(1959) 8 FLR 336[lb.008.FLR.00336]
[COURTS-MARITIAL APPEAL TRIBUNAL]
Re FEISS'S APPEAL
Courts-Martial Appeal Tribunal: Macfarlan J., President, McInerney Q.C., Deputy President, and Wright, Member
BRISBANE, 20th, 21st May; SYDNEY, 5th August 1959
8 FLR 336
Defence -- Discipline of members of forces -- Court-martial -- "Briefing" of president by superior officers -- Rejection of material and relevant evidence -- Recall of prosecution witness after case for defence -- Cross-examination by judge-advocate -- Misdirection on onus of proof -- Whether substantial miscarriage of justice occurred -- Hearing of proceedings in camera -- Forbidding publication of documents -- Courts-Martial Appeals Act 1955, s. 18(2), 23(2).
By s. 23(2) of the Courts-Martial Appeals Act 1955, the Courts-Martial Appeal Tribunal may refuse to allow an appeal against a conviction by a court-martial if it considers that no substantial miscarriage of justice has occurred.
Prior to the opening of a court-martial, the president was instructed by his superior officers that the court-martial concerned the loss of certain secret documents and was advised on measures to be taken by him, as president, to safeguard Commonwealth security. At the opening of the court-martial the president made an address referring to such matters. In the course of the court-martial proceedings, (i) material and relevant evidence was rejected, thereby preventing the defence from following a line of inquiry which was plainly relevant; (ii) the judge-advocate cross-examined certain witnesses; (iii) after the close of the defence case, a prosecution witness was recalled to give evidence on a matter which should have been proved as part of the prosecution case and which did not arise from any unexpected development of the defence case, and (iv) in his summing-up, the judge-advocate directed, in effect, that the court-martial had to accept either the case for the prosecution or the case for the defence and gave no direction on the duty of the court-martial to acquit if it was unable to decide where the truth lay. The defendant was convicted. On appeal,
Held: (1) The advice to the president of the court-martial by his superior officers, and his address in pursuance of that advice, were actions which infringed the principle that justice must not only be done, but must also be seen to be done. Principles relating to bias of a tribunal, in the sense of a real likelihood of an operative prejudice whether conscious or unconscious, discussed.
Per the Tribunal--Where an officer commanding is anxious with respect to the disclosure of confidential information at a court-martial the position can be met adequately by giving full instructions to the prosecutor who may then in open court make such submissions to the court-martial as the law permits and the occasion requires.
(2) The prevention of the defending counsel from following a line of inquiry which was plainly relevant was a miscarriage of justice.
Duty of the judge-advocate to advise the court-martial on questions of the admissibility of evidence, referred to.
(1959) 8 FLR 336 at 337
(3) The questioning of the defendant by the judge-advocate partook of the character of cross-examination and resulted in the judge advocate deserting the entirely impartial position required of him by Rule of Procedure 103(h).
(4) Rule of Procedure 86 (D) (which provides that the court may call or recall any witness at any time before the finding if they consider it necessary in the interests of justice) does no more than state the common law rule, namely that the court can allow further evidence to be called, but the power must be exercised according to rule and the Crown case is not to be reopened unless the circumstances are most exceptional. The court-martial erred in law in exercising the discretion conferred by Rule of Procedure 86 (D) by recalling the prosecution witness.
(5) The summing-up of the judge-advocate was defective in that the onus of proof was not properly dealt with and in other matters.
Held, accordingly, that a substantial miscarriage of justice had occurred and that the conviction must be quashed.
Applications under s. 18(2)(a) of the Courts-Martial Appeals Act 1955 for exclusion of the public refused. Orders made that no report of the contents of certain documents be published.
COURT-MARTIAL APPEAL.
The applicant sought leave to appeal against his conviction by a court-martial of an offence against s. 40 of the Air Force Act (Imp.) applicable to members of the Royal Australian Air Force by s. 5 of the Air Force Act 1923-1956. The application for leave to appeal was dealt with as the appeal. The material facts appear from the decision.
W. B. Campbell, for the appellant.
G. Seaman, for the respondent.
Cur adv vult
5 August 1959
The following decision was delivered:
Application by Flying Officer Michael Frederiek Feiss (037392) for leave to appeal against conviction by court-martial, and application for legal aid.
At a General Court-Martial held at R.A.A.F. Base Amberley, Queensland on 28th and 29th October, 1958, Flying Officer Michael Frederick Feiss (037392) General Duties (Pilot) No. 23 (City of Brisbane) (Fighter) Squadron, R.A.A.F. Base Amberley, an officer of the Permanent Air Force of the Royal Australian Air Force was charged with "neglect to the prejudice of good order and Air Force discipline in that he at R.A.A.F. Base Amberley, Queensland, on 22nd May, 1958, when as the officer detailed under Air Force Order 18/B/10' in respect of 23 (Fighter) Squadron, he received a safe hand package registered number S247 from the safe hand officer, Flying Officer R. A. Lynn (05338), failed to ensure the safe custody of such package".
(1959) 8 FLR 336 at 338
The charge was laid under s. 40 of the Air Force Act (Imp.) (applicable to members of the R.A.A.F. by virtue of s. 5 of the Air Force Act 1923-1956). Section 40 (so far as material) is in the following terms: "Every person subject to this Act who commits any of the following offences; that is to say is guilty of any act, conduct disorder or neglect to the prejudice of good order and air force discipline shall on conviction by court martial be liable, if an officer, to be cashiered, or to suffer such less punishment as is in this Act mentioned".
One of such punishments is "Forfeiture in the prescribed manner of seniority of rank" (s. 44(f)). The court-martial was assembled pursuant to an order dated 20th October, 1958, made by Air Vice Marshal Candy C.B.E., Air Officer Commanding Home Command.
At the court-martial Flying Officer Feiss (hereinafter called "the appellant") pleaded not guilty. The court-martial found the appellant guilty of the charge and sentenced him to take rank and precedence as if his appointment to the rank of flying officer bore date 29th October, 1958. The finding and sentence were confirmed by the Air Officer Commanding Home Command on 24th November, 1958, and the finding and sentence as so confirmed were promulgated to the appellant on 25th November, 1958.
On 24th December, 1958, the appellant lodged a petition against conviction which was forwarded for consideration by the Air Board. The petition was refused by the Air Board on 13th February, 1959, and the appellant was advised on 17th February, 1959, of the refusal of his petition.
On 20th February, 1959, the appellant gave notice of application for leave to appeal against the conviction on grounds hereinafter called "the first grounds", which were as follows:
"(a) I am innocent of the offence.
(b) I strongly feel that the President and the two members of the Court from Home Command, had a biassed mind during my trial, through being made aware of the contents of the safe hand package in question and the seriousness with which the loss was viewed by higher authority. I base my views on the following grounds:--
(i) The tone of an irregular address by the President to an open court at the outset and close of proceedings at my trial, left me, and I am sure, others present, with a strong feeling that he had been briefed.
(ii) The President allowing all members of the Court and the judge-advocate, to excessively cross-examine the witnesses, and in particular the sixth witness for the prosecution. The question asked of this witness was in relation to signatures appearing in a pay book which were not proved to be those of the accused, nor were they referred to by either the prosecution or the defence.
(1959) 8 FLR 336 at 339
I felt that the case for the prosecution in regard to the signatures had collapsed when this witness (who was called as an expert) stated to the effect that he would not accept the signature appearing on the safe hand register as being that of the accused. Subsequent cross-examination by the judge-advocate confused this witness and thus strenghtened the case for the prosecution.
(iii) The President failing to call in a hand-writing expert when the question of forgery was raised by the defence. This course would have certainly cleared up a contentious point, and at the same time, proved my innocence. It would appear that the onus of proof was placed upon the defence, which is not in keeping with British justice.
(iv) Although the contents of the missing package were not revealed at the taking of the summary of evidence, or during my trial by court-martial, not one query was raised by the Court as to the contents, or proof of its existence. This I feel is an important point and worthy of some thought, particularly as two members of the Court came from Home Command (the distributing authority of the lost document).
