Re WALLACE'S APPEAL

Courts-Martial Appeal Tribunal: Coldham Q.C., President, Davoren Q.C., Deputy President, Wright Q.C., Member

SYDNEY, 25th, 26th, 29th June; 31st August, 1970
18 FLR 220

Defence -- Discipline of members of forces -- Conduct to prejudice of good order and military discipline -- Whether conduct prejudicial -- Question of fact -- Army Act, 1881 (Imp.), s. 40.

The question whether or not an alleged act, neglect or conduct is to the prejudice of good order and military discipline, within the meaning of s. 40 of the Army Act, 1881 (Imp.), is a question of fact for a court-martial. There is nothing in the Act or the Rules of Procedure which entitles a judge advocate at a court-martial to decide that question, subject always to the duty of the judge advocate to direct an acquittal on the ground that the evidence cannot as a matter of law sustain the charge.

COURT-MARTIAL APPEAL.

The appellant applied for leave to appeal against his conviction for an offence against s. 40 of the Army Act, 1881 (Imp.). The application for leave was dealt with as the appeal. The material facts appear from the decision.

B. E. Egan, for the appellant.

A. G. H. Cook, for the respondent.

Cur adv vult

31st August, 1970

The following decision was delivered:

This application for leave to appeal arose out of a court-martial held at Vung Tau, Vietnam, on 16th and 17th February, 1970, when the applicant was convicted on a charge of neglect to the prejudice of good order and military discipline in that he "at Vung Tau, Republic of Vietnam at about 2215 hours on 24 December

(1970) 18 FLR 220 at 221

1969 so negligently handled a weapon ... as to cause it to be discharged thereby killing 3793978 Private Malcolm Robert Robertson ... ".

The applicant pleaded guilty to two other charges which are not in any way relevant to the present application.

In due course the applicant lodged a petition which was refused although the sentence of the court-martial was mitigated pursuant to s. 57(2) of the Army Act, 1881 (Imp.).

Briefly stated the evidence disclosed that at the relevant time the applicant was the corporal in command of the West Gate Guard of 1 A.L.S.C. The guard house was separated from a roadway by a narrow gravel area in which sandbag defence structures had been erected. Immediately outside the guard house there was a white board known as a "table" upon which an M.60 machine gun was mounted on a tripod. This gun was fed with a link-type belt and was required to be loaded at all times. Shortly before the fatality which was the subject of the court-martial the applicant observed that the belt had been disconnected from the M.60 M.G. and was lying on the table. At this time (about 2215 hours) there were several servicemen in the gravel area, which was not very well lit, and out on the road. Pleasantries were being exchanged and it may be that there was also some general argument. Private Robertson and at least one other serviceman had just returned from leave and were about to make their way across the gravel area towards the guard house. Upon seeing the disconnected belt the applicant moved to the gun with the intention of resetting it. Assuming that the gun was unloaded he carried out a cleaning and loading action with one hand whilst at the same time steadying the gun with the other hand in close proximity to the trigger guard. Instead of adopting what is probably the proper procedure of operating a side catch and opening the feed cover for the purpose of ensuring that no rounds were on the feed plate followed by a cocking action to close the feed cover, the applicant endeavoured to cock the gun so as to open the feed cover but the moving parts flew forward before this action was fully achieved and at a time when he had inadvertently placed one finger inside the trigger guard. The result was that more than one round on the feed plate entered the breach and the gun fired, killing Private Robertson who was then moving across the gravel area.

We should add, because it is relevant to a matter which we shall mention later, that a Sergeant Greave gave evidence for the prosecution. He is an armoury expert. In the course of his evidence he agreed that it would be "highly unusual to find a gun" presumably an M.60 "which had had the belt put in it in the ordinary way, with the belt out of it and two rounds left on the feed plate".

(1970) 18 FLR 220 at 222

At the conclusion of argument upon this application we announced that the application was granted, that the appeal be heard instanter and allowed and that the conviction be quashed.

We now proceed to state our reasons for taking that course.

