[COURTS-MARTIAL APPEAL TRIBUNAL]
Re JOHNSTON'S APPEAL
Courts-Martial Appeal Tribunal: Macfarlan J., President, McInerney Q.C., Deputy President, and O'Sullivan, Member
SYDNEY, 4th, 5th, 6th July; 7th October 1960
9 FLR 31
Defence -- Discipline of members of forces -- Courts-martial -- Dissolution -- Power of convening authority to dissolve court-martial -- Power of convening authority to convene further court-martial -- Implied common law powers -- Special statutory provisions -- Whether common law power excluded by statutory provisions -- Pleading -- Whether abortive court-martial may be pleaded as plea of former proceeding -- Whether condonation implied from dissolution of court-martial by convening authority -- Refusal of adjournment -- Whether miscarriage of justice -- What constitutes substantial miscarriage of justice -- Submission of "no case" -- Directions to be given -- Rejection of submission -- No evidence called by defence -- Direction to be given -- Necessity for judge-advocate to state or summarize evidence or explain words used in document subject of a charge -- Separate charges -- Direction to be given on evidence -- Air Force Act (Imp.), s. 53 -- Courts-Martial Appeals Act 1955, s. 23(2).
Section 53 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, provides, inter alia, for the dissolution of a court-martial in certain circumstances on the death or incapacity of members or the president of the court-martial or the illness of the accused and further provides that where a court-martial is so dissolved the accused may be tried again.
Held: (1) By common law a convening authority has implied power to dissolve a court-martial and to convene a further court-martial whenever the interests of justice so require. The common law power is not confined to cases where the continuance of a court-martial would be prejudicial to the accused.
(2) The provisions of s. 53 of the Air Force Act (Imp.) are not an exhaustive statement of the circumstances in which a convening authority may dissolve a court-martial and convene a further court-martial
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and do not exclude the powers of a convening authority implied at common law.
R. v. Durkin, [1953] 2 Q.B. 365, followed.
In court-martial proceedings, the only pleas founded on a former court-martial are pleas of a former conviction or a former acquittal of the same offence. If the former court-martial has been abortive, not resulting in a verdict, there has been neither conviction nor acquittal.
Winsor v. The Queen (1866), L.R. 1 Q.B. 390, applied.
Condonation of an offence charged in court-martial proceedings which have miscarried cannot be implied from the dissolution of the court-martial by the convening authority alone.
The history and nature of condonation under military law, considered.
The importance of due consideration by a court-martial of defence applications for adjournment and the necessity for adequate directions by the judge-advocate on the exercise of the court-martial's discretion, referred to with emphasis. Circumstances in which the refusal of an adjournment was found to be vitiated by erroneous and inadequate directions and to be a miscarriage of justice.
Section 23(2) of the Courts-Martial Appeals Act 1955 provides, "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".
Held, that a substantial miscarriage of justice occurs in court-martial proceedings if the relevant law is not correctly explained by the judge-advocate to the court-martial or the rules of procedure and evidence are not strictly followed and the accused may thereby have lost a chance which was fairly open to him of being acquitted.
Mraz v. The Queen (1955), 93 C.L.R. 493, applied.
In court-martial proceedings, when a defence submission of "no case to answer" is rejected by the court-martial and the accused elects not to call evidence, the judge-advocate should direct the court-martial that, notwithstanding such circumstances, the court-martial may acquit the accused.
May v. O'Sullivan (1955), 92 C.L.R. 654, applied.
In court-martial proceedings it is not always necessary for the judge-advocate in his summing-up to state or summarize the evidence to the court nor to direct the court on the meaning of words used in a document the subject of a charge before the court. But if there is some possibility that those words might have been used in some special meaning, it is necessary, at all events where the offence charged involves a state of mind, to tell the members of the court that they must consider whether the accused used the particular words in their ordinary or in their special meaning.
The necessity for a judge-advocate to direct a court-martial, dealing with two or more separate charges, to consider the evidence relating to each of the charges separately and, in considering a particular charge, to disregard evidence relating solely to other charges, referred to.
COURT-MARTIAL APPEAL.
The appellant appealed against his conviction by general court-martial of an offence against s. 25(1)(a) of the Air Force Act (Imp.), applicable to members of the Royal Australian Air Force by s. 5
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of the Air Force Act 1923-1956. The material facts appear from the decision.
W. D. T. Ward, for the appellant.
J. O'Brien, for the respondent.
Cur adv vult
7 October 1960
The following decision was delivered:
On 12th November, 1959, the appellant Thomas Johnston formerly 0217841 Flight Lieutenant Thomas Johnston of 2 A.D. Detachment "B", R.A.A.F., Neutral Bay was convicted by general court-martial held at Richmond of two charges, namely (1) a charge under s. 41 of the Air Force Act (Imp.) of obtaining money by false pretences contrary to s. 32(1) of the Larceny Act, 1916 (Imp.), in that he on 9th April, 1959, at Sydney, New South Wales with intent to defraud obtained from the Commonwealth of Australia the sum of £10 6s. 6d. by falsely pretending that he was maintaining his lawful wife Margaret Elsie Johnston; and (2) a charge under the Air Force Act, s. 25(1)(a), namely, that in a document signed by him he knowingly made a false statement in that he, on 21st October, 1957, at Sydney, New South Wales, in a document purportedly a statutory declaration signed by him in support of a claim for allowance in lieu of rations and/or quarters, in par. 6 stated, "My home is maintained for the benefit of my wife and myself", knowing this statement to be false. The appellant was convicted on each of these charges and sentenced to be dismissed from Her Majesty's service. On review by the confirming authority, the conviction on the first charge was not confirmed but the conviction on the second charge was confirmed on 22nd December, 1959. The finding was promulgated on 29th December, 1959. The appellant petitioned the Air board against the conviction. That petition was refused and notification of the refusal was by letter dated 5th February, 1960, forwarded to the solicitors who had appeared for the appellant in the court-martial proceedings. With that letter there was enclosed an undated letter to the appellant containing a similar notification of the refusal of the petition. On 16th February, 1960, the appellant lodged with the registrar of this tribunal an application for leave to appeal against his conviction for knowingly making a false declaration. On 18th February, 1960, the appellant lodged with the registrar of this tribunal notice of application for extension of time within which to apply for leave to appeal. On 19th February, 1960, the appellant lodged a request that he be granted legal aid in connexion with his appeal to the tribunal.
All of these applications come on for hearing before the Deputy President (Mr. M. V. McInerney Q.C.) sitting as the tribunal, at Sydney on 2nd March, 1960, and on subsequent days.
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On 2nd March, 1960, the Deputy President made an order extending, until 16th February, 1960, the period within which the application by Thomas Johnston for leave to appeal against the conviction for knowingly making a false declaration should be lodged, and, on 2nd March, 1960, the Deputy President ordered that the granting to the appellant of legal aid under reg. 11 of the Courts-Martial Appeals Tribunal Regulations be approved. The argument on the application for leave to appeal extended over three days, and at the conclusion thereof counsel for the appellant applied for an extension of time to lodge further grounds of appeal, namely ground (v) and ground (w). Those grounds are set out in the transcript of the application for leave to appeal and it is unnecessary here to recapitulate them.
Counsel for the Air board did not oppose this application. The Deputy President reserved his decision on that application, as also on the application for leave to appeal.
On 2nd May, 1960, the Deputy President granted leave to appeal, and extended until 23rd May, 1960, the time for lodging the grounds of appeal (v) and (w), and directed that the appeal be heard in Sydney on 4th July, 1960, and from day to day thereafter until concluded.
The hearing of the appeal commenced on Monday, 4th July, 1960, and extended through to 6th July, 1960. Mr. W. D. T. Ward of counsel appeared for the appellant and Mr. J. O'Brien of counsel appeared for the Air Board. At the conclusion of the hearing we announced that we had formed the opinion that the appeal should be dismissed, and we so ordered. We intimated that we proposed to take time to put our reasons into writing and that we would publish those reasons later.
