Hembury v Chief of the General Staff M102/1997 [1998] HCATrans 122 (22 April 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M102 of 1997

B e t w e e n -

WAYNE RONALD HEMBURY

Appellant

and

CHIEF OF THE GENERAL STAFF

Respondent

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 22 APRIL 1998, AT 10.19 AM

Copyright in the High Court of Australia

MR P.A. WILLEE, QC: May it please the Court, I appear for the appellant. (instructed by Bullards, Solicitors)

MR R.R.S. TRACEY, QC: If the Court pleases, I appear with my learned friend, MR F.B. HEALY, for the respondent. (instructed by the Australian Government Solicitor)

McHUGH J: Yes, Mr Willee.

MR WILLEE: Your Honour, the appellant's argument in this matter is most succinctly and comprehensively synthesised in the judgment of the Chief Justice in the court below. Certainly neither the elegance or the effectiveness of that argument is capable of improvement by me. The matter comes before the Court because the court martial in question dealt with Rule 33, which is in the following terms and it can be seen in the appeal book at page 289:

On any question to be determined by the court martial, the members of the court martial shall vote orally, in order of seniority commencing with the junior in rank.

What was said to the court martial by the judge advocate was:

When you come to voting on the questions of guilt, you should vote, orally, in order of seniority. Voting is by majority vote. It does not have to be unanimous.

KIRBY J: There is no contest, is there, that that was a misdirection, a serious misdirection?

MR WILLEE: None whatsoever, as I understand it, your Honour.

KIRBY J: Do you contend, I am not quite clear, that you thereby lost a real chance of acquittal, or is your contention the alternative, that it goes to the root of the proceedings?

MR WILLEE: Our principal contention is the second matter that your Honour Justice Kirby put to me, but - - -

KIRBY J: But is it the principle or only contention? I think the respondent says that it is your only contention.

MR WILLEE: We do not agree with the respondent on that issue. We say that in circumstances where it is not possible to determine whether we were deprived of a real chance of an acquittal, it should be taken that if the respondent cannot show that we were not, then we were.

KIRBY J: You rely on both heads then.

MR WILLEE: Yes, your Honour.

KIRBY J: There is a construction point. Are you advancing that? That is a little uncertain in my mind.

MR WILLEE: You mean the construction point in relation to section 23(1)(c)?

KIRBY J: Yes.

MR WILLEE: We seek to advance that but the respondent says that we are not entitled to do so because of what occurred on the hearing for special leave. The respondent is equivocal about that, but I am in a position to hand up to your Honours - - -

KIRBY J: I am just trying to clarify in my mind at the outset what the issues are, whether you are advancing that argument or not.

MR WILLEE: We seek to advance that argument, yes, your Honour.

KIRBY J: Anyway, you take your own course, and in due course, no doubt, you will want to hand up something about it.

MR WILLEE: Thank you, your Honour. Despite that enunciation of the rule by the judge advocate and an argument that that did not necessarily transgress Rule 33, as his Honour Justice Lockhart says at page 290:

Nevertheless the Tribunal said it was clear that:

`the most obvious meaning of the direction in fact given by the Judge Advocate was that on the question of guilt the members should vote in order from the president down to the most junior member, and what was said was a clear misdirection.'

That was also picked up by his Honour Justice Sheppard in the same terms, that that put the most favourable light upon the positions so far as the appellant was concerned.

KIRBY J: There were correct directions at the beginning and at the end of the instruction, were there not? There were other directions given which indicated that the correct procedure was to be followed - junior to senior.

MR WILLEE: But that was only on the issue of sentence, your Honour. The two processes in a court martial are entirely separate. The first process being the determination of guilt or innocence and if that is found against the accused, then there is a further direction given to the court martial on the way in which it may deal with the prisoner on sentence and it was only on sentence that that direction was given correctly. Now the respondent, as I will come to later on, relies on that as an indication that since no member of the court martial board raised the change in the form of the direction, then it can be taken that the original utterance had no effect upon them.

