CATCHWORDS DEFENCE AND WAR - Defence Forces - Offences - United Nations Transitional Authority in Cambodia - appeal from a Defence Force Magistrate - appeal from Defence Force Discipline Appeal Tribunal - offence against s.44 Defence Force Discipline Act 1982 - loss of service property - whether Magistrate misconstrued s.44 - mens rea - whether an offence of strict liability or absolute liability - offence against s.60 Defence Force Discipline Act 1982 - direction to subordinate - conduct likely to prejudice the discipline of the Defence Force - conviction under s.60 dependent upon Magistrate's conclusion of guilt under s.44 - whether blameworthiness descriptive of mens rea or an element of offence under s.60. CRIMINAL LAW - mens rea - whether strict liability offence - extent to which mens rea an ingredient in the offence of loss of Defence Force service property contrary to s.44 Defence Force Discipline Act 1982 - whether Defence Force Magistrate erred in applying a test of honest and reasonable belief. CRIMINAL LAW - appeals - whether verdict unsafe or unsatisfactory. DEFENCE AND WAR - CRIMINAL LAW - costs - whether acquitted person may be awarded costs - s.37 Defence Force Discipline Appeals Act 1955. ss.44,60 Defence Force Discipline Act 1982 s.37 Defence Force Discipline Appeals Act 1955 s.40 Army Act 1881 (UK) (44 & 45 Vict. c.58) He Kaw Teh v The Queen (1985) 157 CLR 523 Proudman v Dayman (1941) 67 CLR 536 Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 Lim Chin Aik v The Queen [1963] AC 160 Re Cottingham's Appeal (Courts-Martial Appeal Tribunal No.1 of 1972) unreported, Sydney, 8 June 1972 Sherras v De Rutzen [1895] 1 QB 918 Bahri Kural v R (1987) 162 CLR 502 Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 Morris v The Queen (1987) 163 CLR 454 Latoudis v Casey (1990) 170 CLR 534 Chidiac v The Queen (1991) 171 CLR 432 Mraz v The Queen (1955) 93 CLR 493 The Queen v Clough (1992) 28 NSWLR 396 Heddon v Evans (1919) 35 TLR 642 Anning's Appeal DFDAT No.5 of 1989 (Woodward J., President, Cox and Gallop JJ.) CHIEF OF THE GENERAL STAFF v. LIEUTENANT COLONEL RUSSELL ALEXANDER STUART No. NG 350 of 1994 Black CJ, Davies, Lockhart, Lee and Heerey JJ 14 December 1995 Sydney IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG350 of 1994 ) GENERAL DIVISION ) ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL BETWEEN: CHIEF OF THE GENERAL STAFF Appellant AND: LIEUTENANT COLONEL RUSSELL ALEXANDER STUART Respondent COURT: BLACK CJ, DAVIES, LOCKHART, LEE and HEEREY JJ. DATE: 14 DECEMBER 1995 PLACE: SYDNEY MINUTE OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG350 of 1994 GENERAL DIVISION ) ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL BETWEEN: CHIEF OF THE GENERAL STAFF Appellant AND: LIEUTENANT COLONEL RUSSELL ALEXANDER STUART Respondent COURT: BLACK CJ, DAVIES, LOCKHART, LEE and HEEREY JJ. DATE: 14 December 1995 REASONS FOR JUDGMENT BLACK CJ: The respondent to this appeal from the Defence Force Discipline Appeal Tribunal, Lieutenant Colonel Russell Alexander Stuart, was convicted by a Defence Force Magistrate, sitting in Phnom Penh in Cambodia, of an offence against s.44 of the Defence Force Discipline Act 1982 (the Act). Section 44 provides: "44. (1) A person, being a defence member or a defence civilian, who loses any property that is, or forms part of, service property issued for his use, or entrusted to his care, in connection with his duties is guilty of an offence for which the maximum punishment is imprisonment for 6 months. (2) It is a defence if a person charged with an offence under this section took reasonable steps for the safe-keeping of the property to which the charge relates." Lt Col Stuart was also convicted of an offence against s.60 of the Act, which provides: "60. A defence member who, by act or omission, behaves in a manner likely to prejudice the discipline of, or bring discredit upon, the Defence Force is guilty of an offence for which the maximum punishment is imprisonment for 3 months." Lt Col Stuart appealed against these convictions to the Tribunal, which allowed the appeals, ordered that both convictions be quashed and ordered a new trial on both charges. It later made an order pursuant to s.37(1) of the Defence Force Discipline Appeals Act 1955 that the Commonwealth pay Lt Col Stuart the sum of $11,142.52 to compensate him for the expenses properly incurred by him in the prosecution of the appeal. The Chief of the General Staff brings this appeal against the Tribunal's orders pursuant to s.52(1) of the Defence Force Discipline Appeals Act. The relevant facts and circumstances concerning the convictions and the proceedings before the Tribunal are set out in the reasons for judgment of Lockhart J, which I have had the advantage of reading. The central issue in this appeal in relation to the charge of losing service property contrary to s.44 of the Act is whether the Tribunal was correct in concluding that proof of guilt requires no more than proof of the objective elements of the offence, leaving it to the accused defence member to establish the defence provided for by s.44(2) that he or she took reasonable steps for the safe-keeping of the property to which the charge relates. The Defence Force Magistrate had concluded that the offence was within a different category of offences; he concluded that the offence was one "in which mens rea will be presumed to be present unless and until material is advanced by the defence of the existence of an honest and reasonable belief that the conduct in question is not criminal, in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt." The Tribunal held that as a result of misdirecting himself in this way the magistrate did not properly examine the question raised by the defence under s.44(2). It held that the respondent's conviction on that charge was wrong in law and that a miscarriage of justice had occurred. The judgments of the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523 show that, classified according to the mental element required to be proved by the prosecution, there are three categories of statutory offences. The three categories were described by Dawson J (at 590) in the following passage: "In relation to the offence of importing narcotic goods into Australia, the question which arises is whether the prosecution has to prove any mental state accompanying the importation. In other words, the question is whether mens rea is an ingredient of the offence to be proved by the prosecution. If it is not, the further question arises whether the offence is one of strict liability which, whilst not requiring the prosecution to prove mens rea in order to make out a case, allows the accused to raise honest and reasonable mistake by way of exculpation. To that extent a mental element is imported into an offence of strict liability short of requiring proof of mens rea by the prosecution. The mistake must involve a belief in a state of affairs which, if true, would make the act of the accused innocent. If the statute in neither of these ways requires any mental state to accompany the importation, then the offence is an absolute one and is complete once the prohibited act of importation is proved. Offences of strict or absolute liability are creatures of statute. The terms "strict liability" and "absolute liability" are not always used precisely and sometimes interchangeably, but used as I have used them, they are a convenient way of drawing the distinction to which I have referred." Dawson J then pointed out that it is essentially a question of interpretation of the statute creating the offence whether the prosecution is required to prove means rea as an ingredient of the offence, or whether the extent of the mental element involved is to be found in the defence of honest and reasonable mistake, or whether it is an absolute offence. See also per Gibbs CJ at 531-532. In construing a statute creating a criminal offence it has to be borne in mind that there is a presumption that mens rea is required, although the presumption is one that is liable to be displaced either by the words of the statute creating the offence or by the subject matter: see He Kaw Teh per Gibbs CJ (with whom Mason J agreed) at 528-529 and per Brennan J at 565-567. The presumption is not confined to a narrow conception of mens rea. It also applies when the question is whether a statute allows for a ground of exculpation based on honest and reasonable mistake. It is natural that the presumption that mens rea is required, should apply when the question is whether it was intended that an honest and reasonable mistake should be a ground for exculpation since the absence of an exculpatory belief is now seen as a form of mens rea: see Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 at 659 per Wilson, Dawson and Toohey JJ, referring to the observations of Brennan J in He Kaw Teh at 580. If there were any doubt that the principles of the common law relating to mens rea apply to service offences under the Act, it is removed by s.10 of the Act, which provides: "10. Subject to this Part, the principles of the common law with respect to criminal liability apply in relation to service offences other than old system offences." Is, then, the presumption displaced by the language or subject matter of s.44 and is it so far displaced that the offence is one of absolute liability, subject to the defence provided for by s.44(2)? In considering these questions, the nature of the subject matter of the section - the loss of service property - is of particular importance. Service property issued for the use of members of the Australian Defence Force, or entrusted to their care, will include property such as weapons and ammunition in respect of which there is an exceptionally high public interest that the property should not be lost. The high public interest in the security of service property is present not only when the defence force member is on active service but extends to peacetime activities in Australia. As well as the substantial monetary value of property such as weapons and ammunition, and much other service property as well, there is serious potential danger to the public if such property should come into the wrong hands. The point is emphasised by the description of the property the subject of the charge under s.44 in the present case: one pistol 9mm automatic L9A1, one holster pistol 9mm, 24 cartridge 9mm ball Mk22 and one vest small arms protective body armour kevlar large. In conditions of active service there is of course an added dimension in the potential for serious harm resulting from service property falling into the hands of an enemy. Moreover, in an organisation as large and complex as the Australian Defence Force the security of even minor items of service property will be important. As well, service requirements may be such that service property entrusted to the care of a defence member could be in the care of that member anywhere in Australia, or overseas, in the widest possible range of conditions, including active service. It should also be noted that although other sections in Division 5 of Part III of the Act operate to protect service property against intentional, reckless or negligent destruction or damage, proof of which lies with the prosecution, and deal with the unlawful possession of service property, the protection of the huge inventory and range of service property against loss by those to whom it is entrusted is left, if not wholly, then primarily, to s.44. What is particularly significant, in my view, is that the imposition of absolute liability in relation to the element of loss, in circumstances in which the taking of reasonable steps for the safekeeping of the property is a defence, cannot be seen as a futile exercise to find luckless victims but, on the contrary, can be seen as assisting in the furtherance of the policy of the section to protect service property from loss: see Lim Chin Aik v. The Queen [1963] AC 160. Before passing to other aspects of the question, I should note that the fact that a penalty of up to 6 months imprisonment may be imposed for an offence against s.44 seems equivocal as an indication of whether or not the presumption of mens rea has been displaced. On the one hand the maximum penalty is a term of imprisonment but, on the other hand, the maximum penalty of six months imprisonment is at the low end of the scale of maximum penalties of imprisonment provided for by the Act for service offences. Turning now to the language of s.44, it will be seen that the scheme for the protection of service property against loss involves making it an offence to lose property whilst at the same time providing, by sub-s.