For a proper understanding of the issues raised on the hearing of the appeal it is necessary to set out something of the history of the court-martial proceedings in which the appellant was involved.
The appellant was originally presented for trial before a general court-martial held at Richmond on 14th and 15th October, 1959. He was on that occasion presented for trial on five charges but the court was not satisfied that the third and fourth charges were correctly framed and those charges were, after reference to the convening authority under the Rules of Procedure, r. 23(B), struck out and the trial proceeded on the first, second and fifth charges. The trial proceeded on 14th and 15th October, 1959. On the latter day, following an objection by the solicitor for the defence that the judge-advocate had exceeded the bounds of his powers and duties by giving the prosecution directions as to the manner in which he should prove his case, the President adjourned the court. On the sittings being resumed some fifty-five minutes later, the President made a statement in these terms: "As President of
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this court, I had some doubts as to whether the proceedings constituted a fair and proper trial. The latest objection by the defence to the judge-advocate was only one of the points on which I was not satisfied. I think, therefore, having advised the convening authority, the Air Officer Commanding Support Command, of my decision the trial is now adjourned in order that a full and written report can be made available to the convening authority. The judgment is, of course, without prejudice to further proceedings at a later date, or if considered by the convening authority, to a retrial. The accused is released from arrest as was his condition prior to arrest".
On 19th October, 1959, the Air Officer Commanding Support Command, the convening authority who had convened the first court-martial, issued an order dissolving that court-martial. That order was in these terms: "Whereas a General Court-Martial was convened under my hand on 12th October, 1959, for the trial of Flight Lieutenant T. Johnston (0217841) Technical of No. 2 Aircraft Depot Detachment B Neutral Bay New South Wales and whereas at 1050 hours on 15th October, 1959, the Court adjourned with my consent so that the president could report to me the circumstances of the trial now therefore I, the undersigned Alan Leslie Walters, C.B., C.B.E., A.F.C., Air Vice-Marshal, Air Officer Commanding Support Command acting under the powers conferred on me by the Air Force Act and the Rules of Procedure dissolve the said court-martial".
On 22nd October, 1959, the Air Officer Commanding Support Command convened a court-martial to sit at R.A.A.F. base at Richmond for the trial of the appellant on two charges only, those being the charges under s. 41 and s. 25(1)(a) of the Air Force Act already mentioned, and being the first and second of the charges laid against the appellant at the first court-martial.
When the trial before the second court-martial commenced and before the accused pleaded to the charges laid against him his solicitor entered "a plea to the general jurisdiction" of the court stating that he made that plea under the Rules of Procedure, r. 34. He amplified the plea by submitting that the second court was illegally convened and in support of that submission he tendered the transcript of the proceedings of the first court-martial and the order dissolving that court-martial already referred to. The solicitor for the defence stated that they had desired to subpoena Group-Captain Quinn, the President of the first court-martial, to establish the nature of the report made to him by the convening authority. Group-Captain Quinn was not produced as a witness. The prosecuting officer stated that he was not produced because the request for his attendance came too late to have him there in time and that it was the view of the prosecutor that the evidence of Group-Captain Quinn would not be material. No application for
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an adjournment to permit the attendance of Group-Captain Quinn was then made by the solicitor for the defence, who was apparently content to rely on the legal submission that s. 53 of the Air Force Act was exhaustive of the circumstances in which a court-martial could be dissolved and that none of the circumstances therein set out had in fact occurred.
The prosecuting officer, in his reply, relied on the Rules of Procedure, rr. 65, 66, 102 and 132, and also urged that there was a residual power in the convening authority to dissolve a court-martial and convene a second court and that the convening authority had acted within that power and that it was not for the second court-martial to challenge the validity of the dissolution of the first court-martial, and that in any case an objection of that kind did not come within the Rules of Procedure, r. 34. The judge-advocate then directed the court. In the course of that direction, he said: "Further, on the evidence which is available to this court, it is lawfully empowered to try the accused officer on the offences with which he is charged. This court is therefore properly constituted and has jurisdiction. It may of course be decided by some higher authority, and the accused always has an opportunity to appeal, that the second trial should not have taken place. If this decision were taken then, of course, action could be taken to quash any finding that this court may make against the accused. My advice to the court is that this general court-martial has been properly convened and has jurisdiction to try the accused and the offences, particularly in view of the fact that the court is not aware of the reason for dissolution of the first trial. It is not competent for this court-martial to decide on this particular plea whether or not the convening authority should have convened the second general court-martial for the trial of this accused officer". Later he added: "Now it appears to me that the defence's suggestion to the court that you cannot have jurisdiction in this general court-martial because there is another court-martial still in being which has jurisdiction and which should continue to try the accused ... because of the advice which I have already given you, I do not propose to advise the court as to whether it was competent for the convening authority to dissolve the first court-martial in the way in which he purports to do in the dissolution thereof".
In effect, this appears to be a direction that the second court-martial had no power to embark on the inquiry whether it was validly convened nor to inquire whether the first court was validly dissolved. We are of opinion that such a direction was, on the first point at least, perfectly correct and that the second court-martial was bound to assume that it was validly constituted, and that it could not undertake any inquiry on that point--cf. Ellis v. Bourke (1889) 15 V.L.R. 163. Indeed Mr. Ward disclaimed the argument that the
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second court-martial should have entered upon an inquiry as to whether it had been validly convened. His argument was that it was validly appointed, but appointed to try the appellant for an offence with respect to which it had, in the circumstances, no jurisdiction because the appellant was still in the hands of the first court-martial.
Mr. Ward's argument involves two assumptions each of which requires examination: (i) that the convening authority did not have authority in the circumstances to dissolve the first court-martial and that therefore the first court-martial remained in being, still charged with the function and duty of concluding the trial of the appellant upon which it had been engaged at the time of the adjournment; (ii) that the appellant was entitled to take the plea before the second court-martial that he was imperilled in another court in respect of the same charges.
The foundation of the first assumption was that s. 53 of the Air Force Act conferred an express statutory jurisdiction on a convening authority to dissolve a court-martial, and in certain cases to convene a further court-martial to try the accused, that the statutory authority so conferred was exhaustive of the field and that there was no power in the convening authority to dissolve a court-martial in any other circumstances. Mr. O'Brien, for the Air board relied strongly on the decision of the English Courts-Martial Appeal Court in R. v. Durkin [1953] 2 Q.B. 365 That was a case arising under the Army Act and the Rules of Procedure made thereunder and the Courts-Martial Appeal Court upheld the contention of counsel for the Crown that there was under what was called "the common law of the army" a power to dissolve a court-martial if the convening authority considered that the proceedings were in some way irregular or that matters had arisen which were prejudicial to the accused. The position was said to be analogous to that prevailing in civilian courts where the court always had power to discharge a jury and begin the case over again if the interests of justice so required. Mr. O'Brien contended that this decision was equally applicable in the case of Air Force (R.A.F.) courts-martial and was equally applicable in the case of R.A.A.F. courts-martial in Australia. Mr. Ward argued that even if it could be assumed that there was "a common law of the army" under which Army courts-martial had from time immemorial claimed and asserted the power to dissolve a court-martial and convene a second court-martial if the interests of justice so required, no such common law could be imputed to the R.A.F. in view of its comparatively modern origin and of the fact that from its inception it had been regulated by statute and regulations made thereunder. Further he submitted that the provisions of s. 5 of the Air Force Act 1923-1956 had the
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effect of adopting only the provisions of the Air Force Act (Imp.) and not the common law applicable to members of the R.A.F. in England. He contended further that on its proper construction s. 53 of the Air Force Act (Imp.) gave express power to dissolve a court-martial and convene a second court-martial and that such express power excluded any implied power to dissolve a court-martial in circumstances other than those dealt with in s. 53, expressio unius est exclusio alterius. He pointed out further that a court-martial is a tribunal of limited jurisdiction and that it is unsafe to seek to argue by analogy from the inherent powers possessed by superior courts of record as he said had been done by Lord Goddard C.J. in Durkin's Case [1953] 2 Q.B. 365.