(v) The serious view taken by the Court of the offence is a further indication of biassed minds. In the absence of proof of the contents of the missing package, I was actually found guilty of losing a plain brown envelope 9" x 4", and for this offence I was awarded a forfeiture of twelve months seniority, which on automatic time promotion is equivalent to a forfeiture of approximately £200. I feel sure that under normal circumstances, a person guilty of such an offence would have been dealt with under s. 47 of the Air Force Act and awarded, as a maximum, a severe reprimand.
(vi) Although not one aspect of material evidence for the prosecution was corroborated or substantiated in any way and it took the Court one hour fifteen minutes to reach a finding, the accused still did not receive the benefit of the doubt.
(vii) The main witness for the prosecution, on whose evidence I was found guilty, went into great detail as to how he signed out to me a safe hand package of approximately 9" x 4". The defending officer produced as an exhibit an envelope 15" x 11" and tried to prove through the cross-examination of a prosecution witness that what is believed to be a duplicate of the contents of the missing package was received in this envelope, and that its nature would preclude it from being despatched in anything smaller. He was prevented by the Court from continuing this line of cross-examination and the evidence already recorded, was struck out."
In his application dated 20th February, 1969, for leave to appeal the appellant in answer to Q. 1, "Is any solicitor or other person now acting for you. If so give name and address" stated, "I
(1959) 8 FLR 336 at 340
desire Squadron Leader A. L. McKeown, Special Duties Administrative, No. 3 Aircraft Depot R.A.A.F. Amberley, to act on my behalf".
Squadron Leader McKeown was the officer who had defended the appellant at the court-martial but he was not a "legal practitioner" within the meaning of s. 39 of the Courts-Martial Appeals Act 1955. Upon the Registrar of the Courts-Martial Appeal Tribunal drawing the appellant's attention to the provisions of this section he thereupon consulted Messrs. Henderson & Lahey, solicitors, of Brisbane, who have thereafter acted for him in the proceedings before this tribunal. By letter dated 24th April, 1969, the appellant's solicitors notified the Registrar as follows:
"We have been instructed to inform you that the applicant in this case now intends to amend the grounds on which leave to appeal is sought or was sought in his application, for leave to appeal against his conviction, dated 20th February, 1959. The following further grounds of appeal are as follows:
1. That the decision and findings of the tribunal were wrong in and contrary to law and were unreasonable.
2. That the decision and findings of the tribunal were contrary to and against the weight of evidence and cannot be supported by the evidence.
3. That the tribunal placed reliance upon and were affected prejudicially to the accused by certain signatures in exhibit `P' which were not identified as those of the accused.
4. That the tribunal erred in law in recalling of its own motion the witness Pilot Officer Ryan.
5. That in the circumstances Pilot Officer Ryan should not have been recalled.
6. That evidence was wrongly rejected by the tribunal, in particular evidence as to the identity and contents of exhibit `L'.
7. That the judge-advocate wrongfully refused to allow the defending officer to cross-examine the witness Flying Offieer Williams as to the identity and contents of exhibit L and as to the feet that the contents of exhibit L were duplicates of the alleged or probable contents of safe hand package S247.
8. That the attitude of the president of the tribunal, particularly in relation to his opening address, amounted to a denial of natural justice or to a miscarriage of justice.
9. That there was no or insufficient evidence as to whether safe hand package S247 contained any documents whatsoever and further no or insufficient evidence of the nature of such documents if any.
10. That the judge-advocate interfered to an unreasonable and improper degree in the conduct of the trial, and particularly in the excessive cross-examination by him of witnesses, and that the judge-advocate on occasions assumed the mantle of the prosecuting officer.
(1959) 8 FLR 336 at 341
11. That in any event a new trial should be ordered on the further grounds--
(a) that the accused desires to call fresh evidence not readily available to him at the trial or which he was precluded from calling at the trial namely--
(a) the evidence of a hand-writing expert and
(b) the evidence of Flying Officer Williams as to the identity and as to the contents of exhibit `L'.
12. That in the circumstances the prosecution should have adduced evidence from a person versed and experienced in the identification of hand-writing as to the hand-writing alleged to be that of the accused contained in exhibit `J'.
13. That in the circumstances the tribunal should have been directed that it was unsafe to convict the accused of the charge in view of the testimony as to the identification of the hand-writing alleged to be that of the accused contained in exhibit `J'.
14. That the summing up by the judge-advocate amounted to a mis-direction in that he directed the tribunal as follows:
(a) `Since Flying Officer Lynn is so emphatic that he handed over package S247 to the accused on 22nd May, 1958, you can only come to the conclusion it appears, that Flying Officer Lynn is telling the truth or that he is endeavouring to place the blame on the accused by either himself forging the accused's signature in the safe hand delivery register or being a party to the forging by somebody else.'
(b) `I reiterate again, as the prosecuting officer put it to the Court, that you must have due regard for the appearance of the witness before you when they give their evidence, since in this case you must decide that one witness is not to be believed. Perhaps I should not say that, if you must decide--that is a matter for the Court to make up their minds about. It would appear that you would have to decide to disbelieve either the accused or Flying Officer Lynn.'
(c) `There was evidence given by Pilot Officer Ryan the accountant officer ... he was referred to two signatures in the accused's pay book on 27th February and 7th November and the column on the right hand side officer's signature. He said they appeared to be those of the accused and that they are similar to his signature in exhibit `J' on 22nd May.'
(d) `With the assistance of the evidence of the witnesses on the signatures the Court must form an opinion as to whether the signature in exhibit J on 22nd May is that of the accused.'
(e) `The accused, in relation to his signature in exhibit `J', did say that the one on 22nd May was similar to his own signature and that those in his pay book looked like his signatures'.
(1959) 8 FLR 336 at 342
15. That on the evidence the charges should have been dismissed.
16. That the sentence in the circumstances was excessive."
The grounds set out in the above letter are hereinafter called "the second grounds".
On 17th March, 1959, the appellant lodged, under reg. 11 of the Courts-Martial Appeals Regulations, an application for legal aid.
These applications were mentioned before a single member of the Tribunal in Sydney on 24th March and 10th April, 1959. At the request of the parties the applications were adjourned for hearing before this Tribunal at Brisbane on 20th May, 1959. At the hearing Mr. W. B. Campbell of counsel appeared for the appellant and Mr. G. Seaman of counsel appeared for the Air Board. Mr. Campbell then intimated that the appellant was not proceeding with the application for legal aid, and that application was thereupon dismissed.
Counsel being in agreement that the matter should be fully argued on the hearing of the application for leave to appeal, and that if the Tribunal should think it right to grant leave to appeal no further argument would be advanced, unless something unforeseen should arise, the matter was argued before us on that basis on 20th and 21st May, 1959.
It is convenient to mention two preliminary matters. At the outset of the hearing, Mr. Seaman applied, under s. 18(2) of the Act, that, in the interests of the defence of the Commonwealth, an order should be made that all members of the public be excluded during the whole of the sittings. We refused that application at that stage but gave him leave to renew it at any later stage if he should deem fit. He renewed the application when Mr. Campbell commenced to read a statutory declaration of Flying Officer Williams sworn on 20th May, 1959. We again refused the application, but made an order that no report of the contents of that declaration should be published. Later when Mr. Campbell was proceeding to submit argument with respect to matters disclosed in the statutory declaration of Sergeant Nutting, Mr. Seaman applied for an order that the public be excluded during that part of the sitting. But upon Mr. Campbell intimating that he was prepared to argue his submission without referring to the contents of the documents or to the security procedure referred to in that statutory declaration, it became unnecessary to rule on Mr. Seaman's application. At a later stage when Mr. Seaman tendered the document entitled "Brief", exhibit A, we acceded to his submission that no report of the contents of that document should be published and made an order accordingly.
We do not think that it is necessary, and we are clear that it is not desirable to attempt to embark on an exhaustive commentary of the provisions of s. 18(2) of the Act, particularly when, as here,
(1959) 8 FLR 336 at 343
the factors to be taken into account are set forth expressly in the statute. Attempts to define a statutory discretion all too often result in unduly fettering the discretion intended to be conferred.
