[COURTS-MARTIAL APPEAL TRIBUNAL]
Re SCHNEIDER'S APPEAL
Courts-Martial Appeal Tribunal: Macfarlan Q.C., President, Wright and Davoren, Members
SYDNEY, 24th, 25th July; 31st October 1958
8 FLR 314
Defence -- Discipline of members of forces -- Courts-Martial Appeal Tribunal -- Leave to appeal -- Whether discharged member may seek leave -- Legal aid -- Procedure and evidence -- Necessity for applicant to show circumstances -- Functions of Tribunal -- Whether evidence will be received -- Courts-Martial Appeals Act 1955, ss. 20, 31 -- Courts-Martial Appeals Regulations, reg. 11(3).
Defence -- Discipline of members of forces -- Offences -- Disobedience of lawful command -- What is a command -- Air Force Act (Imp.), s. 9(1) -- Air Force Act 1923-1956, s. 5.
Defence -- Discipline of members of forces -- Courts-martial -- Practice -- Desirability of presenting different groups of charges on separate charge sheets -- Undesirability of cross-examination by judge-advocate.
(1958) 8 FLR 314 at 315
By s. 20(1) of the Courts-Martial Appeals Act 1955, a person convicted by a court-martial may, with the leave of the Courts-Martial Appeal Tribunal, appeal to the Tribunal against his conviction.
Held, that a discharged member of the forces may seek leave to appeal under s. 20 of the Act.
Regulation 11 of the Courts-Martial Appeals Regulations provides, by sub-reg. (1), that an appellant may apply to the Courts-Martial Appeal Tribunal for approval to the granting of legal aid upon, by sub-reg. (2), application accompanied by a statutory declaration setting out such information as is necessary to enable the Tribunal to determine whether his means are insufficient to enable him to prosecute his appeal and, by sub-reg. (3), if the Tribunal is satisfied that the appellant has insufficient means to enable him to prosecute his appeal and that it appears desirable in the interests of justice that legal aid should be granted, the Tribunal may approve the granting of legal aid.
Held, that the provisions of reg. 11(3) impose upon the Tribunal a duty to satisfy itself affirmatively that an applicant for legal aid has insufficient means to prosecute his appeal. In general, this requirement will not be satisfied by a simple statement that the applicant has no means. The circumstances of the applicant, so far as they relate to his earnings (actual and prospective), his assets (including debts owing) and any opportunities that may be available to him of obtaining the necessary means should be stated in the statutory declaration and the Tribunal will not readily allow oral evidence of them to be given.
By s. 31 of the Courts-Martial Appeals Act 1955, the Courts-Martial Appeal Tribunal may receive evidence.
Held: (1) It is not the function of the Tribunal to try facts. The function of the Tribunal is to see (i) that the finding of the court-martial was possible in law; (ii) that there was evidence to support the finding; (iii) that, upon a question of law, the law was correctly stated by the judge-advocate and (iv) that the judge-advocate's summing-up was adequate, that is, that it fairly stated the facts for the prosecution, the nature of the defence and the substance of the evidence for the defence.
(2) The Tribunal will receive new evidence only in exceptional circumstances. In general, the nature and apparent credibility of the evidence must appear by statutory declaration; it must appear that the evidence, if believed, would be likely to affect the finding of the court-martial and a satisfactory explanation must be given of the failure to call the evidence before the court-martial.
R. v. Linzee, [1956] 3 All E.R. 980, followed.
Section 9(1) of the Air Force Act (Imp.), applicable to members of the Royal Australian Air Force by s. 5 of the Air Force Act 1923-1956, provides, "Every person subject to this Act who commits the following offence; that is to say, Disobeys in such manner as to show a wilful defiance of authority any lawful command given personally by his superior officer in the execution of his office, whether the same is given orally, or in writing, or by signal, or otherwise, shall, on conviction by court-martial, be liable to suffer" punishment.
Held, that words alleged to constitute a command must always be examined in the light of the circumstances in which they were used and this examination may show clearly enough that words used, although not
(1958) 8 FLR 314 at 316
otherwise supportable as a command, were intended by the speaker to be a command and were so understood by the person to whom they were spoken.
