Stapleton v Chief of Army

Grounds 8 In summary, the appellant contends that: 1. there was a material irregularity in the proceedings and a substantial miscarriage of justice occurred because the prosecution failed to call a material witness; 2. the Chief Military Judge failed to direct himself pursuant to s 165 of the Evidence Act 1995 (Cth) about the unreliability of the complainant; 3. the convictions are unreasonable or cannot be supported having regard to the evidence and/or are unsafe or unsatisfactory; and 4. the sentence is manifestly excessive. 9 The appellant seeks leave to add a further ground that "the convictions are bad in law as the elements do not reflect an offence". The respondent opposes leave.

Agreed facts 10 Certain facts relating to the charges were agreed. 1. At all material times the appellant was a defence member within the meaning of s 3 of the Defence Force Discipline Act. 2. At all material times the appellant was a corporal recruit instructor at the 1st Recruit Training Battalion. 3. The 1st Recruit Training Battalion and the Standing Orders pars 7.16 to 7.19 applied at all material times and they were a general order pursuant to s 3 of the Defence Force Discipline Act. 4. The appellant was at all material times aware of those Standing Orders. 11 After a summary hearing by the Commanding Officer at Blamey Barracks, Kapooka in November 2007, which included other charges, the appellant elected to have the charges relating to Recruit Pitt dealt with by the Australian Military Court.

Issues 12 There were no witnesses to the charged conversations so assessment of the credibility of the complainant and the appellant was crucial. An immediate complaint was made by Recruit Pitt to her mother, Mrs Fiona Pitt, in the form of two letters on successive evenings and a telephone call. It was Mrs Pitt, not Recruit Pitt, who initiated an informal inquiry within the Army. Another command corporal, Corporal Bowerman, set in train the formal complaint. There were apparent inconsistencies between the accounts which Recruit Pitt gave in her evidence and those which her mother and Corporal Bowerman said that she had given to them. It was in that context that the defence sought to have Recruit Michelle Buckle called as a witness in the prosecution case because Recruit Buckle recalled Recruit Pitt complaining to her of more serious misconduct by the appellant, involving physical contact, on a different day. Recruit Pitt denied telling Recruit Buckle of such misconduct and said she spoke to her only about the incidents alleged the subject of the charges. 13 The appellant was not interviewed immediately upon the complaint coming to light. He maintained in his defence that the statements alleged against him constituting the charges had not been made. The appellant's contention below and on appeal was that Recruit Pitt was a "fantasist" who fabricated allegations of misconduct against him, because she was not doing particularly well in her course and did not like him.

Background 14 At the time of the events the subject of the charges the appellant held the rank of corporal and the complainant that of a private recruit undergoing training. By the trial the appellant had been promoted to sergeant and the complainant held the rank of private. It is convenient to refer to them by their ranks when the subject events occurred. (Trial transcript references use the ranks at the time of the trial.) 15 Recruit Pitt was posted to 35 Platoon at the 1st Recruit Training Battalion at Kapooka in New South Wales for her initial training. The appellant was a recruit instructor with 35 Platoon. The events giving rise to charges 3, 5 and 7 occurred on 17 March 2007. In order to give context to the charges in respect of which the appellant was convicted it is necessary to make reference to the circumstances of charge 1, of which he was found not guilty. That charge alleged harassment about sexual orientation contrary to Ch 7 par 7.19 of Standing Orders. 16 Recruit Pitt, then aged 20, enlisted in the Army on 29 January 2007. She arrived at 1st Recruit Training Battalion on 30 January 2007. In addition to a platoon commander and platoon sergeant, there were four training corporals: Corporals Stapleton, Bowerman, Hanlon and Brown. Recruit Pitt shared a room with the four female recruits in the platoon, including Recruit Buckle, the potential witness the subject of appeal ground 1(a). 17 On 17 March the recruits were at the firing range undertaking their final LF6 shooting test. Recruit Pitt fired first and passed her test. She was paired with Recruit Buckle who was not successful. In order to save time in having to instruct others in what was required the appellant asked her to remain on the mound as a scorer for the rest of the recruits taking their test. According to Recruit Pitt, the appellant was friendly towards her, for example, by offering her a hand out of the pit and chatting easily. She said in evidence, that he asked her if she had a boyfriend and, after she replied in the negative, he then asked if she "bat(ted) for the other team". Although he admitted asking if she had a boyfriend, he said he asked her if she had a girlfriend, rather than using the phrase "batting for the other team". Recruit Pitt said that she was not troubled by his inquiry as to her sexual orientation. His Honour found that the appellant's questioning, although it occurred as alleged, did not constitute harassment contrary to Standing Orders Ch 7 par 7.19. 18 Recruit Pitt was the only recruit to remain behind to assist throughout the day. This, the appellant agreed, was unusual. Normally the recruits would do their test in pairs with one scoring for the other. When finished, if successful, they would clear their weapons and then socialise. Recruit Pitt agreed that from time to time during the day the appellant asked her if she wanted a break but on each occasion she declined. She agreed that on one such occasion she responded jokingly, "Are you trying to get rid of me?" 19 The appellant gave evidence that he was concerned as to why Recruit Pitt wanted to remain at the range so long and thought that there must be some difficulty at home or with one of her peers in the platoon. It was in this context that the appellant said he asked her if she had a boyfriend or a girlfriend. As mentioned above, he denied that he asked, "Do you bat for the other team?" or anything like it. He was asked why, if he were concerned for her welfare, he did not simply command Recruit Pitt to leave the range. 20 The appellant made no written note of his concern about Recruit Pitt's emotional well-being, either then or subsequently. It was not disputed that later in the day the appellant told Recruit Pitt that he wanted to speak to her when they got back to the lines about a matter. When she asked if it was something bad he said, "No". Recruit Pitt assumed it was some counselling issue. 21 Recruit Pitt agreed that nothing said on the range by the appellant was of concern to her.

