(1968) 13 FLR 247[lb.013.FLR.00247]

[COURTS-MARTIAL APPEAL TRIBUNAL]

Re DEAN'S APPEAL

Courts-Martial Appeal Tribunal: Macfarlan J., President, Coldham Q.C., Deputy President, and Wright, Member

18th, 19th July; 30th August 1968
13 FLR 247

Defence -- Discipline of members of forces -- Offences -- Neglect in relation to aircraft likely to cause death or injury -- Safety measures prescribed by Air Board order -- When order takes effect -- Failure to inspect maintenance work -- Subsequent crash of aircraft through faulty maintenance work -- Whether crash caused by failure to inspect -- Whether recklessness must be established -- Air Force Act (Imp.), s. 39A(1)(e) -- Air Force Act 1923-1965, s. 5.

Section 39A(1)(e) of the Air Force Act (Imp.), applicable to members of the Royal Australian Air Force by s. 5 of the Air Force Act 1923-1965, provides that every person subject to the Act who is guilty of any act in relation to any aircraft which causes or is likely to cause loss of life or bodily injury to any person shall on conviction by court-martial be liable, if he has acted wilfully or with wilful neglect, to suffer penal servitude, or such less punishment as is in the Act mentioned, and in any case to suffer imprisonment or such less punishment as is in the Act mentioned.

A non-commissioned officer in charge of maintenance work on an aircraft was convicted by a court-martial of neglect in relation to an aircraft which was likely to cause loss of life or bodily injury to a person in that he failed to make an inspection prescribed by certain Air Board orders, as a result of which he failed to discover that two aircraftsmen

(1968) 13 FLR 247 at 248

had omitted to replace into the engine of the aircraft an essential piece of equipment, resulting in the aircraft crashing. The Air Board orders relied on by the prosecution were superseded by Air Board orders promulgated before but not officially published on the non-commissioned officer's squadron detachment until six days after the aircraft was serviced.

Held: (1) That as the subsequent Air Board orders had not been published on the non-commissioned officer's squadron detachment until after the time of the offence charged, the previous orders had not, at that time, been superseded and were in force on the detachment at that time.

(2) (a) Neglect to carry out an inspection may, as a matter of law, operate as a cause of an aircraft disaster. (b) The question of the foreseeability of the failure of the aircraftsmen to replace essential equipment into the engine of the aircraft was not a relevant consideration to the charge. The question for the court-martial to determine was whether the conduct of the officer amounted to a neglect which was likely to cause death or bodily injury and the court-martial was entitled to find such conduct established.

(3) That to establish neglect under s. 39A(1)(e) of the Act it is not necessary to establish neglect amounting to recklessness. Simple negligence, blameworthy in the circumstances, will suffice.

COURTS-MARTIAL APPEAL.

A non-commissioned officer of the Royal Australian Air Force appealed against his conviction by court-martial of an offence against s. 39A(1)(e) of the Air Force Act (Imp.) applicable to members of the Royal Australian Air Force by s. 5 of the Air Force Act 1923-1965. The material facts appear from the reasons for decision.

A. B. Shand, for the appellant.

W. H. Derton, for the respondent.

Cur adv vult

30 August 1968

The following decision was delivered:

On 16th August, 1967, George William Dean, a sergeant of the Royal Australian Air Force, was convicted by district court-martial and sentenced to be severely reprimanded upon a charge laid under s. 39A(1)(e) of the Air Force Act (Imp.) as applied to the Royal Australian Air Force. That subsection is in the following terms:

"Every person subject to this Act who commits any of the following offences; that is to say--

(a) wilfully or by wilful neglect or negligently damages, destroys or loses any of His Majesty's aircraft or aircraft material; or

(b) is guilty of any act or neglect likely to cause such damage, destruction, or loss; or

(c) is guilty of any act or neglect (whether wilful or otherwise) which causes damage to or destruction of any public property by fire; or

(1968) 13 FLR 247 at 249

(d) without lawful authority disposes of any of His Majesty's aircraft or aircraft material; or

