1976) 28 FLR 231[lb.028.FLR.00231]

[COURTS-MARTIAL APPEAL TRIBUNAL]

Re BROWN'S APPEAL

Courts-Martial Appeal Tribunal: Meares J., President, Connor J., Deputy President, and Judge Broad, Member

25, 27 August 1976
28 FLR 231

Defence and War -- Discipline of members of forces -- Court-martial -- Application for leave to appeal against sentence -- Whether tribunal has power to interfere with a sentence passed by a court-martial -- Courts-Martial Appeals Act 1955-1973.

Section 20(1) of the Courts-Martial Appeals Act 1955-1973 provides in part "a person convicted by a court-martial ... may, with the leave of the Tribunal, appeal to the Tribunal against his conviction".

Held, that the term "conviction" in s. 20(1) is used in its narrow sense, that is, it indicates merely that the accused has been made the subject of a finding of guilty. Specific circumstances are set out in the provisions of ss. 24, 25, 26, 27 and 28, in which the tribunal has power to interfere with a sentence passed by a court-martial. If the circumstances of the case do not fall within those sections, the tribunal has no power to interfere with the sentence.


APPEAL.

The appellant appealed against the sentence passed by a court-martial upon being convicted of an offence against the Imperial Naval Discipline Act 1957. The material facts appear in the decision of the tribunal.

A. R. O. Rowlands, for the appellant.

P. A. Willee, for the respondent.

Cur adv vult

27 August 1976

THE TRIBUNAL delivered the following decision.

The appellant, Robert George Brown, applied for leave to appeal against his conviction by a court-martial held on board H.M.A.S. Cerberus on 8th May, 1975, on the following charges: (a) that on or about 18th January, 1975, he, the applicant, was guilty of disgraceful conduct of an indecent kind in committing sodomy with seaman marine technical hull Kevin Francis Preiss personal number S.116937, on shore in Hosies Hotel, 1 Elizabeth Street, Melbourne in the State of Victoria; (b) that on or about 8th February, 1975 he, the applicant, was guilty of disgraceful

(1976) 28 FLR 231 at 232

conduct of an indecent kind in committing an act of sodomy with junior musician Graham James Gilmour personal number R.117418, on shore in Hosies Hotel, 1 Elizabeth Street, Melbourne in the State of Victoria; (c) that on an occasion other than that specified in par. (b) hereof, on or about 8th February, 1975, he, the applicant, was guilty of disgraceful conduct of an indecent kind in committing an act of sodomy with junior musician Graham James Gilmour personal number R.117418, on shore in Hosies Hotel, 1 Elizabeth Street, Melbourne in the State of Victoria.

After pleading guilty he was sentenced (i) to be reduced in rank to leading seaman marine technical propulsion grade 3; (ii) to forfeit long service and good conduct medals; and (iii) to be dismissed from Her Majesty's service and to suffer the consequential penalties involved.

By s. 34 of the Naval Defence Act, 1910, the Imperial Naval Discipline Act 1957, as in force on 6th November, 1964, applies, with such exceptions and subject to such modifications and adaptations as are provided by the Regulations, to and in relation to the naval forces of the Commonwealth and the members of those forces.

Section 37 of the Naval Discipline Act, under which all three charges were brought, provides that: "Every person subject to this Act, who is guilty of any disgraceful conduct of an indecent kind shall be liable to dismissal with disgrace from Her Majesty's Service or any less punishment authorized by this Act".

Section 42 of that Act provides that:

"42. (1) Every person subject to this Act who is guilty of any civil offence (that is to say any act or omission which is punishable by the law of England or would be so punishable if committed in England) shall be liable on conviction under this Act:

(a) in the case of an offence of treason or an offence of murder for which that punishment is not prohibited by section eight of the Homicide Act, 1957, to death;

(b) in the case of any other offence of murder, to imprisonment for life;

(c) in the case of any other offence, either--

(i) to such punishment (being a punishment authorized by this Act) as could be imposed on the offender on conviction before a civil court of the like offence committed in England, or

(ii) to dismissal with disgrace from Her Majesty's service or any less punishment authorized by this Act.

