Re OXENHAM'S APPEAL

Courts-Martial Appeal Tribunal: Macfarlan J., President, Coldham Q.C., Deputy President, O'Sullivan, Member

SYDNEY, 4th July, 1966
18 FLR 177

Defence -- Discipline of members of forces -- Courts-martial -- Summing-up of judge advocate -- Necessity for transcript.

Upon a court-martial appeal, the attainment of justice in any one particular case requires that the appellate tribunal should be able to scrutinize the exact words used by the judge advocate in his summing-up to the court-martial. It must be a very rare case indeed in which it is not possible to have a verbatim transcript of a judge advocate's summing-up.

APPLICATION FOR LEAVE TO APPEAL.

The applicant sought leave to appeal against the findings and sentence of a court-martial. A transcript of the judge advocate's summing-up was not available to the Courts-Martial Appeal Tribunal.

B. E. Egan, for the applicant.

E. P. T. Raine, for the respondent.

4th July, 1966

The following decision was delivered:

THE PRESIDENT. We have had an opportunity of considering this matter and we are greatly obliged to learned counsel who have argued the matter very fully. The matter was on our suggestion,

(1966) 18 FLR 177 at 178

and with the concurrence of both counsel, treated as though it were an appeal, but in reality it is but an application for leave to appeal.

It should not be thought that in the case of every application for leave to appeal which we refuse that we will give extensive reasons for our decision, and we think that in stating this practice we are following what has been a long standing practice in the Privy Council and in the High Court in dealing with applications for leave or special leave to appeal in criminal matters. There may nevertheless be occasions when we will state our reasons for refusing an application. In this case learned counsel for the applicant has said everything that could be said in support of the appeal and we are greatly obliged to him for what he has said, and also to learned counsel who appeared for the Military Board for the considerable assistance which he has given us. We have paid close attention to the arguments submitted by learned counsel and each of us has had, in addition, the opportunity of reading and reflecting upon the contents of the appeal book before the tribunal assembled this morning.

We do not propose to give reasons for our decision in this case, but simply propose to state that in our opinion this application is not one in which leave to appeal should be granted.

We desire to add only two comments, and both of these relate to the summing-up.

The first thing is that there is not before us a verbatim transcript of what was said by the learned judge advocate. In summing-up the case to the court-martial in the place of such transcript we have a document headed "Notes of Summing Up" which, as we were told, was prepared by the learned judge advocate at the conclusion of the trial.

We very much appreciate the difficulties which confront members of a court-martial and a learned judge advocate when a court-martial is, as this court-martial was, held in the field almost, as we are told, under battle conditions. It may well be that in some circumstances it is not possible to provide a detailed transcript record of what the judge advocate says in his advice to the Court, but we desire to express the opinion that such cases should be very rare indeed because we are strongly of the opinion that the attainment of justice in any one particular case requires that the appellant tribunal should be able to scrutinize the exact words that the judge advocate used in his advice.

The second matter on which we wish to comment is that there were certain points mentioned in the course of argument with respect to directions given by the learned judge advocate on proof of intention and the voluntary character of an absence. Although these points are mentioned argument was not submitted on them, but it should not be assumed that we are in agreement with everything that the learned judge advocate is reported to have said. The position on these points is that we have not formed an opinion.

(1966) 18 FLR 177 at 179

The application will be refused. We are also of the opinion that the application for leave to amend the notice of appeal should be refused.

Orders accordingly.

Solicitors for the applicant: Nugent Wallman & Co.

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

A.J.L.

.----------