( (1971) 21 FLR 86[lb.021.FLR.00086]
[COURTS-MARTIAL APPEAL TRIBUNAL]
Re FERRIDAY'S APPEAL [*]
Courts-Martial Appeal Tribunal: Street J., President, Harris Q.C. and Wright Q.C., Members
SYDNEY, 2nd June; 22nd-26th, 30th November; 23rd December, 1971
21 FLR 86
Defence and War -- Defence forces -- Offences -- By members of forces -- Murder -- Whether diminished responsibility a defence -- Courts Martial Appeal Tribunal -- Power to quash sentence where appellant insane -- Trial by court-martial -- Practice -- Convening court-martial -- To exclude officer with specialist knowledge -- Separate accommodation of judge-advocate and members of court -- Address to court by counsel -- Without reference to authorities for legal principle -- Army Act, 1881 (Imp.), s. 41 -- Defence Act 1903-1966, s. 54 -- Courts-Martial Appeals Act 1955-1966, s. 28(1).
By s. 54 of the Defence Act 1903-1966, members of the military forces serving beyond the territorial limits of Australia are subject to the Army Act (Imp.) in force at the commencement of the Defence Act 1956, with such modifications and adaptations as are prescribed.
Held, that the intendment of s. 54 of the Defence Act is that the crime of murder referred to in s. 41 of the Army Act is the common law crime of murder. The defence of diminished responsibility, introduced in England after the commencement of the Defence Act 1956, is not open to a member of the military forces charged with murder.
Section 28(1) of the Courts-Martial Appeals Act 1955-1966 provides that where, upon the hearing of an appeal against a conviction by a court-martial, it appears to the Courts-Martial Appeal Tribunal that, although the appellant was guilty of the act or omission charged against him, he was insane at the time the act was done or the omission made so as not to be responsible according to law for his action, the Tribunal may quash the sentence passed by the court-martial.
Held, that the Courts-Martial Appeal Tribunal may make its own finding of fact on the issue of the appellant's insanity. It is not necessary for the Tribunal to be satisfied that the verdict of the court-martial should be set aside on a ground of appeal related to the issue of insanity.
Reg. v. Jenkins (1963), 64 S.R. (N.S.W.) 20, at p. 29, and Reg. v. Weise, [1969] V.R. 953, applied.
The following general matters of practice in the conduct of courts-martial referred to:--(i) that when a court-martial is being convened to try a case involving, as an important issue, a matter falling within the province of a particular field of non-service expert study and knowledge (such as medicine), the court should not include an officer who is a specialist in that field, (ii) that the authorities responsible for providing for the accommodation of a judge-advocate and members of the court should, so far as possible, ensure, at the sacrifice of comfort, that there is
(1971) 21 FLR 86 at 87
little, if any, need for sharing of messing or other facilities, and (iii) that prosecuting and defending officers ought not, in addressing the members of the court martial on matters of law, to refer to authorities for legal principle.
Steps taken to avoid the impasse resulting from the position where, on an appeal from the findings of guilty of murder and malicious wounding, one member of the Courts-Martial Appeal Tribunal favoured dismissal of the appeal, one member was of the opinion that the life sentence should be quashed, with the consequence that the appellant would be in custody on the basis that he was guilty but insane, and one member was of opinion that findings of manslaughter and assault occasioning actual bodily harm should be substituted.
COURT-MARTIAL APPEAL.
A member of the Military Forces of the Commonwealth appealed against his conviction and sentence by court-martial on charges of murder and malicious wounding in Vietnam. The material facts appear from the decisions of the Tribunal.
A. Cook and S. Miller, for the appellant.
F. G. Brennan Q.C. and A. B. Shand, for the respondent.
Cur adv vult
23rd December, 1971
The following decisions were delivered:
STREET J. Private Paul Ramon Ferriday was on 6th March, 1971, at Vung Tau found guilty by general court-martial of two charges of murder and one charge of malicious wounding. A sentence of imprisonment for life and discharge from the defence force of the Commonwealth was in due course confirmed. The Military Board refused a petition lodged against the findings and sentence of the general court-martial. An application was then made to this Tribunal for leave to appeal on a large number of grounds. Leave to appeal was granted.
The events out of which the convictions arose occurred on 25th December, 1970. The appellant had on that day been consuming alcohol since relatively early in the morning. He had been drinking, on and off, both in the lines and in the other ranks' canteen, which was situated nearby. By the late afternoon he was substantially affected by alcohol. At about 1800 hours he was intercepted by some of his fellow soldiers in the lines, holding a rifle to which was affixed a loaded magazine, and stating an intention to kill a warrant officer attached to his unit. The rifle was taken from him, and he was warned in strong terms by one of his friends against any repetition of that conduct. He was also told not to have any more to drink.
He later returned to the canteen, and consumed more alcohol. His behaviour in the canteen was markedly affected by the amount
(1971) 21 FLR 86 at 88
of alcohol he had consumed during the day. He returned to the lines at about 1900 hours, and was heard by a fellow soldier whom he met on the way back to express some general resentment against the army. He obtained his rifle, an S.L.R., from a neighbouring tent into which it had been placed when taken from him about an hour earlier, together with a loaded magazine. He walked down to the tent at the end of the lines nearest to the sergeants' mess. He entered the annexe to that tent, and then, having cocked the rifle he fired a number of shots--probably three--in the direction of the sergeants' mess. An S.L.R. requires a separate trigger pressure for each shot.
The sergeants' mess was distant about seventy-five feet from the tent annexe from which the appellant fired. It was a forty-eight-feet-long, single-storey, ground-level building lying transversely to the appellant's line of sight, and he had, substantially speaking, an open and unobstructed view into the interior of the mess. About fifteen members of the sergeants' mess were standing or sitting within it, drinking or engaging in recreational pastimes. The interior of the mess was well lit, and the occupants would have been clearly visible to the appellant.
Two of the occupants of the mess, Sergeant Moss and Sergeant Galvin, were shot through the chest and killed--probably by the same bullet--and a third member of the mess, Sergeant Bowtell, was wounded.
The appellant was apprehended almost immediately after the shooting and there is little real dispute concerning the objective facts of the evening. He was interviewed the following day, and three statements were taken from him. Although the subject of one of the grounds of appeal, as well as of submissions by counsel for the appellant during the hearing of the appeal, there is not, in my view, any basis for criticizing either the procedures followed in the taking of these statements or the use made of them in the trial. The appellant said that he was kneeling down when he fired the shots. He said that he was not aiming, that he just pulled the trigger. Amongst the questions and answers on the first interview are the following:
"Q. When you fired the rifle into the Mess did you intend to hit anyone? A. I just fired into the Mess.
Q. Could you see that there were men in the Mess? A. Yes, I could. ... ... ...
Q. What did you do after you fired the shots? A. Tried to hide.
Q. Where did you try to hide? A. In the tent.
Q. When you fired the rifle into the Mess, did you see if you had hit anybody? A. No, I didn't know until somebody said, who fired the rifle and I came out and said I did.
(1971) 21 FLR 86 at 89
Q. How much intoxicating liquor did you have yesterday? A. A fair bit.
Q. What was your condition when you fired the rifle? A. I was pretty drunk. ... ... ...
Q. Did you say to a Staff Sergeant that the reason you fired the rifle was because they egged you on? A. I thought I said because they kept stirring me."
The record of a later interview on 26th December, includes the following:
"Q. When you fired the rifle into the Mess, did you intend to hit anyone? A. I didn't intend hitting anybody in there. I just fired into there."
The same question was asked again on the third interview, and was simply answered "No".
The trial before the general court-martial lasted more than three weeks. A great deal of evidence was tendered concerning the events of 25th December, as well as expert evidence on ballistics. Critical to the whole of the evidence and to the main points raised on this appeal are the matters relating to the mental state of the appellant at the time of the shooting. The subject of the appellant's mental state was directly relevant both to the defence of insanity advanced on his behalf and to the presence or otherwise of the intention necessary to constitute the crimes of murder and of malicious wounding. The evidence on this aspect comprises the factual accounts of the witnesses who deposed to the appellant's state of inebriation and conduct on that evening, and opinion evidence of Lieutenant-Colonel Maddison, the Professor of Psychiatry at the Sydney University and a psychiatric expert of the highest stature. Another psychiatrist also gave evidence, but he did not form any opinion on the appellant's mental state on 25th December. I have already stated the effect of the evidence of those who observed the appellant's condition on 25th December. I shall return subsequently to Lieutenant-Colonel Maddison's evidence.
At the commencement of the court-martial the appellant sought to plead not guilty to the two charges of murder and the charge of malicious wounding, but guilty to manslaughter and to common assault. These pleas were not accepted. They were tendered again on his behalf at the conclusion of the case for the prosecution and were again rejected.
