(1968) 13 FLR 268[lb.013.FLR.00268]
[COURTS-MARTIAL APPEAL TRIBUNAL]
Re NEWMAN'S APPEAL
Courts-Martial Appeal Tribunal: Coldham Q.C., Deputy President, Davoren Q.C. and Wright, Members
BRISBANE, 20th, 21st, 22nd August; MELBOURNE, 27th September 1968
13 FLR 268
Defence -- Discipline of members of forces -- Courts-martial appeals -- Practice -- Whether Courts-Martial Appeal Tribunal may entertain grounds not specified in application for leave to appeal -- Appeal against conviction -- Evidence circumstantial -- Motive and threat as evidence of guilt -- Reasonableness of verdict -- Undesirability of inquisition by members of court-martial -- Courts-Martial Appeals Act 1955-1966, ss. 21(1)(a), 23.
By s. 21(1) of the Courts-Martial Appeals Act 1955-1966, an application for leave to appeal to the Courts-Martial Appeal Tribunal under the Act shall specify the grounds on which leave to appeal is sought.
Section 23(1) of the Act provides: "Where, upon the hearing of an appeal against a conviction by a court-martial, the Tribunal considers--(a) that the finding of the court-martial--(i) is unreasonable, or cannot be supported, having regard to the evidence; or (ii) involves a wrong decision of a question of law; or (b) that, on any ground, there was a miscarriage of justice, the Tribunal shall, subject to this Division, allow the appeal."
Held, that upon the hearing of an appeal against a conviction by court martial, the Courts-Martial Appeal Tribunal may deal with a ground of
(1968) 13 FLR 268 at 269
appeal not specified in the application for leave to appeal. The paramount consideration in any appeal is whether the appellant has had that to which he is entitled, that is, justice according to law.
On appeal to the Courts-Martial Appeal Tribunal from a decision of a court-martial by which a gunner was found guilty of manslaughter of an officer by throwing a grenade into the officer's sleeping quarters at night upon circumstantial evidence substantially that earlier that day, after a dispute between the gunner and the officer, the gunner had expressed his intention to another gunner to throw a grenade into the officer's sleeping quarters,
Held, by Davoren Q.C. and Wright, Members (Coldham Q.C., Deputy President, dissenting), that the evidence of motive and expressed intention was insufficient to establish the gunner's guilt.
The undesirability of participation by members of the court-martial in questioning the witnesses, referred to.
COURTS-MARTIAL APPEAL.
The appellant appealed against his conviction by court-martial. The material facts appear from the reasons of the tribunal.
F. G. Brennan Q.C. and A. G. Demack, for the appellant.
J. L. Kelly Q.C. and B. E. Egan, for the respondent.
Cur adv vult
27 September 1968
The following reasons were given:
COLDHAM Q.C., DEPUTY PRESIDENT. This is an appeal by leave from the conviction for manslaughter of the appellant by general court-martial sitting in Vietnam on 24th January, 1968. The appellant was a gunner with No. 4 Field Regiment and was charged with the murder on 10th December, 1967, of Lieutenant Birse who was also a member of that regiment. At the close of the prosecution case after legal argument and a concession by prosecution counsel, the judge advocate directed the court-martial to acquit the appellant of murder. The question for substantial determination was whether the appellant was guilty of the manslaughter of Lieutenant Birse.
Upon the hearing of this appeal, which was fully and most ably argued by counsel for both parties, it was firstly contended on behalf of the appellant that the conviction was unreasonable or could not be supported by the evidence. The case against the appellant was based upon circumstantial evidence; no one saw the appellant commit the act which led to the death of Birse, no evidence of a confessional nature was adduced. In finding as it did the court-martial, which was adequately directed upon the method of analysing this evidence in a criminal trial, found that the only rational conclusion was that the appellant committed the act, namely the throwing of a hand grenade, which led to the death of Birse and that upon that evidence no rational hypothesis could be drawn
(1968) 13 FLR 268 at 270
that he did not and that his act in throwing the grenade amounted to manslaughter. It is not the proper function of this tribunal to sit again as a jury upon the printed evidence which is now the mere repository of the human beings who were to be observed and judged by the tribunal of fact before which they appeared. The vital question to be decided upon this first submission is whether the conclusion that the appellant threw the grenade which caused the death of Birse was open to the court-martial as the only rational hypothesis upon the evidence: Plomp v. The Queen (1963) 110 C.L.R. 234, at p. 247. At the same time the existence of a right of appeal upon the ground that the conviction cannot be supported by the evidence, or is unreasonable, should not be restrained so as to impliedly deny its existence: Raspor v. The Queen (1958) 99 C.L.R. 346.
In order to test the reasonableness of the finding and decide whether it can be supported requires a thorough review of the evidence. On 6th December, 1967, 106 Battery of 4 Field Regiment, then in Vietnam, established itself at a prepared position known as Fire Support Base Bravo where it remained for ten days. This base was in an operational area some 18,000 metres north-west of Nui Dat. Some troops of the 7th Battalion Royal Australian Regiment accompanied 106 Battery to this position and were stationed within its perimeter. On the eastern side of the base was a roadway known as Route 15 which ran north and south. To the north of the base South Vietnamese troops were stationed and to its west were other units of the Australian forces. The base was circular and about three hundred to four hundred feet in diameter. It was surrounded by coiled barbed wire which was laid a considerable time prior to the arrival of 106 Battery and which was by no means impregnable to persons wishing to enter or leave the base from points other than those intended for the purpose. Within this perimeter were six guns of the battery, three of which were trained to the east and three to the west. The sleeping bay occupied by Birse was in the approximate centre of the base. Seventy-five feet to a hundred feet or thereabouts from this bay was No. 2 gun in an approximately south-westerly direction, No. 4 gun approximately north-west, No. 3 gun approximately north-east and No. 1 gun approximately south-east. These gun sites were surrounded by a bund of earth about three feet high which had been thrown up by bulldozers. The gun crews were quartered within the gun sites in sleeping pits dug to a depth of about two feet six inches and covered with a layer of sandbags, leaving an opening for ingress and egress at one end of the pit. However, the pit occupied by Birse did not have this sandbag cover but was surrounded by sandbags. Over each sleeping pit was a tent, the sides of which ended
(1968) 13 FLR 268 at 271
approximately three feet above ground level. Adjacent to each gun site were two ammunition tents each about fourteen feet square. The ammunition tents of No. 4 gun site were immediately to the west of that site. The members of No. 4 gun site were Sergeant Robinson, the appellant, Bombardier Humphries, Lance Bombardier Clyne and Gunners Rolley and O'Neil.
On 10th December, 1967, there were some stalls, known as "hootchies", between Route 15 and the eastern perimeter of the base. These stalls were established by local Vietnamese and, with the exception of one, which was a barber's shop, served food and refreshment to members of the forces including those of 106 Battery. The evidence disclosed that the appellant and several other members of the Australian forces, including some of 106 Battery, were at one of these stalls during the day drinking local beer. After failing to comply with an order from Sergeant McCann of No. 3 gun site to return within the base, the appellant was later rebuked by that sergeant and ordered away from the stall immediately. Apparently the battery had not been supplied with beer within the base and Sergeant McCann suggested to the appellant that this was the fault of persons like the appellant who frequented the stalls for that refreshment. Late in the afternoon and very shortly after the rebuke, the appellant complained to Sergeant Robinson at No. 4 gun site and was reassured that the absence of a beer supply within the base was not due to his actions but to other causes. The appellant then returned to Sergeant McCann and repeated Sergeant Robinson's reassurance. In the course of this conversation between the appellant and McCann, Lieutenant Birse arrived and told the appellant: "It is dickheads like you who fuck it up. If you step out of line any more I'll charge you and I'll keep on charging you"; to which the appellant replied in a heated manner: "I'll have you up for victimization, Sir." The appellant then returned to No. 4 gun site where Sergeant Robinson described him as "pretty angry and a bit stirred up". After his return from the meeting with Birse and before the evening meal, which was obtained at the mess hut and eaten by the men in their pits, there was evidence that the appellant was still upset and angry over the remarks of Lieutenant Birse. Bombardier Humphries stated that the appellant related to him the substance of what Birse had said and that he added: "I'll get that cunt anyway." This remark was denied by the appellant. After recounting the argument to Bombardier Humphries the appellant told him that he was going to "stir" the "B.K." (the battery captain) about his rest and convalescent leave. To Gunner Rolley he said that he was going to take Birse to the battery captain to see whether an officer could tell a gunner what Birse had told the appellant. It later transpired that several of the guns had to fire a mission early
(1968) 13 FLR 268 at 272
that evening and Birse was engaged on this; so the appellant, as he told Rolley, would have to delay taking Birse to the battery captain.
