Jones v Chief of Navy
[2012] ADFDAT 2
•22 May 2012
DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Jones v Chief of Navy [2012] ADFDAT 2
Citation: Jones v Chief of Navy [2012] ADFDAT 2 Appeal from: General Court Martial Parties: JOHN ALAN JONES v CHIEF OF NAVY File number: DFDAT 3 OF 2011 Judges: TRACEY J – PRESIDENT, WHITE JA – DEPUTY PRESIDENT & MILDREN J - MEMBER Date of judgment: 22 May 2012 Catchwords: DEFENCE AND WAR – charges of indecency – seven counts of indecency found by General Court Martial –appeal – grounds – prosecutor’s final address at trial prejudicial – direction made by Judge Advocate to jury – any prejudice to appellant negatived – grounds not made out – ruling made by Judge Advocate on objections to charge sheet – provision relied upon said to be unavailable - duplicity alleged – grounds not made out – provision of Crimes Act on consent said not to apply – ground not made out – Judge Advocate said to have erred in pre-trial ruling on the defence’s objection to a member of the panel – application was refused – said to be reasonable grounds for inferring ostensible bias – resulting in wrongful convictions and substantial miscarriage of justice and/or material irregularity – ground not made out – fraudulent misrepresentation of fact said to have occurred – error alleged in Judge Advocate’s directions to panel on whether or not complainant’s consent negatived – ground not made out – convictions said to be inconsistent with acquittals – found – open to panel to conclude to requisite standard that appellant guilty – ground rejected – conviction under Charge 22 said to be unreasonable and/or could not be supported by evidence – ground upheld – Charge 22 quashed – Charge 23 laid as alternative to Charge 22 – evidence supports this charge – conviction recorded and appellant sentenced to severe reprimand – recorded telephone conversation between complainant and appellant said to be inadmissible – Judge Advocate ruled that desirability of admitting evidence outweighed undesirability of admitting it – no error in exercise of discretion – ground not made out – admission of recording of police interview with appellant – part of interview referring to covert recording – admission of this part of interview said to be erroneous – no error found – ground not made out – appellant said offences subject of convictions were indictable offences – entitled to trial by jury – ground dismissed – Tribunal bound by authority requiring rejection of ground Legislation: Crimes Act 1900 (ACT) ss 26, 60, 67, 96
Crimes Act 1900 (NSW) s 78
Criminal Code Act 1913 (WA) s 319
Constitution s 80
Defence Force Discipline Act 1982 (Cth) ss 23, 33, 34, 61, 125, 141
Evidence Act 1995 (Cth) ss 55, 56, 60, 68, 136, 138
Surveillance Devices Act 1998 (WA) s 5
International Covenant on Civil and Political RightsCases cited: Azzopardi v The Queen (2001) 205 CLR 50 cited
Bridge v The Queen (1964) 118 CLR 600 cited
Crofts v The Queen (1996) 186 CLR 427 cited
Crowe v Graham (1968) 121 CLR 375 cited
Darkan v The Queen (2006) 227 CLR 373
Director of Public Prosecutions v Merriman [1973] AC 584 cited
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 cited
Haskett v Police [2005] SASC 174 cited
Hoffman v Chief of Army (2004) 137 FCR 520 referred to, considered, compared
House v The King (1936) 55 CLR 499 cited
Johnson v Miller (1937) 59 CLR 467 cited
Jones v The Queen (1997) 191 CLR 439 discussed
Libke v The Queen (2007) 230 CLR 559 cited, explained
MacKenzie v The Queen (1996) 190 CLR 348 cited, discussed
M v The Queen (1994) 181 CLR 487 cited
Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 cited
MacKenzie v The Queen (1996) 190 CLR 348 cited, explained
MFA v The Queen (2002) 213 CLR 606 cited
Michael v The State of Western Australia (2008) 183 A Crim R 348 cited
Michael Wilson & Partners v Nicholls (2011) ALJR 14 cited, applied
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 cited
Mraz v The Queen (1955) 93 CLR 493 referred to
Nicholas v The Queen (1998) 193 CLR 173 cited
Papadimitropoulos v The Queen (1957) 98 CLR 249 cited, explained
R v Goodwin [2009] ACTSC 111 cited
R v KET [1998] VSCA 73 cited
R v Kirkman (1987) 44 SASR 591 cited
R v M [1991] 1 Qd R 60 cited
R v Markuleski (2001) 52 NSWLR 81 cited
R v Poulier (2007) 19 NTLR 91 cited
R v SBL [2009] QCA 130 cited
R v Stanley [1964] 2 KB 327 cited
R v Walsh (2002) 131 A Crim R 299 cited
R v Wheatley [2012] QCA 55 compared
R v Winchester [2011] QCA 374 cited
Re Nolan; Ex parte Young (1991) 172 CLR 460 referred to
Re Tracey; Ex parte Ryan (1989) 166 CLR 518 cited
Re Tyler; Ex parte Foley (1994) 181 CLR 18 referred to
Saraswati v The Queen (1991) 172 CLR 1 cited, explained, compared
Sims v Drewson (2008) 188 A Crim R 445 cited
SKA v The Queen (2011) 243 CLR 400 cited
Stanton v R (2003) 198 ALR 41 compared
Walsh v Tattersall (1996) 188 CLR 77 cited
Webb v The Queen (1994) 181 CLR 41 cited
Weiss v The Queen (2005) 224 CLR 300 cited, explained
White v Director of Military Prosecutions [2006] HCA Trans 566 cited
Whitehorn v The Queen (1983) 152 CLR 657 cited, explained
Wilde v The Queen (1988) 164 CLR 365 citedHoward’s Criminal Law (5th ed)
Shorter Oxford DictionaryDate of hearing: 15-16 March 2012 Place: Melbourne (heard in Sydney) Category: Catchwords Number of paragraphs: 272 Counsel for the Appellant: Mr A Street SC and Mr A Abadee Solicitor for the Appellant: Jason Li Lawyers Counsel for the Respondent: BRIG L McDade and CMDR D Mullins Solicitor for the Respondent: Director of Military Prosecutions
DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
ON APPEAL FROM GENERAL COURT MARTIAL
DFDAT 3 OF 2011
BETWEEN: JOHN ALAN JONES AND: CHIEF OF NAVY
JUDGES:
TRACEY J – PRESIDENT, WHITE JA – DEPUTY PRESIDENT & MILDREN J - MEMBER
DATE OF ORDER:
22 MAY 2012
WHERE MADE:
MELBOURNE (HEARD IN SYDNEY)
THE TRIBUNAL ORDERS THAT:
1.Leave be granted to the appellant to appeal on the grounds appearing in his amended notice of appeal dated 21 February 2012.
2.The appeal be allowed in part.
3.The appellant’s conviction on Count 22 be quashed.
4.The appellant be found guilty as charged on Count 23 and that he be severely reprimanded.
5.The appeal otherwise be dismissed.
DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
ON APPEAL FROM GENERAL COURT MARTIAL
DFDAT 3 OF 2011
BETWEEN: JOHN ALAN JONES AND: CHIEF OF NAVY
JUDGES:
TRACEY J – PRESIDENT, WHITE JA – DEPUTY PRESIDENT & MILDREN J – MEMBER
DATE OF ORDER:
22 MAY 2012
WHERE MADE:
MELBOURNE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
The appellant, a Lieutenant Commander in the Royal Australian Navy, aged 57 years, was charged with nine counts of having committed an act of indecency without consent on the complainant, aged 25 years, pursuant to s 61 of the Defence Force Discipline Act 1982 (Cth) (“the DFDA”) and s 60 of the Crimes Act 1900 (ACT) (“the Crimes Act”). There were five alternative counts of assaulting a subordinate pursuant to s 34(1) of the DFDA and nine alternative counts of prejudicial conduct. Those charges related to nine incidents.
The appellant pleaded not guilty to those charges when arraigned on 29 November 2011. He pleaded guilty to a charge of attempting to destroy service property, namely a laptop computer (Charge 24). That charge was relevant to the other charges because the laptop contained pornographic images involving spanking which had some coincidence with the impugned conduct.
On 13 December 2011, after an 11 day trial, the General Court Martial (“the GCM”) found the appellant guilty of seven counts of acts of indecency. The alternative charges relating to these counts were not, therefore, the subject of verdicts. The appellant was found not guilty of two counts of acts of indecency (Charges 15 and 18), the alternative count of assaulting a subordinate (Charge 16) and prejudicial conduct (Charges 17 and 19). The GCM imposed the punishments of reduction in the rank to Lieutenant with seniority in that rank to date from 14 December 2011; dismissal from the Australian Defence Force; imprisonment for concurrent terms of 12 and 18 months in respect of certain of the charges; and a fine of $2,000 with respect to Charge 24 – the attempt to destroy the service computer. In sentencing the appellant to imprisonment the GCM panel stated:
“The Court has determined that no other sentence is appropriate because of a gross abuse of authority and position – deleterious effect on the victim, recognition of Australian Defence Force and community standards and high moral culpability of the convicted.”
SUMMARY
The incidents that gave rise to the charges occurred on board HMAS SIRIUS and at the complainant’s private residence in Western Australia extending over the period from February 2010 to November 2010.
The complainant was an AB Steward on HMAS SIRIUS during the relevant period. The appellant was the supply officer on board during the period of the charges until October 2010. The complainant worked in the supply department of the ship. The appellant was the head of that department which comprised some 13 personnel.
The appellant took a close interest in the complainant’s career and her personal life and offered her advice on occasions in the privacy of his cabin. In about February 2010 the first charged incident occurred – the conduct was admitted by the appellant but he denied that it occurred without consent; similarly with the third charged incident and the ninth. The prosecution case was that there was no consent to the charged conduct, or if there was it was obtained by the abuse by the appellant of his position of authority over the complainant or he was reckless as to whether or not she consented.
The charged conduct consisted for some of the incidents in the appellant directing the complainant to pull down her pants, lie across his knees while he spanked her on her bare bottom after he had directed her to say that she had been “naughty” and deserved to be spanked. On other occasions he allegedly directed her to take off her top or remove her outer garments. Where the incidents involved no touching they did not give rise to alternative charges of assault.
The complainant said that there were many other occasions of uncharged “smacking” conduct.
Towards the end of 2010 the complainant recorded on her iPhone a “pretext” conversation with the appellant when she was in a car with him. The prosecution played that recorded conversation over defence objection.