(2), that it is a defence if the person charged took reasonable steps for the safe-keeping of the property to which the charge relates. By s.12 of the Act the onus of proving the defence is on the person charged and the standard of proof is proof on the balance of probabilities. The Parliament might have made it an offence to fail to take reasonable steps for the safekeeping of service property but this approach has not been adopted, and in this respect there is a degree of contrast between s.44 and sub-ss (2) and (3) of s.43. As a matter of ordinary usage, there is no necessary element of intent in the notion of losing something. The Macquarie Dictionary 2nd ed. defines "lose" in the presently relevant sense as meaning: "to come to be without, by some chance, and not know the whereabouts of: to lose a ring." The Oxford English Dictionary 2nd ed. defines the word (meaning 5.a) as follows: "To become, permanently or temporarily, unable to find in one's own possession or custody; to cease to know the whereabouts of (a portable object, an animal, etc.) because it has strayed or gone unawares from one's possession, or has simply been mislaid." As well as there being no necessary element of intent in the notion of losing something, the honest and reasonable mistake ground of exculpation would sit uneasily with the idea of loss and with s.44 as a whole. In circumstances of loss unaccompanied by any intention to lose it would often be very hard to see in respect of what facts the honest and reasonable mistake might be made. If such a mistake were, however, made with respect to matters such as the security of, say, a container in which an item of service property had been stowed, the presence of s.44(2) suggests that the legislature intended that the very question of reasonableness in such cases should be the subject of proof, on the balance of probabilities, by the accused. The policy of the section points in the same direction. In all these circumstances, having regard to the language and structure of s.44 and the purpose of the section in protecting against loss the huge inventory and range of service property, as to which there is a high public interest in its security, I conclude that the presumption that mens rea is an ingredient in the offence is entirely displaced in relation to the element of loss. I therefore agree with the Tribunal that the Defence Force Magistrate misdirected himself. I have confined, to the ingredient of loss, my conclusion that the presumption that proof of mens rea is required has been displaced. In determining whether in a provision such as s.44 the presumption has been displaced, and to what extent it has been displaced, I see no reason why different elements of an offence should necessarily be treated in the same way: see He Kaw Teh at 568 per Brennan J. Although it is convenient to be able to classify an offence in its entirety as one of "strict" or "absolute" liability, the task is one of construction and it is by no means inevitable that the application of the same principles of construction should produce the same result with respect to each ingredient in an offence. No issue of mens rea arose in the present case concerning the elements of s.44 that require proof that the property the defence member has lost is property that is, or forms part of, service property issued for his use, or entrusted to his care, in connection with his duties, but I should say that I am not persuaded that the presumption has been displaced in respect of those matters. As He Kaw Teh shows, the existence of a statutory defence does not mean that the presumption that mens rea must be proved is necessarily displaced with respect to the offence for which such a defence is provided. The presence of a statutory defence may give different indications in that regard according to which element of an offence is being considered and in a prosecution under s.44 the defence provided for by s.44(2) would be of no use to a person who did not know that particular property had in fact been entrusted to his care and who had therefore not taken steps for its safe-keeping. The situation, from many viewpoints, including the furtherance of the objects of the section, would be quite different from that in which a person was proved to know that the relevant property had been entrusted to his care in connection with his duties. The approach adopted by the Tribunal to the question of construction in the present case included reasoning to the effect that the form of drafting used in s.44 (a form of drafting that the Tribunal described as creating an offence in terms silent as to any mental element but subject to a defence of either an absence of knowledge or a reasonable excuse) occurs so often with respect to offences provided for in the Act that proof of guilt of such offences requires no more than proof of the objective elements of the offence, it being left to the accused to establish the statutory defence. It follows from what I have already said that I do not agree with that approach insofar as it would involve the displacement of the presumption that proof of mens rea is required in respect of the elements of s.44 other than loss. I do not express any view about the other sections of the Act to which the Tribunal referred, except to say that the question whether, to what extent, and in respect of what elements, proof of mens rea is required should be examined separately for each section when the occasion arises. Counsel for the Chief of the General Staff also submitted that the Tribunal erred in its consideration of the appeal against the conviction on the charge under s.60 by assuming that "blameworthiness" was the form of mens rea required for proof of the offence. Counsel submitted, in reliance upon the decision of the Courts-Martial Appeal Tribunal (The Hon Mr Justice Street, Mr B J F Wright QC and Mr W O Harris QC) in Re Cottingham's Appeal (No 1 of 1972) that "blameworthiness" was an element of the offence under s.60 and that it involved an objective test. It was, counsel submitted, quite separate from mens rea. It was said that the point was a very important one because the element of blameworthiness approved in Cottingham was the means by which s.60, and its predecessors, have been interpreted so as to exclude conduct having only a trivial prejudicial effect or affecting discipline only in an indirect or inconsequential manner. Cottingham was decided under the s.40 of the Army Act 1881 (UK) (44 & 45 Vict. c.58) as it was applied to Australia. That section, although covering the same general area as s.60 of the present Act, was in somewhat different terms. Section 40 of the Army Act, omitting the proviso, read as follows: "40. Every person subject to military law who commits any of the following offences; that is to say:- Is guilty of any act, conduct, disorder, or neglect to the prejudice of good order and military discipline, shall, on conviction by court martial, be liable to suffer imprisonment for a term not exceeding two years, or such less punishment as is in this Act mentioned. Provided that ..." It is clear that in Cottingham the Tribunal was concerned to draw a distinction between mens rea and blameworthiness as an ingredient of an offence under section 40 of the Army Act. The Tribunal said: "It is important to bear in mind that an ingredient of an offence under Section 40 is that the act, conduct, disorder or neglect be blameworthy. The accused must be guilty of an act, conduct, disorder or neglect. It is a question for the court martial to determine whether the particular matter charged was blameworthy. This will necessarily import a consideration by the court of the whole of the relevant circumstances." (Emphasis in the original text.) The Tribunal also said: "In our view, the relevant inquiry upon the necessary element of blameworthiness does not involve an investigation of the actual or imputed knowledge of the accused. The inquiry is properly to be directed to the presence of the element of blameworthiness." (Emphasis in the original text.) References to "blameworthiness" in this area of military law can be found well before the decision of the Courts-Martial Appeal Tribunal in Cottingham. Originally, it would seem, "blameworthiness" was considered relevant to the ingredient of "neglect" in the offence provided for by s.40 of the Army Act. Thus, the Army Law Manual 1964 contained annotations to s.40 of the Army Act in these terms: "14. (a) Neglect, to be punishable under this section, must be blameworthy and deserving of punishment. If it is intentional, it is clearly blameworthy and deserving of punishment, but neglect brought about by an error of judgment and involving no lack of zeal, carelessness or intentional failure to take the proper action, is not neglect within the meaning of this section and should not be made the subject of a charge under it. (b) Neglect always consists of a failure by a person to discharge a duty which is imposed upon him in some way. Thus, in ascertaining whether an accused was guilty of blameworthy neglect within the meaning of this section, three questions must be answered:- (i) what duty, if any, was imposed upon him; (ii) if a duty was imposed on him, did he fail to discharge that duty; and (iii) if he failed to discharge it, do the surrounding circumstances excuse or aggravate his failure. (c) The degree of blameworthiness depends upon the answers to the first and third questions and varies greatly from case to case ..." The United Kingdom Manual of Military Law 1956, in the annotations to s.69 of the Army Act 1955 (UK), contains an annotation about the ingredient of "neglect" in the same terms as I have set out above from the Australian Army Law Manual. Amendments to s.69 have since removed any reference to "neglect" and the section now provides: "69. Any person subject to military law who is guilty, whether by any act or omission or otherwise of conduct to the prejudice of good order and military discipline shall, on the conviction by court-martial, be liable for imprisonment for a term not exceeding two years or any less punishment provided by this Act." However in the United Kingdom Manual of Military Law 1972 (as consolidated to 1992) the annotation to the amended s.69 in respect of the new expression "or otherwise" contains the observation that "or otherwise" includes the negligent performance of a duty of a general nature. Again it is said that to be punishable such conduct "must be blameworthy and deserving of punishment." It is also said that an "error of judgement involving no lack of zeal, no carelessness or no intentional failure to take the proper action should not be made the subject of a charge under this [section]. Depending upon the circumstances, negligent driving and negligence in the handling of firearms could amount to blameworthy conduct within this [section]". The Manual deals quite separately with mens rea. In Canada, the notes to Article 103.60 of the Queens Regulations and Orders for the Canadian Forces speak in similar terms of "neglect" in s.129 of the National Defence Act 1985, the provision corresponding to s.60 of the Defence Force Discipline Act 1982. It is said that to be punishable under s.129 "neglect" must be blameworthy. The commentary in Halsbury's Laws of England 4th edn Vol 41, para. 430 on the military law of the United Kingdom with respect to s.69 of the Army Act and equivalent legislation relating to the Royal Navy and the Royal Air Force, recognises blameworthiness as an ingredient in all such cases and not only those involving omission or neglect. The learned authors, all of whom have held the office of Judge Advocate General or Assistant Judge Advocate General, observe that the scope of the offences is largely governed by the settled custom and practice of the three services. They observe that they are not in precise accord in all respects but the points that are considered applicable to the practice of each of the services include the following: "(3) To be within the scope of the offence, the conduct or neglect alleged must be blameworthy; and where blameworthiness is alleged to consist in a failure to take proper care, regard must also be had to the degree of care reasonably required by the situation in question (e.g. the flying of an aircraft, or the handling of a lawn-mower)." Mens rea is dealt with as a quite separate matter. Volume 41 of the 4th edition of Halsbury was published in 1983 but the current annotations do not suggest any change in the position in the United Kingdom. If this is so, then it would appear that military law in the United Kingdom and in Australia has developed in harmony in this respect. There would also appear to be a significant degree of harmony with the military law of Canada although the reference we were given to the Queen's Regulations and Orders suggests, as I have noted, that blameworthiness is confined in its use to cases involving neglect. It should however be noted that the predecessor of s.60 under which Cottingham was decided was unusual in that the definition of the offence might be seen to require, as an ingredient of the offence, that a person be "guilty" of any act, conduct, disorder or neglect to the prejudice of good order and military discipline, and it may be that the Courts-Martial Appeal Tribunal founded its opinion that blameworthiness was an ingredient of the offence on the presence of the word "guilty" in the definition. Support for this view may be found in the Tribunal's underlining of that word, to emphasise it, in the passage from its reasons that I set out earlier. It was argued, however, that the change in language when s.60 was enacted should not be taken to involve any extension of the type of case to which sections such as s.60 were intended to apply. The ingredient was also said to be well understood by those involved in the administration of military law and to involve essentially "a jury question which members of the defence force [can] well understand." The use of blameworthiness as an ingredient of the offence under s.60 nevertheless does present problems. "Blameworthy" is not a word that the section uses and its use carries with it the danger of diverting attention from the simple language of s.60. Moreover, as Lockhart J has pointed out, the section is not concerned with trivial behaviour or behaviour that could only remotely be said to be prejudicial to the discipline of the defence force. On the other hand the acceptance of "blameworthy" conduct as an ingredient of the offence under s.60 and its predecessors is of long standing in this country and, it would seem, at least in relation to "neglect" or "omission", also of long standing in the United Kingdom and in Canada. It reflects a view about the nature of the conduct