Then came a conversation with Lance Bombardier Fleming. This conversation occurred at the mess hut at 5 p.m. according to Fleming, but it could have been a little later. Fleming's evidence was that he and the appellant had just got their evening meal when the appellant came up to him at the "condiments table" and said: "I'm going to throw a grenade into Birse's tent. He'll be in his pit. It won't hurt him, but it will blow his tent and his gear to the shithouse." Fleming could not remember making any answer to this remark. The appellant denied this version of the conversation but, significantly perhaps, he did not deny that any such conversation took place. It was his evidence that he said to Fleming, "A bloke ought to throw a grenade at that bastard", meaning Birse, to which Fleming replied: "Yes, but you would be mad to do it." It was the appellant's evidence that this was an idle threat on his part. Several witnesses gave evidence about later remarks made by the appellant concerning Birse. At between 6.30 p.m. and 7 p.m., according to Gunner Rolley, the appellant said: "Birse is out to get me, this thing could cost me money. I'll have him up for victimization, I'll fix him." Gunner Nicola deposed to a statement made by the appellant that he was "going to take Mr. Birse to the B.K. to charge him" the first chance he got. Gunner Tickner gave evidence of a similar remark from the appellant. Fleming also gave evidence that after the mess hut conversation the appellant called Fleming out of No. 2 gun site and said: "It's on." However Fleming admitted that other words could have been said at this time and he did not deny the appellant's version of this conversation to the following effect: "Did he say anything about charging me to you", to which Fleming replied, "Yes, he has been telling the whole gun he is going to charge you", and the appellant's remark: "It's on, I'm taking him up to the B.K. in the morning."
At 8 p.m. on that night a grenade, which was identified from fragments as an M26 type, exploded in Birse's sleeping quarters and Birse, who was found outside his sleeping pit, sustained injuries from the effects of which he died. The following day the striker lever of an M26 grenade was found in a position forty-one feet slightly north of west from Birse's sleeping quarters. An ordinance officer estimated that the grenade was thrown from an area west of Birse's sleeping pit at a distance up to eighty-six feet. This area at its nearest point was twenty-five to thirty feet south of the sleeping pit occupied by the appellant.
In support of his submission that the verdict was unreasonable and could not be supported by the evidence, Mr. Kelly put forward
(1968) 13 FLR 268 at 273
four propositions which taken separately or cumulatively, he submitted, excluded the inference that the appellant threw the grenade as the only inference reasonably open upon the evidence. It was his first proposition that persons who were in a position to see the appellant leave his tent, had he done so, stated that they saw no movement by anyone, shortly prior to or after the explosion, in the vicinity of the place where the grenade was probably thrown. Sergeant Robinson, Bombardier Humphries and Gunner Rolley were the witnesses upon whom Mr. Kelly relied in support of this first proposition. These witnesses were all in their tents shortly prior to and at the time of the explosion. They were also in that position after the explosion had occurred. Bombardier Humphries, whose tent was immediately adjacent to that of the appellant, stated that after stand-to all members of No. 4 gun crew went to their pits and that between that time and the occurrence of the explosion he saw no members of that crew moving around outside their pits, and that if someone had walked close by him on one side outside the area of his tent he would have been able to see that person. However, he said that he could have seen a person passing between his tent and the nearer of the two ammunition tents only by turning around. Sergeant Robinson's sleeping pit was located in No. 2 ammunition tent about twelve feet west of the appellant. He said he was "star gazing, looking at nothing in particular" shortly prior to the explosion. He was sitting in his pit and his line of vision, which he drew on a plan, was to the east and slightly north of the appellant's sleeping pit. He saw no one moving inside the gun position prior to the explosion. After the explosion had occurred no witness was able to say that he saw the appellant return to his tent but there was evidence that shortly thereafter the appellant moved out of his tent, although no one observed him coming from his sleeping pit. Bombardier Humphries said that he was very much on the alert after the explosion and that the appellant came out of the entrance of his tent and asked Humphries whether he had seen the appellant's cigarette lighter. He conceded that that observation could have been some minutes after the explosion occurred. Sergeant Robinson stated that after the explosion he saw the appellant walk across to Gunner Rolley, and when asked how long afterwards he answered: "More or less--may have been a minute or half a minute or something. More or less straight after the explosion." This witness did not see the appellant leave his sleeping pit at any time. He also said that he heard the appellant say at this time: "It just goes to show, you never know when your time is up, does it?" or words to that effect. Gunner Rolley stated that after the explosion the appellant came over to Gunner Rolley's pit and asked "What was that?" and that immediately afterwards he was ordered back to his pit by Sergeant Robinson. When asked how soon after the explosion
(1968) 13 FLR 268 at 274
it was when the appellant came over to him he replied: "I couldn't put a time to it ... it was shortly afterwards or pretty close to it."
In my view it was open to the tribunal of fact to conclude that this evidence was not inconsistent with the appellant having left his tent to throw the grenade. The evidence comes to this, that the appellant was not seen by these witnesses to leave his tent, but the tribunal of fact were not bound to conclude that, because he was not observed to move out, it followed as a reasonable inference that he did not do so. It was not unreasonable to infer that these witnesses, who were not on duty, were not concerned with the movements of the appellant and that he eluded their concentration and observation. With regard to the situation after the explosion had occurred one witness said that during that time "chaos reigned supreme". It was open to the tribunal of fact to draw the inference that persons in the position of these witnesses would not be making any clear or accurate observations at all during the time when the appellant was returning to the location of his tent after having thrown the grenade. Indeed it was open to draw the inference that the appellant's statement that every one has got to "get it" some time and his apparent unconcern at the explosion when he made an inquiry about his cigarette lighter were factors which strengthened the hypothesis of guilt.
Perhaps I should digress at this stage to say that, in my opinion, the judge advocate did not deal with these matters inadequately in his summing up to the court-martial. As to the layout of the base, the court-martial had a series of plans, some already prepared and others drawn by witnesses during the course of their evidence. The position of all relevant sleeping pits and of the witnesses at the time of the explosion were also marked on these plans, even the arc of vision of Sergeant Robinson. As to the evidence of the appellant's neighbours that they saw no movement by the appellant from his sleeping pit shortly prior to the explosion, the judge advocate was brief in his reference. However, had he been more expansive he would not have been wrong in making many of the comments which I have already made upon this topic had he desired to do so. In my opinion his summing up did not, in relation to this section of the evidence, amount to a misdirection.
It was Mr. Kelly's second proposition that there was no evidence from which it could be concluded that the appellant had an opportunity of acquiring an M26 grenade. In May 1967 six M26 grenades had been issued to each of the six gun crews of 106 Battery and on the morning following Birse's death only eleven were accounted for, only two being handed in from No. 4 gun. On 10th December, 1967, the grenades issued to No. 4 gun were kept in a fuse box in No. 1 ammunition tent close to Sergeant Robinson's sleeping pit
(1968) 13 FLR 268 at 275
and it could be inferred that the appellant would have been observed if he had attempted to steal a grenade during that evening. But this inference was not exclusive. The appellant could have been one of the persons who had apparently acquired grenades and that acquisition could have been prior to 10th December, 1967. In answer to a question whether members of his gun site had free access to the ammunition tent in which the fuse box was located, Sergeant Robinson replied: "Anybody had access to it, Sir." Sergeant McCann also said that grenades were "readily available" in the battery. Whilst there was no evidence to inculpate the appellant by identifying him as a person seen to steal an M26 grenade, there was nevertheless evidence of the existence of an opportunity for him to steal such a grenade.
