The DFM's reasons and their alleged illogicality and inadequacy
55 In Mikus v Chief of Army [2020] ADFDAT 1 (Mikus), at [40] and following, the Tribunal discussed whether a DFM was subject to an obligation to give reasons and, if so, the source, nature and extent of an obligation of a DFM to give reasons. The Tribunal's conclusion was that a DFM was obliged to give reasons for a conviction decision. We adhere to the conclusion, for the reasons given in Mikus, that the DFM was subject to an obligation to give reasons.
56 As in Mikus, the present is not a case where the DFM gave no reasons. Thus, also as in Mikus, the adequacy or otherwise of the DFM's reasons must be judged by reference to the issues that arose at the trial and the nature of the evidence led at trial and other relevant circumstances. This flows from an application by analogy of the following observations made in the ACT Court of Appeal in DW v The Queen (2004) 150 A Crim R 139, in which, at [27], it was stated:
... Any grounds of appeal based upon an alleged inadequacy of the reasons that have been provided must obviously be determined by reference to the issues that arose at the trial, the nature of the evidence, the scope of the appeal and other relevant circumstances. However, the general scope of the duty should be noted: it is a duty to explain his or her decision; not to write an exhaustive treatise on every aspect of the trial ...
57 Recalling that, this year, Australia marked the 50th anniversary of the cessation of its involvement in the Vietnam War, we consider it appropriate to make these additional observations in relation to the obligation of a DFM to give reasons. As the decisions of the Tribunal of that era and since reveal, that war was the last occasion in which the ADF regularly conducted hearings in respect of service offences in a theatre of war. Under the prevailing military law of that era, there was no provision for trial by a DFM. Nonetheless, one sees in some decisions of the Tribunal of that era, an understanding that operational circumstances may be pertinent in determining whether an irregularity attended a trial: see Re Ferriday's Appeal (1971) 21 FLR 86, at 98 - 99 per Street J, President (as his Honour then was).
58 Necessarily, having regard to the subject matter, scope and purpose of the DFDA, the ADF's disciplinary code is intended for application in both peace and war in all its phases and intensities, be that in Australia or anywhere abroad. It is thus by no means impossible to envisage circumstances in which the operational circumstances under which a DFM came to hear and determine a charge in respect of an alleged service offence may become relevant to any assessment of the adequacy of that DFM's reasons. The Court Martial and Defence Force Magistrate Rules 2020 (Cth) (CM/DFM Rules) made by the Judge Advocate General under s 149A of the DFDA, in conjunction with the right of appeal against conviction to this Tribunal under the Appeals Act, may mean that, depending on operational circumstances, a summary of reasons sufficient to expose why a defence member was convicted is compliant with the obligation to give reasons.
59 In this case, the trial before the DFM was conducted under peacetime conditions. Further, the DFM gave extensive reasons, not a summary. Although those reasons were delivered orally, they were lengthy. They entailed the exposing of directions on issues of law which the DFM had given himself, a summary of the evidence tendered at the trial, reference to the submissions of the parties and an explanation as to why the DFM had found the charges proved beyond reasonable doubt.
60 These features of the case mean that it is neither necessary nor appropriate for us to make any further observations concerning the impact which operational conditions may have on the adequacy of a DFM's reasons.
61 Further, flowing from the fact that reasons were given, it seems to us, as was held likewise in Mikus, at [15] and [63], that there is not for that reason a wrong decision on a question of law in terms of s 23(1)(b) of the Appeals Act, or a material irregularity in terms of s 23(1)(c) of the Appeals Act, each of which would be exposed by a failure to give any reasons.
62 As the above summary of the evidence reveals, this was a case where the defendant gave evidence. Thus, the DFM appropriately gave himself what has come to be termed a "Liberato direction" [as to which see Liberato v R (1985) 159 CLR 507 (Liberato), at 515]. Moreover, in the course of his reasons and having summarised the evidence before him and the submissions of both the prosecution and the defence, the DFM returned to the three-staged test posed in Liberato in deciding whether he was satisfied that the prosecution had proved the case beyond reasonable doubt.
63 The first stage of the test required that the DFM address whether the accused's evidence was believed, in which case he was obliged to acquit the accused. The DFM found that he did not accept that LCDR Poulton had given a truthful and accurate account. The DFM found that his evidence was not credible or reliable.
64 Having so addressed and answered the first stage of the test, the DFM was obliged to address the second stage of the test. That required that he ask himself whether, even though the accused's evidence was difficult to accept (or unconvincing), it may nonetheless, as a matter of reasonable possibility, be true. If so, the DFM was also obliged to acquit the accused. Unlike in Kantibye, the DFM's reasons disclose that he made no error in applying the second stage of the test. The DFM found, explicitly, that LCDR Poulton's account could not, as a matter of reasonable possibility, be true. It did not leave him in a state of reasonable doubt as to what the true position was. The DFM just did not accept LCDR Poulton's account.