The judge-advocate in his summing-up clearly and comprehensively put to the court both the principles of law and the evidence relevant to the defence of insanity. It seems tolerably plain that the judge-advocate himself would have favoured a verdict of guilty but insane on all three charges. With complete propriety, and indeed within the bounds of his duty, he offered to the court such assistance as might enable them to determine the matter according to law. The summing-up could fairly be regarded as commending
(1971) 21 FLR 86 at 90
to the court by implication that a verdict of guilty but insane on each of the three charges would be correct. The summing-up also dealt with the principles relevant to intent in the crime of murder and malicious wounding where, in a case such as this, that intent is to be found, if at all, from conduct of a reckless character. I shall return to comment further upon the summing-up in connexion with the challenge made to its sufficiency in dealing with this question of intent.
A great many matters were argued before the Tribunal on behalf of the appellant. Without disrespect to counsel for the appellant (who was also the leading defending officer at the court-martial), many of the grounds and matters raised do not, in my view, have sufficient merit to require separate discussion. I shall confine these reasons to stating my conclusions upon the three points of substance that arose in the appeal, and to commenting briefly on three further matters. The questions of substance are:
1. Was the appellant entitled to rely upon the defence of diminished responsibility introduced in England by s. 2 of the Homicide Act, 1957?
2. Was there any inadequacy in the summing-up of the judge-advocate in so far as it dealt with the elements relevant to the intent necessary to constitute the crimes of murder and malicious wounding?
3. Are the circumstances such that the Tribunal should find under s. 28 of the Courts-Martial Appeals Act 1955-1966 that the appellant was insane at the time of the shooting so as to entitle the appellant to have the sentence quashed?
The subjects of the three matters of comment are:
(a) The selection of the personnel of the court-martial.
(b) The degree of contact between the judge-advocate and the members of the court during the course of the trial.
(c) The citation of authorities, and the reading of extracts therefrom to the court during address.
1. The defence of diminished responsibility.
Section 54 of the Defence Act 1903-1966 provides, so far as is relevant: "54. Members of the military forces ... are subject to the Army Act with such modifications and adaptations as are prescribed."
The appellant, a member of the military forces, was accordingly at the relevant time subject to the Army Act, 1881 (Imp.). The Army Act is defined in s. 4 of the Defence Act as follows: " `Army Act'--Means the Imperial Act called the Army Act as in force on the day on which the Defence Act 1956 came into operation."
The Defence Act 1956 came into operation on 29th October, 1956. On this last-mentioned date the relevant Imperial Act called the Army Act was the Army Act of 1881. Section 2 of that Act is as
(1971) 21 FLR 86 at 91
follows: "2. This Act shall continue in force only for such time and subject to such provisions as may be specified in an annual Act of Parliament bringing into force or continuing the same."
From 1882 up to and including 1955 it was the practice for an Act to be passed by the Imperial Parliament each year continuing the Army Act in force for a period of twelve months. The last of such annual Acts was passed on 6th May, 1955, s. 1 of which Act provided: "1. The Army Act and the Air Force Act shall continue in force until the end of the year 1956 but no longer."
On 1st January, 1957, a new enactment, the Army Act, 1955, came into force in England. The provisions of this last-mentioned Act are of no present relevance.
Section 41 of the Army Act, 1881, as in force on 29th October, 1956, is, so far as presently relevant, as follows:
"41. Subject to such regulations for the purpose of preventing interference with the jurisdiction of the civil courts as are in this Act after mentioned, every person who, whilst he is subject to military law, shall commit any of the offences in this section mentioned shall be deemed to be guilty of an offence against military law, and if charged under this section with any such offence (in this Act referred to as a civil offence) shall be liable to be tried by court-martial, and on conviction to be punished as follows; that is to say,
(1) If he is convicted of treason, be liable to suffer death, or such less punishment as is in this Act mentioned; and
(2) If he is convicted of murder, be liable to suffer death; and
(2A) ... ...
(3) If he is convicted of manslaughter or treason-felony, be liable to suffer imprisonment, or such less punishment as is in this Act mentioned; and
(4) If he is convicted of rape, be liable to suffer imprisonment, or such less punishment as is in this Act mentioned; and
(5) If he is convicted of any offence not before in this section particularly specified, which when committed in England is punishable by the law of England, be liable, whether the offence is committed in England or elsewhere, either to suffer such punishment as might be awarded to him in pursuance of this Act in respect of an act to the prejudice of good order and military discipline, or to suffer any punishment assigned for such offence by the law of England."
There has, as allowed by s. 54 of the Defence Act, been a relevant modification prescribed to s. 41 of the Army Act, in that reg. 202(h) of the Australian Military Regulations provides:
"202. For the purpose of their application to the Military Forces, the sections of the Army Act mentioned in this regulation shall be read with the modifications and adaptations mentioned in this regulation, that is to say:--
... ... ...
(1971) 21 FLR 86 at 92
(h) Army Act s. 41 as if for the word `death' where it occurs, there were substituted the word `imprisonment'."
On 21st March, 1957, the Homicide Act, 1957, of the Imperial Parliament came into force in England. Section 2 of that Act provides that a person killing another shall not be convicted of murder if he was suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts. A person who, but for that section, would be liable to be convicted of murder shall be liable instead to be convicted of manslaughter.
Counsel for the appellant argues that this enactment affects the content of the crime of murder for the purposes of all Imperial statutes, including s. 41 of the Army Act. He contends, accordingly, that the defence of diminished responsibility is available on a charge of murder under s. 41.
I do not agree with this contention. The crime of murder is a common law crime. As Lord Reid said in Cox v. Army Council [1963] A.C. 48, at p. 70: " ... murder and theft are the same all the world over."
In Reg. v. Page [1964] 1 Q.B. 171, at p. 177 Lord Goddard, in delivering the judgment of the Courts-Martial Appeal Court, said: "We have no doubt that when the word murder is found in a statute it has the meaning which has always been attached to it throughout the ages, namely, an unlawful killing with malice aforethought."
The short point that arises on the first question is what is the meaning of "murder", as that word stood in the Army Act on 29th October, 1956. It is its content, common law and statutory (if there be any relevant statutes), as at 29th October, 1956, that must be ascertained for the purposes of the Defence Act. The Commonwealth Parliament has not, in the Defence Act, legislated so as to enable the Imperial legislation as it stands from time to time to have operation in respect of the defence forces. The Commonwealth Parliament has legislated expressly and directly so as to import the terms of the Army Act as that Act stood on 29th October, 1956. The position is directly analogous to that which came before the High Court in Commissioner for Government Transport (N.S.W.) v. Deacon (1957) 97 C.L.R. 535. In that case the court was concerned with a section of the New South Wales Transport Act conferring workers' compensation benefits on officers of the Transport Department. The section stated: "The provisions of subsections two to seven both inclusive of section ten of the Workers' Compensation Act, 1926-1942, shall, mutatis mutandis, apply to and in respect of such medical or hospital treatment or ambulance service."
Some relevant amendments were made to these provisions of the Workers' Compensation Act after 1942. It was argued that these subsequent amendments became applicable to persons entitled to
(1971) 21 FLR 86 at 93
claim compensation under the Transport Act. In the joint judgment it is said: "Here we have more than a reference: we have a referential adoption as law equivalent to a positive independent enactment. Nor do we think it possible to construe that referential adoption as itself conveying what may be called an ambulatory intention to incorporate the provisions in whatever shape they may afterwards be thrown by amendment. We think that sub-ss. (2) to (7) of s. 10 are simply incorporated as part of s. 124(3) in the terms in which they were expressed at the time and all that remains is to apply the subsections. The result may be due to a legislative oversight, but even if we knew that to be so it could make no difference." [FN1]
The present question can be resolved without concern at the possibility of a legislative oversight. The Commonwealth Parliament, in defining the Army Act as the Imperial Act in force on 29th October, 1956, did so in the knowledge that the then existing Imperial Act would, on 1st January, 1957, be replaced by a totally new Imperial Act (the Army Act, 1955).
A statute passed by the Imperial Parliament after 29th October, 1956, would not affect the operation of the positive independent enactment of the Commonwealth Parliament in adopting the Army Act as it stood on 29th October, 1956. The Homicide Act, and the defence of diminished responsibility introduced by s. 2 of that Act, has no relevance or operation in connexion with the charge of murder on a court-martial under the Defence Act of the Commonwealth of Australia. I should add that this does not rule out as inapplicable authoritative expositions of the common-law aspects of the crime of murder subsequent to 1956. Although the common-law elements may become better understood, and although they may tend to vary in their application in the light of judicial pronouncements from time to time, such pronouncements are but illuminations of basic common-law principles, and in legal theory they do not change the common law. It follows that whilst subsequent Imperial statutes are to be placed aside, judgments on purely common-law concepts arising under the Army Act as in force on 29th October, 1956, are to be taken into account.