In our view these arguments cannot prevail. We do not think that s. 5 of the Air Force Act 1923-1956 is to be construed in the limited fashion contended for by Mr. Ward. On the contrary we think that it must be construed as extending to members of the R.A.A.F. the provisions of the Air Force Act (Imp.) in force in 1939 and that if the provisions under s. 53 of the Air Force Act (Imp.) as to courts-martial are not exhaustive of the power of a convening authority to dissolve an R.A.F. court-martial they should not be so construed here. We do not think that s. 53 was intended to cover the whole field of cases in which a court-martial could be dissolved and we think that Durkin's Case [1953] 2 Q.B. 365 is plainly right in its result and that the same implied power to dissolve a court whenever the interests of justice so require must exist also in that of an R.A.A.F. court-martial. We do not accept Mr. Ward's contention that Durkin's Case [1953] 2 Q.B. 365 must be read as conferring on a convening authority power to dissolve a court-martial only in cases where the continuance of the court-martial would be prejudicial to the accused. We think that the power to dissolve the court-martial must be equally applicable where it is plain that the continuance of the proceedings would be prejudicial to the prosecution. We do not accept Mr. Ward's argument, that in a case where it is clear that the proceedings before a court-martial are miscarrying and that justice is not being done or may not be done if the proceedings continue, there is no remedy save to permit the proceedings to continue and to rely on the confirming authority to set the matter right on review.
Mr. Ward's argument appears to be inconsistent with the provisions of the Rules of Procedure, r. 132: "In any case not provided for by these rules such course will be adopted as appears best calculated to do justice". Mr. Ward conceded--we think rightly--that this rule could not be construed as being limited to and directed only to the members of a court-martial and that it was
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applicable also to a convening authority. That rule in itself appears sufficient to justify the course taken by the convening authority in dissolving the first court-martial and directing a trial for a second court-martial.
Whether r. 66(B) of the Rules of Procedure is applicable to the facts of the present case is perhaps more doubtful and we do not think we need decide. In terms, r. 66(B) of the Rules of Procedure provides: "Where a court-martial is dissolved before the finding, or in case of a finding of guilty, before the sentence, the proceedings are null, and the accused may be tried before another court-martial", would appear to be applicable to the facts of the present case but it may be that it must be read in a more limited fashion having regard to the terms of r. 66(A). Some significance may attach to the fact that in r. 66(A) there occurs the phrase, "Where, in consequence of anything arising while the court is sitting, the court is unable by reason of dissolution (as specified in s. 53 of the Air Force Act or otherwise)". The last two words would suggest strongly that the draftsman of the Rules of Procedure did not take the view that s. 53 was exhaustive of the circumstances in which a court-martial could be dissolved and a further court-martial convened.
A further question arises whether the powers conferred on courts-martial by the Rules of Procedure are to be regarded as having been conferred by virtue of s. 5 of the Air Force Act 1923-1956 or by virtue of reg. 13 of the Air Force Regulations. In the result, it does not appear necessary for us to decide this question in the present appeal, but it may perhaps have some significance in the construction of the rules and in a consideration of the powers of an R.A.A.F. court-martial in other cases.
It follows that we are unable to accept Mr. Ward's argument that the convening authority lacked the power to dissolve the first court-martial and to convene the second court-martial. It therefore becomes necessary to consider the second limb of the jurisdictional argument. For this purpose it must be assumed that the second court-martial had been validly constituted for the purpose of trying the appellant but the argument is that the second court-martial did not have jurisdiction to try the appellant because the appellant was already in the charge of the first court-martial. The argument falls to the ground if--as we hold--the first court-martial had been validly dissolved. But in any case it appears to us that we should apply the settled rule of English criminal law, "the only pleas known to the law founded upon a former trial are pleas of a former conviction (autrefois convict) or a former acquittal (autrefois acquit) for the same offence" (Archbold Criminal Law, 32nd ed., pars. 435, 602). If the former trial has been abortive, not resulting in a verdict, there has been neither a conviction nor
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an acquittal--see Winsor v. The Queen (1866) L.R. 1 Q.B. 390, at p. 395. Nor is the discretion of the judge who discharged the jury on the former trial examinable--see R. v. Lewis (1909) 2 Cr. App. R. 180 and R. v. Charlesworth (1861) 1 B. & S. 460.
For these reasons we are of opinion that the second court-martial had jurisdiction to enter upon the trial of the appellant upon the same charges as had been before the first court-martial. It is perhaps of some interest to note that in the Air Force Act, 1955 (Eng.), s. 95 (the corresponding section to the former s. 53) now confers on the convening authority an express power to dissolve a court-martial "where, whether before or after the commencement of the trial, it appears to the convening officer necessary or expedient in the interest of the administration of justice", and that a provision to the same effect is to be found in s. 95(1) of the Army Act, 1955 (Eng.); compare however the Naval Discipline Act, 1957 (Eng.), ss. 56, 57. Mr. Ward sought to draw comfort from the fact that these provisions had not been enacted as declaratory provisions but we do not feel persuaded that this fact is tantamount to a legislative recognition of the fact that Durkin's Case [1953] 2 Q.B. 365 was not good law.
What we have said suffices to dispose of grounds of appeal (a) to (d).
The second main head of argument pressed by Mr. Ward were the grounds relating to the accused's plea in bar, namely grounds (i) and (j). The plea in bar was stated by the solicitor for the defence at the second court-martial in these terms, "The plea in bar, sir, and I rely on Rule of Proceeding 36 (a)(ii), is that the offences have been condoned by competent Air Force authority. My submission is of course, that the action by the convening authority in dissolving the previous court, without this action was illegal we submit, and therefore amounts to condonation of the two charges".
This plea was overruled by the second court-martial. It requires some consideration of the doctrine of condonation which is perhaps familiar enough in matrimonial causes but which (though the fact is not quite so widely known) is also applicable in the law of master and servant and in military law. In the field of military law the doctrine suffers from some lack of definition and the language used in the manuals and in the text book writers on the subject is not always consistent. In the Australian Manual of Military Law, Australasian ed. (1941), p. 566, note (2) the doctrine of condonation is stated in these terms: "It has long been recognised that a military offence can be `condoned', cf. Clode, Mil. Forces, vol. 1, p. 173, Simmons (6th Edition) p. 235. For the purpose of barring
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a trial condonation means such conduct on the part of a competent authority--i.e. an authority having power to determine that the charge should not be proceeded with--as is inconsistent with subsequently trying the offender, and as would make it inequitable to do so; it must be a deliberate and intentional act, done with full knowledge of all material facts. The Duke of Wellington is quoted by Clode as having written in a dispatch that the performance of a duty of honour or of a trust after the knowledge of a military offence committed, ought to convey a pardon. If, with full knowledge of the facts, competent authority removes an officer under A.M.R. & O. 166A, or allows him to resign, he should not afterwards be tried by court-martial for his offence. The fact that after trial, but before confirmation, the accused has been employed in active operations does not affect the legal validity of the sentence but affords ground for pardon".
The definition of condonation contained in s. 134(2)(d) of the Air Force Act, 1955 (Eng.) may perhaps operate as a restriction on the common law doctrine, but this statute is not applicable to the R.A.A.F.