The appellant pleaded guilty to attempting to destroy a service laptop computer on which he had stored a large number of pornographic images related to spanking. The prosecution led this evidence as evidence corroborating the appellant’s sexual interest in such activity and to show that the impugned conduct was indecent and that the attempted destruction of the computer showed some consciousness of guilt.
A number of days were taken up with objections to evidence. Vigorous objection to the reception of certain parts of the complainant’s and other witnesses’ evidence occurred throughout the trial.
The appellant did not give evidence. He did call character evidence to the effect that he was not a person who would require a female subordinate to engage in any kind of sexual activity without consent.
The thrust of the defence questioning was that the complainant consented to the “discipline” which was admitted by the appellant because he could “do” things for her in the Navy and beyond and she used him for her own ends.
Part of the appellant’s medical file was admitted into evidence for a limited purpose relating to Charge 9.
THE APPEAL
The appellant filed a notice of appeal in this Tribunal in which he relied on a number of grounds. At the hearing of the appeal he sought leave to file a further amended notice of appeal which contained amended and additional grounds – 12 grounds in all. The further amended notice of appeal had been served on the Director of Military Prosecutions (“the DMP”) and she was in a position to and did address argument on the grounds appearing in the further amended notice of appeal. We reserved our decision on the application and heard full argument on the grounds raised in the amended notice. We have determined that leave should be granted to the appellant to rely on the further amended notice of appeal.
GROUNDS 1 TO 3
These grounds are related. They each relate to certain statements, made by the prosecutor, in the course of his final address to the Court. The prosecutor referred to a number of female members of the Navy who had been involved in responding to the complainant’s allegations. He said:
“Again, this comes back to Don Walker a little bit. She, another one of what I’ll submit are the strong women in this case – this is the type of case that – of course, it’s been in the media and gives people the impression that the navy’s a misogynistic service where there’s no support for women. Mr President , ma’am, sirs, this man was undone by the strong women in the navy, who all displayed courage, integrity, loyalty, honour, honesty, in all their dealings, all of them, from Amanda Ferrell, who stood up to this man and said: ‘You should let her go’. Renee Cowling who said: ‘I will not write a fake job letter of this nature for this woman. I will not be a role player to tell her how to lie to the psychs’.
To Mel Clarke who did everything appropriately when she became aware of this. [Strong] Coxswain whom the supply officer didn’t get on well with and one might imagine why, to the lead investigator, Patrisha Chaplin. As much as, in my submission, the offences committed by this man bring the Navy into disrepute because of his conduct the New Generation Navy has, in my submission, stood up well because of the women in this case who did exhibit every aspect of Navy values.
And it is somewhat of an irony that that’s the way this man, in my submission, has been brought undone is by these strong women demonstrating that no, that is not the way the Navy operates. It is not a misogynistic place where women are powerless. Where women cannot get ahead where they are too afraid to stick up for themselves that there will be adverse consequences to them if they stick up for themselves.”
The defending officer did not immediately object to what the prosecutor had said. On the following day, however, the defending officer made what the Judge Advocate understood to be an application to dissolve the Court pursuant to s 125 of the DFDA on the ground that they were prejudicial to the accused.
The Judge Advocate accepted that the prosecutor’s comments were, in part, irrelevant but considered that their prejudicial effect could be overcome by an appropriate direction. She ruled that:
“I am of the view that the matters put by the prosecutor concerning the fact that the accused was undone by strong women in the Navy may have been inflammatory in the context of an accused who has come before this court denying all the conduct alleged against him. But in the context of the case where the defending officer has conceded that the relationship between the accused and the complainant was a relationship which should never have occurred and was antithetical to the values which naval officers, and even Defence members more generally, should adhere to, and in the circumstances where there has been an admission of at least two occasions of smacking the complainant, that such a concern does not arise.
… (a)lthough the comments made concerning the perception of a misogynistic navy are unfortunate and have introduced an irrelevancy and a potential to elicit sympathy for women in the Navy, I am of the opinion that this third panel can be properly directed at the appropriate time as to deciding the case only upon the evidence properly before it. The fact that the onus is on the prosecution to establish each element of the offence to a standard beyond reasonable doubt before they can find the accused guilty on any of the charges and not to decide this case on the basis of sympathy. I am also satisfied that the accused will continue to receive a fair trial.”
The Judge Advocate then invited the defending officer to identify the directions which she should give to overcome any risk of irrelevant matters intruding on the Court’s deliberations. The defending officer responded:
“I think much of it is, with respect, encapsulated in the reasons that you’ve just given. The substance is I think that it’s appropriate that they should be expressly referred to the passage that you’ve quoted. They should be expressly directed to ignore it and reject it as being irrelevant and they should be of course reminded, as you’ve indicated in your reasons, that they are to base their deliberations solely upon the evidence that is before them and nothing else and not to be influenced by extraneous considerations of sympathy or otherwise.”
In due course the Judge Advocate gave a direction along the lines contemplated in her ruling. She did not read out the offending remarks but she did draw the Court’s attention to the fact that the prosecutor had made a comment about the potentially misogynistic nature of the Navy and the media reports of that nature. She specifically directed that such comments were to be put out of the Court’s mind and reiterated an earlier direction that the Court was not to let sympathy sway its judgment in any way.
The appellant alleged that these remarks were inflammatory in content and tone and that they gave rise to a miscarriage of justice. He complained that the Judge Advocate had erred in law by failing to declare a mistrial and, instead, determining to give a remedial direction to the Court. He also complained that the directions given by the Judge Advocate were inadequate to avoid a miscarriage of justice.
When an application to dissolve a Court is made the Judge Advocate has a discretion which must be exercised in the interests of justice. Justice requires that the accused must receive a fair trial according to law.
Much has been said over the years by superior courts about the principles which govern the conduct of prosecutors in criminal trials: see, for example, Whitehorn v The Queen (1983) 152 CLR 657 at 663-4 (per Deane J); Libke v The Queen (2007) 230 CLR 559 at 576-87 (per Kirby, Callinan and Hayne JJ). In Libke Hayne J (with whom Heydon J agreed) quoted with approval from the reasons of Rand J in the Supreme Court of Canada, where His Lordship had observed that the role of the prosecutor “is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.” Hayne J went on to stress that the prosecution case must be presented with fairness to the accused.
One of the ways in which a prosecutor may depart from these standards will occur when an attempt is made to persuade a jury that they should approach a complainant’s predicament with sympathy and act to protect her and others like her in the community interest.
It does not, however, follow that all departures by the prosecutor from the appropriate standards warrant a discharge of the jury (or, in the context of a Court Martial, the dissolution of the Court). As Deane J said in Whitehorn (at 664):
“The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered.”
When an application is made to discharge a jury in a civil criminal trial the correct approach, identified by the High Court in Crofts v The Queen (1996) 186 CLR 427 at 440, is that:
“No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.”
The impugned remarks of the prosecutor were made as an aside in three paragraphs which formed part of a lengthy address. That address continued over some 37 pages of transcript. The prosecutor himself referred to his remarks as being a digression. He then returned to his summary of evidence. When he had completed his address the Judge Advocate asked the defending officer whether he would like a short adjournment. The defending officer said that he would, and a 20 minute adjournment followed. When the hearing resumed there were some short exchanges between the prosecutor and the Judge Advocate. The defending officer then commenced his address to the Court which continued for the rest of the day. He raised no objection, at that stage, to the prosecutor’s remarks. No application was then made.
Whilst the delay in making the application may have occurred for many possible reasons, it is at least suggestive that the defending officer did not, when he heard the comments, regard them as being particularly egregious.
In cases in which an accused is alleged to have taken sexual or other advantage of a minor prosecutors are “required to be particularly vigilant not to do anything which appeals to the prejudice or sympathy of the jury where such emotions are so easily aroused”: R v M [1991] 1 Qd R 60 at 82 (per Cooper J). Similar vigilance must be exercised by service tribunals where it is alleged that the accused has abused the trust of a subordinate or taken advantage of his or her position of authority to mistreat a subordinate.
The prosecutor’s comments were, in our opinion, unnecessary and unfortunate. They should not have been made. They were, however, made as an aside and were not made in a deliberate attempt to prejudice the Court against the appellant. They were not repeated or proffered as matters of particular significance. They received no implicit endorsement by the Judge Advocate in her address to the panel: cf R v Wheatley [2012] QCA 55 at [58]-[62] (per Muir JA, with whom Wilson AJA and Applegarth J agreed).
The Judge Advocate recognised the need to direct the Court that what had been said was irrelevant and was not to play any part in the Court’s deliberation. The panel was so directed. Her direction was apt to negative any prejudice to the appellant and to ensure that he was accorded a fair trial.
These grounds have not been established.
GROUND 4
This ground arises out of a pre-trial ruling made by the Judge Advocate. In that ruling she dealt with certain objections to the efficacy of the charge sheet which were raised by the defending officer. The objections fell into two broad categories: those which asserted that it was not open to the DMP to lay charges against the appellant under s 60 of the Crimes Act; and those which alleged that three of the charges were bad for duplicity.
The Availability of s 60 of the Crimes Act
Charges 1, 4, 6, 9, 12, 15, 18, 20 and 22 alleged that the appellant had committed acts of indecency on the complainant. The charges were laid under s 60 of the Crimes Act as picked up by s 61 of the DFDA. The defending officer submitted that it was not open to the DMP to prefer charges under s 60 of the Crimes Act because she had the option of laying charges against the appellant under s 33(c) of the DFDA. It was contended that, in these circumstances, the decisions of Saraswati v The Queen (1991) 172 CLR 1 and Hoffman v Chief of Army (2004) 137 FCR 520 precluded reliance on s 60 of the Crimes Act.
The Judge Advocate dismissed the appellant’s objection. She held that the offences created by ss 60 and 33(c) were “very different”. She pointed to the different elements which had to be established to make good charges under the two provisions. She found that the charges preferred under s 60 were “more serious” than those covered by s 33(c). She also noted that two of the charges (9 and 12) could not have been preferred under s 33(c) because the relevant conduct had occurred in private premises and not on service land.
Section 60(1) of the Crimes Act relevantly provided:
“60 Acts of indecency without consent
(1)A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years.”
