Re MILLER'S APPEAL

Courts-Martial Appeal Tribunal: Macfarlan J., President, Davoren Q.C. and Wright, Members

SYDNEY, 24th June; 15th August 1965
9 FLR 114

Defence -- Discipline of members of forces -- Court-martial -- Summing-up by judge-advocate -- Necessity for explanation of application of legal principles to facts of case -- Prosecution's onus of proving intention -- Directions to be given -- Necessity for summing-up defence on character.

An aircraftsman of the Royal Australian Air Force refused to obey a command by his superior officer to assist in the removal of certain necessary receptacles from an American aircraft. The aircraftsman was tried by court-martial upon a charge of disobeying, in such manner as to show a wilful defiance of authority, a lawful command given personally by his superior officer in the execution of his office. In explanation of his disobedience the accused alleged that he believed the order disobeyed was given as an unjustified punishment. The judge-advocate, in directing the court-martial upon the prosecution's burden of proving its charge beyond reasonable doubt, did not explain that the prosecution had so to prove, on the whole of the evidence including the explanation of the accused, that the accused intended wilfully to defy authority, and did not sum up the case made by the accused on his good character. The accused was convicted.

Held, that by reason of the failure to give such directions, a substantial miscarriage of justice had occurred.

The necessity for a judge-advocate to explain to a court-martial the application of the legal principles applicable to the facts of a case, referred to.

Re McCann's Appeal (1961), 9 F.L.R. 21, referred to.

COURT-MARTIAL APPEAL.

The appellant appealed to the Courts-Martial Appeal Tribunal under the Courts-Martial Appeals Act 1965 against his conviction by court-martial of an offence against the Air Force Act (Imp.), applicable to members of the Royal Australian Air Force by s. 5 of the Air Force Act 1923-1956. The material facts appear from the decision.

K. E. Enderby, for the appellant.

A. Watson, for the respondent.

Cur adv vult

15th August 1965

The following decision was given:

This is an appeal from an order of a court-martial which convicted the appellant. At the time of his conviction the appellant was a leading aircraftman posted to No. 34 Squadron at Fairbairn and the offence with which he was charged was disobeying, in such manner as to show a wilful defiance of authority, a lawful command

(1965) 9 FLR 114 at 115

given personally by his superior officer in the execution of his office.

The particulars of the charge were expressed in the following words: "In that he at R.A.A.F. Fairbairn on 24th November, 1964, while a member of the duty crew when personally ordered by A2951 Sgt. Hughes O.J.G., the non-commissioned officer in charge of the duty crew, to assist in the removal of toilet cans from a United States Air Force aircraft, said, `I refuse to handle shit cans', and did not do so."

The appellant was a member of the duty crew at Fairbairn on 24th November, 1964. Their duties included servicing visiting aircraft. The crew comprised some four or five airmen under the command of Sergeant Hughes O.J.G., and during the course of the evening it became necessary to service a visiting Constellation aircraft which was carrying members of the Congress of the United States and their wives. The crew of this aircraft included stewards. Certain toilet and garbage cans belonging to the aircraft had to be emptied. It appears that the normal procedure is for the stewards of a visiting aircraft to perform this duty but that the R.A.A.F. duty crew gives assistance when required, such as providing transport and guiding the stewards to the disposal points.

Sergeant Hughes gave evidence that he ordered the appellant to assist in the movement of the cans and that the appellant refused to do so. The appellant, on the other hand, gave evidence that he had not been ordered to assist in removing the cans but had been ordered to empty them, and that this order was contrary to the usual custom with respect to the service given to visiting aircraft. He also contended that the order had been given by Sergeant Hughes as a punishment for what the sergeant wrongly believed were acts of insolence on the part of the appellant.

The prosecution evidence of the principal events was given only by Sergeant Hughes and the evidence in the case for the defence came from the appellant and other members of the duty crew. At some points there were marked conflicts between the evidence given for the prosecution and that given for the defence, although at other times it could be said that the evidence proceeded along similar lines. But it is quite clear that the order, in whatever form it was expressed, was not obeyed, although there was a difference of opinion as to the events leading up to and surrounding the disobedience.

