DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Bateson v Chief of Army [2012] ADFDAT 3
DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL | |
ON APPEAL FROM AQ DEFENCE FORCE MAGISTRATE | DFDAT 1 OF 2012 |
| Appellant | |
AND: | Respondent |
TRACEY J – PRESIDENT, WHITE JA – DEPUTY PRESIDENT & logan j - MEMBER | |
DATE OF ORDER: | |
WHERE MADE: |
THE TRIBUNAL ORDERS THAT:
1. The appeal be allowed.
2. The convictions of the appellant, recorded on 4 August 2010, each be quashed.
ON APPEAL FROM A DEFENCE FORCE MAGISTRATE | DFDAT 3 OF 2011 |
BETWEEN: | LYNDA BATESON |
AND: | CHIEF OF ARMY |
JUDGES: | TRACEY J – PRESIDENT, WHITE JA – DEPUTY PRESIDENT & LOGAN j – MEMBER |
DATE OF ORDER: |
|
WHERE MADE: | BRISBANE |
REASONS FOR JUDGMENT
1 On 3 August 2010 the appellant appeared before a Defence Force Magistrate. She faced two charges of engaging in insubordinate conduct contrary to s 26(1) of the Defence Force Discipline Act 1982 (Cth) (“the DFDA”) and one charge of disobeying a lawful command contrary to s 27(1) of the DFDA. She pleaded not guilty to each charge.
2 The Defence Force Magistrate found her guilty of the two insubordinate conduct charges but not guilty of the charge of disobeying a lawful command.
3 The Defence Force Magistrate imposed the same punishment in respect of each of the two insubordinate conduct charges: the appellant was to be reduced in rank to Corporal with seniority in that rank to date from 24 November 2000.
4 The charges arose out of two short exchanges between the appellant and LT Brent Daire, one on the evening of 7 April 2009 and the other on the following morning. At the time both the appellant and LT Daire were on duty at 1 Field Regiment at Gallipoli Barracks, Enoggera. The appellant was posted as a medical assistant at the unit regimental aid post (“RAP”). LT Daire was, at the time, the unit duty officer.
5 Late on the night of 7 April 2009 the appellant came to the unit duty room. LT Daire had a conversation with her. There are differing accounts of what was said. The first act of insubordination was alleged to have occurred during this conversation. So too was the alleged disobedience by the appellant of a lawful command.
6 On the following morning LT Daire went to the RAP in company with SGT Kirk Morrissey for the purpose of administering a caution to the appellant in relation to her conduct on the previous evening. They met the appellant. A further conversation then occurred. Again, there are conflicting accounts of what was said. The second act of engaging in insubordinate conduct was alleged to have occurred in the course of this conversation.
THE CHARGES
7 The three charges read:
“Disobeying a lawful command
Being a Defence member at Gallipoli Barracks in the state of Queensland on 07 April 2009, disobeyed the lawful command given to her by 8523280 Lieutenant Brent Daire, her superior officer, that she not walk away from him whilst he was speaking to her.
Engaging in insubordinate conduct
Being a Defence member at Gallipoli Barracks in the state of Queensland on 07 April 2009, engaged in conduct which was insubordinate to 8523280 Lieutenant Brent Daire, her superior officer, by yelling at him words to the effect of ‘this is crap, I work long hours for this Regiment and I should have the vehicle when I need it.’
Engaging in insubordinate conduct
Being a Defence member at Gallipoli Barracks in the state of Queensland on 08 April 2009, engaged in conduct which was insubordinate to 8523280 Lieutenant Brent Daire, her superior officer, by yelling at him words to the effect of ‘this unit has lost its medic, I’m closing the RAP.’ ”
THE EVIDENCE
8 The prosecution called two witnesses, LT Daire and SGT Morrissey. The appellant herself gave evidence. The defending officer also called Doctor John Vince, a medical officer who worked at the Enoggera Barracks and Doctor Darren Fox, another medical officer who had examined the appellant on 30 April 2009.