In court-martial proceedings different groups of charges should be presented on separate charge sheets.
In court-martial proceedings the judge-advocate should not cross-examine witnesses.
Jones v. National Coal Board, [1957] 2 Q.B. 55, referred to.
COURT-MARTIAL APPEAL.
The appellant appealed under s. 20(1) of the Courts-Martial Appeals Act 1955 to the Courts-Martial Appeal Tribunal against his conviction by a court-martial of offences against the Air Force Act (Imp.), applicable to members of the Royal Australian Air Force by s. 5 of the Air Force Act 1923-1956. The material facts appear from the decision of the Tribunal.
C. Kilduff, for the appellant.
R. G. Reynolds, for the respondent.
Cur adv vult
31 October 1958
The Tribunal delivered the following decision:
This appeal has been instituted by Mr. Peter James Schneider pursuant to leave granted by the Tribunal on 3rd February, 1958. The appeal was argued on 24th and 25th July, when judgment was reserved. Before referring to the questions raised in the appeal we think it is desirable to refer to certain rulings given by the Tribunal on preliminary submissions that were made.
At the time when the application for leave to appeal was made, the applicant was an Aircraftman First Class in the Royal Australian Air Force, but after he had served his sentence and before that application came on to be heard he had been discharged. Notwithstanding that the applicant had by his discharge ceased to be a member of the Royal Australian Air Force we held that he still answered the description of a person who had been convicted by a court-martial (see the Courts-Martial Appeals Act 1955, s. 20) and that his application was one that it was competent for us to entertain.
Simultaneously with his application for leave to appeal the applicant also applied for approval for the granting of legal aid. The application for legal aid was supported by a statutory declaration made by the applicant stating the facts upon which he relied. The material parts of this declaration stated: "I have insufficient funds to meet legal expenses for this case and do hereby apply for legal aid under s. 11 of the Courts-Martial Appeals Act. My reasons being I have been imprisoned for five months at No. 1 M.C.E. Holsworthy without pay and the moneys that I had in reserve have been used up in commitments arising from such imprisonment."
(1958) 8 FLR 314 at 317
Upon the hearing of this appeal the Tribunal took the view that these facts did not enable it to say that it was, in the words of reg. 11(3), "satisfied that the appellant has insufficient means to enable him to prosecute his appeal", and thereupon granted him leave to supplement the facts stated in the declaration by oral evidence given on oath. The Tribunal being satisfied upon the whole of this evidence that the applicant was not possessed of any means thereupon approved the grant of legal aid to prosecute his application for leave to appeal, and, if leave were granted, to prosecute his appeal. With respect to an application for legal aid the Tribunal is of the opinion that the provisions of reg. 11(3) impose upon the Tribunal a duty to be satisfied affirmatively that an applicant has insufficient means to prosecute his appeal. In general, such a requirement will not be satisfied by a simple statement that the applicant has no means. It is neither possible nor desirable to attempt a complete statement of the facts which should be placed before the Tribunal in every case, but it may be sufficient to say that the facts disclosed should show the circumstances of the applicant, so far as they relate to his earnings (actual and prospective) his assets (including debts owing), and any opportunities that may be available to him of obtaining the necessary means. All these circumstances should be stated in the statutory declaration and it should not be assumed that the Tribunal will readily allow oral evidence of them to be given.
Upon the hearing of the application for leave to appeal, counsel for the applicant submitted that his application should succeed on either one of two grounds. The second ground was that the record of the proceedings before the court-martial disclosed on its face matters both of fact and law which made it proper that the convictions should be set aside. As to this ground it is sufficient to say that the Tribunal was of the opinion that the applicant had shown an arguable case, and leave to appeal was accordingly granted.
It is necessary, however, to deal with the submissions made in support of the first ground. Counsel for the applicant drew attention to the provisions of s. 31 of the Courts-Martial Appeals Act and sought leave to call new evidence. As we understand it the purpose of the proposed new evidence was twofold. In the first place it was said that it would disclose serious breaches of the Rules of Procedure by the station commander and certain other officers whose duty it was to assist the applicant in the preparation of his defence at the court-martial. Counsel then referred us to a number of the Rules of Procedure and submitted that if he established these facts we ought to set aside the conviction. It was said that we should do this because if the provisions of the Rules of Procedure had been properly applied a finding of acquittal might have been made by the court-martial.
