(1984) 73 FLR 124[lb.073.FLR.00124]

[COURTS-MARTIAL APPEAL TRIBUNAL]

Re DURICK'S APPEAL

The Honourable F X Connor QC (President), Murray J and Judge Broad (Members)

20, 21, 22 August, 18 September 1984
73 FLR 124

Defence and War -- Defence forces -- Offences by members of forces -- Trials by courts-martial and appeals therefrom -- Charge of one offence of stealing -- Evidence of stealing offences generally -- Similar fact evidence -- Naval Discipline Act 1957 (Cth).

Defence and War -- Defence forces -- Offences by members of forces -- Trials by courts-martial and appeals therefrom -- Witnesses -- Evidence of accomplice -- Corroboration -- Charge of procuring person to knowingly make false document -- Person procured giving evidence -- Knowingly making false document from procured false document -- Naval Discipline Act 1957 (Cth).

The appellant was charged, inter alia, with a number of offences laid under the Naval Discipline Act 1957 (Cth). One charge alleged he stole "one carton of cigarettes" and evidence to support the charge was of stealing offences generally. Another charge alleged that the appellant procured L to alter a document so that to L's "knowledge it was false" in a material particular. L was called as a witness. A final charge alleged that the appellant knowing L's document was false prepared a document which he knew to be false. On appeal from conviction,

Held, the convictions ought to be quashed because:

(1) Where a charge specifies one offence then only one offence can be proved and a conviction obtained on evidence of stealing offences generally which does not identify the facts to which the charge relates is bad.

Johnson v Miller (1937) 59 CLR 467 at 487 and 489, applied.

Stokes v Grant [1930] SASR 394, distinguished.

(2) The evidence of stealing offences generally was not admissible as evidence of similar facts or acts as before such evidence can be considered there must be evidence of the crime charged which is identifiable with particularity.

(3) The charge with respect to L and L's evidence indicated that L was a possible accomplice and whether he was or not had to be determined by the court.

(4) Failure to determine whether L was an accomplice meant that the court had failed to consider the customary caution as to the need for corroboration of an accomplice's evidence.

APPEAL

Appeal against conviction by a courts-martial of charges laid under the Naval Discipline Act 1957 (Cth).

K J Perry, for the appellant.

T S Murphy, for the respondent.

Cur adv vult

(1984) 73 FLR 124 at 125

13 September 1984

THE TRIBUNAL. This is an application for leave to appeal by Joseph Michael Durick who was convicted by court-martial in HMAS Penguin on 2 September 1983. He was found guilty on the second, fourth, fifth and sixth charges and not guilty on the first and third charges. By way of penalty he was reduced from the rank of Chief Petty Officer Steward to Petty Officer Steward.

All of the charges arose out of conduct alleged to have occurred in the Wardroom in HMAS Watson at various times during the years 1980 and 1981.

On 11 October 1983 the appellant lodged a petition under reg. 20(3)(a) of the Courts-Martial Appeals Regulations (Cth). On 10 November 1983 the Chief of Naval Staff, acting in accordance with the advice of the Judge Advocate General, Navy and the Acting Director of Naval Legal Services, refused the petition and let the finding and sentence remain undisturbed. On 28 November 1983 the appellant lodged with the Registrar of the Tribunal an application for leave to appeal.

The second charge was laid under s 29(a) of the Naval Discipline Act 1957 (Cth), as it applies to the Naval Forces of the Commonwealth by virtue of s 34 of the Naval Defence Act 1910 (Cth). It charged the appellant that on a day between 12 September 1980 and 1 August 1981 he did steal certain service property namely one carton of Winfield cigarettes, the property of the Wardroom Mess, HMAS Watson. It will be noticed that the period specified in the charge is nearly eleven months. The evidence led in support of the second charge came from Leading Seaman Steward Wilton. He said that he was promoted to Leading Seaman on 12 September 1980 and thereafter one of his duties in the Wardroom Mess was to calculate the bar chits and enter them on a monthly accounts sheet for bar sales. Having given evidence which related to the first charge he deposed, in relation to the second charge, that the appellant obtained cigarettes from the Wardroom bar on a regular basis and that on those occasions he instructed him, the witness, to make out a bar chit in terms of spirits and wines to an equal amount of the cost of the cigarettes and to mark that chit to the food fund. He said that on occasions the appellant took packets of cigarettes and on other occasions cartons of cigarettes. He said that he did not see the appellant place any money into the till for those cigarettes. He said that this happened on a dozen or more occasions before he ceased duty in the bar in June or July 1981 and that these twelve occasions occurred between the time he was first in the bar until he left, which is approximately the time referred to in the charge. Leading Seaman Steward Wilton said that he did not consider this practice wrong because he did not think about it at the time and therefore he did not report it to Warrant Officer Tavener or to Warrant Officer Curtis.