It was Mr. Kelly's third proposition that the grenade could have been thrown or discharged by some member of the enemy forces. However, no such attack had occurred or did occur during the time 106 Battery was based at this place. There was evidence that the night was quiet and no enemy activity was observed within the base, although a substantial lookout was being kept by men then on duty. Moreover, it could be inferred that an enemy intruder would hardly have singled out Birse's tent in the approximate centre of the base area when other far more attractive military objectives were available. Any hypothesis that the grenade had been projected from a launcher could be said to have been unlikely because, having regard to the position of the safety lever approximately forty-one feet from Birse's tent, it would have been necessary for the grenade to hit the ground somewhere in the region of the place where that lever was found and then roll approximately forty-one feet into Birse's tent before it exploded. Having regard to these factors it was in my view open to the court-martial to reject as unreasonable any hypothesis that the grenade was thrown by reason of enemy intrusion.
Mr. Kelly's fourth proposition was that some other member of the Australian forces could have thrown the grenade and that such a hypothesis was so compellingly reasonable as to preclude the court-martial from disregarding it. There was evidence from the commanding officer of the 4th Field Regiment that Birse lacked the qualities necessary for the management of men and was fairly slack. A fellow lieutenant called by the accused gave evidence that Lieutenant Birse was harder upon the men than normal and was disliked by them. However, this evidence, although it tends to show that Lieutenant Birse was unpopular, does not necessarily lead to the conclusion that there was a widespread animus amongst those persons of such a nature as would lead one of them to make an attack upon Lieutenant Birse by throwing a hand grenade into his tent. It was perfectly open to the court-martial, in my opinion, to consider that any such hypothesis was unreasonable.
(1968) 13 FLR 268 at 276
In determining whether a conviction was open upon the evidence it appears that there was no resort necessary to evidence which was far-fetched or which came into direct conflict with evidence equally acceptable. "The question involved largely depends upon the degree to which coincidence of events and circumstances warrants a belief in their causal connexion. An examination of hypotheses logically consistent with proved facts is the received method of testing their sufficiency to establish the conclusion. In the end, however, the reasonableness or the probability of the occurrence of such hypotheses determines their admissibility, and when coincidence of fact and concurrence of time are relied upon, the sufficiency of the circumstances must inevitably be judged by considering whether general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved": per Knox C.J. and Dixon J. in Morgan v. Babcock & Wilcox Ltd. (1929) 43 C.L.R. 163, at p. 173. In the present case there was strong evidence that Birse had angered the appellant by his threat to charge him whenever he stepped out of line. Witnesses deposed to the agitation of the appellant following this incident and to an expressed desire on his part for retaliation in some shape or form. Fleming gave evidence of a statement expressing a clear intention in the appellant to throw a grenade into Birse's tent. This evidence was only modified by the appellant in his own evidence. Shortly afterwards the precise thing occurred which the appellant told Fleming would occur by his own hand. The court-martial were entitled to accept Fleming's version of this conversation and reject as unreasonable the hypothesis put forward to exculpate the appellant. The proved fact, namely the explosion of an M26 grenade in Birse's tent, was so closely associated in time with the appellant's statement to Fleming, preceded by the argument with Birse, as to leave it open, in my opinion, to the court-martial's conclusion that human experience would be contradicted if it were to be inferred that some person other than the appellant had thrown that grenade.
I therefore consider that Mr. Kelly's first submission fails, together with a further submission that the judge advocate should have directed the court-martial to acquit the appellant of manslaughter at the close of the prosecution evidence by reason of the insufficiency of evidence that the appellant had thrown the grenade.
In the course of his summing up the judge advocate, of course, directed the court-martial on the law relating to manslaughter and the application of the law to the fact, if it were so decided, that the appellant threw an M26 grenade into Birse's tent believing him to be there at the time. The judge advocate did not direct the court-martial upon the basis that the throwing of the grenade might be regarded as an act done with intent to hurt but not with the intent
(1968) 13 FLR 268 at 277
to do grievous bodily harm: see Mamote-Kulang v. The Queen (1964) 111 C.L.R. 62, at p. 79. Instead he directed upon the basis of the act being unlawful and dangerous, and upon the further basis of criminal negligence. It is probable that he limited his direction to this twofold basis because the whole case upon this issue was confined to an acceptance by the court-martial of Fleming's version of the conversation at the mess hut. This version involved an intention on the part of the appellant to throw a grenade at Birse's tent in the belief that he would be in his pit and that it would not hurt him but would "blow his tent and his gear to the shithouse". I should mention three matters at this point: the ordnance officer deposed that an M26 grenade was designed to inflict a fifty per cent casualty rate within a radius of fifteen yards from the blast, and the appellant knew that a man by the name of Patterson sustained his minor injury from such a grenade not when it was thrown at him or near him but when it exploded amongst debris which was being burned. The third matter which I should mention is that the appellant probably believed, contrary to the fact, that Birse's sleeping pit was covered by sandbags, but that he could not have been assured in his mind that Birse would be in his pit at the time the grenade was thrown.
The judge advocate appears to have told the court-martial correctly what the law of manslaughter was upon the twofold basis to which I have referred. However he later added these words: "I now turn to the evidence because unless you are satisfied beyond reasonable doubt that the only inference which you can rationally draw from that evidence is that the accused threw this grenade, you must acquit. If any other reasonable explanation or hypothesis is open you must acquit. But if you are so satisfied in accordance with this high standard then it would be your duty to convict."
It was urged by Mr. Kelly on behalf of the appellant that this was not a comment but a direction on the part of the judge advocate that if there were satisfaction beyond reasonable doubt that it was the accused who threw the grenade at Birse's tent then, as a matter of law, he was guilty of manslaughter. It is true that the court-martial were directed that the facts were entirely their province and that comments by the judge advocate were not binding upon them, but this statement was made in the context that he was about to turn to the evidence and, by implication, that he had one more thing to say about the law. If it was intended to be a comment then great care should have been taken to make it clear that it was so intended: see R. v. Kerr (No. 2) [1951] V.L.R. 239, at p. 247 and per Jordan C.J. in R. v. Petrie (1947) 47 S.R. (N.S.W.) 20, at p. 25; 63 W.N. 258, at p. 261. I consider it at least possible that the court-martial understood the final sentence in this passage to be a direction
(1968) 13 FLR 268 at 278
of law. The questions therefore arise, whether it was justified as such a direction and if not whether the conviction should be quashed.
In considering these questions I shall deal firstly with the throwing of the grenade as an unlawful and dangerous act.
It is clear that to constitute manslaughter the act leading to death must not only be unlawful but dangerous. " ... whatever may have been the position in earlier times, it is not now enough to constitute manslaughter at common law that a man is killed in the course of an unlawful act of any kind. To make an unintended and unexpected killing a crime at common law, it must now be, generally speaking, the result of an unlawful and dangerous act, or of reckless negligence": per Windeyer J. in Mamote-Kulang v. The Queen (1964) 111 C.L.R. 62, at p. 79.
Before dealing further with the concept of an unlawful and dangerous act and the standards by which that act is to be judged, it is necessary to bear in mind that mens rea is a necessary ingredient of the crime of manslaughter. But this ingredient does not appear to be an essential in assessing the danger of the act. Mens rea appears to play its part in determining whether the act itself is unlawful. For example in R. v. Lamb [1967] 2 Q.B. 981 the accused pressed the trigger of a revolver knowing that the chamber opposite the striker hammer was empty and in the belief that the cartridge chambers did not revolve. In fact the cartridge chambers did revolve, a bullet presented itself to the striker hammer and the accused killed his best friend. On appeal from a conviction of manslaughter the Court of Criminal Appeal held that the belief of the accused, if accepted, nullified the unlawful nature of the act which had in fact occurred. Sachs L.J., delivering the judgment of the Court, said: " ... if the pulling of the trigger had had no effect because the striking mechanism or the ammunition had been defective no offence would have been committed. Another way of putting it is that mens rea being now an essential ingredient in manslaughter ... this could not in the present case be established ... except by proving that element of intent without which there can be no assault" [FN1] .
