[COURTS-MARTIAL APPEAL TRIBUNAL]
Re MARWOOD'S APPEAL
Courts-Martial Appeal Tribunal: McInerney Q.C., Deputy President
MELBOURNE, 23rd May; 28th June; 12th November 1962
9 FLR 86
Defence -- Discipline of members of forces -- Courts-martial appeals -- Promulgation of findings of court-martial -- Sufficiency -- Courts-Martial Appeals Act 1955, s. 20(1) -- Courts-Martial Appeals Regulations, reg. 4.
The informing of an accused by a promulgating officer that the finding of a court-martial has been confirmed is sufficient promulgation of the confirmation of the conviction and sentence according to the custom of the Air Force notwithstanding that the accused is not at the same time informed of his right of appeal under the Courts-Martial Appeals Act 1955.
APPLICATION FOR LEAVE TO APPEAL.
The applicant was convicted by 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 of the Air Force Act 1923-1956, and sought leave to appeal against his conviction under s. 20(1) of the Courts-Martial Appeals Act 1955. The material facts appear from the decision.
K. Whiting, for the applicant.
P. Murphy Q.C. and Dr. A. Endrey, for the respondent Air Board.
Cur adv vult
12 November 1962
The Tribunal delivered the following decision:
This is the hearing of an application by Duncan Marwood for leave to appeal against a conviction under s. 25(1)(a) of the Air Force Act (Imp.) whereby he was convicted for having in a document signed by him intentionally made a false declaration in that he on 4th May, 1959, at Melbourne in the State of Victoria in a document purportedly a statutory declaration signed by him in support of a claim for married allowances under par. (2) stated, "My wife is being maintained by me at 203 Raymond Street, Sale, Victoria" knowing this statement to be false.
The charges were heard at a court-martial which was held on 18th January, 1962, and on 19th January, 1962. The finding was announced in open court on 19th January, 1962; it was stated to be subject to confirmation. The applicant was found not guilty on one charge and guilty on the second charge which is the charge which I have read. The court then closed for consideration of sentence. Later on the same day the sentence was announced,
(1962) 9 FLR 86 at 87
namely that the accused was to undergo detention for twenty-eight days. That sentence was likewise expressed to be subject to confirmation.
The formal record of the proceedings which is before me shows that the finding and sentence were confirmed by Air Vice-Marshal Walters on 26th January, 1962. The question which has been debated before me has been whether there was promulgation of the confirmation of the finding and sentence.
The applicant, in his application for leave to appeal, which is dated 9th March, 1962, recites that the date when the finding was promulgated was on 1st February, 1962.
It appears that the applicant had on 31st January, 1962, presented a petition for redress of grievances and that on 2nd March, 1962, he was notified that his petition for redress of grievances had been refused. That petition is in evidence as part of the proceedings and it appears to be a petition lodged under the provisions of Air Force Orders. Plainly it is not a petition to the Air Board under the provisions of the Courts-Martial Appeals Act 1955.
Under the Courts-Martial Appeals Act 1955 the applicant is not entitled to apply for leave to appeal to this Tribunal against his conviction unless he has within the prescribed period lodged a petition praying that the conviction be quashed by the prescribed authority, which, in this instance, is the Air Board.
It is common ground that this was not done, and I think it is also common ground that since it has not been done I have no jurisdiction to entertain the application for leave to appeal which was lodged on 9th March, 1962. The argument has centred in the question whether there was any starting point for appeal proceedings, whether in other words there was an appealable conviction.
This involves reference to the Rules of Procedure of the Air Force. Rule of Procedure 53 provides that: "The charge, finding, and sentence, and any recommendation to mercy shall, together with the confirmation or non-confirmation of the proceedings, be promulgated in such manner as the confirming authority may direct; and if no direction is given, according to the custom of the service. Until promulgation has been effected, confirmation is not complete and the finding and sentence shall not be held to have been confirmed until they have been promulgated".
It is common ground that no manner of promulgation was directed by the confirming authority, and the question is whether there was a promulgation according to the custom of the service.
Affidavits have been filed which show that on 1st February the applicant was informed by Squadron Leader Morling of the fact that the court-martial finding and conviction had been confirmed. According to the affidavit of Squadron Leader Morling, he caused the applicant to be paraded before him under escort, and, in the
(1962) 9 FLR 86 at 88
presence of Warrant Officer Roy Arthur Lyons, the Warrant Officer Disciplinary, he (Squadron Leader Morling) then told the applicant that he had received the confirmation of his District Court-Martial finding and sentence and that the charge was proven and that he was guilty and awarded twenty-eight days detention; that he told the applicant that he had a right to appeal and suggested that he contact Flight Lieutenant Morrisby who would explain his right to appeal.
The applicant puts the matter perhaps somewhat more strongly in his affidavit when he said that Squadron Leader Morling said to him: "I have to promulgate the court-martial sentence to you. You already know that you have got twenty-eight days detention. You have been through all this before and know all about the procedure. If you behave yourself you will most likely get seven days remission", or words to that effect.
It seems clear that the applicant was told that the conviction and sentence had been confirmed and that he was to undergo the period of detention of twenty-eight days. It is equally clear that he was not given a detailed explanation of his rights to appeal under the Courts-Martial Appeals Act.