Paragraphs (a) and (c) of s 33(c) of the DFDA provided:
“33A person who is a defence member or a defence civilian is guilty of an offence if the person is on service land, in a service ship, service aircraft or service vehicle or in a public place and the person:
(a) assaults another person;
(b) …(c)within the view or hearing of another person, engages in conduct that is obscene; or
(d)…
Maximum punishment: imprisonment for 6 months.”
By s 96(1) a person may not be charged with an offence under s 33 once a period of three years has expired following the time at which the offence is alleged to have been committed. By s 96(4) a charge against s 61(1) of the DFDA becomes time barred at the same time as the particular offence picked up by that sub-section would be barred in the Jervis Bay Territory.
It may first be noted that, while it is possible that the same act may constitute an offence under both s 60(1) of the Crimes Act and s 33(c) of the DFDA, the elements of the two offences are not the same. That which is indecent may not be obscene. “Indecent” is a milder term than “obscene”: see R v Stanley [1964] 2 KB 327 at 333. Thus “[o]bscenities are always indecent but all indecency is not obscene”: see Crowe v Graham (1968) 121 CLR 375 at 392 (per Windeyer J). An offence under s 33(c) can be committed if the conduct occurs within the hearing of another person but s 60(1) of the Crimes Act requires that the relevant act be performed on, or in the presence of, the victim.
In Saraswati the High Court was concerned with the impact of a time bar on the construction of a provision which established the offence of performing “an act of indecency”. The offence was created by the Crimes Act 1900 (NSW). That same Act also created the offences of indecent assault and having carnal knowledge. Section 78 of the Act required that prosecutions for these two offences had to be commenced within 12 months of the time of the alleged offence. No such limitation attached to the offence of performing “an act of indecency”. The majority of the Court (Toohey, Gaudron and McHugh JJ; Deane and Dawson JJ dissenting) held that the “act of indecency” offence was not to be construed as applying to conduct which constituted an indecent assault or carnal knowledge notwithstanding the fact that the ordinary meaning of the words “act of indecency” were apt to cover such conduct. Toohey and McHugh JJ reached this conclusion, in part, upon the application of the rule “that, when a statute specifically deals with a matter and makes it the subject of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation” (at 23). They treated the section which created the offence of committing an “act of indecency” as a general power which could not be used to circumvent the limitation which s 78 placed on the commencement of prosecutions for the two more serious offences. Gaudron J came to the same conclusion upon the application of a different principle. The offence of committing “an act of indecency” was inserted in the Act after the provisions which created the offences of indecent assault and having carnal knowledge of the victim and also after the inclusion of the limitation provision (s 78). Gaudron J held that it was “a basic rule of construction that, in the absence of express words, an earlier statutory provision (s 78) is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied.” (at 17). Were a restrictive construction not placed on the offence of committing an “act of indecency” there would be a derogation from the protection afforded by s 78.
In Hoffman the accused had been charged with assault on another service member. The charge was laid pursuant to s 61(1) of the DFDA, picking up s 26 of the Crimes Act. The elements of the offence created by s 26 were identical with those of s 33(a) of the DFDA. At the time the charge was laid the prosecution was prevented, by the s 96(1) time bar, from relying on s 33(a). No relevant time bar applied to a charge under s 26. The maximum penalties which attached to the two provisions differed. The maximum penalty which could be imposed under s 33(a) was six months imprisonment; the maximum for an offence under s 26 was two years imprisonment. A Full Court of the Federal Court (Black CJ, Wilcox, Lindgren and Gyles JJ, Beaumont J dissenting) held that the accused could not be proceeded against under s 26 of the Crimes Act when reliance could, but for the time bar, have been placed on s 33(a) of the DFDA.
The majority referred to Saraswati. It noted that Saraswati did not involve identical offences and that nothing said by the majority in that case was “contrary to the conclusion that there is inconsistency in this case because of the differing penalties.” (at 532). Their Honours referred to the principles on which Toohey and McHugh JJ and Gaudron J had acted in Saraswati and continued (at 532):
“In the present statute the existence of the time limitation in relation to s 33 is an indicator that the legislature would not have contemplated that the same offence in substance could be pursued outside the prescribed limitation period. This provides independent support for the conclusion that the s 61 charge was not open that would anyway be indicated by the existence of different maximum penalties for the same conduct.”
Their Honours considered that, having regard to the structure of the DFDA, s 33 was to be regarded as a particular provision and s 61 as a general provision. The general power could not be used to avoid the limitations placed by s 96 of the DFDA on the laying of charges against s 33(a).
The circumstances of the present case differ in important respects from those which obtained in Saraswati and Hoffman. The first distinguishing feature is that the limitation periods prescribed by s 96 of the DFDA did not prevent the DMP from laying charges under either s 33(c) or s 60 of the Crimes Act. The relevant events in the present matter occurred in 2010 and the charges were laid during the following year. There was, therefore, no basis for suggesting that the DMP was resorting to s 60 in an attempt to circumvent a limitation on her power to prefer charges under s 33 of the DFDA.
A second important difference has already been adverted to: the elements of the offences created by s 33(c) of the DFDA and s 60 of the Crimes Act are materially different. The latter offence is the more serious and this is reflected in the higher maximum penalty which attaches to it.
The DMP was not precluded from resorting to the more serious offence even if she could have chosen to lay one or more of the relevant charges under s 33(c). She was entitled to have regard to the gravity of the appellant’s conduct on each occasion. So much was recognised by the Full Court in Hoffman where Black CJ, Wilcox and Gyles JJ said (at 534) that:
“Acceptance of the appellant’s argument in this case does not mean that s 61 [of the DFDA] is not to be given full force and effect where it is applicable. Whilst, in circumstances such as the present, a charge cannot be preferred pursuant to s 61 with elements identical to those of a particular charge in the earlier divisions of Pt III, if the charge laid pursuant to s 61 is truly different from (particularly if more serious than) that which might be laid pursuant to a particular earlier provision, then the fact that the conduct could have been charged pursuant to the earlier provision would be no answer, in itself, to the different charge pursuant to s 61.” (Emphasis added).
There was no reason, in the circumstances of the present case, to restrict the options open to the DMP. The charges which she laid under s 60 of the Crimes Act required her to establish elements which were different from and more serious than those which she would have had to prove had she laid the charges under s 33(c).
Duplicity
The duplicity objection was taken in relation to the framing of charges 4, 6 and 9.
These charges read:
“4.Being a Defence member onboard HMAS SIRIUS during the ship’s transit from Fleet Base West to Sydney between 01 and 14 February 2010 committed an act of indecency upon AB … without her consent knowing she was not consenting or being reckless as to whether she was consenting by directing AB … to stand up and take her pants off, before he pulled her underpants down to her knees exposing her genitals.
…
6.Being a Defence member onboard HMAS SIRIUS while SIRIUS was alongside Fleet Base East between 26 and 28 February 2010 committed an act of indecency upon AB … without her consent knowing she was not consenting or being reckless as to whether she was consenting by telling her to pull down her pants and lie across his lap before pulling her underpants to her ankles, and smacking her bare buttocks several times with an open hand.
…
9.Being a Defence member at ….. in the State of Western Australia between 26 and 30 March 2010 committed an act of indecency upon AB … without her consent knowing she was not consenting or being reckless as to whether she was consenting by pulling her stockings and underpants down to expose her genitals and bare buttocks, directing her to lie across his lap, spreading her buttock cheeks exposing her anus and vagina and smacking her bare buttocks a number of times.”
The appellant submitted that, because multiple acts were relied on, it was not possible for him or the panel to be certain as to what particular conduct was being relied on in order to support the charge of performing an act of indecency. There was, therefore, it was submitted, a latent ambiguity which was, potentially, unfair to him.
The Judge Advocate rejected the appellant’s submissions. She ruled that “the acts referred to in each case are, in practical terms, all part of the same course of conduct, all preliminary to the alleged act of indecency and the alleged act of indecency itself.” She continued:
“There is no suggestion in this case that the accused does not know the detail of the allegations in each of the three charges. However the prosecution has made it clear that particularly in relation to charges 6 and 9, the allegation of indecency is the smacking of the complainant’s buttocks. This will no doubt be made clear to the court martial panel and be the subject of appropriate directions by me at the relevant time. In relation to charge 4, following the decision in Sims v Drewson there is no requirement for the prosecution to elect as between acts alleged.”
It has often been said that the rule against duplicity is easy to state but is often difficult to apply. The rule requires that only one offence should be charged in any charge on an indictment or charge sheet.
In analysing the terms of the charges which arise out of a course of conduct nice questions can arise as to whether there is a single charge arising from a series of acts which constitute a course of conduct, on the one hand, and whether two or more acts might give rise to individual offences. Such difficulty often attends theft cases where money or goods have been appropriated on multiple occasions or assault cases where a number of blows have been struck: see, for example, R v Poulier (2007) 19 NTLR 91; Haskett v Police [2005] SASC 174; Sims v Drewson (2008) 188 A Crim R 445.
In the latter case Besanko J said (at [16]) that:
“In my opinion … there was no obligation on the [informant] that he elect between the various ‘acts’. Nor was the charge defeated if the [informant] failed to establish his case in relation to one ‘act’ so long as it was established in relation to one or more of the other acts. In my opinion, this case is similar to those cases where, for example, a charge of the theft of a number of items is alleged and the charge is not defeated simply because the prosecution fails to prove its case in relation to one or some of the items, or a charge of assault said by the prosecution to be constituted by a number of blows is alleged and the charge is not defeated simply because the prosecution fails to prove its case in relation to one or some of the blows.”
When a complaint of duplicity is raised it is necessary for a Court to adopt “a practical approach”. In some cases such an approach can justify a single charge being laid when “a number of acts of a similar nature … [are] connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise …”: see Director of Public Prosecutions v Merriman [1973] AC 584 at 607.
Such exceptions from the strict rule against duplicity were explained by Kirby J in Walsh v Tattersall (1996) 188 CLR 77 at 109 as follows:
“Exceptions to the general rule against duplicity have been allowed where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity; where the offence is one that can be classified as continuing in nature; and in other anomalous cases.”
In R v Goodwin [2009] ACTSC 111 at [81] Refshauge J said that:
“In determining whether an offence is a continuing offence or a ‘composite offence’, relevant indicia include but are not limited to the connection of the acts in point of time, their similarity, the physical proximity where they occurred and the alleged intention of the accused throughout the conduct.”
Each of the charges particularised a series of directions and actions on the part of the appellant which led to the complainant disrobing or having underclothing removed. The sixth and ninth charges also alleged that the appellant had administered multiple smacks to the complainant.