On the other hand, in R. v. Buck and Buck (1960) 44 Cr. App. R. 213 the act which resulted in death, namely an abortion, was an unlawful act per se or by definition and mens rea was never referred to by Edmund Davies J. as an ingredient of the offence essential to be considered. To throw a grenade, which was ignited to explode, into Birse's sleeping quarters knowing that he would be there at the time was without doubt an unlawful act which did not, as in Lamb's case [1967] 2 Q.B. 981, require a determination upon any question of fact before a conclusion could be
(1968) 13 FLR 268 at 279
reached as to whether it was lawful or not. In R. v. Larkin [1943] 1 K.B. 174; 29 Cr. App. R. 18 the undisputed facts were that the accused was flourishing a razor at his wife with intent to scare her when the razor made contact with her and she suffered injuries from the effects of which she died. Humphreys J., in delivering the judgment of the Court of Criminal Appeal which also included Viscount Caldecote C.J. and Asquith J., said in the course of that judgment: "Where facts are proved and accepted, then whether those facts amount to the grime or not must be a question of law, not of fact. Where the facts are in dispute it is always for the jury to determine. But where the facts are proved in such a way that there can be no question about them, then it is perfectly right for the learned judge to tell the jury: These facts amount to a lawful or an unlawful act. In this case, in our opinion, it was perfectly right for the learned judge not to leave to the jury any question of acquittal, but to tell the jury, as he did, on the facts of the case, that accepting the evidence of the accused person to the full, it was not open to them to return a verdict of Not Guilty" [FN2] .
In the light of these authorities it is my conclusion that it was well within the province of the judge advocate to direct the court-martial that if they were satisfied that the appellant threw the grenade into Birse's tent then that act was unlawful.
It now becomes necessary to consider the dangerous character of the unlawful act in the light of the passage in the summing up of the judge advocate already set out. It appears that if the act is "such as all reasonable people would inevitably recognize must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm" then the unlawful act is dangerous and amounts to manslaughter: R. v. Church [1966] 1 Q.B. 59, at p. 70. Australian cases seem to suggest that the nature of the harm is not "some harm ... albeit not serious" but rather serious harm--for example, R. v. Holzer [1968] V.R. 481. Where the facts are in dispute upon this issue it must always be for the tribunal of fact to determine them and decide, in the light of the ultimate facts, whether the unlawful act is dangerous. But in the present case, once the court-martial were satisfied that the grenade was thrown by the appellant, then at best for him they could not have found that he threw the grenade other than to scare Birse and "blow his gear and his tent to the shithouse". To find, for example, that by some means the grenade got into close proximity to Birse by accidental means initiated by the appellant would be beyond the confines of reason. In R. v. Hall (1961) 45 Cr. App. R. 366 the undisputed facts were that a carving knife was used in a threatening manner with intent to scare the victim
(1968) 13 FLR 268 at 280
and the trial judge directed the jury that upon those facts they must at least find the accused guilty of manslaughter. On appeal from this direction Slade, Havers and Sachs JJ., forming the Court of Criminal Appeal, said, at p. 373: "Whether an unlawful act is of such a character that a resulting death is necessarily manslaughter is a mixed question of fact and law. If the facts are in dispute or in doubt, the question whether they have that character by virtue of the likelihood of injury being caused should naturally be left to the jury. If, however, there is no such dispute and no such doubt and there can only be one proper answer to the question it is open to the judge so to direct the jury.
"Here again, as in Larkin's case [1943] 1 K.B. 174; 28 Cr. App. R. 18, there was only one proper answer, and the judge was accordingly entitled to give the direction which he gave without going through the formula of saying that on the facts the jury must first find that the appellant's unlawful act was likely to injure the deceased for it was in fact undisputed and clear that it was so likely."
Any reasonable person would inevitably realize that a grenade thrown under the circumstances in which it was thrown here would be exposing Birse to the risk of really serious injury. In the light of these authorities, I consider it to have been within the province of the judge advocate to direct the court-martial as he did, albeit unintentionally. In any event I would adopt the following reasoning in Hall's case (1961) 45 Cr. App. R. 366 and apply the proviso contained in s. 23(2) of the Courts-Martial Appeals Act 1955-1966. In the final part of the judgment in Hall's case it was said: "The likelihood of such injury was on the uncontested facts of the case so clear that, even if Mr. Clarke were right in submitting that the jury should have been left to decide that fact, this Court considers the application of the proviso to s. 4(1) of the Criminal Appeal Act, 1907 (Imp.), to be inevitable."
I now turn shortly to the passage already noted in the summing up of the judge advocate as it might have affected the court-martial's consideration of the second basis upon which manslaughter was left to them, namely criminal negligence. I should say that shortly prior to that passage the judge advocate said: "To throw a grenade deliberately without being sure that the deceased was so well protected that it could do him no harm must, I suggest to you, amount to negligence which is gross and culpable; but it is for the court to say if they are satisfied beyond reasonable doubt that it amounts to manslaughter."
I only refer to this earlier passage because it was relied upon as a misdirection. I have already said, with reference to manslaughter by unlawful and dangerous act, that I would not be inclined to
(1968) 13 FLR 268 at 281
conclude that the judge advocate was in error and that in any event the court-martial must inevitably have convicted the appellant on that basis. That being so I do not consider it necessary to deal with criminal negligence in any detail in this context. It is sufficient to say that an act of grosser and more culpable negligence could scarcely be imagined than to throw a grenade into a person's sleeping quarters without any assurance that the occupant would be in a position protecting him from the inevitable explosion.
It was also submitted on behalf of the appellant that a fair trial was prevented by the questioning of witnesses by the President of the court-martial. A President has a duty to see that matters of evidence are adequately elucidated--see for example Rules of Procedure, r. 59(b)--and in this respect at least his position is significantly different from the foreman of a jury. However he is certainly in a no more privileged position with regard to the questioning of witnesses than a judge or a judge advocate. In the present case many questions were asked by the President of witnesses and of the appellant but I do not consider that they departed so far from the orderly process of fair trial as to amount to a miscarriage of justice. A number of witnesses were called as to the way in which the fire support base was laid out, and as to the general routine of 106 Battery at the base. Much questioning occurred by the President of these witnesses but, after a careful reading of the transcript, I feel that it was done only for the purpose of clarification. Regarding the other witnesses who were questioned, it could not be said that they were prevented from adequately giving their evidence, nor that the appellant's defence was stultified, nor that the President identified himself with the prosecution or showed bias or prejudice against the appellant: cf. R. v. Mawson [1967] V.R. 205, at p. 207. An example of the President's questioning is given with regard to the evidence of the appellant. He had given evidence about a smoke grenade having been thrown in an officer's tent; of a man named Tregear being killed by a claymore mine within a previous base; of a telephone conversation overheard by the appellant after the injury to Birse and of the incident which occurred to Patterson. The President in a lengthy questioning of the appellant clarified when, where and under what circumstances these incidents had occurred and whether the appellant had witnessed them or been told of them. The questioning was not a cross examination in the sense that no leading question was put to the appellant which embodied matters to which he had not previously deposed and at no time did the President display any bias or prejudice. I would therefore reject this submission, but not without making it clear that it can be said of a President of a court-martial, just as
(1968) 13 FLR 268 at 282
it has been said of a much talking judge, that he is "no well tuned cymbal".