Recruit Pitt's account 22 Recruit Pitt returned to the lines on 17 March and after dinner, which started around 1700 and finished around 1830 hours, was called to the administration area by the appellant who, when she arrived, motioned her into the section commanders' office. In front of the office door there was a busy foyer. A locker located immediately inside the doorway to the office limited observation of the room from outside. Upon being called to the room, Recruit Pitt performed the required doorknock procedure. This involved knocking on the door and then standing at attention with toes on a line of tape on the floor and announcing oneself. It was not usual practice for recruits to enter the corporals' office even after performing this procedure. However the appellant beckoned Recruit Pitt into the office. The appellant sat in his chair at his desk, and according to Recruit Pitt he said: I don't quite know how to say this, so I'm just going to say it anyway. I find myself very attracted to you. I'm having trouble controlling myself around you and I just want to ravish you right now. He then said, "What do you think?" 23 Recruit Pitt said: I'm surprised. I didn't expect that this was what you wanted to talk to me about. I think this is inappropriate. The appellant told her not to mention the conversation to anyone.

The appellant's account 24 According to the appellant, Recruit Pitt did not cross the taped line but remained outside. He denied that she had ever been in the room in his presence. He agreed that he had summoned her to the administration line at about 1830 to 1900 hours but spoke to her from the doorway. He said that he ventilated his concerns for her well-being by asking her a number of questions such as why she did not want to leave the mound during the LF6 practice earlier that day. He said she responded vaguely, shrugging her shoulders. He asked whether there were any issues at home that might be affecting her training to which she answered, "No". He asked her whether she had any issues with any recruits within the platoon, or with any of the staff within the platoon or her sister platoon to which she also responded in the negative. He recalled that he might also have complimented her on her ability to pass the shooting test and on her performance as a recruit to that stage in her training. He explained that if there was a problem, he could not assist her if he did not know what it was. He was unable to recall her response to this statement, if any. He then dismissed her to the task which she had been given. 25 The appellant denied making the statements alleged by Recruit Pitt.

Recruit Pitt's account 26 At about 2000 hours on 17 March when phone time was called for the recruits the appellant called Recruit Pitt back down to the administration line. Her evidence was that he again motioned her towards the corporals' office door and then, once again, inside the corporals' office. They both stood just behind the locker inside the room and he said: This is driving me crazy. 27 Recruit Pitt responded, "What do you mean, do you regret saying something to me?" He answered, "No, I just want to know how you feel". She replied, "I still feel the same. It was pretty inappropriate". 28 At about that moment Recruit Pitt said she heard another recruit going through the doorknock procedure. The appellant then moved out to the front of the locker and engaged the recruit in a conversation, the content of which Recruit Pitt could not hear. The appellant came back into the office to where Recruit Pitt was standing and said something to her which she did not hear. She asked him to repeat it. He said: I so want to kiss you right now. 29 She responded: I think that would be a bad idea. Her evidence was that she meant by this that it was a bad idea for her to be in the corporals' office and that it was a bad or awkward situation. The appellant responded, "Me too".

The appellant's account 30 The appellant denied that there was a second meeting with Recruit Pitt at around 2000 hours or at all that evening. He did not recall the other recruit going through a doorknock procedure and speaking to him.

Recruit Pitt's account 31 Recruit Pitt said that after the exchange described above, she asked if she could leave and the appellant agreed that she should. As she was leaving he said to her: Just remember I will be mentally undressing you every time I see you. Recruit Pitt said that this made her feel "petrified" and uncomfortable given the power which training corporals had, particularly as there was still another month of training left at Kapooka.

The appellant's account 32 As mentioned, the appellant denied that this second meeting occurred at all.

