DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL Angre v Chief of Navy (No 3) [2017] ADFDAT 2 Appeal from: General Court Martial File number: DFDAT 3 of 2015 Judges: TRACEY J (PRESIDENT), LOGAN (DEPUTY PRESIDENT) AND BRERETON (MEMBER) JJ Date of judgment: 27 March 2017 Catchwords: DEFENCE – application for extension of time to appeal – application for leave to appeal against convictions by court martial – whether convictions recorded following pleas of guilty should be quashed – whether a material irregularity in the course of the proceedings before the court martial and substantial miscarriage of justice under s 23(1)(c) of the Defence Force Discipline Appeals Act 1955 (Cth) – where convictions based on a plea bargain – whether inadequate advice from counsel as to reasonably available defences – whether prosecutorial misconduct – whether absence of a genuine consciousness of guilt – whether sentencing by way of a Defence Force magistrate used as an inducement to plead where that forum was not available as a matter of law Legislation: Crimes Act 1900 (ACT) s 24(1) Criminal Code 2002 (ACT) ss 8, 20(1) Criminal Code Act 1995 (Cth) sch 1 Defence Force Discipline Act 1982 (Cth) ss 61(3), 61(6), 125(3), 125(6) Defence Force Discipline Appeals Act 1955 (Cth) ss 20(1), 23(1)(c), 24 Cases cited: Angre v Chief of Navy (No 1) [2016] ADFDAT 1 – cited Angre v Chief of Navy (No 2) [2016] ADFDAT 2 – cited Attorney-General's Reference (No 6 of 1980) [1981] QB 715 – cited Chief of Navy v Angre [2016] FCAFC 171 – cited Coulter v The Queen (1988) 164 CLR 350 – considered Davis v Chief of Army [2011] ADFDAT 1 – cited Kumar v The Queen [2014] VSCA 102 – considered Lergesner v Carroll [1991] 1 Qd R 206 – cited McLean v The Queen (2001) 121 A Crim R 484 – cited Maxwell v The Queen (1996) 184 CLR 501 – cited Meissner v The Queen (1995) 184 CLR 132 – cited R v Aitken [1992] 1 WLR 1006 – cited R v Brown [1994] 1 AC 212 – cited R v Jones (1986) Cr App R 375 – cited R v Percali (1986) 42 SASR 46 – considered Saik v The Queen [2004] EWCA Crim 2936 – cited Thompson v Chief of Navy [2015] ADFDAT 1 – considered Wilkes v The Queen (2001) 122 A Crim R 310 – cited Williams v The Queen (1990) 50 A Crim R 213 – cited Date of hearing: 12–16 December 2016 Place: Melbourne (heard in Sydney) Category: Catchwords Number of paragraphs: 80 Counsel for the Appellant: Mr AG Elliott and Mr PF Hogan Solicitor for the Appellant: The Benjamin Group Pty Ltd Counsel for the Respondent: Mr AR Moses SC and Mr BD Kaplan Solicitor for the Respondent: Director of Military Prosecutions ORDERS DFDAT 3 of 2015 BETWEEN: ROHAN MARTIN ANGRE Appellant AND: CHIEF OF NAVY Respondent JUDGES: TRACEY J (PRESIDENT), LOGAN (DEPUTY PRESIDENT) AND BRERETON (MEMBER) JJ DATE OF ORDER: 24 March 2017 WHERE MADE: MELBOURNE (HEARD IN SYDNEY) THE TRIBUNAL ORDERS THAT: (1) The period within which the appeal and application for leave to appeal herein must be lodged be extended to the date on which it was lodged. (2) Leave to appeal, insofar as it is required, be granted. (3) The appeal against the conviction on Charge 6 be dismissed. (4) The appeal against the convictions on Charges 1 and 2 be allowed, and the convictions quashed. (5) There be a new trial of the appellant on Charges 1 and 2. REASONS FOR DECISION THE TRIBUNAL: 1 Able Seaman Rohan Angre and three other Able Seamen (Summers, Thompson, and Walter) appeared before a General Court Martial in Sydney in 2014 ("the first Court Martial"). Each of the four accused faced charges arising out of incidents which occurred aboard HMAS Newcastle off the Western Australian coast in August 2011. It was alleged that the four accused had set upon another sailor in some form of hazing ritual. 2 The charge sheet contained eight charges, namely: Forcible confinement (Charge 1) (against all four accused); Engaging in an act of indecency without consent (Charge 2) (against all four accused); Engaging in sexual intercourse without consent (Charge 3) (against all four accused); Assault in a service ship (Charge 4) (against Able Seaman Thompson); Aiding and abetting, counselling or procuring an assault in a service ship (Charge 5) (against Able Seamen Angre, Summers, and Walter); Assault occasioning actual bodily harm (Charge 6) (against Able Seaman Angre); Being knowingly concerned in an assault occasioning actual bodily harm (Charge 7) (against Able Seamen Thompson and Walter); and Prejudicial conduct (Charge 8) (against Able Seaman Summers). 3 Upon arraignment on 16 September 2014, each of the accused pleaded not guilty to all charges, save for Able Seaman Angre who pleaded guilty to the count of assault occasioning actual bodily harm (Charge 6), and not guilty to the other four charges which he faced. 4 After the trial had proceeded for some days and following discussions between the prosecutor and counsel for Able Seamen Angre and Thompson (each of whom was separately represented), agreements were reached pursuant to which those two accused agreed to plead guilty to certain charges and the prosecution agreed not to lead evidence in respect of the remaining charges. It will be necessary to return, later in these reasons, to outline in greater detail what transpired during these discussions and the outcome of them. 5 On 22 September 2014 (the sixth day of the trial) the prosecutor and counsel for Able Seamen Angre and Thompson advised the Judge Advocate of the first Court Martial of their willingness to plead guilty to some of the charges. The prosecutor advised the Judge Advocate that, as a result of the agreement between the parties, the prosecution would not lead any evidence against those accused in respect of the remaining charges. 6 The Judge Advocate was told that Able Seaman angre had agreed to plead guilty to Charges 1 and 2 but would maintain his not guilty pleas in respect of the other charges to which he had earlier pleaded not guilty. Able Seaman Thompson had also agreed to change his pleas to guilty in respect of Charges 1 and 2, and in addition pleaded guilty to Charge 7. 7 Able Seamen Angre and Thompson were then re-arraigned before the panel and each pleaded guilty, as foreshadowed, to those charges. The pleas were accepted and convictions recorded in respect of those charges. Verdicts of acquittal were entered in respect of each of the charges to which the two accused maintained their pleas of not guilty. 8 The trial proceeded against the other two accused, each of whom had pleaded not guilty to all of the charges, and on 29 October 2014, both were found not guilty on all counts. 9 Counsel for Able Seamen Angre and Thompson thereupon applied to the Judge Advocate for the first Court Martial to be dissolved. In doing so, counsel repeated a submission earlier made, namely that if the application was successful, it was open to the Director of Military Prosecutions to exercise a discretion to refer the outstanding sentencing issues to a Defence Force Magistrate ("the DFM") for determination, and that it was the expectation of the two accused that that would occur. 