[COURTS-MARTIAL APPEAL TRIBUNAL]
Re McCANN'S APPEAL
Courts-Martial Appeal Tribunal: Macfarlan J., President, Wright and O'Sullivan, Members
BRISBANE, 20th, 21st July; SYDNEY, 12th October 1961
9 FLR 21
Defence -- Discipline of members of forces -- Courts-martial -- Practice -- Judge-advocate's summing-up -- Credibility of prosecution witness challenged -- Failure to sum up defence case on credit -- Whether substantial miscarriage of justice -- Prosecution's discretion not to call witnesses -- General principles -- Impropriety of judge-advocate's marking court-martial's transcript of evidence -- Courts-Martial Appeals Act 1955, s. 23(1)(b), (2) -- Rules of Procedure, r. 75.
Section 23 of the Courts-Martial Appeals Act 1955 provides, by sub-s. (1)(b), that where, upon the hearing of an appeal against a conviction by a court-martial, the Courts-Martial Appeal Tribunal considers that there was a miscarriage of justice, the Tribunal shall allow the appeal and, by sub-s. (2), that 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.
In court-martial proceedings there was evidence that the principal witness for the prosecution was actuated by ill-will to the accused or by other improper motive. In summing-up the judge-advocate told the court-martial that the witness was the foundation on which the prosecution was built and that if that foundation were weak and shifting then the case would crumble and fall and lie in fragments forgotten. The judge-advocate did not sum up the evidence relating to the credibility of the witness and refrained from examining the solidity of the "foundation" to which he referred. The accused was convicted and appealed.
Held, that the summing-up was inadequate and, in the circumstances of the case, a substantial miscarriage of justice had occurred.
Stirland v. Director of Public Prosecutions, [1944] A.C. 315, referred to.
The traditional considerations of fairness with due regard to which the discretion of a prosecutor, under Rule of Procedure 75, not to call a witness, a summary or abstract of whose evidence has been given to the accused, should be exercised, referred to.
Ziems v. The Prothonotary of the Supreme Court of N.S.W. (1957), 97 C.L.R. 279, referred to.
The impropriety of a judge-advocate's marking passages in a transcript of evidence prepared for use by a court-martial, referred to.
COURT-MARTIAL APPEAL.
The appellant appealed to the Courts-Martial Appeal Tribunal under the Courts-Martial Appeals Act 1955 against his conviction for offences against the Army Act (Imp.). The material facts appear from the decision.
J. D. Dunn, for the appellant.
P. D. Connolly, for the respondent.
Cur adv vult
12 October 1961
(1961) 9 FLR 21 at 22
The following decision was delivered:
This is an application for leave to appeal by Major Allen McCann against his conviction by general court-martial at Ipoh, Malaya, on 25th February, 1961, of the following charges:--
"First Charge: Army Act, s. 19--When on active service drunkenness in that he at Kuala Kangsar on 24th December, 1960, was drunk.
Second Charge: Army Act, s. 8(2)--When on active service using insubordinate language to his superior officer in that he at Kuala Kangsar on 24th December, 1960, said to Major Malcolm Alexander Bishop, Military Medal, Australian Staff Corps, Royal Australian Infantry, then administering command of his, the accused's battalion: `Major, Sir, you are a bastard. Ten years ago I served under you. You were gutless then and you are still gutless. I'll see you buried for this' or words to that effect."
The hearing of the charges extended over a period of five days.
The application for leave was heard by us in Brisbane on 20th and 21st July, 1961. Mr. J. D. Dunn of counsel appeared for the applicant and Mr. P. D. Connolly of counsel appeared for the respondent, the Military Board. At the outset it was agreed by counsel that the matter should be fully argued on the application for leave.
At the conclusion of the hearing we announced that we had reached the conclusion that the application for leave should be granted, and that the appeal should be allowed and the conviction quashed and we so ordered. We intimated that we would give our reasons later.