Plausibility of the appellant's account; comment by trial judge 33 There was during cross-examination an exchange between his Honour and the appellant: Sergeant, this concerns the location chosen for that conversation with Private Pitt back in the lines?---Yes, sir. It occurs to me from the evidence that this was a somewhat public place?---That's correct, sir. Was it usual to conduct interviews with the recruits about personal matters such as problems at home or problems with other recruits in that very public area?---Sir, I was in a bit of an awkward situation due to the fact that I was the only staff member in the lines and I didn't take Recruit Pitt into a secluded area for this very reason - that I could have these allegations of impropriety raised against me. I'm not that stupid, sir. But what was the urgency in having the interview that evening, why not wait until you had someone else to act as your witness?---At that time, sir, I wanted to see whether there was anything that might trigger her to maybe cause some sort of self-harm or, you know, look at going AWOL or some sort of radical decision on her part. Not knowing what the problem was I came to the conclusion that there was no real issue so I dealt with it. I was also busy managing 40-odd other recruits at the same time, sir. But you are saying to me that your level of concern after the range was such that she may have attempted self-harm?---That has been raised by other recruits, sir, as a way of getting out of Kapooka. I don't want to pursue this with you exhaustively, it is not my role to cross-examine you, but are you saying to me that the level of concern you had about Private Pitt out on the range was such that you thought there was a genuine possibility that she might attempt self-harm?---No, sorry sir. What I'm saying is that she have [sic] been aware of that. It was common knowledge amongst recruits that they could get out of Kapooka within days if they said that they were thinking of committing self-harm and I wanted to see her complete her training. Under the 1RTB standing orders and the code of practice that we abide by, as soon as a recruit states that they are thinking of committing self-harm, we remove them from training and we send them up to the hospital where they're placed under supervision, so they're basically then processed for discharge. Again I am afraid I do not quite understand. If she wanted to leave Kapooka by claiming whether legitimately or falsely that she was contemplating self-harm why would she not have done so out on the range when you had this conversation?---I don't know, sir. Then again could you just tell me what was the purpose and urgency of doing it again in the lines that night?---I just wanted to be sure in my own mind, sir, that there was no issue that needed to be addressed. Again, why did you consider it necessary to do it that night rather than waiting until you had someone with you who could act as a witness?---It didn't occur to me at the time to wait, sir. I just thought I'd deal with it there and then. I can't recall as to why I would have done it. I was just being thorough I guess, sir. 34 It is not surprising that his Honour found the explanation both unsatisfactory and unconvincing. His Honour observed in his reasons: Assuming that, as he claimed, he entertained a genuine concern that Private Pitt had a problem which might relate to issues at home or in connection with another recruit or members of staff, it is hard to imagine that he expected her to be more forthcoming while standing to attention in the public foyer of the platoon lines when [sic - than?] she had been prepared to be in the comparative privacy of their time together on the mound while waiting between firers.

After the incidents 35 Recruit Pitt wrote to her mother later in the evening of 17 March describing aspects of the incidents in the corporals' office. That letter and a subsequent letter written the next day, 18 March, were tendered without objection. His Honour held them to be admissible under the firsthand hearsay exception in s 66 of the Evidence Act. 36 In summary, Recruit Pitt mentioned her confusion over the incidents, and said that she was unsure what to do about them, but if there were no further incidents she did not want to make a fuss or cause trouble. She asked her mother not to tell anyone. She said she did not want to be seen as a trouble maker. 37 She telephoned her mother on the evenings of 18 and 19 March. At this stage Mrs Pitt had not yet received either letter. In the call on 18 March Mrs Pitt asked her if something was wrong. Recruit Pitt acknowledged that there was, but said she could not talk. 38 When Recruit Pitt telephoned her mother on 19 March she spoke to her about the incidents in the corporals' office on 17 March. During the call she began crying. Mrs Pitt, whom his Honour characterised as a sensible woman, indicated to Recruit Pitt that she would discuss the situation with her older sister, who had been in the Army for some 10 years. 39 After the call, as well as sending a message to her eldest daughter, Mrs Pitt got in touch with the wife of Corporal Bowerman, one of the training corporals. Corporal Bowerman approached Recruit Pitt on 26 March encouraging her to discuss with him what it was that was worrying her mother. They had a conversation in the brew room. There was extensive cross-examination of Recruit Pitt about discrepancies between Corporal Bowerman's and Recruit Pitt's recollections of their conversation. Recruit Pitt and Corporal Bowerman then spoke to the 2IC of Delta Company who recorded her complaint. 40 Two further events, not the subject of any charge, were mentioned by Recruit Pitt in cross-examination. The appellant denied that they occurred. Recruit Pitt said that on 20 March as she was in her room ironing her pyjamas, the appellant came into the room, looked around, examined her locker and squeezed her elbow in an affectionate manner saying, "Good job". The second event was later that day just before lights out at 2200 hours whilst Recruit Pitt was walking to the showers and latrines. She said that the appellant approached her and pointed at her with a wooden stick at a distance of about 40 cm and said in "a sleazy tone", "I'm watching you". Recruit Pitt did not think that these events were an escalation of the appellant's conduct towards her, rather a continuation. Recruit Pitt thought she mentioned them to her mother, but Mrs Pitt could not recall her doing so.