For the foregoing reasons I consider that the first question of substance should be answered against the appellant.
2. Judge-advocate's summing-up.
I am not persuaded that the appellant has made good his challenge to the sufficiency of the judge-advocate's summing-up on the subject of the intent necessary to constitute the crimes of murder and malicious wounding. The summing-up was, as I have earlier said, directed principally to the defence of insanity. It did, however, proceed to deal, in a manner which I consider to be adequate in all
(1971) 21 FLR 86 at 94
the circumstances, with the matters to which the court should have regard in considering the crimes of murder and malicious wounding. The judge-advocate dealt explicitly with the onus of proof on the question of intent, and he marked the contrast that the court should bear in mind between declining to uphold the defence of insanity on the one hand, and, on the other hand, being satisfied beyond reasonable doubt of the presence of the necessary element of intent. He explained the considerations, particularly that of foresight, that are relevant when recklessness is sought to be elevated to a basis for a finding of criminal intent. The circumstance that, in the plan of the summing-up, the directions on these matters followed the directions and discussion of the defence of insanity, and the circumstance that this aspect was dealt with less fully than the defence of insanity, does not, to me, convey the impression of a defective summing-up, still less of a miscarriage of justice, whether one takes the summing-up on an initial superficial reading or upon a basis of close and detailed analysis.
I would accordingly decline to uphold the challenge to the sufficiency of the summing-up.
3. Courts-Martial Appeals Act, s. 28.
I have had the advantage of reading the reasons prepared by Mr. Harris. The citations from Reg. v. Jenkins (1963) 64 S.R. (N.S.W.) 20, at p. 29 and Reg. v. Weise [1969] V.R. 953, at pp. 957, 969, 975 set out in those reasons provide authoritative guidance upon the application of a provision such as s. 28. In applying that approach, however, in the present appeal I regret to find myself in disagreement with the conclusion reached by Mr. Harris.
Lieutenant-Colonel Maddison was at pains in the course of his evidence to stress the extent of his reliance upon the correctness of the account of events given to him by the appellant. Passing over leading questions put to him to the effect that he based his report upon his observations during two interviews with the appellant, Lieutenant-Colonel Maddison's own words were: "I formed the conclusions that make up the substance of my report almost entirely from personal contacts with Private Ferriday. I felt he gave me as frank an account as he was able to do. I felt that at that time he was a reliable witness in the interview. I formed the impression that on 25th December from at least 1500 hours onwards that he was--his behaviour and his thinking processes, mental processes, were very substantially affected by the intake of alcohol which he admitted consuming on that day, and in my view it was largely for this reason, that he could give me only a fairly hazy and patchy account of the events of the evening of 25th December. I was unable to form a precise view as to the final motivation for
(1971) 21 FLR 86 at 95
him discharging his rifle. He readily admitted discharging the rifle. He was unable to tell me exactly why, except for the repeated statement that he felt that for a period of time he had lost his head, he emphasized to me that he had attempted to shoot over the sergeants' mess. He emphasized to me that he had no intention of killing anybody with these rifle shots. I believed, as I said, that this was a sincere recollection of the events and his state of mind at the time." Lieutenant-Colonel Maddison's detailed psychiatric report was read out at the hearing, and was tendered as an exhibit so that the court had access to the document itself. The section of that report dealing with the appellant's mental state on 25th December, 1970, commences: "In the absence of any evidence of the existence of a psychotic illness prior to the incident or during my own examination, the crucial question is his mental state at 1830 hours on 25th December, 1970. In the absence of a medical examination at or shortly after that time this must of course be to some extent conjectural, and my own opinion is based on the assumption, which may or may not be correct, that his statements are reliable in so far as he can recall the circumstances and his feeling at the time. Other evidence may, of course, cast considerable doubt on this assumption."
Later in the same section of the report he said: "His own statement to me that he had no intention of killing anyone and that he was attempting to fire over the sergeants' mess may well be correct. He consistently maintains in a very convincing manner that he has absolutely no grievances against senior NCOs or officers. I also considered that he was telling the truth when he described his almost non-existent relationships with the two deceased sergeants and his generally untroubled relationship with the wounded sergeant. I was unable to clarify any aspect of his relationship to Warrant Officer Armstrong which might help to elucidate his behaviour and, as reported earlier, he denied to me any recollection of the threat he is alleged to have uttered to `get Boofhead'."
Senior counsel for the Military Board pointed out with some force that the appellant's emphasis to Lieutenant-Colonel Maddison that "he had attempted to shoot over the sergeants' mess" was not consistent with anything that the appellant had said on any earlier occasion, and, indeed, that it was directly inconsistent with, for example, the records of interview on 26th December, in which the appellant had assented to having fired "into the mess". There is a marked difference in substance between firing into the mess (albeit associated with a disclaimer of intent to kill anyone) and attempting to fire over the mess. Lieutenant-Colonel Maddison's evidence was called towards the end of the trial. It was relatively fresh in the mind of the court. His evidence itself, and its significance in the trial, was thoroughly and persuasively put to the court by the defending officer. And the whole defence of insanity, including
(1971) 21 FLR 86 at 96
in particular the significance of Lieutenant-Colonel Maddison's evidence, was covered not only in detail but also in recommendatory terms in the judge-advocate's summing-up. The court could not have failed to be fully seized of the refinements of the evidence, and of its significance on the outcome of the trial.
There is to my mind an inadequate basis for concluding that the defence of insanity was insufficiently understood by the court. Is it, then, a defence which can now be seen to be of such strength as to entitle the appellant to have a finding by this Tribunal that he was insane at the time of the shooting? In my view it is not.
The defence of insanity was clearly enough attended at the trial with reasonable prospects of success. But the question was an open one. There can be seen, as is borne out in the reasons of Mr. Harris, grounds which would have justified a verdict of guilty but insane. But equally there can in my view be seen to be grounds upon which the court could well have failed to be satisfied on the probabilities that the appellant was insane. To some extent Lieutenant-Colonel Maddison left the question at large, in that he proceeded avowedly in reliance on the appellant's own statements to him--statements made some days after the events, and at a time when the appellant claimed to have a less than adequate recall of the circumstances surrounding the shooting. Lieutenant-Colonel Maddison was clearly somewhat troubled by the application of the M'Naghten rules to the particular mental state of the appellant as he diagnosed it to have been on 25th December. There are, moreover, to be added to this and to the difficulties inherent in Lieutenant-Colonel Maddison having had, perforce, to base his opinion upon the appellant's own account of the events in question, other pieces of evidence which may not have been known to Lieutenant-Colonel Maddison. The inconsistencies between on the one hand the contents and extent of the appellant's recollection in the records of interview, and, on the other hand, his account to Lieutenant-Colonel Maddison is one such piece of evidence. Another is an incident, introduced by the defending officer in cross-examining an earlier witness, in which a few weeks earlier the appellant had menaced a fellow soldier with a rifle, albeit unloaded.
My view is that it would be unsafe for this Tribunal to use Lieutenant-Colonel Maddison's report as a source of reference, and to undertake a process of psychiatric reasoning upon which to base a finding of insanity. Even taking the question as being entirely open, I would not be satisfied that it was more probable than not that the accused was insane within the M'Naghten rules at the time of the shooting. He may well have been. On the other hand, there are strong grounds for doubting whether the evidence is sufficient to establish insanity on the probabilities. Particularly is this so when the evidence is examined with the aid of judicial
(1971) 21 FLR 86 at 97
analyses of the defence of insanity, including importantly the cases dealing with irresistible impulse.
Even within the most liberal permissible application of a provision such as s. 28, I am not prepared to find that the appellant was insane at the time of the shooting so as not to be responsible according to law for his actions.
Having stated my views upon the only three questions of substance with which I think it necessary to deal, I conclude by commenting on three matters that are of some general importance in the conduct of courts-martial.
(a) Personnel of the court-martial.
Apart from the president of the court-martial (a brigadier) the senior member of the court was a colonel in the Royal Australian Army Medical Corps. The other five members of the court comprised two lieutenant-colonels and three majors. It would have been preferable, when convening the court, to have avoided, in a case such as this, selecting a medical officer as a member of the court. The possibility of a defence of insanity and of a serious question upon the presence of intent must have been foreseeable when the court was convened. A medical officer nominated to be a member of a court in such circumstances could be placed in a position of considerable difficulty in being required, on medical questions of insanity and intent, to leave out of account his own expert knowledge and to decide the issues before the court strictly upon the evidence tendered during the trial. Coupled with this personal difficulty, there is always the risk that other members of the court might seek, during the court's deliberations, to draw upon the expert knowledge of the medical officer to fill out their understanding or interpretation of the medical evidence. This risk might be the greater where the medical officer is a senior member of the court.
