DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Boyson v Chief of Army [2019] ADFDAT 2

ORDERS

THE TRIBUNAL ORDERS THAT:

1.    The applicant be granted an extension of time for the lodging of a notice of appeal, insofar as the same may be necessary, to the date of filing of his application.

2.    Leave to appeal be granted.

3.    The appeal be allowed.

4.    The applicant’s conviction be quashed.

5.    Any application for costs the applicant intends to make, accompanied by written submissions of not more than five pages, be filed and served within seven days from the date of these orders.

6.    Any response to an application for costs, accompanied by written submissions of not more than five pages, be filed and served within seven days of the service of a costs application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR DECISION

LOGAN J:

1    On 2 May 2019, at the conclusion of the hearing of the application, it was announced that, by majority, the Tribunal had determined that the applicant should be granted the requisite extension of time and leave to appeal, that his appeal should be allowed and that his conviction should be set aside. It was further announced that reasons for the making of these orders would be published at a later date.

2    The following are my reasons for respectfully dissenting from the majority of the Tribunal in relation to the allowance of the appeal and the quashing of the applicant’s conviction.

3    On the evening of 5 April 2017, upon the completion of an All Corps Captains Course at the Land Warfare Centre, Kokoda Barracks, Canungra, Queensland, an end of course function was held at the Officers’ Mess at the barracks. The function was an informal one with a Hawaiian theme. Present at the function were those who had attended the course. They were encouraged to, and most did, dress in accordance with the evening’s theme.

4    The function commenced around 18:30. Beer, wine and spirits were available in plentiful supply. The beer was available from eskies located on the rear verandah of the Mess. The beer available included Corona beer in small, long-necked bottles. The majority but by no means all attendees at the function consumed a considerable amount of alcohol.

5    The applicant, then Lieutenant subsequently promoted to Captain (CAPT) Rhiley Boyson, was one attendee at the function. Another was the complainant, a fellow junior officer and course attendee.

6    At about 22:00, the complainant went to the toilets which abut the mess ante-room and rear verandah. He was dressed in a Hawaiian style shirt and shorts. In the toilets he stood at the urinal trough so as to relieve himself. While standing there with his shorts and underpants lowered to around his ankles, he was tackled to the tiled floor of the toilet area by at least one, unidentified, male defence member. The complainant’s evidence was that, while wriggling on the toilet floor attempting to pull up his shorts and underpants, he felt a penetration of his anus of about five seconds’ duration and related pain.

7    The complainant’s further evidence (Transcript, p 56) was that, having managed to stand up and while still attempting to pull up his shorts and underwear:

… I saw Rhiley [CAPT Boyson] coming back from the sink. In one hand he had a Corona bottle, so a beer bottle, and then he said to me that – to the effect of, “I just stuck this in you” and was pointing, I believe approximating how far it went in. And then he said – you know – words to the effect of, “It was disgusting”.

You said that he pointed to the bottle. What sort of bottle was it? --- It was a Corona beer bottle.

What part of the Corona bottle was he pointing to when he said that he said that he stuck it in you?---He was pointing to the neck of the bottle, I would say a number of centimetres down from the actual opening.

8    As a sequel to this alleged incident, the applicant came to be charged before a General Court Martial (GCM) with the service offence of engaging in conduct outside the Jervis Bay Territory that is a Territory offence, being the offence of sexual intercourse without consent, contrary to s 61(3) of the Defence Force Discipline Act 1982 (Cth) (DFDA), in its application of s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act), formulated as follows:

Being a defence member at Kokoda Barracks Canungra in the State of Queensland, on 5 April 2017 engaged in sexual intercourse with [the complainant], by inserting a bottle into his anus, without his consent, and being reckless as to whether he was consenting.

9    An alternative charge of engaging in an act of indecency, contrary to s 61(3) of the DFDA in its application of s 60(1) of the Crimes Act, was also proffered against the applicant but, it was not proceeded with in light of the verdict in respect of the primary charge.

10    To these charges, the applicant pleaded, “Not guilty”. On 3 December 2018, following a trial, the GCM returned a verdict of guilty in respect of the primary charge. On 5 December 2018, the GCM imposed the following sentence on the applicant in respect of the offence of which it had convicted him:

    Imprisonment for 3 months;

    Dismissal from the Defence Force;

    Reduction to the rank of Lieutenant with seniority in that rank to date from 5 December 2018.

11    Following the automatic review mandated by s 152 of the DFDA and the subsequent dismissal of a review petition lodged by him, the applicant applied to the Tribunal for leave to appeal against his conviction. The application was lodged outside the period specified in s 21 of the Defence Force Discipline Appeals Act 1955 (Cth) (Appeals Act). The delay in the lodging of the application is readily explained by the applicant’s wholly understandable and reasonable desire to await the fate of his review petition. Quite properly, the respondent Chief of Army did not oppose the granting of an extension of time. I therefore agreed that he should be granted an extension of time for the lodging of his application up to the date on which it was filed.

12    Execution of the sentence imposed on the applicant was stayed by a reviewing authority, pursuant to s 176 of the DFDA, pending the hearing and determination of the present application.

13    By interlocutory direction, argument on the application for leave to appeal was directed to be treated as argument on any consequential appeal.

14    The applicant sought leave to appeal on the basis that his conviction was unreasonable or could not be supported having regard to the evidence, pursuant to s 23(1)(a) of the Appeals Act and, further or alternatively, that, in all the circumstances of the case, the conviction was unsafe and unsatisfactory pursuant to s 23(1)(d) of Appeals Act. The factors upon which he relied to support these grounds were as follows:

1    The evidence of the Appellant was supported by the evidence of CAPT Machatsch;

2    The evidence of the complainant in relation to the conduct constituting the offence was uncorroborated and there were serious doubts about both his credibility and reliability;

3    There were at least six witnesses (CAPT Bagwill, CAPT Botham, CAPT Cassar, CAPT Machatsch, CAPT Melia and Mr Vincent,) who were present at the time of the alleged conduct who did not corroborate the complainant’s evidence, and gave evidence that that they did not see the conduct alleged occur;

4    The video taken in the bathroom that night tells strongly against any sexual assault against the complainant, is inconsistent with the complainant’s version and on its own ought to have given rise to a reasonable doubt;

5    It was inherently unlikely that the Appellant would behave in the manner alleged given his good character, his shoulder injury, the fact that there were so many eyewitnesses present in the bathroom, the friendship between the Appellant and the Complainant and the evidence that the atmosphere in the bathroom was jovial throughout.

15    In relation to the proceedings before the GCM, publication of the name and other identifying particulars was prohibited by the application of s 74 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), as applied by s 146 of the DFDA. So as not to subvert the operation of that provision as a result of later proceedings in the Tribunal, an order was made by the Tribunal during the hearing, pursuant to s 18(2)(b) of the Appeals Act, that no report of any part of the proceedings which related to the identity of the complainant be published.

16    In Betts v Chief of Army [2018] ADFDAT2, at [73] – [74] (Betts) and by reference to statements made in High Court cases concerning the meaning and effect of cognate provisions in respect of appeals in the civilian criminal justice system, M v The Queen (1994) 181 CLR 487 (M v The Queen) and MFA v The Queen (2002) 213 CLR 606 and SKA v The Queen (2011) 243 CLR 400, the Tribunal observed of s 23(1)(a) and s 23(1)(d) of the Appeals Act:

73.     … While these are separate grounds, under ss 23(1)(a) and 23(1)(d) respectively of the DFDA Act, they are the same in legal substance: the phrases “cannot be supported, having regard to the evidence” and “unsafe and unsatisfactory” are different ways of stating the same legal concept: M v The Queen (1994) 181 CLR 487 at 492 (Mason CJ, Deane, Dawson and Toohey JJ); MFA v The Queen (2002) 213 CLR 606 at 623-624; [2002] HCA 53 at [55]- [59] (McHugh, Gummow and Kirby JJ); Yewsang v Chief of Army [2013] ADFDAT 1 at [56] (Tracey J (President), White JA (Deputy President) and Logan J (Member)).

74.    The scope of these grounds is now well-established and was explained by this Tribunal in Yewsang at [56]-[59], with reference to M v The Queen, MFA v The Queen, and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The central principles are:

First, the question for the Tribunal is whether it considers that, upon the whole of the evidence, it was open to the DFM to be satisfied beyond reasonable doubt that the appellant was guilty: see M v The Queen at 493.

Secondly, to address that question, the Tribunal must make an independent assessment of the sufficiency and quality of the evidence: see SKA at 406 [14] (French CJ, Gummow and Kiefel JJ); Yewsang at [57]-[59].

Thirdly, the conviction must be set aside if the Tribunal decides that the DFM should have had a reasonable doubt about the appellant’s guilt, even if there is sufficient evidence in law to support it: M at 493-495; Low v Chief of Navy [2011] ADFDAT 3 at [70]-[74] (Tracey J (President), White JA (Deputy President) and Mildren J (Member)).

Fourthly, a doubt experienced by the Tribunal will be a doubt which the DFM ought also to have experienced, except where the DFM’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the Tribunal: M v The Queen at 494.

17    Those observations are just as applicable to an invocation of s 23(1)(a) and s 23(1)(d) of the Appeals Act so as to challenge a conviction by a GCM or, for that matter, a restricted court martial (RCM) as they are to a challenge to a conviction by a Defence Force Magistrate (DFM). A distinguishing feature as between the trial of a service offence by a DFM and a trial by court martial is that a court martial panel is not obliged to, and does not, give reasons for its verdict. The sentencing role undertaken by a court martial pursuant to the DFDA has no counterpart in the role of a jury in the civilian criminal justice system. However, in its role as a tribunal of fact which does not give reasons for its verdict, the role undertaken by a court martial panel in the military justice system is directly analogous that undertaken by a jury. Thus, given the bases of challenge advanced by the applicant, it is especially necessary, in addition to the summary of principle derived in Betts from the High Court cases mentioned, also to take heed of what was stated in The Queen v Baden-Clay (2016) 258 CLR 308, at [65] – [66] (Baden-Clay) in relation to the role of a jury:

65.    It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact”. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial … .

66.    With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.

[Footnote references omitted]

18    Yet more recent authority in the High Court has underscored, by reference to Baden-Clay, the basal role of the jury as a tribunal of fact in the civilian criminal justice system and the imperative need for courts of criminal appeal “not to substitute trial by an appeal court for trial by jury”: Perara-Cathcart v The Queen (2017) 260 CLR 595, at [67]; Lane v The Queen (2018) 92 ALJR 689, at [44] and [50]; McKell v The Queen (2019) 93 ALJR 309, at [49].

19    While, in contrast with the position ordained by s 80 of the Constitution in respect of the trial by jury of civilian criminal offences against the laws of the Commonwealth prosecuted on indictment, it cannot be said that the trial by court martial of service offences is constitutionally ordained, such a means of trial is instead constitutionally permissible: White v Director of Military Prosecutions (2007) 231 CLR 570. In relation to serious service offences and either as a result of the election by the defence member concerned or a request by the Director of Military Prosecutions, trial by court martial is the means ordained by Parliament of determining whether an accused defence member has committed a service offence.