The letters 41 In the first page of her letter written on 17 March Recruit Pitt recounted various training activities where she was teased and made to feel "confused". What she describes reads like a robust introduction to Army life involving some harmless pranks, putting her "on the spot", perhaps testing her resilience. The defence made much of her writing to her mother that she had been "promoted to 'seco' (section commander)" in the field as demonstrating a young woman who was fantasising her Army life. This, it was said, showed her to be in character with one who would make up the allegations against the appellant. The tone of the letter does not support this and nor did the cross-examination of Recruit Pitt. She clearly did find those singling out incidents quite disconcerting but recognised them for the pranks that they were. 42 On the second page of the letter she raised the events in the corporals' office. She wrote: Then FINALLY…and this will blow your fucking mind, god knows I'm still trying to comprehend it all!! Anyways during our LF6 shoot I went first and after I passed, I stayed behind with my seco and scored all day so he could get through the firers quicker. He mentioned that he had to talk to me about a personal matter when we got back. All well and good, until he called me into his office where he proceeded to tell me how attracted to me he was and that he was having trouble controlling himself at the range! He then asked me what I thought should be done about it. I said that I was supprised [sic] and didn't expect it and thought that it was inappropriate considing [sic] the circumstances. I didn't really want to tell him that the feeling wasn't mutual and that the whole thing was fuck. Anyways I went away and later he called me back again saying it was driving him crazy and that he really wanted to kiss me. I just said I thought that it was a bad idea and he agreed then said that we will have to leave it as if nothing was said and who knows we might meet up it [sic] the wider Army sometime down the track!! She added that she had told no one and asked her mother to make no mention of it in her letters. 43 In her letter the following day Recruit Pitt said she was anxious about things and had decided to wait and see before taking any action: So you can probably tell from my last letter I've been a bit frazelled last night and this morning! I'm not sure what to do about it, if anything! I know it's not professional but I don't want to start any trouble so early on in my career!! But yeah…it's so sereal! (sp?) [sic] I was laying in bed last night thinking "Why me, why me…this is fucked". And I really wanted to talk to someone about it but there is no one here I trust enough to not tell anyone else. And if I talk to a cpl about it the hit will shit the fan, or something like that! So yes stuck in a bit of a predicament [sic] here! I think I might just ride it out a couple of days and see how it all plays out! If it starts to impose in my comfort factor I'll speak up, but if it just goes away nothing needs to be said. At least that's how I see it atm! 44 His Honour concluded that the letters were consistent with the gravity of the offending save that Recruit Pitt tended to exaggerate, for example when she wrote that she had a "totally fucked up head at the moment". Recruit Pitt agreed in cross-examination that this was an exaggeration. His Honour found that while the letters did not address the incidents in detail they did address them in substance. It might be added that Recruit Pitt's evidence was consistent with the account in the letter of 17 March, despite her not having seen them between posting them and the summary hearing. His Honour accepted that she did not to want to be seen as a trouble maker, even though she knew she should report the incidents, and that it was not unreasonable from her perspective that she just wait and see how things developed.

Mrs Pitt's and Corporal Bowerman's evidence 45 His Honour stated in his reasons a preference for the accounts of Mrs Pitt and Corporal Bowerman where it differed from that of Recruit Pitt. Senior counsel for the appellant emphasised discrepancies between the evidence of Recruit Pitt and that of both Mrs Pitt and Corporal Bowerman. 46 Mrs Pitt said she pressed her daughter during the phone call on 18 March as she was concerned something was not right. Recruit Pitt conceded that there was a problem and she had written but could not speak for want of privacy. During the telephone call on 19 March, Mrs Pitt said her daughter became very distressed, bursting into tears and sobbing. Mrs Pitt said that her daughter told her that one of her section commanders was giving her a hard time, and then started crying. From the disjointed information her daughter conveyed during the conversation, which lasted about 15 minutes, Mrs Pitt was able to piece together an understanding that there had been two or three incidents. 47 Specifically, Mrs Pitt's evidence was that Recruit Pitt told her the appellant had told her (Recruit Pitt) that he had imagined her naked. Mrs Pitt was definite as to her daughter's use of the word "naked", as opposed to "mentally undressing". Recruit Pitt stated in her evidence that she had not used the word "naked". 48 Recruit Pitt also told Mrs Pitt about the appellant's questions about sexual orientation, and that he wanted to "ravish" her. According to Mrs Pitt, this was a "most unusual" word for her daughter to use. She was "not the sort of kid that reads Gothic romances or bodice busters". 49 Similarly much was made of discrepancies between Corporal Bowerman's evidence and that of Recruit Pitt. Corporal Bowerman said that Recruit Pitt told him that the appellant had said he wanted to kiss her, ravage her, and that he wasn't sure if he could control himself. Recruit Pitt recalled that she told Corporal Bowerman that the appellant had "hit on her". Corporal Bowerman said that Recruit Pitt was crying and was visibly shaken during their conversation. 50 Both Corporal Bowerman and Mrs Pitt took contemporaneous notes of the conversations which informed their official statements. It was, therefore, not surprising that his Honour preferred the evidence of Mrs Pitt and Corporal Bowerman to that of Recruit Pitt about the actual words she used. But his Honour concluded, with respect correctly in our view, that the differences in the various accounts were not significant and the thrust of the allegations made were consistent.

