Cowell and Repatriation Commission - [2004] AATA 709

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 709

ADMINISTRATIVE APPEALS TRIBUNAL № V2003/701

VETERANS' APPEALS DIVISION

Re: PETER RODNEY COWELL

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mr E. Fice, Member

Date: 28 June 2004

Place: Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) E. Fice
Member

VETERANS' AFFAIRS — veteran entitlement - alcohol dependence – alcohol abuse –- severe stressor - whether applicant entitled to disability pension

Veterans’ Entitlements Act 1986 ss 70, 120, 120B

REASONS FOR DECISION

28 June 2004 Mr E. Fice, Member

On 20 November 2002, a delegate of the Repatriation Commission (the Commission) refused Mr Cowell's claim for a disability pension in respect of incapacity caused by post traumatic stress disorder and alcohol dependence or alcohol abuse. On 11 April 2003 the Veterans’ Review Board (the VRB) affirmed the decision of the Commission. The VRB was not reasonably satisfied that Mr Cowell suffered from post traumatic stress disorder arising from the circumstances of his defence service. Furthermore, the VRB was not satisfied that Mr Cowell's alcohol dependence or alcohol abuse was defence‑caused. Although Mr Cowell's appeal to the Tribunal was initially made in respect of the VRB's decision regarding both claims, on the first day of the hearing counsel for Mr Cowell informed the Tribunal that Mr Cowell would not be proceeding with the appeal against the decision regarding post traumatic stress disorder. Accordingly, the application to the Tribunal proceeded solely in respect of the alcohol dependence or alcohol abuse decision.
Mr D. Opie, of D. Opie & Co, barristers and solicitors, appeared for Mr Cowell and Ms J. McCulloch, an advocate with the Department of Veterans' Affairs, appeared for the Commission. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T14) (the T‑documents), together with 1 exhibit (Exhibit A1) lodged by the applicant and 12 exhibits (Exhibits R1‑R12) lodged by the Commission.

BACKGROUND

Mr Cowell enlisted in the Australian Army (the army) on 26 July 1972. Prior to this, he had been a member of the Australian Citizen Military Forces since 7 April 1970. In the army, Mr Cowell was a motor mechanic. Upon enlistment, he was assigned to the Royal Armoured Electrical and Mechanical Engineers in the rank of Craftsman. Mr Cowell underwent basic training at Kapooka following which he was posted to the Armoured Centre at Puckapunyal.
On 28 February 1973, Mr Cowell undertook a Craftsman Field Training Course which was conducted at Bandiana. The course ran between 28 February 1973 and 10 April 1973. On that course, Craftsmen were given weapons training, first aid, health and hygiene, minor tactics and field training, map reading and navigation, radio/telephone procedures, and physical efficiency tests. There were 26 students on that course. According to Mr Cowell, it was during the Craftsman Field Training Course that an incident occurred on a firing range which he claims gave rise to his alcohol abuse/dependence problem.
Following the completion of the Craftsman Field Training Course, Mr Cowell served with the Armoured Centre LAD at Puckapunyal. He completed a course for the promotion to Corporal and was recommended for that promotion. In order to take advantage of a possible promotion, Mr Cowell requested that he be given the opportunity to serve in a Field Force Command Unit. He applied for a posting to serve in the Townsville area or any area north of Sydney. On 23 November 1976, his request for posting to the Townsville area was approved. He took up that posting in February 1977. However, because of an accommodation shortage in Townsville, his wife and children remained in the married quarters at Seymour in Victoria, pending the allocation of married quarters in Townsville. This caused Mr Cowell some marital problems and in May 1977, Mr Cowell sought a reposting to the Melbourne area. In August 1977, Mr Cowell was posted to a Melbourne workshop company in South Melbourne. His re‑engagement with the army, for a period of three years, was also approved.
In May 1978, due to continuing domestic problems, Mr Cowell was warned he was regarded as an unsuitable soldier and an administrative liability. He was told that unless he demonstrated his suitability, he would be recommended for discharge. On 14 December 1978 Mr Cowell was discharged on the grounds that his retention in the military forces was not in the interests of those forces.

