IN THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
The Hon. Mr. Justice Northrop (President)
The Hon. Mr. Justice Cox (Deputy President)
The Hon. Mr. Justice Gallon (Member)
Number of pages - 19
HEARING:
SYDNEY, 21 May 1992 (decision)
#DATE 21:05:1992
APPEARANCES:
Appearances unavailable.
ORDER: appeal allowed.
REASONS FOR JUDGMENT
This is an appeal against conviction by court martial for an offence ofnegligently causing or allowing a service ship to be hazarded contrary tos.39(3) of the Defence Force Discipline Act 1982 ("the Discipline Act").
In darkness during the early hours of the morning of May 1990, the frigate HMASDarwin, while engaging in exercises with units of the USA fleet and otherships, ran aground on a shoal off the north east coast of the island of Oahu,Hawaii. At the time, the appellant, Lieutenant Bruce Raymond Victor, was theNavigation officer on board Darwin. On 15 February 1991 the appellant was foundguilty, convicted and reprimanded on the charge of negligently causing orallowing the ship to be hazarded contrary to s.39(3) of the Discipline Act.
Section 39 of the Discipline Act reads as follows:
"39. (1) A defence member who intentionally causes or allows a service ship tobe lost, stranded or hazarded is guilty of an offence for which the maximumpunishment is imprisonment for 5 years.
(2) A defence member who recklessly causes or allows a service ship to be lost,stranded or hazarded is guilty of an offence for which the maximum punishmentis imprisonment for 2 years.
(3) A defence member who negligently causes or allows a service ship to belost, stranded or hazarded is guilty of an offence for which the maximumpunishment is imprisonment for 6 months."
In addition to being charged with the offence under S.39(3) of the DisciplineAct, the appellant was charged with an offence under s.35 of the Discipline Actwhich reads;
"35. A defence member who, by act or omission, negligently performs a duty thathe is required by his office or appointment to perform is guilty of an offencefor which the maximum punishment is imprisonment for 3 months.
The second charge was heard by the court martial at the same time as the firstcharge, but upon the appellant being found guilty on the first charge, thesecond charge was not proceeded with and the court martial did not record afinding thereon.
The appellant has, pursuant to s.20(1) of the Defence Force Discipline AppealsAct 1955, appealed to this Tribunal against his conviction, but under thatsub-section an appeal is limited to a question of law "except by leave of theTribunal".
The offence of which the appellant was convicted was in the following terms:
"First Charge DDFD Act Section 39 Hazarding Service Ship
Between 0001 and 0445 on 7 May 1990 while on board HMAS Darwin and off thecoast of Oahu did negligently cause or allow the ship to be hazarded.
Particulars
1. Failing to prepare an adequate and safe navigation plan for use at the timeand place aforesaid in the passage of HMAS Darwin around the coast of Oahuand/or alternatively preparing a navigation plan for use at the time and placeaforesaid which was unsound and unsafe in that:
1.1 It failed to provide all relevant and available hydrographic informationfor the assistance of the officer of the watch and in particular failed tospecify on the chart on which the plan was drawn:
1.1.1 The presence of a second long-range light on Kaena Point.
1.1.2 Guidance on the possible presence of currents off both Kaena Point andKahuku Points.
1.2 It utilised a planned track on course 150 degrees requiring the ship topass within 1.5 nautical miles of a poorly defined lee shore and within onenautical mile of shoal water at relatively high speed.
1.3 It failed to provide the officer of the watch any information on the timesand ranges at which it might be expected lights could be raised or dipped.
1.4 It failed to provide any or any proper or adequate clearing bearings andradar clearing ranges.
1.5 It failed to provide any minimum depths to be monitored by the officer ofthe watch using the echo-sounder or otherwise.
1.6 It failed adequately or sufficiently to identify appropriate radarconspicuous objects or features suitable for use in fixing the ship.
2. Failing to provide proper guidance and supervision to unqualified andinexperienced officers of the watch in the execution of the navigation plan.
3. Failing to provide any or any proper or sufficient night orders to officersof the watch and principal warfare officer to ensure the safe conduct andpassage of the ship."
The second charge on which the court martial did not record a finding was inthe following terms:
"Second Charge DFD Act Section 35 Negligent Performance of Duty
Between 2000 and 0445 hours on 6 and 7 May 1990 on board HMAS Darwin and offthe coast of Oahu did negligently perform the duty required of him asnavigating officer in the proper and safe navigation of the ship.
1-3. The particulars set out in relation to the first charge are referred toand repeated.
4. Failing to ensure that the chart in use at the time, the ship's log andofficer of the watch notebook were adequately maintained and completed so as toenable the ship's track to be accurately reconstructed".
The grounds of appeal, as amended pursuant to leave granted on 27 November1991, were as follows:
1. That the conviction is unreasonable, or cannot be supported having regard tothe following matters of evidence:
(a) that there was no evidence or no sufficient evidence that the appellant'sconduct had caused the ship to be hazarded;
(b) that there was no evidence or no sufficient evidence that the navigationplan prepared by the appellant was -
(i) defective;
(ii) lose than the standard contemplated by the Defence Force Discipline Act,s.11;
(c) the fact that the appellant had complied with all directions and ordersgiven to him;
(d) his special circumstances at and prior to the date of the incident in termsof fatigue and duties required of him;
(e) the fact that the appellant was standing watches in the Operations Room;
(f) the fact that the Executive Officer, an experienced navigator, was incommand and excused the appellant from further duty prior to the incident.
2. That in all the circumstances of the case the conviction is unsafe orunsatisfactory.
3. The Judge Advocate should have ruled in favour of the submission made to himthat the appellant had no case to answer.
4. The Judge Advocate should have withdrawn the prosecution case against theappellant at the conclusion of the evidence.
5. The Judge Advocate should have ruled that the charge sheet was bad forduplicity and oppressive."
Counsel for the appellant argued the last ground of appeal first. It isdesirable to consider ground 5 first.