Ground 1(a) - failure by prosecution to call a material witness 51 It will be recalled that Recruit Buckle shared a room with Recruit Pitt along with two other female recruits during their training at Kapooka. She was Recruit Pitt's pair at the range when they did their LF6 test. In a supplementary statement taken on 14 April 2008, Recruit Pitt said: In my previous statement, I stated that I had told my Mother and Corporal Bowerman about Corporal Stapleton's inappropriate actions towards me. Aside from these two people, the only other person I spoke to about it was Private Buckle, who was another recruit in my platoon. After receiving Recruit Pitt's supplementary statement on 5 August, the defence obtained a statement from Recruit Buckle. 52 Recruit Buckle recalled on 11 August 2008 (the date of her statement) that on 21 or 22 March 2007 she was in her room with Recruit Pitt when she (Pitt) said: Corporal Stapleton was giving me my fortnightly report today. We were in the brew room and he closed the door. He made a few moves on me and touched me inappropriately. I feel uncomfortable around him. 53 Private Buckle said she asked Recruit Pitt if she had told anyone and was told "Corporal Bowerman". Recruit Pitt added that the appellant had already "tried it before out on the range". Recruit Buckle said that Recruit Pitt seemed "scared and nervous", but that she (Buckle) could not remember anything else as it had been "such a long time since it happened" and they had not spoken about it since that day. She did not inform anyone within the command structure as she thought that Recruit Pitt had already made a complaint. 54 The prosecution did not seek to adduce evidence about this conversation from Recruit Pitt. 55 Recruit Pitt agreed in cross-examination that she may have spoken to her roommate on 21 March after she received her fortnightly report from the appellant in the brew room, but denied that she mentioned anything to her of any incident in the brew room where he "made a few moves on me and touched me inappropriately" as recounted in Recruit Buckle's statement. She said that the first time she mentioned anything about "inappropriate" approaches by the appellant to Recruit Buckle was at the golf club on 26 March, the same day she spoke to Corporal Bowerman. This was fixed in her mind as the day she did the bayonet course and Corporal Bowerman agreed with the occasion. She denied that the appellant had ever engaged in any inappropriate touching either in the brew room or at any other time or that she had ever said to Recruit Buckle that he had. 56 Before the close of the prosecution case on 13 August 2008 and after Recruit Pitt had concluded her evidence, defence counsel sought to have the prosecution call Recruit Buckle to give evidence. She was available to give telephone evidence. Her statement was received on the voir dire. His Honour concluded that he did not have power to make a ruling on an application by the defence for the prosecution to call Recruit Buckle. This was correct. A judge is not called upon to adjudicate on the sufficiency of the prosecutor's reasons for not calling a witness: The Queen v Apostilides (1984) 154 CLR 563 at 570. The prosecution position was that she was a witness going solely to credit and since there was no charge concerning the conduct referred to by Recruit Buckle, it was not relevant to a matter in issue in the proceedings against the appellant and she was not a material witness. 57 The defence did not call Recruit Buckle in the defence case. It would have been open to the defence to call Recruit Buckle in accordance with the procedure set out in s 43 of the Evidence Act in order to establish prior inconsistent statements. However, senior counsel for the appellant stated that this course was not followed for tactical reasons. 58 The prosecution could not, as part of its substantive case, have led evidence from Recruit Buckle of Recruit Pitt's alleged statement. The evidence which Recruit Buckle could have given in the trial would have been hearsay evidence and to the effect that the appellant had allegedly committed another, more serious, offence than those which were before the Court. Senior counsel for the appellant was unable to articulate any persuasive argument as to why, in the interests of a fair trial, the prosecution ought to have called Recruit Buckle. Ultimately, the appellant's contention seemed to be that in a case which turned on credibility, any witness who could contribute some evidence of inconsistency with the complainant's evidence about any topic becomes a material witness, in the absence of whom there will be a miscarriage of justice. That cannot be correct, at least so far as the proposed evidence of Recruit Buckle is concerned. 59 Senior counsel for the appellant referred to R v Kneebone (1999) 47 NSWLR 450 as authority for the proposition that a material witness ought to be called if that witness suggests unreliability in the principle Crown witness. He particularly referred to Greg James J's reasons at [49]-[50]. That was a very different case. The uncalled witness was an alleged eye witness to rape although she denied being one. It was in that context that his Honour commented at [50]: In reaching a view as to reliability, it is clear that it is not an adequate basis to conclude that the witness is unreliable, merely because the witness' account does not accord with some case theory which is attractive to the prosecutor. Recruit Buckle was in no real sense a material witness and it is difficult to see on what basis the prosecution could have called her. 60 The responsibility of the prosecutor with respect to the calling of witnesses was discussed in Apostilides 154 CLR at 575 and after a detailed analysis of the cases and the rare circumstances in which a judge may be justified in calling a witness, the court set out a number of general propositions applicable to the conduct of criminal trials in Australia, namely: 1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. 2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons. 3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness. 4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge. 5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence. 6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. 61 There is no reason to conclude that the failure to call Recruit Buckle, alone or in combination with the other grounds, has led to a miscarriage of justice. 62 Ground 1(a) must fail.