There is nothing in the present case to suggest that there was any apparent or actual miscarriage of justice by reason of a colonel of the Royal Australian Army Medical Corps being a member of the court, and I note--although this is not conclusive on the point--that the appellant himself, who was ably represented throughout by two defending counsel, stated expressly at the commencement of the trial that he had no objection to being tried by the officers assembled as president and members of the court. Nor has counsel for the appellant adverted to this matter during his comprehensive submissions to us.
As a general rule, however, when a court-martial is being convened to try a case involving, as an important issue, a matter falling within the province of a particular field of non-service expert study and knowledge, the court should not include an officer who is a specialist in that field. I state a generality. Particular cases, exigencies
(1971) 21 FLR 86 at 98
of a situation, or other circumstances might on occasions justify a departure. A service specialty, such as, in the navy, gunnery or navigation, need not disqualify, although even here care should be exercised to avoid creating a situation in which any member of a court could be placed in a position of real difficulty in discarding his specialist knowledge and drawing solely on the evidence and his general service knowledge. (See Re Wallace's Appeal (1970) 18 F.L.R. 220 (No. 2 of 1970 before this Tribunal).)
(b) Degree of contact between the judge-advocate and the court.
The trial took place in South Vietnam, and there may well have been difficulties, not only in the availability of accommodation but also in the exigencies of the state of hostilities existing in the area, in providing appropriate living quarters for the judge-advocate and for the members of the court during this lengthy trial. It seems, however, that the judge-advocate and the members of the court were billeted throughout in the same hotel complex in Vung Tau, South Vietnam, and that they were relatively frequently in each others' company throughout the trial. The judge-advocate himself was conscious of the overtones of this situation, and in the first few minutes of his summing-up he said: "We have by force of circumstances had some contact with each other. If at any stage during the long time we have been together you have thought that you have gained any impression of my thoughts on the case you will put those out of your mind as well. You will put out of your mind any feelings of prejudice or sympathy. You will decide the case purely and simply on the evidence which has been given here and the submissions that have been made to you."
It might be observed in passing that the court-martial's failure to accept the judge-advocate's implied commendations of the verdict of guilty but insane discounts any suggestion of consultation between the judge-advocate and the members of the court upon the matters under consideration during the trial. Indeed, the sense of responsibility and propriety with which the judge-advocate and the members of the court can undoubtedly be credited denies the likelihood of any such consultation having taken place. It is, however, always necessary to take care that the outward appearances, as well as the fact and substance of complete regularity and propriety, are observed. As Lord Hewart C.J. said in R. v. Sussex Justices [1924] 1 K.B. 256, at p. 259 " ... a long line of cases shows that it is not merely of some importance, but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done."
Whilst there may at times be difficulties in ensuring that degree of remoteness which should exist between a judge-advocate and the
(1971) 21 FLR 86 at 99
members of a court during the course of a trial, the authorities responsible for providing for the accommodation of a judge-advocate and members of a court should, so far as possible, ensure that there is little, if any, need for the sharing of messing or other facilities. This may necessitate the acceptance of somewhat less adequate or comfortable conditions by either the judge-advocate or the members of the court, or both. It is, however, a factor of importance, and it is a factor which should in general be observed by those responsible for arranging the accommodation of all concerned in a court-martial.
Here, again, I speak in general terms. Difficulties of transport, shortage of accommodation, and other particular exigencies (such as may well have existed in the forward area where this court-martial was held) may render it difficult to adhere inflexibly to this precept. At the other end of the scale, an extremely large mess might well be capable of accommodating both judge-advocate and members of the court without presenting any appearance of undue propinquity.
Whilst I have thought it desirable to make the foregoing comment, there is not made out in the present case any basis for this Tribunal to intervene merely by reason of the degree of association between the judge-advocate and the members of the court.
(c) Citation of authority by prosecuting officer.
During the course of his final address the prosecuting officer made express reference to authorities, and read verbatim some passages from those authorities. Although during the trial there was no objection to this taken by the defending officer, or intervention by the judge-advocate, I have no hesitation in saying that this practice should be firmly discouraged. It is undoubtedly appropriate--indeed, necessary--for both the defending officer and the prosecuting officer to put to the court such matters of law as are necessary to enable the court to understand the significance of the matters being developed during the course of their respective addresses. They do not, and should not, purport to justify to the court such propositions of law as they feel obliged to make.
In a court-martial the judge-advocate is the final and absolute arbiter upon all questions of law. He need not, and does not, cite to the court any authority other than his own ipse dixit for the matters of law that he puts to them. The absolute authority in law of the judge-advocate is the same as that tersely stated by Dixon J. to the jury in R. v. Porter (1933) 55 C.L.R. 182, at p. 186: " ... it appears that some difference of opinion between learned counsel exists as to what that legal standard is. You will take my explanation of it, and disregard the attempts which have been made elsewhere to explain it, because
(1971) 21 FLR 86 at 100
mine is the responsibility of laying down what the law is. Yours is the responsibility of applying it to the facts."
So far as prosecuting and defending officers are concerned, there is still less justification for citing authorities or naming or describing the judges who may have laid down or developed the principles relevant to be put before the court. The reasons are obvious, amongst them being the risk of confusion and the totally unacceptable prospect of the words of some appellate tribunal being put before a court with a prospect, if not an innuendo, that this might perhaps be considered to be better law than that which proceeds from the summing-up of the judge-advocate himself.
The Court of Criminal Appeal in Queensland recently had occasion to make some comments in order to discourage the practice of referring to passages from textbooks or authorities (Reg. v. Giffin [1971] Qd.R. 12). The matter is discussed on pages 21 to 23, but for present purposes it is sufficient to quote the relevant paragraph from the headnote: "It is proper for counsel in addressing a jury to refer briefly to such basic principles of law as are necessary to enable the jury better to understand the evidence adduced or to be adduced, provided that, in so doing, counsel makes use of some expression indicating that such remarks are subject to directions on the law given by the trial judge; but that, since a jury are bound to follow directions of the judge on matters of law and since this principle should not be eroded, it is wrong for counsel in addressing a jury to read extracts from judgments or textbooks containing propositions of law which inferentially refer to the facts of some other case, and also wrong to seek to give such extracts additional weight by adding comments as to the authority of such statements or the source of the opinions which they contain."
Although there was, in the present case, a departure from this desirable course of practice in addressing the court, it was not such as to justify any intervention by this Tribunal. It cannot reasonably be suggested that the court was confused thereby. Nor can it be suggested that the quotations from authority presented the risk of any departure from the principles of law as laid down by the judge-advocate in his summing-up. Apart from the discouraging of this course of practice in future courts-martial, I do not consider that the appellant has made good his challenge upon this ground.
In my view the appeal fails, and should be dismissed.
W. O. HARRIS Q.C. In Vietnam on 25th December, 1970, Private Paul Ramon Ferriday fired three, or perhaps four, shots from an S.L.R. automatic rifle and shot and killed Sergeants Moss and Galvin and wounded Sergeant Bowtell. Ferriday was subsequently charged on two counts of murder and one of wounding
(1971) 21 FLR 86 at 101
with intent to cause grievous bodily harm. The charges were heard by a court-martial, sitting in Vietnam. The court-martial found the accused guilty of all these charges and he was therefore convicted and sentenced to imprisonment for life with hard labour and to be discharged from Her Majesty's Australian Military Forces. The conviction and sentence were subsequently confirmed.
Pursuant to leave Ferriday has appealed to this Tribunal. A considerable number of grounds were argued on the hearing of the appeal, but one issue overshadowed all others in importance. This was the question of the sanity of the appellant. The issue had been raised at the court-martial and the court had been directed by the judge-advocate on the defence of insanity but the court's verdict shows that this defence was rejected by it.
At the court-martial, the prosecuting officer called a number of witnesses who gave evidence of the events of the day on which the tragic event occurred. Much of this evidence, though directed primarily to the question of the appellant's state of inebriation, was in fact relevant to a consideration of the mental state of Ferriday. Furthermore, two psychiatrists were called by the prosecution. One was Major Nasser. He said that the accused was a paranoid personality (p. 645) but that he had not made an examination of the appellant to enable him to express an opinion as to his mental state. The other medical witness was Lieutenant-Colonel Maddison, who is the psychiatric consultant to Eastern Command and Professor of Psychiatry in the University of Sydney.
