Re MILLER'S APPEAL

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

SYDNEY, 13th September 1965
12 FLR 77

Defence -- Discipline of members of forces -- Courts-Martial Appeal Tribunal -- Legal aid -- General principles -- Appeal against refusal of aid -- Whether appeal rehearing -- Courts-Martial Appeals Act 1955, s. 17(2) -- Courts-Martial Appeals Regulations, reg. 11(3).

Regulation 11(3) of the Courts-Martial Appeals Regulations provides, "If, upon an application being made to the Tribunal under this regulation, the Tribunal is satisfied--(a) that the appellant has insufficient means to enable him to prosecute his appeal; and (b) that it appears desirable in the interests of justice that legal aid should be granted to the appellant under this regulation, the Tribunal may, by order, approve the granting to the appellant of legal aid under this regulation".

By s. 17(2) of the Courts-Martial Appeals Act 1955, a person affected by a decision of a single member of the Courts-Martial Appeal Tribunal on the granting of legal aid to an appellant may appeal to the Tribunal constituted by several members in accordance with s. 16 of the Act and the Tribunal so constituted shall hear and determine the matter.

Held: (1) That the word "means" in reg. 11(3) includes both income and capital.

(2) That upon the Tribunal's being satisfied of the two conditions referred to in reg. 11(3) the Tribunal will normally approve the grant of legal aid.

(3) That upon appeal under s. 17(2) of the Act against a decision in the exercise of discretion by a single member, the appellate Tribunal is entitled to exercise its own discretion.

COURT-MARTIAL APPEAL.

The appellant appealed under s. 17(2) of the Courts-Martial Appeals Act 1955 against the refusal of a single member of the Courts-Martial Appeal Tribunal to grant the appellant legal aid under reg. 11 of the Courts-Martial Appeals Regulations.

K. E. Enderby, for the appellant.

A. R. Watson, for the Air Board.

Cur adv vult

13 September 1965

The following decision was delivered:

The applicant was convicted by court-martial on 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. He was sentenced to twenty-eight days detention with a recommendation that the sentence be suspended after fourteen days. He applied to the Tribunal for leave to appeal

(1965) 12 FLR 77 at 78

against his conviction and for the grant of legal aid to enable him to prosecute his appeal. Both these applications were heard on 22nd April, 1968, by the Tribunal constituted by B. J. F. Wright, Esq., M.B.E., pursuant to s. 17 of the Courts-Martial Appeals Act 1955. The application for legal aid was refused but the application for leave to appeal was granted. Pursuant to s. 17(2) of the Act the applicant now appeals to the Tribunal constituted in accordance with s. 15 from the refusal to grant legal aid.

Regulation 11 of the regulations made under the Act enables an applicant to apply to the Tribunal for the approval of the Tribunal to the granting of legal aid. Regulation 11(3) is as follows: "(3) If, upon an application being made to the Tribunal under this regulation, the Tribunal is satisfied--(a) that the appellant has insufficient means to enable him to prosecute his appeal; and (b) that it appears desirable in the interests of justice that legal aid should be granted to the appellant under this regulation, the Tribunal may, by order, approve the granting to the appellant of legal aid under this regulation."

The applicant has a total of nine years service with the R.A.A.F. At the time of his conviction he was stationed at R.A.A.F. base, Fairbairn, A.C.T., performing duty in No. 34 Squadron as an engineer fitter. He is a single man with no dependents, and his current rate of pay was at all material times £18 14s. per week net.

Out of this amount he made the following payments:

Repayments on hire-purchase on car
£6. 0. 0

Colonial Mutual (life assurance)
10. 0

Running expenses on car (petrol, oil, registration, etc.)
2. 0. 0

Food
2. 0. 0

University fees and books
2. 10. 0

Travelling expenses (visiting parents)
1. 10. 0

Clothes
2. 0. 0

He had been attending the Australian National University then for the past two years studying for the degree of Bachelor of Economics. He had recently transferred to the Faculty of Law. He said that he required a motor car for transport from the base to the university and elsewhere in Canberra as there was only one bus per day from the base and that left at 6 p.m. There was no other means of public transport of any kind available. He also used his car to visit his parents in Sydney, about every third week-end. He said that his assets were as follows:

Deposit in Commonwealth Savings Bank, Canberra
£15. 0. 0

Credit balance in Commonwealth Trading Bank
10. 0. 0

1962 model Volkswagen motor car
550. 0. 0

Block of land at Milton, N.S.W.
250. 0. 0

The value of the applicant's equity in the car was about £200. The said land was purchased by him with moneys paid to him by way

(1965) 12 FLR 77 at 79

of gratuity by the Defence Forces Retirement Benefits Board on completion of six years engagement. He paid approximately £230 for the land. It was argued on behalf of the applicant that for the purpose of this application the land should not be taken into account in that (a) there was no evidence that it was readily realizable, and (b) if it were sold and the proceeds used to finance the appeal it could not be replaced. He said that he was twenty-four years of age and did not drink intoxicating liquor, nor did he smoke. For some years past he had devoted most of his off-duty hours and income to education. He obtained his Leaving Certificate at night school.

These facts appear to have been accepted without question by Mr. Wright but as already stated he rejected the application for legal aid. In the reasons for his decision Mr. Wright expressed the view that the word "means" used in reg. 11(3) includes both income and capital. We agree with this view. In addition to his pay the applicant was provided with his board and lodging and free medical and dental care. After setting out these facts Mr. Wright proceeded as follows: "I note the payments that he makes out of his income which all appear to be for a desirable purpose, but I am not satisfied that those amounts are amounts which I must disregard for the purpose of coming to a conclusion as to whether or not he is a person who has insufficient means to enable him to prosecute his appeal. On the evidence before me I must hold that I am not so satisfied, and the result is that the application for legal aid must be refused."

Section 17(2) of the Act provides that a person affected by a decision of a single member of the Tribunal given with respect to, inter alia, the granting of legal aid to an appellant may appeal to the Tribunal constituted in accordance with s. 15 of the Act from that decision "and the Tribunal so constituted shall hear and determine the matter".

Mr. Watson for the Air Board argued, inter alia, that there should not be read into the Act an implication that the appeal is by way of rehearing, and consequently that the Tribunal is now reviewing the exercise of a discretion by a single member and should interfere with that discretion only if it was exercised on wrong principles. He submitted that there is no requirement that legal aid be granted in any case at all, and that if an applicant fulfils the two conditions set out in reg. 11(3) the Tribunal may approve the grant of legal aid in the exercise of its discretion.

We find ourselves unable to accept these submissions. The appeal given by the statute is not in terms limited in any way; and we think that if an applicant fulfils the two conditions referred to in reg. 11(3) the Tribunal would normally approve the grant of legal aid.

(1965) 12 FLR 77 at 80

In interpreting the words "and the Tribunal so constituted shall hear and determine the matter" in s. 17, we adopt the language of Lord Wright in Evans v. Bartlam [1937] A.C. 473 and in Charles Osenton & Co. v. Johnston [1942] A.C. 130. In the former case, at p. 486, Lord Wright said: "It is clear that the Court of Appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong. But the Court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must if necessary examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order."

And in the latter case, the same distinguished Law Lord said: "I think Singleton J., who agreed with Slesser L.J. in deciding that the appeal should be dismissed, would have come to a different conclusion but for the special reasons which he stated. He said expressly that he would not himself have made the order which was made by Tucker J., and that he thought it was, on the whole, undesirable to leave the appellants without any appeal on facts in a case involving many complications, even though it might appear that the case could be more conveniently tried before an official referee. His reasons for not acting upon this view seem to be that it was not a matter for the exercise of his discretion, but for the discretion of the judge. I think that that reason is not sound in law. I have already explained that, in my opinion, when the statute gives a right of appeal from an order made by a judge in exercise of his discretion and an appeal is taken, the discretion of the appellate court is substituted for that of the judge. ... The responsibility of deciding is then placed on the appellate court. No doubt that court starts with the presumption that the judge has rightly exercised his discretion" [FN1] .

We are satisfied on the evidence that at the time of his application the applicant had insufficient means to enable him to prosecute his appeal and it appears to us desirable in the interests of justice that legal aid should be granted to the applicant.

We therefore allow the appeal.

Orders accordingly.

Solicitors for the appellant: Gallen, Kelly & Dainer.

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

A.J.L.

[FN1] [1942] A.C. 130, at pp. 147-148.

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