At all times relevant to the charges Major McCann was officer commanding C Company and Major Bishop was administering command of the accused's Battalion 1 R.A.R. in the temporary absence on leave of the Commanding Officer, Lieutenant-Colonel S. P. Weir, M.C. Major Bishop and Major McCann had known each other for about ten years and Major McCann had previously served under Major Bishop.
It appears from the evidence given at the trial that Major McCann arranged a party to be held in the Charwallah's shop at Kuala Kangsar on the morning of 24th December, 1960, to have Christmas drinks with the officers and N.C.Os. of Admin. Company and Battalion Headquarters, who had been of assistance to C Company during the year, the hosts being C Company Headquarters. If it matters, this party was arranged by Major McCann without the prior knowledge or consent of Major Bishop. Major McCann said in evidence that on the morning of 24th December he invited Major Bishop by telephone to attend the party. Major Bishop puts it this way: "By the sound of this officer's voice on the phone he had been drinking and I moved to C Company lines to
(1961) 9 FLR 21 at 23
investigate". At all events Major Bishop did attend the party and had at least one drink with Major McCann.
On 26th December, 1960, Major Bishop submitted a written report to Lieutenant-Colonel Weir. This report was tendered in evidence by the defence and is marked ex. C (2). Since the charges against Major McCann arise out of this report we set it out in full.
It reads as follows:
"On 24th Dec. 60 at 1230 hrs. I received a phone call in CO's office from Maj. McCann inviting me to come down to C Coy to see how he, to use his own words `was sorting the battalion out'. By the sound of this officer's voice on the phone he had been drinking and I moved to C Coy lines to investigate.
"On arrival I found Major McCann in the charwallah hut in company with a large number of soldiers. He was dressed in shorts, shoes and stockings, and had no shirt. His fly was undone, the lower portion of his shorts in the vicinity of the crutch were wet with what appeared to be urine stains.
"Lt. Carter approached me and asked me if I could assist in getting Maj. McCann away from C Coy to the officers' lines so he could get him showered, dressed and out of camp.
"This was accomplished only after Maj. McCann had made a complete exhibition of himself by calling out in a loud voice for the troops to find his hat and shirt, pushing and adopting a fighting attitude to soldiers in what might be described as `horseplay', climbing through a window in the hut and climbing over tables. During this period he was completely unsteady on his feet, fell on to his back in the hut and generally displayed the actions of a person who was drunk. I instructed Lt. Carter to take Maj. McCann to his room with the least possible fuss and Lt. Chitham to close down the party in the charwallah hut.
"As my wife and son were reading in the mess lounge at this stage I moved up ahead of Maj. McCann and the other two officers and asked them to go to the rest hut at Kuala Kangsar and I would contact them later. I did this successfully without giving any indications that there may be anything of an unusual nature taking place.
"On arriving in the mess Maj. McCann went to his room and there ordered Lt. Carter to pack his gear. I also entered the room and while I was watching Lt. Carter packing the gear, Maj. McCann left the room. When I went out to the mess lounge I found Maj. McCann had ordered drinks from the barman Sin. When I spoke to Maj. McCann on this he said he only wanted to buy me a Christmas drink and he would then be ready to leave.
"In order to avoid a difficult situation in front of junior officers I maintained as calm an attitude as was possible, told Maj. McCann I would have a Christmas drink with him and then he would be ready to move. Up until this stage Maj. McCann was acting as
(1961) 9 FLR 21 at 24
though he was in a happy frame of mind and willing to move off quietly.
"He then demanded another drink but I pointed out to him that in his own interests he should leave camp for his home. He kept insisting and I told him I was sorry but I would not allow it. Maj. McCann then asked me why I had sent my wife and son away from the mess when he was coming up.
"I explained the reason was that I did not wish my family to see an officer in his state as what happened in a unit was of no concern of people outside the unit.