The next matter which arose for decision was whether we should permit the appellant to rely on the second grounds, which of course had not been lodged with the Registrar within the prescribed time. Mr. Campbell applied for an order that the time for lodging the application for leave and the grounds in support thereof be extended up to and including 24th April, 1959, basing his application on the fact that the appellant had not had legal advice in relation to his appeal until the Registrar's letter to him pointing out that he could not be represented at the appeal except by a legal practitioner. Mr. Seaman conceded that this Tribunal has power under s. 21(1)(b) to extend the time for lodging the grounds of appeal stated in an application once lodged. He further contended that the enlargement of time sought would be, in effect, to allow him to present a second application.
We allowed Mr. Campbell to argue all the grounds set out in the second grounds as well as in the first grounds, and ultimately made an order extending the time for making application for leave to appeal and for stating the grounds thereof until 25th April, 1959.
In relation to certain grounds of appeal both Mr. Campbell and Mr. Seaman sought leave to tender to the Tribunal the evidence contained in certain statutory declarations, as follows:--
A. In relation to ground (b)(i) of the first grounds and ground 8 of the second grounds Mr. Campbell tendered statutory declarations by Squadron Leaders Arthur Lindsay McKeown and William Charles Horsman and Flying Officer Gavin Raymond Black, sworn on 30th April, 1959.
Mr. Seaman tendered the declaration of Sergeant Patricia Mildred Nutting declared on 18th May, 1959, and a document entitled "Brief", exhibit A.
B. In relation to grounds (b)(iv) and (b)(vii) of the first grounds and grounds 6, 7 and 11(b) of the second grounds Mr. Campbell tendered pars. 6 to 13 both inclusive of the declaration of Squadron Leader Andrew Lindsay McKeown, sworn on 30th April, 1959, and a statutory declaration of Flying Officer Selwyn Sydney Williams, sworn on 20th May, 1959, and Mr. Seaman tendered the declaration of Sergeant Patricia Mildred Nutting.
C. In relation to the grounds of appeal dealing with evidence of handwriting, ground (b)(iii) of the first grounds, grounds 11(a), 12 and 13 of the second grounds Mr. Campbell tendered the declarations of Boris Kesselman, and of Squadron Leader Arthur Lindsay McKeown, each sworn on 19th May, 1959.
Mr. Seaman objected to the admissibility of certain parts of these declarations, and after consideration we rejected as inadmissible pars. 10, 11 and 12 of the declaration of William Charles Horsman;
(1959) 8 FLR 336 at 344
par. 4 of the declaration of Arthur Lindsay McKeown; pars. 9 and 11 of the declaration of Gavin Raymond Black; pars. 2, 3, 4, 5 of the declaration of Selwyn Sydney Williams.
Having regard to the matters stated in the declaration of Arthur Lindsay McKeown sworn on 19th May, 1959, it was clear that we could not, consistently with accepted principles, admit the evidence of Boris Kesselman. See Nash v. Rochford Rural Council [1917] 1 K.B. 384, at p. 393 per Scrutton L.J. and Shedden v. Patrick (1869) L.R. 1 H.L. (Sc.) 470, at p. 545 per Lord Chelmsford.
It remains to add that Mr. Seaman, with the leave of the Tribunal, cross-examined the deponents Arthur Lindsay McKeown and Gavin Raymond Black. Two other matters may be disposed of here. Ground 11 of the second grounds sought a new trial. Mr. Campbell conceded that this Tribunal had no power to grant a new trial but submitted that we should admit the evidence referred to in ground 11. As already stated, we rejected the evidence of the handwriting expert, Boris Kesselman, but admitted some parts of the declaration of Flying Officer Williams. Ground 16 of the second grounds related to the sentence imposed on the appellant, but Mr. Campbell abandoned this ground at the hearing.
Section 23 of the Courts-Martial Appeals Act 1955 provides as follows: "(1) Where, upon the hearing of an appeal against a conviction by a court-martial, the Tribunal considers--(a) that the finding of the court-martial--(i) is unreasonable, or cannot be supported, having regard to the evidence; or (ii) involves a wrong decision of a question of law; or (b) that, on any ground, there was a miscarriage of justice, the Tribunal shall, subject to this Division, allow the appeal. (2) Notwithstanding that the Tribunal is of the opinion that an appeal might otherwise be decided in favour of the appellant, the Tribunal may refuse to allow the appeal if it considers that no substantial miscarriage of justice has occurred. (3) Subject to this Division, if the Tribunal allows an appeal, it shall quash the conviction, and, if the Tribunal does not allow an appeal, it shall dismiss the appeal".
This section is obviously copied from and corresponds in substance with the provisions of the Courts-Martial Appeals Act, 1951 (Eng.) which in turn is copied from the provisions of the Criminal Appeal Act, 1907 (Eng.) which set up the Court of Criminal Appeal in England. An appeal to this Tribunal is therefore not in the nature of a rehearing. We can interfere only when the finding is unreasonable, or cannot be supported having regard to the evidence, or where it involves a wrong decision of law, or where there was, on any ground, a miscarriage of justice.
The provisions of sub-s. (2) of s. 23 require, however, consideration of a further question, namely, whether a substantial miscarriage
(1959) 8 FLR 336 at 345
of justice has occurred. In Mraz v. The Queen (1955) 93 C.L.R. 493 Fullagar J. said of a similar provision, the proviso to s. 6(1) of the Criminal Appeal Act of 1912 (N.S.W.): "It is very well established that the proviso to s. 6(1) does not mean that a convicted person, on an appeal under the Act, must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried" [FN1] .
At this stage it is desirable to review briefly the evidence adduced at the court-martial.
The principal witness for the prosecution was Flying Officer Lynn. He testified that on 21st May, 1958, he as safe hand officer for Base Squadron collected at the safe hand centre at the T.A.A. Brisbane terminal a safe hand bag from which he took three safe hand packages for which he signed, and which he put into a cotton "over bag", that he then returned to Amberley, entered the three safe hand packages in the safe hand delivery register, A155A, exhibit J, and locked them in the 18/B/10 safe at the signals centre at Base Squadron. He further testified that on 22nd May, 1958, he handed a package registered S247 to the appellant, who thereupon signed his name in the appropriate place in the A155A register, that he (Lynn) saw the appellant so write his name. He had a "hazy recollection that it was mid-morning" when this occurred, he also had "a hazy recollection" that it was before lunch but was not positive about that. He said that the accused was in a drab uniform of some type, that the person who collected the package was accompanied by another person similarly dressed and that he felt that person was Pilot Officer Back, that he was "pretty certain it was Pilot Officer Back". In cross-examination when asked what size envelope contained this safe hand material, he pointed to the smaller of the two envelopes produced by the defending officer. This was exhibit K a brown envelope 9" x 4". The larger brown envelope, exhibit L, was about 15" x 11". He said that the signals office was about a quarter to half a mile from A Flight of 23 Squadron, "depending which way you go".
Flying Officer Williams, called by the prosecution, testified that on about July 1958 he made a search for safe hand package
(1959) 8 FLR 336 at 346
S247 but did not discover it, that he had examined the supply note register, form A230, of 23(F) Squadron, exhibit M, but found no record of the receipt of a safe hand package received on or about 22nd May, 1958. He said that in his appointment as adjutant of 23 Squadron he came across the appellant's signature on various occasions, such as when he was paying officer. Asked whether he could recognize the signature in exhibit J he said that it could be the signature of the appellant, that it did resemble his signature but that he could not be certain, that he could not say it was not the signature. On being cross-examined by the defending officer whether he would swear the signature was that of the appellant, he said no, he was definitely not certain, that normally the appellant's signature was very clear-cut whereas the one in the register was not.
Pilot Officer Back was called as a prosecution witness. He said he had never been given and had never seen safe hand package S247, but he was not asked, in evidence-in-chief, whether he had been present, as Flying Officer Lynn testified, at the time when the appellant received S247. To the court he stated that he had no recollection of going with the appellant on 22nd May to the signals section. To the defending officer he stated that he had no recollection of the appellant asking him to come for a walk with him to the signals section on that day, that he doubted very much if the appellant was in his company on 22nd May. To the president he stated that the possibility existed that he did go with the appellant to the signals section but it could have been any one of a hundred days. His cross-examination proceeded on the basis that he was paymaster for 23 Squadron on 22nd May, 1958, and he accepted the suggestion that if his signature was in the paybook on that day he carried out his duties, that those duties usually lasted until about 11.00 to 11.30 a.m.