Ground 1(b ) - failure by Chief Military Judge to direct himself pursuant to s 165 of the Evidence Act 63 Defence counsel below submitted to his Honour that if he concluded that Recruit Pitt had given prior inconsistent evidence (rather than a prior inconsistent statement) she was then to be characterised as an unreliable witness and he should warn himself in accordance with s 165 of the Evidence Act about her unreliability. He was here referring to Recruit Pitt's evidence in the summary proceedings where she was asked, in respect of the firing range conversation the subject of charge 1, if the appellant could have used the word "girlfriend". She there agreed that he could have. In her evidence at trial she said that he did not and could not have used that expression and explained that she had been confused about the nature of the question in the summary proceedings, understanding it to have been put as, in effect, a hypothetical, that is, he could have used that expression. At trial she said that while he could have, he did not. 64 On appeal the appellant's position was that the obligation to warn was wider than that identified below and encompassed, on the defence case, all the material inconsistencies in the evidence of Recruit Pitt. 65 Section 165 "applies to evidence of a kind that may be unreliable, including the following kinds of evidence…" There follows a recital of broad categories of evidence, for example, that of accomplices, prison informers and those suffering from physical or mental frailty. As a matter of statutory construction the categories, being inclusive in nature, are not closed but, nonetheless, it must be evidence "of a kind that may be unreliable". In R v Baartman [2000] NSWCCA 298 Kirby J, with whom Spigelman CJ and Smart AJ agreed, said at [62]: In the nature of things, evidence given by all witnesses may be unreliable. Evidence is necessarily dependent upon observation and recollection. Both are fallible. However, s 165 is not dealing with unreliability in this sense. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence, or because there is the danger that the jury may over-estimate the probative value of certain evidence… 66 That passage was quoted with approval by Howie J with whom Hulme J agreed in R v Stewart [2001] NSWCCA 260. His Honour said at [99]: In my opinion, matters which would not generally attract a warning under s 165 include: prior inconsistent statements made by a witness; inconsistencies within the evidence of a witness; inconsistencies between the evidence of a witness and other evidence in the trial; an allegation of bias made against a witness; or the fact that it has been suggested that the witness had a motive to lie. Evidence which is tainted by any of these types of matters is not for that reason alone "evidence of a kind that may be unreliable". However, as I will indicate later, these types of matters might be made the subject of comment by a trial judge, and, in the case of a crucial Crown witness, a summing up may be defective if no reference is made by the trial judge to such matters when reviewing the case against the accused. 67 A warning need only be given under s 165(2) "if there is a jury and a party so requests": Evans v The Queen (2007) 241 ALR 400 per Heydon J at [231]. Both counsel submitted that a judge sitting alone as the trier of fact in a criminal trial, if requested, would fall within the requirement of s 165(1). To the extent that a judge must expose his process of reasoning in reaching his decision when sitting alone that may perhaps be so, but the underlying rationale for the warning involves, in part, the danger that the unreliability "is not necessarily obvious to a lay mind": R v Spencer [1986] AC 128 per Lord Halisham at 135, quoted with approval by Howie J in Stewart at [75]. 68 Assuming, without deciding, that s 165 applies to a judge sitting alone in a criminal trial and the request by counsel encompassed material inconsistencies and not just the summary evidence referred to, there is no reason in this case to have given a warning of the kind contemplated by s 165 about perceived inconsistencies. That is because the alleged inconsistencies by Recruit Pitt were not, by that reason alone, "evidence of a kind that may be unreliable". But because Recruit Pitt's alleged inconsistencies were central to the defence submissions that her evidence ought not to be accepted it was appropriate that his Honour make comment about them. This he did carefully. Of charges 1 and 2 his Honour said: There is some common ground as to the fact of certain conversations between them [the appellant and Recruit Pitt] and so far as charges 1 and 2 are concerned as to the general tenor of the conversation at the range. However so far as the words alleged to give rise to the charges are concerned Private Pitt is not corroborated, that being so, it is necessary that I scrutinise her evidence with great care before relying on it. There is of course evidence that Private Pitt told other people, including her mother and Corporal Bowerman, of the incidents, which she says occurred, with Sergeant Stapleton. Again, I shall refer to that evidence subsequently but I note at this point that something which is false or exaggerated in the first place does not become true or reliable simply because it is repeated to others. For this reason evidence of Private Pitt's complaint must be treated with caution. 69 Later in his Honour's reasons, after rejecting the appellant's account of the events and conversations at the lines, his Honour said: As I have already indicated, the fact that I may not accept Sergeant Stapleton's evidence on the events does not mean that Private Pitt's evidence should therefore itself be accepted. As I have said, it is necessary to scrutinise her evidence with great care and I have done this having particular regard to the matters put to her in cross-examination. 70 His Honour said: I have carefully considered all the learned defending officer's submissions concerning the potential unreliability of Private Pitt's evidence. I shall refer in some detail to which I consider the more significant issues but I have carefully considered the issues in their entirety. 71 His Honour then said: The next issue to which I have turned my mind are the inconsistencies between Private Pitt's evidence of what she told Mrs Pitt and Corporal Bowerman and what those witnesses say Private Pitt said to them. I do not attach a great deal of weight to Private Pitt's evidence of what she says that she told her mother or Corporal Bowerman. Private Pitt's concern would logically have been focused on the events, which she says gave rise to the complaint, rather than to the form of the complaint itself, particularly if she believed the underlying allegations to be true. In this regard I prefer the evidence of Mrs Pitt and Corporal Bowerman. I accept that both made notes of what was said and I am satisfied that the versions they say they received from Private Pitt were generally consistent with Private Pitt's allegations in court. 72 His Honour set out what Corporal Bowerman said was the content of his conversation with Recruit Pitt on 26 March 2007 and concluded: I do not, for example, see very much turning upon Private Pitt saying to Mrs Pitt that Sergeant Stapleton had said that he wanted to see Private Pitt naked as opposed to, "Just remember I will be mentally undressing you every time I see you". I have also looked carefully at the events which Private Pitt agreed in cross-examination that she also alleged were perpetrated by the then Corporal Stapleton but which are not the subject of charges before this Court. This is the elbow squeeze in the room and the incident when she says Corporal Stapleton pointed his cane at her and said he was watching her and the conversation during the debrief on training on 21 March. 73 Of the complaint that Recruit Pitt had given inconsistent testimony in the summary hearing which founded the application for the s 165 direction below, his Honour concluded: Private Pitt was cross-examined about inconsistent testimony before the commanding officer. In connection with Private Pitt's cross-examination before the commanding officer concerning the words used by Corporal Stapleton while they were on the range. She was asked a question in the following terms, and this is from exhibit 16, question: He asked if you batted for the other team, that may not have been the correct term to use, but could he have been asking and possibly used another world like, "Do you have a girlfriend?"---He could have. The question potentially involves two propositions: firstly, could Corporal Stapleton have been asking, "Do you have a girl friend?" Secondly, could Corporal Stapleton possibly have used another word like, "Do you have a girlfriend?" That being so it is difficult to contribute [sic] the concession given by Private Pitt in her evidence. It could have related to both propositions or only one. I think there is no issue that agreement with the first of these propositions would be consistent with her evidence before me. When asked about this in these proceedings she said, when she was in court before the commanding officer she was flustered, it seemed more like the defending officer was saying it would have been more appropriate to say, "Do you have a girlfriend?" Having regard to the two propositions that the question of the summary proceedings entailed I consider that response satisfactory. 74 His Honour engaged in a scrupulous analysis of the evidence mindful of the weaknesses in Recruit Pitt's evidence. There was no requirement to make specific reference to s 165 nor to consider that that provision required any particular warning to be given or to articulate care greater than that which his Honour set out in his reasons. The appellant's real complaint is that his Honour was satisfied, notwithstanding some inconsistencies, that they were explicable by reference to the distress suffered by Recruit Pitt together with an assessment that, in essential matters, there was no inconsistency between her evidence and the evidence of Mrs Pitt and Corporal Bowerman and that she was an honest and reliable witness. In truth, the inconsistencies were largely peripheral to the main issues. His Honour's rejection of the account by the appellant of the events the subject of the charges was based on a coherent analysis of the whole of the evidence.

