(1980) 43 FLR 329[lb.043.FLR.00329]

[COURTS-MARTIAL APPEAL TRIBUNAL]

Re POTTER'S APPEAL

Courts-Martial Appeal Tribunal: Connor J. President, Walters J. Deputy President and Judge Broad Member

SYDNEY, 25-27, 29 August 1980 
43 FLR 329

Defence -- Courts-Martial Appeal Tribunal -- Theft -- Onus of proof -- Misdirection -- Judge-advocate -- Functions -- Inconsistent verdicts -- Quashing of verdicts -- Onus on appellant to show verdicts so inconsistent as to call for interference of Tribunal.

Defence -- Court-martial -- Neglect to the prejudice -- Duty of prosecution to inform court of evidence relied upon -- Judge-Advocate -- Duty to rule whether evidence may amount to neglect to prejudice of good order and naval discipline.

Evidence -- Character evidence -- Use of.

Criminal Law -- Theft -- Theft Act, 1968 (U.K.) -- Whether charge properly laid -- Naval Defence Act 1910 (Cth), ss. 3, 34 -- Naval Defence Act 1957 (Cth), ss. 39, 42 -- Naval Discipline Act, 1957 (U.K.), s. 42 -- Theft Act, 1968 (U.K.), s. 1(1).

The appellant was charged with three counts of theft and one count of neglect to the prejudice of good order and naval discipline, which incidents were alleged to have occurred whilst he was a member of an armed boarding party aboard a foreign fishing vessel. Two counts of theft were dismissed at

(1980) 43 FLR 329 at 330

his court-martial and the appellant was convicted on the remaining count of theft and on the count of neglect to the prejudice of good order and naval discipline, against which convictions he appealed on a number of grounds which are set out in the judgment.

Held, by the whole Tribunal, allowing the appeals against both convictions: (1) Rulings of the Judge-Advocate General (Navy) though binding on a judge-advocate, do not bind the Courts-Martial Appeal Tribunal.

(2) In courts-martial, when dealing with a submission by counsel for the defence, based solely upon the apparent unreliability of prosecution witnesses, it is not the function of the judge-advocate to make an unfavourable assessment of those witnesses and direct an acquittal, because to do so would be to usurp the function of the members of the court as the tribunal of fact.

R. v. Barker (1976), 65 Cr. App. R. 287, applied.

(3) At any time after the close of the prosecution evidence, if there is evidence fit to be submitted to the court, a judge advocate may inform the court that, without hearing more, the court may stop the case and return a verdict of acquittal. Such an invitation does not deny to the members of the court their function as judges of the facts.

(4) Where an appellant seeks to obtain the quashing of a conviction on the ground that verdicts are inconsistent, the burden is upon him to show that they are so inconsistent as to call for the interference of an appellate court.

R. v. Durante, [1972] 1 W.L.R. 1612, applied.

(5) On a charge of neglect to the prejudice of good order and naval discipline, the prosecution should inform the court as to the specific matters relied upon in support of the charge.

(6) It is for the judge-advocate to determine as a matter of law whether an act, neglect, or omission can be prejudicial to good order and naval discipline and in the circumstances the prosecution ought to have enunciated the steps which it submitted were within the power of the appellant, and which he should have taken.

Re Wallace's Appeal (1970), 18 F.L.R. 220, applied.

Use of character evidence and adequacy of direction given discussed.

R. v. Thompson, [1966] Q.W.N. 47, considered.

/
APPEAL.

Appeal from conviction by naval court-martial.

I. Roberts, for the appellant.

G. Richardson, for the Chief of Naval Staff.

Dec res.

29 August 1980

THE TRIBUNAL delivered the following reasons.

On 17th August, 1979, a naval court-martial found the appellant guilty on a charge of theft and also on a charge of neglect to the prejudice. The charge of theft, by reason of the provisions of s. 42 of the Naval Defence Act 1957 (Cth), was brought under s. 1(1) of the Theft Act, 1968 (U.K.) and alleged that on 8th November, 1978, the appellant stole a quantity of fishing net, the property of the Master of the Fu Yuan. The charge of neglect to the prejudice was brought under s. 39 of the

(1980) 43 FLR 329 at 331

Naval Defence Act 1957 and alleged that the appellant between 1st April, 1978 and 30th November, 1978, was guilty of neglect to the prejudice of good order and naval discipline in that he did fail to take such steps as were within his power to prevent theft from Taiwanese fishermen by members of the ship's company of H.M.A.S. Adroit, well knowing that such thefts were being committed by members of the ship's company.

