[COURTS-MARTIAL APPEAL TRIBUNAL]
Re COX'S APPEAL
Courts-Martial Appeal Tribunal: Macfarlan J., President, Wright and Davoren, Members
SYDNEY, 18th, 21st December 1959; 3rd March 1960
8 FLR 364
Defence -- Discipline of members of forces -- Courts-martial -- Summing-up of judge-advocate -- Necessity for summing-up of nature and evidence of defence -- Necessity for clear directions on onus of proof -- Necessity for directions on character when raised by defence.
In court-martial proceedings, the judge-advocate's summing-up must state fairly the facts for the prosecution and the nature and the substance of the evidence of the defence and must, in addition, clearly direct that the onus of proof lies upon the prosecution throughout the case and that the court-martial, before it may convict, must be satisfied beyond reasonable doubt of the guilt of the accused.
In court-martial proceedings, the judge-advocate failed to direct the court-martial that evidence of good character, led by the defence, should be considered by the court-martial along with all the other evidence in deciding whether or not the prosecution had satisfied it beyond reasonable doubt of the guilt of the accused.
Held, that in the circumstances of the case, the judge-advocate had misdirected the court-martial.
COURT-MARTIAL APPEAL.
The appellant appealed to the Courts-Martial Appeal Tribunal under the Courts-Martial Appeals Act 1955 against his conviction
(1960) 8 FLR 364 at 365
by court-martial of having, while being an officer of the Military Forces of the Commonwealth, behaved in a scandalous manner unbecoming the character of an officer and a gentleman.
B. M. Hogan, for the appellant.
D. M. Selby, for the respondent.
Cur adv vult
3 March 1960
The following decision was delivered:
Appeal by Mr. John Frederick Werner Cox, formerly 2/6350 Lieutenant J. F. W. Cox, Australian Staff Corps, Signals Officer, Area Command Papua/New Guinea, against conviction by court-martial. Leave to appeal was granted by this Tribunal on 4th November, 1959.
At a general court-martial held at Headquarters Papua-New Guinea Volunteer Rifles, Murray Barracks, Port Moresby on 20th June, 1959, 2/6350 Lt. J. F. W. Cox (hereinafter called the appellant) was charged "with having, while being an officer of the Military Forces of the Commonwealth of Australia, subject to military law under Australian Military Regulations, reg. 197, committed the following offences:
First Charge--Australian Military Regulation 203(1)(xxvii)--Being an officer, behaved in a scandalous manner unbecoming the character of an officer and a gentleman in that he on Sunday, 7th June, 1959, occupied a single bed in the duty officer's room of the officers' quarters at Murray barracks with a male civilian named Graham Kendall.
Second Charge--alternatively--Australian Military Regulation 203(1)(LX)--Conduct to the prejudice of good order and military discipline in that he on Sunday, 7th June, 1959, occupied a single bed in the duty officer's room of the officers' quarters at Murray barracks with a male civilian named Graham Kendall".
At the court-martial the appellant pleaded "not guilty" to both charges. The court-martial found the appellant guilty of the first charge and not guilty of the second charge, and sentenced him to be dismissed from Her Majesty's Service.
The sentence was varied by the Adjutant-General to read "to be dismissed from the Defence Force", and the finding and the sentence (as varied) were confirmed by the Adjutant-General on 12th August, 1959. The finding and sentence so confirmed were promulgated to the appellant on 21st August, 1959.
On 7th September, 1959, the appellant presented a petition to the Military Board that his conviction and sentence be quashed. By a letter dated 25th September, 1959, the appellant was informed that the Military Board had refused his petition.
(1960) 8 FLR 364 at 366
On 2nd October, 1959, the appellant gave notice of application for leave to appeal against his conviction on the following grounds:
(a) The said charge was bad in law in that the particulars therein did not support the statement thereof.
(b) The finding was against the evidence and the weight of evidence and was unreasonable and could not be supported having regard to the evidence.