By the courtesy of counsel we were furnished with copies of C. M. Clode's treatise Military Forces of the Crown (1869). In vol. 1, p. 173 of that publication the doctrine is stated in these terms: "The offence for which the accused is arraigned must be uncondoned, and committed within three years of the date of the court-martial warrant for his trial. The principle of condonation for criminal offences is peculiar to the Military Code, and is of comparatively modern origin. Sir Walter Raleigh served the Crown under a special commission, giving him supreme command, with the power of life and death over others, but he was afterwards executed upon his former conviction--the doctrine then laid down being `that the King might use the service of any of his subjects in what employment he pleased, and it should not be any dispensation for former offences'. The rule is not so now, as applied to military offences. "The performance of a duty of honour or of trust, after the knowledge of an offence committed, ought', said the late Duke of Wellington, `to convey a pardon for the offence'. And such is the case. `When any offence has been committed by an officer or soldier, and that offence not punished or forgiven, but advisedly overlooked, the person implicated being continued in his employment--these circumstances are held to be a good plea of condonation and a bar to further proceedings; and the Crown remitted the sentence of the court-martial upon Captain Achison in recognition of this principle' ".
A passage in substantially the same terms occurs in the same author's treatise The Administration of Justice under Military and Martial Law (1872), p. 94. "The offence must also be one that is uncondoned. `The performance of a duty of honour or of trust
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after the knowledge of a military offence committed ought', wrote the Duke of Wellington, `to convey a pardon', and, according to his practice in the Peninsula, it did so. `No man should be put on duty with a court-martial hanging over his head'. The discharge of duty involves condonation; and if the Crown, with a full knowledge of an offence, permits an officer to resign his commission, that would, I apprehend, be such a condonation, that he could not be put upon his trial before a court-martial".
In a footnote to the above passage the author cites the terms of reg. 349 of the Queen's Regulations, 1868: "A soldier charged with committing an offence should be put in confinement, as directed by the Articles of War, and ought not to be permitted to perform any duty whatever (except carrying his own arms and accoutrements in marching) until his case is disposed of. If, however, by error, such an offender has been permitted to perform any duty, he shall not thereby be absolved from liability to punishment for his offence, but may, if the proper authority shall think fit, be summarily punished, or be brought to trial before a court-martial, according to the circumstances of the case".
In Simmons on Courts-Martial, 7th ed. (1875), in a chapter dealing with various pleas of bar in trial, at pars. 564 to 567, there occurs the following passage: "A pardon may be pleaded in bar of trial; if full, it at once destroys the end and purpose of the charge, by remitting that punishment, to inflict which the prosecution is set on foot; if conditional, the performance of the condition must be shown; thus a soldier arraigned for desertion may plead a general pardon offered by the Sovereign, and prove that he surrendered himself within the stipulated period.
"The same principle applies to the condonation or formal overlooking of an offence by a superior, having authority to dispose of the case, with a knowledge of the circumstances. At a general court martial of which Major-General Sir Colquhoun Grant, K.C.B., was president, Private--of the--Hussars, was arraigned for desertion. `The Court are of opinion that the forgiveness of the prisoner by his commanding officer of this same crime of desertion now preferred against him, and the prisoner having been ordered to do his duty as a soldier in the regiment subsequently to such forgiveness, does amount to a pardon of the delinquency charged against him; which opinion has been confirmed by the field marshal. Private--is, therefore, to be released from his confinement, and to return to his duty'.
"The Queen's Regulations of 1859 laid down that `the act of placing arms in the hands of a prisoner for the purpose of attending parade or performing any duty, absolves him from trial or punishment for the offence which he has committed'. This rule was modified in 1868, and the regulations now provide that if `by
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error' an `offender has been permitted to perform any duty, he shall not thereby be absolved from liability to punishment for his offence; but may, if the proper authority shall think fit, be summarily punished, or be brought to trial before a court martial, according to the circumstances of the case'.
"It had, however, been previously held that the principle applied only in those cases where an offence has been advisedly overlooked or forgiven by competent authority. These pleas do not apply where a prisoner has been released under a wrong impression as to the extent of his misconduct, or released without due authority, or without any, by a subordinate. It was laid down at the judge- advocate's general office, with reference to a case where a prisoner had been released from his arrest, that if when the lieutenant-colonel applied for his release, he had a full knowledge of all the circumstances of his misconduct and did also afterwards release him from arrest, it is to be presumed that he intended to overlook the offence, and he ought not now to be put on his trial; but if the lieutenant-colonel was not informed of the extent of his misconduct when he ordered his release, `such release presents no bar to his now being tried' ".
This passage expressly distinguishes between pardon and condonation is as to make it clear that condonation is not the same thing as a formal pardoning of the offence. In Clode's The Administration of Justice under Military and Martial Law (already cited) there occurs this passage, at pp. 123 to 125: "But if the defendant pleads `not guilty', he may, under that plea, show any valid objection that would avail for his defence; as, the Statute of Limitations,--condonation of the offence,--that he is not amenable to the court, either in regard to its constitution or to his status as a civilian--or to his crime as not cognisable by a military tribunal.
"One plea or objection on behalf of the prisoner would appear to call for some special remark, viz., that made under the 14th Section of the Mutiny Act, which is founded upon the old legal maxim, Nemo debet pro una et eadem causa bis vexari. In America, it would seem that a second or new trial may take place with the assent of the prisoner, but the first trial referred to in the Act must--judging from the analogy of the common law--be one that was carried through to sentence and confirmation. `The only pleas', said Chief Justice Erle (in Winsor v. The Queen (1866) L.R. 1 Q.B. 390) `known to the law, founded upon a former trial, are pleas of a former conviction, or a former acquittal for the same offence; but if the former trial has been abortive, without a verdict--there has been neither a conviction nor an acquittal, and the plea could not be proved,--that which would be a matter of plea to a fresh indictment would be a ground of error upon a second trial on the same indictment.
(1960) 9 FLR 31 at 44
As far as relates to the former abortive trial, nothing which then took place could be ground of error on the second trial on the same indictment, unless it would have been a bar, by way of plea, to a new indictment for the same offence'. The offence must also be substantially the same; and as court-martial proceedings are not guarded by definite pleadings, nor is the record so accurate an evidence as that of a criminal court, to determine the identity of the crime, the court must act with caution, if the facts bear a close resemblance to those detailed in the former trial. If the former trial was stopped by failure of members, the prisoner might be brought to trial again; but if the court were dissolved by order of the Crown, that would possibly be held to be equivalent to the entry of a nolle prosequi, or a condonation equivalent to a former acquittal of the prisoner.
"But though the court be formed, and seised of the legal controversy raised by the charge and plea thereto, no doubt can (I apprehend) exist, that the tribunal may be dissolved at any time, and the prisoner released or remitted to custody, by order of the Crown--if not of the convening authority. In all criminal matters before a civil court of judicature, the power of the Crown to enter a nolle prosequi, and thereby to stay proceedings, is undisputed. Though whether the prisoner may or may not be tried again for the same offence, has not been so absolutely determined. To set a military court in motion without the power to stay its proceedings, until, upon completion, they come to the convening authority, to disallow would be futile. Here, as in America, this power would be exercised at any time after the court was formed, and before its proceedings had terminated--if justice required it".
It may be remarked that the reference to the nolle prosequi occurring on p. 124, par. 45, betrays some misunderstanding of the true nature and effect of a nolle prosequi: cp. Commonwealth Life Assurance Society Ltd. v. Smith (1937) 59 C.L.R. 527, at p. 534 citing Goddard v. Smith (1704) 1 Salk. 21; 2 Salk. 456 and 767 (record); 3 Salk. 245; 91 E.R. 20, 394, 632, 803; 6 Mod. 261; 87 E.R. 1008; 11 Mod. 56; 88 E.R. 882; Holt 497; 90 E.R. 1173.