10 On 30 October 2014, the Judge Advocate directed the Registrar of Military Justice ("the RMJ") to dissolve the first Court Martial. 11 On the same day, the Deputy RMJ advised the legal representatives of Able Seamen Angre and Thompson that the first Court Martial had formally been dissolved. He also advised that the RMJ intended to convene another General Court Martial for the purpose of determining punishments for the offences for which they had been convicted. Counsel sought to persuade the RMJ that a DFM should deal with sentencing. They were unsuccessful, and on 6 November 2014 the RMJ provided them with detailed reasons for her decisions to refer both matters to a second General Court Martial to deal with sentencing. 12 Able Seaman Thompson subsequently appealed to this Tribunal against his convictions. His appeal was heard on 27 March 2015. On 22 May 2015 the Tribunal quashed his convictions on the ground that he had changed his pleas because of wrong advice from counsel that, if he did so, he would be sentenced by a DFM rather than a General Court Martial. This was found to have been a material irregularity under s 23(1)(c) of the Defence Force Discipline Appeals Act 1955 (Cth) ("the DFDAA"): see Thompson v Chief of Navy [2015] ADFDAT 1. A substantial miscarriage of justice was found to have resulted. 13 Able Seaman Angre did not immediately apply for leave to appeal against the convictions recorded against him by the first Court Martial. 14 Another General Court Martial ("the second Court Martial") was convened to deal with the imposition of punishments for the offences of which Able Seaman Angre had been found guilty. Before the second Court Martial assembled, Able Seaman 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. 15 In substance, Able Seaman Angre mounted a collateral attack on his conviction on the ground that a substantial miscarriage of justice had occurred because, in broad terms, his guilty pleas had been induced by various improprieties or inadequacies attributed to his legal advisers 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. 16 Having heard the evidence and arguments, the Judge Advocate of the second Court Martial rejected Able Seaman Angre's preliminary objections. 17 Able Seaman Angre sought leave to appeal to this Tribunal out of time, relying on errors said to have been made by the Judge Advocate in his 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, by which 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 second Court Martial in respect of Charges 1 and 2. Additional grounds were also advanced in respect of the convictions on those charges and on Charge 6. We agreed to hear the application for leave to appeal and argument on the grounds of appeal together. 18 Following a pre-trial hearing we ordered that Able Seaman Angre be granted leave, to the extent necessary, to adduce and rely on, at the hearing of his leave application and appeal grounds, the transcript of the oral evidence given and the exhibits tendered before the Judge Advocate to the second Court Martial and certain parts of affidavits sworn for the purposes of the proceeding before the second Court Martial: see Angre v Chief of Navy (No 2) [2016] ADFDAT 2 (appeal and related judicial review challenges subsequently dismissed: Chief of Navy v Angre [2016] FCAFC 171). Although some of the evidence given by some witnesses (including Able Seaman Angre and his defending officers) who were called before the second Court Martial was contentious, counsel on both sides expressly eschewed any desire, at the hearing before the Tribunal, to cross-examine any of those witnesses. 19 The Chief of Navy opposed the grant of leave to appeal and submitted that, if leave were granted, the appeal should be dismissed. THE GUILTY PLEA TO CHARGE 6 20 The sixth charge faced by Able Seaman Angre alleged that he had assaulted the complainant by pouring a liquid substance over him thereby occasioning actual bodily harm. The charge was laid under s 24(1) of the Crimes Act 1900 (ACT) and s 61(3) of the Defence Force Discipline Act 1982 (Cth) ("the DFDA"). 21 Counsel appointed to represent Able Seaman Angre at the trial were (then) Major Jonathan Hyde and Lieutenant Ross Glover RANR. They met with Able Seaman Angre on 15 September 2014. Lieutenant Glover took notes of what was said during the conference. Those notes are in point form and plainly do not provide a transcript of all that passed between Able Seaman Angre and his counsel. That said, the notes are generally consistent with Able Seaman Angre's account of what passed between them which he gave before the second Court Martial. One of the matters discussed during the conference was the prospect of Able Seaman Angre being found guilty of Charge 6. 22 The notes record: "Hyde: - likely that Pros will establish that, even on Rohan's version he was reckless as to whether the liquid would hurt him. - that is all the prosecution need establish - fact is, you were probably reckless as to whether it would hurt him. - Rohan: I have admitted it Hyde: - You should think about pleading guilty - Think will get credit from the panel for taking responsibility for what he did - Panel will be likely to look favourably on him standing up and taking responsibility - Don't have to decide now but I recommend that's what you do Rohan: - happy to do it - what is penalty" 23 A further conference took place before the trial resumed on the morning of 16 September 2014. Lieutenant Glover's notes record that Major Hyde explained to Able Seaman Angre the effect of a plea of guilty to the sixth charge. Major Hyde expressed the view that the prosecution was likely to succeed in securing a conviction on that charge and that, were he to plead guilty, "Angre will get some benefit from the plea in the eyes of the panel." The note then records that "Angre understands and willing to plead guilty to that charge." THE PLEA NEGOTIATIONS 24 As already noted, the decision by Able Seaman Angre to plead guilty to Charges 1 and 2 followed discussions between the prosecutor and counsel representing him. 25 After the Court had adjourned on 19 September 2014, his counsel met with the prosecutor. Certain proposals were put by the prosecutor, which were recorded by defence counsel. Later in the afternoon, in the only documentary record of the outcome of the discussions which was in evidence, Major Hyde sent an e-mail to the prosecutor which, with formal parts omitted and with errors as in the original, read: "[W]e confirm that we are taking our clients instruction in relation to an offer to resolve the subject proceedings in full satisfaction of all charges: 1. That our client enter a plea of guilty in relation to charge 1, 2 and 6 on the Charge Sheet; 2. That the basis of the plea in relation to Charge 1 and 2 is that our client was knowingly concerned and not as a principal; 3. That Charge 2 will be the subject of agreed facts namely the smearing of vegemite between the buttocks of [the victim] as a form of humiliation and that there is no sexual connotation alleged with the conduct; 4. The prosecution will agree (or not disagree) with a submission by us that a term of imprisonment is not appropriate on the facts as stated in respect of each and all charges combined; 5. The matter will be the subject of a plea before a DFM at the earliest opportunity and will not be dealt with by the panel. Please advise if any of the above is other than in accordance with your understanding of our discussions." No response was in evidence. Counsel for the Chief of Navy did not seek to suggest that Major Hyde had not faithfully and accurately reproduced the terms of the proposed plea bargain. 