DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL Angre v Chief of Navy (No 2) [2016] ADFDAT 2 Appeal from: General Court Martial File number: DFDAT 3 of 2015 Judges: TRACEY (PRESIDENT), LOGAN (DEPUTY PRESIDENT) AND BRERETON JJ Date of judgment: 29 August 2016 Catchwords: DEFENCE – application for leave to amend grounds of appeal – application for leave to adduce and rely on additional documentary evidence – whether s 23(1) of the Defence Force Discipline Appeals Act 1955 (Cth) confers incidental powers on the Tribunal to receive fresh or new evidence on appeal – whether s 23(2) of the Defence Force Discipline Appeals Act 1955 (Cth) constituted the Tribunal's exhaustive power to receive fresh or new evidence on appeal Legislation: Courts-Martial Appeals Act 1955 (Cth), s 23 Criminal Appeal Act 1912 (NSW), s 12 Defence Force Discipline Appeals Act 1955 (Cth), ss 23(1), 23(1)(c), 23(2), 31, 31(1)(b), 31(1)(c), 33 Defence Force (Miscellaneous Provisions) Act 1982 (Cth) Cases cited: Behan v Chief of Army [1991] ADFDAT 1 – cited Betts v The Queen (2016) 90 ALJR 758 – cited Cesan v Director of Public Prosecutions (Cth) (2007) 230 FLR 185 – cited Ferdinands v Chief of Army [2013] ADFDAT 2 – cited Green v Chief of Army [2011] ADFDAT 2 – cited Ratten v The Queen (1974) 131 CLR 510 – cited Thompson v Chief of Navy [2015] ADFDAT 1 – cited Date of hearing: 29 July 2016 Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: Mr AG Elliott and Mr PF Hogan Solicitor for the Applicant: The Benjamin Group Pty Ltd Counsel for the Respondent: Mr AR Moses SC and Mr BD Kaplan Solicitor for the Respondent: Office of the Director of Military Prosecutions DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL DFDAT 3 OF 2015 ON APPEAL FROM GENERAL COURT MARTIAL BETWEEN: ROHAN MARTIN ANGRE Applicant AND: CHIEF OF NAVY Respondent JUDGES: TRACEY (PRESIDENT), LOGAN (DEPUTY PRESIDENT) AND BRERETON JJ DATE OF ORDER: 29 July 2016 WHERE MADE: MELBOURNE THE TRIBUNAL ORDERS THAT: 1. The applicant's application to amend his grounds of appeal by adding the grounds contained in the minute dated 1 July 2016 be refused. 2. To the extent that it is necessary, the applicant be granted leave to adduce and rely on before the Tribunal the transcript of the oral evidence given and the exhibits tendered before the Chief Judge Advocate sitting as Judge Advocate to the Court Martial convened to sentence the applicant and the parts of the affidavits as follows: (a) The affidavit of the applicant sworn on 17 March 2015: the third last sentence of paragraph 70 and paragraph 76. (b) The affidavit of the applicant sworn on 8 June 2015: paragraphs 4 and 8. (c) The affidavit of LEUT Ross Glover sworn on 7 July 2015: paragraphs 29(b), 31 and 34. REASONS FOR DECISION THE TRIBUNAL 1 ABMT Rohan Angre has applied to the Tribunal for leave to appeal out of time against convictions entered by a General Court Martial on 16 and 22 September 2014 ("the first Court Martial"). He had faced five charges and had pleaded guilty to three of them. He was convicted on the counts to which he had pleaded guilty. 2 ABMT Angre did not immediately apply for leave to appeal against these convictions. 3 Another General Court Martial ("the second Court Martial") was convened to deal with the imposition of punishments for the offences. Before the second Court Martial assembled ABMT Angre raised and argued a series of preliminary legal points before the Judge Advocate to that court martial. The preliminary hearing continued over some 11 sitting days and saw a number of witnesses called and examined. 4 In substance ABMT Angre mounted a collateral attack on his convictions on the ground that a substantial miscarriage of justice had occurred because his guilty pleas had been induced by various improprieties attributed to his legal advisors and by the alleged failure of the Judge Advocate of the first Court Martial to ensure that he was fully apprised of the consequences of his pleas. 5 Having heard the evidence and arguments the Judge Advocate of the second Court Martial rejected ABMT Angre's preliminary objections. 6 When he first sought to invoke the jurisdiction of this Tribunal ABMT Angre sought leave to appeal out of time against the Judge Advocate's ruling in the second Court Martial. When advised that the Tribunal did not have jurisdiction to entertain such a proposed appeal he sought and was granted leave to file an amended notice of appeal. In that amended notice he sought leave to appeal out of time against his convictions by the first Court Martial. He did so on the grounds that there had been a material irregularity in the proceedings and that a substantial miscarriage of justice had occurred. In particularising these grounds he substantially restated the allegations which he had advanced before the Judge Advocate of the second Court Martial. 