Pook v Chief of Army

Court of Appeal (ACT)|2009-02-13|Before: Heerey J, White J, Duggan J

REASONS FOR DECISION 1 The appellant Private Christopher John Pook was convicted by a military jury of making a threat to kill Corporal David Fowler, being reckless whether or not Corporal Fowler would fear that the threat would be carried out, the threat being made without lawful excuse and in circumstances in which a reasonable person would fear that the threat would be carried out. The relevant offence is constituted by s 30(1) of the Crimes Act 1900 (ACT) as applied by s 61(3) of the Defence Force Discipline Act 1982 (Cth). 2 Following the conviction the trial judge, his Honour Colonel Peter Morrison, Military Judge, ordered that the appellant, then a Corporal, be reduced to the rank of Private and serve a detention of 90 days. 3 The appellant appeals against the conviction and sentence. The respondent appeals against the sentence on the ground that it is manifestly inadequate. 4 The respondent also seeks a reference of a question of law under s 19A of the Defence Force Discipline Appeals Act 1955 (Cth).

The prosecution case 5 In April 2007 the appellant, along with Corporal Fowler, was serving in East Timor. They were members of a transport platoon stationed at a heliport. The heliport was a compound which included a transport office where the appellant and others lived and worked. Other section commanders were Corporal Fowler, Corporal David Shevchenko and Corporal Fiona Rose. The platoon sergeant was Sergeant Matthew Ryan. 6 About a week before 23 April, the day of the alleged offence, the appellant had been appointed tasking NCO, which meant he was responsible for the tasking of the section commanders in the transport platoon. The other NCOs had become dissatisfied with the appellant's performance of various tasks, such as not having vehicles available for deployment. 7 There were standing orders that weapons had to be carried within the compound in the unload condition. In the case of a Steyr rifle, this meant carrying a 30 round magazine in one's pocket. On leaving the compound, the weapon was to be put in the load condition. 8 In the early evening of 23 April Corporal Fowler went to the transport office. Sergeant Ryan and Corporal Shevchenko were there. Shortly after those two left the appellant entered the office. An argument developed between Corporal Fowler and the appellant over the latter's performance of his duties. The argument became louder and louder. After the argument had reached a certain point the appellant turned away from Corporal Fowler, reached around and picked up a magazine containing 30 live rounds and his Steyr rifle. He placed the magazine onto the weapon and turned back to Corporal Fowler, holding the weapon with his hand on the pistol grip. He looked Corporal Fowler straight in the eye, pointing the weapon in his direction at an angle of 45 degrees to the ground, and said "It's going to be a short trip home for you, cunt". He then proceeded to pull the cocking handle backwards. 9 Corporal Fowler put his hand on the weapon and grabbed the appellant by the neck forcing him onto a stretcher, holding the weapon at the same time. He then took the weapon away from the appellant and threw it along the floor. Corporal Fowler thought that the appellant was going to kill him.

The defence case 10 The appellant said in evidence that there was an argument with Corporal Fowler in which the latter was abusing him for not having a vehicle fixed. The appellant was in a hurry to leave to attend to the handover of ready reaction force equipment at 6 pm. He went over to the weapon rack to get his mobile phone and weapon and magazine. As he did that he turned but was not facing in the direction of Corporal Fowler. Corporal Fowler was abusing him saying "You're a gutless cunt, where do you think you are going?" The appellant was sick of being picked on. He didn't want to be there any more. Corporal Fowler was blocking the only exit. 11 As the appellant turned, he grabbed the magazine, placed it on his weapon, and cocked the weapon into the hold-open recess. He was prepared to shoot himself; he had had enough of the situation and could not take any more of it. He wanted to shoot and injure himself to be sent home, or to kill himself. He didn't really care. He was not pointing the weapon in the direction of Corporal Fowler. He did not say the words "It's going to be a short trip home for you, cunt". He recalled thinking something. He didn't recall actually saying it out loud, but it was along the lines of: "Fuck this. This will be a short trip home for me", that being a reference to him killing himself.

Leave to appeal 12 To the extent that any of the grounds raised by the appellant are not questions of law, leave to appeal was not opposed and is granted: Defence Force Discipline Appeals Acts 20(1).