Your Honour, it is submitted, with the greatest of respect, that one of the reasons that the contrary argument that I have referred to put by Chief Justice Black did not prevail in the court below was what may be a lack of understanding of the true meaning and nature of the rule by those of the majority who did attempt to express views about it, namely, Justices Sheppard and Lockhart.

If such an analysis is correct, it is reflected in the passage that appears in the appeal book at page 291 at about line 10 where his Honour said:

The purpose of the rule, as the Tribunal correctly observed, was to prevent younger members of courts martial being influenced by the opinions of their seniors. In earlier days seniority, rank and age tended to march together. This tendency is not so marked to-day. Whether or not the rule serves any purpose in the latter part of the 20th century is plainly open to question.

In fact, the Tribunal got it right when it said:

No doubt the policy behind Rule 33 is to avoid a situation in which junior members of a court martial are overborne by their superior officer to arrive at a particular verdict, notwithstanding their own conscientious contrary view. It is difficult to imagine any other reason for its inclusion. It must be presumed here that the voting took place in the manner directed by the Judge Advocate and contrary to the rule. That was a material irregularity in the course of the proceedings within the meaning of s23(1)(c) of the Defence Force Discipline Act.

And that appears in the appeal book at page 250 about line 22, the distinction being between whether the rule is aimed at age or whether it is aimed at seniority and rank, and it is quite clear that the rule is aimed at seniority and rank, regardless of the age of the officers concerned.

HAYNE J: Of what relevance is the validity or otherwise of the philosophy that underlies this rule? Parliament has said that this is the way the trial will be conducted. The choice has been made. The choice may be made for good or ill. What does it matter whether the choice is thought to be illfounded or insufficiently founded?

MR WILLEE: your Honour, with the greatest of respect, I could not agree with your Honour more, if your Honour is expressing the view that it does not. Unfortunately, your Honour, the utterances of this Court in cases like Glennon and Wilde suggest that even where a matter is of this nature, whether or not it can still be construed as a fundamental error going to the root of proceedings, still has to be determined with the circumstances of the occurrence. Further - - -

GUMMOW J: A lot of those cases are about judicial proceedings? This is not a judicial proceeding - - -

MR WILLEE: No, it is not, your Honour.

GUMMOW J: - - - it is outside a judicial proceeding. It may be that if formality is specified, it is specified.

MR WILLEE: Your Honour, we would contend that that is so.

GUMMOW J: These powers are not in the hands of Judges to give direction.

MR WILLEE: I am sorry, I missed the significance of your Honour's last remark.

GUMMOW J: We are not talking about Judges giving directions. They have not been entrusted with any function by the Parliament; these people are outside that.

MR WILLEE: They are, your Honour, but they are still required to act judicially, of course.

GUMMOW J: Probably more than that. They have got to observe the letter, I would have thought.

MR WILLEE: Yes, your Honour.

KIRBY J: Who make up - or who made up, in this case, the trial tribunal?

MR WILLEE: If you include the judge advocate, your Honour, it was made up by a then permanent serving officer as the judge advocate, who was a Colonel Young, and who held the position at that time, I believe, of judge advocate administrator. He is a person - - -

KIRBY J: He is a person with legal qualifications, is he?

MR WILLEE: Yes, your Honour. The court itself was made up of a Lieutenant Colonel, a Major and a Captain.

KIRBY J: So these are lay people and that is the scheme, is it?

MR WILLEE: Yes, your Honour. It is possible that one of those persons might have acquired legal - - -

KIRBY J: But that would be accidental.

MR WILLEE: That would be quite accidental and not a part of the process.

KIRBY J: So the scheme has to work in a court that will ordinarily, or may often, comprise lay people?

MR WILLEE: Well almost certainly comprise lay people.

KIRBY J: And that lay people working under the very special disciplined regime of a military force.