7 The hearing of ABMT Angre's application for leave to appeal out of time has been fixed to commence on 12 December 2016. The parties are agreed that the record before the Chief Judge Advocate, sitting as the Judge Advocate of the second Court Martial, as well as the record of the first Court Martial, should be before us. 8 ABMT Angre applied to the Tribunal for leave to amend his grounds of appeal. He also indicated that he proposed to rely on evidence additional to that which was relied before the Chief Judge Advocate, when prosecuting his application for leave to appeal in the Tribunal. This evidence falls into a number of broad categories. They are: The transcript of oral evidence given before the Judge Advocate of the second Court Martial and exhibits tendered in that hearing. Some short passages from affidavits filed before the preliminary hearing before the Judge Advocate (but which were not read), the substance of which was not given in oral evidence. Unsworn statements of two service members and an affidavit of a third service member which had been filed in the second Court Martial but not relied on at the preliminary hearing. 9 The respondent Chief of Navy objected that such evidence could not be received because on no view could it satisfy the criteria identified in paragraphs (a), (b) and (c) of s 23(2), and sought a ruling on that objection before having to consider whether to reply to it. The applications were considered by the Tribunal in the course of a hearing conducted on 29 July 2016. ABMT Angre did not press the unsworn statements. Having heard argument the Tribunal refused the application for leave to amend the grounds of appeal and granted leave, to the extent that it may be required, and subject to all just objections, to ABMT Angre to rely on the documents falling within the two remaining categories. It advised the parties that it would publish its reasons for making these orders. These are the reasons. 10 Each of the three additional grounds of appeal proposed by ABMT Angre sought to challenge findings made by the Chief Judge Advocate, sitting as the Judge Advocate of the second Court Martial. That Court Martial had been convened to deal with the imposition of punishments on ABMT Angre for the offences to which he had pleaded guilty before the first Court Martial. The Tribunal has no power to entertain appeals against sentences imposed by a court martial. The rulings, made by the Judge Advocate to the second Court Martial, in substance, rejected submissions by ABMT Angre that his guilty pleas were made as a result of importunity and wrong advice. Had the Judge Advocate to the second Court Martial accepted the submissions he could not have quashed the convictions entered by the first Court Martial. Only this Tribunal can disturb those convictions. The applicant sought leave to raise grounds which impugned the decision of the Chief Judge Advocate, it was said, in order to avoid being held to that decision. However, as we have held that no res judicata arises from that decision, and as the question before us is whether the conviction involved a miscarriage of justice, whether the Chief Judge Advocate erred in law is irrelevant. There was, therefore, no occasion for this Tribunal to consider grounds which related only to the rulings of the Judge Advocate of the second Court Martial. Leave to amend was therefore refused. 11 The Chief of Navy opposed ABMT Angre's application to rely on documentary evidence in support of his appeal to the Tribunal. His principal ground was that s 23(2) of the Defence Force Discipline Appeals Act 1955 (Cth) ("the DFDA Act") is exhaustive of the Tribunal's power to receive and consider fresh or new evidence on appeal for the purposes of quashing a conviction and that the evidence which ABMT Angre seeks to file does not satisfy the criteria which are preconditions to the reception of such evidence on an appeal. 12 We did not accept these submissions. 13 Section 23 of the DFDA Act relevantly provides: "(1) Subject to subsection (5), where in an appeal it appears to the Tribunal: (a) … (b) that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction … was wrong in law and that a substantial miscarriage of justice has occurred; (c) that there was a material irregularity in the course of the proceedings before the court martial or the Defence Force magistrate and that a substantial miscarriage of justice has occurred; or (d) … it shall allow the appeal and quash the conviction … (2) Subject to subsection (5), where in an appeal it appears to the Tribunal that there is evidence that: (a) was not reasonably available during the proceedings before the court martial or the Defence Force magistrate; (b) is likely to be credible; and (c) would have been admissible in the proceedings before the court martial or the Defence Force magistrate; it shall receive and consider that evidence and, if it appears to the Tribunal that the conviction … cannot be supported having regard to that evidence, it shall allow the appeal and quash the conviction or the prescribed acquittal." 14 Sections 31 and 33 of the DFDA Act should also be mentioned. Section 31 provides for what are referred to as "supplementary powers" of the Tribunal. One of those powers, provided for in s 31(1)(b), is a power to summon a person, who would have been a compellable witness before the court martial, to attend before the Tribunal to give evidence. Under s 31(1)(c) the Tribunal is also empowered to "receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness…". Section 33 empowers the Tribunal to administer an oath to a person appearing before it as a witness whether or not the witness has been summoned or not. 15 Prior to 1982, s 23 of the then Courts-Martial Appeals Act 1955 (Cth) provided as follows: "(1) Where, upon the hearing of an appeal against a conviction by a court-martial, the Tribunal considers – (a) that the finding of the court-martial - (i) is unreasonable, or cannot be supported, having regard to the evidence; or (ii) involves a wrong decision of a question of law; or (b) that, on any ground, there was a miscarriage of justice, the Tribunal shall, subject to this Division, allow the appeal. (2) Notwithstanding that the Tribunal is of the opinion that an appeal might otherwise be decided in favour of the appellant, the Tribunal may refuse to allow the appeal if it considers that no substantial miscarriage of justice has occurred. (3) Subject to this Division, if the Tribunal allows an appeal, it shall quash the conviction, and, if the Tribunal does not allow an appeal, it shall dismiss the appeal." 