Each of the three charges related to a discrete incident. In each case the appellant’s impugned conduct occurred over a period of a few minutes. The conduct in each case involved successive steps by which the appellant achieved the objective of having the complainant appear before him naked from the waist down. In two of the instances the appellant took advantage of the complainant’s nakedness to spank her on the buttocks. In the circumstances each offence can be regarded as a continuing offence albeit one which persisted for only a short time. Each was also properly to be regarded as a composite offence of committing an act of indecency on the complainant.
The appellant submitted that the panel would have been uncertain as to the particular conduct that they were asked to find was indecent. It was possible, he said, that the panel members, when dealing with Charges 6 and 9, could have regarded his alleged conduct, prior to smacking the complainant, to be the relevant indecent conduct. Attention was directed to an aide memoire which had been given to the panel by the Judge Advocate. The aide memoire set out the elements which the prosecution was required to establish in respect of each charge. The appellant’s conduct which was said to constitute an act of indecency was identified, in relation to Charges 6 and 9 as being the entirety of the conduct referred to in the charge, that is, the conduct preparatory to the smacking and the smacking itself. The conduct constituting an act of indecency under Charge 4 was said to be all of the acts commencing with the order to stand up and concluding with the complainant appearing before the appellant naked below the waist.
At trial the complainant gave evidence which, if accepted, would have established that all of the conduct referred to in each of the charges had occurred. The appellant denied that any of the conduct alleged in Charges 4 and 9 had occurred. He admitted the conduct alleged in Charge 6 but claimed that it was consensual.
When she directed the panel in relation to Charge 4, the Judge Advocate treated all of the directions and actions of the appellant as together constituting the act of indecency. These events occurred over a very short period of time. They involved, in quick succession, the removal of items of the complainant’s clothing so that she appeared naked from the waist down. They were acts which could, without unfairness to the appellant, be treated as forming a composite element of the offence charged.
When she came to her directions in relation to Charges 6 and 9 the Judge Advocate specifically reminded the panel that the “allegation relate[d] to smacking.” She thereby made it clear that the smacking and the immediate circumstances in which it occurred in each case was the relevant act of indecency relied on by the prosecution. It is also to be borne in mind that each of the acts referred to in Charge 6 were admitted by the appellant.
We do not, therefore, consider that the panel would have been left in any doubt about the conduct which the prosecution was alleging, in respect of each of the charges, amounted to an act of indecency.
Charges 4, 6 and 9 were not bad for duplicity.
GROUND 5
The nub of this ground is that s 67 of the Crimes Act which applies in the Jervis Bay Territory, is not picked up by s 61 of the DFDA even if s 60 of the Crimes Act applies to the circumstances of this case.
The terms of s 60(1) of the Crimes Act have been set out in dealing with ground 4 (see above at [36]).
Section 67 provides:
“Consent
(1)For sections 54, 55 (3) (b), 60 and 61 (3) (b) and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused –
(a)by the infliction of violence or force on the person, or on a third person who is present or nearby; or
(b)by a threat to inflict violence or force on the person, or on a third person who is present or nearby; or
(c)by a threat to inflict violence or force on, or to use extortion against, the person or another person; or
(d)by a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person; or
(e)by the effect of intoxicating liquor, a drug or an anaesthetic; or
(f)by a mistaken belief as to the identity of that other person; or
(g)by a fraudulent misrepresentation of any fact made by the other person, or by a third person to the knowledge of the other person; or
(h)by the abuse by the other person of his or her position of authority over, or professional or other trust in relation to, the person; or
(i)by the person’s physical helplessness or mental incapacity to understand the nature of the act in relation to which the consent is given; or
(j)by the unlawful detention of the person.
(2)A person who does not offer actual physical resistance to sexual intercourse shall not, by reason only of that fact, be regarded as consenting to the sexual intercourse.
(3)If it is established that a person who knows the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means set out in subsection (1) (a) to (j), the person shall be deemed to know that the other person does not consent to the sexual intercourse or the act of indecency, as the case may be.”
Section 67 is intended to achieve several purposes. First, it provides the circumstances under which consent is “negated.” The Shorter Oxford Dictionary defines “negate” to mean to “deny; negative, to deny the existence of; to destroy, nullify, render ineffective.” Secondly, it does not purport to define what is consent; only what is not consent. Thirdly, it is not a complete definition of all of the “grounds” on which consent is negated. Some, at least, of the grounds set out would have vitiated consent at common law. Others, such as a sleeping victim, are not specifically mentioned, although it is well settled that a person who is asleep cannot consent to anything. Fourthly, whilst s 67 (1) and (2) are concerned with the physical element of whether or not the complainant consented, or whether such consent as he or she may have given was vitiated (or negated), subsection 67 (3) is concerned with the accused’s knowledge. In effect, it provides that knowledge that the complainant’s consent has been caused by one or other of the vitiating factors is sufficient to prove the relevant mental element, or fault element, as it is now called.
What is plain is that the words “without that person’s consent” contained in s 60 (1) of the Crimes Act take their meaning, at least in part, by reference to s 67 (1) and (3). In other words, s 67 operates in the same way as a definition section.
It is a well established principle of statutory interpretation that a provision of an Act is not to be read in isolation; the Act must be read as a whole. To read s 60 (1) in isolation would be to offend this basic principle. The argument of counsel for the appellant is premised on an assumption that there needs to be a source of power, separate from s 61 of the DFDA, before s 67 of the Crimes Act is “picked up.” This argument must be rejected. If s 61 of the DFDA picks up s 60 (1) of the Crimes Act, the result is that s 67, in so far as it gives meaning to s 60 (1), applies as well.
A subsidiary argument was that s 67 of the Crimes Act was not “picked up” because it required the Court “to find a fact, or not find a fact, in a particular way.” It was put that, it was “a law that purports to direct the manner in which judicial power should be exercised” and was consequently invalid, citing Nicholas v The Queen (1998) 193 CLR 173 at 187, 236.
The first answer to this contention is that the Court was not exercising the judicial power of the Commonwealth, and therefore arguments based on the separation of powers doctrine enshrined in Chapter III of the Constitution have no applicability: Re Tracey; Ex parte Ryan (1989) 166 CLR 518. The second answer is that, in any event, s 67 of the Crimes Act does not require the Court to decide a fact in a particular way. All it does is to mark out what is not meant by the concept of consent. As to s 67 (3), in our opinion it does not create a statutory fiction. As a matter of logic and common sense, knowledge of circumstances which negate consent means that not only was there no consent at all, but the accused knew there was no consent. Section 67 (3) is merely a provision for the removal of any doubt on that subject: see Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 at 207 (per Gleeson CJ). This subsection also makes clear that honest and reasonable mistake of fact is not available as a defence in the circumstances to which s 67 (3) applies, (although as a matter of logic, if the fault element is knowledge, it is difficult to see how one could be mistaken about something when it was proved that the accused had the relevant knowledge).
Ground 5 must, therefore, be rejected.
GROUND 6
On 29 November 2011 in a pre-trial ruling the Judge Advocate considered an objection from the defence, pursuant to s 141(2) of the DFDA, to LCDR C E Hillam constituting a member of the panel. The Judge Advocate refused the application after questioning LCDR Hillam in the absence of the other members of the panel.
The appellant contends that in so ruling the Judge Advocate erred and that there were reasonable grounds for inferring ostensible bias so that the convictions were wrong in law and resulted in a substantial miscarriage of justice and/or a material irregularity pursuant to s 23(1)(b) and (c) of the DFDA.
The basis of the objection set out in written submissions for an earlier pre-trial hearing was that LCDR Hillam had some past professional association with CMDR D Mullins, the assistant prosecutor. A further basis for objection was raised, namely, that LCDR Hillam had given inconsistent information to the Registrar of Military Justice about the connection with CMDR Mullins; and, on appeal, that the Judge Advocate’s reasons were inadequate.
CMDR Mullins revealed to the trial manager, defence counsel and to other relevant persons in late October 2011 that he knew, on a professional basis, LCDR Hillam. This had occurred in 2007 when he was Commanding Officer of HMAS SHEPPARTON and in that capacity was required to take under his charge S8 drugs. He would attend at HMAS CAIRNS Medical Centre to sign out the drugs. “On at least one occasion” he could recall LCDR Hillam was the medical representative counter-signing his signature for the purpose of passing those drugs to his charge. He added:
“I can also remember ‘coming across’ her in the HMAS CAIRNS wardroom on a number of occasions. We may have had polite conversation on a couple of occasions. If I was to walk past her in a shopping mall, I would not be surprised if she failed to recognise me.”
Initially, when approached by the trial administrator, LCDR Hillam indicated that she had no knowledge of CMDR Mullins. She subsequently said that she had no recollection of CMDR Mullins but thought that she might have come across him when she was the Director at HMAS CAIRNS’ Medical Centre. She commented that when working there she “dealt with a lot of people between 2007 and 2010”. This was the impugned inconsistency.
Defence continued to press objection to LCDR Hillam’s inclusion on the panel during the pre-trial hearings. The Judge Advocate deferred dealing with the matter until 29 November 2010 – the first day of the trial. She foreshadowed with counsel that she would bring LCDR Hillam in separately from the rest of the panel and ask her if she knew the assistant prosecutor, CMDR Mullins, and the nature of her dealings with him, if she did recall him. Having foreshadowed those questions the defending officer had no further submissions.
When questioned, LCDR Hillam did not recall CMDR Mullins, but added that “somebody” did say to her that he had said that he knew her. She had no memory of him. LCDR Hillam was excused and asked not to discuss the matter with other members of the panel. The defending officer made no further submissions but maintained the objection. The Judge Advocate ruled that since LCDR Hillam had no specific recollection of CMDR Mullins she was satisfied that no apprehension of bias arose and dismissed the application commenting that since the members of a court martial are to be assembled from the Defence Force which was a “comparatively [small] service”, it was:
“… by no means unremarkable that officers will have had dealings with their comrades at some stage over the years and I do not think that that would give rise to an apprehension of bias.”
By s 141(2)(c) of the DFDA at any time before a court martial is sworn or affirmed, an accused person may object to any member of the court martial on the ground that the member “is likely to be thought, on reasonable grounds, to be biased.” The appellant did not contend below or on appeal that the statutory test is any different in substance from the common law test applicable to a civilian juror or judge.
