(1967) 12 FLR 87[lb.012.FLR.00087]

[COURTS-MARTIAL APPEAL TRIBUNAL]

Re WILSON'S APPEAL

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

SYDNEY, 30th November 1967
12 FLR 87

Defence -- Discipline of members of forces -- Courts-martial -- Summing up of judge advocate -- Onus of proof -- Drunkenness and mens rea -- Conflicting testimony -- Expression of judge advocate's views on evidence -- Directions proper to be given -- Failure to give proper directions -- Whether substantial miscarriage of justice.

In court-martial proceedings against an airman upon a charge of striking a superior officer, the judge advocate (i) made references to a "defence of drunkenness" which were calculated to mislead the court-martial to believe that unless the accused was so drunk that he was incapable of having the mens rea necessary for the offence with which he was charged it was the duty of the court-martial to find against the accused on the issue of drunkenness, (ii) in dealing with a conflict of testimony between prosecution and defence witnesses, failed to direct the court-martial that if such conflict left the court-martial with a reasonable doubt about the guilt of the accused he should be acquitted and (iii) expressed his own views on the evidence in such a way that the court-martial may have considered it unnecessary to deliberate on important matters independently or at all.

Held, that on each of such matters the judge advocate had so misdirected the court-martial that a substantial miscarriage of justice had occurred.

Observations upon the prosecution's onus of proof with particular reference to drunkenness and mens rea.

COURT-MARTIAL APPEAL.

The appellant applied for leave to appeal against his conviction for an offence of striking a superior officer. The appeal was heard on the application for leave.

K. Enderby, for the appellant.

J. R. Gibson, for the Air Board.

Cur adv vult

30 November 1967

(1967) 12 FLR 87 at 88

The following decision was delivered:

The applicant was charged with striking his superior officer, Warrant Officer Kenyon, at Ubon, Thailand, contrary to s. 8(2) of the Air Force Act (Imp.). Included in the charge sheet were three other alleged offences, namely disobeying a lawful command given by his superior officer, using insubordinate language to his superior officer, and offering violence to his superior officer.

Objection was taken on behalf of the applicant at the outset of the court-martial proceedings that the second, third and fourth charges were bad in law as being multiple charges arising from the same transaction as the first charge. However, upon direction from the learned judge advocate, the court decided against the applicant's preliminary objection but considered it desirable to defer hearing these latter three charges until a finding had been reached on the first charge of striking a superior officer.

During the time when the court was deliberating upon its decision on the preliminary objection, the learned judge advocate was directed by the convening authority that the first charge be heard on a charge sheet separate from the other three charges. The execution of this direction made further decision of the court on the preliminary objection redundant, and the court-martial proceedings which are the subject of this appeal were confined to the charge of striking. Upon the applicant being convicted of this charge and sentenced to be reduced to the ranks, the other three charges were withdrawn.

On this appeal it was submitted that the fair trial of the applicant on the charge of striking his superior officer had been prejudiced by reason of the court having been informed of the other three charges to which reference has been made. However, the other charges all arose out of matters which were relevant to the charge upon which the applicant was in fact tried. They were related not only in character but also in time. The trial of the appellant was not, in our opinion, prejudiced by reason of the reference to the three charges. The action taken came within the scope of Rule of Procedure 62(e).

We would add that our opinion must be taken to be fully reserved should there occur a situation where a charge sheet contains a number of charges unrelated in character and time. It is possible in such a case, it it were to occur, that the knowledge of the other alleged offences must prejudice the minds of the court-martial in a way that could not be satisfactorily removed by dealing only with one charge, and in such a case a conviction might need to be set aside on the ground of a substantial miscarriage of justice.

The charge with which the court-martial dealt was one of striking a superior officer. The case for the prosecution was made by two witnesses who deposed to events that were alleged to have occurred

(1967) 12 FLR 87 at 89

on 31st December, 1966. The evidence of these two warrant officers is, for relevant purposes of this judgment, similar, and it will be adequate to state the combined effect of their evidence.