Pilot Officer Ryan, a witness for the prosecution, produced the appellant's paybook, exhibit P, and identified the specimen signatures of the appellant on p. 2 on the left, and on the top left side of p. 8. Shown the signature in exhibit J, and asked whether he recognized it, he said he was in doubt there, that it was similar to the signature in the paybook, that he would not accept that signature if he saw it on a pay acquittance in respect of the appellant.
The judge-advocate then asked him to look at two signatures, those on 27th February, 1958, and 7th November, 1957, in the appellant's paybook. He said that they were "the same as appearing on this safe hand delivery register".
It is to be observed that a perusal of the appellant's paybook, exhibit P, would have indicated that on 22nd May, 1958, the appellant's paybook was signed by Pilot Officer Ryan, but no point was made of this until after the case for the defence was closed when the court recalled Pilot Officer Ryan.
(1959) 8 FLR 336 at 347
Flight Lieutenant McCabe produced the statement made by the appellant on the taking of the summary of evidence, exhibit Q, and the second and third copies thereof, exhibits R and S.
The appellant gave evidence of his movements on 22nd May, 1958. He stated that he was paid at 23 Squadron Headquarters building at about 10.15 a.m. by Pilot Officer Back, and denied that he had received or signed for package S247 on 22nd May. Shown by the prosecuting officer a signature in the safe hand delivery register on 8th December, 1957, in respect of S938, he said it appeared to be his. Questioned by the court as to who paid him on 22nd May, 1958, he said he was sure that Pilot Officer Back paid him. After further questions by the court and the president, he was then questioned, at some length, by the judge-advocate. He said that the signature in exhibit J on 22nd May was similar to his signature. When shown the signature on the top of his paybook, exhibit P, which we take to be the signature at the top of p. 8 of the paybook, and asked whether a different nib or pen would be likely to account for the difference between the appearance of those two signatures he agreed, "It could be possible".
After the case for the defence concluded, the court recalled Pilot Officer Ryan and questioned him as to who physically paid--handed over the money--to the appellant on 22nd May, 1958. He said Pilot Officer Back. Asked whether he could have signed appellant's paybook on that day, he stated that there was a supplementary pay parade at one o'clock, and that if the appellant had not been paid by Pilot Officer Back, he could have come down to pay section, picked up his paybook and acquittance and been paid by him at 1.00 p.m. He described the circumstances in which it would have been possible for Pilot Officer Back to have paid the appellant in the Headquarters of 23 Squadron and Pilot Officer Ryan to have signed the appellant's paybook. He identified the signature in the appellant's paybook on 22nd May, 1958, as his own. He said he could remember the appellant coming down to his supplementary pay parade on occasions.
It will be observed that the evidence of Flying Officer Lynn had not been corroborated by Pilot Officer Back, that no witness was prepared to identify the signature on 22nd May, 1958, in exhibit J as that of the appellant, and that everyone agreed that there were considerable differences between the signature in exhibit J and the appellant's signature in exhibits Q, R and S, and the signatures at p. 2 and at the top of p. 8 of the appellant's paybook, and that while Pilot Officer Ryan expressed the opinion that the signatures on 7th November, 1957, and 27th February, 1958, in the appellant's paybook were the same as that on 22nd May in the safe hand delivery book, there was in fact no evidence that the signatures in the paybook on 7th November, 1957, and 27th February, 1958, were the signatures of the appellant.
(1959) 8 FLR 336 at 348
We propose to examine in the order set out below the grounds of appeal which raise the following complaints:
(1) Bias or the appearance of bias on the part of the president.
(2) Wrongful rejection of evidence.
(3) Unreasonable and improper interference by the judge-advocate.
(4) Wrongful recall of a prosecution witness after the closure of the defence case.
(5) Misdirection by the judge-advocate.
Bias or Apparent Bias
Ground 8 of the second grounds and ground (b), especially subpars. (i) and (iv) thereof, raise an allegation of bias or apparent bias against the president of the court-martial. In relation to these matters the appellant tendered, and we admitted evidence, which showed that after the president had formally opened the court-martial and before the first witness was called for the prosecution, the president addressed the court. Two of the deponents, Squadron Leader Horsman and Flying Officer Black, testified that they had attended a number of courts-martial but had never known such an address to be delivered at the opening of a courtmartial. Indeed Sergeant Nutting deposed in her statutory declaration that "addresses of this nature are not normal"--though what experience she had of courts-martial did not appear. The terms of this address did not appear in the proceedings, because the president told the shorthand writers not to take a note of his remarks, and indeed to strike out what they had already taken.
The terms of his address were deposed to by the deponents in varying terms.
Thus Squadron Leader Horsman deposed: "The president of the court during the address made reference to the fact that classified material might be divulged during the hearing and also said that evidence as to the procedures relating to the safe hand system of the Royal Australian Air Force might be given. Should it appear that any such evidence would be given the witness was to bring it to the president's attention and he would decide whether the court should be closed. The president of the court repeatedly used words to the effect that the loss or disclosure of classified information was viewed very seriously by the Royal Australian Air Force".
Flying Officer Black deposed: "I find it difficult to recall the actual words which the president spoke but he referred to the fact that what would take place would refer to the security system of the Royal Australian Air Force and that classified information might be divulged during the course of the trial. He pointed out that what witnesses heard was not to be repeated outside the court
(1959) 8 FLR 336 at 349
and also pointed out the seriousness of divulging any classified information".
Squadron Leader McKeown deposed: "During the course of this address the president frequently mentioned the Air Officer Commanding or higher authority and that he had been instructed by either the Air Officer Commanding or higher authority (I am not quite certain which one) to take every precaution regarding breaches of security during the trial. He further stated that either the Air Officer Commanding or higher authority (I cannot remember which one) take a very serious view of breaches of security generally and took a very serious view of the particular offence with which the accused was charged. He also warned those present that a breach of security was a serious offence and if any person present divulged any of the evidence given at the court-martial which may affect the security system such person could well find himself in a similar position to that of the accused at this court-martial".
Squadron Leader McKeown was cross-examined before the Tribunal as to the precise words used by the president, and he then stated them as follows: "The president said either the higher authority or the A.O.C. took a serious view of breaches of security and of this particular offence ... He said: `Breaches of security are a serious offence, and if any member of this Court divulges evidence that may affect the security of the R.A.A.F., they could well find themselves in a similar position to that of the accused ... ' ".
Flying Officer Black was also cross-examined. The relevant portion of his declaration having been read to him, he was then asked with reference to the president's remarks concerning classified information: "Q. And he was warned in regard to the danger in that? A. In that it might come out in the course of his trial. Q. Not to divulge it to anybody at all? A. To anybody at all".
Sergeant Nutting's account is as follows: "On 28th October the president made an opening address in regard to security, stressing the fact that if classified evidence was to be given, it would be given in closed court. He also said the proceedings were not to be discussed outside. This opening address by the president was not recorded as I was under the impression that he was just making it clear to all concerned about the security. For this reason and as addresses of this nature are not normal, we were not told to take it down, it was not recorded".
It will have been observed that in ground (b)(i) of the first grounds, the appellant claimed that the tone of this address left him, and he was sure others present, with the strong feeling that the president had been briefed. The appellant adduced no evidence of any such "briefing", but Mr. Seaman, very fairly and properly, disclosed to this Tribunal a document entitled "Brief", which we received as exhibit A and with respect to which we made the order forbidding publication of its contents. Mr. Seaman fairly
(1959) 8 FLR 336 at 350
and frankly disclosed that on the day before the court-martial the president had attended a conference at Headquarters, Home Command, and that at this conference he had been "briefed" as to the matters raised in that document. Mr. Seaman did not say whether the president had received the identical document tendered before us, or even any similar document, but he did say that the document was "the basis of any information that was given to the Group Captain and on which he acted".
