McGovern and Repatriation Commission
[2006] AATA 1108
•21 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1108
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/908
VETERANS’ APPEALS DIVISION ) Re PATRICIA MARY MCGOVERN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC
Mr P M McDermott RFD Senior Member
Associate Professor J B Morley RFD, MemberDate21 December 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ................Signed................
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ APPEALS – war widow’s pension – no causal connection between veteran’s alcohol habit and operational service – veteran’s death not war caused – Tribunal affirms decision under review
Veterans’ Entitlements Act 1986 (Cth) ss 13(1), 120(1)(3), 196B(14)(b)(f),
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321; 65 ALD 609
Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517REASONS FOR DECISION
21 December 2006 Deputy President P E Hack SC
Mr P M McDermott RFD Senior Member
Associate Professor J B Morley RFD, MemberIntroduction
1. Mrs Patricia Mary McGovern is the widow of the late Vincent Michael McGovern. He died on 6 August 2002. In September 2002 Mrs McGovern applied for a war widow’s pension. She would be entitled to such a pension if, broadly stated, (a) Mr McGovern was a veteran; (b) Mrs McGovern was his dependant; and, (c) Mr McGovern’s death was war caused.
2. On 30 October 2002 the Repatriation Commission rejected her claim for a pension on the ground that the death of the veteran was “not service related”.
3. Mrs McGovern sought a review of that decision from the Veterans’ Review Board. On 26 May 2003 the Board affirmed the decision. Mrs McGovern has now applied to this Tribunal to review the decision of the Commission.
4. Some matters are not in dispute and it is convenient to set them out at this juncture. It is accepted that Mr McGovern rendered operational service in the Royal Australian Air Force between 20 May 1943 and 23 May 1946. And it is accepted that Mrs McGovern was a dependant of Mr McGovern. What is in issue in the proceedings is whether Mr McGovern’s death was war caused. Indeed the written submissions[1] of the respondent narrow the contest even further by defining the issue in these terms:
The sole issue for the Tribunal to determine is whether there is material pointing to (as distinct from leaving open) a causal connection between the veteran’s alcohol habit and
a relevant circumstancethe circumstances of his operational service.[1]Paragraph 6 of Exhibit 16, amended, as indicated, in the course of the hearing.
Legislative Background
5. Section 13(1) of the Veterans’ Entitlements Act 1986 (Cth) provides that where the death of a veteran is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the dependants of the veteran.
6. As Mr McGovern had operational service, the determination of whether his death was war-caused is to be made by applying s 120(1) and (3) of the Act. That involves determining first the “kind of death” and then applying the four step process identified by the Full Court of the Federal Court in Repatriation Commission v Deledio[2].
[2](1998) 83 FCR 82 at 97-98
The Kind of Death
7. The death certificate records the causes of Mr McGovern’s death as myocardial infarct (instant) and bowel cancer (of 10 years duration).
8. In a report dated 3 June 1992 Dr M Stathis, a general surgeon, confirmed that Mr McGovern has “carcinoma of the hepatic flexure”. A pathology report from Queensland Medical Laboratory dated 16 November 1990 verified that “in the distal ascending colon is a red brown ulcerated plaque like tumour 6.5 cm x 4.5 cm occupying the entire circumference of the bowel wall”.
9. In light of this evidence we are satisfied that Mr McGovern suffered from cancer of the colon which was a cause of his death.
The Deledio Steps
10. The first step in Deledio requires us to consider all the material that is before us and determine whether that material points to a hypothesis connecting the death with the circumstances of the particular service rendered by the veteran. The hypothesis advanced here is that Mr McGovern drank to excess as a consequence of his war service and that drinking caused the onset of cancer of the colon.
11. The hypothesis advanced by Mrs McGovern[3] is that Mr McGovern’s reliance upon alcohol:
(a)was partly attributable to the fear and anxiety associated with serving in a dangerous location;
(b)was partly attributable to feelings of boredom arising as a result of the limited recreational activities on offer whilst on operational service;
(c)was partly attributable to feelings of loneliness and homesickness on the part of Mr McGovern;
(d)was partly attributable to the existence of a drinking culture within the armed services at the relevant time;
(e)would not have occurred but for his war service.
[3]Exhibit 15, applicant’s Statement of Facts and Contentions
12. The second step requires us to ascertain whether there is a Statement of Principles which has been made by the Repatriation Medical Authority. There is a Statement of Principles on Malignant Neoplasm of the Colorectum (Instrument No 1 of 2004). By reason of the decision in Repatriation Commission v Gorton[4] we are required to consider the claims of an applicant by reference to an earlier corresponding Statement of Principles (Instrument No 58 of 2002) if we consider that the claim of an applicant should be refused in considering the latest Statement of Principles on a disease. However, factor 5(c) of each instrument (which is the only factor said to have present relevance) is drafted in terms that are relevantly identical.