(1976) 28 FLR 231 at 233


(2) A person subject to this Act may be charged with an offence under this section notwithstanding that it could on the same facts be charged with an offence under any other provision of this Part of this Act."

By S.R. 79 of 1968 passed pursuant to s. 34, s. 42(1) was modified by adding after the words "if committed in England" the words "or which is an offence against the law of the Commonwealth".

Section 13 of the Imperial Sexual Offences Act 1956 provides: "It is an offence for a man to commit an act of gross indecency with another man, whether in public or private, etc."

Section 8 of the Imperial Sexual Offences Act 1967 provides that: "No proceedings shall be instituted except by or with the consent of the Director of Public Prosecutions against any man for the offence of buggery with or gross indecency with another man ... where either of those men was at the time of its commission under the age of 21."

The charges in respect of which the appellant was convicted were charges of "disgraceful conduct of an indecent kind" pursuant to s. 37 of the Naval Discipline Act.

Leave to appeal having been granted, Mr. Rowlands for the appellant first submitted that the expression "civil offence" in s. 42(1) included all "civil offences" punishable if committed in England at the date of the offences charged, secondly that the civil offences which the appellant committed were acts "of gross indecency with another man" within the meaning of s. 13 of the Sexual Offences Act 1956 and that, accordingly, (in the words of the application for leave), "the learned Judge Advocate misdirected himself in ruling that the consent of the Director of Public Prosecutions pursuant to s. 8 of the Sexual Offences Act 1967 was not required as a condition precedent to the holding of the said court-martial, having regard to the nature and substance of the said charges".

Although he readily conceded that sodomy was "disgraceful conduct of an indecent kind", s. 37 applied, he submitted, only to acts carried out wholly in a naval situation. At the time of the alleged offences Preiss and Gilmour, who were respectively seventeen and sixteen years of age, were sailors engaged in recruit training on board H.M.A.S. Cerberus; the appellant, then forty-five years of age, served on the same ship and held the rank of Chief Petty Officer but since the acts were committed on shore and while all three actors were on leave, they were not carried out, it was claimed, wholly in "a naval situation". In our view there is no substance in this submission. Not only is there nothing in the section to suggest that it should be so read down but

(1976) 28 FLR 231 at 234

s. 111 of the Naval Discipline Act 1957 provides that both officers and ratings are subject to the Act at all times.

It was then submitted that although not charged under s. 13 of the Sexual Offences Act, the acts in question were nevertheless acts of "gross indecency" with another man and that accordingly s. 8 of the Sexual Offences Act applied.

We were then taken to a close examination of the case of the Secretary of State for Defence v. Warn [1970] A.C. 394 affirming Reg. v. Warn [1968] 1 Q.B. 718. In that case Warn, aged twenty-five, was convicted on charges of gross indecency with another man aged eighteen, contrary to s. 42 of the Naval Discipline Act 1957 and s. 13 of the Sexual Offences Act. It was held that the provisions of s. 8 of the Sexual Offences Act applied to court-martial proceedings and albeit these provisions were procedural they were mandatory and that since the consent of the Director of Public Prosecutions had not been obtained, the proceedings were a nullity and the conviction was quashed. The decision is not in point. It was in respect of a charge under s. 42 and not under s. 37 which was not referred to in any of the judgments of the Court of Appeal or by Lord Hodson in his speech in the House of Lords.

Although undoubtedly the offences prescribed in s. 13 of the Sexual Offences Act and s. 37 of the Naval Discipline Act are concerned with indecent conduct, the former deals with an act of "gross indecency with another man" compared with the much wider and different offence of "any disgraceful conduct of an indecent kind" under the latter section and therefore, in our opinion, s. 8 of the Sexual Offences Act 1967 does not apply to s. 37 of the Naval Discipline Act.

It was finally submitted that the failure to lay the charges under s. 42 of the Naval Discipline Act and to obtain the consent of the Director of Public Prosecutions resulted in a "miscarriage of justice" within the meaning of s. 23(3) of the Courts-Martial Appeals Act 1955-1973 but we are quite unable to accept this submission.