(1958) 8 FLR 314 at 318
Counsel for the applicant did not produce to the Tribunal any written record of the evidence that it was alleged could be given on these points by any particular individual, but contented himself with making statements of the facts from the Bar table. Later counsel did inform the Tribunal of the names of a large number of persons whom, so he was instructed, would probably be able to prove the facts, and in fairness it should also be recorded that at a much later stage he applied to call the applicant himself to give oral evidence.
The second purpose for which it was desired to call new evidence was, as we understand, directed to establish a greater weight of evidence in support of the case which the defence made in answer to the first charge at the trial.
As the Tribunal was of the opinion that a case for granting leave to appeal had been made out on other grounds, no ruling was then given upon the application to call new evidence, but at the conclusion of the leave application the Tribunal stated it should not be assumed from the grant of leave to appeal that new evidence would be admitted upon the hearing of the appeal. The Tribunal further stated that if new evidence was desired to be given then, a proper application would need to be made and that full argument upon its admissibility would be heard.
Upon the appeal coming on to be heard counsel for the appellant applied for an order that a member of the Tribunal be appointed to hear the evidence of the appellant himself and certain airmen whose names (and approximate addresses) were stated orally. Neither the appellant nor any of the airmen named was present at the time, nor was the application supported by any written statement of the evidence it was believed they could give, but the Tribunal is satisfied that counsel, whose instructions placed him in a difficult position, submitted everything in support of the application that could be argued. He informed the Tribunal that the new evidence related to the first charge upon which the appellant had called airmen witnesses at the trial and that the proposed new evidence was no different in substance from the evidence those witnesses then gave.
The Tribunal was of the opinion that no sufficient detail of the proposed new evidence had been shown and that such vague indication of its nature as had been given raised no probability that it would have influenced the result of the trial. The application was accordingly refused. In view, however, of the general importance of the point, we have thought it desirable to indicate briefly the views we have formed on the duty of the Tribunal to receive new evidence, although at the same time we think it right to observe that exceptional cases may well occur which will fall to be decided in accordance with the requirements of justice in each particular case.
(1958) 8 FLR 314 at 319
The function of the Courts-Martial Appeal Court in England has been described by Lord Goddard C.J. in the following words: "We cannot try anybody; we do not try anybody. We sit merely as a court of appeal, and as a court of appeal our duties are these. First of all, we have to see that the finding is one that is possible in law. Then we have to see that there was evidence before the court-martial which supported their finding. Then, if any question of law arose, we have to see whether or not the law has been correctly laid down by the judge-advocate, who nowadays is a qualified lawyer in every case before a general court-martial, I think, and in most cases before a district court-martial. We have to see that the summing-up was adequate and, as we have repeatedly said in the Court of Criminal Appeal, the summing-up is adequate if it states fairly the facts for the prosecution and states fairly the nature and evidence of the defence. It is not necessary to go into every point which the defence has raised. It is not necessary to go into the evidence of every witness. The court has to be reminded of the nature of the defence, and it is desirable that they should be reminded in substance, but not in detail, of the evidence given for the defence. It is not our function to re-try the case because we do not see the witnesses, and no court of appeal does re-try the case in the sense of substituting themselves either for a jury in a civil case or for a court-martial in the case of one of the services" (R. v. Linzee [1956] 3 All E.R. 980, at pp. 981, 982).
We think that these words also describe the function of the Tribunal under the Courts-Martial Appeals Act 1955. Although provision is made by which the Tribunal is empowered to receive new evidence or to appoint a member or some other person to take evidence these powers will only be exercised in an exceptional case.