20    That means of trial is neither unique to our times nor to Australia. The trial by a panel of officers known as a court martial of service offences, as an adjunct to service discipline, may be traced back at least to Articles of War issued by Prince Rupert, in his capacity as Commander in Chief, in 1672 at the outbreak of the Anglo-Dutch War, on the authority of a commission issued to him by His Majesty King Charles II: War Office, Manual of Military Law (UK, 1907) 10. In turn, that means of trial was an evolution of earlier provision for the adjudication of service offences by a Court or Council of War comprised of officers and established as required by ordinances made by a Commander in Chief in accordance with authority granted in his commission from the Crown: War Office, Manual of Military Law (UK, 1907) 9.

21    The contemporary Australian provision in the DFDA for courts martial is a reflection of this English heritage. As with juries in the civilian criminal justice system, courts martial have played a central role in military justice systems of such heritage in the determination of whether a charge has been proved for centuries. Latterly, in the United Kingdom, Canada and New Zealand, under the influence of norms that have no counterpart in Australian Federal domestic law, longstanding, ad hoc, court martial based military justice systems have been replaced by the introduction of serving judicial officers into the trial process. In Re Tyler; Ex parte Foley (1994) 181 CLR 18, a majority of the High Court was of the opinion that, if there were to be found in the Constitution a requirement of sufficiency of independence on the part of service tribunals exercising disciplinary powers, a GCM constituted under the DFDA met those requirements. For a brief period last decade, courts martial (and DFM) were replaced by the so-called Australian Military Court. The members of that body were members of the Australian Defence Force who were, by legislation, given a considerable degree of independence in the discharge of their duties but not tenure of the kind mandated by s 72 of the Constitution in respect of those exercising the judicial power of the Commonwealth. The model was found to be constitutionally invalid: Lane v Morrison (2009) 239 CLR 230. Trial by courts martial or DFM was promptly reintroduced.

22    Trial by court martial does not just buttress the discipline of the Australian Defence Force. It also indicates Parliament’s presently subsisting value judgement that, in peace and in war, the making of factual assessments as to whether, on the evidence, a charge of a service offence has been proved beyond reasonable doubt should be undertaken not just by those with ordinary experience of life as with a civilian jury but also, to adopt an eloquent description offered by Heydon J in Haskins v The Commonwealth (2011) 244 CLR 22, at [103] (in no way diminished in accuracy by its appearance in a dissenting judgement), by “officers, sworn to defeat the Queen’s enemies, who are appropriately experienced in the servitude and grandeur of arms and the splendours and miseries of military life”.

23    For these reasons, no less than with a court of criminal appeal and juries in relation to the civilian criminal justice system, there is a need for this Tribunal not to substitute trial by the Tribunal for trial by court martial. It is a serious thing to overturn, under either s 23(1)(a) or s 23(1)(d) of the Appeals Act, the verdict of a court martial panel. The question is whether the Tribunal thinks that upon the whole of the evidence it was open to the court martial panel to be satisfied beyond reasonable doubt that the applicant was guilty of the service offence charged?

24    The role of the Tribunal under s 23(1)(a) and s 23(1)(d) of the Appeals Act being as described above, it follows that that role is much wider than scrutinising the reasons of the officer who determines a review or a petition to the end of deciding whether the conclusion reached by that officer was reasonably open. The Tribunal must conduct its own, independent, assessment of the whole of the evidence before, in this case, the court martial, in order to answer the question posited in the preceding paragraph. Accepting that this is the role and having conducted my own review of the evidence, I find that the summary of the evidence offered by his Honour Judge P E Smith, in the discharge of his additional commission as a Colonel in the Australian Army appointed under the DFDA to review the conviction to be both comprehensive and accurate. I therefore gratefully adopt that summary without further attribution.

25    In keeping with the non-publication order, I have deleted from the summary which follows the name of the complainant. I have also omitted footnoted references to the transcript. The reference to “the accused” is a reference to “the applicant”.

The complainant

17.     … [The complainant] arrived at the function at about 1900 hours and started drinking, consuming about six beers over the evening. He knows the accused having first met him at RMC in February or March 2013. They were friends. He had nothing to do with the accused after finishing at RMC. He had a good relationship with the accused over the course.

18.    He recollects that he went to the toilets about two or three times throughout the course of the evening. By 10 or 11pm he had had six beers and went to the toilets to urinate. When he went to the urinals there were four to six people there including CAPT Botham and the accused. He pulled his shorts down to urinate, having them below his knees as a bit of low brow humour and he started urinating. He was then tackled to the ground from behind, he landed on the ground, on his bum and hips. He was trying to pull his pants up and then he felt a really sharp pain. The pain was in his anus. There was someone to the right of him crouched over him. The pain lasted for about 5 seconds. He then tried to push the person away or kick them. He yelled “what the fuck, what the fuck are you doing”. At the time he did not know what caused the pain but felt like he had been penetrated with something. It penetrated about five centimetres or so. He was shocked and continued to pull up his shorts.

19.    Once he got up from the floor he saw the accused coming back from the sink basins with a Corona bottle. The accused said “I stuck it in you and it was fucking disgusting”. The accused was pointing to the neck of the bottle a number of centimetres down from the actual opening. He mimicked throwing up. He estimated it was about 60 seconds from being tackled to the ground to when he saw the accused. The only other person he recalled in the bathroom was CAPT Botham. After the accused made the comment the accused left the toilets. The complainant was still in pain and he put his hand into his underwear and there was a small amount of blood on his hand. He used toilet paper to soak up the blood. He did not consent to the penetration with the bottle.

20.    After he walked out CAPT Annie Tanner asked him if he was ok and the complainant at that stage tried to laugh it off. He heard comments about “[the complainant] got penetrated” and he laughed it off denying it. He told CAPT Courtney Cleggett what happened in the toilets about 24 hours later. He also on the evening saw CAPT Tanner talking to the accused for about a minute sometime between 10:30pm and llpm. The complainant stayed in the mess until about 11:30pm or midnight when everybody left.

21.    After this he went back to his accommodation. He also believes he had contact with his wife. The following day a group went to the beach on the Gold Coast and then he flew from Brisbane to Adelaide and got home between 2030 and 2130 hours. He then told his wife that he had been penetrated with a beer bottle.

22.    Exhibit 18 was a photograph taken of a group that evening and exhibit 19 was a course photograph.

23.    In cross-examination he confirmed he had six or seven beers on the night of the function. He agreed that he would have been intoxicated when he went into the bathroom but he was not stumbling or slurring his words. He did not recall making any comments to the accused about the accused wearing thongs. He agreed that he pulled his shorts and underwear down below his knees as part of a humorous atmosphere. He saw the accused and CAPT Botham in the urinals at the time. He had no recollection of anyone trying to grab at his shorts at the urinal. He did not know who tackled him to the ground and did not recall anyone holding him on the ground. He was not sure how many people were involved in the tackle. He agreed that the tackling was also part of the humour. The aggrieved did not see what caused the sharp pain in his anus and did not see who did it. At the time there were potentially up to six people in the bathroom. He agreed that he was not in a position which easily enabled anything to put into his anus. He could not recall that he was laughing and joking about what had occurred. He recalled CAPT Botham watching the accused retch into the sink. He was confident there was blood on his fingers. He agreed he didn't seek any medical treatment that night. He could not say whether the accused was intoxicated. It was possible that the accused placed a beer bottle between his thighs about six inches below his bottom at the urinal. He disagreed with the proposition he had difficulty recalling because he was drunk. He did not recall telling CAPT Tanner or CAPT Cleggett that he thought it would be funny to pull his shorts down around his ankles and pee like a little boy and “they tried to stick a bottle in my arse”. He later agreed that he said “they tried to stick a bottle in my arse”. He said the bottle did actually go into his arse.

24.    A USB containing video footage was tendered as exhibit 20 and still photographs from the video were tendered as exhibit 21. In the video from the night in question it appeared the complainant’s shorts were below his knees and he was reaching to pull them up. He did not have a recollection of CAPT Vincent holding a plastic sign over him. He agreed he was smiling with his shorts down in the bathroom. The video was after the tackle but before the penetration. It was put to the complainant that he was mistaken as to how he ended up on the ground and was mistaken as to something penetrating his anus but he denied this. He denied that he was mistaken about any sexual assault happening in the bathroom that night. It was put to him that the conversation with the accused about the Corona bottle did not occur but the complainant denied that.

CAPT Andrew Cassar

25.    CAPT Cassar gave evidence that he attended the course at Canungra. He also attended the end of course function on 5 April 2017. He had a number of alcoholic drinks and was intoxicated. At one stage he went to the toilet, to the urinal. The complainant was to his left and he recalled someone pulling the complainant’s pants down but the witness focussed on finishing what he was doing and then he recalled the complainant being on the ground. He heard some laughter. The complainant’s pants had been pulled down all the way to his ankles but he did not see who pulled the pants down. He then saw the complainant on the floor trying to cup his genitals. He recalled hearing laughter at that point. CAPT Machatsch or CAPT Bagwill were present as were CAPT Tofa and CAPT Wetherill. He did not recall how long the complainant was on the ground for and did not see the complainant stand up. He washed his hands and went back to the function. When he left the complainant was still in the toilet.

26.    In cross-examination the witness said he did not have any recollection of the accused being in the bathroom. He did not recall anyone being near the complainant when the complainant’s pants were down around his ankles. He did not recall anyone on top of the complainant in the bathroom. He agreed the mood in the bathroom was jovial. He did not see a beer bottle inserted into the complainant's anus.

CAPT Christopher Wetherill

27.    CAPT Wetherill gave evidence he was at the function. He knew both the accused and the complainant. He had about two or three beers prior to arriving at the function and was intoxicated later but he was still functional. At one stage he went to the toilets and someone had vomited. At one stage he saw the accused in the toilet in a group talking.

28.    In cross-examination he agreed he saw the accused in the toilet about half way through the night. He did not speak to the complainant that night and did not see him in the bathroom.

Mr Curtis Tofa

29.    Mr Curtis Tofa was also on the course and at the function. He consumed Coronas that evening. He knew both the accused and the complainant. He visited the male toilets that night and recalled that it stunk of vomit.

30.    In cross-examination he said he did not recall seeing the accused in the toilet or the complainant in the toilet that evening. With respect to the complainant and the accused he did not form any particular views as to their state of intoxication. When the accused was affected by alcohol he was a very happy, outgoing person and not aggressive. The accused was dedicated to his training. The accused also had an injured shoulder and didn’t participate in one of the mess games because of this. Based on his knowledge of the accused the allegation was out of character. The witness had never seen the accused behave in the manner alleged.