that the legislature intended should be punishable by an offence of potentially wide and possibly uncertain application. And provided that the danger of diverting attention from the words of the section is recognised, the requirement that conduct must, as an objective matter, be seen as "blameworthy" in a military context before a person can be convicted of an offence under s.60, will provide a valuable practical safeguard for members of the defence force. It will provide a safeguard against conviction for an offence which, even when interpreted to exclude from its ambit trivial matters and matters that only remotely prejudice discipline, is potentially very wide in its scope and is punishable by a term of imprisonment. The force of the considerations I have just mentioned leads me to the conclusion that the Defence Force Magistrate was not in error in proceeding on the footing that to involve an offence against s.60, the conduct had to be blameworthy in an objective sense. I also conclude that to the extent that the Tribunal suggested that "blameworthiness" was appropriate to describe the mens rea element of the offence under s.60 it was in error; in my view, "blameworthiness" in this context does not refer to mens rea. Also, although the word can be used in a general way to refer to mens rea, it is too imprecise to define the type of mens rea required by a particular provision: see, for example, the observations of Gibbs CJ in He Kaw Teh at 529. This does not mean, however, that the appeal against the Tribunal's decision to set aside the conviction for an offence under s.60 should be allowed. Whilst I respectfully disagree with the Tribunal's use of "blameworthiness" as descriptive of, or bearing upon, the mens rea element of s.60, that did not affect the Tribunal's decision to allow the appeal. The Tribunal allowed the appeal because the whole case was conducted on the footing that the two charges stood or fell together and in the circumstances of this case that was plainly the correct approach. Apart for the issue of costs, the final question is whether the Tribunal erred in quashing both convictions. As Lockhart J points out, in the end the Tribunal was not persuaded that the question whether Lt Col Stuart took reasonable steps for the safekeeping of the property was properly examined. I agree with Lockhart J, for the reasons he gives, that it has not been shown that the Tribunal erred in the approach it took to the questions involved in deciding whether or not to quash the convictions. I also agree with Lockhart J that it has not been shown that there was any error in the exercise of the Tribunal's discretion to award costs to Lt Col Stuart. I would dismiss the appeal with costs. I certify that this and the preceding 16 pages are a true copy of the reasons for judgment herein of the Honourable Chief Justice Black. Associate: Date: 14 December 1995 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No G 350 of 1994 ) GENERAL DIVISION ) On appeal from the Defence Force Discipline Appeal Tribunal BETWEEN: CHIEF OF THE GENERAL STAFF Appellant AND: LIEUTENANT COLONEL RUSSELL ALEXANDER STUART Respondent Coram: Black CJ, Davies, Lockhart, Lee & Heerey JJ. Date: 14 December 1995 Place: Sydney REASONS FOR JUDGMENT Davies J.:- I agree in general with the reasons for judgment of Lockhart J. I agree with the observations of the Chief Justice on the topic of "blameworthiness". I merely wish to add a few words of my own directed to the judgment at trial level. Lt. Col. Stuart was charged and convicted under ss.44 and 60 of the Defence Force Discipline Act 1982 (Cth) ("the Act") which read:- "44(1) Any person, being a defence member or a defence civilian, who loses any property that is, or forms part of, service property issued for his use, or entrusted to his care, in connection with his duties is guilty of an offence for which the maximum punishment is imprisonment for 6 months. (2) It is a defence if a person charged with an offence under this section took reasonable steps for the safe-keeping of the property to which the charge relates. ... 60. A defence member who, by act or omission, behaves in a manner likely to prejudice the discipline of, or bring discredit upon, the Defence Force is guilty of an offence for which the maximum punishment is imprisonment for 3 months." Neither section creates an offence of absolute liability in which the mental element is irrelevant. In He Kaw Teh v The Queen (1985) 157 CLR 523, Dawson J. said at 594:- "Rules of construction must give way to actual expressions of legislative intent, but almost invariably in this context such indications as there are require guilty intent as an ingredient of an offence rather than the contrary. Where some such word as `knowingly' or `wilfully' is used in the description of an offence, there is no difficulty in concluding that guilty intent is required. However, the absence of words such as these, even if the words appear in the description of offences created elsewhere in the enactment, does not mean that an offence is intended to be absolute: see Sherras v. De Rutzen [1895] 1 Q.B., at p.921. Resort must then be had to the subject-matter or character of the legislation. Attempts have been made to categorize those offences which have been regarded as absolute, but the result is only helpful in a broad sense and the recognized categories cannot be regarded as exhaustive. It is generally accepted that statutes which create offences for the purpose of regulating social or industrial conditions or to protect the revenue, particularly if the penalty is monetary and not too large may more easily be regarded as imposing absolute liability. This approach may be displaced if to regard an offence as one of absolute liability could not promote the object of the legislation by making people govern their behaviour accordingly: see Lim Chin Aik v. The Queen [1963] A.C. 160. Conduct prohibited by legislation which is of a regulatory nature is sometimes said not to be criminal in any real sense, the prohibition being imposed in the public interest rather than as a condemnation of individual behaviour. On the other hand, if a prohibition is directed at a grave social evil, the absolute nature of the offence may more readily be seen, particularly if proof of intent would be difficult and would represent a real impediment to the successful prosecution of offenders." The offences created by ss.44 and 60 of the Act are not offences which fall within any recognised category of absolute offences. Thus, in respect of a charge under s.44(1) of the Act, it would be incumbent upon the prosecution to prove that the accused was aware that the service property had been issued for his use or entrusted to his care. Nevertheless, in s.44(1), the word "loses" refers simply to the loss of equipment. No element of recklessness or negligence or even of knowledge as to how the property came to be lost is imported. In his defence, Lt. Col. Stuart conceded that the service property, his pistol, had been in his care and had been lost. No issue was raised as to any lack of mental capacity or as to duress or so on. The issue at the trial turned upon s.44(2) of the Act, namely as to whether Lt. Col. Stuart had taken reasonable steps for the safe-keeping of his weapon. It was conceded that the charge under s.60 stood or fell with the charge under s.44. Section 12(2) of the Act provided that the onus of proving the defence under s.44(2) lay upon the accused and that the standard of proof was proof on the balance of probabilities. The case put at the trial for the accused was that, on the evening of 24 January 1993 at about 2010 hrs, Lt. Col. Stuart and Sgt. Hayes were on duty together at UNTAC Headquarters. There was no provision made on those premises for the obtaining of a meal or for the securing of the weapons. Lt. Col. Stuart considered it was unwise to send Sgt. Hayes out to obtain take-aways. It was unwise for a serviceman to travel alone in Phnom Penh at night. Lt. Col. Stuart decided that he and Sgt. Hayes should travel to the Gecko Club to dine, as the club was situated in a well lit boulevard and had security guards. Lt. Col. Stuart also considered that he should comply with a directive which had been issued by his Commander, Col. D.K. Tettey, and which he, Lt. Col. Stuart, had assisted to draft. The directive, which was issued in May 1993, provided inter alia, "Weapons are not to be taken into bars, nightclubs or other entertainment venues, unless the individual's duty requires it." The directive also said, "The security of weapons remains the individual soldier's responsibility." On arrival at the Gecko Club, Lt. Col. Stuart ordered Sgt. Hayes to lock the weapons in their Jeep and this was done. Lt. Col. Stuart and Sgt. Hayes took seats at a table outside the club where they could observe the Jeep. Later, because of rain, they moved inside, but to a window table where they could see the vehicle. During a brief period whilst Sgt. Hayes was away paying the bill, the Jeep was stolen. Lt. Col. Stuart's case at the trial was that, taking into account Col. Tettey's directive, he had taken reasonable steps to safeguard the weapons. Evidence was called from a number of witnesses. Lt. Gen. J.W. Sanderson, the Force Commander of UNTAC, gave this evidence, inter alia, as to the passage in the directive dealing with the carrying of weapons in entertainment venues:- "Perhaps you might look, sir - hand that back - and if you wouldn't mind looking at Exhibit 6. Is that the document drafted by COL Tettey in response to the head set of orders as it were?---Yes, it is. Sir, would you look at paragraph 4 of that document. Is that paragraph intended, sir, to constitute an order?---Yes, yes. Was it in accordance with what you expected that order to convey?---Yes, it's - this is paragraph 4? This is the one that deals with the carriage of weapons?---Yes, yes. I refer specifically, sir, to the part of that order which does - requires personnel not to carry weapons into bars and other places of entertainment unless they be armed for the purpose of duty within the establishment?---Yes. What did you contemplate that order to - which persons did you contemplate that order to refer to in terms of persons who might carry arms in on duty?---The sort of people who might carry arms on duty are people like military police entering for purposes of discipline, military law; people such as my own body guard, for example, carry weapons concealed on their person when I am in such premises." Col. Tettey gave this evidence, inter alia:- "Do these guidelines apply to LTCOL Stuart?---Yes, they do. They apply to any member of the Military staff of UNTAC serving in the Phnom Penh Special Zone. ... Sir, that document says, in that paragraph, `As a general principle, weapons should only be carried whilst individuals are in uniform and on duty. Weapons should not be carried by off duty personnel. Weapons are not to be taken to bars, night clubs or other entertainment venues unless the individual duties require it.' And then you go on to deal with weapons when carried outside of office complexes, et cetera. Did you intend, by that order, that persons such as LTCOL Stuart should not take weapons into bars, night clubs or other entertainment venues unless they were required by their duty to do so?---I think that is the implication of that directive there. And that's what you meant?---Exactly. Yes, and by that you meant that if an individual, even though he might be in uniform, was going into a bar or a restaurant for a meal, but had no specific duty to perform whilst he was in there, then he should not carry his weapon?---Well, that is the intention of that directive. ... If you found yourself in the circumstances in which LTCOL Stuart and SGT Hayes were on this night, away from their accommodation, seeking a meal, and in uniform, going to a place to have that meal that fitted the description in your order, what would you have done in the circumstances?---I think in the - that particular circumstance, where there was security guard who was in a position to raise an alarm or stop anybody from taking the vehicle, and the fact that they were in a position to observe the vehicle from the initial position where they were sitting, I think I would have left my weapon secured in the vehicle in the same manner. In the same manner as they did?---If I am not to violate or go against this directive which is before us here. Once I am sure that the vehicle has been locked." Amongst other witnesses, Lt. Col. J.R. Weiland was called for the defence and he gave this evidence, inter alia:- "Are you familiar with the circumstances in which COL Stuart and SGT Hayes found themselves on the night in question?---Yes, I am. In those circumstances, what would you have done?