The document which Mr. Seaman tendered entitled "Brief" disclosed the contents of safe hand package No. S247, and that it contained some "secret", some "confidential" and some "restricted" material. The purpose of the "brief" was to recommend action to be taken to prevent improper disclosure of classified documents or information at the court-martial, and it included recommendations as to what action should be taken at the trial in certain eventualities. It recommended that the president of the court should be briefed at Headquarters prior to the hearing to ensure that he was aware of the recommendations. He was to be informed that the briefing was designed to safeguard Commonwealth security and was not to be construed in any way as restricting the court in its independent administration of justice.
Mr. Campbell supported his argument on this ground of appeal by reference to the well known passages in the judgments in R. v. Sussex Justices; Ex parte McCarthy [1924] 1 K.B. 256, at p. 259 per Lord Hewart C.J.; R. v. Essex Justices; Ex parte Perkins [1927] 2 K.B. 475, at pp. 488, 489; R. v. Bodmin Justices; Ex parte McEwan [1947] K.B. 321. He suggested in particular that the tenor of the remarks by the president was such as to create a strong suspicion in the minds of reasonable persons that the court-martial had a bias against the appellant. "Bias" in this context means "A real likelihood of an operative prejudice whether conscious or unconscious"--see Rex (De Vesci) v. Justices of Queen's County [1908] 2 Ir. R. 285, at p. 294 per Lord O'Brien C.J. As Lord Goddard C.J. said in R. v. Nailsworth Licensing Justices; Ex parte Bird [1953] 1 W.L.R. 1046, at p. 1048: "The mere fact that a justice may be thought to have formed some opinion beforehand is not enough to upset the decision". In The Queen v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 C.L.R. 100, the High Court said: "But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be `real'. The officer must so have conducted himself that a high probability arises of
(1959) 8 FLR 336 at 351
a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that `preconceived opinions--though it is unfortunate that a judge should have any--do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded' " [FN2] .
Furthermore, as was said by Lord Atkinson in Frome United Breweries Co. v. Bath Justices [1926] A.C. 586, at p. 608, quoting with approval Vaughan Williams L.J.: "We must judge of this matter as a reasonable man would judge of any matter in the conduct of his own business".
Finally, it was said by Slade J. delivering the judgment of the Divisional Court in R. v. Camborne Justices; Ex parte Pearce [1955] 1 Q.B. 41, at p. 51: "This court is further of opinion that a real likelihood of bias must be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries".
We proceed to examine the facts in the light of the foregoing principles.
We have no doubt that the intention of the author or authors of the "brief" and of the person or persons who briefed the president at the conference was to prevent improper disclosure of classified documents or information at the court-martial; no doubt that was also the object which the president sought to achieve by his opening address to the court. The matter, however, cannot be determined by the intention of the actor. What is critical is the action itself.
There is no provision in the Act or in the Rules of Procedure for any briefing of a court or the president by what was referred to as "higher authority"; similarly there is no provision for the making of an opening address such as was made by the president. Indeed to the contrary, the Act and the Rules of Procedure make it clear that a trial by court-martial is to be conducted in a manner befitting a court of justice and in accordance with the rules of evidence applied in courts exercising criminal jurisdiction in England. It should be noted that the appellant was at the court-martial almost certainly unaware of the "briefing". The appellant was thus never in a position to object on this ground to any member of the court before that member was sworn.
We are concerned here with the rule that justice must not only be done but must also manifestly appear to be done. As was pointed out by Devlin J. in East Kerrier Justices; Ex parte Mundy [1952] 2 Q.B. 719, at p. 724 we are concerned with matters of form as well as with matters of substance. The important matter in this appeal is
(1959) 8 FLR 336 at 352
what has been done prior to and in the course of the proceeding before the court-martial. We are satisfied that the "briefing" and the subsequent opening address of the president were not in accordance with the provisions for the conduct of a court-martial as laid down in the Act and in the Rules of Procedure and that the course adopted resulted in an infringement of the rule that not only shall justice be done, but should be seen to be done.
We recognize that there will no doubt be occasions when an Air or other officer commanding will entertain anxiety with respect to the disclosure of confidential information at a trial by court-martial. Such cases, we think, can be adequately met by giving full instructions to the prosecutor who may then in open court make such submissions to the court-martial as the law permits and the occasion requires. We think it is of the utmost importance that every member of a court-martial should undertake his duties with a mind that is free from any knowledge of matters concerning the charge other than what the law permits or recognizes.
Wrongful Rejection of Evidence
We turn to the argument that the judge-advocate wrongfully rejected material evidence, ground (b)(vii) of the first grounds, and grounds 6 and 7 of the second grounds. The evidence rejected is not set out in the transcript. It is set out in full in the statutory declaration of Sergeant Nutting. The nature of the evidence also appears from pars. 6 to 13 of the statutory declaration sworn by Squadron Leader McKeown on 30th April, 1969, and from pars. 7 to 11 of the declaration of Flying Officer Williams sworn 20th May, 1969. Flying Officer Lynn had stated in cross-examination that the safe hand material in question had been contained in an envelope of the size of exhibit K (about 9" x 4"). He had been shown also a large envelope, exhibit L (about 15" x 11").
Flying Officer Williams, who was the third witness for the prosecution, had given evidence in chief that since 2nd June, 1958, he was the officer detailed under Air Force Order 18/B/10, exhibit G, as the officer responsible to 23 Squadron for the receipt of all safe hand documents and for their safe custody. He had stated that it was his duty on the receipt of a safe hand package to open it and to check the contents, sign the receipt note and file the supply note. He had given evidence that he had searched for the missing package, S247, but had not found it.
He had then been cross-examined by the defending officer and questioned by the judge-advocate and by the president. The transcript of proceedings contains what purports to be a complete record of his cross-examination. But the statutory declarations of Squadron Leader McKeown sworn 30th April, 1969, and of Sergeant Nutting declared 18th May, 1969, indicate, and it was common ground before this Tribunal, that the transcript of proceedings
(1959) 8 FLR 336 at 353
did not contain a complete record of the cross-examination, and the matters complained of on this branch of the argument arise out of the cross-examination not recorded in the transcript.
It appears from par. 13 of Squadron Leader McKeown's statutory declaration that Flying Officer Williams, when being cross-examined by him, asked the president "should the court be closed before I proceed further?". It was then that the judge-advocate made his objection to the cross-examination. It is clear that Flying Officer Williams when speaking to the president had in mind the warning contained in the president's opening address regarding the disclosure of secret information. This evidence and cross-examination must be read in the light of this warning.
It appears from the statutory declaration of Sergeant Nutting that in the cross-examination of Flying Officer Williams the defending officer elicited the evidence that he, Flying Officer Williams, had received what he stated to be a duplicate of the contents of safe hand package S247, that the alleged duplicate contents arrived in the envelope, exhibit L, and that it would have been detrimental to the contents to enclose them in a smaller envelope of the size of exhibit E. He said that he had been advised by the distributing authority of the contents of S247, and that the duplicate of the contents arrived in exhibit L. But at this stage the judge-advocate ascertained by questioning Flying Officer Williams that the assertion that the documents which arrived in the larger envelope, exhibit L, constituted a duplicate of the contents of S247 was based not on Flying Officer Williams' own knowledge but on advice from the distributing authority. The judge-advocate thereupon rejected this evidence as inadmissible and it was struck out from the record of evidence.
Plainly the judge-advocate was correct in ruling that Flying Officer Williams' assertion (that the documents which arrived in exhibit L were a duplicate of S247) was hearsay evidence. As such it was inadmissible. But evidence that the duplicate contents arrived in exhibit L was plainly relevant to show the size of safe hand package S247, and consequentially to throw doubt on Flying Officer Lynn's evidence that S247 was an envelope of exhibit K size. Consequently, provided that a proper foundation for this line of cross-examination was laid either by the evidence already before the court or by an undertaking by the defending officer to tender such evidence at a later stage of the trial, the judge-advocate should have permitted the defending officer to pursue this line of cross-examination.