Ground (a) - Inconsistency 13 Ground (a) is that his Honour erred in failing to identify prior inconsistent statements made by the witnesses Corporal Fowler and Sergeant Ryan and erred in failing to direct the jury that the prior inconsistent statements could be used to weaken the reliability of that witness. 14 The main alleged inconsistency addressed in argument concerned prior statements made by Corporal Fowler as to the manner in which he took the weapon from the appellant. 15 Corporal Fowler made a written statement to service police on the day of the incident and another two days later. In the first statement he said that he placed his left arm over the appellant's master (right) hand and with his right hand removed the weapon from the appellant. 16 In the statement two days later he said he put his left arm over the top of the optical sight and grabbed the barrel near the gas system with his right hand and pulled the weapon away. 17 His evidence at the trial was: I put my left hand over the barrel near the gas system to hold it down to ensure he wasn't going to raise it. I then with my right hand grabbed it by the barrel towards the flash presser [sic, presumably suppressor] and then removed it. He agreed in cross-examination that what he said to the service police was not what he described in his evidence. He said there was "no way" he could have put his hand on the appellant's master hand. 18 In summing up to the jury his Honour said: There are some comments I want to make to you in a general sense about assessing the evidence of witnesses. In assessing the evidence of all the witnesses, and in particular the evidence of Corporal Fowler and the accused, you should take into account your assessment of the witnesses as they gave their evidence but you should consider that evidence in the light of all of the other evidence. In particular, you are entitled to consider whether there have been any inconsistencies in the evidence of a witness and whether there have been any inconsistencies between their evidence in Court and what you know about earlier statements they may have given. Having said that, it is important that you do not overestimate the significance of inconsistencies in evidence and inconsistencies between evidence given in Court and other statements by the same witness. It is not unusual for a person who is asked to give an account of something more than once to use different language in the different accounts. It is not unusual for the accounts to be different in the amount of detail which they contain and it is not unusual for one account or another to contain something which the other does not. What I am saying to you is the fact that a person gives different accounts about something should not necessarily lead automatically to the conclusion that the person is not telling the truth in one account or the other. It is a matter for you to decide, firstly, whether there is a real difference in what is being said and, if you decide that there is, to carefully scrutinise the difference in the light of all of the other evidence to determine what conclusions to draw from those differences, and, of course, to use your commonsense and experience in doing that. 19 On the appeal, senior counsel for the appellant contended that the direction was seriously deficient given that Corporal Fowler's credibility was a significant issue in the trial, that his evidence at the trial was more damaging to the appellant than the previous statement and that the earlier statement supported the appellant's version of events. In particular, it was said in effect that Corporal Fowler had tailored his evidence on this point to fit in with the prosecution version which had the appellant facing directly at him. This latter point was not put to Corporal Fowler in cross-examination although it was made the subject of a comment by the appellant's counsel in his address to the jury. Senior counsel said: Remember this: Corporal Fowler's case is that Pook was pointing the weapon to the ground directly in front of him - that is directly in front of Pook. Now, to be consistent with that account, Corporal Fowler had to change his story as to how he took his weapon - the weapon from Corporal Pook. He had to change it, he had to change his evidence so it all sits together nicely for you. 20 No redirection was sought. 21 In Driscoll v The Queen (1977) 137 CLR 517 Gibbs J, with the concurrence of all other members of the Court, said at 536-537: …I cannot accept that it is always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable. …it cannot be accepted that in cases where a witness has made a previous inconsistent statement there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable. 22 It was not submitted on behalf of the appellant that insofar as Corporal Fowler's evidence was inconsistent with his earlier statements it was "evidence of a kind that may be unreliable" within the meaning of s 165(1) of the Evidence Act 1995 (Cth) so as to attract an obligation to warn the jury. In any event, there was no request for such a warning, as is required by s 165(2). 23 In our view, his Honour adequately drew to the attention of the jury the possible significance of inconsistencies for their fact-finding task. The trial, as far as the jury were concerned, was completed within five days. The factual issues were straightforward. The inconsistencies relied on went to peripheral matters. On the central element of his account Corporal Fowler was unshaken. As he said in cross-examination: I remember clearly the main event, sir, and I remember a weapon being pointed in my direction and Corporal Pook saying, "It's going to be a short trip home for you, cunt". That's the thing that sticks in my mind. The minor detail, sir, get a bit vivid [sic] but at the end of the day a weapon containing 30 rounds was cocked and Corporal Pook said, "It's going to be a short trip home for you, cunt". Indeed, there was little direct challenge to this central allegation. In the circumstances of this case, it was not necessary for his Honour to expressly identify each prior inconsistent statement upon which the appellant relied, relate the inconsistencies to the main issues and state that the whole purpose was to show that the witness was unreliable.

