, in doing so, placed his hand on her buttocks. Noticeably absent was any conduct that could support the prosecution claim that any indecency attended the appellant’s action.
210 This ground should be upheld. The conviction on Charge 22 should be quashed.
211 Charge 23 was laid as an alternative to Charge 22. It alleged that, by reason of the same conduct, the appellant had acted in a manner likely to prejudice the discipline of HMAS SIRIUS contrary to s 60 of the DFDA. Because of its finding that the appellant was guilty of Charge 22, the panel did not proceed to deal with Charge 23. On the hearing of the appeal the appellant conceded that it would have been open to the panel to return a verdict of guilty on Charge 23. He invited the Tribunal to make such a finding rather than to order a re-trial.
212 The Tribunal considers that the evidence does support Charge 23 and that the appropriate course is to record a conviction on that charge and to sentence the appellant on that charge to a severe reprimand.
GROUND 10
213 This ground arises from the admission into evidence of the iPhone recording of the conversation between the appellant and the complainant.
214 On or about 8 November 2010 the appellant and the complainant were travelling in her car between HMAS STIRLING and the complainant’s home at Rockingham. Unbeknown to the appellant the complainant had activated a recording device in her mobile telephone. It recorded what passed between them during the journey. The complainant said that she had recorded the conversation so that she would have proof that the appellant had misconducted himself towards her.
215 The prosecution proposed to tender the recording and rely on it at trial. The appellant objected and a pre-trial hearing was convened to determine whether the recording was admissible. The Judge Advocate ruled that the evidence was admissible and it was played to the Court.
216 The complainant provided the recorded conversation to service police.
217 The Judge Advocate found that, in covertly recording the conversation, the complainant had contravened s 5(1) of the Surveillance Devices Act 1998 (WA). She nonetheless ruled that the recording was admissible pursuant to s 138 of the Evidence Act.
218 Section 138 relevantly provides:
“(1) Evidence that was obtained:
(a) improperly or in contravention of an Australia 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) …
(3) Without limiting the matters that the court may take into account under sub-section (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 … 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 Australia law.”
219 The Judge Advocate directed herself that it was for the prosecution to satisfy her that the desirability of admitting the recorded conversation outweighed the undesirability of admitting it having regard to the manner in which it was obtained.
220 The Judge Advocate had regard to all of the matters identified in s 138(3) of the Evidence Act. She found that:
(a) The complainant’s purpose in making the recording was to provide some credibility to the allegations which she had made to some of her friends concerning the appellant’s conduct towards her;
(b) The contents of the recording were highly probative because admissions made by the appellant were corroborative of the complainant’s account of his conduct;
(c) The allegations against the appellant were “very serious”, particularly in a service context given the alleged abuse of authority and power;
(d) The recording had not been made by a third party;
(e) The complainant was a principal party to the recorded conversation;
(f) The complainant had undertaken the recording on her own initiative and was not acting as the agent of another;
(g) The complainant was subordinate in rank to the appellant and was much younger than him;
(h) Whilst the impropriety breached the appellant’s privacy, it occurred in circumstances where the complainant felt that her allegations were so bizarre that she would never be believed unless she had some corroborative evidence;
(i) The impropriety was not deliberate given that the complainant had no idea or knowledge that what she was doing was unlawful;
(j) The recording may have infringed the appellant’s rights under the International Covenant on Civil and Political Rights (“the ICCPR”) and, in particular, his right to silence; and
(k) The evidence obtained was highly probative and of great importance in the proceeding and may not have been obtained by other means.
221 Having regard to all of these matters the Judge Advocate determined to exercise her discretion by admitting the recording in evidence.
222 The appellant submitted that, in doing so, she erred. He contended that, for various reasons, the Judge Advocate was not entitled to rely on most of these considerations in exercising her discretion. He objected that, for the most part, the considerations to which the Judge Advocate referred “consisted of bare conclusions, based in substantial measure upon acceptance of the complainant’s credibility, without reasoned analysis.” As a result the conclusions were, it was said, irrelevant considerations which were erroneously taken into account. The appellant also complained that, in some instances, the Judge Advocate had had regard to irrelevant considerations.
223 Considerations (a) and (h). The Judge Advocate found that the complainant had made the covert recording so that she would be able to support her allegations which had been received with some scepticism by the few people to whom she had earlier made them. She feared that the allegations would be disbelieved by others to whom they might be made. These findings were based on evidence which had been given by the complainant on the voir dire. The appellant submitted that this evidence amounted to a recent invention and that the complainant’s real purpose was to gather proof which could be used against him.