---I would have - again, I would have used my judgment, and I would have assessed the threat at the particular time, not just the Gecko Club but any other - any place where you have to go and eat. The Gecko Club is on a main road, it is frequented by Australians, both military and media, it has an armed guard, it doesn't have a history of trouble, it's illuminated, people normally park their vehicle on a verge which is literally, I would say, 10 metres away, the width of a road, that's illuminated. It's within visual sight at all times. I think it would be a fair judgment to consider that not only is your vehicle safe or secure, but the weapon as well." There was a good deal of other evidence, but the evidence which I have set out is significant, for it corroborated the crux of the defence. This evidence was not referred to specifically by the Magistrate in his reasons for decision. The essence of the Magistrate's stated reasons for judgment appears in the following paragraphs:- "The real issue in this trial is the reasonableness or otherwise of his [Lt Col Stuart's] actions in leaving or securing weapons in the vehicle. Exhibit 6, the guidelines, do not say that you can leave weapons in a vehicle. They do say, `The security of weapons remains the individual soldier's responsibility. I simply cannot accept that an officer of LTCOL Stuart's extensive experience, his local knowledge, being the longest serving Australian soldier in Cambodia, his knowledge of the state of vehicle thefts, could possibly believe it reasonable to leave weapons in a vehicle. The defence referred to in section 44(2) of the Defence Force Discipline Act having been raised, I find that the prosecution has negatived that evidence." The middle paragraph of these reasons is of concern, for it reflects the test enunciated in Proudman v Dayman (1941) 67 CLR 536, which was not the issue. Moreover, it is difficult to understand how the Magistrate could have come to the conclusion, as a matter of fact. The evidence seems overwhelming that, when Lt. Col. Stuart left the weapons in the Jeep, he considered that to be the reasonable course in the circumstances. The Magistrate did not state what course or courses in his opinion Lt. Col. Stuart should have taken for the safe-keeping of his weapon. This is perhaps the major concern. The Magistrate did not deal positively with the defence raised under s.44(2) of the Act. It is one thing for the Magistrate to say that he rejected the s.44(2) defence. But one would have expected the Magistrate not to have done so without mentioning the reasonable course or courses of action which in his opinion Lt. Col. Stuart could or should have taken. In my opinion, this is a case where the conviction should be set aside for lack of reasons. See eg. Dornan v Riordan (1990) 24 FCR 564; Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Apps v Pilet (1987) 11 NSWLR 350; City of Wanneroo v Holmes (1989) 30 IR 362 at 375-6; Brackenreg v Comcare Australia (unreported, Sheppard J, 15 March 1995). The present case is analogous to Dornan v Riordan. In that case, the tribunal gave lengthy reasons which set out the material which the tribunal took into account, but it was impossible to glean from them what was the reasoning process that led to the determination. Similarly, in the present case, the Magistrate's reasons disclose much of the material that was taken into account in the Magistrate's rejection of the defence but not why he rejected it. Another matter of concern is that, in the first paragraph, the Magistrate referred to the passage in Col. Tettey's directive that:- "The security of weapons remains the individual soldier's responsibility." There are numerous references throughout the short judgment to that principle, or to Lt. Col. Stuart's "admission in cross-examination that a member is responsible at all times for the security of his weapon." The Magistrate appears to have treated Col. Tettey's directive as if the embargo against taking weapons to entertainment venues was of little or no significance. It was, of course, a relevant matter to be taken into account. And if a serviceman complied with it, when he entered a restaurant, his weapon had to be left elsewhere. The reasons for conviction suggest that the Magistrate may have approached the issue as if the duty to safeguard weapons was an absolute duty, which it was not. It was a defence if the serviceman took reasonable steps for the safe-keeping of the service property. I agree with the decision of the Defence Force Discipline Appeal Tribunal that the conviction was unsafe and that the matter should be remitted for rehearing. I agree with the orders proposed by Lockhart J. I certify that this and the preceding 7 pages are a true copy of the reasons for judgment of the Honourable Justice Davies. Date: 14 December 1995 Associate: IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG350 of 1994 ) GENERAL DIVISION ) ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL BETWEEN: CHIEF OF THE GENERAL STAFF Appellant AND: LIEUTENANT COLONEL RUSSELL ALEXANDER STUART Respondent COURT: BLACK CJ, DAVIES, LOCKHART, LEE and HEEREY JJ. DATE: 14 DECEMBER 1995 PLACE: SYDNEY REASONS FOR JUDGMENT LOCKHART J. Introduction, Jurisdiction and Facts This appeal concerns the construction of ss. 44 and 60 of the Defence Force Discipline Act 1982 (the Act). The facts which give rise to the questions of law in the appeal may be briefly stated. In 1993 Lieutenant Colonel Russell Alexander Stuart (the respondent) was serving, as a member of the Australian Army in Phnom Penh, Cambodia, with the Headquarters of the United Nations Transitional Authority (UNTAC). On 24 June 1993 the respondent and a Sergeant Hayes had been carrying out normal duties at UNTAC Headquarters requiring them to work two shifts or an 18 hour day commencing at between 0700 and 0800 hours and concluding at midnight or 0100 hours on 25 June 1993. Food was unobtainable after 1600 hours at UNTAC Headquarters. The respondent's duties prevented him taking a rest period before 2000 hours at which time he decided to have dinner. Considerations of personal safety, security of property and weapons and a need to limit the distance travelled governed the choice of venue for his meal. The respondent chose to dine with Sergeant Hayes at a restaurant known as the Gecko Bar in Phnom Penh. They drove to the restaurant and at about 2010 hours parked the vehicle on the median strip of USSR Boulevard, underneath a security light opposite the restaurant. They were in uniform and were carrying pistols. The respondent directed Sergeant Hayes to secure both his pistol and the respondent's pistol in the vehicle. This was done. The vehicle was securely locked. Other items of service property were also left in the vehicle. They entered the restaurant, first sitting outside the building, then moving inside to a table near the door when it started to rain. They ate their dinner. At about 2130 hours the respondent and Sergeant Hayes became aware that the vehicle had been stolen, together with the service property that was left in it. The respondent reported the theft of the vehicle and its contents immediately it was discovered. Two charges were laid against the respondent, one under s. 44 and the other under s. 60 of the Act. Those sections are in the following terms: "44(1) Any person, being a defence member or a defence civilian, who loses any property that is, or forms part of, service property issued for his use, or entrusted to his care, in connection with his duties is guilty of an offence for which the maximum punishment is imprisonment for 6 months. (2) It is a defence if a person charged with an offence under this section took reasonable steps for the safe-keeping of the property to which the charge relates. ... 60. A defence member who, by act or omission, behaves in a manner likely to prejudice the discipline of, or bring discredit upon, the Defence Force is guilty of an offence for which the maximum punishment is imprisonment for 3 months." The charges read as follows:- "The first charge (laid under s. 44 of the Act) - Loss of Service Property 1203543 LTCOL Russell Alexander Stuart, a defence member at Phnom Penh, Cambodia, on 24 June 1993 did lose service property, namely, one pistol 9 mm automatic L9A1 serial number T271475, one holster pistol 9 mm, 24 cartridge 9 mm ball Mk22, one vest small arms protective body armour kevlar large, which items were entrusted to his care in connection with his duties as part of the United National Transitional Authority Cambodia. The second charge (laid under s. 60 of the Act) - Prejudicial Behaviour 12035443 LTCOL Russell Alexander Stuart, a defence member at Phnom Penh, Cambodia, on 24 June 1993 did behave in a manner likely to prejudice the discipline of ASC UNTAC in that he did direct 553188 SGT T.R. Hayes to secure his 9 mm automatic L9A1 pistol serial number T121643, holster pistol 9 mm cloth disruptive pattern, 24 cartridge 9 mm ball Mk22 in a motor vehicle then parked on USSR Boulevard." The respondent pleaded not guilty to the two charges. The learned Defence Force Magistrate who heard the two charges at Phnom Phen found the respondent guilty on each charge and recorded convictions accordingly. The Magistrate imposed no specific penalty in respect of either offence, but ordered reparation in the sum of $1,000 to be paid by the respondent to the Commonwealth in respect of each offence. The respondent appealed to the Defence Force Discipline Appeal Tribunal (the Tribunal) against his convictions. On 19 May 1994 the Tribunal constituted by Northrop J. (President), Gallop and Badgery-Parker JJ. (Members) allowed the respondent's appeal. The Tribunal quashed both convictions and ordered a new trial on both charges. On 27 July 1994 the Tribunal, by majority (Gallop J. dissenting), directed, pursuant to s. 37(1) of the Defence Force Discipline Appeals Act 1955 (the Appeals Act), that the Commonwealth pay to the respondent $11,142.52 to compensate him for expenses properly incurred by him in the prosecution of his appeal. The appellant, Chief of the General Staff, appeals to this Court from both decisions of the Tribunal. It is necessary to state how the jurisdiction of the Court has been attracted. The Tribunal is constituted by ss. 6 and 7 of the Appeals Act. The decision and orders of the Tribunal were made pursuant to the powers conferred on it by ss. 23 and 24 of the Appeals Act. An appeal by the Chief of the General Staff may be brought to this Court "on a question of law involved in a decision of the Tribunal in respect of an appeal" under the Appeals Act (s. 52(1)). This Court, constituted as a Full Court, has jurisdiction to hear and determine matters arising under s. 52 with respect to which appeals are instituted in this Court in accordance with that section. The Court shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision, including orders affirming or setting aside the decision of the Tribunal, remitting the case to be heard and decided again by the Tribunal in accordance with the directions of the Court, granting a new trial by a Court Martial or a Defence Force Magistrate; and, where the Court sets aside a decision of the Tribunal, quashing a conviction or quashing a prescribed acquittal (an acquittal of a service offence on the ground of unsoundness of mind), reinstating the conviction or the prescribed acquittal, as the case may be (s. 52). As the appeal to this Court is from the decisions of a tribunal other than a court, the Court, sitting as a Full Court, is exercising its original jurisdiction: ss. 19(1) and (2) and 20(2) of the Federal Court of Australia Act 1976. In addition to the powers expressly conferred upon this Court by s. 52 of the Appeals Act, when determining an appeal from the Tribunal, the Court has the power conferred on it by s. 22 of the Federal Court Act. The issues on this appeal are whether the Tribunal erred in its decision: first, with respect to the charge under s. 44, secondly, the charge under s. 60 and thirdly, with respect to costs. Section 44 charge The Tribunal held that an offence against s. 44(1) is an offence in which mens rea plays no part, and guilt is established by proof of the objective ingredients of the offence. The Tribunal held that the Magistrate was wrong in holding that this offence fell within what he described as the "second" of the categories mentioned in He Kaw Teh v The Queen (1985) 157 CLR 523, namely, offences in which mens rea is presumed to be present unless and until material is advanced by the accused of the existence of an honest and reasonable belief that the conduct in question is not criminal, in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt. The Tribunal said: "The learned magistrate misdirected himself. The real issue before him was not whether the prosecution had proved beyond reasonable doubt that the appellant did not entertain an honest and reasonable belief in the lawfulness of his conduct, but rather the loss of the property being proved beyond reasonable doubt as an objective fact, the prima face conclusion of guilt was displaced because the accused had succeeded in establishing, on the balance of probabilities, that he had taken reasonable steps to safeguard the service property." The first question which arises is whether the Tribunal was correct in deciding that mens rea plays no part in an offence under s. 44(1). Criminal responsibility at common law rests on the proposition expressed in Sherras v De Rutzen [1895] 1 QB 918 at 921 in these terms: "There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered." As Gibbs C.J. pointed out in He Kaw Teh at 529 it is not always easy to apply this principle and its application presents two difficulties: "First, in deciding whether the Parliament intended that the forbidden conduct should be punishable even in the absence of some blameworthy state of mind and secondly, if it is held that mens rea is an element of the offence, in deciding exactly what mental state is imported by that vague expression." The Chief Justice observed at 530 that the expression mens rea is "ambiguous and imprecise". Mens rea plainly encompasses evil intention or knowledge of the wrongfulness of the act. Intent may be inferred from proof of awareness of the likelihood that the act was wrongful: He Kaw Teh per Gibbs C.J. at 536 and Brennan J. at 570; Bahri Kural v R (1987) 162 CLR 502 per Mason C.J., Deane and Dawson JJ. at 507. If the actual knowledge is either a necessary element of the guilty mind required for the offence alleged or a specified element of the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence, such