Ground (b) - Consistency 24 Ground (b) is that his Honour erred in failing (to direct) the jury as to the use they could make of a prior consistent statement by the (appellant). 25 In his evidence-in-chief the appellant marked a sketch plan of the transport office to indicate the relative positions of Corporal Fowler and himself and the direction in which his weapon was pointed. The plan as marked was admitted as exhibit D2. 26 In cross-examination it was put to the appellant that he had not instructed his counsel about the positions marked on D2 and that in his evidence he had "manufactured" those positions. 27 In re-examination the appellant's counsel read to him two passages from a statement made to his lawyers on 16 November 2007 (the trial took place in September 2008), another extract from written instructions to his lawyers, and a diagram. None of these documents were tendered. The passages appear to be consistent with the appellant's evidence at trial and the plan D2. 28 On the appeal the complaint was that no reference was made by the parties or his Honour to ss 60 and 108 of the Evidence Act. These provisions have substantially altered the common law. They have the effect that a prior consistent statement of a witness admitted as being relevant to credibility (such as where, as in the present case, there is a suggestion of fabrication) may be received as evidence of the truth of its content. Leave under s 108(3)(b) would have had to have been sought, but it was said that such leave would have been granted. 29 In discussion on the hearing of the appeal, senior counsel for the appellant agreed with the suggestion from the Tribunal that the technical question of the prior statements being used as truth of the matters stated would probably only confuse the jury. The best direction the jury could have been given was that there was consistency in the account the appellant had given all along and they could take this into account in deciding whether the appellant's evidence raised a reasonable doubt. 30 The previous consistent statements were the only matters raised in a brief re-examination of the appellant. They convincingly rebutted the allegation of recent manufacture and necessarily showed that the appellant had been consistent over time in recounting his version of events. Bearing in mind the duration of the trial and the relative simplicity of the issues, the reality is that the appellant would have obtained such legitimate forensic benefit as might have arisen from his prior consistent statements. No further direction was necessary.