(e) is guilty of any act or neglect in flying, or in the use of any aircraft, or in relation to any aircraft, or aircraft material, which causes or is likely to cause loss of life or bodily injury to any person; or

(f) during a state of war wilfully and without proper occasion or negligently causes the sequestration by or under the authority of a neutral state or the destruction in a neutral state of any of His Majesty's aircraft,

shall on conviction by court-martial, be liable, if he has acted wilfully or with wilful neglect, to suffer penal servitude, or such less punishment as is in this Act mentioned, and in any case to suffer imprisonment or such less punishment as is in this Act mentioned."

The charge against Sergeant Dean (to whom we will now refer as "the appellant") was laid under s. 39A(1)(e) of the Act, and alleged that he was " ... guilty of neglect in relation to an aircraft which was likely to cause loss of life or bodily injury to a person in that he at Darwin in the Northern Territory on or about the 14th day of March, 1967, when as Non-Commissioned Officer in Charge of Trade it was his duty to supervise the carrying out of Royal Australian Air Force special technical instruction ATAR/51 on ATAB engine number CAC 80, so negligently carried out his duties as to fail to ensure that the internal circlip was fitted in accordance with paragraph D(1)(d) of the said special technical instruction, which neglect was likely to cause loss of life or bodily injury to Flight Lieutenant J. L. Ellis (0315190), the pilot of aircraft A3-46, which he flew after ATAR engine number CAC 80 was subsequently fitted to the said aircraft."

At the court-martial the prosecution tendered two Air Board orders and relied upon them as the source of the duty alleged in the particulars to the charge. These Air Board orders were referred to as T 25-11 and T 25-12, issued in the months of October and August of 1962. Evidence was given that these were the only relevant orders in operation on the squadron detachment in which the appellant was serving at the time and place of the alleged offence.

During the course of evidence Mr. Shand, who appeared for the present appellant at the court-martial and upon this appeal, tendered two further Air Board orders issued by the Air Board or on its behalf in January 1967, which expressly superseded the orders relied upon by the prosecution. Evidence was given at the court-martial that these latter orders were not officially published on the appellant's squadron detachment until six days after the neglect alleged in the charge. However, before the court-martial and upon

(1968) 13 FLR 247 at 250

this appeal Mr. Shand submitted that the issue of an order by or on behalf of the Air Board had the effect of superseding any other order relating to the same subject matter as from the date of its promulgation or official issue, and that reliance upon the earlier orders rendered the charge invalid. We cannot accept this submission; to do so would have chaotic and indeed hazardous effects throughout the service. The orders of 1962, which had not been superseded on the appellant's squadron detachment by publication of the later orders of 1967, were correctly relied upon by the prosecution as being those which were in force on that detachment at the time of the offence alleged in the charge.

These orders of 1962 placed a responsibility upon the Non-Commissioned Officer in Charge of Trade to make check inspections of all servicing operations upon aircraft and to carry those inspections out progressively during the course of those operations.

The evidence disclosed that the appellant was, on 14th March, 1967, the Non-Commissioned Officer in Charge of Trade in the Engineering Section 481 Squadron detachment at Darwin. On that date it became necessary to carry out a standard technical instruction (or S.T.I.) upon the ATAR engine installed in Mirage aircraft A3-46. This instruction, known as S.T.I.(ATAR) 51, required a periodical inspection of the reduction gear box drive shaft and the coupling shaft of ATAR engines. If excessive wear was detected upon the splines of either of these shafts, replacement was necessary. Instruction was given as to the disassembly of the reduction gear box if replacement of a shaft was required, and as to the reassembly of the various components after the new shaft had been fitted. Included in the reassembly instructions was a requirement to replace the internal circlip. The function of this circlip is to prevent movement of the coupling shaft into the reduction gear drive shaft and to maintain a proper engagement between the latter shaft and the compressor drive shaft. Evidence was given to the court-martial that the presence of this internal circlip is vital to the proper functioning of the aircraft engine and of the aircraft; its absence ultimately leading to irreparable flame-out of the engine.