65 Overtly in his reasons, and correctly, the DFM, appreciated that this was not the end of his task. In conformity with the third stage of the test described in Liberato, he stated in his reasons, "But that is not the end of the case though under the third limb of Liberato. Having rejected the accused's evidence, I must and do put it to one side and go back to the prosecution case and consider whether I am satisfied beyond a reasonable doubt that the prosecution has proved its case in respect of each charge."
66 What followed in the DFM's reasons was not just an answer to the third stage question in Liberato but also an elaboration on why he had made the findings about LCDR Poulton's account that led him to address the third stage question.
67 Given the way in which the case for LCDR Poulton was put on the appeal, it is necessary to set out a lengthy excerpt from this following part of the DFM's reasons. That is because it was submitted on LCDR Poulton's behalf that the DFM's reasons were attended with illogicality such that the resultant guilty verdict was unreasonable, or could not be supported, having regard to the whole of the evidence.
68 In this following part of his reasons, the DFM stated:
In deciding to reject the evidence of the accused, I particularly remind myself of the reasons he gave as to why he did not contact his wife at 0100 hours, while checking social media on his mobile phone and lying next to the complainant on her bed. His reasons under cross-examination were that it did not seem required and that it did not seem to him that he needed to tell her. [We interpolate that this is an accurate rendition of an explanation LCDR Poulton gave in his evidence.] Such reasons, to my mind, fly in the face of the content of Exhibit 9 and the oral evidence of LCDR A.
The accused's wife had, at about 0200 hours, tried to call LCDR A. It seemed to me that his wife was at least interested in his whereabouts. This was hardly surprising in my view, considering the accused had departed his house about six hours earlier on 8 July 2022, dressed in his pyjama bottoms, a T-shirt, a puffer jacket and carrying a near full bottle of wine. I find his answers unconvincing in terms of content and the manner he gave them.
69 The contents of Exhibit 9 are quoted above in our summary of the prosecution evidence. It was put for LCDR Poulton, correctly, that this text exchange was no proof at all that he was aware, before then, that his wife had tried to call him at 0200 on the evening 8 and morning of 9 July 2022. Moreover, it was submitted, again correctly, that there was no evidence that LCDR Poulton was earlier aware that his wife had made any call during that evening. It was submitted that the reasons disclosed an illogicality in discounting LCDR Poulton's credibility based on a missed call by his wife to another of which he knew nothing. Taking up ground (a) in the grounds of appeal, it was further put that the DFM had engaged in unwarranted and, as she had not given evidence, unsupported speculation about his wife's state of knowledge as to his whereabouts.
70 Immediately after the excerpt from his reasons just quoted, the DFM stated:
I have also, in deciding to reject the evidence of the accused, borne in mind the deliberate lie he told LCDR A, and I refer to exhibits 9 and 10, about passing out on the couch at the complainant's house and the reasons for telling it, his reason being to save the complainant embarrassment.
The complainant had already, according to Exhibit 6, disclosed to LCDR A at about 0911 hours on 9 July '22, that she had been sick and thrown up while the accused was at her house. His text message to LCDR A about passing out on the couch was sent at about 0945 hours. The content of Exhibit 6 is, in my view, consistent with the evidence of the complainant under cross-examination that she was not embarrassed about vomiting and, as it turned out, soiling herself. I have used this lie as only going to credit. I find his answers unconvincing in terms of content and the manner he gave them. I have also, in deciding to reject the evidence of the accused, borne in mind his text to the complainant, that is Exhibit 9, which referred to among other things:
WTF happened. Flashes of vomiting and stumbling home at 0500 hours.
And his explanation for doing so. I find that the message suggested that he did not recall what had happened that night. The accused himself accepted that this was not true, he did recall. I find that the text message constituted a deliberate lie. The explanation offered was that it was an easy way to check in if the complainant was still alive and feeling okay and also an attempt to save embarrassment. Again, according to Exhibit 6, the complainant had already, at about 0911 hours on 9 July '22, been in contact with LCDR A about having been sick and throwing up.
The accused sent this text message to the complainant at about 1045. The accused could have simply asked how the complainant was feeling without suggesting that he did not recall earlier events. I confirm that I have used this lie as only going to credit. I find his answers unconvincing in terms of content and the manner he gave them. I find that the reasons the accused gave for lying to LCDR A and the complainant were vague and illogical.
[emphasis in original]
71 It was submitted on behalf of LCDR Poulton that this passage of the DFM's reasons manifested a further illogicality of reasoning in that he could not possibly have known that the complainant was not embarrassed about having been sick from excessive alcohol consumption and vomiting.