"Major McCann then said `Major Sir, you are a bastard' and kept repeating this. Lt. Carter and Lt. Chitham were both present at this time, and exercising discretion they moved out of the room. He then ordered the barman to give him another drink. I countermanded this order, told the barman to close the bar and leave the room. This instruction was carried out by the barman despite Maj. McCann repeatedly ordering the barman to leave the bar open. Maj. McCann then used the following words `I'll wait my chance and I'll see you buried for this', `You are yellow, a yellow bastard'. `I'll see you busted for this' and other similar remarks. I asked Major McCann if he realized what he was saying and that I would see him in my office when he was in a condition to talk as a field officer. Major McCann then told me that unless I ordered the bar open he would visit every bar between Kuala Kangsar and Penang and really show what he could do.
"I advised him that his actions may cause hurt to other innocent people, that he should consider them as well as himself, and that he would have to account for anything he did which would bring discredit on himself as an officer or on the unit.
"I then left the room and Maj. McCann moved to the Land Rover waiting at the entrance to the mess and accompanied by Lt. Carter and Sgt. Gordon moved off--I believed at this stage to Penang. The time was then 1310 hrs.
"At 1330 hrs. my wife and son returned to the mess to collect items that they had left there.
"They had been there approximately five minutes when Rashid (C.O.'s batman) arrived saying he had brought a bottle of rum as a Christmas present for myself and Maj. McCann. I told him he could not afford this and I could not accept it. Rashid was obviously under the influence of alcohol, but was not objectionable in any way.
"He accepted this after mild protest and was on the point of leaving the mess when Maj. McCann re-entered the mess. He had by this time obviously pulled himself together and full of pleasantries to my wife and son. He took the bottle of rum, and he must have his Christmas drink with Rashid and did so. He then asked to be excused and I accompanied him to the entrance
(1961) 9 FLR 21 at 25
of the mess. He apologised for Rashid's condition and said he was to blame as he had given him drink early that morning. I told Maj. McCann I would require him in my office when he returned from stand down and he then left.
"I made further inquiries and found that Maj. McCann had kept the officers mess bar open until 0530 hrs on the night 23/24 Dec. when I was absent from camp. The barman on this occasion was Ismaii.
"In view of this disgusting conduct which I consider most unbecoming of an officer and seemed to be an attempt by Major McCann to break down the discipline structure in Kuala Kangsar camp, I recommend the following action as Administering Command 1 R.A.R. during your absence: (a) that Maj. McCann be relieved of the duties as O.C. of C Company; (b) that Commander 28 Comwell Inf. Bde. Gp. be informed of this conduct.
"I make these recommendations for the following reasons: (a) as a field officer Major McCann cannot be trusted to maintain control during the absence of other senior officers but rather attempts to seize on these occasions to show his personal power to issue orders to contravene those in existence. I have spoken to him on this trait previously and his answer has been that any decisions he makes are his and that he accepts full responsibility. (b) I consider field rank is one in which an officer can not under any circumstances lower himself to a state where he loses control of his faculties and sense of proportion irrespective of time or place".
At the trial the whole basis of Major McCann's defence, apart from certain legal defences, was that Major Bishop was not a truthful and reliable witness; and one of the grounds of appeal is that the judge-advocate failed to advise the court-martial fully and fairly as to this defence.
It will be seen at once that ex. C (2) is not a mere statement of alleged facts. It contains matter in the nature of comment, inference and opinion, all most prejudicial to Major McCann.