MR WILLEE: Precisely, your Honour, and working in circumstances where, because it is a disciplined force and they are part of it, they are much more strictured than the ordinary civilian situation in terms of whose orders they obey.

KIRBY J: I think the passage you read us suggests that even in military circles, and I think Chief Justice Black might have mentioned this, there is less rigidity of discipline by rank than in the past, but I suppose it is still a disciplined service.

MR WILLEE: Your Honour, that passage was a suggestion that that is the case. As a serving officer, I would dispute that. The rigidity may have gone.

KIRBY J: You are giving us a little bit of evidence, are you?

MR WILLEE: You will forgive me, your Honour, but it is no more than the court below gave in its judgment and suffers from the same defect. But there is no evidence as to what the state of the rigidity is but there is plenty of evidence in terms of the Acts and regulations and what occurs about the subjection of military forces to discipline.

KIRBY J: To address ourselves to the question Justice Hayne asked you, are there are other procedural rules that are laid down or contemplated by the Act or the regulations which would clearly be, or not be, cases that go to the root of the proceedings? Has there been any analysis of the regulations with that in mind, because generally there are rules and rules and some are fundamental and some are not.

MR WILLEE: Your Honour, there has been no analysis as such except by the learned Chief Justice Black who referred, I think, to a number of rules in the course of discussing the issue. I will just pick that up, but certainly the respondent seeks to make a distinction between the rules that are set out in the Defence Force Discipline Rules - I think 31 - they are all under Part VII of the Defence Force Discipline Rules. Rule 31 - Functions of the President; Rule 32 - Functions of the judge advocate; Rule 33 - Manner of voting of court martial; Rule 34 - Objections to members of court martial and Rule 35 - Swearing of court martial. Now, no doubt we will hear more of this from the respondent but he appears to be suggesting - - -

KIRBY J: What if - take up 35 for example. What if the swearing in took place in the absence of the accused person? Would you be coming here and saying that goes to the root of the procedures?

MR WILLEE: Yes, your Honour, and I would - - -

KIRBY J: So all of this is absolutely mandatory, all of these rules, and the slightest infraction of them undermines all the procedure with the whole course of all those issues that have been debated in the trial?

MR WILLEE: Your Honour, I cannot contend that. That is far too wide, with the greatest of respect, but certainly in the circumstance where the accused was not present, how could he be sure that the court was properly constituted, would he ever have a misgiving that - - -

KIRBY J: Well, you may not have been present at my swearing in, but you, sort of, just accept that I was sworn in.

MR WILLEE: Your Honour, it would be wrong of me to give evidence from the Bar table about that, but I certainly would not dare to gainsay it.

KIRBY J: I have got my commission upstairs in case you - - -

MR WILLEE: Thank you, your Honour, but, please, I have no desire to inconvenience your Honour, although I would love to see it.

HAYNE J: I wonder whether a contrast may not be drawn, say, with Rule 31(c) where if, for example, in the course of running, one of the junior members of the court martial were to say, "Look, I would like to have some advice from the judge advocate about a question of law." The president chimes in after the event and says, "Yeah, oh, well, yes, I would like that as well", one might be hard pressed to say that that was a departure from procedure that went to the root of the trial.

MR WILLEE: There is some difficulty arguing that, your Honour. To return to the proposition that your Honour Justice Kirby put to me, we would submit that, in effect, a better example would be, as has occurred, where somehow during the rigidity of this procedure, the solemnity of the occasion has driven out of the mind of the judge advocate the requirement to swear the members in and it does not happen or one member does not get sworn in. Certainly in those circumstances we would contend that that is an error that goes to the root of proceedings.

KIRBY J: So that maybe the answer to Justice Hayne's question is when you are trying to differentiate those rules which are fundamental and those rules which are not, you look to what they are intended to do in the context of a court martial of a disciplined force with structure and hierarchy and where there is a tradition long established and unquestioned of obeying superior orders or taking a lead from the top.