Mr Perry, counsel for the appellant, made a number of submissions in support of the appeal in relation to the second charge including a submission that the learned judge-advocate misdirected the court in that, when referring to the onus of proof at page 395 of the transcript, he may have led the court to believe that it would be necessary for it to accept the accused's evidence before he could be acquitted on the second charge.

(1984) 73 FLR 124 at 126

Mr Perry further submitted that the witness Wilton should be regarded as an accomplice and that the judge-advocate failed to give the court the necessary warnings in relation to the evidence of an accomplice. In view of the conclusions that the Tribunal has reached in relation to Mr Perry's submissions in support of the first three grounds of the notice of appeal it is not necessary to discuss the question whether the passage in the summing up of the judge advocate may have misled the court or whether Leading Seaman Steward Wilton should have been regarded as an accomplice.

The only evidence in support of the second charge was the evidence of Leading Seaman Steward Wilton. It is apparent from his evidence that he was referring to a number of occasions in a period of eleven months on which he said the appellant took either packets or cartons of cigarettes from the bar and failed to pay for them. He said further that the appellant directed him to enter them on a chit in such a manner that the food fund, which was a charge on the Mess generally, would ultimately bear the cost. At the hearing the Accused's Friend did not make any application that the prosecution should give particulars which would sufficiently identify the occasion on which it was alleged that the carton of cigarettes referred to in the charge was taken.

The charge itself was obviously not bad for duplicity in that it alleged one offence only. However, it is clear that the evidence led in support of it identified in general terms a number of different occasions to which it could relate. Had an application been made that the prosecution specify the occasion on which it would rely, it seems highly doubtful that the evidence of Leading Seaman Steward Wilton could have been taken any further in order to identify a particular occasion. Whether this be so or not, no application having in fact been made Leading Seaman Steward Wilton's evidence was allowed to stand in its general form.

Mr Perry referred the Tribunal to a number of decisions in support of the proposition that a conviction obtained in this way should be quashed. In particular we refer to what was said in the High Court in Johnson v Miller (1937) 59 CLR 467. Dixon J (as he then was) said (at p 487):

"Prima facie, but one offence can be proved under one charge. For, except to prove intent or system and to exclude accident or mistake, evidence that accused persons committed other like offences is seldom relevant to the issue of guilt. But, if the present case fell within the prima facie rule, plainly to admit evidence of thirty distinct offences would be contrary to law, and the fact that each satisfied the description contained in the complaint could afford no justification for such a breach of so important a rule. It happens that, unless the appellant abandoned all reliance upon the matters of excuse available to him, issues might arise to which the proof of system or intent and the rebuttal of accident or mistake would possibly be relevant. But the respondent's claim that in proof of the charge he may rely indifferently on each of the thirty persons alleged to have entered or left the hotel cannot depend on this accidental feature of the case. If it be true that, although it appears that a number of offences is said to have been committed at the place and on the date stated in the complaint, the prosecutor cannot be compelled to specify which of them is the subject of the charge, it must follow that he can prove all

(1984) 73 FLR 124 at 127

or any of them in support of his complaint, which ex hypothesi is capable of applying to each of them indifferently, and he must be at liberty to do so whether the case otherwise is or is not one for the admission of evidence of similar acts."

Later in the judgment (at p 489) Dixon J said:

"In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence."

In the present case no question of evidence of similar acts or facts can arise because such evidence can only be led in particular cases in support of proof of the crime charged. It follows that there must be a crime charged which is identifiable with particularity before one can examine the question as to whether other evidence is admissible as evidence of facts or acts similar to it. Mr Perry also referred to the decision of Parker v Sutherland (1917) 86 LJKB 1052.

