IN THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Members: The Hon. Mr. Justice Woodward (President)
The Hon. Mr. Justice Cox (Deputy President)
The Hon. Mr. Justice Gallop (Member)
Number of pages - 12
HEARING:
Melbourne, 11 May 1990 (decision)
#DATE 11:05:1990
APPEARANCES:
Appearances unavailable.
ORDER: appeal allowed.
This is an appeal pursuant to s.20(1) of the Defence Force Discipline Appeal Act1955 against convictions by Defence Force Magistrate on 19 July 1989 at HMASCERBERUS in Victoria.
The appellant was convicted of two offences against s.33, and two offencesagainst s.60, of the Defence Force Discipline Act 1982. In respect of eachoffence, the appellant was fined the sum of $250 and made subject to forfeitureof all seniority as a Petty Officer to the date of his conviction. Section 33reads:
"A person, being a defence member or a defence civilian, who, on service land,in a service ship, service aircraft or service vehicle or in a public place:
(a) assaults another person;
(b) creates a disturbance or takes part in creating or continuing adisturbance;
(c) behaves in an obscene manner within the view or another person; or
(d) uses insulting or provocative words to another person;
is guilty of an offence for which the maximum punishment is imprisonment for 6months."
Section 60 reads:
"A defence member who, by act or omission, behaves in a manner likely toprejudice the discipline of, or bring discredit upon, the Defence Force isguilty of an offence for which the maximum punishment is imprisonment for 3months."
The relevant parts of the Charge Sheet read as follows:
"First Charge Defence Force Discipline Act section 33(d) Using ProvocativeWords
On the twenty-seventh day of January, 1989 at the Petty Officers' Mess, HMASCERBERUS did use provocative words to WRSR Rachel Lee GLEW W143737 by saying'I've got this uncontrollable urge to make love to you, or words to thateffect.
Second Charge Defence Force Discipline Act section 33(d) Using ProvocativeWords
On a date between the first day of November, 1988 and the twenty-fourth day ofMarch, 1989 at HMAS CERBERUS did use provocative words to WRSR Rachel Lee GLEWW143737 and WRCO Lisa Kay Waterman VOULLAIRE w143463 by saying 'I've got thisuncontrollable urge to make love to you, why don't you come and visit me?' orwords to that effect.
Charge Three Defence Force Discipline Act section 60. Prejudicial Behaviour
On a date between the ninth day of January, 1989 and the twenty-seventh day ofJanuary, 1989 at the Recruit School Parade Ground, HMAS CERBERUS, did behave ina manner likely to prejudice the discipline of the Royal Australian Navy byencouraging members of the Recruit School to rate the posteriors of femalerecruits whilst fallen in on the said parade ground.
Charge Four Defence Force Discipline Act section 60 Prejudicial Behaviour
On the seventh day of April, 1989 at Cabin 34, 4 Accommodation Block HMASCERBERUS did behave in a manner likely to prejudice the discipline of the RoyalAustralian Navy by making an improper remark to Recruit Training Class Victor by saying 'The next module will be a sex module and we will demonstrate on thegirls, or words to that effect."
At all material times, the appellant was a Petty Officer Instructor at theRecruit School at HMAS CERBERUS. In respect of the first charge, evidence wasgiven that on 27 January 1989 the appellant had used the words complained of toWRAN Glew in the Petty Officers' mess where she was on duty as a mess orderlyand that those present included WRAN Voullaire, who was performing similarduties to WRAN Glew, CPO Leonard and PO Fredericks. At the time the remark wasmade, the three Petty officers were drinking and conversing together in theMess at the conclusion of the day's work. The two WRANS were occupied inclearing away glasses and ashtrays. There were some 20 persons in the mess, butthe remark appears to have been made in the hearing of the abovenamed personnelonly. WRAN Voullaire had joined the Navy in August 1988 and WRAN Glew hadjoined one month earlier.