It is plain that the foundation for that line of cross-examination did not at that stage exist. But at a later stage of the prosecution case it appeared in the statement by the appellant (copies whereof were tendered as exhibits Q, R and S). We are of the opinion that in the last paragraph of that statement the court-martial had before
(1959) 8 FLR 336 at 354
it evidence which, though somewhat tenuous, was in the circumstances sufficient (cf. Walker v. Walker (1937) 57 C.L.R. 630) to provide the necessary foundation for the line of cross-examination which defending counsel was precluded from pursuing.
If material and relevant evidence is rejected, it necessarily follows that a miscarriage of justice has occurred, because the finding of the Tribunal is arrived at on a consideration of part only of the evidence which they should have considered. As was said by Dixon C.J. in Balenzuela v. De Gail (1959) 101 C.L.R. 226: "The basal fact is that material evidence was erroneously excluded from the consideration of the jury, evidence that touched the question upon which the case turned. It was something the party was entitled to lay before the jury for its consideration. It lies outside the province of the court to inquire into the effect which the evidence if admitted would produce upon the court if the court were the tribunal of fact, and it lies outside the province of the court to speculate on the effect which it would have produced on the jury. It is enough that evidence definitely material to the determination of the case was excluded at the instance of the defendants. That leaves the unsuccessful plaintiff entitled to a new trial" [FN3] .
Menzies J. said in the same case: "Where admissible evidence is wrongly rejected the party aggrieved is prima facie entitled to a new trial but a new trial will not be ordered if the evidence rejected could have had no effect with the jury" [FN4] .
The powers and duties of the judge-advocate are set out in Rule of Procedure 103. He is responsible for informing the court of any irregularity of proceedings (r. 103(c)). Upon any point of law or procedure which arises upon the trial at which he attends the court should be guided by his opinion, and not disregard it except for very weighty reasons (r. 103(f)). He must be careful to maintain an entirely impartial position (r. 103(h)). Mr. Seaman, for the Air Board, submitted, and we agree, that either under par. (c) or (f) of r. 103, it is the duty of the judge-advocate to advise the court on questions of the admissibility of evidence, and that under par. (d) of that rule, any information or advice given to the court on any matter before the court should, if the judge-advocate or the court desire it, be entered in the proceedings. He conceded that under r. 94 the judge-advocate was required to record or cause to be recorded all transactions of the court, and was responsible for the accuracy of the record. He pointed out that under r. 95(B), where an objection has been taken to any question or to the admission of any evidence or to the procedure of the court, the objection should, if the prosecutor or accused so requests, or the court thinks fit, be entered on the proceedings together with the grounds of the objection and the decision of the court thereon.
(1959) 8 FLR 336 at 355
He further pointed out that the defending officer had made no such request under r. 95(B), and contended that the non-inclusion in the record of any reference to the tendering and rejecting of the evidence amounted at most to an irregularity which in no wise prejudiced the accused, in that the members of the court would not, in any event have the written record ("the proceedings") before them when they deliberated in closed court on their finding.
We think there is much force in these submissions, but they do not get over the real error--namely the prevention of the defending counsel from following a line of inquiry which plainly was relevant.
Unreasonable and Improper Interference by the Judge-Advocate
The next argument was that the judge-advocate had interfered to an unreasonable and improper degree in the conduct of the trial and particularly in the excessive cross-examination by him of witnesses and that he had on occasions assumed the mantle of prosecuting officer. Perusal of the proceedings shows that the judge-advocate did in fact closely question Flying Officer Lynn and later the appellant.
Mr. Campbell contended that this questioning, particularly that of the appellant, was in fact cross-examination. Mr. Seaman contended that it is often necessary for a judge-advocate to "tidy up a case and lend a hand to an inexperienced prosecuting officer", and that since Flying Officer Lynn was a most important witness, the judge-advocate's examination of him was of value and necessary for the purpose of discovering whether he was a reliable witness. Similarly, he contended, the judge-advocate was entitled to test the appellant's alibi. It may be remarked that this argument goes very close to contending that a judge-advocate is entitled to cross-examine witnesses, so long as he is impartial in his choice of the witnesses to be tested.
It is, of course, clear that in the circumstances set out in Rule of Procedure 103(q), the judge-advocate is entitled and indeed bound, to question witnesses "on any matters which appear to be necessary or desirable for the purpose of eliciting the truth". The judge-advocate doubtless considered that his questioning of Flying Officer Lynn, and of the appellant, was necessary "for the purpose of eliciting the truth" and thereby assisting the court. But we think that the questioning of the appellant did partake of the character of cross-examination and did result in the judgeadvocate deserting the entirely impartial position which is required of him under Rule of Procedure 103(h). In justice to the judge-advocate, it should be pointed out that the court-martial concluded two days before this Tribunal delivered its reasons for judgment in the appeal of Peter James Schneider [FN5] , and that the judge-advocate
(1959) 8 FLR 336 at 356
did not therefore have the advantage of the reminder contained in the observations made by this Tribunal in that appeal that "it is not desirable that a judge-advocate should descend into the arena and assume the mantle of a prosecuting officer". To the reference made in that decision to Jones v. National Coal Board [1957] 2 Q.B. 55 we now add a reference to R. v. Delaney [1955] V.L.R. 47, and to Yuill v. Yuill [1945] P. 15.
Wrongful Recall of Prosecution Witness
The next ground argued for the appellant relates to the recalling by the court of Pilot Officer Ryan for further questioning after the case for the defence had closed.
Mr. Campbell contended that the recall of this witness was contrary to the accepted principles of the common law laid down in R. v. Dora Harris [1927] 2 K.B. 587, at p. 594 and in Shaw v. The Queen (1952) 85 C.L.R. 365. Mr. Seaman on the other hand contended that the recall was justified under the provisions of Rule of Procedure 86(D) which provides: "The Court may call or recall any witness at any time before the finding if they consider it necessary in the interests of justice."
He argued that the language of the rule showed an intention that a court-martial was not to be bound by the common law rule laid down in the cases on which Mr. Campbell relied. Mr. Seaman further submitted that this Tribunal should be most careful not to lay down any principle which would interfere with the discretion of a court-martial under r. 86(A).
It is worthy of note that r. 86(B) provides: "(B) The Court may, if they consider it expedient, in the interests of justice, so to do, allow a witness to be called or re-called by the prosecutor before the closing address of or on behalf of the accused, for the purpose of rebutting any material statement made by a witness for the defence or for the purpose of giving evidence on any new matter which the prosecutor could not reasonably have forseen".
We will assume, although the point was not argued before us, that both sub-pars. (B) and (D) of r. 86 must be read subject to the provisions of Rule of Procedure 73 which so far as relevant provides: "(A) A court-martial shall not receive evidence for the prosecution which is not relevant to the facts, stated in the statement of particulars in the charge, or any evidence which is not admissible either according to the rules of civil courts in England, or under the Air Force Act, or under any other Act of Parliament of the United Kingdom. (B) The rules of evidence adopted in civil courts in England, including those contained in the Criminal Evidence Act, 1898, will be followed by courts-martial, and objections to any question to a witness or to the admission of any evidence may be made accordingly ... ".
(1959) 8 FLR 336 at 357
In the present case, the argument before us proceeded on the basis that when Pilot Officer Ryan was recalled it was in pursuance of the power conferred on the court by r. 86(D). But we are not disposed to accept the argument of Mr. Seaman that this rule was intended to confer greater powers on a court-martial than it would possess if it applied the common law rule. Indeed we think that r. 86(D) does no more than state what is in truth the common law rule. In Shaw v. The Queen (1952) 85 C.L.R. 365, at p. 380, Dixon C.J., McTiernan, Webb and Kitto JJ. did recognize that in a criminal trial "the court possesses a power to allow further evidence to be called, but it must be exercised according to rule, and the rule is against re-opening the Crown case unless the circumstances are most exceptional. We are not disposed to lay down the rule in the terms adopted from Tindal C.J. in R. v. Frost (1839) 4 St. Tr. (N.S.), at p. 386, 9 C. & P. 129, at p. 159". Their Honours further said: "It is, for example, difficult to apply the rule where the jury ask for the recall of a witness or further proof or disproof of a fact. It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence" [FN6] .