26 Later on 19 September 2014 Major Hyde and Lieutenant Glover conferred with Able Seaman Angre. Lieutenant Glover took notes of what was said. The notes are again terse but they are generally supportive of Able Seaman Angre and Major Hyde's account of what passed between them. 27 This much is clear. The elements of the plea bargain, proposed by the prosecutor, were put to Able Seaman Angre. They included the proposal that sentencing would be undertaken by a DFM who would act on a statement of agreed facts. Major Hyde had said that he could not guarantee that a DFM would not sentence Able Seaman Angre to some gaol time but expressed the view that there was a "very good chance of no jail". He said that if he was in Able Seaman Angre's shoes he would "take it". Later in the conversation, Lieutenant Glover's notes record: "JH – 6 months No jail JH dismissal/fine" Able Seaman Angre understood "six months" to be a reference to the maximum sentence which might be imposed by a DFM. Major Hyde said that it was a reference to the maximum sentence which Able Seaman Angre may expect to be imposed for the offences to which it was proposed he should plead guilty. 28 The note then read, "RA will take deal". 29 On Saturday 20 September 2014, Major Hyde telephoned Able Seaman Angre, and requested that Able Seaman Angre provide written instructions in respect of the proposed deal. Able Seaman Angre sent an e-mail to Major Hyde in which he said: "Under your council [sic] I accept the offer that was made on Friday by the prosecution and understand it fully." 30 Before the trial resumed, following an adjournment on the morning of 22 September 2014, Able Seaman Angre signed an agreed statement of facts. The circumstances in which he did so were recorded in note form by Lieutenant Glover. Able Seaman Angre conferred with his counsel during an adjournment that morning. Major Hyde gave him what was described as the "final agreed facts". The first draft of the statement was prepared by the prosecution and provided to Able Seaman Angre's counsel. They proposed various amendments, most of which were accepted by the prosecution. The note records that Able Seaman Angre understood the document. He commented: "- not his recollection of things - understands it - going to use facts to sentence" Major Hyde is then recorded as saying: "… Probably DFM, no guarantees - might be that go to a different panel - very good chance no custodial sentence - can't guarantee it. - this is best option to give best chance" Able Seaman Angre said that he understood that there could be no guarantee but said that he considered acceptance of the plea bargain to be his "best chance … to avoid 6–10 years." Major Hyde advised him that the case against the other two accused might limp on and "they might get nothing". Able Seaman Angre responded that those other accused had a different case to him. He then signed the agreed statement of facts in the presence of his counsel. 31 The final paragraph of the statement read: "By agreeing to these facts, the accused agrees to plead guilty to the stated offences even if the current proceedings are dissolved. In making the above admissions, the accused agrees that he has done so having taken legal advice from [defence] counsel …" 32 At Major Hyde's request, Able Seaman Angre signed a hand-written notation at the end of one copy of the agreed statement—which copy was retained by his counsel and not provided to the prosecution nor to the Court Martial—which read: "My counsel has explained to me that there is no certainty that I will not get a custodial sentence when I am sentenced by either another panel, this panel or a DFM. It has been explained to me that the prospects of being dismissed from the Navy are high following my sentencing." 33 Able Seaman Angre gave evidence to the second Court Martial that he had agreed to change his pleas to the first and second charges because his defending officers had advised him that it was a "good deal". It removed the risk of a long gaol term were he to have been convicted on the third charge and he would be sentenced, on the agreed statement of facts, by a DFM. Able Seaman Angre said that, despite his view that the agreed statement of facts was "bullshit" and "fictional", he agreed to sign it. This was because he was advised by his defending officers that the statement was "the best they [could] do" and that he needed to agree to it in the form presented to him in order to secure the deal. He felt he was "getting railroaded" but wanted to avoid a prison sentence. 34 Later that day, counsel appearing for Able Seamen Angre and Thompson advised the Judge Advocate (in the absence of the panel) of the change in their clients' positions. One issue which arose in the course of the discussion between the Judge Advocate and counsel was how sentencing would proceed. It was proposed that, after the Court Martial had completed the trial of the other two accused, it would be dissolved and the task of sentencing Able Seamen Angre and Thompson would be referred to a DFM. When this suggestion was made, the Judge Advocate responded to the defending officers as follows: "… [S]ection 125 of the Defence Force Discipline Act provides that, at any time after a conviction, if I'm of the view that, in the interests of justice, the court martial should be dissolved, I can ask the Registrar [of Military Justice] to dissolve the court martial, and a new court martial, not a DFM, would have to be convened for action under Part IV of the DFDA. When this trial against the others is completed, I guess that you'd withdraw but we'd keep you in the loop in relation to transcript, to enable you to make any application at the end of the trial – that I dissolve the court martial after the hearing of the other matters, depending on what the outcome is for the other accused." The Judge Advocate then asked, "[a]re you happy with that course?" Major Hyde answered: "[f]or present purposes, yes." 35 Counsel for Able Seaman Thompson did not respond. 36 The statement of agreed facts was tendered and marked for identification. The copy tendered did not bear the hand-written annotation set out above at [32]. 