In dealing with the appear on the charge of theft we have proceeded on the footing that a charge under the Theft Act, 1968 (U.K.) could properly be brought against the appellant. In answer to our inquiries counsel for the appellant stated that he expressly refrained from making any submission to the contrary.

The Naval Defence Act 1910 provides as follows in s. 34:

"34. Subject to this Act--

(a) the Naval Discipline Act; and

(b) The Queen's Regulations and Admiralty Instructions in force at the date of commencement of the Naval Defence Act 1964, with such exceptions and subject to such modifications and adaptations as are provided by the regulations, apply to and in relation to the Naval Forces and the members of those Forces."

The Naval Discipline Act is defined in s. 3 of the Naval Defence Act 1910 as meaning the Imperial Act called the Naval Discipline Act, 1957, as in force on the date of commencement of the Naval Defence Act 1964. That date was 6th November, 1964, some four years earlier than the commencement of the Theft Act, 1968.

Section 42 of the Naval Discipline Act, 1957, as it applies to the Naval Forces of the Commonwealth by virtue of s. 34 of the Naval Defence Act 1910, reads as follows:

"42. (1) Every person subject to this Act who is guilty of any civil offence (that is to say any act or omission which is punishable by the law of England or would be so punishable if committed in England or which is an offence against the law of the Commonwealth) shall be liable on conviction under this Act:

(a) in the case of an offence of treason or an offence of murder for which that punishment is not prohibited by section eight of the Homicide Act, 1957, to death;

(b) in the case of any other offence of murder, to imprisonment for life;

(ba) in the case of an offence against a law of the Commonwealth, to a punishment not exceeding the maximum punishment provided by that law in respect of the offence, or such less severe punishment as is authorised by the next two succeeding sections;

(c) in the case of any other offence, either--

(i) to such punishment (being a punishment authorised by this Act) as could be imposed on the offender on conviction before a civil court of the like offence committed in England, or

(1980) 43 FLR 329 at 332

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(ii) to dismissal with disgrace from Her Majesty's service or any less punishment authorised by this Act.

(2) A person subject to this Act may be charged with an offence under this section notwithstanding that he could on the same facts be charged with an offence under any other provision of this Part of this Act."

We think that the "law of England" and "the law of the Commonwealth" in s. 42 mean in each case the law as it stood at the date of the commission of the offence and that consequently the Theft Act, 1968 applies.

In Re Ferriday's Appeal (1971) 21 F.L.R. 86 this Tribunal was considering the meaning of "murder" in s. 41 of the Army Act, 1881 (Imp.); and there are some passages in the judgments in that case which might be thought to be inconsistent with the view that we take of s. 42 of the Naval Discipline Act, 1957 (U.K.). Section 41 of the Army Act, 1881 and s. 42 of the Naval Discipline Act 1957 are however, couched in quite different terms and in our view are clearly distinguishable. We expressly refrain from making any comment as to the corresponding situation in the other two Services.

The appellant seeks leave to appeal against the conviction for theft on the following grounds: (i) The learned judge-advocate erred in law in holding that he was bound by a direction or ruling of the Judge-Advocate General (Navy). (ii) The learned judge-advocate erred in law in holding that he had no power to direct an acquittal on the ground that the prosecution evidence was unreliable. (iii) The learned judge-advocate erred in directing the court that they could stop the case and acquit the accused at any time after the close of the prosecution case instead of directing an acquittal himself. (iv) The learned judge-advocate erred in failing to direct an acquittal at the close of the prosecution case. (v) The learned judge-advocate erred in finding that there was some evidence upon which the court could find the appellant guilty. (vi) The finding was against the evidence and the weight of the evidence. (vii) The finding was unreasonable. (viii) The finding was inconsistent with other findings made by the court.

The appellant relied in substance on each of these grounds in his statutory petition. At the hearing he sought leave to add two further grounds namely: (ix) The learned judge-advocate misdirected the court as to the onus of proof. (x) The learned judge-advocate misdirected the court as to character evidence given on behalf of the accused. Neither of these grounds was relied upon in the appellant's statutory petition.

