Howieson v Chief of Army

2. RELEVANT CONSIDERATIONS 15 There was no difference between the parties as to the considerations which are relevant. The case was argued with reference by analogy to cases decided in the exercise of judicial power in determining criminal appeals against conviction. Some care needs to be adopted with such authorities. A service tribunal such as a general court martial does not exercise the judicial power of the Commonwealth under Ch III of the Constitution but is obliged to act judicially, "that is to say, in accordance with the requirements of reasonableness and procedural fairness to ensure that discipline is just": Private R v Cowen (2020) 94 ALJR 849 (Private R v Cowen), at [56], per Kiefel CJ, Bell and Keane JJ. Further, though comprised exclusively of superior court judges, neither does this Tribunal exercise the judicial power of the Commonwealth: Hembury v Chief of the General Staff (1998) 193 CLR 641 (Hembury). The limits of the Tribunal's jurisdiction in relation to the quashing of a conviction are as specified by the text of s 23 of the Appeals Act. As to s 23(1)(c) of the Appeals Act and as Gummow and Callinan JJ (with whose reasons Hayne J agreed) stated in Hembury, at [35]: Paragraph (c) contains the two elements of "material irregularity" and "substantial miscarriage of justice". There may be a "material irregularity" which does not amount to a "substantial miscarriage of justice". Further, an "irregularity" may not be "material" because, for example, it was cured by what was done later in the proceeding. [Footnote references omitted] The specification in s 23(1)(c) of the Appeals Act is progressively cumulative. There must be an irregularity, it must be material, and a substantial miscarriage of justice must have occurred. 16 The phrase "substantial miscarriage of justice" is a technical one with a lengthy provenance. In Hembury, at [37], Gummow and Callinan JJ (Hayne J agreeing) cited with approval this observation made by Asprey JA in Wilson v Wilson (1967) 69 SR (NSW) 23 (Wilson v Wilson), at 35, about the phrase: What will constitute a miscarriage of justice may vary, not only in relation to the particular facts, but also with regard to the jurisdiction which has been invoked by the proceedings in question; and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law. [Emphasis by Gummow and Callinan JJ - footnote references omitted] 17 The authority cited by Asprey JA in Wilson v Wilson for the passage just quoted is a judgment delivered by Fullagar J in Mraz v The Queen (1955) 93 CLR 493 (Mraz v The Queen), at 514, an Australian case in respect of criminal appellate jurisdiction conferred by a statute analogous to s 4(1) of the Criminal Appeal Act 1907 (UK). In Hembury, at [41], the plurality considered that it was erroneous to regard cases decided upon provisos, for example as found in s 6(1) of the Criminal Appeal Act 1912 (NSW), as equally applicable to what constitutes a "substantial miscarriage of justice" in terms of s 23(1)(c) of the Appeals Act. Nonetheless, via the citation with approval of the passage from Wilson v Wilson of a use by analogy of observations in an authority derived from an exercise of criminal appellate jurisdiction, Mraz v The Queen, it seems that such authorities are not regarded as completely irrelevant, providing they are not uncritically applied to the exclusion of the text of s 23(1)(c) and what was observed in Hembury in respect of that text and of the status of the Tribunal. Responding to the approach adopted by the parties, we consider such authorities below but we make it plain that we regard what is stated by Gummow and Callinan JJ (Hayne J agreeing) comprising the plurality in Hembury as authoritative. 18 As is clear from the passage from Wilson v Wilson emphasised in Hembury, whether or not there is a miscarriage of justice is inherently specific to the circumstances of a given case, which circumstances necessarily include the nature of the jurisdiction exercised by a court martial as described in Private R v Cowen (and quoted above). It was common ground between the parties that a passage in the joint judgment in Crofts v The Queen (1996) 186 CLR 427 (Crofts) was pertinent. Necessarily, that must be by analogy only. In Crofts, at 440 - 441, Toohey, Gaudron, Gummow and Kirby JJ canvassed, in a non-exhaustive way, considerations which are relevant: No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial effect that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. · Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. [Emphasis added] 19 However, the statement in Crofts, at 441, that: "In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?", has not passed without later criticism. In Weiss v The Queen (2005) 224 CLR 300 (Weiss), at [32] - [33], Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ stated, with reference to it and other similar pronouncements about the proviso in common form criminal appeal statutes: 32. Many statements are to be found in the decided cases that describe the task presented by the proviso as being to decide whether conviction was "inevitable". Other cases ask whether the accused was deprived of a "chance which was fairly open … of being acquitted" or a "real chance" of acquittal. 33. These expressions attempt to describe the operation of the statutory language in other words. They must not be taken as substitutes for that language. They are expressions which may mask the nature of the appellate court's task in considering the application of the proviso. [Footnote references omitted] Recalling what was said in Hembury, this criticism has added resonance in relation to an appeal to the Tribunal. 20 Even so, it is always relevant, in our view, to take into account the direction given in respect of the inadmissible evidence and the likely effectiveness of that direction as part of the overall factual matrix.

