DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Private R Army v Chief of Army  ADFDAT 1
Table of Corrections
In paragraph 95, “at one stage” has been inserted before “acting as solicitor”.
COMMONWEALTH OF AUSTRLIA
DATE OF ORDER:
THE TRIBUNAL ORDERS THAT:
1. Insofar as the same may be necessary, the appellant be granted the requisite extension of time within which to appeal and leave to amend his notice of appeal in terms of the amended notice of appeal filed in the Tribunal.
2. The appeal be dismissed.
3. The respondent’s application for costs be refused.
4. There be no order as to costs.
1 The present appeal is a sequel to constitutional writ proceedings in the High Court of Australia in which the appellant, Private R, sought, unsuccessfully as it transpired, to prohibit a Defence Force Magistrate (DFM) from dealing with a charge alleging his commission of a service offence of an assault occasioning actual bodily harm on a member of the permanent air force, brought pursuant to s 61(3) of the Defence Force Discipline Act 1982 (Cth) (DFDA): Private R v Cowen (2020) 94 ALJR 849.
2 The offence concerned was alleged to have occurred on 30 August 2015, in a hotel room in Fortitude Valley, Brisbane. The bodily harm particularised in the charge was bruising to the female complainant’s throat.
3 At the time, Private R and the complainant were each members of the Australian Defence Force (ADF), although neither was then on duty or in uniform. Then as now, Private R was a member of the Regular Army. The complainant was a member of the component of the Royal Australian Air Force known as the Permanent Air Force. She and Private R had, in the past, been in an “exclusive relationship”. Thereafter, they had, on occasion, casually engaged in sexual relations.
4 The effect of s 61(3) of the DFDA is to incorporate by reference and make a service offence conduct which takes place outside the Jervis Bay Territory which, had it occurred in that territory, would be an offence in that territory. Assault occasioning bodily harm is criminalised in the Jervis Bay Territory by reason of s 24 of the Crimes Act 1900 (ACT), which applies in that territory by virtue of the Jervis Bay Territory Acceptance Act 1915 (Cth).
5 The High Court’s judgment settles in favour of the respondent Chief of Army the earlier question as to whether s 61(3) of the DFDA had lawful application to the conduct which was the subject of the charge laid by the Director of Military Prosecutions against Private R. It is unnecessary further to consider that question.
6 The High Court’s judgment was delivered on 9 September 2020. A trial in respect of the alleged offence was then consequentially conducted before a DFM in December 2020 over 5 days (from 1 December 2020 to 7 December 2020). On 8 December 2020, for reasons delivered ex tempore, the DFM convicted Private R. On 23 February 2021, the DFM sentenced Private R to 120 days of detention, with a suspension of 90 days of that term and made a strong recommendation that he remain in the Army.
Extension of Time
7 By s 20 of the Defence Force Discipline Appeals Act 1955 (Cth) (Appeals Act), provision is made for an appeal to the Tribunal against such a conviction. There is no right of appeal against a consequential sentence. By s 21(2) of the Appeals Act, it is provided that the “appropriate period” for the lodgement of an appeal in relation to proceedings before a service tribunal that have resulted in a conviction (or a prescribed acquittal) is the period of 30 days commencing immediately after:
(a) the day on which the results of a review under s 152 of the DFDA of the proceedings are notified to the convicted person (or the prescribed acquitted person); or
(b) the last day of the period of 30 days after the conviction (or prescribed acquittal);
whichever is earlier.
8 Private R did not lodge an appeal within the earlier of these periods. He did not lodge an appeal in the Tribunal until 18 June 2021. There were good reasons for this, explained by affidavit, relating to awaiting the result of the review mandated by the DFDA.
9 Other asserted reasons for the delay relating to the earlier proceedings in the High Court were also mentioned in the supporting affidavit material. However, the charge under the DFDA only proceeded to hearing and, in the result, conviction, after the final determination of the proceedings in the High Court. The question resolved by the High Court was, undoubtedly, of pervasive importance to the service discipline system for which the DFDA provides. However, that earlier phase is not explanatory of subsequent delay in the institution of an appeal.
10 The review of a conviction for which s 152 provides, informed as it is by a report prepared pursuant to s 154 of the DFDA by a legal officer appointed by the Chief of the Defence Force or a service chief on the recommendation of the Judge Advocate General, is no mere formality. Rather, it is an important internal assessment of the legality of a conviction by a service tribunal by a suitably qualified legal practitioner, who is expected to furnish an independent opinion for the benefit of the reviewing authority. The Tribunal has in the past recognised that it is appropriate for a prospective appellant to await the outcome of a review before instituting proceedings in the Tribunal: Boyson v Chief of Army  ADFDAT 2 (Boyson), at  and .
11 It appears that Parliament envisaged that such reviews ought usually to be completed well within the 30 day period mentioned in s 152 of the DFDA, thus allowing any appeal to the Tribunal to be filed within that period. Our collective experience is that, while the conduct of such reviews is approached with the expedition that, for good reason, ought to attend the disposal of service discipline cases, it is by no means uncommon for a s 152 review not to be completed within the 30 day period. Given the expectation of independence that attends the preparation of a s 154 report, which is a condition precedent to a review under s 152 of the DFDA, it would often be wasteful of public resources devoted to the administration of the Tribunal, including the consideration of any legal aid application, for an appeal to be filed prior to the outcome of the s 152 review becoming known to the convicted defence member and his or her legal representatives. So it may very well be that this case highlights a law reform issue in relation to the period for which s 21(2) of the Appeals Act presently provides which might commend itself to the Attorney General, as the Minister administering the Appeals Act. A more suitable “appropriate period” might be achieved by omitting “whichever is the earlier” from s 21(2) of the Appeals Act and replacing it with “whichever is the later”.
12 As it is, in the present case and taking into account the explanation given by and on behalf of Private R and also the absence of active opposition by the Chief of Army, we were disposed at the hearing to grant Private R the requisite extension of time.
Use of a pseudonym for the appellant and suppression of the complainant’s name
13 In the ordinary course of events, the substantive hearing of an appeal (or related extension of time application) is required to be held in public: s 18(1) of the Appeals Act. However, s 18(2) of the Appeals Act provides that the member presiding at the sitting, or, if the Tribunal is constituted by a single member exercising the powers of the Tribunal, that member, may, if he or she considers it necessary in the interests of the defence of Australia, the proper administration of justice or public morals:
(a) order that some or all of the members of the public shall be excluded during the whole or a part of the sitting; or
(b) order that no report of or relating to the whole or a specified part of the proceedings of the Tribunal at the sitting shall be published.
14 The Commonwealth of Australia, via the Australian Government Solicitor, sought and was granted leave to intervene in the proceeding so as to make application for a pseudonym to be assigned to the applicant and later appellant and for related restrictions in relation to reporting.
15 Private R is a member of a Special Forces unit. Initially, the reasons for this application were explained in an affidavit by a Brigadier and later by that of a Major General, each of whom held an appointment within the ADF’s Special Operations Command. The application was supported by Private R and, unsurprisingly, the Chief of Army.
16 Section 18 of the Appeals Act falls for application according to its terms in circumstances as wide and variable as those giving rise to cases falling within the jurisdiction of the Tribunal and thus with respect to conduct amenable to the operation of the DFDA.
17 An important feature of the subject matter, scope and purpose of the Appeals Act is that the establishment of the Tribunal was Australia’s response to a general recognition throughout the Commonwealth of Nations in the 1950s, informed by the experience of the millions of non-career members of the several armed forces of the United Kingdom, Australia and other members of the then British Commonwealth and Empire during the Second World War, that greater independence and transparency was both desirable and necessary in respect of challenges to convictions for service offences. Review within the chain of command with the theoretical and limited recourse to the courts on jurisdictional error grounds via what were then termed prerogative writs, rarely exercised in practice and more limited in scope than an appeal to a court of criminal appeal in respect of a civilian criminal offence, was no longer considered to be sufficient.
18 In the United Kingdom, for example, the resultant parliamentary response saw the establishment of the Court Martial Appeals Court with an appellate jurisdiction identical for all practical purposes to a civilian court of criminal appeal. In Australia, it seems that then prevailing views about the judicial power of the Commonwealth and also the apprehended greatly variable nature of the volume of appellate business with which the Tribunal was expected to deal, saw Parliament opt for a tribunal comprised of term appointees situated within the Executive Branch, rather than a court established under Ch III of the Constitution but nonetheless with an appellate jurisdiction analogous to a civilian court of criminal appeal. Self-evidently, the high public policy objective of these widespread reforms was that recourse to a body outside the service chain of command was considered conducive to greater confidence in a service discipline system and thus to service morale and operational efficiency as buttressed by that system. The confidence concerned is not confined to defence members themselves but extends to their families and the community generally.
19 Although the tribunal so established exercises executive, not judicial, power in respect of appeals against convictions for service offences (and prescribed acquittals) and, within the Executive Branch, sits at the apex of Australia’s service discipline system, it is a civilian tribunal, entirely outside the chain of command of the ADF. In modern times, membership of the Tribunal has been confined to superior court judges who, with the permission of their Head of Jurisdiction, volunteer to serve, without any additional remuneration, as members upon the recommendation of the Attorney-General to the Governor-General in Council. That the Appeals Act has always been consigned by the Governor-General in the prevailing Administrative Arrangements to the administration of the Attorney-General, rather than to the Minister for Defence, is another indication of the institutional independence expected of the Tribunal.
20 Given the high public policy purpose mentioned, the general prescription in s 18(1) of the Appeals Act for the Tribunal to exercise its jurisdiction in public is unremarkable. A civilian court of criminal appeal also usually sits in public in the exercise of judicial power. As with a civilian court of criminal appeal, it is no small thing to depart from that position.
21 In the sense that every case coming before the Tribunal concerns a conviction (or prescribed acquittal) in respect of a service offence, and thus the conduct of a member of the ADF (or other person to whom the DFDA may apply), every such case touches upon the defence of Australia. Formally, the defence of Australia is the responsibility of the Governor General, as the Queen’s representative and commander in chief: s 61 and s 64 of the Constitution (and note also the duty imposed on the Commonwealth by s 119 of the Constitution to protect the several States from invasion). By convention, that role is undertaken on the advice of the Federal Executive Council (s 62 of the Constitution). More particularly and in terms of statutory provision, the Defence Act 1903 (Cth) (Defence Act), by s 8, vests the general control and administration of the ADF in the Minister (the Minister for Defence under the prevailing Administrative Arrangements). That section also subordinates the Secretary and the Chief of the Defence Force to the directions of the Minister. Subject to this, s 9 of the Defence Act vests the command of the ADF in the Chief of the Defence Force (CDF) and tasks the CDF with advising the Minister in relation to the command of the ADF. Also subject to this, s 10 of the Defence Act vests the general administration of the ADF in the Secretary to the Department of Defence and the CDF jointly.
22 As can be seen, in none of this does either any Brigadier or any Major General, including the authors of the affidavits concerned, have any public policy or determinative responsibility for the defence of Australia and what is in the interests of the defence of Australia. In this sense, each of the deponents mentioned is a relatively junior officer. As was apparent from their respective affidavits, each has a subordinate, operational responsibility within the ADF chain of command. Their views and experience might well inform the determination of policy in relation to what is in the interests of the defence of Australia but neither officer determines such policy.
23 There are analogies to be drawn between the usual practice in relation to claims for public interest immunity by the Executive in the courts and a claim that the Tribunal should exercise its power under s 18(2) of the Appeals Act. In the courts, the usual practice is that such a claim is supported by an affidavit made by the responsible Minister or other high official (or both): see Sankey v Whitlam (1978) 142 CLR 1, at 44 per Gibbs ACJ. Even then, the views expressed by such high public officials, while relevant and to be respected, are not determinative. It is for the court concerned to determine the merits of such a claim, balancing it against other public interest considerations, principally open justice.