CAPT Justin Ryan

31.    CAPT Ryan gave evidence that he attended the function. During the course of the evening he had between six and ten Coronas then he revised this to perhaps 10-12 Coronas. Immediately after dinner he was the most intoxicated but by 12 midnight he stopped drinking completely and was not as intoxicated at about 2am. During the evening he used the male toilets but did not see the accused or the complainant there.

32.    In cross-examination he agreed the nominated fine sheriff for the course was CAPT Bagwill. The complainant was a very active member of the charge session group which occurred maybe twice or three times a week.

CAPT Annie Tanner

33.    CAPT Tanner gave evidence that she went to the function. She had about three or four drinks and was not intoxicated. She was in a group of people looking at a video on a mobile phone. She saw a still of the complainant on the ground in the bathroom with his pants down. He appeared to be grabbing at his pants and a wet floor sign had been placed over his legs. As a result of that photo she spoke to the complainant. She asked him if he was ok and he said “no I don't think I am, no I’m not”. He said that he had been at the urinal, he had his pants down and he had been grabbed and a bottle was stuck up his arse. His facial expression was saddened. He was sheepish and withdrawn and shocked. CAPT Tanner asked him if he would like to report the incident and he said he didn’t want to do it as he didn’t want to get anyone in trouble or make a big deal out of it. He said he did not want the accused, Rhiley, in trouble. After this the witness had a conversation with the accused. She asked the accused if he’d stuck a bottle in [complainant’s given name’s] arse and he said “yes but I made myself physically ill from it, I went and vomited in the sick afterwards”. He was disgusted in himself. CAPT Tanner said to the accused “that’s fucked”. The accused at another point spoke to the complainant saying “are we cool, are we good”. The complainant responded “yeah mate we’re fine” but sounded quite grim.

34.    In cross-examination she did not recall the complainant drinking alcohol that evening but formed the view that she did not think he was intoxicated. She could not say what the accused’s level of intoxication was. She denied that the complainant said that it would be funny to pull his shorts down around his ankles and pee like a little boy but he did describe that he pulled his shorts down around his ankles. She could not recall the exact wording but he said that he had stood at the urinal with his pants pulled down and peed at the urinal. He said that he was grabbed from the urinal by a group of men and then someone stuck a bottle in his arse. She persisted in her evidence that the accused had admitted that he stuck a bottle in the complainant’s arse. She also persisted in her evidence that he told her that he had gone and vomited in the sink. She agreed she was a good friend of the complainant’s. She disagreed that she was simply trying to give evidence to support him as a friend. She thought she was impartial.

35.    She agreed that she did not report the incident to the chain of command. She disagreed that the complainant had said that someone “tried” to stick a bottle up his arse. She denied giving evidence to help the complainant as a friend and said she was probably a better friend with the accused.

CAPT Jillie-May Reading

36.    CAPT Reading gave evidence that she was at the function. She had about six to eight alcoholic drinks and was mildly intoxicated. Later in the evening she overheard a conversation in a group about something which occurred in the toilets. There were about five to six members in that group, namely CAPT Luke Staples, the accused and CAPT Justin Ryan. She could not recall who said the words. She heard someone say that the complainant had slipped over in the men’s bathroom and urinated on himself. Her impression was the complainant seemed to be enjoying the night. Both the complainant and the accused were no more intoxicated than herself. The complainant was part of the conversation. As to the accused he was a quiet member but he was open, positive and approachable.

CAPT Courtney Cleggett

37.    CAPT Cleggett was also at the function. ·She did not consume alcohol that evening as she was pregnant. The complainant told her that he was in the toilets trying to be funny and peed like a little boy with pants around his ankles and he said words to the effect of “they tried to stick a bottle in my arse”. He was laughing when he said this. The accused then showed her a picture on his mobile phone which had the complainant lying on the ground with his pants down but with a safety sign so you couldn't see his private area. She was shocked and told the accused to delete it and he said no. Later she spoke again to the complainant and asked him whether he was alright and he said “no I’m not fucking alright”. She said that the complainant was intoxicated and the accused was similar. She left the function with the complainant. At that time he was no longer drinking alcohol, he was very quiet, staring a lot and looking sad.

38.    In cross-examination she agreed that she had told - ADFIS investigators that the complainant and the accused had consumed a significant amount of alcohol. She also agreed that she told ADFIS investigators that the accused seemed more composed than the complainant. She agreed that CAPT Tanner was drinking alcohol but she did not recall her being intoxicated. It was her impression that the photograph was taken on the accused’s phone. With respect to the laughing by the complainant she thought it was an embarrassed laugh.

CAPT Leon Botham

39.    CAPT Botham gave evidence that he knew both the accused and the complainant. He was at the function. He was unsure what he consumed that night but by the end of the night would have been drunk. Towards the end of the evening he went to the toilet and was in there with the complainant. He used the urinal and was washing his hands and the guys were mucking around wresting and being rowdy [sic]. A number of people were wrestling standing up and then wrestling on the ground. He knew that the complainant was wrestling but was not sure who the other guys were, but it was more than one. He then saw the complainant on the floor. He was not sure if the complainant was still on the floor when he left the toilets. He did not recall seeing the accused in the toilets.

40.    In cross-examination he agreed that mess games were common at the functions. He did not specifically recall the accused being at the end of course function. He did recall that the accused was recovering from a shoulder injury, which affected his ability to participate in course activities such as PT. He never heard the complainant yelling “what the fuck” or “what the fuck are you doing”. He did not recall anyone vomiting into the sink. With respect to the accused he had never seem him act in the manner alleged. He had the impression the accused was very dedicated to flying and training.

CAPT Vincent Machatsch

41.    CAPT Machatsch gave evidence that he knew both the accused and the complainant. He was also at the function. He was drinking Coronas and he believed he had about 20 to 25. Later in the evening he went to the toilet at about 2130 to 2200 hours and there was a mass of people there. He saw CAPT Cassar, CAPT Ryan; potentially CAPT Melia and the complainant. The majority were having a chat or washing their hands but the complainant was at the urinal with his pants around his ankles. By this stage the witness had consumed about 10 or 12 drinks and was affected by alcohol but had complete motor control over what he was doing. He then saw the accused come into the toilet, walk past the complainant and then place a beer bottle between the upper thighs of the complainant who clenched his thighs to hold the bottle in place. The accused then went to the right side of the urinal to go to the toilet. It seemed like a joke between the two of them. He then saw someone grabbing at the pants of the complainant who was moving away from the urinal but still had his pants around his ankles. He thought this was CAPT Ryan. The bottle was placed about 15 to 20 centimetres from the complainant’s buttock crease. It was angled at about a 45-degree angle. He recalled the complainant as attempting to pull his pants up but did not see the complainant on the ground at any stage.

42.    The witness was shown exhibit 21 which jogged his memory. The video happened after the placing of the bottle between the complainant’s legs. He can’t recall the complainant being on the floor. After he went outside he was standing with CAPT Tanner, CAPT Cleggett and the accused and the accused said “I put a bottle in [the complainant’s] arse”. He was smiling when he said this and was drunk.

43.    In cross-examination the witness thought the accused was referring to the act the witness had seen. He did not see a beer bottle being put into the complainant’s anus. From hat he observed the complainant seemed to laugh. He thought it was a form of practical joke. He didn't see anyone vomiting in the bathroom, nor did hear anyone yell “what the fuck are you doing”.

CAPT Clarke Melia

44.    CAPT Melia gave evidence that he was at the function. He had about five to ten beers that evening. He went to the toilets on one occasion and the complainant walked in to use them and he recalled the complainant pulling his pants down and standing at the urinal mimicking a kindergarten-aged boy. He thought this was in the latter part of the evening. At that stage someone grabbed the complainant from behind, there was a wrestle. He believed that person was the accused but couldn’t be 100 per cent sure. They both ended up on the floor and they were trying to wrestle the pants off the complainant. The wrestling went on for less than one minute, the witness washed his hands and walked out. His recollection is the complainant put his pants back on as he was leaving. He was shown the video, exhibit 20, but it did not jog his memory as to who else was in the bathroom. He could not say if the complainant was still in the toilet when he left.

45.    In cross-examination he said that the wrestle was not depicted in the images. The images occurred after the wrestle. He said that after the complainant was mimicking going to the toilet like a kindergarten boy there was laughter. His recollection of the order of events was the complainant pulled his pants down and stood there; the accused initiated a wrestle and tried to remove the complainant's pants completely; they ended up on the floor and then the accused handed the complainant the pants back. The video showed the complainant at the end putting his pants back on. He certainly heard laughter in the room. He did not see a beer bottle being inserted into the complainant's anus whilst in the bathroom. When he left the bathroom the complainant was on the floor as depicted in the pictures.

CAPT James Vincent

46.    CAPT Vincent attended the course and was at the function. He had about five to seven drinks. He was reasonably drunk but could still function. At one stage he recalled being in the toilets with CAPT Bagwill and he saw the complainant come in and was standing at the urinal with his pants around his ankles talking about how liberating it was for a young child to urinate with their pants down. The next thing he recalled was seeing the complainant on the ground. He didn’t know how he got there. His pants were still around his ankles. He then went back out to the deck. He was shown the video, exhibit 20, and agreed that he was the one placing the “slippery when wet” sign on but he did not have any independent recollection of doing that.

47.    In cross-examination he agreed that the complainant seemed jovial and happy when he was in the bathroom. He was also laughing. In a statement to ADFIS he said that when the complainant was on the ground he was laughing and he did not recall if there were other people in the room but the complainant was laying on his back. The witness then washed his hands and left about 10 to 15 seconds later. Also he told ADFIS there were three trainees still in the bathroom when he left.

CAPT Jack Bagwill

48.    CAPT Bagwill was at the function. He consumed about 12 beers, three or four Jack Daniels and coke and a few nips of port. Although he was inebriated he was still in control. On one visit to the toilet he saw the complainant at the urinal, noting his buttocks were bare and exposed. The witness proceeded to the urinal. The complainant ended up on the bathroom floor. He saw the complainant laying on the ground as if he'd fallen straight back from the urinal. His pants were still between his buttocks and his knees. When the witness left the bathroom he could not recall if the complainant was still on the floor. There were three or four others in the bathroom but he did not know who they were. The video, exhibit 20, did not jog his memory. The video showed CAPT Vincent placing a wet floor sign on the complainant.

49.    In cross-examination he agreed that he had purchased Five Seed cider and Corona beer for the function. When he saw the complainant at the urinal he was bare foot. He regarded it as a type of joke. He did not know as to how the complainant came to be on the floor. When he was urinating he heard a commotion and some laughing. He didn't hear the complainant saying “what the fuck”. It was a jovial atmosphere in the bathroom. He described the accused as reserved and kept to himself and did not recall seeing him in the toilets. At no stage did he see anyone stick a beer bottle into the complainant’s anus.