(a) The Chief Judge Advocate's direction to the panel 21 The Chief Judge Advocate's direction to the panel following the directed acquittal was immediate and emphatic. He stated: I direct you to ignore any evidence that you heard in relation to Charge 4 and that was all of the evidence of [the second complainant - LCPL B], all of the evidence her husband, and part of the evidence of [the first complainant - CAPT N], where she gave evidence about what [the second complainant] told her about that offence. You will remember it's been referred to as complaint evidence. You will treat that as if that evidence was never before you. You're not to speculate and I will remind you in due course that you're not to speculate about matters which are not before you. You are only to determine the guilt or innocence of [the appellant] on those remaining three charges, only on the evidence that's relevant and admissible to those three charges and none other. The evidence that I have just referred you to is only relevant to Charge 4 which is no longer before you. So you must put that other evidence out of your mind and it is irrelevant to any consideration of the remaining three charges. ... There will be no such tendency available to you now in this case because Charge 4 is not before you. ... you are to ignore any invitation about tendency reasoning that he did that act on more than one occasion because he's been acquitted of Charge 4 and it simply doesn't arise because Charges 1 and 2 are the one event. ... To that extent, the evidence for you to consider when you retire has been reduced with those directions in mind. I can't stress that direction enough. None of that evidence in relation to Charge 4 is now before you, nor any consideration of any allegation that existed in relation to the circumstances arising from Charge 4. The Chief Judge Advocate returned to this subject in his final summing up. He re-iterated to the panel that "you must not speculate about evidence that is not before you that you think may be relevant." In this regard, he made specific reference to the evidence hitherto led concerning charge 4. He repeated his previous directions to look at the evidence relating to each particular charge and deal with each charge separately. He also directed the panel that it was impermissible for them to reason that because there were three charges, CAPT Howieson must have committed the offences. (b) Joinder for trial of the four charges and tendency ruling 22 Also part of the overall factual matrix of this trial was the ordained joinder for trial of the four charges and the tendency ruling. Even absent the making and timing of the directed acquittal in respect of charge 4, these ordained trial features consigned to the panel a complex adjudicative task. The permitted tendency tender was not a tendency on the part of CAPT Howieson to behave lewdly in the presence of indigenous female members of the PNGDF, however much that might be thought to be a unifying theme permeating all of the conduct alleged in the four charges. The permitted tendency tender was solely in respect of a tendency to display his penis to such female soldiers, such that evidence in relation to charge 4 was admitted in respect of charges 1 and 2 but not 3. Neither was the evidence given in respect of charges 1 and 2 admissible as relevant to charge 3. As it was, this situation required the panel to make sophisticated distinctions about the use to be made of the evidence tendered by the prosecution. 23 Both the possibility of a unifying theme of the kind mentioned and the fineness of the evidentiary distinction ordained may, in our view, be discerned in the way in which the prosecution case was opened (including our interpolations): Madam President and members of the panel, you are here because it's alleged that CAPT Howieson acted in a way that no person should act, let alone a member of the Australian Army. On two separate occasions to two different female members of the Papua New Guinea Defence Force CAPT Howieson exposed his erect penis. On another occasion, he engaged in conduct likely to bring discredit on our Defence Force. [We note that the three occasions mentioned might be thought exemplifications unifying into a theme of disreputable conduct.] ... there is also another reason why the two trials are being conducted together. That is because the prosecution is alleging that the accused's conduct in Charges 1, 2, and 4, show that the accused had a tendency to act in a particular way, that is to intentionally expose his penis to female members of Papua New Guinea Defence Force. Consequently, you can [use] evidence in relation to the first two charges in your assessment of the evidence in relation to the fourth charge and conversely. [We note that this was conceded on the appeal to be proper and an accurate reflection of the pre-trial ruling but a narrower tendency than the impression created by the first sentence of the opening.] [Our interpolations] That opening also forms part of the overall factual matrix that informs consideration of the potential impact on the panel of the evidence relative to charge 4. There was nothing inappropriate about it, in the circumstances which prevailed when it was made. But it inevitably set the context for a trial which later took an unexpected course.