Grounds (c) and (d) - Failure to seek out Corporal Fowler 31 Both these grounds are based on the failure by the appellant to seek out Corporal Fowler and offer him an innocent explanation for his (the appellant's) actions when the evidence for the prosecution was that shortly after the incident giving rise to the charge the appellant was formally cautioned. 32 It is said that his Honour erred (ground (c)) in permitting the prosecutor to cross-examine about this failure and (ground (d)) in failing to direct the jury that no adverse inference could be drawn from such failure. 33 At the time of the incident Sergeant Ryan was in the briefing room which was immediately adjacent to the transport office. He could hear an argument between the appellant and Corporal Fowler in the latter room. His evidence was that "within minutes it escalated to a yelling match". He heard a sound which sounded like a chair being thrown, which made him get up quickly and go into the transport office. He saw Corporal Fowler throw a weapon in his direction, although not intentionally. Corporal Fowler said: "The cunt just cocked his weapon at me". 34 Sergeant Ryan told Corporal Fowler to leave. He asked the appellant what was going on. The appellant said: "I wasn't going to shoot anyone, I was going to shoot myself". 35 Sergeant Ryan telephoned the CSM, Warrant Officer Warren Moyle, who arrived in about five minutes. Warrant Officer Moyle, after speaking to Sergeant Ryan, "cautioned" the appellant. This involved, according to Sergeant Ryan, "read(ing) out the caution card prior to any charges". Other than this there was no evidence as to the terms of the caution. Warrant Officer Moyle then moved the appellant into a briefing room. 36 Warrant Officer Moyle asked the appellant if there was anyone with whom the appellant would feel comfortable. The appellant nominated Corporal Rose, who was a particular friend of his. She was called for and subsequently accompanied the appellant to the Aspen Medical Centre, a hospital facility at the heliport. 37 In cross-examination the appellant was asked why he didn't take the trouble to seek out Corporal Fowler and say that he (Corporal Fowler) had "got it so terribly wrong". The appellant's immediate answer was: Because I was hospitalised, ma'am, and no-one was allowed to have contact with me. It was put that Corporal Rose came to visit him. The appellant said that she was the only person who was allowed. He added that "a couple of diggers" came to see him and then the next day no-one was allowed. The OC came and saw him and said: Everyone has been banned from coming to see you. It was put to him that he could have asked to see Corporal Fowler and he agreed he could have. At this point Senior Counsel for the appellant objected. The following exchange took place: DEFENDING OFFICER: I object. The evidence is that shortly after the event this witness was cautioned, he was told not to say anything, and in those circumstances the prosecution's suggestion that this witness ought to be sussing out folk to provide them with an exculpatory statement is really just beyond the pale, it's a nonsense. MILITARY JUDGE: I don't agree with that, Wing Commander. On the evidence of the accused, he's conceded that the intervention of Corporal Fowler prevented him from doing anything further that might have occurred by way of self-harm, he's said that it was brought to his - on his evidence, he had no intention to harm Corporal Fowler but it came to his attention that Corporal Fowler was saying that he thought there was an intention to harm him. I think it's fair for the witness to be cross-examined as to why he didn't seek to have the misunderstanding resolved by trying to make contact with his fellow corporal. DEFENDING OFFICER: But, your Honour, with respect, he had been formally cautioned by the warrant officer and had been removed to the hospital. MILITARY JUDGE: Let's deal with those things separately. What do you say is the significance of the caution? A caution involves the exchanges that you have with officers who are investigating officers investigating an offence. A caution doesn't prevent you from speaking to other people. DEFENDING OFFICER: No, of course not. MILITARY JUDGE: The significance of the caution - of course, it's only significant if a person makes an admission or a confessional statement, isn't it? What do you say is the significance of the caution? DEFENDING OFFICER: What it really amounts to is that he starts making unguarded statements, the use of which he doesn't know they're going to be put to. MILITARY JUDGE: It's fair, I suppose, that the witness may not understand the technical legal significance of the caution but, if he's acted based on a view as to what the effect of the caution was, then he's able to answer the question by saying that. DEFENDING OFFICER: All right. I take it no further. MILITARY JUDGE: Yes. Director. PROSECUTOR: So why didn't you seek out Corporal Fowler and correct this horrible misapprehension he had? --- Because I was told not to - not to contact anyone by the doctor and psychologist. MILITARY JUDGE: I think that's the answer to your question, Director. 38 In her final address to the jury Senior Counsel for the prosecution said: It just seems remarkable that if Corporal Fowler got this so wrong, why Corporal Pook wouldn't be at pains to communicate with him, "Mate, mate - sorry friend, friend, you've got this wrong". But he didn't. In my submission, the reason why he made no contact with Corporal Fowler was he knew Corporal Fowler wouldn't want to have anything to do with him, because he knew what he'd done in that room. 39 His Honour made a passing reference to this issue in his charge to the jury. He reminded the jury that the appellant's explanation for not making contact with Corporal Fowler to try to clear up his misunderstanding was that he was in hospital at first and then was told not to contact anyone. No redirection was sought. 40 Reliance on a supposed infringement of the appellant's right to silence is misconceived. Mason CJ, Deane, Toohey and McHugh JJ in Petty v The Queen (1991) 173 CLR 95 at 99 said that the right is to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence… There was no suggestion that Corporal Fowler was a person in authority vis-à-vis the appellant for these purposes. 41 In Regina v Director of Serious Fraud Office, Ex parte Smith [1993] AC 1 at 30 Lord Mustill, with whom the other members of the House of Lords agreed, said that the right of silence does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute. His Lordship set out a non-exhaustive list of six categories, which included: (6) A specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial. 42 It was submitted on the appeal that the supposed failure of an accused to seek out an alleged victim, either before or after charges have been laid, for the purpose of providing an innocent or self-serving explanation for his actions, or for the purpose of making a timely disclosure of his defence to the charge, should now be added to Lord Mustill's list. 43 Usually it would be most unwise for an accused person to seek to contact a prosecution witness at all, and particularly if the approach involved an attempt to persuade an alleged victim to a different view of the events the subject of the charge. It is hard to see why the appellant should have done so in the present case, and in any event he gave a rational and inherently believable reason for not doing so, namely that he had been ordered not to speak to anyone. (The question of the caution, which was introduced by the appellant's counsel, seems to have had no factual relevance for the appellant's course of action.) 44 In truth, the prosecution's point as to the failure to contact Fowler, although a weak one, did not fall within any recognised category of the right to silence. We would reject the additional category contended for by the appellant. The point is not about failure to convey some exculpatory account, but rather about failure to take some action which, allegedly, an innocent person might be expected to take in the circumstances.