Major Bishop's reference to Major McCann's fly being undone and to the wet patch on his trousers was completely unsupported by any of the witnesses called at the trial, although there were about forty to fifty people at the Charwallah shop at the relevant time. Further, Major Bishop in his report says that the words referred to in the second charge, or at least some of them, were spoken by Major McCann in the presence of Lieutenant Carter and Lieutenant Chitham and that Major McCann kept repeating them. Lieutenant Carter, who was Major McCann's second in command, was not called as a witness at the trial. Lieutenant Chitham was called by the prosecution and his version of what took place at the time relevant to the second charge is as follows: "Major McCann then turned to Major Bishop and said, `Let me
(1961) 9 FLR 21 at 26
buy you a drink'. Major Bishop said something along the lines that he considered Major McCann had had too much to drink and should not have another. Major Bishop then said he would close the bar. Major McCann then said, `I will stop at every bar along the way to Penang'. Major Bishop said, `Not in Army uniform'. McCann said, `I'll travel in civilian clothes'. Major Bishop replied, `Not in an Army vehicle'. Major McCann said, `I'll go in a civilian car'. Major Bishop said, `I will order you not to stop'. Major McCann said, `Listen Mal you ruled me when you were in company commander and you are still trying to rule me now'. Lieutenant Carter and I then left the bar to the reading room which put us out of earshot. Major McCann was sitting, possibly sweating a little. I was in the reading room for no more than a minute when Lieutenant Carter and I returned to the bar and stood at the other end. Major Bishop was speaking. He said, `I had to send my wife and child out of this mess so they would not see you in this state'. Major McCann then jumped off his stool, stepped back about three paces, appeared shocked and said, `You and your wife are not welcome in my house'. As soon as this was stated Lieutenant Carter and I left the mess".
Major Bishop was the only witness who gave any evidence in support of the second charge. Nor did Major Bishop in his evidence at the trial make any reference to the repetition by Major McCann of the offending words.
In these circumstances we think it was reasonably open to the court-martial on the evidence including the intrinsic evidence contained in ex. C (2), to reach the conclusion that ex. C (2) was not a bona fide, impartial and temperate report made by Major Bishop merely in the discharge of his duty as the officer administering command and that, if the court-martial did come to this conclusion, that Major Bishop was not a reliable witness. This is not to say, of course, that it was not open to the court, properly directed, to find otherwise. But this aspect of the case was not put to the court-martial by the judge-advocate.
Mr. Connolly sought to justify the adequacy of the judge-advocate's summing-up by reference to the respective addresses of the prosecutor and the defence, and to the way in which they conducted their respective cases, and submitted that it became perfectly plain by the time the judge-advocate had to sum up that the question was very much whether or not Major Bishop was a truthful and reliable witness. So far, we agree. But Mr. Connolly went on to submit that in these circumstances, the summing-up of the judge-advocate was adequate. Mr. Connolly's argument continued, "Had that not been the tone of the two addresses, the judge-advocate's position might have been rather different. Had Major McCann been less adequately represented at his trial and had the prosecutor been less fair or alternatively less ready to do
(1961) 9 FLR 21 at 27
battle on the defence's own terms, as it were, the issues might have been more confused--it might well have been that there could not have been an adequate trial by the general court-martial unless the judge-advocate had directed its attention specifically to this problem".
While it may be true that the summing-up is to be read in the light of the prosecution and defence addresses and in the light of the atmosphere of the trial, this argument does not persuade us of the adequacy of the summing up. On the contrary, we think that the features of the case relied on by Mr. Connolly made it more necessary than ever that the judge-advocate should have "directed the (court-martial's) attention specifically to this problem", that is the problem of determining the truthfulness, honesty, impartiality and reliability of Major Bishop as a witness.
Rule of Procedure 42(A) requires the judge-advocate to sum up the evidence in open court. In this case, where the strongest evidence--taken at its face value--against the accused on the first charge came from Major Bishop and Major Bishop's was the only evidence against the accused on the second charge and where, as we think, for the reasons stated above, that there was evidence upon which it was open to the court-martial to find that Major Bishop was actuated by ill-will to the accused or by some other improper motive, we think that it was most important that there should have been an adequate summing-up and that the accused's case should have been fully and fairly put to the court-martial by the judge-advocate.
Without saying that it was not open to the court-martial, properly directed, to find the applicant guilty of the offences charged, we think that the evidence generally, and particularly that of Major Bishop, called for a much more detailed (and perhaps critical) examination than it received at the hands of the judge-advocate.