Although the appellant was charged with three other accused of the offence ofnegligently causing or allowing his ship to be hazarded and the offence ofnegligent performance of duty, no objection was taken to the identical chargesagainst the other accused on the grounds of duplicity. It is quite clear,however, that counsel for the appellant took the point and submitted that theprosecution should elect upon which offence it intended to rely. Thatsubmission was overruled by the judge Advocate who held that the charge ofnegligently causing or allowing his ship to be hazarded did not involve anyduplicity and he rejected the application.
The relevant provisions of the Discipline Act are contained in s.66(1) ands.141A which are in the following terms:
"66(1) Each punishment imposed, and each order made, by a service tribunalshall be imposed or made, as the case may be, in respect of a particularconviction and no other conviction."
"141A(1) Where it appears to -
(a) a summary authority, before dealing with or trying a charge or at any stageof dealing with or trying a charge;
(b) a convening authority, at any stage when a charge is before him undersection 103;
(c) the judge advocate of a court martial, before the court martial tries acharge or at any stage of the trial of a charge; or
(d) a Defence Force magistrate, before trying a charge or at any stage oftrying a charge,
that the charge is defective, the summary authority, convening authority, judgeadvocate or Defence Force magistrate, as the case may be, shall make suchamendment of the charge as he thinks necessary unless the amendment cannot bemade without injustice to the accused person.
(2) In sub-section (1), 'amendment' includes the addition of a charge or thesubstitution of a charge for another charge."
The Defence Force Discipline Rules are quite specific, particularly thefollowing:
"8. (1) A charge against an accused person shall be entered on a chargesheet.
(2) A charge sheet for the hearing of a proceeding before a summary authoritymay contain more than one charge.
(3) A charge sheet for the trial of a person by a court martial or a DefenceForce magistrate may contain more than one charge if the offences charged -
(a) form, or are part of, a series of offences of the same or a similarcharacter;
(b) are founded on the same or closely related acts or omissions;
(c) are founded on a series of acts done or omitted to be done in theprosecution of a single purpose; or
(d) are alternative to other charges in the charge sheet.
(4) At the nearing of a proceeding before a summary authority, not more thanone person shall be charged in the one charge sheet.
(5) At the trial before a court martial or a Defence Force magistrate, 2 ormore accused persons may be charged in the same charge sheet with offencesalleged to have been committed by them separately if the acts or omissions onwhich the charges are founded are so connected that it is in the interests ofjustice that they be tried together."
(6) Nothing in sub-rule (4) prevents a summary authority, at the hearing of aproceeding, from directing that 2 or more accused persons be dealt with ortried jointly in those proceedings in respect of -
(a) an offence alleged to have been committed by them jointly; or
(b) offences alleged to have been committed by them separately if the acts oromissions on which the charges are founded are so connected that it is in theinterests of justice that they be dealt with or tried together."
(1) A charge shall state one offence only.
(2) A charge shall consist of 2 parts, namely -
(a) a statement of the offence which the accused person is alleged to havecommitted; and
(b) particulars of the act or omission constituting the offence.
(3) A statement of an offence shall contain -
(a) in the case of an offence other than an offence against the common law - areference to the provision of the law creating the offence; and
(b) in any case - a sufficient statement of the offence.
(4) Without prejudice to any other sufficient manner of setting out thestatement of an offence, the statement of an offence shall be sufficient if itis set out in the appropriate form in the Schedule.
(5) Particulars of an 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.
(6) At a trial by court martial or a Defence Force magistrate, 2 or moreaccused persons may be charged jointly in 1 charge of an offence alleged tohave been Committed by them jointly."
The submission on behalf of the respondent to the appellant's objection on theground of duplicity was the same submission as was accepted by the JudgeAdvocate at the court martial, namely that the charge stated one offence onlyand therefore complied with the above statutory provisions.
Whether a statutory provision creates one or more than one offence is a matterof construction. In Romeyko v Samuels (1972) 19 FLR 322 at 345, Bray CJadverted to such statutes in the following terms:
"The true distinction, broadly speaking, it seems to me, is between a statutewhich penalizes one or more acts, in which case two or more offences arecreated, and a statute which penalizes one act if it possesses one or moreforbidden characteristics. In the latter case there is only one offence,whether the act under consideration in fact possesses one or several of suchcharacteristics. Of course, there will always be borderline cases and if it isclear that Parliament intended several offences to be committed if the act inquestion possesses more than one of the forbidden characteristics, that resultwill follow."
Romeyko v Samuels was cited with approval by Woodward J in the AustralianIndustrial Court in Bowling v General Motors Holden (1975) 8 ALR 197 at 217.See also Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 per Northrop J at pp260-261 and O'Brien v Fraser (1990) 66 NTR 9 at pp 11-12.
As a matter of construction, s.39 of the Discipline Act creates a number ofdifferent offences. In particular s.39(3) creates offences of negligentlycausing a service ship to be lost, negligently allowing a service ship to belost, negligently causing a service ship to be stranded, negligently allowing aservice ship to be stranded, negligently causing a service ship to be hazarded,and negligently allowing a service ship to be hazarded.
We are clearly of the opinion that the Discipline Law Manual, Volume II,correctly reflects the proper construction of s.39(3) under notes to theprovision and under the heading "Alternative Charges""
"... where the principal charge alleges that the accused negligently caused thestranding or hazarding it may be appropriate to include an alternative chargeof negligently allowing the stranding or hazarding (as the case may be)."