Record of interview with the accused dated 11 December 2017

50.    The record of interview with the accused was then played to the court. He said that he went to the bathroom and he saw the complainant had pulled his pants down. He then put a stubbie between the complainant’s thighs as a joke. He then threw the bottle way and then went to the toilet next to the complainant. He denied tackling the complainant to the ground. The bottle went nowhere near the complainant’s bum or cheeks. The bottle was six inches away from the anus. He threw the bottle away as it was empty. He denied inserting the bottle into the anus. At no stage did he grab the complainant. The complainant was tackled while the accused was at the urinal. He admitted talking to CAPT Tanner who said it wasn't funny. He did not otherwise recall what she said.

W02 Andrew Crawford

51.    WO2 Crawford gave evidence that he was the ADFIS commander in South Australia. He commenced his inquiries into the case on 1 December 2017 and conducted the record of interview with the accused on 11 December 2017. The record of interview was tendered as exhibit 23.

52.    In cross-examination he agreed that he was concerned to speak as swiftly as possible to the accused. Exhibit 24, the accused's service record was tendered. The Warrant Officer confirmed the accused did not have any criminal history or discipline history. The Warrant Officer also gave evidence that he spoke to CAPT Tanner after taking the statement from the complainant.

The complainant’s wife

53.    [The complainant’s wife] gave evidence that she spoke to the complainant on the telephone and he sounded detached and different. On Friday evening he arrived home at about 5.30 pm. He told her that he was in the bathroom at the urinal and a group of guys came and tackled him, pulled him to the ground, pulled down his shorts, held him there and one of them stuck a beer bottle in his arse. He was fairly emotionless when he was explaining this.

Accused’s Medical Records

54.    Exhibit 26 were accused's medical records relative to the arm injury.

Defence case

55.    The accused did not give evidence but character evidence was called.

26    In this summary, “ADFIS” is, as I understand it, an acronym for the Australian Defence Force Investigation Service” and “PT” is an acronym for “Physical Training”.

27    The applicant’s contentions were fairly summarised in the particulars pleaded in his notice of appeal, as set out above. These contentions, as the respondent Chief of Army correctly submitted, took up the essence of the points made on behalf of the applicant in his defending officer’s closing address to the court martial panel.

28    The present case is, in my respectful view, a paradigm example of one where everything turned on the assessment by the court martial panel of the credibility of witnesses which they saw and heard. That is an advantage which the panel had and which we on the Tribunal do not. Neither individually nor collectively did the contentions made on behalf of the applicant to the court martial panel, and repeated to the Tribunal, dictate that a reasonable doubt be held.

29    The above summary discloses that there were inconsistencies in the evidence before the panel as to the events on the evening of 5 April 2017. These were for the panel to consider in deciding whether it was satisfied that the charge was proved beyond reasonable doubt. There could be no doubt that the complainant was, at some stage late in the evening, on the floor in the toilet area of the mess with his pants and underwear around his ankles, i.e. with his naked buttocks exposed. That his anus was penetrated by the neck of a Corona beer bottle wielded by the applicant was not wholly dependent on acceptance of the complainant’s evidence as to what he felt in his anus and, in the immediate aftermath of that feeling, saw of the applicant and heard from the applicant by way of confession.

30    True it is that, if the panel accepted that part of CAPT Machatsch’s evidence, it corroborated the applicant’s version, as related in his record of interview, that he had placed the beer bottle between the complainant’s thighs, some six inches from his anus. But they were not obliged to do this. CAPT Machatsch’s evidence also included his hearing a confession by the applicant immediately afterwards in the mess anteroom to placement of a beer bottle in the complainant’s anus. He thought it was said as a joke but, on his account, it was said. CAPT Tanner’s evidence, if accepted, was not just of a confession by the applicant of the placement of a beer bottle in the complainant’s anus but of the subdued mood of the complainant in the anteroom immediately after the alleged event. In that same immediate aftermath, CAPT Cleggett related hearing the complainant say, “no I’m not fucking alright” and being “very quiet, staring a lot and looking sad”. Taken in conjunction with the complainant’s evidence, it was, in my view, reasonably open for the panel to conclude that the act charged had been admitted to others by the applicant in its immediate aftermath, entirely consistent with observations made as to his mood in the immediate aftermath of the event he claimed had occurred and proved to the requisite standard.

31    Many so-called inconsistencies amongst those who went to the mess toilet area when the complainant was there could be no more than the recollection many months later of a brief visit which occurred and concluded either before or after the alleged incident.

32    One possibility raised in the course of argument, prompted by looking at the video, was that the appellant may have injured his anus via some projection on the floor, given the evidence of his vigorously writhing on the floor. But there was no evidence of any such projection and that possibility was not put to the panel. To find in such a possibility a doubt such that the appeal should be allowed would be to embark on the type of usurpation of the tribunal of fact deprecated by the High Court in Baden-Clay.

33    The applicant put that, as with M v The Queen, this was a case where there was an inherent improbability that the charged events could have occurred. In this case, so the submission went, the event charged, if it occurred as related by the complainant, occurred in an area where a number of other officers were present and others were coming and going. The particular passage in M v The Queen where the inherent improbability in the circumstances of that case was described was the following (at 500):

But more important than any individual matter was the improbability of the appellant acting as he was alleged to have done in the circumstances prevailing on that night, namely, on a squeaky bed in an unlocked bedroom which was only a short distance from, and within hearing distance of, another bedroom occupied by the appellant’s wife, in a·fully occupied, small house.

34    The prevailing circumstances in the Officers’ Mess late in the evening of 5 April 2017 were, on any view of the evidence, very different. The event concerned was planned to be a light-hearted one at the conclusion of a lengthy course. So, on the evidence, it proved to be. Much alcohol was consumed by many. The video taken of the complainant in the toilet area was played in the course of the hearing before the Tribunal. There was never any suggestion that it depicted the whole of events there. The complainant is revealed to be in a jovial, even frivolous, mood. So, too, is whoever placed the sign over him while he was on the floor. And it was open to the panel to conclude that so, too, was the applicant. It was for the panel members, in weighing up the evidence, bringing to bear their experience of military life, to decide whether there was an improbability that the applicant acted as he was alleged to have done and thereby to entertain a doubt. It was, on the whole of the evidence, reasonably open, in my view, for the panel to conclude that there was nothing inherently improbable about the event occurring as alleged, however much they might lament that a candidate for promotion to senior subaltern, as opposed perhaps to an adolescent officer cadet or recently appointed, immature Second Lieutenant or Lieutenant, might behave in such a fashion.

35    Of course the evidence as to the events of that evening was not all one way. But the Court marital panel enjoyed the singular advantage over the Tribunal of seeing and hearing the witnesses and making informed value judgements as to their credibility accordingly. Conceding to the panel that advantage, as I must, I regard their verdict as reasonably open on the evidence.

36    As to the granting of leave to appeal, in Coulter v The Queen (1988) 164 CLR 350, at 356, the Mason CJ, Wilson and Brennan JJ stated:

The jurisdiction which the court exercises in determining an application for leave is not a proceeding in the ordinary course of litigation ... It is a preliminary procedure recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention.

37    The same, in my view, is true of the leave condition found in s 20(1) of the Appeals Act in relation to grounds of appeal which do not entail a question of law. That is applicable to the grounds relied upon by the applicant. The Appeals Act does not specify the criteria which must be satisfied for leave to appeal to be granted. However, the requirement for a grant of leave to appeal against conviction on a ground which does not raise a question of law may be traced to the Criminal Appeal Act 1907 (UK) (Criminal Appeal Act). The granting of leave is certainly not a formality. In the civilian criminal justice system and in relation to Australian analogues of the Criminal Appeal Act, the approach has been that the requirement for a grant of leave entails an assessment of the arguability of the ground(s) concerned. If the ground is reasonably arguable, leave is granted: Rasic v The Queen [2009] NSWCCA 202, at [2], [12]; RWB v The Queen (2010) 202 A Crim R 209, at [128]. In my view, a like approach should inform the Tribunal in deciding whether to grant leave to appeal.

38    I accept that the grounds specified in the notice of appeal are reasonably arguable. However, for the reasons given, it was (and remains) my view that the appeal should be dismissed.

Associate:    

Dated:    30 May 2019

BRERETON JA:

39    On 3 December 2018 the appellant (then) Captain Rhiley Boyson was convicted by a General Court Martial of an offence of sexual intercourse without consent contrary to s 61(3) of the Defence Force Discipline Act 1982 (Cth) (“DFDA”) and s 54(1) of the Crimes Act 1900 (ACT), particulars of which were:

Engaging in conduct outside the Jervis Bay Territory that is a Territory offence, being the offence of sexual intercourse without consent

Being a defence member at Kokoda Barracks Canungra in the State of Queensland, on 5 April 2017 engaged in sexual intercourse with [the complainant], by inserting a bottle into his anus, without his consent, and being reckless as to whether he was consenting.

40    An alternative charge of engaging in an act of gross indecency, contrary to s 61(3) of the DFDA and s 60(1) of the Crimes Act, was not proceeded with in light of the verdict in respect of the primary charge.

41    On 5 December 2018 the appellant was sentenced to imprisonment for three months, dismissal from the Defence Force, and reduction to the rank of Lieutenant with seniority in that rank to date from 5 December 2018. For the purpose of the automatic review provided for by DFDA s 152, the Reviewing Authority obtained a report under DFDA, s 154(1)(a), from Colonel (now Brigadier) His Honour Judge Smith, who advised the Reviewing Authority that he could detect no error of law in the conduct of the trial, such that the conviction may be confirmed on review, and that there was no error in the punishments imposed nor were they excessive, and that they also may be confirmed on review, although it was entirely within the discretion of the Reviewing Authority to mitigate the punishments if he or she thought fit. By Minute dated 20 January 2019, the Reviewing Authority Major General Bilton, Commander Forces Command, confirmed the conviction and approved the punishments. Meanwhile, however, on 24 December 2018, the appellant had lodged with the Reviewing Authority a petition for review, under DFDA s 153, in respect of which the Reviewing Authority obtained a further report from Captain Renwick CSC, RANR, SC, a s 154(1)(a) legal officer, who on 1 March 2019 advised that the petition should be dismissed.

42    By notice of appeal filed on 19 March 2019 and amended on 27 March 2019, the appellant applies for leave to appeal to this tribunal. The only grounds of appeal are that the conviction is unreasonable and cannot be supported having regard to the evidence (under s 23(1)(a) of the Defence Force Discipline Appeals Act 1955 (Cth) (“the Appeals Act”)), and/or that in all the circumstances of the case, the conviction is unsafe and unsatisfactory (under s 23(1)(d) of the Appeals Act). At the conclusion of the hearing of the appeal on 2 May 2019, the Tribunal extended time for lodging an appeal to the date on which it was lodged, granted leave to appeal, and (by majority: Brereton JA and Perry J; Logan J dissenting) allowed the appeal and set aside the conviction, with reasons to be published subsequently. These are my reasons for concluding that those orders should be made.