(c) What was the prosecution evidence? 24 Having considered the prosecution evidence ourselves, we find that the summary offered by the reviewing officer in the report prepared for the purposes of s 154 of the DFDA is accurate, as are the observations he makes about consistency of evidence. Though lengthy, it is both convenient and desirable to quote that summary, anonymising witness identities in so doing. We have chosen to anonymise not just the complainants but witnesses out of an abundance of caution in respect of providing a means of identifying the complainants: Charges one - three. According to CAPT N at the relevant time, she was posted to the Taurama Military Hospital as a nursing officer. However, during the APEC meeting she was allocated to work at the Regimental Aid Post (RAP) at Taurama Barracks. As far as she knew no ADF personnel attended the RAP for treatment. However, she had met the accused the day before the incident when he delivered medical supplies to her. It was the prosecution case that on 16 December 2018 at approximately 1000hrs CAPT Howieson attended the RAP. He parked his vehicle under a mango tree. He was wearing PT gear comprising of shorts and a T-shirt. CAPT N was working with LCPL T and CPL M. CAPT Howieson asked to speak to CAPT N in private. She complied and he said he had a lump he wanted examined. She informed CAPT Howieson that she would need to be accompanied by a male soldier as per protocol but CAPT Howieson did not want that. CAPT N agreed to conduct the examination in private and they went into the first treatment room. She stated that she did not close the door completely, a fact that differed from the evidence of the others present. In the treatment room CAPT N said: "Okay. Where is the - you said that there was a lump around your groin. So where is the lump?" It was alleged that when CAPT Howieson pulled down his shorts his penis was fully erect. She asked; "where is the lump" and he said it was around his groin. He said; "Have a feeI". (Charge 1) CAPT N agreed to do the examination and CAPT Howieson pointed to his scrotum so she had a feel and stood back and told him there was no lump around the area. CAPT N asked him to pull up his shorts which he did. According to CAPT N he was not wearing underwear. It was the prosecution case that CAPT Howieson was not there for a legitimate medical examination and that he intended to expose his erect penis with the hope the complainant would touch it. The accused then pulled his shorts down again and said that the lump was still there and told CAPT N to have a feel. (charge 2) She said there was no lump, turned around and walked out of the room. Whilst not explicit the witness on two occasions agreed to questions from the prosecutor which inferred the accused's penis was erect on the second occasion he pulled his pants down as well. These questions were not objected to. … CAPT Howieson followed CAPT N to where LCPL T was positioned and despite not having found a lump she wrote a prescription for CAPT Howieson and told him to take it to his regimental outpost. According to CAPT N she told LCPL T and CPL M about what happened and the fact the accused had an erect penis. Whilst both recounted a complaint by her neither adverted in their evidence to her having told them his penis was erect. The complaint evidence was to an extent inconsistent. That afternoon the accused returned to the RAP and asked CAPT B for CAPT N. She spoke to him in the reception area of the RAP. He told her that he came with a lab form that requested semen samples for 5 days. He said his doctor told him to have the samples collected at the RAP. The name on the bottom of the form said Dr Niall. CAPT N arranged for a specimen bottle for CAPT Howieson and told him to provide the sample to his regimental Doctor, but he told her that he needed it immediately. She told him how to collect the sample and said he could use the RAP toilet. It was at this point that the accused said words to the effect that; "the paper said she had to assist him collect it". She refused and told him to collect it himself. (charge 3) It was the prosecution case that the comment clearly had a sexual connotation. The accused used the toilet to collect a sample and said he had to come back for the next four days. CAPT N gave him two extra specimen bottles and told him not to come back. CAPT Howieson was said to have left but returned the following day. He saw CAPT N again and asked to see her. He said his doctor had flown out and so the management of specimen collection was left to her. CAPT N told him she was not comfortable and told him to leave and not come back. She did not see him again. She told CAPT B about the incident a few days later. … In support of the evidence of CAPT N was that of LCPL T. He corroborated the assertion that CAPT Howieson came seeking treatment at the RAP in the morning of 16 November 2018 and it was the first time to his knowledge that any ADF member had sought treatment there. It was his evidence that he was wearing PT gear, parked his car and asked for CAPT N to assist him. He saw them go into the treatment room and when he came out he was given a prescription and left. After CAPT Howieson left CAPT N mentioned something was wrong with CAPT Howieson's penis but that that was all he could remember. LCPL T also gave evidence that around lunchtime CAPT Howieson returned and gave CAPT N a note about the collection of a semen sample. He gave a specimen bottle to CAPT Howieson. His recollection was that CAPT Howieson was instructed to use the RAP toilet for the specimen and he could not remember if anything was said before he went to give the sample. During cross examination he also stated that the accused had attended the RAP on 17 November. CPL M also gave evidence corroborative of CAPT N. At the time she was a medic posted to the RAP from Taurama Hospital. She recalls seeing the accused around previously but on 16 November 2018 he came into the RAP and he was wearing at­ shirt, shorts and runners. He and CAPT N went into the treatment room together and closed the door behind them. When they came out CAPT N looked a bit mad. LCPL T gave him a prescription for some medicine and CAPT Howieson left. According to CPL M, CAPT K said that the accused wanted her to examine his private part and when she was examining his testicles CAPT Howieson attempted to kiss her. She was not at the RAP in the afternoon. In cross examination she denied that he was in uniform when he arrived. The importance of the evidence of LCPL T and CPL M was that it contradicted the evidence of the accused who claimed he came to the RAP in uniform in the morning and returned in uniform with medical supplies around lunch time. He denied the examination and the request for the semen sample. In addition the prosecution called CAPT B who was [a] medical practitioner also posted to the RAP. He confirmed that he had never had a member of the ADF come in for treatment. According to CAPT B the accused came to him around 1330h and asked to see CAPT N and he