Two aircraftsmen, Corporal Windsor and L.A.C. Twomey, who were assisted in a minor degree by L.A.C. Hartley, were detailed to carry out the S.T.I. to which we have referred. Windsor and Twomey had carried out this S.T.I. on previous occasions but had never had to replace any shafts or perform any reassembly after the replacement of a shaft. The appellant, as Non-Commissioned Officer in Charge of Trade, was present from time to time during the disassembly and confirmed that the gear shaft was unserviceable and required replacement. However he did not attend to supervise or check any of the reassembly work until after the reduction

(1968) 13 FLR 247 at 251

housing had been resealed, his explanation being that he was required to attend early lunch and was thereafter required to perform duties on the flight line. After reassembly the appellant signed the relevant servicing record certificates that he had carried out the inspection of the tasks involved in the S.T.I.

On 3rd April, 1967, Flight Lieutenant Ellis was flight testing Mirage aircraft A3-46 when the engine flamed out, and after repeated but unsuccessful attempts to restart it he successfully ejected from the aircraft into the sea at a height of approximately 1,000 feet. The aircraft engine was recovered and, upon a detailed inspection, it was established that the flame-out was caused when the drive coupling became disengaged from the compressor drive shaft due to the absence of the internal circlip. It was stated in evidence that the absence of this circlip was explained by the fact that it could not have been refitted during the reassembly involved in the S.T.I. carried out on 14th March, 1967. This was the S.T.I. which was carried out by Windsor and Twomey and which, pursuant to the Air Board orders of 1962, it was the duty of the appellant to supervise and check.

In an argument directed to the charge itself it was submitted on behalf of the appellant, in a twofold argument, that any neglect on his part could not be held, as a matter of law, to have been likely to cause death or bodily injury to any person. The first limb of this argument put the emphasis on the causative aspect of the alleged neglect. It was urged that the direct cause of the flame-out could only have been the omission of Windsor and Twomey to refit the internal circlip and that any neglect on the part of the appellant to ensure that the circlip was refitted was no more than a causa sine qua non and not a cause within the contemplation of s. 39A(1)(e). We do not consider that terms such as causa sine qua non and causa causans are of material assistance in deciding this first point. It is true that Windsor and Twomey were obliged to insert the circlip and that their failure to do so was a cause of the flame-out. But there was also evidence that the appellant was under a duty to carry out an inspection, the nature of which was to check the work done by these two aircraftsmen. His failure to carry out that inspection could also, as a matter of fact, be said to be a cause of the flame-out because, had he undertaken the required inspection, a valid inference could be drawn that the absence of the circlip would have been noted and the defect remedied. Whilst we recognize that there may be cases where a neglect to carry out a duty could not, as a matter of law, be held to operate as a cause of an aircraft disaster, we are satisfied that in the present case it was open to the court-martial to conclude that the omission by the appellant to make the required inspection operated as a cause of the flame-out in the engine installed in Mirage aircraft A3-46.

(1968) 13 FLR 247 at 252

The second limb of this argument was more sophisticated. It was submitted that the appellant's neglect to ensure that the circlip was fitted could only be likely to cause death or bodily injury if it was more probable than not that Windsor and Twomey had failed to replace it. If the circlip had in fact been replaced then a neglect on the part of the appellant to ensure that this was so could not amount to a neglect which was likely to cause death or bodily injury. Therefore, unless it could be reasonably contemplated by a person in the position of the appellant that the circlip was probably absent, then any neglect to check its installation could not be a neglect of the nature contemplated by s. 39A(1)(e). But this argument confuses foreseeability with causation. The two concepts are of course entirely separate--Chapman v. Hearse (1961) 106 C.L.R. 112, at p. 122--and issues of foreseeability are not relevant considerations with respect to a charge under s. 39A(1)(e). The simple question in this context is whether the conduct of the appellant amounted to a neglect which was likely to cause death or bodily injury to a person. Had the circlip been inserted then the neglect of the appellant to ensure that this was so would not be a neglect likely to cause death or bodily injury. In the present case, since there was evidence that the circlip was absent, it was open to find that the neglect was of this nature.