With the assistance of such an examination of the evidence by the judge-advocate the court-martial may well have thought, for example, that, while it was Major Bishop's duty, as the officer administering command, to report to his absent commanding officer any misconduct on the part of any of his officers, it was no part of his duty to embellish his report with damaging matter of the kind referred to.
The judge-advocate did tell the court-martial "Major Bishop is the foundation on which the prosecution case is built. If that foundation be weak and shifting then the case will crumble and fall and lie in fragments forgotten"; and in effect he repeated this more than once. But he made no attempt to sum up the evidence relating to this vital issue. He made no attempt to examine the solidity of the "foundation" to which he referred. Indeed, he appears advisedly to have refrained from doing so. The following passage would appear to indicate the general nature
(1961) 9 FLR 21 at 28
and extent of his summing up on this aspect of the case, "After giving the matter very careful consideration I have come to the conclusion I have a choice of two alternatives, either to review the whole of the evidence on this issue or to review none of it. You will be pleased I have chosen the latter". Herein lies the fatal defect in the summing-up. In this respect we are clearly of the opinion that the summing-up of the judge-advocate was inadequate. In our opinion, therefore, Major McCann has not had a trial according to law. It follows that there has been a "miscarriage of justice" within the meaning of s. 23(1)(b) of the Courts-Martial Appeals Act 1955.
It therefore becomes necessary to consider the provisions of sub-s. (2) of s. 23, 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 are substantially the same as those of s. 4(1) of the Criminal Appeal Act, 1907 (Eng.).
In Stirland v. Director of Public Prosecutions [1944] A.C. 315 Viscount Simon L.C. said that the provision "assumes a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict" [FN1] . In this case, we find it impossible to say that had the court-martial been properly directed the accused would, without doubt, have been convicted.
It was for these reasons that we ordered that the application for leave to appeal should be allowed, that the appeal should be allowed and the conviction quashed.
A number of other grounds were taken by the appellant in his application for leave to appeal. In the view we have taken of the case it is unnecessary for us to express any concluded opinion upon them. But this intimation should not be taken as any disrespect to the able and helpful arguments addressed to us by both counsel.
Before parting with the case we would, however, refer to two of these other grounds. One relates to the absence from the witness box of Lieutenant Carter, who gave evidence on the taking of the summary of evidence. It seems to us that Lieutenant Carter would have been a most material witness.
During the trial the defence applied to the court-martial to have Lieutenant Carter called for cross-examination pursuant to Rule of Procedure 75, which is as follows: "The prosecutor is not bound to call all the witnesses whose evidence is in the summary or abstract of evidence given to the accused, but he should ordinarily call such of them who were called for the prosecution as the accused desires to be called, in order that the accused may, if he
(1961) 9 FLR 21 at 29
thinks fit, cross-examine them, and the prosecutor should for this reason, so far as seems to the court practicable, secure the attendance of all such witnesses".
This appears to us to be merely a re-statement of the traditional practice which has been followed both in England and Australia for very many years. In his advice to the court-martial on this application the judge-advocate said, inter alia, "This is essentially a matter of tactics. It is a considered manoeuvre by the defence. As Squadron Leader Mosse states his application is in essence a technicality. In effect the defence are asking the court to require the prosecutor to tender Lieutenant Carter so that the defence may cross-examine him. This has the advantage of allowing the defence to put leading questions to the witness which they could not do if they called him, and no doubt they would also be in a position to comment about his evidence, if the occasion arose, in a manner which they could not do if he were called by them". He then read Rule of Procedure 75. In the result the court refused this application.
This question was discussed at some length by Fullagar J. in Ziems v. The Prothonotary of the Supreme Court of N.S.W. (1957) 97 C.L.R. 279. In that case Ziems, who was a barrister of the Supreme Court of New South Wales, had been convicted of manslaughter and sentenced to two years' imprisonment with hard labour. Following upon his conviction the Supreme Court of New South Wales removed his name from the roll of barristers of that State on the ground of his conviction and sentence. His appeal to the High Court was, by a majority, allowed.