It was further submitted that a fair trial of the appellant was not achieved owing to the refusal by the prosecuting officers to allow the defending officers access to prosecution witnesses for interview unless a representative of the prosecution was present. In fact no objection was taken to this course at the trial, although the transcript discloses a discussion upon the topic, and it does not appear that any interview of prosecution witnesses was desired. Whilst not condoning the suggested procedure I do not consider that there is any basis here for allowing this appeal.
With the exception of one further matter I do not propose to deal with further submissions put on behalf of the appellant other than to say that I do not consider them to be valid. However Mr. Kelly contended that, there being no evidence that the appellant was a subject of Her Majesty, he could not be convicted by court-martial of manslaughter committed in a foreign country. He referred to the Defence Act (Cth), to the Army Act, 1881 (Imp.), to the Offences against the Person Act, 1861 (Imp.) and also to R. v. Page [1954] 1 Q.B. 170. It has become unnecessary for my colleagues on the tribunal to deal with this submission in their judgment upon this appeal and it is possible that the tribunal as a whole may have to decide upon it at a future time. In these circumstances I intend only to state my own conclusion that the submission is not sound.
I should add that I agree with my colleagues that the provisions of s. 21 of the Courts-Martial Appeals Act 1955-1966 should not be read as limiting the provisions of s. 23 with reference to grounds of appeal before this tribunal.
For the reasons I have stated I would dismiss this appeal.
DAVOREN Q.C. AND WRIGHT, MEMBERS. No. 1731829 Gunner Leonard Edward Newman of Fourth Field Regiment, the Royal Regiment of Australian Artillery, was tried by general court-martial at Vung Tau, South Vietnam on 15th-24th January, 1968, on the following charge: That while being a soldier of the military forces of the Commonwealth of Australia on war service committed the following offence: When on active service in a place not within Her Majesty's dominions, committing a civil offence that is to say, murder, in that he near Nui Dat, Vietnam, on or about 10th December, 1967, when on active service, murdered 215349 Lieutenant Robert Graham Birse of Fourth Field Regiment, the Royal Regiment of Australian Artillery.
Gunner Newman, hereafter referred to as the appellant, pleaded not guilty to the charge.
(1968) 13 FLR 268 at 283
The appellant by direction of the judge advocate was found not guilty of the charge of murder, but was found guilty of manslaughter and was sentenced to be imprisoned for five years and to be discharged from the defence force of the Commonwealth of Australia.
The finding and sentence were confirmed on 29th February, 1968. A petition by the appellant dated 22nd April, 1968, was lodged with the Military Board requesting that the finding and sentence be quashed. The petition was refused by the Military Board on 22nd May, 1968. An application for leave to appeal to the tribunal dated 21st June, 1968, was granted on 2nd July, 1968. Certain matters raised by the appellant's solicitor in a letter dated 25th July, 1968, were argued by counsel before a member of the tribunal on 9th August, 1968.
The appeal was listed for hearing on 19th August, 1968. Mr. Kelly, who appeared for the appellant, then requested an adjournment for twenty-four hours as he was not ready to proceed. Mr. Brennan, who appeared for the Military Board, did not oppose the adjournment, which was granted by the tribunal.
The appeal was heard on 20th, 21st and 22nd August, 1968. We are indebted to both counsel for their assistance in a difficult and lengthy case. The trial was long, and lasted nine days. The evidence, submissions and summing up by the judge advocate covered some six hundred pages of foolscap.
It will be necessary now to refer to some of the occurrences which took place on 10th December, 1967. On that day the appellant was a member of 106 Battery, Fourth Field Regiment, Royal Australian Artillery. He was twenty-two years of age, was a national serviceman, and his term of service was due to expire on 20th April, 1968. The battery with some ancillary troops was stationed at a fire support base named Bravo, some 18,000 metres north-east of Nui Dat in a position alongside Route 15, running from Bahrea to Saigon. Route 15 at this point can be taken as running north and south. 106 Battery was in support of 7 R.A.R. In the fire support base Bravo, 106 Battery had six guns and the appellant was a gunner at No. 4 gun. The ancillary troops in the base included a detachment from 7 R.A.R.
The base was surrounded by concertina wire with certain gaps in it for entry of vehicles. The base formed roughly a circle with the guns arranged three forward and three back. The three forward guns faced west, and the three back guns faced east. The guns facing west, reading from the north, were Nos. 6, 4 and 2; and the guns facing east, reading from the north, were Nos. 5, 3 and 1. Each gun was surrounded by a bund, an earthwork pushed up roughly three feet in height by a bulldozer.
Adjacent to each gun were two ammunition tents (fourteen feet by fourteen feet) and sleeping pits for the gun crews. The sleeping
(1968) 13 FLR 268 at 284
pits were excavated to a depth of some two feet six inches and were covered with a layer of sandbags at ground level with a small opening for ingress and egress at one end. Over each pit was erected a tent for the purpose of shelter. Roughly in the centre of guns Nos. 2, 4, 3 and 1 was the sleeping pit of Lieutenant Birse covered also by a tent. This sleeping pit of Lieutenant Birse had sandbags at the sides but no sandbags covering it.
The crew of No. 4 gun comprised Sergeant Robinson, Bombardier Humphries, Lance Bombardier Clyne, Gunner Rolley, Gunner O'Neil and the appellant. In the No. 4 gun area there was also the sleeping pit of Private Berry, a medical orderly. The two ammunition tents of No. 4 gun, which had no sides, adjoined each other. Sergeant Robinson had his sleeping pit in No. 2 ammunition tent, which was south of No. 1 tent. His sleeping pit was in the north-east corner of this tent and some twelve feet away from the appellant's sleeping pit, which was by the south-east corner of this same ammunition tent. The appellant's sleeping pit was constructed with its entrance facing the bund. The pit was covered with sandbags except at the entrance. The pit area was covered by a tent, the sides of which came to within approximately three inches of the ground. Each end was open. Bombardier Humphries' sleeping pit immediately adjoined that of the appellant, but at an angle to it. The entrance to his pit was at the angle where his pit adjoined the appellant's pit. The side of his tent adjoining that of the appellant was two and one half feet from the ground. The other side was lower. A short distance to the north-east of the appellant's sleeping pit was that of Gunner Rolley and Lance Bombardier Clyne. The sleeping pit of Private Berry was to the east of that of Sergeant Robinson and in close proximity.
Number 4 gun was some hundred feet from the sleeping pit of Lieutenant Birse. Portion of the bund surrounding No. 2 gun was also a hundred feet from Lieutenant Birse's pit. The assault platoon of 7 R.A.R. was camped a short distance to the west and south-west of No. 4 gun.
Outside the wire on the eastern side, near Route 15, some local Vietnamese had erected small stalls known as "hootchies" at which drinks and food were sold and at which a barber carried on operations. During the daytime on 10th December, 1967, some gunners and soldiers went outside the wire, apparently making their way through it. The appellant, with some friends, spent a great part of that day outside the wire, and he consumed a quantity of beer, probably eight bottles of a size which was indeterminate. Somewhere about 1630 hours he and others were told to come inside the perimeter by Sergeant McCann of No. 3 gun. The appellant was under the impression that Sergeant McCann was blaming him for "spoiling" it for the other troops. The appellant thereafter
(1968) 13 FLR 268 at 285
had a conversation, at about 1700 hours, with his sergeant (Sergeant Robinson) who was then having a shower. Sergeant Robinson told him that the cutting off of the beer had nothing to do with him, the appellant. The appellant then told Sergeant Robinson that he would speak again to Sergeant McCann, which he did. While this conversation with Sergeant McCann was in progress, Lieutenant Birse came up and took part in it. Lieutenant Birse said to the appellant: "It is dickheads like you that fuck it up. If you step out of line any more, I'll charge you and I'll keep on charging you." The appellant replied: "I'll have you up for victimization, Sir." The appellant then returned to Sergeant Robinson and told him what had happened, and said he would go to the Battery Captain and complain about his R. and C. leave (rest and convalescence). This he did and reported back to Sergeant Robinson, who said that the appellant then seemed quite calm.