THE PARTIES' CONTENTIONS

Mr Cowell claims that his alcohol dependence and abuse was brought on by an incident which occurred on the open rifle range at Bonegilla, about four weeks into the Craftsman Field Training Course, which he commenced on 28 February 1973. The incident involved shots being fired down the range after the completion of a night live firing exercise.
Mr Cowell said that at the conclusion of the night live firing exercise, he was ordered to retrieve a red warning flag situated at the end of the range in the area described as "the butts". He said that he walked up the range, some 300 metres from the firing position to the butts' where he removed the red flag and began to walk back down the range when a shot rang out. He hit the ground and waited for a brief moment before getting up and continuing to walk towards the firing mound. A second shot rang out and he again dropped to the ground. He said he was too far away from the firing position to call out and so he crawled across the range to safety before walking back to the firing mound. He said the incident left him terrified and distressed. Although he reported the incident, no action was taken and he was told to forget about it.
Prior to the incident on the rifle range, Mr Cowell said that his alcohol drinking pattern was normal for a soldier. He said that he mostly drank beer but occasionally indulged in spirits. He said that army life was very conducive to drinking; that there were many functions to attend and the fact that alcohol was available and its consumption encouraged led to a reasonably high level of drinking. He described his drinking as fitting the pattern of a social drinker.
However, in the 12‑month period following the incident on the rifle range, Mr Cowell said that he began drinking more heavily and reached the point where he was drinking up to 12 stubbies of beer per day. He also said that he had formed a habit of drinking strong liquor, mostly whiskey, and that he would drink at lunchtime and sometimes in the afternoon and during the evening. His relationship with his wife deteriorated. He said that he was able to continue doing his job, but that he was hiding his drinking, although he was caught on at least one occasion. Other than being reprimanded, no further action was taken against him in respect of his drinking.
In early 1977, after Mr Cowell had been posted to Townsville and he had received a letter from his wife asking for a divorce, he said that his drinking became horrendous. He said that he was consuming much larger quantities of alcohol, from lunchtime right through until late at night.
Although Mr Cowell sought a compassionate posting back to Melbourne to be close to his children, matters did not improve after that posting. Mr Cowell was finally discharged on 14 December 1978 on the grounds that his retention in the military forces was not in the interests of those forces.
The Commission contends that the alleged incident, on the Bonegilla range, did not occur at all or did not occur in the manner described by Mr Cowell. Furthermore, the Commission contends that, in any event, the incident described by Mr Cowell does not meet the definition of "experiencing a severe stressor" as that term is defined in factor 8 of Statement of Principles ("SoP") № 77 of 1998 concerning alcohol dependence or alcohol abuse.
Furthermore, the Commission contends that the appropriate diagnosis of Mr Cowell's condition is alcohol abuse rather than alcohol dependence. The Commission further contends that the clinical onset of Mr Cowell's alcohol abuse occurred outside the timeframe prescribed under the SoP, i.e. more than a year after experiencing a severe stressor.

CONSIDERATIONS

Mr Cowell served with the army between 16 July 1972 and 14 December 1978, a period of approximately 6 years and 5 months. Mr Cowell's eligibility for a pension arises under Part IV of the Veterans’ Entitlements Act 1986 ("the Act") and, in particular, s 70, which, relevantly, provides as follows:
70(1) Where:
(a)…
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)…
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
There is no question that Mr Cowell satisfies the definition of "member of the Forces" as defined in s 69 of the Act and he rendered defence service as that is defined under s 68 of the Act. Section 70(7) of the Act provides, in so far as it is relevant:
70(7) Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member's environment consequent upon his or her having rendered any such service:
(a)…; or
(b)if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act.
The standard of proof to be applied by the Tribunal is set out in s 120(4), which provides:
120(4) …the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Further, because Mr Cowell's claim was made on or after 1 June 1994, s 120B of the Act applies to his claim. Accordingly, the Tribunal can only be reasonably satisfied that Mr Cowell's disease was defence‑caused if:
(a)the material before the Tribunal raises a connection between his disease and some particular service rendered by him; and
(b)there is in force a SoP determined under s 196B(3) or s 12,

that upholds the contention that Mr Cowell's disease, on the balance of probabilities, is connected with his defence service.