Mr. Willee, counsel for the Chief of the Naval Staff, submitted that none of the provisions of the Imperial Sexual Offences Act 1967 applied to these proceedings and consequently there was no requirement to seek the consent of the Director of Public Prosecutions. The submission was that sub-s. (1) of s. 42 of the Imperial Naval Discipline Act 1957, as amended, when it speaks of "any act or omission which is punishable by the law of England", refers to the law of England in force on 6th November, 1964. This follows. it was said, from the provision in s. 34 of

(1976) 28 FLR 231 at 235

the Naval Defence Act 1910 which applies the Imperial Naval Discipline Act 1967 as in force on 6th November, 1964, to the members of the naval forces of the Commonwealth. The reasoning is that the English Act must be taken to speak as of that date and must therefore be taken to refer to "the law of England" as in force on that date. It was not therefore permissible, it was said, to apply to members of the naval forces of the Commonwealth any enactments of English Law which have come into force since 6th November, 1964.

In support of his submission, Mr. Willee relied on Commissioner for Government Transport v. Deacon (1957) 97 C.L.R. 535. In that case the High Court was considering a provision in an Act of New South Wales dealing with the payment to employees of a government instrumentality of medical, hospital and ambulance expenses incurred in respect of employment injuries. The Act provided that certain specified provisions in another New South Wales Act "shall, mutatis mutandis, apply to and in respect of such medical or hospital treatment or ambulance service". The High Court held that this referential adoption was equivalent to a positive independent enactment and did not amount to incorporating the provisions of the second Act in whatever shape they might afterwards be thrown by amendment.

It is a question whether this decision lays down any general principle which would be of assistance in the construction of s. 42 in the form in which it now is. A provision that a serviceman is punishable if he is guilty of an act or omission punishable by the law of England may be regarded as conveying a simple intention that the serviceman is to be liable under s. 42 if he is guilty of an act or omission punishable by the law of England as it exists at the time of the act or omission. Having regard to the capacity of the executive government to modify any part of the United Kingdom Act by Regulation, that does not appear to be a remarkable intention to attribute to the legislature. Moreover, the reference in sub-s. (1) of s. 42 to the law of the Commonwealth suggests at first sight a reference to the law of the Commonwealth as in force at the time of the alleged offence rather than a reference to the law of the Commonwealth in force on 4th July, 1968, the date of the statutory rule which introduced it. If the law of England is to be considered as at a given time, the result will be that for each of the three services there will be substantially different provisions applicable--cf. s. 54 of the Defence Act 1910 and s. 5 of the Air Force Act 1923.

We were referred to passages in the reasons for judgment of this tribunal in Re Ferriday's Appeal (1971) 21 F.L.R. 86, at pp. 92, 93. Street J., as he then was,

(1976) 28 FLR 231 at 236

in his capacity as president, had occasion to consider s. 41 of the Imperial Army Act 1881. Although it may be regarded as the counterpart of s. 42 of the Imperial Naval Discipline Act, it is worded differently; and in particular there is no modification of s. 41 to include the law of the Commonwealth. Street J. expressed the view that a statute passed by the Imperial Parliament after 29th October, 1956, would not affect the operation of a positive independent enactment of the Commonwealth Parliament in adopting the Army Act as it stood on 29th October, 1956.

We were also referred to a passage in the reasons for judgment of Mr. Harris Q.C., as he then was, in which an ambulatory interpretation was placed on at least some of the provisions of s. 41 of the Army Act [FN1] .

Mr. Willee informed us that he had been instructed to put both sides of the case in respect of this submission. He said, however, that as Mr. Rowlands for the appellant had adequately put the case against the submission, he would content himself by putting the case in favour of it. It was made clear to us that the authors of the Manual of Naval Law have been proceeding on the footing that it is proper for those administering naval discipline to have regard to provisions of the English law enacted subsequently to 6th November, 1964. The matter is of considerable importance to each of the three services. It appears to us to be capable of solution by the exercise of rudimentary drafting skill in the framing of appropriate regulations. As appears from the reasons already given, the tribunal can deal with this appeal without making a decision on this important question. After some reflection we have come to the conclusion that it would be wiser to leave the question for decision in a case in which it becomes necessary to decide it. In the meantime, we express the hope that a result will be achieved in keeping with what is regarded as appropriate for each of the three services by means of regulation.