224 The complainant gave evidence that, in early November 2010, she had told four other members of the ship’s company about the appellant’s misconduct towards her. She said that she was concerned that they would not believe her. She held this belief because “he’s an officer … I’m just nobody” and because the appellant had told her that no one would believe her: he was a universally popular officer and he had “friends in high places.” She said that her’s was a “bizarre story” and that she needed the recording so that people would believe her.
225 The alleged recent invention only related to the statements attributed to the appellant to the effect that no one would believe the complainant were she to make allegations against him. It was put to her in cross-examination that she had made four witness statements and that, in none of them, had she referred to the making of any such statement by the appellant. She gave unresponsive answers. It was put to her that the reason that she had not made any mention of any such remarks being made by the appellant was that they had not been made. When it was put to her that no such conversation had occurred she responded:
“Of course it did. I had so many conversations with him. Many hours in his cabin about those things. He said to me, ‘Keep it a secret.’”
226 The Judge Advocate was entitled to accept and act on the complainant’s evidence for the purpose of ruling on the admissibility of the covert recording. She would have been entitled to accept the complainant’s evidence about making the recording to bolster her credibility with the other members of the ship’s company even if the Judge Advocate had found that the appellant had not told her that any allegations would not be believed.
227 Considerations (b) and (k). The appellant challenged the Judge Advocate’s view that the contents of the sound recording provided “highly probative” evidence of the commission of the offences. The appellant characterised the contents of the recording as being “not of great importance.”
228 The transcript of the sound recording covers almost 19 A4 pages. It is not necessary to set out large parts of it. Some examples have already been given: see above at [194] – [196]. To these may be added some further passages which also demonstrate that the appellant readily acknowledged much of the conduct which was alleged against him. He told the complainant that he had taken her “under my wing and give[n] you a bit of guidance and a bit of discipline.”
229 Later in the conversation the appellant said:
“Well what I was trying to do was to show you that by working with me and by me not abusing you there – you could see ‘Well there are some people who actually respect me for who I am and it’s trying to build up my confidence and if I misbehave he’s going to smack my backside but he cares about me. And he’s trying to help me all the way along.’ That’s where I was trying to get to. And if I crossed the line I apologise. There was never any intent there. It was all about trying to make you a better person and if I’ve caused you any anxiety and worries then I apologise profusely.”
Shortly afterwards, he continued:
“It wasn’t so much that I wanted you naked, mate. It was more of a test to see how obedient and compliant you were going to be. It was all about you doing exactly as you were told. The moment you did that that – things were fine because I had the feeling early on that even, without you knowing it, you were very undisciplined, ill-disciplined and you did the wrong thing without you even knowing you were doing the wrong thing and what I tried to do was put some structure around that, some boundaries around it and that’s what I was trying to do and certainly kids in Australia when they grow up that’s – that’s how they’re taught. Very early on, there’s the boundaries you work within and they grow up knowing that.”
230 Later, the appellant told the complainant that she was “a naughty young girl” who had been acting like a teenager.
231 He then went on to make a number of complimentary remarks about the complainant’s subsequent improvement in the performance of her duties.
232 The appellant sought to discount the probative value of the appellant’s statements by asserting that the admissions relating to the smacking of the complainant added nothing to the evidence because the appellant had admitted having done so on two occasions. The appellant did not, however, in the course of his conversation with the complainant, say anything which suggested that only two smacking incidents had occurred. His statements could be understood as admissions of many such incidents.
233 Moreover, as has been seen, the admissions went further than merely admitting bottom smacking. The appellant’s attempts to justify his conduct were relevant to his intentions in his various dealings with the complainant. The appellant’s admissions also supported the complainant’s evidence that he had required her, on a number of occasions, to appear naked before him.
234 The Judge Advocate did not err by treating the contents of the covert recording as providing “highly probative” evidence for the prosecution.
235 Considerations (d) and (e). The appellant submitted that these considerations were of so little weight that they ought not have been brought into account by the Judge Advocate.
236 The short answer to this complaint is that these two considerations (the fact that the recording had not been made by a third party and that the complainant was a principal party to the conversation) were relevant to the exercise of the Judge Advocate’s discretion and that it was a matter for her to determine what weight should be accorded to these considerations.
237 Consideration (g). The Judge Advocate had regard to the fact that the complainant was subordinate in rank to the appellant and that she was much younger than him. This was said to be an irrelevant consideration.
238 We reject this contention. At the very least the relative rank and age of the complainant and the appellant went to the issue of the nature of the alleged offences. This was a relevant consideration.