inference being the only rational inference available and being an inference of actual knowledge and not something less: Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 per Mason C.J., Deane, Dawson, Toohey, Gaudron JJ. at 3. In some cases it may be discerned that the presumption of mens rea may be displaced by the intention of the Parliament that the offence is one of absolute liability, in which mens rea plays no part. In others, it is for the prosecution to establish guilty knowledge on the part of the accused. There is a third position, namely, that it is not an ingredient of the offence that the accused has a particular mental state, but the accused is entitled to be acquitted if he honestly and reasonably believed that his conduct was not unlawful or, as it is sometimes put, that he made an honest and reasonable mistake. This third category has sometimes been called "the half-way house" of strict liability: see He Kaw Teh per Dawson J. at 591 and the English authorities there cited by his Honour. Gibbs C.J. described it at 533 as: "a middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent." The Chief Justice went on to say at 533 that there were questions which had not been clearly answered by the cases. He posed three questions: first, whether the absence of an honest and reasonable belief in the existence of facts which would have made the act innocent, is correctly described as mens rea, or whether the presence of such a belief affords the accused a defence only when he is charged with an offence of which mens rea is not an element. Secondly, whether the accused bears the onus of proving on the balance of probabilities that he acted under an honest and reasonable mistake of fact or whether it is enough if the evidence raises a reasonable doubt. Thirdly, whether the defence of honest and reasonable but mistaken belief is available when the offence charged is of a truly criminal character or whether it applies only to statutory offences of a regulatory kind. The Chief Justice analysed the authorities both in this country and abroad and said at 534: "It may be that little turns on the question whether honest and reasonable mistake should be regarded as a special defence available only in cases not requiring mens rea, or as something the absence of which constitutes mens rea. The matter is largely one of words." Mason J. agreed with the reasons for judgment of the Chief Justice. Brennan J. and Dawson J. in separate judgments, although differing in their reasoning, came to the same conclusion as the Chief Justice. Wilson J. dissented, not on general principles, but on whether the presumption that mens rea was required before a person could be held guilty of an offence under s. 233B(1)(b) and (c) of the Customs Act 1901 was displaced. The middle-course or half-way house is sometimes referred to as the Proudman v Dayman defence, a reference to the judgment of Dixon J. in that case reported at (1941) 67 CLR 536 where his Honour said that in a case where the statute excludes the necessity for positive knowledge on the part of the accused, honest and reasonable mistake of fact will still be a ground of exculpation and (at 541): "The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of the state of fact which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. The burden possibly may not finally rest upon him of satisfying the Tribunal in cases of doubt." The precise meaning and effect of this passage from Dixon J.'s judgment was discussed in He Kaw Teh by Gibbs C.J., who said at 534 and 535 that Dixon J.: "may have intended to say that the accused bore only an evidentiary onus, but his words were somewhat equivocal ..." The middle course between imposing absolute liability and requiring proof of mens rea is explicable because there are cases where it would be unjust to an accused if the offence is one of absolute liability which excludes guilty state of mind altogether. But the existence of this middle course gives rise to difficulties, in particular logical difficulties, which were closely examined by the High Court in He Kaw Teh. However, it is now firmly established as part of Australian law. I shall use the expression "the Proudman v Dayman defence" for reasons of convenience because it has become generally known by that description, although its source is obiter dicta of Dixon J. in Proudman v Dayman. Also it is still the subject of debate whether it is truly a defence or an ingredient in mens rea which must be established by the prosecution. He Kaw Teh establishes that three primary matters must be considered in deciding whether the Parliament intended that an offence created by a statute should have a mental ingredient or not. First, the words of the statute creating the offence must be examined to see if they contain a clear indication of Parliament's intention to displace the presumption of the common law that mens rea is an ingredient of the offence. The second matter to be considered is the subject matter with which the statute deals. The third consideration was mentioned in Lim Chin Aik v The Queen [1963] AC at 174 in these terms: "It is pertinent also to enquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly ... which will promote the observance of the regulation. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim." Gibbs C.J. cited this passage with approval in He Kaw Teh at 530. The construction of s. 44 must begin with considering s. 10 of the Act which states: "10. Subject to this part, the principles of the common law with respect to criminal liability apply in relation to relation to service offences other than old system offences." It is clear therefore that the principles of the common law with respect to criminal liability are applicable to service offences (other than old system offences) except to the extent that they are displaced by specific provisions of Part II of the Act which relates to criminal liability. Section 12 of the Act is relevant. It provides: "12(1) Subject to this section, in proceedings before a service tribunal, the onus of proving that a person charged has committed a service offence is on the prosecution and the standard of proof is proof beyond reasonable doubt. (2) In proceedings before a service tribunal, the onus of proving a defence is on the person charged and the standard of proof is proof on the balance of probabilities. (3) In this section, 'defence' means: ... (c) where the service offence charged is an offence against this Act (other than sub-section 61(1)) or the regulations - a defence set out in the provision creating the offence. ..." In my opinion the presumption that mens rea is required before a person can be held guilty of the offence created by s. 44(1) is not displaced with respect to certain of the ingredients of the offence, but it is displaced so far as the principal ingredient is concerned. It is an offence for a defence member to lose property that is or forms part of service property issued for his use or entrusted to his care, in connection with his duties. To speak of a person losing property means that he had the property but no longer has it because he is without it. The loss may have occurred through accident, negligence or theft. In any of those three senses he has lost the property or the property has been lost to him. If the property has been stolen the person has suffered a loss. There are difficulties in comprehending intent as an ingredient in the concept of loss in the context of s. 44(1). A person does not intentionally lose something in ordinary parlance, although it is an apt use of the word "loss" to include the case where a person loses property through such gross negligence as amounts to wilful blindness. To lose property suggests that one parts with it through misadventure or negligence; one is deprived of it. By losing property, one is permanently or temporarily unable to find it in one's own possession or custody; one has ceased to know the whereabouts of it. It is in this sense that the word "loses" is used in s. 44(1). If one applies the middle course or half-way house of strict liability, the question must be asked: what is the subject matter of an honest and reasonable mistake as to the existence of facts which, if true, would make the act innocent and not constitute a loss of property? To what does the mistake relate? Property is either lost or it is not. It seems to me that there is no room for the operation of this middle course on the issue of whether a defence member has lost property. Indeed, the finding in He Kaw Teh that the prosecution must establish mens rea, was based on the premise that the word "possession" in the terms of the statutory offence with which that case was concerned necessarily imported a mental element. Similarly, the facts in Proudman v Dayman itself were concerned with whether there was a mistaken belief that a driver was licensed, a question importing a mental element. In this case, however, the concept of "loss" is without an analogous mental element. If mens rea consists in the intent to do an act prohibited, how can it be said that one can intend to lose. It follows that the Proudman v Dayman defence is inapplicable to that question. The view taken by the Magistrate was that the "Proudman v Dayman defence" had not been excluded from s. 44(1), so he embarked upon the task of determining whether the respondent honestly and reasonably believed that his conduct was not wrongful. The Magistrate held that he could not accept that the respondent "could possibly believe it reasonable to leave weapons in a vehicle". But that question is irrelevant to the question of loss of service property; you either lose it or you do not. It is irrelevant that a person who loses property honestly and reasonably believed that loss of it was not wrongful. Subject to a qualification which I shall mention later, the presence of the defence in sub-s. (2) of s. 44 is, it seems to me, the only exculpatory matter that can be relied upon by a defendant once the ingredients of the offence for which sub-s. (1) provides have been established. Even if there is an ingredient of intent in the concept of a defence member losing property under s. 44(1), in my view the presumption of mens rea has been displaced. The section is concerned with the loss of military property in the possession of a defence member (or defence civilian, but nothing turns on this for present purposes). Although the property may include some inconsequential articles, it may, and often would, include articles of danger and of considerable importance such as weapons. Protection of military property is a matter of considerable importance to the community. Putting a defence member under absolute liability (on the question of whether he loses it or not) is designed to ensure that he does whatever he can do, directly or indirectly, to protect military property. With very large numbers of military personnel placed throughout Australia and abroad it is important that great care is taken by military personnel to keep that property safe. There is some room for the Proudman v Dayman defence. The fact that there is no mens rea attaching to one element of an offence does not mean it is absent from others. Some elements of an offence may be established by absolute liability whereas other elements may require proof of some form of mens rea. Whether property is "service property" or is "issued for his use" or "entrusted to his care" are ingredients of an offence against s. 44(1) and they leave room for the operation of the requirement of the common law that mens rea is established. The defence member may, for example, honestly believe on reasonable grounds that the property which he lost was not "service property" or was not "entrusted to his care"; and if those elements of the offence are not established by the prosecution he must be acquitted. To that extent I therefore respectfully depart from the views of the members of the Tribunal who held that there was no room at all for the application of Proudman v Dayman to an offence created under s. 44(1). My difference of opinion from the members of the Tribunal is of no consequence in the present case because the respondent admitted at his trial that he was a defence member and that the property which was lost was service property issued for his use in connection with his duties. The issues were whether the respondent lost the property, whether the prosecution had negatived beyond reasonable doubt that the respondent honestly and reasonably believed that his conduct was not wrongful (I state this in the language used by the Magistrate) and whether the defence raised by s. 44(2) of the Act had been established. The Tribunal correctly stated that the real issue before the Magistrate was not whether the prosecution had proved beyond reasonable doubt that the respondent did not honestly and reasonably believe in the correctness or lawfulness of his conduct. Since the loss of the property was proved beyond reasonable doubt as an objective fact, the issue, was whether the respondent had established on the balance of probabilities that he had taken reasonable steps to safeguard the property (s. 44(2)). In the course of its reasons the Tribunal said that s. 44 is one of a group of sections dealing with the preservation of service property, and they referred specifically to ss. 43 and 45 in addition to s. 44. Section 43 relates to destruction of or damage to service property and s. 45 to being in possession of service property without lawful authority. The Tribunal found that the offences created by both ss. 44 and 45 fell into what they described as the third category recognized in He Kaw Teh, namely, "those