The learned judge-advocate summed up with care the principles of law with respect to the onus of proof and also the definition of the offence with which the appellant was charged. At the conclusion of the summing-up the defending officer submitted that four further directions should be given, and the learned judge-advocate gave them in terms which were not criticized by counsel upon the hearing of this appeal.

(1965) 9 FLR 114 at 116

On the hearing of the appeal the argument submitted for the appellant covered a wide field, but with much of it we do not find it necessary to deal. However, we do not wish it to be thought that by reason of this decision our opinion of the law requires any weakening of the strict obligation to obey orders that has long prevailed in the services. All such obligations in this respect remain of full force and effect, according to the custom and law applicable to each particular service. It is important that it should be understood that this appeal has been allowed because of certain errors that occurred in the proceedings of the court-martial and not otherwise.

As we have said, there were four matters upon which the defending officer sought further directions from the learned judge-advocate, and the judge-advocate accepted those submissions. The prosecutor did not ask for any further directions. Our decision, however, turns upon the failure of the judge-advocate to advise the court-martial upon two matters. We do not doubt, though, that if the attention of the learned judge-advocate had been drawn to these matters at the conclusion of his summing-up he would have advised the court-martial upon them, because both matters have been dealt with in earlier decisions of the tribunal. However, his attention was not drawn to them and although the ultimate responsibility for a correct and adequate summing-up must always rest upon the judge-advocate, he is, in his turn, entitled to the assistance of both the prosecutor and the defending officer particularly if they hold legal qualifications in bringing a difficult trial to a just conclusion.

We will refer to each of these points in turn. One of the elements in the offence is expressed in the phrase, "in such manner as to show a wilful defiance of authority". Unless the court-martial was satisfied beyond a reasonable doubt of the proof of this element there would need to be a verdict of not guilty. We are of the opinion that the learned judge-advocate correctly advised the court-martial of this. It was not argued either before the court-martial or before us that any alternative verdict was available or that the conviction should be for any other or lesser offence if the court-martial found that this element had not been proved.

The learned judge-advocate gave a description of the legal nature of this element in words which were not criticized by counsel on the hearing of the appeal, but in our opinion he did not apply this definition in a satisfactory manner to the facts of the case. In particular we think he failed to make plain its relation to the facts upon which the defence relied. In our opinion he was so obliged to do this and for reasons which were similar to those which we explained in Re McCann's Appeal (1961) 9 F.L.R. 21.

(1965) 9 FLR 114 at 117

Furthermore, in R. v. Steane [1947] 1 K.B. 997, Lord Goddard C.J. said: "The important thing to notice in this respect is that where an intent is charged in the indictment, the burden of proving that intent remains throughout on the prosecution. No doubt, if the prosecution proved an act the natural consequence of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged, but if on the totality of the evidence there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury's satisfaction, and if, on a view of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted" [FN1] .

Then, at p. 1007, the learned Lord Chief Justice said: "The defence must be fully put to the jury and we think they ought to have been reminded of various matters upon which the accused relied as negativing the intent".

In Smyth v. The Queen (1957) 98 C.L.R. 163, at pp. 166, 167 the High Court expressed a general approval of the decision in Steane's case.

In our opinion the judge-advocate should have advised the court-martial of the importance of considering on the whole of the evidence, whether the prosecution had satisfied it beyond reasonable doubt, that is to say to the exclusion of any reasonable doubt, that the manner in which the order was disobeyed showed a wilful defiance of authority. It should have been explained to the court-martial that if on the whole of the evidence there was room for a view that such was not the intention of the accused, the accused was entitled to the benefit of the doubt, and that there should therefore be an acquittal. In explanation of this we are of the opinion that the judge-advocate should have reminded the court-martial of that part of the appellant's evidence where he was asked, "When he told you that, did you believe that he was giving you a command?" and to which he answered, "I thought he was giving me a punishment" and the court-martial should have been reminded of the circumstances of the events which occurred in or in the vicinity of hangar No. 47.

