In the matter of an appeal against conviction from restricted Court Martial of 312924 Corporal Steven Paul McInnes

[1987] ADFDAT 2

C A T C H W O R D S

Appeal - Offence of assaul t ing a superior officer - elements thereof -

s ta tu tory defence tha t the accused nei ther knew, nor could reasonably be

expected t o have known tha t the victim was a superior o f f i c e r - onus of

proof of defence - standard of proof

Criminal Law - onus of proof of s ta tu tory defence contained i n provision

creat ing the offence - standard of proof

Defence Force Discipline A c t 1982, ss.25 and 12

R v Reynhoudt (1962) 107 CLR 381

In R e M (smmwised i n J u s t i t i a In Armis Vo1.4	No.	1, p.78)
H e Kaw Teh v The Queen (1985) 157 CLR 523
Sherras V De Rutzen [l8951 1 QB 918

I N THE MATTER OF The Defence Force Discipline Appeal A c t 1955

AND I N THE MAlTER OF An appeal against conviction from Restricted Court-

Martial of 312924 Corporal Steven Paul McInnes

No. DFQAT 2 of 1987

Adelaide, 27 August 1987

Before:	The Hon FX Connor, President The Hon Mr Jus t ice Gallop	)	Members
H i s Honour Judge Broad	)

I N THE DEFENCE FORCE	)
) No. DFDAT 2 of 1 9 8 7

DISCIPLINE APPEAL TRIBUNAL j

I N THE MATTER OF:

THE DEFENCE FORCE DISCIPLINE

APPEAL ACT, 1 9 5 5

AND I N THE MATTER OF:

AN APPEAL AGAINST CONVICTION EKM

RESTRICTED COURT MARTIAL OF

3 1 2 9 2 4 CORPORAL STEVEN PAUL McINNES

A d e l a i d e 27 A u g u s t 1987

Be£ ore

T h e Hon FX C o n n o r , P r e s i d e n t

T h e Hon M r Justice G a l l o p	)
1 Members

H i s H o n o u r Judge B r o a d 1

This is an appeal against a conviction of the appellant at a Restricted

Court-Martial held a t Bandiana Barracks on Friday, 27 March 1987. The

appellant w a s found gu i l ty of assaulting h i s superior of f icer contrary

to s .25(1) of the Cefence Force Discipline A c t 1982 ( the Act). The only

grounds of appeal argued on the hearing were that the Judge Advocate erred

i n h i s d i rec t ions t o the Court that i n order to establ ish the offence the

prosecution had t o prove tha t the accused assaulted the victim and that

at the time of the assaul t the victim was a superior o f f i ce r of the accused;

and fur ther , t h a t t he Judge Advocate erred i n direct ing the C ~ u r t hat

the accused bore the onus of satisfying the Court on the balance of

probabi l i t ies t h a t he d id not know and could not reasonably be expected

to have known t h a t t he person assaulted was i n fac t h i s superior off icer .

Section 25 of the A c t is contained i n " P a r t I I I - Offences" and "Division

3 - Offences r e l a t i n g t o Insubordination and Violence" and is i n the

following terms:

25.    (1) A defence member who assaults a superior off icer is

g u i l t y of an offence f o r which the max inun punishment is

imprisonment f o r 2 years.

( 2 ) It is a defence if a person charged with an offence under

t h i s sect ion nei ther knew, nor could reasonably be e w c t e d

t o have known, that the person against whcm the offence

is alleged t o have been connitted was a superior officer.

It is necessary t o r e f e r t o those parts of the sunning up t o which the

grounds of appeal relate. A t the c m n c e m e n t of h i s smming up the Judge

Advocate dea l t with the onus upon the prosecution t o establ ish its case

beyond reasonable doubt. H e then said:

The accused is not obliged t o prove anything except i n certain unusual

s i tua t ions one of which arises here ... I w i l l r e f e r t o that la ter .

In dealing with t h e elements of the offence aga ins ts25(1) of the Act the

Judge Advocate dGected the Court that they had t o be sa t i s f ied beyond

-

reasonable doubt that the appellant had assaulted the person and that the

person was a superior o f f i c e r of the appellant. H e d id not include as an

element of the offence tha t the appellant knew o r could reasonably be

expected t o have known that the person assaulted was a superior of f icer .

H e said:

Now the section which creates the offence t o t h i s pa r t i cu la r charge

a l so creates a defence and i n the second pa r t of the sect ion i t says

that the accused who is charged with the offence has a defence i f

he neither knew nor could reasonably be expected t o have known tha t

the person against whcm the offence is alleged to have been ccmnitted

was a superior of f icer .