24 Similarly so it is in relation to any claim for restriction in reliance on s 18(2) of the Appeals Act where the ground of the interests of the defence of Australia is relied upon. Sometimes, and again by analogy with public interest immunity, the very subject matter of a claim relating to the defence of Australia and a consequential need for some form of restriction of publication or privacy of hearing may be sufficiently apparent and persuasive just by the very subject of the claim. There can be no hard and fast rule of practice and procedure as to what is a sufficient evidentiary foundation.
25 All of the matters just referred to informed the Tribunal’s intimation to the solicitor for the Commonwealth at the commencement of the hearing that he may wish to consider the evidentiary foundation for the application under s 18(2) of the Appeals Act and the weight as to maters of policy which might be afforded to evidence from officers who had no policy determinative responsibility. The Commonwealth took up this intimation and came to file and rely upon an affidavit made by the CDF. The CDF is, for reasons canvassed above, an officer who has either direct responsibility for policy in the command of the ADF or for advising the Minister in relation to related matters of policy. It is quite apparent from the CDF’s affidavit that an unfortunate feature of the times in which we live and thus of some of the operations on which those members of the ADF assigned to Special Forces come or may come to serve is that, even after return to Australia, such members may come to be targeted by State or non-State actors in ways and at times that are unpredictable. Private R has undertaken such service and continues to be a member of a Special Forces unit. Having regard to the affidavit of the CDF, which takes up and endorses at a relevant policy level, views expressed by the Brigadier and Major General as subordinate, operational officers, we considered it appropriate to afford Private R a pseudonym.
26 Although, in the final result, whether to make a restriction was not controversial, occasion to consider matters of practice and procedure in relation to s 18 of the Appeals Act does not often presently arise, especially with respect to a ground based on the interests of the defence of Australia. We therefore considered it opportune to make the foregoing observations. Another factor which informed our making them was an apprehension that there may, initially, have been a degree of reluctance on the part of those advising the Commonwealth, or perhaps just a lack of understanding as to the need, to approach those with personal policy responsibility, i.e. the Minister or the CDF, with a view to their manifesting such responsibility by the making of an affidavit.
27 Ultimately, each case must be decided on the evidence to hand but where the restrictive ground concerned is the interests of the defence of Australia, the weight one gives that evidence is necessarily influenced by the policy responsibility, if any, of a given deponent. Sometimes, of course, especially at an interlocutory stage but in any event in circumstances of some urgency, it may be necessary to act on other than evidence from a Minister or other senior official with policy responsibility.
28 There was a quite separate occasion for making other restrictions under s 18(2) of the Appeals Act in this case. That occasion is to be found by analogy in the contemporary practice of the civilian criminal courts in relation to suppression of the identity of a complainant in a case where the charge concerned has sexual aspects. Permitting the identification of a complainant by name in a report of a case or disclosing that name in reasons for decision can be antithetical to the willingness of a complainant to make any complaint at all to authorities in respect of the alleged commission of such an offence or to give evidence concerning such an offence. We did not consider that there was any competing public interest served by naming the complainant in the Tribunal’s reasons. Neither party to the appeal submitted otherwise. Accordingly, the complainant’s name has also been supressed.
29 We should also record that, although the Appeals Act consigns the power to make a restrictive order under s 18(2) to the presiding member, the foregoing represents our collective view, not just that of the President as the presiding member. It may be that the text of s 18 and its allocation of power to the presiding member reflects an earlier era in the history of the Tribunal when not all of its members were superior court judges.
Grounds of Appeal
30 The grounds of appeal underwent quite some revision after the initial filing of a notice of appeal.
31 As amended, the grounds sought to be raised by Private R were as follows:
1. The DFM's verdict was unreasonable or could not have been supported having regard to the evidence, pursuant to s 23(l)(a), and further, or alternatively, that in all the circumstances of the case, the conviction of the applicant was unsafe and unsatisfactory, pursuant to s 23(1)(d);
2. That incompetence of Counsel occasioned a miscarriage of justice, pursuant to s 23(l)(c);
3. The DFM erred at law in denying the applicant procedural fairness by refusing the application for an adjournment of the hearing, made on 5 November 2020, pursuant to s 23(1)(b);
4. The absence of “new” evidence led to a miscarriage of justice, pursuant to s 23(l)(c) of the Appeals Act.
32 As so expressed, these grounds were wanting in particularity. However, particulars were furnished and each of these grounds was, to say the least, fully argued. As particularised and as counsel for Private R correctly conceded, the grounds were not confined to a question of law but entailed questions of fact and thus, as s 20(1) of the Appeals Act requires, a grant of leave. Further, ground 4 was added after the initial amendments to the notice of appeal and also required a grant of leave to amend.
33 It is in the interests of justice that all such leave as is required be granted.
34 Although this ground alleges two bases separately specified in s 23 of the Appeals Act upon which an appeal might be allowed, each party was agreed that, at least in the circumstances of any application in the present case, no relevant distinction was to be drawn between the grounds specified in s 23(1)(a) and s 23(1)(d) of the Appeals Act. The Tribunal has in the past and by reference to authority in the High Court concerning analogous provisions in the civilian criminal justice system, remarked on the overlap between these paragraphs of s 23(1): Fulton v Chief of Army  ADFDAT 1 (Fulton), at , and Randall v Chief of Army  ADFDAT 3 (Randall), at . A comprehensive collation and discussion of authorities pertinent to an unreasonable verdict ground was recently offered by Brereton JA (N Adams J and Cavanagh J agreeing) in Tomlinson v R  NSWCCA 16, at  et seq. It is not necessary to repeat what is there stated. The pertinent principles, as derived by the Tribunal in Yewsang v Chief of Army  ADFDAT 1 (Yewsang), at  – , from such analogous authority are:
(a) The Tribunal must address the question whether, upon the whole of the evidence, it was open to the DFM to be satisfied beyond a reasonable doubt that the applicant was guilty?
(b) To address that question, the Tribunal must make an independent assessment of the sufficiency and quality of the evidence.
(c) The conviction must be set aside if the Tribunal decides that the DFM must, not might, have had a reasonable doubt about the appellant's guilt, even if there is sufficient evidence in law to support it.
(d) A doubt experienced by the Tribunal will be a doubt which a DFM ought also to have experienced, except where the DFM’s advantage of seeing and hearing the evidence is capable of resolving a doubt experienced by the Tribunal.
35 Since Fulton, Yewsang and Randall were decided, the High Court has emphasised, by the following explanation in Pell v The Queen (2020) 268 CLR 123 (Pell), at 144 – 145,  – , that a court exercising appellate criminal jurisdiction undertakes a different function from the primary tribunal of fact (a jury in that case) in an assessment of the evidence and must not usurp the function of that tribunal of fact:
[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
... The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury.
[Footnote references omitted]
36 A like position prevails in relation to the respective functions of this Tribunal and the tribunal of fact functions of a service tribunal exercising jurisdiction under the DFDA, be that a court martial panel or, as in the present case, a DFM. Further and as with a civilian judge or magistrate trying a case alone and unlike a civilian jury or a court martial panel, a DFM is obliged to expose his or her reasons for convicting the person charged.
37 Another passage from the joint judgment in Pell, at 145, , is also in our view applicable, mutatis mutandis, to the function of the Tribunal on an appeal where, as here, reliance is placed on 23(1)(a) of the Appeals Act to challenge a conviction by a service tribunal:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[Footnote reference omitted – emphasis added]
38 As with a judge or magistrate trying alone a charge in the civilian criminal justice system, the acceptance by a DFM of the credibility and reliability of a complainant is not just a matter of assumption but must be, and was in this case, exposed in the reasons given by that DFM. At times, some of the submissions made on behalf of Private R in relation to Ground 1 seemed to us to solicit, contrary to the emphasised observation by the High Court in Pell, our making our own assessment of whether the evidence of the complainant was credible and reliable.
39 Counsel for Private R put forward the following in support of Ground 1:
(a) The complainant’s evidence was said to be irreconcilable with the independent evidence of Mr Burke, the Security Guard at the Limes Hotel.
(b) Related to (i), the timeframe of the intervention of the Security Guards was said to be irreconcilable with the complainant’s evidence. (This was said also to be relevant also to Ground 4).
(c) An alleged absence of corroborating medical evidence as to the complainant’s account of the alleged offence (Also said to be relevant to Ground 4).
(d) An alleged lack of support for the complainant’s evidence as to the bruising to her throat in the evidence of the prosecution witnesses Mr Boland and Sergeant (SGT) Steege.
(e) Delays and inconsistencies in the evidence as to the complainant’s complaints.
(f) Alleged irreconcilable inconsistencies within the complainant’s evidence.
(g) An alleged inclusion by the complainant of misleading evidence in her statements to Australian Defence Force Investigation Service (ADFIS).
(h) An alleged non-responsiveness and evasiveness by the complainant in cross- examination.
(i) Alleged inconsistencies between the independent and prosecution witnesses' evidence that of the complainant.
(j) That the evidence of the complainant was undermined by the evidence as to her intoxication.
(k) Alleged support in the independent and prosecution witnesses’ evidence for that of Private R.
(l) A contention that Private R was unshaken in his evidence.
40 In addition, Private R came to allege, under the guise of Ground 1, that an impermissible, uncorrected violation of criminal procedure and practice had occurred when Private R was cross-examined by the prosecuting officer as to why particular parts of his evidence had not been put to the complainant. In this regard, reliance was placed for Private R upon the High Court’s recent judgment in Hofer v The Queen (2021) 95 ALJR 937 (Hofer). As to this, there is much force in the submission made for the Chief of Army that it requires a very liberal reading indeed of Ground 1 to regard it as embracing this additional point. The point sought to be raised would more readily constitute the particularity of a ground based on s 23(1)(c) of the Appeals Act (material irregularity and resultant substantial miscarriage of justice). Ground 4 raises an issue under s 23(1)(c) but is not particularised by reference to this additional point.
41 Our examination of the record of proceedings before the DFM confirms that there is a foundation for the point, which is to say nothing in itself as to whether it has any merit. We are satisfied that the Chief of Army was given sufficient notice of the point such that, in conjunction with the afforded opportunity to file written submissions supplementing oral submissions, no procedural unfairness has been visited upon him. We therefore consider it to be in the interests of justice to address this additional “Hofer” point on its merits and do so below.
42 Turning to the particularised foundation for Ground 1, it was never controversial that, on the evening of 30 August 2015, Private R and the complainant had been together for a time in a room in Limes Hotel, Fortitude Valley, following socialising with others earlier that evening to mark the complainant’s birthday.
43 It was in issue whether Private R had engaged in the conduct with which he was charged whilst in the hotel room with the complainant. It is axiomatic that it was always for the prosecution to prove the offence charged beyond reasonable doubt. No onus of proof fell on Private R.
44 The DFM gave comprehensive, ex tempore reasons for convicting Private R. In so doing, he explicitly found the complainant to be an honest, credible witness (Transcript (T), p 467):
To my mind she was a credible, honest, reliable witness doing her best to recall events and there is significant evidence to support her account.
45 The “Mr Burke” referred to in Private R’s particularisation of Ground 1, is a defence witness, Mr Derrek Burke. On the evening of 30 August 2015, Mr Burke was employed as a security staff supervisor by Best Security, the security contractor for both the Limes Hotel and a nightclub and restaurant, the Alfred & Constance, situated some 50 metres away from the hotel, separated by another building. In that capacity, Mr Burke supervised subordinate security staff providing security at both the Limes Hotel and the Alfred & Constance.
46 Mr Burke outlined, by reference to a company supervisor’s weekly incident report prepared by him and tendered in evidence (Exhibit 13), a practice whereby incidents involving physical contacts by or with security staff employed by Best Security were required to be entered in that report. The report in evidence included coverage of the evening 29/30 August 2015. Mr Burke particularly recalled an incident that evening in which a subordinate security officer who was a personal friend had had his nose broken in the course of an incident at the Limes Hotel. However, he had no recollection of being called to any other incidents at the hotel that evening (T 325). The effect of his evidence was that, as supervisor, he had a roving brief for a shift, not fixed to any one of the two venues. He also stated in his evidence in chief that, an incident would not be entered in the weekly incident, “if it didn't involve the specific items removed physically or injured, destroyed criminal act and general disturbance, if it didn't have those then I wouldn't have reported it” (T 326).
