(1966) 9 FLR 120[lb.009.FLR.00120]

[COURTS-MARTIAL APPEAL TRIBUNAL]

Re NICKOLS'S APPEAL

Courts-Martial Appeal Tribunal: Coldham Q.C., Deputy President, Wright and O'Sullivan, Members

BRISBANE, 12th April; SYDNEY, 31st May 1966
9 FLR 120

Defence -- Discipline of members of forces -- Insubordination -- What constitutes -- Evidence of intention -- Whether words alone sufficient -- Conduct to prejudice of good order and military discipline -- What constitutes -- Whether intention to prejudice required -- Insubordinate language to superior officer -- Who is superior officer -- Insubordinate letter sent to Military Board -- Whether Military Board superior officer -- Copy of insubordinate letter to Military Board sent to commanding officer -- Whether use of insubordinate language to superior officer -- Australian Military Regulations, reg. 203(1)(xiii), (lx), (4).

An army officer signed and sent to the Military Board a letter of resignation containing a veiled allegation of fraud on the part of the Board in its policy relating to resignations and a consequent disclaimer by the officer of his loyalty to the army and of his responsibilities as an officer. The letter discounted the reasons of the Board for deciding upon the officer's continued service as an officer and stated that he was, and would be, a spreader of discontent, inefficient, and prepared to take action publicly to damage the service. The officer delivered a copy of the letter to his commanding officer. The officer was charged with conduct to the prejudice of good order and military discipline in that he signed and caused to be forwarded to the Military Board a letter of resignation which was so framed as to be indicative of insubordination.

Held: (1) The letter went beyond the right of any serviceman to complain in respect of matters pertaining to his service life and his right to apply for resignation from the service of which he is a member. It contained expressions clearly indicating a defiance or disregard for authority and, accordingly, was indicative of insubordination.

(2) The episode with which the officer was charged in that "he signed and caused to be forwarded" the subject letter was properly described as "conduct". "Conduct" may include one episode made up of a number of acts.

(3) The signing and sending of the letter to the Military Board was evidence in the circumstances of conduct to the prejudice of good order and military discipline within the meaning of reg. 203(1)(lx) of the Australian Military Regulations. Per the Tribunal--If there is one requisite for the maintenance of good order and military discipline in the army or any other service it is a due and proper respect for the hierarchy of authority upon which the conduct of service affairs is based.

(4)(a) Even if the officer should have been charged under reg. 203(1)(xiii) with "insubordinate language to a superior officer"

(1966) 9 FLR 120 at 121

no injustice was thereby rendered to him and by virtue of reg. 203(4) his conviction could not be rendered invalid. However, (b) no contravention of reg. 203(1)(xiii) had taken place. The Military Board was not a "superior officer" within the meaning of the sub-regulation, and the delivery of the copy of the letter to his superior officer did not amount to the use of insubordinate language to the superior officer.

Per the Tribunal: Words used, and the circumstances in which they are used, may be evidence of the user's intention to be insubordinate.

Quaere, whether an accused, by adducing in court-martial proceedings evidence on his own behalf, may so complete the case of the prosecution that he cannot, on appeal, challenge sufficiency of the case for the prosecution.

Quaere, whether upon a charge of an offence against reg. 203(1)(lx) of the regulations it is necessary for the prosecution to prove that the accused intended to prejudice good order and military discipline.

APPLICATION FOR LEAVE TO APPEAL.

The applicant sought leave to appeal against his conviction by general court-martial of an offence against reg. 203(1)(lx) of the Australian Military Regulations relating to conduct to the prejudice of good order and military discipline.

A. J. Humphries, for the applicant.

M. J. Ewing, for the respondent.

Cur adv vult

31 May 1966

The Tribunal delivered the following decision:

Application for leave to appeal by Captain Alan Hector Fergus Nickols of 4 Signal Regiment against his conviction by general court-martial at Brisbane on 14th October, 1965.

The applicant was charged with an offence under reg. 203(1)(lx) of the Australian Military Regulations made under the Commonwealth Defence Act 1903-1965 and upon his conviction of the charge, to which he pleaded not guilty, was sentenced to be reprimanded.

In the course of time the finding and sentence of the court-martial were duly confirmed and this confirmation was, in accordance with proper procedure, promulgated. A petition against his conviction was lodged by the applicant but the Military Board refused his petition, of which refusal he was duly notified. This application for leave to appeal against conviction came before this Tribunal on 12th April, 1966, pursuant to an order made by a member on 17th February, 1966, extending the time for making the application.