In general we think that before an application to hear or take new evidence can succeed it will be necessary for the applicant to satisfy the Tribunal on three points. The first of these points is that it must appear what the evidence is that the proposed witness can give, and that the evidence, is apparently credible. The most satisfactory way, though not necessarily the only way, in which this can be done is for the witness to make a statutory declaration in which he declares the truth of facts which are said to be relevant to the issues raised. A statement made at the Bar table of the general nature of the evidence that a witness may be able to give, as was done in this case, will not suffice. Secondly it must be shown that the evidence, if believed, is such that it would be likely to affect the finding of the court-martial, and thirdly, a satisfactory explanation must be offered for the failure to call the evidence at the trial.
As has already appeared, counsel, on the application for leave, was instructed to state that evidence was available to prove serious breaches of the Rules of Procedure by officers at R.A.A.F. station
(1958) 8 FLR 314 at 320
Darwin. We think it right to say that this submission was not pursued upon the hearing of the appeal. The record of the proceedings at the District Court-Martial shows that at the commencement of the trial the appellant was asked the following question by the President of the Court: "Do you wish to apply for an adjournment on the ground that any of the rules relating to procedure before trial have not been complied with and that you have been prejudiced thereby, or on the ground that you have not had sufficient opportunity to prepare your defence?" and that the appellant replied, "No, Sir". In the circumstances of this case we find no difficulty in concluding that the statements on this point which counsel was instructed to make are without substance or foundation. It would not, however, be inappropriate to observe that in our view the Rules of Procedure impose a particular burden upon commanding officers to insure that all ranks who are assigned duties in connexion with the preparation of a trial by court-martial should observe both in the letter and the spirit the provisions of the Rules of Procedure.
It is now necessary to consider the actual charges upon which the appellant was tried. Although these charges related to offences alleged to have been committed on different dates and at different places, they were all included in the one charge sheet and they were all tried together. No application, in accordance with Rule of Procedure 62 (E), was made for a separate trial of any of the charges. The charges were eleven in number and were as follows:
First Charge-- Air Force Act, s. 9(1)--Disobeying in such a manner as to show a wilful defiance of authority, a lawful command given personally by his superior officer in the execution of his office in that he at or about 2245 hours on 6th June, 1957, at St. Mary's Dance Hall, Darwin, when personally ordered to leave by A31613 Warrant Officer Holly, J.T. who said "this is an order, you had better leave here", refused to do so saying, "I am not going" or words to that effect.
Second Charge--Air Force Act, s. 8(2)--Using threatening language to his superior officer in that he at or about 2245 hours on 6th June, 1957, at St. Mary's Dance Hall, Darwin, when placed under close arrest by No. A31613 Warrant Officer Holly, J.T. who said "you are under close arrest" replied "try and take", or words to that effect.
Third Charge--Air Force Act, s. 10(3)--Resisting an escort whose duty it was to have him in charge in that he at or about 2300 hours on 6th June, 1957, at St. Mary's Dance Hall, Darwin, when under close arrest resisted his escort, A31613 Warrant Officer Holly, J.T. by struggling with him.
Fourth Charge--Air Force Act, s. 22--When in arrest, escaping, in that he at approximately 2300 hours on 6th June, 1957, at
(1958) 8 FLR 314 at 321
St. Mary's Dance Hall, Darwin, whilst in the custody of A31613 Warrant Officer Holly, J.T. did escape.
Fifth Charge--Air Force Act, s. 22--When in arrest, escaping, in that he on 15th June, 1957, whilst under open arrest at R.A.A.F. Darwin, escaped.
Sixth Charge--Air Force Act, s. 40--Conduct to the prejudice of good order and Air Force discipline in that he on 17th May, 1957, or thereabouts, at Darwin was improperly in possession of one cap service dress, three airmen's gilt cap badges, one pair drab trousers, one drab shirt, one pair drab sox, two airmen's R.A.A.F. slides, three L.A.C. badges of rank, two and one half pairs black sox and one pillow, the property of the public.
Seventh Charge--Air Force Act, s. 40--Conduct to the prejudice of good order and Air Force discipline in that he on 17th May, 1957, or thereabouts at Darwin did sell to a civilian for the sum of seven pounds one cap service dress, three airmen's gilt cap badges, one pair drab trousers, one drab shirt, one pair drab sox, two airmen's R.A.A.F. slides, three L.A.C. badges of rank, two and one half pairs black sox and one pillow, the property of the public.
