Hardy v Chief of Air Force

Factual Background 23 The appellant and Gibson were married on 22 October 1994. The prosecution case was that the appellant and her husband separated on 19 November 2003. Prior to the appellant's transfer Gibson believed that the appellant was having an affair with a Sgt Miles and did not want her to take the transfer. Gibson's evidence was that early in 2003 he and the appellant had daily telephone calls and that he visited her in February and April 2003. Thereafter the telephone calls continued and further visits were made in July and September 2003. By then his evidence was that although the appellant wanted to remain married, she saw Gibson only as a friend, which he took to be virtually the end of the marriage. Thereafter the parties continued in telephone contact, albeit the conversations were short and "cool". Gibson's evidence was that on about 19 November 2003, he telephoned the appellant and told her that the relationship was over. In very late 2003 or early 2004 Gibson said he met the appellant at a restaurant in Windsor and he confirmed that the relationship was over, although there were no discussions about a property settlement. Gibson said he spent Christmas 2003 alone at the Forest Lake home and did not see the appellant again until February 2004 when she called at the Forest Lake home to collect some clothes. Subsequently, he changed the locks on the home and did not give her a key. His evidence was that after that time the only communication between them was through their respective solicitors. 24 There was evidence also that Gibson had instructed solicitors who wrote to the appellant in January 2004 alleging that she had vacated the Forest Lake home and seeking an undertaking not to return to the home or remove any property from it. The appellant also instructed solicitors who replied by letter dated 13 January 2004. The terms of this letter included: "We are instructed by our client that the marriage has irretrievably broken down" and "we advise that our client wished to have no verbal contact with your client whatsoever… and furthermore all correspondence in relation to this matter is to come through our office". By letter dated 21 April 2004, the appellant's solicitors wrote to Gibson's solicitors making an offer of a property settlement. 25 On 1 December 2004 the appellant commenced proceedings in the Family Court of Australia seeking a financial settlement with Gibson. According to this document the parties separated in December 2003. Ultimately on 22 August 2005 a consent order was filed in the Family Court of Australia which finalised the property settlement, although no divorce proceedings were filed by either party until July 2007 when Gibson made such an application. Gibson conceded that it was not until September 2005 that the appellant removed her furniture from the house. 26 Gibson further gave evidence that the parties operated a joint bank account in 2003 and 2004, out of which the mortgage payments and rates on the home were made. He conceded that the appellant made equal contributions during 2003 but claimed that in 2004 the appellant withdrew more money from the account than she contributed. His evidence was that although the electricity and telephone accounts were in the appellant's name, after February 2004 he paid these accounts personally. In cross examination he conceded that there was telephone contact between them on occasions during 2004. 27 The appellant's evidence was that she began having an affair with Sgt Miles in 2002, but that the affair did not become serious until late 2004. Initially after her posting in January 2003, she lived alone in rental accommodation in Windsor for four months and then in rental accommodation at Ebenezer until September or October 2004 when she moved to Pal Street, Richmond, sharing a house with Sgt Miles. Her evidence was that initially they had separate bedrooms, but she and Sgt Miles formed a de facto relationship in late 2004. She also admitted that she went to Anchorage, Alaska, in May 2004 to attend a conference at the expense of the Department of Defence accompanied by Sgt Miles, whose airfare she paid for by using her frequent flyer points. The appellant said that Sgt Miles "was a friend and I was having a relationship with him", but maintained that she did not regard the marriage with Gibson as over. 28 In June 2004 the appellant accompanied Sgt Miles whilst he inspected properties in Hobartville which he was interested in buying. In that month, Sgt Miles agreed to purchase a house. The appellant guaranteed Sgt Miles' mortgage on the property by becoming a joint mortgagor, although the property was registered only in Sgt Miles' name. In September 2004 both the appellant and Sgt Miles moved into the Hobartville home. She did not tell Gibson about this. The appellant informed DHA about her change of address and applied for rental assistance. She still received the allowances due as MWD(S). All of the utilities in the Hobartville home, gas, telephone and electricity were in the appellant's name. She and Sgt Miles operated a joint bank account into which the rental allowance she received was deposited. According to the appellant, she and Sgt Miles occupied separate bedrooms. Although the affair continued, she denied that she and Sgt Miles were effectively living as husband and wife. Her evidence was that she finally decided that the relationship with Gibson was over on 26 December 2004 because he had not spoken to her over Christmas. At that stage she made up her mind that she wanted to be with Sgt Miles. 29 So far as the travelling to and from the Forest Lake home was concerned, her evidence was to the general effect that she did in fact travel on the occasions complained of. In some instances she produced receipts indicating she was in the Forest Lake area, or at a place nearby, at the relevant times. After Gibson had changed the locks she said she was able to access the house though the garage.