[4] (2001) 110 FCR 321; 65 ALD 609
13. The third step in Deledio requires us to consider whether the hypothesis raised is a reasonable one for the purposes of s 120(3) of the Act. This requirement will be met if a hypothesis fits, or is consistent with, the template provided by the Statement of Principles.
14. It is only in the final step that we are required to find facts. At that point we are required to decide whether we are satisfied beyond reasonable doubt that the death was not war-caused. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved beyond reasonable doubt.
Factual Background
15. Before considering these steps we should set out the factual background to the matter.
Service history
16. Mr McGovern rendered a period of service in the Royal Australian Air Force from 20 May 1943 (when aged just over 18 years) to 23 May 1946. He gave his occupation at enlistment as assistant baker. During most of his service he was mustered as a cook.
17. Mr McGovern rendered operational service as a member of 75 Squadron and 77 Squadron.
18. As a member of 75 Squadron he was posted to Hollandia on 24 June 1944, to Biak on 1 July 1944 and to Noemfoor Island on 22 July 1944.
19. Whilst on Noemfoor Island he transferred to 77 Squadron on 25 September 1944. As a member of that Squadron he was posted to Morotai on 20 November 1944 (he did not leave Noemfoor Island for Morotai until 7 April 1945) and to Brisbane on 13 November 1945.
The evidence of alcohol
20. These proceedings concern the application of the Statement of Principles for Malignant Neoplasm of the Colon (Instrument No 1 of 2004). So far as it is presently relevant, Clause 5 of that Statement of Principles is in these terms:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the colorectum or death from malignant neoplasm of the colorectum with the circumstances of a person’s relevant service is:
…
(c) drinking at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum
21. The Commission has conceded that factor 5 (c) of the Statement of Principles is satisfied per se, that is, that the cause of the veteran’s death of malignant neoplasm of the colorectum was related to his alcohol consumption. It contends however that the factor is not related to service as s 196B(14) of the Veterans’ Entitlements Act requires. That sub-section provides that a factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if, relevantly, it arose out of, or was attributable to, that service[5] or, in the case of a factor causing or contributing to a disease, it would not have occurred but for the rendering of that war service[6].
[5]section 196B(14)(b)
[6]section 196B(14)(f)
22. Evidence of the alcohol consumption of Mr McGovern was provided by a statement of Mrs McGovern that was admitted into evidence as well as an alcohol questionnaire that was tendered before the Veterans’ Review Board.
23. Mrs McGovern first met her husband in 1948. Mrs McGovern said in her statement:
Vincent drank alcohol at the time that I was introduced to him. Vincent informed me that he began consuming alcohol during the war. When I first met Vincent he was consuming approximately eight (8) glasses of heavy beer per day.
24. In 1952 Mr McGovern was employed as a baker. He would start work at 11:00pm in the bakery. At 4:00am he would deliver bread to outlying farms and towns. Mrs McGovern remarked:
During the course of his bread run he would regularly stop at pubs along the way to consume beer. After the end of the run he would return home and consume more beer. During this period he consumed approximately eight (8) glasses of heavy beer. In 1952 Vincent was still playing rugby league football. On weekends, after football matches, he would consume twelve (12) glasses of heavy beer with team mates.
25. Mrs McGovern has mentioned that between 1952 and 1992 Mr McGovern was employed as a chef, a café worker and as a meat worker. She said:
Vincent’s routine of consuming eight (8) glasses of beer on weeknights and twelve (12) glasses of heavy beer per day on weekends continued throughout this period.
26. The evidence of Mrs McGovern is that after Mr McGovern retired he maintained his consumption of alcohol. He would regularly consume alcohol with friends prior to dinner and then after dinner he would attend upon the RSL with friends to consume more alcohol.
27. Mrs McGovern stated that Mr McGovern’s alcohol consumption remained constant throughout the period between 1948 and August 2002.
28. Statements of Mr Desmond McGovern, the younger brother of Mr McGovern, were also before us. Mr Desmond McGovern said that he never saw Mr McGovern consume alcohol prior to the war. He also stated that his father did not permit his children to consume alcohol when they were under age. He also mentioned that the then legal drinking age of 21 years was strictly enforced in the local area and that if a person under age was seen attending premises serving alcohol they would be severely reprimanded.
29. We should also mention that statements of Mr John Clarke, a retired solicitor, were before us. Mr Clarke had been a close personal friend of Mr McGovern for some 40 years prior to his death. He stated that Mr McGovern was a “very seasoned drinker” with “a negative attitude towards his involvement in World War II”. Mr Clarke formed “the distinct impression that his service during the war was a very difficult period”. Mr Clarke “cannot recall the exact content of any conversations regarding Vincent’s war service however the sentiments he expressed in relation to his service were overwhelmingly negative”.