Lieutenant-Colonel Maddison had examined Ferriday and gave an opinion as to his mental state on 25th December, 1970. In his written report he expressly stated that his conclusions were based on the assumption that what Ferriday had told him of his life history and of what he could recall of the events of Christmas Day (which was not much) was true but, with one possible exception, there is no reason to conclude that this psychiatrist's opinion is unacceptable because these facts were not actually proved. It will be necessary to return to the exception referred to at a later stage, because in that one instance, it seems clear that the psychiatrist was not justified in relying on it.
Lieutenant-Colonel Maddison expressed the opinion that Ferriday had for many years a diagnosable personality disorder, best categorized as "suffering from a paranoid personality" (transcript p. 678).
He proceeded to explain that: "Recognized features of this disorder are a pervading tendency to distrust and suspicion of others, an extreme sensitivity and a readiness to see hurtful double meanings which are unrecognized by others, leading towards tendencies towards isolation of the self and avoidance of close relationships."
Maddison went on to say with respect to Ferriday: "His principal techniques for the mastery of his anxiety, insecurity, frustration and
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resentment have been the primitive and pathological ones of withdrawal, isolation of the self, and projection, that is the attribution of blame wherever possible to his environment rather than to himself. I do not see any evidence to suggest that his use of projective defences, either now or in the past, has involved any definable break with reality. In other words, I see no evidence that he is now suffering or has suffered for any period in the past from a paranoid psychosis or from any other form of psychotic illness."
Maddison then directed his attention to the mental state of the accused on 25th December, 1970.
One assumption that Lieutenant-Colonel Maddison made was that on that day, by the time the shooting took place and for some time before that, Ferriday was in a very drunken state. This assumption was amply borne out by the evidence. Maddison then went on to say: "If this is true (i.e. that Ferriday was very drunk) then not only would his inebriated state account for the degree of disinhibition (lack of control) that he manifested, taking into account his underlying personality disorder, but it would also account in large part for his very inadequate recall of the events of that night and his precise feelings and intentions at the time. The combination of excessive alcohol consumption, plus extremely strong emotions, may in a predisposed personality lead to a state of dissociation, that is a state akin to a trancelike or sleepwalking state in which quasi-purposeful actions may be carried out where the individual's conscious, rational and controlling mechanisms are temporarily and relatively suspended. The details of such episodes and the individual's own mental state and intentions at the time may never be adequately recaptured by him." (Transcript pp. 679, 680.)
Maddison clearly regarded as most important the accused's feelings of resentment against those whom he believed, rightly or wrongly, were "picking on" him. His conclusion was that these feelings were, for whatever reason, particularly strong on 25th December, 1970. He then went on: "It is well recognized in forensic psychiatry that excess alcohol consumption may well reach a point where his rational controlling mechanisms are temporarily overthrown, and for a period which may be as short as a few minutes he behaves in a totally disinhibited way, discharging impulses which have been restrained perhaps for many years, with varying degrees of effectiveness. Unusually excessive alcohol consumption, even in an individual accustomed to a heavy intake, will facilitate this disinhibition. Such states have sometimes been referred to as `temporary psychotic states'."
Maddison then stated the conclusion with which his report ended. This was that he was unable, on the evidence available to him, to say that there was a conscious intent to kill, directed either generally or towards any specific individual (p. 680). The fact that the colonel expressed himself in this negative way would seem to indicate that
(1971) 21 FLR 86 at 103
he had been requested to express his opinion on the question whether the accused had a conscious intent to kill. The negative opinion in the report no doubt explains why the prosecuting officer stated that he did not intend to call Maddison; he was only called on the insistence of the defending officer who exercised his rights under rule of procedure 75.
The only evidence elicited from Maddison by the prosecuting officer was the witness's very impressive professional qualifications and the fact that he had interviewed Ferriday. In cross-examination the defending officer elicited from Maddison the contents of his report and then put questions as to the accused's sanity; these questions were framed in accordance with the M'Naghten rules. Maddison expressed his distaste at having to deal with a person's sanity in terms of ideas that bore very little relation to the present state of knowledge about the human mind, but he did express a definite opinion in accordance with the M'Naghten rules.
Maddison said that in his opinion, at the time of the shooting, the accused understood the nature and quality of the act he was doing, in its physical sense. As to the second rule, Maddison said that he believed Ferriday did not foresee the consequences of his act (that is, he did not appreciate the possibility of causing harm to others by his act) and that therefore "in the strictest possible sense it seems to me that he did not appreciate that it was wrong". (p. 686.)
This opinion of Maddison is, in my view, clear and strong evidence that at the time Ferriday fired the rifle and thereby killed the two sergeants and wounded the third, he was insane, in the sense in which the criminal law requires insanity to be proved.
There is, in my opinion, only one aspect of the psychiatrist's evidence which could possibly weaken his evidence. This is the fact that Maddison said that Ferriday told him that he had no intention of killing anyone and that he was attempting to fire over the sergeants' mess and Maddison's observation that this may well have been correct. (p. 680.) As stated earlier, Maddison said that his opinion as to Ferriday's mental state on 25th December, 1970, proceeded on the assumption that Ferriday's statements were reliable "in so far as he can recall the circumstances and his feelings at the time". (p. 679.)
In fact, there was strong evidence which, in my opinion, showed that Ferriday's statement to Maddison that "he had no intention to kill anyone and that he was attempting to fire over the sergeants' mess" was not true.
This evidence consists partly of statements made by Ferriday to investigating officers and partly of the circumstances of the shooting itself.
(1971) 21 FLR 86 at 104
The statements made by Ferriday were made during the course of three interviews held on 26th December, 1970 (whereas the statement to Maddison was made not earlier than 1st January, 1971). In the course of the three interviews, Ferriday said on more than one occasion that he had fired "into the mess" (see, e.g. p. 555). It is true that to some extent these statements were made in answer to leading questions but they were repeated and no attempt was made during any of the interviews to detract from them and, in my opinion, they represent an accurate admission by Ferriday of what he did.
Furthermore, in my opinion, this view of the facts is strongly supported by the evidence as to the fall of shots in the mess.
The shots were fired by Ferriday from a small annexe to the tent in the lines which was nearest to the sergeants' mess, where the two sergeants who were killed and the one who was wounded were drinking with some of their fellow sergeants at the time. It was dark and the side of the hut which constituted the sergeants' mess was about seventy to eighty feet away from the annexe. The side was open, the interior was illuminated and the sergeants who were drinking at the bar were visible from the annexe where Ferriday took up his position. The rifle was placed between the slats which formed a railing around the annexe and the marks made by the bullets in the mess showed that the rifle must have been pointed in the general direction of the interior of the mess, and, it may be, at the end where the bar itself was and the sergeants were gathered. The details of the evidence are not significant; what, in my opinion, is significant is that the evidence clearly showed that the rifle had been pointed towards the interior of the mess, a fact which I regard as quite inconsistent with an intention to shoot over the mess. In my opinion, the only conclusion open on the evidence was that Ferriday pointed the rifle towards that interior, in such a way that there was at least a very grave risk that men in the mess would be killed by the shots. Therefore, in my opinion, the statement made to Maddison by Ferriday that he intended to shoot over the mess was not true, though perhaps Ferriday thought it was at the time he made it to Maddison.
Just what Ferriday's actual intention was is another matter. I think it is possible that he did not intend to kill anyone but it is probably impossible to get at his actual mental intention at the time.
Should the fact that, in my opinion, the factual basis for Maddison's opinion was, in this respect, non-existent, lead to the conclusion that his opinion on Ferriday's sanity cannot be relied upon?
In Ramsay v. Watson (1961) 108 C.L.R. 642, at p. 649 the High Court referred to the practice of allowing a physician to state the history he got from the patient
(1971) 21 FLR 86 at 105
when he is giving evidence of his diagnosis or opinion concerning the patient's health or illness.
The court said: "This makes all statements made to an expert witness admissible if they are the foundation or part of the foundation of the expert opinion to which he testifies; but except they be admissible under the first rule (which related to the admissibility of statements made by deceased persons), such statements are not evidence of the existence in fact of past sensations, experiences or symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician's opinion may have little or no value, for part of the basis of it has gone. Each case depends on its own facts. ... " [FN2]
I would add to this the point that the basis of the medical witness's opinion may be removed just as effectively if evidence from witnesses other than the patient shows that what the patient said to the doctor was not true.
As stated earlier, in my opinion, the factual basis upon which Lieutenant-Colonel Maddison based his opinion is only removed with respect to this one point, viz., that what Maddison had to go on was Ferriday's statement that he intended to shoot over the mess and that, in my opinion, the evidence at the trial showed that this was not correct.
As the High Court observed, the effect of the removal of part of the factual basis for a medical opinion depends upon the facts of the particular case.