Their evidence was that at about 1320 hours, when dressed in civilian clothes, they were proceeding through the base towards the gate. When they arrived close to the main gate they heard a shout from some distance behind them. This shout was followed by another in which the following words were used: "Are you going to sell some more rations to your Yank mates, you pommie warrant officer bastard?" One of the warrant officers was the warrant officer caterer and the other was the warrant officer disciplinary. The words appeared to the warrant officers to have been spoken by an airman whom they did not know, and upon hearing them they turned and walked in his direction. He walked away and they did not immediately find him, but shortly afterwards they came upon him standing on the floor level of a hut near the opening of a centre door.

Warrant Officer Kenyon, who was the warrant officer caterer, then said to this airman, "You used some obscene language to me and made a certain accusation, and I want to know why". The airman replied, "Everybody knows what you are doing; even some of the high-ups in Australia know what you are doing". Warrant Officer Kenyon asked the airman for his identity card and the airman refused to show it to him, emphasizing his refusal by the use of some obscene language. Warrant Officer Kenyon then said to the warrant officer disciplinary, who was Warrant Officer Sheean, "I will go into the hut and read the bed plates to identify this man". He then attempted to mount the steps leading up to the floor of the hut. He said that he had taken one step towards entering the hut when the airman said, "You are not coming in this hut, you warrant officer bastard", and moved forward and flung his left arm out and struck the warrant officer a blow on the underside of the chin. The statement of the warrant officer that the airman moved forward before the alleged blow was later explained to mean that the airman moved off the floor of the hut on to the first step leading to the ground.

When the blow had been delivered Warrant Officer Kenyon moved back and the airman returned to the hut and slammed the door behind him. Shortly afterwards the airman opened the door of the hut and came down to the ground beside the two warrant officers. Warrant Officer Sheean then told Warrant Officer Kenyon to stand back and said to the airman, who was the applicant, that he was the warrant officer disciplinary and he demanded to see the applicant's identity card. The applicant refused to show this card, whereupon Warrant Officer Sheean said, "It would be better if we now left this area". They then moved away towards the gate of the base, and they said that the airman followed them.

(1967) 12 FLR 87 at 90

Both warrant officers said that they smelt intoxicating liquor in the breath of the applicant, that he was excited and shouting, and that his eyes were "flashy". Both expressed the opinion that he was not drunk and that his speech was clear and distinct. Warrant Officer Sheean said that when the applicant was talking to them he tended to sway. The gist of their evidence was that the warrant officers remained cool and calm at all times and did not speak either loudly or heatedly. On the other hand, they said that the applicant was excited, talking loudly and gesticulating with his arms. The applicant was not then arrested or charged, but at 2230 hours on the same night, when he was at a place off the base, he was taken into custody by the service police. It was not until some time later that he was formally charged.

So far therefore as concerns the charge before the court-martial the prosecution case was that, when Warrant Officer Kenyon had made a move on to the first step to enter the applicant's hut, the applicant came down from the floor level of the hut to the next step and delivered the blow which was the subject of the charge.

The case for the applicant was presented in three ways. Firstly, it was argued that the evidence of the warrant officers was, in the circumstances proved, unreliable, and at least must create in the minds of the court-martial a doubt as to whether the events occurred as the warrant officers described them. It was next denied that the applicant struck the warrant officer at all; and thirdly, it was submitted that, if he did strike the warrant officer, he was so drunk at the time that there must have been some doubt about the existence of the necessary mens rea.

In order to examine these defences it is necessary to go back to the events that occurred on 30th December, 1966. The applicant himself said that, although he performed some duties on that day, he consumed during his periods off duty a certain quantity of intoxicating liquor. He said that on the following day he went into town early in the morning for a private purpose and at about 0840 hours he visited a house which was used as a club by certain American troops. When he arrived at this club he started drinking and, as the morning progressed, he consumed intoxicating liquors of different kinds. There was evidence from other witnesses who were present in the club that he was in a state of insobriety. The applicant himself did not remember leaving the club, but his next memory was of waking up in his bed at 2030 hours. He then showered and dressed, and returned to the service club, where he was arrested at 2230 hours, as already stated.

The significant feature of the applicant's evidence is that he did not have any recollection of leaving the club after he had entered it at 0840 hours on 31st December, or of the events alleged to have occurred between that time and 2030 hours, when he woke.