In the same case Fullagar J., after some criticism of the language attributed to Tindal C.J., said, " ... it remains true and important that the Crown should be permitted to adduce evidence after the close of the case for the defence only in exceptional circumstances and when it is reasonably clear that the accused will not be unfairly prejudiced by the admission of the evidence. A wide discretion must be conceded to the judge presiding at the trial, but it should be regarded as limited in that way, and it is to be remembered that the practical effect of evidence on the minds of a jury may differ according as the evidence is adduced in chief or by way of replication. But the discretion ought not to be regarded as further limited or as governed by any rigid rule or formula. I would add that it is by no means clear to me that the same considerations are appropriate when the Crown proposes to call further evidence as are appropriate when the judge is thinking of calling a witness himself. It is impossible to foresee and provide a priori for the infinite variety of circumstances in which either question may arise" [FN7] .
So in R. v. John Owen [1952] 2 Q.B. 362, at p. 366 the English Court of Criminal Appeal expressed substantially the same view.
In Shaw's Case (1952) 85 C.L R. 365 it was the prosecution which sought and was granted leave to recall certain prosecution witnesses, whereas in
(1959) 8 FLR 336 at 358
R. v. John Owen [1952] 2 Q.B. 362 the prosecution witness was recalled by the judge, after the jury had retired, and in response to a message by the jury that they wanted to hear evidence as to a certain matter. The prosecution witness so recalled by the judge gave evidence as to that matter. Thereupon the jury, after a short further retirement, returned a verdict of guilty. The Court of Criminal Appeal quashed the conviction, saying, "The theory of our law is that he who affirms must prove, and therefore it is for the prosecutor to prove his case, and if there is some matter which the prosecution might have proved but have not, it is too late after the summing-up to allow further evidence to be given, and that whether it might have been given by one of the witnesses already called or whether it would necessitate, as in R. v. Browne (1943) 29 Cr. App. Rep. 106, the calling of a fresh witness" [FN8] .
Now in the present case the recall of the witness Pilot Officer Ryan was apparently directed to establishing that he personally had paid the appellant on 22nd May, 1958. That fact if established would have founded the inference that it was convenient for the appellant to have proceeded from the pay section to the signals section where the appellant could have collected the safe hand package S247. The evidence would therefore tend to support the evidence of Flying Officer Lynn that the appellant had in fact during the morning of 22nd May called at the signals section and collected the package S247. It was the appellant's case that he had been paid by Pilot Officer Back and the latter was indeed cross-examined by the defending officer as to whether he had not in fact carried out the duties of paymaster on that day. The court at that stage accepted the position that Pilot Officer Back was paymaster on that date. The paybook of the appellant, exhibit P, was tendered in evidence, in the course of the prcsecution case, through the witness Pilot Officer Ryan.
Perusal of the paybook at that stage would have revealed that in respect of the pay of 22nd May, 1958, the officer signing was Pilot Officer Ryan himself and not Pilot Officer Back. In those circumstances the time to elicit the evidence that Pilot Officer Ryan had paid the appellant was when he was giving his evidence as part of the prosecution case, and before the appellant had entered upon his defence. In our opinion, in the circumstances of this case the court erred in law in exercising the discretion conferred by r. 86(D) by recalling Pilot Officer Ryan to give evidence as to a matter which should have been proved as part of the prosecution case, and which did not arise from any unexpected development of the defence case. We have considered the decision of the Full Court of the Supreme Court of Victoria in R. v. Cartledge [1959] V.R. 221 and are of the opinion that it is not inconsistent with the view we
(1959) 8 FLR 336 at 359
have expressed on this branch of the appeal. In these circumstances the recall of Pilot Officer Ryan constituted in our view a substantial miscarriage of justice.
Misdirection by the Judge-Advocate
Mr. Campbell for the appellant also urged that each of the passages set out in par. 14 of the second grounds constituted a misdirection by the judge-advocate. He submitted--and in our opinion, correctly,--that the alternatives put to the court in the passage set out in sub-par. (a) of par. 14 were not exhaustive of the possibilities. Plainly they leave out of account the possibility that Flying Officer Lynn was honest but mistaken in his recollection or that he had--honestly but mistakenly--reconstructed the events. The same comment could be made of the passage set out in subpar. (b). But the further vice of the passages is that the judge-advocate therein suggested to the members of the court that they had to make up their minds to disbelieve either the appellant or Flying Officer Lynn; he did not explain to them that if they were unable to make up their minds whom to believe, they would be bound to give the appellant the benefit of the doubt. It is true that in his summing-up he had said: "It seems reasonable here that you cannot believe both Flying Officer Lynn and the accused, unless of course you come to the conclusion that both parties have memories of the events which are not particularly good. In that latter case you may feel that they are reasonably endeavouring to give a clear recollection of what occurred but are incapable because of the time involved". But that passage precedes the passages complained of in sub-pars. (a) and (b), and the judge-advocate never subsequently corrected the error into which he had lapsed in those two passages. Nor did he relate what he had said in that passage to their duty to acquit if they were unable to determine whether either was a reliable witness.
We have examined the whole summing-up and also the closing addresses of the defending and prosecuting officers respectively to see whether taking the course of the proceedings as a whole, it can be said that the onus of proof was properly dealt with. We do not think that it was.
In the present case, the evidence of Flying Officer Lynn was the kernel of the prosecution case, and it was therefore vital that a proper direction as to the onus of proof should be given to the court. And while it is true that the judge-advocate warned the members of the court that they must not convict unless satisfied beyond reasonable doubt by the evidence of the prosecution, and that an accused was not required to prove his innocence of the charge, we think that the overall effect of the summing-up was to direct the members of the court that they had to come to an affirmative conclusion on the evidence, and they received no instruction as to their
(1959) 8 FLR 336 at 360
duty to acquit if they were unable to make up their minds where the truth lay.
The remaining three alleged misdirections relate to the question of handwriting, and may conveniently be coupled with those grounds of appeal which complain of the failure of the prosecution or of the court to adduce evidence of a handwriting expert, ground (b)(iii) of the first grounds and ground 12 of the second grounds, and of the failure of the judge-advocate to warn the court of the danger of convicting the appellant in view of the state of the testimony as to the disputed signature in exhibit J.
Some of these matters may be disposed of briefly. We are unable to see how the passage complained of in par. 14(c) of the second grounds could be a misdirection, and indeed no argument was addressed to us on this point by appellant's counsel. Again, it is clear that the failure of the prosecution, or of the court, to adduce evidence from a handwriting expert cannot constitute a ground for appeal against conviction.
Such a failure may leave it open to the defence to submit that the court should be directed that in the absence of such expert evidence it would be dangerous to convict. It also leaves it open to the defence to call a handwriting expert as a witness. In the present case, the statutory declaration of Squadron Leader McKeown sworn on 19th May, 1959, shows that at the trial he, as defending officer, made a deliberate decision, having regard to the evidence of Pilot Officer Ryan, that it was not necessary to call a handwriting expert. In those circumstances this tribunal ruled that it could not admit the evidence of the handwriting expert Mr. Boris Kesselman tendered before us. No grounds were laid, nor in the circumstances could they be laid, for the admission of this evidence as fresh evidence--see Re Schneider's Appeal (1958) 8 F.L.R. 314.
But it remained open to the appellant to complain, as he did, of the other two misdirections, sub-pars. (c) and (e) of par. 14 of the second grounds, and of the failure by the judge-advocate to direct the court-martial that it was unsafe to convict in view of the state of the testimony as to the disputed signature in exhibit J.