Grounds of Appeal 30 The appellant's notice of appeal contains the following grounds: (a) The findings of guilty on charges 1, 2, 3, 4, 12, 14, 15, 17, 18 and 19 are inconsistent with the findings of not guilty on charges 5, 6, 7, 8, 9, 10, 11 and 13. (b) The learned Defence Force Magistrate (sic) erred in failing to uphold a no-case submission made by the defence on charges 1, 2, 3, 4, 5, 6, 7, 9, 11, 13, 15 and 17. (c) The verdicts are unsafe and unsatisfactory. 31 At the hearing of the appeal, counsel for the appellant, Mr Smith, abandoned ground (b). The following new grounds were argued: (d) There was an irregularity with the trial because the President of the Court had access to and read legal texts before the hearing. (e) The Judge Advocate failed to provide the Court with a circumstantial evidence direction when one was required. (f) The Judge Advocate should have provided the Court with a Shepherd direction. (g) The learned Judge Advocate did not instruct the Court about mistake. (h) The learned Judge Advocate did not draw to the Court's attention the relevant evidence as it related to each charge. (i) The learned Judge Advocate wrongly instructed the Court that the dates alleged in Counts 1 to 4 were not material and there could be a guilty verdict even if the dates were within the period November 2003 to 20 February 2005. 32 Ground (c) was relied upon only to the extent that the verdicts relied upon the evidence of Gibson which it was submitted the Court must have rejected.

Inconsistent Verdicts / Unsafe and Unsatisfactory 33 The appellant argued that the relevant guilty verdicts were inconsistent with the verdicts of not guilty, were an affront to logic and common sense and strongly suggested compromise of the performance of the Court's duty, confusion and misunderstanding. 34 In MacKenzie v The Queen (1996) 190 CLR 348 at 366-368, Gaudron, Gummow and Kirby JJ (with whom Dawson and Toohey JJ agreed) said: 3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone [EWCACrim (unreported, Devlin J, 13 December 1954)]is often cited as expressing the test: He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. 4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman [(1987) 44 SASR 591], in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed [at 593]: [J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that, although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty. We agree with these practical and sensible remarks. 5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. "It all depends upon the facts of the case." 35 First it was submitted that the elements of charges 1 to 4 were indistinguishable from the elements of charges 7, 9, 11, 13, 15 and 17. We consider that it was open to the Court on the evidence to find beyond reasonable doubt that the appellant was not entitled to be classified MWD(S) after she assisted Sgt Miles to purchase the Hobartville home in July 2004 and that she well knew that she was disentitled from any financial advantage after that time. 36 Counts 7, 9, 11 and 13 on which the appellant was found not guilty refer to alleged offences committed prior to July 2004. Counts 15 and 17 relate to offences committed in August and October 2004. There is nothing inconsistent with those verdicts. 37 Next it was submitted that the verdict of guilty in relation to count 12 was inconsistent with the verdicts of not guilty on counts 6, 7, 8, 9, 10 and 11. Each of these counts referred to offences alleged to have occurred prior to July 2004. Count 11 alleged that the appellant obtained a financial advantage on or about 1 April 2004 in the sum of $702.56 for a travel allowance to which she knew she was not entitled. Count 12 relates to making a false statement in relation to the travel in that she did not intend to reside at the Forest Lake home during 19 to 26 April 2004. Although the appellant gave evidence that she did attend at that address at that time, the decision of the Court is explicable on the basis that she did not, in fact, and had no intention of going to the Forest Lake home at the relevant time, although she had an entitlement to the allowance if she had in fact undertaken the travel. Apart from the evidence of Gibson, there was no other evidence that the appellant did not undertake the travel. The appellant's evidence was that she stayed at the Forest Lake home for three nights and that Gibson was there at the time. In support of her evidence, she produced a fuel receipt from Pacific Fuels on the Warrego Highway at Withcott dated 20 April 2004. It was submitted that the Court must have rejected Gibson's evidence in order to find the appellant not guilty on counts 5, 6, 8 and 10. However, it was open to the Court to have a reasonable doubt about those counts, each of which related to the period October 2003 to November 2003. Gibson's evidence did not deny the possibility that the appellant had undertaken reunion travel in 2003. So far as the fuel receipt goes, it was only evidence that someone had purchased diesel fuel at Withcott on the relevant date. Withcott was, on the evidence, on the western side of Ipswich, quite a long way from the Forest Lake home. It was open to the Court to reject the appellant's evidence. The verdict in relation to this count is not unreasonable (i.e. unsafe or unsatisfactory). 