MR WILLEE: And what effect that might have on the result, yes, your Honour. There are some that are unwritten which were extremely rigid but which have gone by the board. For example, the practice in naval courts martial of indicating the result by placing the accused's sword so that the haft points towards him from the position in front of the president's table if he has been acquitted, but the point points toward him if he is to be convicted before the finding is announced.

KIRBY J: That has been dropped, has it?

MR WILLEE: Now, that was always terribly useful for counsel because you would know what you had to do as soon as you came into court, but it was said to be barbaric in terms of modern day procedure, so it went by the board and it is no longer done in naval courts martial, but there was never a written rule that that should be part of the procedure but that nevertheless there are many of these practices and procedures which are very much part of the ceremonial of the occasion but which you could not contend affected in any way the process or the result. It would certainly affect the appearance of the way matters are conducted.

McHUGH J: It is difficult to think that the provisions of 31 to 35 are not mandatory. Even Rule 35 seems to me to serve a very important purpose, mainly that the accused, having taken his or her objections to the membership of the court martial, then knows that those persons who are going to try him has taken an oath, the relevant oath. So, it has to be done in the accused person's presence.

MR WILLEE: Precisely, your Honour, with respect. They are all of very grave importance, both to the process and to the appearance, which is submitted is just as important as the process.

KIRBY J: The US Supreme Court, and I believe the Privy Council, proceeded in a similar way, junior to senior, but what if you got a Justice Scalia, or somebody who is very enthusiastic, and he chimes in, that would not disqualify or undermine the validity. I suppose the difference is that there that is simply a tradition and it is not written in law.

MR WILLEE: That is the obvious difference, your Honour. I know of no particular rules that govern that process, either in the courts your Honour has mentioned or in the New York State Court of Appeal in relation to the passage that I exhibited in the submissions from the book of the former Chief Judge of that court, who, in case it has escaped your Honours' attention, wrote the book after he had been convicted of some form of corruption and finished up in prison. Nevertheless, we have, and can produce, a letter from the registrar of that court setting out the fact that that is the way the process is now carried out and - - -

KIRBY J: He was not convicted of corruption, I think, he was convicted - if it is the recent case - he was convicted of a sexual relationship of some kind with a girlfriend. It had nothing to do with corruption.

MR WILLEE: Yes, I think in those circumstances in America, there are some quarters who would say that is a form of corruption, but I take your Honour's point.

McHUGH J: I think it was threats, was it not. He made threats to her.

KIRBY J: Threats, yes, he sent letters and so on. Apparently he was a very able judge.

MR WILLEE: Whatever the situation was, I did not want to leave the Court misinformed with the suggestion that we were quoting from somebody with an unblemished character, because that is clearly not the case.

While I am dealing with those matters that are exhibited to the appellant's arguments, may I also mention that I am reliably informed by my learned friend's junior that, in fact, the legislation that I exhibited there on the situation in relation to the military forces in England, has now been superseded by legislation which I am not able to specify, but which is apparently now available on the Internet, but it is by way of court martial rules for the Royal Navy, a separate set of court martial rules for the Army in 1977, being Rule 64 and Rule 70 respectively, where the wording now used is that the voting shall be in reverse order of seniority. So it simply reinforces the view that the process should continue.

GUMMOW J: What order do you seek here, a new trial or acquittal?

MR WILLEE: Acquittal, your Honour.

McHUGH J: Well, Chief Justice Black wanted to hear argument on that.

MR WILLEE: Well, that is so, your Honour, but - - -

KIRBY J: Why should you get acquittal if this is a misdirection? Normally a misdirection is simply corrected by the appellate court and the matter is sent back for trial uncorrupted by the misdirection.