The evidence of Mr McGovern’s service
30. We have examined the following Operations Record Books:-
·75 Squadron for June 1944 to September 1944 (Hollandia to Noemfoor);
·76 Squadron for September 1944 to December 1944 (Momote to Noemfoor);
·77 Squadron for September 1944 to November 1944 (Momote/Los Negros to Noemfoor);
·22 Squadron for November 1944 (Noemfoor to Morotai);
·12 Repair and Salvage Unit May 1944 to August 1944 and July 1944 to November (Noemfoor/Tadji) 1944;
·Headquarters 1st Tactical Air Force for November 1944 to November 1945 (Noemfoor, Morotai, Tarakan, Labuan).
31. In examining the service rendered by Mr McGovern we have also considered the following sources of evidence:
·Three statements by Mr Stacey Wilson, who also gave evidence by telephone during the hearing. These mainly addressed the conditions of his service on Noemfoor from July to November 1944 as a member of the 12 Repair and Salvage Unit of the RAAF;
·Mr Kevin Olsen, a former Army cook, stationed at Milne Bay during World War II provided a statement that although there were minor differences in the duties and practices between Army and RAAF cooks, there was little recreation activities available on active service, most servicemen choosing to drink alcohol when provided with alcohol rations "approximately once a week";
·Dr Charles Roe's statement referred to his experience as medical officer to 76 Squadron RAAF on Noemfoor Island during the "second half of 1944". This coincided with the time that 75 Squadron (from 22 July 1944) and 77 Squadron (from 25 September 1944) were on Noemfoor Island, to each of which, during this time, the veteran was, successively, posted as a cook;
·Mr Richard Pelvin of Writeway Research Service Pty Ltd, an organisation specialising in research in defence and war records provided a Historical Research Report of the veteran's war service on Noemfoor and Morotai in 1944 and 1945, and gave evidence in person to the hearing;
·Dr David Wilson, military historian, also of Writeway Research Service Pty Ltd, and former head of the RAAF Historical Section of the Commonwealth Department of Defence, also prepared a historical research report addressing the applicant's claims, and provided evidence in person to the Tribunal. He informed the Tribunal that he had written a book on 75 Squadron entailing 10 years' research. His report and evidence addressed the veteran's service at Hollandia and Biak with 75 Squadron. As well, he gave evidence of the veteran's service on Noemfoor and Morotai with 77 Squadron and Headquarters 1st Tactical Air Force;
·Exhibit 14 comprised three chapters (XVI, XVII and XX) of the book 'The Approach to the Philippines' by Robert Ross Smith, published in 1953 by the Office of the Chief of Military History, Department of the Army, Washington. This was one of the reference sources cited by both Mr Pelvin and Dr David Wilson in their statements and to which they referred during their presentations of their evidence at the hearing. Each chapter is an account of the US Army operations, Chapter XVI referring to Biak, Chapter XVII to Noemfoor, and Chapter XX to Morotai.
32. Whilst the case for Mrs McGovern relied upon each of the matters set out in paragraph 11 above the main focus of the case, as it was refined in the course of the hearing, was that Mr McGovern was exposed to fear and anxiety during his operational service and that that fear and anxiety occasioned his drinking. What was relied upon was, it was said, the exposure of his Squadron to enemy action or his duties as a guard. We propose to set out the evidence that touches upon that subject.
33. We note at the outset that there is no reference in Mr McGovern’s Service Medical Record to his having experienced fear or anxiety or effects of alcohol, at any stage during his service. However we accept that this does not, of itself, mean that he was not subjected to events that occasioned fear and anxiety.
34. Dr Wilson in his report dated 26 June 2005[7] stated: "... As a cook, the veteran would not be expected to participate in active operations against the enemy (or be) involved in any direct confrontation with the enemy...". He added, in giving his evidence at the hearing, that as a matter of course, Mr McGovern would have been required to take his regular turn of squadron guard duty, perhaps once a month, or every six weeks.[8]
[7] Exhibit 13 paragraph 10
[8] Transcript page 30 lines 17-19, 25-26
35. Mr McGovern served in Hollandia from 24 June 1944 until 1 July 1944. There was no evidence available before us regarding the operational circumstances in Hollandia during his posting for one week in that location.
36. Mr McGovern served in Biak from 1 July 1944 until 22 July 1944. Dr David Wilson gave evidence of conditions on Biak where he agreed in evidence that Mr McGovern could have been with 75 Squadron in Biak at this time.