38 Next it was submitted that it was unreasonable to have convicted the appellant on counts 14 and 18. Count 14 related to a false statement made in June 2004 in relation to travel to the Forest Lake home in July 2004. Count 18 was a similar charge in relation to the period 28 October to 1 November 2004. The respondent's explanation for the verdicts on these counts is that the Court did not accept that the appellant intended to travel to the house between those dates. The appellant's evidence was that she did travel on those dates. Gibson said he did not see her, although she maintained she was at the home for three days in June and overnight in October 2004 whilst Gibson was there. There is nothing unsafe, unreasonable or inconsistent with the Court's verdict. Although the appellant produced receipts for attending at a toll booth and at a service station which was consistent with her having gone to the Forest Lake area, the travel in October 2004 was at a time when the Court's verdicts indicated that she knew she was not entitled to the travelling allowance and, further, the evidence was she was no longer residing at the Forest Lake address. 39 As to count 19, the argument of the appellant was that it was inconsistent with the findings of not guilty. Count 19 was in the following terms: Defence Force Discipline Act 1982 s 56(1) False Statement in Connection with Application for Benefit Being a defence member at Richmond in the State of New South Wales on or about February 2005 made a false statement in connection with an application for an allowance based on her membership of the Defence Force in that she submitted a form AA157 application to live in, live out and categorisation stating that she and her husband had separated with effect from 26 December 2004 knowing that statement was false in that she was aware that she had separated from her husband in November 2003. 40 The importance of the form AA157 was that by informing her superiors as to her change of status, she would be required to refund allowances she had received up to February 2005. By nominating the separation date as 26 December 2004, the refund covered only the period after that date. Whilst the prosecution case was that she knew she had separated as early as November 2003, it was open to the Court to find that she had the relevant knowledge by July 2004 and was therefore guilty of the offence. 41 The actual date of separation was not a material particular which the prosecution had to prove, but only a matter of particulars: see W v R (2007) 241 ALR 199. At trial, the case was not fought on the basis that the date in November 2003 was material. The prosecution led evidence to show that the appellant had not only separated in November 2003, but remained separated thereafter. The defence case was that there was no separation until 26 December 2004 and the defence sought to show that the parties were not separated between November 2003 and December 2004. 42 A similar complaint was made by Mr Smith in relation to counts 1 to 4. It was submitted that the appellant had been ambushed at trial because the period alleged in those counts was between December 2003 and 26 February 2005. So far as counts 1 to 4 are concerned, it is clear that the prosecution was alleging a continuing offence. In his summing up, the learned Judge Advocate instructed the Court that in relation to those counts, a verdict of guilty could be reached if the Court found a lesser period. At the completion of the summing up counsel for the accused sought a redirection along the lines that if the only period during which the Court was satisfied that the elements of the charges had been made out was between 26 December 2004 and 26 February 2005, the accused was entitled to be acquitted and the learned Judge Advocate so directed. No objection was taken that a verdict of guilty might be reached if the Court found that the offences occurred between some date later than December 2003 and 26 December 2004. Subsequently, after retiring, the Court sought a redirection in relation to this question and, in particular, in relation to count 19. The learned Judge Advocate instructed the Court that if the Court was satisfied that there was a separation earlier than 26 December 2004 and that she knew this when she filled out the relevant form, the offence could be proved even if it was subsequent to November 2003. No objection to this direction was taken by counsel for the accused. The directions given were clearly correct and occasioned no injustice or prejudice to the appellant. 