MR WILLEE: Well, your Honour, that is so, but here there is an extraordinary lapse of time between the original charge, the original trial by court martial, the process that has been undergone and on appeal - - -

KIRBY J: Yes, but one must keep an eye on proper procedures and that is, after all, what you are coming here to contend. Proper procedures are misdirection, retrial, normally, I mean, there are exceptions.

MR WILLEE: Your Honour, that I do not gainsay, I simply say that had Chief Justice Black been apprised of the situation and the fact that the appellant, for example, is no longer in the service, he would have, perhaps, seen the force of the suggestion that the matter, after all this time, is not one which is suitable for a retrial. I do not know what has happened to the other actors in the proceedings but - - -

HAYNE J: Why is not all that matter that should fall for consideration by whoever the prosecuting authorities are?

MR WILLEE: That is precisely right, your Honour, and I cannot gainsay that either, but I simply say that it is a matter for the respondent if he has any instructions about the matter, but we certainly are not going to ask this Court for a retrial. If the Court feels that is the only proper way of dealing with it, then so be it; that is that it be sent back to the Full Federal Court for argument on that matter, then so be it, but it just increases the cost and inconvenience.

GUMMOW J: Would the legislation permit a retrial of your client, he no longer being a member of the force?

MR WILLEE: That is a matter that I am currently investigating. The legislation, as I understand it, your Honour, is probably silent on the matter but it talks in terms of the period after a person has been separated from the service, that he may be tried at first instance. My recollection is that that is in the Defence Force Discipline Act and that that is a period of some six months but I would not want to be on my oath about that - I would need to check that.

KIRBY J: It might be a constitutional question lurking in the background.

MR WILLEE: It might well be, yes, your Honour. But certainly those are the sorts of considerations that might weigh on the issue of what happens to it.

KIRBY J: We have six Judges who thought there was no miscarriage here. They considered the issue, three of them in the tribunal and dismissed the matter rather peremptorily, really. They thought it was, as I read their reasons, just unarguable. It was just a technical slip, no real miscarriage, that you had to establish the two.

MR WILLEE: Well, your Honour, that is the argument, your Honour. But it would be our submission that all those judges proceeded from a position of what amounts to no more than speculation and without any indication that they had turned their minds to the fundamental question of the mandatoriness of the regulation as it was raised immediately in this Court.

HAYNE J: May it not also elide two questions that may need to be kept separate. If the misdirection is a misdirection about the law to be applied in determining the guilt or innocence of the prisoner, it may be desirable to speculate or consider what effect that direction may have had on the likely outcome of the trial. Here, the complaint made is that the direction given concerned the procedures of the trial, such that the accused did not have the trial to which by law he was entitled. If that is the analysis, and I emphasise if, there would seem to be much to be said for the view that predicting the outcome of any subsequent trial is an irrelevant consideration.

MR WILLEE: Your Honour, with the greatest of respect, we would adopt that, but the difficulty is that the words in Wilde and Glennon seem to suggest that even where the matter is one that relates to procedure there is still room for looking to the circumstances surrounding the occurrence to determine whether in fact it is of such substance that it goes to the root of proceedings. Now - - -

HAYNE J: Well leave aside the expression "the root of proceedings" at the moment, the passage I have in mind is in Wilde 164 CLR, particularly at 373, and the passage in the joint judgment where their Honours say that:

The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements.....If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage.

The substantial miscarriage being constituted by the failure of the accused, or the failure to give the accused the trial to which he was entitled by law, regardless of whether conviction was inevitable or no.

MR WILLEE: Your Honour, that was contended right through the proceedings. It was simply overborne on each occasion on the basis that the further words that the court used enable it to still look at the matters I have referred to on the basis that there is no rigid formula to determine what constitutes such a radical or fundamental error.

HAYNE J: I understand that.

MR WILLEE: In answer to the question about the six judges, we would simply submit that that is just not open; that your Honour's proposition that the matter ends in circumstances of a procedural nature of the importance of this one at that point.

