(1969) 14 FLR 26 [lb.014.FLR.00026]

[COURTS-MARTIAL APPEAL TRIBUNAL]

Re SRG APPEAL

Courts-Martial Appeal Tribunal: Macfarlan J., President, Davoren Q.C. and Harris Q.C., Members

MELBOURNE, 23rd December 1968; 14th February 1969
14 FLR 26

Defence -- Discipline of members of forces -- Courts-martial -- Practice -- Whether prosecution bound to call every witness of whom notice given -- General principles -- Failure of prosecution to call witness whose evidence might self-incriminate -- Whether miscarriage of justice -- Fresh evidence -- Character evidence unavailable at trial -- Whether unavailability of such evidence may cause miscarriage of justice.

Rule 75 of the Rules of Procedure, applicable in court-martial proceedings for an offence against the Army Act (Imp.), provides, "The prosecutor is not bound to call all the witnesses whose evidence is in the summary or abstract of evidence" [at the preliminary hearing] "given to the accused, but he should ordinarily call such of them who were called for the prosecution as the accused desires to be called, in order that the accused may, if he thinks fit, cross-examine them and the prosecutor should for this reason, so far as seems to the court practicable, secure the attendance of all such witnesses".

Held, that r. 75 does not abrogate the common law rule by which a prosecutor, where considerations of fairness do not otherwise require, should ordinarily call every witness of whom notice is given. Rule 75 is merely a restatement of the common law rule in a convenient form with the addition of an express requirement of calling a witness at the request of the accused.

Held, accordingly, that a prosecutor is not excused from calling a witness by the failure of the accused to request that the witness be called.

(1969) 14 FLR 26 at 27

However, a prosecutor is not bound to call a witness at the request of the accused if considerations of fairness otherwise require.

Held, further, that the omission of the prosecution to call a witness, of whom notice had been given, on the ground that the evidence of the witness might have incriminated the witness, was a miscarriage of justice.

Circumstances in which the evidence of a character witness who was unable to give evidence at a court-martial hearing was found of sufficient weight to cause the conviction of the accused without such evidence to constitute a miscarriage of justice.

APPEAL.

The appellant appealed against his conviction by general court-martial of an offence against the Army Act (Imp.). The material facts appear from the decision of the Tribunal.

P. C. Martin, for the appellant.

W. B. Treyvaud, for the respondent.

Cur adv vult

14 February 1969

THE TRIBUNAL delivered the following decision:

On 5th and 6th August, 1968, the appellant, Warrant Officer Second Class SRG was convicted by a general court-martial at Vung Tau in the Republic of Vietnam of an offence under s. 18(5) of the Army Act (Imp.). The appellant was charged with having committed, while on active service, "disgraceful conduct of an indecent kind in that he at Nui Dat in the Republic of Vietnam, on 28th July, 1968, in full purview of other persons permitted his penis to enter into the mouth of 3790429 Craftsman William John Kenihan".

The sentence of the court was that the appellant be reduced to the rank of sergeant and be severely reprimanded. The sentence was confirmed on 21st August, 1968, and on 9th October, 1968, the Military Board refused a petition lodged by the appellant pursuant to s. 20(2) of the Courts-Martial Appeals Act 1955. By notice dated 2nd November, 1968, the appellant sought leave to appeal to this Tribunal against his conviction. The application for leave to appeal came on for hearing at Melbourne on 23rd December, 1968. Mr. P. Martin, of the Victorian Bar (instructed by the Commonwealth Legal Service Bureau), appeared for the appellant and Mr. W. B. Treyvaud, also of the Victorian Bar (instructed by the Commonwealth Crown Solicitor), appeared for the Military Board. By agreement, full argument was submitted on the application for leave as though it were the hearing of the appeal. After hearing the arguments of counsel, the learned President announced that all the members of the Tribunal were of the opinion that leave to appeal should be granted, that the appeal should be allowed and the conviction quashed, and the Tribunal so ordered. The President

(1969) 14 FLR 26 at 28

stated that the members of the Tribunal were indebted to counsel for the interesting, thorough and clear arguments that both of them had submitted and that the Tribunal would publish its reasons at a date to be notified to both parties.

The Tribunal now proceeds to state the reasons upon which it reached its decision.

The evidence before the court-martial showed that the charge against the appellant was laid as a result of an incident that occurred during the late afternoon of 28th July, 1968, in the Other Ranks Canteen at Nui Dat. The appellant was one of a group of soldiers who were on a drinking bout, which had begun elsewhere and was being continued in the canteen. In the course of the afternoon the appellant and others had taken part in horse-play during which the appellant's clothing, including the fly of his trousers, had become ripped. The appellant was not wearing underpants. By the time the incident occurred the appellant was in a state of considerable insobriety.