37. Dr David Wilson in his report outlined the historical background of this
operation. The US Army 41st Division assaulted Biak on 27 May 1944 to secure the island's three airfields, one being Mokmer. These airfields formed the base for fighter aircraft to cover the US Army 158th Regimental Combat team's landing on Noemfoor to the west of Biak on 2 July 1944. The Americans declared Biak secure by the end of June 1944, and RAAF 75 and 80 Squadrons arrived at Mokmer airfield on 1 July 1944. These Squadrons bombed and strafed pockets of Japanese resistance in a “mopping up” operation, and also undertook convoy patrols in support of the US Army Noemfoor operation. Dr David Wilson records that, in Biak, there is no Unit History Record of Squadron members being "involved in any ground actions, or that the airfield had come under enemy fire", and this is supported by the operational record book for 75 Squadron of July 1944.[9]
[9] Exhibit 18
38. There are no records of any enemy incursions into 75 Squadron area during the Squadron's Biak service period and any such incursions would have been recorded in 75 Squadron Operational Record Book. However Dr David Wilson went on to say[10]:
What we're talking about here is the fact that the Japanese were out there. There was a threat, possibly. I'm not saying there wasn't. We are talking about a period where there's a threat. There is a Japanese force out there of six or seven people, or 200 people, and they are a threat by their very presence, and you have to be aware of that and you have to make security arrangements to prevent them from doing something you don't want them to do. But there is no record that - we've got a security screen around our bases- there is no record to say that the Japanese actually went - penetrated the security screen.
... There is always going to be a threat to these airfields, but it is a controlled threat. It is not a terribly serious one in the sense that it didn't affect the operations or the squadrons that operated out of those airfields, and there were - I cannot recall any incursions into airfields once we had them under control and put a security screen - the Army put a screen, it might have been five or six miles away from the airfield, and that was the idea, to secure the airfield. So, there's always a threat, but it was a fairly controlled and benign one.
[10]Transcript page 35, lines 15-22; page 36, lines 12-19.
39. Dr David Wilson amplified on his term "benign threat" by remarking "... the Japanese, at this stage, in 1944 and '45, were starving".
40. In addition, Chapter XVI of exhibit 14 describes two incidents, one just before, and the other during, the period of Mr McGovern’s brief period of service in Biak. The first incident pertained to a prolonged and fierce fight, from 19 to 25 June 1944, waged by several elements of the US 162nd and 186th Infantry Regiments to clear the Japanese from an elevated natural underground complex known as West Caves, about 1000 yards north of Mokmer airfield. This was the last position held by the enemy from which Mokmer airfield could be seriously threatened. The battle had included pouring five drums of gasoline into a cavern through surface crevices and igniting them with flame throwers, followed by repeated counter-attacks by the Japanese, including bayonet charges and hand-to-hand fighting, with the eventual overcoming of all Japanese resistance. It was not until 27 June 1944 that the Americans could enter the innermost reaches of the caves. The scene was described[11] in this way:
The entire cave area was strewn with Japanese bodies or parts of bodies. One gruesome area had apparently been used as an aid station and another possibly as a butcher shop for cannibalistically inclined survivors of the carnage since 18 June.
[11]Exhibit 14, at page 375
41. We consider that it is possible that, either by formal exchange of intelligence between officers of the US Infantry and the RAAF squadrons, or by informal communication between personnel, Mr McGovern and his fellow airmen may have learned of this incident of only four days before their arrival at Mokmer airfield.
42. The second incident was related to the later clearing by the Americans of a more distant but similar underground complex known as East Caves. The incident is described thus[12]:
On 15 July six souvenir hunters of the Royal Australian Air Force (elements of which were staging through Biak for operations farther west) were killed near the caves. Tanks and infantry were sent into the area to mop up the remaining Japanese and recover the Australian dead. On the 16th and 17th, three badly mutilated bodies of Australian airmen were found and two Japanese machine-gun nests were wiped out. On the 20th the infantry and tanks returned to the caves, found the other Australian bodies, and eliminated the last enemy resistance.
[12]Id. at page 384
43. Dr David Wilson was able to inform us in his evidence that these airmen, actually four in number, were from 80 Squadron. Dr David Wilson, when asked during his cross-examination whether the Australians would have known of the deaths of these 80 Squadron members, opined that members of 75 Squadron “may not have”. This leaves open the alternative possibility that 75 Squadron personnel may have learned of these deaths, at least by rumour, or even by formal warning advice from their Commanding Officer.
44. In examining the possible operational stress to which the veteran could have been exposed during his Squadron's brief Biak posting, we note that:
·the veteran could have been aware that, although the US Infantry already had overcome Japanese resistance before his Squadron arrived on Biak, in their vicinity remained desperate enemy remnants; and
·having stood guard duty perhaps once in that three week period he was exposed to the threat of the enemy.
45. These certainly raise the possibility that, during this brief service on Biak, the veteran experienced a threat of serious injury or death, from ferocious, even cannibalistic, Japanese soldiers.