In reply Mr Murphy, counsel for the Chief of Naval Staff, submitted that the principles relied on by Mr Perry were appropriate only to cases in which the prosecution had been called on to provide particulars and in which the decision before the appellate court was mainly directed towards the question whether the prosecution should have been either required to give particulars or put to its election. The principle, however, cannot in our view be so narrowly confined; and, if no application for particulars is made at the court of first instance, a conviction obtained on evidence which does not identify the facts to which the charge relates is bad. Mr Murphy relied on the decision of Napier J (as he then was) in Stokes v Grant [1930] SASR 394 but a close examination of that case does not really assist him. In that case the evidence was capable of supporting a number of different informations and the justices dismissed the information at the close of the case for the prosecution when the prosecutor refused to specify which of the events he relied on. The decision went on appeal and Napier J allowed the appeal and sent the information back for hearing before a special magistrate. However, it will be noticed that at the end of his judgment His Honour said:

"For these reasons the appeal will be allowed; but I desire to add that the complaint should be amended by specifying some approximate time when or some reasonable period within which the offence is alleged to have been committed."

It seems that Napier J considered that some effort at particularity should be made by the prosecution.

Mr Murphy also referred to other decisions in which evidence of similar facts has been admitted in criminal cases but, for the reasons we

(1984) 73 FLR 124 at 128

have already referred to, we do not think this doctrine can be called into aid to justify the evidence in this case. As we have said, it is not possible to discern from the evidence of Leading Seaman Steward Wilton which incident forms the subject of the charge and which incidents purport to be evidence of similar facts. For the above reasons the Tribunal is of the opinion that the conviction under the second charge cannot stand and must be quashed.

We now turn to the fourth charge which charged the appellant that between 30 September 1981 and 31 December 1981 he did steal certain service property namely one carton of Winfield cigarettes the property of the Wardroom Mess, HMAS Watson.

In the Circumstantial Letter it was said that the basis for the fourth charge was the evidence of Leading Wran Steward Radunz. The letter, amongst other things, said:

"Whilst she was in the bar, the accused on about four occasions came in and took either a couple of packets or a carton of Winfield cigarettes. The accused wrote out a chit for wine and marked it to the food fund."

None of the chits was produced by the prosecution. Mrs Radunz (she had left the Navy by the time the court-martial was held) gave oral evidence concerning them. For some reason, which was not gone into at the court-martial or before us, no foundation was laid for the admission of the oral evidence as, for instance, that the chits had been lost or destroyed. No point was made, however, on behalf of the appellant concerning the admission of this oral evidence of the contents of the chit.

Mrs Radunz deposed that it was part of her duty to price bar chits and write them on the daily forms and put them in the monthly account books. She said that during the period referred to in the charge the appellant ran the bar in the Wardroom of HMAS Watson and that on a number of times he took cigarettes and alcohol from the bar. She said that he would fill in a chit and sometimes mark the chit to mess account No 80 and other times to the food fund. Mess account No 80 was in the name of Warrant Officer Tavener and could be properly used by senior sailors to acquire goods from the bar. If the appellant marked a chit to this account the transaction would not have formed the basis for a charge of theft. If, however, the chit was for cigarettes but was marked to "Food Fund" it would not have been a proper charge on that fund and could have constituted the offence of theft from the Mess. Mrs Radunz said that when the appellant took cigarettes and marked the chit to the food fund he sometimes filled in the chit for cigarettes and at other times filled it in for wine.

The transcript reveals the following passages in the course of her examination in chief:

"Q ... when Petty Officer Simmons was the PO, are you able to say if Petty Officer Durick ever came into the bar? A He did a few times to get alcohol and cigarettes.

Q. And what would be on the bar chit, are you able to say? Did he ever make ... ? A Well, sometimes it was on mess number 80, and other times it was on the food fund.

Q. When you say it was on the food fund, what do you mean by

(1984) 73 FLR 124 at 129

"it"? A Well, sometimes it was cigarettes were written for, and other times wine was written for.

Q. They were written on the chits, were they? A Yes.

Q. And they were marked for the food fund? A Yes.

Q. On the occasions that he wrote chits for cigarettes on the food fund, are you able to say whether he put cigarettes on the chit, or was it wine, or something else? A Sometimes there were cigarettes put on the chit, and other times there was wine.

Q. On the occasions that he put wine, how did you know that it was for cigarettes? A Well, there was not wine taken out of the bar.

Q. At the end of the day or the beginning of the next day, did you do something with the chits? A Yes, I had to price them all and put them on the daily sheets.

Q. When you put them on the daily sheets, what entry would you put them next to? A Well, if it had food fund written on the chit, they would go in food fund. If it had mess number 80, well, it would go on mess number 80.

Q. When you talk about cigarettes, and you say they are Winfields, are you talking about packets or are you talking about cartons? A Mostly packets.