Extension of time

43    Section 21 of the Appeals Act requires that an appeal, or an application for leave to appeal, to the Tribunal be lodged “within the appropriate period”, or within such further period as the Tribunal allows, and defines the “appropriate period” as the period of 30 days commencing immediately after the earlier of the day on which the results of the s 152 review are notified to the appellant, or the last day of the period of 30 days after the conviction. The results of the s 152 review were notified to the appellant on or about 21 January 2019, and the period of 30 days from 22 January expired on 21 February 2019. The period of 30 days after the conviction expired on 2 January 2019, and the period of 30 days commencing on 3 January expired on 2 February 2019 which, being the earlier of the two relevant periods, was the time by which an appeal was required to be lodged.

44    The appellant therefore requires an extension of time within which to appeal, which was not opposed – a position very properly adopted, given that the appellant was not notified of the outcome of his s 153 petition of review until sometime after 1 March 2019 (being the date of Captain Renwick’s report), and the notice of appeal was filed very promptly thereafter. It is at least usually reasonable for a convicted person in the position of the appellant to exhaust their rights of review before resorting to an appeal to the Tribunal. In those circumstances, it was appropriate to extend the period for lodging an appeal to the date on which it was lodged, being 19 March 2019.

Leave to appeal

45    Leave to appeal to the Tribunal is required, except on a question of law [Appeals Act, s 20(1)]. As the “unsafe and unsatisfactory” grounds can succeed on the basis that the Court Martial should have entertained a reasonable doubt, even if there was sufficient evidence in law to support the conviction [see, for example, Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [85]], it follows that these grounds do not raise a question of law. Leave to appeal is therefore required.

46    In Angre v Chief of Navy (No 3) [2017] ADFDAT 2 the Tribunal (Tracey, Logan and Brereton JJ) considered the test for leave to appeal in the context of the Tribunal and said:

42    The purpose of a requirement for leave to appeal is generally to serve as a filter on unmeritorious or trifling appeals, so as to restrict the appeal procedure to appropriate matters and thereby promote the efficiency of the Tribunal’s appeal procedures: Coulter v The Queen (1988) 164 CLR 350 at 359. Most principles concerning leave to appeal have been developed in the context of interlocutory appeals in civil matters, and considerable caution is required in their application in the present context of appeals from final convictions in quasi-criminal matters, where, as Deane and Gaudron JJ observed in Coulter (at 359):

“In a case such as the present where the application for leave to appeal was from a criminal conviction or information to a first court of appeal exercising general supervisory appellate jurisdiction, the requirement of leave effectively represents no more than a means of efficiently disposing of prospective appeals which would obviously fail since it is difficult to envisage circumstances where a competent application for leave to appeal to such a court could properly be refused in a case where the conviction should be set aside if leave were to be granted and the appeal were to proceed to a full hearing.”

43    In other words, leave would not be refused in a criminal appeal if it appeared to the tribunal that there had been a miscarriage of justice warranting the quashing of a conviction. An equivalent approach should apply in this Tribunal.

47    This is, self-evidently, not an appeal which would obviously fail; a grant of leave to appeal is therefore appropriate.

Unsafe and unsatisfactory

48    While the grounds that the conviction is unreasonable, or cannot be supported, having regard to the evidence; and that in all the circumstances of the case, the conviction is unsafe or unsatisfactory, are separate grounds, under ss 23(1)(a) and 23(1)(d) of the Appeals Act respectively, they are legally indistinguishable: the terms “unreasonable”, “cannot be supported, having regard to the evidence” and “unsafe and unsatisfactory” are different ways of stating the same legal concept [M v The Queen (1994) 181 CLR 487 at 492 (Mason CJ, Deane, Dawson and Toohey JJ); MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [58] (McHugh, Gummow and Kirby JJ); Yewsang v Chief of Army [2013] ADFDAT 1 at [56]].

Principles

49    The principles which inform those grounds have recently been restated by the New South Wales Court of Criminal Appeal in Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78, by Bathurst CJ (with whom Johnson J and Fullerton J concurred), as follows (emphasis added):

84    The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the Court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487 at 492-494; [1994] HCA 63, namely that the Court is required to make its own “independent assessment of the evidence”. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M the Court also stated (at 494) that “[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced” and “[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred”: see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59].

85    As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a Court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice.

86    In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46]-[48].

50    The respondent rightly points out that, in considering these grounds, an appellate court “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses” [M v The Queen at 493; SKA at [13] (French CJ, Gummow and Kiefel JJ)], and that the assessment of the reliability and credibility of witnesses is quintessentially a matter for the jury [Akai v R [2014] NSWCCA 210 at [134]]. These considerations are reinforced by the following observations of the High Court in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] (footnotes omitted):

65    It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.” Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

66    With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

51    Nonetheless, the concluding words of that passage, and the authority cited for it (namely M v The Queen, at 494-5), show that the ultimate question remains whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Baden-Clay does not affect the propositions that:

(1)    the appellate court must make its own independent assessment of the evidence, and if after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen and heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside;

(2)    in most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced, and only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt may the court conclude that no miscarriage of justice occurred;

(3)    while it is not sufficient, to render a verdict unreasonable, that a review of the evidence shows only that it was possible for a jury to reach a different conclusion, it is also not sufficient, for a Court to conclude there was no miscarriage, that there was evidence on which a jury could convict: if after giving full weight to the primacy of the jury, the Court is left in reasonable doubt as to the verdict, it is only where the jury’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the Court can conclude that there was no miscarriage of justice.

52    These principles have been stated in this Tribunal, with reference to M v The Queen, MFA, and SKA, in Yewsang v Chief of Army; in Hodge v Chief of Navy [2015] ADFDAT 4 at [31]-[36]; and in Betts v Chief of Army [2018] ADFDAT 2 at [74]. Drawing on those authorities, and having regard also to Baden-Clay and Dickson, they may for present purposes, in the context of an appeal to this Tribunal from a conviction by Court Martial, be stated as follows:

(1)    First, the question for the Tribunal is whether it thinks that, upon the whole of the evidence, it was open to the Court Martial to be satisfied beyond reasonable doubt that the appellant was guilty [M v The Queen at 493; Baden-Clay at [66]].

(2)    Secondly, to address that question, the Tribunal must make its own independent assessment of the sufficiency and quality of the evidence [M v The Queen at 492-4; SKA at [14] (French CJ, Gummow and Kiefel JJ); Dickson at [84]; Yewsang v Chief of Army at [57]-[59]].

(3)    Thirdly, although it will not suffice to set aside the conviction if it appears only that it was possible on the evidence for the Court Martial to reach a different conclusion, the conviction must be set aside if the Tribunal decides that the Court Martial should have had a reasonable doubt about the appellant’s guilt (in the sense that it must, as distinct from might, have entertained such a doubt), even if there was sufficient evidence in law to support it [M v The Queen at 493-5; Libke at [113]; Dickson at [85]; Low v Chief of Navy [2011] ADFDAT 3 at [70]-[74]].

(4)    Fourthly, a doubt experienced by the Tribunal will generally be a doubt which the Court Martial ought also to have experienced, and if after giving full weight to the primacy of the Court Martial the Tribunal is left in reasonable doubt, it is only where the Court Martial’s advantage in seeing and hearing the evidence is capable of resolving the doubt that the Tribunal can conclude that there was no miscarriage of justice [M v The Queen at 494; Dickson at [85]].

53    The issue before the Tribunal was therefore whether it was open (in the sense described in SKA and Libke) on the whole of the evidence for the Court Martial to be satisfied, beyond reasonable doubt, that the appellant had, at the time and place alleged, inserted a bottle into the complainant’s anus. For the reasons that follow, in my opinion it was not.

Background

54    The incident which gave rise to the proceedings occurred in the male bathroom in the Officer’s Mess at Canungra on 5 April 2017, during an end-of-course function for the All Corps Captains’ Course, on which the complainant (an Army Captain of the same cohort as the appellant) and the appellant were both students. The theme was Hawaiian, and there was a band, dancing, slide show, and various mess games, including drinking games. Alcohol was consumed, in considerable quantities, by most of those present, including the complainant, the appellant, and all the relevant prosecution witnesses other than Captain Cleggett.

The appellant’s account

55    At the outset, it is important to appreciate that the appellant, while disputing that he had inserted a beer bottle into the complainant’s anus, did not dispute that, in the course of the evening, in the male bathroom, he had placed a beer bottle between the complainant’s thighs.

56    The appellant was first apprised of the allegation on 11 December 2017 when ADFIS investigators arrived at his unit. In the ensuing recorded interview (which was recorded audio-visually, and transcribed, and the audio-visual record as well as the transcript was available to the Tribunal), the senior investigator recorded what had transpired at their initial contact, which the appellant agreed was accurate (emphasis added):

Q33.    Just before I go on and speak to you about the allegation I just want to go through with you a record that I’ve made of what has transpired this [sic] far from when I first met you, which I have recorded in my service police notebook. So basically I arrived at Headquarters 6 Aviation this morning just after 11 and I did have a chat with the CO to make some arrangements to see you and a couple of other people. So I have recorded at 1148 hours at the briefing room at Headquarters 6 Aviation I met LT Boyson and I introduced myself and CPL Bettes. At 1149 I cautioned LT Boyson. You replied that you understood the caution. At 1150 I informed LT Boyson of the purpose of my visit and the nature of the allegation against him and then offered him the opportunity to take part in an interview after caution. LT Boyson said yes and then you made a comment words to the effect of, “That's not how it happened” and I said, “Well, we can talk about that in an interview”, or something along those lines, or similar words.

57    At the commencement of the recorded interview, the senior investigator said:

Q1.     … Sir, I am making inquiries into an allegation that on 5 April 2017 in the male toilet of the Canungra officers’ mess at Kokoda Barracks in Canungra you did assault captain, now [the complainant] of [unit] in the male toilets by inserting a beer bottle into his rectum, a serious allegation - I intend to ask you some questions in relation to the allegation, but before I do I am going to remind you of the caution which is that you do not have to say or do anything, but anything you do say or do may be used in evidence.

58    Offered the opportunity to consult a lawyer, the appellant said that he would like to:

A14.    Take a break to have a think about it because I just [or obviously] want to clear up what I’ve done, because that wasn’t what I did, but it’s obviously a big allegation at the moment.

59    Thus from the moment he was confronted with the allegation, the appellant’s response was to the effect that he had done something, but not what was alleged. Having consulted a legal officer, he was asked for his version of events:

Q35.    … Okay, sir. Sir, I mentioned to you briefly at the headquarters what we were making inquiries into, obviously a very serious allegation that in fact at the course, the function at the end of the course at the officers’ mess an incident occurred in the male toilets. [The complainant] alleges that he was urinating at the trough and that he was tackled to the ground and that someone then shoved a beer bottle or similar into his anus and he alleges that that was you that did that. So that’s obviously a very serious allegation. A lot of time has elapsed since that allegedly occurred and now, and he says that he has been trying to reconcile with that and struggling a little bit about what happened, but he has come forward. Last week he made a statement to us and he asked for this matter to be investigated by ADFIS.

