MISTAKE OF FACT
54 The prosecution case, insofar as it related to the two insubordinate conduct charges, relied not just on the words which were uttered by the appellant but also on the volume with which those words were delivered. The particulars of both charges referred to the appellant "yelling" at LT Daire.
55 In finding the appellant guilty of insubordinate conduct on the night of 7 April 2009 the Defence Force Magistrate said:
"While I accept the evidence of [the appellant], Dr Vince and Dr Fox that [the appellant] had some hearing problems, on the basis of Dr Vince's evidence I am satisfied that the yelling, to which LT Daire testifies, went beyond a mere raising of the voice that might have been attributable to the hearing problems. I am satisfied that the words and the tone and volume of their utterance were directly referable to a refusal on the part of [the appellant] to subordinate herself to LT Daire's proper military authority as her superior officer discharging the duties of duty officer."
56 In his reasons for decision the Defence Force Magistrate referred to the appellant's evidence about the events on the morning of 8 April 2009. He recorded that:
"[the appellant] says that she did not yell. She thought that she was talking normally. She says that she could not hear what they were saying because of the buzzing in her ears."
57 The Defence Force Magistrate again took into account the volume at which the appellant had spoken to LT Daire. He said:
"So far as the third count is concerned, I accept the evidence of LT Daire and Mr Morrissey that words to the effect of those particularised in the third charge were said by [the appellant]. I am further satisfied that they were yelled at a volume that was, on Dr Vince's evidence, not referable to [the appellant's] hearing problems. I am satisfied that words to the effect of those particularised were uttered in a manner that demonstrated a refusal by [the appellant] to subordinate herself to LT Daire's proper military authority."
58 As already noted these two insubordinate conduct charges were laid under s 26(1) of the DFDA. Section 26(3) provides that offences against sub-section 26(1) are offences of strict liability. As a result, it was not necessary for the prosecution to prove that the appellant intended that her conduct be insubordinate. Section 6.1(1)(b) of the Criminal Code Act 1995 (Cth) provides that if there is an offence of strict liability:
"The defence of mistake of fact under section 9.2 is available."
59 Section 9.2 of the Code provides that:
"9.2(1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed and is under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted an offence."
60 Having regard to s 9.2(1)(b) of the Code, it is necessary to understand what would or would not constitute the offence of insubordinate conduct for which s 26(1) of the DFDA provides.
61 In White v Director of Military Prosecutions (2007) 231 CLR 570 at 644 [223], Callinan J classed the offence of insubordinate conduct as one of those which is "peculiarly and historically of a military kind". Subordination of the members of the Defence Force to their superior officers is not only vital for operational reasons. It is also one manifestation of constitutional arrangements, the origins of which may be traced to Article 6 of the Bill of Rights 1689 (Eng) and the original Mutiny Act 1689 (Eng), whereby each member of the Defence Force, no matter how senior in rank, is subordinate to the Governor-General, as the Queen's representative, who acts only on the advice of Ministers responsible to Parliament: see Millar v Bornholt (2009) 177 FCR 67 at 73-5 [16] - [21], and 76-7 [26] - [27].
62 There are other, peculiarly military features of insubordinate conduct in a disciplined force. For a commander there may, lurking behind such conduct, be insights into grievances, individual or perhaps more widespread, in relation to service conditions or in relation to the style of command of a particular officer or non-commissioned officer. Thus a sequel to the incidence or disposal of a charge of insubordinate conduct may be separate, remedial action by a commander in relation to underlying issues. On other occasions, even where it is tolerably clear that the conduct concerned is insubordinate, the extenuating nature of the surrounding circumstances and, perhaps, an underlying grievance may be such that a value judgment is exercised such that no charge is proferred and, instead, either the individual concerned or his or her superior or both are counselled by a superior officer and the matter left to rest there. The observation of McCardie J in Heddon v Evans (1919) 35 TLR 642 at 647 that, "Military justice is a grave and delicate thing" was made almost a century ago now but it remains true to this day. The presence in s 26 of the DFDA of the offences of insubordinate conduct and insubordinate language does not mean that a soldier, sailor or airman is unable to voice a grievance but they must do so within the limits of respect for authority.
63 Insubordinate conduct is conduct which indicates a defiance or disregard of authority: R v Grant [1957] 1 WLR 906 at 908; Re Nickols's Appeal (1966) 9 FLR 120 at 124. Language not of itself insubordinate, in respect of which there is a separate offence created by s 26(2) of the DFDA, may, having regard to its volume, e.g. yelling, tone and content, as well as surrounding circumstances, and when viewed objectively, constitute a defiance or disregard of the authority of a superior and so constitute insubordinate conduct: Stuart v Chief of Army (2003) 177 FLR 158 at [22].
64 The offences of insubordination for which s 26 of the DFDA provides are to be distinguished from the separate offence, created by s 27(1) of the DFDA, of failing to obey the lawful command of a superior officer. A mere failure to obey a lawful command does not, of itself, constitute insubordination: R v Grant at 908-909.
65 On the hearing of the appeal the appellant argued that, if she was labouring under a mistake of fact as to the volume at which she was talking, because of her hearing problems, she had a good defence under s 9.2 of the Code. Although this defence had not been raised at trial she was not disabled from relying on it on the appeal because, so she contended, once she had given evidence which was accepted and raised the possibility that she might have such a defence, the Defence Force Magistrate was bound to consider and rule on the issue. She referred to Pemble v The Queen (1971) 124 CLR 107 at 117 (per Barwick CJ); 132-133 (per Menzies J). He had not done so.