The High Court has established, through a number of decisions, culminating most recently in Michael Wilson & Partners v Nicholls (2011) 86 ALJR 14, that the test to be applied in Australia in determining whether a judge is disqualified by reason of the apprehension of bias:
“…is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” [at 31].
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gleeson CJ, McHugh, Gummow and Hayne JJ said at [8]:
“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision-making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”
The appellant submitted that the “association” (see: Webb v The Queen (1994) 181 CLR 41 at 74 per Deane J) between CMDR Mullins and LCDR Hillam gave rise to an apprehension of bias. The plurality in Ebner said of such a contention at [30]:
“In each case, however, the question must be how it is said that the existence of the ‘association’ or ’interest’ might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits. As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies. Similarly, the bare identification of an ‘association’ will not suffice to answer the relevant question. Having a mortgage with a bank, or knowing a party’s lawyer (may and in many cases will) have no logical connection with the disposition of the case on its merits.”
The contact between the assistant prosecutor and LCDR Hillam was of a professional nature and minor. CMDR Mullins likely recalled LCDR Hillam because he was the principal actor, as it were, required to attend at the medical centre to collect authorised S8 drugs for his ship. On occasions (but not often, it may be inferred) LCDR Hillam authorised that collection. CMDR Mullins remembered speaking to her in the wardroom at HMAS CAIRNS but there was nothing memorable about their encounters. LCDR Hillam did not recall CMDR Mullins even after seeing him.
The appellant complains that the inquiry was not an exhaustive examination and that the separation of LCDR Hillam for questioning was inappropriate; the conclusion that in a small service some contact between members was unremarkable was reached without actual evidence of the size of the Navy; and the reasons for rejecting the application were inadequate.
There was no attempt by the appellant below (or on appeal) to identify what it was that might lead LCDR Hillam to decide on the appellant’s guilt or otherwise other than on its legal and factual merits. There was some vague assertion of superiority in command and some assertion that at some time in the course of the proceedings LCDR Hillam might remember something about CMDR Mullins, but what that something might be and how it would affect her decision impermissibly was not identified. Mere knowledge is insufficient. The application, therefore, rightly failed at the threshold.
Questioning LCDR Hillam separately from the balance of the panel did not give rise to any prejudice against the appellant. She was not appraised of which party (if either) had raised the matter. The approach to her had initially come through the trial administrator.
The Judge Advocate was entitled to make the observation from her own general knowledge that the service was a small one and that individual contact between members unremarkable.
In the absence of any clearly articulated and relevant basis for the application to discharge LCDR Hillam the Judge Advocate gave adequate reasons for refusing the application.
This ground must fail.
GROUND 7
This ground complains that, for a variety of reasons, the learned Judge Advocate erred in giving her directions to the panel on the question of whether or not the complainant’s consent was negated by a fraudulent misrepresentation of fact.
The directions which the learned Judge Advocate gave to the panel included that consent is negated “by a fraudulent misrepresentation of any fact made by the other person, or by a third person, to the knowledge of the complainant.” This was clearly wrong; it is the knowledge of the accused which the Judge Advocate meant to convey, not the knowledge of the complainant, but no point is taken in relation to that error, although the error is repeated on a number of occasions (the direction was also inadequate for other reasons, one being that it did not deal with causation).
The Judge Advocate directed the panel to the following matters (referring to the prosecutor’s address):
“She was no doubt emotionally dependent on him and in the prosecutor’s submission the relationship he was suggesting that you would infer was one where he effectively groomed her into the position where he was able to perpetrate these things upon her. The prosecutor also submitted to you in addition to the question of abuse of power and authority in relation to the consent he also considered the fraudulent misrepresentation made by the accused.
That is, particularly in relation to this charge. There are indications to the complainant that she gave evidence on repeated occasions that the accused had smacked his daughters like this and that she’d been told that SBLT Clarke and LEUT Cowling had done this and this was how Australians disciplined their children. He said that these were matters she gave evidence on and what appeared to be active in her mind as believing that he was – what was going on was not improper such that consent was obtained to engage in the conduct.
In this regard you’ll recall the evidence of SBLT Clarke the complainant was surprised when she advised her that she had never been smacked by the accused. She said in her evidence, “She told me that she thought it had been happening to me. I think she thought that it was. She tried to rationalise.”
Counsel for the appellant sought a redirection from the Judge Advocate on this direction on the question of causation, that is, that the panel should be directed that if there was a fraudulent misrepresentation or abuse of the appellant’s position of authority, the panel needed to be satisfied beyond reasonable doubt that one or other of these factors caused the complainant to consent to the acts of indecency upon her, to the knowledge of the accused. The Judge Advocate redirected the panel accordingly. No submission was made by counsel for the appellant that the prosecution did not advance a case based on a fraudulent misrepresentation of fact. No specific direction was given as to what amounts in law to a fraudulent misrepresentation. No complaint was raised at trial by the appellant’s counsel about that. It is not a matter complained of in this appeal, and no argument has been directed to this issue.
What untrue statement of facts can be considered to be fraudulent is not clear. The provision in s 67(1)(g) of the Crimes Act (which applies to this offence as well as a number of other offences including sexual intercourse without consent) was clearly intended to extend fraud beyond the concept as stated by the High Court in Papadimitropoulos v The Queen (1957) 98 CLR 249 at 261, which limited the kinds of fraud which would vitiate consent, namely, fraud as to the indentity of the accused, and fraud as to the true character of the sexual act. Fisse, in Howard’s Criminal Law 5th Edn, at 182, opines that the change to the common law by the Crimes Act and by a similar provision in s 319(2)(a) of the Criminal Code 1913 (WA) was so sweeping that even trivial acts of deceit may amount to fraud. This view of what might amount to fraud has been criticised by academic writers and by some judges see Michael v The State of Western Australia (2008) 183 A Crim R 348 at [61] - [89] per Steytler P; at [359] – [373] per EM Heenan AJA; R v Winchester [2011] QCA 374 at [82] – [84] per Muir JA. Much of the discussion in those cases about what might amount to fraudulent behaviour must be read in the context of different legislative provisions, and particularly as in Queensland and Western Australia, consent is defined to mean ‘consent freely and voluntarily given’, whereas there is no similar definition in the Crimes Act, a difference which some judges believe has changed the notion of the ordinary meaning of consent when it relates to sexual offences. We are not called upon to decide these issues in this case, and they are mentioned only for completeness – although counsel did complain that the Judge Advocate’s directions were flawed because the elements of what needed to be proved to sustain a conviction based on fraudulent misrepresentation were not explained to the panel.
Inconsistent alternatives
The first matter raised by the appellant was that the Judge Advocate should have directed the panel that the prosecution had put its case on alternative bases, namely that the complainant did not consent, or, if she did consent, her consent was negated by vitiating factors in s 67(1)(g) and (h) of the Crimes Act. There is no substance to this submission. The issue was whether the prosecution had proved lack of consent by the complainant to the accused’s knowledge. The prosecution was entitled to prove this issue in different ways, and it was not necessary for the panel to be unanimous in how it arrived at its conclusions on these elements: see Michael v The State of Western Australia at [185] – [190]; [281-282]; [370]; R v Walsh (2002) 131 A Crim R 299 (Court of Appeal Victoria). There was nothing mutually inconsistent if some members of the panel arrived at their conclusions by one path, whilst others adopted a different path.
Nor was it necessary to obtain a special verdict on whether s 67 was applied: cf Stanton v R (2003) 198 ALR 41 at [26]. There is no statutory authority for a special verdict from the panel, and the sort of case where a special verdict is generally open did not arise in the circumstances of this case because it was unnecessary.
Election
It was submitted that the Judge Advocate should have required the prosecutor to elect on the nature of the case he was presenting concerning the issue of consent. There is no substance to this submission. Election is a remedy used where there is duplicity or latent ambiguity: see Johnson v Miller (1937) 59 CLR 467 at 489 per Dixon J (as he then was). In this case, there is neither. The charges in the charge sheet each revealed only one offence, and the facts relied upon to prove each charge proved only one offence.
Fraudulent misrepresentation should not have been left to the panel
Counsel for the appellant raised a number of different matters in support of this submission, the main one being that fraudulent misrepresentation was never any part of the prosecution case. The substance of the submission was that such evidence as might have borne on this question was led as “grooming evidence” or relationship evidence, and relied on for that purpose alone, with the result that this was not an issue the defence were required to meet at trial, and hence, should not have been left to the panel.
The evidence is that, prior to trial, the prosecutor, in a document headed ‘Prosecution Alleged Matters of Fact,” indicated that at trial the prosecutor intended to rely upon s 67 of the Crimes Act to prove that any consent was vitiated by:
“a.the abuse by LCDR Jones of his position of authority over, or professional and other trust in relation to [the complainant] (s 67 (1) (g)); and/or
b.threats by LCDR Jones to publicly humiliate or disgrace or to physically or mentally harass [the complainant] (s 67 (1) (d)); and/or
c.LCDR Jones making fraudulent misrepresentations as to matter of fact (sic) he knew to be false to [the complainant].”
That document then set out at considerable length the evidence upon which the prosecution intended to rely at trial. There is nothing in the document about any evidence which might amount to a fraudulent misrepresentation of fact, and, indeed, no mention is made of how the prosecution intended to put its case on this issue, and evidence concerning the allegations of smacking daughters or others is not even mentioned.
The prosecutor, in his opening address, did not specifically open a case based on fraudulent misrepresentation. The way the case was put, so far as s 67 is concerned, was:
“But for the purpose of consent, as it relates to an act of indecency for this charge, consent can be negated. Somebody who is appearing to give consent can be negated. And it’s common sense, when somebody, not this case obviously, consents to some form of sexual activity so threats to inflict violence on a third person are not carried out, that is obviously not real consent. That consent is negated. Under the relevant law that applies in this case, consent can be negated if it is obtained by the abuse of a person of his or position of authority over or professional or other trust in relation to that person, amongst a number of other reasons.
Obviously you will have anticipated that by virtue of his position as head of her department, by virtue of his rank as a lieutenant commander, by virtue of the huge rank disparity between him and her, and other aspects of the evidence that you will hear about that relationship, we will say firstly it’s the prosecution case that there was at no stage any real consent by the complainant to this activity. But if there be some question that perhaps by allowing this conduct to happen the accused was entitled to believe there was consent, you recall I said he has to know she’s not consenting, I would be submitting ultimately that even if you were unsure beyond reasonable doubt whether she was willingly taking part or not in the sense that she has bent over his knee and been smacked, there was not real consent in this case because that consent was obtained by an abuse of this position of authority over. In effect, she’s ordered to do something, she does it. That’s not real consent in our submission. Or that’s our case.”