It is interesting to note that the predecessor to s.39(3) of the Discipline Actwhich was s.19 of the Naval Discipline Act 1957 (Imp) was in the followingterms:
"19. Every person subject to this Act who, either wilfully or by negligence
(a) causes or allows to be lost, stranded or hazarded any of Her Majesty'sships or vessels;
or
(b) causes or allows to be lost or hazarded any of Her Majesty's aircraft,shall be liable, if he acts wilfully or with wilful neglect, to imprisonmentfor any term or any less punishment authorised by this Act, and in any othercase to imprisonment for a term not exceeding two years or any less punishmentso authorised."
Likewise that section was construed as creating a number of alternativeoffences. In notes to s. 19 in the Admiralty Memorandum on Naval Court MartialProcedure (BR 11) which is now obsolete, there appears:
4. 'Causes or allows'; the ordinary dictionary meaning must be given to thesewords (causes - effects or brings about, allows - permits) except that a personis not to be convicted of allowing an occurrence unless some act or omission onhis part has contributed to it."
The Manual of Naval Law, Chapter 8, (the successor to BR 11 and also nowobsolete) construed s.19 as follows:
"8. 'Causes or allows'; the ordinary dictionary meaning must be given to thesewords (causes - effects or brings about, allows - permits) except that a personis not to be convicted of allowing an occurrence unless some act or omission onhis part has contributed to it. The following examples will help to illustratethe difference between 'causes' and 'allows':
(a) if the Captain were on the bridge personally directing operations when adisaster occurred he should Se charged with 'causing' and not with'allowing';
(b) if the Captain were on the bridge when some error in an order given by theNavigation Direction Officer caused the ship to run ashore, 'allowing' might bethe more appropriate charge against the Captain, with the direct charge ofcausing, the grounding against Navigating Officer, but this must depend on thecircumstances;
(c) if a Captain were below at the time of a disaster and the prosecutionmerely contend that he ought to have been on the bridge, he should normally becharged under section 7 with neglect of duty in leaving the bridge incircumstances which should be stated, or In not being on the bridge when heshould have been; and
(d) if the Captain (or Navigation Direction Officer) were to be tried for adisaster to his ship while in charge of a pilot when a 'common degree ofattention' on his part 'would have prevented the disaster' see RI Article 3573a charge of 'allowing' would be correct.
The above examples are intended merely to give general guidance. Whether tocharge the accused with 'allowing' or 'causing' the occurrence can only bedecided upon the circumstance and merits of each particular case.
However, if during the course of a trial, it becomes clear that a charge of'causing HMAS ... to be lost etc' should have been more properly drawn asallowing HMAS ... to be lost', a court may approve the amendment of the chargeunder the provisions of Article 1336. Similarly, a court would be entitled tobring in an alternative finding of 'not guilty of causing' but guilty of'allowing HMAS ... to be lost' if that was its view of the evidence - under theprovisions of NDA section 68(3)(b)."
That the verbs "to cause" and "to allow" have different meanings is fullydemonstrated by reference to English and judicial dictionaries. It is furtherillustrated by reference to the authorities. Counsel for the appellant provideda list of those authorities but it is unnecessary to refer to all of them.
In O'Sullivan v Truth and Sportsman Limited (1956) 96 CLR 220, the High Courthad to consider in a statutory provision the words "cause to be offered forsale". After reviewing some of the earlier English authorities, the High Court(Dixon CJ, Williams, Webb and Fullagar JJ) said at p 228:
"On the authority of these cases in the article on Criminal Law in Halsbury'sLaws of England, 3rd ed., vol 10, par 519, p 279, what amounts to causing islaid down as a proposition of law as follows: If the charge is of causing anact to be done it must be shown that the accused had knowledge of the facts(Lovelace v Director or Public Prosecutions (1954) 3 All ER 481; (1954) 1 WLR1468). Before a man can be convicted of causing he must be in a position ofdominance and control so as to be able to decide whether the act should be doneor not (Shave v Rosner (1954) 2 QS 113); Lovelace v Director of PublicProsecutions (1954) 3 All ER 481; (1954) 1 WLR 1468)'. This appears to meanthat when it is made an offence by or under statute for one man to 'cause' thedoing of a prohibited act by another the provision is not to be understood asreferring to any description of antecedent event or condition produced by thefirst man which contributed to the determination of the will of the second manto do the prohibited act. Nor is it enough that in producing the antecedentevent or condition the first man was actuated by the desire that the secondshould be led to do the prohibited act. The provision should be understood asopening up a less indefinite inquiry into the sequence of anterior events towhich the forbidden result may be ascribed. It should be interpreted asconfined to cases where the prohibited act is done on the actual authority,express or implied, of the party said to have caused it or in consequence ofhis exerting some capacity which he possesses in fact or law to control orinfluence the acts of the other. He must moreover contemplate or desire thatthe prohibited act will ensure."
The meaning of "to allow" has been discussed in other authorities whichdemonstrate that to allow a thing to be done or omitted there must be somedirect or indirect sanction of it. See, for example, DeKuyper v Crafter [1942]SASR 238.
Richards J referred to the definition of the word in Stroud's JudicialDictionary and went on to observe that to allow is at least as wide as topermit, if not wider.
In Gilbert v Gulliver [1918] VLR 185 at 189 Cussen J said that ordinarilyspeaking, before a person can be said to "allow" anything, there must besomething in the nature of actual knowledge or connivance or in some casesextensive delegation of authority. Cussen J went on to observe that the meaningof the word "allow" may vary having regard to the circumstances and in somecases to the class of enactment in which it was found.
What is clear from all the authorities is that "to cause" and "to allow" havedifferent meanings. As stated earlier, the different meanings are recognised inthe Discipline Law Manual, Volume I, in the examples of specific offencesagainst s.39 of the Discipline Act and the reference to the behaviour of theaccused consisting of something done by him or a failure by him to act.