72 Read a particular way, and as the Chief of Navy conceded, these two passages in the DFM's reasons might be regarded as exhibiting the illogicality identified in the submissions made for LCDR Poulton. However, also as the Chief of Navy submitted, that is not the only way in which to read these passages.
73 First and foremost, the reasons of the DFM must be read as a whole. Next, and no less importantly, it is to be remembered that these reasons were delivered orally. Further, they have not been revised from transcript by the DFM, even for matters of grammar or style.
74 In Wills v Chief Executive Officer of the Australian Skills Quality Authority (2022) 289 FCR 175 (Wills), at [141], and citing well-known and authoritative observations concerning the approach to reasons furnished by civilian public administrative officials and tribunals, Perry J, with whom Logan and Griffiths JJ agreed, stated:
… it is well established that the reasons of an administrative decision-maker "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287)). When, therefore, it is said that such reasons should be read beneficially, ultimately this means that "a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying": Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]-[15] (Allsop J (as his Honour then was)).
75 Unlike the West Australian legislation considered by the High Court in AK v Western Australia (2008) 232 CLR 438, which prescribed particular criteria to be addressed by a trial judge in a judge alone trial in respect of an offence, neither the DFDA nor the CM/DFM Rules specify particular criteria which must be addressed in the reasons of a DFM. Instead, r 31 of the CM/DFM Rules states:
Functions of Defence Force magistrate
In addition to any functions conferred on the Defence Force magistrate by the Act, the regulations or any other rule, the functions of the magistrate at any proceedings before the magistrate are to ensure:
(a) that the proceedings are conducted in accordance with the Act and these Rules and in a manner befitting a court of justice; and
(b) that an accused person who is not represented does not in consequence of that fact suffer any undue disadvantage; and
(c) that a proper record of the proceedings is made and that the record of proceedings and the exhibits (if any) are properly safeguarded.
[Emphasis added]
76 By implication, the conduct of a hearing "in a manner befitting a court of justice" bespeaks that reasons must be given but does not seek further to prescribe their content. So, too, does an obligation to keep a "proper" record of proceedings. It is difficult to see how a record could be "proper" if it did not admit of meaningful challenge to a conviction under the Appeals Act or, for that matter, meaningful review under the DFDA. However, as we have observed already, the very purpose of the DFDA and the contexts in which a DFM may come to sit may dictate that what is "a befitting manner" and what is a "proper record" may perhaps be a summary of reasons rather than a reasoned narrative.
77 It may also be that an analogy with the approach revealed in the authorities in respect of reasons given in the course of civilian public administration can be taken too far with respect to the reasons of a DFM. Although service tribunals constituted under the DFDA do not exercise the judicial power of the Commonwealth under Ch III of the Constitution, they are at the very least obliged to act judicially [Mikus at [52] - [56], citing Private R v Cowen (2020) 271 CLR 316]. Conviction decisions of a DFM may, and in this case did, carry with them penal consequences. Further, it bears repeating that the reasons (or perhaps in operational conditions a summary of reasons) of a DFM must by necessary implication be such as to permit the meaningful exercise of the right of appeal against conviction as conferred by the Appeals Act. In turn that means that the reasons (or such a summary) must admit of a meaningful hearing by the Tribunal on one or more of the grounds specified in s 23 of the Appeals Act, including on a ground available by leave of the Tribunal. These are part of the purposes of the giving of reasons by a DFM.
78 These considerations in turn mean that a degree of caution must be exercised when considering civilian criminal law authorities concerning the obligation of courts of summary jurisdiction (including a Magistrates Court) to give reasons. The bases upon which the decisions of such courts may be challenged on appeal, if at all, as opposed to in some instances only by way of what these days is termed constitutional writ, can supply the context in which courts make observations on the nature and extent of a civilian court of summary jurisdiction to give reasons. This is one of the points made by The Honourable Justice M Weinberg AO, writing extra-judicially, in an illuminating paper, "Adequate, Sufficient and Excessive Reasons", Speech at the Judicial College of Victoria, 4 March 2014, at 7 - 13.
79 In relation to a DFM, and by analogy, we agree with an observation made by Buchanan JA in one of the summary justice authorities which Weinberg JA discusses in his paper, Perkins v County Court of Victoria (2000) 2 VR 246 (Perkins). In Perkins, at [64], Buchanan JA stated:
The degree of detailed reasoning required of a tribunal depends upon the nature of the determination, the complexity of the issues and whether the issues are ones of fact or of law or of mixed fact and law, and the function to be served by the giving of reasons. As to the last matter, reasons which are required to enable a right of appeal on questions of fact to be exercised might not be required if an appeal is limited to questions of law.
80 As Weinberg JA observes in his article and following his reference to Perkins and other authorities concerning courts of summary jurisdiction, although courts of summary jurisdiction "are obliged to give reasons for what they do, they are not expected to go into matters in anything like the detail that would be expected from judges in the higher courts when delivering reasons for judgment". To require more of a DFM in a service disciplinary system designed to be used in peace and war may be to render that system incapable in practice of serving the purpose for which it has been enacted. Equally, to require less may likewise be subversive of that purpose and of the related right of appeal to the Tribunal.