Elsewhere in his opening address, the prosecutor twice referred to consent being negated by abuse of authority, but no case was opened on either threats or fraudulent misrepresentation.
It was conceded by BRIG L McDade for the respondent that the evidence concerning smacking his children was led as “grooming evidence,” and relationship evidence.
The first mention of the appellant’s daughters was early made in the complainant’s evidence-in-chief, when she was asked whether the appellant ever spoke to her about his own career:
“He told me a little bit how he was vice-president of Telstra company and also how he was working in Woodside and his daughters were – you know, were earning a hundred plus a year and very successful, and they’re just the same age as me.”
When and where this was said is not entirely clear, but it may have occurred at some time prior to the events involved Charge 1 in the appellant’s cabin.
As to Charge 1, there was no allegation about spanking his daughters, although there was some reference to the spanking being so that the complainant would know “how to be disciplined the way that Australians were disciplined” and “This is what a father should have done. I’m like a father to you....You’re just like my daughter.” The complainant’s evidence was that she complied because:
“I don’t know. I was scared of him...I didn’t know what I should do.”
As to the second incident (Charge 4), there was evidence that the appellant said “This is what Australians do to their children” and she took her pants off when told to do so because the appellant said: “Look at my daughters, they’re so successful.” However, when told to remove her underpants, she did not know what to do. She stood there, the appellant pulled her underpants down to her knees, but nothing further happened because there was an interruption caused by a knock at the door.
As to the third incident, Charge 6, the evidence was that the appellant demanded that the complainant remove her DPNVs because she had betrayed his trust by revealing to SBLT M Clarke that he had assisted her to write an e-mail. She said she complied because “I was scared of him and he told me to do it. I didn’t know what to do. He was so upset with me. His face was red and I can see him very angry.” He then grabbed her, got her to bend over his lap, pulled her underwear down and hit her hard about 10 times on the buttocks. It was not alleged that there was any false representation of fact of any kind.
As to the fourth incident, Charge 9, this related to an incident when the complainant admitted to driving without a licence. The appellant became very angry, said she deserved a smacking because what she did was very wrong, grabbed her hand and guided her onto his lap. Although there were some comments made about her acting like a child, the complainant was not asked if she consented to being smacked or not. To the extent that absence of consent might be inferred, there was nothing to suggest it had anything to do with a fraudulent misrepresentation of fact.
As to the fifth incident, Charge 12, the circumstances as conveyed by the complainant were that when she and the appellant arrived at the complainant’s house, after going out to dinner together, the appellant, for no particular reason apart from, it may be inferred, his own sexual gratification, decided he wanted to smack the complainant on her bottom. The complainant said “No.” The appellant became upset, and said that he would not help her any more. The complainant was “scared”, “didn’t know what to do”, “was beginning to rely on him” “glad of the opportunity to be an Acting Killick,” but there is no mention of any fraudulent misrepresentation. Her evidence was that she maintained that she did not want to do it, told him she had her period so as to avoid having to remove her underpants, but was nevertheless spanked whilst wearing a dress.
The sixth and seventh incidents, Charges 15 and 18, resulted in an acquittal.
The eighth incident, Charge 20, concerned an occasion when the complainant returned to the ship after a date with a person named Karl. Again there is no mention of anything which could be suggestive of fraudulent misrepresentation. The assault was apparently accepted by the panel as non-consensual, although the basis for this is not clear.
The ninth incident, Charge 22, related to an incident after the complainant had returned from leave in the Philippines. The complainant’s evidence was that whilst there, she had told her grandmother what had been going on, and promised her grandmother “it wouldn’t happen again” and she “couldn’t let him anymore.” The appellant told her to remove her clothes in front of him because he wanted to see her naked. The evidence is somewhat vague as to what exactly happened and where, but the high point of the prosecution case was that all that happened was that the appellant patted her on the bottom.
No cross-examination was directed towards whether or not there was a fraudulent misrepresentation of fact which induced the complainant to consent.
The next piece of evidence came from the witness, SBLT Clarke who was called to give evidence about, amongst other things, what the complainant had revealed to her about the spanking incidents. In the course of this conversation, the complainant told SBLT Clarke that the appellant had told her that, not only had he spanked his daughters, but he had spanked SBLT Clarke as well. When SBLT Clarke told the complainant that this had not happened to her, the effect on her was to cause her to become more distressed and embarrassed. No evidence to this effect was given by the complainant, and it was conceded that the prosecution was taken by surprise when this evidence came out at trial. No cross-examination was directed towards this issue.
Evidence was given by LS R Cowling about a number of matters, none of which related to this issue, until on cross-examination, a question was put (which was directed towards a different issue) which led to a further question in re-examination, when the prosecutor asked, (without objection):
“Did she ever ask whether such things had ever happened to you? --- She asked the question to myself and SBLT Clarke if we’d ever been involved or know of any incidents that happened. Both myself and SBLT Clarke discussed something that happened to both of us when we were quite younger...”.
This was the extent of her evidence on this topic, and the whole of the evidence potentially relevant to this topic.
In the prosecutor’s address to the panel, he referred to the evidence of the suggestion that the appellant told the complainant that he had done this to his daughters, as the “grooming of a vulnerable person to engage in acts of indecency with or without her consent.” Elsewhere he said that the relationship “was one where he effectively groomed her into that position where he was able to perpetrate these things upon her. He was a Lieutenant Commander.” The effect of the address was that in relation to some specific charges, there was simply no consent at all, whilst in relation to others, the complainant’s consent was negated by the abuse of his position as her superior officer. The prosecutor said that having taken the panel through the charges, that in relation to many of them “it’s clear there was no consent and she made it clear to him. And in some of the others she didn’t have any choice, it was orders.” Fraudulent misrepresentation of fact was not mentioned at all.
During the course of defence counsel’s address to the panel, he said:
“It seems to have been faintly suggested that [the complainant] consented to this conduct as a result of some kind of fraudulent misrepresentation, and that, it is said, vitiated the consent that she gave. However, it was not, in my respectful submission, altogether clear what the misrepresentation was and, if there was any misrepresentation, how it is said to be fraudulent. In this sense – misrepresentations can be of many kinds, they can be innocent, they can be knowing, they could even be negligent but when it’s suggested that there has been a fraudulent misrepresentation, then, it’s up to my friend to establish [to] the requisite standard of proof that it was a knowingly false (sic) misrepresentation. In my submission, he wouldn’t get close to having you accept that that occurred.”
That was the only reference to that topic in his address.
Reference has already been made to the direction which the Judge Advocate gave on this topic, the discussion with counsel for a redirection, and the very brief redirection given. No objection was taken by counsel for the accused that the Judge Advocate should not have directed the panel at all on this topic; nor that such direction was deficient because (1) no instruction was given to the panel as to what amounts in law to a fraudulent misrepresentation and (2) the panel was not directed as to which count or counts that subject might be relevant to, it being left on the basis that it could be considered in relation to each charge, when the evidence of the complainant at its highest related the “daughters” spanking only to Charges 1 and 4. This left the panel in the position that it could be considered in relation to all charges, as if this carried over as something affecting the complainant’s mind even before the first incident. Why defence counsel even raised it at all, and why objection was not taken at the trial is difficult to understand. Prior to the request for a redirection, the Judge Advocate in discussions with counsel as to what directions would be given at no time intimated that it was something that the panel needed to be instructed about; nor was it mentioned in the aide memoire which the Judge Advocate had prepared.
To the extent that SBLT Clarke and LS Cowling were permitted to give evidence about an allegation made to them by the complainant suggestive that the appellant had told the complainant that he had smacked both of them, the complainant gave no evidence of this. There was no evidence that this caused the complainant to consent to any of the relevant indecent acts. It was a hearsay account, and although not objected to, it was possibly admissible as evidence of complaint going only to credit under s 68 of the Evidence Act 1995 (Cth) (“the Evidence Act”); but it was not made clear that it was being admitted for all purposes under s 60. Even if admissible under s 60, the appellant was in no position to challenge it, or to cross-examine the complainant about it, except by giving evidence himself. No direction was given to the panel about that aspect of this evidence. Although no complaint is raised in this appeal about this aspect of the direction, at the very least, the panel should have been reminded that the complainant gave no evidence of this, and therefore could not be cross-examined upon it; alternatively, the Judge Advocate could have been asked to limit its use under s 136, but counsel did not do so.
Because of the Judge Advocate’s approach to giving her directions in respect of the elements of each charge by referring back to her general directions on consent on each occasion, fraudulent representation was not explored as an element of each charge together with its constituent parts. The directions on fraudulent representation ought not to have been given at all but having embarked upon that course and, with the encouragement and participation of both counsel to embark on further clarifying directions, they were inadequate.
The issue, then, is whether, as a consequence, a substantial miscarriage of justice has occurred (s 23(1)(c)).
In Darkan v The Queen (2006) 227 CLR 373 Gleeson CJ, Gummow, Heydon and Crennan JJ said at [84]:
“An appellate court invited to consider whether a substantial miscarriage of justice has actually occurred is to proceed in the same way as an appellate court invited to decide whether a jury verdict should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence.”
Their Honours referred to the statement of principle in Weiss v The Queen (2005) 224 CLR 300 at 316 [41]. The Court in that case said:
“But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials … and that the standard of proof is beyond reasonable doubt.” (at 317 [43]).
The Court considered it important that the appellate court reflect whether a substantial miscarriage of justice had actually occurred at 317 [44]:
“No single universally applicable description of what constitutes ‘no substantial miscarriage of justice’ can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.” (emphasis in original)
The Court in Weiss referred to Wilde v The Queen (1988) 164 CLR 365 particularly at 373 where Brennan, Dawson and Toohey JJ referred to the phrase employed by Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514 that:
“[I]t cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost ‘a chance which was fairly open to him of being acquitted’ …”
and
“Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused …” (at 371-372).
Their Honours further concluded that, even if the prosecution case were strong and a reasonable jury would inevitably have convicted, if the proceeding is ‘fundamentally flawed’ in a way which went to the root of the proceedings, then the accused person did not have a proper trial and, therefore, there has been a substantial miscarriage of justice.