The submission on behalf of the appellant is correct, namely that the word"cause" refers to an act or actions or antecedent conditions which bring aboutor produce in a positive sense a certain effect or consequence, whereas theword "allow" refers to permitting or standing by as someone else causes thateffect or consequence.
Where an offence is charged in the alternative there is duplicity (Cotterill vLempriere (1890) 24 QBD 634). It is a fundamental rule that the convictionitself shall be free of duplicity (Iannella v French (1968) 119 CLR 84; Burtonv Samuels (1973) 5 SASR 201)
Accordingly, the first charge against the appellant that he did negligentlycause or allow the ship to be hazarded contrary to s.39(3) of the DisciplineAct and the conviction recorded on that charge were both bad for duplicity.
We turn to consider what the consequences are and whether the conviction mustbe set aside. The statutory prohibition in r.9 of the Defence Force DisciplineRules that a charge shall state one offence only is not a mere matter ofpleading.
A contravention of that prohibition is positively illegal.
The history of statutory provisions such as r.9 was expounded by Isaacs CJ inMunday v Gill (1930) 44 CLR 38 at pp 62 et seq. Isaacs CJ, after referring todecided authorities, observed that trying an accused person for many differentoffences is not a matter of mere irregularity and that a provision there underconsideration (s.57 of the Justices Act 1902 (NSW)) in similar terms to r.9separates offences from first to last by the necessary implication of itsprohibitory words.
Apart from statutory prohibition, it is well settled law that but one offencecan be proved under one charge. Except to prove intent or system or to excludeaccident or mistake, evidence that an accused person committed other likeoffences is seldom relevant to the issue of guilt. That is the reason that aprosecutor can be compelled to specify which act is the subject of thecharge.
In Johnson v Miller (1937) 59 CLR 467 Dixon J (as he then was) said at p 489that a prosecutor clearly should be required to identify the transaction uponwhich he relies and he should be so required as soon as it appears that hiscomplaint, in spite of its apparent particularity, is equally capable ofreferring to a number of occurrences each of which constitutes the offence thelegal nature of which is described in the complaint. For a defendant isentitled to be apprised not only of the legal nature of the offence with whichhe is charged, but also of the particular act, matter or thing alleged as thefoundation of the charge.
In the same case, Evatt J agreed that in dismissing a complaint on the groundthat it was defective in substance and that the defendant was prejudiced by thedefect, the magistrate was warranted by law in acting as he did apart from anystatutory provision. Evatt J. approved the observations of Napier J in Tucker vNoblet (1924) SASR 326 at p 340 that at the outset of the hearing theprosecutor may be called upon to select his charge and particularise hiscomplaint and that, in the absence of the necessary information and as a lastresort, the Court has inherent power to dismiss the complaint. The ultimatesanction is and must be dismissal of the complaint.
In Ex parte Graham; Re Dowling (1968) 88 WN (Pt 1) NSW 270 at 282, Asprey JAextended the operation of the prohibition in s.57 of the Justices Act 1902 tocases where evidence is led to prove conduct which comprises a continuity ofaction or a series of connected acts. He said that in cases of this type wherethe evidence adduced bases both proof of conduct of the kind so described, andcalls upon a defendant to answer two or more separate offences upon the singleinformation, a conviction upon the offence charged in the information is bad.The case under consideration was a charge of negligent driving where theprosecution sought to prove three different incidents as constituting onecontinuing offence. But for present purposes, Ex parte Graham: Re Dowlingconfirms that a failure to comply with a statutory requirement in termsprohibiting a charge stating more than one offence is not a mere irregularityand if a conviction thereon is recorded, it must be held bad for duplicity andset aside.
The authorities even go so far as to assert that such a conviction must be setaside by an appellate court even though the point was not taken by theappellant at the trial (see, for example, Rex v Molloy (1921) 2 KG 364).
The appellant's conviction for an offence of negligently causing or allowinghis ship to be hazarded is wrong in law and a substantial miscarriage ofJustice has occurred.
Having come to that conclusion, the question arises as to what should be done.In this regard the provisions of sub s.23(1) and s.24 of Defence ForceDiscipline Appeals Act are relevant. Those provisions are as follows:
"23. (1) Subject to subsection (5), where in an appeal it appears to theTribunal:
(a) that the conviction or the prescribed acquittal is unreasonable, or cannotbe supported, having regard to the evidence;
(b) that, as a result of a wrong decision on a question of law, or of mixed lawand fact, the conviction or the prescribed acquittal was wrong in law and thata substantial miscarriage of justice has occurred;
(c) that there was a material irregularity in the course of the proceedingsbefore the court martial or the Defence Force magistrate and that a substantialmiscarriage of justice had occurred; or
(d) that, in all the circumstances of the case, the conviction or theprescribed acquittal is unsafe or unsatisfactory;
it shall allow the appeal and quash the conviction or the prescribedacquittal."
Sub-section (5) has no relevance to this appeal.
"24. Where the Tribunal quashes a conviction, or a prescribed acquittal, of aperson of a service offence, the Tribunal may, if it considers that in theinterests of justice the person should be tried again, order a new trial of theperson for the offence."
For the reasons already given, and as a result of the wrong decision on aquestion of law, the appellant's conviction for an offence of negligentlycausing or allowing his ship to be hazarded is wrong in law and a substantialmiscarriage of justice has occurred. Accordingly, the appeal should be allowed,the conviction quashed and the penalty set aside. it remains to considerwhether in these circumstances and in the interests of justice, the appellantshould be tried again. on the facts of -this case, this is not an easy questionto determine.