37 Shortly afterwards there was further discussion (in the absence of the panel but in the presence of Able Seaman Angre and his counsel) about when and by whom Able Seaman Thompson would be sentenced after he had changed his plea to guilty to three of the charges. The following exchange occurred between the Judge Advocate and one of Able Seaman Thompson's defence counsel: "DEFENDING OFFICER NASH: I do feel I need to put this on the record though. When we make that application we are of the understanding that the matter goes back to DMP [Director of Military Prosecutions] and DMP can refer it to a Defence Force magistrate. JUDGE ADVOCATE: Once it's dissolved, it has to go back to the DMP. DEFENDING OFFICER NASH: DMP, which would have the capacity to refer it to a Defence Force magistrate, if they so chose. That's our understanding. JUDGE ADVOCATE: It's a matter for the DMP, yes. DEFENDING OFFICER NASH: That's our expectation, if I can say that. I appreciate at the end of the day it's your decision whether or not to dissolve the panel. JUDGE ADVOCATE: Yes, but I can deal with that application. I understand the issues involved. DEFENDING OFFICER NASH: Thank you." 38 The trial then proceeded against the other two accused. EXTENSION OF TIME TO APPEAL 39 The essential reason why the appeal was brought out of time is that Able Seaman Angre, instead of filing a timely appeal, applied before the Chief Judge Advocate, as Judge Advocate of the second Court Martial (convened under s 125(6) of the DFDA for the purpose of taking action under Part IV in relation to Able Seaman Angre, following his convictions by the first Court Martial) to withdraw his guilty pleas. It is usually reasonable for a party to exhaust his or her remedies at first instance before resorting to an appeal, and this case is no exception. As soon as the application before the Chief Judge Advocate was resolved adversely to him, Able Seaman Angre filed an appeal—notwithstanding that it was initially misconceived, in that it sought to rely upon errors allegedly made in the course of the Chief Judge Advocate's decision to dismiss his application to withdraw his plea, whereas it ought to have been (as it now is) brought as an appeal from the original conviction by the first Court Martial. 40 It was clear to the prosecution at least from 18 March 2015 (when Able Seaman Angre notified the RMJ of his application to withdraw his plea) that Able Seaman Angre was seeking to withdraw his plea and overturn the convictions. No prejudice to the Chief of Navy could be, or has been, suggested to arise from the delay in the formal institution of the appeal. The Chief of Navy robustly contested the application before the Chief Judge Advocate in respect of withdrawal of the plea. Ultimately, the Chief of Navy did not oppose (although he did not consent to) an extension. 41 Time for the appeal should be extended up to the date upon which the appeal was filed. LEAVE TO APPEAL 42 Leave to appeal to the Tribunal is required, except on a question of law: see DFDAA, s 20(1). The purpose of a requirement for leave to appeal is generally to serve as a filter on unmeritorious or trifling appeals, so as to restrict the appeal procedure to appropriate matters and thereby promote the efficiency of the Tribunal's appeal procedures: Coulter v The Queen (1988) 164 CLR 350 at 359. Most principles concerning leave to appeal have been developed in the context of interlocutory appeals in civil matters, and considerable caution is required in their application in the present context of appeals from final convictions in quasi-criminal matters, where, as Deane and Gaudron JJ observed in Coulter (at 359): "In a case such as the present where the application for leave to appeal was from a criminal conviction or information to a first court of appeal exercising general supervisory appellate jurisdiction, the requirement of leave effectively represents no more than a means of efficiently disposing of prospective appeals which would obviously fail since it is difficult to envisage circumstances where a competent application for leave to appeal to such a court could properly be refused in a case where the conviction should be set aside if leave were to be granted and the appeal were to proceed to a full hearing." 43 In other words, leave would not be refused in a criminal appeal if it appeared to the tribunal that there had been a miscarriage of justice warranting the quashing of a conviction. An equivalent approach should apply in this Tribunal. 44 This is not an appeal which would obviously fail. 45 The Chief of Navy argued that leave should be refused having regard to the collateral proceeding before the Chief Judge Advocate involving an application to withdraw the plea. The Tribunal has already held that bringing this appeal after making such an application is not an abuse of process, although indicating that it might be relevant to the grant of leave to appeal: Angre v Chief of Navy (No 1) [2016] ADFDAT 1 at [25]. However, as indicated in that decision, a party is not to be criticised for exhausting available remedies at first instance before embarking on an appeal: Angre (No 1) at [21], [23]. And, having exhausted those remedies, it is perfectly permissible to exercise a right of appeal given by law for the benefit of convicted persons to enable the correction of error, unless some election between inconsistent rights is involved. While supervisory courts have refused to entertain applications for judicial review where there is also a right of appeal (see the discussion in Angre (No 1) at [17]–[20]), that is because the right of appeal is regarded as a superior remedy. An application at first instance to set aside a judgment, or to withdraw a plea, is not a superior alternative remedy to a right of appeal. The circumstance that Able Seaman Angre unsuccessfully applied at first instance to withdraw his plea does not count against his exercise of the right of appeal which the law gives him to this Tribunal. 46 Leave to appeal should be granted. THE APPEAL Charge 6 47 The gravamen of Able Seaman Angre's argument in respect of Charge 6 was that he pleaded guilty: (1) upon advice of his counsel, which was allegedly inadequate because it did not take into account reasonably available defences that: (a) the victim consented to the alleged assault; and (b) he was not reckless as to the physical element of result, being actual bodily harm, because his counsel did not advert to the possibility; and (2) reinforced by the impression that he was being "fitted up" by alleged prosecutorial misconduct. 