239 Consideration (i). The Judge Advocate accepted that the complainant had not deliberately set out to break the law when she made the covert recording. The appellant contended that she erred in doing so.
240 This complaint is based on part of an exchange which occurred between the complainant and the defending officer when the complainant was being cross-examined on the voir dire. That exchange was:
“Question: Did you think that it was at least possible that using an iPhone as a device to record a conversation with LCDR Jones might be unlawful? Answer: No, I didn’t think it that way.
Question: Is it the case that you simply didn’t care whether you were engaging in unlawful conduct? Answer: No, I didn’t think it was. What he did to me was unlawful.”
The appellant submitted that the complainant’s justification for having made the recording (“What he did to me was unlawful”) suggested that the complainant believed that the end justified the means, whether she knew the means to be lawful or not. He submitted that the Judge Advocate should have rejected the complainant’s denial that she had considered that the recording might be unlawful and held that the complainant simply did not care whether or not her conduct breached the law.
241 The complainant’s statement that: “What he did to me was unlawful” must be read in context. Whilst it may be open to the construction which the appellant has sought to place upon it, it may equally be understood to be no more than an unresponsive assertion reflecting a deeply held view that the appellant had misconducted himself towards her. The Judge Advocate had the advantage of observing the complainant in the witness box. She was entitled to accept the complainant’s evidence that the complainant had not turned her mind to the question of the legality of making the recording. This finding went to the issue of whether the complainant had deliberately set out to contravene the statutory proscription of covert recordings. It, therefore, was a matter to which the Judge Advocate was entitled to have regard.
242 Consideration (j). The Judge Advocate accepted that, in making the recording, the complainant may have infringed the appellant’s rights under the ICCPR. The appellant accepted that this was a relevant consideration but complained that the Judge Advocate had accorded it insufficient weight.
243 As we have already held, the weight to be accorded any relevant consideration was a matter for the Judge Advocate.
244 Conclusion. For these reasons we do not consider that the Judge Advocate erred in exercising her discretion to admit the covertly recorded record of interview. In the absence of such error there is no reason why the exercise of the Judge Advocate’s discretion should be disturbed: see House v The King (1936) 55 CLR 499 at 504-5.
GROUND 11
245 As already noted, the complainant provided the recorded conversation to service police. On 7 December 2010 they conducted a record of interview with the appellant. Parts of the conversation which had been recorded were read out to him and his comments invited.
246 At trial the defending officer opposed the admission into evidence of those parts of the record of interview which referred to the covertly recorded conversation. The Judge Advocate ruled that these parts of the record of interview were admissible. The appellant submitted that, in so ruling, the Judge Advocate erred.
247 Throughout the record of interview with the service police the appellant’s position was one of total denial: he denied having engaged in any improper conduct towards the complainant at any time. After the interview had continued for some time the interviewing officers invited the appellant to listen to the recording. After it had been played he was asked whether he still maintained his denials. He said that he did saying:
“I’m not changing it because I know about that. That was in the car on the way there. What you don’t have on that tape is what happened, which is probably five minutes before that. Five minutes before that she had basically said that ‘I’m going to say that you punished me because my resignation is not happening as quickly as I can and that might help me get out quickly. I’ve got a good rapport with the psychologist and this will help me.’ And so I said, ‘Ok. This is you fantasising again. Don’t do it. You’re going to cause trouble.’”
248 The appellant was then asked: “So what did you do?”. His response was:
“What did I do? I didn’t do anything. I just thought I’ll have the conversation with her. I’ll let her pretend that that happened and I talked to her in that way as if it was real and hopefully I thought by just talking to her she’d calm down and everything would just go away, just like she had the fantasies with the navigator and that, it just disappeared and all that sort of stuff. And I thought that’s where we’d be, because her mindset over this last year had been all over the shop. She used to get extremely emotive. She would go and have these fantasies and carry on that all – regularly. And I’d calm her down with those discussions and basically say to her, ‘That’s not real. This is real. This is where we’re at.’”
249 Thereafter the appellant repeatedly asserted that the entire recorded conversation had involved role play on his part and that none of the events referred to had actually occurred. This part of the interview concluded with further denials by the appellant of any misconduct on his part involving the complainant.
250 The defending officer submitted that the relevant part of the record of interview should not be admitted because the recording had been obtained illegally. The Judge Advocate accepted the defending officer’s submission that her ruling on the admissibility of the covert recording did not necessarily compel a favourable exercise of discretion in respect of that part of the record of interview which was based on it.
