Logan J:
103 I have had the benefit of reading in draft the reasons of Tracey and Hiley JJ. I agree with their Honours' proposed disposition of the appeal and with their reasons.
104 As a consequence of an exchange which occurred with counsel in the course of submissions in relation to observations made by Lord Hoffmann (with which Lords Rodger of Earlsferry, Carswell and Mance expressly agreed) in R v Jones (Margaret) [2007] 1 AC 136 at 171; [2006] UKHL 16 at [70] and following under the heading, "The limits of self-help", I wish to add the following.
105 As Tracey and Hiley JJ record, it was common ground on the appeal that, in relation to Charge 1, the content of any defence of self-defence was governed by the common law. It was for the Chief of Army, as prosecutor, to negative any such defence beyond reasonable doubt.
106 Necessarily, the requirement is to look the content of the defence of self-defence according to the common law of Australia. Miller v The Queen (2016) 90 ALJR 918; [2016] HCA 30 offers a recent reminder (in the context of the doctrine of complicity in the criminal law known as "extended common purpose" or "extended joint criminal enterprise") that the understanding of the content of common law criminal law doctrines, offences and defences may differ as between the High Court of Australia (whose role it is to declare the common law of Australia) and the courts of the United Kingdom or other countries. Where there is a need to look to the common law, the requirement mentioned applies just as much to appeals to this Tribunal and to service tribunals trying service offences as it does to courts exercising the judicial power of the Commonwealth or in solely State jurisdictions. Hence the necessary survey of Australian authority by Tracey and Hiley JJ and, in particular, the reference to Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645.
107 The possibility of a different Australian understanding is one reason why United Kingdom authority in relation to the content of the common law must, in Australia and in modern times, be approached with a careful eye as to whether a judgement of the High Court has made that possibility manifest.
108 In relation to Lord Hoffmann's observations in Jones, another cautionary note is sounded by the fact that his Lordship's observations were obiter. Yet another is that they were made with particular reference to the content of s 3 of the Criminal Law Act 1967 (UK) ("the 1967 Act"), which provides:
3. Use of force in making arrest, etc.
(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
(2 ) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.
109 The principal purpose of that Act was to abolish the distinction at common law between felonies and misdemeanours. Another was simplification of the law arising from that division and its abolition. As Lord Hoffmann explained (at 169 [54]), that Act was responsive and gave effect to recommendations made in the Seventh Report of the Criminal Law Revision Committee, Felonies and Misdemeanours, published in May 1965. A feature of the report of that committee (at paragraphs 20-23) was a recommendation "against any attempt to clarify the degree of force which could be used or the circumstances in which it could be justified" in relation to the use of force to prevent a crime and a suggestion that it should make clear that there was no difference as to whether the crime was once a felony or a misdemeanour. The related clause in the committee's draft became s 3 of the 1967 Act.
110 With respect to s 3 of the 1967 Act, Lord Hoffmann observed (at 174 [73]):
I am willing to assume that, in judging whether the defendant acted reasonably, it must be assumed that the facts were as he honestly believed them to be. But the question remains as to whether in such circumstances his use of force would be reasonable. And that is an objective question. … [S]ection 3 of the 1967 Act does not excuse a defendant if he uses such force as he himself thinks to be reasonable. It must actually have been reasonable.
111 It was put to counsel that this formulation was consistent with Zecevic. Each accepted this. At the time, I considered that this mutual acceptance was correct in its understanding of what amounted to self-defence but it must be said that there was no opportunity then for either counsel or me to study s 3 of the 1967 Act. The focus of that section is not on the use of force in self-defence but for other purposes.
112 It is not necessary, in order to resolve this appeal, to explore the extent to which the formulation does indeed accord with the common law of Australia in relation to self-defence. What is more important for present purposes is that, in enunciating why, in terms of English legal history, a circumspect approach has always been taken as to the lawful limits of self-help, his Lordship makes particular reference to self-defence and its limits. An objective element is a common feature of each.
113 In speaking of the statutory formulation of lawful help in relation to the prevention of crime, Lord Hoffmann observed (at 174-175 [77]):
… when Parliament speaks of a person being entitled to use such force as is reasonable in the circumstances, the court must, in judging what is reasonable, take into account the reason why the state claims the monopoly of the legitimate use of physical force. A tight control of the use of force is necessary to prevent society from sliding into anarchy, what Hobbes (Leviathan, ch 13) called the state of nature in which:
"men live without other security, than what their own strength, and their own invention shall furnish them withal. In such condition, there is no place for Industry; because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of commodities that may be imported by sea; no commodious building; no instruments of moving, and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and what is worst of all, continuall feare, and danger of violent death; And the life of man, solitary, poore, nasty, brutish, and short."
114 This same understanding surely underpins the common law, for it is the Nation State (and subordinate polities in a federation) which "claims the monopoly of the legitimate use of physical force": Lord Hoffmann at 174 [77]. In constitutional monarchies, such as the United Kingdom and Australia, it is the Nation State which has the primary responsibility for the preservation, domestically, of the Queen's Peace. That is why the prosecution on indictment of those alleged to have breached that peace is brought by the Crown.