in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence", but, in the case of s. 44, subject to the defence created by s. 44(2). In my opinion this aspect of the Tribunal's reasoning was not necessary to support its conclusion with respect to s. 44 and I prefer to leave the question of construction of ss. 43 and 45 open as it is not necessary to decide it in this case. The Tribunal referred also to a number of other sections of the Act, namely, ss. 15, 16, 17, 23, 24, 25, 26, 27, 28, 29, 31, 32, 40, 41, 46, 47, 48, 49, 50 and 58 and concluded that, where the Act creates an offence, and is silent in terms as to any mental element, but is subject to the right of the accused person to be exonerated by proving a specified matter of defence, one is driven to conclude that proof of guilt requires no more than proof of the objective elements of the offence, leaving it to the accused to establish, if he or she can, the prescribed statutory defence. These sections or some of them may, like s. 44, be cases where mens rea may not be a necessary element in relation to certain ingredients of the offence, but may be a necessary element in the case of others. For example, s. 58(1) creates the offence of a defence member without lawful authority disclosing information, the disclosure of which is likely to be prejudicial to the security of the defence of Australia. Section 58(2) provides that it is a defence if a person charged with such an offence neither knew nor could reasonably have been expected to have known that the disclosure of the information was likely to be prejudicial to the security or defence of Australia. It may be, for example, that the accused honestly and reasonably believed that information which he had disclosed was disclosed with lawful authority. It is arguable that that question is one which may be raised which, if the issue is found in favour of the accused, would result in his acquittal. I do not express any view one way or the other about this question. The determination of the question should be left to a case which specifically raises the point. In other words, there may be room for Proudman v Dayman or the middle course to be taken with respect to those sections or, at any rate, some of them. They may not be cases of absolute liability subject only to the statutory defence for which specific provision is made by the relevant section. In my view it was not necessary for the Tribunal to decide those questions and I propose to leave open the correctness of the Tribunal's conclusion with respect to them. I shall deal later with the finding of the Tribunal as to the appropriate course to be taken to dispose of the appeal to it in consequence of the Magistrate having misdirected himself with respect to the real issue in the proceeding. Section 60 charge The Tribunal considered the charge under s. 60 of the Act. It said: "It was common ground on the hearing of the appeal that in construing s. 60 the general doctrine of the common law that mens rea must be established has not been displaced. Nor was it contested that, although the expression 'mens rea' is ambiguous and imprecise, the sort of mens rea preserved in s. 60 is embraced in the concept of blameworthiness." The Tribunal said that: "... the way in which the Magistrate disposed of the second charge was to apply his finding that the appellant had not taken reasonable steps for the safe-keeping of the property and hold that to direct a subordinate to leave his weapon and other military equipment in a vehicle was not reasonable and put that subordinate in jeopardy. He found that giving such a direction was blameworthy and likely to prejudice the discipline of the Defence Force. Hence a conviction on the second charge followed logically from a conviction of the first charge. It was submitted on behalf of the appellant that as the conviction on the first charge was based upon a misdirection of law, the conviction on the second charge recorded as a logical consequence of the conviction on the first charge, could not be allowed to stand. The respondent submitted that, notwithstanding the misdirection leading to a conviction on the first charge and, should the tribunal so order, the consequence that that conviction must be set aside, the conviction on the second charge should stand because, adopting mens rea in the sense of blameworthiness as an element of the offence, the appellant's conduct in directing Sergeant Hayes to secure his service property in the motor vehicle constituted behaving in a manner likely to prejudice the discipline of the Defence Force. The blameworthiness relied upon was in directing Sergeant Hayes to take a risk in respect of the safe-keeping of his service property and, additionally, in directing Sergeant Hayes to act contrary to the terms of a document headed 'Guidelines for the Carriage and Use of Weapons by UNTAC Non-Formed Unit Personnel with PNP SZ' which provided, inter alia, that weapons were not to be taken into bars, nightclubs or other entertainment venues unless the individual's duty required it." The Tribunal then considered these arguments and came to the conclusion: "... that if the magistrate had addressed the correct issue on the first charge, the conduct of the trial before him might well have been different. If the onus of establishing that reasonable steps for the safe-keeping of the property were taken by the appellant had been cast upon the appellant, there may well have been other evidence which the magistrate would have had to consider. Whether reasonable steps for the safe-keeping of the property were taken is, of course, a question of ultimate fact to be determined from the whole of the circumstances as proved in evidence. There was, for instance, no evidence before the magistrate from Sergeant Hayes. Some explanation for the failure to call Sergeant Hayes was advanced by counsel for the appellant, who also appeared at the trial. But, in the end, we are not persuaded that the question whether the appellant took reasonable steps for the safe-keeping of the property was properly examined, even on the evidence at the trial. The magistrate clearly concentrated upon the appellant's state of mind about the reasonableness of his actions rather than upon an objective assessment of whether reasonable steps for the safe-keeping of the property were taken. Because the conviction on the first charge cannot stand, the conviction on the second charge cannot stand either. We feel unable to give effect to the respondent's submissions to the contrary in view of the fact that the whole trial was conducted on the footing that the two charges must stand or fall together." The Tribunal held that, as a result of the magistrate's wrong decision on questions of law, both convictions were wrong in law and a substantial miscarriage of justice had occurred. The Tribunal also said that it was satisfied in all the circumstances of the case that the convictions were unsafe or unsatisfactory. The Tribunal considered a number of cases which considered the test to be applied in determining whether the verdict of a jury should be set aside as unsafe or unsatisfactory, including Morris v The Queen (1987) 163 CLR 454; Chidiac v The Queen (1991) 171 CLR 432; The Queen v Clough [1992] 28 NSWLR 396 and said that it appeared to the Tribunal: "that there may be some defect or weakness of the evidence and that the less than total examination of available evidence on the issue of reasonable steps for the safe-keeping of the property raises a substantial possibility that a mistake has occurred. In that sense the convictions are unsafe and unsatisfactory." Accordingly, the Tribunal quashed both convictions. The offence created by s. 60 is an old one. Although expressed in different language to its precursors, it is the successor to the old charge of engaging in conduct to the prejudice of good order and military discipline. For instance, the provision of the Army Act (44 and 45 Victoria C. 58) comparable to s. 60 of the Act was s. 40 which provided: "Conduct to Prejudice of Military Discipline Every person subject to military law who commits any of the following offences: that is to say:- is guilty of any act, conduct, disorder or neglect to the prejudice of good order and military discipline, " shall be guilty of an offence and liable to suffer a term of imprisonment or other less punishment. The current legislation in the United Kingdom is the Army Act 1955, s. 69, as amended by the Armed Forces Act 1971 and the Armed Forces Act 1986. Section 69 reads: "Any person subject to military law who is guilty, whether by any act or omission or otherwise, of conduct to the prejudice of good order and military discipline shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two years or any less punishment provided by this Act." Charges of the same kind have been present in the military codes of Australia and other countries for many years: see, for example, Article 134 (General Article) of the United States Uniform Code of Military Justice which proscribes: "all disorders and neglects to the prejudice of good order and discipline in the Armed Forces, all conduct of a nature to bring discredit upon the Armed Forces ..." AMR2031(1)(x), the precursor of s. 60, proscribed conduct to the prejudice of good order and military discipline. Conduct likely to prejudice the good order and the discipline of the Defence Force may take many forms. It is impossible, indeed unwise, to attempt any exhaustive definition of the words employed in s. 60. The Manual of Military Law 1941 (Aust ed) at 427 contains a list of instances of offences said to be not uncommonly the subject of charges under the equivalent section of the Army Act. The learned editors of Halsbury's 4th ed., vol. 41, para. 430 suggest a broad range of conduct or behaviour which is embraced by the phrase "conduct to the prejudice of good order and Naval (etc)" discipline. The type of conduct which has been included in the phrase has been considered by courts and military tribunals not infrequently. See for example Heddon v Evans (1919) 35 TLR 642 per McCardie J.; and Anning's Appeal DFDAT 5 of 1989 (Woodward J., President, Cox and Gallop JJ.). Historically, the offence has been cast always in wide terms, as it is with s. 60. The words of the section are clear. It is for the courts and military disciplinary tribunals when hearing charges under s. 60 or appeals from convictions under that section to determine the application of the section in particular contexts. In my view it is unnecessary and unwise to substitute other words for those that appear in the section itself in an attempt to guide military personnel and Appeals Tribunals in construing and applying the section. It was said in argument that, if interpreted literally, the terms of the section would make punishable all conduct which had a prejudicial effect on discipline however slight that effect and however indirect. I doubt the correctness of this proposition. For behaviour to be of such a kind as to be likely to prejudice the discipline of the Defence Force or likely to bring discredit upon it, would not embrace trivial behaviour, nor behaviour that could only remotely be said to be prejudicial to that discipline. The notes to the United States Article 134 of the United States Uniform Code of Military Justice say this: "An irregular or improper act on the part of a member of the Armed Forces can scarcely be conceived which may not be regarded as in some way affecting discipline, but the General Article contemplates only such acts as have a reasonably direct and palpable effect upon the internal good order and discipline of the Armed Forces. To be classified as a disorder or neglect under the General Article, an act or omission must be proximately and directly, and not remotely or indirectly prejudicial to that discipline." Although I have some reservation about the correctness of the first four lines of this passage, in my opinion it is correct to construe s. 60 as relating only to such acts as have a reasonably direct or proximate and clearly perceived effect upon the discipline and credit of the Defence Force. It was common ground on the hearing of the appeal to the Tribunal that in construing s. 60 the general doctrine of the common law that mens rea must be established had not been displaced. In my opinion the general doctrine of the common law that mens rea must be established has not been displaced with respect to offences under s. 60. The kind of mens rea which it is necessary for the prosecution to prove in a prosecution under s. 60, relevant to the present case, is that the respondent must be shown to have known all the facts constituting the ingredients necessary to make the act criminal that were involved in the charge. Generally it is not necessary that the accused must think that what he was doing was wrong, although in some cases this knowledge may be necessary. It all depends on the facts of the case, and there is a multifarious range of situations that may attract the operation of s. 60. Nor was it contested before the Tribunal that, although the expression mens rea is ambiguous and imprecise, the sort of mens rea preserved in s. 60 is embraced in the concept of "blameworthiness". The point was contested before us. The concept of blameworthiness has been applied by the Defence Force and discipline tribunals for considerable time both in this country, the United Kingdom and elsewhere. In Re Cottingham's Appeal (unreported, CMAT No 1 of 1972, 8 June 1972, Sydney) the Courts-Martial Appeal Tribunal expressed the point thus: "An ingredient of an offence under s. 40 is that the act, conduct, disorder or neglect be blameworthy. The accused must be guilty of an act, conduct, disorder or neglect. It is a