Fullagar J., at p. 291, said that he felt bound to examine the circumstances of the case in detail for himself. As a result of such examination he felt concerned at the fact that Sergeant Phillis, who had given evidence at the relevant Coronial Inquiry, was not called by the prosecution to give evidence at the trial. His Honour said this: "There is, of course, no rule of law that a prosecutor for the Crown must call every witness who has been bound over and is available. On the contrary, the discretion of the prosecutor has been recognized in many cases, and was recently asserted in Adel Muhammed El Dabbah v. Attorney-General for Palestine [1944] A.C. 156, at pp. 167-169. Any one or more of a variety of reasons may justify a prosecutor in not calling a witness who has given evidence for the Crown before the coroner or before the magistrates, and I would not wish to say anything that might unduly limit his discretion. The present case, however, seems to me to call for a reminder that the discretion should be exercised with due regard to traditional considerations of fairness. I have no doubt that the correct practice is that which is stated in Archbold's Criminal Pleading, Evidence and Practice, 33rd ed. (1954), pp. 515-516. It is there
(1961) 9 FLR 21 at 30
said: `Although in strictness it is not necessary for the prosecutor to call every witness whose name is on the back of the indictment it has been usual to do so in order that the prisoner may cross-examine them' " [FN2] . His Honour then referred to Halsbury's Laws of England, 3rd ed., vol. 10, par. 764, p. 418, in which the learned author of the article says, inter alia, "Even if it is not proposed to examine a witness whose name is on the back of the indictment, counsel for the prosecution should, unless there are exceptional reasons to the contrary, place him in the witness box so that the defendant may have an opportunity of cross-examining him".
His Honour also deprecated the notion that the Crown prosecutor should join in a battle of tactics with the defence in relation to these matters.
He said: "So far as appears, the only possible object of not calling (Sergeant Phillis) was to place the appellant under the tactical disadvantage which resulted from inability of cross-examining him. Such tactics are permissible in civil cases, but in criminal cases, in view of what is at stake, they may sometimes accord ill with the traditional notion of the functions of a prosecutor for the Crown" [FN3] .
This ground which was raised as a failure by the appellant's counsel to call Lieutenant Carter was abandoned on the application for leave, and consequently was not argued before us. We therefore express no concluded opinion on the matter. However, we feel disposed to say that, as at present advised, we are not altogether satisfied with the court-martial's decision on the point, nor with the advice given thereon to the court-martial by the judge-advocate. We would respectfully adopt the words of Fullagar J. and say that the discretion to which we have referred "should be exercised with due regard to traditional considerations of fairness".
The other ground of appeal we have in mind is that "there was a denial of justice in that the judge-advocate side-marked passages of the evidence said to deal with insubordination and directed the attention of the court-martial to such passages, without the consent of and without revealing the content of such passages to the accused".
In his summing-up the judge-advocate said: "I have carefully gone through the whole of the transcript, which I now leave with you, and I have side-marked each passage of the evidence dealing with insubordination. If your memories and your own notes are not sufficient then you have every right and indeed duty to have recourse to the transcript".
As to this ground we desire only to say that a judge-advocate should not side-line passages in the transcript of proceedings. We consider this to be a most undesirable practice in that, inter alia,
(1961) 9 FLR 21 at 31
it may have the effect of inducing the court-martial to attach undue importance to the passages so side-lined to the exclusion of other evidence which may be equally, or perhaps more, important.
In conclusion we would express our appreciation of the able manner in which each counsel argued his case before us on the hearing of this application and appeal.
Orders accordingly.
Solicitors for the appellant: Thynne & Macartney.
Solicitor for the respondent: H. E. Renfree (Commonwealth Crown Solicitor).
A.J.L.
[FN1] [1944] A.C., at p. 321.
[FN2] (1957) 97 C.L.R., at p. 292.
[FN3] (1957) 97 C.L.R., at p. 294.
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