The parties appear to accept that Mr Cowell is a chronic alcoholic. Dr M. Epstein, psychiatrist, who examined Mr Cowell on 25 November 2003, said that, in his opinion, Mr Cowell suffers from chronic alcohol abuse. In his oral evidence, Dr Epstein suggested that there was no distinction between alcohol abuse and alcohol dependence. Dr N. Strauss, consultant and occupational psychiatrist, who examined Mr Cowell on 17 December 2003, said that, in his opinion, Mr Cowell suffered from alcohol abuse and had done so for many years. Dr C. Newlands, consultant forensic psychiatrist, who examined Mr Cowell on two occasions, 20 September 2002 and 27 September 2002, considered that Mr Cowell suffered from alcohol dependence.
It was submitted on behalf of Mr Cowell that the incident on the open rifle range at Bonegilla in about March 1973 constitutes a severe stressor for the purposes of SoP № 77 of 1998 concerning alcohol dependence or alcohol abuse. The term "experiencing a severe stressor" means,
…[for the purposes of the Statement of Principles, that] the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror.

Mr Cowell's evidence is consistent with him having experienced a "severe stressor" as defined under the relevant SoP.

In addition to experiencing a severe stressor, at least one of the factors set out in factor 5 of the SoP must be related to the relevant service rendered by the person making the claim. The relevant factor relied on by Mr Cowell is factor 5(b), which provides:
5.The factors that must exist before it can be said that, on balance of probabilities, alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse is connected with the circumstances of a person's relevant service are:
(a)…
(b)experiencing a severe stressor within one year immediately before the clinical onset of alcohol dependence or alcohol abuse;
(c)…
(d)…
(e)…
Mr Cowell's evidence is that his drinking habits changed markedly within the 12‑month period after experiencing the severe stressor on the rifle range in March 1973. Mr Cowell's evidence was supported by Mr M. Bell, who served in the army between June 1973 and 1987. He knew Mr Cowell both on a professional and a social basis during his time in the service.
Accordingly, it is my opinion that the hypothesis raised by Mr Cowell connecting his alcohol dependence or alcohol abuse problem with his defence service is a reasonable one. Therefore, it only remains for me to determine, on the balance of probabilities, whether the evidence before the Tribunal raises a connection between Mr Cowell's disease and his defence service.
The severe stressor relied upon by Mr Cowell to connect his alcohol dependence or alcohol abuse with his defence service is that he was subjected to live rifle fire on the Bonegilla open rifle range during a night live firing exercise in about late March 1973. The open range, which is some 600 metres in length, is a completely different range to the 25 metre range which is also referred to as the miniature range. In his evidence before the Tribunal, Mr Cowell said that he was required to conduct shooting practice as part of the Craftsman Field Training Course. As Mr Jackson put it on behalf of Mr Cowell before the VRB, the Craftsman Field Training Course was designed to get army Craftsmen out of their workshops and into the field performing activities such as drill and minor infantry tactics, including weapons training. Mr Jackson said that the course was designed to bring soldiers who are tradesmen up to the level of soldiers who are infantrymen so as to increase their ability as soldiers. Mr Cowell said that the course involved lots of physical work, weapons training, navigation, cross‑country and "all that sort of thing and live firing".
Early one week during the course, on a Monday or Tuesday, Mr Cowell said that the course members conducted live firing exercises during the afternoon until about tea time and then again after dark. He said there was a break for a meal and that, after darkness had fallen, the live firing exercise continued using parachute flares for visibility. He said that the firing exercise concluded about 9:00 to 9:30 in the evening. Mr Cowell said that about 30 trainees were involved and there were also training staff present, numbering about 15 to 20. Mr Cowell confirmed that altogether, there were somewhere between 30 to 50 men taking part in the live firing exercise.