In his summing up to the court-martial the learned judge advocate said: "A further matter which I wish to deal with shortly before I pass on to a consideration of the evidence is to comply with a ruling of the Judge Advocate General in, I think, circular 61, and that is the Judge Advocate General, whose rulings are binding on members of the military forces, by virtue of Australian Military Regulations, and I take it therefore binding on me, and I now proceed to comply with that ruling. The judge advocate is required to tell the court whether as a matter of law, assuming that the prosecution have proved the requisite degree and that court is satisfied beyond reasonable doubt on the consideration of the whole of the evidence that the particulars have been made out, do those particulars support the charge? In other words, in this case, assuming that you were satisfied after considering the whole of the evidence before you, satisfied beyond reasonable doubt that the particulars specified in the charge have been made out and that the accused was guilty of culpable, blameworthy neglect in the circumstances specified in the charge sheet, does that amount to neglect to the prejudice of good order and military discipline? And being required to rule in that way, I say to you that if the particulars are proved in the way that I have adverted to, then that would constitute conduct to the prejudice of good order and military discipline." This direction accorded with the learned Judge Advocate General's ruling referred to which is dated 16th October, 1967, and includes the following with regard to charges under s. 40 of the Army Act, 1881 (Imp.): "(3) The judge advocate will direct the court as a matter of law as to whether the particular findings of fact open to the court do or do not support the statement of the offence. (4) It will not be left to the court to determine as a fact whether any particular conduct, neglect, or act is prejudicial to good order and miliary discipline." The source of the direction of the learned judge advocate is a ruling of the Judge Advocate General and having regard to the authority of that person and to his experience and learning in such matters this Tribunal must be slow to come to a conclusion which has the effect of reversing his ruling. However it is submitted on behalf of the applicant that the ruling is wrong and it is necessary to give consideration to this submission.

In the United Kingdom successive Manuals of Military Law show that under s. 40 of the Army Act, 1881 (Imp.), and corresponding legislation, the determination whether the act neglect or conduct is to the prejudice of good order and military discipline is a question

(1970) 18 FLR 220 at 223

of fact. It appears that there must be a satisfaction firstly that the particulars have been established by the evidence and secondly that the alleged act neglect or conduct is to the prejudice of good order and military discipline. A note to the relevant section of the Army Act, 1955 (Imp.) which appears in the Manual of Military Law (U.K.), 1961 edition, refers to this dual task in the following terms: "Before an accused can be convicted of an offence against this section the court must not only be satisfied that the accused was guilty of the act conduct or neglect alleged in the particulars but that the act conduct or neglect ... was to the prejudice of both good order and military discipline. Even if the allegations in the particulars are proved the court must acquit if it is not satisfied on this last matter."

We do not understand this note as meaning that the second question is a question of law for the determination of the judge advocate. The note also appears in the 1969 edition of the Manual of Military Law (U.K.). It also appears, in substantially similar form, as note 7 to s. 40 of the Army Act, 1881 (Imp.) in the Australian Army Law Manual, vol. 1, Pt. 6, p. 29A.

In Canada the position appears to be the same as in the United Kingdom. In Can R. v. Smith reported in vol. 2 of the cases of the Canadian Courts-Martial Appeal Court 1956-1962 Cameron J. delivering the judgment of that court said with reference to the section in that country corresponding with s. 40: "That subsection obviously refers to service matters and the nature of the act, conduct, disorder or neglect is not spelled out or defined in any way except that it must be to the prejudice of good order and military discipline. In the absence of any definition the military tribunal hearing the charge must of necessity determine from their experience and general service knowledge whether the act is one to the prejudice of good order and military discipline."

As we understand it the division of function between the judge advocate and the court-martial on the hearing of charges in Australia under s. 40 corresponded with the British and Canadian division until the ruling of the learned Judge Advocate General in October 1967.

In 1965 there was a significant change in the function of the judge advocate in the Australian Army which distinguished him from his British and Canadian counterpart. By Statutory Rules 1965, No. 61, reg. 1(g), amendments were made to rule of procedure 103. It became part of the judge advocate's function to give his ruling or advice to the convening authority or to the court upon, inter alia, any informality or defect in the charge. By the same statutory rule it became the function of the judge advocate to give his ruling in the course of the trial upon questions of law or procedure and it became the duty of the court to follow that ruling.

(1970) 18 FLR 220 at 224

In 1969 (Statutory Rules 1969, No. 76, reg. 14) from being an adviser "upon the law relating to the case" it became the function of the judge advocate to "direct the Court upon the law relating to the case". This last change came about by the appropriate amendment to rule of procedure 42.