9 The prosecution case on the first of the insubordinate conduct charges relied on the evidence of LT Daire.
10 LT Daire said that he was present in the duty room on the night of 7 April 2009 when the appellant entered. She requested the duty driver (who was also present) to take her home. She said that she was ready to leave and that the duty driver was to take her. Upon hearing this LT Daire asked the appellant to come outside the duty room so he could talk privately to her. He said that he told her: “[I’m] okay with [you] using the vehicle [to] night but in the future tasks should go through the commanding officer or the adjutant because that was the proper way of tasking.” Upon being so advised the appellant became irate.
11 When asked about what then transpired he said:
“It started quite pleasant, I felt. I was quite nice about it; I am not someone who gets angry but as I commenced to say what I had said, SGT Bateson became quite irate and started to shout at me that – excuse the term – that it was crap and that she didn’t need permission to use the vehicle, that she had a right to use the vehicle and that she was to be taken home.”
12 When asked to repeat the words used by the appellant he responded:
“[I]t was crap. We had no right to tell her what to do. She had a right to use the vehicle whenever she liked. She didn’t have to listen to me. Those are specific things that I remember.”
13 He said that, when addressing him, the appellant had shouted at him.
14 This evidence was not challenged under cross-examination. It was not put to LT Daire that he had been untruthful or that he had been mistaken when recalling his exchange with the appellant. An attempt was, however, made to suggest that, on a previous occasion, LT Daire had acted in an intemperate way in dealing with another service member. Reference was made to a statement about this incident which had been made by WO2 Stuart Hall. The statement was not admitted into evidence. Despite these references to the earlier incident it was not put to LT Daire that, in dealing with the appellant on 7 April 2009, he was agitated, aggressive or speaking in a loud voice.
15 The appellant gave a very different account of events. She said that she had, earlier in the day, advised the duty driver that she might need him to drive her home after she finished work that night and asked him to let the duty officer know this. She returned to the duty room at about 2215 hours. She told the duty driver that she did not require the use of the vehicle. As she stepped outside the duty room she encountered LT Daire in the corridor. He told her that she had no right to use the duty vehicle and that she could not do so without the permission of the commanding officer or the adjutant. She responded by stating repeatedly that she did not wish to have the use of the vehicle. LT Daire appeared not to appreciate what she was saying. She also told him that she was feeling unwell and wished to go home. The appellant said that LT Daire had become upset and agitated at this point and was shouting and pointing at her. She objected and he responded: “Yes I can. I am a lieutenant.” She then rushed to the RAP toilet where she was physically ill.
16 The prosecution evidence in relation to the second of the insubordinate conduct charges was given by LT Daire and SGT Morrissey. LT Daire said that he and SGT Morrissey had gone to the RAP on the morning of 8 April 2009. They met the appellant. He told her that he proposed to administer a caution to her under Part 6 of the DFDA in respect of her conduct the previous evening. He did so by handing the appellant a card which contained the words of the caution and asking her to follow him as he read it to her. As she was reading the caution the appellant became irate and started pacing up and down. She complained that she was being harassed and said that he had no right to tell her what to do and that he should not be administering a caution to her. She went on to say that she was leaving and that she had had enough of the Regiment. When speaking to him the appellant had shouted.
17 Under cross-examination LT Daire said that the appellant had told him that she was sick and that she was going to leave.
18 SGT Morrissey substantially corroborated the evidence of LT Daire. The critical part of his evidence was that:
“I called SGT Bateson out to the reception area and LT Daire then informed her he was going to caution her in reference to the incident that occurred the previous evening. Mr Daire then read her the caution in a very polite and calm manner. Whilst the caution was being read SGT Bateson was pacing up and down, taking her sunglasses on and off her head. At the end of the caution Mr Daire asked SGT Bateson if she had any questions. SGT Bateson then responded, ‘you can’t do this to me. This is fucked. The regiment is out to get me,’ and words to that effect.”
SGT Morrissey also attributed to the appellant the words “the regiment has just lost its RAP SGT.”