HAYNE J: Yes.

MR WILLEE: And that that is the way the two judgments ought to be interpreted. Even later, when the matter was revisited by his Honour Justice Kirby in KBT, the same statements are referred to and are again put forward, but there is no clear statement that makes the distinction that your Honour Justice Hayne puts to me, that I can see. Certainly, we would contend that that should be the position and that that should be the end of it. If that finds favour with this Court, then it needs to be made clear so that both in the civil arena and in the military arena there can be no doubt about the matter.

We would submit further that the rules relating to fundamental breach have the advantage of preventing it being within the power of the Court reviewing the result to determine the issue by assessment of the value or relevance of the rule of procedure to modern military or civil jurisprudence, or its effect, unless the effect can be demonstrated by what did or did not happen in the result. It is our submission that there is absolutely no way of determining what happened here.

KIRBY J: It is very helpful to look at Wilde and Glennon and all the other cases, because it is a constant problem that is faced in criminal appeals; but in the end, you have got to go to go back to the particular language of the statute, and the statute here is a little different from criminal appeal statutes.

MR WILLEE: Quite different, your Honour.

KIRBY J: And (b) of 23(1) seems to say, "Well, there are going to be mistakes and slips on question of law, but unless there is also a substantial miscarriage of justice that has occurred, you do not allow the appeal." That is a recognition, I suppose, of the imperfection of all human endeavour. There has been a change here between the old form of the Act and the current form, and I think we have to keep our eye on the statute. It does seem to require the two - it seems to acknowledge that there will be wrong decisions on questions of law, mixed fact and law, in the course of these courts martial, but that that will not be enough; you have also got to have "and that a substantial miscarriage of justice has occurred."

MR WILLEE: Unless those words are merely descriptive.

KIRBY J: They are not needed if you take the strict view that a wrong decision on a question of law is, or at least in some cases is, of itself a miscarriage of justice.

MR WILLEE: Yes, your Honour.

KIRBY J: You do not need the second phrase.

MR WILLEE: You do not, your Honour, but does that mean that the second phrase puts an appellant who cannot, either in a civil or a military proceeding, determine, and is quite unable to show that there has been a miscarriage, out of court? That cannot be what was intended and it cannot be what was intended by this Court, with respect, either in Wilde or Glennon but the protection, of course, was with the proviso cases, the onus being on the prosecution to show that there had not been a miscarriage in these circumstances.

Of course, the prosecution has the same problem as the accused. It cannot show that in these circumstances because it cannot show what happened behind closed doors and the appearance of regularity, in our respectful submission, is no guarantee of that regularity. That is a matter which is clearly addressed by such cases as Reg v Smart which I have - I am not sure that I did refer to it but certainly there is a passage there which demonstrates that even where, on a huge presentment, the jury appeared to be doing the right thing, the court refused to accept that - it is the passage that appears at page 289 - that that appearance of regularity could, in fact, be taken as regularity.

KIRBY J: The six judges, or some of them, seem to have been affected by the fact that there is an element of artificiality in saying that they are out for one and a half hours or one and three quarter hours, they are talking constantly about the case and that because a direction was not given as to the way when they come to the crunch they formally go through the procedure of the voting, that by that stage, they would have known it is powerful - it is a powerful inference that they would have known what each was thinking and that it is a little artificial, especially in Australia, to say at that stage if only they had had this direction; if only they had been told they had got to do it by order of seniority.

MR WILLEE: Your Honour, we submit two things about that proposition. First of all, it is again speculation to suggest that that is the situation. Secondly, knowledge or suspected knowledge of the views of one's superior is not an end of the matter. The rule is designed to enable junior officers, even if they think they know what their superior officer wants to be the result, to at least say so, untrammelled by what his ostensible view is. As Chief Justice Black points out, in this case it is possible, and it would be with a five man court martial possible, for the junior officers to vote and actually nullify the vote of a superior officer.