43 It was also argued that the trial was unfair. Mr Smith said it was the prosecution case throughout that the appellant became disentitled to claim a separation allowance as from November 2003. Mr Smith pointed out that it was not until the summing-up that the members of the Court were directed that the offences could take place over a lesser period which, presumably, need not have included the events in November 2003. Mr Smith submitted that this was not the case which the appellant was called upon to answer at the trial. He said the evidence and the addresses focussed on the prosecution case that the appellant and Gibson separated in November 2003. In nominating the starting point for the offending as November 2003, the prosecution relied upon the evidence of Gibson that, on or about 19 November 2003, he telephoned the appellant and told her the relationship was over. 44 The first observation to be made is that the telephone call deposed to by Gibson was not part of any offending alleged by the prosecution. It was relied upon by the prosecution to establish both the nature of the relationship between the appellant and Gibson and the appellant's state of mind as to that relationship. The Judge Advocate's direction related to the period of offending, not the period over which all the events relevant to that alleged offending took place. 45 Furthermore, although the prosecution placed particular reliance on the telephone conversation, it was not the only evidence relevant to the appellant's relationship with Gibson and to the appellant's state of mind. The prosecution relied on a series of incidents to establish its claim that the appellant was not entitled to the allowance. These included events such as the letters between the solicitors for the appellant and Gibson, the lack of contact between the appellant and Gibson as claimed by the prosecution and the circumstances of the appellant's alleged involvement with Sgt Miles, including that he and the appellant moved into a house together in September 2004 and shared the mortgage payments. 46 The reliance by the prosecution on the telephone conversation to establish facts in issue in the case did not prevent those facts in issue being proved by other evidence canvassed by the prosecution and the defence in the course of the trial. It was not suggested that the defence would have conducted its case in any different way if it had anticipated that the Judge Advocate would direct the jury as he did. 47 In these circumstances it is our view that the conduct of the hearing in this respect was not unfair and could not have resulted in a substantial miscarriage of justice.

Irregularity 48 At the commencement of the trial, the learned Judge Advocate instructed the Court as follows: Now, you must take all legal directions from me so do not feel tempted to look at the Discipline Law Manual or any other legal text. It is important for a fair trial for the parties to know what legal directions the members of the Court are applying. If I make a mistake to you, Mr President and Members, then it will plain on the transcript and can be corrected. So in summary, Mr President, you must take the facts from this hearing and the law from my directions. Now, at the end of the trial I will summarise the evidence as it related to the issues that arise in this trial and I will provide directions on the law to assist the Court to reach its verdict. 49 At the end of the Judge Advocate's charge, the President said he had a question and the following exchange occurred: PRESIDENT: I did - in my pre-reading for the trial, in terms of the voting - -- JUDGE ADVOCATE:Yes. PRESIDENT: - - - that when it came to the verdict of "guilty" or "not guilty" with charges that, as you said, we vote in order of seniority. JUDGE ADVOCATE:Yes. PRESIDENT: I think if I'm correctly - and I was trying to find the place in the document here, when it came to the President, I didn't have a casting vote when it came to the verdict of "guilty" or "not guilty"? JUDGE ADVOCATE:No, there isn't a casting vote. PRESIDENT: Mm. JUDGE ADVOCATE:That's so. And if a Court was evenly divided, which can't happen in this case - - - PRESIDENT: Yes. JUDGE ADVOCATE:- - - then the verdict is "not guilty". But that can't happen because there are five members. PRESIDENT: But what if I - I guess that was my reading from previous readings if I had a two - a split of two/two and I don't have a casting vote on that and you're telling me - - - JUDGE ADVOCATE:No, I'm sorry, that would be wrong. No if - Mr President, you have a vote. PRESIDENT: Okay. JUDGE ADVOCATE:So if two were one way and two were the other way, you would need vote - - - PRESIDENT: Okay. JUDGE ADVOCATE:- - - whichever way, and your vote then would have the affect of being a casting vote. I'm sorry, I misunderstood. I thought you meant do you have an extra vote. But, no, there can't be an equality of votes here because there are five members of the Court. PRESIDENT: Okay. That's different - I can't find it now, but that's different to what was said in the document I - - - JUDGE ADVOCATE:Yes. Well if I'm wrong, as I say, it's on the transcript - - - PRESIDENT: Yes, I know. And you're - you give the advice, okay. JUDGE ADVOCATE:Yes. And I'll just - I'll read that again what the law prescribes: On any question to be determined by the Court Martial the members of the Court Martial shall vote orally in order seniority commencing with the member most junior in rank. That's what the law prescribes. PRESIDENT: I understand. Okay. 50 Subsequently, when