called her over. That was the first time he had seen CAPT Howieson that day although he had been to deliver medical supplies in the week prior to that. He saw CAPT Howieson and CAPT N go into the RAP. On 18 November he stated that the CAPT N came and saw him about a lump on his groin and she refused to do the examination. He also stated that CAPT N told him that CAPT Howieson had a medical document asking her to assist in the collection of a semen sample. CAPT B stated that CAPT Howieson also attended on the RAP on 17 November and CAPT B saw him in his car parked under the mango tree. In cross examination he stated he did not see CAPT Howieson bring any t-shirts on 16 November 2018 nor did he have any medical supplies with him on 16 November 2018. In addition the prosecution called a Dr Roy the only doctor attached to the Australian High Commission in Port Moresby. He saw amongst others ADF members based in Port Moresby. His uncontested evidence was that he had never met CAPT Howieson or provided him any referral to the RAP to have semen samples collected. CAPT Howieson's replacement CAPT Joseph also gave evidence that the first point to contact for medical issues for him was the Australian High Commission doctor, although there were some other options. … Charge four. … The complainant was LCPL B, an Entomologist, posted to the Preventative Medicine Unit at Taurama Barracks. On 7 December 2018 she was walking along the main road past the barracks Q Store on her way down to the canteen to meet her husband, who was about to deploy. It was day time. As LCPL B was walking she saw CAPT Howieson who she knew as the ALO [Australian Liaison Officer], but had not met. He was standing to the left of a tree or bush (as depicted in photo 2 of Exhibit 2). He was in his ADF camouflage uniform and she saw him pull down his zipper. According to LCPL B's evidence CAPT Howieson was; "helping himself, like masturbating or something". He was looking towards the road and she thought he was looking at her (although he was wearing sunglasses). She describes being shocked and scared and that she ran. When she got to the canteen she told her husband that she said she had seen the [ALO] standing near the banana plant and he was showing his private part to me. She also told this to CAPT N. During the course of her evidence LCPL B was asked what she saw and she said he; "had his hands on his penis and he was masturbating". LCPL B's evidence included that the accused's penis was outside his trousers. In cross examination she agreed that she had said the following to her husband; "I was walking back to the canteen and when I came toward battalion Q-store, I saw the [ALO] standing there like he wanted to pee. He removed his private part out and instead of facing away to urinate he was facing towards me and I was afraid so I started to walk away quickly'. She agreed that this was what she told her husband. She agreed that the first time she mentioned the term "pleasuring himself" or referred to masturbation was in her third statement. However she disagreed that what the accused was doing was urinating at the tree. She stated there was a toilet nearby. In re-examination she maintained that she saw CAPT Howieson masturbating and that what she meant by that was: "he put his hands down, hold his private part and he was yes helping himself or something'. She also indicated that she was scared to tell her husband that she saw him masturbating because she was scared that her husband might do something to him. … LCPL Z, the husband of the complaint gave some evidence that his wife spoke to him about seeing CAPT Howieson remove his (it would appear penis) out and was about to do something and because this action was not appropriate she walked past quickly. In support of the allegation was also evidence from CAPT N who said that LCPL B complained to her that she had seen CAPT Howieson masturbating on about 9 December 2018. 25 The cross-examination of LCPL B indicates that CAPT Howieson's case in respect of charge 4 was intended to be that he was innocently urinating at the location concerned at the time that LCPL B came across him. Given the time when the directed acquittal occurred and the impact that necessarily had on what was relevant for the defence to lead in evidence, the panel never heard that innocent explanation from CAPT Howieson. Part of the explanation, at odds with evidence given by LCPL B in re-examination, was going to be that there were no nearby toilet facilities and that it was not uncommon for those in that area of the barracks to do exactly what CAPT Howieson was doing that day.

(d) Consequences flowing from the timing of the directed acquittal 26 By the time of the directed acquittal, CAPT Howieson's evidence included emphatic denials of the conduct on 16 November related by CAPT N and an explanation that he had attended the RAP to deliver basic medical supplies acquired by him from a Port Moresby pharmacy from aid funds at his disposal and which were otherwise not able to be supplied from Papua New Guinea defence budget resources. His evidence was that he had also taken the opportunity to drop off to the RAP T-shirts, also aid funded, specially made to mark the PNGDF involvement with APEC support. His further evidence was that he had explained to CAPT N, to her displeasure, that he was unable to supply from aid funds oxygen to fill empty oxygen tanks in ambulances which the Chinese government had donated in conjunction with APEC and, further, that he was unable to pay from aid funds any allowances to her and others in respect of APEC-related duties. However, it had not reached what would have been his denial of the allegation in charge 4. 27 Also not tendered, because it was likewise rendered irrelevant, was corroborative evidence from Major E (a captain at the time of the alleged offences) of the PNGDF, who had given a signed statement to the defending officers that: Due to the absence of ablution and toilet facilities at and around the Main Q Store the adjoining building used by Field Engineers; soldiers have regularly resorted to using the drains and cement walls surround the carpark area to urinate. MAJ E was still called in the defence case and did give evidence inconsistent with prosecution evidence in terms of observed attire worn by CAPT Howieson - disruptive pattern camouflage uniform, not sports gear - but his evidence did not extend to the passage in his signed statement or other observations relative to charge 4. 28 Thus the allegations made in charge 4 would have been the subject of strong contest by CAPT Howieson. As characterised and contextualised by LCPL B, the incident was very much contested, and contested in a way capable not only of calling into question her reliability but also, through the corroboratory evidence of MAJ E, of enhancing the credibility of CAPT Howieson generally. The timing of the directed acquittal meant that CAPT Howieson was deprived of that opportunity. 