And a l i t t le l a t e r , he said:

N o m l l y i t i s f o r the prosecution t o prove its case beyond reasonable

doubt but where the accused relies, as he does here, on a defence

that he nei ther knew nor could reasonably be expected t o have known

that the person he assaulted was h i s superior o f f i ce r , then the onus

s h i f t s and the accused must prove tha t defence. But i t is very

irqmrtant to understand tha t i n proving tha t defence he does not have

t o reach the standard, the very high standard that the prosecution

has t o reach.

The prosecution must prove those elements beyond reasonable doubt.

The accused only has t o prove t h i s pa r t i cu la r defence on the balance

of probabili t ies.

He then went on t o explain proof on the balance of probabi l i t ies .

A t the end of h i s s w i n g up the Judge Advocate invi ted the prosecutor

and the defending o f f i c e r t o address him i n re la t ion t o any fur ther

directions to the Court. No fur ther d i rec t ions w e r e sought. On the hearing

of t h i s appeal, counsel f o r the respondent intimated tha t no reliance w a s

placed on any f a i lu re by o r on behalf	of	the accused t o seek fur ther
directions.

It was submitted on behalf of the appellant tha t the above direct ions w e r e

wrong i n l a w and that the Judge Advocate should have defined the e l m n t s

of the offence charged t o comprise an a s sau l t , that the victim was a

superior of f icer and an awareness on the pa r t of the accused that the

person assaulted was of superior rank. Counsel for the appellant relied

upon the fact that under s.8 of the Anny Act 1955 (UK) and reg. 203(l)(xiii)

of the Australian Military Regulations, which create comparable offences

of striking a superior officer and which are no longer applicable, there

was included an element of knowledge on the part of the accused person

that the person assaulted was a superior officer.

In R v Reynhoudt (1962) 107 CLR 381 it was held by a majority of the High Court (Taylor, Menzies and Owen JJ, Dixon CJ and Kitto J dissenting) that on a charge of assaulting a police officer in the execution of his duty

contrary to s.40 of the Crimes Act 1958 (Vic) it is sufficient to prove

intent in relation to the assault only; it is not necessary to show intent

in relation to the other elements of the offence, namely that the person

assaulted was a policemm and that he was acting in the execution of his

duty.

After this decision the Director of Army Legal Services sought an opinion fmm the Judge Advocate General of the Australian Military Forces about

Army Act 1955 (UK). The Judge Advocate General's ruling (which, pursuant to reg.575(10) of the Australian Military Regulations, bound all members of the Australian Military Forces) was to the effect that no amendment to the Manual was necessary and that the decision in R v Reynhoudt should not be applied to offences of striking

the desirability of an amendment to the relevant part of the Manual of offence created by s.8 of the

a superior officer and similar charges. Accordingly, since the Judge

Advocate General gave his ruling on 8 September 1965, the Army has continued

to include knowledge on the part of the accused of the superior rank of

the person assaulted as an elmnt of the offence of striking a superior

officer and similar offences. Consistently with that ruling, a conviction

by District Court-Martial on 1 November 1982 was quashed on the ground

of failure to give a direction in clear terms about the necessity to prove

knowledge on the part of the accused that the person against whom he had

been convicted of using violence was his superior officer (In Re M, by Court-Martial for an offence of striking a superior officer that the

swmnrised in Justitia In Armis Vo1.4 No.1, p.78).

It appears, however, that the Royal Australian Navy took a different view.

In an advice dated 26 July 1978 the Judge Advocate General of the Royal

accused's state of knowledge did not have to be proved by the prosecution

as one of the ingredients of the offence. The Judge Advocate General of

the Navy referred to R v Reynhoudt, supra, and, unable to distinguish that

decision, advised that it was not necessary for the prosecution to prove

knowledge on the part of the accused that the person assaulted was a

superior officer.

Counsel for the appellant submitted that there were three ingredients of a the offence of assaulting a superior officer, an assault, a victim superior in rank to the accused and knowledge of the accused that the victim was

his superior officer. On this footing, he submitted that s.25(2) was mere

surplusage and could not, without the plainest of words, purport to

transform a necessary ingredient of the offence, which had to be proved

by the prosecution beyond reasonable doubt, into a defence which had to

be proved by the accused on the balance of probabilities. He relied also

was two years whereas the maximum penalty for assault was six months.	on the fact that the maximum penalty for an offence under s.25 of the Act increased term of inprisomnt by reason of the addition of an-element
in respect of which he did not have a guilty mind.

As we have already indicated, i t is by no means c lear that knowledge on

the pa r t of the accused of the superior rank of the victim was an ingredient

of the offence.

In construing s.25 and its inter-relation with s.12 of the A c t i t is

important t o observe that s .12 appears i n "Part I1 - Criminal Liabi l i ty"

of the A c t . Section 10, which is also i n Part 11, is headed "Comn Law

t o Apply i n Relation t o Service Offences" and s ta tes :

Subject t o t h i s Part , the principles of the c m n l a w with respect

t o criminal l i a b i l i t y apply i n relation t o service offences ...