Mr Cowell said that, at some time on the Thursday in the same week, an instructor, whom he recalls was a Captain Spence, told the members of the course that he was "unhappy with the shoot that had already taken place" and that they would be required to repeat the exercise on the following day, being the Friday afternoon and Friday evening. Mr Cowell cannot recall why Captain Spence was unhappy with the first live firing exercise conducted during that week.
Mr Cowell was asked to describe to the Tribunal the physical characteristics of the Bonegilla open rifle range. Mr Cowell said that the range was approximately 15 minutes from the Bonegilla camp. He said that he was unable to give any estimate of its size, but that it was sufficiently large to hold 10 shooters. Mr Cowell said that there were three red flags used on the range to indicate that it was active. The first was at the entrance to the range, the second close to where the firing party was firing from, and the third one was "down range but fairly highly visible area".
Mr Cowell said that there was a firing mound on which the shooters could stand, kneel or lie down. He said that firing took place at targets placed at 25 metres, 50 metres, 100 metres, 200 metres and 300 metres, depending on which weapon was being fired and the position from which the shooter was firing.
In order to be absolutely clear about Mr Cowell's description of the range, I confirmed with him that his evidence was that there were multiple targets placed along the length of the range behind which were situated earth mounds. I asked Mr Cowell to draw, on a whiteboard in the hearing room, the layout of the range as it was at the time of the alleged incident. What Mr Cowell drew was a fixed position which he described as the firing mound. Along the range, Mr Cowell drew targets placed at various intervals up to the end of the range. He also said there were, and he drew on the whiteboard, earth mounds behind each target. He made it clear that, at each target that was fired at, there was a mound directly behind that target running across the width of the range. When asked if there was a separate butts’ area behind each mound, Mr Cowell said "yes". He said "they are butts and they will be sequentially elevated so when you can look across the top of the 25 so you can see that one, you can look across the top of there and see that one". What Mr Cowell pointed out was that there was a series of mounds each with a butts' area immediately behind it along the range at various distances with different elevations and, given the upslope of the range, one could see over the top of the first butts' area to where the second targets would be placed at a greater distance and so on.
Mr D. Miller, a retired Lieutenant Colonel, had served at Bandiana for one year on four occasions. The open rifle range at Bonegilla is well‑known to him and he had fired on it many times as a soldier. Mr Miller, who gave evidence for the Commission, also provided recent photographs he had taken at the Bonegilla open rifle range. The photographs disclose that the range is a very flat area, sloping slightly downwards towards the butts' area. There is only one butts' area situated at the very end of the range and there is no sign of a series of butts' running across the range at various intervals from a single firing point. There are a number of slightly elevated firing mounds at various intervals back from the butts' area, the most distant being some 600 metres away.
In the course of giving his evidence, Mr Miller drew an outline of the range on the whiteboard. He described the butts' area as comprising a mantelet of earth preceding a concrete lined trench from which targets are raised and lowered. Immediately behind the trench is a very large mound of earth, the stop butt, into which live rounds would enter after, hopefully, passing through the target. Mr Miller pointed out that there was a road to the west of the range from the entry gate which ran down the side of the range, all the way to the butts' area. At the gate there was a sign upon which were written words to the effect of "Do not enter this range when red flags or red lanterns are exhibited". The range is approximately 600 metres in length, sloping downwards from the most distant firing mound, and there are large hills behind the butts' area. The butts' area has numbers from 1 to 10 across it, indicating the target lanes. According to Mr Miller, a red flag was placed on the stop butt, at one end. From the butts' area, there are firing mounds at 100‑metre intervals, each 300 to 400 millimetres high. There is no evidence that there were any mantelets or butts' at various distances along the range as described by Mr Cowell. Mr Miller's evidence was that the features on the range have not changed since he was there last, in about 1970.