At the hearing of the application for leave to appeal the Tribunal adopted, with the consent of the parties, the course pursued in Feiss's Appeal (1959) 8 F.L.R. 336, at p. 342 "that the matter should be fully argued on the hearing of

(1966) 9 FLR 120 at 122

the application for leave to appeal, and that if the Tribunal should think it right to grant leave to appeal no further argument would be advanced, unless something unforseen should arise ... ". See also Duncombe v. Porter (1953) 90 C.L.R. 295. After hearing argument we dismissed the application for leave to appeal and announced that we would publish our reasons at a later date.

Mr. A. J. Humphries of counsel appeared for the applicant and the Military Board was represented by an officer of the military forces to whom we refer as Mr. M. J. Ewing. This mode of reference accords with the practice of the Courts-Martial Appeal Court of the United Kingdom. The bulk of the argument presented on behalf of the applicant centred upon the charge made against him and the manner in which that charge was framed. It appears from the evidence given at the court-martial, and it was conceded by the applicant in his own evidence, that on or about 20th September, 1965, he wrote a letter which he later signed and forwarded to the Military Board, having handed a copy of this letter to the commanding officer of his regiment. Subsequent to the receipt of this letter by the Military Board the charge in respect of which the applicant was later convicted was laid against him and, as it appeared at the court-martial, was in the following terms:

"Australian Military Regulation 203(1)(lx)

Conduct to the prejudice of good order and military discipline in that he at Brisbane on the twentieth day of September 1965 signed and caused to be forwarded to the Military Board a letter R8 dated 20 September 1965 concerning `Resignation of Commission--17063 Capt. A. H. F. Nickols' which letter was so framed as to be indicative of insubordination and was in the following terms:

`1. I herewith tender again the resignation of my commission as a Staff Corps Officer in the A.M.F., I give notice as of 31 Jan 66. The period of notice therefore exceeds the minimum requirement of three months under DA 17.

2. My so-called five year obligation period expires on 31 Jan 67, so that my period of notice falls precisely twelve months short of this period. I am, however, not only willing, but desire to work out the remainder of this obligation to the Commonwealth in another Commonwealth Department.

3. My reasons I have made abundantly clear in previous resignations. There are, however, several points I feel I should re-iterate:--(a) I consider that, in view of the current Military Board Policy on resignations, and the underhanded way in which the Defence Act has been amended without allowing serving officers an option,

(1966) 9 FLR 120 at 123

that I was fraudulently induced to accept a commission. I therefore can give no loyalty whatever to the Army, and my commission means nothing to me. (b) I cannot understand what the Military Board hopes to achieve by forcing my continued service and preventing my transfer to another Commonwealth Department. While I serve I cannot avoid spreading discontent, and, in fact, will actively do so. Nor can I be even minimally efficient in any job in an organisation I now detest. (c) I feel it is unjust that an Officer who is prepared to take action which publicly damaged the Army to secure his release should be released in preference to one who has not only served longer, but until now has been reluctant to take action which might result in unfavourable publicity for the Army and embarrassment for superiors.

4. I request that this resignation be given early and favourable consideration, in order that I might arrange employment in another Commonwealth Department, doing what I have been trained for' and caused to be delivered a copy of the said letter to the Commanding Officer 4 Signal Regiment".

The above particulars refer to the letter signed and forwarded by the applicant to the Military Board.

It was contended on behalf of the applicant in support of a submission that the particulars as alleged did not constitute the offence charged, that there was a flaw in the particulars themselves which invalidated the charge as framed. It was urged that the allegation that the "letter was so framed as to be indicative of insubordination" required a purely objective test in assessing the letter's content and that the reaction of persons reading it might differ on the question whether it contained matter of an insubordinate nature. In developing this argument counsel for the applicant urged us to hold that the particulars were so improperly drawn as to invalidate the charge because the allegation of insubordination was only directed to the content of the letter written and sent by the applicant and not to the applicant himself.