In my opinion, in this case, the destruction of this one point does not lead to the conclusion that Lieutenant-Colonel Maddison's opinion on Ferriday's sanity cannot be relied on.
Maddison did not say that he regarded this statement by Ferriday as critical to his views on his mental state. He observed that the statement "may well be correct". It seems to me that Maddison's attitude to this statement was that, even accepting it as correct, it still did not detract from his opinion that Ferriday was in a temporary psychotic state at the time of the shooting. The other evidence (of Ferriday's other statements and of the fall of the shots) was not put to Maddison, but it is my firm view that these facts are entirely consistent with Maddison's views on the insanity of Ferriday and that, indeed, those facts would have reinforced his opinion.
I do not consider it necessary to traverse the facts in detail. What further strengthens me in the view that Maddison's opinion that Ferriday was insane at the time is correct is the utter irrationality
(1971) 21 FLR 86 at 106
of Ferriday's conduct. There was no motive for his behaviour, but there was a convincing explanation, viz., his irrational resentments. Maddison's evidence shows that, when sober, these resentments could be held more or less in check, but that, when drunk, the inhibitions which restrained the accused were removed so that his state was described as one of "disinhibition". The mere fact that a man voluntarily put himself into a state of disinhibition by drinking would not of itself afford any defence to the crimes with which the accused was charged. But this is not just a case of a person putting himself into a state where he was more likely to give way to a temptation to kill. Nor is it a case where the medical evidence is restricted to evidence that the accused's behaviour is described only in terms of irresistible impulse.
It may well be said that the evidence in this case can be regarded as showing that the removal of the inhibitions upon the conduct of Ferriday resulted in his being in a state where he was unable to resist his impulses, so that what he did was the result of irresistible impulse. But while it is clear that the law with respect to criminal insanity cannot be stated merely in terms of "irresistible impulse", it is equally clear that evidence which suggests irresistible impulse is relevant to the question of criminal insanity.
In Sodeman v. The King (1936) 55 C.L.R. 192 Dixon J. (as he then was) said: "It is one thing, however, to say that, if he is able to understand the nature of his act and to know that the act is wrong, an incapacity through disease of the mind to control his actions affords no excuse and leaves the prisoner criminally responsible. It is another thing to suppose that inability through disease of the mind to control conduct is in opposition to an incapacity to understand the quality of an act and its moral character. Indeed, while negativing the rule contended for (i.e. that the law as to insanity could be stated in terms of irresistible impulse), it is important to bear steadily in mind that if through disorder of the faculties a prisoner is incapable of controlling his relevant acts, this may afford the strongest reason for supposing that he is incapable of forming a judgment that they are wrong, and in some cases even of understanding their nature." [FN3] A little later his Honour added: "In general it may be correctly said that, if the disease or mental derangement so governs the faculties that it is impossible for the party accused to reason with some moderate degree of calmness in relation to the moral quality of what he is doing, he is prevented from knowing that what he does is wrong." [FN4]
To these passages may be added the observations of the Privy council in Attorney-General for South Australia v. Brown [1960] A.C. 432, at p. 450.
(1971) 21 FLR 86 at 107
The medical evidence of Lieutenant-Colonel Maddison is evidence of a definite opinion that the accused was criminally insane. Furthermore, while Major Nasser did not give evidence of a psychiatric examination of Ferriday, there is nothing in his evidence which throws any doubt on Lieutenant-Colonel Maddison's opinion.
In the light of Maddison's opinion--which, as the opinion of a very eminent man in his field, is entitled to the greatest weight--my conclusion is that Ferriday was insane at the time when he fired the shots which killed Sergeants Moss and Galvin and wounded Sergeant Bowtell, so as not to be responsible according to law for his actions.
Where it appears to the Tribunal that this was the fact, the Tribunal may quash the sentence passed by the court-martial. This power is given by s. 28(1) of the Courts-Martial Appeal Act 1955, which is in the following terms: "Where, upon the hearing of an appeal against a conviction by a court-martial, it appears to the Tribunal that, although the appellant was guilty of the act or omission charged against him, he was insane at the time the act was done or the omission made so as not to be responsible according to law for his actions, the Tribunal may quash the sentence passed by the court-martial."
Sections in terms such as this which are derived from s. 5(3) of the Criminal Appeal Act 1907 of the United Kingdom, have been held by the High Court to authorize the appellate body to enter what is the proper verdict according to the substance of the law (Mizzi v. The Queen (1960) 105 C.L.R. 659, at p. 666). The High Court reached this decision in a case on appeal from Victoria, so that there appeared to be a difficulty in applying the section, as Victorian law required a verdict of not guilty on the ground of insanity and not a verdict of guilty but insane. The High Court refused to allow that verbal difficulty to stand in the way of applying the section as it was obviously intended to apply. There is not the same problem in the case of this Tribunal but the decision goes to emphasize the extent of the power, and, indeed, the duty of the appellate body to act if it does appear to it that the accused was insane at the time he committed the act which would otherwise constitute a crime.
In 1962, the Full Court of the Supreme Court of Tasmania took a restricted view of their powers under the corresponding sections in the Tasmanian legislation. In Hitchens v. The Queen [1962] Tas. S.R. 35 the Full Court held that the power could only be exercised where the court found that the verdict was one capable of being set aside upon a statutory ground of appeal related to the issue of insanity.
In 1963, the Court of Criminal Appeal in New South Wales took a different view. In Reg. v. Jenkins (1963) 64 S.R. (N.S.W.) 20, at p. 29 Walsh J. said of the corresponding
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New South Wales provision: "In its terms the provision appears to me to confer a power to examine the evidence and to act upon the court's view of that evidence in appropriate cases. It is not merely a provision which can be applied in cases in which the court, if no such provision existed, would think it proper to order a new trial under the provisions of ss. 6 and 8. Although it is applicable in such cases, I think it can be applied also in cases in which the court is not prepared to hold that, in accordance with the principles relating to the granting of new trials the jury's verdict was so perverse and unreasonable as to require it to be set aside. The jury's verdict might not be unreasonable in that sense and yet the court might consider that the evidence was so strong in favour of the view that the accused was mentally ill, so as not to be responsible according to law, that it ought to make the special order under s. 7(4). The condition of the exercise of the power, as expressed in the subsection, is that it appears to the court that the accused was mentally ill." (See also R. v. Fleeton (1964) 64 S.R. (N.S.W.) 72.)
In 1969, the Full Court of the Supreme Court of Victoria considered the earlier cases and adopted the broader view. This was in Reg. v. Weise [1969] V.R. 953. Barry J. said: "I consider therefore, that this Court's powers under s. 569(4) arise whenever it is satisfied, on the balance of probabilities, that at the time of the act charged as a crime the appellant was insane so as not to be responsible according to law for his actions. Obviously the Court must exercise its powers responsibly, and in determining if it is proper to act under the subsection it will have regard to the jury's verdict, but equally obviously that verdict must not be regarded as concluding the question." [FN5]
Smith J. said: "The Court, however, in considering whether it can be so satisfied, must have due regard to the consideration that the jury is the tribunal primarily responsible in law for determining whether the defence of insanity has been made out; and the Court must give to the jury's verdict the full weight which justly attaches to it in all the circumstances;" and "Because of this the Court will not usually be able to be satisfied that the appellant was insane and that in consequence an order can be made under s. 569(4) unless (a) the weight which would ordinarily attach to the verdict rejecting the defence of insanity is impaired because, upon an examination of the evidence and proceedings at the trial, there are strong grounds for suspecting error in the processes by which the jury reached its conclusions or for regarding that conclusion as wrong or (b) the Court finds itself in a better position than the jury to determine the issue as to insanity." [FN6]
Adam J. said: "The English authorities do not appear to deal specifically with the rival constructions of s. 569(4), but they appear
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clearly enough to have assumed that s. 569(4) does confer on the appellate court an independent jurisdiction, though one to be exercised with great caution and only in exceptional cases where a legally unimpeachable verdict of a jury negativing insanity stands in the way." [FN7]
In my opinion, the broader view adopted in New South Wales and Victoria is the preferable view, so that, in my opinion, for this Tribunal to be able to act under s. 28(1) it is not necessary for it to be able to come to the conclusion that the verdict of the court-martial is one which should be set aside on a ground of appeal related to the issue of insanity. The words of the section itself and all the cases referred to show that the appellate body has the power to make its own finding of fact on the issue of insanity.
The grounds of appeal in this case did not deal specifically with the issue of insanity but counsel for the appellant indicated his desire to rely upon s. 28(1) if the Tribunal felt it was applicable and counsel for the Military Board did not suggest that the Tribunal could not apply the section if it rejected his arguments that the facts did not warrant its application.