The evidence differed as to exactly what did occur, but it showed that on at least one occasion the appellant's penis became exposed and that Craftsman Kenihan (who was in the group with the appellant) bent or crouched down in front of the appellant and brought his mouth into contact with the appellant's penis.

The appellant pleaded Not Guilty. He gave evidence in which he conceded that such an incident had taken place. He said that he had been drinking, that his penis must have become exposed but that he did not notice this and that the next thing he remembered was "feeling something bite on my penis". He was vague about just what did happen thereafter, except that he said that he withdrew his penis, apparently almost immediately.

The witnesses who were called by the prosecution were three men who were in the canteen, but not part of the group with the appellant. There were a number of discrepancies in their evidence, but they all described at least one incident of the nature later admitted by the appellant in his own evidence. As well as giving evidence himself, the appellant called six witnesses. Four of these gave evidence of what they had seen in the canteen; the other two gave evidence of the drinking which had taken place elsewhere earlier in the afternoon.

Despite the discrepancies between the accounts given by the various witnesses, all the evidence showed that whatever had taken place had occurred quickly, even if there were two incidents (as one witness said). Further, the only reasonable conclusion that could be reached seems to have been that the appellant's penis became exposed while he was standing near the bar because the fly of his trousers was torn and he was not wearing underpants and not because he had taken any deliberate act to expose himself. Finally, the evidence strongly suggested that it was Craftsman

(1969) 14 FLR 26 at 29

Kenihan who had taken the initiative in performing whatever act he did perform, and that this had been done without any spoken invitation from the appellant.

What the prosecution had to establish against the appellant was "disgraceful conduct of an indecent kind". The particulars alleged were, in our opinion, such that if sufficient evidence were adduced to sustain them the charge would have been made out.

The evidence clearly enough established the part of the prosecution's case which required it to prove that the appellant's penis had in fact entered into the mouth of Kenihan at the time alleged. (The exact degree of entry was not, in our opinion, material.) However, the prosecution was also bound to prove that the appellant had "permitted" this act to occur. The court-martial came to the conclusion that both elements of the charge had been proved and it convicted the appellant.

Before the Tribunal, counsel for the appellant relied upon a number of grounds why this conviction should be quashed. Some of these grounds were set out in the notice of 2nd November, 1968, but at the hearing we permitted counsel to add ten further grounds of appeal. Counsel for the Board took no objection to this course.

The original three grounds were:

"1. That the finding of the court-martial is unreasonable.

2. The finding of the court-martial cannot be supported having regard to the evidence and the weight therefor.

3. There was a substantial miscarriage of justice."

The grounds added at the hearing were:

"1. That the charge was bad in law and not proper in all the circumstances in that other sections of the Army Act applied.

2. There was a miscarriage of justice in that Craftsman Kenihan, whose evidence appeared in the summary of evidence, was not called to give evidence at the hearing.

3. That the judge advocate erred in allowing certain evidence to be wrongly admitted.

4. That the judge advocate erred in law in relation to his ruling on a submission of no case to answer in that he failed to rule on every submission made and failed to give reasons for his ruling.

5. In relation to certain of the submissions made, being submissions of no case to answer, the court should have been present when these submissions were made.

6. The judge advocate erred in law in allowing a witness for the prosecution to be recalled at the close of the evidence for the defence.

7. The judge advocate erred in law when directing the court, and in particular: (i) he failed to direct sufficiently on the question of reasonable doubt and the question of the onus of proof; (ii) he failed to direct as to the law applicable to the charge; (iii) he

(1969) 14 FLR 26 at 30

failed to direct the court properly on the question of intent and the question of drunkenness; (iv) he failed properly to sum up as to the facts; (v) he failed to give adequate warning on the question of a conflict of evidence.

8. The judge advocate erred in law in that he did not direct the court on the question of corroboration.

9. The judge advocate erred in law in that he did not direct the court on the question of the accused's good character and on the question of similar act evidence.

10. The conduct of the defending officer prejudiced the fair trial of the appellant."

In the course of his argument, counsel for the appellant put certain submissions to the Tribunal with respect to what would constitute evidence of permission by the appellant. He conceded that it was not essential for the prosecution to prove that the appellant had expressly or affirmatively permitted what had happened and that acts of indifference or omission on the part of the appellant could be sufficient to establish that he had permitted the conduct. He submitted--in our opinion rightly--that this was a case where, if there was any evidence of permission, it had to be by way of evidence of indifference or omission on the part of the appellant from which the inference could be drawn that he had permitted Kenihan to act in the way he had.