Evidence of the reactions of each witness who heard the remark is set outhereafter: CPO Leonard said he was "quite shocked and quite unimpressed thatthe comment had been made", but agreed in cross-examination that he did notremonstrate at the time nor report the incident, although he thereafter"monitored" the appellant "closer within his duties". WRAN Glew said she "justlaughed ... because I didn't think there was anything else I could do. Itdidn't really worry me so I thought 'Well, you can only laugh"'. Incross-examination she agreed that she was not fazed about the comment and thatit "sort of went in one ear and out the other". She said she had not run offand complained to anyone. WRAN Voullaire, when asked her reaction said "I wasjust - I didn't really take it - I was disgusted and I just let it go over myhead and I just went back to the Chiefs, Mess". PO Fredericks denied that theremark was said at all, but his evidence was rejected by the Defence ForceMagistrate.
There was ample evidence to justify the finding that the words alleged in thefirst charge were said. The appellant's challenge to the conviction is thatsuch words, in the circumstances, were incapable in law of constitutingprovocative words within the meaning of s.33 of the Defence Force DisciplineAct, 1982. Section 33 is to be found in Division 3 of the Act which bears theheading "Offences relating to insubordination and violence". Other offencesincluded in the Division are:
Assault on a superior officer (Sec. 2 5) insubordinate behaviour with respectto superior officer (Sec.26); disobedience of command (Sec.27); failure tocomply with direction of the person in command of a service ship, aircraft orvehicle (Sec.28); failure to comply with a general order (Sec.29); assault on aguard (Sec.30); obstruction of a service policeman (Sec.31); and assault on aninferior (Sec.34).
Section 32 makes it an offence for a defence member on guard duty or watch tosleep at his post, to be drunk at or to leave his post. While it is true thatin Reg. v Grant [1957] 1 WLR 906 at p. 908, when dealing with a charge ofmutiny which he defined as "an offence of collective insubordination,collective defiance or disregard of authority or refusal to obey authority",Lord Goddard C.J. said "everybody knows that insubordination means refusal tosubordinate oneself to authority, and it does not follow that a mere failure toobey an order amounts to insubordination", the term "insubordination" has alsoa broader meaning. The Oxford English Dictionary defines it as "the fact orcondition of being insubordinate; absence of subordination or submission;resistance to or defiance of authority; a refusal to obey orders;refractoriness, disobedience". It is in the broad sense of disobedience thatthe term is used in the heading to the division, although in s.26 the adjective"insubordinate" may well have the narrower meaning of being openly defiant ofauthority.
All the sections we have so far noted create offences which relate either toinsubordination or violence. Even s.32, which at first glance may seem to falloutside either category, does relate to insubordination in the broad sense,since being asleep or drunk at or absent from one's post without reasonableexcuse is incompatible with obedience to an order placing the defence member onguard duty or on watch.
It was submitted by the defending officer to the Defence Force Magistrate andby counsel for the appellant to us that provocative words for the purposes ofs.33 must be likely in the view of a reasonable person to lead to adisturbance.
The Defence Force Magistrate ruled that the word "provocative" should be takenin its ordinary sense, adding that the context in which the word is used in thelegislation is to be considered. He rejected the view that it should only begiven a meaning such as "exciting anger or violence" or "causing disturbance"and directed himself that the word should be construed "in the ordinary generalway along the lines of the Concise Oxford Dictionary definitions cited to [him)namely 'tending to cause provocation (of curiosity, anger, lust, etc.,intentionally annoying)". He continued:
"Provocation is defined as 'incitement, especially to anger etc., instigation,irritation, cause of annoyance'. I think that the words and their context haveto be considered, of course. The tendency to provoke is not to be measured interms solely of the effect which words have on a recipient or an addresseealthough any such effects are a relevant consideration".
In our view, this contained a misdirection. The section is derived from s.13 ofthe Naval Defence Act 1910, the previous service law applicable to the Navy.There was no corresponding Army or Air Force offence. That section provided:
" Every person subject to this Act who -
(a) fights or quarrels with any other person whether subject to this Act ornot: or
(b) uses threatening, abusive, insulting or provocative words or behaviourlikely to cause a disturbance,
shall be liable to imprisonment for a term not exceeding two years or any lesspunishment authorised by this Act."