47 In relation to access to any particular room at the Limes Hotel, Mr Burke stated that security staff did not themselves have a master key but rather obtained an access key as and if required from the hotel’s on-duty receptionist.
48 In her evidence in chief, the complainant related a heated incident between her and Private R in a room at the Limes Hotel in the early hours of 30 August 2015 in which she had stated to him she was going home, sought to telephone a lift for that purpose using her mobile phone and had that phone forcibly removed from her by Private R who told her she was not going home. She described a two-staged assault in which, initially, she had been pinned against a wall by him with his hands around her throat and then, after she had broken free:
… [My] head was in between the door where the door is and the wall and he was on top of me with his full weight and had his hands around my throat. I remember thinking that I couldn't - I didn't want to bring attention to it because I didn't want anything to come - I didn't want him to lose his job, and then I realised I couldn't breathe and I couldn't scream so the only thing I could do was just knock the door and knock the wall with my hands and I'm not sure how long that went on but at some point two security guards came barged through the door and I just crawled around the door and crawled in across the way to a different - some two girls had their door open who I assume reported or called for the security guards because they heard it, and I ran into their room and that was the last time I ever seen him.
49 In his evidence, Private R did not dispute that two security guards had attended at the room but stated he had let them in on request.
50 The point made for Private R both at trial and pressed on appeal which was said, necessarily, to occasion a reasonable doubt was that an incident as described by the complainant would necessarily have been entered in the weekly report.
51 Having found the complainant to be an honest, credible witness and made reference, as we later shall, to the contents of text messages later sent by Private R to the complainant which the DFM found to be corroborative of her evidence, the DFM addressed squarely the subject of Mr Burke’s evidence and, related to that, the absence of an incident entry in the weekly report. The DFM stated:
Does the evidence about the security guards cause me to have any doubt about the prosecution case? I found the evidence of the security guard, Mr Burke, whilst on the face of it he was an honest witness doing his best to recollect events, he was after all referring about events that took place five years ago.
It is not clear in my mind that it was not possible for other security guards to have been there, or they had been there, or the complainant may have been mistaken as to who got up and how they got in the door. Her evidence was clear in the cross-examination that she could not see what was happening on the other side of the security guards. While she conceded in a statement she had used the word tackled she did go on to say that she could not say what they were doing and that they entered the room and the defendant was on the other side of them.
So there is no direct evidence that they laid hands on the defendant at all and the real question is then how did they get into the room? To my mind, whilst the complainant was adamant that they let themselves in it may well be, to my mind, she is mistaken about that, that the defendant did open the door. As I find the facts to be she had been throttled by that stage, up against the wall, it was a highly traumatic experience.
It was submitted by the learned defence counsel that she somehow managed to recall lots of details during that part but the expression your life passing between your eyes is not unknown to the human condition. And I did not find anything untoward in her evidence about saying she was able to recall specific events in her life or concerns at that moment. But the medical evidence may be relevant at that stage is that if she could not scream, as she said, because she was being throttled then that is indicative of the amount of force had been applied to her.
It was clearly a very fluid event and the issue is not determinate, to my mind, of who it was who let the security staff into the room, it is she clearly got out of that room, it is not determinate of any issue as to how she got out of the room either whether she crawled or ran.
52 By reference to the whole of the evidence, and that is the required approach in relation to this type of appellate jurisdiction, the case was not one in which the DFM, rationally, must have entertained a reasonable doubt as to the commission of the offence charged by Private R. For the purposes of this ground of appeal, the whole of the evidence is the whole of the evidence led at the trial before the DFM.
53 The DFM found the complainant to be credible in her account as to:
(a) Private R’s angry, drunken behaviour at a venue elsewhere in Fortitude Valley where the complainant’s birthday celebration took place. There he made a particularly spiteful and vitriolic outburst against the complainant at the time when, intoxicated, he was being evicted from that venue.
(b) The complainant’s statement that Private R’s behaviour was provoked by her rejection of his amorous advances and her indication to him that there would be no sexual intercourse between the two that evening. (Private R’s account was that he was motivated not by sexual rejection, but by the complainant’s lack of emotional support and empathy.)
(c) Private R’s ongoing, angry state of mind, in respect of which his earlier angry drunken conduct at the venue provides “transactional evidence” as to his ongoing state of mind. (Private R stated that he had cooled down between being evicted from the venue and his return to the hotel room where the alleged assault took place.)
(d) The two stage assault, initially held up against a wall with Private R’s hands around her throat and, after she broke free, his then being on top of her with his hands around her throat, her banging walls and doors, his screaming “What have you done? What have you done?”
(e) An arrival of two security guards (in itself, an uncontested fact).
(f) Her sustaining bruising to the neck, on either side of her throat in the area of her Adam’s apple.
(g) Her attendance on Dr Shane Smith, a medical officer at RAAF Base Amberley on the following Tuesday, that is two days after the alleged offence on the early morning of 30 August. Dr Smith noted bruising to the neck.
(h) Her strong response in a message to Private R via Facebook Messenger on 8 September 2015 (part of the bundle comprising Exhibit 1), calling out Private R for falsity in a counter-narrative he put forward, shortly after the incident in the hotel room, on Facebook Messenger in which he stated that she was on drugs at the time and had charged at him in the hotel room.
54 The DFM analysed in detail, as we have as part of our review of the whole of the evidence, the Facebook Messages from Private R which, on 8 September 2015, preceded and immediately followed this response from the complainant to him. It is desirable to set out from the reasons of the DFM the collation he offered of excerpts from the replies sent by Private R to the complainant after her message. This is not just because we find the collation to be accurate and fair but also because the excerpt exposes the use made of this evidence by the DFM. We have added an annotation to the transcript of this part of the DFM’s reasons so as to differentiate evidentiary excerpts from the DFM’s related, reasoned commentary and findings:
There is a reply from the defendant at 1602 on 8 September:
[Familiar name for the complainant], I cannot take anything back now, the sick, soul crushing feeling I've had 27/7 will never leave me. Either fact it came to a head. It will haunt me forever as I'm sure it will to you as well.
[DFM] Just pause there to note the defendant is talking about something that is going to haunt him forever and an acceptance that something happened that is going to haunt her forever. And I reject the defendant's evidence or submissions by his counsel that this was referable to an event in the nightclub which concerned only verbal abuse. That verbal abuse of course was bad by itself but verbal abuse would not cause something to haunt somebody.
He said, “I’m so much more remorseful for what I did to you”. He then went on to say, “I don’t want, deserve, or expect sympathy, this evil person turns out is woven into my fabric and I'm truly horrified that after all the time of not knowing and leading a good life that this is who I am. I hate myself. I hate that this is a part of me. I hate that after everything I’m the type of person I despise. I have barely eaten, can’t stop shaking, can't sleep, feel sick, can’t concentrate on anything other than what I have become. I’m embarrassed and ashamed I have now dropped the hammer on my toe and it’s come to light the depths of my evil. I don't know how to live with myself”.
Then further on, “I thank you for not throwing me to the wolves”.
I consider quite comfortably all of those are references to an event far more serious than that which the defendant would have me believe. And the reference, as I have already said, all of that reference about hating himself, depths of his evil, is a reference to something that is very serious that has happened. And not throwing to the wolves is a reference to not reporting to authorities. And on his version, all he did was swear at her in a nightclub. And that would not require, or he would not expect being reported to the authorities for calling his ex-partner names in a nightclub.
55 To give context to the reference by Private R to, “I’m embarrassed and ashamed I have now dropped the hammer on my toe”, it is necessary to quote this extract from the complainant’s message to him earlier on 8 September 2015, to which Private R is replying:
My doctor explained your behaviour to me - having seen it hundreds of times before. He said it’s not that people change. That trait was always there, it’s just taken a serious of events to erode your inhibitions. He said if you know someone who never swears and then one day they drop a hammer on their toe and say fuck. It wasn’t that they never thought it or that it wasn't in their character – because it was, they just never vocalised it. It took the hammer to expose what had probably crossed their mind multiple times. Maybe everything that has happened in your life thus far is the hammer and Saturday night was the moment it dropped on your toe.
56 The DFM continued, with reference to this “dropping a hammer on the toe” subject:
And then despite the defendant’s evidence in the witness box that he did not want anything further to do with her he follows it up saying he is now slipping into his own personal hell, “I refuse to be typecast by your doctor. I’ve hurt you in the worst way I possibly could. I'm begging you with tears running down my face to forgive me and not let this define me. I’ll never be able to apologise enough and nothing I’ve said here is to justify nor excuse what happened”.
All of those to my mind are indicative of accepting that something far more significant has happened and it has happened at the hands of the defendant.
57 The medical officer, Dr Smith, gave evidence. Also in evidence (Exhibit 6) was the clinical note he made on 1 September 2015 when the complainant attended on him:
- Ex-partner allegedly assaulted member on Saturday night
- Grabbed her around the neck
- She was very fearful, couldn’t yell due to strangulation so hard to bang on walls
- Was rescued by some people in the hallway
Presents today very distressed
- Long discussion with patient
- No other injuries or sexual assault
- Very upset
- No thoughts of self harm
- Feels safe as person responsible has returned to Townsville
- Has no desire to report this assault at this stage
- Brusing [sic] around neck consistent with hands and fingers
- No other bruising
58 Before the DFM, Private R, by his defending officers (Flight Lieutenant (FLT LT) Dewar, in particular), made an express concession (T156) that there was no issue as to Dr Smith’s ability to give expert evidence. By the time of trial, Dr Smith had been in active general medical practice for some 19 years.
59 Dr Smith related in his evidence that, although he had examined the complainant on 1 September 2015:
The examination I conducted was somewhat limited. It was more of a medical examination rather than a forensic one, and the reason for that was at the time she told me she didn't really want to take this further legally and usually when patients tell us that we then just focus on the clinical exam rather than try to be more thorough forensically.
In that examination, he noted that:
... she was speaking normally which tells me that there was no acute trauma to her larynx or her throat, there was no oedema or anything like that, there was no change in her voice from what I normally have seen her in previous times from. So there was that information; she was not breathing in a distressed way, again tells us that there's no acute injury there that’s of any life threatening or acute nature.
Dr Smith related that he:
... then examined her neck and there was bruising around her neck and there was no petechial haemorrhages that I saw, although I wasn't looking at her eyes and other places that we'd normally find that. There was some tenderness in her neck, but other than that, there was nothing much to find.”
60 As to the bruising he observed, Dr Smith related that it:
… had a particular pattern to it. It appeared in stripe-like formation. It’s a bruising that we tend to see when people have been grabbed around the neck. People say it’s finger-like bruising. Other things I’m sure could cause it but it was consistent with the story she was telling me that she’d been grabbed around the neck.
61 When asked about the consistency between the history of the incident as related to him by the complainant and the bruising he observed, Dr Smith stated:
There was some interesting parts to her story. The first part she mentioned, that she was unable to scream, she was unable to vocalise, that indicates that we’ve got airway constriction. That is a fairly significant amount of force that needs to happen for that to occur, and then of course the bruising. Now, bruising is an inconsistent finding. Some people bruise a whole lot easier than others but it was there nonetheless, but more my concern was the fact that she said she was unable to vocalise. That tells me there’s been a significant force applied.
Was the bruising generally consistent with what she was telling you or was it inconsistent with that?---It would have been consistent.
62 In cross-examination, Dr Smith agreed that it was unusual in his practice for him to be consulted by someone who complained of strangulation and that the complaint made by the complainant was, to his recollection, the only one that year. He related that, over his years in practice, he had encountered 20-30 cases entailing a complaint of domestic violence. He stated that, in his experience, it was not unusual for a patient in such a case not to wish to pursue it with authorities.
63 In cross-examination, Dr Smith stated that, over the course of his career, he had only encountered about a dozen domestic violence, neck injuries. He accepted that petechial haemorrhaging could be a sequel to strangulation and stated that he had not seen evidence of this on the complainant. He also related that this sign was more common in ligature rather than manual strangulation. He stated, “The science behind bruising, as far as trying to elicit force and to elicit timeframes and that sort of thing, is reasonably poor.” Dr Smith qualified the opinions he expressed by stating that he was not a forensic pathologist and was relating his understanding.