We turn therefore to deal with these matters. It may be observed at the outset that the question of handwriting was not necessarily the crux of the trial, as appears to have been suggested before the court-martial. It would have been open to the prosecution to have sought to establish the guilt of the appellant merely on the evidence of Flying Officer Lynn, without tendering any other evidence to establish that the appellant had made the relevant signature in exhibit J. But the prosecution did in this case tender other evidence. The prosecuting officer adduced evidence designed to show, by a comparison between signatures proved to be those of the appellant and the disputed signature, that the latter was that
(1959) 8 FLR 336 at 361
of the appellant. There are two steps in this process: first, proof that the signatures tendered for purposes of comparison are those of the accused, and secondly the examination of the respective sets of signatures with a view to discerning similarities. The latter task was one which may be and often is carried out by the court itself, unaided by any expert evidence. But where, as in this case, there are obvious dissimilarities between the respective signatures, it is somewhat dangerous for a court to undertake the task without the benefit of the assistance of a handwriting expert. Here the only witness who had any real familiarity with the signature of the appellant was Pilot Officer Ryan, who was not put forward as a handwriting expert. His evidence taken in its totality, must raise grave doubts as to whether the signature in exhibit J was that of the appellant.
In those circumstances, for the court to embark upon the task of examining the respective signatures without the assistance from a handwriting expert was a somewhat dangerous course. The court might have been emboldened to embark on this task by the direction of the judge-advocate complained of in par. 14(e) of the second grounds, namely: "The accused, in relation to his signature in exhibit J, did say that the one on 22nd May was similar to his own signature and that those in his paybook looked like his signature ... ".
But, as Mr. Campbell showed, when the evidence on this point is examined, it is clear that this particular direction misstated the effect of the evidence.
There was in fact no evidence by the accused admitting the signature in exhibit J to be his own. The only evidence apart from that of Flying Officer Lynn which could be said to afford any basis for drawing the inference that the signature in exhibit J was that of the appellant, is some evidence of Pilot Officer Ryan which is referred to in the passage complained of in ground 14(c) of the second grounds. In that passage the judge-advocate said: "There was evidence given by Pilot-Officer Ryan the accountant officer ... he was referred to two signatures in the accused's paybook on 27th February and 7th November and the column on the right hand side officer's signature. He said they appeared to be those of the accused and that they are similar to the signature in exhibit J on 22nd May". It would appear, from the evidence, that Pilot Officer Ryan was expressing the opinion that the signatures on 27th February, 1958, and 7th November, 1957, in the appellant's paybook were the same as those appearing on the safe hand delivery register and that "they" (presumably the signatures of 27th February, 1958, and 7th November, 1957) appeared very much like the appellant's. But in the next breath, as it were, he was drawing attention to the dissimilarities between the writing of the signature in the safe hand register and those in the paybook.
(1959) 8 FLR 336 at 362
Unfortunately, the transcript fails to make clear precisely what were the signatures which Pilot Officer Ryan was stating to be dissimilar.
At the highest for the prosecution, it can be said that there was, in the evidence just summarized, some evidence that the signatures of 27th February, 1958, and 7th November, 1957, in the appellant's paybook were like those of the accused, and that those signatures were the same as that appearing in the safe hand delivery register.
But as Pilot Officer Ryan had earlier expressed the view that if he saw the signature in exhibit J on a pay acquittance in respect of Flying Officer Feiss, he would reject it, the evidence of identification of the signature in exhibit J as that of the accused was far from satisfactory.
In relation to the question of handwriting it may be said therefore, (1) that the evidence (apart from that of Flying Officer Lynn) identifying the signature in exhibit J as that of the appellant, was of the most tenuous character, and there was other evidence from the same witness tending strongly in the opposite direction; (2) the passage complained of in ground 14(c) did not constitute a misdirection as to the evidence; (3) the passage complained of in ground 14(e) did constitute a misdirection as to the evidence.
In Holford v. Melbourne Tramway Co. [1909] V.L.R. 497, at p. 527, Cussen J. pointed out that with respect to misdirection as to the facts: "It is assumed in most cases that the jury, who have, or ought to have, heard the evidence, will probably correct any mistake of mere fact". If the above misdirection as to the facts had been the only one in the trial we doubt whether it would have warranted this Tribunal interfering with the decision of the court-martial. But taking into account the obvious dissimilarities between the signature in exhibit J and those on pp. 2 and 8 in the paybook, the only signatures clearly proved to be those of the appellant, and in view of the doubts expressed by Pilot Officer Ryan, we find ourselves in much the same state of mind as that of the Court of Criminal Appeal in Rickard's Case (1918) 13 C.A.R. 143, that is, that to invite the members of the court-martial to make a finding on the basis of a comparison of signatures, and in the absence of evidence from a handwriting expert, that the disputed signature in exhibit J was that of the appellant, was "a somewhat dangerous course". If, therefore, the disputed signature had been the only evidence implicating the appellant we would have felt constrained to say that the conviction could not be supported having regard to the evidence. But in the present case it was open to the court-martial to accept Flying Officer Lynn's evidence that he handed S247 to the appellant, without accepting his evidence that the signature in exhibit J was that of the appellant. In relation to the question of handwriting, the conclusion must be reached that the course of the trial was unsatisfactory, and these matters, which in themselves might not have sufficed, have, in
(1959) 8 FLR 336 at 363
combination with other substantial grounds of the appeal impelled us to our ultimate conclusion that a substantial miscarriage of justice has occurred.
Two other matters may be dealt with briefly.
By par. (b)(iv) of the first grounds and par. 9 of the second grounds, the appellant objected that at his court-martial no, or no sufficient, evidence had been given as to the contents of safe hand package S247, or of the nature of such contents. The purport of the objection differed. In the first grounds the appellant apparently put this as one of the matters indicating bias originating in improper pre-trial "briefing" of the members of the court; in effect he said no proof was tendered or required because the members of the court had already been told what the contents were. This matter is, we think, sufficiently covered by our earlier remarks in relation to the allegation of actual or apparent bias.
But the second grounds took the objection in a different aspect, arguing that there was no proof of these matters, that such proof was an essential part of the prosecution case, and that in default of such evidence the appellant should not have been convicted.
In relation to the offence with which the appellant was charged, it was not, in our view, essential that the prosecution should adduce proof that safe hand package S247 contained registered classified documents. That particular offence would, in our view, have been equally made out had it been shown that S247 contained no documents whatsoever. Indeed, it is obvious that it might in some instances be impossible to adduce any evidence as to the contents of a lost safe hand package. But in any event, we think that the evidence did show that the lost package was a "safe hand package", and that in the circumstances no further proof of the contents of the package was necessary.
Our examination of the matters raised in the grounds of appeal has satisfied us that the conduct of the trial was marked by a number of grave departures from the forms of a criminal trial conducted according to the accepted doctrines of English law. It is perhaps unnecessary for us to say whether each of these departures was, in itself, sufficient to cause a substantial miscarriage of justice, for it is clear that, taken in their totality, they constituted a very substantial departure from accepted norms. There was a substantial miscarriage of justice. We have set out above the reasons which led us to the conclusion by the time the argument terminated on 21st May, 1959, that leave to appeal must be granted and the appeal allowed.
We deemed it proper to notify the parties then and there of our decision allowing the appeal and quashing the conviction, intimating that we would publish our reasons later. For the reasons which we have now stated we made the following orders:
(1959) 8 FLR 336 at 364
(1) Order that the time for making an application for leave to appeal and stating the grounds thereof be extended up to and including 25th April, 1959.
(2) Order that leave to appeal be granted.
(3) Order that the appeal be allowed and the conviction quashed.
(4) Order that the Commonwealth pay to the appellant or his solicitors, Messrs. Henderson & Lahey, the sum of £210 which sum is assessed by agreement between the parties to compensate the appellant for expenses properly incurred in the prosecution of the appeal and matters incidental thereto.
Orders accordingly.
Solicitors for the appellant: Henderson & Lahey.
Solicitor for the respondent: H. E. Renfree (Commonwealth Crown Solicitor).
A.J.L.
[FN1] (1955) 93 C.L.R., at p. 514.
[FN2] (1953) 88 C.L.R., at p. 116.
[FN3] (1959) 101 C.L.R., at pp. 236, 237.
[FN4] (1959) 101 C.L.R., at p. 239.
[FN5] (1958) 8 F.L.R. 314.
[FN6] (1952) 85 C.L.R., at p. 380.
[FN7] (1952) 85 C.L.R., at pp. 383, 384.
[FN8] [1952] 2 Q.B., at pp. 368, 369.
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