Ground (e) - Equivocality of language 45 Ground (e) is that the words spoken by the appellant… were equivocal and insufficient to constitute a threat to kill even when viewed in the light of the conduct of the appellant. Even taken at their highest, the words and conduct were equally referrable to harm falling short of death and therefore insufficient to constitute a threat to kill. 46 Once Corporal Fowler's version was accepted, the meaning conveyed by the appellant's words and conduct was quintessentially a question for the jury. Being a military jury under Pt VII Div 4 of the Defence Force Discipline Act,they are to be credited with familiarity with weapons such as the Steyr rifle. 47 The issue was not one of semantics. The undisputed circumstances were that the appellant, in the immediate presence of Corporal Fowler and following a heated argument, took up his weapon, attached a magazine loaded with live rounds and operated the cocking mechanism. The jury were entitled to accept Corporal Fowler's evidence of the further circumstance that the appellant pointed the weapon in his direction. In that setting the jury were entitled to be satisfied that the words and conduct of the appellant constituted a threat, and not merely a threat to harm, but to kill.

Ground (f) - Direction as to recklessness 48 The error alleged is that his Honour in his summing up failed to make it clear that the fact that Corporal Fowler may have been put in fear was irrelevant to their considerations. 49 His Honour provided an aide memoire for the jury which set out the elements of the charges. Charge 1 alleged an intentional threat to kill, charge 2, on which the appellant was convicted, a reckless threat to kill. 50 The elements were identical except for element 6. In the case of charge 1 it was: That the accused made the threat to kill intending Corporal Fowler to fear that the threat would be carried out. 51 In respect of charge 2 element 6 was: That the accused made the threat to kill being reckless as to whether or not Corporal Fowler would fear that the threat would be carried out. 52 In his summing up in addressing element 6 of charge 1, his Honour said: In other words, if you conclude that the conduct of the accused amounts to a threat to kill Corporal Fowler and that it was intentional conduct, and if you feel that Corporal Fowler, being in fear that the threat would be carried out, is the obvious and inevitable consequence of the making of that threat, then you may, if you see fit, use that line of reasoning to conclude that the accused intended that Corporal Fowler would fear that the threat to kill would be carried out. (Emphasis added). 53 In respect of element 8 of charge 1 his Honour said: It is important to note here that you do not need to determine whether or not Corporal Fowler himself thought that the accused would carry out the threat. The test is whether a reasonable person would have feared that the threat would be carried out. Similarly, you do not need to determine whether the accused intended to carry out the threat; that also is not relevant. This element will be met if, and only if, a reasonable person would have believed that the accused intended to carry out his threat, regardless of whether the accused actually had that intention or not. 54 In moving to charge 2, his Honour pointed out that the allegation was not that the accused made the threat to kill intending that Corporal Fowler would fear that the threat would be carried out, but rather that he made the threat to kill being reckless as to whether Corporal Fowler would fear that the threat would be carried out or not. That meant that the elements of charge 2 were the same as that for charge 1, except for element 6. His Honour said: As I have said, the sixth element of the offence charged in the second charge is that the accused was reckless as to whether Corporal Fowler would fear that the threat to kill would be carried out. For the purposes of this charge, the law regards a person as being reckless about something if they realise that the result might follow but they go ahead and act anyway. In this case that means that, in order for the sixth element to be proved, you need to be satisfied beyond reasonable doubt that the accused realised that Corporal Fowler might fear that the threat to kill would be carried out but that he went ahead and made the threat to kill anyway. It is important for you to appreciate in relation to this element that the question to be answered is not an objective one. It is not a question of whether a reasonable person would have realised that Corporal Fowler might have that fear. It is a question of whether you are satisfied beyond reasonable doubt that the accused himself did in fact realise that Corporal Fowler might have feared that the threat to kill would be carried out. If you are not satisfied beyond reasonable doubt that the accused realised the Corporal Fowler might have feared that the threat would be carried out, then this element has not been provided by the prosecution case and the accused is entitled to an acquittal on this charge. 55 After retiring, the jury sent a note requesting clarification of the term "reckless" within charge 2. After hearing submissions from counsel his Honour said: What I said to you in my original directions was that the law regards a person a person as being reckless about something if they realise that the result might follow but they go ahead and act anyway, and that is the legal test for recklessness. The word "might" in that context simply has its ordinary, everyday meaning, which is that something may possibly follow. In this case that means that, in order for the sixth element to be proved, you need to be satisfied beyond reasonable doubt that the accused realised the Corporal Fowler might, or may possibly, fear that the threat to kill would be carried out but that he went ahead and made the threat to kill anyway. I mention to you again, as I did earlier, it's important for you to appreciate that the question to be answered is not an objective test, it's not a question of whether a reasonable person would have realised that Corporal Fowler might have that fear, or may possibly have that fear. The question is whether you're satisfied beyond reasonable doubt that the accused himself did in fact realised that Corporal Fowler might or may possibly have feared that the threat to kill would be carried out. 56 The passage quoted at [51] above in relation to charge 1 could have caused the jury to be confused as to whether Corporal Fowler subjectively had to fear that the threat would be carried out. It was an unfortunate insertion that departed from the agreed aide memoire. However, reading the summing up as a whole in the light of the redirection, we are satisfied that the jury were properly directed and that the jury would have realised that the question that Corporal Fowler's actual belief was not an element of charge 2.