Mr J. Church, a retired army colonel, prepared two reports dated 7 December 2003 and 26 February 2004, and he also gave oral evidence for the Commission. Mr Church conducted research into the incident described by Mr Cowell. Mr Church said that he had spoken to retired Major R. Norman, who had been a Sergeant Instructor at the Royal Australian Electrical and Mechanical Engineers ("RAEME") Training Centre during the relevant period. According to Major Norman, there were no courses conducted at the RAEME Training Centre which involved range practice held at night. Major Norman also said that the open rifle range at Bonegilla was situated on leased property, and was used continuously by farmers in the region for the agistment of cattle. Prior to using the range, the unit conducting live firing had to clear the area of all animals. According to Mr Church, firing exercises on the Bonegilla range were always preceded by an advertisement or public notice in a newspaper placed at least a week prior to the live firing exercise. Also, because courses were conducted according to a strict schedule, the agreement of the commanding officer, chief instructor and senior instructor would be required for a live firing exercise at short notice. Mr Church admitted that it was possible that the range had been booked for the entire week, although he did say that it was unusual to repeat an exercise such as that described by Mr Cowell at short notice.
As for the incident itself, Mr Cowell said that the live firing exercise was conducted firing at targets at between 100 to 300 metres. He said that the weapons used were the SLR (self‑loading rifle) and a heavy machinegun. He said that the targets were static targets, which he described as cut-out figures attached to poles. He said that the targets were put up "willy‑nilly wherever they can find a spot for them, because they realise you are going to destroy them in the dark". He said that the targets were not spotted and no score was taken from the shoot.
Mr Cowell said that the lighting used to illuminate the targets were magnesium parachute flares. These flares were fired by instructors standing behind the firing party on the firing mound. They provided illumination for 2 to 3 minutes. Mr Cowell said that, when the night firing exercise had concluded, all the weapons were cleared of live rounds by the instructors, and they were taken from the firing mound and returned to the stores vehicle. Mr Cowell said that at the same time, other soldiers would be "reconditioning the mound". He said that meant that the range would be cleaned up of rubbish and spent cartridges. He then said that, during the course of reconditioning the mound, an NCO, who he believed was called Sergeant Busby, instructed him to walk down the range to retrieve the red flag which was approximately 300 metres away at the end of the range. Mr Cowell said that he set off down the range to retrieve the flag. He confirmed that there were butts' laterally across the range. The butts were about the same width as the firing point. He estimated that would be about 20 metres wide. Mr Cowell said that where there were targets which popped up, he had to walk around the edge of those targets, because there was a fairly large drop behind them, "where it’s a concrete sort of reinforcement thing". He said that once past the moveable targets, he walked across the undulations. He said that he walked uphill and that it took him about 10 minutes to reach the flagpole. He said he took the flag down and then headed back towards the firing point, walking on the range itself. He could see the firing point because vehicles behind it were required to have their headlights on, to assist in loading the weapons at the firing point. Mr Cowell said that he had not gone very far when he heard a shot ring out. He said that he did not shout out because he was too far away, and he immediately dropped to the ground. After a short period of time, he said that he stood up and started to walk again towards the firing mound when he heard a second shot and once again he dropped to the ground, terrified. He then said he crawled laterally across the firing range, well off to one side to get out of harm's way and then walked downhill, back towards the firing point.
Mr Cowell said that, when he got back to the firing range, all the vehicles were lined up with their headlights on and people were picking up spent cartridges and rubbish from the firing mound area. He said that there was an officer standing there with an SLR either on his shoulder or he may have been holding it in his hands. He said that officer's name was Captain Spence. Mr Cowell said that Captain Spence was designated the range safety officer for that firing exercise. He said that Captain Spence was responsible for the entire exercise, including the afternoon firing. According to Mr Cowell, he gave Captain Spence a tongue lashing, as he assumed that it was Captain Spence that had fired the shots. After speaking to Captain Spence, he sat down against the wheel of a vehicle and smoked some cigarettes. He said a number of people came down to see if he was okay, including various NCOs who were staff members. He said that he was in shock at that point.
Under cross‑examination, Mr Cowell said that he believed the distance over which the night live firing exercise took place was 300 metres and not 500 metres. When it was put to Mr Cowell that in the evidence he gave before the VRB he said that the distance over which the firing took place was more like 500 yards, that it was a long way, half a kilometre, 500 metres or more. When faced with this inconsistency, Mr Cowell said that his present recollection was that it was 300 metres.