Further submissions on behalf of the appellant involved, firstly, an examination of the summing up of the judge advocate on the law applicable to the present charge and, secondly, an appraisal of the evidence to decide whether the court-martial was entitled to convict. Briefly, we consider that it was open to the court-martial to convict the appellant upon the evidence before it, and that the judge advocate did not misdirect the court-martial in any manner which was likely to cause any substantial miscarriage of justice to the appellant. However, in the course of his summing up he directed that the court-martial should be satisfied, before convicting the appellant, that the neglect on his part was of so gross a nature as to amount to recklessness. This direction equated the quality of the neglect contemplated by s. 39A(1)(e) with that required in cases of manslaughter by omission. In support of an argument that there was evidence of neglect sufficient for the court-martial to convict the appellant, Mr. Denton, who appeared for the Air Board, contended that the judge advocate had applied too high a standard and that something short of recklessness was sufficient to sustain the charge. In our view the judge advocate did apply too high a standard; not with any strong view that such a standard was required, but after expressing a doubt on the matter, and deciding it in favour of the appellant.

(1968) 13 FLR 247 at 253

In the course of his submission that the judge advocate was correct in directing that recklessness was the standard by which to judge the conduct of the appellant, Mr. Shand relied on the case of Deacon v. Evans [1911] 1 K.B. 571. In that case the master of a merchant ship was charged under s. 220 of the Merchant Shipping Act, 1894 (Imp.), which, so far as relevant, enacted: "If a master ... belonging to a British ship ... by wilful breach of duty or by neglect of duty or by reason of drunkenness ... (b) ... omits to do any lawful act proper and requisite to be done by him for preserving the ship from immediate loss, destruction, or serious damage ... he shall ... be guilty of a misdemeanour."

The ship collided with a trawler by reason of the master's failure, himself, to keep a proper lookout, or because he failed to station a lookout man on the forecastle. In the course of a short judgment, Lord Alverstone C.J. concluded that the omission of the master did not constitute a misdemeanour within the section. He said: " ... that section was not intended to make criminally liable a person who has been negligent in the discharge of his duty, which he is carrying out or purporting to carry out, in the navigation of a ship. If it was intended to make simple negligence a criminal offence other language would have been used" [FN1] .

And Hamilton J., after pointing out that the section deals not with neglect of duty but also with wilful breach of duty and drunkenness, concluded that the section did not include " ... mere want of proper care in the discharge by the master ... of his duty" [FN2] .

In our opinion this case does not assist in interpreting the standard of care to be applied in the offence with which the appellant was charged. Section 39A(1)(e) does not create a civil offence; its terms apply to members of an armed service who by the Act and regulations are subject to standards of discipline not pertaining to the civilian. They are enlisted in the service of the Crown, and s. 39A(1) is directed to the conduct of such persons towards Crown property: cf. R. v. Owen Canada, C.M.R., vol. 2, judgment 13th February, 1959. Moreover the terms of s. 39A(1)(e) are entirely different from s. 220 of the Merchant Shipping Act, 1894. Prima facie it would seem that Lord Alverstone's words, "If it was intended to make simple negligence a criminal offence other language would have been used", support a conclusion that the plain wording of s. 39A(1)(e) unembellished by any adjectives or adverbs does include simple acts or neglect.

In deciding upon the degree of negligence necessary to constitute an offence under statutes which make negligence or other acts or omissions punishable, it is necessary to be guided by the terms and context of the statute itself, and what has been decided with

(1968) 13 FLR 247 at 254

respect to other enactments, differing in wording and applying to varying persons in the use of differing things, under a miscellany of circumstances, can be, at best, only a guide: cf. Dabholkar v. The King [1948] A.C. 221; Clout v. Hutchinson (1950) 51 S.R. (N.S.W.) 32; 67 W.N. 203; Deacon v. Evans [1911] 1 K.B. 571; R. v. Owen Canada, C.M.R., vol. 2, judgment 13th February, 1959.