Ground 1(c) - the verdict was unreasonable and/or unsafe 75 It is the appellant's contention that Recruit Pitt's version of events was so unreliable, and suffered from such inconsistencies and want of corroboration, as to render the verdicts on counts 3, 5 and 7 both unreasonable and unsafe. The appellant contends that the accuracy and correlation of Recruit Pitt's oral evidence mirroring her statement was such that it indicated a rote learning of the statement. He submitted that this together with an inability in cross-examination to recall with any precision other conversations in the same events suggested the complaints were "made up". 76 A perusal of the whole of the evidence supports the conclusions to which the learned Chief Military Judge came. Of particular note is the strong correlation between Recruit Pitt's account of the incidents in her letters to her mother, particularly that of 17 March, and her official statement in April 2007. She had not seen the letters after posting them until close to the summary trial. Furthermore, on essentials she was, as his Honour noted, unshaken in cross-examination. The focus on particular words such as "ravish" and "naked" obscured the overall consistency of Recruit Pitt's accounts to all the people with whom she spoke. Furthermore, his Honour was correct to be sceptical of the account given by the appellant as to his concern for Recruit Pitt. 77 Senior counsel for the appellant submitted that the observation by his Honour of the unsatisfactory nature of the investigation also supported this ground. The absence of the notes from Mrs Pitt and Corporal Bowerman was a matter of regret and indicated sloppiness in the investigation but there was no suggestion that in some unspecified way those notes might have led to a different outcome so as to characterise the trial as unfair. 78 The appellant made much of the "fairy tale" quality of some of the matters in Recruit Pitt's letter to her mother. However, as his Honour mentioned, the very real distress discerned by Mrs Pitt in her telephone conversation with her daughter on 18 March did not have the quality of fabrication and neither did Recruit Pitt's disinclination to pursue matters initially against the appellant suggest making up the allegations of misconduct. The so-called dislike of the appellant, as his Honour correctly observed, emerged subsequent to these events. 79 A complaint is made about the prosecutor's opening. Aspects of it were inappropriate, suggesting that a lower standard of satisfaction should be required because the complainant was junior and vulnerable. His Honour briskly disposed of that in his reasons articulating the correct test. 80 This ground has not been made out.