The effect of the enactment of s.33 in the Defence Force Discipline Act 1982 isto extend the liability to conviction for such an offence to the whole of theDefence Force, to define with more precision the conduct formerly embraced bythe wide terms 'fighting' and 'quarrelling' and to confine the ambit of theoffences to service land, etc. and public places. The omission of the referenceto threatening or abusive words, and to "behaviour likely to cause adisturbance", does not in our view alter the essential character of the conductthe section is designed to prohibit. That character is indicated by the contextin which the section appears and by a consideration of the kind of behaviourspecifically mentioned, namely assaults, actual disturbances, behaviour withinthe view or hearing of another person which is offensive to ordinary standardsof propriety to a degree more marked than is conveyed by the expression"indecent" (see Reg. v Stanley [1965] 2 QB 327 at 333) and using insultingwords to another. The behaviour described in paras.(a) and (b) of the sectionconnotes actual force or disturbance while that contemplated by paras.(c) and(d) is of a kind likely to cause others to take offence in such a way that theuse of force, violence or the creation of disturbance might reasonably beexpected to ensue.
The words complained of in the circumstances found by the Defence ForceMagistrate could not reasonably be said, in our view, to have had thatcharacter. Tasteless, embarrassing and offensive though the remark was, itcould not reasonably have been interpreted in the circumstances as a threat bythe appellant of any immediate action. Nor could it be said that it was likelyto excite any overt response amounting to a disturbance from anyone present whoheard it. Though the words were such that they should have prompted animmediate rebuke from CPO Leonard and the other Petty Officer present, andmight well have led to some protest from the two WRANS, they could not be saidto be provocative within the meaning of s.33 of the Act. In our view, theappellant's conviction on the first charge should be quashed.
With respect to the second charge, there was some confusion as to which of twoincidents deposed to by WRAN Glew constituted the subject matter of the charge.Before the commencement of the taking of oral evidence, the Defending Officersought an order that further and better particulars be delivered, having regardto the lengthy period of time within which the offence was said to haveoccurred, namely between 1 November 1988 and 24 March 1989. The application wasrefused. The first witness to give evidence in relation to this charge, WRANVoullaire, referred to an incident which she claimed had occurred in lateDecember 1988 or January 1989. When the complainant WRAN Glew gave evidence,she spoke of the same incident, but also mentioned a further similar incidentinvolving the appellant and the two WRANS. No objection was, however, taken bythe Defending officer to this evidence; and the Magistrate did not refer to itin making his findings. Accordingly we say no more about it, except that itserved to highlight the unsatisfactory nature of the particulars.
The Defence Force Magistrate in announcing his finding said:
"The second charge is that on a date between the 1st day of November 1988 andthe 24th day of March 1989 at HMAS Cerberus, the accused did use provocativewords to WRAN SR Rachel Lee Glew W143737 and WRAN Cook Lisa Kaye WatermanVoullaire by saying 'I've got this uncontrollable urge to make love to you. Whydon't you come and visit me' or words to that effect. Here again, the crucialissues are whether the words were so used and if so, whether they wereprovocative.
WRAN Voullaire said that at some stage, she and WRAN Glew were walking towards2 block, between the Petty officers' Mess and the car-park and the hockeychange rooms. They saw the accused; he said hello. There was a short exchangebetween them. She said she only recalled a statement - 'He has anuncontrollable urge to make love to us and held like us to see him, to go andsee him some time.' I apologise, my note is not clear; whether it is 'come, or'go', I cannot say from the basis of my notes.
She said that she wasn't sure of the time but it was while she was doing hercourse, but she wasn't sure. It would be a month or a month and a half into hercourse, she said. Her course started on 13 November. She estimated that it waslate December or January. The time of the day, she said, was after 5.30 whenthey were coming back from scran.
