[COURTS-MARTIAL APPEAL TRIBUNAL]
Re SMERDON
Courts-Martial Appeal Tribunal: Connor J., President, Walters J., Deputy President, Judge Mylne, Member
BRISBANE, 4, 6 September 1979
37 FLR 49
Defence -- Courts-martial appeals -- Evidence -- Warning to be given to court when one of two charges dismissed at close of prosecution case -- Substantial miscarriage of justice -- Burden of proof -- Courts-Martial Appeals Act 1955 (Cth.), s. 23.
S. was charged before a court-martial on two counts of "conduct to the prejudice of good order and military discipline"; the first count related to giving wrong information to a superior officer, as regards payments to a finance company and the second count related to the removal of regimental moneys. When opening the case and leading evidence, the prosecutor referred to evidence of admissions which S. had made in relation to the second charge, which admissions were ultimately held to be inadmissible by the judge-advocate and it was further held at the close of the case for the prosecution that S. had no case to answer in relation to the second charge. However, on the first charge S. was found guilty. In his summing up the judge-advocate failed to warn the members of the court to disregard entirely that part of the opening by the prosecutor and the evidence which subsequently became irrelevant and inadmissible by the dismissal of the second charge.
Held, that the failure of the judge-advocate to warn the court to disregard entirely the opening of the prosecution's case and its evidence in relation to the second charge was a miscarriage of justice. Such miscarriage was substantial within the meaning of s. 23 of the Courts-Martial Appeals Act 1955, because the prosecution was unable to discharge its burden by showing that the errors referred to did not affect the result or that the court would have returned the same verdict.
R. v. Williams, [1956] V.L.R. 96, and Driscoll v. The Queen (1977), 137 G.L.R. 517, applied.
R. v. Bradshaw (1978), 18 S.A.S.R. 83, and Taylor v. The Queen (1978), 22 A.L.R. 599, followed.
APPEAL.
Appeal from a court-martial where the applicant was convicted of a charge of "conduct to the prejudice of good order and military discipline".
J. G. Crowley, for the applicant.
B. A. Stewart, for the respondent.
Cur adv vult
6 September 1979
After deciding some preliminary questions the tribunal delivered the following reasons.
(1979) 37 FLR 49 at 50
The applicant was charged before a district court-martial at Townsville on 15th December, 1978, with the following: CHARGE 1 Conduct to the prejudice of good order and military discipline: In that he, at Lavarack Barracks, Townsville, on 31st October, 1978, did make a false statement to his company commander, 61766 Major D. W. Kibbey in that he, when advised by his company commander that a finance organization, namely Custom Credit Corporation Ltd., had alleged that he was two (2) months in arrears in payments to that organization, did state to his company commander that he had made those payments on Friday 27th October, 1978, knowing that statement to be false. CHARGE 2 Conduct to the prejudice of good order and military discipline: In that he, at Lavarack Barracks, Townsville, in or about the month of October 1978, did remove regimental moneys entrusted to his care outside the unit area where they were capable of being secured, to his home. He pleaded not guilty to the two charges.
In the course of opening the case the prosecuting officer referred to certain evidence which he proposed to call in support of the second charge, including admissions by the applicant to his company commander and second in charge. We refer in detail to this part of the opening hereafter.
The evidence in support of the first charge was given by Major Kibbey, the applicant's company commander, Captain Fawkner, his second in command and a Mrs. Marks, an employee of Custom Credit Corporation Ltd. We refer to this evidence in detail below. The defending officer objected to evidence being given by Major Kibbey as to certain admissions made by the applicant on the ground that they were not voluntary. A voir dire was conducted in the absence of the court to determine the admissibility of admissions made by the applicant both to Major Kibbey and to Captain Fawkner in relation to both charges. The learned judge-advocate ruled that the admissions as to the first charge were admissible but that the admissions in relation to the second charge were inadmissible. The hearing then continued. A Sergeant Lindwall and a Private Kielpinski gave evidence solely in relation to the second charge. A submission was made at the end of the case for the prosecution that there was no case to answer on either charge. This submission was upheld on the second charge. The applicant did not give or call evidence. Nothing was said thereafter by the learned judge-advocate concerning the opening by the prosecuting officer of the admissions made by the applicant concerning the second charge or about the evidence of Sergeant Lindwall and Private Kielpinski which related solely to that charge. The learned judge-advocate, at the conclusion of his summing up, asked whether the prosecuting officer or the defending officer desired any further
(1979) 37 FLR 49 at 51
directions. Neither sought any direction concerning the opening or the evidence which related solely to the second charge.