48 The argument that the alleged "prosecutorial misconduct" influenced the plea to Charge 6 should be rejected. There is no hint in the contemporaneous notes of Lieutenant Glover of any reference to this as a factor in the discussions that presaged the plea. Moreover, concurrently with his instructions to plead guilty to Charge 6, Able Seaman Angre gave firm and clear instructions for cross-examination of the victim in connection with the remaining counts, and even days later, when the notion of a plea bargain in respect of the remaining counts was first raised, Able Seaman Angre was adamant that he would not plead guilty to anything that he had not done. Rather, the surrounding discussions indicate that the plea to Charge 6 was seen and understood by him as a sound tactical move which involved acknowledging in front of the panel responsibility for what he admittedly had done, thereby enhancing the credibility of his denials of what he had not done. 49 It is true that Major Hyde does not appear to have referred in his discussions with Able Seaman Angre to any potential defence of consent. It is doubtful that, at common law, consent is a defence to a charge of assault where actual bodily harm is intended or caused: Attorney-General's Reference (No 6 of 1980) [1981] QB 715; R v Brown [1994] 1 AC 212; Davis v Chief of Army [2011] ADFDAT 1 at [29]; but cf R v Jones (1986) Cr App R 375; R v Aitken [1992] 1 WLR 1006. (The position is different in the Code States, where the statutory definition of assault involves an absence of consent: cf Lergesner v Carroll [1991] 1 Qd R 206.) In any event, mere failure by defence counsel to refer to every potential defence in the course of giving advice to a client does not necessarily give rise to a miscarriage of justice. In this case, any such irregularity would be immaterial: first, because there is no hint in the available records of Able Seaman Angre's instructions that it would or could be suggested that the victim had consented to the administration of the concoction (if there were, one might have expected to see a protest to the effect of, "But he agreed to it"); and secondly, because any defect in the advice was cured by the Judge Advocate in her summary of the elements to Able Seaman Angre when he indicated his intention to plead guilty, which referred to the absence of consent as an element. Able Seaman Angre acknowledged that he understood that summary. 50 It is also true that the Judge Advocate did not, in that summary of the elements, refer to any fault element (relevantly, recklessness) related to the physical element of result—namely actual bodily harm. Major Hyde's recollection, as he recounted it to the Chief Judge Advocate of the second Court Martial, was that he told Able Seaman Angre that "by not knowing what was in the concoction and pouring it about the head and neck of [the complainant], he was reckless as to whether by that conduct he was applying force to [the complainant]". This, of course, does not refer to the relevant result, being actual bodily harm, and if there were a fault element as to result, it may be doubted that mere absence of knowledge of the contents of the concoction would amount to recklessness; rather, the potential source for such a fault element—s 20(1) of the Criminal Code 2002 (ACT)—requires awareness of a substantial risk that the result will happen and requires that it be unjustifiable, in the circumstances known to the accused, to take the risk. 51 However, any irregularity along these lines would also be immaterial, because there is no fault element associated with this physical element of result. The DFDA does not make the provisions of the Criminal Code Act 1995 (Cth) in respect of principles of criminal responsibility applicable to the law in force in the Jervis Bay Territory for the purposes of determining whether an offence against s 61 has been committed (DFDA s 61(6)), and s 8 of the Criminal Code 2002 (ACT) exempts, until 1 July 2017, from the application of the equivalent principles of criminal responsibility contained in that Code, an offence that was in force before 1 January 2003 (a "pre-2003 offence"). The offence of assault occasioning actual bodily harm contained in s 24(1) of the Crimes Act 1900 (ACT) is a "pre-2003 offence": Davis v Chief of Army [2011] ADFDAT 1 at [32]. Thus, common law principles of criminal responsibility apply, and at common law there is no requirement to prove a fault element in respect of the infliction of actual bodily harm, as distinct from the assault itself: Coulter v The Queen (1988) 164 CLR 350 at 354, 364; Williams v The Queen (1990) 50 A Crim R 213 at 220–222; R v Percali (1986) 42 SASR 46. The position was stated in Percali by King CJ in the following terms (at 46–47): "In these circumstances this Court, in my opinion, should adhere to the law as it has always been understood, namely, that the mental element of this crime consists in the intention to apply unlawful force, that is to say, commit an assault, but that it is not necessary for the prosecution to establish that the offender intends to occasion actual bodily harm. The test as to whether bodily harm has been occasioned by the assault is, in my view, on the established principles, entirely objective" The description of recklessness that Major Hyde recalled having given was consistent with this common law position. What was required for the prosecution to prove was that Able Seaman Angre either intentionally or recklessly applied force. An admission by Able Seaman Angre that he (deliberately, evidently) poured the concoction over the complainant's head would satisfy that element. 52 Accordingly, in respect of Charge 6, there was no operative material deficiency, either in the advice Able Seaman Angre received from his counsel, or in the explanation provided by the Judge Advocate. Able Seaman Angre's plea of guilty to Charge 6 was a genuine acknowledgement of guilt for an offence, all the elements of which he had admitted in his record of interview, given with a view to securing tactical advantages. 53 In respect of Able Seaman Angre's conviction on Charge 6, the appeal should be dismissed. Charges 1 and 2 54 In respect of Charges 1 and 2, the essence of Able Seaman Angre's complaint is that it would be a miscarriage of justice to hold him to the guilty pleas upon which he was convicted by the first Court Martial, when it was not a manifestation of a genuine consciousness of guilt, but was entered only as part of a plea bargain, in order to avoid the risk of a substantial sentence on Charge 3 (sexual intercourse without consent, which offence he also denied), one of the inducements for and benefits of which was that he would be sentenced by a DFM and not by a Court Martial, which benefit was in truth never available to him. 55 In Thompson, the Tribunal allowed an appeal by one of Able Seaman Angre's co-accused who had also pleaded guilty on the basis that he would be sentenced by a DFM. With reference (at [28]) to the judgment of Brennan, Toohey and McHugh JJ in Meissner v The Queen (1995) 184 CLR 132 (at 141–2), and other cases there mentioned, the Tribunal summarised relevant principles concerning the quashing of a conviction following a plea of guilty, including: (1) that a guilty plea may be set aside as a miscarriage of justice where it was not entered in the exercise of a free choice in the interests of the person entering the plea; (2) that the appellant bore the onus of establishing, on the balance of probabilities, that a miscarriage had occurred, and that a finding to that effect was not lightly to be made; but (3) that miscarriages had been found to have occurred in a wide range of circumstances, including where the plea was procured by "pressure and threats" or "mistake" (at [33], citing