19 The appellant’s account of these events was that a card had been slapped into her hand and LT Daire had started reading from it. She denied having yelled at LT Daire and SGT Morrissey while the caution was being read. She said that she was talking normally to them. She told them that she was “closing the RAP” but had not said words to the effect “this unit has lost its medic.” She said that she had closed the RAP because she was feeling unwell and she was going to another unit RAP for medical attention. This she had done.
20 Her evidence on this latter point was confirmed by Doctor Vince who deposed that he had examined her when she had attended at his RAP between 0700 and 0730 hours on 8 April 2009.
THE DEFENCE FORCE MAGISTRATE’S FINDINGS
21 The Defence Force Magistrate found that all the elements of both insubordination charges had been made out beyond reasonable doubt. He accepted the accounts given by the prosecution witnesses.
22 He rejected the appellant’s evidence relating to the first act of insubordination for a number of reasons. She had claimed not to be angry during her dealings with LT Daire on the night of 7 April 2009. He found that it was unlikely that she would not have been angry if, as she claimed, LT Daire had acted aggressively towards her, shouting and pointing at her. The Defence Force Magistrate could see no reason for there having been a confrontation if the appellant had merely come to the duty room to advise that she did not require the duty driver to take her home. In the absence of any earlier interaction between the appellant and LT Daire over the issue of her having access to the duty vehicle, he did not accept that LT Daire had approached the appellant aggressively in the duty room or in the corridor outside.
23 The Defence Force Magistrate accepted that, at the time, the appellant was suffering from hearing difficulties but found that she had yelled at LT Daire. He considered that the words she spoke and the volume at which they were uttered exposed a refusal by her to subordinate herself to a superior officer.
24 When dealing with the second insubordinate conduct charge the Defence Force Magistrate accepted the account of events given by LT Daire and SGT Morrissey. Again he found that the words alleged had been spoken by the appellant and that they had been uttered in a manner that evinced an intention by her not to subordinate herself to the authority of a senior officer. On that morning she had been well enough to ride a bicycle and walk to her workplace. If she wished to seek medical attention (as she did) she could have done so by simply asking for leave to attend Doctor Vince’s surgery.
THE APPEAL
25 The appellant appealed on four grounds. Those grounds were that:
(a) Her convictions are unreasonable and cannot be supported having regard to the evidence (s 158(1) DFDA);
(b) Wrong decisions on questions of law occurred (s 158(1)(b) DFDA);
(c) Material irregularity occurred in the course of the proceedings (s 158(1)(c) and (d) DFDA); and
(d) The convictions are unsafe and unsatisfactory (s 158(1)(d) DFDA).
None of these grounds was particularised.
26 At the hearing counsel for the appellant sought and was granted leave to delete the references to the DFDA provisions.
27 During argument the appellant contended that various legal errors had been made in the course of the trial. Each of these errors, she claimed, supported a finding that one or more of the grounds on which she relied had been made out. The errors were:
The rejection by the Defence Force Magistrate of evidence by WO2 Hall and Doctor Vince as to what was said to have been a previous incident in which LT Daire had been rude and abrasive towards WO2 Hall.
The reliance by the Defence Force Magistrate on some evidence which related to a particular charge to support his conclusions in respect of other charges.
The “cross-examination” of Doctor Vince by the Defence Force Magistrate.
Failure of the Defence Force Magistrate to consider whether the appellant had been labouring under a mistake of fact believing that she had not been yelling when addressing LT Daire on 7 and 8 April 2009.
THE EVIDENCE OF WO2 HALL AND DOCTOR VINCE
28 At the end of the defence case the defending officer applied to the Defence Force Magistrate to call WO2 Hall to give evidence about an occasion towards the end of March or in early April 2009, when LT Daire had approached him (WO2 Hall) in the 2 Combat Engineer Regiment RAP. The defending officer produced an undated witness statement from WO2 Hall which contained the substance of what he would have said had he been called. The witness statement was marked for identification. In it he said that LT Daire had come to the RAP where he was serving to see Doctor Vince. LT Daire wished to obtain a form from Doctor Vince. WO2 Hall had sought to explain to LT Daire that Doctor Vince was not the person responsible for supplying such forms and that, if LT Daire wished to obtain it, he should look at the particular member’s medical records. WO2 Hall said that LT Daire had “appeared to not want to listen to the advice I was giving him, and I found that his attitude was rude and abrasive.” Doctor Vince had heard this conversation through a closed door and confirmed the substance of WO2 Hall’s account.