46. Mr McGovern served in Noemfoor Island from 22 July 1944 until 7 April 1945. An extract from his Service Document records that he moved with 75 Squadron to Noemfoor Island on 22 July 1944. On 25 September 1944, he was transferred to 77 Squadron. The 77 Squadron began moving to Morotai, the Headquarters of the 1st Tactical Air Force on 20 November 1944. However, Dr David Wilson has made a statement that Mr McGovern did not move with 77 Squadron to Morotai until 7 April 1945.
47. Mr Pelvin provided the Tribunal with historical background on the conflict on Noemfoor Island, from shortly before the veteran arrived with 75 Squadron, until transferring to 77 Squadron. In cross examination, he said that one of his historical sources, 'The Approach to the Philippines', was one of the so-called 'Green Books' American official history series, which he described as "fine works of scholarship". He said that the Americans' pre-invasion estimation of the Japanese troop numbers on the island of "2,850 to 3,250 troops, with a combat strength of 1,600 to 2,000 men" was too high and was later revised to no more than 2000; the figure which he obtained from his other sources was about 1700 Japanese.
48. The American campaign for Noemfoor Island can be summarised as follows.
49. The initial assault (by CYCLONE Task Force) began on 2 July 1944, some three weeks before 75 Squadron's arrival. The Americans' main objective was Kamiri airfield. Robert Ross Smith writes[13]:
But at Noemfoor, the landing was to be made in the in the face of the enemy’s strongest defenses, known to be located in the Kamiri Drome area. Yellow Beach, as the landing area was designated, extended approximately 800 yards along the western end of the airfield, which was situated almost at the high watermark. The reef presented fewer hazards there than elsewhere... Moreover, landing at Yellow Beach had the advantage of placing the assault troops immediately on their objective, permitting a rapid seizure of Kamiri Drome before the Japanese could recover from the shock of the naval and air bombardments...
To ensure that the assault troops would get ashore with minimum casualties, the landing plan demanded the heaviest naval bombardment yet delivered in the South-west Pacific area …
Despite extensive enemy defensive preparations in the Kamiri Drome area the CYCLONE Task Force' losses on D Day were only 3 men killed (1 accidentally), 19 wounded, and 2 injured... The Japanese suffered much more heavily. About 115 were killed or found dead and 3 were captured.
[13]Exhibit 14, at pages 405 and 411
50. On 3 and 4 July 1944 the 503rd Parachute Infantry made two drops on Kamiri airfield. Through miscalculation, and lack of communication, the drops proved to be much more hazardous than expected, because of the limited size of the airfield. Of 1424 officers and men, there were 128 jump casualties, an unusually high rate of almost 9%. Plans for further drops were abandoned, in favour of flying the remainder of the regiment to Kamiri airfield as soon as it was repaired to receive C-47's. Torrential rain and lack of heavy equipment delayed this; and on 11 July 1944 these troops were flown to Mokmer airfield on Biak, and then travelled on landing craft to Noemfoor Island.
51. Meanwhile, on 5 July 1944 the Japanese had counter-attacked unsuccessfully against elements of the US 158th Infantry, losing 200 men at Hill 201, the remainder withdrawing to the interior of the island[14]. Smith writes that thereafter "... operations on Noemfoor Island evolved into a series of patrol actions as the Allied forces extended their control over the island and rapidly expanded the airdrome facilities"[15]. On 5 July 1944 the 3rd Battalion 503rd Parachute Infantry took up station at Kamiri Drome.
[14]Id. at pages 418-419
[15]Exhibit 14 at page 419
52. The American "mopping up" continued into September 1944. Mr Pelvin explained that "mopping up" entailed American infantry patrols being sent out to locate remaining pockets of enemy and eliminating them.
53. Chapter XVII of exhibit 14 pages 419 et seq provides an account of 'Mopping Up’ on Noemfoor Island, from 5 July to 31 August 1944. Battalions of the 503rd Parachute Infantry, based at Kamiri, particularly sought 400-500 Japanese survivors under Colonel Shimizu's command, making contact from 13 to 16 July, 23 to 25 July, 10-15 August, and finally 17 August 1944.
54. Eventually 1,730 Japanese were killed, and 186 were captured[16]. This presumably included 115 Japanese who were killed during the initial assault on the island on 2-3 July 1944, and additional counts of 14 and more than 200 on 3 July 1944. These figures would indicate that most of the soldiers of the Japanese garrison on Noemfoor were killed during this 'mopping up' stage, continuing into September.
[16]Id. at page 421
55. With regard to the veteran's service on Noemfoor Island, Mr Pelvin confirmed that 75 Squadron including Mr McGovern reached Kamiri airfield on Noemfoor on 22 July 1944. Mr Wilson stated that he arrived on Noemfoor Island with 12 Repair and Salvage Unit of the RAAF in August 1944. However Mr Pelvin’s evidence was that that Unit arrived at Kamiri only three days after 75 Squadron, on 25 July 1944 and this is supported (by the reference to "Table Tennis") by the entry for 25 July 1944 in Exhibits 17 and 25, the Operations Record Book for 12 Repair and Salvage Unit (RSU) for July to November 1944.