64 When asked why he had not reported this case to the complainant’s chain of command, Dr Smith stated that, although he had served as a military medical officer from 2004 to 2008 so as to fulfil a return of service obligation after completing his medical studies, in 2015 he was conducting his practice at the Amberley Medical Centre as a civilian. Given that he did not understand the complainant to be at imminent risk of harm, his obligation of patient confidentiality and her then expressed desire not to pursue a complaint to authorities, Dr Smith stated that he considered he was not required himself to report the complaint to her chain of command.
65 SGT Brooke Amy Steege, referred to in Ground 1 of the notice of appeal, was a witness called by the prosecution. SGT Steege related that, as at August 2015, she was a Corporal, posted, like the complainant, to RAAF Base Amberley. She and the complainant were friends. SGT Steege was an attendee at the complainant’s birthday celebration in Fortitude Valley on the evening 29/30 August 2015. This was the first occasion on which she had met Private R. Although she observed at one stage Private R yelling at the complainant, this was in a loud nightclub. She and some others went off onto the dance floor. She did not observe the incident which saw him ejected. However, when she came back to the complainant at the nightclub, she noticed that she was crying and the complainant related to her the incident which saw Private R ejected.
66 When the birthday celebration concluded in the early hours of the morning, SGT Steege was part of a group, including the complainant, which left the last venue visited but she and the complainant went their separate ways, SGT Steege directly home with the complainant being walked back by another friend (not Private R) to Limes Hotel. She understood that the complainant was going to the hotel to collect her belongings and then go home. When she last saw the complainant that evening, SGT Steege observed her to be, “tipsy, happy, having – enjoying a good night, enjoying her birthday. She could very much still have a conversation.”
67 SGT Steege stated in cross-examination that she had brought a birthday cake to the complainant’s house on 31 August 2015, which was the complainant’s actual birthday. There she saw the complainant playing with her young daughter and, “She was being a mum.” At that time, the complainant “seemed pretty normal” to SGT Steege. The complainant did not discuss events at the Lime Hotel after they had parted in the early hours of 30 August with her on 31 August 2015. This, SGT Steege related, the complainant had not done until approximately a week, perhaps a few weeks afterwards.
68 Another attendee at the complainant’s birthday celebration on the evening 29/30 August 2015 who gave evidence was Mr Timothy Boland. Mr Boland is also mentioned in Ground 1.
69 Mr Boland had served in the Army from 1999 until his discharge on medical grounds in 2008. Towards the end of his time in the Army, Mr Boland had served in the same infantry unit as Private R. Although that meant that he knew of Private R, Mr Boland stated that the two of them had not actually been introduced until 2009, after he had left the Army. They were each members of a particular group of soldiers or veterans who socialised together.
70 Mr Boland and the complainant had been partners from 2009 until 2011. This was after Private R and the complainant had ceased their relationship. Mr Boland is the father of the complainant’s daughter. He stated that he saw the complainant daily in a shared parenting role and was on good terms with her. Mr Boland also stated that, by the evening of 29/30 August 2015, he was aware that the complainant had resumed seeing Private R again.
71 Mr Boland related having heard Private R refer to the complainant more than once at the nightclub as “that fuck head” and to having remonstrated with him about that. He did not witness the event which saw Private R ejected from the nightclub, this being later related to him at that venue by the complainant, who was “visibly upset”. This was the last time that evening he particularly recalled seeing the complainant. At that time, he observed her to be drunk “but it’s not like she was … not in control of her actions”. Mr Boland parted from the group and went to stay at the home of one of the complainant’s friends (because it was closer to the inner city).
72 When he woke later on the morning of 30 August 2015, Mr Boland stated that, having recharged his phone, he noted missed calls and messages from the complainant. Mr Boland stated that he telephoned the complainant straight away and that she stated that Private R had attacked her but did not give details. She informed him that, because she had not been able to contact him, she had gone to the home of another of her friends. Mr Boland then went there to pick her up. He noticed that she was “shaken, visibly upset”. Mr Boland stated that he took her home. He then arranged with Private R to pick up from him gear which the complainant had left at Limes Hotel. This was undertaken by Mr Boland texting Private R once he was outside Private R’s house. There, Private R brought the complainant’s gear out to Mr Boland’s car. Neither of them went into any detail about events earlier that morning at Limes Hotel, although Mr Boland noticed that Private R was “visibly shaken”. All that Private R said, so Mr Boland stated in evidence was that, “It’s not him. He don’t know why it happened and – you know – and I spoke to him and said that maybe it would be a good idea with everything that had happened previously to him, military service and serving overseas” that he see the veterans’ counselling service.
73 In cross-examination, a version of events at Limes Hotel that Private R came to relate in evidence was put to Mr Boland in this exchange:
“[The complainant] went wild in the room and she struck me in the face”, and charged at him. Do you remember him saying that?---No, I do not remember.
Is it possible that he has said that?---It is possible
When asked in re-examination about whether he had any recollection at all of Private R saying what had been put to him in cross-examination, Mr Boland replied, “No”.
74 The DFM was not obliged to, and as is apparent from his reasons did not, accept all of the complainant’s evidence.
75 As accepted by the DFM, it did not necessarily follow from the complainant’s evidence, considered in the context of the whole of the evidence, that he must have had a doubt as to the commission of the alleged offence, having regard to the absence of any incident report in the security company supervisor’s weekly report. The weekly report was that of a supervisor and the evidence of the supervisor on the night, Mr Burke, did not even necessarily place him at that time at the Limes Hotel. As he confirmed under cross-examination, he just had no recollection of an incident in a hotel room in the early hours of the morning of 30 August 2015. It was perfectly in conformity with the evidence which Mr Burke gave that, if two subordinate guards had attended and, to their mind satisfactorily resolved an incident in a hotel room there without any particular physical contact, or at least contact that they thought unnecessary to report to him, that Mr Burke would not have made any consequential report.
76 Looking at the whole of the evidence in the present case, it is, for example, very different from the circumstances in Pell. In that case, the unchallenged evidence of the movements of Cardinal Pell and others following the conclusion of Sunday solemn Mass was inconsistent with acceptance of the complainant witnesses’ account, notwithstanding that the jury found that complainant witness to be a credible and reliable witness, such that the evidence as a whole was not capable of excluding a reasonable doubt as to Cardinal Pell’s guilt. The evidence in this case is also very different from M v The Queen (1994) 181 CLR 487 (M v The Queen). In M v The Queen the uncorroborated evidence of the complainant daughter of the appellant was inconsistent with the evidence of one of the prosecution’s medial witnesses as to the alleged occurrence of sexual intercourse, to say nothing of, most importantly, “the improbability of the appellant acting as he was alleged to have done in the circumstances prevailing on that night, namely, on a squeaky bed in an unlocked bedroom which was only a short distance from, and within hearing distance of, another bedroom occupied by the appellant’s wife, in a fully occupied, small house” (at 500).
77 Sometimes, of course, there can be a sharp difference of views in an appellate court or tribunal as to whether, on the whole of the evidence, a reasonable doubt must have been entertained. M v The Queen is an example of such a case. In this Tribunal, Boyson offers another. But the dissent in Boyson was also informed by what appeared to have been a confession by the appellant to a third party, notwithstanding an interrogative note sounded as to the physical possibility of the charged conduct and the ready access by anyone at any stage to the location where the alleged conduct had occurred (the male ablution area of an officers’ mess).
78 Unlike the position with a jury or court martial panel, the DFM’s reasons reveal exactly what part of the complainant’s reasons he accepted as reliable and credible. The DFM’s reasons for discounting her account as to how the security guards entered the room are revealed and, with respect, rational. Taken in conjunction with what the DFM was entitled to regard, as we do, Private R’s Facebook Messenger reply on 8 September 2015 as relating to the occurrence on the evening of 29/30 August 2015 of something far more serious than verbal abuse by him of the complainant and Dr Smith’s noting of bruising to the complainant’s neck, there is nothing otherwise in the evidence which must have occasioned a reasonable doubt as to whether the prosecution had proved the offence charged. For reasons we have mentioned, absence of an entry in the relevant weekly security report is neutral.
79 The complainant made a fresh complaint of an “attack” by Private R to Mr Boland, albeit without descending into detail. Mr Boland noted both the complainant and Private R to be “visibly shaken”. That observation and the statements made to Mr Boland by Private R later on the morning of the alleged assault are consistent with the content of Private R’s message to the complainant on 8 September 2015, quoted by the DFM.
80 SGT Steege’s evidence as to her observation of the complainant when she delivered the birthday cake to her on 31 August 2015 is not an observation with the same immediacy, relative to the alleged offence, as that of Mr Boland. Further, she was not asked either in chief or in cross-examination whether she had observed any bruising to the complainant’s neck. Yet further, her evidence is that the complainant did come to give her an account in 2015 of Private R’s conduct consistent with the offence charged.
81 The complainant’s complaint to Dr Smith was also fresh. Dr Smith allowed in cross-examination for the possibility that the bruising he noted was self-inflicted but that she had done this was never put to the complainant. Further, read as a whole, Dr Smith’s evidence allowing of such a possibility is sceptical of its actuality.
82 The complainant’s then decision not to report the incident to her chain of command is contemporaneously noted by Dr Smith. The DFM must be taken to have accepted the complainant’s evidence as to a change in command personnel impacting upon her decision only later to report the incident. The impact of the delay in the reporting of the incident to the change of command and resultant investigation and charging on Private R’s ability to defend the charge was the subject of express self-direction by the DFM.
83 Assertions about so-called inconsistencies in the complainant’s account to ADFIS of the incident and her evidence and other accounts, or of time lines on the evening for the attendance of security guards if they had to let themselves into the room at Limes Hotel via a key obtained from reception, are, with respect, solicitations for the Tribunal to undertake a tribunal of fact function in relation to her credibility. Yet further, they ignore a general consistency between the complainant’s evidence before the DFM and what she put to Private R more than five years beforehand in her message “calling out” his counter-narrative.
84 As to Ground 1, it only comes to this. On the whole of the evidence and on the basis of such of the complainant’s evidence assessed by the DFM to be credible, we are not satisfied that the DFM, acting rationally, must have had a reasonable doubt as to Private R’s guilt in respect of the service offence charged. The submission of the Chief of Army to this effect should be accepted.
85 By s 137(1), the DFDA imposes on the CDF an obligation, to the extent that the exigencies of service permit, to “cause an accused person awaiting trial by a court martial or by a Defence Force magistrate to be afforded the opportunity to be represented at the trial, and to be advised before the trial, by a legal officer”. That qualified obligation, in its specification of the affording to an accused person, of representation and advice by a legal officer, is much more understanding of the importance of such advice and representation than was once found in a predecessor regime for the Australian Army if on active service, the Army Act 1881 (UK) (1881 Act) (subject to modifications made under then Australian subordinate legislation). Under the 1881 Act, an accused was to be given “full opportunity” to communicate with his witnesses or legal advisor or other friend, if available: s 33. If that “friend” was an officer, he was entitled to undertake the role of advocate but, if not, the friend’s role was akin to that of a McKenzie friend: r 87, Rules of Procedure 1907 (UK) (RP 1907). Although counsel could appear at a court martial (r 88, RP 1907), there was no right to a legally qualified defending officer, even subject to the exigencies of service.
86 A recollection of Australian military history offers a notorious example of how, in predecessor service discipline systems to the DFDA, the exigencies of service could operate in practice under operational conditions. In 1902, during the Boer War in South Africa, Major (MAJ) J F Thomas, an Australian Reservist Light Horseman who was also a Tenterfield solicitor, was assigned to conduct the defence before a court martial convened under the 1881 Act, of the Australians, Lieutenants (LT) Peter Joseph Handcock, George Ramsdale Witton, and Harry “Breaker” Morant on capital charges of murder: see G Crowden, Major Thomas, Affirm Press 2019, for an account of the trial and sentences, as well as the impact thereafter on Thomas’ career and life. Each, along with a LT Picton, was convicted, with sentences of death in respect of LT Handcock and LT Morant being confirmed on review within the chain of command and carried into execution by firing squad.
87 It is not necessary to revisit any of the subsequent controversy concerning that court martial and sentence, but only to note that, more than a century later and in peacetime Australia, the exigencies of service did not prevent the assignment pursuant to s 137 of the DFDA of two defending officers, each legal practitioners, to Private R’s defence. They were FLT LT Dewar and MAJ Mooy.
88 That Private R was afforded qualified legal representation also means that it is not necessary in the present case to consider any interplay between the exigencies of service qualification in s 137 of the DFDA and the common law of Australia in relation to the impact which an absence of legal representation for an accused charged with a serious offence in the civilian criminal justice system may have on an accused’s right to a fair trial (qv Dietrich v The Queen (1992) 177 CLR 292) and the fairness of a proceeding before a service tribunal where an accused is not represented by a legal officer.
89 Whatever any such interplay might be, what is clear from the specification in s 23 of the Appeals Act of the permissible bases upon which a conviction in respect of a service offence might be quashed is that none of those bases makes any express allowance for the exigencies of service. Instead if, for example, it appears to the Tribunal there was a material irregularity in the course of the proceedings before the court martial or a DFM and a substantial miscarriage of justice has occurred (s 23(1)(c), Appeals Act), the conviction must be quashed. That is so irrespective of whether, for example, the material irregularity and related substantial injustice were caused or contributed to either by the incompetence of an assigned legal officer or by an absence of representation of the accused by a legal officer, because of the exigencies of service. That position is in keeping with the high public purpose of the reform made by the Appeals Act to the service discipline system.
90 In another recent judgement, Hamilton (a pseudonym) v The Queen (2021) 95 ALJR 894 (Hamilton) Kiefel CJ, Keane and Steward JJ made these observations about forensic value judgments made by defence counsel in the civilian criminal justice system:
(a) at :
A rational decision by defence counsel as to the conduct of a criminal trial that can be seen to have been a legitimate forensic choice that competent counsel could fairly make will not give rise to a miscarriage of justice within s 6(1) of the Criminal Appeal Act. The adversarial system does justice through the diligent exertions of competent counsel in coming to grips with the special circumstances of the particular case.
(b) at :
Within our system of justice, save for exceptional cases, ‘parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue’.
The authorities cited by their Honours for the latter proposition are Nudd v The Queen (2006) 80 ALJR 614 (Nudd), at  and R v Baden-Clay (2016) 258 CLR 308, at .
91 In our respectful view, these observations in Hamilton have like application in relation to the conduct of a defence by a legal officer before a service tribunal.
92 Further, as Gleeson CJ stated in Nudd, at , “in most cases … a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct”.
93 In relation to an appeal to this Tribunal, one basis upon which Ground 2 was particularised and pressed on behalf of Private R was by reference to alleged failings by “counsel” to seek a myriad of self-directions from the DFM. These were submitted to “include”:
(a) an unreliable evidence warning as to the complainant being criminally concerned;
(b) a complaint direction;
(c) a “Mahmood” direction (the latter said to be referable to Mahmood v Western Australia (2008) 232 CLR 397, at ); and
(d) a consciousness of guilt or silence as evidence of guilt direction.
94 MAJ Mooy and FLT LT Dewar did not chose to divide their responsibilities such that FLT LT Dewar only acted as counsel and MAJ Mooy only acted as instructing solicitor. FLT LT Dewar cross-examined the complainant but it was MAJ Mooy who cross-examined Dr Smith. Unquestionably, they were entitled to divide their responsibilities in this way. Each was, for the purposes of the DFDA, a defending officer in relation to the proceeding before the DFM. Evidence admitted on the hearing of the appeal discloses that they were each funded at standard Reservist legal officer pay rates, not just to appear before the DFM but to conduct extensive pre-trial preparation and investigation.
95 Given Ground 2 and its disparate allegations of incompetency, there was, with respect, a certain irony in MAJ Mooy, in his civilian legal professional capacity, at one stage acting as solicitor for Private R in the proceeding before the Tribunal.
96 However this may be, that none of these directions particularised under Ground 2 was sought of the DFM does make pertinent observations made by Gleeson CJ in Crampton v The Queen (2000) 206 CLR 161, at  to , to which our attention was directed by the Chief of Army in submissions, in relation to the exceptional position with respect to the raising of issues for the first time in a criminal appeal:
15 First, there is what was referred to by L’Heureux-Dubé J in the Supreme Court of Canada as “the overarching societal interest in the finality of litigation in criminal matters” when she said:
“Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases.”
16 Secondly, it is common for appellants in criminal appeals to retain counsel different from the counsel who (by hypothesis, unsuccessfully) conducted the trial. This increases the tendency to look for a new approach to the case, and carries the danger that trial by jury will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges.
17 Thirdly, it is usually difficult, and frequently impossible, for a court of appeal to know why trial counsel did, or failed to do, something in the conduct of the case. Decisions as to the conduct of a trial are often based upon confidential information, and an appreciation of tactical considerations, that may never be available to an appellate court. The material upon which a judge, either at trial or on appeal, may form an opinion as to the wisdom of a course taken by counsel can be dangerously inadequate, and, when it is, the judge may have no way of knowing that. Ordinarily, a barrister knows more about the strengths and weaknesses of his or her client's position than will appear to a judge, whose knowledge of the case is largely confined to the evidence.
18 Fourthly, as a general rule, litigants are bound by the conduct of their counsel. This principle, which is an aspect of the adversarial system, forms part of the practical content of the idea of justice as applied to the outcome of a particular case. For that reason, courts have been cautious in expounding the circumstances in which an appellant will be permitted to blame trial counsel for what is said to be a miscarriage of justice.
19 Fifthly, in a common law system the adversarial procedure is bound up with notions of judicial independence and impartiality. A criminal trial is conducted before a judge (sitting with or without a jury) who has taken no part in the investigation of the offence, or in the decision to prosecute the offender, or in the framing of the charge, or in the selection of the witnesses to be called on either side of the case, and whose capacity to intervene in the conduct of the trial is limited. One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice.
[Footnote references omitted]
97 The service discipline system for which the DFDA provides likewise contemplates a system of adversarial justice. The observations made by Gleeson CJ in Crampton are similarly applicable to the service discipline system and to the exercise of appellate jurisdiction in respect of convictions resultant from that system. To those observations might be added the following, having regard to the subject matter, scope and purpose of the DFDA and the Appeals Act.
98 The subject matter, scope and purpose of the DFDA is to prescribe a code of conduct for the Australian profession of arms and for a related system for the just enforcement of that code according to law. The service discipline system, and thus the related exercise of appellate jurisdiction in respect of convictions (and prescribed acquittals), must be workable in practice in war as well as in peace, in the field as well as in barracks and courtrooms. The system and the provision for appeals both buttress the chain of command of the ADF, essential for its efficiency in war as well as in peace and gives confidence to defence members and the wider community that charges in respect of service offences will be dealt with fairly. To achieve these purposes, proceedings before a service tribunal must be as proximate as prevailing exigencies of service and the interests of justice permit to the alleged service offence. Appeals to the Tribunal are, for like reasons, desirably heard and determined with expedition. A fortiori in all of these circumstances, there is a societal interest in the finality of litigation concerning an alleged service offence.
99 In the present appeal, Ground 2 offers a paradigm example within the appellate jurisdiction sequel to a conviction within the service discipline system of a plethora of issues being raised for the first time on appeal by counsel not responsible for the conduct of the defence before the service tribunal (although they are instructed by one of those who was).
100 The transcript of proceedings before the DFM records that after the DFM had recorded what were, on any view, relevant and extensive self-directions, both the prosecuting and the defending officers were expressly asked by him whether any further direction was sought. Each replied in the negative. These were deliberate, forensic choices on behalf of each party by which that party was bound, save in exceptional circumstances. Further, the trial was conducted by DFM, not court martial. The particular DFM was not just, as he had to be, an officer enrolled as a legal practitioner who had been so enrolled for not less than 5 years, appointed by the CDF on the nomination of the Judge Advocate General (s 196, DFDA), but a Queen’s Counsel. When one views the course of proceedings and the whole of the evidence objectively, none of the asserted further directions was necessary in order to ensure a fair trial.
101 Private R made an affidavit highly critical of FLT LT Dewar in particular and offering his subjective observation of and views about the course of proceedings. The relevance of this is truly moot. It is but a subjective opinion. In any event, it is apparent that the complainant was cross-examined to the end of seeking to highlight what were put as inconsistencies as between what she stated to the ADFIS in 2018 and her evidence in chief, the degree of her intoxication on the evening 29/30 August 2015, the unreliability of her memory, her alleged fickleness, the history of ongoing, episodic, sexual intimacy with Private R, tensions as between Mr Boland and Private R and, most importantly, Private R’s version of the events which had occurred on the evening 29/30 August 2015. Viewed objectively, it was not an incompetent cross-examination. The cross-examination reflected Private R’s version of events and FLT LT Dewar’s tactical forensic value judgements. Some might characterise it as prolix but the fairness of a trial is not measured by violation of a touchstone of perfection.
102 It was put that an inference ought to be drawn against the Chief of Army because he had failed to lead evidence from FLT LT Dewar on this appeal. With respect, this misconceives upon whom the onus lies to prove such a departure from the requirements of a fair trial so as to yield a substantial miscarriage of justice. That onus fell upon Private R, not on the Chief of Army. And it is not an onus lightly discharged. It was always open to Private R to call FLT LT Dewar. But no inference is to be drawn against him for not so doing. That is because, as Gleeson CJ also observed in Nudd, at , “To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process.” Further, the critical question as to whether or not there has been a fair trial such that a substantial miscarriage of justice has resulted is answered by regard to what did happen at the trial, not why it occurred.
103 It was also submitted for Private R that the following were indicative of a substantial miscarriage of justice:
(a) Counsel’s failure to cross-examine the complainant in accordance with the Private R’s instructions.
(b) Counsel’s failure to cross-examine Prosecution witnesses in accordance with the Private R’s instructions;
(c) Counsel’s failure to object to irrelevant and prejudicial evidence;
(d) Counsel’s failure to have called for cross-examination an ADFIS or DMP (Director of Military Prosecutions) witness;
(e) Counsel’s failure to appropriately lead evidence of character on behalf of Private R;
(f) Counsel’s failure to press the admissibility of Mr Gain’s evidence; and
(g) Counsel’s failure to adduce available expert evidence of Dr Collins challenging the credibility of the complainant and the credibility of the Prosecution expert Dr Smith, and Dr Robertson in challenging the credibility of the complainant.
104 The last mentioned of these alleged deficiencies was also developed in submissions in relation to Ground 4 but it is convenient to address it under Ground 2.
105 Once again, and with all due respect, these several alleged failures have about them a certain irony, given that MAJ Mooy was also a defending officer. Further, of the two defending officers, it was MAJ Mooy who assumed the role of cross-examining Dr Smith. Given this division of responsibility, one might have thought he gave consideration to the report then to hand from Dr Collins. Yet further, these alleged failings also offer an example of the ingenuity of counsel who did not undertake the responsibility of being a defending officer.
106 As already indicated, FLT LT Dewar did put the essence of Private R’s version of events to the complainant and did so in the context of a considered exploration of subjects which might rationally be thought to affect her credibility. As in the civilian criminal justice system, it was open to Private R at any time during the proceeding before the DFM to terminate the instructions of his defending officers and to assume personally, for better or for worse, the role of defending himself. This he did not do. It was not for him to dictate exactly how either FLT LT Dewar or MAJ Mooy conducted their cross-examinations of any witness. Further, the precise instructions given by him, be they the “post notes” generated at trial as mentioned by him and MAJ Mooy in their affidavits or otherwise are not in evidence. Yet further, for the reasons mentioned in Crampton, this type of detailed examination of the background to the conduct of a defence is not to be encouraged. Private R was and is bound by the conduct of his defending officers, for reasons already set out above. Once again, viewing the whole of the proceedings and the evidence led objectively, there was no resultant substantial miscarriage of justice.
107 The evidence upon which the DFM chose to act in deciding to convict Private R is fully disclosed in his reasons. In this regard, the position is quite different from a verdict reached by a court martial panel. The reasons of the DFM disclose that the evidence upon which he chose to act was certainly prejudicial to Private R in that it was rationally capable of leading to a conclusion that the service offence alleged had been proved beyond reasonable doubt by the prosecution but also that it was relevant and thus admissible. The reasons of the DFM disclose that, in combination with evidence from other witnesses as to events earlier on the evening of 29/30 August 2015, those parts of the complainant’s evidence which he accepted as credible, the Facebook Messenger text exchanges as between Private R and the complainant and Dr Smith’s evidence persuaded him that the prosecution had proved the service offence beyond reasonable doubt. Whatever other prosecution evidence was before him, whether strictly inadmissible but not objected to or otherwise, was not decisive. Regard to the whole of the evidence, viewed objectively, does not disclose any resultant substantial miscarriage of justice by the admission of any irrelevant (but unobjected to) evidence.
108 As to the calling of a witness from the ADFIS, regard to the transcript of the proceeding before the DFM on 1 December 2020 discloses that a summons had been issued at the request of Private R’s defending officers for the production of the investigation file. This was one of a number of summonses for production returnable that day. Other summonses had been obtained and returned earlier at the behest of Private R’s defending officers, as the transcript of an interlocutory phase before the DFM on 23 November 2020 reveals.
109 Impressionistically from the transcript of proceedings on 1 December 2020, there is something of a quality of “fishing” about these summonses. In any event, they yielded production of documents. The occasion for the delay in the issuing of the summons to the ADFIS was, as explained by MAJ Mooy to the DFM, an understanding that, given the gravity of the alleged offence, it must have been reported to the Queensland Police Service. Only when it became clear that it had neither been so reported nor even referred by ADFIS to the Queensland Police did an apprehended need for the ADFIS investigation file emerge. The investigation file was produced. That having occurred, no witness from the ADFIS was called on behalf of Private R. He should be held to that forensic value judgment.
110 As to the DMP, this, looking to an exchange which occurred between the defending officers and the DFM on 1 December 2020 is, seemingly, is a reference to the then DMP personally, Brigadier (BRIG) J Woodward. They were operating under an understanding that there had been some sort of exchange between the complainant and BRIG Woodward personally which preceded the formal complaint and investigation. This subject, apparently, remained in the realm of the speculative. Whatever the reasons for this may be, they entail issues and forensic value judgments which, as the observations of Gleeson CJ in Crampton highlight in the analogous context of a civilian court of criminal appeal, may never fully be known to the Tribunal and certainly are not on the evidence to hand. In the result, neither BRIG Woodward nor any other member of her office was called as a witness. Private R should be held to that forensic value judgment.
111 What is apparent from the transcript of proceedings is that the prosecution had, as far back as 2019 when the charge sheet was signed by the DMP and served on Private R, also served on him and made available to his then defending officers the requisite brief of evidence. The transcript of proceedings on 23 November 2020 discloses that the ADFIS had identified that, after leaving Limes Hotel in the early hours of the morning on 30 August 2015, the complainant had gone to the premises of a Corporal (then and also as at 2020 a member of the ADF). That Corporal had declined to furnish a statement. The transcript of proceedings that day also discloses that inquiries had been pursued of Best Security to the end of identifying the security guards on duty. This endeavour had been complicated by the company concerned going into receivership in the interval which had passed between the alleged offence and that interlocutory hearing. In the result, only Mr Burke came to be called as a witness with the supervisor’s weekly report and prevailing instructions being tendered in evidence.
112 Also apparent from the transcript of proceedings that day is that particular forensic value judgments had been made in 2019 by those then acting for Private R as defending officers to pursue the constitutional challenge to his amenability to being dealt with under the DFDA in relation to the conduct alleged, rather than additionally pursuing particular lines of inquiry at that time. It is in the nature of an exercise of judicial power that it has a quality of clarity and conclusiveness in respect of an issue that consideration of that issue in prospect may, quite reasonably, not yield. Regard to the judgments delivered in an earlier case concerning the application of the DFDA, Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308, discloses that whatever might have been the position as found in that case in relation to a defence member deployed overseas but on short term leave overseas, the application of the DFDA to an event in peacetime Australia outside barracks between two persons neither on duty nor in uniform but coincidentally each members of the ADF could, quite reasonably, have been regarded as moot. To pursue the valid application of the DFDA was not an unreasonable step but it did introduce an additional lapse of time not just from when the charge was laid but from when the alleged conduct occurred.
113 The transcript of proceedings before the DFM discloses that he was acutely aware of the difficulties presented by the delay. It is desirable to set out that self-direction in full. The DFM directed himself in these terms:
In an exchange with counsel, I accept that none of the delay has been the responsibility of the defendant. These additional circumstances require comment. These include:
The delay in instituting the prosecution;
The possibility of distortion in human recollection;
The nature of the allegations, the fact that the delay meant not only other people’s, including the complainant’s, ability to recall facts less able to be accurately tested and therefore less liable;
No video evidence could be seized, for example, if there was video at the Limes Hotel and Prohibition nightclub at the Up Bar, any on street cameras showing people’s gait walking between the venues, for example.
The tracing of the two security guards, for which it seems the parties were in agreement two security guards attended, who those security guards were;
Whether the security guards, one of them was indeed Mr Burke who has given evidence, whether, in fact, it was two other security guards whilst Mr Burke was dealing with something else;
The accuracy or reliability of the records of the security company;
Whether any receptionist could have been found and traced who may or may not have given access to the security guards as asserted by the complainant;
The two females the complainant that she sought solace in;
Any phone records that might have existed relevant to the case. One of the matters advanced by one of the defending officers was there might have been some phone records about her acquisition of drugs, for example.
I direct myself that these difficulties put the defendant at a significant disadvantage in responding to the prosecution case, either in testing the prosecution evidence or in bringing forward evidence himself to establish a reasonable doubt about his guilt or both. The delay means that evidence relied upon by the prosecution cannot be as fully tested as it otherwise might have been.
Had the allegations been brought to light and the prosecution commenced much sooner, it would be expected that particularly the complainant’s memory for details would have been clearer. This may have enabled her evidence to be checked in relation to those details against independent sources so as to verify it or disprove it.
The complainant, and it is not just her memory at stake here, it is all of the other witnesses in the case, the complainant or the other witnesses’ inability to recall precise details of the circumstances surrounding the incident, makes it difficult for the defendant to throw doubt on her evidence, in particularly, by pointing to circumstances which may contradict her. Had the defendant learnt of the allegations at a much earlier time, he may have been able to recall relevant details that could have been used by his counsel in cross-examination of her.
Another aspect of the defendant's disadvantage is that had he learned of the allegations at a much earlier time he may have been able to find witnesses or items of evidence that might have contradicted the complainant or supported his case, or both.
He may have been able to recall with some precision what he was doing and where he was at particular times and to have been able to bring forward evidence to support him. I take into account that because of the delay the defendant has lost the opportunity to bring forward such evidence that I highlighted before because he has been put into a situation of significant disadvantage he has been prejudiced in the conduct of his defence.
As a result I warn myself that before I can convict the defendant I must give the prosecution case the most careful scrutiny. In carrying out that scrutiny I must bear in mind the matters that I have just been speaking about; the fact that the complainant's evidence has not been tested to the extent that it otherwise could have been and the inability of the defendant to bring forward evidence to challenge it or to support his defence.
All of the difficulties occasioned by delay and highlighted by the defending officers both at an interlocutory stage and at the trial itself have been fully assimilated and taken into account by the DFM. That they have been so highlighted is hardly indicative of incompetence on the part of the defending officers, rather the reverse.
114 Evidence of Private R’s good character was led. The reasons of the DFM disclose that the fact that Private R had no previous criminal convictions was in evidence and taken into account by him. Regard to the whole of the evidence, which necessarily includes the evidence as to Private R’s behaviour early on the evening of 29/30 August 2015 culminating in his being removed from the premises from where the birthday celebratory group was gathered, discloses that the subject of Private R’s character was likely a fraught one for those defending him. Private R should be held to the forensic choice made at the trial before the DFM as to the character evidence led. Viewed objectively on the whole of the evidence, that choice did not yield a substantial miscarriage of justice.
115 A report from Dr Byron Collins dated 26 November 2020, addressed to MAJ Mooy was in the possession of Private R’s defending officers prior to the commencement of the trial. Dr Collins was not called as a witness in the defence case. Looking at the contents of the report, there are quite rational, forensic value judgment reasons why such a course might have been followed.
116 True it is that, based on his particular training and lengthy experience as a forensic pathologist, Dr Collins makes a number of criticisms of views expressed by Dr Smith in his report. These are based on his review of Dr Smith’s clinical note made in 2015, a statement which Dr Smith provided in the course of the investigation by the ADFIS in 2018, and other statements drawn from the brief provided by the prosecution. But there are also features of Dr Collins’ report which might rationally sound a cautionary note in relation to calling him. For example, amongst the statements made by Dr Collins in this report are these:
On the information presently to hand, I am not in a position to properly assess the accuracy of the descriptions of the Complainant's neck injuries, as contained in the clinical notes or the statement as, unfortunately, to put it at its very best, there are no accompanying body line-drawings or photographs, which would have greatly assisted me in this process. …
However, I do accept that an individual who has been subjected to an episode of manual neck compression, may sustain a variety of skin injuries, such as bruising of different shapes including “finger tip” and abrasions, for example scratch-like in outline.
If it were accepted that the Complainant’s neck bruising was bluish in colour, then it could be consistent with trauma being sustained in the time frame of this case, although not necessarily so and it could have resulted from an appropriate incident post the alleged event, whether by self infliction or another individual.
117 Looking at these excerpts and especially the passages emphasised, there is a discernible, rational forensic risk that, had Dr Collins been called, the general practitioner views expressed by Dr Smith may have ended up being regarded as supported by views expressed by an experienced forensic pathologist. No substantial miscarriage of justice resulted from the failure to call him.
118 The defending officers were also in possession of a report dated 10 November 2020 furnished to MAJ Mooy by Dr Michael Robertson Ph D, a pharmacologist and forensic toxicologist. Based on statements of witnesses in the prosecution brief as to consumption of alcoholic drinks by the complainant on the evening of 29/30 August 2015, Dr Robertson expressed the opinion that, “the most likely BAC (blood alcohol concentration) of the complainant at the time of the alleged incident would have been approximately 0.15%”. Dr Robertson voiced a number of opinions as to the effects which alcohol consumption had on the human body and behaviour, including these:
Whilst memory loss is generally associated with alcohol-related intoxication, there is no accepted concentration at which memory loss will or will not occur in any individual. Nor is there any accepted type, number or severity of observable signs or symptoms of intoxication that would be associated with memory loss. ….
A BAC of 0.15% is consistent with the impairment of some (i.e. fragmented) or all (i.e. en-bloc) memory. As such whilst it cannot be determined when or to what extent memory loss may have occurred, it is certainly possible that the complainant had impaired recollection of events in the hotel at the time the subject incident took place.
We note in this context that there were a number of observers of the complainant on the night who gave evidence as to her remaining coherent and functional. Looking at Dr Robertson’s report as a whole we consider that, while some of the opinions expressed might have assisted the defence case as to the reliability or otherwise of the complainant’s evidence of the relevant events, some may not have (for example, the passages quoted, especially the parts emphasised). There was no definitive expression of opinion by Dr Robertson that the complainant’s memory would have been (as distinct from might have been) impaired, let alone significantly impaired in relation to accuracy. Looking at Dr Robertson’s statement, we discern rational forensic reasons for not calling him. His evidence, being equivocal, may not have assisted the defence case. For example, the fact that a person has a ‘fragmented memory’ of a series of events does not mean that those parts which are remembered are not accurately remembered. Dr Robertson’s evidence could even have damaged the defence, in circumstances where the evidence of witnesses generally suggested that Private R had consumed a very significant amount of alcohol during the evening, resulting in a level of intoxication characterised by disinhibition and a level of anger which led to a bitter recriminatory outburst directed at the complainant. Dr Robertson could have been cross-examined to provide an opinion as to the unreliability of Private R’s own memory of the incidents in the complainant’s hotel room as a result of his intoxication. Even if he had not been so cross examined, the DFM would inevitably have reflected on the nature of the evidence given by Dr Robertson in relation to the complainant in considering the accuracy and reliability of the evidence of Private R. In all the circumstances, we consider that no substantial miscarriage of justice resulted from the fact that Dr Robertson was not called to give expert evidence.
119 Viewed objectively, and against the whole of the evidence and the course of proceedings, none of the alleged failings of counsel resulted in a substantial miscarriage of justice.
The “Hofer” Issue
120 The impugned cross-examination might briefly be summarised as follows. Based on certain matters not having been put to the complainant (“eyes like dinner plates” etc), the prosecutor asked, “This material wasn’t put to her because you’re making it up right now; that’s the truth, isn’t it?” The appellant denied the suggestion.
121 In his outline of supplementary submissions filed on 24 December 2021, Chief of Army contends, inter alia, as follows:
The impugned cross examination was so inconsequential that it did not attract the attention of the appellant’s lawyers who drafted the appellant’s petition and the original notice of appeal, or the s 154 officers who provided the legal reports for the automatic review of the appellant’s conviction and for consideration of the appellant’s petition. It was not the subject of closing submissions by either the prosecutor or the appellant’s defending officers. It was not mentioned by the DFM in his careful and comprehensive reasons.
122 Private R acknowledges in reply submissions filed 21 January 2022 that the DFM did not specifically refer to that evidence, but submits that he did not state that he did not give weight to the cross examination, or that he did not take it into account.
123 The prosecutor’s cross examination in Hofer involved a similar suggestion (on the basis of matters not having been put by defence counsel in cross examination of Crown witnesses) that the accused was making his story up as he went along (‘recent invention’). That was followed by a submission to the jury that two particular matters had not been put by defence counsel: Hofer, at , although the prosecutor did not repeat the suggestion of recent invention or invite the jury to infer recent fabrication Hofer, at . The trial judge made no mention of the parts of the appellant's cross examination relevant to possible recent invention, nor did the judge give any directions, including as to what inferences the jury could legitimately draw. Neither prosecution nor defence counsel sought such mention or directions.
124 In the High Court, the majority (Kiefel CJ, Keane and Gleeson JJ) said this, at  – :
 A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from the trial according to law to the prejudice of the accused. …
 The questioning undertaken by the prosecution of the appellant departed from the standards of a trial to which an accused is entitled and the standards of fairness which must attend it. The questioning was such as to imply that the appellant was obliged to provide an explanation as to why matters had not been put to C1 or C2. This suggested he possessed information which he had not given counsel by way of instructions. The unfairness in this regard was compounded when the appellant was not permitted by the trial judge to provide an answer and by defence counsel not informing the court that he had those instructions. The attack upon the appellant’s credit by assertions of recent invention was based upon an assumption which was not warranted. All of these matters were highly prejudicial to the appellant.
125 Kiefel CJ, Keane and Gleeson JJ held that the cross examination had resulted in a miscarriage of justice , , , particularly at . With this conclusion, Gordon J agreed: at  and . The prejudice to the appellant was not addressed by the trial judge, who did not put the submissions into perspective and did not explain other possible reasons for matters not being put to the jury by defence counsel: Hofer, at , .
126 Having determined that there had been a miscarriage of justice, the majority then considered the application of the proviso . They ultimately found that the prosecution’s “impermissible contention of recent invention” was of little significance in the determination of the real issue in the trial. The issue was not that his evidence was recently invented but that his account was a demonstrably obvious fabrication, and that whether it was recent or not was “beside the point” . The majority held that the appellant's conviction did not involve a substantial miscarriage of justice within the meaning of the proviso.
127 It is apparent that the majority in Hofer determined the miscarriage of justice in isolation, that is, by reference to the departures from regular practice, without regard to the significance of the miscarriage in the ultimate outcome. They looked at the ultimate significance of the miscarriage only at the stage where it was necessary to determine whether there had been a substantial miscarriage of justice (and whether the proviso could be applied).
128 On our reading of Hofer, Gageler J adopted a different approach. His Honour described what had happened at trial as an “irregularity” and “essentially one of unfairness”: . Expressing his agreement with the majority, he explained that the overall prejudicial consequence was that there was a “real chance” that the jury in reaching its verdict of guilty on eight of 10 counts had inferred that the appellant invented some parts of his evidence between the time his counsel cross examined the complainants at the trial and the short time later when he came to give his evidence: Hofer, .
129 The difference between the approach of Gageler J and that the majority was that Gageler J, having held  that the miscarriage of justice inquiry is factual, went on to say this, at :
Except in the case of an error or irregularity so profound as to be characterised as a ‘failure to observe the requirements of the criminal process in the fundamental respect’ [referring to Maher v The Queen], an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is the miscarriage of justice established. Only then can a further issue arise of the appellate court going on to the consideration of the proviso to ask and answer the distinct question of whether the court is satisfied that no substantial miscarriage of justice actually occurred.
130 In the present case, if the “Hofer” issue had any merit at all, it would be as a ground of appeal under the ‘substantial miscarriage of justice’ ground referred to in s 23(1)(c) of the Appeals Act.
131 Although the root of the problem in the present appeal was the prosecutor’s impermissible cross-examination, the context of the present appeal is different from that in Hofer. An obvious difference is that, as we have already highlighted in another context above, the tribunal of fact in Hofer was a jury, whereas in the present case the tribunal of fact was a DFM. Jury verdicts are inscrutable, and hence the great significance given by courts of appeal to the directions given by the trial judge. In this case, the reasoning of the DFM has been fully exposed. We do not see why we should not infer that the DFM did not take the impugned cross examination into account, for the reason that – in his detailed assessment of the appellant’s credit – he made no mention of it let alone a finding that it detracted from the appellant’s credit.
132 We are not satisfied that there was a miscarriage of justice in the trial before the DFM. The offending cross examination was very brief and the matter impermissibly raised was not pressed in further cross examination or in submissions. No directions were sought by defence counsel, and it appeared to be completely irrelevant to the resolution by the DFM of the real issues at trial.
133 However, if the prosecutor in his cross examination of the appellant departed from the standards of the trial to which the appellant was entitled and from the standards of fairness which must attend a fair trial, then that would constitute a miscarriage of justice in the sense explained by the majority in Hofer. However, such a miscarriage of justice would have little relevance to the present appeal unless it were a substantial miscarriage of justice.
134 In reference to the proviso in s 668E(1A) of the Criminal Code (Qld) in Orreal v The Queen (2021) 96 ALJR 78, Kiefel CJ and Keane J observed, at :
An appellate court must be persuaded that evidence properly admitted at trial establishes guilt to the requisite standard before it can conclude that no substantial miscarriage of justice has actually occurred. It must consider the whole of the record of the trial and the nature and effect of the error which gives rise to the miscarriage of justice in the particular case.
135 The real difficulty facing Private R, as with Mr Hofer, was not on account of the suggestion that his evidence may have involved recent invention but rather that the prosecution case was strong. The evidence of Private R may not have been glaringly improbable to the same extent as the evidence of Mr Hofer, but the evidence of the complainant, properly admitted, was clearly regarded by the DFM as compelling. Moreover, it was supported by post-offence conduct on the part of Private R (the Facebook Messenger exchange) and the observations made by Dr Smith.
136 There is no merit in Private R’s “Hofer” issue.
137 This ground challenges a discretionary value judgment made by the DFM on 5 November 2020 to refuse an application by Private R by his defending officers to adjourn the trial then fixed to commence on 5 November 2020.
138 It is obvious from the reasons which the DFM delivered ex tempore that day that he was well aware that he had a discretion to exercise and with relevant considerations attending the exercise of that discretion. The DFM referred to a number of authorities of which two warrant particular mention. The DFM derived the following considerations from Sekyere-Boakye v Whitney  WASC 147 (Hall J):
(a) The decision to grant or refuse an adjournment is a discretionary one;
(b) Where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted, unless in turn this would mean serious injustice to the other party;
(c) It is fundamental to the administration of justice that accused persons are given the full opportunity to present their defence. An adjournment should be granted if it is necessary to enable the accused person to properly present that defence;
(d) It is proper to reject an application for an adjournment to allow a defence witness to be brought from elsewhere. If the court reaches the conclusion upon reasonable grounds that such a witness would be unlikely to give evidence tending to exculpate the accused;
(e) Adjournments are not available for the asking. In criminal proceedings, it is necessary to take into account interests than those of the accused. These include the interests of the community in the prompt disposal of charges. It undermines the orderly disposal of the work of the courts when criminal trials are adjourned unnecessarily;
(f) The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a defendant a reasonable opportunity to present his or her case.
139 These considerations are indeed relevant in relation to deciding whether to adjourn the hearing by a service tribunal of a charge alleging an offence against the DFDA. They are not exhaustive. We have already highlighted above the societal interest in the prompt disposal of such charges.
140 The DFM also referred to the following observation made by the Victorian Court of Appeal in AJP v The Queen  VSCA 224, at :
It has long been accepted that an application for the adjournment of a trial should be based on evidence. Mere assertions from the Bar table leave a judge without the means to properly assess the merits of an application, and are likely to result in its rejection.
141 In relation to service tribunals, it is possible to envisage circumstances arising from the exigencies of service, particularly on operations overseas, when a rigid insistence on an evidenced basis for an adjournment, in the face of an uncontroversial statement from the Bar Table, might yield a denial of procedural fairness if an adjournment were refused. But the circumstances pertaining to this trial were far removed from this and the DFM clearly regarded the position outlined in this authority as but stating the general position.
142 An allegation that the refusal of an adjournment is, for the purposes of s 23(1)(b) of the Appeals Act, the result of a wrong decision on a question of law, or of mixed law and fact, with a resultant substantial miscarriage of justice arising from a denial of procedural fairness necessarily entails a challenge to the exercise of a quasi-judicial discretion. Mere disagreement by the Tribunal with the result of the exercise of that discretion, because the Tribunal might have exercised it differently on the merits would not be sufficient. Instead, an error of principle of the kind described in House v The King (1936) 55 CLR 499 would have to be demonstrated. Such an error was demonstrated in relation to the refusal of an adjournment in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. In that case, notwithstanding the exacting standard that attends a conclusion of unreasonableness, a denial of an adjournment of concluding a merits review hearing for a short time so as to enable readily obtainable evidence to be secured to cure an obvious deficiency in an applicant’s case was set aside as unreasonable.
143 We have already referred to the history of this case after the charge sheet was signed and served. The DFM addressed that history. As at 5 November 2020, more than a year had elapsed since then. As we have mentioned, that was the result of forensic value judgments made by Private R on advice. Those forensic value judgments had to that point evidently entailed putting all of the “eggs” in the constitutional law point “basket”. As at 5 November 2020, summonses had yet to be issued at the behest of the defending officers and interviews with potential witnesses yet to be conducted. No indication could be given to the DFM as to the content of evidence expected to be obtained. The DFM was aware of the impact of public health restrictions relating to the pandemic in terms of travel and face-to-face communication and that that was not the only possible mode of communication. The trial was scheduled to commence in almost a month’s time. As we have highlighted, the DFM addressed himself to relevant principles. All that he did, in applying these principles, was to make a discretionary judgment reasonably open to him on the facts before him weighing up the relevant factors. No error of law is disclosed in his refusal of an adjournment.
144 We should add that, as it happened, at the start of the trial an application for adjournment was not pressed. This, too, was a forensic value judgment by the defending officers, MAJ Mooy included. By that stage, the defence had been able to obtain expert reports from Dr Collins and Dr Robertson, as well as identify Mr Burke as the supervisor on duty and obtain some records of Best Security relating to the evening of 29/30 August 2015. The prospect of identifying exactly who were the security officers on duty that evening who had attended at the room at Limes Hotel had been addressed but there was nothing to indicate that a statement from such a person was obtainable at all, much less imminent. The impact of the resultant delay on the case was well understood by the DFM, as the self-direction quoted above attests. It seems to us that Private R was well-served by his defending officers, each of them, in the period which followed the refusal of the adjournment. That the application was not further pressed at the start of the trial did not, objectively, occasion a substantial miscarriage of justice.
145 Subsection 23(2) of the Appeals Act does not limit the operation of the Act in facilitating proof of a fact in issue in the matter arising under s 23(1)(c), that fact being whether the convictions were a product of a material irregularity in the course of the proceeding: Chief of Navy v Angre (2016) 244 FCR 457 (Angre). The evidence sought to be adduced was that of Dr Collins and Dr Robertson. To the extent that the Chief of Army objected to the reception of evidence from each of these persons on the basis of s 23(2) of the Appeals Act that the evidence was reasonably available at the time of the proceedings before the DFM (which it was), although we acknowledge that the requirements of s 23(2) are cumulative, Angre dictates we must reject the objection.
146 We have already made observations above in relation to the opinions expressed in the identified reports of Dr Collins and Dr Robertson. We are not persuaded that considered either alone or in conjunction did the failure to lead evidence from either (of which these reports would have formed but the evidence in chief) resulted in a substantial miscarriage of justice. There was an endeavour to supplement the earlier report from Dr Collins with a further report. Even were that admissible, that does not mean that a reasonable doubt must be entertained that the bruising identified in a contemporaneous clinical note made by Dr Smith on 1 September 2015 originated from the conduct charged. At most, all of this evidence goes only to issues of credit. As we have indicated above, objectively speaking, there are discernible, rational forensic reasons why neither of these witnesses were called.
147 To the extent that the same is necessary, Private R should be granted leave to appeal on the grounds specified in his amended notice of appeal. The appeal should be dismissed.
148 In the event that the appeal was dismissed, the Chief of Army sought an order for costs on the basis that costs should follow the event.
149 The Tribunal is granted a power to award costs by s 37 of the Appeals Act, which provides:
(1) Where the Tribunal allows an appeal, it may, if it thinks fit, direct the payment by the Commonwealth to the appellant of such sums as appear to the Tribunal reasonably sufficient to compensate the appellant for expenses properly incurred by him or her in the prosecution of his or her appeal, and any proceedings preliminary or incidental to the appeal, or in carrying on his or her defence against the charge or charges out of which the appeal arose.
(2) The Finance Minister shall pay to an appellant, out of moneys provided by the Parliament for the purpose, any sum which the Commonwealth is directed to pay to the appellant under subsection (1).
(3) Where the Tribunal dismisses an appeal or an application for leave to appeal, it may, if it thinks fit, order the appellant to pay to the Commonwealth the whole or any part of the costs of the appeal or application, including allowances paid to a witness under section 34 and the costs of copying or transcribing any documents for the use of the Tribunal.
(4) An order made under the last preceding subsection may be enforced in such manner as is prescribed.
150 This power to award costs has been present in the Appeals Act since its commencement. Since then, only minor and presently immaterial amendments have been made to the original conferral of that power. A survey of cases decided by the Tribunal on and from its establishment reveals that it is truly exceptional for a respondent service chief to seek an order for costs in the event that an appeal or application for leave to appeal is dismissed. This is a matter of necessary inference from the absence of any reference in the Tribunal’s reasons in most such cases to any need to consider the subject and the consequential absence of any order as to costs in addition to an order of dismissal.
151 Exceptionally, however, a respondent service chief did apply for costs in one, unreported case, Barry v Chief of Naval Staff  ADFDAT 3 (Barry); DFDAT No 1 of 1994 (Northrop, Cox and Gallop JJ), 26 August 1994. In that case, upon the pronouncement of an order of dismissal of an appeal, apparently after the delivery of ex tempore reasons for decision, counsel for the respondent made an application for costs. In refusing that application, the then President, Northrop J, referring to s 37(3) of the Appeals Act, observed that “there is no doubt that the Tribunal has a power to award costs, a power which must be exercised judicially and pursuant to appropriate considerations”. His Honour then stated:
Attention is drawn to the [Appeals Act], s 22 which contains provisions dealing with what are described as frivolous or vexatious appeals. It is not suggested by counsel for the respondent that this appeal was frivolous or vexatious. Reference is made also to the fact that the appellant did receive an order for the payment of the costs of the appeal under the Courts Martial Appeal Regulations, reg. 11. One of the requirements for such an order being made which is relevant to the present case is that if the Tribunal is satisfied that it appears desirable in the interests of justice that legal aid should be granted to the appellant under the regulation the Tribunal may make such an order. One of the considerations to be taken into account in the exercise of that discretion is whether the appeal is frivolous or vexatious or has some merit to it. That was done in this case.
In all the circumstances although the appeal was dismissed without calling upon counsel for the respondent it cannot be said that this appeal was completely unmeritorious. [I]t did raise a number of difficult and arguable points and in all the circumstances this is a case where I would not exercise my discretion in favour of the respondent.
In expressing his concurrence with these reasons and such an outcome, the then Deputy President, Cox J, observed that “there should exist some sound reason” why the costs discretion should be exercised as sought by the respondent and that in his view no such reason had been established. The remaining member of the Tribunal as constituted for that appeal, Gallop J, also concurred with the reasons of the President and the proposed no order as to costs outcome, adding:
There is nothing about the conduct of the appellant which has brought about this appeal in any way, that is conduct in the course of the trial or conduct between conviction and appeal to this Tribunal. True it is that there is a discretion in s 37(3) but in the absence of some such circumstances of the kind to which I have adverted and I do not by any means purport to be able to indicate in these short oral reasons what other circumstances could justify the making of an order for costs against an unsuccessful appellant who has been convicted by court martial, in my opinion the implementation of s 37(3) should not be such as to require an appellant such as the present appellant to bear the financial burden which might be quite substantial of trying to exculpate himself by succeeding on an appeal and having his convictions set aside unless, as I say, in some way he has contributed to the necessity to appeal. I would commend to the Chief of the Naval Staff that one of his officers in the position such as this appellant should not have to expose himself to financial burden in order to test legality and correctness of his trial at court martial.
There are important questions of principle involved on this application for costs and in the exercise of my discretion I would likewise refuse an order for costs.
152 Slightly earlier in time and unreported on the subject of whether to make a costs order in the exercise of the discretion conferred by s 37 of the Appeals Act is Stuart v Chief of the General Staff  ADFAT 2 (Stuart); DFDAT No 1 of 1993, (Northrop, Gallop and Badgery-Parker JJ, 27 July 1994). The costs application in that case was one made by a successful appellant. Although the Tribunal was divided as to whether, in the circumstances to award costs to the appellant (by majority, it did), Stuart is of present relevance for the unanimous rejection by each of the members, in light of Latoudis v Casey (1990) 170 CLR 534, of a view earlier expressed in the Tribunal that there was nothing in s 37 of the Appeals Act which displaced the generally accepted position at common law in criminal matters, which is that costs are neither awarded in favour of or against the Crown. We respectfully agree with the conclusion reached on this subject in Stuart. The presence of a statutory power to award costs necessarily means that there can be no general, a priori, assumption that costs will not be awarded against an unsuccessful party to an appeal or application for leave to appeal to the Tribunal.
153 Even in relation to an exercise of judicial power by a court, any power to award costs is wholly a consequence of statutory provision. An example of such provision is s 43 of the Federal Court of Australia Act 1976 (Cth). Subject to exceptions in particular types of case, the power conferred by that provision, as with most conferrals on courts by statute of a power to award costs, is discretionary and not fettered. Accordingly, such provisions do not confer on a successful party a right to an award of costs. Even so, the discretion so conferred is one which must be exercised judicially and the usual way in which an unfettered costs discretion is exercised is that costs follow the event: Oshlack v Richmond River Council (1998) 193 CLR 72, at 96.
154 Flowing from the use of the word “may” in each of s 37(1) and s 37(3), the power to award costs conferred on the Tribunal by s 37 of the Appeals Act, either to an appellant or as the case may be to a respondent, is discretionary but it is not unfettered. In each subsection, “may” is qualified by the conditional clause, “if it thinks fit”.
155 The presence of that qualification suggests that occasion for the awarding of costs in the exercise of the discretion conferred is not to be found just by the adoption of a default position that costs should follow the event. This is reinforced by a consideration of the subject matter, scope and purpose of the Appeals Act.
156 We have already referred above to the fundamental nature of the reform to the service discipline system represented by the Appeals Act. As Kiefel CJ, Bell and Keane JJ observed in Private R v Cowen (2020) 94 ALJR 849, at :
[It] is s 68, and not Ch III, which provides the institutional framework within which the disciplinary code enacted under s 51(vi) is to be enforced. … [The] system of military justice pursues the specific purpose of securing and maintaining discipline within the armed forces rather than the general purpose of punishing those guilty of criminal conduct.
157 It bears repeating that specific purpose of the Appeals Act is to buttress the securing and maintaining of discipline of the ADF by giving all defence members, irrespective of rank, confidence that, within the executive branch, the final determination of whether a conviction in respect of a service offence is lawful is no longer vested in the ADF chain of command but rather in an independent, civilian tribunal wholly constituted (in modern times) by judicial officers pursuant to an Act administered not by the Minister for Defence but rather the Attorney-General, Australia’s First Law Officer. The achievement of this purpose would be rendered hollow if the price of a defence member having an arguable case that his or her conviction under the DFDA in respect of a service offence was amenable to being quashed on one or more of the bases specified in s 23 of the Appeals Act, were subjection to a potentially financially crippling costs order in that event that his or her appeal or application for leave to appeal to the Tribunal were not successful. In our respectful view, it is impossible to overstate the importance of this consideration for confidence in a service discipline system so essential to the efficient conduct of military operations in war and in peace.
158 The present appeal offers a paradigm example of how the achievement of this statutory purpose might be subverted. As a Private, the appellant holds the lowest rank in the Australian Army, also equivalent to the lowest rank in each other arm of the ADF: see s 21 and Schedule 1, item 21, Defence Act 1903 (Cth). The inequality of financial resources available to him and the Chief of Army could not be starker. Private R requested a grant of legal aid for the purposes of his application and any consequential appeal. That application was approved pursuant to reg 9 of the Defence Force Discipline Appeals Regulation 2016 (Cth), the present equivalent of reg 11of the Courts Martial Appeal Regulations. Factors which told in favour of that approval were Private R’s relative impecuniosity, having regard to the prospective costs of legal representation in any application or consequential appeal to the Tribunal and that his proposed grounds were at least arguable. Likewise, none of the grounds as they came to be amended could be characterised as not at least arguable. Neither as instituted nor prosecuted by Private R could the present proceeding be described as either frivolous or vexatious. The proceeding undoubtedly raised a number of important issues concerning the conduct of proceedings before a service tribunal by a defending officer and the consequences of forensic choices made by a defending officer. Those are issues of systemic importance to the service discipline system.
159 Perhaps because the Tribunal’s decision in Barry was not reported, perhaps because of generational change within the senior echelons of the ADF and those responsible for the furnishing of legal advice to them but not, it is to be hoped, because of a lack of understanding in those same senior echelons of the importance of confidence by all ranks in the fairness and integrity of the service discipline system, the commendation by Gallop J in Barry to a service chief in relation to the seeking of costs appears to have been forgotten, as the present application for costs attests. We respectfully agree with his Honour’s commendation. We would thus commend to the respondent Chief of Army that one of his soldiers in the position such as Private R should not have to expose himself to financial burden in order to test the legality of his trial at court martial or before a DFM.
160 There undoubtedly are cases in which it would be appropriate for the Tribunal to make an order for the payment by an unsuccessful appellant or applicant, either in whole or in part, of a respondent service chief’s costs but the present is not such a case. In the circumstances of the present case, and for the reasons given, we do not consider it fit to make any order for costs against Private R. The application for such an order by the respondent Chief of Army is, accordingly, refused. Instead, there should be no order as to costs.