(c) That in the absence of any evidence as to the cause nature quality and character of certain stains upon the sheet upon the bed the judge-advocate erred in law in advising the court that such stains were evidence against the appellant and that the court could attach weight to the existence of the same.
(d) That on the evidence and having regard to the way in which the case for the prosecution was conducted the judge-advocate erred in law in advising the court that it should consider some act of impropriety less than some grossly improper act as constituting guilt on the part of the appellant.
(e) That the judge-advocate erred in law when advising the court that the duty of the court was to consider whether it was satisfied beyond reasonable doubt of the explanation of the accused that the whole affair had an innocent connotation and nothing improper to it.
(f) That the judge-advocate erred in law in failing to advise the court that on the evidence and having regard to the way in which the case for the prosecution was presented that intent was a necessary element of the charge and that if by reason of previous indulgence in alcohol the appellant did not have any such intent then it should acquit the appellant.
(g) That the judge-advocate erred in law in not advising the court that the uncontested good character of the appellant was a circumstance to be considered by it in determining his guilt or innocence.
(h) That the judge-advocate erred in law in advising the court that the uncontested good character of the appellant should not be considered as in any way disproving what had already been found beyond reasonable doubt to be a fact.
(i) That the judge-advocate erred in law by reason of the advices referred to in (h) in suggesting to the court that there was an onus on the appellant to disprove the matters alleged against him.
(j) That on the evidence and by reason of the matters set out herein there was a miscarriage of justice.
It becomes necessary to refer shortly to the evidence. It appears that on Sunday, 7th June, 1959, at approximately 0650 hours Captain Lindsay entered the officers' quarters at Murray barracks, Port Moresby. He passed the appellant's room and noticed that
(1960) 8 FLR 364 at 367
the bed was unoccupied. Having heard a noise he then entered the duty officer's room, which adjoined, and found two male persons asleep in a single bed. He left the room and returned with Major Patterson at approximately 0720 hours. They found the appellant fast asleep in the bed with a male civilian also asleep who was later identified as Graham Kendall. The two persons were partially covered by a sheet, and on removing the sheet it was found that the appellant was clad in a singlet and underpants which were around his ankles leaving his genital organs exposed. Kendall was clad in a sports singlet, underpants and shorts. The underpants and shorts were open and down about the middle of his thigh, leaving his genital organs exposed. There were cigarette butts lying about and there was a partially filled glass of beer on either side of the bed. After several attempts had been made to awaken him by shouting, the appellant was awakened eventually by being shaken violently. He then appeared to be dazed, made several unintelligible sounds, and staggered about the room. When asked the name of the other occupant of the bed, the appellant made six or seven attempts to form a word, beating his brow, twisting his face and eventually saying "Everett". Kendall was also awakened and wandered round the room in a dazed fashion. Captain Lindsay stated in his opinion the appellant was suffering from the after effects of over-indulgence in alcohol.
Evidence was given by Captain Lindsay that there were certain stains in the middle of the sheet, three or four about the size of a shilling piece. He stated that the stains were virtually colourless and they were dry.
Major Patterson stated that about the centre of the sheet there appeared to be a stain of some substance, a liquid appeared to have been spilt on the sheet. There were about six or eight blotches of a "greyey-brown" colour, and they appeared to be of recent origin as they looked damp. No evidence was given as to the state of the sheet prior to its use that day. The stains on the sheet were not examined scientifically as Major Patterson ordered it to be boiled.
Evidence was given by Captain Todd, a medical officer called on behalf of the appellant, and he was asked what colour stains could be expected from seminal fluid on a sheet. He stated that such stains would be reasonably colourless or a colour of fresh dampness as from water.
The appellant, who gave evidence, stated that he had not seen any stain, but he had not examined the sheet carefully to see if there was one.