The appellant also had conversations with Bombardier Humphries and reported the conversation with Lieutenant Birse, and Bombardier Humphries says that he added, "I'll get him anyway", or words to that effect. The appellant denied that he had made such a statement. He spoke with Lance Bombardier Clyne and repeated the conversation with Lieutenant Birse and said to Lance Bombardier Clyne: "That's victimization, isn't it? I'm going to stir the B.K. [battery captain] about my R. and C.", and then left. Gunner Rolley gave evidence to the same effect.
About this time, 1700 hours or thereafter, the evening meal was in progress, and the appellant went over to the kitchen where he took his place in a queue behind Bombardier Fleming. Bombardier Fleming said that the appellant came up to him when he was at the condiments table in the presence of two other soldiers, and said to him: "I'm going to throw a grenade into Birse's tent. He'll be in his pit. lt won't hurt him, but it will blow his tent and his gear to the shithouse." Bombardier Fleming said the appellant spoke in a soft voice. Bombardier Fleming said that he did not notice anything unusual about the appellant. The two soldiers, who were named, were not called to give evidence. Bombardier Fleming then left and went back to his gun and had his meal. His gun was No. 2 gun. Bombardier Fleming said that later, somewhere between 1800 and 1830 hours, the appellant came over to his gun pit and called him out and said: "It's on." Bombardier Fleming said also that there were some words spoken after that, but he could not remember what the words were. Bombardier Fleming gave evidence that he reported the conversations to Sergeant Ward at 2300 hours. It is to be noted that these threats, if made, provoked no reply from Bombardier Fleming which he could remember and caused no action on his part until 2300 hours.
Gunner Nicola gave evidence that about the same time the appellant came up to him and to Gunner Tickner and asked whether an
(1968) 13 FLR 268 at 286
officer could tell a person that he would charge him the first opportunity he got. Gunner Tickner replied that he did not think so, and the appellant then said he was going to take Lieutenant Birse to the B.K. to charge him the first chance he got. Gunner Tickner gave evidence much to the same effect and told the appellant to think it over and see what he thought in the morning. He thought he might have said, "Take him to the B.K. would be the best bet", and he may have said, "He's not allowed to do that". He said that the appellant was possibly a little bit angry.
The appellant gave evidence and denied the conversation testified to by Bombardier Fleming. The appellant said that what he did say in conversation with Fleming was, "A bloke ought to throw a grenade at that bastard", and that Bombardier Fleming answered, "Yes, but you would be mad to do it". The appellant deposed that he had "just sort of agreed with him", that is Fleming. He said that the conversation was in an ordinary tone of voice. The appellant also gave evidence of the later conversation with Bombardier Fleming, which he said took place after the conversations with Gunners Nicola and Tickner. He said to Bombardier Fleming, "Did he [meaning Lieutenant Birse] say anything about charging me to you?", and that Bombardier Fleming replied, "Yes, he has been telling the whole gun he is going to charge you". The appellant then said: "It is on. I am taking him up to the B.K. in the morning." Bombardier Fleming was recalled, and said he could not be sure whether the appellant had said those words or not. He also said he could not remember whether those words were said or not. The appellant said that in a conversation with Gunner Rolley after returning to his gun he said to Gunner Rolley: "I'm going to get that Birse for victimization, Rolls. I'll fix him. This could cost me money."
At 2000 hours an explosion occurred in the vicinity of Lieutenant Birse's tent, which caused wounds to Lieutenant Birse from which he later died. The appellant was arrested early on 11th December. On that morning a search party found an M26 grenade striker lever in a position some forty-one feet to the west of Lieutenant Birse's sleeping pit. It was clear from the evidence that Lieutenant Birse's wounds had been inflicted by an M26 grenade.
Evidence was given at the court-martial by twenty-nine witnesses for the prosecution, amongst whom was Captain Farrell, an ammunition technical officer. Captain Farrell gave evidence concerning M26 grenades and stated that one could be thrown a distance of forty to fifty yards. He also gave evidence that the grenade striker lever would leave the grenade within fifteen yards from the point from which it was thrown. He stated that the striker lever might be thrown off ten feet to either side of the line of flight of the grenade. Captain Farrell indicated on a plan, which had
(1968) 13 FLR 268 at 287
been tendered in evidence, the area from which the grenade could have been thrown, having in mind the position where the striker lever was found. From this expert evidence it was elear that the nearest point to the appellant's sleeping pit from which the grenade could have been thrown was twenty-five to thirty feet.
A grenade was not part of the personal equipment of a gunner, and there was no evidence that the appellant ever had a grenade in his possession. When 106 Battery had left its base at Nui Dat to take part in operations, which included those at fire support base Bravo, No. 4 gun had with it some two or three hundred rounds of M16 ammunition and two or three grenades. The grenades were loose but each had a band of black tape round the centre. The ammunition and grenades were kept in a fuse box in ammunition tent No. 1. The fuse box was a metal box about eight inches long, four inches deep, and four inches wide. The box was fastened with a clip seal. There was no evidence that the appellant had been seen in the vicinity of this fuse box on 10th December or at any time. The black tape would necessarily have to be removed from a particular grenade before it could be effectively thrown, and there was no evidence that any black tape had been found in the area. Grenades were also held at Nos. 2 and 3 guns. When the grenades were called in after the explosion that killed Lieutenant Birse, No. 4 gun returned two grenades, No. 3 gun returned three grenades and No. 2 gun returned six grenades. The grenades returned from No. 2 and No. 3 guns were each packed in cardboard containers. On this operation it was left to the No. 1 of each gun crew to decide whether or not he would take grenades for use in the operation.
It appears from the evidence that stand-to was at 1830 hours and stand-down was at 1915 hours. At stand-to all members of a gun crew had to be in their sleeping pits or manning their gun. On the night in question the appellant acted as layer for No. 4 gun. Between stand-down and 2000 hours there was no evidence given by the prosecution at all of any movements of the appellant. The appellant deposed that he was in his pit. After stand-down it was the practice for all members of the gun crew of No. 4 gun to remain in their pits resting or sleeping, except when on piquet duty with No. 3 gun or when firing a mission.
Sergeant Robinson gave evidence that he was sitting in his pit on this night after stand-down, "just looking out, star gazing, looking at nothing in particular", and that his line of vision was to his left front. On a plan he drew his line of vision which was very close to the appellant's tent. He said that it was dark after stand-down, and it was one of "those mediocre nights you could see a reasonable distance. It was a quiet normal evening". He had a clear field of view inside his gun position and had not seen anybody
(1968) 13 FLR 268 at 288
moving in the gun position prior to the explosion. He could see the appellant's tent twelve feet away. He saw the flash of the explosion and, after the explosion, all his gunners popped their heads out everywhere. Gunner Rolley got out of his pit and the appellant walked across from his tent. Although Sergeant Robinson could see the appellant emerge from his tent, it was not possible for him to see the appellant get out of his pit because the side of the appellant's tent, being close to the ground, prevented this.
Evidence was given of conversations in the vicinity of Sergeant Robinson's pit after the explosion. The appellant took part in the conversations. It was said that his participation in them showed guilty knowledge. The evidence given was slender, but it was put by the respondent to the appeal as strengthening the case against the appellant. The prosecutor in his address to the court-martial did not rely upon these conversations in any way. The judge advocate referred at length to the conversations in his summing up.
The appellant gave evidence on oath at the trial. Mr. Brennan submitted that the cross examination of the appellant may have strengthened the inference of guilt against him, although he conceded that of itself did not make a case against him. He agreed that if a case against the appellant had not been made at the close of the prosecution case, it was certainly not made afterwards.
The evidence led by the prosecution against the appellant was entirely circumstantial. The prosecution's case was that, if Bombardier Fleming's account of the conversation with the appellant was accepted, this evidence, together with evidence that the grenade explosion took place on the same day as the conversation, provided circumstantial evidence sufficient to inculpate the appellant. The judge advocate said towards the end of his summing up: "The cornerstone and foundation of the case is Fleming."