Grounds (g) and (h) - unreasonableness, unsafe and unsatisfactory 57 These grounds asserted (ground (g)) that the finding of guilt was unreasonable or cannot be supported, having regard to the evidence, and (ground (h)) that in all the circumstances of the case, the finding of guilt is unsafe and unsatisfactory. 58 A number of criticisms were advance to support these grounds. 59 It was said that the evidence for the prosecution was internally inconsistent as to where the prosecution witnesses Sergeant Ryan and Corporals Fowler and Shevchenko were just immediately prior to the incident. Corporal Fowler gave evidence that he, Sergeant Ryan and Corporal Shevchenko were in the transport office when the appellant entered. Corporal Fowler gave evidence that Sergeant Ryan hung around to give a message to the appellant in regards to a vehicle not coming back from a task and that Sergeant Ryan did in fact speak to the appellant when he entered the transport office about having to allocate another vehicle to Corporal Fowler. Sergeant Ryan then left. Corporal Fowler was unable to say when Corporal Shevchenko left other than he did not leave with Sergeant Ryan. 60 Sergeant Ryan and Corporal Shevchenko gave evidence that they were not in the transport office when the appellant entered. Sergeant Ryan gave evidence that at 5.55 pm he "popped into" the transport office and that Corporal Fowler and the appellant were in the room sitting at their work stations. He gave evidence that he was in the room for a total of 20 seconds. Sergeant Ryan gave evidence that he did not have or could not recall having a conversation with anyone in the transport office at that time regarding any vehicles. 61 Corporal Shevchenko said that at around 6.00 pm he was in the transport office with Sergeant Ryan and Corporal Fowler and that he then left to get changed into long clothing. 62 It was said that notwithstanding the difference between the various accounts, the prosecutor, when cross-examining the appellant, having just suggested to him that he had changed little pieces of his evidence to get as close as he could to the prosecution case but enough to exculpate himself (which he denied) then suggested to the appellant that (i) all three members (Ryan, Shevchenko and Fowler) were in the transport office when the appellant entered and (ii) that Sergeant Ryan spoke to him about a vehicle and that Sergeant Ryan then left followed by Corporal Shevchenko. 63 Corporal Fowler, in addition to giving three inconsistent accounts as to how he removed the weapon from the appellant, also gave slightly differing accounts as to the degree of force he used to take the weapon from the appellant. 64 Then there were said to be discrepancies as to what became of the weapon after Corporal Fowler had taken it from the appellant. In his statement to police Corporal Fowler said he "threw his weapon onto the ground beside the table just outside the office". In his evidence-in-chief he said he "slid - like, chucked the weapon out of the office". He said that his interpretation of "throw" was "underarm like rolling a ball". 65 Sergeant Ryan gave evidence that when he entered the transport office "Corporal Fowler threw a weapon out at me … in a way that he was fairly pissed off … the weapon was thrown out the door … The first thing I did … was pick the weapon up and place it on a little table…". In his statement to service police Sergeant Ryan said that he "took the weapon off Corporal Fowler and placed it on the table outside the transport office". In cross-examination he agreed that the version made to police was "not too accurate". 66 It was said that the account given by Sergeant Ryan to police (that he took the weapon off Corporal Fowler) did not accord with either account given by Corporal Fowler. The ultimate versions given by both witnesses can be seen to be "a deliberate compromise by each witness to accommodate the evidence of the other to arrive at a common result". 67 Senior counsel also contended Sergeant Ryan in his evidence considerably played down the tensions that existed between the appellant and other members of the transport platoon and gave a more benign account than that contained in his statement to service police. 68 Further, there was said to be a significant conflict in the evidence given by Sergeant Ryan and Corporal Fowler as to what they each heard the appellant say shortly after the incident. Sergeant Ryan's evidence was that he entered the transport office where the appellant was and asked the appellant "What is with the weapon. What is going on?" to which the appellant replied "I wasn't going to shoot anyone; I was going to shoot myself". Corporal Fowler, who was in a state of distress, gave evidence that as he was sitting outside the transport office he heard the appellant say to Sergeant Ryan "I probably wouldn't have shot him. I probably would have shot myself". But before the appellant was spoken to by Sergeant Ryan, he heard Corporal Fowler, who was outside the transport office say words to the effect "that cunt just cocked the weapon at me". 69 It was said that although there was significant difference between the two accounts, the prosecutor, when cross-examining the appellant, suggested that (i) the appellant told Sergeant Ryan "I probably wouldn't have shot him. I probably would have shot myself" and (ii) the failure by the appellant's counsel to challenge Corporal Fowler's version of what was said (as opposed to Sergeant Ryan's version) reflected a lack of instructions and/or recent fabrication on his behalf. There was "simply no way the appellant could respond to these totally erroneous assertions". It was argued that there is a strong possibility that the jury may have regarded the appellant's apparent confusion as adversely affecting his credibility. 70 His Honour simply repeated the appellant's denial of ever having used the word "probably". He did not remind the jury that Sergeant Ryan's account was different to that of Corporal Fowler. 71 None of these arguments, either singly or collectively, persuade us that these grounds of appeal are made out. Plainly there was evidence, that of Corporal Fowler, to support the verdict. The striking feature of this case, as we have already noted, is that there was much similarity in the competing versions of the central incident. Corporal Fowler and the appellant were alone in the room. There was a heated argument. The appellant took up his weapon, attached the magazine and applied the cocking mechanism. Further, both men thereafter were quite consistent in adhering to their respective versions. 72 All that is really common ground. The divergence is as to what the appellant said and the direction in which he held the weapon. 73 The jury would be entitled, having seen the appellant and Corporal Fowler cross-examined, to be satisfied beyond reasonable doubt as to Corporal Fowler's account.