The applicant was found guilty of the first charge and was sentenced to a severe reprimand. ...
We turn to grounds 3 and 4 of the notice of application which complain of the failure of the learned judge-advocate, first, to direct the court that in considering the first charge they should dismiss from their minds evidence that had been adduced by the prosecution in support of the second charge of which the applicant was acquitted, by direction of the learned judge-advocate, at the close of the prosecution case; and, secondly, to give the court an explicit warning against allowing that evidence to affect their deliberations upon the matter with which the first count was concerned; and, thirdly, to direct the court that the evidence of Sergeant Lindwall with respect to the sum of $80 paid by him to the applicant on behalf of 5 Platoon was irrelevant to their considerations. At the outset of the hearing before us counsel for the applicant stated that he did not rely on these grounds; but nevertheless we invited both counsel to argue them. Ultimately counsel for the applicant contended that the omission of the learned judge-advocate to give such directions and warning resulted in a miscarriage of justice to the applicant.
Before proceeding to consider the merits of the complaint of the omissions on the part of the learned judge-advocate to instruct the court in the manner contended for by the applicant it becomes necessary to narrate in more detail the course of the proceedings before the court.
After the applicant had been arraigned and had pleaded not guilty to both charges, the case against him was opened by the prosecuting officer in some detail. In the course of his opening he indicated the matters that he would adduce in evidence in support of the first charge and went on to deal with the matters that he proposed to adduce in evidence in order to establish the second charge. With respect to that charge, he stated that the conduct alleged against the applicant was that he had removed "regimental moneys entrusted to his care from the unit area and had used part of those moneys to pay a private debt". Next, he outlined more specifically the evidence that he intended to lead from Major Kibbey with reference to an admission alleged to have been made to him by the applicant. In this connexion the opening is recorded in the transcript in these terms: " ... Major Kibbey set a certain train of events in motion and, as a result of that train of events, a further conversation with the accused in relation to certain regimental moneys which were entrusted to Sergeant Smerdon's care [took place]. He will give evidence that, as a result of questions, Sergeant Smerdon admitted to Major Kibbey that there was a shortage of $80; that that $80 was used to pay part of this civil debt to Custom Credit and Sergeant
(1979) 37 FLR 49 at 52
Smerdon made that admission in the presence of Major Kibbey. That in brief outline will be the evidence that Major Kibbey will put before the court." In outlining the evidence proposed to be adduced from Captain Fawkner with respect to the second charge, the prosecuting officer stated: "Captain Fawkner will also place evidence before the court that as a result of these matters he was told to and did carry out a check of regimental moneys. He will give evidence that the accused was unable to produce all of these moneys and that the accused made an admission to him and also to Major Kibbey regarding the use of $80 of these moneys for the payment of this civil debt." Additionally, there was a brief outline to the court by the prosecuting officer of the evidence to be adduced from two further witnesses. The first was a Private Kielpinski, who would testify that during an exercise IN CONCERT held during late October 1978, the applicant had placed with him several orders for soft drinks and cigarettes and that the applicant had taken delivery of those goods. The second was Sergeant Lindwall, the platoon sergeant of 5 Platoon B Company, who would give evidence of his having paid to the applicant on about 23rd or 24th October, 1978, the sum of $80 being the amount due in respect of the goods supplied to 5 Platoon B Company.
At no point either before or during the opening of the prosecution case was it suggested by the defending officer to the learned judge-advocate that any challenge would be made to the admissiblity of the confessional statements alleged to have been made by the applicant to either Major Kibbey or Captain Fawkner in relation to the second charge; nor was it suggested that an application would be made for a voir dire in the absence of the court on the question of the admissibility of that confessional evidence.
Having concluded his opening, the prosecuting officer proceeded to call Major Kibbey in support of the prosecution case on both charges. The witness had given evidence with respect to matters that were the subject of the first charge when the defending officer asked the learned judge-advocate to conduct a voir dire hearing to determine the admissibility of the confessional statements alleged to have been made to Major Kibbey and Captain Fawkner.