At the conclusion of the prosecution case the accused's counsel submitted that there was no case to answer. The judge advocate did not accede to this submission, but stated that he would direct the court-martial that the accused could not be found guilty of murder. At the conclusion of the whole of the evidence the judge advocate did so direct the court-martial.
In his submissions to the tribunal, Mr. Kelly argued that there was no evidence upon which the court-martial could have been satisfied beyond reasonable doubt that the appellant had committed the crime. He submitted that an expressed intention by the appellant to do something, and in addition his presence in the general area of the base where a grenade was later thrown, could not establish beyond reasonable doubt that he had thrown the grenade. In support of this argument he submitted that there was no evidence that the appellant was out of his pit at the relevant time. He
(1968) 13 FLR 268 at 289
submitted that all the evidence pointed to the appellant being in his pit at the time the grenade was thrown. The evidence had disclosed that the nearest point at which the grenade could have been thrown was a distance of between twenty-five and thirty feet from the appellant's pit. There was no evidence that the appellant was within the area from which the grenade must have been thrown. He submitted further that there was evidence of animus against Lieutenant Birse by people in the area other than the appellant, and he referred to the evidence, including that of Bombardier Humphries and Gunner Tickner. Mr. Kelly further submitted that there was no evidence that the appellant had been in possession of a grenade, or that he had had any particular opportunity to obtain one. He submitted also that if there was any evidence against the appellant at all a case against him was not proved with that certainty which is necessary to justify a verdict of guilty. See R. v. Wallace (1931) 23 Cr. App. R. 32 and R. v. Barnes (1942) 28 Cr. App. R. 141. He referred to Raspor v. The Queen (1958) 99 C.L.R. 346, at p. 352.
Mr. Kelly also complained of the number of questions which were asked by the court-martial, which he submitted were more than could possibly be justified by the rules of procedure. Out of 392 pages of evidence there were seventy-two pages which wholly or mainly recorded questions by the court-martial and answers to such questions. Out of the sixty-two pages of the defence case there were fifteen pages wholly or mainly devoted to questions by the court-martial and answers to them.
Mr. Brennan submitted that there was ample evidence upon which the court-martial was entitled to convict the appellant. He argued that if the court-martial accepted the evidence of Bombardier Fleming as to the expressed intention of the appellant, then the fact that Lieutenant Birse was killed by a grenade on 10th December was sufficient evidence for the court-martial to be satisfied beyond reasonable doubt that the crime had been committed by the appellant. Mr. Brennan referred to Plomp v. The Queen (1963) 110 C.L.R. 234. Mr. Brennan also submitted that the questions by the court-martial were not undue or in any way oppressive to the appellant. They were not of the nature of cross examination and were only directed to matters which were not clear.
Mr. Brennan also referred to the provisions of s. 23 of the Courts-Martial Appeals Act 1955-1966. He submitted that s. 23 and s. 21 should be read together. Section 21 provides that on an application for leave to appeal the application must specify the grounds upon which leave to appeal is sought. He submitted that the tribunal did not have jurisdiction to look at grounds of appeal other than those upon which leave to appeal had been granted. Mr. Brennan
(1968) 13 FLR 268 at 290
feared that a decision might be given by the tribunal on a ground which had not been argued, but he agreed that leave to amend particulars should be given in a liberal manner.
We do not agree with Mr. Brennan's submission that the provisions of s. 23 of the Act are in any way limited by s. 21, which deals only with an application for leave to appeal. Section 23 is in very similar terms to the equivalent sections in various Criminal Appeal Acts. See, for instance, Criminal Appeal Act, 1907 (U.K.), s. 4; The Criminal Code (Q.), s. 668E; Crimes Act (Vic.), s. 564; Criminal Appeal Act (N.S.W.), s. 6. We know of no decision which limits the width of s. 23. Indeed, it seems to us that a wide construction should be given to the section. See Raspor v. The Queen (1958) 99 C.L.R. 346 and Plomp v. The Queen (1963) 110 C.L.R. 234, at pp. 244, 250. As to the effect of the Criminal Appeal Act, 1907 (U.K.), see the article by Gerald Gardiner K.C. and Nigel Curtis-Raleigh, 65 Law Quarterly Review 196, at p. 216. We would refer also to Re Schneider's Appeal (1958) 8 F.L.R. 314, at p. 319 and Re Cox's Appeal (1960) 8 F.L.R. 364, at p. 369. We can see no justification for limiting the section as suggested. The paramount consideration in any appeal is whether the appellant has had that to which he is entitled, and that is justice according to law.
It will be seen that Mr. Kelly relied on the absence of evidence that the appellant was out of his pit at the relevant time. There was in fact no evidence that the appellant was out of his pit and in the area from which the grenade could have been thrown. There was no evidence of any particular opportunity the appellant might have had to obtain possession of a grenade, and there was no evidence of any movements of the appellant in the vicinity of No. 4 gun between 1700 hours and stand-to except as stated above. There was no evidence of any black tape being found. There was evidence that Sergeant Robinson was looking in the direction of the appellant's tent some twelve feet away and that he saw no movement. There was evidence that Sergeant Robinson saw the flash of the explosion and that a grenade explodes about four and one half seconds after being thrown. There was evidence that Bombardier Humphries looked out of his pit adjoining that of the appellant some thirty seconds before the explosion and he saw no movement, nor did he see any movement when he looked out immediately after the explosion.
The evidence called by the prosecution was that the appellant had declared his intention to throw a grenade into the quarters of Lieutenant Birse, and in fact a grenade was thrown into those quarters later during the same day. That evidence justified a suspicion that the appellant may have been the guilty party. If
(1968) 13 FLR 268 at 291
that evidence stood alone it may have established a probability of his guilt. But there was no evidence that he had been seen by anyone at or about the time of the explosion. He had not been seen to leave his tent, nor had he been seen in the vicinity of Lieutenant Birse's quarters or in the area from which the grenade was alleged to have been thrown. There was no evidence that he ever had a grenade in his possession. There was no evidence that the striker lever of a grenade was found in the area from which the grenade would have probably been thrown by the appellant, if he had thrown it. No black tape was discovered in the area. The appellant gave evidence on oath that he had not thrown a grenade and there was no direct evidence at all of his having done so. There was also evidence of his previous good character as a soldier.
The question arises as to what inferences against the appellant could properly be drawn from the evidence before the court-martial. That question has been considered by the High Court in several cases. Bradshaw v. McEwans Pty. Ltd. Unreported. (High Court, 27th April, 1951.) was a civil case, and in a joint judgment the court said: "Of course as far as logical consistency goes, many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference. They must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture." See also Luxton v. Vines (1952) 85 C.L.R. 352, at p. 358 and Holloway v. McFeeters (1956) 94 C.L.R. 470. In the last-mentioned case it was said: "The state of facts which has been set out as the basis of the judgment of the Full Court is, of course, the product of inference. But the real difficulty of the case lies, not in finding a foundation for those preliminary inferences, but in the next step. For the state of facts inferred itself leaves room for conflicting conjectures or hypotheses. ... But is it more than a conjecture? ... Hypotheses of this kind are not inferences. What is required is a basis for some positive inference. ... The inference may be made only as the most probable deduction from the established facts, but it must at least be a deduction which may reasonably be drawn from them" [FN3] . Again, this was a civil
(1968) 13 FLR 268 at 292
case, and it may be that an inference could properly have been drawn against the present appellant if the issue had been a civil issue. But, in our view, it could not be said that the inference was reasonably open in a case where the facts in evidence necessarily had to exclude any reasonable hypothesis consistent with innocence. That evidence had to do more than give rise to conflicting inferences of equal degrees of probability, so that the choice between them became no more than a matter of mere conjecture.