These amendments have effected a position where the role of the Australian judge advocate at a court-martial is akin to that of a trial judge. He is now the legal arbiter and no longer a mere adviser upon the law. However the terms of s. 40 of the Army Act, 1881 (Imp.) have not changed. The ultimate question to be determined in charges made under that section, whether they are heard by a commanding officer or by court-martial, remains the same. It is whether the alleged act neglect or conduct is to the prejudice of good order and military discipline. In our view this question remains unaltered despite changes in rules of procedure. As legal arbiter it is part of the judge advocate's function to decide upon any informality or defect in the charge in the same way and with the same authority as a trial judge. He may, within the rules of procedure, have to decide whether the evidence is capable in law of supporting the charge and, in the event that it does not, it is his function to direct the court-martial accordingly. However it is quite another matter for the function of the judge advocate to extend, in the case of charges under s. 40, to a point where it is for him to direct the court-martial that they must convict if the particulars to the charge are sustained upon the evidence. The effect of such a direction is that the judge advocate, and not the court-martial, is responsible for the ultimate and crucial determination at the trial of the guilt or innocence of the accused serviceman. The court-martial is thereby relegated to a position where they are merely required to make a finding upon the matters of fact alleged in the particulars and having done so they are functus officio. This division of function is analogous to that in litigation where a legal determination must be made by a trial judge as to whether the facts found by a jury bring the case within the properly construed provisions of a written instrument. The finding of fact is an essential part of the process but the ultimate result of the litigation is dependent upon the answer to a question of law. Courts have been reluctant to adopt procedures of this nature into the criminal jurisdiction, affecting as they do the balance of functions between the trial judge on the one hand and the tribunal of fact on the other. This reluctance persists despite strong argument for uniformity of decision: cf. Shaw v. Director of Public Prosecutions [1962] A.C. 220, at pp. 269, 292; and Joshua v. The Queen [1955] A.C. 121. We do not know of any good reason why the balance of function between the judge advocate and the court-martial should be changed in respect of charges laid under s. 40.

(1970) 18 FLR 220 at 225

In his submissions in support of the ruling of the learned Judge Advocate General counsel for the Military Board relied upon Attorney-General v. Bindoff (1953) 53 S.R. (N.S.W.) 489; 70 W.N. 309. In that case it was held that with reference to New South Wales legislation which creates the offence of culpable driving it is the function of the jury to decide whether an accused drove in a manner dangerous to the public or whether he drove whilst under the influence of liquor. It is not their function to decide the question where the driving is culpable. The relevant legislation states that if any person drives a vehicle in such a manner or in such a condition then he is guilty of culpable driving. In other words if either of those modes of driving are established to the jury's satisfaction then it follows automatically by statutory enactment that the driver is guilty of the offence of culpable driving. Section 40 of the Army Act, 1881 (Imp.) is not framed in this way. It does not specify any particular acts or neglects or any particular modes of conduct which constitute the offences which it contains. In fact Bindoff's case (supra) is useful in illustrating by way of contrast that the ultimate factual question to be decided with relation to a charge under s. 40 is whether the particulars, assuming that they are established by evidence, constitute the offence charged.

For these reasons we must conclude that there is nothing in the rules of procedure or in s. 40 itself which entitles the judge advocate at a court-martial to decide the question whether the alleged act, neglect or conduct is to the prejudice of good order and military discipline. In our opinion this must remain a question for the court-martial subject always to the duty of the judge advocate to direct an acquittal on the ground that the evidence cannot as a matter of law sustain the charge. It follows that we must disagree with the ruling of the learned Judge Advocate General and with the course taken by the learned judge advocate in consequence of that ruling at the trial of the applicant. This conclusion also means that we cannot accept note 11 to s. 40 of the Army Act, 1881 (Imp.) incorporating that ruling, which appears in the Australian Army Law Manual, vol. 1, Pt. 6, p. 29B.