the Court sought a redirection on another matter, the President raised the voting procedure again. The following exchange occurred: PRESIDENT: I found what I was referring to earlier. I'm referring to ADFP06.1, volume 1, page 9-5, correct as at March '06. JUDGE ADVOCATE:Sorry, 985, sir? PRESIDENT: Page 9-5 - that's, I guess Chapter 9, page 5. On the bottom it's annotated as "Correct as at March '06." Paragraph 9.24, headed "Determination of Questions", and I'm reading down on about the seventh or eighth line: The President does not have a casting vote on the question of whether a defendant is guilty or not guilty of a service offence. Where there is an equality of votes on this question, the Court must find the defendant not guilty. Similarly, where there is an equality of votes on the question of - - - I don't have to go into that, because that's not a question, but I guess that's the point I'd raise before we go - - - JUDGE ADVOCATE:Sorry, what is the paragraph number, Mr President? PRESIDENT: Paragraph 9.24. JUDGE ADVOCATE:Could I borrow that, Mr President? DEFENDING OFFICER: I have a spare copy, sir. PRESIDENT: Do you want some time to work through that? JUDGE ADVOCATE:It might take me a few minutes, Mr President. PRESIDENT: A few minutes we'll wait. If not, perhaps we could come back at 9.30 tomorrow morning and you can give us some feedback. The choice is yours. JUDGE ADVOCATE:Yes. At the moment, I have no reason to change the direction but it would be prudent for me to double-check the direction that I have given and give counsel an opportunity to make some submissions. I think that what's being talked about there is where there is an even number on the Court Martial, if it's 2-2. the President would have a casting vote but not in situations of guilt or innocence. Anyway, I'll double-check that. PRESIDENT: Yes. I don't think that's the case. You're the expert, I'm not, but I'm talking about having read this for the first time over the last few weeks. I guess that's the general impression. The GCM was describing a number of members. I don't think that's the case. Perhaps you've better information, more up to date, I don't know. JUDGE ADVOCATE:I will certainly look into that, Mr President, and give the Court definitive advice on that. PRESIDENT: Okay. In the meantime, we won't vote on anything within the Court until we have that advice. JUDGE ADVOCATE:If the Court pleases. Does the Court want that advice this afternoon? I'm happy to give it this afternoon. PRESIDENT: Yes, please. JUDGE ADVOCATE:Perhaps, as soon as I'm in a position to do that, to give confirmation, if I could let the clerk know. PRESIDENT: Sure. PRESIDENT AND MEMBERS WITHDREW 51 The Judge Advocate, after discussing the matter with counsel, retired briefly. The Court resumed shortly afterwards. The following exchange occurred: JUDGE ADVOCATE:Sorry, Mr President, it took a little longer than I expected to obtain certainty in relation to that issue. PRESIDENT: No problem. JUDGE ADVOCATE:The first direction I must give, which related to an earlier direction I gave, I think, is that all matters of law must from me, so that if there are any legal texts or any other documents which the Court has regarding matters of law they must be disregarded. All directions of law must come from me. So that, if I make a mistake, it's plain on the transcript, and the defendant has her remedies. The second thing is that, under the Defence Force Discipline Act and the Rules, the Act and Rules cater for a situation where there can be an even number of members of the Court Martial. That can arise in a few ways. It's a most unusual situation but it can only happen. It is only in that situation, where there is an even number of members of a Court Martial, that the situation of a casting vote can arise. In this particular case, because there are five members of Court Martial, it cannot arise that a casting vote would need to be utilised by a President, because all members have a vote; so, there cannot be inequality of votes. Mr President, that is my direction to the Court. PRESIDENT: In other words, the original advice stands. JUDGE ADVOCATE:Yes, the original advice stands. PRESIDENT: Good. Thanks. I understand your advice about text, that sort of thing, and I accept that, of course, because I must. JUDGE ADVOCATE:Yes. PRESIDENT: I'd just like to make the point that, in the notification we received of this, we were directed towards pre-reading, to prepare for this event, so I was following that advice. My intent was, of course, to make sure that I appropriately prepared myself. If I had known otherwise, that perhaps would not have been the case. JUDGE ADVOCATE:Yes. Perhaps there has been some error in giving that advice, yes. In any event, no harm done, Mr President, but no doubt, it's a very early stage of the deliberation and well before any vote could have been taken. PRESIDENT: Yes. Thank you for your help. I will adjourn now and if people could be ready to readjourn from 9.30 tomorrow. I don't anticipate we will be coming back in before then. I dare say it will be later, but I would like people around from then on, in case we need advice. 