KIRBY J: Yes, but if you look at the actual regulation, it is not that they shall express their opinions upon retiring in order of seniority, it is vote. The vote here takes place at the end of one and three quarter hours.

MR WILLEE: Yes, your Honour, it does, but whether or not - - -

McHUGH J: That is, itself, a matter of speculation. The jury may have voted on the convictions very early, they may have voted late, there are all sorts of - - -

MR WILLEE: That is precisely right, with respect, your Honour, and who knows whether, as a matter of speculation, the court martial board did not march into its retiring room and the president did not say, "We know what should happen here. We will now vote", and then they spent the rest of the one and a half hours sorting out exactly what the rationale for the vote should have been. It is just idle speculation. I was chided in one of the Federal Court judgments for speculating in that way. I was simply attempting to point out that the permutations of what might have happened behind those closed doors are immeasurable. There are so many things that could happen. It is because so many things could happen that are adverse to the proper process of a fair decision making in the procedure, that the rule exists. Nobody contends that any rule can ensure perfectly that it gets the just and fair result, but it is no answer to say that because the rule can be circumvented by craft or otherwise, that it should be ignored.

McHUGH J: But the argument that it can be circumvented by craft or otherwise seems to overlook, as Chief Justice Black pointed out, the subtle effects of the procedure. If you start with the president voting first, then the next senior member coming to the opposite conclusion, the junior member quite conscientiously just might be on that edge.

MR WILLEE: On the cusp.

McHUGH J: And he or she goes along with the senior person's vote. It is perfectly natural for anybody, judges included, to pay great weight to those who are more senior to them. You do not have to have much experience in the law to understand that.

MR WILLEE: No, your Honour.

KIRBY J: I do not know if Justice McHugh is giving us a hint in this case.

McHUGH J: Perhaps I am trying to marshal the numbers.

MR WILLEE: May I not answer that, your Honour?

CALLINAN J: It says little for the advantages of appealing to me.

MR WILLEE: Your Honour, I am not sure the tape is running.

KIRBY J: I mean, all of this is true, but Parliament has recognised that human justice, whether in the military sphere or the civilian sphere, is imperfect, that mistakes happen, that slips occur and I just have a feeling that against the background of Parliament's provisions you have got to establish to the tribunal two things, that a mistake or procedural material irregularity has occurred plus the substantial miscarriage of justice, a substantial miscarriage of justice, and here we have a case that has gone before the court martial, the tribunal, the Full Federal Court of five judges and six judges have said, "All right, it was a slip" and that is the very thing that Parliament has contemplated, but substantial miscarriage of justice?

He has been warned. They have been warned not to take into account extraneous things. They are given a correct direction on sentence. I am just testing the proposition. We have got to give meaning to what Parliament has said, acknowledging that human justice is bound to fallibility.

MR WILLEE: Your Honour, the only way I can deal with that is by looking at the actual words and submitting to your Honours that, in fact, there is no real change in the language of the two sections, the earlier one and the amended one, such that would lead to the conclusion that Parliament intended to remove the protection that was there under the old section. The section as it was uses the expression "the Tribunal considers".

KIRBY J: Where do we find the old section?

MR WILLEE: Your Honour, they are conveniently set out - - -

McHUGH J: They are set out at page 11 of your submissions, I think, are they not?

MR WILLEE: I think they may be, your Honour, but they are also set out in the appeal book.

KIRBY J: I have it here now.

MR WILLEE: Now, in the one case it is "the Tribunal considers" under the old form. Under the new form it is "it appears to the Tribunal". Now, it is possible to construe those two phrases quite differently as, in the first place, one in which the tribunal is the active person who has to come to the decision in terms of what is available to it to look at to make a decision and the second phrase really requires it to be made to appear to the tribunal in some form, but, in our submission, really, that apparent difference in meaning is really not there at all.

The classic, or somewhat classic, setting out of the proviso type expression in the old phrase is:

Nonwithstanding 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.