The appellant seeks leave to appeal against the conviction for neglect to the prejudice or the following grounds: (i) The learned judge-advocate erred in law in holding that the charge was not

(1980) 43 FLR 329 at 333

bad for duplicity. (ii) The learned judge-advocate erred in law in holding that he was bound by a direction or ruling of the Judge-Advocate General (Navy). (iii) The learned judge-advocate erred in law in holding that he had no power to direct an acquittal on the ground that the prosecution evidence was unreliable. (iv) The learned judge-advocate erred in directing the court that they could stop the case and acquit the accused at any time after the close of the prosecution case instead of directing an acquittal himself. (v) The learned judge-advocate erred in failing to direct an acquittal at the close of the prosecution case. (vi) The learned judge-advocate erred in finding that there was some evidence upon which the court could find the appellant guilty. (vii) There was no evidence or alternatively no satisfactory evidence as to: (a) the steps which were within the appellant's power; (b) that the appellant failed to take such steps as were within his power; (c) that the appellant well knew that thefts were being committed by members of the ship's company. (viii) The learned judge-advocate erred in finding that there was some evidence upon which the court could find the appellant guilty. (ix) The finding was against the evidence and the weight of the evidence.

The appellant relied in substance on each of these grounds in his statutory petition. At the hearing he sought leave to add the same two grounds as he sought leave to add in respect of the conviction for theft. No formal objection was offered by counsel for the Chief of Naval Staff and we granted leave to the appellant to add the two additional grounds in respect of each charge.

At the conclusion of the argument we invited counsel to address us on the question whether in relation to the neglect charge it fell to the learned judge-advocate to determine whether the alleged failure of the appellant to take any particular step or steps to prevent theft from Taiwanese fishermen was capable in law of constituting neglect to the prejudice of good order and naval discipline. In the course of addressing us on this matter counsel for the appellant applied to amend the notice of appeal to add a further ground of appeal against the conviction on the neglect charge namely: "(xii) That the learned judge-advocate erred in failing to determine or to direct the court whether the appellant's failure to take a particular step or steps was capable in law of constituting neglect to the prejudice of good order and naval discipline."

Counsel for the Chief of Naval Staff opposed the application on the ground that it raised new material which had not been canvassed at the court-martial or in the statutory petition or in the application for leave. We reserved our ruling on this application.

We are of the view that, despite these considerations, the application should be allowed because of the potential importance

(1980) 43 FLR 329 at 334

of the matter and its bearing on whether there was a substantial miscarriage of justice.

We turn now to deal with the grounds of appeal against the conviction for theft.

The first ground is that the learned judge-advocate erred in law in holding that he was bound by a direction or ruling of the Judge-Advocate General (Navy). We do not think this is a substantive ground of appeal. The substantive ground in this regard is whether the direction or ruling of the Judge-Advocate General (Navy) is correct. Having regard to the provisions concerning the Judge-Advocate General in reg. 20A of the Naval Forces Regulations (S.R. 1963, No. 145) it is plainly a function of the Judge-Advocate General of the Navy to give rulings about matters of naval law arising in court-martial proceedings which are binding on a judge-advocate. It would be prejudicial to the due administration of naval discipline if naval courts-martial dealt with matters of naval law and procedure in a differing and inconsistent manner in an area covered by a ruling of the Judge-Advocate General. Exceptional cases may occur where, for instance, the law dealt with by the Judge-Advocate General's ruling has been changed by statute or by judicial decision after the ruling has been given. In such a case, no doubt, the judge-advocate would, if necessary, draw the attention of the Judge-Advocate General to the apparent change in the law and seek a specific ruling. It is to be borne in mind that it is the judge-advocate who is bound by the ruling, not this Tribunal.

The second ground is that the learned judge-advocate erred in law in holding that he had no power to direct an acquittal on the ground that the prosecution evidence was unreliable. It is undoubtedly proper for a judge-advocate to conclude that there is no evidence to be submitted to the court in proof of any one or more of the essential elements of the offence charged. On that account he may rule that there is no case to answer and may direct the court, as a matter of law, to return a verdict of acquittal. It seems to us, however, that there is a fundamental distinction between that situation and one in which a judge-advocate undertakes the task of determining whether the prosecution evidence is sufficiently strong or reliable as to make it safe for the case to go on. Such a task involves assessing the credibility of witnesses and resolving conflicts between them. We think it would be usurping the function of the members of the court, as the fact-finding tribunal, for a judge-advocate to make an unfavourable evaluation of prosecution witnesses and then direct a verdict of acquittal: see R. v. Barker (1975) 65 Cr. App. R. 287, at p. 288. Whatever the practice may be in other jurisdictions, in our view, that is not the function of a judge-advocate when dealing with a submission

(1980) 43 FLR 329 at 335

based solely on the apparent unreliability of prosecution witnesses. We are therefore of opinion that this ground has not been made out.