52 At the hearing of the appeal, counsel for the respondent sought to rely upon an affidavit by the Deputy Registrar of the Military Court who sent an email to the members of the Court formally notifying them of their appointments and the administrative details concerning the trial. In the email the Deputy Registrar said, inter alia: I recommend that you familiarise yourself with the guidance on the functions and duties of the President, members and Judge Advocate detailed within the Discipline Law Manual, ADFP06.1.1 Vol 1 Chapter 9 and annexes, available at this link - http://defweb.cbr.defence.gov.au/home/documents/data/ADFPUBS/JSPADPF/ADFP06 1 Vol 1/09.PDF prior to 13 Aug 07. 53 Chapter 9 of the Discipline Law Manual has a number of headings dealing with the functions of the President, Members, Judge Advocate, Prosecutor, other officials and the Recorder of a non-controversial nature. 54 It also contains a heading and sub-headings as follows: GENERAL DUTIES OF A COURT MARTIAL IN RELATION TO EVIDENCE Issues of Fact Issues to be decided on the Evidence The demeanour and credibility of witness Inferences to be Drawn when the Defendant does not give evidence Circumstantial and Direct Evidence Onus and Standard of Proof 55 It was submitted that a fundamental defect occurred in the trial "by reason of access to pre-trial readings" and that the Judge Advocate should have ascertained the nature of the pre-trial directions, the extent of the pre-trial reading and what texts the Court had when it retired. We note that neither counsel suggested to the Judge Advocate that any such enquiries should be made nor was any submission made that the Judge Advocate should rule on whether or not there was reason to order a mistrial. The text to which the President referred was in the court room and given to the Judge Advocate. Neither counsel asked to see it, probably because it was obvious that it was in fact what the President said it was. 56 There is nothing unusual or improper in providing information to the members of the Court about their respective roles. It is now common practice in most civilian criminal courts to provide the jury panel with basic information about the criminal trial process, either in written form or orally by an appropriate court officer, or by a video which is played to the panel before the commencement of the trial. However, in this case the information provided may have included reference to matters which ought not have been provided: e.g. the material, or some of it, under the heading "GENERAL DUTIES OF A COURT MARTIAL IN RELATION TO EVIDENCE". 57 The questions which must be asked are whether there was an irregularity and whether we can be satisfied that the same verdicts would have been returned if the irregularity had not occurred: R v Minarowska & Koziol (1995) 83 A Crim R 78 at 88-89; R v Marsland NSWCCA (unreported, 17 July 1991); R v Allan [2002] 133 A Crim R 444; R v K [2003] 144 A Crim R 468, (2003) 59 NSWLR 431. 58 In this case, there was an irregularity in that the President and possibly some other members of the Court apparently had Chapter 9 of the Discipline Law Manual in Court and had been consulting the section dealing with whether the President had a casting vote. It is possible, but not proven, that the irregularity went further than this and that members of the Court read material in Chapter 9 under the heading "GENERAL DUTIES OF A COURT MARTIAL IN RELATION TO EVIDENCE". 59 This case bears some similarities to R v Minarowska & Koziol, where the New South Wales Court of Appeal considered whether or not there should be a retrial ordered in circumstances where a juror brought into the jury room a magazine article which revealed that persons who make dock statements cannot be cross examined, that no comment could be made about the fact that an accused has chosen to make such a statement and criticism of the procedure by the Attorney-General who announced his intention to abolish the procedure. The Court held that there was nothing in the article in question which went to the guilt or innocence of the accused, it contained material later communicated to the jury by the trial judge and the prejudicial potential for the additional material relating to the Attorney-General's criticism of the procedure was remote or slight. The Court held that the Court was satisfied that had the irregularity not occurred, the verdict would be the same. 60 In the present case, all that has been shown is that the President read the instructions in Chapter 9 of the Manual concerning his role and that he had the instructions with him at the trial. Although there was an irregularity, it was not material to any issues in the trial and not in any way prejudicial to the accused. The learned Judge Advocate gave appropriate directions to the Court and it is clear that the President accepted the directions given. In any event, the question was irrelevant because the Court consisted of five members, so the occasion for a casting vote by the President could not have arisen. We are satisfied that if the irregularity had not occurred the verdicts would have been the same.