In my opinion, this is a case in which the Tribunal should exercise its powers under s. 28(1). I express this view bearing in mind the warnings given by the judges in the passages cited with respect to the application of the section. Giving all the weight I can to the verdict of the court-martial, I do not feel that it should stand in the way of this Tribunal coming to a contrary conclusion. I have already set out the reasons which lead me to this conclusion and I add that the judge-advocate seems to have formed the view himself that "guilty but insane" was the proper verdict and this, I feel, affords further support for the view I take.
In my opinion, in these circumstances, it is not necessary for this Tribunal to enter upon a consideration of the grounds set out in the notice of appeal and amplified by the particulars. In my opinion, even if any of those were made out, the result could not be that the appeal would be allowed and the conviction quashed with the result that the appellant would go free. Even if a ground of appeal were made out, and made out in circumstances which resulted in the conclusion that the finding of the court-martial was unreasonable, or could not be supported, having regard to the evidence, or that there had been a miscarriage of justice (see s. 23(1)(a) and (b)), in my opinion, the proper course would still be for the Tribunal to quash the sentence on the ground available to it under s. 28(1), with the consequences that follow under s. 28(2). As the view I take is that the Tribunal may act under s. 28(1) even if a ground of appeal is not made out, there is no necessity to deal with the grounds of appeal.
(1971) 21 FLR 86 at 110
However, there are three matters which were argued and upon which I do think it is appropriate to express a view.
The first one is the important matter of the content of the law applicable to this court-martial.
By the Defence Act 1903-1966, members of the military forces whether on war service or not, while serving beyond the territorial limits of Australia are deemed to be on war service and are subject to the "Army Act" with such modifications and adaptations as are prescribed (s. 54).
The "Army Act" means the Imperial Act called the Army Act as in force on the day on which the Defence Act 1956 came into operation (i.e. 29th October, 1956).
The section of the Army Act, as then in force, which is relevant to this case is s. 41. As modified and adapted by regulations under the Defence Act, it is in the following terms:
"Subject to such regulations for the purpose of preventing interference with the jurisdiction of the civil courts as are in this Act after mentioned, every person who, whilst he is subject to military law, shall commit any of the offences in this section mentioned shall be deemed to be guilty of an offence against military law, and if charged under this section with any such offence (in this Act referred to as a civil offence) shall be liable to be tried by court-martial, and on conviction to be punished as follows; that is to say:--
(1) If he is convicted of treason, be liable to suffer imprisonment or such less punishment as is in this Act mentioned; and
(2) If he is convicted of murder, be liable to suffer imprisonment; and
(3) If he is convicted of manslaughter or treason-felony, be liable to suffer imprisonment, or such less punishment as is in this Act mentioned; and
(4) If he is convicted of rape, be liable to suffer imprisonment, or such less punishment as is in this Act mentioned; and
(5) If he is convicted of any offence not before in this section particularly specified, which when committed in England is punishable by the law of England, be liable, whether the offence is committed in England or elsewhere, either to suffer such punishment as might be awarded to him in pursuance of this Act in respect of an act to the prejudice of good order and military discipline, or to suffer any punishment assigned for such offence by the law of England. ... "
In my opinion, what is referred to as "murder" in that section is the common law crime, as known to English law on 29th October, 1956. In my opinion, the Defence Act provisions are not to be construed as doing more than making the text of the English section a law of the Commonwealth. Had the Army Act which was in force in England in 1956 remained in force thereafter English soldiers
(1971) 21 FLR 86 at 111
would have become liable to be tried for the crime of murder according to the content of that crime as laid down from time to time by the common law and statute law of England. But, in my opinion, the Commonwealth Defence Act did not, on its proper construction, make this the law of the Commonwealth.
The situation is, in my opinion, analogous to the one dealt with by the High Court in Commissioner for Government Transport (N.S.W.) v. Deacon (1957) 97 C.L.R. 535. The Transport Act of New South Wales incorporated by reference sections of the Workers' Compensation Act of that State and the question was whether amendments to the latter Act became applicable to persons under the former Act by virtue of the incorporation into it of the sections referred to. The court said that there was more than a reference to the Workers' Compensation Act. They said that there was "a referential adoption as law equivalent to a positive independent enactment" [FN8] and they added: "Nor do we think it possible to construe that referential adoption as itself conveying what may be called an ambulatory intention to incorporate the provisions in whatever shape they may afterwards be thrown by amendment."
In my opinion, in the same way, we are here only concerned with "murder" as it was in English law on 29th October, 1956.
It was argued that s. 41(5) showed that subsequent amendments to English law, at least to English statute law, were applicable to all the crimes referred to in s. 41. I do not think this is so. Section 41(5), by its very terms, necessitates a reference to the law of England as it exists at the time the person charged commits the offence, as "when committed" has, in my opinion, both a temporal and a conditional significance. I do not think that this requires any implication to be made into s. 41(2), where the wording is plain and there is no need to make any implication. Nor do I think that there is any substance in any of the other arguments put on behalf of the appellant in support of the "ambulatory" interpretation of s. 41(2).
The result is that, in my opinion, the judge-advocate correctly ruled that s. 2 of the Homicide Act, 1957, of the United Kingdom was inapplicable and that therefore the defence of "diminished responsibility" was not open to the appellant.
The second point relates to the admissibility of certain evidence. The judge-advocate admitted evidence called by the prosecuting officer to establish the habits of one Warrant Officer Armstrong, in visiting the sergeants' mess. There had been an unpleasant incident during the afternoon of Christmas Day when the appellant had taken up a rifle and threatened to kill Armstrong, though Armstrong was not present at the time. Armstrong was, of course, a member of the sergeants' mess and the evidence which was called
(1971) 21 FLR 86 at 112
was designed to show that Armstrong visited the mess regularly at about the time the shooting actually took place and that he always occupied a particular position near the bar. In fact the evidence hardly amounted to this, but, in my opinion, it was quite wrong of the judge-advocate to have admitted this evidence, when there was nothing at all to show that the appellant had any knowledge of the habits of Armstrong. In the circumstances, it was the merest speculation that the appellant may have intended to kill Armstrong by firing into the mess, more or less in the direction where Armstrong might be, at a time when Armstrong could be expected to be there. It would have been a matter for serious consideration whether the admission of this evidence vitiated the trial, had it not been for the conclusion I have come to under s. 28(1).
The third point relates to the nature of the prosecuting officer's final address. I should say at once that it appears to me that the prosecuting officer and the defending officer, too, performed their duties during the hearing, which lasted seventeen days, fairly and well, but, in my opinion, the prosecuting officer erred in the course he took in his final address.
He chose to address the court-martial at length upon the law and to support what he said by long passages from authorities. In my opinion, it is undesirable for a prosecuting officer to do this. It may have the unfortunate effect of causing the court-martial to give too much weight to his views on the law, instead of taking their law directly from the judge-advocate and it may have the effect of causing the court-martial to undervalue the submissions of a defending officer. (See Reg. v. Giffin [1971] Qd.R. 12.) The matter is one which lies in the sphere of practice and it might be difficult to find that there had been a miscarriage of justice if this were the only defect in a trial, but, in my opinion, it is something which should be avoided and therefore warrants comment in this case.
I wish to add that I adopt with respect the observations of the learned President on the matter of the personnel of the court-martial and the degree of contact between the judge-advocate and the court-martial.
But the decision I have come to does not turn upon these last matters. It turns, and turns firmly, upon my conclusion that this is a case in which s. 28(1) should be applied. It does appear to me that the appellant was guilty of the crimes of murder and of wounding with intent to cause grievous bodily harm with which he was charged, or at least that there was evidence upon which the court-martial could properly so find--but only in the absence of evidence of insanity. What does appear to me clearly to be the position is that Ferriday was insane at the time the act of killing was done so as not to be responsible according to law for his actions.
(1971) 21 FLR 86 at 113
I would allow the appeal and quash the sentence passed by the court-martial, pursuant to s. 28(1) of the Courts-Martial Appeals Act 1955.
As I understand s. 28(2), it is not necessary for this Tribunal to make any further order. I understand it to have the effect that the appellant will be kept in custody pursuant to the provisions of military law relating to the custody of persons found by courts-martial to be insane.
B. J. F. WRIGHT Q.C. With the exception to be mentioned I am in agreement with the reasons of the President, and with the matters of comment which he has made.
But unfortunately I find myself unable to agree with the President's findings concerning the summing-up of the judge-advocate.
Reference need be made only to such cases as Brutty v. Attorney General [1963] A.C. 386, Mizzi v. The Queen (1960) 105 C.L.R. 659, and Reg. v. Haywood [1971] V.R. 755, to realize that the judge-advocate was faced with a difficult task in summing-up to the court.