In some of the six parts into which s. 39A(1) is divided it is a wilful act ("wilfully" being the term used to describe such an act) or a "wilful neglect" which is punishable. In other parts of the subsection, including par. (e), it is any act or neglect at which the enactment is aimed. It is reasonable to suppose that a high degree is aimed. It is reasonable to suppose that a high degree of care is to be expected of persons flying, handling, or maintaining an aircraft, not only from the vital aspect of safety, but because an aircraft is very valuable equipment. Having regard to these considerations, it is not surprising to find that the concept of "wilfulness" is absent from par. (e) of the subsection. Wilful neglect connotes a conscious determination to refrain from doing that which one is under a duty to do; but neglect may be brought about by reason of thoughtlessness. Thoughtlessness postulates a state of mind where a person knows of his duty as part of his general fund of knowledge or by reason of his position ought to know of it, but nevertheless does not advert to it, or takes no proper steps to acquaint himself of its existence and act upon it. To introduce recklessness as a necessary ingredient of the neglect referred to in s. 39A(1)(e) is to introduce a qualification into the plain wording of the section, and we can see no justification for so doing.

Therefore we consider that the judge advocate, when he directed the court-martial that the neglect of the appellant must come "up to the criminal standard of negligence, that is recklessness", overstated the standard of the neglect necessary to sustain a charge under that part of the subsection.

Finally, we do not consider it necessary for a court-martial to decide firstly whether there has been a neglect and secondly whether that neglect was likely to cause death or bodily injury to a person. As we foreshadowed earlier with regard to the question of causation, the likelihood of death or bodily injury qualifies the nature of the neglect of which the court-martial must be satisfied. If, upon the evidence, there is a satisfaction beyond reasonable doubt that the conduct of an accused person constitutes a neglect which is likely to cause death or bodily injury, then, if there be a similar satisfaction upon one further matter, a conviction is open. The tribunal must also be satisfied that the accused person is, in the wording of the section, "guilty" of the neglect. Is the neglect blameworthy

(1968) 13 FLR 247 at 255

or culpable? The answer to this final question is a conclusion of fact, and it is relevant to consider any external factors which might have been operating at the relevant time. Without being exhaustive, such factors would include availability of proper tools and equipment, conflict of duties, and circumstances of emergency which might have diverted the accused person from the task which it was his duty to perform. Factors operating upon the mind of that person which have led to a mistake or to a state of inaction explaining inadvertence may also be relevant to the question whether the neglect is blameworthy or culpable.

So it appears to us, assuming a duty is established, that only two further questions arise with respect to the charge which is the subject of this appeal. Firstly, has it been established beyond reasonable doubt that the conduct of the accused person amounts to a neglect in relation to an aircraft which was likely to cause death or bodily injury? If so, has it been established that that neglect is blameworthy or culpable in the circumstances? If there is evidence upon which the court-martial can answer these questions affirmatively, then a conviction is open.

In the light of our interpretation of s. 39A(1)(e) it follows that the judge advocate misdirected the court-martial. However the misdirection was unnecessarily favourable to the appellant who must inevitably have been convicted had the court-martial been asked to judge his conduct by the significantly lower standards to which we have referred.

We have also considered the advice given by the judge advocate as to the effect of the good character of the appellant, and for reasons we have expressed in earlier decisions we are of the opinion that it was wrong. However, we are also of the opinion that neither the misdirection of the judge advocate nor any other error in his advice involved a substantial miscarriage of justice, and

the appeal must therefore be dismissed.

Orders accordingly.

Solicitors for the appellant: Dudley Westgarth & Co.

Solicitor for the respondent: H. E. Renfree (Commonwealth Crown Solicitor).

A.J.L.

[FN1] [1911] 1 K.B. 571, at p. 574.

[FN2] [1911] 1 K.B. 571, at p. 574.

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