Maxwell v The Queen (1996) 184 CLR 501 at 510–11), or by inappropriate advice (at [35]–[36], referring to McLean v The Queen (2001) 121 A Crim R 484 and Wilkes v The Queen (2001) 122 A Crim R 310)—although it may readily be accepted that mere erroneous advice by defence counsel as to prospective penalty is insufficient to impugn the integrity of a plea of guilty (Saik v The Queen [2004] EWCA Crim 2936 at [58]). To that catalogue of vitiating factors can be added "improper inducement" and "misrepresentation", as mentioned by the Victorian Court of Appeal in Kumar v The Queen [2014] VSCA 102 at [16(b)], in summarising the position that fell from cases such as Meissner and Maxwell: "(a) A true admission of guilt of an offence means an admission freely made of an offence of which the accused is truly guilty. (b) An admission of guilt is not freely made and, therefore, is not a true admission of guilt if the accused's exercise of free will to make or withhold the admission is overborne or otherwise substantially compromised by factors such as fraud, duress, intimidation, improper inducement or misrepresentation. (c) Likewise, an admission of guilt, even if freely made, may not be a true admission of guilt if it results from a mistake as to the nature of the admission, including without limitation, a mistake as to the nature of the offence admitted. (d) If, however, an admission of guilt is freely made, the fact that it might have been motivated by hope or expectation of forensic, sentencing or other technical advantage will not deprive it of the quality of a true admission of guilt unless it be shown that the accused did not intend thereby to accept guilt for an offence of which he believed himself to be guilty." 56 The plea bargain appears to have arisen as a result of an initial hint by the prosecuting officer to the defending officer, following which Major Hyde asked Able Seaman Angre whether he wanted him to explore a deal with the prosecution, to which Able Seaman Angre responded, "Okay, but I'm not going to plead guilty to something I didn't do". Having been approached by Major Hyde, the prosecution then conveyed to the defending officers the terms it was prepared to accept. Those terms have been set out above (at [25]). 57 Major Hyde first confirmed that his understanding of those terms accorded with the prosecution offer, then recommended acceptance to Able Seaman Angre (essentially on the basis that it was his best chance of avoiding a custodial sentence). There is no doubt that when first presented to Able Seaman Angre (on Friday, 19 September 2014), he was told that the proposed deal included that the matter would be taken away from the court martial panel and would go to a DFM. This was one of the terms which the prosecution had proposed. There was discussion as to the likely outcome before a DFM. Able Seaman Angre acknowledged that his counsel could not say that he definitely would not go to gaol, but Major Hyde said that he thought he would be able to "stay out of gaol". 58 There is also no doubt that, in the course of the advice given to Able Seaman Angre that afternoon, reference was made to six months' imprisonment. Able Seaman Angre says he was told that six months' imprisonment was the jurisdictional maximum that could be imposed by a DFM, whereas a court martial could impose much more severe penalties. So far as we have been able to ascertain, Able Seaman Angre's version on that point was not challenged in his cross-examination in the proceedings before the Chief Judge Advocate; in any event the Tribunal was not taken to any cross-examination of him on that issue. In his cross-examination, Major Hyde maintained that he told Able Seaman Angre only that six months' imprisonment was the maximum he was likely to receive, and that this was unconnected to a DFM's jurisdictional limit, but applied regardless of whether he was sentenced by a DFM or a court martial. 59 In addition to the evidence before the Chief Judge Advocate, evidence was adduced before the Tribunal from Lieutenant Glover, who confirmed that at some stage—though he was not certain when—Able Seaman Angre was advised that a DFM had much more restricted sentencing powers than a General Court Martial, including a maximum of six months' imprisonment. This evidence of Lieutenant Glover was not challenged, the Chief of Navy not seeking to cross-examine him before us, notwithstanding a clear indication from the Tribunal that it was open to do so. Given the unchallenged evidence of Lieutenant Glover, the apparently unchallenged evidence of Able Seaman Angre on this point, the circumstance that Major Hyde's version was at least challenged, and the objective probabilities associated with the circumstances—namely: (1) that one obvious advantage of the matter going to a DFM was the reduced range of penalties available; and (2) that the six months which was undoubtedly mentioned happened to coincide with the jurisdictional maximum, would have been known to Major Hyde as the jurisdictional maximum, and would have been correct and appropriate advice—it should be accepted that Able Seaman Angre was advised that the maximum sentence available to a DFM was six months' imprisonment. 60 On the contemporaneous file notes made by Lieutenant Glover, there does not appear to have been any reference on 19 September 2014 to any possibility that the matter would not go to a DFM if the plea bargain were accepted. Able Seaman Angre gave instructions to "do the deal". He was in great fear of going to gaol (his mother was a corrections officer), and he was concerned that the endeavours of counsel for other accused to exonerate them were having the effect of implicating him. Major Hyde told him to think about it over the weekend, but in response to Major Hyde's assessment that there was a risk of the offer being withdrawn, Able Seaman Angre gave formal instructions to accept it on 20 September 2014. 61 Before court on Monday, 22 September 2014 (Day 6), the prosecution provided the defence with a revised proposed statement of agreed facts, which had been formulated over the weekend. The matter was mentioned before the Judge Advocate at 0935, and some discussion ensued, in the course of which the Judge Advocate adverted to it being a matter for the Director of Military Prosecutions ("DMP") whether the task of sentencing would be referred to a DFM or another court martial. At 0953 the matter was stood down, apparently to enable the prosecution to finalise the agreed facts with another of the accused, and to enable Major Hyde to discuss and obtain instructions on the proposed statement of agreed facts. 62 At 1040, Major Hyde gave Able Seaman Angre the final version of the proposed statement of agreed facts. Able Seaman Angre read it, said he understood it, and said that it did not reflect his recollection of things. At this point, Major Hyde mentioned that the matter would "probably" go to a DFM, but this was not guaranteed; it "might be that [it would] go to a different panel". He again said that there was a very good chance that there would be no custodial sentence, though he could not guarantee it. Able Seaman Angre signed the statement of agreed facts. 