29 When asked by the Defence Force Magistrate about the relevance of the proposed evidence the defending officer said that the only basis on which he contended that the evidence would be admissible was that it went to LT Daire’s credit: it would undermine LT Daire’s denial that he had acted aggressively towards the appellant and counter what the appellant contended, on this appeal, was a perception, attributed to the Defence Force Magistrate, that it was inherently unlikely that LT Daire would be the aggressor. This perception was said to have arisen from a comment made by the Defence Force Magistrate, in the course of final addresses, that “one of the matters to which I have to turn my mind is the inherent likelihood or otherwise of someone in LT Daire’s position initiating the conversation [with the appellant] in such a rude and abrupt way.”
30 The appellant accepted that the evidence of WO2 Hall and Doctor Vince relating to the earlier incident constituted credibility evidence as defined in s 101A of the Evidence Act 1995 (Cth) (“the Evidence Act”). Section 102 provides that such evidence about a witness is not admissible. An exception to this general rule is provided by s 106(1). It provides that:
“(1) The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if:
(a) in cross-examination of the witness:
(i) the substance of the evidence was put to the witness; and
(ii) the witness denied, or did not admit or agree to, the substance of the evidence; and
(b) the court gives leave to adduce the evidence.”
31 An earlier exchange between LT Daire and the appellant was raised with LT Daire under cross-examination. He denied that he had been rude or abrasive towards her. It may, therefore, be doubted that the requirements of s 106(1)(a) had been satisfied by the time LT Daire left the witness box.
32 No application was made by the defending officer for a grant of leave to be given under s 106(1)(b).
33 What occurred was that the Defence Force Magistrate invited the defending officer to make submissions as to the admissibility of WO2 Hall’s evidence. The defending officer answered: “No sir, it goes purely to credit.” At this point the Defence Force Magistrate said that: “If it goes purely to credit, it seems to me that it’s excluded under the credibility rule but I would hear from you further.” The defending officer responded: “Well I’ll have it marked for identification and I think we’ll leave it at that.” As a result the Defence Force Magistrate was not called on to exercise any discretion.
34 The defending officer made no application to lead evidence from Doctor Vince about the incident.
35 In his reasons for decision the Defence Force Magistrate expressed the view that it was “inherently unlikely that LT Daire would have initiated a conversation with SGT Bateson about the use of the duty vehicle in the rude and abrupt manner that SGT Bateson asserts.” This was because there had been no prior discussion between them about the appellant’s use of the vehicle and that, it was therefore unlikely that LT Daire would have initiated their first exchange about the matter in an aggressive manner. In making this observation the Defence Force Magistrate did not make any finding about LT Daire’s propensity to deal with other members in an aggressive manner. Nor did he make any reference to LT Daire’s personal history or qualities when assessing the likelihood of him acting in an aggressive manner.
36 These events do not disclose any material error in the conduct of the trial.
USE OF EVIDENCE OF UNCHARGED ACTS
37 The appellant submitted that, in his reasons for decision, the Defence Force Magistrate had:
Used SGT Morrissey’s evidence about events on 8 April 2009 “to justify the credibility and conduct of LT Daire” on 7 April 2009 when he considered the first insubordinate conduct charge;
Taken into account uncharged acts (three orders which had been given and disobeyed by the appellant which were the subject of the disobedience of lawful orders charge) in considering the other two charges; and
Failed to provide an explanation of how the evidence of uncharged acts was used in reaching his conclusions.
38 We do not consider that any of these errors have been made out.
39 It should be observed, at the outset, that there is no general prohibition on uncharged acts being considered when determining that an accused person is or is not guilty of a particular offence. Futhermore, it is not inconsistent with a requirement that a judicial officer consider separately each element of each offence when dealing with multiple charges against an accused for the judicial officer to rely on inferences arising from evidence given in respect of one of the charges when determining whether the accused is guilty of another of the charges.