56. The entries in 75 Squadron Operations Record Book from 23 to 25 July 1944 record numerous enemy engagements over and in the vicinity of Noemfoor Island, including the Mahokwari area 50 miles across Geelvink Bay to the west of Noemfoor. Mr Wilson in his statement dated 7 October 2004, and in his telephone evidence to the Tribunal stated that his detachment of 70 men from 12 RSU sailed around Noemfoor Island for 36 hours while the Americans "did the job of taking the island". From the foregoing, it is not clear to us why Mr Wilson's 12 RSU detachment had to wait 36 hours before landing on Noemfoor Island; heavy fighting with the Japanese had concluded nearly three weeks before. However, his observation that the Americans were engaged "up towards the other end (of the Island)" would be consistent with the early "mopping up" stage, as would the involvement of 75 Squadron in various engagements, over those preceding three days, on and around the Island.
57. Mr Wilson has given evidence that when he first arrived in Noemfoor:
... I was confronted with the sight of casualties resulting from fighting between the Allied and Japanese soldiers. There was no way of avoiding the sight of casualties. All servicemen were exposed to the sight of casualties on Noemfoor.
58. In his statement dated 28 September 2005 Mr Wilson explained that by "casualties" he was referring to dead Japanese soldiers. In his evidence to the Tribunal he said that the Americans by then had had time "to gather up their dead"[17]. During his cross examination he said[18]:
[17]Transcript page 14, lines 24-25.
[18]Transcript page 16 line 27 to page 17 line 26.
"All right. And so then you went ashore?---Yes.
"Were there any dead bodies at the place that you landed?---No, no, we landed right at the end, and we had to walk to get - 30 yards across the road further, and then we started walking up towards where our camp site was, as it was just slightly up hill all the way.
"All right. Do you remember how far it was from the beach to your camp area?---I wouldn't have a clue.
"Would it be a matter of - can you help me this way? Would it be a matter of a short walk or a long walk?---I suppose it would be medium.
"A few hundred yards or less or more?---If I had to have a guess, I would - it was very hard, you know. You're sort of not concerned about that.
"That's okay. Thank you for trying. So how long was it after you started marching towards - - -?---Beg your pardon?
"After you started to go to your camp area, how long was it before you saw a body?---Before we saw a body? Well, almost instantly.
"Pretty close to the beach?---Yes, yes.
"All right. And you say you saw plenty?---Yes, that's right. There was a track up through there, and the bodies were lying alongside all close to the track - to the ground.
"And are you able to put a figure on the number of bodies you saw?---It would be very hard.
"Only a few, or many, many, many?---There would be quite a few.
"That was the first day, was it?---Yes, that's right.
"Were those bodies still there the second day?---We never ever went back to that area. We got just to our campsite, and we stayed there for the whole of our stay.
"So was it only on the first day that you saw these bodies?---Yes. The Americans were still pounding away at that stage.
"The Americans were still, what, bombarding the island?---Yes.
"While you were on it?---...... but that was up towards the other end, where, apparently, all the action was going on. Down our end, there was nothing but bodies.
"All right. This was the first day?---Yes."
59. Because there had not been any heavy fighting near Kamiri airfield for about three weeks, presumably the bodies of the dead Japanese soldiers had been there for some time. Being in the immediate vicinity of the airfield, it seems likely that Mr McGovern, on arriving with 75 Squadron three days earlier, also had seen such bodies.
60. Mr Wilson stated that he turned 21 years shortly before he departed for Noemfoor Island i.e. he was about 18 months older than Mr McGovern. In his first two statements, he stated that Kamiri airstrip was "across the road from where I was stationed". He was promptly assigned to permanent guard duties, mostly at night, to secure the area from infiltrations by the Japanese who had killed "many Allied servicemen". When cross-examined about such infiltrations, Mr Wilson said that they could hear the Japanese attempting to infiltrate. One night, he said, he heard shots, and learned that “an American guard was killed at the airfield". During his cross examination he told the Tribunal[19]:
So you didn't actually see the Japanese infiltrating you were told about it. Is that right?---Oh, no, we could hear them quite plainly at night. Like, you'd be woken up there. Everything is as clear as one thing. One night, we hear someone yell out a couple of shots, then we heard next morning that an American guard had been killed, one injured, and also, later on, one of the dumps was set on fire. We could see the fire quite plainly. I wouldn't have a clue how far it was from where we were to the other end of the island.
No, all right. So you could hear the noise at night?---Oh, look, you could hear the Japanese at night. Like, they would say, you know, 'Is that you, Joe?' you know, like, tried to get at some of our guards, you know, to give away their positions and that.