Some short time after he had been awakened the appellant was questioned by Major Patterson. Major Patterson gave evidence as follows: "I said, `Do you have any explanation to offer for
(1960) 8 FLR 364 at 368
this performance?'. He said, `No Sir' ... I said, `I will be preferring charges against you ... You can consider yourself under open arrest. If you want anything you can contact the duty officer'. He said, `What are the charges?' or `What are the charges I am on'. I said, `Sodomy for one'. He said, `Oh no Sir, not that'. I said, `Why not?' He said, `Because it is not true'. I said `Well, it will certainly be scandalous behaviour and conduct prejudicial to good order and discipline when I get around to preferring the charges' ".
The appellant gave evidence that on Saturday, 6th June, 1959, after lunch and a couple of drinks he had played golf. After golf, until about 9 p.m., he drank a considerable number of rums, approximately fifteen, and had eaten a steak sandwich. At 9 p.m. he left for a party taking two bottles of rum with him. The first bottle was consumed at the party, the second bottle was opened, and he drank a considerable portion of it. He left the party about 2 or 3 a.m. in the company of Kendall who drove him to the barracks. He stated he was feeling alright but when he got to the car he began to feel the effects of the liquor. During the half mile drive to the barracks he considered that Kendall was not driving well on account of being under the influence of liquor and he suggested that Kendall stay overnight at the barracks, in view of the fact that he would have a five mile drive back to Konedolu.
After reaching the officers' quarters at Murray barracks, the appellant and Kendall consumed a small quantity of beer in the appellant's room, examined a pistol and listened to a short wave wireless. Kendall then proceeded to the duty officer's room. The appellant, who said he was then partially undressed, heard some noise and found Kendall lying on the spare bed, which was not made up but had some clothing on it and golf clubs leaning against it. He directed Kendall to the other bed which was made up with two sheets. Kendall moved over to the other bed and lay down. He took his glass of beer with him. The appellant on entering the room had placed the glass of beer he was carrying on a small bedside table by the duty officer's bed. He sat on the side of the bed talking to Kendall. He then went to the toilet taking his beer with him. Having returned to Kendall's room again, he sat on the side of the bed, talking and drinking his beer. He stated he lay down beside Kendall from tiredness and from complete fuzziness from beer and fell asleep. He lay down from the effect of the drink. He stated it was not his intention to stay there. He lay down on top of the sheet. He did not get under the sheet consciously. He further stated he could not explain the position of his clothing other than tossing and turning in his sleep. He denied that any impropriety had occurred, or that he had deliberately removed his clothing.
Kendall gave evidence that he was "pretty drunk" when he arrived at Murray barracks, and that he thought he was incapable
(1960) 8 FLR 364 at 369
of driving. He stated that he had some beer and then went on to the bed in an adjoining room. The appellant who he said was fully dressed came in and told him to shift on to an adjoining bed as that bed had sheets on it. He said he went over and sat on the bed, had a mouthful of beer, put that down and "flaked". He vaguely remembered talking to the appellant. He denied that any improper conduct had taken place. He could not explain about his clothing, but stated that he usually slept without clothes and may have made an attempt to get them off.
We have stated in the case of Re Schneider's Appeal (1958) 8 F.L.R. 314 what are the functions of the Tribunal, and we referred to the words of Lord Goddard C.J. reported in R. v. Linzee [1956] 3 All E.R. 980, at pp. 981, 982. We repeat that we do not try anyone, but we sit as a court of appeal. An appeal before us is not a rehearing.
It is useful to recall the reminder of the learned Lord Chief Justice as to the requirements of a summing-up. He said, "We have to see that the summing-up was adequate and, as we have repeatedly said in the Court of Criminal Appeal, the summing-up is adequate if it states fairly the facts for the prosecution and states fairly the nature and evidence of the defence. It is not necessary to go into every point which the defence has raised. It is not necessary to go into the evidence of every witness. The court has to be reminded of the nature of the defence, and it is desirable that they should be reminded in substance but not in detail, of the evidence given for the defence" [FN1] .