question for the court martial to determine whether the particular matter charged was blameworthy. This will necessarily import a consideration by the court of the whole of the relevant circumstance. The relevant inquiry upon the necessary element of blameworthiness does not involve an investigation of the actual or imputed knowledge of the accused. The inquiry is properly to be directed to the presence of the element of blameworthiness. The question is for the court itself to determine as a necessary ingredient of the offence. The court will be guided in its determination, both by the evidence of the whole of the surrounding circumstances as well as by its own service knowledge." It is plain that in Cottingham the Tribunal did not regard the notion of blameworthiness as involving an inquiry into the state of mind of the accused person as to what he believed or did not believe. Provided the word "blameworthy" is simply used as a convenient expression to characterize the conduct as charged against a defence member, it perhaps does no harm, but for my part I do not like it. "Blameworthy" is a word of imprecise and uncertain meaning with emotive connotations. The appropriate test to be applied in considering the application of s. 60 is simply to have regard to the words of the section: simple, ordinary, English words which will be applied by military personnel having the benefit of their own knowledge and experience as members of the Defence Force and by courts accustomed to construing statutes. I turn to consider the critical matter whether the Tribunal erred in quashing both convictions. The approach of the Tribunal with respect to the two charges has already been mentioned. In my opinion the Tribunal was correct in finding that, if the Magistrate had addressed the correct issue on the s. 44 charge, the conduct of the trial before him might well have been different. If the onus of establishing that the respondent had taken reasonable steps for the safekeeping of the property, had been unequivocally cast upon him, there may well have been other evidence which the Magistrate would have had to consider. In the end the Tribunal was not persuaded that the question whether the respondent took reasonable steps for the safekeeping of the property was properly examined. The Magistrate concentrated upon the respondent's state of mind about the reasonableness of his actions rather than upon an objective assessment of whether reasonable steps for the safekeeping of the property were taken. The Tribunal held that because the conviction on the first charge could not stand, the conviction on the second charge could not stand either, and it relied upon the fact that the whole trial was conducted on the footing that the two charges must stand or fall together. In my view it has not been shown that the Tribunal erred in this approach. The Tribunal referred, correctly in my opinion, to s. 23(1) of the Appeals Act which provides that the Tribunal shall allow the appeal and quash the conviction where it appears to the Tribunal, inter alia, that as a result of a wrong decision on a question of law the conviction was wrong in law and that a substantial miscarriage of justice has occurred; or that there was a material irregularity in the course of the proceedings and that a substantial miscarriage of justice has occurred; or in all the circumstances of the case the conviction is unsafe and unsatisfactory. The Tribunal was satisfied that as a result of the Magistrate's wrong decision on questions of law both convictions were wrong in law and a substantial miscarriage of justice had occurred. It was also satisfied that in all the circumstances of the case the convictions were unsafe or unsatisfactory. It correctly reviewed the authorities that relate to this question including Mraz v The Queen (1955) 93 CLR 493 per Fullagar J. at 514; Morris v The Queen (1987) 163 CLR 454 at 472-3 and Chidiac v The Queen (1991) 171 CLR 432 . The Tribunal correctly quashed both convictions and, pursuant to its powers conferred by s. 24 of the Appeals Act, ordered that a new trial take place on both charges. Costs On the question of costs which was the subject of the Tribunal's decision of 27 July 1994, Northrop J. (President) reviewed a number of authorities touching the question of orders for costs in criminal proceedings in favour of a successful accused or defendant at first instance and on appeal, in particular Latoudis v Casey (1990) 170 CLR 534. His Honour said that: "In the present case, at the trial before the Magistrate the respondent was represented by a legal officer under s. 137 of the Defence Force Discipline Act at no expense to himself. He was convicted, wrongly on two charges. Those convictions have been set aside on appeal. A new trial has been ordered at which the appellant is entitled to the benefit of the provisions of s. 137. The appellant did not seek legal aid to prosecute his appeal. His appeal has succeeded. Any 'costs' ordered to be paid will be paid by the Commonwealth. Having regard to all the circumstances, there is no reason why the order for costs should not be made. The Defence Force magistrate made an error of law even though that error was made at the insistence of the legal officer appearing for the appellant. The appellant, himself, did nothing of a factual nature, or engage in other conduct, which led the Defence Force magistrate into error. The appellant should not have to bear the financial burden of exculpating himself from the result of the error of law made by the Defence Force magistrate. The appellant and the respondent have agreed that if the Tribunal determines to grant the application and make an order for 'costs', under s. 137 of the Defence Force Discipline Act the amount of the 'costs' should be $11,142.52." Gallop J. stressed that costs in appeals to the Tribunal do not follow the event and that a successful appellant like a successful party in civil proceedings has no right to an order. The discretion must be exercised judicially. Gallop J. found that it was the respondent's conduct of the case at trial before the magistrate that led to the magistrate being "diverted from his function of determining that real issue" (namely, the loss of the property being proved beyond reasonable doubt as an objective fact, not whether the prosecution had proved beyond reasonable doubt that the respondent did not entertain an honest and reasonable belief in the lawfulness of his conduct). His Honour refused the application to direct the payment by the Commonwealth to the appellant of sums to compensate him for expenses. Badgery-Parker J. said that the ultimate question was whether the conduct of the case by counsel for the respondent ought to be regarded as conduct of the respondent himself so as to warrant refusal of an order for costs of the appeal. His Honour concluded that before a successful appellant (the respondent in the appeal to this Court) should be deprived of an order for costs, it would be necessary to find that he personally was in some way at fault. He found that here the trial miscarried, not because of anything said or done by the respondent himself, but only because of his counsel's misconceptions as to the legal effect of his client's instructions. Accordingly Badgery-Parker J. agreed with the order proposed by Northrop J. In the result the Tribunal by majority ordered the Commonwealth to pay to the appellant his expenses. The starting point for consideration of the power of the Tribunal to award costs of an appeal to it and the ambit of its discretion to do so is s. 37 of the Appeals Act. Section 37 is in the following terms: "37(1) Where the Tribunal allows an appeal, it may, if it thinks fit, direct the payment by the Commonwealth to the appellant of such sums as appear to the Tribunal reasonably sufficient to compensate the appellant for expenses properly incurred by him in the prosecution of his appeal, and any proceedings preliminary or incidental to the appeal, or in carrying on his defence against the charge or charges out of which the appeal arose. (2) The Minister for Finance shall pay to an appellant, out of moneys provided by the Parliament for the purpose, any sum which the Commonwealth is directed to pay to the appellant under the last preceding subsection. (3) Where the Tribunal dismisses an appeal or an application for leave to appeal, it may, if it thinks fit, order the appellant to pay to the Commonwealth the whole or any part of the costs of the appeal or application, including allowances paid to a witness under section 34 and the costs of copying or transcribing any documents for the use of the Tribunal. (4) An order made under the last preceding subsection may be enforced in such manner as is prescribed." Much attention was devoted in argument to the principles which govern the circumstances in which orders for costs may be made in favour of a defendant against whom a prosecution has failed, and particular reliance was placed upon the judgment of the High Court in Latoudis v Casey where it was held by a majority of the Court (Mason C.J., Toohey and McHugh JJ.; Brennan and Dawson JJ. dissenting) that the exercise of discretion by a Magistrate in refusing the defendant's application for costs where the prosecution had failed, had miscarried and the defendant was entitled to his costs. Mason C.J. said at 542 that: "In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. To burden a successful defendant with the entire payment of the costs of defending the proceeding is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs." The Chief Justice stated that it is clear in criminal as well as civil proceedings that costs are not awarded by way of punishment of the unsuccessful party but are compensatory to the successful party to indemnify him or her against the expense to which he or she has been put by reason of the legal proceedings. His Honour rejected the argument at 543 that police and other public officers charged with the enforcement of the criminal laws "will be discouraged by the apprehension of adverse orders for costs from prosecuting cases which should be brought". Orders for costs in appeals from courts martial and Defence Force Magistrates to a Defence Force Discipline Appeal Tribunal under the Discipline Appeals Act are not necessarily to be governed by the same principles as apply to the power of magistrates to award costs to successful defendants in summary proceedings, but many of the statements of principle made by the members of the High Court in Latoudis bear on the question of orders for costs in favour of successful appellants in appeals under the Appeals Act. Nevertheless, the terms of s. 37(1) govern the power of the Tribunal to award costs in an appeal to an appellant. The language of the section is the governing or primary determinant of the source of the power of the Tribunal to award costs and the circumstances in which that power may be exercised. It is for the Tribunal to award payment of costs to a successful appellant "if it thinks fit" to do so and the sum awarded must be (in the language of s. 37(1)): "reasonably sufficient to compensate the appellant for expenses properly incurred by him in the prosecution of his appeal, and any proceedings preliminary or incidental to the appeal, or in carrying on his defence against the charge or charges out of which the appeal arose". The old rule was that the Crown neither received nor paid costs, especially in criminal proceedings; but it is plain from Latoudis v Casey and the earlier cases there mentioned, that the rule has been displaced. As Mason C.J. observed at 538, the rule "could not survive once courts of summary jurisdiction were given a statutory discretion to award costs in criminal proceedings." So it is with the power to award costs conferred upon the Tribunal by s. 37 of the Appeals Act. I emphasise again that the section must be construed according to its terms. It is not a codification of the earlier law; quite the contrary. The Tribunal is invested with the power to decide, according to the facts of each case, whether it is appropriate to order the Commonwealth to pay the successful appellant's costs. Those costs ought to be sufficient to compensate him or her for expenses properly incurred in the prosecution of the appeal, and proceedings preliminary or incidental thereto, or in carrying out the defence at an anterior stage against the charge or charges out of which the appeal arose. The Tribunal by majority exercised its power and the discretion which accompanied the power, in the present case, in favour of the respondent. I referred earlier to the course of reasoning which led Northrop J. (President) and Badgery-Parker J. to conclude that the respondent should be compensated for his costs. The point of divergence between the views of the majority and of Gallop J. in dissent on this question of costs was that in Gallop J.'s opinion it was the conduct of the respondent of the case at trial before the Magistrate that led to the Magistrate's error of law. His Honour drew no distinction between the conduct of the respondent himself and the conduct of his counsel, a distinction which was of importance to Badgery-Parker J. on the question whether the conduct of the case by counsel for the respondent ought to be regarded as conduct of the respondent himself so as to disentitle him to an order for costs of the appeal. Gallop J. started with the assumption that prima facie a successful appellant should not be deprived of an order for costs unless it is found that he was personally in some way at fault; and he went on to say that the trial miscarried, not because of anything said or done by the respondent himself, but because of his counsel's