(1967) 12 FLR 87 at 91

In support of the applicant's case, Corporal Barnes and L.A.C. Campsie gave evidence of his appearance of insobriety at the American club during the morning of the 31st, and one of these witnesses described the manner in which the applicant left the club at about 1300 hours. At that time, according to this witness, he was greatly influenced by the drink which he had consumed, and it was evidenced in his manner of speech and in his inability to make a coherent or determined farewell to the other people at the club. One of these witnesses also said that before the accused left he had been falling asleep over the bar. It was also said that at the time he left the club there was some paint on part of his face, that his hair was dishevelled, and his clothes in some form of disarray. Both airmen said, as did the applicant, that he was wearing a shirt and long trousers. Corporal Barnes, in answer to a specific question said "he was fairly well inebriated".

There was also the evidence of another witness who saw the applicant in the NAAFI hut shortly after the offence was alleged to have occurred. This was L.A.C. Storer, who said that the applicant came into the bar of this hut, and he described him as being well intoxicated. He stated that the applicant said to him, "I have just briefed Warrant Officer Kenyon". This witness was asked, "How did he strike you in relation to his sobriety; how sober was he?", and he replied, "He was drunk".

This describes very briefly the evidence for the applicant of the events before and after the alleged offence, but there were two witnesses called for the defence who were present at the time when the incident occurred with the warrant officer. The first of these was Corporal Medana, who was lying on a bed behind the door close to which the applicant was standing when the first words were spoken between him and the warrant officers. Corporal Medana described that his head was somewhat propped up by pillows and sheets and he was immediately under a window through which, if he raised his body, a view could be obtained of the place where the warrant officers were standing. He said that he could not see the applicant while he was in the hut, except when he moved into a position where the open doorway was between him and the applicant. He said also that there was a gap of some three inches between the hinge side of the door and the hinge jamb, and that when the applicant moved forward towards the door he could see the applicant through this gap standing on the floor of the hut. He said that he could not see the arms of the applicant but that he could see him if he moved from the floor of the hut down on to the first step.

Corporal Medana said that about five minutes after the applicant had come into the hut, and before any incident had occurred, he heard a voice from outside the hut call, "Corporal Wilson, will you please step outside". He said that he immediately got up, though

(1967) 12 FLR 87 at 92

not right off the bed, but just got himself up "a little bit", and looked through the window to see who it was who had asked the applicant outside. When he looked through the window he saw the warrant officers, both of whom he knew. He said that when the applicant turned round to see who was speaking to him, all parties just flew into a rage and all seemed to be talking at the one time. At this time, he said, the applicant was at the end of his bed. This witness was not able to give evidence of any other part of the conversation except that he knew it was about something that happened near the main gate. He described the incident as being one which, from start to finish, was just nothing but parties screaming out. When he saw who was outside the hut he immediately lay back on his bed. He was asked if he had the applicant under his observation all the time, and he said that he did and added that he could see him in the room, or through the gap between the door and the door jamb at all times, although he qualified this by saying that the only time he could not see him was when the door was between them. He said further that if the applicant had gone past the gap he definitely would have seen him. Corporal Medana said that the applicant definitely did not go outside the hut and that at all times he was inside the hut or behind the door. This witness also gave evidence that the applicant appeared to him to be drunk at the time; his actual statement was, "I have never seen him as drunk as he was that day".

Corporal Medana then described how on one occasion, when the two warrant officers "were having a go" at the applicant, he just ignored them and walked back in towards the centre of the hut; and then he went back and had "another go" at them, and shortly afterwards, which he described as being "a few more minutes", the applicant walked back into the hut again and slammed the door. He said the applicant then came round on the left side of Medana's bed and the two warrant officers were shouting at him through the window. The applicant said something back to them, but he could not understand anything of what was being said.

Corporal Medana then described how the incident finished. He said the two warrant officers walked off and the accused walked up to the other end of the hut and went out a door at that end. He also said there was another airman in the hut, viz. L.A.C. Hersant. L.A.C. Hersant was asleep when the incident commenced but he said he was wakened by the door slamming. He said the applicant was standing right on top of the steps, the last step, to the hut, and that he was standing in the hut. He also said that the applicant left the hut by the same door as mentioned by Corporal Medana, and that he did not hear or understand any of the words which were passing between the warrant officers and the applicant. This witness said that when he was awakened by the slamming door

(1967) 12 FLR 87 at 93

he heard somebody outside the hut say, "You struck me, corporal" and the applicant replied, "No, I never. I slammed the door". He also said that he saw and heard the argument being carried on through the window.