We do not consider that these submissions are substantial. The circumstances giving rise to the prosecution of the applicant had as their focal point, the letter which the applicant concedes he sent to the Military Board and handed to his commanding officer. It was quite appropriate, as a matter of drafting, therefore, to allege that the letter itself was insubordinate in its content or contained matter which was indicative of insubordination, leaving it to the court-martial as a matter of evidence to decide any necessary issue of intent. Moreover we consider that the objective test implied in the context of the particulars is quite proper. Initially the question must be whether the content of the letter could, as a matter of law, be said to be indicative of insubordination. This question must be considered objectively but not in accordance with the unguided whim of the tribunal. The answer

(1966) 9 FLR 120 at 124

is to be given after proper guidance as to the meaning of insubordination and the accepted standards of service life. We did not hear any strong contention from counsel for the applicant that, viewed in this manner, the subject letter was incapable of indicating insubordination having regard to the persons to whom it was published. However if it were not so capable then it would be our duty to find that the particulars as drafted did not support the offence with which the applicant was charged. In coming to the conclusion that the letter was so capable we are mindful of the rights of any serviceman to complain in respect of matters pertaining to his service life and of his right to apply for his resignation from the service of which he is a member. We emphasize that, in exercising these rights a serviceman must be allowed a freedom of expression altogether consonant with the factors operating at the time when his complaint or application is made. However, and it is a matter of degree, the wording of the complaint or application may go so far beyond what should be regarded as right and proper, and be in such terms, as to constitute a military offence--Heddon v. Evans (1919) 35 T.L.R. 642, at p. 647. If expressions contained in the complaint or application clearly indicate a defiance or disregard for authority then, in our view, it is indicative of insubordination--see R. v. Grant [1957] 1 W.L.R. 906, at p. 908.

The letter signed and forwarded by the applicant to the Military Board and passed on to his commanding officer includes a veiled allegation of fraud on the part of the Board in its policy regarding resignations and a consequent disclaimer by the writer of his loyalty to the Army and of his responsibilities as an officer. It discounts the reasons of the Board for deciding upon the applicant's continued service as an officer and states that he is, and will be, a spreader of discontent, inefficient, and prepared to take action aimed at publicly damaging the service. In our view these expressions clearly indicate a defiance or disregard for authority and are therefore indicative of insubordination.

Two further points were urged on behalf of the applicant in the general submission that the particulars did not support the offence with which he was charged. Firstly it was put, as we follow the argument, that the particulars should have alleged an "act" and not "conduct" on the part of the applicant. Regulation 203(1)(lx), of course, divides the substantial offence with which it deals into acts, conduct, disorders, and neglects, and the specimen charges contained in the Manual of Military Law (1941, Australian edition) recognize this separation--see pp. 660-661. However we are clearly of the view that conduct "may include one episode made up of a number of acts" --see Manual of Military Law (1961), at p. 334. Consequently we are of the view that the episode with which the applicant was charged in that "he signed and caused to be forwarded" the subject letter was

(1966) 9 FLR 120 at 125

properly described as "conduct". Secondly it was contended that the conduct attributed to the applicant in the particulars could not be brought validly within the provisions of reg. 203(1)(lx) because those particulars indicated that the appropriate offence with which he ought to have been charged was "insubordinate language to his superior officer" which is included in reg. 203(1)(xiii). An adequate answer to this contention is contained in reg. 203(4) which states: "No person shall be charged under paragraph (lx) of sub-regulation (1) of this regulation in respect of any offence for which special provision is made elsewhere in these regulations, or in the D.A.; nevertheless the conviction of a person so charged shall not be invalid by reason only of the charge being a contravention of this sub-regulation, unless it appears that injustice has been done to the person charged by reason of such contravention; but the responsibility of any officer for that contravention shall not be removed by the validity of the conviction; and nothing in this regulation shall authorize, for any offence against paragraph (lx) of sub-regulation (1) of this regulation, which is also an offence against the D.A., the infliction of any penalty which could not be inflicted under the D.A. for the offence against that Act." This subregulation clearly means that, provided the alleged act, conduct, disorder or neglect with which the person is charged is made out upon the evidence and supports a conviction under reg. 203(1)(lx), then, despite the fact that he ought to have been charged with another offence, any such conviction is not rendered invalid unless injustice has been thereby occasioned to him. For reasons which we shall shortly give, we are of the view that the facts and matters alleged in the particulars to the charge do support the offence with which the applicant was charged. Nothing was put on his behalf relating to any injustice arising from the contended contravention of reg. 203(4) so it follows that this submission must also fail.