Counsel for the Military Board further submitted that the particulars set out in the charge sheet, if proved to the satisfaction of the court-martial, left that tribunal with no alternative but to convict the applicant and that the learned judge advocate was therefore correct, in this particular case, in directing the court-martial as he did. Where facts are undisputed and the law affecting the charge under consideration is well defined, a direction leaving the tribunal of fact with no alternative but to convict is accepted. R. v. Larkins [1943] 1 K.B. 174 is such a case. But we adopt the words of Ashworth

(1970) 18 FLR 220 at 226

J. in Reg. v. Healey [1965] 1 W.L.R. 1059, at p. 1064; [1965] 1 All E.R. 365, at p. 369, where he says that "such cases in the nature of things must be rare". A fortiori must this be so in charges involving s. 40 of the Army Act, 1881 (Imp.) which is dependent upon so many circumstantial considerations.

Before leaving our discussion of s. 40 and the division of function between the judge advocate and the court-martial in charges brought under it, we would like to add that there appear to us to be certain deep rooted considerations which weigh in favour of the court-martial being the proper body to decide the ultimate question under that section.

It is quite possible that conduct (and we use that word to include all offences under the section) of a member of the forces will be prejudicial to good order and military discipline in one region or at one time although perfectly innocent elsewhere or at another time. The circumstances operating at a particular place or at a particular time might well be significant factors. Members of a court-martial are generally selected from that part of the service which is operating or stationed in the particular region where the conduct under consideration has taken place. In all cases the court-martial is held promptly after the alleged offence has occurred. On the other hand the judge advocate is often a visitor to the relevant place. He is in no better position, despite his legal training, to know and appreciate the "climate of the times" in the region of the alleged offence than the members of the court-martial, and frequently must be less qualified in that respect. The inferences which he may draw from certain evidence may be altogether different from, and of less relevance than, the inferences drawn by the members of the court-martial.

Moreover, and we say this with no criticism at all of a judge advocate, it is frequently the case that officers who constitute the tribunal of fact at a court-martial are closer to the grass roots of service life than the judge advocate. He is concerned greatly with service law as it applies in a global sense to the service of which he is a member. On the other hand the serving officer must, as part of his duties, frequently form value judgments upon the individual conduct of the servicemen under this command or with whom he associates and upon the aggregate discipline of the unit under his command or to which he is attached. This continuity of relevant experience fits him well to consider the standards involved in charges laid under s. 40.

A member of the court-martial is not obliged to be the sole judge upon the conduct of a person charged under that section. He is one of a number of other members who must come to a corporate decision. The judge advocate is in a far more lonely position as the ultimate judge.

(1970) 18 FLR 220 at 227

All of this is not to say that the court-martial as reviewers of the relevant conduct are entitled to make a substantial resort to their military experience in reaching a conclusion. They are directed by the judge advocate that to disregard the evidence and substitute for it their own military experience would be to deny the function which they are called upon to fulfil. The judge advocate reminds them that their function is to base their conclusion as to the quality of the conduct under review upon the facts found from the evidence and that their service knowledge can only be used to assist them in discovering what the facts are and in drawing inferences from those facts. Members of the court-martial are not entitled to use their service experience as a substitute for meagre evidence or to aid an ill-prepared prosecution case. If the evidence is so vague or insufficient that findings of fact are difficult, service experience cannot be used to manufacture facts not warranted upon the evidence. Rule of procedure 74 cannot be used for this purpose. Moreover it is always part of the judge advocate's function to decide whether the conduct alleged, assuming that it is sufficiently proved, is capable in law of amounting to conduct to the prejudice of good order and military discipline. If this is not his view then it is his duty to direct the court-martial accordingly.

We have already indicated our disagreement with the ruling of October 1967 of the learned Judge Advocate General and that the learned judge advocate at the trial of the applicant was wrong in directing the court-martial that they must regard the alleged neglect to be to the prejudice of good order and military discipline. We consider that this irregularity amounted to a substantial miscarriage of justice. Having come to this conclusion it is probably unnecessary to go any further. But in any event, having regard to the evidence of Sergeant Greaves already referred to we could not be satisfied that the applicant would inevitably have been convicted if the court-martial had been allowed to decide whether the neglect was prejudicial to good order and military discipline. We are quite unable to say to what degree the relevant neglect would have been assessed by the court-martial or to what extent it could be condoned before amounting to prejudicial neglect.

It was for these reasons that we granted leave to appeal, allowed the appeal and quashed the conviction.

Other grounds were relied upon on behalf of the applicant but it is unnecessary to consider them in view of our conclusions already expressed.

Orders accordingly.

Solicitors for the appellant: Beston & Riordan.

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

A.J.L.

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