Hembury v Chief of General Staff

[1997] HCATrans 335

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M36 of 1997

B e t w e e n -

WAYNE RONALD HEMBURY

Applicant

and

CHIEF OF THE GENERAL STAFF

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 NOVEMBER 1997, AT 10.07 AM

Copyright in the High Court of Australia

MR P.A. WILLEE, QC:   May it please the Court, I appear for the applicant.  (instructed by Bullards, Solicitors)

MR R.R.S. TRACEY, QC:   If the Court pleases, I appear with my learned friend, MR F.B. HEALY, for the respondent.  (instructed by the Australian Government Solicitor)

GAUDRON J:   The Court feels that it would be advantaged by hearing from the respondent in this matter.

MR WILLEE:   May it please the Court.

MR TRACEY:   If the Court pleases, the respondent had not proposed to address the Court unless there was oral argument advanced on behalf of the applicant but can I summarise the submissions as we would make them in this way?  There are two points that it is sought to agitate on appeal.  The first involves the construction of the provisions of the Defence Force Discipline Appeal legislation.

GAUDRON J:   Is that a matter that is in issue?

MR TRACEY:   Yes, as we understand it.  There are two points in issue.  The question is whether the substantial miscarriage of justice operates as a proviso or as an additional requirement which the applicant must satisfy in order to obtain success on an appeal to the tribunal under section 23(1)(c).  The second point, as we understand it, is whether or not, in the present case, there was an error when it was determined by the majority of the Full Court of the Federal Court that no substantial miscarriage of justice had occurred in the circumstances of this case.

The only basis upon which it is suggested that such an error occurred was a misdirection by the Judge Advocate when he told the court that they should vote in order of seniority without indicating that they should do so commencing with the junior member of the court and then proceeding ‑ ‑ ‑

GAUDRON J:   You accept that that was an error, do you?

MR TRACEY:   Yes.  We submit that it is an error or we accept that it is an error.  It was ambiguous.  Seniority did not necessarily mean from the most senior to the most junior but that was held against us and we do not deal with that. 

McHUGH J:   When you say “error”, you mean you accept there was a material irregularity?

MR TRACEY:   Yes, your Honour, the first limb of 23(1)(c) was satisfied.  The only issue therefore that remains is whether the Full Court was in error when, by a majority, it held that in the circumstances no substantial miscarriage of justice has occurred.  Our point in relation to that is that the Full Court directed itself consistently with principle.

GUMMOW J:   I do not know about that.  They are talking about miscarriage of justice in a judicial power sense.  There is no judicial power here.

McHUGH J:   This is non-Chapter III.

GAUDRON J:   And it does seem to be an irregularity of some significance in the context of a tribunal composed of three persons.

MR TRACEY:   It may well be an irregularity of some significance but our contention, your Honour, is that it has to be more than that before there is reviewable error.

GAUDRON J:   Why?

MR TRACEY:   Because it must also involve a substantial miscarriage of justice.

GAUDRON J:   What do you mean by that?

MR TRACEY:   Precisely what the judicial discourse on the point has been over many years, namely that there has to be some proper basis for establishing that the accused has been deprived of a real chance of acquittal.

GAUDRON J:   Or that there has been a fundamental failure in the process.  Why is this not a fundamental failure in a context in which it is non‑judicial, without the safeguards that necessarily attach when there is an exercise of judicial power, and a tribunal of three?

MR TRACEY:   Your Honour, our submission in that regard is this, that 23(1)(c) clearly comprehends that there can be material error without a substantial miscarriage of justice.

McHUGH J:   I know, but in our jurisprudence, we have always drawn a distinction between a misdirection or error of law which may or may not be a miscarriage of justice, and an error which goes to the route of the proceedings in which we have always held that you do not reach the question of weighing up whether or not a jury may have acquitted or not because there has not been a trial according to law and, therefore, there has been a substantial miscarriage of justice.  That is what is put by the presiding Justice in this case.

MR TRACEY:   Your Honour, that sort of decision has usually arisen from the State Acts which provide for the substantial miscarriage of justice to arise as a proviso.  Here, it is a requirement that must be established by the accused.

McHUGH J:   Yes, I know but, on the other hand, regulation 33 is arguably a matter that goes to the very route of the proceedings, as essential as trial by jury in an indictable offence.  Judges of the Privy Council give their judgments or they vote in order of juniority.  Now, if you have Law Lords expected to vote in order of juniority, for the sort of reasons that lie behind regulation 33, does that not indicate that in many situations it is regarded as quite fundamental to the proceedings?