251 The Judge Advocate again directed herself that it was for the prosecution to satisfy her that the desirability of admitting the record of interview outweighed the undesirability of admitting it, having regard to the manner in which the covert recording was obtained. She turned first to the question of whether, absent the impropriety, the evidence would have been admissible. She held that the relevant parts of the record of interview would be admissible pursuant to ss 55 and 56 of the Evidence Act. She said:
“I am satisfied that this evidence, if accepted, could rationally affect a fact in issue in this trial. The representations by the accused go to the issue of whether or not what he says is a concoction and an attempt to exculpate himself from the relevant events. The purpose for their admission is to show that the accused’s version of events may be shown to be false and from that a court martial panel would be entitled to draw an inference from such conduct consistent with a consciousness of guilt.”
252 The Judge Advocate then turned her attention to s 138 saying that “the matters listed in sub-section 138(3) … that I should take into account are in essence, the same as what I took into account in relation to the admissibility of the covert tape recording and I do not propose to address them again.” She went on to identify four “additional factors”. They were:
“a. The accused’s responses to the answers given are highly probative. They provide an explanation by the accused as to the statements he made on the covert tape recording. A panel could infer that they amount to a false denial because there is evidence that there was no elaborate fantasy on the part of the complainant about being smacked. In addition, it is not in contest that the conduct alleged in relation to the first second [sic – third] and ninth incidents took place;
b. These are very serious allegations’ [sic], particularly in the service context where there has been [sic] serious allegations of abuse of authority and power;
c. The service police officers, in their evidence, both indicated that legal advice had been received in relation to the playing of the tape to the accused and that they understood that it was permissible to do so and that issues of admissibility could be resolved at the trial. The fact that the service police admit the possibility that the covert recording may not have been admissible, does not in the context, justify treating the conduct of the service police officers as improper;
d. The covert tape recording has already been admitted into evidence.”
253 The appellant submitted that the Judge Advocate’s ruling was affected by a number of material errors. He complained that she had had regard to a number of the same considerations which she had taken into account in dealing with the record of interview and which had no relevance to the admissibility of the record of interview. The additional considerations which she identified ought not to have influenced her decision. As a result, so it was submitted, the Judge Advocate should not have found that the prosecution had discharged the onus of establishing that, on balance, the relevant parts of the record of interview should be admitted.
254 The appellant identified considerations (a), (e), (g) and (h) (see above at [220]) as considerations which were taken into account in dealing with the admissibility of the covert recording but which had no bearing on the admissibility of the record of interview. These matters related to the complainant’s purpose in making the recording, the fact that she was a principal party to the conversation and her relatively junior rank. These were matters which were of marginal, if any, relevance to the admissibility of the record of interview.
255 The appellant’s submissions, however, failed to distinguish between matters which s 138(3) required the Judge Advocate to take into account and the facts, peculiar to the case before her, to which the Judge Advocate had regard in satisfying the statutory obligation. The Judge Advocate did not say that she was again taking into account considerations (a) to (k). What she said was that she was again taking into account “the matters listed in sub-section 138(3)”. This she was required to do. She could not, therefore, be understood to have had regard to matters which were not relevant to her task had she not referred to the four “additional factors”. Those factors were of the same character as considerations (a) to (k) which she had taken into account in dealing with the admissibility of the covert recording. Read literally, the four factors which she then identified may be factors “additional” to considerations (a) to (k).
256 We have considered the terms of the Judge Advocate’s ruling. We have concluded that, in context, the Judge Advocate is to be taken as treating the four factors as matters which, like the other “considerations”, arose on the facts of the case but were to be taken into account discretely in determining the admissibility of the record of interview.
257 It is, in any event, to be remembered that s 138(3) does not limit the range of considerations which a Court may take into account in exercising its discretion to admit or refuse to admit tainted evidence. Appellable error would only have occurred had the Judge Advocate taken into account a consideration which she was bound not to take into account and, even then, only if that consideration was shown to be material to her decision: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-41. The appellant did not submit that all of the considerations, to which the Judge Advocate had regard in deciding to admit the covert recording were irrelevant to her decision about whether or not to admit the parts of the record of interview to which objection was raised. The four considerations which were said to be irrelevant, namely considerations (a), (e), (g) and (h) were not considerations which the subject matter, scope and purpose of s 138 precluded her from taking into account.
258 Additional factor a. The appellant challenged the Judge Advocate’s findings that his responses to the questions which he was asked after the recording had been played to him were quite “highly probative”. He did so on the basis that he had subsequently admitted the conduct which was alleged to have occurred in the course of three of the incidents and that, even if he had falsely denied having engaged in all of the conduct alleged against him, this did not make the complainant’s account more probable than would otherwise have been the case.