Whilst s.24 of the Defence Force Discipline Appeals Act 1955 provides a verywide discretion and is in different language to the provision considered by theHigh Court in DPP (Nauru) v Fowler (1984) 154 CLR 627, we think it notinappropriate in this case to apply the test propounded by the High Court. Thedominant consideration remains the interests of justice. in the judgment of theCourt it was said (at p 630):
"The power to grant a new trial is a discretionary one and in deciding whetherto exercise it the court which has quashed the conviction must decide whetherthe interests of justice require a new trial to be had. In so deciding, thecourt should first consider whether the admissible evidence given at theoriginal trial was sufficiently cogent to justify a conviction, for if it wasnot it would be wrong by making an order for a new -trial to give theprosecution an opportunity to supplement a defective case ... Then the courtmust take into account any circumstances that might render it unjust to theaccused to make him stand trial again, remembering however that the publicinterest in the proper administration of justice must be considered as well asthe interests of the individual accused."
In the present case, if the appellant had engaged in conduct which couldconstitute an offence against s.39(3) of the Discipline Act, he should standtrial for the offence according to law, but on the facts of this case, thereare strong reasons why, in the interests of justice, the Tribunal should notorder a new trial.
It must be remembered that the offence for which the appellant was charged wasbad in law. If a new trial is ordered, it is not clear with what offence theappellant will be charged. It is not clear whether he will be charged with morethan one offence under s.39 of the Discipline Act. It is not clear whether hewill be charged again with an offence against s.35 of the Discipline Act. It isnot clear what particulars would be given to any charge laid. Reference hasalready been made to Rule 9 of the Defence Force Discipline Rules. It must beremembered that the purpose of particulars is to inform the person charged of"the particular act, matter or thing alleged as the foundation of the charge";see Johnson v Miller (1937) 59 CLR 467 per Dixon J. at 489. Thus, Particularshave a twofold effect. First, they notify the person charged of the factsalleged which are said to constitute the offence charged, and second, theylimit the evidence to be given to the proof of facts that are relevant toproving the offence charged. In the absence of any offence charged and in theabsence of particulars, it is difficult for the Tribunal to form any opinion onthe substantive matters argued on the appeal. It is clear, however, that theessential nature of the offence relates to an allegation that the appellantnegligently hazarded a service ship. The Tribunal considers it necessary toconsider some aspects of this issue in order to determine whether, in theinterests of justice, it should order a new trial.
The Discipline Act was assented to on 31 December 1982. Parts I and XI, whichare not relevant for these purposes, came into operation on that day, but thesubstantive provisions did not come into operation until 2 July 1985. The longtitle to the Discipline Act is "An Act relating to the discipline of theDefence Force and for related purposes". In substance, the Discipline Act inmany respects constitutes a code of the law relating to criminal by members ofthe Australian Defence Force. Thus in the Discipline Act, a distinction is madebetween an offence under that Act and what is described as an "old systemoffence" which, under s.3 is defined as meaning "an offence under previousservice law that was committed by a member of the Defence Force at any timeduring the period of three years that ended on the day immediately before theproclaimed date", namely 2 July 1985. In the same section, the phrase "previousservice law" is defined to mean a miscellany of laws relating to criminaloffences by members of the Defence Force in operation at any time during theperiod of three years that ended on the day immediately before the proclaimeddate. It must be remembered that the provisions of the Discipline Act are to beapplied. In cases of ambiguity it can be helpful to consider earlier statutoryprovisions and legal authorities but the clear words of the code must be giventheir proper effect. At the same time it is noted that the Discipline Actappears to equate service offences with criminal offences tried in the civilcourts. Thus the jurisprudence of criminal law in its application to trials incivil courts may now have more relevance in the consideration of serviceoffences than it did when service offences were considered within thejurisprudence applicable to military law. Under the latter jurisprudence thereappeared to be accepted a principle that if a service ship ran aground on acharted reef or shoal, of necessity, the navigating officer negligently causedor allowed the ship to be hazarded or, by act o omission, negligently performeda duty required of him as navigation officer in the proper and safe navigationof the ship. This type of quasi presumption of guilt can have no place in thejurisprudence of criminal law in its application to trials in civil courts. Atthe same time, under the Discipline Act, a system exists which provides for thereview of convictions and penalties imposed by service tribunals, a systemwhich is foreign to the practice and procedures of criminal trials in civilcourts.
The Discipline Act is lengthy and covers a wide range of matters from criminalliability, offences, punishments, investigations of service offences,procedures, service tribunals, review of proceedings of service tribunals andother matters. Part II of the Act comprises sections 10 to 14 and is headed"Criminal Liability". Section 10 provides that the principles of the common lawwith respect to criminal liability apply in relation to service offences. Hencethe doctrine of duplicity at common law has application, as well as thespecific Defence Force Discipline Rules mentioned earlier in these reasons.Section 12 makes it clear that in a proceeding before a service tribunal, theprosecution has the onus of proving a service offence "beyond reasonabledoubt". Under s.11(2) where a member of the Defence Force is charged with aservice offence arising out of activities upon which the member was engaged inthe course of his duty, a service tribunal, in deciding whether the member, byact or omission, behaved negligently, is required to have regard to thestandard of care of a reasonable person, the tribunal shall have regard to thestandard of care that would have been exercised by a reasonable person who:
"(a) was a member of the Defence Force with the same training and experience inthe Defence Force or other armed force as the member charged; and
(b) was engaged in the relevant activities in the course of his duty or inaccordance with the requirements of the Defence Force, as the case may be."
Part III, comprising sections 15 to 65 of the Discipline Act is headed"Offences". Many services offences are created under Part III. Section 35,which has been set out earlier in these reasons, is within Division 4 of PartIII. That Division is headed "Offences relating to performance of duty" and areference to the penalty attached to s.35, shows that it is a less seriousoffence than those created by s.39. It is noted that that section refers to adefence member "who, by act or omission, negligently performs a duty...".