16 Section 31 was in substantially the same form as it presently appears, as was s 33. The amendments to s 23 (including the introduction of s 23(2) in its present form) were effected by the Defence Force (Miscellaneous Provisions) Act 1982 (Cth). The presence in the Act, before the insertion of present s 23(2), of provisions in ss 31 and 33 – which closely resemble provisions that originated in the Criminal Appeal Act 1907 (UK) and are found in the Australian derivatives of it – which contemplated the receipt by the Tribunal of oral evidence make clear that it was intended from the outset that the Tribunal would hear appeals by way of rehearing, as Courts of Criminal Appeal did, and was not to be limited to the record below, as would be the case if it were an appeal in the strict sense. Thus, before s 23(2) was inserted, the Tribunal was empowered to receive evidence additional to that which was before the court martial. 17 Section 23 in its present form was considered by the Tribunal in Behan v Chief of Army [1991] ADFDAT 1. Staff Sergeant Behan had appealed against a conviction recorded by a Defence Force magistrate. One of his grounds was that there was "fresh and material" evidence which, had it been admitted at trial, would have established that the conviction was unsafe or unsatisfactory. In dealing with this ground the Tribunal (at 16) said that "section 23(2) … provides for an appeal on the ground of fresh evidence …". In other words, it accepted that s 23(2) provided for a ground of appeal against conviction which was separate from and additional to those provided for in s 23(1). 18 This construction is supported by the final words of s 23(2). If, having considered the "fresh" evidence it appears to the Tribunal that the conviction cannot be supported having regard to the evidence as a whole (including the "fresh" evidence) "it shall allow the appeal and quash the conviction …". This same requirement is imposed if it appears to the Tribunal that one or more of the grounds, provided for in s 23(1), have been made out. 19 It is important to note that in Behan, and two other decisions of the Tribunal referred to in argument by the Chief of Navy (Green v Chief of Army [2011] ADFDAT 2 and Ferdinands v Chief of Army [2013] ADFDAT 2), the Tribunal was dealing with attempts, by appellants, to adduce evidence of facts which, had they been established at trial, would, it was said, have led to the conclusion that the appellant's convictions could not be supported having regard to the evidence as a whole. It is understandable that s 23(2) should be relied on in such circumstances. 20 Allegations of the kind which ABMT Angre seeks to advance in this proceeding fall into a different category. A miscarriage of justice will occur if an accused's guilty plea is not entered in the exercise of a free choice in his or her interests: see Thompson v Chief of Navy [2015] ADFDAT 1 at [28]-[38]. Such a miscarriage may occur if the accused's will is overborne by false or misleading legal advice. Most, if not all of the relevant facts will be known to the accused at the time at which the plea of guilty is entered at trial and the conviction recorded but the legal implications of those facts will, usually, not become apparent until later when grounds for a possible appeal are being considered. On one view such evidence may not be regarded as being "fresh" because it was, strictly speaking, available at the hearing before the service tribunal. It may be that some relevant material, such as medical evidence relating to the accused's state of mind at the time he pleaded guilty, may only later become available. It is not, however, evidence which deals with facts material to the accused's guilt, except to the extent that the guilty plea must be taken to be an acknowledgment by the accused that the prosecution has established, beyond reasonable doubt, all of the elements of the particular offence. 21 A similar distinction was drawn by Basten JA in Cesan v Director of Public Prosecutions (Cth) (2007) 230 FLR 185 at 192. His Honour there said that: "Quite different considerations arise where the new material is put forward, not in contradiction of the jury's verdict, or is inconsistent with the evidence called below, but to demonstrate that for some reason the trial departed from the essential requirements of the criminal process, or was in some other respect procedurally unfair. In some cases, the basis of a complaint may be apparent from the transcript. In other cases that will not be so and in those cases the Court should be slow to exclude evidence which would provide the only proper basis upon which the legitimacy of the challenge could be assessed …" In that case the New South Wales Court of Criminal Appeal admitted and acted on evidence that a trial judge had slept at various times in the course of the appellant's trial. The Court did not refuse to receive the evidence although it was available at trial and the matter could have been raised with the trial judge. 