A defence of insanity had been raised, and at the same time it was clear that the question of intent was a matter which had to be considered by the court. The question could not be resolved by a simple finding of sanity or insanity. This was not a case of automatism, but a case of a paranoid personality and the effect of intoxication on that personality.
The scheme of the summing-up was to deal first with the question of insanity and then to deal with the question of intent. At the conclusion of his careful directions to the court, the judge-advocate suggested to the court that their approach to the matter should be to deal with the question of insanity first, and it was only if they were against the appellant on the question of insanity that they should turn their attention to the question of intent.
It was because of this scheme that the judge-advocate dealt with the facts fully when he was considering the question of insanity. The question is whether the judge-advocate gave the court adequate directions as to intent and whether he drew the court's attention sufficiently to the facts bearing on intent. Having referred already to the facts in detail, when he turned to the question of intent the judge-advocate referred to the facts relevant to the question of intent only in a general way, and did not draw the attention of the court to any specific facts in detail.
If the judge-advocate had adopted the scheme of summing-up vvhich was adopted by Dixon J. (as he then was) in R. v. Porter (1933) 55 C.L.R. 182, he would have dealt first with the facts material to the commission
(1971) 21 FLR 86 at 114
of the acts constituting the crime, including intent, and then would have considered whether the state of mind of the appellant was such as to make him criminally responsible for his act, and reviewed the facts bearing on this matter.
The medical evidence in the present case was important both as to insanity and also as to intent. The evidence of drunkenness was equally important to both questions. The evidence of drunkenness was of critical importance when considering its effect on a paranoid personality both as regards insanity and intent.
But the question of insanity is a different question from that of intent. The onus of proof is different in each case, the burden of proof is different in each case. The application of the evidence to these "defences" is different in each case.
Intent is relevant to the question whether or not the crime of murder has been committed. If the crime of murder has been committed, insanity is relevant to the question whether or not the murderer is criminally responsible for that crime.
Thus it was necessary for the judge-advocate to evaluate to the court the particular facts relevant to the question of intent. It was not sufficient that the facts already had been considered in a general way.
When dealing with the evidence of witnesses the judge-advocate directed the court that they could reject or accept all or part of the evidence of any witness, expert or otherwise. But he gave no warning to the court that the evidence of the medical experts should not be put aside lightly in the absence of any countervailing evidence. It was important that the warning should have been given, particularly in regard to intent because of the burden of proof.
The judge-advocate having reminded the court that intent must be proved beyond reasonable doubt, then said: "Among the factors that you will take into account are all the evidence of this man's activities during the day, I will not recount them again, the evidence of his consumption of alcohol, because I direct you that drunkenness to such an extent that he was incapable of forming the necessary intent is a factor to be taken into account but if the drunkenness does not go that far, his drunkenness may along with every other factor be taken into account in determining whether or not he had the actual intent to kill. Along with that there is still Colonel Maddison's evidence, that he was incapable of foreseeing the results of his action; although he was capable of understanding the physical nature and quality of the acts he was incapable of foreseeing that they were likely to kill or harm anyone."
Was this a sufficient direction as to intent?
After giving this matter anxious consideration, I am of the opinion it was not a sufficient direction.
(1971) 21 FLR 86 at 115
The judge-advocate took the view, rightly in my opinion, that a direction was required on intent. But a sufficient direction in my view required a much closer examination of the facts to enable the court to determine whether or not the appellant had the required intent. See Pemble v. The Queen (1971) 124 C.L.R. 107; 45 A.L.J.R. 333, at p. 338.
Further the judge-advocate did not give the court a simple and precise direction as to the elements of the law with regard to "reckless" intent. The long extract read to the court by the judge-advocate from Vallance v. The Queen (1961) 108 C.L.R. 56, at p. 82 could have been confusing. What was required was a simple direction as to the law relating to "reckless" intent applicable to the charges before the court-martial.
The directions given as to intent in the circumstances were inadequate. The failure to give adequate directions constituted a substantial miscarriage of justice.
It is clear that on the evidence the appellant could have been found guilty of the offence of manslaughter. It appears to me that if the court-martial had not found the appellant guilty of the charges of murder, then inevitably it would have convicted him of the offences of manslaughter. I note that at the commencement of the court-martial, and again during the course of the trial, that the appellant offered to plead guilty to manslaughter.
Similar reasons apply to the charge of malicious wounding.
In accordance with s. 25 of the Courts-Martial Appeals Act 1955 I would substitute for the findings of the court-martial of murder findings of guilty of manslaughter. I would substitute for the finding of malicious wounding a finding of assault occasioning actual bodily harm.
THE TRIBUNAL continued:
We have each stated our reasons and our conclusions upon the matters raised in this appeal with which we consider it necessary to deal. In the result there is a lack of unanimity amongst us. Whereas one member of the Tribunal favours dismissal of the appeal, two members of the Tribunal would uphold it on different aspects. On the view of one of these members the life sentence should be quashed, with the consequence that, under s. 28(2) of the Act, the appellant would be kept in custody on the basis that he was guilty but insane. On the view of the other of the members who would uphold the appeal there would be substituted, for the findings of guilty of murder and malicious wounding, findings of manslaughter and assault occasioning actual bodily harm; on this view it would be necessary to pass on the appellant such sentence as the Tribunal thinks proper (s. 25).
(1971) 21 FLR 86 at 116
We have consulted together with a view to resolving this impasse. Without purporting to establish a precedent which will necessarily govern future cases, we are agreed that, in this case, the difficulty should be resolved by taking the following steps. As two members of the Tribunal are of the view that the findings and sentence of the court should not stand, the decision of the Tribunal should give effect to this majority view. To enable the selection of which of the two alternative results (insanity or manslaughter) should be reached the dissenting member will withdraw his dissent on one of the two grounds. Having reached this point, the dissenting member has indicated that, if the appeal is to be upheld either on the ground of insanity or on the ground of the challenge to the summing-up, he regards the challenge to the summing-up as the stronger of the two, and will accordingly withdraw his dissent so far as that ground is concerned. In those circumstances, we are of the view that the Tribunal should, instead of allowing or dismissing the appeal, substitute for the findings of the court-martial findings of guilty of manslaughter and assault occasioning actual bodily harm.
Having reached this stage, it becomes necessary to determine the sentence to be passed on the appellant.
We have given careful weight to the appellant's past good character, as well as to the whole of the circumstances surrounding the events of 25th December, 1970. In addition to matters that are ordinarily proper and relevant to be taken into account in determining the sentence for an offence of this nature, it is important to bear in mind that death-dealing weapons are readily to hand for members of the armed forces, especially when on active service. For the personal security and safety of members of the armed forces it is necessary to pay particular regard to the deterrent aspects of the punishment to be imposed on the appellant. The ready availability of the means to kill or injure must import a firm and sure retribution upon a person who takes advantage of those means.
We are of the view that there should be imposed on the appellant a sentence of ten years' imprisonment.
The finding of the Tribunal is that there be substituted for the finding of guilty of the murder of Allan Brian Moss a finding of guilty of manslaughter of Allan Brian Moss; that there be substituted for the finding of guilty of the murder of Wallace James Galvin a finding of guilty of manslaughter of Wallace James Galvin; that there be substituted for the finding of malicious wounding contrary to s. 20 of the Offences against the Person Act, 1861, of Frederick Edwin Bowtell a finding of assault on Frederick Edwin Bowtell occasioning actual bodily harm. The appellant is sentenced to be imprisoned with hard labour for ten years and to be discharged
(1971) 21 FLR 86 at 117
from the Defence Force of the Commonwealth of Australia. The sentence is to date from 25th December, 1970.
Orders accordingly.
Solicitors for the appellant: A. S. Boulton, Lane, Rex & Co.
Solicitor for the respondent: R. B. Hutchison (Commonwealth Crown Solicitor).
A.J.L.
[FN1] (1957) 97 C.L.R., at p. 546.
[FN2] (1961) 108 C.L.R., at p. 649.
[FN3] (1936) 55 C.L.R., at pp. 214-215.
[FN4] (1936) 55 C.L.R., at p. 215.
[FN5] [1969] V.R. at p. 967.
[FN6] [1969] V.R. at p. 969.
[FN7] [1969] V.R., at p. 975.
[FN8] (1957) 97 C.L.R., at p. 547.
[*] [EDITOR'S NOTE: Certain questions of law were referred to the High Court pursuant to Pt V of the Courts-Martial Appeals Act 1955-1956. The High Court held that the sentence was within the power of the Courts-Martial Appeals Tribunal to impose--see Ferriday v. The Military Board (1973) 47 A.L.J.R. 579.]
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