To which we would add that the summing-up must refer to the fact that the onus of proof lies upon the prosecution, and that the court-martial before convicting must be satisfied beyond reasonable doubt of the guilt of the accused.
Ground (a) of the grounds of appeal raised the question that the charge was bad in law in that the particulars therein did not support the statement thereof. We have not found it necessary to deal with this ground of appeal, as we have reached a firm conclusion on other grounds that the appeal must be allowed.
Ground (c) raised the question as to the adequacy of the directions given by the judge-advocate as to the stains said to have been on the sheet. It is not necessary to refer in detail to the evidence of the stains, other than to state that the evidence of Major Patterson and Captain Lindsay differed as to the appearance and colour of these stains. The stains were not the subject of any scientific examination, and there was no evidence that the stains were of seminal origin or as to when or how they originated. There was no evidence as to the condition of the sheet prior to its use on the night of 6th-7th June, 1959.
(1960) 8 FLR 364 at 370
There can be little doubt from a consideration of his opening address that the prosecuting officer had intended to rely on these stains as proof that sodomy had taken place. However in his closing address he conceded that the court-martial could not be satisfied beyond reasonable doubt as to what the stains were. He submitted however that if the court-martial came to the conclusion that some indecent act had occurred during the evening then they could regard the evidence of the stains, not as positive evidence, but as evidence which was not inconsistent with the conclusion the court-martial already had reached.
In his summing-up the judge-advocate referred to the stains, and to the evidence of Captain Todd, and said it was a matter for the court-martial what weight the court-martial would attach to "them" as evidence.
Mr. Hogan on behalf of the appellant submitted that the judge-advocate should have advised the court-martial that it was not entitled to use the presence or existence of the stains as evidence against the accused. Mr. Selby conceded that the summing up as to the evidence of the stains was unsatisfactory, but submitted that it was correct so far as it went.
There is no doubt that the prosecution had regarded the stains as important evidence that sodomy had been committed, but at the conclusion of the case the prosecuting officer very properly submitted in effect that the court-martial could not be satisfied that these stains were stains of seminal fluid.
We agree with Mr. Selby on behalf of the respondent that the summing-up was unsatisfactory on this portion of the case, and we have no doubt that it constituted a misdirection. The court-martial should have been warned that there was no evidence that the stains were seminal in character, and should have been advised to disregard this evidence entirely.
Ground (e) raised the question of the onus of proof. The judge-advocate used these words in his summing up: "So that in the first instance you will have to decide (it is purely for you, gentlemen, as a matter of fact) what evidence you are going to accept and what evidence you are going to reject and on the evidence whether you can as a matter of fact feel satisfied beyond reasonable doubt that either some grossly improper act (as has been acknowledged as one test of scandalous conduct) or some lesser act of impropriety occurred or even accept the explanation of the accused that the whole affair has an innocent connotation and nothing improper to it". The appellant submitted that this direction was wrong in that it implied that the court-martial had to be satisfied beyond reasonable doubt of any explanation given by the appellant.
We agree that this part of the summing-up was unsatisfactory. We are mindful that several times during the course of the summing-up
(1960) 8 FLR 364 at 371
the judge-advocate reminded the court-martial that, before they could convict, they must be satisfied beyond reasonable doubt of the guilt of the accused. However, even reading the summing-up as a whole, we are satisfied that a clear direction on the onus of proof was not given.
The onus of proof lay on the prosecution throughout the case. Even if the court-martial wholly rejected the evidence of the appellant and his witness, the question still remained whether on the evidence it did accept the court-martial was satisfied beyond reasonable doubt of the guilt of the appellant. Reading the summing-up as a whole we are satisfied that the directions of the judge-advocate as to the onus of proof were inadequate and that the inadequacy amounted to a misdirection.
We turn now to ground of appeal (f), which raised the question of mens rea. Mr. Hogan submitted that although on the first charge it was not necessary to prove a specific intent, mens rea had to be established. Mr. Selby conceded this, but submitted that the evidence did not justify any possible view that there was an absence of mens rea.