Eighth Charge--Air Force Act, s. 40--Conduct to the prejudice of good order and Air Force discipline in that he on 19th May, 1957, or thereabouts, at Darwin did give an American sailor a R.A.A.F. uniform, two toothbrushes, two black combs, approximately one dozen gilt cap badges and two towels, the property of the public.
Ninth Charge--Air Force Act, s. 40--Conduct to the prejudice of good order and Air Force discipline in that he on 21st May, 1957, at Darwin was improperly in possession of ten warrant officer's eagle and crown badges, two service towels, one suit of service pyjamas, four airmen's cap badges, four white sheets, one pillow slip, one pair drab stockings, two service black ties, three white handkerchiefs, three pairs black sox, the property of the public.
Tenth Charge--Air Force Act, s. 29--Wilfully giving false evidence when examined on oath before a court authorized by the Air Force Act to administer an oath in that he on 5th June, 1957, at No. 5 Airfield Construction Squadron, R.A.A.F. Darwin, when examined on oath before a Court of Enquiry stated, "I have not sold any R.A.A.F. equipment", well knowing that statement to be false.
Eleventh Charge--Air Force Act, s. 40--Conduct to the prejudice of good order and Air Force discipline in that he on or about 29th May, 1957, at No. 5 Airfield Construction Squadron, R.A.A.F. Darwin, did strike No. A42611 Aircraftman Smith, J.J. of No. 5 Airfield Construction Squadron, in the face.
At the conclusion of the case for the prosecution the defending officer submitted that a prima facie case had not been made out, and this submission was upheld with respect to the second charge,
(1958) 8 FLR 314 at 322
the fourth charge, the sixth charge, the ninth charge and the tenth charge. The appellant was accordingly acquitted on each of those charges. The remaining charges, if classified according to the dates on which the offences were alleged to have been committed, fall into distinct groups and it will be convenient to consider them in this grouping. On all these charges the appellant was convicted.
The first group consists of the first and third charges and the events surrounding the commission of these alleged offences occurred on the night of 6th June, 1957, at a place known as St. Mary's Dance Hall at Darwin. The first charge was laid under s. 9(1) of the Air Force Act (Imp.) and charged disobedience in such a manner as to show a wilful defiance of authority to a lawful command given personally by a superior officer in the execution of his office. The particulars of the offence which were alleged in explanation of the charge were that the appellant, when personally ordered by No. A31613 Warrant Officer Holly J. T. to leave the St. Mary's Dance Hall, Darwin, said "I am not going" or words to that effect. According to the charge sheet the actual words in which the order was said to have been given were, "This is an order you had better leave here", and the only argument of substance on the hearing of the appeal was that these words were incapable of constituting an order. A perusal of the record of proceedings shows that it was quite open on the evidence for the court-martial to find that these words, or very similar words, were spoken by Warrant Officer Holly to the appellant. The only question, argued for the appellant was whether such words were capable of constituting a lawful command. It is therefore necessary, we think, to consider the circumstances in which they were spoken and for this purpose a reference in the first place to the evidence of Warrant Officer Holly will be made.