L.A.C. Hersant said that the applicant was fairly drunk, that he was staggering "pretty violently", and that he had paint on his face. He said that when the applicant did leave the hut his progress was very erratic and that he nearly fell down the steps. This witness left the hut shortly after the applicant and saw him in the toilet block, when the applicant stated that he thought the witness looked like the catering officer.

The case for the applicant can be described in this way: that his own evidence was that he had taken a great deal of intoxicating liquor, that he did not know anything of the incident with the warrant officers, and that the other witnesses whom he called supported his case of extreme intoxication. In particular, Corporal Medana and L.A.C. Hersant gave evidence which denied the evidence of the prosecution as to the manner in which this offence was alleged to have been committed. Both these witnesses said the accused never left the hut and that after the door was slammed the altercation was continued through the window. Another important aspect of the evidence of Corporal Medana is that an inference certainly could be drawn to the effect that the applicant did not at any time leave the floor level of the hut, as had been sworn by the two warrant officers in relation to the events immediately preceding the alleged striking by the accused of Warrant Officer Kenyon.

The foregoing summary of the evidence discloses a sharp conflict between the witnesses called on behalf of the prosecution and those called on behalf of the accused on two vital matters pertaining to the guilt or innocence of the applicant and materially affecting the direction of the learned judge advocate on the onus of proof. The conflict existed on the issue of drunkenness, and also upon the issue of the striking of Warrant Officer Kenyon. We propose to deal firstly with the issue of drunkenness and to consider particularly the manner in which the learned judge advocate directed the court-martial thereon.

The onus of proving the necessary mens rea lies at all times upon the prosecution. Although it is easy to say in the popular sense that an accused has "raised the defence of drunkenness", extreme care should be taken by a judge advocate to bear in mind clearly that the raising of such a "defence" by an accused person in no way places upon him the onus of proving it, but that he must leave the court in no doubt that the onus of proof lies upon the prosecution to establish beyond reasonable doubt the necessary mens rea in the accused. If upon all the evidence, including the evidence adduced by the accused or on his behalf, there is a reasonable doubt

(1967) 12 FLR 87 at 94

on that issue, then the duty of the court is to acquit. This is well established, and it is only necessary to refer to the following passage from R. v. Gordon [1963] S.R. (N.S.W.) 631, at p. 635 where the Full Court said: "In a criminal charge the onus is always upon the Crown to prove guilt beyond all reasonable doubt. The state of drunkenness may cast doubt upon the accused's capability of forming an intent where a specific intent is an ingredient of the offence; in such circumstances, there is an onus upon the Crown to establish guilt and not upon the accused (as there is in the defence of insanity) to prove lack of intent."

In his summing up the learned judge advocate told the court-martial initially that unless they found that the evidence had proved all the particulars in the charge beyond a reasonable doubt, they must acquit. Shortly thereafter he referred particularly to what he termed the "mental element" (in respect of which we will make some observations hereafter) and stated that included in the necessary proof beyond reasonable doubt was this "mental element". However, in our opinion it is not sufficient that a judge advocate should deviate from the statement that the onus of proof rests with the prosecution and speak of the "defence of drunkenness" in the popular sense without making it abundantly clear to the court-martial that the onus of proving all elements of the offence remains always upon the prosecution. In the course of his summing up the learned judge advocate made this deviation to popularism without repairing in any sufficient way the effect which in our opinion that deviation might well have had upon the court-martial.

Very shortly after correctly stating the onus of proof, as we have already outlined, he said upon the issue of drunkenness and mens rea as it related to the accused: "The issue is not whether he was drunk or not, except in so far as you have to consider whether he was so drunk that he could not have had a guilty mind. The state of drunkenness is unimportant, it does not matter whether he was a quarter drunk or a half drunk or three-quarters drunk, what matters is whether he was so drunk that he could or could not have had a guilty mind." In a passage which appears shortly after the words quoted the learned judge advocate added that "his inability to recall" events at the time of the alleged striking "can be taken into account as evidence of a lack of a guilty mind but it does not prove it ... ".