Section 39 comes within Division 5 of Part III of the Discipline Act. ThatDivision is headed "Offences relating to ships, vehicles, aircraft, weapons orproperty". In all probability 18 separate offences are created by that sectionranging in seriousness from intentionally causing (or allowing) a service shipto be lost (or stranded or hazarded) to recklessly and to negligently causing(or allowing) a service ship to be lost (or stranded or hazarded). The presentcase relates to negligently causing (or allowing) a service shin to hehazarded. The maximum punishment is imprisonment for six months. It is notedthat on a charge for an offence under sub-sections 39(1) and (2) a defencemember may be convicted of an alternative offence pursuant to s.142 and Items21 and 22 of Schedule 6 of the Discipline Act but there is no provision for aconviction for an alternative offence where a defence member is charged with anoffence under s.39(3).
Although under sub-section 39(3) the maximum penalty that can be imposed isimprisonment for six months, the service tribunal, in this case the courtmartial, has power to impose a lesser penalty. Section 68 of the Discipline Actlists the punishments that may be imposed by a service tribunal in decreasingorder of severity. Some 13 punishments are listed, the least severe being areprimand. In the present case, the penalty imposed on the appellant was areprimand. For present purposes, it is not necessary to consider the extent ofthe obligations imposed by s.70(1)(a) of the Discipline Act and theapplicability of s.16A of the Crimes Act 1914 and the nature of the powersconferred by s.75 of the Discipline Act, but it is noted that one of theofficers charged with the offence of negligently causing or allowing HMASDarwin to be hazarded was found guilty by the court martial of that offence anda conviction recorded without punishment; see s.75.
Earlier in these reasons the Tribunal said that the essential nature of theoffence with which the appellant was charged relates to the allegation that theappellant negligently hazarded a service ship. The word "hazarded" is notdefined in the Discipline Act. In s.39, the word "hazarded" is used incontra-distinction to the words "lost" and "stranded". In this context, theword "hazarded" seems to have a more general meaning than the other two words.The relevant meaning given to the word "hazard" in the Shorter OxfordDictionary, when used as a verb, is to expose to hazard or risk, to endanger(any person or thing). When used as a noun, hazard is defined to mean risk ofloss or harm, peril, jeopardy. Usually, the word is associated with a game ofchance, or gaming. The adjective "hazardous" has the connotation of beingfraught with hazard or risk, perilous. In its context in s.39, the word"hazarded" is to be construed as meaning exposing the service ship to risk,endangering the service ship, exposing the service ship to the risk of loss orharm or peril or placing the service ship in jeopardy. On the facts of thiscase, therefore, the fact that HMAS Darwin ran aground of itself is notdeterminative of the allegation that the appellant hazarded a service ship. Theprosecutor was fully aware of this. Thus the offence with which the appellantwas charged was that between 0001 and 0445 on 7 May 1990, while on board HMASDarwin and off the coast of Oahu did negligently cause or allow the ship to behazarded. Darwin ran aground at about 0427 hours on 7 May 1990. The offencecharged was of a continuing nature, but limited to the times specified.
It is neither necessary nor desirable to refer to the evidence in any detail.The court martial extended over some 20 days and the transcript of theproceedings before the court martial, excluding the parts relating to pleas inmitigation of punishment, comprises 2906 pages. In addition there were manyexhibits before the court martial. The court martial heard and determined thecharges against the appellant and at the same time, heard and determinedcharges against three other officers of HMAS Darwin all arising from the sameseries of events. This added to the length and complexity of the court martial.The commanding officer of Darwin was convicted of the following offence:
"Between 2359 and 0445 on 7 May 1990 while on board HMAS Darwin and off thecoast of Oahu did negligently cause or allow the ship to be hazarded".
The executive officer of Darwin was convicted of the following offence:
"Between 0001 and 0445 on 7 May while on board HMAS Darwin and off the coast ofOahu did negligently cause or allow the ship to be hazarded."
With respect to each of these officers, upon the conviction being recorded, analternative charge under s.35 of the Discipline Act was not proceeded with. Thethird officer was the principal warfare officer on watch in the operations roomduring the crucial watch. He was charged as follows:
"Between 0200 and 0445 on 7 May 1990 while on board HMAS Darwin and off thecoast of Oahu did negligently cause or allow the ship to be hazarded."
He was charged also with the alternative charge under s.35 of the DisciplineAct. At the end of the case for the prosecution, each of the charges againsthim was dismissed.
For some days before 7 May 1990, Darwin had been engaged in the naval exercisesknown as Operation Rimpac. As a result, many of the officers on board Darwinhad spent long periods on duty and long periods without rest or sleep. Inparticular, this applied to the commanding officer of Darwin and to thenavigation officer, the appellant. In addition it was contended that thecommanding officer had relieved the appellant of many of his duties asnavigation officer to enable him to undertake and perform duties as principalwarfare officer in the operations room. It was to be expected that because ofthe duties admittedly being performed by the appellant as principal warfareofficer, he was not expected, or for that matter, able, to perform many of theduties normally imposed upon a navigation officer. In fact, the appellant hadbeen on duty for some nine hours in the operations room before 0200 hours on 7May 1990.
At about 1930 hours on 6 May 1990, Darwin was well to the west of the island ofOahu. She had been directed by the command ship, USS Missouri, to engage in amission as a silent covert unit ahead of the main force. She was to attempt toremain undetected by the "enemy" and to be a target reporting unit for theother friendly ships against any enemy amphibious group expected to be in thearea off Bellows Beach at dawn on 7 May 1990. Bellows Beach is on the easternside of Oahu island towards the southern end of the island. It is to the southof Mokapu Peninsula which extends to the north and east of Bellows Beach. Atthe same time, care had to be taken to avoid detection by other "enemy" shipswhich might be in any area around the island.