Without argument being presented to him as to whether there was material sufficient to justify a voir dire hearing, the learned judge-advocate acceded to the request for the voir dire hearing and at once asked the court to retire. The voire dire hearing was held, in the couse of which Major Kibbey and Captain Fawkner were examined and cross-examined as to the circumstances under which the alleged confessional statements were made by the applicant to these officers. It is unnecessary to canvass the evidence given by the two officers, but in the result the learned
(1979) 37 FLR 49 at 53
judge-advocate ruled that the confessional statements relating to the second charge were not voluntary and were thus inadmissible in evidence. He went on to add that even if the materials before him were sufficient to establish the voluntary nature of the confessional statements, nevertheless, in the exercise of his discretion, he would have excluded them, since in his opinion they were made under circumstances in which it would have been totally unfair to the applicant to admit them in evidence. These rulings of the learned judge-advocate were not in question in this appeal and appear to us to have been unexceptionable.
Having ruled against the admissibility of the confessional statements relating to the second charge the learned judge-advocate expressed his view that the prosecution would not be able to make out a case against the applicant on that charge. The rejoinder of the prosecuting officer was that "we may have to let the result lie where it falls at the end of the evidence".
At this stage, the court re-assembled and Major Kibbey continued with his evidence so far as it was relevant to the first charge. This witness was followed by Captain Fawkner, who likewise gave evidence on matters pertaining to the first charge. It is not without significance that at the conclusion of his examination in chief, the evidence of Captain Fawkner proceeded in this way: "At about 1045 hours Major Kibbey interviewed Sergeant Smerdon in my presence. Major Kibbey said to Sergeant Smerdon: `I have documented the events of this morning and I find that there are some irregularities, I'm going to ask you some questions, do you understand?' Sergeant Smerdon said: `Yes.' Major Kibbey said: `When did you pay this account?' Sergeant Smerdon said: `This morning Sir.' Major Kibbey said: `Where did you get the money from?' Sergeant Smerdon said: `I had the money on me and I got some from my wife.' MajorKibbey said: `I am going to have the 21C conduct a spotcheck of the exercise moneys that you are holding for the company.' Sergeant Smerdon said: `I did not use any of that money."' One might have thought that in the light of the ruling given earlier by the learned judge-advocate, the concluding portion of this evidence should not have been led from the witness, but it may be that the defending officer raised no objection to its admission since it let in the exculpatory statement of the applicant: "I did not use any of that money."
In turn, the prosecuting officer called Private Kielpinski and Sergeant Lindwall to give evidence of the matters which had been foreshadowed by him in opening the case for the prosecution. Private Kielpinski merely gave evidence that as a storemen in the First Battalion Regiment Institute, he had delivered soft drinks and cigarettes to company quartermasters for purchase by troops engaged in the exercise in concert, and that at the end of that exercise a sum of about $292 was owing by B Company 1 R.A.R. of which the applicant was C.Q.M.S. Sergeant
(1979) 37 FLR 49 at 54
Lindwall deposed to the fact that he had placed an order for soft drinks and cigarettes on behalf of his platoon and that on the completion of the exercise, he had paid over to the applicant, as C.Q.M.S., the sum of $80 in payment of the moneys owing by his platoon. The evidence of Private Kielpinski and Sergeant Lindwall had no probative value in relation to the first charge. At best, its probative value on the second charge was confined to the corroboration of admissions which had already been excluded.
When the case for the prosecution had closed, the learned judge-advocate heard argument, in the absence of the court, on a submission by the defending officer that there was no case for the applicant to answer on either charge. At the conclusion of argument, the learned judge-advocate intimated that he proposed to direct the court that, as a matter of law, a verdict of not guilty must be returned on the second charge. Thereupon, the court reassembled, and upon a direction being given by the learned judge-advocate that the evidence was insufficient in law to establish the second charge, the court, without further deliberation, returned a verdict of not guilty upon that charge.