He summed up the evidence on drunkenness in the following way: "To sum up on the defence of drunkenness, unless you consider it proved by the evidence that he was so drunk he could not have known what he was doing, you should concentrate not on the stage of drunkenness reached but on the influence of alcohol in his mind. There is evidence both ways and your decision will turn on your assessment of the evidence." The final passage on this issue of mens

(1967) 12 FLR 87 at 95

rea is in the following terms: "It is possible and even probable that when his judgment was impaired by alcohol this belief should dominate his mind and influence his actions. The accused has no defence if his better judgment is affected by alcohol. This is unfortunate and a factor that you would have to take into account later if you convict the accused, but it is not a defence, it is only a defence if alcohol so affected his mind and not his judgment that he cannot be regarded as criminally responsible."

In a very short passage at the end of his summing up the learned judge advocate again reminded the court-martial that proof of guilt lay upon the prosecution and that that proof had to be beyond reasonable doubt. However, the persuasive passages to which we have referred, which were spoken by him between the very brief statements that the onus was on the prosecution to prove guilt beyond reasonable doubt, were calculated in our view to mislead the court-martial into a belief that unless the applicant was able to establish to their satisfaction that he was so drunk as not to be capable of having the necessary mens rea for the offence with which he was charged, then it was the duty of the court to find against him on the issue of drunkenness. Of course, the possibility, and indeed the probability, that the mind of the court-martial should be so directed is even more dangerous when it is remembered that the evidence led on behalf of the prosecution on the one hand and the applicant on the other upon this issue was in direct conflict. It must be remembered that the evidence of drink and its effect upon the appellant was relevant to the issue of mens rea, proof of which lay upon the prosecution. Drunkenness was not a defence. An accused does not lead evidence of drunkenness by way of defence at all. If the evidence of drink is sufficient to raise a reasonable doubt upon the prosecution's evidence relating to mens rea, then the onus of proving mens rea, which at all times remains with the prosecution, has not been discharged--see R. v. Gordon [1963] S.R. (N.S.W.) 631 and R. v. Stones [1956] S.R. (N.S.W.) 25.

In our view the learned judge advocate misdirected the court-martial upon the onus of proof as it related to the issue of drunkenness, and it is also our view that this misdirection was of a substantial nature.

As we have pointed out already, the conflict of evidence was not confined to the evidence of drunkenness, but also extended to the facts relating to the time when the alleged striking occurred. In circumstances where there was a conflict of evidence upon any relevant issue, it was of the utmost importance that the judge advocate should have directed the court on the law as set out in a number of authorities, of which we only intend to cite Bullard v. The

(1967) 12 FLR 87 at 96

Queen [1957] A.C. 635, at p. 645, where Lord Tucker said, in an appeal from ar conviction for murder by striking: "Having regard to the fact that there was no dispute that the blows were struck by Bullard and that the only issue left to the jury was self-defence, their Lordships do not consider that the jury can have been left in any doubt as to the onus" (of proof) "being throughout upon the prosecution. It would, no doubt, have been better if the judge had used language similar to that suggested by Lord Goddard C.J. in the recent case of R. v. Lobell [1957] 1 Q.B. 547, at p. 551: `A convenient way of directing the jury is to tell them that the burden of establishing guilt is on the prosecution, but that they must also consider the evidence for the defence which may have one of three results: it may convince them of the innocence of the accused, or it may cause them to doubt, in which case the defendant is entitled to an acquittal, or it may and sometimes does strengthen the case for the prosecution.' But there is no magic formula, and provided that on a reading of the summing up as a whole the jury are left in no doubt where the onus lies no complaint can properly be made."

We refer also to what was said by the Full Court of the Supreme Court of Victoria in R. v. Smith [1964] V.R. 217, at p. 224: "In cases where the decision as to the accused's guilt depends particularly upon the assessment by the jury of [conflicting evidence] it is particularly necessary that the jury should be clearly directed that if in the final result they have a reasonable doubt ... they must acquit. ... The necessity ... is emphasized when in such a case the jury has been told ... that they have to decide who is telling the truth. ... " In that case the Court (at p. 224) went on to repeat the words of Lord Tucker that no magic formula exists in this regard and added that the "task of a court of appeal is to decide whether, on a consideration of the charge as a whole, the jury has been clearly instructed that if they have a reasonable doubt as to the accused's guilt they must acquit". The Court, at the same page, also said that it is incumbent upon a trial judge to tell the jury that "if they cannot decide who is telling the truth they must acquit on the basis that there is a reasonable doubt as to the accused's guilt, and that they must not convict on the basis that one version is simply more credible than the other". In the summing up of the learned judge advocate there are substantial instances where he transgresses this fundamental rule which has been referred to above. Having told the court-martial very shortly, as we have already stated, that the onus lay upon the prosecution to prove the particulars of the charge beyond a reasonable doubt, the learned judge advocate dealt with a number of matters which he pointed out were in conflict but upon which he did not assist the court-martial in the terms plainly required when contradictory