115 Correspondingly, it is the Nation State which has primary responsibility for the Defence of the Realm. That is why s 68 of the Constitution vests the command in chief of the Australian Defence Force ("the ADF") in the Governor-General, as the Queen's representative. We have neither vigilantes nor mercenaries in Australia. And, as will be seen, that the ADF is established and maintained by parliamentary authority also reflects our heritage.
116 That it is the Nation State which has primary responsibility for the preservation of peace has ramifications for when and the extent to which the use of force by a private individual is lawful. The following explanation of these ramifications, offered by Lord Hoffmann in Jones (at 175 [78]-[80]), highlights the interplay between self-help and self-defence in relation to legitimate use of force:
78 In principle, therefore, the state entrusts the power to use force only to the armed forces, the police and other similarly trained and disciplined law enforcement officers. Ordinary citizens who apprehend breaches of the law, whether affecting themselves, third parties or the community as a whole, are normally expected to call in the police and not to take the law into their own hands. In Southwark London Borough Council v Williams [1971] Ch 734, 745 Edmund Davies LJ said: "the law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances."
79 There are exceptions when the threat of serious unlawful injury is imminent and it is not practical to call for help. The most obvious example is the right of self-defence. As Hobbes said (Leviathan, ch 27):
"No man is supposed at the making of a Common-wealth, to have abandoned the defence of his life, or limbes, where the Law cannot arrive time enough for his assistance."
But, he went on to say:
"To kill a man, because from his actions, or his threatnings, I may argue he will kill me when he can, (seeing I have time, and means to demand protection, from the Soveraign Power) is a Crime."
80 In the same spirit as Hobbes, Lord Upjohn said in Burmah Oil Co (Burmah Trading) Ltd v Lord Advocate [1965] AC 75, 164-165:
"No doubt in earlier times the individual had some … rights of self-help or destruction in immediate emergency, whether caused by enemy action or by fire, and the legal answer was that he could not in such circumstances be sued for trespass on or destruction of his neighbour's property. Those rights of the individual are now at least obsolescent. No man now, without risking some action against him in the courts, could pull down his neighbour's house to prevent the fire spreading to his own; he would be told that he ought to have dialled 999 and summoned the local fire brigade."
(Emphasis added.)
117 PTE O'Neill's resort to a head-butt as a self-help, self-defence remedy was, in the circumstances prevailing, out of all reasonable proportion as a response. This remained so even though there was evidence that PTE O'Neill had received escalation training and training in self-defence which included this particular response to a threat.
118 That such training is a feature of the profession of arms, especially, within the Army, for members of combat and combat support arms is unremarkable in itself. But an understanding that what is apt for the battlefield or even, in the agony of the moment, in life threatening situations if ever deployed in aid of the civil power, is not apt during periods of stand down out of barracks is also an essential feature of the profession of arms.
119 Also part of our constitutional heritage is the requirement for parliamentary authority for the establishment and maintenance of the ADF and the subordination of the military to the civil power. That is recognised in an express grant of legislative power to the Commonwealth Parliament by s 51(vi) of the Constitution to make laws with respect to naval and military defence, pursuant to which the Defence Act 1903 (Cth) has been enacted. It is that Act (Part III, Division 1), not s 68 of the Constitution, which provides lawful authority for the establishment and maintenance of the ADF.
120 Such a statutory provision is a contemporary, Australian manifestation of the sequel in 17th century England to the Restoration and the Glorious Revolution. I discussed this subject in greater detail in Millar v Bornholt (2009) 177 FCR 67 at 73-75; [2009] FCA 637 at [17]-[21]. It is not necessary here to repeat that detail.
121 Also part of our heritage is the basal proposition that membership of the military does not confer exemption from civil law, with our understanding of martial law being confined to military discipline, i.e. only that which is necessary for the maintenance of the discipline of the ADF: Groves v The Commonwealth (1982) 150 CLR 113 at 125-126, where, inter alios, the following observation made by Lord Mansfield CJ in Burdett v Abbot (1812) 4 Taunt. 401 at 449-450; 128 ER 384 at 403 was cited with approval by Stephen, Mason, Aickin and Wilson JJ:
[A] soldier is gifted with all the rights of other citizens … the mistake should be corrected which supposes that an Englishman, by taking upon him the additional character of a soldier, puts off any of the rights and duties of an Englishman.
122 As with an Englishman, so with an Australian such as PTE O'Neill who takes on the additional character of a soldier.
123 Charge 1 alleged an offence which could have been prosecuted under either the civil law or under the DFDA. There has always been a recognition that the legitimate reach of military discipline extends to the maintenance of orderly behaviour by soldiers during periods of stand down in relative proximity to barracks. Subject to limitations (Re Aird; Ex parte Alpert (2004) 220 CLR 308; [2004] HCA 44) unnecessary to discuss, the DFDA, by s 61, permissibly (Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 545 per Mason CJ, Wilson and Dawson JJ) incorporates by reference and makes a service offence if committed by a "defence member" a body of norms of conduct constituting civil law criminal offences. It would be completely antithetical to the constitutional heritage mentioned to afford the DFDA or those incorporated norms a meaning and application which extended to exculpatory self-defence including, in every circumstance in Australia, conduct which manifested military escalation training and training in self-defence.
124 The present case offers a useful opportunity to recall and emphasise these features of the system of laws by which we and, in particular, our military, are governed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Logan.