A.         Right.

Q36.    Do you want to provide any account, any version or do you want to say anything in relation to that allegation?

A.        Yes. I want to give my version of what happened there.

Q37.    Yes, please carry on, sir.

A.    So it was the course function there and so I’m kind of shocked as well because I was good mates with [the complainant]. Yes, went to the bathroom. He was at the urinal going to the bathroom but he'd pulled his pants down like a - everyone was mucking around at the course function. So he was urinating like a child, they pull their pants down and they go to the toilet. And then I walked in with my stubby and he'd gone and just put it between his legs, so thighs, as a - a not funny joke at the time. So I was holding the bottle, as you would hold a bottle, and then with the tip, the end down and it went in between his thighs as he was at the trough going to the toilet. And then I threw that bottle away and then went to the toilet next to him. So I never tackled him to the ground and put a bottle in him or had any intent to do that with what I did do with putting it by his thighs.

Q38.    Okay. Is there anything else, sir?

A.    There were other people in there but I’m not sure who was in the bathroom. There probably would have been at least five, five people I suppose in the bathroom.

60    In the course of the recorded interview, the appellant also said that the bottle went nowhere near the complainant’s anus or his “bum or cheeks”, but between his thighs, some six inches away from his anus. He also said that immediately after placing the bottle between the complainant’s thighs as he stood at the urinal, he threw the bottle away and then went to the urinal next to the complainant, and was urinating when someone else pushed the complainant to the ground.

The complainant’s evidence

61    The only direct evidence of the alleged incident was that of the complainant, who said that it occurred in the male bathroom between 2200 and 2300 hours. He entered the bathroom, wearing a Hawaiian shirt and shorts; there were then four to six other men in the bathroom, including the appellant and Captain Botham. He went to the urinal and, in an attempt at juvenile humour, dropped his shorts and his underwear down below his knees as he stood at the urinal to urinate. While standing at the urinal, he was “tackled” to the ground; this amounted to him being pushed down from the shoulder by one or more others, whom the evidence did not identify. He fell over backwards; his bottom hit the ground first:

When you fell, what part of your body hit the ground first?---I believe it was sort of around my bum and hips.

62    He was on the ground, trying to pull up his pants, when he felt a sharp pain:

So while you were on the ground what happened next?---So I was on the ground, I was trying to pull my shorts up and – yeah, I sort of felt a really sharp pain.

63    He was sitting on his buttocks, with his legs straight out in front of him, wriggling in an attempt to pull his shorts up:

Now, you said you were trying to pull your shorts up; how were you trying to do that?---So, I was on the ground sort of trying to sit up and pull my shorts up at the same time. From memory, I just grabbed on to my shorts. I was trying to pull those up but my underwear was sort of still around my knees and impeding that.

How were you positioned on the floor at that stage?---So, do you mean like orientation wise or how my body was positioned?

How were you pulling your shorts up, where your body was positioned, where your feet were?---Okay. So, I was on – at the point where I marked on the map sort of where I initially fell. I was sort of I suppose half sitting up but my feet were out in front, almost like a – I suppose like a sit up but with my feet extended, and yes, my bum was on the ground.

How bent were your legs?---From memory, they were relatively straight.

As you were on the ground, how were you moving your body in order to pull your shorts up?---Yes, so I was sort of just wiggling my body trying to get my shorts up, I think. Yes, just trying to pull your shorts up while you’re sitting on the ground is quite difficult and I think I was just trying to get them up as quickly as I could.

64    The sharp pain he felt was in the vicinity of – he variously used the words “on” and “in” – his anus:

You told us that you felt a sharp pain; where did you feel that?---In – like on my anus.

CHIEF JUDGE ADVOCATE: What was that, sorry?

PROSECUTOR: Where did you feel that sharp pain?---I felt it in my anus.

65    It lasted for about five seconds:

How long did that pain last for?---It was quite quick. I would say between say five and - probably five seconds.

66    He did not know what was causing the pain, but said that he felt as if he had been “penetrated” with something:

At that stage when you felt that sharp pain, did you know what was causing that sharp pain?---At the time, no.

Whilst you were feeling that really sharp pain, are you able to describe to us what you felt was happening with your anus?---I felt like it was – like I’d been penetrated with something.

Do you know how far you felt that you’d been penetrated?---I think probably a few centimetres, probably five centimetres or so, I could definitely feel something.

67    At that time, his buttocks were still on the ground:

When you felt that pain and that penetration, are you able to describe to us what your body position was, how you were on the ground?---Okay. So, I was still in the – sort of the stage of trying to pull my shorts up, so my upper body was up from the ground. My bum was in contact with the floor and I believe say the – like the heel of my shoes were in contact with the floor. But yes, from memory, I think like the – sort of like my right – my right side was higher up which exposed my anus.

Do you know how high up it was, your right side?---I can’t recall specifically, no.

Do you recall how far your buttocks or your back was off the ground?---No, I can’t really recall that.

68    He noticed somebody “crouching down over” him to his right:

PROSECUTOR: While you felt that pain, what did you see?---So, I had somebody to the right of me, sort of crouching down over me, but I was still trying to I suppose pull my shorts up. So, the view was off the wall, however, there was somebody was like next to me, crouching next to me.

69    He said he was yelling “what the fuck” or “what the fuck are you doing”, stood up and pulled his shorts up:

What, if anything, were you saying at this stage?---I think I was yelling, like “What the fuck?” or “What the fuck are you doing?”.

…

When that sharp pain stopped, what did you see? I withdraw that. When that sharp pain stopped, what did you do?---I have difficulty to recall. I think I was just shocked. I continued to pull my shorts up so I stood up and pulled my shorts up.

How long did it take you to pull your shorts up?---Probably about 10 seconds.

70    In cross-examination, he confirmed that he did not know who had tackled him, did not see what was used to cause the pain he experienced, and did not see who it was who did it:

You don’t know who it was who you described as tackled, but you don’t know who it was who tackled you, pulled you to the ground?---No.

…

You didn’t see what was used to cause this sharp pain in your anus, did you?---No.

That is as it was occurring?---No.

You didn’t see who did it?---No, I can’t recall.

71    After he stood up, he saw the appellant, who said that he had stuck a beer bottle in him:

As you were pulling your shorts up, where were you doing that?---I believe it was in the vicinity of where I was fallen on the ground, but potentially I was a bit closer to the – to the wall when I stood up. I’m not too sure if I kind of stood up and walked around a couple of steps or not.

When you had stood up, how far up were your pants by that stage?---When I stood up, I believe I had my pants up around my waist where they go.

When you stood up with your pants around your waist, what did you see next?---Okay. So, I saw Rhiley coming back from the sink basins.

As CAPT Boyson was coming back from the sink basins, what did he do?---He had a Corona bottle in one hand. I can’t recall what that hand was in, and - you know – he said, “I just” – I believe it was like “I stuck it in you”, and then pointed how far it was and he said, “It was fucking disgusting”.

CHIEF JUDGE ADVOCATE: Just get him to repeat that. I couldn’t understand.

PROSECUTOR: [The complainant], what I’ll get you to do is just repeat what you said CAPT Boyson did, but I’ll also get you to use words to the effect of?---Okay.

What you heard the words that came out of his mouth were to the best of your ability to remember?---Okay. So, I saw Rhiley coming back from the sink. In one hand he had a Corona bottle, so a beer bottle, and then he said to me that – to the effect of, “I just stuck this in you” and was pointing, I believe approximating how far it went in. And then he said – you know – words to the effect of, “It was disgusting”.

You said that he pointed to the bottle. What sort of bottle was it?---It was a Corona beer bottle.

What part of the Corona bottle was he pointing to when he said that he said that he stuck it in you?---He was pointing to the neck of the bottle, I would say a number of centimetres down from the actual opening.

As he said that, what facial expression did he have?---I can’t recall his expression when he said and pointed to the bottle, but when he said it, it was – you know – words to the effect of, “It was disgusting”. He was mimicking throwing up.

Do you recall seeing him throw up?---No.

Did you hear him throw up?---From memory, no.

From the point that you were tackled to the ground to that point where you stood up and saw CAPT Boyson, what period of time had elapsed?---I would estimate no more than 60 seconds.

72    The helpful summary of the evidence before the Court Martial contained in Colonel Smith’s report, which is replicated in the President’s reasons, states that in cross-examination the complainant “recalled CAPT Botham watching the accused retch into the sink”. That is not quite accurate; the relevant evidence was:

DEFENDING OFFICER: It’s all right, I’ll do it another way. To your observation did CAPT Botham say anything to you or CAPT Boyson at that point in time in the toilets?---Yes. Yes, he did.

What was that?---He said that as he was washing his hands that CAPT Boyson was retching in the sink.

CHIEF JUDGE ADVOCATE: Would you just get him to repeat that, I didn’t understand that?---Okay, so – sorry, one moment.

I think the question is did CAPT Botham say anything to you or – did you put also CAPT - - -

DEFENDING OFFICER: Or CAPT Boyson.

CHIEF JUDGE ADVOCATE: Yes?---Okay, so I recall Leon – I’m not sure if he was talking to me or to Rhiley, we were close together, said that he was watching Rhiley retch into the sink.

73    In other words, what the complainant recalled was not Captain Botham watching the appellant retch into the sink, but Captain Botham’s hearsay report that the appellant “retched in the sink”. Captain Botham’s evidence was that although he recalled the complainant in the bathroom, wrestling with others, including on the floor, he saw nothing more than “guys having fun”, did not see anyone insert a bottle into his anus, did not recall seeing the appellant in the bathroom, and did not recall seeing someone vomit or retch into the sink – though as to that he added that it was not something he would pay much attention to so as to remember it nine months later.

74    The complainant said that he put his hand into his underwear and when he pulled his hand out there was a small amount of blood, on the tips of three of his fingers. He went into one of the cubicles and used toilet paper to soak the blood, and then left the bathroom. According to Captain Tanner and Captain Cleggett (though the appellant did not recall this), he subsequently in the course of the evening told each of them aspects of what he said had happened in the bathroom.

The video clip

75    Part of the incident was captured by someone present in a video clip on a mobile phone, which appears to have been distributed almost immediately to a number of the course members present. The video (which covers less than five seconds) depicts:

(1)    the complainant sitting on his bottom on the floor in the men's bathroom, with his legs extended in front of him, knees slightly bent, and his shorts below his knees, and no shoes on;

(2)    Mr Vincent having placed a pink plastic cleaning sign over the complainant's crotch, as if to preserve his modesty;

(3)    the complainant apparently laughing, and Captain Melia looking at the complainant from the urinal and smiling;

(4)    the complainant wriggling his buttocks and legs in an endeavour to pull up his shorts, with them well above his knees by the end of the clip, but their crotch held back by his underpants, which were still below his knees;

(5)    as he wriggled to pull up his shorts, the complainant raising his left buttock from the ground very slightly – five centimetres at the most;

(6)    by the end of the video, there is no one in the complainant’s immediate vicinity, let alone crouching beside or over him, and there is no sign of the appellant, though there are other men – including Captain Machatsch, Mr Vincent, Captain Melia, and the photographer (whoever he was) – in the room.