Mr. O'Brien was disposed to argue that there could be no condonation unless there was a restoration to duty. We think that restoration to duty or proof that the offender was required to resume duty may often be involved in condonation but what seems to be the essential ingredient in condonation is that in some manner or other the offender should have been restored to the status which he had occupied prior to being charged with the offence alleged to have been condoned.
Mr. O'Brien further submitted that there could be no condonation unless it was shown that this condonation had been communicated
(1960) 9 FLR 31 at 45
by or on behalf of the convening authority to the offender. As at present advised, we do not think that condonation necessarily involves an express communication by or on behalf of the convening authority of his condoning intent: but we are disposed to think that it is essential that the competent authority must do some overt act which comes to the knowledge of the offender and from which the condoning intent may reasonably be inferred.
It is perhaps unnecessary to give final answers to these questions in the present case. For in this case the plea of condonation as stated at the trial depended upon the initial premise that the dissolution order was not referable to s. 53 or to any implied power to dissolve a court-martial in the interests of justice. In effect, the argument runs: faced with the fact of a dissolution for which no other lawful justification is to be found, one must assume that the convening officer acted lawfully rather than unlawfully. An intent to condone the offence would afford a lawful justification for the dissolution. Therefore, condonation is to be inferred from the fact of the dissolution in the present case.
We have already stated our reasons for holding that the dissolution is to be regarded as a lawful exercise of an implied power to dissolve whenever the interests of justice so require. Consequently, the first stage of the argument set out falls to the ground. But in any event it is difficult to see how an inference of intention to condone an offence can be drawn from the action of the convening authority in dissolving the first court-martial when the very same convening authority, only a few days later, convenes a second court-martial to try the offender in respect of the very same offences.
Mr. Ward, however, argued that the convening of a second court-martial was not inconsistent with the existence of condonation: that the true position could have been that the convening authority having decided to condone the offence and therefore dissolve the first court-martial, subsequently changed his mind and decided to convene a second court-martial. It is necessarily involved in this argument, however, that the dissolution of the first court-martial was an equivocal act, the true significance of which could not be understood without extrinsic evidence. Once the conclusion is reached that condonation cannot be spelt out of the dissolution alone, the foundation of the argument put at the trial disappears.
It then becomes necessary to consider the grounds of appeal (g) and (h) which complain of the refusal of the court-martial to grant an adjournment sought by the defence. The application for adjournment was treated as one made on three bases: (1) to procure the attendance of Group-Captain Quinn, (2) to allow the defence time to prepare its case in relation to the additional evidence set out in the r. 76 notice (ex. K), (3) to give the defence sufficient time to apply for a prerogative writ.
(1960) 9 FLR 31 at 46
On the application for leave to appeal Mr. Ward intimated that he did not wish to make any submission in respect of the refusal of the adjournment in so far as it related to the proposed application for a prerogative writ. The appellant's advisers have quite clearly abandoned long since any intention to apply for a prerogative writ. We pass therefor to consider the appellant's complaint in relation to the refusal of the adjournment in respect of the application to call Group-Captain Quinn, and in respect of the late service of the r. 76 notice.
The prosecution had, in our view, acted quite wrongly in failing to take any steps to procure the attendance of Group-Captain Quinn. No doubt their failure was due to the view they had formed that he could give no relevant evidence. But the solicitor for the defence had not, at that stage, disclosed--nor was he bound to--what evidence he intended to elicit from Group-Captain Quinn when called as a witness.
Since the prosecution had not taken any steps to procure the attendance of Group-Captain Quinn, rr. 78 and 79 of the Rules of Procedure would seem to indicate that the court should then either have taken the proper steps to procure the attendance of Group-Captain Quinn or adjourned and reported the circumstances to the convening authority--that is, unless it was plain that he could have given no material evidence.
It was argued before us that Group-Captain Quinn could have given evidence of any facts which he verbally reported to the convening authority (as distinct, of course, from what he had said in his written report, production of which could have been obtained, we think, only from the convening authority). It was said further that Group-Captain Quinn could have given evidence of what he had told the convening authority as to what circumstances at the trial led him to take the course of adjourning the hearing and reporting the matter to the convening authority. (If he reported on this matter in writing, then production of the written report could, as pointed out above, have been obtained only from the convening authority.) No doubt, also, if Group-Captain Quinn had informed the convening authority what were the charges in respect of which the appellant stood his trial, that might have been relevant evidence, since no condonation can arise unless the condoning authority is aware of the offences in respect of which it is alleged condonation arises. But in any case the convening authority must have been aware of these charges since he had previously signed the order convening the first court-martial to try the appellant on those charges and he signed shortly afterwards an order convening a further court-martial to try the appellant in respect of the relevant two charges.
In the result the second court-martial refused the application by the solicitor for the defence for an adjournment.
(1960) 9 FLR 31 at 47
It may be that the second court-martial refused the application for an adjournment because it was satisfied that the convening authority had authority, if he considered the interest of justice so required, to dissolve the first court. It may be that its members refused the adjournment because they were satisfied that no inference of an intention to forgive could be drawn in view of the convening of the second court. It may be that they did not believe the application for adjournment was bona fide. They may have refused the application because the solicitor for the defence had not called any evidence to support his application for adjournment. They may have had all these reasons, or some of them or indeed some altogether different reason or reasons. Unfortunately they gave no reasons for their refusal. In these circumstances can it be said that their refusal of the adjournment was wrong?
The decision whether to grant or refuse an application for adjournment is always a matter for the discretion of the court to which it is made. It has been said that an appellate tribunal will not review that decision unless satisfied that the discretion was exercised in an arbitrary or extra-judicial manner and contrary to natural justice, and that the onus of proving that the refusal to grant an adjournment resulted in a denial of natural justice lies on the party alleging the affirmative--McKeering v. McIlroy; Ex parte McIlroy [1915] Q.S.R. 85. It may be doubted whether it is strictly accurate to state, as an additional requirement, that the refusal of the adjournment must be "contrary to natural justice" and the phrase itself has been subject to judicial criticism. A "denial of natural justice" in this context may mean no more than a failure to conform to the accepted canons of procedure as to a fair trial--see R. v. Chairman of General Sessions (Hamilton); Ex parte Atterby [1959] V.R. 800, at pp. 806, 807 per O'Bryan J.; see also Ceylon University v. Fernando [1960] 1 W.L.R. 223, at pp. 231, 232, 233.
It was also said in McKeering v. McIlroy [1915] Q.S.R. 85 that a court should entertain applications for adjournments in a liberal and considerate manner. We think it was unfortunate that the prosecuting officer should have stated that he opposed the adjournment as a matter of principle and that the judge-advocate should have given the court so little real guidance as to the principles which should guide the exercise of their discretion. It should be borne in mind that adjournments almost always involve the defence, no less than the prosecution, in delay and additional cost.
The spurious application for an adjournment is less common than is often thought. And where an application is sought for the purpose of calling a material witness, or to enable the defence to
(1960) 9 FLR 31 at 48
prepare its case, one would normally expect that a court would grant such an application--cp. McManamy v. Fleming (1889) 15 V.L.R. 337.
In opposing the application for an adjournment based on the last-minute service of the second r. 76 notice (ex. J), the prosecuting officer pointed out that the evidence notified in par. 2(c) thereof was notified also in the earlier r. 76 notice (ex. K). For that matter, he might equally have made that same comment with respect to pars. (a) and (b) of ex. J.
The court-martial might therefore have concluded that the late service of ex. J. had in fact caused no prejudice to the appellant and that the application was therefore not bona fide. They might have been led from that to conclude that the application for adjournment to procure the attendance of Group-Captain Quinn was likewise not bona fide. Such a chain of reasoning would not necessarily have been valid, and it was one into which the court might easily slip unless adequately directed: indeed, they were directed not to consider them separately. Furthermore, the judge-advocate appears to have proceeded on the view that an application for an adjournment must always be supported by sworn evidence and that a statement from the bar table was not sufficient. This appears to be plainly contrary to the provisions of r. 39(A) which permits a court to act on "any statement or evidence".