Q. Are you able to say to this Court whether he ever took cartons? A It would have only been once, it would not have been any more times than that.

Q. And on that occasion was that carton or equivalent value placed on a chit for the food fund, to your knowledge? A Do you mean the price?

Q. Yes? A What, the carton written down?

Q. Yes'? A No, not that I know of. It could have, but I do not know.

Q. Was something else written down? A I am not sure.

Q. If alcohol was written down on the chits at the times he took cigarettes, would there be some sort of equivalent value or something of that nature? A A few carafes of wine would be the equivalent value to a carton of cigarettes, or a few glasses would be the equivalent to a packet.

Q. When you got the chits for the day would you staple them all together? A No, the duty bar steward the night before would do that.

Q. And what would you do with them? A I would just price them.

Q. And then transfer them on to the ... ? A Yes.

Q. Did you ever see on the occasions that you have talked about, Petty Officer Durick put money in the till for the cigarettes he took? A No.

Q. Do you know whether he did or not? A I do not know if he did or not. I just did not see."

In cross-examination the following passages occurred:

"Q. When these bar chits were written off to the food fund, who wrote the bar chit? Was it you or Chief Tavener -- Chief Durick, I beg your pardon? A Chief Durick, he always signed it, signed his name on it.

Q. He always signed them, is that right? A Yes.

(1984) 73 FLR 124 at 130

Q. Did he write out the whole bar chit, or did you write it out? A No, he wrote out what he got.

Q. Did you understand one of his responsibilities was, as messman, or one of his responsibilities was to obtain wine for the wardroom for cooking purposes? A Yes.

Q. And that writing a bar chit and marking it to the food fund for that purpose is quite a lawful purpose? A Yes.

Q. And, in fact, can you recall seeing him doing that? A On quite a few occasions he wrote it out for wine for the galley, or spirits for the galley.

Q. You are telling this Court today that on some occasions he helped himself to some cigarettes and then wrote an accompanying bar chit and wrote `wine' on the bar chit? A There was just a few chits written out for the food fund, and they had cigarettes on them with Chief Durick's name underneath.

Q. (Accused Friend) Q Well, you do not remember Chief Petty Officer Durick writing them, but you remember seeing his name on these bar chits and the chits were made out to the food fund for cigarettes? A Yes.

Q. Was there an equivalent money value on the bar chit, shown on the bar chit? A Do you mean -- I do not know what you mean?

Q. Well, say for example a carton of cigarettes, was there an equivalent money value written on the bar chit like $20 or $10? A Yes, sometimes there was prices put on on the chit.

Q. And you are quite certain there was the word `food fund', or abbreviations, `FF' appeared on the chit? A Yes."

Mr Murphy made valiant efforts to persuade the Tribunal that the evidence of Mrs Radunz was more certain than it appeared on a reading of the transcript but the Tribunal remains unconvinced that the evidence was sufficient to justify a conviction having regard to the fact that there was no other evidence in support of the fourth charge and no chits were produced. We think that the evidence was led in a confusing way. We think further that it is extremely difficult to know when Mrs Radunz is talking about what she did generally and what occurred precisely on the occasion when it was said that the carton of Winfield cigarettes, the only subject of the charge, had been taken by the appellant. It seems to have been assumed generally at the Court-martial that Mrs Radunz gave the evidence forecast in the Circumstantial Letter. In our view a close examination of what she said discloses that she did not do so. We do not consider that the evidence could properly have persuaded a tribunal of fact beyond reasonable doubt that the appellant placed the carton of Winfield cigarettes on a chit marked to the food fund. It is therefore not necessary for us to consider the various other submissions which were made by counsel in relation to the fourth charge and in our opinion the conviction on that charge must be quashed.

We now turn to the fifth charge which charged the appellant under ss 41 and 38(a) of the Naval Discipline Act that on a day between 31 August 1981 and 2 November 1981 he did aid, abet, counsel and procure Leading Seaman Steward Kevin John Loccisano to alter an official document, namely a Caterer's Monthly Account Sheet Form FA145, so that to his knowledge it was false in a material particular and on a day between 31

(1984) 73 FLR 124 at 131

August 1981 and 2 November 1981 the said Leading Seaman Steward Kevin John Loccisano did alter the said official document by deleting the amount of $28.63 shown against Mess No 80 and adding the amount of $28.63 to the amount of $222.56 shown against the Food Fund so that to his knowledge it was false in a material particular.