Warrant Officer Holly said that at about 2240 hours on 6th June, 1957, in company with Corporal Love he visited St. Mary's Dance Palais in Smith Street, Darwin. Some time afterwards he noticed a man, whom he thought was an airman, and who was afterwards identified as A.C. Summerfield, staggering around the hall. The warrant officer thought that he was definitely drunk and that he was making a nuisance of himself to other persons present. A.C. Summerfield then left the dance hall and Warrant Officer Holly and Corporal Love (both of whom were service policemen) followed him outside. Upon arriving outside the warrant officer noticed the appellant move away from the vicinity of a car. The witness said to the appellant, "Is that your car" to which the appellant replied, "No". He then walked round to the other side of the car where he had seen the appellant standing, and noticed what he believed to be urine marks on the side of the car and on the ground. He then said to the appellant, "What are you doing here?" to which the appellant replied, "You service police are always hounding
(1958) 8 FLR 314 at 323
me". The warrant officer then said, "I have not been hounding you" and the appellant said, "No but the others have". The evidence given by Warrant Officer Holly then proceeds: "I said, `What are you doing here?' He said, `I am looking for a bottle of beer which I left here'. I said, `You are not supposed to have beer around here'. I then turned away from A.C. Schneider and noticed that a man whom I know now as an airman, lying flat on his face in some tall grass which is outside the fence of the St. Mary's Dance Hall. In company with Corporal Love I went over to have a look at this man. He was lying face down in vomit and I took him by the shoulder and turned him over on to his back. I said to him, `Are you an airman?' and he muttered something which I construed as `Yes'. Assisted by Corporal Love I then got this airman on his feet. He stood on his feet by supporting himself with two hands on the fence and started to vomit again. I said to Corporal Love, `Keep an eye on him for a moment'. I then left Corpora1 Love and entered the dance hall and spoke to Father Flynn. After the conversation with Father Flynn I then resumed outside the dance hall to where Corporal Love was standing with this other airman. Corporal Love was surrounded by several other men, some of whom I recognized as airmen. Included amongst the company was A.C. Schneider. He said to me, `What charges have you got against this man?' I replied, `It is no concern of yours'. He said, `What charges have you got against him, you are not taking him'. I said to him, `I suggest that you leave here'. I then turned to Corporal Love and instructed Corporal Love to take this other airman to the jeep which was situated some distance from the dance hall. A.C. Schneider said, `You are not taking him'. I said `I suggest you leave here'. He said `I am not going and you are not taking him'. I said to A.C. Schneider, `This is an order, I suggest you leave here'. He replied, `I am not going and you are not taking him'. I then said to A.C. Schneider, `You are under arrest'. He said, `I am not coming'. He then walked away from me into the St. Mary's Dance Palais."
The appellant himself did not give evidence at the trial but other witnesses gave accounts of the incident which although not by any means so complete did not involve any substantial variation of that given by Warrant Officer Holly.
The argument submitted on behalf of the appellant was that the words used amounted to no more than a piece of advice which the appellant was at liberty to accept or reject as he wished. It was said that for any given set of words to constitute a command, they must be expressed in words of command and not otherwise. In particular it was said that the words in question conveyed advice or a suggestion only and that words of that description can never constitute a command. It was further submitted that to preface words of suggestion by words such as "this is an order" does not convert what is really a suggestion into a command.
(1958) 8 FLR 314 at 324
There is no doubt that for the offence described in s. 9(1) to be committed a command must have been given, but we think that it is carrying the requirements of the law too far to say that the use of the word "suggest" or "advise" will always and in all circumstances prevent what is said from amounting to a command. There is no doubt that the most satisfactory course for a superior officer who intends to give a command to adopt is to use the language of direct command, and to avoid all words which are capable of another interpretation. However although we think that such a course is the most satisfactory we are not prepared to accept the submission made on behalf of the appellant in this case. We think that in any particular case words alleged to constitute a command must always be examined in the light of the circumstances in which they are used, and that this examination may show clearly enough that a set of words not otherwise supportable as a command was intended by the speaker to be a command, and was so understood by a person to whom they were spoken.
A consideration of the evidence in this case satisfies us that it was quite open to the court-martial to hold that Warrant Officer Holly intended to give a command and that what he said was clearly understood as such by the appellant. We think that the advice tendered by the judge-advocate on this point was adequate and sufficient and we see no ground for disturbing the conviction of the first charge.
The third charge was that of resisting an escort (Air Force Act, s. 10(3)) and the particulars of the offence alleged were that when under close arrest the appellant resisted his escort, Warrant Officer Holly by struggling with him. The circumstances upon which this charge was based also occurred on 6th June and followed immediately upon the refusal of the appellant to leave the dance hall. Upon the hearing of the appeal the principal argument submitted for the appellant was that if, in law, there had been no disobedience to a lawful command, the essential basis, so it was said, for the third charge disappeared and that therefore the appellant must be acquitted of it also. It is a sufficient answer, in our opinion, to this argument to say that it must on its own terms fail because we have already held that the appellant was rightly convicted on the first charge.