(1967) 12 FLR 87 at 97

evidence has been led on any relevant issue. He said to the court-martial: "And so you must look at the evidence from all the points of view that are open, the points that are favourable to the accused, the points that tell against him and make up your mind what evidence you accept and what facts you find proved by the evidence." He said upon the issue of drunkenness: "There is evidence both ways and your decision will turn on your assessment of the evidence. ... There is therefore clear and direct evidence for the prosecution uncontradicted by any direct evidence from the defence."

Statements such as these, in our opinion, should not be allowed to remain in a summing up isolated from a correct direction on the onus of proof when contradictory evidence is involved, but unfortunately the learned judge advocate allowed these passages to remain unqualified by any restatement of the onus of proof until the concluding passages of his charge when he merely stated where the onus lay. This omission by the learned judge advocate amounted, in our opinion, to a substantial miscarriage of justice.

We turn now to a third defect in the learned judge advocate's summing up which, in our opinion, amounts to a substantial miscarriage of justice. In our view, he made comments to the court-martial which were in the nature of assertions which were calculated to mislead the court upon a function which was properly theirs, namely a finding of the facts. At the outset of his summing up he said: "Gentlemen, before you retire to consider whether you find the accused guilty, or innocent I must advise you on the law and on the assessment of the evidence." In this introductory passage the learned judge advocate elevated his function to something more than a "recorder, arranger and remembrancer", which it truly is with relation to the facts: Holford v. Melbourne Tramway & Omnibus Co. Ltd. [1909] V.L.R. 497, at p. 520. It is true that at the conclusion of his summing up he said that the court-martial were the only judges of the facts, and it was for them to come to their own decision upon those facts. However, in a number of passages before he gave this correct direction as to the function of the court with respect to the facts, he made a number of material comments which, in our view, are not in accord with the proper law relating to summings up.

In Hobbs v. Tinling [1929] 2 K.B. 1, at p. 49 Sankey L.J. referred to a passage from the judgment of Lord Reading C.J. in R. v. O'Donnell (1917) 12 Cr. App. R. 219, at p. 221, which is in the following terms: "A judge, when directing a jury, is clearly entitled to express his opinion on the facts of the case, provided that he leaves the issues of fact to the jury to determine. A judge obviously is not justified in directing a jury, or using in the course of his summing up such language as leads them to think that he is directing them, that they must find the facts in the way which he indicates.

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But he may express a view that the facts ought to be dealt with in a particular way, or ought not to be accepted by the jury at all." See too R. v. Mason (1924) 18 Cr. App. R. 131, at p. 132.

These authorities were referred to in R. v. Kerr (No. 2) [1951] V.L.R. 239, at p. 248, where the Full Court said: "In the case of a judge's comments it is not important that they were strong or even justified, but it is important to inquire whether, by lack of the necessary warning or otherwise, the jury might reasonably take them as indicating that the matters in question had already been decided and they should not or need not decide them for themselves." (See Broadhurst v. The Queen [1964] A.C. 441, at p. 464 and Hoger v. Ellas (1962) 80 W.N. (N.S.W.) 869, at p. 880.)

In a number of instances the learned judge advocate has asserted, in our opinion, his own views and opinions so strongly as to render it at least possible that the court-martial would have considered it unnecessary to deliberate upon important matters independently or at all. When speaking of the allegation that the applicant did not strike Warrant Officer Kenyon the learned judge advocate gave the following direction: "The second allegation is that on the facts it has not been proved that the accused struck Warrant Officer Kenyon. So far as direct evidence is concerned, the weight of evidence lies clearly with the prosecution. Two warrant officers have given clear and direct evidence of a striking. There is no direct evidence whatsoever for the defence. The accused has no recollection. Corporal Medana is quite an unsatisfactory witness on the point, in my opinion. You must of course, gentlemen, form your own opinion. When he was questioned in clear terms by the President his answer on the critical points of the evidence was unambiguous. He said, and I quote, `What he done with his arms, I don't know. I could not see them'. There is therefore clear and direct evidence for the prosecution uncontradicted by any direct evidence from the defence."