22 We also note what was said by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 520 about receipt of evidence in the course of criminal appeals. His Honour there said: "To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence." (Emphasis added). 23 Where an accused wishes, on appeal, to argue that he or she should not be held to a guilty plea, the appropriate ground is that provided for in s 23(1)(c) of the DFDA Act. Unless evidence of the alleged material irregularity which gave rise to the substantial miscarriage of justice is admitted on the hearing of the appeal the appellant would be bound to fail. Such evidence was admitted, without objection by the Chief of Navy, in Thompson. It should be admitted in the present case. 24 Section 23(1) requires the Tribunal to allow an appeal and quash a conviction if "it appears to [it]" that a material irregularity has occurred in the course of the trial. A question thus arises as to how it might be made to "appear" to the Tribunal that a miscarriage of justice has occurred during proceedings before a service tribunal. In many, but not all, cases procedural errors may be discerned from a reading of the trial transcript and relevant documents such as charge sheets and convening orders. There will, however, be some material irregularities which will not be disclosed by resort to such material. Examples include the judge being asleep during the hearing or the interaction of a member of the court with witnesses away from the courtroom during the course of the trial. 25 Prior to 1982, s 23 required the Tribunal to allow an appeal if it considered that a miscarriage of justice had occurred. The Chief of Navy accepted that, under that provision, the Tribunal could receive additional evidence which an appellant claimed established the occurrence of a miscarriage of justice. He submitted, however, that, on the introduction of the present s 23(2), such additional evidence could only be received if the criteria identified in paragraphs (a), (b) and (c) of that sub-section are satisfied. 26 We do not consider that these criteria must be satisfied before additional evidence is received for the purpose of establishing one of the grounds of appeal identified in s 23(1). Section 23(2) provides a separate and additional ground of appeal from the grounds contained in the preceding sub-section. Sub-section (1) is not expressed to be subject to any qualification appearing in sub-section (2). We see no warrant for attributing to Parliament an intention, by adding an additional ground of appeal, to limit the pre-existing power to receive evidence additional to that which was before the court martial in respect of the other available grounds of appeal now found in s 23(1). 27 The Chief of Navy correctly emphasised that, as a statutory body, the Tribunal does not have inherent power or jurisdiction, but only those powers conferred on it by its governing Act. However, such powers need not be express; they may be implied. The powers conferred on the Tribunal by ss 31 and 33 of the DFDA Act are expressed to be "incidental" powers, and the powers conferred by s 31 are further characterised as "supplementary" powers. This suggests that those powers are additional to other powers elsewhere conferred on the Tribunal. Powers similar to those conferred on the Tribunal by s 31(b) and (c) are conferred on the New South Wales Court of Criminal Appeal in substantially the same terms: see Criminal Appeal Act 1912 (NSW), s 12. As Basten JA observed in Cesan at 191, these provisions are "curious in some respects". They are facilitative in nature. They provide for some measures which may be utilised to ensure the presence of witnesses, either voluntarily or under compulsion, and the receiving of the evidence of those witnesses. Section 33 empowers the Tribunal to administer an oath to any witness who is called before it. But if ss 31 and 33 are to be regarded as in the nature of machinery or facilitative provisions, they nonetheless bespeak a statutory assumption that, quite apart from s 23(2), the Tribunal has power to receive evidence, incidental to the authority, conferred on the Tribunal by s 23, to hear and determine appeals: cf Betts v The Queen (2016) 90 ALJR 758 at 763. The power to receive evidence of the kind which the applicant seeks to tender on the hearing of his appeal, is incidental to its power to hear the appeal on the ground provided by s 23(1)(c) of the DFDA Act. Whether or not resort to the incidental or supplementary powers is or will become necessary in the course of dealing with ABMT Angre's applications for leave to appeal and any appeal, their presence in the DFDA Act is demonstrative of the existence of the incidental power which is conferred by s 23(1). 28 Ultimately, the additional evidence which the applicant sought to adduce was very limited in its scope. 29 We therefore overruled the in limine objection to the material on which ABMT Angre proposes to rely. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justices Tracey (President), Logan (Deputy President) and Brereton. Associate: Dated: 29 August 2016