Appeals against sentence 74 The maximum sentence for the offence of which the appellant was convicted was imprisonment for ten years: Crimes Act s 30, as applied by s 61(4) of the Defence Force Discipline Act. A sentence of imprisonment would necessarily involve dismissal from the ADF and service of the term in a civilian prison. If there is no dismissal ordered, a period of detention, as ordered in the present case, would be served in a military prison. 75 The appellant's principal attack on the penalty imposed was that his Honour said: In the absence of special circumstances, the conviction for this offence, should, in my opinion, carry with it dismissal from the ADF and some period of imprisonment. 76 These words, it was pointed out, do not appear in the relevant legislation. It was said that in arriving at an appropriate sentence the Court must have regard to the maximum penalty and consider where, in the range of conduct covered by the offence, the particular conduct committed by the offender falls. 77 We do not think that any error of law is disclosed. All that his Honour was saying was that the offence of which the appellant was convicted was a very serious one which would probably in most circumstances require dismissal from the ADF and that it would be an unusual or exceptional case in which that penalty was not applied. 78 As it happened there were unusual circumstances, primarily some outstanding character evidence given in favour of the appellant, including from Major General B A Power, Commander, Training Command, for whom the appellant had been a driver. Major General Power described the appellant as an excellent Junior NCO whom he rated highly. He was "respected, well liked, had a good sense of humour and was a good team member" with a reputation of being "a professional and a very good soldier". 79 It was said that the sentence did not take into account, as required by s 70(2)(g) of the Defence Force Discipline Act, the consequential effects of the person's conviction or punishment. The consequences in the present case were that the appellant lost his completion bonus in the sum of $25,000 and the opportunity to be promoted to Sergeant. 80 It was said that his Honour overlooked the utility of suspending the detention. It was said that his Honour gave little or insufficient weight to the prospects of rehabilitation and excessive weight to deterrence and denunciation. It was argued that the combined effect of the punishment orders designed to "permit (the appellant) to remain in the ADF and to rebuild (his) career" was nevertheless crushing, in the sense that it has deprived the appellant of virtually all that he had worked for in his military career and has extinguished any proper measure of hope for and encouragement to rehabilitation and reform. 81 There can be no doubt, however, that a reckless threat to kill is a serious offence, as indicated by the maximum penalty. Further, the circumstances of the present case, involving as they did confrontation and the loading and cocking of a rifle and an explicit verbal threat, put the offence a fair way along the spectrum of seriousness. 82 By the nature of their calling members of the ADF very often work in circumstances of stress, in close association with fellow members, and with lethal weapons readily available. The seemingly minor arguments in the present case suddenly escalated to what must have been a terrifying threat. Such conduct is extremely destructive of the discipline and mutual trust which must exist in the ADF. The need for general deterrence looms large in the present case. Frankly we think the penalty imposed was at the bottom end of a reasonable range. 83 For the same reasons we do not accept that the penalty was manifestly inadequate. While the sentence imposed was at the low end of the range it was not manifestly inadequate as contended for by the Director in her appeal so as to constitute error: Everett v The Queen (1994) 181 CLR 295 at 300. His Honour took into account the need to express disapproval of this serious breakdown in military discipline by the imposition of punishment which was condign but which recognised the appellant's previously unblemished record and that he could still make a useful contribution to the Army as urged by his referees.