In any event we do not consider that any contravention of reg. 203(4) has taken place in relation to the prosecution of the applicant. The subject letter was directed to the Military Board which is referred to in s. 28(3) of the Defence Act as "having such powers and functions as are prescribed". Its composition powers and functions are set out in reg. 21 and the following regulations made under that Act. In our view that Board is not a "superior officer" within the meaning of reg. 203(1)(xiii). The applicant's commanding officer is referred to in the particulars to the charge as being a person to whom the applicant caused a copy of the offending letter to be delivered. This officer is undoubtedly the applicant's superior officer within the meaning of reg. 203(1)(xiii); but the delivery to him by the applicant of a copy of the subject letter does not, in our view, amount to the use of insubordinate language to the applicant's superior officer. The letter, and its content, is directed to the Military Board, not to the applicant's superior officer.

(1966) 9 FLR 120 at 126

It remains only to consider, under the matters relating to the charge, whether the conduct of the applicant, in signing and causing the subject letter to be forwarded to the Military Board and delivering a copy to his commanding officer, can properly be said to be to the prejudice of good order and military discipline. In answering this question we have taken care to avoid giving any treatise on the meaning of those words but to confine ourselves to the particular matter in hand. Suffice it to say that if there is one requisite for the maintenance of good order and discipline in the army or any other service then it is a due and proper respect for the hierarchy of authority upon which the conduct of service affairs is based. Conduct upon the part of a member of the forces which is in palpable disregard of that concept is calculated to engender disarray and confusion in the conduct of those affairs. We consider, therefore, that a letter couched in the terms referred to in the particulars to the present charge can properly be the subject of an offence under reg. 203(1)(lx).

In his charge to the court-martial the learned judge-advocate stressed that, before convicting the applicant, there had to be a satisfaction beyond reasonable doubt that at the time when the applicant forwarded the letter "he intended to be insubordinate". In an interesting argument presented on behalf of the Military Board at the hearing of this application, it was suggested that this direction by the learned judge-advocate was unduly favourable to the applicant. We shall refer to that matter later.

No objection was taken on behalf of the applicant to the direction on intent or to any of the summing up of the learned judge-advocate. It was contended on his behalf, however, that the conviction was against the evidence and the weight of the evidence in that there was no evidence upon which the court-martial could have found that the applicant had any insubordinate intent. At the court-martial a submission was made along the foregoing lines at the close of the case for the prosecution and, in argument before us, counsel for the applicant, as we followed him, contended for his submission, regarding the absence of evidence of intent, upon the evidence as it stood at the end of that case and upon the state of the evidence after the applicant had given evidence.

It has been held in England that, where evidence has been given by an accused, an appellate court is not bound to uphold a submission that on the prosecution evidence the trial judge was wrong in allowing the trial to proceed beyond the close of the prosecution case. An appellate court is not bound, it is said, to quash a conviction where the evidence of the accused has remedied the defects in the case the prosecution--R. v. Jackson (1910) 5 Cr. App. R. 22; R. v. Power [1919] 1 K.B. 572. However, in more recent times these cases have been qualified at least to the point where

(1966) 9 FLR 120 at 127

a conviction may be quashed when the defects in the prosecution case against an appellant have been remedied by the evidence of a co-accused--R. v. Abbott [1955] 2 Q.B. 497. We regard it as an open question in this Tribunal whether or not an accused, who by giving evidence himself or calling evidence on his own behalf has remedied gaps in the prosecution evidence, can succeed on appeal on the ground of the insufficiency of the prosecution evidence: see Muncey's Appeal Unreported (Courts-Martial Appeal Tribunal, 1963).

In the state of these authorities we have separately considered the issue of intent as it stood at the close of the prosecution case and as it stood at the close of all the evidence. At each stage of the trial there was, in our view, a clear sufficiency of evidence upon which the tribunal could find an insubordinate intent. At the close of the prosecution evidence the following facts were before the tribunal from which it could infer such an intent: (a) the subject letter itself, carefully worded and methodically composed; (b) the evidence of Major Walters, second in command of the applicant's regiment, to the effect that about ten days after the subject letter was sent to the Military Board the applicant handed him a document which he told Major Walters was a draft from which that letter was typed. This draft, which was tendered in evidence, contained two significant things. The words "and my commission means nothing to me" were crossed out and marked with the abbreviation "Stet". The second sentence in the second sub-paragraph of par. 3 read: "While I serve I cannot avoid spreading discontent, and, in fact, by my very presence will actively do so". The words "by my very presence" were crossed out. Otherwise the tendered draft was identical in its terms with the letter sent; (c) the evidence of Major Walters that "there was nothing wrong in substance" with the letters written by the applicant and which Major Walters had had occasion to sign in the course of his duties; and (d) the applicant was an officer of not inconsiderable experience.