However, it appeared to the Tribunal that the summing-up of the learned judge-advocate might have been insufficient in the attention it paid to a defence which on the evidence was open to and, indeed, was taken by the appellant at the trial. In order to appreciate the relevant arguments on this point it is necessary to make further reference to the facts.
Immediately after Warrant Officer Holly placed the appellant under arrest and the appellant had said, "I am not coming", the latter walked back into the dance hall and the warrant officer
(1958) 8 FLR 314 at 325
followed him. Warrant Officer Holly said that the appellant there started to abuse him, but upon being reproached by a chaplain, again left the hall. Upon arrival outside the warrant officer said to the appellant, "Come on" and the latter replied, "I am not going and you won't take me".
Warrant Officer Holly then said that he closed with the appellant in an endeavour to effect an arrest but was pushed over to the ground and that the appellant finished up on top of him. The warrant officer said that the appellant had him by the throat with a raised clenched fist in the air and said "Come on tell them what you called me a while ago. I should push your face in". The warrant officer replied, "You are still under arrest" and the appellant said, "I will see you at your office at 8 o'clock in the morning". According to Warrant Officer Hotly the appellant then got up off him and went back into the dance hall and shortly afterwards was arrested by the civil police. The reference by the appellant to "telling them" what he had on another occasion been called was no doubt a reference to a group of other airmen (all of whom were wearing civilian clothes) and to some ratings from a Royal Australian Navy ship which was in port. These men were on the evidence witnesses to the incident and were, to say the least, not showing any co-operation with the warrant officer. It is probable that these circumstances explain the action of the warrant officer in himself attempting to place the appellant in custody. It does not appear, to have been put specifically in the cross-examination of Warrant Officer Holly that he used an excessive amount of force in endeavouring to place the appellant in custody but that he did so is suggested in the evidence of witnesses called by the defence. One of these witnesses, No. A13400 L.A.C. Jago G.W., said that the appellant and Warrant Officer Holly argued for quite a bit of time there and that somebody must have pushed them both together and Warrant Officer Holly grabbed the appellant by the shoulders and brought his knee up and came in contact with his body. This incident is described in slightly different terms in the evidence of No. A14378 A.C. Siganto W.J. who said that Warrant Officer Holly accused the appellant of being a stand over merchant and a bash artist; he also said that the warrant officer grabbed the appellant in a head lock with his knee coming up into the appellant's groin. The appellant, so this witness says, appeared to be a little dazed but a few punches were then thrown and both came into a clinch and went to the ground.
The defending officer in his final address acknowledged that all witnesses for the defence gave different versions of the incident but submitted that in the confusion that existed at the time the appellant was engaged in a physical affray with Warrant Officer Holly, and that the appellant was doing no more than defending himself from an attack. The submission was then put that the court
(1958) 8 FLR 314 at 326
martial should find that Warrant Officer Holly had in fact attacked the appellant in his endeavour to bring him into custody but had used more than the amount of force necessary to effect an arrest and that therefore the appellant was justified in defending himself.
In the summing up of the learned judge-advocate on this charge he said, "There is clear evidence that struggling occurred and we are aware that physical altercation did occur on the ground. The evidence is not entirely clear as to how this struggle commenced. Warrant Officer Holly himself states that he made the first move to effect the arrest. One witness said the warrant officer moved forward and placed his hands on the accused's shoulders, another one said he closed a head lock around the accused which was supported I think by two other witnesses. Three or four witnesses stated that the warrant officer kneed the accused. There is some conflict in the evidence. I think you are well aware that policemen and service policemen are on certain occasions required to use force in arresting people who have committed or who are strongly suspected of having committed crimes. The law on that subject certainly is not that any amount of force may be applied and the principle of the applicable law is that no force should be applied at all unless necessary to effect, in this case, an arrest by a service policeman, and if force is considered necessary it must be reasonable within the circumstances. The court can look at this two ways I suggest, that Warrant Officer Holly, for reasons I will not go into, considered he should make the first move to physically arrest this airman. The court has heard certain evidence of antagonism &c. which I do not wish to go into. He may have thought it was necessary for him to make the first move and in that respect the court may consider that the accused had made it perfectly clear that he was not going to voluntarily submit to his arrest. Or you may perhaps, going further, say--here was a stalemate. The warrant officer had stated the man was under arrest and the accused had stated, `I am not going'. The warrant officer then made the next move. As to the following struggle I would remind the court that only reasonable force should be effected by a service policeman if it is necessary to use force at all. There is another possibility that these people were, shall we say, thrown together.