The prosecution's case appeared to be plain and may indeed, at some points, be supported even by the evidence of the appellant. However, at other points the appellant's evidence and that of the witnesses called for the defence, is in sharp contrast with that given for the prosecution, and would undoubtedly either justify a view that the attitude of the appellant in disobeying the order was resistance to an illegal punishment and not wilful defiance of authority, or would create such doubt that the court-martial would

(1965) 9 FLR 114 at 118

not have been satisfied beyond reasonable doubt as to the guilty state of the accused's mind. We do not by any means mean to suggest that if properly directed on this point the court-martial might not have found to its complete satisfaction that the offence was proved, but the point of our decision is that these matters which the law required to be explained to the court-martial were not in our opinion fully or sufficiently explained by the learned judge-advocate.

No doubt the judge-advocate in summing-up must be influenced by the course and atmosphere of the trial. But in our opinion, as we have explained in McCann's case (1961) 9 F.L.R. 21, these circumstances do not always relieve the judge-advocate of his duty to explain the application of the principles of law to the evidence and particularly to the facts upon which the defence relies. This is so particularly where a state of mind is involved. We are of the opinion that this was a case where he should have done so and that his failure to do so was a non-direction which constitutes a miscarriage of justice.

The second point upon which in our opinion the learned judge-advocate failed to advise the court-martial was with respect to the good character of the appellant. There cannot be any doubt that this was an oversight on the part of the learned judge-advocate, and we are confident that if his attention had been drawn to the oversight he would have given the necessary directions. But the point was not drawn to his attention and in a case such as this, where character is important, there can only be one consequence if an adequate direction has not been given. In Re Cox's Appeal (1959) 8 F.L.R. 364 we dealt with the importance of evidence of good character and explained that when evidence of good character is given it must be considered with all the other evidence on the question of the guilt or innocence of the accused. Obviously the weight to be given to evidence of good character must depend upon the respects in which it is proved that the character is good, and on the nature of the offence with which the accused is charged.

In this case evidence was directly led to show the good character of the appellant. Squadron Leader Neville was asked how he had found the appellant as an airman, and he answered, "I have found him an excellent airman". Sergeant Herring was also questioned with regard to the appellant, and he stated, "I would say he is the best engine fitter I have had work for me in the squadron". He was then asked whether the appellant had ever been insubordinate to him and he answered, "Never". Sergeant Hughes also was asked how he found the accused as a tradesman and he answered, "Well, as a tradesman and as an airman on the duty crew, quite satisfactory. A reliable airman, I have had no complaints with him whatsoever".

(1965) 9 FLR 114 at 119

The material part of the charge that we are considering is that part which alleges disobedience "in such manner as to show a wilful defiance of authority". In our opinion this evidence of good character was most material for the court-martial to consider in determining and deciding whether there has been a wilful defiance. This evidence should, in our opinion, have been recalled to the attention of the court-martial, and the court-martial advised that in this case it was of the utmost significance in determining whether a disobedience to the order constituted a wilful defiance. The failure to do so in our opinion was also a non-direction which constituted a miscarriage of justice.

It was submitted by counsel appearing on behalf of the Air Board that if in the opinion of the tribunal there had occurred a miscarriage of justice it was a proper case to hold that there had not been any substantial miscarriage of justice. We have referred to the circumstances in which we should make such a finding in several cases, and most recently in McCann's case (1961) 9 F.L.R. 21. The submission was not argued at length and we consider it sufficient to express our opinion in almost as few words as were used to state the argument. We say that in our opinion there was a substantial miscarriage of justice.

These, therefore, are the reasons why, at the conclusion of the argument, we ordered that the appeal should be allowed and the conviction quashed.

Orders accordingly.

Solicitors for the appellant: Gallen, Kelly & Danier.

Solicitor for the respondent: H. E. Renfree (Commonwealth Crown Solicitor).

A.J.L.

[FN1] [1947] 1 K.B., at p. 1004.

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