It is highly unlikely that any member of the panel reasoned to guilt on the basis that the complainant’s consent was vitiated by “the fraudulent representation” of the appellant that he had similarly disciplined his daughters to their benefit (or SBLT Clarke or LS Cowling). There was no evidence to that effect from the complainant. In a thorough and lengthy cross-examination, any “lurking” inference to that effect was never put. As the review of the opening by the prosecutor, the evidence and the closing addresses demonstrates, this basis for negativing consent did not, in truth, get an airing.
The Judge Advocate directed herself that it was for the prosecution to satisfy her that the desirability of admitting the recorded conversation outweighed the undesirability of admitting it having regard to the manner in which it was obtained.
The Judge Advocate had regard to all of the matters identified in s 138(3) of the Evidence Act. She found that:
·(a) The complainant’s purpose in making the recording was to provide some credibility to the allegations which she had made to some of her friends concerning the appellant’s conduct towards her;
·(b) The contents of the recording were highly probative because admissions made by the appellant were corroborative of the complainant’s account of his conduct;
·(c) The allegations against the appellant were “very serious”, particularly in a service context given the alleged abuse of authority and power;
·(d) The recording had not been made by a third party;
·(e) The complainant was a principal party to the recorded conversation;
·(f) The complainant had undertaken the recording on her own initiative and was not acting as the agent of another;
·(g) The complainant was subordinate in rank to the appellant and was much younger than him;
·(h) Whilst the impropriety breached the appellant’s privacy, it occurred in circumstances where the complainant felt that her allegations were so bizarre that she would never be believed unless she had some corroborative evidence;
·(i) The impropriety was not deliberate given that the complainant had no idea or knowledge that what she was doing was unlawful;
·(j) The recording may have infringed the appellant’s rights under the International Covenant on Civil and Political Rights (“the ICCPR”) and, in particular, his right to silence; and
·(k) The evidence obtained was highly probative and of great importance in the proceeding and may not have been obtained by other means.
Having regard to all of these matters the Judge Advocate determined to exercise her discretion by admitting the recording in evidence.
The appellant submitted that, in doing so, she erred. He contended that, for various reasons, the Judge Advocate was not entitled to rely on most of these considerations in exercising her discretion. He objected that, for the most part, the considerations to which the Judge Advocate referred “consisted of bare conclusions, based in substantial measure upon acceptance of the complainant’s credibility, without reasoned analysis.” As a result the conclusions were, it was said, irrelevant considerations which were erroneously taken into account. The appellant also complained that, in some instances, the Judge Advocate had had regard to irrelevant considerations.
Considerations (a) and (h). The Judge Advocate found that the complainant had made the covert recording so that she would be able to support her allegations which had been received with some scepticism by the few people to whom she had earlier made them. She feared that the allegations would be disbelieved by others to whom they might be made. These findings were based on evidence which had been given by the complainant on the voir dire. The appellant submitted that this evidence amounted to a recent invention and that the complainant’s real purpose was to gather proof which could be used against him.
The complainant gave evidence that, in early November 2010, she had told four other members of the ship’s company about the appellant’s misconduct towards her. She said that she was concerned that they would not believe her. She held this belief because “he’s an officer … I’m just nobody” and because the appellant had told her that no one would believe her: he was a universally popular officer and he had “friends in high places.” She said that her’s was a “bizarre story” and that she needed the recording so that people would believe her.
The alleged recent invention only related to the statements attributed to the appellant to the effect that no one would believe the complainant were she to make allegations against him. It was put to her in cross-examination that she had made four witness statements and that, in none of them, had she referred to the making of any such statement by the appellant. She gave unresponsive answers. It was put to her that the reason that she had not made any mention of any such remarks being made by the appellant was that they had not been made. When it was put to her that no such conversation had occurred she responded:
“Of course it did. I had so many conversations with him. Many hours in his cabin about those things. He said to me, ‘Keep it a secret.’”
The Judge Advocate was entitled to accept and act on the complainant’s evidence for the purpose of ruling on the admissibility of the covert recording. She would have been entitled to accept the complainant’s evidence about making the recording to bolster her credibility with the other members of the ship’s company even if the Judge Advocate had found that the appellant had not told her that any allegations would not be believed.
Considerations (b) and (k). The appellant challenged the Judge Advocate’s view that the contents of the sound recording provided “highly probative” evidence of the commission of the offences. The appellant characterised the contents of the recording as being “not of great importance.”
The transcript of the sound recording covers almost 19 A4 pages. It is not necessary to set out large parts of it. Some examples have already been given: see above at [194] – [196]. To these may be added some further passages which also demonstrate that the appellant readily acknowledged much of the conduct which was alleged against him. He told the complainant that he had taken her “under my wing and give[n] you a bit of guidance and a bit of discipline.”
Later in the conversation the appellant said:
“Well what I was trying to do was to show you that by working with me and by me not abusing you there – you could see ‘Well there are some people who actually respect me for who I am and it’s trying to build up my confidence and if I misbehave he’s going to smack my backside but he cares about me. And he’s trying to help me all the way along.’ That’s where I was trying to get to. And if I crossed the line I apologise. There was never any intent there. It was all about trying to make you a better person and if I’ve caused you any anxiety and worries then I apologise profusely.”
Shortly afterwards, he continued:
“It wasn’t so much that I wanted you naked, mate. It was more of a test to see how obedient and compliant you were going to be. It was all about you doing exactly as you were told. The moment you did that that – things were fine because I had the feeling early on that even, without you knowing it, you were very undisciplined, ill-disciplined and you did the wrong thing without you even knowing you were doing the wrong thing and what I tried to do was put some structure around that, some boundaries around it and that’s what I was trying to do and certainly kids in Australia when they grow up that’s – that’s how they’re taught. Very early on, there’s the boundaries you work within and they grow up knowing that.”
Later, the appellant told the complainant that she was “a naughty young girl” who had been acting like a teenager.
He then went on to make a number of complimentary remarks about the complainant’s subsequent improvement in the performance of her duties.
The appellant sought to discount the probative value of the appellant’s statements by asserting that the admissions relating to the smacking of the complainant added nothing to the evidence because the appellant had admitted having done so on two occasions. The appellant did not, however, in the course of his conversation with the complainant, say anything which suggested that only two smacking incidents had occurred. His statements could be understood as admissions of many such incidents.
Moreover, as has been seen, the admissions went further than merely admitting bottom smacking. The appellant’s attempts to justify his conduct were relevant to his intentions in his various dealings with the complainant. The appellant’s admissions also supported the complainant’s evidence that he had required her, on a number of occasions, to appear naked before him.
The Judge Advocate did not err by treating the contents of the covert recording as providing “highly probative” evidence for the prosecution.
Considerations (d) and (e). The appellant submitted that these considerations were of so little weight that they ought not have been brought into account by the Judge Advocate.
The short answer to this complaint is that these two considerations (the fact that the recording had not been made by a third party and that the complainant was a principal party to the conversation) were relevant to the exercise of the Judge Advocate’s discretion and that it was a matter for her to determine what weight should be accorded to these considerations.
Consideration (g). The Judge Advocate had regard to the fact that the complainant was subordinate in rank to the appellant and that she was much younger than him. This was said to be an irrelevant consideration.
We reject this contention. At the very least the relative rank and age of the complainant and the appellant went to the issue of the nature of the alleged offences. This was a relevant consideration.
Consideration (i). The Judge Advocate accepted that the complainant had not deliberately set out to break the law when she made the covert recording. The appellant contended that she erred in doing so.
This complaint is based on part of an exchange which occurred between the complainant and the defending officer when the complainant was being cross-examined on the voir dire. That exchange was:
“Question: Did you think that it was at least possible that using an iPhone as a device to record a conversation with LCDR Jones might be unlawful? Answer: No, I didn’t think it that way.
Question: Is it the case that you simply didn’t care whether you were engaging in unlawful conduct? Answer: No, I didn’t think it was. What he did to me was unlawful.”
The appellant submitted that the complainant’s justification for having made the recording (“What he did to me was unlawful”) suggested that the complainant believed that the end justified the means, whether she knew the means to be lawful or not. He submitted that the Judge Advocate should have rejected the complainant’s denial that she had considered that the recording might be unlawful and held that the complainant simply did not care whether or not her conduct breached the law.
The complainant’s statement that: “What he did to me was unlawful” must be read in context. Whilst it may be open to the construction which the appellant has sought to place upon it, it may equally be understood to be no more than an unresponsive assertion reflecting a deeply held view that the appellant had misconducted himself towards her. The Judge Advocate had the advantage of observing the complainant in the witness box. She was entitled to accept the complainant’s evidence that the complainant had not turned her mind to the question of the legality of making the recording. This finding went to the issue of whether the complainant had deliberately set out to contravene the statutory proscription of covert recordings. It, therefore, was a matter to which the Judge Advocate was entitled to have regard.
Consideration (j). The Judge Advocate accepted that, in making the recording, the complainant may have infringed the appellant’s rights under the ICCPR. The appellant accepted that this was a relevant consideration but complained that the Judge Advocate had accorded it insufficient weight.
As we have already held, the weight to be accorded any relevant consideration was a matter for the Judge Advocate.
Conclusion. For these reasons we do not consider that the Judge Advocate erred in exercising her discretion to admit the covertly recorded record of interview. In the absence of such error there is no reason why the exercise of the Judge Advocate’s discretion should be disturbed: see House v The King (1936) 55 CLR 499 at 504-5.
GROUND 11
As already noted, the complainant provided the recorded conversation to service police. On 7 December 2010 they conducted a record of interview with the appellant. Parts of the conversation which had been recorded were read out to him and his comments invited.
At trial the defending officer opposed the admission into evidence of those parts of the record of interview which referred to the covertly recorded conversation. The Judge Advocate ruled that these parts of the record of interview were admissible. The appellant submitted that, in so ruling, the Judge Advocate erred.
Throughout the record of interview with the service police the appellant’s position was one of total denial: he denied having engaged in any improper conduct towards the complainant at any time. After the interview had continued for some time the interviewing officers invited the appellant to listen to the recording. After it had been played he was asked whether he still maintained his denials. He said that he did saying:
“I’m not changing it because I know about that. That was in the car on the way there. What you don’t have on that tape is what happened, which is probably five minutes before that. Five minutes before that she had basically said that ‘I’m going to say that you punished me because my resignation is not happening as quickly as I can and that might help me get out quickly. I’ve got a good rapport with the psychologist and this will help me.’ And so I said, ‘Ok. This is you fantasising again. Don’t do it. You’re going to cause trouble.’”