"It is fairly clear that there was some excitement (sic. incitement) from by-standers to commence a fight. The court may consider Warrant Officer Holly was aware the position was acutely dangerous and that if he did not go first something may happen to him. I only say that purely as a possibility on the action and I leave it to the court's discretion."
It must be remembered that the details of the evidence were freshly in the minds of the members of the court-martial and although the court was advised by the learned judge-advocate that Warrant Officer Holly was only entitled to use reasonable and
(1958) 8 FLR 314 at 327
necessary force to effect the arrest it might have been more clearly and distinctly told that if Warrant Officer Holly used more than necessary force and the resistance of the appellant was directed to defending himself only against the use of that unnecessary force and not against his continuing arrest the appellant would be entitled to an acquittal. An accused would be entitled to an acquittal on such a charge if the court were left in doubt whether more than necessary force was used in effecting the arrest and the accused resisted only to the extent of defending himself against such unnecessary force, and not in resisting his escort.
Reading the summing up of the judge-advocate as a whole, we have no doubt that his directions to the court were sufficient. We consider that it was quite open on the evidence for the court-martial to find the charge proved, and we see no reason to disturb the finding.
Although arguments were submitted that the conviction on the other charges should be set aside we are of the opinion that there is no substance in these arguments and that not only was there clear evidence entitling the court-martial to convict but also that no error of law appeared in the summing up of the learned judge-advocate. It is, we think, unnecessary to refer either to the facts of these charges or to the arguments submitted in respect of them.
A final point submitted by the counsel for the appellant was that all the convictions should be set aside because a single charge sheet with which the court-martial dealt included charges relating to different offences committed at different times and on different days. As has already been stated no objection to the appellant being tried on all the charges together was made at the trial and on the hearing of the appeal counsel for the appellant specifically stated that the argument was submitted only as an argument of principle and that there was no point of prejudice arising from the manner in which the trial was conducted. In these circumstances we overrule the submission of counsel for the appellant on this point because we are of the opinion that no prejudice to the appellant nor miscarriage of justice was involved in consequence of the course adopted. We are, however, inclined to agree with the views expressed by the learned Judge-Advocate-General on this point that it would have been preferable for the convening authority to have arraigned the appellant on different charge sheets in respect of the different groups of charges.
Before parting with the case we think it proper to point out that it is not desirable that a judge-advocate should descend into the arena and assume the mantle of a prosecuting officer: cf. Jones v. National Coal Board [1957] 2 Q.B. 55. In the present case the learned judge-advocate took an active part in cross-examination of various
(1958) 8 FLR 314 at 328
witnesses, and in fact one witness for the defence was recalled merely for the purpose of being cross-examined by the judge-advocate.
One question put to the witness when recalled is recorded as being in the following form:
"Q. Now I think you know a lot more than you are telling the court, that's what I think. I want you to tell the court what was going on at this time. Would you agree that a lot of people around the accused and Warrant Officer Holly were rather aggressive towards Mr. Holly? Just speak the truth.
A. Yes, Sir."
Cross-examination is essentially the function either of the prosecution or of the defence, certainly not of the judge-advocate. The judge-advocate may ask questions, particularly to assist the accused, but his paramount duty is to maintain an impartial position: cf. Rules of Procedure, r. 103.
For the reasons we have given we are of the opinion that the appeal should be dismissed.
Appeal dismissed.
Solicitor for the appellant: Bruce Miles.
Solicitor for the respondent: H. E. Renfree (Commonwealth Crown Solicitor).
A.J.L.
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