[19] Transcript page 18 lines 23-34
61. Further in his statement dated 28 September 2005 Mr Wilson stated:
... It (Kamiri) was known as one of the most dangerous strips in the Pacific. Servicemen who served on Noemfoor regularly witnessed airmen being killed at the strip. I can recall on one occasion a crash which damaged five planes. As a result of this crash five American airmen were killed... Because of its position it was not as long as other airstrips in the area. A short runway made it a very dangerous airstrip particularly in heavy traffic.
62. Dr David Wilson, in his evidence, referred to an RAAF airman receiving an award for rescuing an American airman from his aircraft.
63. Dr Roe was a medical officer to 76 Squadron, which was the companion Squadron to 75 and 77 Squadrons, on Noemfoor Island "during the second half of 1944". He stated that he did not know or meet the veteran, adding: "There was little communication between the individual squadrons within the wing. Living quarters for each Squadron were geographically separate, though all three Squadrons used the same airstrip for their operations". In paragraph 12 of his statement Dr Roe gave examples of "many stressful situations in active war service," such as "flying accidents to aircraft and pilots... loss of aircraft and pilot on missions... intermittent enemy action against our forces...". He added:
Non-combatant ground staff - cooks, medical and other orderlies, general hands etc, when not carrying out their regular duties, were required to act as guards to the Squadron camp and our aircraft. Duties were mainly at night, and the men were issued with rifles. Guard duty was stressful, particularly in the first few days after arrival of the Squadron at a new station, and when there was continuing ground fighting in the nearby areas.
64. We have noted Dr Wilson's evidence that during the veteran's service with 75 Squadron on Noemfoor Island there is no record of enemy incursions. However the other evidence summarised above from Dr Roe has not been challenged by the respondent.
65. Mr Pelvin, during his evidence, confirmed that the Japanese survivors were short of food. Chapter XVII of exhibit 14 records on page 422:
...About 1 August CYCLONE Task Force patrols began to discover Japanese bodies from which portions of flesh had been cut. Initially, this was not considered direct evidence of cannibalism, although increasing numbers of bodies with fleshy portions removed were later found. Finally, some American dead, left outside defensive positions overnight, were discovered in like condition. The prisoners began to report that cannibalism had been generally practised since 1 August, principally on freshly-killed Formosans. Some prisoners admitted eating human flesh themselves. In at least one instance a two-day-old cadaver had been used for food.
66. Other atrocities against Formosans, and Javanese, conscripted to the island by the Japanese, are also recorded in the above chapter on pages 421 and 422.
67. Exhibit 23 is the Operations Records of 77 Squadron following the veteran's transfer to it on 25 September 1944, and concludes with the Squadron still on Noemfoor on 30 November.
68. Apart from the records of the various flight operations, these contained no reference to ground contact with the enemy. Dr David Wilson told the Tribunal that the Squadron was involved in the staged preparation of the move to Morotai, to become part of the 1st Tactical Air Force. The Operations Records of Headquarters 1st Tactical Air Force (exhibit 26) conclude at Noemfoor on 25 January 1945, and commence at Morotai five days later. Among his concluding comments for December (sheet 26, third page) Squadron Leader Abel records:
The month of December found a feeling of expectancy and renewed interest amongst unit personnel caused by clear indications of an early movement to a new location viz MOROTAI. Daily news of enemy air raids on MOROTAI did nothing to deter the general enthusiasm; on the contrary, it acted as a further inducement to get to a location where "things were moving", after spending months of unexciting routine service life at NOEMFOOR. Morale was at its highest level.
69. From Dr Wilson's evidence, the veteran spent four more months after this on Noemfoor Island, presumably still on "unexciting routine service".
70. In summary, for the first six weeks following the arrival of 75 Squadron on Noemfoor Island on 22 July 1944 until early September, there remained numerous pockets of starving, even cannibalistic, Japanese survivors in Kamiri airfield's vicinity.[20]
[20] Exhibit 14 pages 419 et seq
71. There is the evidence of Mr Pelvin and of Dr Wilson of the US Infantry "mopping up" the Japanese for those weeks which had no direct impact on the RAAF personnel on the island. However, we also accept that, during this period, the veteran would have stood guard duty a number of times.
72. Mr Wilson, who was assigned to permanent guard duties mostly at night, in his statements, and during his cross-examination, described the attempted Japanese infiltrations. This coincided with the time that the veteran also was stationed on Noemfoor Island.
73. Dr Roe's unchallenged evidence was that "guard duty was stressful, particularly in the first few days after arrival of the Squadron at a new station". Furthermore, both Mr Wilson and Dr Roe described the "many stressful situations" on the airfield from flying accident and injuries or deaths of pilots.