The Plomp Direction 61 Mr Smith submitted that the prosecution case depended upon circumstantial evidence and that, as a consequence, the Judge Advocate was required to direct the Court in the terms of the amplified direction on onus and standard of proof discussed in cases such as Plomp v The Queen (1963) 110 CLR 234. In that case Menzies J, at 252, referred to: The customary direction where circumstantial evidence is relied upon to prove guilt, that to enable a jury to bring in a verdict of guilty it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw... . 62 Whereas it is appropriate to give that direction in cases which are based mainly on circumstantial evidence, there is no hard and fast rule to this effect. In Grant v The Queen (1975) 11 ALR 503 at 504 Barwick CJ said of the amplified direction: Unquestionably, there are cases which depend upon circumstantial evidence in which it would be proper and, indeed, there are cases in which it is necessary, for the trial judge to assist the jury by way of some such direction as is now being sought. Whether or not it is either proper or necessary is a matter which, in the first place, the trial judge must resolve for himself. I use the word 'proper' because I can well understand that in some cases the direction might confuse more than assist the jury, depending on the nature of the case and of the evidence given in support of it. Where the circumstances of the case seem to require that some such direction be given, the summing up regarded as a whole may prove to be, and generally may be likely to be, inadequate. On the other hand, having regard to the circumstances of the case and the nature of the summing up, the failure to give the special direction may not in a particular case result in an inadequacy of the summing up as a whole. It may none the less be concluded from the terms of the summing up that the jury were fully instructed. 63 In Shepherd v The Queen (1990) 170 CLR 573 Dawson J (Mason CJ, Toohey and Gaudron JJ concurring) said at 578: In many, if not most, cases involving substantial circumstantial evidence, it [the amplified direction] will be a helpful direction. In other cases particularly where the amount of circumstantial evidence is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given. 64 We do not think it is correct to say that the present case depended substantially on circumstantial evidence. Instead the contentious evidence was of a nature similar to that discussed in R v Rajakaruna (No 2) (2006) 15 VR 592 where a number of the relevant authorities are helpfully summarised. The applicant in that case argued that the amplified direction should have been given. Redlich JA said at [20]: The trial judge was entitled to view the case as one which did not call for such a direction. The Crown case was not one which depended substantially upon circumstantial evidence. As the Crown's proof of the applicant's state of mind rested upon inferential reasoning, some guidance as to the process of drawing inferences may have been appropriate, but it was not necessary in the circumstances of this case. 65 The Judge Advocate adequately directed the Court on the requirement of the prosecution to prove each element of the offences beyond reasonable doubt. He explained the process of inferential reasoning whereby one fact can be inferred from another fact and he gave an appropriate example of that process of reasoning. He also warned against drawing inferences from facts which were capable of innocent explanation. 66 In our view, the directions in this respect were adequate.

The Shepherd Direction 67 Next it was argued that one aspect of the prosecution case was an indispensable intermediate step in the reasoning process towards an inference of guilt on the case put by the prosecution and that, as such, it was necessary for the Court to find that this fact had to be established beyond reasonable doubt in accordance with the reasoning in Shepherd v The Queen. 68 The fact which is the focus of this argument arises from the evidence of Gibson who said that, on about 19 November 2003, he rang the appellant and told her the relationship between them was over. The appellant denied that this conversation ever took place. 69 It is true that the Director of Military Prosecutions attached considerable importance to this conversation during the hearing. However, the prosecution case relied upon a number of events over a period of time in order to prove its case and, in particular, to prove the state of mind of the appellant. There were other important events such as the decision of the appellant to move into the home in Hobartville with Sgt Miles in September 2004. 70 The prosecution case depended upon the combined effect of various strands of evidence. To isolate one of those strands in the manner argued for by the appellant's counsel and to instruct the Court that this assertion had to be proved beyond reasonable doubt would have been unnecessary and could have led to confusion: see Shepherd v The Queen at 579.