81 It is also necessary to remember that the finding of the DFM was, as the reasons explicitly disclose, in part based on demeanour. In Mikus, at [71], the Tribunal made these observations on findings so based:
Where the question is one of accepting and rejecting the evidence of a witness on demeanour-based grounds, little may be required, and there is no requirement for a judge to give a detailed explanation for a decision to prefer the evidence of one witness against that of another: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, at 280 (McHugh JA); Keyte, at [56] (Doyle CJ); R v Power [2003] SASC 77; (2003) 141 A Crim R 203, at [57], [59], [63] - [65]; DW v The Queen, at [28]; R v Barrowman [2007] SASC 28; (2007) 96 SASR 294, at [6] - [7]. Douglass v R [2012] HCA 34; (2012) 290 ALR 699, does not contradict that proposition, though it held that as a criminal trial depends on whether the evidence as a whole proves the elements of the offence beyond reasonable doubt, reasons which record no finding about the accused's evidence will be insufficient if they do not suffice to exclude the possibility that the judge simply preferred the complainant's evidence and proceeded to convict upon it, applying a standard less than proof beyond reasonable doubt: at [14].
82 We adopt the approach discussed in the preceding paragraphs to our examination of the reasons of the DFM in this case, rather than uncritically applying the civilian public administration authorities mentioned in Wills.
83 In our view, in each of the excerpts from his reasons quoted, the DFM is not just expressing reasons why he has rejected LCDR Poulton's evidence. He is also engaging in interpolated asides.
84 In the first passage quoted above at [68], and by way of aside, the DFM makes reference to the missed call at 0200 to LCDR A from LCDR Poulton's wife. The essence of his reasoning in that passage expressed is this. Here is a married man who has left his wife and children at home at or about 2000 on the evening of 8 July 2022, wearing nothing more than his pyjamas and a puffer jacket and carrying a near full bottle of wine, to socialise with fellow naval officer neighbours. Here is a man who has admitted he lied in texts about where he slept at the residence of one of them, who had stated in evidence that he had been awake at 0100 on top of the bed at that residence, next to a female naval officer he acknowledged was clad only in underwear (but said was under the doona), checking social media on his mobile phone but has said he didn't think it was necessary, although he had the means so to do, to text his wife to inform her where he was. The aside about the wife's missed call to LCDR A is, at most, an exposed way of highlighting the incredibility the DFM found, for the reasons just given, in LCDR Poulton's explanation for his lie.
85 When the DFM stated that the evidence of LCDR A "fl[ew] in the face" of LCDR A's evidence, the DFM was not stating that LCDR A's evidence demonstrably proved that LCDR Poulton knew of his wife's interest in his whereabouts at that time, and therefore was being untruthful in stating that he considered it unnecessary to contact her. Of course, LCDR Poulton could not be aware of the attempted phone call between LCDR A and the accused's wife. Rather, the evidence verified the view of the DFM that, in the circumstances, the accused's wife would have inevitably been interested in the accused's whereabouts. That evidence therefore confirmed the DFM's finding that the accused's testimony (being that he considered it unnecessary to tell his wife of his whereabouts) was implausible. So read, it does not carry with it any premise that LCDR Poulton was aware, before the text exchange between LCDR A and him, that she had had a missed a 0200 call from his wife.
86 As to the second excerpted passage at [70] above in which there was claimed illogicality, in our view there is an aside or interpolation about the complainant's credibility, based on the consistency of her account in oral evidence with the text exchange on the morning of 9 July 2022 between LCDR A and her (Exhibit 6). The DFM was entitled to conclude the two are consistent. There was no controversy on the appeal about the admissibility of the various text exchanges. They were admitted without objection at trial. Further, a basis for their admission could be found in s 66 of the Evidence Act 2011 (ACT), in its application to the proceeding via s 4A of the Jervis Bay Territory Acceptance Act 1915 (Cth) and s 146 of the DFDA. Immediately after this aside or interpolation, there is a sentence which commences, "I have used this lie as only going to credit." Had a new paragraph commenced here, and as we observed to counsel at the hearing, it would be difficult to see any basis for illogicality. We consider that is the better way to read this passage.
87 The DFM's reasons also disclose that his conclusions about LCDR Poulton's credibility were also based on his observation of him during his oral evidence. That is an advantage that he peculiarly enjoyed. Related to that and reading the reasons as a whole, the DFM's assessment of LCDR Poulton's credibility was multi-faceted and the result of a cumulative whole, which included demeanour when giving oral evidence.
88 For these reasons, we are not satisfied that the reasons of the DFM are illogical.