We refer also to a recent decision of the British Columbia Court of Appeal, R. v. Knox [1968] Can. Cr. C. 348. Branca J.A., delivering the judgment of the court, said: "The accused, of course, was presumed to be innocent of the offence of which he was charged until the jury, assuming that there was legal evidence to consider, found the presumption of innocence to be displaced and the charge proved beyond a reasonable doubt. The onus of proving him guilty of the charge could only be discharged in this case by proof of facts which were capable as a matter of law of satisfying the test promulgated in In re Hodge (1838) 2 Lew. 227; 168 E.R. 1136, followed by a decision arrived at by the jury that the facts established did satisfy the test after a consideration of the same, and bearing in mind the theory of reasonable doubt.
"The difference between inference based upon reasonable proven, objective facts and mere guesswork or conjecture, is well set forth by Lord Wright in Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] A.C. 152, at pp. 169-170, quoted by myself in R. v. Halvorsen [1966] 2 Can. Cr. C. 235, at pp. 240-241, where I stated as follows: `To so infer in the case of purely circumstantial evidence involves a consideration of the difference between drawing an inference from the facts reasonably and objectively established as contradistinguished from speculation, conjecture or suspicion which might flow from such facts, but which might not be capable of satisfying the two-pronged test laid down in Hodge's case. The difference is well illustrated in a famous, much-quoted passage in the judgment of Lord Wright in Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] A.C. 152, at pp. 169-170, where he stated as follows: "My Lords, the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed. The court therefore is left to inference or circumstantial evidence. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be
(1968) 13 FLR 268 at 293
made, the method of inference fails and what is left is mere speculation or conjecture" ' " [FN4] .
It could be, as was suggested by Mr. Kelly, that there were in the vicinity other persons who could have thrown the grenade. It was not a case where the appellant was the only person in the general area at the time. Mr. Brennan relied on the coincidence of fact and the concurrence of time. In support of this argument he referred to Morgan v. Babcock & Wilcox Ltd. (1929) 43 C.L.R. 163, at p. 173. But that case was a very different case to the present.
A bribe had been demanded by one Maling before he would report favourably on the defendant company's tender. The defendant company's head office was in London. The defendant company's attorney in Australia had promised to recommend his managing director in England to pay the bribe. Maling did report favourably on the defendant company's tender. The amount of the bribe was fixed at £10,600 to be paid to the account of a nominee of Maling at a specified bank in Australia. The sum of £10,600 was credited to that account from England, and the nominee accounted to Maling.
Secondary evidence of a letter from the attorney to the managing director, since dead, was admitted stating these facts concerning the bribe, urging it to be paid, and setting out the method of payment of the £10,600. It was held that the circumstances proved were sufficient to support the finding that the managing director of the defendant company caused £10,600 to be placed to the credit of the nominee's account in payment of the bribe. No evidence was given by the defendant company that the payment was not with the company's funds or with its authority, and it was held that the evidence justified the conviction of the company of an offence under the Secret Commissions Prohibition Act (N.S.W.).
We observe that in his dissenting judgment in the same case Starke J. made the following observation: "In our abhorence of dishonesty, let us not first assume that Kemnal [the managing director] must have been one of the guilty parties, and then rely upon suspicion, conjecture and guesses at the truth to confirm not our judgment but our prejudices" [FN5] .
We are inclined to think that members of the court-martial may well have been unduly influenced by evidence of the appellant's alleged threats of violence against Lieutenant Birse, and then, unwittingly and unconsciously, assumed that he had thrown the grenade. The danger of making that assumption was real, and, in the absence of evidence involving the appellant, it seems to us to have been based upon no more than suspicion, conjecture and guesses.
(1968) 13 FLR 268 at 294
The circumstances in Plomp v. The Queen (1963) 110 C.L.R. 234, to which we were referred by Mr. Brennan, were very different from the circumstances in the present appeal. Mrs. Plomp met her death when she was alone in the sea with her husband, the accused. There was evidence that the surf was not dangerous and that the deceased was a good swimmer. There was strong circumstantial evidence, including the accused's desire to marry another woman, which supported the conclusion that the accused had murdered his wife. But, most importantly, the accused was, on his own admission, present at the time and place of death, he had a very strong motive for causing her death and his explanation of the circumstances surrounding her death were proved to be untrue.
In the present case, if the evidence of Bombardier Fleming is accepted, there was a statement of intention by the appellant to throw a grenade, but there was no evidence at all to show that he was present in the area from which the grenade must have been thrown at the time of the throwing nor that he ever had a grenade in his possession.
We do not regard the summing up as satisfactory. A summing up is adequate only if it states fairly the nature and evidence of the defence. In his summing up, which extended over some twenty-five pages, the judge advocate dealt at length with the case of the prosecution and reminded the court-martial that the prosecution had put forward "a structure of facts from which they say that the deliberate throwing of the grenade by the accused can properly be inferred and should be inferred". The nub of the appellant's defence was that he was in his sleeping pit at all relevant times and had not thrown the grenade. It was necessary that this defence should be put fairly and clearly to the court-martial by the judge advocate in his summing up. The appellant's movements both before and after the explosion were referred to by the judge advocate as follows: "Nobody saw the accused throw the grenade. He was seen coming out of his shelter shortly after the explosion. You have diagrams and plans before you. I do not propose going into those matters because you have got the documentary evidence actually in front of you. It is true nobody saw the accused in his pit, but it is equally true nobody saw him out of his pit--that is out of his pit shortly before the explosion."
The judge advocate did not refer at this point to the evidence of Sergeant Robinson or to the evidence of Bombardier Humphries. It was not sufficient for him to remind the court-martial that it had before it the diagrams and plans. The diagrams and plans could only be understood when read in relation to the evidence, particularly that of Captain Farrell, Sergeant Robinson and Bombardier Humphries, and the court-martial should have been so
(1968) 13 FLR 268 at 295
directed and the evidence referred to. The judge advocate did not refer here to the sworn evidence of the appellant that he was in his pit at all relevant times and that he had not thrown the grenade. The judge advocate did not refer to the fact that no evidence had been given by the prosecution as to the movements of the appellant between stand-down and 2000 hours. He did not refer to the evidence that a grenade would take four and one half seconds to explode after being thrown, or that on the evidence the appellant would have to be at least twenty-five feet away from his pit in order to throw the grenade, or that the grenade could not have been thrown by the appellant from his pit.
The judge advocate did direct the court-martial that, if it could not exclude the hypothesis that some other person might have thrown the grenade, the appellant must be acquitted. But this direction did not relieve him from dealing adequately with the appellant's defence as already indicated. The omission to give a suitable direction amounts in our opinion to a substantial miscarriage of justice.
Further, we do not think that on the evidence it was open to the court-martial to be satisfied beyond reasonable doubt of the appellant's guilt. The case against the appellant was not proved with that certainty which is necessary in order to justify a verdict of guilty. See R. v. Wallace (1931) 23 Cr. App. R. 32 and R. v. Barnes (1942) 28 Cr. App. R. 141.
We are of the opinion for these reasons that the appeal must be allowed and the conviction quashed.
We would add that we have no doubt that the questions by members of the court-martial were excessive, although we would not have disturbed the finding for this reason alone. Questions by the court of the appellant extending over five pages can be rarely be justified. The prosecutors and the defending officers were all qualified legal practitioners and the conduct of the trial should in ordinary circumstances have been left in their hands. For an accused to obtain justice it is essential that the proceedings be conducted as a trial, not as an inquiry, and it is the duty of the court-martial to come to a decision on the evidence adduced. The reason is that the court-martial's attention may well be distracted from the issue which is presented for its decision.
Orders accordingly.
Solicitors for the appellant: Biggs & Biggs.
Solicitor for the respondent: H. E. Renfree (Commonwealth Crown Solicitor).
A.J.L.
[FN1] [1967] 2 Q.B. 981, at p. 988.
[FN2] (1942) 29 Cr. App. R. 18, at p. 24.
[FN3] (1956) 94 C.L.R. 470, at pp. 476-477.
[FN4] Can [1968] Can. Cr. C. 348, at p. 358.
[FN5] (1929) 43 C.L.R. 163, at p. 184.
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