Reference of a question of law 84 Section 30 of the Crimes Act relevantly provides that it is an offence to make a threat to another person to kill that person: (i) intending that other person to fear that the threat would be carried out; or (ii) being reckless whether or not that other person would fear that the threat would be carried out… 85 Section 19A(1) of the Defence Force Discipline Appeals Act provides: After the completion of a trial by the Australian Military Court under the Defence Force Discipline Act 1982, the Director of Military Prosecutions may refer a question of law that arose in the trial to the Tribunal for decision. 86 The question the subject of the reference is: Whether it is duplicitous to assert that the accused person has acted intentionally or recklessly in the one charge of a Territory offence based on the Crimes Act 1900 (ACT)? 87 The background to this question is as follows. In the original charge sheet dated 18 July 2007 there was one charge of threatening to kill, which included the allegation of the appellant uttering the words in question "intending that Corporal Fowler would fear that the threat would be carried out". 88 On 22 September 2008, before the appellant was arraigned, the prosecutor made an application to amend that charge by adding recklessness as an alternative mental element to that of intention. 89 After discussion his Honour ruled that the amendment should be refused because of concerns about making the charge duplicitous. In the course of discussion his Honour referred to his belief that a recent ACT Supreme Court decision had held that one charge including both allegations of intention and recklessness would be duplicitous. It subsequently emerged that the case was R v Maddison [2007] ACTCA 18. 90 Following that ruling the prosecutor submitted a fresh charge sheet dated 22 September 2008 in which charge 1 alleged an intentional threat, as in the form of the earlier charge sheet, and charge 2 alleged that the appellant was "reckless whether or not Corporal Fowler would fear that the threat would be carried out". The appellant then pleaded not guilty to all charges. The jury was empanelled and subsequently acquitted the appellant on charge 1 but convicted him on charge 2. There was a third charge of assault to which it is not necessary to make any further reference. 91 In our opinion the reference was not valid because the question did not arise "in the trial" within the meaning of s 19A. 92 At common law a court has no power to invoke upon a determination of pre-trial issues until such time as the trial has begun: R v Centra [1995]VSC 202 at [56]; Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566. At common law a trial on indictment commenced when the jury was sworn and the accused was placed in charge of the jury: Tonner [1985] 1 All ER 807 at 818. Section 132B of the Defence Force Discipline Act is consistent with common law. 93 We therefore hold that there is no valid reference.

Orders 94 There will be orders as follows. In the appeal by the appellant there will be leave to appeal but the appeal will be dismissed. The appeal by the respondent will be dismissed. The reference by the Director of Military Prosecutions will be dismissed. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justices Heerey (President), White (Deputy President) and Duggan (Member).

Associate: Dated: 13 February 2009 Counsel for Christopher Pook: W J Karczewski QC and S W Lee

Solicitor for Christopher Pook: W J Karczewski QC

Counsel for the Chief of Army and Director of Military Prosecutions: LA McDade and H G Dempsey

Solicitor for the Chief of Army and Director of Military Prosecutions: Office of the Director of Military Prosecutions

Evidence Act 1995(Cth)ss 60, 108, 165

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