The third ground complains that the learned judge-advocate erred in directing the court that they could stop the case and acquit the appellant at any time after the close of the prosecution case, instead of directing an acquittal himself. It seems to us that even if there is evidence fit to be submitted to the court, it is open to the judge-advocate, at any time after the close of the prosecution case, to inform the court that without hearing more, it is within their province to stop the case and to bring in a verdict of acquittal. An invitation to the court to adopt this course does not deny to its members their function of judging the facts. It is entirely a matter for the court to decide whether they will accept the advice or invitation of the judge-advocate to stop the case and to return a verdict of not guilty. What they choose to do is a matter wholly for them. In our opinion the learned judge-advocate fell into no error of law in directing the court in the manner complained of.

The fourth ground of appeal complains of error on the part of the learned judge-advocate in failing to direct an acquittal at the close of the prosecution case. To some extent, the matters raised by this ground have been covered by what we have said in dealing with the grounds already disposed of. Although there was evidence to go before the court which was capable of proving the essential elements of theft, it seems to us that in respect of dishonesty the nature of this evidence was almost entirely circumstantial. In our view it would have been appropriate for the learned judge-advocate, having attributed to that evidence its highest probative value, to have considered whether as a matter of law that evidence was capable of satisfying the well-recognized test namely that an inference of guilt was the only rational inference which could have been drawn from the evidence. If he formed the opinion that the evidence when presented to a court, properly instructed and exercising its functions as a tribunal of fact, was insufficient to found a verdict of guilty beyond reasonable doubt, then it would have been proper for him to stop the trial on that ground and to direct an acquittal. In our opinion, the direction of a verdict of acquittal in that situation would not involve the weighing of evidence. It would be a question of deciding whether the evidence is capable as a matter of law of supporting a conviction, in the same way as it falls to a judge-advocate to determine whether there is evidence with respect to an essential element of the offence charged which is capable of proving that element: see Plomp v. The Queen (1963) 110 C.L.R. 234, at p. 246. When we deal with the fifth ground it will appear that we are of the view that

(1980) 43 FLR 329 at 336

there was some evidence to go to the jury at the end of the prosecution case. We therefore do not think that the learned judge-advocate erred in failing to direct an acquittal at that stage.

The fifth ground is that the learned judge-advocate erred in finding that there was some evidence upon which the court could find the appellant guilty. The charge was laid under s. 1(1) of the Theft Act, 1968 (U.K.). The four elements of the offence are (1) dishonesty; (2) appropriation; (3) property belonging to another and (4) intention permanently to deprive the other of it. It was common ground that the appellant appropriated a quantity of fishing net which was the property of the Master of the Fu Yuan and that he intended permanently to deprive the Master of it. The only question in dispute was whether he did so dishonestly, a question involving the appellant's state of mind at the time of the appropriation. The only evidence from the appellant at the end of the prosecution case was the evidence of what he had said in his record of interview which had been admitted into evidence. He there claimed in substance that he had asked the Master if he could have a piece of net and the Master passed him a knife to cut the net.

We think the learned judge-advocate would have been justified at this stage of the trial in thinking that it was reasonably open to the members of the court to take the view that this was an unsworn self-serving statement and that it was reasonable to infer a dishonest state of mind on the part of the appellant from his overt appropriation of the net in all the circumstances, including the fact that he was a member of an armed boarding party from a naval patrol boat on board a foreign fishing vessel. Even on this basis we think it was a borderline case but we are not prepared to say that the learned judge-advocate was on the wrong side of the border.

It will be convenient to deal with the sixth, seventh and eighth grounds together, namely that the finding was against the evidence and the weight of the evidence, that it was unreasonable and that it was inconsistent with other findings made by the court.

We approach these grounds in accordance with what was said by the High Court in Raspor v. The Queen (1958) 99 C.L.R. 346: " ... it has long been considered a question of law--that is a question for the court [of appeal] whether there is reasonable evidence upon which a jury may reasonably find an issue in favour of the party on whom the burden of proof rests" [FN1] .