The question falling for decision is whether the course of proceedings on the trial was such as to create such a prejudice to the applicant as would result in a miscarriage of justice to him. It is a matter of regret that if any challenge was intended to be made to the alleged confessional statements, the proposed attack on the admissibility of those statements was not brought to the notice of the learned judge-advocate before the prosecuting officer opened the prosecution case to the court. If that had been done, then any risk of prejudice to the applicant created by the opening of evidential matters subsequently ruled to be inadmissible would clearly have been obviated. But, as it happened, this mischief was done once it had been opened to the court by the prosecution that the applicant had admitted that he had misappropriated regimental moneys to pay his debt to Custom Credit Corporation Ltd. And, as it seems to us, this mischief was exacerbated by the evidence of Private Kielpinski and Sergeant Lindwall. No one has suggested that the prosecuting officer had the least intention of creating prejudice, but it is for us to consider the effect of what was done. We cannot say what effect the matters mentioned in opening might have had upon the deliberations of the court. However this may be, it is clear that we cannot discount the cumulative effect which the prosecuting officer's opening and the evidence of Private Kielpinski and Sergeant Lindwall may have produced in the minds of the members of the court in determining the question of the guilt of the applicant on the first charge.
We adopt what was said by King J., as he then was, in R. v. Bradshaw: "If evidence of an alleged confession is opened to the jury and an objection to its admissibility is subsequently upheld, it will almost certainly be necessary to discharge
(1979) 37 FLR 49 at 55
the jury. In Cornelius v. The King (1936) 55 C.L.R. 235 Dixon J., Evatt J. and McTiernan J. in their joint judgment said: `If, during the course of the trial, evidence is adduced from which the Judge concludes that he was mistaken in holding the confession to be admissible, he may withdraw it from the consideration of the jury. ... But in such a case, it may be impossible sufficiently to remove the prejudice to the prisoner already caused by laying the confession before the jury, and, in that case, the jury may be discharged' [FN1] . It is the duty of everybody concerned with the trial, including counsel, to try to avoid an expensive mistrial. I think that the proper course, where there is a real question whether an important piece of evidence, especially an alleged confession, should be excluded as inadmissible or in the exercise of the judge's discretion, is for counsel to raise the matter at the commencement of the trial in the absence of the jury. If proper and adequate material is placed before the judge in the form of passages in the depositions or of information and assurances from counsel indicating that there is a real question to be resolved and that it involves the resolution of disputed questions of fact, the proper and convenient course will generally be to take evidence upon a voir dire and to determine the question before the prosecution opens its case to the jury: R. v. Middleton [1975] 1 Q.B. 191" [FN2] . In the case of a court-martial it is not possible for the judge-advocate to discharge the court. An appropriate course would appear to be for the defending officer to apply to the court-martial to request the convening officer to dissolve the court-martial and convene another court-martial to try the accused.
If this course is not followed and the same court continues the hearing it becomes of primary importance that the judge-advocate should give a strong warning to the members of the court to disregard entirely any parts of the opening or the evidence which have been heard by the court and which have subsequently become irrelevant or inadmissible. In this case the learned judge advocate made no reference in his summing up to the matters opened by the prosecuting officer or to the evidence of Private Kielpinski and Sergeant Lindwall. Having regard to the risk of prejudice to the applicant resulting from the irregularities we have mentioned it seems to us that this was clearly a case in which the type of warning to which we have alluded above should have been given. We therefore think the summing up was inadequate.
In the complete absence of any reference by the learned judge-advocate in the summing up and by the prosecuting officer and the defending officer in final addresses to the evidence of Private Kielpinski or Sergeant Lindwall, the members of the court may
(1979) 37 FLR 49 at 56
have thought that this evidence did not have to be disregarded in considering the first charge. Coupled with what transpired to be a prejudicial opening, we are quite unable to say what weight was given to this evidence in deciding the first charge.
It was submitted by counsel for the respondent that the learned judge-advocate adopted the best course by abstaining from all reference to the opening and to the evidence of Private Kielpinski and Sergeant Lindwall for the reason that any reference to these matters might have seemed only to highlight them. It was put that the learned judge-advocate had listened to the final addresses, in neither of which were these matters referred to, and that it might well have appeared to him that the more prudent course was to do likewise. However in the circumstances of this case we do not think that the learned judge-advocate could sum up adequately without dealing positively with these matters.
We consider that the failure to warn the court to disregard entirely the opening of the evidence in relation to the second charge and the evidence of Private Kielpinski and Sergeant Lindwall constituted a miscarriage of justice. The question arises whether, under s. 23 of the Courts-Martial Appeals Act 1955, as amended, that miscarriage was substantial. Section 23 reads as follows:
"(1) Where, upon the hearing of an appeal against a conviction by a court-martial, the Tribunal considers--
(a) that the finding of the court-martial--
(i) is unreasonable, or cannot be supported, having regard to the evidence; or
(ii) involves a wrong decision of a question of law; or
(b) that, on any ground, there was a miscarriage of justice, the Tribunal shall, subject to this Division, allow the appeal.