29 Of course it might be said that the same consequence of rendering irrelevant defence evidence which might have been led in response to charge 4, would have occurred if a no case submission in respect of that charge had been made and upheld at the end of the prosecution case. But there was no such application. Rather, it was, in effect, solicited by the Chief Judge Advocate in the course of CAPT Howieson's evidence in chief. Yet further, it might be said that the defending officers were not obliged to make the application. But, unsurprisingly when so invited, they did, it was upheld, and there was no dissolution of the court martial. 30 The basis for the directed acquittal was that LCPL B's assigned description of masturbation in respect of the observation she made of CAPT Howieson was insufficient strictly to prove the act alleged. However that may be, as with a civilian jury, it was neither necessary nor appropriate for the panel to be informed of the detail as to why they were being directed, despite the evidence they had by then heard, to acquit CAPT Howieson of charge 4, and they were not so informed. They had by then heard the opening made by the prosecution and evidence, including fresh complaint to CAPT N, that CAPT Howieson was masturbating in broad daylight in the middle of a barracks area under the gaze of a female member of the PNGDF. This was highly prejudicial evidence. It was also irrelevant evidence as a result of the directed acquittal. Yet further, the impact of that directed acquittal was not just markedly to change the prosecution case after it had been opened as mentioned, and closed, but also (although unknown to the prosecutor or the judge advocate at the time) to deprive the defence of a forensic opportunity to enhance the credibility of CAPT Howieson which may have had ramifications for the whole of the prosecution case. 31 Essentially, the directed acquittal, beneficial as it was for CAPT Howieson, came at a time when the prejudicial evidence had already been adduced, but he was deprived of the opportunity of answering it with evidence of an independent witness who corroborated his own version, thus enhancing his credibility not only in respect of charge 4 but generally. That would not itself have been an irregularity, because an accused who succeeds in having one of several charges dismissed at the close of the prosecution case necessarily loses the opportunity of calling evidence to answer it. But that it had this consequence, when the prejudicial evidence had already been adduced, involves an element of unfairness (which would not have been apparent to the judge advocate, who was not aware of the evidence that the defence was intending to adduce). In the events which transpired, the admission of the evidence in respect of charge 4 with the consequences mentioned, was not just an irregularity but a material one.

4. WAS THERE A SUBSTANTIAL MISCARRIAGE OF JUSTICE? 32 Finally, the question is whether there was a substantial miscarriage of justice? 33 In Sutton v The Queen (1984) 152 CLR 528, at 541 - 542, Brennan J stated: When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted. 34 For reasons already given, even before the directed acquittal, the basis upon which this court martial was to be conducted was always complicated, given the joinder and the fine evidentiary distinctions which the panel would be required to make. Even so, the ordained trial did at least carry with it the potential advantage for CAPT Howieson of not just a corroborated, innocent explanation in respect of charge 4, but with that an enhanced credibility which might have called into question whether any of the charges could be proved beyond reasonable doubt. 35 In support of his submission that there was a substantial miscarriage of justice, counsel for CAPT Howieson cited this passage from R v Knape [1965] VR 469, at 473: ... if evidence of bad character is inadvertently and improperly given there is undoubtedly a discretion in the trial judge to determine whether or not the jury should be discharged, a discretion to be exercised according to the circumstances of the particular case. An examination of the authorities leads us to the view that unless it can be said, upon the evidence, that the irregular disclosure could not in any way affect the judgement of the jury in coming to their decision of guilty or not guilty, the trial judge would exercise his discretion in favour of the accused. 36 Some care needs to be taken with this passage, not just because of the observations later made in Weiss (quoted earlier), but also because of what was stated in Hembury (as also mentioned above). Even so, a conclusion that a miscarriage of justice has taken place "does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage", as stated in Wilson v Wilson in a passage approved in Hembury. 37 As Kiefel CJ, Bell and Keane JJ highlighted in Private R v Cowen, at [56], CAPT Howieson was entitled to a trial which was procedurally fair. This was not a case where inadmissible evidence was inadvertently placed before a panel. It was deliberately tendered but for purposes which, in the events which transpired, became obsolete, retrospectively rendering the evidence inadmissible. The evidence was, as we have observed, highly prejudicial. 38 Recently, in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 (CNY17), the High Court had occasion to consider the position of an administrative tribunal, the Immigration Assessment Authority established under Pt 7AA of the Migration Act 1958 (Cth), which had received information concerning the applicant from the Secretary to the Minister's department that was irrelevant to the Authority's review task but which was prejudicial to the applicant. As accurately summarised in the headnote to the authorised report of the case, in addition to facts concerning offences of which the applicant had been convicted or charged (which the applicant had disclosed in his protection visa application), the material included assertions that the applicant had a history of unspecified aggressive or challenging behaviour and had been involved in many unspecified incidents. It also included assertions that, while in detention, the applicant had some link to investigations of a "riot", was the subject of investigations for unspecified matters, had been of interest to "Det Intel", and had been refused bridging visas in the past. The Authority affirmed the delegate's refusal to grant the protection visa. The statement of reasons stated that the Authority had regard to the material referred by the Secretary, but did not make any reference to the irrelevant and prejudicial material. 