76    The evidence does not reveal who recorded the video clip, and it was not suggested that it was the appellant. While the appellant had some images from the night on his phone, and showed one to Captain Cleggett, the statement in Colonel Smith’s summary, that “It was her impression that the photograph was taken on the accused's phone”, is neither entirely accurate nor complete. Captain Cleggett’s relevant evidence was that it was not her impression that the appellant had taken the photograph, but that the phone on which she was shown it was his:

The phone that was being handed around with the photo on it, did anyone tell you who took the photo?---I had an impression at the time who took the photo, but I don’t know how I knew that, I just – yes, I – so no.

But your impression wasn’t that it was CAPT Boyson who had taken the photo?---That was not my impression, no.

The phone that was being handed around, you don’t know whose phone that was do you?---It was my impression that it was CAPT Boyson’s phone. To my knowledge it didn’t get handed around, he held it and showed me. I never touched the phone.

That being your impression, you didn’t know?---No, I did not know.

77    Even that rose no higher than an impression, and even if the impression were correct it would not mean that the photo was taken on the appellant’s phone: there was evidence that the video clip (and Captain Cleggett’s description of the photo she was shown corresponds with the opening frame of the video clip) was electronically distributed to several course members very shortly after it was taken.

78    The complainant said that the events depicted in the video occurred before he felt the pain in (or on) his anus. Although he did not recall the placement of the pink cleaning sign, the video is consistent with his evidence that:

(1)    he was on the ground, trying to sit up and pull up his shorts, but his underwear was still around my knees and impeding that;

(2)    he was “half sitting up” with his legs extended relatively straight and his “bum was on the ground”; and

(3)    he was wriggling his body trying to get his shorts up.

79    At the trial, and before us, the complainant’s reliability was the subject of attack, including on the basis that he was intoxicated; that he said he was wearing shoes, when the video clearly showed that he was barefooted; that he had no recollection of the pink cleaning sign being placed over him, as shown in the video; that (contrary to the evidence of Captain Tanner and Captain Cleggett) he had no recollection of that night telling either of them anything about the incident, nor of any conversation in which the appellant apologised to him; that his account was inconsistent with Captain Cleggett’s evidence that he told her that someone “tried to put a bottle up his arse” following which he was then tackled to the ground; that (contrary to his wife’s evidence) he had no recollection of telephoning her that night; and that his evidence was inconsistent with the version he told his wife 48 hours after the incident.

80    The Court Martial must have accepted that despite these criticisms, the complainant was an apparently truthful and reliable witness as to the essential facts – being that he experienced pain in the vicinity of his anus and saw a little blood on his fingers, and the “admission” he attributed to the appellant. In deference to the Court Martial’s position of advantage in having seen and heard the complainant give his evidence, including his cross-examination, so should the Tribunal. But it does not follow that this proves, beyond reasonable doubt, that the appellant performed the act charged. As has been observed, the complainant did not see what caused the pain in the vicinity of his anus, nor who it was who caused it. His actual knowledge was only of unexplained pain in the vicinity of his anus, unexplained blood, and what the appellant told him. How he was able to assess that he had been penetrated “five centimetres or so” is not apparent, though the answer may well lie in his belief that when the appellant showed him the bottle that he said he had stuck in him, he was indicating how far. It is entirely natural that once told by the appellant that he had stuck a bottle in him, he would have associated the pain with what he was told. However, he described landing on his bottom when he was “tackled”. With his shorts around his lower legs at the urinal, he was effectively hobbled, and would have had no capacity to protect himself as he fell; he probably landed quite hard, on a hard tiled floor. The mechanism of his fall, and his subsequent struggle to reposition his shorts, could account for his experiencing trauma, injury and pain at the foot of his spine, or in his buttocks, near his anus. This possibility is not necessary to my conclusion, below, that as a matter of physical possibility, in the circumstances, the insertion of a beer bottle into his anus is improbable in the extreme. But it does illustrate that insertion of something – and in particular a bottle – into his anus is not the only rational explanation for the pain and a small quantity of blood. And when coupled with what he understood the appellant to have told him in the bathroom, it provides an explanation as to how the complainant could honestly and credibly have been mistaken as to the cause. It also demonstrates the centrality of the “admissions” to proof of the appellant’s guilt.

Physical impossibility

81    Against that background, provided by the complainant’s evidence and the video clip, the appellant submitted that it was physically impossible for a bottle (or any item) to have been inserted into the complainant’s anus, positioned as he was sitting on his bottom with his legs extended in front of him.

82    The complainant’s evidence in chief, set out above, was that when he felt the pain/penetration, his “bum was in contact with the floor and … the heel of my shoes were in contact with the floor”, though “from memory, I think like the – sort of like my right – my right side was higher up which exposed my anus”. In cross-examination, he agreed that he was sitting on his bottom throughout, and that he was not in a position that would easily have permitted anything to be put in his anus:

You, throughout this time, you were sitting on your bottom, weren’t you?---Yes.

You weren’t in a position that would have easily enabled anything to be put into your anus were you?---I – I would say, yes I’d agree with that.

83    This was subsequently revisited:

Just a moment please, sir. You said already that you were sitting on the bathroom floor with your pants down, and we can see that in the still images, how do you say something was penetrated into your anus?---I’m sorry, it’s a question about how I believe someone physically could do that in that position?

Yes?---I’m honestly not too sure how it could occur, I could suggest that somebody could push a leg over to the side, say my right leg over to the side, or push my body back further onto the ground.

But you don’t know and you didn’t see?---No, in the time that it occurred, I’m not sure exactly what – which of any of those occurred.

…

You don’t recall having your leg pushed over or your body pushed back do you?---I can’t recall exactly what occurred, no.

84    The suggestion that his body could have been pushed back further onto the ground is entirely implausible: he did not remember it occurring, and if it had, access to his anus would have been from in front of him, with him lying on his back, in which circumstances the shorts he had almost completely pulled up would have presented an obstacle, and more significantly he could not have failed to have seen the perpetrator. Nor is it at all apparent how his right leg could have been pushed “over to the side”. The video confirms the complainant’s evidence that his buttocks were on the ground, and (at the end) shows him raising his left buttock (not his right) slightly, and not to an extent that would expose his anus, let alone provide access to enable a beer bottle to be manoeuvred under him and into his anus.

85    In my view, no plausible explanation has been advanced, either at the trial or before us, for how a Corona beer bottle, with a long neck, could have been manoeuvred underneath, and its neck inserted several centimetres into the anus of, a man sitting on the floor on his buttocks with his legs extended to his front. When asked, counsel for the respondent before us said:

Well, the bottle need not be held vertically to the ground or to the complainant’s anus. If he’s on an angle, the bottle could be held at an angle.

86    However, even on an angle, there would have had to be sufficient room beneath the complainant to manoeuvre a beer bottle into position, and to find the anus. Given the complainant’s position sitting with his buttocks on the floor, struggling to pull his shorts up (which while down effectively hobbled his legs), the notion that his leg could somehow be moved so as to enable this to be achieved, in seconds and without observation or sensation on the part of the complainant, is highly improbable.

87    In my view, as a matter of physical possibility, in the circumstances revealed by the complainant’s evidence and the video, the insertion of a beer bottle into the complainant’s anus is improbable in the extreme.

Absence of corroboration where corroboration is to be expected

88    As the respondent rightly submitted, there is no requirement that the complainant’s evidence be corroborated [Evidence Act 2011 (ACT), s 164]. That, however, is not the point in this case; here the significance of the absence of corroboration is that, given the nature of the alleged incident and the presence of others in the relatively confined space in which it and the events which immediately followed it (including the complainant yelling out, the appellant retching and then showing the complainant the bottle) allegedly took place, absence of corroboration amounts to evidence that the incident did not take place as alleged.

89    As has been indicated, the video clip shows Captain Machatsch, Captain Melia and Mr Vincent – as well as the unknown photographer – as being present at what must have been moments before the alleged assault. Other evidence suggests that Captain Bagwill, Captain Botham and Captain Cassar were also present for at least some of the relevant period. None of these six witnesses, each of whom gave evidence in the prosecution case, observed anything like what the complainant described. Captain Melia recalled a playful wrestle between the appellant and the complainant, on the floor, as best he could tell before the events depicted in the video, but he did not see a bottle being inserted into the complainant’s anus, and firmly denied that he had seen a sexual assault. It may be that not all six were present at the same time, but given that at least four were present at the time of the video, and Captain Melia was still using the urinal at the end of the video clip, it is improbable that not one of them remained when the alleged assault took place moments later, and it is improbable that the alleged assault could have taken place without at least one of them observing it or its immediate sequelae. It is perhaps theoretically possible that after the incident at the urinal, and after the video was exposed, everyone but the appellant and the complainant left the bathroom, but that does not accord with the evidence of the complainant, and the probabilities are otherwise. It is perhaps also theoretically possible that the act was performed without coming to the notice of whoever else was present in the bathroom, but that too seems highly improbable. Those are the type of theoretical possibilities that might, in a defence case, raise a “rational hypothesis”; but when a prosecution case depends on such theoretical possibilities, it is not proved beyond reasonable doubt.

Captain Machatsch’s evidence

90    In contrast to the absence of corroboration for the complainant’s version, and although the appellant did not himself give evidence at the trial, there was direct evidence which corroborated his account of events as given in his recorded interview. The appellant’s version was substantially corroborated by Captain Machatsch, who gave the following evidence:

And when you came out of that stall and saw [the complainant] at the urinals what did you then see?---So as mentioned, I saw [the complainant] standing there, presumably urinating, with his underwear and shorts around his ankles, so completely dropped. And I then saw CAPT Boyson come into the toilet stall - or the toilet, sorry, and then essentially one motion, walked past me, walked past [the complainant], and in one - one motion just placed a beer bottle between the upper thighs of [the complainant], who then, from what I saw, clenched his thighs to presumably hold the bottle in place. CAPT Boyson then went to the right-hand side of the urinal to obviously go to the toilet and from there I believe – I definitely witnessed that and I saw then – I can’t quite recall what happened to the bottle after that because I just remember seeing that and seeing the two having a joke, what I presume was to be a joke, I then turned, I believe I was speaking to someone, and then from the periphery of my vision I recall someone grabbing at the pants of [the complainant] who was then moving away from the urinal but still had his pants around his ankles.

Do you remember who that person was who grabbed at his pants?---I can’t say with absolute certainty but from my recollection I think it is possibly to have been CAPT Ryan, it was someone of – the reason I say CAPT Ryan is because I think I can remember him being in the toilet at the time and I can recall it was someone of larger stature doing that.