66 The appellant gave the following evidence-in-chief about the tone and volume of her voice on the evening of 7 April 2009:
"Now, in relation to the tone or volume of your voice in the confrontation after 10 o'clock with LT Daire, what do you think was the volume of your voice? --- I thought it was just normal. Like, as I said, I had severe ear pain, so it was normal to me.
Would you describe yourself as yelling? --- I tend at times to talk loud but I wouldn't call it yelling."
67 The television set was said by the appellant to be blaring in the duty room during this exchange.
68 In her evidence in chief the appellant said that, on 8 April 2009, she thought that she was "talking normally" to LT Daire and SGT Morrissey. She was able to hear some of the things they were saying to her but had had difficulty hearing other things. She said that she had "like a buzzing sound in my ear." Under cross-examination the appellant said that she had not told LT Daire and SGT Morrissey that she had a buzzing sound in her ear or that she was having trouble hearing them. No equivalent evidence was given in relation to the exchange between the appellant and LT Daire on the previous evening.
69 This evidence, it was contended, identified the relevant mistake of fact. It was that the appellant thought that she was addressing LT Daire and SGT Morrissey in her normal speaking voice which did not involve her yelling.
70 In CTM v The Queen (2008) 236 CLR 440 at 447 the plurality observed that, where a reasonable mistake of fact is relied on as a ground of exculpation:
"… the evidentiary onus of raising the ground of exculpation is on the accused, but, once that occurs, the ultimate legal onus of displacing the ground lies on the prosecution. The concept of evidentiary onus itself needs to be understood in the light of the subject matter to which it applies; here, honest and reasonable belief, a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact".
The prosecution must meet its ultimate legal onus beyond reasonable doubt: see Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8; Lyons v R (1987) 24 A Crim R 298.
71 The appellant supported her contention that the Defence Force Magistrate was required to be satisfied beyond reasonable doubt that she was not acting under a reasonable, but mistaken, belief that she was speaking normally, even though her defence counsel had not raised the issue, by reference to the decision of the Queensland Court of Appeal in R v Soloman [2006] QCA 244. The case involved an appeal from a conviction for rape. At trial defence counsel raised with the judge the issue of whether the jury should be instructed that they had to be satisfied beyond reasonable doubt that the appellant had not acted under the mistaken but reasonable belief that the complainant had consented to the sexual encounter. The trial judge had declined to give such a direction because he considered that he had given a direction to the jury that was even more favourable than the one sought. He had told the jury that they could not convict the appellant unless they were satisfied beyond reasonable doubt that none of the complainant's acts, on which the appellant said that he relied in concluding that she had consented, had occurred.
72 The Court of Appeal considered that the jury should have been directed to consider whether the prosecution had excluded the possibility that the appellant had acted in the honest and reasonable, but mistaken, belief that the complainant was consenting: see at [34].
73 Soloman is not authority for the very broad proposition that, when there is any evidence before a court which might support a defence of reasonable mistake, the court must consider whether or not a defence has been made out under s 9 of the Code whether or not the issue has been raised by defence counsel. It is first necessary that the evidence be accepted by the court. That evidence must go not only to the belief but also establish that it was mistaken: see Ostrowski v Zaza (1999) 108 A Crim R 350 at 352; Su v Australian Fisheries Management Authority (No 2) (2008) 189 A Crim R 23 at 34; Lyons at 299.
74 In a case in which a direction under s 9.2(2) or equivalent provisions in other criminal legislation has not been sought or given at trial, the accused will not succeed on appeal unless he or she is able to show that there was material on which the jury could legitimately have entertained a reasonable doubt about the issue of whether he or she reasonably held the mistaken belief: see Millar v R (1998) 103 A Crim R 526 at 528.
75 The appellant did say, in respect of her mode and tone of speaking which constituted the essential element of "yelling" for each of the insubordinate conduct charges, that she thought it was "just normal" or "talking normally" and for the two occasions made reference to her "severe ear pain" and "buzzing sound in my ear" respectively. She denied yelling on either occasion.
76 The Defence Force Magistrate did not turn his mind to the availability of s 9.2 when he considered possible defences to the charges. He did not accept the appellant's evidence that she did not yell while accepting that she had some hearing deficits. He did not consider her explanation that she did not think she was yelling or, if she were, that her belief was reasonable.
77 The respondent contended that the Defence Force Magistrate did so in the passage in his reasons set out at [57]. That argument cannot be sustained. The Defence Force Magistrate was required to consider, since the appellant had met the evidentiary threshold on the balance of probabilities, whether the prosecution had excluded beyond reasonable doubt that the appellant was reasonably mistaken in her belief that she was not yelling. If the prosecution could not discharge that onus then the facts were as the appellant reasonably believed them to be, that is, her normal speaking voice, not yelling.
78 The respondent accepts that it was the conduct in yelling the words charged which constituted the gravamen of the offence of insubordination.
79 The failure by the Defence Force Magistrate to direct himself on a possible defence under s 9.2 in respect of the insubordinate conduct charges has deprived the appellant of the chance of an acquittal in respect of those charges and a substantial miscarriage of justice has occurred.
80 The convictions entered on those charges should be quashed.
81 We do not consider that a retrial should be ordered. The relevant events occurred over three years ago. Through no fault of the appellant the trial did not commence until 3 August 2010. The appellant lodged the petition seeking review of her convictions immediately after the trial. The petition was dismissed on 28 September 2010. The appellant was not advised of this until January 2011. She lodged a further petition with the Chief of Army on 28 January 2011. The appellant was not advised of the outcome of her further petition until January 2012. She then lodged the present appeal. With the passage of time it is likely that the memories of witnesses will have faded. At least one has since left the Defence Force.
82 In these circumstances we do not consider that the interests of justice would be served if the appellant were required to prepare for and participate in another trial.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, White and Logan.