In cross-examination, she was asked whether she had not said on some previousoccasion that they were not going to block 2, where they lived, but to a placecalled Millie's. Without detailing all of the cross-examination in this regard,it ended up, it seemed to me, saying in effect that if she had said that shewas going to Millie's on some previous occasion, she was mistaken. She seemedto be unsure in cross-examination whether the expression was 'make love to you'or 'go to bed with you'.
She agreed that she thought that it was strange for the petty officer - for theaccused to say something like that after having said hello. She gave noevidence, as I recall it, of any effect that those words had on her. WRAN Glewgave evidence that she and WRAN Voullaire were near the hockey club on someoccasion after secure. They were heading to block 2. The accused came out ofthe car-park. There was conversation and he said 'I have got thisuncontrollable urge to make love to you. I'm DRSI tonight at the rec. school.Why don't youse come over and see me,. She said that she was heading to block 2from the communications school after secure.
In cross-examination, she said it would have been about last January and it wasat about 1615. She said they were coming from com school and not from wherethey'd had any meal, that they'd marched up together, that they'd beendismissed and that they walked together. She said that the accused camestraight out and said it. She said she was not troubled by it. The accuseddealt with this charge of course in his evidence.
The charge was put to him in chief. He was asked whether he said the wordsalleged or anything like that and he said 'No'. In cross-examination heconfirmed his denial of the allegation in the charge. He said that he had seenWRANs Glew and Voullaire around the depot. He didn't recall seeing them at thehockey park. 'There was every chance.' he said 'that I'd said hello to them'.He said that there was no chance he said what they alleged; it was not hisvocabulary.
My assessment of the witnesses and their evidence, the respective evidence,involved considerations similar to those I've expressed in relation to thefirst charge and I will not repeat them here. I should add - and this is alsoperhaps a relevant consideration to a lesser extent in relation to the firstcharge - that there was no evidence that I perceived of any concoction orfabrication between WRANs Voullaire and Glew in relation to the allegation andindeed I did not detect any suggestion of any.
There is - shall I say - imprecision as to precisely when the matter occurredbut it seems to have been late one afternoon in about January 1989. I findmyself on this basis at the end of the trial satisfied that beyond a reasonabledoubt that in or about January 1989 at HMAS Cerberus the accused did say toWRSR Rachel Lee Glew and WRCK Lisa Kaye Waterman Voullaire words to the effect'I've got this uncontrollable urge to make love to you. Why don't you come andvisit me'.
The words constituted an aggressive sexual approach. They were used by a pettyofficer instructor to two junior WRANS. These matters dictate the conclusionthat they constituted the use of provocative words notwithstanding the benignreactions of the young ladies. Accordingly, I am persuaded beyond reasonabledoubt that the offence alleged in the second charge has been made out.Accordingly, I find the accused guilty of the second charge."
The accused's right to adequate particulars is specifically contained in R.9(5)of the Defence Force Discipline Rules. That sub-rule provides
"5. Particulars of any offence shall contain a sufficient statement of thecircumstances of the offence to enable the accused person to know what it isintended to prove against that person as constituting the offence."
It has been said in any event that, apart from statute, a court possesses aninherent authority to require that particulars of a charge be furnished(Johnson v Miller (1937) 59 CLR 467, Wickham v Cole [1957] Tas SR 111, Ex ParteGraham: re Dowling [1969] 1 NSWR 231, Marchesi v Barnes and Keogh [1970] VLR434, Barnes v Polito ex parte Polito [1967] QR 155 and Smith v Moody [1903] 1KB 56). In Johnson v Miller (supra) at p 497 Evatt J said,
"It is of the very essence of the administration of criminal justice that adefendant should, at the very outset of the trial, know what is the specificoffence which is being alleged against him. This fundamental principle has beendeemed applicable to bodies which are not strictly judicial in character."
We find it unnecessary to express a concluded view whether or not in thecircumstances adequate particulars were provided, although in the light of theevidence given by both WRANs it would seem that the prosecution ought to havebeen able to restrict the date of the offence to a much shorter time frame.