39 The applicant in CNY17 contended that, in the events which had transpired, the jurisdictional error ground of a reasonable apprehension of bias was made out. That contention was upheld by the majority (Nettle, Gordon and Edelman JJ) (Kiefel CJ and Gageler J dissenting). Of present interest are the references in each of the judgments to the phenomenon of subconscious bias in the face of highly prejudicial material and the sharp differences in resultant conclusions on the facts as to whether there existed a reasonable apprehension of bias. 40 In their joint judgment, Kiefel CJ and Gageler J, at [27], referred with evident approval to this observation made in the United States Supreme Court in Public Utilities Commission of the District of Columbia v Pollak (1952) 343 US 451, at 466 - 467, in relation to a professional judge: The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact. [Emphasis added] 41 Having set out this passage, Kiefel CJ and Gageler J, at [28], observed: The fair-minded lay observer would recognise that although the Authority is not a court and although a Reviewer is not necessarily a lawyer, the Authority as constituted by a Reviewer is a professional decision-making body that can ordinarily be expected to be capable of discarding "the irrelevant, the immaterial and the prejudicial". But, the fair-minded lay observer must also be taken to recognise that even a professional decision-maker is not "a passionless thinking machine" and that information consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making. [footnote references omitted] 42 The prism through which the present case falls to be viewed is, of course, not the jurisdictional error ground of whether there exists a reasonable apprehension of bias but rather of the elements specified in s 23(1)(c) of the Appeals Act and, more particularly now, whether there was a substantial miscarriage of justice. But the recognised phenomenon of a risk of subconscious bias is hardly confined to administrative decision-making. It may attend the judicial process, whether the tribunal of fact is judge or jury, and it may also attend a body such as a court martial panel which is obliged to act judicially. 43 In Armstrong v The Queen [2017] NSWCCA 323, at [24], and with reference to Patel v The Queen (2012) 247 CLR 531 (Patel), amongst other cases, the New South Wales Court of Criminal Appeal stated: In assessing prejudicial effect, it is appropriate to take into account the ameliorating effect of any directions available to be given to the jury: see DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [14] (Spigelman CJ), [104] (Allsop P), [171] (Simpson J); RH v R [2014] NSWCCA 71 at [176] (Ward JA, Harrison and RA Hulme JJ agreeing). It then becomes necessary to consider whether such directions would sufficiently "overcome the prejudicial effects of the evidence, individually and collectively, upon the jury": Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [113] (French CJ, Hayne, Kiefel and Bell JJ). That consideration may depend on whether the evidence tends to induce a subconscious bias against the accused: see Sokolowskyj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528 at [56]-[57] (Hoeben CJ at CL, Adams and Hall JJ agreeing). [Emphasis added] 44 It was put on behalf of the Chief of Army that the composition of the panel made it inherently likely that the judge advocate's direction would have been treated as binding and authoritative. Reference was made to the rank structure found in the panel's composition and to the expectation that such officers would follow what amounted to an order. The panel comprised four field rank officers - a Major, two Lieutenant Colonels and a Colonel - and a general officer, a Major General, as President. 45 To some extent, the composition of a general court martial panel is dictated by statute. Subject to service exigencies, the panel at least had to comprise officers not junior in rank to CAPT Howieson with at least three years' service and the President had at least to hold the rank of Colonel (or equivalent): s 116, DFDA. 46 This panel well and truly met, indeed exceeded, that ordinary statutory requirement. The DFDA does envisage that a court martial may bring to bear service knowledge and experience in the resolution of whether charges are proved beyond reasonable doubt: s 147, DFDA. Even though formally bound by the rulings on matters of law by the appointed judge advocate (s 134(4), DFDA), the President of this court martial was senior in rank to him. Moreover, a court martial panel is nonetheless a panel of laypersons in terms of legal training. 47 In Gilbert v The Queen (2000) 201 CLR 414, Gleeson CJ and Gummow J stated, at [13]: The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice. 48 As earlier explained, the Tribunal does not exercise judicial power. There is nothing in the Appeals Act which specifies that the Tribunal exercise its appellate jurisdiction on the footing that, as a general rule, members of court martial panels understand, and follow, directions given to them by a judge advocate. Nonetheless, the analogies between a trial by court martial and a criminal trial before a jury are such that the same approach should apply. Moreover, as mentioned, the DFDA does afford a court martial panel a special status in relation to matters of service knowledge. However, the prescription as to a panel being bound by the rulings on matters of law by a judge advocate is no more or less rigorous than the requirement that a jury in a civilian criminal court must obey the directions of the trial judge on matters of law. It is by no means apparent to us that a hierarchy of authority as between one of Her Majesty's judges and jurors in a criminal trial is any more or less conducive to deference and obedience than a disposition inculcated by training on the part of commissioned officers in a military hierarchy to obey lawful orders. But even if there were anything in the point sought to be made by the Chief of Army, no less than with a civilian jury, it would not involve the further assumption that the decision-making by a panel of officers was "unaffected by matters of possible prejudice", including in particular unconscious prejudice. 49 Even more fundamentally, the task ordained for the Tribunal by s 23(1)(c) of the Appeals Act is not one of attempting to predict what a court martial panel (whether this panel composed of officers holding the ranks mentioned or some hypothetical future panel) would or might do. Rather, the task is to determine whether there was an irregularity, whether it was material, and whether there was a substantial miscarriage of justice. In this regard, the position is not dissimilar to that described in Weiss, at [34] - [36], by reference to civilian juries and the role of criminal appellate courts. To adopt by analogy and paraphrase what was stated in Weiss, at [36], where evidence that should not have been adduced has been placed before a court martial panel, it will seldom be possible, and rarely if ever profitable, to attempt to work out what the members of the panel actually did with that evidence. In cases, like the present, where the evidence that has been wrongly admitted is evidence that is discreditable to the accused, it will almost always be possible to say that that evidence might have affected the panel's view of the defendant, or the defendant's evidence. However, "unless we are to return to the Exchequer rule (where any and every departure from trial according to law required a new trial) recognition of the possibility that the [panel] might have used wrongfully received evidence against [the defendant] cannot be treated as conclusive of the question", if there was a material irregularity, of whether a "substantial miscarriage of justice" has actually occurred. 