At the hearing of the appeal the appellant applied for leave to appeal against the sentence passed by the court-martial.

Apart from the obvious aspects of that sentence, it is not in dispute that he will suffer consequential financial penalties arising from the loss of long-service leave and pension entitlements, and from the fact that he is now denied employment under the Crown.

Although s. 70 of the Naval Discipline Act provides that a person convicted by a court-martial may present a petition to the Naval Board against "any finding of guilty" or "any sentence

(1976) 28 FLR 231 at 237

awarded in respect of such a finding" or both, s. 20(1) of the Courts-Martial Appeals Act provides merely that "a person convicted by a court-martial ... may, with the leave of the Tribunal, appeal to the Tribunal against his conviction".

As Tindal C.J. said in Burgess v. Boetefeur and Brown (1844) 7 Man. & G. 481, at p. 504; 135 E.R. 193, at p. 202: "The word `conviction' is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of the jury, and at other times, in its more strictly legal sense, for the sentence of the court. In the passages cited from Blackstone's Commentaries, the term seems to be used in both senses."

In H. M. Advocate v. Churchill [1953] S.L.T. 45, at p. 46 Cooper L.J.-G. said that the word "conviction" can possess more than one sense: in the narrow sense it indicates merely that the accused has been made the subject of a finding of guilty; in what is recognized as the wider connotation it includes not merely a finding of guilt but the executive action which follows thereon.

Both learned judges pointed out that the question is, in which sense is the term used in the statute under consideration.

Although the Courts-Martial Appeals Act does not refer specifically to an appeal against sentence, it does provide for substitution of sentence in certain circumstances, viz., where it appears to the tribunal that the appellant was not guilty of one charge but guilty of another (s. 24), or was wrongly convicted but guilty of another offence (s. 25), in the case of offences involving two degrees of punishment (s. 26), and where the court-martial should have recorded a special finding (s. 27). Provision is made in s. 28 for the quashing of a sentence where the appellant is insane. Sentences were substituted by the tribunal in Re Knight's Appeal (1968) 12 F.L.R. 81, and Re Ferriday's Appeal (1971) 21 F.L.R. 86, but there is no reported case of an appeal against sentence simpliciter.

The term "conviction" is not one of those defined in the interpretation section of the Act (s. 4(1)). However, s. 4(2) provides: "For the purposes of this Act, a finding substituted, by virtue of powers conferred by military law or air force law, for a finding of a court-martial, or a sentence substituted, by virtue of powers conferred by naval law, military law or air force law, for a sentence passed by a court-martial, shall be deemed to be a finding of, or a sentence passed by, the court-martial, and a conviction obtaining by virtue of a finding so substituted shall be deemed to be a conviction by the court-martial."

It will be seen that s. 4(2) distinguishes between a substituted finding and a substituted sentence. Accordingly, if it was the intention of the legislature that the term "conviction" is to be

(1976) 28 FLR 231 at 238

interpreted to include both the finding and the sentence, s. 4(2) would conclude more appropriately with the addition of the words italicized: "and a conviction obtaining by virtue of a finding, or by virtue of a finding and a sentence, so substituted shall be deemed to be a conviction by the court-martial."

In the light of the wording of s. 4(2), and the fact that the Act provides for substituted sentences only in specifically defined circumstances, the tribunal is of the opinion that the term "conviction" in s. 20(1) is used in its narrow sense, so that, apart from the provisions of ss. 24, 25, 26, 27 and 28, it has no power to interfere with a sentence passed by a court-martial. If, however, such power does exist, the tribunal is of the opinion that, in the circumstances of this case, to which reference has already been made, the sentence of the court-martial should stand.

The appeal is dismissed.

Order accordingly.

Solicitors for the appellant: Mallesons.

Solicitor for the respondent: A. R. Neaves (Commonwealth Crown Solicitor).

[Reported by J. F. E. Turner Esq., Barrister-at-Law.]

[FN1] (1971) 21 F.L.R., at p. 111.

.----------