40 The Defence Force Magistrate clearly directed himself that each of the three charges was to be considered separately. He also directed himself that he had to be satisfied, in respect of each charge, that the prosecution had established each element beyond reasonable doubt. He dealt with the charges in this way.
41 The appellant’s complaint that the Defence Force Magistrate had regard to SGT Morrissey’s evidence when determining the appellant’s guilt on the first charge was based on the following observations by the Defence Force Magistrate:
“Such rude and abrupt behaviour, as she describes, would be inconsistent with [SGT] Morrissey’s evidence of LT Daire’s approach to SGT Bateson the following morning in connection with the caution. SGT Morrissey described the approach as calm and light.”
42 The Defence Force Magistrate was entitled to infer that LT Daire had acted calmly towards the appellant on 7 April 2009 because he had so conducted himself towards her early on the following morning when dealing with the same issue.
43 The appellant’s contention that the Defence Force Magistrate had regard to uncharged acts is founded on some statements made by him in the last paragraph of his reasons relating to the first of the insubordinate conduct charges. Having made findings about what the appellant had said and the volume at which she had spoken, he declared himself satisfied that “the words and the tone and volume of their utterance were directly referable to a refusal” by the appellant to subordinate herself to LT Daire’s authority. He went on:
“In so finding I am satisfied that this went beyond a robust communication of a matter of fact. Rather the words were uttered in an exchange in which, [the appellant] says, that LT Daire had had occasion to tell her three times to stay where she was. I am satisfied that the words were uttered as part of an ongoing refusal to subordinate herself to LT Daire’s proper authority and were, in and of themselves, rude and contemptuous of LT Daire’s authority. Accordingly I find the first charge proved.”
44 Particular attention was directed to the Defence Force Magistrate’s reference to LT Daire having given the appellant three orders to remain where she was. Her failure to comply with these orders was the basis for the charge of which she was found not guilty.
45 The events relating to the two charges were inextricably related. There was no dispute about LT Daire having given the orders. The appellant was acquitted of the charge of failing to obey lawful orders, not because the orders had not been uttered, but on the ground of necessity: the appellant had an urgent need to go to the toilet. There was, therefore, no improper reliance by the Defence Force Magistrate on uncharged acts.
CROSS-EXAMINATION OF DOCTOR VINCE
46 The appellant complained that a material irregularity occurred in the course of Doctor Vince’s evidence when the Defence Force Magistrate intervened and, it was said, “cross-examined” the witness.
47 Doctor Vince gave evidence that the appellant had consulted him in his RAP on the morning of 8 April 2009. He had examined her and found her to be quite distressed and physically unwell. She was suffering from a sinus infection and had a gastro intestinal upset. She complained of pain in her left ear and in the abdominal region. She had experienced nausea, diarrhoea and vomiting. He considered her to be unfit for work.
48 When cross-examining Dr Vince the prosecutor sought to establish that, notwithstanding her adverse medical circumstances, the appellant had been able to continue working. He suggested that the appellant had a strong work ethic and had a capacity to continue performing her duties.
49 Towards the end of the cross-examination the Defence Force Magistrate asked a series of questions of Doctor Vince which included those about which complaint is now made. The questions sought to clarify whether the appellant’s medical condition rendered it likely that she might suddenly feel physically ill and whether the sinusitis condition could have contributed to her experiencing hearing difficulties.
50 After Doctor Vince had answered these questions the Defence Force Magistrate asked:
“Now, if one assumed that there was a dullness of hearing occasioned by the sinusitis, I take it that that would not extend to the point where the patient would mistakenly yell as opposed to merely raising of the voice? Do you appreciate the difference?”.
Doctor Vince answered:
“Yes, I do. And, yes, that - that would be the case you’d certainly raise your voice but you wouldn’t be … inclined to yell.”
51 The defending officer raised no objection to the Defence Force Magistrate’s questions. Both counsel had the opportunity of asking any questions arising from the exchange.