An examination of this charge reveals that, on its face, it alleges that the appellant aided, abetted, counselled and procured Leading Seaman Steward Loccisano to commit an offence and that Leading Seaman Steward Loccisano did commit the offence in question. It was, therefore, part of the case for the prosecution that Leading Seaman Steward Loccisano altered an official document so that to his knowledge it was false in a material particular. In support of the charge Loccisano gave evidence that it was part of his duties to price the chits taken from the Wardroom on the previous day and fill in an account form FA145 accordingly. Loccisano deposed that on the day in question the appellant instructed or requested him to transfer the amount due on Mess Account No 80, namely $28.63, to the food fund account. Loccisano said that in compliance with the appellant's request he whited out the number 80 in the form and also the amount which he had previously inserted as being due on it and added that amount to the food fund. He said that at the time he was aware that Mess Account No 80, on which the appellant had charged items during the relevant time, would not have to be paid as a result of this alteration and that the amount in question would be borne by the food fund. Loccisano said that he did not appreciate that what he was doing was wrong but in another answer he said that there were a lot of perks and that this was just one. It was put directly to him in cross-examination that he was not telling the truth and that either he had done this at the request of a person other than the appellant or that he had fabricated the story in order to protect himself against charges. In these circumstances it is impossible to hold that it would not have been open to the court to find that Loccisano was an accomplice in relation to the offence with which the appellant stood charged. Whether he was an accomplice or not was a matter for the court to decide and it follows that the court ought to have been directed by the judge advocate on the definition of an accomplice in law and on the danger of convicting an accused person on the uncorroborated evidence of an accomplice. Mr Murphy submitted that there was corroboration of the evidence of Loccisano but in our view the documentary evidence on which he relied could only be taken as confirming Loccisano's evidence that an offence had been committed and not as implicating the accused in its commission.

It is most unfortunate that neither the Prosecutor, the Accused's Friend nor indeed the judge-advocate adverted to the question whether Loccisano should be regarded as an accomplice and consequently that a warning ought to be given in relation to his evidence. No such warning was asked for or given. This matter was not originally included as a ground in the application for leave to appeal. It was raised by us early in the hearing of the appeal and subsequently we gave the appellant leave to add it as a ground.

It may be that the court would have been prepared to accept and act upon the evidence of Loccisano notwithstanding the absence of corroboration but it is impossible for the Tribunal to be confident of this.

(1984) 73 FLR 124 at 132

Loccisano admitted that he had been convicted of stealing beer from the Mess and that he was guilty of that offence. He was not, therefore, a witness of unblemished character. It may be that the usual warning in relation to corroboration might have influenced the court to the extent that it would not have been prepared to be satisfied beyond reasonable doubt of the appellant's complicity in the offence. It is, therefore, not necessary for the Tribunal to consider the other submissions made in relation to the fifth charge because in the Tribunal's view the conviction on the fifth charge cannot be allowed to stand and must be quashed.

We turn now to the sixth charge which charged the appellant that on a day between I September 1981 and 6 October 1981 he did make an official document namely a messing statement form FA236 which to his knowledge was false in a material particular in that it showed in the purchases at cost price from other sources at Item C on the said form an amount for the food fund of $251.19 whereas it should have shown an amount of $222.56.

This charge related to the appellant, in the course of his duty, preparing form FA236 which was the monthly messing statement. In it he attributed $251.19 to the food fund. This figure resulted from the alteration carried out by Leading Seaman Steward Loccisano which was the subject of the fifth charge. In order to establish the sixth charge it was necessary for the prosecution to prove beyond reasonable doubt that the form prepared by the appellant was to his knowledge false in a material particular. The appellant gave evidence that for the purpose of preparing form FA236 he obtained the amount for the food fund from the Mess Clerk and that he had no knowledge that this amount was false or that it had been altered by Leading Seaman Steward Loccisano. It seems abundantly clear that if knowledge of the falsity of the figure was to be established it could only have been established through the evidence of Loccisano and for the same reasons that have persuaded the Tribunal that the conviction on the fifth charge cannot stand the Tribunal has come to the conclusion that the conviction on the sixth charge cannot stand.

It follows that the convictions recorded by the court-martial must be quashed.

For the foregoing reasons we grant leave to appeal. We allow the appeal and order that the convictions on the second, fourth, fifth and sixth charges be quashed.

Orders accordingly

Solicitors for the appellant: Herald, Bruce, Brierley & England.

Solicitor for the respondent: T A Sherman, Acting Commonwealth Crown Solicitor.

BAG

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