The court-martial was, in our opinion, misdirected on this point. We are by no means satisfied that, had a proper direction been given, the adjournment to procure the attendance of Group-Captain Quinn would have been refused.
In the course of the proceedings before the second court-martial, the prosecuting officer suggested that calling Group-Captain Quinn might involve a breach of the oath taken by him as president of the court--see Rule of Procedure 26 and Second Appendix.
But it does not appear that the evidence which the defence proposed to elicit from him would necessarily involve a breach of that oath. In any event, the proper time for determining whether any breach of the oath would be involved is when the evidence is actually sought to be elicited, and not before; and the court-martial would not have been entitled to assume, and we do not assume, that an attempt to elicit prohibited evidence was necessarily involved.
It follows that in our opinion, the court's decision to refuse the application for an adjournment was vitiated by the erroneous and inadequate directions given by the judge-advocate on that point. There was, therefore, in this respect, a "miscarriage of justice" within the meaning of that phrase as used in s. 23(1)(b) of the Courts-Martial Appeals Act 1955.
(1960) 9 FLR 31 at 49
It therefore becomes necessary to consider the provisions of sub-s. (2) of s. 23 of the Courts-Martial Appeals Act 1955, which is in these terms: "Notwithstanding that the Tribunal is of 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".
The provisions of sub-ss. (1) and (2) of s. 23 of the Courts-Martial Appeals Act 1955 are substantially the same as those of s. 4(1) of the Criminal Appeal Act, 1907 (Eng.) and of s. 6(1) of the Criminal Appeal Act of 1912 (N.S.W.). Concerning the latter provision Fullagar J., in a considered judgment, in Mraz v. The Queen (1955) 93 C.L.R. 493, at p. 514, said: "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 the 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".
It may perhaps be observed that the remarks just quoted, as well as certain other judicial discussions of the "proviso" (e.g. the observations of Lord Simon L.C. in Stirland v. Director of Public Prosecutions [1944] A.C. 315, at p. 321) do not expressly advert to the distinction between the phrases "a miscarriage of justice" (s. 23(1)(b)) and "substantial miscarriage of justice" (s. 23(2)).
We have therefore to inquire whether, on the facts of this case, it can be said that "no substantial miscarriage of justice has occurred".
In Stirland v. Director of Public Prosecutions [1944] A.C. 315 just after the passage already referred to, Lord Simon L.C. said that the "proviso" "assumes a situation where a reasonable jury, after being properly directed, would on the evidence properly admissible, without doubt, convict" [FN1] . In R. v. Cohen & Bateman (1909) 2 Cr. App. R. 197, Channell J., delivering the judgment of the court, said: "There is ... a miscarriage of justice not only where the court comes to the conclusion that the verdict of guilty was wrong, but also when it is of opinion that the mistake of fact or motion on the part of
(1960) 9 FLR 31 at 50
the judge may reasonably be considered to have brought about that verdict, and when on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted, and, therefore, as there is no power of this Court to grant a new trial, the conviction has to be quashed. If, however, the Court in such a case comes to the conclusion that, on the whole of the facts and with a correct direction, the only reasonable and proper verdict would be one of guilty, there is no miscarriage of justice, or at all events no substantial miscarriage of justice, within the meaning of the proviso" [FN2] . That statement of the law was expressly approved by a strong Court of Criminal Appeal in R. v. Haddy [1944] 1 K.B. 442 which decision was, in turn, approved by Lord Simon in his speech in Stirland v. Director of Public Prosecutions [1944] A.C. 315.
It becomes necessary, therefore, to consider whether as a result of the refusal of the adjournment sought by the defence the appellant "may thereby have lost a chance which was fairly open to him of being acquitted" (Mraz v. The Queen (1955) 93 C.L.R. 493).
The Crown has satisfied us in this case that no substantial miscarriage of justice has occurred as a result of the failure of the court to grant the adjournment sought. Had Group-Captain Quinn been called, we do not think that on any reasonable view of any evidence which he could have given the court-martial could have been led to arrive at the conclusion that the offences with which the appellant was charged had been condoned by the convening authority. The essential element of restoration to status could not have been proved by the evidence of Group-Captain Quinn, who was not indeed a commanding officer of or otherwise a member of the appellant's unit or squadron. If such a restoration of status had occurred, it was a matter capable of being proved by the appellant either by calling the evidence of his own commanding officer or some other member of his unit or by himself giving evidence of the fact. None of these courses did he attempt to take and we cannot see how Group-Captain Quinn's evidence, if adduced, could have taken the matter far enough to establish the defence of condonation.
In respect of the application for an adjournment based on the late service of the second notice under r. 76 we have already commented on the fact that the second notice contained in fact no new evidence which was not the subject of the first notice and that therefore the late service of the second notice was not likely to have caused prejudice to the appellant.
(1960) 9 FLR 31 at 51
But in any event the late service of the r. 76 notice could have been met by an application by the appellant for an adjournment after taking the evidence of the relevant witnesses or by postponement of the cross-examination of these witnesses--see r. 76. No such application was made by the appellant and in the absence of such an application and a refusal thereof we are persuaded that no substantial miscarriage of justice has occurred in consequence of the refusal of the adjournment which is complained of in grounds (g) and (h) and perhaps inferentially under (k) and (l).
Grounds (k) and (l) complain of the failure of the prosecution to serve a further summary of evidence upon the occasion of his second charge. On the application for leave to appeal, Mr. Ward, for the appellant, submitted that after the first court-martial there should have been an additional or supplementary summary of evidence taken, so as to give the appellant an adequate opportunity of testing by cross-examination the additional evidence sought to be tendered. There may, perhaps, be occasions when it would be proper to adopt that course rather than to serve a r. 76 notice of intention to call additional evidence. But we are of opinion that the taking of an additional or supplementary summary of evidence was not a condition precedent to the jurisdiction of the second court or that the failure to take such a summary of evidence invalidated the second court-martial.
Where, as here, no such summary of evidence has been taken, it appears to us that the prosecution is bound to serve a notice under r. 76. If such a notice is served so late that the accused is or may be prejudiced in the conduct of his case, the accused is entitled to ask for an adjournment generally, or (under r. 76) to have the case adjourned after taking the evidence of the witness or witnesses concerned, or to defer the cross-examination of those witnesses.
The judge-advocate did indeed inform the court of the latter two courses, but the defence did not ask that either of those courses be adopted. As at present advised, we are disposed to think that r. 76 does not preclude a court-martial from exercising its inherent power to grant an adjournment of the whole matter if in its opinion the interests of justice so require. We have already indicated that we think that the material raised in the second r. 76 notice did not raise new matter. If the application for adjournment of the second court-martial had been based solely on the late service of the second notice, we would not have been satisfied that the discretion of the court-martial in refusing an adjournment had been exercised on wrong principles and we would add that here also we are satisfied that no substantial miscarriage of justice has occurred in relation to the matters there complained of.
It remains to notice a further ground classified by Mr. Ward as a ground raising a miscarriage of justice, namely, ground (e) which is as follows: "I was prejudiced by the delay in the convening of
(1960) 9 FLR 31 at 52
the court and in the action of the convening authority in dissolving a previous court-martial which had me in charge and such conduct was contrary to the principles of justice".
As expressed in the notice of appeal, ground (e) is somewhat difficult to follow in that it appears to suggest that what the appellant is complaining about is the length of time which elapsed between the first and second courts-martial. But as presented on the application for leave to appeal, the argument was that at the first trial the prosecution case was ill-prepared or ill-conducted, so that the appellant had, at that trial, a very good chance of securing an acquittal, but that in the interval between the first and the second courts-martial, the prosecution had mended its hand, to the resultant prejudice of the appellant. Mr. Ward did not, on the hearing of the appeal devote any time to this ground, but he did not expressly abandon it.