259 As the Judge Advocate explained, the appellant’s denials could support a prosecution claim that the appellant’s reaction to the questioning displayed a consciousness of guilt. This was because he had asserted that all of the complainant’s allegations were based on fantasies and that he had later admitted that some of the conduct, which he had denied at interview, had, in fact, taken place.
260 Additional factor b. The appellant did not, in argument, seek to suggest that the allegations were not very serious, particularly in a service context.
261 Additional factor c. The appellant developed two points in relation to the relevance of the service police officers’ belief that they were entitled to deploy the covert recording in the course of the record of interview. The first point was that the prosecution had not sought to prove the content of the legal advice on which the service police claimed to have relied. The prosecution had been asked to disclose any document containing that advice and no document had been provided. In the absence of such evidence, it was submitted, the Judge Advocate should not have given any weight to the fact that the service police may have considered that they were not precluded from playing the recording during the course of the interview.
262 The second point was that, in electing to play the recording which had been illegally made, the service police took a calculated risk that the Judge Advocate “would condone their conduct upon the hypothesis that the ends (the anticipated probative value of the appellant’s responses to the recording) justif[ied] the means (the derivative use of illegally obtained evidence)”.
263 The service police officers who conducted the interview with the appellant both gave evidence on the voir dire. WO Chaplin gave evidence that she had sought verbal legal advice from the Fleet legal officer relating to the legality of the covert recording. She did not recount the precise terms of the advice (if any) which she received. The more senior of the interviewing officers, CAPT J Cunningham summarised the approach which he and WO Chaplin had adopted during the interview when he said that:
“… the issue here about the legality and the argument of whether its admissible or not is a matter for the Court. From an investigator’s perspective, I would be criticised if I didn’t disclose to the suspect information which I have in my possession which is relevant to the allegations which were made.”
264 The Judge Advocate, having heard this evidence, considered that the fact that the interviewing officers were uncertain about the legality of the covert recording and took the view that its admissibility was a matter for the Court to resolve (if need be) at trial did not justify characterising the interviewing officers’ conduct as “improper”. This conclusion was open on the evidence: the interviewing officers had not made the recording; they were not in a position to make a legal judgment about its admissibility; they considered that the admissibility of the recording was a matter for the Court; and they proceeded on the basis that fairness required that its contents should be placed before the appellant so that he could deal with them.
265 Additional factor d. The Judge Advocate had regard to the fact that the tape recording had, pursuant to her earlier ruling, already been admitted into evidence. The appellant contended that this was a manifestation of “a cynical proposition that simply because evidence of the sound recording is admitted (notwithstanding its illegality), others have free rein to exploit it.” This, it was said, was an irrelevant consideration.
266 This contention involves a misconstruction of what was said by the Judge Advocate. She did no more than record that the covert recording was already in evidence. This was the same recording which had been played to the appellant and on which certain questions, asked by the interviewing officers, were based. These considerations were plainly relevant. The appellant’s attempt to assign a wider implication to the Judge Advocate’s reasons is unsupportable.
267 Conclusion. For these reasons we do not consider that the Judge Advocate erred in exercising her discretion to admit the parts of the record of interview to which objection was taken. In the absence of such error there is no reason why the exercise of her discretion should be disturbed: see House v The King at 504-5.
GROUND 12
268 The appellant contended that the offences of which he was convicted were indictable offences and that, as a result, he was entitled, pursuant to s 80 of the Constitution, to a trial by jury. A proceeding before a Court Martial was not a jury trial and, as a result, he contended, a substantial miscarriage of justice had occurred.
269 This ground was formally pressed but the appellant accepted that authority, binding on the Tribunal, required it to reject it.
270 The High Court has held on a number of occasions that service members may be prosecuted for service offences (including civil criminal offences picked up through s 61 of the DFDA) before service tribunals and that s 80 of the Constitution does not operate to require a trial by jury of service offences (again including those which would constitute indictable offences before civilian criminal courts): see Re Tracey; Ex parte Ryan at 548-9 (Mason CJ, Wilson and Dawson JJ); 578-9 (Brennan and Toohey JJ). See also the observations of Brennan and Toohey JJ in Re Nolan; Ex parte Young (1991) 172 CLR 460 at 480 and Re Tyler; Ex parte Foley (1994) 181 CLR 18 at 28-9.
271 An attempt to reopen this issue was rejected by Gleeson CJ during an interlocutory hearing in White v Director of Military Prosecutions [2006] HCA Trans 566.
272 This ground must be dismissed.
| I certify that the preceding two hundred and seventy-two (272) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, White and Mildren. |
Associate: