Brian Sandow and Repatriation Commission
[2012] AATA 644
•25 September 2012
[2012] AATA 644
Division VETERANS' APPEALS DIVISION File Number
2012/0118
Re
Brian Sandow
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President D G Jarvis and Dr R Ormston, Member
Date 25 September 2012 Place Adelaide The decision under review is affirmed.
....... [Signed .......
Deputy President D G Jarvis
CATCHWORDS
VETERANS' ENTITLEMENTS - Prisoner of war recognition supplement - forced landing in Egypt in 1942 - meaning of "interned" - decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986 (Cth), ss 115M and 119
CASES
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
Deputy President D G Jarvis and Dr R Ormston, Member
25 September 2012
The applicant, Mr Brian Sandow, had operational service during World War II from 1 March 1941 to 13 July 1945. On 3 November 2011, he completed a form claiming to be eligible for a prisoner of war recognition supplement pursuant to s 115M of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act).
The basis of his claim is that when he was serving in Egypt in November 1942 he was the wireless operator on board an aircraft when it made a forced landing as a result of being damaged by enemy action, and later he and the other three members of the crew on the aircraft were held captive by members of the Italian army for some days, after which they escaped.
A delegate of the Repatriation Commission rejected Mr Sandow’s claim, on the grounds that none of his service records indicated that he had been interned by enemy forces at any period during his service during the Second World War. Mr Sandow has applied to this tribunal for review of the delegate’s decision.
ISSUE BEFORE THE TRIBUNAL
The issue before the tribunal is whether we are satisfied that he was interned by the military forces of Italy during the period to which he referred.
It was accepted that to the extent that Italian army personnel were involved in the relevant events, they constituted the military forces of an enemy State. However, the Commission contended that Mr Sandow’s recollection of relevant events was not reliable, and that in any event, the events that he described did not amount to his having been “interned” within the meaning of s 115M(1) of the VE Act. This word is defined in s 115M(7) as follows:
“interned” means:
(a)confined in a camp, building, prison, cave or other place (including a vehicle); or
(b)restricted to residing within specified limits.
BACKGROUND FACTS
The Commission obtained historical evidence from Writeway Research Service Pty Ltd (Writeway) regarding Mr Sandow’s service in the Middle East during World War II. Writeway in turn made inquiries of the Air Historical Branch of the Royal Air Force, because at the relevant time, Mr Sandow was on loan from the RAAF to an RAF squadron which was involved on reconnaissance duties in Egypt. The Air Historical Branch found a reference to the event on which Mr Sandow’s claim is based in the Flight Operational Record Book (Record) of the relevant RAF squadron. The Record states in effect that on 2 November 1942, Mr Sandow with three other crew were engaged in a reconnaissance flight. The Record continues:
At 16.08, they had reached Daba flying well to the South of the Road when a formation of 12 enemy fighters was seen 5 miles away. Two of them soon left the formation and flew towards our aircraft which made for the nearest cloud cover, followed by two minutes by the fighters (sic). At 16.45 Sergeant Isherwood set course for home but must have been already south of the depression for at 17.10 the Nile Valley near Fayoum [Faiyum] was sighted. Unable to turn north to the Delta, owing to a heavy storm, Sergeant Isherwood landed safely in the Desert at 17.50. He and his Crew were picked up by a local Bey and very hospitably and courteously entertained for the night.
The Air Historical Branch further advised that there was no mention of when the crew returned to their unit, but that the Baltimore aircraft they were flying was used by another crew on an operation on 12 November 1942, and that Mr Sandow and the other three members of the crew flew their next operational sortie on 24 November 1942. The Air Historical Branch also advised that they had no trace of Mr Sandow (or any of the other three members of the crew) in their casualty records, reporting any of them missing or taken prisoner of war.
Mr Sandow said at the outset of his evidence that he would do his best to honestly recall the relevant events, taking into account that they occurred nearly 70 years ago. His evidence was as follows.
At the time of the event in question, he was serving in Egypt and was on loan from the RAAF to an RAF squadron. He was involved on reconnaissance duties in a Baltimore aircraft used to take aerial photographs for intelligence purposes. He was the wireless operator and the reserve gunner on the aircraft. The other crew were the pilot, the observer, and the rear gunner. He said that the aircraft was shot up by enemy aircraft, damaging the port engine, and after flying as far as it could on one engine, the aircraft had to make a forced landing. Mr Sandow sent a wireless message to their base advising of the bearings of where they had landed.
The crew then left the aircraft and walked for about 45 minutes, carrying a 14 gallon container of water, and came to a settlement of local people. They were sympathetic and took the airmen in, and they slept the night in a lean-to at the back of one of the houses or tents in the settlement.
Mr Sandow remained at the settlement with the other three air crew. On the day following their forced landing they were tired as a result of their reconnaissance mission and what had occurred. At about 5.00 pm that day a group of Italian troops entered the settlement and took control of it. They arrived in about four transports and there were about six people in each vehicle, although he did not see all of the Italian troops. Some of the Italian officers spoke English very well, but he only had two or three discussions with the Italians. He was asked for his rank and number, and about whether he was married, his parents, and things like that. The pilot and the observer had the most to say to the Italians. He had had some contact with Italian prisoners when he was trained in Kenya and had been told that the Italian army had a nobleman at its head, so that they should salute their officers. He and the other air crew saluted the officers after the Italian troops arrived at the settlement, and the Italians treated them quite respectfully.
He and the other airmen were not confined or chained up, and were pretty free to move around. They spent a lot of the time sitting on the ground, but a couple of times they rested inside in the same place where they had spent the first night. The Italians placed a couple of sentries around the place, and they also had the local people to control. There was a sentry whom he supposed was about 10 paces away from the four air crew, and he presumed that the sentry was there at night but he could not really see. The sentry had a type of machine gun. The second sentry was on the outskirts of the “property” (which we took to mean the outskirts of the settlement).
After three or four days, at twilight, the air crew decided to take a risk and walk off. Mr Sandow did not see if the sentry was still there. They were fearful that they would be shot, but nothing happened.
The terrain around the settlement was completely flat, and they walked off in an easterly direction for about two and a half to three hours, and then rested until dawn the next day. They continued walking for some hours, and then came to another encampment. After spending about 30 hours there, they were taken to a pasha’s house by car, and spent about four days there. They were treated like guests. After that they were taken to Cairo by air, and three or four days later they were returned to their base. They then had about two or three days’ rest before they resumed their reconnaissance duties.
Mr Sandow was asked in cross-examination why he had delayed making a claim for prisoner of war benefits for so many years. He said that this was because of a strict policy by the commanding officer of the squadron against line shooting in messes, by which he meant conduct of personnel that amounted to skiting or exaggerating accounts of their experiences during operations. In addition, the policy of the squadron was not to discuss any of its work. He said that he thought that this policy (of confidentiality) was a very good one, and he continued to respect it even after he returned to Australia and had been discharged. He said that because of this policy, he had no recollection of discussing his experience in the mess with other people. Later in his evidence, in response to questions from the tribunal, he said that he had been unaware that benefits were available under the VE Act to veterans who had been interned until a discussion with another veteran that occurred in the Department’s office very shortly before he lodged his claim form.
He said that after he returned to base, the pilot and the observer were interviewed because they were the only people in the aircraft who could see ahead, that they obviously satisfactorily answered the questions asked, and that he and the gunner were not involved in any detailed debriefing.
CONSIDERATION
Under s 120(6) of the VE Act, no onus of proof is imposed on either party of any matter that is or might be relevant to the determination of a claim for benefits under the VE Act. Further, under s 120(4) of the VE Act, we are required to determine this matter to our reasonable satisfaction, and that entails resolving the matter according to the balance of probabilities.[1] We also take into account the provision of s 119(1), which provides for the manner in which the Commission (and this tribunal standing in the shoes of the Commission) is to determine matters arising under the Act. We refer in particular to s 119(1)(h) which provides in effect that we must take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, including any reason attributable to:
(a)the effects of the passage of time, including those effects on the availability of witnesses; and
(b)the absence of, or a deficiency in, relevant official records.
[1] Repatriation Commission v Smith (1987) 15 FCR 327
We will first approach this matter on the assumption that Mr Sandow has given an accurate account of his encounter with the Axis forces during the days following the forced landing. On that assumption, the question arises as to whether it could be said that he was “interned” within the meaning of that word in s 115M(7) of the VE Act. He has not suggested that he was confined in any building or other enclosure, so he does not fulfil the criteria in paragraph (a) of the definition of “interned”. Further, we are not satisfied that during the relevant period he or the other airmen were “restricted to residing within specified limits” within the meaning of paragraph (b) of the definition. He made no reference to his movements being restricted so that he could not move outside any particular defined area within the settlement, or outside any nominated area, and there is no evidence of any demarcation of any such area. The absence of any such restriction was further evidenced by the fact that he and the other airmen were able to walk away from the settlement, and this happened not after nightfall, but when it was twilight. We have of course taken into account the presence of the sentry, but as Mr Crowe, the advocate for the Commission, submitted, the deployment of the sentry could also be explained as a measure that was thought necessary in order to ensure that the airmen did not undertake activities that would have constituted a danger to the Axis troops.
There is force in the Commission’s contention that we should find that Mr Sandow’s recollection of events at the settlement involving Italian troops is not reliable. We accept that he did his best to give a truthful account of what happened, but the events in question occurred nearly 70 years ago, and he is now 90 years of age. The Operations Record Book contains a very detailed and specific reference to the operational flight in question, and confirms that a forced landing occurred, and that it happened at 17.50 on 2 November 1942. It includes the statement that the air crew were picked up by a local Bey and “very hospitably and courteously entertained for the night”. However, there is no mention that the air crew were detained after that by Axis forces. Nor does the Record state that the aircraft was damaged by enemy fire: it gives a different reason for the forced landing. The present matter appears on the face of it not to be a case where there is an absence of, or apparent deficiency in, official records, as contemplated by s 119(1)(h) of the VE Act. In addition, the T-documents include Mr Sandow’s record of service and a copy of extensive medical records, including records of medical conditions and examinations that occurred periodically after November 1942, but they do not refer to the events to which Mr Sandow referred. We understand that Mr Sandow generally felt constrained not to reveal details of his operational missions, but it is difficult to understand why he would be diffident about disclosing the event to doctors associated with the Forces, and we find it surprising that in the context of records of medical consultations there is no reference to any period of detention by Axis forces. Mr Sandow also said that he would not have referred to that matter in connection with a claim that he later made under the VE Act based on an anxiety disorder, and again we find that surprising in view of his evidence to us of the fear he had experienced during the events that he described. We are also troubled by Mr Sandow’s inability to recollect the precise number of days for which he remained at the settlement following the forced landing, his uncertainty as to whether the airmen had discussions amongst themselves about leaving the settlement, and his evidence that he left it to the observer to see if the sentry was there when they made their twilight departure from the settlement. However, in view of our decision that Mr Sandow was not “interned” on his account of his experience, it is not necessary for us to make any finding as to whether his recollection that he was detained by Axis troops after the forced landing is incorrect.
In summary, on Mr Sandow’s version of the relevant events, and on our opinion as to the meaning of “interned”, we are not satisfied that Mr Sandow was interned within the meaning of s 115M of the VE Act.
In presenting his submissions, the advocate for the Commission, Mr Crowe, very properly acknowledged the service which Mr Sandow had rendered for his country, and the adverse impact that his service has undoubtedly had on his health. We also acknowledge these matters, but the prisoner of war recognition supplement can only be provided to veterans in the circumstances provided for by Parliament, and we have concluded that his claim does not meet the criteria for eligibility referred to in the VE Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarvis and Dr R Ormston, Member ... [Signed] ...
Associate
Dated 25 September 2012
Date of hearing 13 September 2012 Applicant In person Advocate for the Respondent Mr A Crowe Solicitors for the Respondent Department of Veterans' Affairs Advocacy Section
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