By tha t provision the legis lature is giving a c lear indication that the

pr inciples of the c m n law with respect t o criminal l i a b i l i t y a re

preserved i n re la t ion t o service offences only t o the extent that they

are not supplanted by specif ic provisions of Part I1 of the A c t .

In H e Kaw Teh v The Queen (1985) 157 CLR 523 each member of the High Court

took the relevant principle t o be stated i n Sherras v EE	Rutzen [l8951
1 QB 918, at p.921:

There i s a presumption that mens rea, an e v i l intention, o r a knowledge of the wrongfulness of the ac t , is an essent ial ingredient i n every

offence; but that presumption is l i ab le to be displaced e i the r by

the words of the s ta tu te creating the offence o r by the subject-matter

with which i t deals, and both must be considered.

In H e Kaw Teh the High Court held that, i n respect of the provisions of

the Customs A c t 1901 (Cth) there considered, the presumption that m n s

rea is required before a person can be held gui l ty of a grave criminal

offence had not been displaced. The question here is whether that

presumption has been displaced i n s.25 of the A c t .

Part of the l eg i s l a t ive context i n which s.25 appears has already been

referred to. Part I1 of the A c t is headed "Criminal Liability" and includes

ss.10-14. Section 10 has already been set out. Section 12 provides:

12. (1) Subject t o t h i s section, i n proceedings before a service

t r ibunal , the onus of proving that a person charged has

comnitted a service offence i s on the prosecution and the

standard of proof i s proof beyond reasonable doubt.

( 2 )	In proceedings before a service tribunal, the onus of proving
a defence is on the person charged and the standard of proof
is proof on the balance of probabi l i t ies .
( 3 )	I n t h i s section, " defence means -
(d) where the service offence charged is an offence

against t h i s A c t (o ther than sub-section 61(1)) o r

the regulations - a defence set out i n the provision

crea t ing the offence; ...

Part 111 follows. It is headed "Offences". It contains ss.15-65. Twenty

four of these sect ions contain a sub-section which provides f o r a defence

t o the offence created by the section. These defences f a l l i n to two main

categories. The f i r s t main category provides a defence where the person

charged with an offence under the sect ion had a reasonable excuse for

engaging i n the behaviour t o which the charge relates - see ss.15. 16.

17, 23, 28, 32, 40, 43, 48, 50 and 54A. The second main categoryprovides

a defence where the accused lacked knowledge i n respect of some aspect

of the conduct charged i n the offence - see ss.25, 26, 27, 29, 31, 41,

49 and 58. Section 45 provides f o r a defence i n each category. Sections

24, 44, 46 and 47 provide f o r defences which do not f a l l i n t o e i t h e r of

the main categories.

In our view t h i s l e g i s l a t i v e pat tern i n re la t ion t o the onus and standard

of proof makes i t clear that:

( a )

i n a l l service offences the onus of proving tha t an accused of proof is beyond reasonable doubt and

( b ) i n many service offences the section which creates the offence a l s o creates a defence; and the onus of proving tha t defence

is on the accused; and the standard of proof is on the balance

of probabi l i t ies .

Whatever m y have been the ingredients of a service offence before the

Defence Force Discipline A c t 1982 c m n c e d , we think i t c l ea r tha t , i n

those cases where the defence i s now s e t out i n the section which creates

the offence, it can no longer be said tha t the subject-mtter of the defence

i s an ingredient of the offence.

It was suggested f a in t ly by counsel fo r the appellant that , because the

defence was set out i n a sub-section of the section creating the offence,

it was not "set out i n the provision creating the offence" within the

meaning of those words i n s . l 2 ( 2 ) ( c ) . W e do not consider there is any

substance i n th i s submission.

W e think, therefore, tha t s . l 2 ( 2 ) ( c ) applies t o each defence set out i n

a sub-section of the section which creates the offence. Consequently

s . l 2 ( 2 ) ( c ) is applicable, i n t e r a l i a , t o s.25(2). It is therefore

appropriate t o give s . l 2 ( 2 ) ( c ) and s.25(2) a combined effect . By combining

the e f f e c t of both provisions, the r e su l t reached is that i t is a defence i f a person charged with an offence under s.25(1) neither knew, nor could reasonably have been expected t o have known, that the person against whom the offence is alleged t o have been comnitted was a superior of f icer ,

that the onus of proving the defence is on the person charged and that

the standard of proof i s proof on the balance of probabili t ies. W e think

i t abundantly clear , i n the l igh t of these provisions, that the words of

the s t a t u t e creating the offence and the defence have displaced the

presmiption that knowledge of thepersoncharged that the person against

whan the offence is alleged t o have been comnitted was a superior o f f i ce r

is an essent ia l ingredient of the offence.

For these reasons we do not think therewas any er ror on the par t of the

Judge Advocate i n h i s smrming up. W e therefore dismiss the appeal.

President

Member

Member