We do not think that this is an arguable ground of appeal. The prosecution is not bound to rest on the same evidence as was offered at the first trial.
Grounds (n) and (o) were abandoned.
Mr. Ward argued ground (p) in conjunction with grounds (r) and (s) and (t), and the further particulars thereunder.
At the end of the prosecution case, the defence had made a submission of "no case" in relation to each of the two charges. That submission was overruled. The appellant thereupon intimated that he did not intend to give evidence or to call any witnesses. Consequently there then followed the closing addresses for the prosecution and the defence, and the final summing-up of the judge-advocate.
In his direction to the court on the "no case" submission the judge-advocate had adverted briefly to the difference between the function the court was then called on to perform and its function at the end of the trial. When he came to direct the court in his final summing-up, he reverted to the distinction only to the extent of telling them: "As defence counsel has pointed out, you will note particularly that you are here deciding a different issue from the one you have just decided".
We take that to be a reference to a passage in the final address of the solicitor for the defence, where he said: "Your determination on this point now is different, of course, from the determination or considerations you have just made when determining the submissions made by me at the end of the prosecution case. It is now incumbent upon you to consider whether the prosecution have satisfied you to that very high degree, which I submit is almost a degree of certainty".
In this particular case there was a distinct danger that the court might infer that since the accused had neither called nor
(1960) 9 FLR 31 at 53
given evidence after it had ruled that there was a case to answer, it must convict the accused. We think that the judge-advocate should have told the members of the court that notwithstanding the facts that they had ruled that there was a case to answer and that the accused had neither given or adduced evidence, they were entitled to acquit him--see May v. O'Sullivan (1955) 92 C.L.R. 654, at p. 658.
The course followed at the trial had the further consequence that the direction as to the legal ingredients of the offences charged were dealt with in more detail by the judge-advocate in the course of the "no case" summing-up than in his final summing-up. If the ingredients were correctly stated to the court on the first occasion, it would often suffice if the judge-advocate in his final summing-up reminded the court of and adopted what he had earlier said. This could be so particularly where, as here, no long interval of time separated the two summings-up. In his "no case" direction, the only direction by the judge-advocate as to the ingredients of the second offence did not there or, for that matter, anywhere else, tell the court in express terms that one ingredient is that the statement must have been in fact false. He told the court that in the second charge, "there are four elements in the particulars, as I previously mentioned to you". From his discussion of the charge it is possible to collect these elements: (1) That there be a document containing a statement. (2) That the document be signed by the accused. (3) That the document be one executed by the accused in his capacity as a member of the Air Force. (4) That when the accused signed the document he knew that the statement he was making in it was false.
In his summing-up at the conclusion of the case the judge-advocate did not specifically distinguish at all between the first and the second offences and he did not give them any specific direction as to the ingredients of the second offence. But even in the "no case" direction the judge-advocate did not expressly tell the court that they must be satisfied that the statement was in fact false.
The crucial statement in the document the subject of the second charge was, "My home is maintained for the benefit of my wife and myself".
That statement occurred in a document dated 21st October, 1957, but in a statutory declaration dated 30th April, 1956, the appellant had declared that he was married to his wife Margaret Elsie Johnston on 25th July 1953, that his "said wife" was being maintained by him at corner Woodford Road and Woodford Avenue, Woodford, New South Wales, that "there is no judgment order or decree of judicial separation or decree in divorce proceedings given or made by a court of competent jurisdiction affecting the marriage
(1960) 9 FLR 31 at 54
of my said wife and myself, nor has that marriage been annulled"; that "there is no subsisting court order for maintenance against me in favour of my said wife"; that he had authorized an allotment of twenty-five shillings per day from his Air Force pay for the benefit of his "said wife"; that a statutory declaration was submitted in support of a claim for marriage allowances pursuant to Air Force Regulations 555 and 556 and his authorization of that allotment was an authority to pay the sum of twenty-five shillings a day to his "wife Margaret Elsie Johnston, care of R. C. Brown, corner Woodford Avenue and Woodford Road, Woodford, New South Wales to the credit of a cheque account in the name of `Margaret Johnston' at the head office of the Bank of New South Wales, George Street, Sydney".
On the same day (30th April, 1956) he had furnished particulars in his pay identification form in which he stated that he was married, that his wife's full name was Margaret Elsie Johnston and that her permanent address was care of R. C. Brown, corner Woodford Avenue and Woodford Road, Woodford, New South Wales; that no state of separation existed between himself and his wife, nor was there any judgment, order or decree in divorce proceedings affecting the said marriage; and he had declared the information true and correct to the best of his knowledge and belief. He had on the same date witnessed a declaration by the allottee (his de facto wife) in which she had not answered the question, "What relation are you to the above named member" but had answered the question "What is the extent of your dependency upon him" as follows: "Wholly", and had given her present address as being "care of R. C. Brown, corner Woodford Avenue and Woodford Road, Woodford, New South Wales". The same identification form contained this passage: "If the allottee is the member's wife, the following additional question is to be answered: `9(a) Does a state of separation exist between you and your husband?' ". To this question, the answer "No" had been given.
On 9th April, 1959, the appellant had signed a cancellation of allotment in which he requested cancellation of the allotment "at present paid at my request to my wife Margaret Elsie Johnston at Bank of New South Wales, Penrith". He had supported that application for cancellation by a statutory declaration dated 9th April, 1959, in which he had declared, "I was deserted by my wife Margaret Elsie Johnston on Friday, 27th March, 1959. There is no judgment order or decree of judicial separation or decree in divorce proceedings given or made by a court of competent jurisdiction affecting the marriage of my wife and myself nor has that marriage been annulled. There is no subsisting court order for maintenance against me in favour of my wife. The foregoing is in support of my application for cancellation of allotment to my wife".
(1960) 9 FLR 31 at 55
It should be added that on 30th April, 1956, when he first applied for marriage allowances, he had produced a certificate showing that he had been married to Margaret Elsie Vale (Pyke) on 25th July, 1953.
It is true that each of these documents was made in relation to his claim for marriage allowances and not in relation to his claim for ration allowances. But those documents were clearly admissible in relation to the first charge, and, being admissible in relation to the first charge, they were also, on the principle of multiple admissibility (see Wigmore on Evidence, 3rd ed., vol. 1, par. 13), admissible in so far as relevant to the second charge. We are of opinion that it was clearly open to the court to look at those documents in relation to the second charge to the extent that those documents bore either on the question of the falsity of the statement made or on the question of the accused's knowledge, at the time when he signed, of the falsity of the statement complained of.
It is true that the documents so far referred to related to a point different in time to the date of the document the subject of the second charge. But the presumption of continuance was clearly applicable in relation to some of these statements. In any event, those statements, coupled with the accused's admissions, made on 1st September, 1959, and the supplemental statement made on 14th September, 1959, would have enabled a court to look at those documents in their totality. From those documents in their totality it was clearly open to the court to draw the inference that the accused was using the word "wife" in such a way as to convey the impression that, wherever used, it was intended to convey the meaning "legal wife", and that the accused knew that the statements contained in the document containing the statement complained of relating to the "wife" therein referred to were true only of his "de facto wife".
It can be said, therefore, that at the time when he signed the document the subject of the second charge there was abundant and indeed uncontradicted evidence that he was not at that time living with or maintaining his legal wife; that he did not intend the statement "my home is maintained for the benefit of my wife and myself", to convey the meaning that the home was maintained for the benefit of his "de facto wife" as opposed to his "legal wife", but that, on the contrary, he intended it to convey the meaning that the home was maintained for the benefit of his "legal wife" and that he intended the words to be understood as referring to "his legal wife" and knew that, so understood, they were untrue.