I asked Mr Cowell to confirm the size of the mounds on which the targets were placed. He said they were across the range, all the way down its 300 metre length. Mr Cowell said that the mounds became progressively larger as one moved down the range from the firing point, starting from perhaps one metre high, with the mounds further down range being perhaps up to four metres high. Mr Cowell also agreed that there may have been trenches behind those mounds and I asked him to explain how it was that he, in fact, walked up the range traversing these mounds and trenches. Mr Cowell said that he went around the side of them. Mr Cowell said that, in walking up the range, he was off the firing area of the range and was walking up the side of it. This was contrary to his evidence‑in‑chief, where he said that, when he had passed the moveable targets, he walked across the undulations, as he described the mounds.
On the following Monday morning, Mr Cowell said that either he was summoned to see the commanding officer or that he asked to see the commanding officer, Major Power. After his meeting with Major Power, Mr Cowell said that he was told to write a report about the incident which occurred on the Friday night. He said that he did write such a report and that he gave the report to Major Power. Major Power was the officer commanding 106 Field Workshop at that time.
Mr Cowell said that he took the report back to the orderly room and gave it to either Major Power or another officer. Mr Cowell said that he was, in due course, summoned to Major Power's office and was told that Major Power had investigated the matter as far as he intended to, and that it was his prerogative not to take the matter any further. He was then told that that was the end of the matter. Mr Cowell said that he felt that the matter had been swept under the carpet. He said that he was advised by staff, before returning to Puckapunyal, that he should take the matter further when he returned to his unit. Acting on that advice, Mr Cowell approached his Sergeant Major and explained what had happened. According to Mr Cowell, the Sergeant Major made an appointment for him to see a legal officer, who Mr Cowell described as an army officer studying law. Mr Cowell said that such a person did come to Puckapunyal and he discussed the matter with that person. Mr Cowell said that he was advised not to pursue the matter any further. Again, Mr Cowell said that he felt that the matter was simply being swept under the carpet.
Mr Church, in one of his written reports, said that he had consulted with Lieutenant Colonel Power (retired) who confirmed that he was the officer commanding the Puckapunyal workshop from 1971 until the end of 1977. Mr Church said that Lieutenant Colonel Power could not recall a soldier by the name of "Cowell" being under his command and he had no knowledge of any incident regarding a night firing exercise on the Bonegilla open rifle range. According to Lieutenant Colonel Power, he recalled that there was an RAEME officer by the name of James Spence in one of the RAEME units at Puckapunyal in 1969 but, as far as he could recall, he was not there in 1973.
Mr V. Reading, who gave evidence on behalf of Mr Cowell, was a sergeant with 106 Field Workshop in April 1973. Mr Reading said that he took part in night firing practices at Bonegilla and that he fired on the 25‑metre range (as opposed to the open rifle range) into set targets at the bottom of the first lot of stop butts. Mr Reading also confirmed in evidence that all firing exercises were planned well ahead of time. In Mr Reading's view, it was not likely that a live firing exercise could be arranged at short notice.
On the evidence which was put before the Tribunal, it is not possible to accept Mr Cowell's account of the live firing incident which he said occurred at night on the Bonegilla open rifle range in about March 1973. There are far too many serious inconsistencies.
At the VRB hearing, Mr Cowell said that the live fire exercise occurred over a distance which was in excess of 500 metres. That distance had quite substantially reduced to 300 metres in his evidence before the Tribunal. Mr Opie, in his submissions, suggested that it is open to the Tribunal to find that the incident in question took place on a 25‑metre range. To do so, one would have to ignore entirely all of the critical evidence given by Mr Cowell. For example, it is completely inconsistent with Mr Cowell's description of how he walked down the rifle range to collect the flag at the butts' area. Mr Cowell said that he had to traverse various mounds and butts' areas on the way to where the flag was situated some 300 metres from the firing mound. That evidence alone completely excludes any possibility that the firing took place on a 25‑metre range. Mr Cowell also said that he did not call out after the first shot was fired because he was too far away from the firing mound to be heard. At a distance of less than 25 metres, I have no doubt that he would have called out and that he most likely would have been heard. He would also have been visible in the lights of the vehicles which he said were switched on to illuminate the firing area.
Perhaps the more telling evidence against Mr Cowell was his own description of the open rifle range at Bonegilla. That evidence is completely contrary to the evidence given by Mr Miller and, in particular, the photographic evidence of the Bonegilla range as it is today. Mr Cowell said that the range sloped "uphill" from the firing mound to the final butts' area. In fact, the range has a gradual down slope from the firing mounds to the butts'. He also said that there were mounds and butts at varying intervals along the range. Not only is there no evidence of any such mounds and butts', but Mr Miller said that he had never seen an open rifle range which was constructed in that way. Rather than there being one firing mound with targets placed at varying distances from that position, there are a series of firing mounds along the length of the range with the targets being positioned at a fixed point at the butts' area.