The appellant was then asked: “So what did you do?”. His response was:
“What did I do? I didn’t do anything. I just thought I’ll have the conversation with her. I’ll let her pretend that that happened and I talked to her in that way as if it was real and hopefully I thought by just talking to her she’d calm down and everything would just go away, just like she had the fantasies with the navigator and that, it just disappeared and all that sort of stuff. And I thought that’s where we’d be, because her mindset over this last year had been all over the shop. She used to get extremely emotive. She would go and have these fantasies and carry on that all – regularly. And I’d calm her down with those discussions and basically say to her, ‘That’s not real. This is real. This is where we’re at.’”
Thereafter the appellant repeatedly asserted that the entire recorded conversation had involved role play on his part and that none of the events referred to had actually occurred. This part of the interview concluded with further denials by the appellant of any misconduct on his part involving the complainant.
The defending officer submitted that the relevant part of the record of interview should not be admitted because the recording had been obtained illegally. The Judge Advocate accepted the defending officer’s submission that her ruling on the admissibility of the covert recording did not necessarily compel a favourable exercise of discretion in respect of that part of the record of interview which was based on it.
The Judge Advocate again directed herself that it was for the prosecution to satisfy her that the desirability of admitting the record of interview outweighed the undesirability of admitting it, having regard to the manner in which the covert recording was obtained. She turned first to the question of whether, absent the impropriety, the evidence would have been admissible. She held that the relevant parts of the record of interview would be admissible pursuant to ss 55 and 56 of the Evidence Act. She said:
“I am satisfied that this evidence, if accepted, could rationally affect a fact in issue in this trial. The representations by the accused go to the issue of whether or not what he says is a concoction and an attempt to exculpate himself from the relevant events. The purpose for their admission is to show that the accused’s version of events may be shown to be false and from that a court martial panel would be entitled to draw an inference from such conduct consistent with a consciousness of guilt.”
The Judge Advocate then turned her attention to s 138 saying that “the matters listed in sub-section 138(3) … that I should take into account are in essence, the same as what I took into account in relation to the admissibility of the covert tape recording and I do not propose to address them again.” She went on to identify four “additional factors”. They were:
“a.The accused’s responses to the answers given are highly probative. They provide an explanation by the accused as to the statements he made on the covert tape recording. A panel could infer that they amount to a false denial because there is evidence that there was no elaborate fantasy on the part of the complainant about being smacked. In addition, it is not in contest that the conduct alleged in relation to the first second [sic – third] and ninth incidents took place;
b.These are very serious allegations’ [sic], particularly in the service context where there has been [sic] serious allegations of abuse of authority and power;
c.The service police officers, in their evidence, both indicated that legal advice had been received in relation to the playing of the tape to the accused and that they understood that it was permissible to do so and that issues of admissibility could be resolved at the trial. The fact that the service police admit the possibility that the covert recording may not have been admissible, does not in the context, justify treating the conduct of the service police officers as improper;
d.The covert tape recording has already been admitted into evidence.”
The appellant submitted that the Judge Advocate’s ruling was affected by a number of material errors. He complained that she had had regard to a number of the same considerations which she had taken into account in dealing with the record of interview and which had no relevance to the admissibility of the record of interview. The additional considerations which she identified ought not to have influenced her decision. As a result, so it was submitted, the Judge Advocate should not have found that the prosecution had discharged the onus of establishing that, on balance, the relevant parts of the record of interview should be admitted.
The appellant identified considerations (a), (e), (g) and (h) (see above at [220]) as considerations which were taken into account in dealing with the admissibility of the covert recording but which had no bearing on the admissibility of the record of interview. These matters related to the complainant’s purpose in making the recording, the fact that she was a principal party to the conversation and her relatively junior rank. These were matters which were of marginal, if any, relevance to the admissibility of the record of interview.
The appellant’s submissions, however, failed to distinguish between matters which s 138(3) required the Judge Advocate to take into account and the facts, peculiar to the case before her, to which the Judge Advocate had regard in satisfying the statutory obligation. The Judge Advocate did not say that she was again taking into account considerations (a) to (k). What she said was that she was again taking into account “the matters listed in sub‑section 138(3)”. This she was required to do. She could not, therefore, be understood to have had regard to matters which were not relevant to her task had she not referred to the four “additional factors”. Those factors were of the same character as considerations (a) to (k) which she had taken into account in dealing with the admissibility of the covert recording. Read literally, the four factors which she then identified may be factors “additional” to considerations (a) to (k).
We have considered the terms of the Judge Advocate’s ruling. We have concluded that, in context, the Judge Advocate is to be taken as treating the four factors as matters which, like the other “considerations”, arose on the facts of the case but were to be taken into account discretely in determining the admissibility of the record of interview.
It is, in any event, to be remembered that s 138(3) does not limit the range of considerations which a Court may take into account in exercising its discretion to admit or refuse to admit tainted evidence. Appellable error would only have occurred had the Judge Advocate taken into account a consideration which she was bound not to take into account and, even then, only if that consideration was shown to be material to her decision: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-41. The appellant did not submit that all of the considerations, to which the Judge Advocate had regard in deciding to admit the covert recording were irrelevant to her decision about whether or not to admit the parts of the record of interview to which objection was raised. The four considerations which were said to be irrelevant, namely considerations (a), (e), (g) and (h) were not considerations which the subject matter, scope and purpose of s 138 precluded her from taking into account.
Additional factor a. The appellant challenged the Judge Advocate’s findings that his responses to the questions which he was asked after the recording had been played to him were quite “highly probative”. He did so on the basis that he had subsequently admitted the conduct which was alleged to have occurred in the course of three of the incidents and that, even if he had falsely denied having engaged in all of the conduct alleged against him, this did not make the complainant’s account more probable than would otherwise have been the case.
As the Judge Advocate explained, the appellant’s denials could support a prosecution claim that the appellant’s reaction to the questioning displayed a consciousness of guilt. This was because he had asserted that all of the complainant’s allegations were based on fantasies and that he had later admitted that some of the conduct, which he had denied at interview, had, in fact, taken place.
Additional factor b. The appellant did not, in argument, seek to suggest that the allegations were not very serious, particularly in a service context.
Additional factor c. The appellant developed two points in relation to the relevance of the service police officers’ belief that they were entitled to deploy the covert recording in the course of the record of interview. The first point was that the prosecution had not sought to prove the content of the legal advice on which the service police claimed to have relied. The prosecution had been asked to disclose any document containing that advice and no document had been provided. In the absence of such evidence, it was submitted, the Judge Advocate should not have given any weight to the fact that the service police may have considered that they were not precluded from playing the recording during the course of the interview.
The second point was that, in electing to play the recording which had been illegally made, the service police took a calculated risk that the Judge Advocate “would condone their conduct upon the hypothesis that the ends (the anticipated probative value of the appellant’s responses to the recording) justif[ied] the means (the derivative use of illegally obtained evidence)”.
The service police officers who conducted the interview with the appellant both gave evidence on the voir dire. WO Chaplin gave evidence that she had sought verbal legal advice from the Fleet legal officer relating to the legality of the covert recording. She did not recount the precise terms of the advice (if any) which she received. The more senior of the interviewing officers, CAPT J Cunningham summarised the approach which he and WO Chaplin had adopted during the interview when he said that:
“… the issue here about the legality and the argument of whether its admissible or not is a matter for the Court. From an investigator’s perspective, I would be criticised if I didn’t disclose to the suspect information which I have in my possession which is relevant to the allegations which were made.”
The Judge Advocate, having heard this evidence, considered that the fact that the interviewing officers were uncertain about the legality of the covert recording and took the view that its admissibility was a matter for the Court to resolve (if need be) at trial did not justify characterising the interviewing officers’ conduct as “improper”. This conclusion was open on the evidence: the interviewing officers had not made the recording; they were not in a position to make a legal judgment about its admissibility; they considered that the admissibility of the recording was a matter for the Court; and they proceeded on the basis that fairness required that its contents should be placed before the appellant so that he could deal with them.
Additional factor d. The Judge Advocate had regard to the fact that the tape recording had, pursuant to her earlier ruling, already been admitted into evidence. The appellant contended that this was a manifestation of “a cynical proposition that simply because evidence of the sound recording is admitted (notwithstanding its illegality), others have free rein to exploit it.” This, it was said, was an irrelevant consideration.
This contention involves a misconstruction of what was said by the Judge Advocate. She did no more than record that the covert recording was already in evidence. This was the same recording which had been played to the appellant and on which certain questions, asked by the interviewing officers, were based. These considerations were plainly relevant. The appellant’s attempt to assign a wider implication to the Judge Advocate’s reasons is unsupportable.
Conclusion. For these reasons we do not consider that the Judge Advocate erred in exercising her discretion to admit the parts of the record of interview to which objection was taken. In the absence of such error there is no reason why the exercise of her discretion should be disturbed: see House v The King at 504-5.
GROUND 12
The appellant contended that the offences of which he was convicted were indictable offences and that, as a result, he was entitled, pursuant to s 80 of the Constitution, to a trial by jury. A proceeding before a Court Martial was not a jury trial and, as a result, he contended, a substantial miscarriage of justice had occurred.
This ground was formally pressed but the appellant accepted that authority, binding on the Tribunal, required it to reject it.
The High Court has held on a number of occasions that service members may be prosecuted for service offences (including civil criminal offences picked up through s 61 of the DFDA) before service tribunals and that s 80 of the Constitution does not operate to require a trial by jury of service offences (again including those which would constitute indictable offences before civilian criminal courts): see Re Tracey; Ex parte Ryan at 548-9 (Mason CJ, Wilson and Dawson JJ); 578-9 (Brennan and Toohey JJ). See also the observations of Brennan and Toohey JJ in Re Nolan; Ex parte Young (1991) 172 CLR 460 at 480 and Re Tyler; Ex parte Foley (1994) 181 CLR 18 at 28-9.
An attempt to reopen this issue was rejected by Gleeson CJ during an interlocutory hearing in White v Director of Military Prosecutions [2006] HCA Trans 566.
This ground must be dismissed.
I certify that the preceding two hundred and seventy-two (272) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, White and Mildren. Associate:
Dated: 22 May 2012
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