Having regard to the tactical position, the appellant was required to prepare anavigation plan to have Darwin off the east coast of the island near the MokapuPeninsula at dawn on 7 May. If possible, Darwin had to remain undetected by the"enemy". The appellant prepared the navigation plan while on duty as principalwarfare officer in the operations room. The plan was approved and ratified bythe commanding officer and the executive officer. The plan brought Darwin closeto the island. The plan which forms the basis of the charge against theappellant is charted on United States Chart 19357, being a chart of the islandof Oahu in Hawaii. Apparently, there may be differences between the BritishAdmiralty Chart of the area and the United States Chart, but for presentpurposes nothing turns on these differences.
The navigation clan prepared by the appellant showed the approach course anChart 19357 as Darwin came close to the western coast of Oahu. The navigationplan showed the shallow water being the 10 fathoms line, by hatching, and theexistence of lights that could be used for the taking of bearings. Areas forthe use of echo soundings were shown and areas for sector radiating were alsomarked. This was done in an attempt to avoid detection by other ships in thevicinity and the sector radiating was towards the land only. The lights wereshown by a circle with lines radiating from the circumference of the circle.The watchkeepers were directed to take fixes every six minutes. The course tobe followed was marked and the bearing to take on each course was denoted.Essentially the plan provided for Darwin to keep close to the shoreline butwell clear of the 10 fathoms line. The course to be followed once Darwin cameclose to the shore of the island was to sail on a generally north-westerlycourse to a point west of Kaena Point which is the most westerly point of theisland and near the northern most point of the island; then on a generallynorth-easterly course for a short distance to round Kaena Point; then on a moreeasterly course followed by a north-easterly course to hug the north-west shoreof the island to a point north-west of Kahuku Point being the northern mostpoint of the island; then on an easterly course to pass the northern cart ofthe island and then on a generally south-easterly course at 150 degrees towardsMokapu Peninsula. Lights were marked on the chart at Kaena Point, on a radiomast just south-east of Kaena Point, a stack at Waialua about half way alongthe north-west coast of the Island, and a stack at Kahuku a short distance tothe south east of Kahuku Point and at Pyramid Rock on the north-west end of theMokapu Peninsula. There was some suggestion at the court martial that a lightmarked on the chart as being an aero beacon south of the Pyramid Rock lightshould have been marked but was not and that this could have caused confusionto the officers on the watch. No further comment is made on this aspect. Infact the navigation plan was departed from in major respects because of theexigencies of the tactical situation.
The commanding officer had retired to sleep and had placed the command of theship in the executive officer. The executive officer was working in thewar-room as well as on the bridge. The appellant was working mainly in thewar-room but between 0001 and 0218 on 7 may he spent about half an hour on thebridge where he discussed the chart with the then officers of the watch andchecked three fixes taken at the six minute intervals between 0200 and 0218. Hewas then given permission to retire to his cabin to rest having been on dutycontinually for a very long time. He remained in his cabin until the timeDarwin grounded.
Darwin sailed further to the west of the island than the navigation planshowed. This was done for the purpose of picking up her helicopter which hadbeen despatched for observation purposes. She then kept well away from thenavigation plan until she was due to commence the east course at the north ofthe island. It appears that there was some confusion by the officers of thewatch in fixing the actual position of Darwin and from a reconstruction itappears that when Darwin was on the east course north of Kahuku Point she wascloser to shore than the navigation plan permitted and that she turned to the150 degree course before reaching the point at which she should have so turned.As a result Darwin came in much closer to the north-east shore of the islandand struck the shoal. She received damage but was able to float free from thegrounding.
Of necessity, this outline of the facts does not give a complete picture. Noreference is made to other matters which formed a large part of the evidencebefore the court martial. For example, the duties of a navigation officer andthe facts relevant to particulars 2 and 3 of the particulars to the chargeunder s.39 of the Discipline Act are not discussed. Difficult questions inrelation to causation, whether of negligently causing a service ship to behazarded or of negligently allowing a service ship to be hazarded are notdiscussed. The relationship between negligently hazarding a service ship andnegligently stranding a service ship is not discussed. The concept ofnegligence in this context is not discussed. It is noted that the commandingofficer and executive officer were each found guilty and convicted of anoffence essentially the same as that of the appellant, but the different timespan mentioned in the charge against the commanding officer is difficult tounderstand. In any event the navigation plan prepared by the appellant extendedbeyond the plan drawn on Chart No 19357. The plan brought Darwin towards theisland of Oahu and then provided for the course around the island whichcommenced at about 0200 hours. The particulars to each of the charges againstthe two senior officers were essentially the same as against the appellantexcept in particular I reference was made to examining the navigation plan, notpreparing the plan. In addition to particulars 1, 2 and 3, additionalparticulars were given with respect to the other two officers, but the essenceof the particulars was the same.
A reference to the particulars given to the charge against the appellantillustrates very starkly the difficulties caused to him in having to answer acharge which was bad for duplicity. As discussed earlier in these reasons, thewords "to cause" and "to allow" have different meanings. it is not clearwhether the particulars given should be treated as relating to "to cause" or"to allow". In the opening paragraph of particular 1 the use of the words"and/or alternatively" creates difficulties. At no stage was there any doubtthat the appellant had prepared the navigation plan. Insofar as it wasrelevant, that particular should have been given and further particulars shouldhave been given of the fact that that plan was causally connected withnegligently causing (or allowing) the service ship to be hazarded. Furtherparticulars of the hazarding should have been given, but this, to some extent,depends upon the link or causation between the plan as prepared, possibly asexecuted, and also other factors as contained in the particulars. Particulars 2and 3 are not directly related to the plan but to other aspects of the dutiesof a navigation officer. All these observations illustrate the difficultiesarising in charging a defence member with a service offence of the kindreferred to s.39 of the Discipline Act particularly having regard to theequating of service offences with criminal offences to be tried in civilcourts. These observations illustrate further the difficulties facing theappellant in attempting to answer a charge which was bad for duplicity.