50 There are distinctions between a court martial panel and a civilian jury, and the submission that the former might be expected to be better able to exclude from its mind prejudicial material when directed to do so is not without force. It may accurately be said of many if not most commissioned members of the profession of arms, at least those who are general service officers, that they are professional decision-makers. Most are educated to tertiary level. They are trained and accustomed to adhere to and implement directions. However, they are not immune to the effects of unconscious prejudice. And unlike a judge (or Defence Force magistrate for that matter) or the Authority in CNY17 but like a civilian jury, a court martial panel does not give reasons for its verdict, with the result that the impact on their decision of evidentiary material they are directed to ignore cannot be scrutinised. 51 The officers who comprised the panel in this case were, in the events which transpired, deliberately exposed to evidence of seemingly gross behaviour in December 2018 in public by a fellow officer in the barracks of a friendly army and in sight of a female member of that army. It is certainly possible to see how one might regard their not guilty verdicts in respect of charges 1 and 2 and the guilty verdict in respect of charge 3 as indicating that the panel had taken to both heart and mind the direction given by the Chief Judge Advocate, found in the evidence indicative of consensual examination a reasonable doubt, but excluding everything heard about charge 4 found proved beyond reasonable doubt by corroborated testimony that the event specified in charge 3 occurred. But so doing entails speculation about the reasoning of a panel no different from speculation about the reasoning of a jury. As they were not obliged to give reasons, one cannot know what use or exclusion was made of the evidence led in respect of charge 4. Looking at the whole of the circumstances which attended this particular trial, including the manner in which the case was opened by the prosecutor, the tendency of the highly prejudicial and ultimately inadmissible evidence adduced in respect of charge 4 to induce a subconscious bias on the part of the panel adverse to CAPT Howieson was such that it cannot be concluded that it was overcome by the directions given by the Chief Judge Advocate. 52 As has been mentioned, there was no application by CAPT Howieson at trial following the directed acquittal for the dissolution of the court martial. However, the appeal is against the conviction, not against the failure on the part of the Chief Judge Advocate to dissolve the court martial. The position is analogous to that described by French CJ, Hayne, Kiefel and Bell JJ in their joint judgment in Patel, at 551, [67]: If there was a miscarriage of justice, it was because the prosecution case changed at a very late point in the trial with the result that much of the evidence that had been admitted on the wide-ranging prosecution case no longer remained relevant to the more confined case that went to the jury. This is the matter which requires further consideration. The question is not, however, whether the trial judge was wrong in refusing to discharge the jury on this basis. As Sachs LJ observed in R v Weaver, there is no rule that, where inadmissible or prejudicial evidence is admitted through inadvertence, a jury must be discharged. This statement was referred to with approval by Gibbs A-CJ in Maric v The Queen. His Honour said that when an accused has been convicted, the appeal is not against the failure to discharge the jury, but against the conviction. His Honour's observation remains relevant to a case such as this, even if the test as to what constitutes a miscarriage of justice sufficient to warrant the quashing of a conviction referred to in Maric is affected by what was later said by this Court in Weiss v The Queen. [Footnote references omitted] 53 While the absence of any application at trial is relevant to whether there was a material irregularity and a substantial miscarriage of justice, it is not determinative. On the appeal, evidence was led, without objection, from CAPT Howieson, that he was neither advised about the prospect of making an application for a mistrial, nor were instructions sought from him with respect to the making of such an application. At the pre-trial stage (directions hearing of 21 June 2019), the defence had resisted, unsuccessfully, the prosecution's application for evidence led in respect of charge 4 to be admitted as evidence of a tendency on the part of CAPT Howieson to expose his penis to female members of the PNGDF. In the result, the ruling made by the Chief Judge Advocate was that such evidence could be so admitted. At trial, following the directed acquittal in respect of charge 4 and related direction about the ignoring of related evidence, all that occurred was that CAPT Howieson simply continued his evidence in chief. Although one can speculate that at that point, having just been acquitted of one the charges, the dissolution of the court martial with the prospect of a new trial on the remaining three might have seemed an unattractive proposition, the Chief of Army did not submit that this was a case where there was a deliberate tactical decision made by the defending officers (who did not include at that stage Mr Pearce) not to apply for the dissolution of the court martial; in any event, as mentioned, there was evidence before us that CAPT Howieson's instructions were not sought on the issue. Further and in any event, as Gleeson CJ observed in Nudd v The Queen (2006) 80 ALJR 614, at 618, [9]: "It is the fairness of the process that is in question; not the wisdom of counsel." 54 As we have explained, the panel was exposed to highly prejudicial material which had a tendency to induce a subconscious bias against CAPT Howieson. The ultimate impact of this on the possibility of an acquittal was accentuated by the timing of the directed acquittal, after the prejudicial evidence had been adduced but before CAPT Howieson had the forensic opportunity, of which he was deprived, to deny on oath the charge 4 allegations, and to enhance his credibility by calling evidence from MAJ E which would have corroborated his own version. It certainly cannot be said that conviction was nonetheless inevitable; in the light of the acquittals on charges 1 and 2, there must have been a real possibility that had the charge 4 evidence never been adduced, or had CAPT Howieson had an opportunity not only to refute it but also to call evidence that corroborated him and thus enhanced his general credibility, he might have been acquitted. It follows that there has been a substantial miscarriage of justice.