At the conclusion of the evidence the situation was as follows. The appellant had given sworn evidence and had been cross-examined. He said that the Master had approved of his taking the net. The evidence was that there was a considerable quantity

(1980) 43 FLR 329 at 337

of net aboard the Fu Yuan. The Master had not been called by the prosecution to negate the appellant's claim that the Master had given his approval to the appellant to take the net and had indeed assisted him to do so by handing him a knife to cut it. No explanation had been given as to why the Master had not been called. There was a considerable body of evidence from prosecution witnesses who were on H.M.A.S. Adroit and who saw the incident concerning the net. This evidence related to the apparent attitude and disposition of the Taiwanese crew of the Fu Yuan at the time the net was cut and removed. Most of this evidence was consistent with the appellant's version of what occurred. Some ot it tended to confirm his version. Some of it gave some support to the proposition that the appellant took the net dishonestly. We do not know, of course, what view the members of the court took of the appellant's credibility. Even if it was adverse it could not fill in gaps in the prosecution case.

We think, in this state of affairs, it was highly unlikely that a tribunal of fact, which understood and applied the onus of proof in a criminal case, could properly have failed to entertain a reasonable doubt as to whether the appellant had dishonestly appropriated the net.

Turning to the question of inconsistency, the appellant was also charged with theft of fishing floats and theft of fish from the Fu Yuan. On each of these charges he was acquitted. It seems to us that the finding of guilty on the charge of theft of the net was inconsistent with the finding of not guilty on the charges of theft of the fishing floats and the fish. It was common ground that the appellant had appropriated the floats and the fish, that they were the property of the Master of the Fu Yuan and that the appellant intended to deprive the Master permanently of them. The only contentious issue was whether the appellant appropriated these items dishonestly. The prosecution case was that they were appropriated at about the same time, in the same place and under the same circumstances as the fishing net. The appellant claimed that the Master had approved of his removing them from the Fu Yuan in the same way as he had approved of his taking the net. During the hearing the prosecuting officer, the judge-advocate and the appellant treated the three appropriations as being governed by the same considerations.

Counsel for the Chief of Naval Staff, while conceding that this was so, nevertheless argued that each request made by the appellant to the Master of the Fu Yuan was a separate one and made in respect of a separate item of property. He put it that the members of the court may well have given the appellant the benefit of the doubt in respect of the alleged theft of the floats and the fish but that they reasonably did not do so in respect of the net. The evidence was that there was a great deal of net on board the Fu Yuan. There was no evidence as to the value of 100 feet of

(1980) 43 FLR 329 at 338

net which the appellant took; nor was there any evidence that such a comparatively small amount would be seriously missed. We think that if the members of the court did distinguish between the items in this manner they can only have done so in the realm of speculation. Despite the able argument of counsel for the Chief of Naval Staff, we think that the findings of guilty in respect of the net and not guilty in respect of either the floats or the fish are not capable of any rational explanation. We think that the benefit of the doubt which the court gave to the appellant in respect of the floats and the fish should also have been given in respect of the fishing net.

In R. v. Drury (1971) 56 Cr. App. R. 104 the Court of Appeal (Criminal Division) said: "We reject as too bold the proposition that the simple fact that a jury has returned inconsistent verdicts, acquitting on some count or counts and convicting on others, means that in every such case this Court is obliged ex necessitate to quash the convictions. There are cases which, in our view, can arise when it would be proper for this Court to say that, notwithstanding the inconsistency, the conviction or convictions must stand. It all depends upon the facts of the case. Those of the present case are indeed puzzling, and we are totally at a loss to understand how the jury could have arrived at what we must be permitted to describe as their wholly incomprehensible verdicts" [FN2] . After examining the facts the court finally concluded: "This is one of those cases where the verdicts of the jury on different counts, depending as they do upon the same basic ingredients, are so violently at odds that we see no alternative but to hold that the convictions on the second and third counts, notwithstanding the cogency of the evidence to which we have referred, must in the light of the acquittal on the first count be regarded as unsafe and unsatisfactory" [FN3] .

In R. v. Durante [1972] 1 W.L.R. 1612 the Court of Appeal (Criminal Division) held that an appellant who seeks to obtain the quashing of a conviction on the ground that the verdict of guilty on a count on which he was convicted was inconsistent with the verdict of not guilty on another count has a burden cast upon him to show not merely that the verdicts on the two counts are inconsistent, but that they are so inconsistent as to call for interference by an appellate court. Adopting this test, for the reasons we have set out above, we think that the appellant in this case has discharged the burden of showing that the inconsistent verdicts call for the interference of this Tribunal.