Mr. Martin relied, as the test of what constituted permission in such circumstances, upon a passage in the judgment of Knox C.J. in Adelaide Corporation v. Australasian Performing Right Association Ltd. (1928) 40 C.L.R. 481, at p. 487, where the learned Chief Justice said: "I agree with the learned judges of the Supreme Court in thinking that indifference or omission is permission within the plain meaning of that word where the party charged (1) knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done, (2) has the power to prevent it, (3) makes default in some duty of control or interference arising under the circumstances of the case, and (4) thereby fails to prevent it."

We agree that this test is the one which should be applied in the circumstances of this case, and, indeed, counsel for the Military Board did not contend to the contrary. (See also Gilbert v. Gulliver [1918] V.L.R. 185, where the word used was "allow"; Goldsmith v. Deakin (1933) 50 T.L.R. 73, at p. 74; McLeod v. Buchanan [1940] 2 All E.R. 179, at p. 187.) Counsel for the appellant put this submission in the course of an attack upon the summing up of the judge advocate. For reasons that will appear, we do not consider it necessary to rule upon this attack, but the nature of what would constitute evidence of permission by the appellant is material in considering the reasons upon which we rely as

(1969) 14 FLR 26 at 31

sufficient to justify allowing the appeal and quashing the conviction.

These reasons are two in number and both relate to the fact that two material witnesses were not called at the court-martial.

The first of these two was Craftsman Kenihan. Kenihan had in fact given evidence at the preliminary inquiry after being warned that he was not obliged to do so, as appeared from the summary of evidence. To this extent the summary was relied upon by counsel for the appellant. It was clear that Kenihan was available to be called, as his name appears in the schedule to the order for the assembly of the court-martial. At the hearing the judge advocate in his summing up commented on the fact that Kenihan was not called. He said: "Attach no significance to the fact that Craftsman Kenihan has not been called. The prosecution, very fairly, did not call him. Even if Captain Cooper had called him, it would have been a waste of time as I would have warned him on the basis that he was entitled to object to testifying, if he reasonably believed that his evidence might tend to incriminate him. Had the accused called him, the same barrier would have been raised. In any event, the accused and Craftsman Kenihan had different interests and it would have been quite stupid for the accused to call him, so don't say to yourselves, `Why was the Craftsman not called?' To ask this will put you on the wrong track."

It is, of course, true that if he had been called, by any party, Kenihan could have objected to giving evidence on the ground that his evidence might incriminate him. Furthermore, the Rules of Procedure do not make it obligatory upon the prosecutor to call all the persons who gave evidence at the preliminary hearing, as Rule of Procedure 75 is in the following terms: "75. The prosecutor is not bound to call all the witnesses whose evidence is in the summary or abstract of evidence given to the accused, but he should ordinarily call such of them who were called for the prosecution as the accused desires to be called, in order that the accused may, if he thinks fit, cross-examine them, and the prosecutor should for this reason, so far as seems to the court practicable, secure the attendance of all such witnesses."

Apart from Rule of Procedure 75 there is a well-established common-law rule as to the duty of a prosecutor to call witnesses. Rule of Procedure 75 is plainly based on the common-law rule; whether it excludes it will be dealt with later. The common-law rule is one of great importance in ensuring that accused persons get a fair trial. It is the subject of authoritative exposition by Fullagar J. in Ziems v. The Prothonotary of the Supreme Court of N.S.W. (1957) 97 C.L.R. 279. The learned judge (at pp. 292-294) considered the rule and quoted and approved several expressions of it, which