However, we are of the view that the Defence Force Magistrate again applied anincorrect test to the question of whether or not the words complained of wereprovocative within the meaning of s.33 and that, had he applied the correcttest, he could not, in the circumstances disclosed by the evidence, have beensatisfied to the requisite degree that the offence had been made out. Again weobserve that the remark was, in the circumstances, clearly tasteless andimproper but it did not amount to an offence against s.33. The conviction onthe second charge should be quashed.
In respect of the third charge, WRAN Martin gave evidence that on a day about afortnight after her induction into the Navy, she had been present as a memberof recruit squad Romeo on the parade ground during the ceremony of Colours. Hersquad had fallen in to the front of recruit squad Victor, of which theappellant was the PO Instructor. She was a member of the rear rank and theappellant and the recruit acting as class leader of victor squad were to thefront of that squad. On the parade being ordered to turn about, she and themembers of her squad were facing victor squad's position, the appellant and theclass leader thereof being approximately one metre in front of her and facingin the same direction. She gave evidence, which the Defence Force Magistrateaccepted, that she had heard the appellant say to his class leader concerningthe WRANs in his own squad, "What would you give them out of 10 for theirbums?". The class leader had said something in a muffled voice. She also saidthat at the time the comment was made there were a few people in the rank shewas in "who made a bit of a giggle" and that the appellant had turned around.Not long thereafter the parade had again turned about, so that WRAN Martin wasnow in a position about one metre to the front of the appellant who had thenasked his class leader "What would he give WRAN Martin a score out of 10 forher bum, and once again the class leader muffled something", and the appellanthad said, "Only a 4".
The only other prosecution witness to this incident was Smn Walker who was alsoa member of Romeo squad and who deposed to hearing the appellant say "Whatwould you give Martin out of 10?" He said he had not heard the words "for herbum" used, and that he had been 3 metres away from the appellant at the time.He did not claim to have heard any other person laugh or give an indication ofhaving heard the remark. No other members of either squad were called by theprosecution.
The conduct alleged in the charge was the giving of encouragement to members ofthe recruit school to give a score out of 10 in respect of the female recruits,posteriors. In our view, although the evidence justified a finding that suchencouragement was given to the recruit class leader, there was no basis for afinding that the appellant had encouraged any other member of his or of Romeosquad to engage in this exercise. The only evidence which suggests his words inrespect of the female members of his own squad were heard by anyone other thanthe class leader and WRAN Martin was the latter's evidence that at the time afew members in her own rank "had made a bit of a giggle". The conduct chargedinvolves active and intentional encouragement of more than one recruit to makean assessment of the above kind. The evidence does not justify the making ofsuch a finding. Since the charge related to conduct prejudicing discipline, thedistinction is important. A private joke, in bad taste, which happens to beoverheard by a few others is one thing. A general invitation to male recruitsto embarrass and demean female recruits is a very different matter. Theconviction on this charge must be quashed.
With respect to the fourth charge, there was evidence, some of which wasdisputed, but from which in our view the Defence Force Magistrate was entitledto find that the appellant had said to the members of his recruit squad, "Thenext module will be a sex module and we will demonstrate on the girls" or wordsto that effect. It was said during a module or class when he was training thesquad in proper kit maintenance. The squad consisted of 2 females and 16 males.The 2 recruit WRANS were present at the time, as were the remaining members ofthe squad. WRAN Linden described the incident thus, in her evidence-in-chief:
"Q. What occurred in that ironing module that you might recall?
A. PO Anning made a joke, a fairly rude joke. That's about all that happened.
Q. what was the joke that he made?
A. He made a joke about the next module was going to be a sex module.
Q. What did you understand that to be?
A. I just - it didn't really affect me. I just took it as a joke. I didn't takemuch notice of it really ...
In cross-examination, she was asked:
"Q. WRAN Linden, you say that you weren't embarrassed by comments that youallege were made by PO Anning?
A. Not particularly.
Q. It didn't worry you? You weren't troubled?
A It didn't trouble me, but I didn't think it was a nice thing."
WRAN Williams gave this account:
"A. When the module was about to finish PO Anning said 'After this module we'llhave a sex module, practical and theory and we'll demonstrate on the women, thegirls in the class'. And he said 'Sorry, rephrase that, only I will demonstrateon the girls'.