MR TRACEY:   Yes, we accept that, but it has to be viewed in the circumstances of this trial and in the circumstances of this trial the court has found that the members of the court plainly considered what they were doing with great care.  They considered their verdict for something in the order of an hour and three-quarters.  There was no objection to the Judge Advocate’s direction in this regard by counsel appearing on the applicant’s behalf, so he plainly did not comprehend that there had been a radical departure from normal standards of justice in the terms in which the direction had been given.  In those circumstances, the majority of the Full Court took the view that it could not be said that a substantial miscarriage of justice had occurred.  In our respectful submission, that was an approach that was open to them, consistent with authority.

GAUDRON J:   Mr Tracey, I am not entirely familiar with the proceedings of these tribunals.  I know others who have been members of the legal profession have had some passing acquaintance with them.  When you say his representative, who precisely - what precisely was his representative?

MR TRACEY:   He was represented by a reserve officer from the Army Legal Corps who is a full-time practising barrister and who normally practices in the criminal jurisdiction.

McHUGH J:   The point I made about the Privy Council is referred to in their judgments as well.

MR TRACEY:   Yes.  Your Honour, we accept that there is good reason, historical and it is perhaps preserved, why, in a situation where you have a tribunal that is made up by officers of different ranks, that the junior officer should speak first but, your Honour, it has to be understood, in a context where this tribunal had been reserved, considering its position for an hour and three-quarters, plainly they discussed the issues.  It would be remarkable if, in that discussion, the view of the senior member in relation to these matters had not emerged before the vote was taken.

McHUGH J:   That is so but it does not seem to me, really, to touch the matter.  It is one thing for the Lieutenant Colonel to be putting his views; it is another matter altogether that when you then come to vote the junior officer is then faced with the Lieutenant Colonel having voted “guilty”.  The two junior officers are then in a position that they may well be influenced, consciously or unconsciously, to vote in accordance with the way their senior has, whereas, notwithstanding that the President has put his or her view forcefully, the junior officer who has the first vote says, “Well, I didn’t say ‘not guilty’”.  It seems to me this is arguably a fundamental rule in court martials sufficient to attract the grant of special leave at this stage anyway.

MR TRACEY:   Your Honour, we would only seek to persuade your Honour to the contrary by one additional submission and it is that if that is the perception, then one would have thought that there would have been, given the time that was available for reflection by counsel then appearing, an objection taken and a request for a redirection of the court by the ‑ ‑ ‑

McHUGH J:   Yes.  I suspect counsel did not perceive the effect of what was said.  It is now accepted that that was the case, that there was a misdirection, but having regard to the charge as a whole, it may well be that counsel at the trial did not have that impression from what was said orally.

GUMMOW J:   Mr Tracey, the Federal Court’s jurisdiction was engaged by section 52 of the Defence Force Discipline Appeals Act, was it?

MR TRACEY:   Yes, your Honour.

GUMMOW J:   What does that say about parties?  In other words, is the Chief of General Staff the relevant respondent?

MR TRACEY:   I think the answer to your Honour’s ‑ ‑ ‑

GUMMOW J:   I take it that means the tribunal itself does not become a party in any way at all.

MR TRACEY:   No, your Honour.  Your Honour, what 52 provides is that an appellant or a Chief of Staff may appeal and it is presumably implicit in that that if one appeals, the other is a proper respondent.

GUMMOW J:   That is the footing for it, is it?

MR TRACEY:   I suppose so, your Honour, yes.  It simply was not an issue that was considered - - -

GUMMOW J:   That does not surprise me.  I just want to know the answer.  So, the orders that would be sought here would lead to the quashing of the convictions.  That is what you say the Full Court should have done?  Could they do that on just these questions of law?

MR TRACEY:   We certainly do not say they should have done that, your Honour, but no doubt our friends would have sought to have the conviction quashed and that would have led, presumably, to an order for a retrial.

GUMMOW J:   But the Federal Court, in its original jurisdiction, quashes these so-called convictions, does it, in what is an administrative appeal?

MR TRACEY:   It could have done that or it could have remitted the matter to the Defence Force Discipline Appeals Tribunal to be dealt with according to law.

GUMMOW J:   That is what I would have thought.  That is what, as you understand it, your opponent should be seeking here?

MR TRACEY:   Yes.  If the Court pleases.

GAUDRON J:   Yes, there will be a grant of special leave in this matter.  But, Mr Willee, do not take too much heart in this respect, it will be necessary for you to get your notice of appeal in order, particularly setting out the orders that you say should be made if the appeal is successful.

MR WILLEE:   May it please the Court.

AT 10.20 AM THE MATTER WAS CONCLUDED