Despite the fact that there must have been approximately 50 persons present who witnessed the incident which was described by Mr Cowell, not one of those persons was called to give evidence to corroborate Mr Cowell's account of events. Although I appreciate that there would be some difficulty in locating such witnesses, there was no evidence that, apart from Captain Spence, any effort was made to locate witnesses to the alleged incident. Mr Church, in his research, was unable to locate the officer referred to by Mr Cowell as Captain Spence. Mr Church said in his statement that he had spoken with Lieutenant Colonel Power, who recalled an officer by the name of "Spence", but, as far as Lieutenant Colonel Power could recall, this Spence was not there in 1973. Mr Church also said in his report that Lieutenant Colonel Miller, who was, at the relevant time, undergoing a course at the RAEME Training Centre, and Major Norman could not recall any officer by the name of "Spence" being at the RAEME Training Centre in 1973. Furthermore, Major Norman, who was involved with the course which Mr Cowell attended, said he had no knowledge of any night live firing practices being held as an element of that course. Mr Reading did recall that night live firing practice was conducted as part of the Craftsman Field Training Course, but that was on the 25 metre range and not the open rifle range.
It was put, in submissions for Mr Cowell, that the incident as described by him must have taken place because Mr Cowell, in 1973, recounted such an incident to Mr Bell. Mr Bell was, at that time, a soldier/vehicle mechanic stationed at the same Unit as Mr Cowell. He also socialised extensively with Mr Cowell. Mr Bell's evidence was that in about early 1974, Mr Cowell told him that the main reason for his increase in alcohol consumption at that time was the fact that he had been involved in a live firing incident on a rifle range and that he was ashamed of his inability to deal with that as he believed a soldier should. Although I have no reason to doubt Mr Bell's evidence, at best, it only proves that such a conversation took place. It does not establish the truth of what Mr Cowell said. Mr Bell was not present on the rifle range on the night in question and he could not and did not give any direct evidence about the alleged incident.
The description given by Mr Cowell of the alleged incident also seriously lacks credibility. Mr Cowell's description of firing at targets without any scoring taking place is at odds with standard procedures for the conduct of live firing on a rifle range. His suggestion that firing took place without any attempt to score is particularly implausible, given that Mr Cowell said in evidence that the reason for the night firing exercise on the Friday night was because Captain Spence had been unhappy with the exercise when it had been conducted previously, on the Tuesday or Wednesday of the same week. It seems to be a matter of commonsense that, in order to assess the effectiveness of a live firing exercise, one would need to keep the score of hits on targets. Otherwise, the exercise would seem to be futile. Further, if there were butts across the range at varying distances from the firing mound as described by Mr Cowell, it makes no sense to walk over the firing mounds and over those butts' which, even on Mr Cowell's evidence, would involve climbing over mounds some three to four metres in height. When this was put to him, he changed his story and said that he had walked up the side of the range. If the range was constructed in the way that Mr Cowell said it was, then the logical way to approach the final butts' at the end of the range would to be to use the road which clearly runs along the side of the range, down to the butts' area. In fact, given that the distance to the flag was at least 300 metres, it would be surprising if a vehicle was not dispatched to collect the flag.
Finally, given the number of witnesses who allegedly were present when the incident took place, it seems unlikely that the officer commanding would have ignored a written report about such an incident. However, other than what Mr Cowell said, there is no evidence of any such report having been made.
It is clear that, on balance, the evidence does not support Mr Cowell's account of the incident and, in fact, it supports the view that Mr Cowell has probably never been involved in a live firing exercise on the Bonegilla open rifle range.

CONCLUSIONS

For Mr Cowell to succeed in his claim the evidence must disclose that there is in force a SoP which upholds his contention that his alcohol dependence or alcohol abuse is, on the balance of probabilities, connected with his defence service. In order to establish that his alcohol dependence or alcohol abuse was so connected, Mr Cowell claims that he suffered a severe stressor within one year immediately before the clinical onset of the alcohol dependence or alcohol abuse. Mr Cowell said that the severe stressor which he experienced involved the threat of death or serious injury, which arose out of an incident on the Bonegilla open rifle range. However, as I have found that the incident described by Mr Cowell did not take place, it follows that Mr Cowell did not experience a severe stressor as claimed by him and there is no connection between Mr Cowell's alcohol dependence or alcohol abuse and his defence service.
For the reasons I have set out above, the Tribunal affirms the decision under review.

I certify that the fifty‑one [51] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr E, Fice, Member

(sgd) Catherine Thomas
Clerk

Dates of Hearing: 2 April 2004
29 April 2004

Date of Decision:               28 June 2004
Solicitor for the applicant:     Mr D. Opie, Opie & Co
Solicitor for respondent:      Ms J. McCulloch, Advocacy Section,
  Department of Veterans’ Affairs