63 Either Major Hyde, or Able Seaman Angre under Major Hyde's direction (this was the subject of a dispute, which it is unnecessary to resolve), then handwrote the endorsement set out above (at [32]) on the defence copy of the statement. This copy was not provided to the prosecution or the Judge Advocate. 64 Able Seaman Angre signed the endorsement, at his counsel's request. It is clear that the endorsement was not part of the bargain between the parties—which remained that the matter would be referred to a DFM for sentence—but was for the protection of defence counsel. The main thrust of the endorsement was directed to the possibility of a custodial sentence, rather than to the possibility of the matter not going to a DFM; this is confirmed by Lieutenant Glover's contemporaneous note: "JH asked RA to make a note on our copy of statement of agreed facts to the effect that no certainty that will not get a custodial sentence when sentenced by another panel, this panel or a DFM & explained to him that the prospects of being dismissed from RAN are high following sentencing." 65 The proceedings resumed before the Judge Advocate at 1106, when it was indicated that Able Seaman Angre intended to plead guilty to Charges 1 and 2. In the course of discussion of the pleas and the effect of DFDA s 125, Major Hyde confirmed his agreement with counsel for Able Seaman Thompson, who, as already noted, said: "My reading of section 125(3) is that you would discharge the panel and then it would be a matter for DMP as to whether another panel – a convening order for another panel would be sought. And certainly that is significant to both ABMT Angre and ABMT Thompson, because we have been working on the understanding that if this panel is discharged, which we think it must be in relation to our clients, that DMP will seek to bring these charges before a Defence Force Magistrate by a subsequent proceeding, not another panel. I simply wanted to put that as our understanding as to how it would proceed." 66 After yet further discussion, the following transpired: "DEFENDING OFFICER HYDE: Just for the record, our understanding is that if you were minded to dissolve this court - - - JUDGE ADVOCATE: I've got no more control over what happens, it's a matter for the DMP. DEFENDING OFFICER HYDE: That's right. But our understanding is that it will go back to the DMP and that he will exercise his discretion to have the matter put before a DFM for sentencing." 67 Three important matters emerge. 68 The first is that Able Seaman Angre never entertained a genuine consciousness of guilt in respect of Charges 1 and 2. At all relevant times (in his record of interview, and in discussions with his counsel, even in settling the agreed statement of facts), he protested his innocence of those allegations. He pleaded guilty to them only as part of a plea bargain, in order to avoid the risk of a substantial sentence on Charge 3 (sexual assault without consent)—which offence he also denied. 69 The second is that the prospect of referral of the proceedings to a DFM for sentencing was a material element of the plea bargain. This is confirmed by the continued reference to a referral to a DFM in the course of the proceedings on 22 September 2014. Objectively, the attractions were: (1) the limited sentencing powers of a DFM; and (2) the appearance that a legally experienced DFM would be less likely than a court martial panel of general service officers to be influenced against Able Seaman Angre by statements of policy, such as that made by the Vice Chief of the Defence Force (and former Chief of Navy) on the eve of the first Court Martial, as to the seriousness with which conduct of the type alleged was to be treated. In addition, for Able Seaman Angre, who was concerned that the panel was being adversely influenced against him by alleged prosecutorial misconduct (including the prosecutor's opening) and matters raised in defence of other accused, there was attraction in removing the matter from the particular panel in question. 70 That Able Seaman Angre, after the plea and while the trial proceeded against two co-accused, confirmed to his counsel that he was happy with the decision he had made, does not tell against this at all. It was only when his expectation of referral to a DFM was falsified that he had second thoughts, sought a second opinion, and formed an intention to seek to withdraw his plea. That is not only not inconsistent with, but positively supportive of, the view that referral to a DFM for sentencing was a material contributing factor to his decision to plead guilty. 71 Both subjectively and objectively, therefore, the proposal that the matter would be referred to a DFM for sentence was a material contributing factor to Able Seaman Angre's plea. The proposed referral to a DFM was by no means the only attraction for Able Seaman Angre in the proposed bargain. But in terms of relative importance, while it may well have been outweighed by the desire to avoid the risk of a sentence on the more serious charges, it was nonetheless an essential element of the bargain, and a feature that was intended to make the bargain attractive to Able Seaman Angre. It is properly to be inferred that the prospect of having the matter referred to a DFM for sentence was intended to operate as an inducement to plead guilty; at least it was calculated to do so. It was one of the factors which together induced him to plead guilty to an offence when he had no genuine consciousness of guilt of that offence. And it was one of the benefits for which he bargained in the agreement which produced his plea of guilty. 72 The third matter is that, notwithstanding the "endorsement" on the defence copy of the statement, the prospect of the matter not going to a DFM for sentencing was then seen as merely hypothetical. It was raised with Able Seaman Angre at the last minute, as a result of the Judge Advocate's indication that it was not in her power, but in the power of the DMP, to determine the sentencing forum. But the prosecution represented the office—the DMP—in whom any relevant discretion was believed to reside, and it was the prosecution, on the DMP's instructions, who had proposed the terms of the plea bargain, including referral to a DFM. No-one—prosecution, defence or Judge Advocate—appreciated or suggested that referral to a DFM was in fact a legal impossibility—and thus that it was impossible that Able Seaman Angre would receive one of the benefits he was given to expect would flow from his plea. 73 In this case, it was at least represented to Able Seaman Angre that it was possible for the matter to be referred to a DFM for sentencing, and indeed that in all probability that is what would happen. That was a misrepresentation, albeit an innocent one. Alternatively, a fundamental assumption on which the plea was based—one to which the prosecution had materially contributed—was falsified. Put