52 We do not accept that the questioning on the part of the Defence Force Magistrate is properly to be characterised as cross-examination. The questions were asked near the end of Doctor Vince’s evidence. They formed part of a series of questions which sought to clarify aspects of that evidence which went to a relevant matter. The series of questions were designed to elicit information. The answers may or may not have assisted the appellant. The questions were not, however, antipathetic to the case which she wished to advance. There was nothing objectionable about the questions. Had the defending officer wished to do so he could have asked further questions of Doctor Vince relating to the issue.
53 The Defence Force Magistrate’s intervention did not give rise to any irregularity in the conduct of the trial.
MISTAKE OF FACT
54 The prosecution case, insofar as it related to the two insubordinate conduct charges, relied not just on the words which were uttered by the appellant but also on the volume with which those words were delivered. The particulars of both charges referred to the appellant “yelling” at LT Daire.
55 In finding the appellant guilty of insubordinate conduct on the night of 7 April 2009 the Defence Force Magistrate said:
“While I accept the evidence of [the appellant], Dr Vince and Dr Fox that [the appellant] had some hearing problems, on the basis of Dr Vince’s evidence I am satisfied that the yelling, to which LT Daire testifies, went beyond a mere raising of the voice that might have been attributable to the hearing problems. I am satisfied that the words and the tone and volume of their utterance were directly referable to a refusal on the part of [the appellant] to subordinate herself to LT Daire’s proper military authority as her superior officer discharging the duties of duty officer.”
56 In his reasons for decision the Defence Force Magistrate referred to the appellant’s evidence about the events on the morning of 8 April 2009. He recorded that:
“[the appellant] says that she did not yell. She thought that she was talking normally. She says that she could not hear what they were saying because of the buzzing in her ears.”
57 The Defence Force Magistrate again took into account the volume at which the appellant had spoken to LT Daire. He said:
“So far as the third count is concerned, I accept the evidence of LT Daire and Mr Morrissey that words to the effect of those particularised in the third charge were said by [the appellant]. I am further satisfied that they were yelled at a volume that was, on Dr Vince’s evidence, not referable to [the appellant’s] hearing problems. I am satisfied that words to the effect of those particularised were uttered in a manner that demonstrated a refusal by [the appellant] to subordinate herself to LT Daire’s proper military authority.”
58 As already noted these two insubordinate conduct charges were laid under s 26(1) of the DFDA. Section 26(3) provides that offences against sub-section 26(1) are offences of strict liability. As a result, it was not necessary for the prosecution to prove that the appellant intended that her conduct be insubordinate. Section 6.1(1)(b) of the Criminal Code Act 1995 (Cth) provides that if there is an offence of strict liability:
“The defence of mistake of fact under section 9.2 is available.”
59 Section 9.2 of the Code provides that:
“9.2(1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed and is under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted an offence.”
60 Having regard to s 9.2(1)(b) of the Code, it is necessary to understand what would or would not constitute the offence of insubordinate conduct for which s 26(1) of the DFDA provides.
61 In White v Director of Military Prosecutions (2007) 231 CLR 570 at 644 [223], Callinan J classed the offence of insubordinate conduct as one of those which is “peculiarly and historically of a military kind”. Subordination of the members of the Defence Force to their superior officers is not only vital for operational reasons. It is also one manifestation of constitutional arrangements, the origins of which may be traced to Article 6 of the Bill of Rights 1689 (Eng) and the original Mutiny Act 1689 (Eng), whereby each member of the Defence Force, no matter how senior in rank, is subordinate to the Governor-General, as the Queen’s representative, who acts only on the advice of Ministers responsible to Parliament: see Millar v Bornholt (2009) 177 FCR 67 at 73-5 [16] - [21], and 76-7 [26] - [27].