(2) Notwithstanding that the Tribunal is of the opinion that an appeal might otherwise be decided in favour of the appellant, the Tribunal may refuse to allow the appeal if it considers that no substantial miscarriage of justice has occurred.
(3) Subject to this Division, if the Tribunal allows an appeal, it shall quash the conviction, and, if the Tribunal does not allow an appeal, it shall dismiss the appeal."
The burden of proving that there was no substantial miscarriage of justice rests upon the prosecution--see R. v. Williams [1956] V.L.R 96.
We are unable to say that the errors referred to did not affect the result or that the court would certainly have returned the same verdict if the errors had not occurred--see Driscoll v. The Queen (1977) 137 C.L.R. 517; or, to put the matter another way, we are unable to say that the court, after being properly directed, would without doubt have convicted on the evidence properly admissible-- see
(1979) 37 FLR 49 at 57
Anderson v. The Queen [1972] A.C. 100, at p. 107 and Stirland v. Director of Public Prosecutions [1944] A.C. 315, at p. 321. In amplification of our opinion we think it desirable to say that even without the objectionable material the court in our view would inevitably have found that the applicant's statement to his company commander was false to his knowledge. That statement, however, concerned a matter which might reasonably have been thought to be on the fringe of military discipline. Having regard to the manner in which the court disposed of the second charge we think it was the duty of the judge-advocate and the prosecuting officer to have the first charge considered as nearly as possible as if it were the only charge before the court. On that basis the court, in the absence of the objectionable material, may not necessarily have concluded that the making of the false statement about a private debt amounted to conduct to the prejudice of good order and military discipline.
In relation to the question whether there was a substantial miscarriage of justice we have also considered the effect of the failure of the defending officer to ask for an appropriate direction conceming either the opening or the evidence of Private Kielpinski and Sergeant Lindwall. We adopt what was said in this regard in Taylor v. The Queen (1978) 22 A.L.R. 599, a decision of the Federal Court of Australia, per Connor and Franki JJ.: "It has often been laid down that it is the duty of counsel for the accused to be present during the summing up and seek any redirection or further direction at its conclusion--see, for example R. v. Croft (1933) 50 W.N. (N.S.W.) 56. If some aspect of the summing up is made a ground of appeal, appellate courts regard it as of great importance that an experienced defence counsel failed to object to it at the trial. Such an omission points strongly to the conclusion that in the atmosphere of the trial itself there was nothing about the summing up calculated to lead to a miscarriage of justice--see generally R. v. Sorlie (1925) 42 W.N. (N.S.W.) 152; R. v. Caplin (1933) 50 W.N. (N.S.W.) 189; R. v. Smyth (1956) 73 W.N. (N.S.W.) 539; R. v. Malas (1978) 21 A.L.R. 225, and Stirland v. Director of Public Prosecutions [1944] A.C. 315. The cases show, however, that where the appellate court is satisfied that a miscarriage of justice occurred the appeal will be allowed, despite the failure of counsel to object at the trial. Examples of this, where the appellate court was satisfied that there had been a miscarriage of justice because the jury may have considered the evidence on a wrong principle, are R. v. Kalinowski (1930) 31 S.R. (N.S.W.) 377 and R. v. Gaffney [1968] V.R. 417" [FN3] . For the reasons we have given we are satisfied in this ease that there was a substantial miscarriage of justice and consequently that the failure of the defending officer to object is not fatal.
(1979) 37 FLR 49 at 58
For these reasons we grant leave to appeal. We indicated at the outset of the healing before us that, in the event of leave to appeal being granted, we would treat the arguments on the application for leave as also being directed to us on the appeal itself. We therefore uphold the appeal and quash the conviction.
Appeal allowed. Conviction quashed.
Solicitors for the appellant applicants: Williams & Williams.
Solicitors for the respondent: Legal Services Department of Defence.
R. W. DAVIS
[FN1] (1936) 55 C.L.R., at p. 249.
[FN2] (1978) 19 S.A.S.R. 83, at pp. 101-102.
[FN3] (1978) 22 A.L.R., at p. 618.
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