differently, a benefit which was held out to Able Seaman Angre in return for his plea was illusory. In each of those ways, his plea was not, in the relevant sense, freely made. 74 The Chief of Navy submitted that this case was to be distinguished from Thompson, for five reasons. First, it was said that unlike the appellant in Thompson, Able Seaman Angre instructed his defending officer to approach the prosecution to explore the possibility of a plea deal. That is an oversimplification of the course of events, which has been described above. The most important fact in this respect is that it was the prosecution who proposed the terms of the bargain, including referral to a DFM. Secondly, great emphasis was placed on the handwritten endorsement signed by Able Seaman Angre on the defence copy of the statement of agreed facts. However, as has been explained, it was a last-minute inclusion, for the protection of defence counsel, and formed no part of the inter-partes bargain; moreover, its focus was the possibility of some custodial sentence, rather than the sentencing forum, and the possibility of the forum being other than a DFM was then hypothetical rather than real. 75 Thirdly, it was argued that, unlike Able Seaman Thompson, Able Seaman Angre had been told and understood that there was a prospect of his being sentenced by another panel and not by a DFM, and therefore Able Seaman Angre was not induced by the expectation of being sentenced by a DFM rather than a court martial. That submission should not be accepted. True it is that Able Seaman Angre accepted that he had been told by Major Hyde that there was no guarantee of being sentenced by a DFM, and also that he knew that there was a possibility of his being sentenced by a General Court Martial. However, before the Chief Judge Advocate, it was put to Able Seaman Angre in cross-examination, and he accepted, that it remained his understanding that there was a "high possibility" of being sentenced by a DFM. Inducement by a "high possibility" of sentencing by a DFM, rather than a perceived certainty thereof, is not a material point of distinction from Thompson, at least where in reality there was as a matter of law no such possibility. 76 If the submission was that Able Seaman Angre was not induced materially or at all by the prospect of sentencing by a DFM, that submission would be contrary to Able Seaman Angre's evidence tendered in this Tribunal, which went directly to that point. That evidence, in [4] of Able Seaman Angre's affidavit of 5 June 2015, was not the subject of cross-examination in this Tribunal. It was, however, tested in cross-examination before the Chief Judge Advocate, where he accepted that he wanted to avoid jail time "at all costs", and that the avoidance of jail time by entry into a plea proposal (thereby avoiding the more serious charge) was a "contributing factor" in his decision to plead guilty to Charges 1 and 2, and also gave this evidence: "The reason you wanted to get into this plea deal was that you wanted to avoid a possibility that you could go to jail for a lengthy period of time. Correct? Yes?---Yes, just add onto - - - Okay?---Yes. I was worried about going to jail for something I did not do, sir, I was petrified of it, yes, sir." It is fair to say that, in cross-examination, Able Seaman Angre departed to at least some degree from the proposition in his affidavit that sentencing by a DMP was "the most significant and compelling factor" in inducing him to change his pleas. However, he also maintained (and was not seriously challenged on this issue) that sentencing by a DFM was a contributing and indeed a major consideration in making his decision. Moreover, as has already been observed, the proposal that he be sentenced by a DFM was calculated if not intended to induce his guilty plea. 77 Fourthly, and relatedly, it was put that Able Seaman Angre was desperate to avoid imprisonment on the more serious charge, and that that was the motivating factor for his plea. No doubt it was a significant and possibly dominant motivating factor, but it was not the only one. It suffices that the proposal that he would be sentenced by a DFM was a contributing factor. Further and logically, such desperation only reinforced the attractiveness of the prospect of sentencing by a DFM. Finally, it was said that no representations were made to Able Seaman Angre by his defending officer as to the limited sentencing powers of a DFM. But for reasons explained above, it should be concluded that such a representation was made. 78 It is of significance that this was not a unilateral plea, but an induced plea, founded on a bilateral bargain. That such a bargain may not give rise to legally enforceable contractual rights does not detract from the significance of its character for the purpose of judging whether it is unjust to hold Able Seaman Angre to his plea. There is a radical difference between incorrect advice by defence counsel as to likely penalty on the one hand and, on the other, falsification of an agreed term of a plea bargain, the effect of which is to deprive the accused of a material benefit which the bargain was intended to provide. And that is all the more so where, as here, the plea was not a manifestation of a genuine consciousness of guilt, but was entered only because of the collateral benefits which were not only expected, but proposed by the prosecution. Able Seaman Angre surrendered his valuable and intrinsic right to put the prosecution to strict proof, in a case where he did not entertain a genuine consciousness of guilt, in return for a number of benefits. Yet one of the benefits for which he bargained and which induced his plea was in truth never available to him and would be denied him. To hold Able Seaman Angre to a plea of guilty entered on that basis, when he had no genuine consciousness of guilt, would be a grave miscarriage of justice. 79 Ground (a) in the notice of appeal is therefore established, and the appeal succeeds in respect of the convictions on Charges 1 and 2. CONCLUSION 80 It was not in dispute that, in the event that the appeal were to succeed, the proper order was one pursuant to DFDAA s 24 for a new trial. Whether, having regard to the outcome of the trial that proceeded against two of the co-accused, the surviving plea of guilty in respect of Charge 6, and the protracted proceedings in which Able Seaman Angre has been entwined since 2014—including the original Court Martial, the proceedings before the Chief Judge Advocate (which occupied 11 days), the interlocutory applications to this Tribunal, the Chief of Navy's appeal to the Full Federal Court, and ultimately the hearing of this appeal (over four days)—his involvement as an Able Seaman five years ago in the events of the so-called "Last Night at Sea" ceremony in 2011 is such as to justify his being put on trial again, is a matter for the discretion of the DMP. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey (President), Logan (Deputy President) and Brereton (Member). Associate: Dated: 27 March 2017