There was no direction given to the court to consider whether the word "home" was intended by the accused to be understood in its ordinary or in some special meaning--a desirable direction
(1960) 9 FLR 31 at 56
in view of footnote (d) to the document the subject of the second charge. There was no direction to the court as to whether the phrase "is maintained for" was intended by the accused to be understood in its ordinary or in any special sense. Some arguments on these points were submitted to us. The possibility that the accused may have attached his own meaning to the word "wife" and to the phrase "maintaining a home" was submitted very briefly by the solicitor for the defence in his final address but this part of the defence case was never put by the judge-advocate to the court in his final summing-up to the court. In this respect the final summing-up was unsatisfactory.
Mr. Ward also submitted that the judge-advocate had neither stated nor properly summarized the evidence in respect of the second charge, that no directions were given on the meaning of the words in the second charge, and that no adequate warning was given of the necessity for the court to separately consider all aspects in respect of each charge.
It is not always necessary to state or summarize the evidence to the court: after all they are presumed to have heard it--see per Cussen J. in Holford v. Melbourne Tramway & Omnibus Co. Ltd. [1909] V.L.R. 497, at p. 527. Nor is it always necessary to direct the court as to the meaning of the words used in the document the subject of the charge. But if there is some possibility that those words might have been used in some special meaning, it is, we think, necessary, at all events where the offence charged involves, as did the second charge here, a state of mind, to tell the members of the court that they must consider whether the accused used the particular words in their ordinary or in their special meaning. This the judge-advocate did not do.
Where an accused is presented on charges involving two or more separate offences, it is essential that the judge-advocate should direct the court that they should consider the evidence in relation to each of the charges separately. It was essential that the court in considering the second charge, should disregard such of the evidence as related solely to the first charge. In the present case, much of the evidence which was relevant to the first charge was also relevant to the second charge, but it still required to be separately considered in relation to that charge.
This matter is not dealt with in the judge-advocate's final summing-up, but he did deal with it in his summing-up on the "no case" submission. He then told the court, "The court should look at the whole of the evidence in relation to each charge. The court may accept and reject any part of the evidence as they see fit. There are two charges in the charge sheet and it is necessary for the court to relate the evidence to the particular charge
(1960) 9 FLR 31 at 57
to which it is relative. When there is more than one charge on a charge sheet the court must avoid the tendency to presume guilt on one charge because they may have decided that the accused is guilty of another charge. The evidence must be applied to the particular charge to which it relates".
On the whole, we think that this direction was adequate, and that, if it erred at all, it erred in favour of the appellant.
Mr. Ward also complained that the judge-advocate had given no warning to the court concerning the way it should look at and consider the answers of the appellant to the questions asked by Flight-Lieutenant Dent concerning the statutory declaration alleged to have been made by Margaret Elsie Johnston, the legal wife of the appellant.
The admissibility of this evidence had been determined on a voire dire, and no argument addressed to us suggested that we should not regard the appellant's answers to Flight-Lieutenant Dent as voluntary. Mr. Ward did not contend that there was any evidence from which it could be inferred that Flight-Lieutenant Dent, when questioning the appellant as to the statutory declaration matter by his legal wife, knew that the legal wife was not a competent witness against the appellant. Indeed the evidence was to the contrary. Consequently we think there was in this case no material on which the appellant could properly have called on the court, in the exercise of its discretion to exclude evidence obtained by improper or unfair questioning, to reject the evidence of the appellant's admissions as to his wife's statutory declaration.
Ground (w)(ii) complains that any statements made by the appellant were made in relation to the first charge and not in relation to the documents relating to that charge. While this is true of most of the documents tendered in evidence, it leaves out of account the admission made by the appellant with respect to the document the subject of the second charge of which Pilot Officer Parker gave evidence. But, in any event, it does not follow that all of the documents tendered in relation to the first charge would have been irrelevant in relation to the second charge, e.g., in relation to the question whether the appellant was maintaining his establishment at "Wyvern" Carmel Street, Glenbrook, New South Wales for the benefit of his legal wife. True it is that the dates of the documents with respect to which admissions were made by the accused were earlier than 21st October, 1957 (the date of the document the subject of the second charge). But, having regard to the presumption of continuance, the court would have been entitled to take the state of affairs as admitted by the appellant with respect to the 1956 documents as still prevailing on 21st October, 1957.
There was indeed very little evidence directed to the document which was the foundation of the second charge. That document
(1960) 9 FLR 31 at 58
went in, in the first place, for identification only. But it seems to us that it was properly proved (and should then have been tendered and marked as an exhibit absolutely) when Mr. Wolridge gave evidence verifying the appellant's signature to this particular document.
It was also objected that the judge-advocate gave wrong directions on the meaning of the word "knowingly". The complaint is that the judge-advocate related the word "knowingly" to the purpose of making the statement. The judge-advocate's direction on this point seems to us to have needlessly complicated the task of the court-martial in relation to the second charge, to have been at once too narrow and too wide; too narrow, in that the question of knowledge of the falsity was one to be resolved having regard to all the relevant circumstances, including, but not limited to the purpose for which the document was required; too wide, in that it directed the court-martial to give its primary consideration to the purpose for which the document was required, rather than to the meaning of the statement, the truth or falsity thereof, and if false, the accused's knowledge of the falsity thereof.
It follows from what we have said that we are of opinion that the summing-up was defective in respect of several of the particulars complained of in relation to grounds (v) and (w) of the grounds of appeal and that there was, therefore, in respect of these matters a "miscarriage of justice" within the meaning of that phrase as used in s. 23(1)(b).
It becomes, therefore, necessary again to consider the provisions of s. 23(2) of the Act. We are of opinion, however, that if proper direction had been given by the judge-advocate, the members of the court-martial, acting as a reasonable and not as a perverse tribunal, could not have had any reasonable doubt but that the statement made by the appellant in the document the subject of the second charge was false and that it was false to his knowledge at the time when he made it. It follows, therefore, that we are satisfied that no substantial miscarriage of justice has occurred.
It was on these grounds that we decided that the appeal must be dismissed.
We feel bound to add, however, that we do not regard the summing-up as having been satisfactory. We think that altogether too little attention was paid to the second charge, and that, particularly in a case where so much colour of fraud was likely to be imported into the consideration of the second charge from the evidence which was admissible in relation to the first charge, it was all the more important that the court-martial should have been properly directed in relation to the second charge. We feel constrained to say this despite our opinion, already indicated, that the matter which was likely to import so much colour was properly
(1960) 9 FLR 31 at 59
admissible also in relation to the second charge, and that with a proper direction the tribunal could have come to one conclusion only, namely, that it was satisfied beyond reasonable doubt of the existence of all the ingredients of the second charge.
We are concerned also with the attitude which appears to have prevailed in relation to the applications for an adjournment. It is particularly important that courts-martial should not allow any sense of irritation at what they may regard as pin-pricking technicalities by a legal practitioner, to deflect them from the task of considering each and every application on the part of the accused, whether for an adjournment or otherwise, on its true merits. This trial raised complex issues and the defence fought strenuously, but we do not believe unfairly, in relation to each of those issues. It is regrettable therefore that the defects which we have had occasion to notice should have marred the conduct of the trial.
In conclusion, we desire to say that we are very much obliged to both counsel for the considerable assistance which each gave us on the hearing of this appeal.
Orders accordingly.
Solicitors for the appellant: O'Loughlin, Ffrench & Co.
Solicitor for the respondent: H. E. Renfree (Commonwealth Crown Solicitor).
A.J.L.
[FN1] [1944] A.C., at p. 321.
[FN2] (1909) 2 Cr. App. R., at p. 207.
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