Ground 1(d) - sentence is manifestly excessive 81 Senior counsel for the appellant submitted that the appropriate penalty was a loss of seniority rather than a reduction in rank. He submitted that the Chief Military Judge did not appropriately take into account the significant financial hardship which would be visited upon the appellant. It was calculated that the loss would be in the vicinity of $33,000 for loss of income and possibly up to $100,000 in superannuation loss. His Honour received evidence about and was conscious of the financial consequences to the appellant. Financial loss will often be a consequence of a criminal conviction. For example, a person may lose his employment. 82 It is incorrect to characterise the conduct of the three charges upon which the appellant was convicted as an "inappropriate amorous advance" as was contended for by the appellant in written submissions. The position of particular trust that the Army reposed in the appellant as instructor of new recruits required a meticulous adherence to standing orders about fraternisation. General deterrence was particularly important. This was a plain case of abuse of rank as a corporal instructor. 83 Nor was it a case where the appellant came without previous misconduct to be sentenced. He had a number of previous transgressions including reduction in rank and required to be sentenced here on the basis of personal deterrence. The sentence imposed was within the exercise of a sound sentencing discretion by the Chief Military Judge.

Proposed ground 2 - not an offence at law 84 The appellant seeks leave to raise an additional ground of appeal that the convictions are bad at law because the conduct described in the charges does not constitute fraternisation within the meaning of that expression in standing orders. The contention is that par 7.16 proscribes conduct between staff and trainees. To support this submission the appellant referred to the definitions of fraternisation in the Oxford Dictionary: The action of fraternising or uniting as brothers, the state or condition of fraternity, fraternal association. and the Macquarie Dictionary ("fraternise"): 1. to associate in a fraternal or friendly way. 2. to associate intimately with citizens of an enemy or conquered country. 3. Rare to bring into fraternal association or sympathy. 85 The starting point should be par 7.16 which provides that there is to be no fraternisation between staff and trainees. Fraternisation includes: (a) conduct of a consensual or non-consensual sexual relations; … (e) solicitation of recruits, trainees or subordinates… This is sufficient to dispose of the argument. There is no necessary requirement of mutuality. Quite clearly standing orders envisage that conduct which is not encouraged or welcomed by the object of the conduct comes within the meaning of fraternisation. 86 Leave ought not be granted to add this ground.

Orders 87 The orders will be as follows. 1. That the appeal be dismissed. 2. Leave to add a further ground is refused. I certify that the preceding eighty-seven (87) 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 the Appellant: A Street SC and P F Hogan

Counsel for the Respondent: LA McDade and H G Dempsey

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