misconception as to the legal effect of the respondent's instructions. Northrop J. did not place the same emphasis as Badgery-Parker J. did, upon the distinction between the conduct of the respondent at the trial and that of his counsel, though he gave some weight to it. The respondent was represented at the trial before the Magistrate by a legal officer. He was convicted wrongly on two charges which were set aside on appeal to the Tribunal. Notwithstanding that the error in law of the Magistrate was in substance to adopt the submissions of the legal officer appearing for the respondent, these were but submissions, and it was for the Magistrate himself to decide the questions of law. The fact that the Magistrate adopted the submissions of the legal officer for the respondent, notwithstanding that they appear to have been put somewhat forcefully, is not a circumstance which should lead to the respondent being deprived of an order for costs of the appeal in his favour. It is not to my mind a question of whether the conduct of the case at trial by counsel for the respondent ought to be regarded as conduct of the respondent himself. A legal officer acts on instructions and, subject to that, conducts the case as he or she thinks appropriate within the customary bounds of proper behaviour. If the legal officer made a submission which was adopted by the Magistrate who thereby fell into error, I do not see why the respondent should be deprived of the benefit of the ordinary rule that, if successful, he should have an order for costs made in his favour in relation to the subsequent appeal. The burden of orders for costs against the prosecution is borne by public funds. If a person is acquitted of criminal offences or offences against the military law I cannot conceive of any legitimate reason why, prima facie, he or she should not be awarded costs which come out of public funds, the principal source of which is taxes exacted from the citizen. In most cases the ultimate effect upon the revenue would be minuscule. If a member of the Defence Force is charged with committing an offence, tried and convicted, then successfully appeals to the Defence Forces Tribunal, prima facie that person should be entitled to be compensated for the costs and expenses of and incidental to the appeal. The State has proceeded against the individual, in this case in the area of military law, and has failed. The successful accused, notwithstanding his acquittal, suffers considerable disadvantages by reason of having been charged and the attendant ignominy. Why should that person, when successful in gaining an acquittal, be deprived of the benefit of the costs and expenses of the trial and the appeal? It is right that traditional conventions in this area of the law have been cast aside. We live in an age where law becomes increasingly complex, statutory bodies are created to deal with offences against the public good and massive amounts of money are spent to support their legitimate work. But if the result is an unsuccessful prosecution and a person is acquitted of an offence, that person, prima facie, should be entitled to recoup the costs of resisting the charge that has been unsuccessfully laid I am not satisfied that the Tribunal's exercise of power and discretion in this case in relation to costs miscarried. I would dismiss the appeal with costs. I certify that this and the preceding thirty-nine (39) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart. Associate Dated: 14 December 1995 IN THE FEDERAL COURT) OF AUSTRALIA ) NEW SOUTH WALES ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. NG350 OF 1994 ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL B E T W E E N: CHIEF OF THE GENERAL STAFF Appellant and LIEUTENANT COLONEL RUSSELL ALEXANDER STUART Respondent CORAM: BLACK CJ., DAVIES, LOCKHART, LEE, HEEREY JJ. DATE : 14 DECEMBER 1995 PLACE: SYDNEY REASONS FOR JUDGMENT LEE J: I have read in draft form the reasons prepared by Lockhart J. and, save for the following comments, in particular in respect of the construction of s.44 of the Defence Force Discipline Act 1982 ("the Act"), I agree with his Honour's conclusions and reasons. Where a statute states that a person who loses property issued or entrusted to that person commits an offence, a close reading of the enactment would be required to ascertain the meaning of the word "lose" as used by Parliament. It would be expected that the meaning would import some fault on the part of the person who loses issued or entrusted property, demonstrating culpability of a sufficient degree to warrant application of the criminal law. That is, proof of loss of the property, per se, would not be sufficient to establish the offence and proof of facts which demonstrate fault in respect of the loss would be required. However, the Act is concerned with instilling and maintaining discipline in the defence force and, historically, it has been perceived that the imposition upon service personnel of measures of strict liability assists the achievement of that purpose. Construction of the terms used in the Act must take that history into account. As Dixon J. said in Proudman v. Dayman (1941) 67 C.L.R. 536 at 540: "If the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered. But other considerations arise where in matters of police, of health, of safety or the like the legislature adopts penal measures in order to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced." The apparent scheme of s.44 is to regulate the conduct of service personnel by making the loss of service property issued or entrusted to a defence person, a punishable offence, notwithstanding that the loss may be involuntary, but to exculpate a person who took reasonable steps for the safekeeping of that property. Pursuant to sub-s.12(2) of the Act the burden of proving the exculpatory facts rests upon the defence person. The service property to which s.44 applies is diverse and may range between an item of uniform and a lethal weapon. At first sight, the loss of lesser items of property would not seem to be an event worth attracting the operation of the criminal law. However, in respect of such property it may be expected that the reasonableness of steps taken for the care or safekeeping of that property would fall to be judged according to broad criteria, and, therefore, it would not be difficult to show that no offence had been committed. Loss of a service weapon, however, is a serious matter and assessment of the reasonableness of the steps taken to guard against the loss of that property would be governed by more circumscribed considerations than those appropriate for determining the reasonableness of steps taken for the safekeeping of lesser property. The loss of such a weapon, even by robbery, would require the person to whom the property was entrusted to demonstrate that in the circumstances reasonable steps had been taken to prevent the loss of the property in the manner in which it was lost. Judgment as to the reasonableness of the steps taken would require an objective assessment of the nature of the risk of loss disclosed by the facts of the case and consideration of what steps a reasonable person, who understood that risk, would have taken to safeguard against the event which occasioned the loss. At common law the construction of a statute creating an offence applies presumptions, rebuttable by the terms or nature of the enactment, that mens rea is an ingredient of the offence and that the statute is to be read with the rule that an honest and reasonable belief in a state of facts which, if the facts existed, would make the defendant's act innocent, exculpates what would otherwise be the offence. (See: He Kaw Teh v. The Queen (1985) 157 C.L.R. 523 per Gibbs C.J. at 528-529; Proudman v. Dayman per Dixon J. at 540.) In Queensland and Western Australia where the common law in respect of criminal law has been replaced by a code (The Criminal Code Act 1899 (Qld.); Criminal Code Act 1913 (W.A.)), the latter rule of construction has been incorporated as a law that, subject to exclusion by an express or implied provision of the law relating to the matter, a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as that person believed to exist. (Criminal Code (Qld.), Criminal Code (W.A.); s.24.) In the Northern Territory s.32 of the Criminal Code adopted by the Criminal Code Act 1983 (N.T.) incorporates the rule without the proviso but the section has been construed as being subject to express or implied exclusionary provisions in other statutes. (See: D.P.P. v. Cole (1994) 100 N.T.R. 1 at 7.) Section 14 of the Criminal Code of Tasmania adopted by the Criminal Code Act 1924 (Tas.) applies a provision that is equivalent to the common law rule of construction. I agree that the proper constructon of s.44 excludes any presumption that mens rea is to be proved as part of the offence, in the sense of a specific state of mind of "motive, intention, knowledge or advertence" (Proudman v. Dayman per Dixon J. at 540) or "intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence" (Kural v. Reg. (1987) 162 C.L.R. 502 per Mason C.J., Deane, Dawson JJ. at 504). Furthermore, the proper construction of s.44 does not permit the rule of honest and reasonable, but mistaken, belief as to a state of facts to be applied in respect of facts which prove the loss of the property. The terms of sub-s.44(2) reinforce that conclusion. (See: McPherson v. Cairn [1977] W.A.R. 28 per Burt J. at 31-32; Harper v. The Racing Penalties Appeal Tribunal of Western Australia (1995) 12 W.A.R. 337 per Malcolm C.J. at 341-342, per Anderson, Owen JJ. at 350.) However, such a construction does not exclude the application of the rule to other facts required to be proved to constitute the offence, for example, the facts which prove that the property was service property and was issued or entrusted to a defence person. In respect of those matters the onus of disproving any exculpatory belief would rest on the prosecutor. Nor is there any reason to exclude the rule in respect of the operation of sub-s.44(2). If a person charged with an offence under sub-s.44(1) seeks to show that reasonable steps were taken to safeguard the property, the reasonableness of those steps would have to be assessed according to the facts of the case and would require a conclusion to be made as to what a reasonable person would have done in the circumstances. If an honest and reasonable, but mistaken, belief is held as to relevant facts, it would be expected that such a belief would be a germane consideration in determining whether the conduct of that person was reasonable. Therefore, if an accused person mistakenly, but honestly and reasonably, believed a state of facts to exist and took reasonable steps for the safekeeping of the property according to those facts as believed, a defence under sub-s.44(2) would be established. As provided by the sub-section, however, the onus to establish that defence and, therefore, to establish that an honest and reasonable belief in mistaken facts was held, would remain on the accused. (See: Cole at 7-8.) In the present matter it was part of the respondent's case that he had an honest and reasonable belief that guidelines issued by a superior officer took effect as an order he was bound to obey. The Defence Force Magistrate made no finding as to whether the guidelines bound the respondent in the manner believed nor was any finding made as to the respondent's belief in that regard. If the guidelines did bind the respondent, that was a relevant fact to take into account in determining whether reasonable steps to safeguard the property had been taken in the circumstances. If the respondent was mistaken in his belief, it was necessary to determine whether that belief was honestly and reasonably held and, if so, whether reasonable steps had been taken to safeguard the property according to the facts as believed by him. The trial as conducted did not deal with these questions and, as the Tribunal found, the proceeding miscarried. With regard to the charge under s.60 of the Act and the relevance to that charge of the concept of "blameworthiness", I agree that it is not appropriate to adopt the term as the expression of the mens rea element of an offence under s.60. However, the concatenation in s.60 of words that are notoriously imprecise leads to reliance upon a concept such as blameworthiness to allow members of the defence force to understand the type of conduct the section renders a criminal offence liable to punishment by imprisonment. Used in that way the term blameworthiness is not more than an affirmation that s.60 will not be applied oppressively and so used the term itself aids acceptance of defence force discipline. I agree that the appeal should be dismissed with costs. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee. Associate: Date: 14 December 1995 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No.NG 350 of 1994 ) GENERAL DIVISION ) ON APPEAL FROM THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL BETWEEN: CHIEF OF THE GENERAL STAFF Appellant AND: LIEUTENANT COLONEL RUSSELL ALEXANDER STUART Respondent CORAM: Black CJ, Davies, Lockhart, Lee and Heerey JJ DATE: 1995 PLACE: Sydney REASONS FOR JUDGMENT I concur with the judgment of Lockhart J. I certify that this is a true copy of the reasons for judgment of his Honour Mr Justice Heerey. Dated: 14 December 1995 Associate Counsel for the appellant: J W Greenwood QC D Wilkins Solicitors for the appellant: Australian Government Solicitor Counsel for the respondent: P A Willee QC B Levet Solicitor for the respondent: G W Vassis Date of Hearing : 20-21 February 1995, Sydney Date of judgment : 14 December 1995 Place of judgment : Sydney