(1969) 14 FLR 26 at 32

we now set out. At pp. 292-293 his Honour said: "I have no doubt that the correct practice is that which is stated in Archbold's Criminal Pleading, Evidence and Practice, 33rd ed. (1954), pp. 515, 516. It is there said: `Although in strictness it is not necessary for the prosecutor to eall every witness whose name is on the back of the indictment, it has been usual to do so in order that the prisoner may cross-examine them.' Reference is made to R. v. Simmonds (1823) 1 C. & P. 84; 171 E.R. 1111; R. v. Beezley (1830) 4 C. & P. 220; 172 E.R. 678; R. v. Vincent (1839) 9 C. & P. 91; 173 E.R. 754; and R. v. Barley (1847) 2 Cox 191. In Halsbury's Laws of England, 3rd ed., vol. 10, par. 764, p. 418, the learned author of the article says: `All the witnesses whose names are on the back of the indictment should be called by the prosecution except those who were conditionally bound over and upon whom notice to attend has not been served. ... Even if it is not proposed to examine a witness whose name is on the back of the indictment, counsel for the prosecution should, unless there are exceptional reasons to the contrary, place him in the witness-box so that the defendant may have an opportunity of cross-examining him.' It may be that in some jurisdictions it is not customary to list the witnesses on the back of the indictment, but the substance of the matter must, of course, be the same in such a case." At p. 294 his Honour added: "In R. v. Dora Harris [1927] 2 K.B. 587, at p. 590 Lord Hewart C.J. said: `in criminal cases the prosecution is bound to call all the material witnesses before the court, even though they give inconsistent accounts, in order that the whole of the facts may be before the jury'. In Adel Muhammed El Dabbah v. Attorney-General for Palestine [1944] A.C. 156, at p. 169 Lord Thankerton for the Privy Council, referring to this statement, said: `In their Lordships' view, the learned Chief Justice could not have intended to negative the long-established right of the prosecutor to exercise his discretion to determine who the material witnesses are.' It is not, indeed, to be supposed that the Lord Chief Justice did so intend. ... "

This Tribunal has also expressed its view upon the matter in Re McCann's Appeal (1961) 9 F.L.R. 21, especially at p. 30, citing and following Ziems' case (1957) 97 C.L.R. 279.

Mr. Martin submitted that Kenihan's evidence on the face of it was most material and he referred to it in support of this point. He conceded that no request had been made by defence counsel that Kenihan be called but submitted that this did not absolve the prosecutor from acting in accordance with the general common-law principle. It is, in our opinion, plain that Kenihan's evidence was very important with respect to the question whether the appellant "permitted" the conduct in question. In our opinion,

(1969) 14 FLR 26 at 33

his evidence could have been strongly relied on by the defence, at least as showing that there was a reasonable doubt whether the accused was guilty.

Was there any proper ground upon which the prosecutor was entitled to exercise his discretion in not calling Kenihan? The judge advocate considered that there was and that the correct course had been adopted by the prosecutor, but Mr. Treyvaud, for the Military Board, did not seek to rely upon this ground. He submitted that, whatever the common-law situation was, by reason of the wording of Rule of Procedure 75, the prosecutor was not bound to call a witness who had given evidence at the preliminary inquiry unless the accused requested that the witness be called. We do not agree with this submission. In our opinion, the common-law rule applies to proceedings by way of a court-martial and Rule of Procedure 75 does not abrogate this rule, which is a fundamental requirement of justice, but merely sets out the rule in a convenient form and adds a further express provision requiring a prosecutor to call a witness if required by the defence to do so. We would add that, in our opinion, the decision of this Tribunal in Re McCann's Appeal (1961) 9 F.L.R. 21. proceeds upon the basis that the common-law rule applies notwithstanding Rule of Procedure 75, although the point was not expressly dealt with in that case.

We only agree with what Mr. Treyvaud said to this extent, that if an accused requested a witness to be called the prosecution would not be bound to call him if considerations of fairness dictated otherwise.

Although Mr. Treyvaud did not seek to excuse the failure to call Kenihan by the fact that, if called, his evidence might incriminate him, we would add that, in our opinion, this was not a sufficient reason. The witness would certainly have been told what his rights were and he might or might not have given evidence. In fact, it seems probable that he would have given evidence, as he had already done so at the preliminary inquiry; but, be that as it may, in our opinion justice required that he be placed in the witness-box by the prosecutor so that the court-martial would have the advantage of hearing his account of the events if he chose to give it, and so that if he did give evidence the accused would be dealt with by a court whose knowledge of the facts was that much the greater.

Hence, we hold that the failure by the prosecution to call Craftsman Kenihan resulted in the conviction of the appellant being a miscarriage of justice (additional ground of appeal No. 2). This is in itself a sufficient ground for granting leave to appeal and allowing the appeal (Courts-Martial Appeals Act 1955, s. 23(1)(b)). If we allow the appeal, it follows that the conviction must be quashed (s. 23(3)).

(1969) 14 FLR 26 at 34

There is, however, at least one other reason why we consider that leave to appeal should be granted and the appeal allowed. This arises from the fact that after the defending officer had completed his case and the judge advocate had summed up, the accused's commanding officer, Captain Dittmar, became available as a witness. Captain Dittmar's evidence was as to the character of the accused and he was in fact called on this point, but only after the court-martial had announced its finding and therefore only on the question of penalty. His evidence (in the form of a statement which he read to the court-martial and which was marked Ex. 3) gave the appellant a very good character. Had this evidence been available earlier, it should have been, and presumably would have been, called on behalf of the defence.