We are in agreement with counsel that mens rea was a necessary ingredient of the crime charged. Whether it had been proved beyond reasonable doubt was a crucial question to be considered by the court-martial.
The case presented to the court-martial by the prosecution was that the appellant had been guilty either of sodomy or of some lesser act of indecency. For the defence it was argued that at the moment the appellant lay down he fell asleep, the sleep being induced by the excessive amount of alcohol which he had taken, that prior to the appellant falling asleep no acts of indecency took place, and that to his knowledge no acts of indecency did take place. It is undisputed that the appellant was still suffering from the effects of heavy intoxication when he was discovered in the morning by Captain Lindsay. Before it could properly convict the appellant, the court-martial had to be satisfied that he knowingly committed some act of indecency. On this matter it was not properly directed, having regard to the undisputed evidence of drunkenness.
There was no direct evidence of any act of indecency. If indecency could be inferred to have taken place, the evidence was equally consistent with any of the following inferences, namely, that the appellant had committed an act of indecency and that Kendall was asleep at the time, that each party had committed an act of indecency, or that Kendall had committed an act of indecency and that the appellant was asleep at the time.
It is clear to us from the summing-up that the appellant's case was not put by the learned judge-advocate to the court-martial. It is true that the judge-advocate reminded the court-martial
(1960) 8 FLR 364 at 372
that they must be satisfied beyond reasonable doubt of the guilt of the appellant, and that he directed the court-martial that they must decide whether they could accept the explanation of the appellant that the whole affair had an innocent connotation and that there was nothing improper to it. But nowhere in the summing-up is any attention drawn to the defence of the appellant, nor is any reference made to the evidence called on behalf of the appellant. No reference is made at all to the appellant's intoxication and to the question of mens rea, nor to the possible inference that, if any act of indecency did occur, it was not the act of the appellant. In our view these omissions in the summing-up amount to a serious misdirection and constitute a substantial miscarriage of justice.
Ground (g) raised the question that the judge-advocate erred in law in not advising the court that the uncontested good character of the appellant was a circumstance to be considered by it in determining his guilt or innocence. At common law evidence of good character has always been admissible as evidence to be considered on the question of guilt or innocence. In dealing with character in the summing-up the learned judge-advocate used the following words: "In taking good character into account, you should not consider evidence of good character as in any way disproving what you have already found and found beyond reasonable doubt to be a fact". He then went on to say that good character was not contested. He concluded his summing up by reminding the court-martial of the onus of proof.
The judge-advocate failed to give the appellant the benefit of a direction that the court-martial should consider the evidence of good character along with all the other evidence in deciding whether or not the prosecution had satisfied it beyond reasonable doubt of the guilt of the accused. This failure, in our opinion, in the circumstances of this case, amounted to a misdirection.
Our examination of the various grounds of appeal has satisfied us that the summing-up of the learned judge-advocate was inadequate and did not state fairly the nature and evidence of the defence.
An accused is entitled to justice, and that is justice according to law. An accused fails to receive such justice if matters proper to be considered by the court martial are not fully explained in the summing-up of the judge-advocate. We have no doubt that by reason of the insufficient directions of the judge-advocate to which we have referred a substantial miscarriage of justice occurred in the conduct of the trial.
We have set out above the reasons which impelled us to the conclusion at the end of the argument on 21st December, 1959, that the appeal must be allowed. We considered it proper to notify
(1960) 8 FLR 364 at 373
the parties then of our decision, and intimated that we would publish our reasons later.
For the reasons which we now have stated we order that the appeal be allowed and the conviction quashed.
Orders accordingly.
Solicitors for the appellant: Magney & Magney.
Solicitor for the respondent: H. E. Renfree (Commonwealth Crown Solicitor).
A.J.L.
[FN1] [1956] 3 All E.R., at p. 982.
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