Q. Was your whole class present at that time?
A. Yes, sir.
Q. What was your reaction to that comment or statement?
A. I was embarrassed, sir, and annoyed.
Q. Could you tell the magistrate please why you were annoyed?
A. I was annoyed because I was getting sick and tired of all the comments PO Anning was saying about women."
In cross-examination, she said,
"Q. So you didn't feel it warranted any complaint?
A. No, sir.
Q. You weren't really fazed about it or upset?
A. Yes, sir.
Q. You say you weren't concerned about it, you treated it as a joke, don'tyou?
A. Yes, sir."
Smn Hussey gave the following evidence:
"A. We were doing the ironing module. He was showing how to iron the clothes.He was saying a few jokes as he was going along and then he just said 'The nextmodule will be a sex module,, which would be WRAN Linden and WRAN Williams -would have sex with him in block 1 and everyone just started laughing as - tobe a joke.
Q. What was your reaction to that?
A. I laughed because I thought it was - well, the way I heard it, it was a jokereally to me - so did everyone else.
Q. How long had you been the navy at that stage?
A. A week, I think, yes, a week.
A. He didn't actually say 'WRAN Linden and Williams' but I was just sayingtheir names to know who they are.
Q. To the best of your recollection what was said?
A. That the next mod would be a sex mod on the two WRANs in block 1 on me[sic]."
Smn Carter, when asked his reaction to the comments said:
"A. I had no reaction to it at the time as, you know, it didn't really meananything to me.
Q. In what way do you mean it didn't really mean anything to you?
A. I didn't take to - offence of it [sic]".
Once again, it can be said unequivocally that a comment such as this was, inthe circumstances, coarse, embarrassing and inexcusable. It seems to have beentreated as an intended joke by all concerned, although the female members andpossibly some of the males present did not find it in any way amusing. Itshould not have been said by a petty officer in such company, but while theDefence Force Magistrate found it to have been improper, and we would fullyendorse that epithet, the question still remains whether in saying what he didthe appellant behaved in a manner likely to prejudice the discipline of theRoyal Australian Navy.
When considering an army officer's conviction under the precursor to s.60,namely AMR 203 (1) (1x) which proscribed conduct to the prejudice of good orderand military discipline this Tribunal said in re Nickols' Appeal [1966] 9 FLR120 at 126,
"It remains only to consider, under the matters relating to the charge, whetherthe conduct of the applicant, in signing and causing the subject letter to beforwarded to the Military Board and delivering a copy to his commandingofficer, can properly be said to be to the prejudice of good order and militarydiscipline. In answering this question we have taken care to avoid giving anytreatise on the meaning of those words but to confine ourselves to theparticular matter in hand. Suffice it to say that if there is one requisite forthe maintenance of good order and discipline in the army or any other servicethen it is a due and proper respect for the hierarchy of authority upon whichthe conduct of service affairs is based. Conduct upon the part of a member ofthe forces which is in palpable disregard of that concept is calculated toengender disarray and confusion in the conduct of those affairs. We consider,therefore, that a letter couched in the terms referred to in the particulars tothe present charge can properly be the subject of an offence under reg. 203 (1)(1x)."
Behaviour likely to prejudice the discipline of the Defence Force may take manyforms, and we are unwilling to essay any exhaustive definition of the wordsemployed in s.60. They are clearly not confined to conduct (including the useof language) of an insubordinate or offensive nature.
In the manual of Military Law 1941 Aust ed. at p.427 a list of instances ofoffences said to be not uncommonly charged under the equivalent section of theArmy Act included offences involving dishonesty, borrowing money fromsubordinates and negligently injuring self. A similar list noted in HalsburyVol.41 (4th ed.) para. 430 indicated a broad spectrum of behaviour covered bythe phrase "conduct to the prejudice of good order and Naval (etc.)"discipline.