Turning to the ninth ground of appeal which complains of misdirection by the learned judge-advocate as to the onus of proof, it must be acknowledged that in opening and again in

(1980) 43 FLR 329 at 339

concluding his summing up, the learned judge-advocate told the members of the court, in impeccable and emphatic terms, that the onus of proof rested throughout upon the prosecution and that they must be satisfied beyond reasonable doubt of the various elements of the charge against the appellant. But, as it seems to us, there were passages in the summing up which were calculated to give the members of the court the impression that some onus or obligation rested on the appellant to raise in their minds a doubt as to the honesty of his assertion that the Master of the Fu Yuan had consented to his taking the net or as to the honesty of his belief that the Master had so consented. In this connexion, there are two passages, in particular, of the summing up in which the learned judge-advocate addressed the minds of the members of the court to the issue of a reasonable doubt about the mental element of dishonesty. He said: "That doubt might he raised as I have indicated because you consider that the accused had an honest belief that the persons to whom the property belonged had actually consented to the appropriation. Or, that the accused appropriated the property and in the honest belief that that person would have consented if he had known of the appropriation and the circumstances surrounding it." Again he said: " ... one only manner of raising that doubt in your mind is for the accused to raise matters whether during the prosecution case or his own which would indicate to you that the accused honestly held one or other beliefs to which I have referred you."

Quite apart from any question whether the expressions there used by the learned judge-advocate might have created the impression of some onus or obligation being cast upon the appellant to raise a reasonable doubt as to the mental element of dishonesty, it seems to us that if the members of the court thought or concluded either that the Master of the Fu Yuan had consented to the appellant taking the net or that the appellant honestly believed that he had the Master's consent to his taking the net, then that of itself would positively negate the existence of the element of dishonesty which was essential to the charge. This direction tended to equate in the minds of the court the concept of reasonable doubt with positive innocence.

But, at all events, we think that the impugned expressions of the learned judge-advocate might be heard by members of the court as reasonably creating the impression suggested by counsel for the appellant.

Moreover, in directing the jury as to the bearing of the appellant's good character on the general issue of whether the accused was guilty or not guilty, the learned judge-advocate clearly fell into error when he told the members of the court that they were required to take the character evidence "into account in determining whether it was more likely than not that the accused committed the offences with which he has been charged".

(1980) 43 FLR 329 at 340

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It was conceded by counsel for the respondent, and correctly so in our view, that the direction of the learned judge-advocate with respect to the bearing of the evidence of good character on the issue of the appellant's guilt or innocence was clearly wrong. The matters to which we have adverted lead us to think that in their deliberations the members of the court may not have applied the proper onus of proof.

We now turn to deal with the tenth ground of appeal, namely that the learned judge-advocate misdirected the court as to character evidence given on behalf of the accused.

Of the elements which constitute the offence of theft, only the element of dishonesty was in dispute. The question of dishonesty is one which relates to an accused's state of mind, and is to be answered subjectively.

In Re Tinkler's Appeal Unreported (Courts-Martial Appeal Tribunal, 22nd February, 1974) this Tribunal said: "Where, upon a criminal charge, a subjective element is relevant to be taken into account, the courts admit evidence of what is described as character as touching upon the question of guilt or innocence. The relevance of such evidence is that if particular conduct charged against an accused person is sought to be shown to be accompanied by a subjective element, then in deciding beyond reasonable doubt whether that element was present, regard may be had to past conduct as touching upon the likelihood of its presence in the events which form the subject of the charge. Halsbury (3rd ed.), vol. 10, p. 446, states the proposition: `Evidence of the general reputation of the defendant for good character is relevant to the case for the defence if such evidence is applicable to the particular nature of the charge.' Where a charge involves elements of intentional violence, then it may well be only of marginal relevance to give evidence of a reputation for integrity. Conversely, where the charge involves elements of dishonesty, then evidence of good character in other respects such as, for example, peaceable disposition, may well have little relevance. The concept of good character for the purpose of determining the relevance of character evidence will vary according to the particular charge which a court is called upon to consider."