62 There are other, peculiarly military features of insubordinate conduct in a disciplined force. For a commander there may, lurking behind such conduct, be insights into grievances, individual or perhaps more widespread, in relation to service conditions or in relation to the style of command of a particular officer or non-commissioned officer. Thus a sequel to the incidence or disposal of a charge of insubordinate conduct may be separate, remedial action by a commander in relation to underlying issues. On other occasions, even where it is tolerably clear that the conduct concerned is insubordinate, the extenuating nature of the surrounding circumstances and, perhaps, an underlying grievance may be such that a value judgment is exercised such that no charge is proferred and, instead, either the individual concerned or his or her superior or both are counselled by a superior officer and the matter left to rest there. The observation of McCardie J in Heddon v Evans (1919) 35 TLR 642 at 647 that, “Military justice is a grave and delicate thing” was made almost a century ago now but it remains true to this day. The presence in s 26 of the DFDA of the offences of insubordinate conduct and insubordinate language does not mean that a soldier, sailor or airman is unable to voice a grievance but they must do so within the limits of respect for authority.
63 Insubordinate conduct is conduct which indicates a defiance or disregard of authority: R v Grant [1957] 1 WLR 906 at 908; Re Nickols’s Appeal (1966) 9 FLR 120 at 124. Language not of itself insubordinate, in respect of which there is a separate offence created by s 26(2) of the DFDA, may, having regard to its volume, e.g. yelling, tone and content, as well as surrounding circumstances, and when viewed objectively, constitute a defiance or disregard of the authority of a superior and so constitute insubordinate conduct: Stuart v Chief of Army (2003) 177 FLR 158 at [22].
64 The offences of insubordination for which s 26 of the DFDA provides are to be distinguished from the separate offence, created by s 27(1) of the DFDA, of failing to obey the lawful command of a superior officer. A mere failure to obey a lawful command does not, of itself, constitute insubordination: R v Grant at 908-909.
65 On the hearing of the appeal the appellant argued that, if she was labouring under a mistake of fact as to the volume at which she was talking, because of her hearing problems, she had a good defence under s 9.2 of the Code. Although this defence had not been raised at trial she was not disabled from relying on it on the appeal because, so she contended, once she had given evidence which was accepted and raised the possibility that she might have such a defence, the Defence Force Magistrate was bound to consider and rule on the issue. She referred to Pemble v The Queen (1971) 124 CLR 107 at 117 (per Barwick CJ); 132-133 (per Menzies J). He had not done so.
66 The appellant gave the following evidence-in-chief about the tone and volume of her voice on the evening of 7 April 2009:
“Now, in relation to the tone or volume of your voice in the confrontation after 10 o’clock with LT Daire, what do you think was the volume of your voice? --- I thought it was just normal. Like, as I said, I had severe ear pain, so it was normal to me.
Would you describe yourself as yelling? --- I tend at times to talk loud but I wouldn’t call it yelling.”
67 The television set was said by the appellant to be blaring in the duty room during this exchange.
68 In her evidence in chief the appellant said that, on 8 April 2009, she thought that she was “talking normally” to LT Daire and SGT Morrissey. She was able to hear some of the things they were saying to her but had had difficulty hearing other things. She said that she had “like a buzzing sound in my ear.” Under cross-examination the appellant said that she had not told LT Daire and SGT Morrissey that she had a buzzing sound in her ear or that she was having trouble hearing them. No equivalent evidence was given in relation to the exchange between the appellant and LT Daire on the previous evening.
69 This evidence, it was contended, identified the relevant mistake of fact. It was that the appellant thought that she was addressing LT Daire and SGT Morrissey in her normal speaking voice which did not involve her yelling.
70 In CTM v The Queen (2008) 236 CLR 440 at 447 the plurality observed that, where a reasonable mistake of fact is relied on as a ground of exculpation:
“… the evidentiary onus of raising the ground of exculpation is on the accused, but, once that occurs, the ultimate legal onus of displacing the ground lies on the prosecution. The concept of evidentiary onus itself needs to be understood in the light of the subject matter to which it applies; here, honest and reasonable belief, a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact”.
The prosecution must meet its ultimate legal onus beyond reasonable doubt: see Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8; Lyons v R (1987) 24 A Crim R 298.