In circumstances such as existed in this case, it would have been important for the accused to have put his character in issue, as such evidence might very well have resulted in an acquittal, either on the basis of a positive acceptance of the evidence of the accused or at least upon the basis that there was a reasonable doubt whether his guilt had been proved.

It was not disputed that Captain Dittmar's evidence became available too late for this to be done, and it may be noted that the judge advocate commented that it seemed to be a great pity that Captain Dittmar's evidence was not led on the question of guilt before the finding of the court-martial.

The inability of the appellant to call Captain Dittmar during the trial was not expressly made the subject of a ground of appeal. Mr. Martin relied upon additional grounds 9 and 10. It seems to us that the appellant may also be entitled to rely upon original ground 3, despite its absence of particularity, but, in any event, counsel for the Military Board fairly did not contend that the appellant could not rely upon this point. Furthermore, he directed our attention to the case of Re Schneider's Appeal (1958) 8 F.L.R. 314, at p. 319, a decision of this Tribunal, and R. v. Parks [1961] 3 All E.R. 633; [1961] 1 W.L.R. 1484, a decision of the Court of Criminal Appeal, which deal with the principle that the availability of fresh evidence is a ground upon which an appellant can show that his trial has resulted in a miscarriage of justice.

Where this ground is relied upon by an appellant he must establish a number of matters before his appeal will be allowed. Firstly, he must show that the fresh evidence is relevant and secondly that it is credible. The third requirement deals with what the appellant must show would have been the effect of the evidence if it had been called. In Re Schneider's Appeal (1958) 8 F.L.R. 314 this Tribunal said that the appellant must satisfy the Tribunal that the fresh evidence is likely

(1969) 14 FLR 26 at 35

to have affected the finding of the court. In R. v. Parks [1961] 3 All E.R. 633, [1961] 1 W.L.R. 1484 the Court of Criminal Appeal did not put the requirement as high. Lord Parker C.J. said that what the appellate court would consider was whether "there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial" [FN1] .

Fourthly, the appellant must also show that the evidence was not available at the time of the trial, although, at least in Australia, it would appear that this requirement may be satisfied in other ways than by showing that the witness was not physically available; it appears that it is sufficient if some good reason is established explaining why the witness was not called (see also R. v. Sayers [1922] Q.S.R. 64, citing R. v. Perry and Harvey (1909) 2 Cr. App. Rep. 89, at p. 93; Craig v. The King (1933) 49 C.L.R. 429; Green v. The King (1939) 61 C.L.R. 167; cf. the more stringent rules that apply in civil cases--see Wollongong Corporation v. Cowan (1955) 93 C.L.R. 435, at p. 444; Paul v. Watts [1967] V.R. 687).

In the present appeal, the appellant is able to establish the fourth point, even as expressed in its more stringent form. Captain Dittmar was not physically available until after the defence case had been closed and it was not known what evidence he could give until after the judge advocate had summed up. (This appears from the petition and counsel for the Board very properly did not contend that Captain Dittmar's evidence had been available to the appellant.)

The evidence that Captain Dittmar in fact gave, on the question of sentence, was plainly credible and relevant to the issues at the trial. Furthermore, in our opinion, it was such that, had it been led at the trial, it was likely to have resulted in the appellant being acquitted, so that this requirement is satisfied, whichever is the accurate way of expressing it.

The result is that we hold that the availability of this fresh evidence after the guilt of the appellant had been determined resulted in the conviction being a miscarriage of justice and that this is a further ground for granting leave to appeal and allowing the appeal. Again, the course which is open to this Tribunal is to quash the conviction.

Argument was also addressed to the Tribunal on most, if not all, of the other grounds of appeal but we do not propose to comment upon these arguments, except to say that we entertain considerable doubt whether the judge advocate should have allowed the prosecution to recall the witness Burton after the close of the case for the defence.

(1969) 14 FLR 26 at 36

It is for the above reasons that the Tribunal has granted the appellant leave to appeal, allowed the appeal and quashed the conviction.

Orders accordingly.

Solicitor for the appellant: G. J. Cannon (Commonwealth Legal Service Bureau).

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

A.J.L.

[FN1] [1961] 3 All E.R., at p. 634; [1961] 1 W.L.R., at pp. 1486-1487.

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