74. There is material before us that, following his brief Biak experience, for the first six weeks, the veteran could have been exposed to additional operational stress on Noemfoor Island. Those events being:
·witnessing numerous Japanese dead bodies in the immediate vicinity of Kamiri airfield on arrival at Noemfoor;
·the threat of serious injury or death during guard duty against infiltration by desperate and cannibalistic enemy survivors;
·the prevailing stressful atmosphere on the airfield with numerous aircraft accidents;
·the learning of Japanese atrocities during the remainder of his posting on Noemfoor.
75. From September 1944 until Mr McGovern’s transfer to Morotai the following April where he served until 13 November 1945 it appears that he experienced a transition to a relatively monotonous service lifestyle.
76. It is clear from Mr Pelvin's statement and oral evidence, from exhibit 14 (pages 480-493), and Dr Wilson's letter dated 26 April 2006[21], that the veteran arrived in Morotai well after ground hostilities had ceased, and after the Japanese air raids from September 1944 to February 1945.
[21] Exhibit 20
77. There is no evidence that the veteran was exposed to operational stress in the course of service on Morotai.
The Application of the Deledio Steps
78. As it seems to us the whole of the material does point to an hypothesis connecting the death of Mr McGovern with the circumstances of his service and accordingly the first Deledio step is satisfied. There is a Statement of Principles and thus the second step is satisfied.
79. The difficulty in the applicant’s case lies, we consider, in the third step. There is, as we have set out, evidence that is capable of showing that Mr McGovern may have been exposed to events that may have caused him to be fearful and anxious. And, to a lesser extent, there is evidence that is capable of demonstrating that there were limited recreational activities that may have lead him to feel bored, lonely and homesick. But there is, in our view, no evidence that experiencing any of those emotions lead him or caused him to drink or to drink excessively. That is, there is material that points to the possibility of Mr McGovern being subjected to the emotions advanced in the hypothesis but what is missing, in our view, is the evidence that connects those emotions, the product of operational service, with the consumption of alcohol.
80. At this stage of the enquiry we are concerned to decide only whether the hypothesis is reasonable. And, as Mason CJ, Deane and McHugh JJ said in Bushell v Repatriation Commission[22]:
[A] hypothesis cannot be reasonable if it is ‘contrary to proved scientific facts or to the known phenomena of nature’. Nor can it be reasonable if it is ‘obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous’.
[22](1992) 175 CLR 408, at p. 414
81. To similar effect the Full Court of the Federal Court said in East v Repatriation Commission[23]:
A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
[23](1987) 16 FCR 517 at p. 532
82. Here, in our view, and having regard to all of the material, there is no sufficient factual material before us to “point to” a reasonable hypothesis connecting the consumption of alcohol with the operational service. The hypothesis is, in that regard, unsupported by any evidence.
83. Mr Desmond McGovern has stated that his brother did not consume alcohol before his war service. This has not been challenged by the Commission. Whilst we accept that Mr McGovern would have started to drink alcohol after he enlisted in the Royal Australian Air Force there is no material before us to indicate, either directly or by reasonable inference, that he commenced drinking to excess as a consequence of operational service. Whilst there is evidence that Mr McGovern drank after his discharge from service (and whether immediately after or some time after is not established), the existence of that temporal link does not, in our view, establish a reasonable hypothesis connecting, in the requisite sense, the later development of excessive alcohol consumption with Mr McGovern’s operational service.
84. Mr Wilson and Dr Roe have pointed out that alcohol was available at Noemfoor Island at the time when Mr McGovern was there. Mr Wilson has stated that, although his Unit received no alcohol at Noemfoor Island "other units received their usual rations" of two bottles of beer per week. Dr Roe and Mr Wilson mentioned that beer could be purchased from canteens, and other sources. We also appreciate that there were some stressful situations on Baik and Noemfoor Island. However, there is simply no evidence that such situations influenced Mr McGovern in his alcohol habits.
85. We also wish to comment that the observations of Mr Clarke that the service of Mr McGovern was “a very difficult period” and that “the sentiments he expressed in relation to his service were overwhelmingly negative" do not assist us as a veteran’s service can be unsatisfactory for a variety of reasons. A conclusion by a veteran that his service was “very difficult” or the like would not, we think, lead to the inference that the veteran drank, or drank excessively, as a consequence of that service.
86. We reach the same conclusion in relation to the final aspect of the hypothesis, namely, that the reliance upon alcohol would not have occurred but for the war service. There is, we consider, no evidence to sustain that proposition.
Decision
87. For the above reasons, we would affirm the decision under review.
I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC, Mr P M McDermott Senior Member, Associate Professor J B Morley RFD, Member.
Signed: ..............Signed.......................................................
Leisa Pendle, AssociateDates of Hearing 19 April and 4 September 2006
Date of Decision 21 December 2006
Counsel for the Applicant Ms S.D. Anderson
Solicitors for the Applicant Mullins Lawyers
Representative of the Respondent Mr J Stoner, Advocate
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