Relating the Facts to the Legal Issues 71 There is a further complaint that the Judge Advocate did not adequately relate the facts to the legal issues in the case. In particular it is complained that the circumstances relevant to the appellant's state of mind were not adequately identified, nor their significance explained to the Court. 72 The general approach of an appellate court when dealing with an argument of this nature was outlined in Domican v The Queen (1992) 173 CLR 555 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ at 560 in the following passage: In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence (R v Ali Ali (1981) 6 A Crim R 161 at 164), and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. Section 405AAof the Crimes Act 1900 (NSW), which came into force after the trial of the appellant, provides that a judge of the Supreme or District Court need not summarise "the evidence given in the trial" if he or she is of the opinion that in all the circumstances a summary is not necessary. Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused (R v Lowery [No 3] 1972 VR 939 at 948). This court has said that it "is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities" (Basto v The Queen (1954) 91 CLR 628 at 637). Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence (R v Matthews & Ford [1972] VR 3 at 15-16). Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence (R v Davies & Cody [No 2] [1937] VLR 226 at 236-237; R v Melville (1956) 73 WN (NSW) 579). Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way. 73 We have set out the elements of the charges, the facts relied upon by the prosecution and the appellant's answer to the prosecution case. 74 It was not argued that the elements of the various offences were insufficiently explained to the Court. The prosecution alleged that between the dates charged in the charge sheet the appellant could not be classified as someone who maintained a home for a spouse who, but for the work related separation, would be living with her. The defence did not dispute the criteria for the categorisation, but claimed that it was not until December 2004 that the appellant could no longer be regarded as someone who would be living with her spouse but for the work related separation. 75 In order to determine the issues of contention in the matter, the Court was required to consider the evidence of the prosecution and the defence as to the relationship between the appellant and Gibson over the relevant period. The Judge Advocate said in his summing up that it was not a case of choosing between two versions, but that the prosecution had to prove the elements of the offences beyond reasonable doubt. 76 The Court was reminded by the Judge Advocate of the evidence of the principal witnesses, including the appellant. This summary included reference to the events relied upon by the prosecution to establish the absence of entitlement and the appellant's knowledge that there was no entitlement. It also included a survey of the evidence relating to the travel claims, the appellant's version of those events, her claim that she undertook the travel for which she claimed and her denial of the knowledge or belief required for the offences. 77 The Judge Advocate then summarised the principal argument of counsel for the prosecution and defence. 78 Neither the facts nor the law gave rise to complexity which would have caused difficulty of understanding by members of the Court. The summing up brought into focus the issues which were in dispute and the matters the members of the Court were required to decide. 79 There was criticism of the fact that the Judge Advocate did not isolate the principal events relied upon by the prosecution for the drawing of inferences to prove its case. These aspects were, however, dealt with in the course of the discussion of the facts and in the arguments of counsel. Whilst it may have been helpful to summarise these matters for the Court, to do so would have been to further emphasis the prosecution case. 80 In our view the members of the Court were adequately instructed on the law and the facts and were given sufficient assistance to determine the guilt or otherwise of the appellant on each count.

Mistake 81 It was submitted by Mr Smith that the Judge Advocate should have left mistake to the Court. Section 9.1 of the Criminal Code provides for a defence based upon mistake of fact. In this case, it was submitted that the appellant may have mistakenly believed that the relationship was not over until 26 December 2004 and that, therefore, the Judge Advocate should have left mistake, even though it was not raised by counsel: Pemble v The Queen (1971) 124 CLR 107 at 117-118. 82 It is difficult to see how there was a possible issue of mistake of fact so far as the relationship went. The appellant knew of the facts relating to her relationship with Gibson. It was never suggested by her that Gibson had at any time in 2004 indicated to her that he might be interested in a reconciliation. Plainly his position was that the relationship was over, as she well knew, at least from the time she gave instructions to her solicitors in January 2004 that the marriage had irretrievably broken down and Gibson changed the locks on the house. There was no occasion to leave mistake of fact to the Court. The prosecution undertook to prove that the appellant had the guilty knowledge required by the charges as laid and in relation to the findings of guilt by the Court, succeeded in doing so.

Conclusion 83 None of the grounds of appeal having been made out, the appeal is dismissed. I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justices Heerey (President), Mildren and Duggan (Members).

Solicitors for the Appellant: Fisher Dore Solicitors

Counsel for the Respondent: L A McDade and H Dempsey

Solicitor for the Respondent: Office of the Director of Military Prosecutions