In Heddon v Evans (1919) 35 TLR 642 McCardie J in rejecting the propositionthat language amounting to such conduct would need to be insubordinate innature said (at p 647),
"Language may be used of such a nature, I think, as to constitute a breach ofgood order and military discipline although it may fall outside s 8 (whichdeals with insubordinate language). Military discipline is a grave and delicatething. An offensive or vulgar observation or remark, e.g., though neitherthreatening nor insubordinate, may be a breach of good order or discipline. So,too, may language which, though not offensive, vulgar, threatening orinsubordinate, is yet of such a character as to be improper and unpermissible[sic] and injurious to discipline. In my view, the last paragraph of the letterwas of such a character."
In that case, the paragraph being considered was:
"I am compelled to lay these facts before you for my own protection and alsofor the protection of all the men under your Command, and I may say that I havetheir unanimous and unsought support."
It formed part of a letter of complaint by a private soldier to his CommandingOfficer concerning a junior officer of the same unit.
Among the definitions of discipline given in the oxford English Dictionary is"the order maintained and observed among pupils or other persons under controlor command such as soldiers, sailors, the inmates of a religious house, aprison, etc." Behaviour which is prejudicial to the discipline of the DefenceForce can include behaviour whereby respect for that order is challenged orundermined not merely by the conduct of a person of inferior rank in respect ofhis superior officer but also by the conduct of the latter towards the former.Unfair and discriminatory treatment of a subordinate on grounds such as race,religion, sex or physical peculiarities could well prejudice the discipline ofthe Defence Force. So also could conduct which encouraged divisions ordisrespect between service personnel of differing race, religion or sex.
Nevertheless, in the circumstances of this case, we are of the view that astupid and improper comment such as the one complained of, even though causingthe WRANs involved some embarrassment, could not be said to amount to unfair ordiscriminatory treatment or to be otherwise of sufficient gravity, standingalone, to constitute behaviour prejudicial to the discipline of the DefenceForce. Accordingly, we consider that the conviction on the fourth charge shouldalso be quashed.
Before leaving this case, we should say that we are conscious of the problemsfacing the Services in dealing with cases of sexual harassment, particularlywhere rank differences are involved. The Services would not wish to lag behindgeneral community standards in such matters.
The two sections of the Defence Force Discipline Act which were relied upon inthis case are probably the most appropriate to be used in most cases wheredisciplinary action is necessary to punish and deter such harassment.
Although we have found that the words complained of in the first two charges inthe present case were not, in law, provocative within the meaning of sub-s33(d) of the Act, one can easily imagine language which, in givencircumstances, would be provocative to anger and could provoke a disturbance.The type of derogatory personal remark which invites a retaliatory slap, evenif that slap is unlikely to be delivered by a subordinate in all thecircumstances, could be sufficient. A remark to another person about thatperson's low moral standards could well constitute insulting words.
However it may well be that s 60 would provide the more appropriate basis for acharge in most cases of sexual harassment. This Tribunal, differentlyconstituted, has today given judgment rejecting an appeal in just such a case.In that matter, a male warrant officer on several occasions privatelyimportuned a female member, working under his direction, to have sex with him.His defending counsel did not dispute that, if the alleged conduct wasestablished, it amounted to a breach of s 60. It would certainly be difficultto maintain proper discipline between two people of different rank in suchcircumstances. It would also be difficult to maintain discipline generally ifsuch conduct became widely known and the offender lost the respect of hissubordinates.
When behaviour is sexist and objectionable but not such as to threatendiscipline, and words used are not insulting or provocative in law, the casemay well be one for counselling or reprimand rather than the laying of formalcharges.
Service establishments must continue to be places where language can be robustwithout giving rise to disciplinary proceedings. For example, drill sergeantsmust be given some latitude in the way in which they speak to other ranks onparade who are clumsy or lazy or inattentive. This may even involve a degree ofpersonal abuse which could prove embarrassing or annoying to the victim.
The line between what must be endured in the interests of discipline, and whatgoes so far that it actually imperils discipline, is one which those inauthority may often have to draw.
In the present case, for the reasons given above, we allow the appeal and quashthe four convictions.