This passage occurs at a time when the only statement given by the learned judge advocate as to the division of functions between himself and the court was to the effect that it was his duty not only to advise the court on the law but to assess the evidence. It was Corporal Medana's evidence that the appellant did not at any time leave the floor level of the hut. It was therefore open to the court-martial to conclude that this evidence cast doubt upon the evidence of the warrant officers that the applicant descended to the lower step to strike Warrant Officer Kenyon, and if this conclusion had been reached then an acquittal of the charge was open.

It was not, as we have already stated, until the conclusion of his summing up that the learned judge advocate told the court they

(1967) 12 FLR 87 at 99

were judges of the facts. The passage to which we have referred states in dogmatic terms that the only witness called by the defence who could be relied upon by the applicant as casting doubt upon the evidence given by the warrant officers was not to be accepted by the court-martial. The learned judge advocate strongly indicated that Corporal Medana was an unsatisfactory witness upon the crucial issue of the striking, and he asserted to the court-martial that the weight of evidence upon this issue lay clearly with the prosecution. In our view this passage, unredeemed to any satisfactory extent by later qualification, amounts to a serious misdirection on the part of the learned judge advocate. The language used is clearly such as to lead the court-martial to think that he was directing them and that they must find the fact in the way which he had indicated.

Other comments in a similar assertive vein appear elsewhere in the summing up. For instance, the learned judge advocate spoke of the motive which the applicant had for striking Warrant Officer Kenyon when in the applicant's belief the warrant officer was, to use the phrase of the learned judge advocate, "flogging rations". Upon this topic the learned judge advocate made the following comment: "It is possible and even probable that when his judgment was impaired by alcohol this belief should dominate his mind and influence his actions." When speaking of the evidence of the applicant that he had no recollection of the events which occurred at the time of the alleged striking of Warrant Officer Kenyon, he stated that "it was less cogent than evidence given by defence witnesses such as L.A.C. Storer".

In view of our conclusions upon the matters already discussed, it is unnecessary to debate the consequences of these remarks of the learned judge advocate.

In the course of the hearing of this appeal and on a reading of the transcript of proceedings at the court-martial we have observed that the learned judge advocate deliberately decided to take a course apparently contrary to some direction that previously had been given by the Judge Advocate General. That raises the question of the authority of the Judge Advocate General of the Air Force whose position seems to be somewhat obscure, unlike that of his counterpart in the Army. It seems that there is an Army regulation which provides that his rulings will be followed by all members of the service. We find it surprising that there is no statutory provision of any sort providing for the acceptance of decisions or directions in law by the Judge Advocate General of the Air Force. It would have appeared to us to have been desirable that some such provision should have been made, if only to ensure consistency in rulings and directions given by judge advocates to courts-martial from time to time. However, as this deviation from a

(1967) 12 FLR 87 at 100

ruling of the Judge Advocate General has not been relied upon as a ground of appeal in this case, we refrain from making any further comment about the existing position in this regard, and until necessary for a decision we reserve any concluded opinion upon this aspect of the administration of Air Force law.

One further question arose during the hearing of this appeal. That was as to the true nature and character of a view had by the court-martial during the trial. However, the propriety of the course followed at the direction of the learned judge advocate on the application of the defending officer was not relied upon by the applicant as a ground of appeal, and it becomes unnecessary for us to express any final view upon the effect to be given to what is observed by the court-martial on a view and as to the correctness of the procedure followed when taking a view.

In conclusion, we are not unmindful of the difficulties that faced the learned judge advocate in discharging his duties in this case, sitting as he was in a remote area and in trying circumstances, both with respect to surrounding conditions and the recording of evidence as it was given. Furthermore, the same circumstances prevented the defending and prosecuting officers from having ready access to legal authorities and thereby giving to the learned judge advocate the full assistance to which he was entitled.

For the reasons we have given we make the following order: (1) Grant leave to appeal. (2) Allow the appeal and quash the conviction.

Orders accordingly.

Solicitors for the appellant: Deane & Deane & Nutt (Queanbeyan).

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

A.J.L.

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