Evidence was given by Major Walters that on 30th September, 1965, the applicant told him that he had no insubordinate intent at the time when he sent the subject letter. Similar statements, given on oath by the applicant and forming part of the summary of evidence, were tendered in cross-examination of a witness called for the prosecution. These statements were of a self-serving nature and of very doubtful admissibility and could be assessed as having little or no probative value.

A finding of insubordinate intent was also clearly open to the tribunal after the applicant had given evidence. It was disclosed that he had prepared at least one draft of the subject letter. He had graduated from the Royal Military College and later graduated in electrical engineering at the University of New South Wales. He was therefore a man of good education well versed in the traditions and ethics of the Army.

(1966) 9 FLR 120 at 128

For the foregoing reasons we have already ordered that this application for leave to appeal be dismissed.

However, a further matter was raised on behalf of the Military Board in the course of argument upon which, having regard to our conclusion on the issue of intent, we find it unnecessary to reach a concluded view. It was submitted that the judge-advocate, in his summing up, put the issue of intent unduly favourably to the applicant. The summing up upon this issue was probably based upon a footnote in the Manual of Military Law (1941, Australian edition) to one of the offences now contained in reg. 203(1)(xiii) to which we have previously made reference. The footnote appears at p. 403, dealing with the offence of using threatening or insubordinate language to a superior officer and is in the following terms: "The words must be used with an insubordinate intent, that is to say they must be either themselves, or in the manner or circumstances in which they are spoken insulting or disrespectful, and in all cases it must reasonably appear that they are intended to be heard by a superior". This footnote is somewhat equivocal because words which are insulting or disrespectful may be spoken without any intent to be insubordinate and it is not stated that such an intention is to be presumed from such words; yet the statement impliedly equates words of that nature with such an intent. The observations appearing in the same Manual at pp. 18, 19 regarding evidence as to the circumstances of drunkenness, and drunkenness in relation to military offences, contain the same uncertainty with regard to intent in relation to those offences in which insubordination or disobedience is an element. See also pp. 60, 61 of the same Manual.

In the British Army Manual 1961 the footnote, to which we have already referred, is repeated but the statement immediately following on p. 292, par. 8(b) is forthright to the effect that an insubordinate intent may be inferred solely from the words used. We consider that the words used, and the circumstances in which they are used, must be evidence of intent in cases of this nature and indeed in many cases they will be the sole evidence, whether the charge be for an offence under reg. 203(1)(lx) or some other offence.

However, on behalf of the Military Board we were invited to find, upon the hypothesis that the subject letter upon its proper construction was indicative of insubordination, that it was only incumbent upon the prosecution to prove that the applicant signed it and forwarded it of his own volition and that it was unnecessary to satisfy the court-martial that he intended to be insubordinate. It might well have been necessary to consider a submission of this nature had the particulars to the charge under reg. 203(1)(lx) merely recited the letter and its signing and delivery and omitted the particulars relating to its insubordinate nature; a course which appears to have been followed in the military prosecutions which culminated in the case of Heddon v.

(1966) 9 FLR 120 at 129

Evans (1919) 35 T.L.R. 642. In that case there appears to be some support (at pp. 647, 648) for this submission put on behalf of the Military Board. See also Sickerdick v. Ashton (1918) 25 C.L.R. 506, where the issue of intent in relation to an offence of publishing matter "likely to prejudice recruiting" was discounted by Barton J. (at pp. 515-516), and Francis v. Rowan (1941) 64 C.L.R. 196, at pp. 200, 202, 204.

However it is unnecessary to resolve this matter upon this application for leave to appeal. Moreover the point was only adverted to on behalf of the Military Board. It was not part of the function of counsel for the applicant to attack the summing up of the judge-advocate on the issue of intent and, in his reply, he did not include any argument against the submission under discussion. It is an added reason, therefore, for reserving this point that full argument upon it was not presented to us in the course of this application.

Application for leave to appeal refused. No order as to costs.

Orders accordingly.

Solicitors for the applicant: Macfie & Curlewis.

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

A.J.L.

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