5. CONCLUSION AND OBSERVATIONS 55 The conviction in respect of charge 3 must therefore be quashed and, as sought by CAPT Howieson in that event, in the exercise of the power conferred on the Tribunal by s 24 of the Appeals Act, an order must be made that there be a new trial of CAPT Howieson in respect of that charge. A necessary consequence of these orders is that the sentence dependent upon that conviction is a nullity. 56 It is only fair to add that this outcome does not reflect on the prosecutor, who opened the case entirely properly in the circumstances which then prevailed; on the Chief Judge Advocate, who conducted the proceedings with great fairness to CAPT Howieson and gave as strong directions as could have been given - short of the unattractive course, which the accused did not seek, of dissolving the court martial - to minimise the risk that arose in the unanticipated circumstance that the evidence was ultimately insufficient to leave charge 4 on foot; or on the panel, whose verdict and ultimate sentence bears all the appearance of diligent attention to and discharge of their duty. Rather, it reflects the rightful insistence of the criminal law, albeit in the context of military discipline, to the entitlement of an accused to a fair trial and not to be deprived by irregularity of a real possibility of an acquittal, when a trial which was always going to be complex took an unexpected turn, the effect of which was to render retrospectively inadmissible, prejudicial material which had earlier properly been admitted. 57 Though the reasons just given are sufficient to explain why we have made the orders mentioned, we consider ourselves duty bound to make the following additional observations. 58 One of the documents which, by reg 8(1)(b) of the Defence Force Discipline Appeals Regulation 2016 (Cth), the Registrar of Military Justice is obliged to transmit to the Tribunal's Registrar is "a record of any review with respect to the proceedings of the court martial or Defence Force magistrate". The reviewing officer's report under s 154 of the DFDA is such a document. Such reports in no way bind the Tribunal but they can be of assistance in provoking thinking on the part of an appellant, a service chief respondent, and the Tribunal about legal issues or, as in the present case, for the summaries of evidence they may offer. Their transmission to the Tribunal, and thus the Tribunal's scrutiny of them, is not coincidental but intended by the Governor-General in Council in making this regulation pursuant to the Appeals Act. 59 In the case of a conviction by a court martial or Defence Force magistrate, such a report must be prepared by a legal officer appointed by instrument in writing by the Chief of the Defence Force or a service chief on the recommendation of the Judge Advocate General: s 154(1)(a) DFDA. Subject to any contrary opinion which may be expressed by the Judge Advocate General or a Deputy Judge Advocate General upon any further review, a reviewing authority is bound by any opinion on a question of law set out in a report obtained under s 154: ss 154(2) and 154(4), DFDA. 60 The report made by a reviewing officer or the Judge Advocate General or a Deputy Judge Advocate General under s 154 of the DFDA in respect of a conviction and sentence is intended to be an independent, internal opinion in respect of that conviction and sentence. Unfortunately, the report provided in this case, which was otherwise comprehensive, careful and balanced, did not confine itself to expressing such an opinion, but also offered policy advice to the reviewing authority in respect of the taking of administrative action against CAPT Howieson regardless of the outcome of the disciplinary proceedings. The administrative action contemplated was apparently early termination of his service pursuant to reg 24 of the Defence Regulation 2016 (Cth). This policy advice, with respect, ought not to have been furnished by the reviewing officer. 61 Under the DFDA, it is no part of the functions of the Judge Advocate General or a s 154 reviewing officer to furnish such policy advice to the Chief of the Defence Force, a service chief or any reviewing authority. Those officers must look to other advisers for such policy advice. The author of a s 154 report must not just be independent but be seen to be independent. Presuming to furnish such policy advice is antithetical to that independence. 62 In a case where a court martial panel has deliberately chosen not to impose a sentence of dismissal from the Australian Defence Force on a defendant and, instead, imposed a sentence in which an opportunity for rehabilitation is an element, the taking of such administrative action could be regarded as undermining the court martial process. We otherwise expressly refrain, because it is no part of the Tribunal's function, from expressing any view about the merits, if any, of the policy advice furnished in the s 154 report. However, having noted that it has been given, we do consider ourselves duty bound to draw the report and our observations concerning it to the attention of the Judge Advocate General. We shall therefore give a direction to the Registrar to furnish the Judge Advocate General with a copy of these reasons and that report. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Decision of the Honourable Justices Logan, Brereton and Perry.