When you told us that you saw CAPT Boyson walk past you and walk up to [the complainant] at the urinal where in his upper thighs did he place the bottle?---It would have been approximately 15 to 20 centimetres from [the complainant]’s buttock crease, below, like in the upper thigh region.

Did you see what angle it was pointed in?---It was about from the horizontal it may have been up to a 45 degree angle from the horizontal.

CHIEF JUDGE ADVOCATE: When you say buttock crease are you talking about the top or the bottom of the buttock crease?---The bottom, the horizontal buttock crease, sorry.

Thank you.

PROSECUTOR: You said that [the complainant] clenched his thighs, how long did he clench his thighs for?---I can’t say. I saw him definitely clench his thighs in what I presume was an effort to keep the bottle in place, but then as I turned away once I’d witnessed that, to chat, I can’t recall how long he would have done that for.

How long were you talking to that other person for?---I can’t say in absolute terms, however it was for maybe a minute or two minutes and it would have been after [the complainant] left the toilet but I stopped talking and then I essentially walked out soon after that.

91    Although an application by the prosecutor for leave to cross-examine Captain Machatsch as adverse was at one stage foreshadowed, it was not pursued.

92    It is true that Captain Machatsch’s evidence did not necessarily exclude the possibility that there was a second bottle incident, after the complainant had been pushed to the ground, which he did not witness. However, it provided substantial corroboration for the appellant’s version of events.

The admissions

93    Shorn of the appellant’s “admission” to the complainant in the bathroom – and the other alleged “admissions” to which I shall come – there was no evidence to establish what had caused the pain experienced by the complainant, let alone who (if anyone) was responsible for it. Proof that it was the appellant, using a beer bottle, as alleged, depended on the admissions attributed to the appellant. There was evidence of three:

(1)    to the complainant who, as recorded above, said that the appellant told him “I stuck this in you” and words to the effect of “it was disgusting”;

(2)    to Captain Tanner, who says she asked the appellant if he had “stuck a bottle in [the complainant’s] arse”, to which he responded “Yes, but I made myself physically ill from it. I went and vomited in the sink afterwards”; and

(3)    to Captain Machatsch, who said that the appellant said to him “I put a bottle in [the complainant’s] arse”.

94    The content of these “admissions” must be considered in the context of the events. That context includes, relevantly, that the appellant had admittedly (as Captain Machatsch confirmed) as a prank placed a beer bottle between the complainant’s thighs as he stood at the urinal; that it was an evening of exuberance and hijinks; and that the perceptions of all the relevant witnesses were clouded by substantial quantities of alcohol.

95    The words attributed to the appellant by the complainant were: “I just stuck this in you” pointing how far it went in and “It was disgusting”, mimicking vomiting. But the complainant did not hear or see him vomit. At that point spirits – at least the appellant’s – were still high (he had not yet been spoken to by Captain Tanner about his inappropriateness), and the words attributed to him by the complainant are explicable as a continuation of the “prank” practised at the urinal.

96    The relevant evidence of Captain Tanner was that after the complainant had told her that “a bottle had been stuck up his arse”, she had a conversation with the appellant:

When CAPT Boyson came over to the both of you, what did he say?---I don’t remember the words that he said to come in, but I started a conversation with Rhiley, with CAPT Boyson.

Okay. So, you started a conversation with CAPT Boyson, are you able to give us words to the effect of what you said and then, if he responded, any of those words?---Sure. I asked Rhiley if he’d stuck a bottle in James’s arse, essentially, words to the effect, and his response to me was, “Yes, but I made myself physically ill from it. I went and vomited in the sink afterwards”.

CHIEF JUDGE ADVOCATE: Just pause there. You asked Rhiley if he stuck a bottle in James’s arse. He replied yes, and then what did he say?---“I made myself physically ill and went and vomited in the sink from it”.

Thank you.

PROSECUTOR: When he said those words, what was the tone of his voice?---I sensed that he was quite disgusted in himself.

What facial expression did he have when he said that?---I believe it was kind of jovial, sort of a bit of disgust but a little bit of jovial.

When CAPT Boyson spoke those words to you, did you respond?---Yes, I did.

What did you say to CAPT Boyson?---I pretty much said, “That’s fucked”.

…

PROSECUTOR: Now, you said that there were other occasions that CAPT Boyson came over to you with [the complainant] beside you. What, if anything, did he say on either of those interactions?---So, CAPT Boyson came over approximately three or four times when I was just sitting with [the complainant], and during that time, I do remember one instance with words to the effect of a conversation that I overheard. It wasn’t directly said to me, but it was - - -

I’ll stop you there. It’s only if he spoke to you?---Okay, sure.

Did CAPT Boyson say anything when he came over to you and [the complainant] while you were standing there?---The conversation went on a lot more. I just can’t remember the exact wording, I apologise.

While you were standing beside [the complainant] did you hear CAPT Boyson say anything to [the complainant]?---I did hear him say words to the effect of, “Are we cool?” or “Are we good”.

How many times did you hear him, or how many of those interactions did you hear him say that?---There was probably a couple of those times that it happened.

97    The words to which the appellant allegedly assented were to the effect that he “stuck a bottle in [the complainant’s] arse”. That is consistent with what he admittedly did. It is not unambiguously an admission to inserting the bottle into the anus. At the outset of that conversation – before Captain Tanner pointed out the inappropriateness of the conduct – the appellant appeared to her “kind of jovial”; it is at least plausible that, in his mind, the “prank” was still on. After she had pointed out, in blunt terms, its inappropriateness, he apologised.

98    The relevant evidence of Captain Machatsch was as follows:

When CAPT Boyson joined the group, what, if anything, did he say?---He said words to the effect of, “I put a bottle in [the complainant’s] behind”.

Were they the exact words that he used or words to the effect?---Words to the effect.

CHIEF JUDGE ADVOCATE: So, just, “I put a bottle in [the complainant’s] behind”?---Well, it was more vulgar and I believe the - - -

Just using - - -?---The exact wording was, “I put a bottle in [the complainant’s] arse”.

Thank you.

PROSECUTOR: When he said that what was his facial expression?---I believe he was in an upbeat move [sic, mood].

No, no, just answer the question, what was his facial expression when he said that?---Sorry. Smiling in a happy way.

99    Importantly, in cross-examination, Captain Machatsch gave this evidence:

DEFENDING OFFICER: Captain, I represent CAPT Boyson. When you observed CAPT Boyson saying those words that you’ve just given evidence about did he say those words in a way which suggested to you that that is what he had literally done?---No.

What did you think he was referring to?---I thought he was referring to the act that I’d seen of him putting the bottle between [the complainant]’s legs and that’s why I ascribed nothing further to that.

At any time when you were in the bathroom during this occasion that you have been describing did you see someone stick a beer bottle into [the complainant]’s anus?---No.

100    Again, the words which the appellant allegedly used were to the effect that he “put a bottle in [the complainant’s] arse”. Again, that is consistent with what he admittedly did, and is not unambiguously an admission to inserting the bottle into the anus. Captain Machatsch did not take it to be so, but to be a reference to what he had seen at the urinal. This is entirely consistent with the appellant’s “admission” being part of the “prank”.

101    Proof that the appellant inserted a beer bottle into the complainant’s anus, as alleged, depended on the admissions attributed to the appellant. It must be allowed that the Court Martial accepted the evidence of the complainant, of Captain Tanner and of Captain Machatsch as to the “admissions”, and in deference to its position of advantage in hearing and seeing the witnesses, so should the Tribunal. However, the prank at the urinal – which the appellant admitted and Captain Machatsch confirmed – provides an innocent explanation for those “admissions”, in the terms in which they were said to have been made. Significantly, Captain Machatsch, who saw and heard the appellant make the “admission” and had seen the event at the urinal, interpreted it as a reference to the prank he had seen. At the very least, it cannot be excluded that the appellant’s “admissions” were referable to an event of the type he described, rather than to the conduct charged. But even if the evidence of those “admissions” cannot be reconciled in that way, it must be viewed in the context of the high degree of improbability that the alleged act could physically have been performed in the circumstances, the improbability that it could have been performed without a single other person in the bathroom witnessing it or its sequelae, and the presence of corroboration for the account given by the appellant when interviewed.

Conclusion

102    In my view, once one has regard to:

(1)    the high degree of improbability that the alleged act could physically have been performed in the circumstances, no plausible explanation having been advanced, either at the trial or before the Tribunal, for how a beer bottle could have been manoeuvred underneath and its neck inserted several centimetres into the anus of a man sitting on the floor on his buttocks;

(2)    the possibility that the pain and bleeding experienced by the complainant was associated with trauma and injury from his fall onto his bottom, and not with penetration;

(3)    the improbability that the act charged could have been performed without a single other person witnessing it or its immediate sequelae, despite the presence in the bathroom of half a dozen other officers, including one who exposed video of the complainant on the floor moments before the appellant is alleged to have penetrated him with a bottle;

(4)    in contrast, the existence of corroboration for the account given by the appellant when interviewed, involving the relatively innocuous placement of a beer bottle between the complainant’s thighs as he stood at the urinal, and not the insertion of a bottle into his anus as he sat on the floor; and

(5)    the availability, based on that account, of an innocent explanation for the “admissions” as being referable to what the appellant said (in his recorded interview) he did, as part of the “prank”;

the appellant’s guilt was not proved, even on the balance of probabilities. And even if one were to disregard the possible alternative explanation for the pain and bleeding experienced by the complainant, and to consider that the evidence of the admissions could not be reconciled with the appellant’s account, the other matters still leave a more than reasonable doubt as to the appellant’s guilt. The objective improbability from the physical perspective, the absence of corroboration when it would be expected, and the corroboration of the appellant’s account, are much more reliable foundations than the recollection of conversations through a haze of alcohol.

103    That the Court Martial had the advantage of seeing and hearing the evidence does not explain, in the slightest, how it could have been satisfied that it was physically possible for the act charged to be performed in the circumstances revealed by the evidence. Nor does that position of advantage explain how the Court Martial could have been satisfied beyond reasonable doubt of the appellant’s guilt when not one of the six other officers present in the bathroom during parts of the relevant period – all of them prosecution witnesses – witnessed the act charged, while one did attest to just what the appellant described. The Court Martial should therefore at least have entertained a doubt, and it was not open to it, in the relevant sense, to be satisfied, beyond reasonable doubt, of the appellant’s guilt.

Disposition

104    It was for those reasons that I was, and remain, of the view that the Tribunal should make orders granting the appellant the requisite extension of time, granting leave to appeal, allowing the appeal and setting aside the conviction. As on all the evidence there ought to have been doubt as to the appellant’s guilt, and as the same considerations would apply to the alternative charge of act of indecency, there was no occasion to order a new trial.

Associate:

Dated:    30 May 2019

PERRY J:

105    I have read the reasons of Brereton JA with which I respectfully agree.

Associate:

Dated:        30 May 2019