71 The appellant supported her contention that the Defence Force Magistrate was required to be satisfied beyond reasonable doubt that she was not acting under a reasonable, but mistaken, belief that she was speaking normally, even though her defence counsel had not raised the issue, by reference to the decision of the Queensland Court of Appeal in R v Soloman [2006] QCA 244. The case involved an appeal from a conviction for rape. At trial defence counsel raised with the judge the issue of whether the jury should be instructed that they had to be satisfied beyond reasonable doubt that the appellant had not acted under the mistaken but reasonable belief that the complainant had consented to the sexual encounter. The trial judge had declined to give such a direction because he considered that he had given a direction to the jury that was even more favourable than the one sought. He had told the jury that they could not convict the appellant unless they were satisfied beyond reasonable doubt that none of the complainant’s acts, on which the appellant said that he relied in concluding that she had consented, had occurred.
72 The Court of Appeal considered that the jury should have been directed to consider whether the prosecution had excluded the possibility that the appellant had acted in the honest and reasonable, but mistaken, belief that the complainant was consenting: see at [34].
73 Soloman is not authority for the very broad proposition that, when there is any evidence before a court which might support a defence of reasonable mistake, the court must consider whether or not a defence has been made out under s 9 of the Code whether or not the issue has been raised by defence counsel. It is first necessary that the evidence be accepted by the court. That evidence must go not only to the belief but also establish that it was mistaken: see Ostrowski v Zaza (1999) 108 A Crim R 350 at 352; Su v Australian Fisheries Management Authority (No 2) (2008) 189 A Crim R 23 at 34; Lyons at 299.
74 In a case in which a direction under s 9.2(2) or equivalent provisions in other criminal legislation has not been sought or given at trial, the accused will not succeed on appeal unless he or she is able to show that there was material on which the jury could legitimately have entertained a reasonable doubt about the issue of whether he or she reasonably held the mistaken belief: see Millar v R (1998) 103 A Crim R 526 at 528.
75 The appellant did say, in respect of her mode and tone of speaking which constituted the essential element of “yelling” for each of the insubordinate conduct charges, that she thought it was “just normal” or “talking normally” and for the two occasions made reference to her “severe ear pain” and “buzzing sound in my ear” respectively. She denied yelling on either occasion.
76 The Defence Force Magistrate did not turn his mind to the availability of s 9.2 when he considered possible defences to the charges. He did not accept the appellant’s evidence that she did not yell while accepting that she had some hearing deficits. He did not consider her explanation that she did not think she was yelling or, if she were, that her belief was reasonable.
77 The respondent contended that the Defence Force Magistrate did so in the passage in his reasons set out at [57]. That argument cannot be sustained. The Defence Force Magistrate was required to consider, since the appellant had met the evidentiary threshold on the balance of probabilities, whether the prosecution had excluded beyond reasonable doubt that the appellant was reasonably mistaken in her belief that she was not yelling. If the prosecution could not discharge that onus then the facts were as the appellant reasonably believed them to be, that is, her normal speaking voice, not yelling.
78 The respondent accepts that it was the conduct in yelling the words charged which constituted the gravamen of the offence of insubordination.
79 The failure by the Defence Force Magistrate to direct himself on a possible defence under s 9.2 in respect of the insubordinate conduct charges has deprived the appellant of the chance of an acquittal in respect of those charges and a substantial miscarriage of justice has occurred.
80 The convictions entered on those charges should be quashed.
81 We do not consider that a retrial should be ordered. The relevant events occurred over three years ago. Through no fault of the appellant the trial did not commence until 3 August 2010. The appellant lodged the petition seeking review of her convictions immediately after the trial. The petition was dismissed on 28 September 2010. The appellant was not advised of this until January 2011. She lodged a further petition with the Chief of Army on 28 January 2011. The appellant was not advised of the outcome of her further petition until January 2012. She then lodged the present appeal. With the passage of time it is likely that the memories of witnesses will have faded. At least one has since left the Defence Force.
82 In these circumstances we do not consider that the interests of justice would be served if the appellant were required to prepare for and participate in another trial.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, White and Logan. |
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