In all the circumstances of this appeal, the Tribunal does not consider that inthe interests of justice, the appellant should be tried again. The commandingofficer and the executive officer of HMAS Darwin have both been convicted ofnegligently causing or allowing the ship to be hazarded. Neither objected tothe charges as being bad for duplicity. Neither has appealed against theconviction. The appellant has had to face a long and difficult trial. Hisobjection to the charge being bad for duplicity was not accepted by theprosecutor who could have sought leave to allege the two charges of causing orallowing to be made in the alternative.
Instead he contended that the charge specified one offence only. The JudgeAdvocate rejected the objection made by counsel for the appellant and wronglyruled in favour of the prosecutor's submission. As a result the appellant wasfaced with great difficulties in defending the one bad charge brought againsthim in which it was not clear just what particulars were relevant. Theappellant should not be required to face another charge or charges which cannotbe identified at this stage.
There are other circumstances which would render it unjust to the appellant tomake him stand trial again. It is to be noted that upon conviction, the penaltyimposed was the most lenient penalty available for the alleged offence, namelya reprimand. It was not disputed that on the happening of the grounding theappellant was immediately removed from his ship and has not had the opportunityto undertake navigation duties since. It was submitted, and there was nocontrary submission, that the appellant may have lost his career as a navigatorregardless of the result of this appeal. Having regard to those matters, theexpense involved in the retrial of a complex matter, and the stress which theappellant would be obliged to undergo, it would be disproportionate to theservice interest in the public administration of justice to order a newtrial.
During the course of submissions, some reference was made to the provisions ofs.26 of the Defence Force Discipline Appeals Act. Those provisions are asfollows:
"26. (1) Where the Tribunal quashes the conviction of a person of a serviceoffence tin this section referred to as 'the original offence,) but considers
(a) that the court martial or the Defence Force magistrate could in theproceedings have found the person guilty of another service offence, being -
(i) a service offence that is an alternative offence, within the meaning ofsection 142 of the Defence Force Discipline Act 1982, in relation to theoriginal offence; or
(ii) a service offence with which the person was charged in the alternative andin respect of which the court martial or the Defence Force magistrate did notrecord a finding; and
(b) that the court martial or the Defence Force magistrate, by reason of its orhis finding that the person was guilty of the original offence, must have beensatisfied beyond reasonable doubt of facts that prove that the person wasguilty of the other service offence, the Tribunal may substitute for theconviction of the original offence a conviction of the other service offence.
Sub-sections (2) and (3) deal with matters affecting punishment."
Although not at the forefront of the submissions made by counsel for therespondent, it was suggested that if the appeal was successful and theconviction quashed, the Tribunal should exercise the power conferred bys.26(1)(a)(ii) and (b). In these reasons, the charge under s.39 of theDiscipline Act has been referred to at times as the first charge and the chargeunder s.35 has been referred to as the second charge. Applying the facts of thecharges to s.26 of the Defence Force Discipline Act, the first charge is theoriginal offence and the other service offence is that alleged in the secondcharge. On the facts of this appeal, the Tribunal has quashed the conviction ofthe appellant of the first charge, being the original offence, on the basisthat the charge was bad for duplicity. The defect in the first charge resultedin the fact that the Tribunal was not required, and in fact could not, considerthe other grounds of appeal. Before exercising the power conferred by s.26, ofthe Defence Force Discipline Act, the Tribunal must consider that the courtmartial could, in the proceedings, have found the appellant guilty of thesecond charge, and that the court martial by reason of its finding that theappellant was guilty of the first charge "must have been satisfied beyondreasonable doubt of facts that prove" that the appellant was guilty of theoffence alleged in the second charge.
The terms of the second charge have been set out earlier in these reasons. Theycontain their own difficulties. The charge alleges that the offence occurredbetween 2000 and 0445 hours on 6 and 7 May 1990, a much longer period than thatalleged in the first charge. The same particulars are given, but as observedearlier in these reasons, those particulars contain their own difficulties.Normally, particulars to a charge based on s.35 of the Discipline Act shouldstate the relevant duties that a defence member is required by his office orappointment to perform and then the facts, whether acts or omissions which, itis alleged, constitute the negligent performance of these duties. Theparticulars given with respect to the second charge do not appear to beadequate, but no submissions were directed to this aspect of the charge.
In these circumstances, the Tribunal has doubts whether the court martial couldhave found the appellant guilty of the second charge. Of more importance, theTribunal has very grave doubts whether the court martial, by reason of itsfinding that the appellant was guilty of the first charge, must have beensatisfied beyond reasonable doubt of facts that prove the appellant was guiltyof the second offence. Since the first charge was bad for duplicity, theappellant should not have been required to plead to it. The hearing of thischarge, which was bad, constituted a material irregularity in the course of theproceedings before the court martial and so tainted the whole of the trial thatit is not possible to be satisfied that the court martial by finding that theappellant was guilty of the first charge, must have been satisfied beyondreasonable doubt of facts that prove the appellant was guilty of the secondcharge. Accordingly, the Tribunal should not exercise the power conferred bys.26 of the Defence Force Discipline Act.
In the result, the Tribunal allows the appeal and quashes the conviction.