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.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Logan (President).