In the present case, evidence of character was adduced attesting to the appellant's honesty, integrity, and respect for the Service of which he is a member. In our opinion, this evidence was specially relevant to the case for the defence because of the nature of the charge of theft, and, in particular, the element of dishonesty.

In R. v. Thompson [1966] Q.W.N. 47 the appellant was convicted on a charge of stealing a mare and a filly. The fulcrum of the defence

(1980) 43 FLR 329 at 341

was an honest claim of right to the property in the horses without intention to defraud, a defence arising under s. 22 of the Criminal Code (Q.). Wanstall J. (as he then was) said: "It is my view that the jury should have been told of the vital importance of the issue as to whether the accused was honest in asserting his claim of right and that they could have regard to the evidence of his previous good character in assessing the honesty of that claim. I think also that they should have been directed that if they were in some doubt as to the honesty of the accused's claim of right the evidence of good character might be regarded by them as a factor which, if they saw fit, could tip the scales in the accused's favour" [FN4] .

In the present case, the learned judge-advocate directed the court on the use to be made of character evidence as follows: "The law requires that you take into account character evidence on the question of whether or not the accused Potter is guilty of the offences with which he has been charged. What weight you give that character evidence is a matter for you, but you are required to take it into account in determining whether it is more likely than not that the accused Potter committed the offences with which he has been charged. In that respect, as you will appreciate, the evidence given by the character witnesses as to his honesty and integrity would be relevant to the three stealing charges preferred against him. Equally, the character evidence given as to the manner in which he performed his duties as a sailor would be relevant to the last charge preferred against him, the service charge. You are required to take these matters into account: the weight you give them and give it is a matter for you."

Leaving aside the misdirection as to standard of proof, the above direction as to character may have been adequate in an appropriate case. However, where the subjective element of dishonesty was the sole issue in dispute, and where evidence of good character was so clearly relevant to that issue, we are of the opinion that a proper direction would have stressed the specific issue of credibility rather than the general question of guilt.

In dealing with the fifth, sixth and seventh grounds, we have indicated that we have a feeling of considerable unease as to how the court could have been satisfied beyond reasonable doubt that the appellant was guilty. On the eighth ground we think there was an inconsistency in the findings which raises a doubt as to whether the court properly applied the burden of proof. On the ninth ground we have said that despite certain impeccable charges as to the onus of proof there were passages in the summing up which could possibly have led the court astray. On the tenth ground we do not think that the directions as to the character evidence were satisfactory. We are of the view that as a

(1980) 43 FLR 329 at 342

result of these matters a substantial miscarriage of justice occurred. We consequently allow the appeal against the conviction on the theft charge and order that it be quashed.

We turn now to consider the appeal on the neglect charge, the substance of which we have set out above.

The first ground is that the learned judge-advocate erred in law in holding that the charge was not bad for duplicity. The learned judge-advocate in giving his ruling on this matter said: " ... the charge alleges as I construe it, and as I shall direct the court, that having become aware between 1st April, 1978, and 30th November, 1978, that members of the ship's company were committing theft, he failed between those dates and after he had become so aware to then take such steps as were within his power to prevent further acts of theft. As so framed I am of the opinion that the charge is not bad for duplicity." We agree with this view of the learned judge-advocate; and counsel for the appellant did not press this ground. We reject it.

It is convenient to deal with the second, third and fourth grounds together. They correspond with the first, second and third grounds on the theft charge and we repeat what we have said above in dealing with those grounds.

We deal with the fifth and sixth grounds together, namely the failure to direct an acquittal at the close of the prosecution case and the finding that there was some evidence on which the court could find the appellant guilty.

At the end of the prosecution case there was evidence from which the court could conclude that the appellant knew that members of the ship's company of H.M.A.S. Adroit were committing acts of theft from Taiwanese fishermen. There was evidence that another petty officer, who was then the coxswain on board H.M.A.S. Adroit, had reported thefts to the naval officer in charge of Northern Australia when the ship returned to Darwin. This demonstrated, if demonstration were necessary, that it would have been within the power of the appellant to do likewise. It was open to the members of the court to take the view that, if the appellant had reported the thefts or some of them which occurred in the Gulf of Carpentaria in May 1978, the thefts which were committed by Petty Officer Gray on 8th November, 1978, in waters off Darwin would not have occurred, or would have been less likely to occur; and that consequently the appellant's failure to report was a neglect to the prejudice of good order and naval discipline. For these reasons we do not consider that the learned judge-advocate erred in failing to direct an acquittal at the close of the prosecution case or in finding that there was some evidence on which the court could find the appellant guilty.