My attention has been directed to the provisions of par. 244 of Ch. 25 of Australian Air Publication 103, being the Royal Australian Air Force Manual of Administration. That paragraph, under the heading "Action by Promulgating Authorities", provides as follows: "Officers promulgating the findings of a court-martial which announced its findings on or after 1st June, 1957, are to inform the convicted person that irrespective of any action taken by him his case will be reviewed by the Judge-Advocate General and in addition are to advise that person of his rights under the Act, drawing attention in particular to:
(a) His rights of appeal against the finding and/or sentence under AFO 12/K/15. (b) The application of the Act to the findings only. (c) The need for a petition before the appeal procedure can operate (except in the case of death sentence). (d) The method and time limit for submitting the petition. (e) The possible effect on the sentence of a rejected application for leave to appeal. (f) Discontinuance of appeals by notice in accordance with Regulation 12.
A copy of AAP 103 should be made available to him or to his defending officer upon request".
Air Force Order 12/K/15 (King's Regulation 1294) provides that: "An officer or airman who considers himself aggrieved by the finding or sentence of a court-martial may forward a petition to the confirming or reviewing authority through the usual channels. In Australia, if such petition raises any question of law, it should be referred to the Judge-Advocate General".
(1962) 9 FLR 86 at 89
My attention was also directed to the provisions of Air Force Order 12/K/17 (King's Regulation 1296) headed "Mode of Promulgation of Proceedings" which reads: "Where there has been a conviction by court-martial on all the charges or on one or more of them, the proceedings of the court, including the charges, finding, sentence, recommendation to mercy (if any) and confirmation or withholding of confirmation, will invariably be promulgated by communication to the accused. Promulgation by the reading out of the particulars detailed above on parade will take place only when the confirming authority specially directs that the promulgation shall take place in that manner".
It was common ground in the present case that there had been no direction by the confirming authority that the promulgation should take place by the reading of the particulars on parade.
The question then comes to this--has the sentence been promulgated if the accused has been told that the finding and sentence have been confirmed but not told of his rights to appeal under the Act? Or is it necessary that in addition he be told of his rights to appeal under the Act?
Mr. Whiting (for the applicant) has argued that the latter is the true view, that since 1957 it is an essential part of promulgation that the person convicted should be given the information prescribed in par. 244 of s. 5 of Australian Air Publication 103.
Mr. Murphy has, for the Air Board, argued that promulgation merely requires the communication to the person convicted of the fact that the finding and sentence have been confirmed.
If Mr. Whiting's argument that the provisions of par. 244 constitute an order be correct, then the question arises whether what is prescribed by that paragraph constitutes an essential part of promulgation, or is merely something which must be done at the same time as promulgation, but is not a constituent part of promulgation.
The essence of promulgation prior to the enactment of the Courts-Martial Appeals Act was, I think, that the confirmation of the finding and sentence should be publicly made known in some formal manner to the accused. Plainly what was done by Squadron Leader Morling constituted such a formal making known to the applicant of the fact that the finding and sentence had been confirmed.
It was contended that the content of promulgation has now been extended by reason of the provisions of par. 244, or alternatively by reason of a new custom of the service. Neither party tendered evidence to show that there is a custom of the service on this matter, and I was given conflicting accounts of what is the practice. I was told by Mr. Murphy that in fact promulgation is always done in the way in which it was done in this case, and that it was not in fact the practice to inform the accused of his rights of appeal under the Courts-Martial Appeals Act.
(1962) 9 FLR 86 at 90
Mr. Whiting, on the other hand, told me that, particularly in schools of administration open to persons of the rank of Group Captain downward, personnel are now receiving, and for some time past have been receiving instruction that at promulgation they must inform the person convicted of his rights of appeal in accordance with par. 244.
I agree with Mr. Whiting that it is a difficult matter to determine at what stage a custom of the service arises. There must always be some point of time, I suppose, when a course of conduct can be said to have given rise to a custom of the service. Whilst I have some difficulty in reconciling the notion of custom of the service with the concept of something done because it is obligatory under an order, I am prepared (for present purposes) to assume that regular compliance with an order (assuming par. 244 to have the status of an order) can ultimately give rise to a custom of the service.
I have, however, reached the opinion that the effect of par. 244 is to lay down a duty additional to that of promulgation of the confirmation of the finding and conviction, namely, a notification to the person so convicted of his rights of appeal.
This notification is not part of promulgation of the confirmation of the finding and sentence but involves an additional duty.
Though it is perhaps not necessary for me to express any view on this, I think what is prescribed in par. 244 is something which ought to be done as a matter of fairness. If it is being done now, so much the better. If it is not being done, it is to be hoped that, in future, promulgating officers will tell persons whose convictions and sentences have been confirmed that they have this right of appeal. It is not a good thing that what has happened in this case should take place, namely, that a person who undoubtedly wanted to appeal should find that he has got on the wrong track, so that through having pursued a petition through service channels solely he now finds himself out of time for an appeal to this tribunal.
It is an unfortunate consequence which may perhaps be averted in the future if personnel, when promulgating sentences, comply with the terms of par. 244.
It is not part of my function, however, to deal with those matters. My function is to inquire whether the finding and conviction and sentence were promulgated. On the view which I have arrived at, namely, that what was done on 1st February, 1962, constituted promulgation, it follows that the application for leave to appeal should have been preceded by a petition lodged within the prescribed time from that date. That prescribed time has now passed, so that the applicant is without remedy. That is a matter for regret, but I have to administer the Act in accordance with the law and the facts of the case.
The formal order which I make will be that the application for leave to appeal will be dismissed on the ground that I have no
(1962) 9 FLR 86 at 91
jurisdiction to entertain it, since the applicant had not lodged a petition to Air Board praying for the quashing of his conviction.
Application dismissed.
Solicitor for the applicant: F. Miller Robinson.
Solicitor for the respondent: H. E. Renfree (Commonwealth Crown Solicitor).
A.J.L.
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