It will be convenient, hereafter, to deal with the seventh and the twelfth grounds together. Because of the view that we take of them we do not think it necessary to deal with the ninth ground.

(1980) 43 FLR 329 at 343

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The eighth ground is merely a repetition of the sixth ground, with which we have already dealt.

The tenth ground is that the learned judge-advocate misdirected the court as to the onus of proof. In respect of the neglect charge we do not consider that the learned judge-advocate was in error in this regard and we reject this ground.

The eleventh ground is that the learned judge-advocate misdirected the court as to character evidence given on behalf of the appellant. In respect of the neglect charge we do not consider there was any such misdirection and we reject this ground.

The seventh ground is that there was no evidence or satisfactory evidence as to the steps which were within the appellant's power or that the appellant failed to take such steps or that the appellant well knew that thefts were being committed by members of the ship's company. As to the latter matter, we think there was evidence from which the members of the court could conclude that thefts were being committed at least by Petty Officer Gray, an engineer on board H.M.A.S. Adroit, and that the appellant was aware of them.

In our view there was evidence from which the members of the court could have concluded that one step which was within the power of the appellant to take in order to prevent future theft was to have reported past thefts to the naval officer in charge of Northern Australia; and it was common ground that the appellant had not done so. We do not think, however, that evidence was necessary as to each step which might have been taken; but we do think that it was necessary for the prosecuting officer to enunciate to the court the steps which he submitted were within the power of the appellant and which he should have taken. Evidence would be necessary to establish that he did not take any particular step. We are of this view because of the division of function in this area between the judge-advocate and the court. We take the following statement from the Manual of Naval Law (ch. 8, 0837B, par. 2): "Whether an act, neglect or disorder can be prejudicial to good order and naval discipline is a question of law. Whether such act, etc., was actually prejudicial in the circumstances is a question of fact. So where a charge under this section is being tried by court-martial it is the function of the judge-advocate to advise the court whether the act, etc., alleged could or could not possibly be considered prejudicial to good order and naval discipline; unless he advises that it could not, it is for the court to find as a matter of fact whether, in all the circumstances, it was prejudicial." We think this statement correctly sets out the position and it has frequently been accepted by this Tribunal, cf. Re Wallace's Appeal (1970) 18 F.L.R. 220.

This brings us to the twelfth ground which is as follows: "(xii) That the learned judge-advocate erred in failing to determine or

(1980) 43 FLR 329 at 344

to direct the court whether the appellant's failure to take a particular step or steps was capable in law of constituting neglect to the prejudice of good order and naval discipline."

We do not think that the learned judge-advocate performed the task which he was required to perform in respect of this charge. He stated that he did not himself know what the steps were which the appellant could have taken and that this was a matter for the members of the court to determine in the light of their general Service knowledge. This meant that the members of the court were at large in determining what the steps were. We think that it was necessary for the learned judge-advocate to be apprised of each step on which the prosecution relied. Unless he was so apprised he was not in a position to decide whether the failure to take that step could as a matter of law be prejudicial to good order and naval discipline. We have no way of knowing what steps were considered by the members of the court. We cannot assume that they restricted themselves to any particular steps because the learned judge-advocate invited them to make their own choice in the light of their Service experience. Consequently we cannot know whether they restricted themselves to matters which the learned judge-advocate would have advised them were capable in law of being prejudicial to good order and naval discipline. For these reasons we uphold the twelfth ground.

Because of this irregularity we are unable to conclude that no substantial miscarriage of justice has occurred--see s. 23(2) of the Courts-Martial Appeals Act 1955 (Cth).

We therefore allow the appeal against the conviction on the neglect charge and order that it be quashed.

We are indebted to counsel for their assistance.

Appeals allowed and conviction quashed.

Solicitors for the appellant: Lynn & Isenberg.

Solicitors for the Chief of Naval Staff: B. J. O'Donovan (Commonwealth Crown Solicitor).

P. F. MCDERMOTT

[FN1] (1958) 99 C.L.R., at p. 350.

[FN2] (1971) 56 Cr. App. R., at p. 105.

[FN3] (1971) 56 Cr. App. R., at p. 114.

[FN4] [1966] Q.W.N., at p. 73.

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