KIRBY J: There is a slight difference, the one is under the old Courts Martial Appeals Act, you get a prima facie right, but it can be taken away from you, but here, under the new Act, you do not get your leg in the door unless you show the two elements. You have to show, first, that there is the material irregularity or error of law, and that there is a substantial miscarriage of justice. The qualification is twofold.

MR WILLEE: Well, your Honour, I hear what your Honour says and I cannot gainsay that that is not one of the possible interpretations but if you look at the dictionary definitions of "material", the relevant ones in the Oxford English Dictionary appear at page 465 of volume 9, it is "of serious or substantial import; of such consequence, important; applied to evidence or facts which are of such significance as to be likely to influence the determination of a cause; to alter the character of an instrument". In the Macquarie Dictionary it is "the substance or substances of which a thing is made or composed; any constituent element of a thing". Now, if that is not the same definition of "fundamental", as "a foundation or base, not temporary, primary, original, the leading or primary principal rule of law or article which serves the groundwork of a system and an essential part", it is submitted that the words to which your Honour has drawn my attention as requiring a second matter to be proved are really just descriptive of the sort of - what is contemplated.

KIRBY J: I do not think that can be. It cannot be so, because the Parliament has provided the two elements. It cannot be just descriptive - they are not surplusage. Parliament has (a) deliberately changed the Act, (b) changed it from a "shall, subject to this Division, allow the appeal" to a different scheme, and (c), thirdly, it is contemplated that there will be the two elements before you get up, establishing "a material irregularity" - actually I think that softens it a bit from your point of view, and (b) the "substantial miscarriage". Because of the recognition that maybe, particularly in a court martial of lay people, advised by a qualified lawyer, that you are going to have slips, that they have to result in a substantial miscarriage of justice, otherwise, just look at this case, here we have trial, first level appeal, second level appeal with five judges, and now third level appeal with five Judges, and if you succeed, arguably, the matter goes back to be retried, simply because the judge advocate did not tell the tribunal, you have to vote, not discuss, vote, in order of seniority, and reverse order of seniority.

MR WILLEE: Yes. But, your Honour, this is not just, as your Honour put it, simply because. This is a rule that every judge advocate should have at the absolute forefront of any directions he gives and it is not just such a rule. It is a rule that it is often the common practice to be explained by judge advocates in terms of why it is so. Now, had that been done the error would have become apparent immediately.

McHUGH J: But do you contend that there is not laid down by the section cumulative conditions?

MR WILLEE: Your Honour, I do contend that, because the words are not clear enough in our submission to indicate that Parliament intended to deprive the military person of the protection that is available to the civilian person in the same situation. And it cannot have intended to shut out a person in these circumstances where the effect could not possibly be determined otherwise than by speculation, or to endorse the speculative process which can be undertaken for the purposes of the determination.

McHUGH J: Yes, I know, but you seem to be unduly troubled by the use of the words "substantial" and "miscarriage". After all, as was pointed out I think in Holford's Case, certainly in Vallins....., miscarriage of justice is a technical term and any departure from the law is a miscarriage of justice. At common law, that would entitle you to a new trial unless your opponent can point to some other fact.

MR WILLEE: Yes, your Honour.

McHUGH J: And prima facie, "substantial" here is used is in contradistinction to de minimis. If you prove, for example, that the accused was required to give evidence first, that is a material irregularity, it is a miscarriage of justice that one would have thought plainly it was a substantial miscarriage; so arguably, on one view, once you find a material irregularity, there is a miscarriage of justice and the question is whether it is so insignificant as can be said to be not a substantial miscarriage of justice.

MR WILLEE: Yes, your Honour.

GUMMOW J: And can I add to that, that must be so a fortiori here, that this man is being deprived of his liberty by an administrative not a judicial procedure.

MR WILLEE: Yes, your Honour.

GUMMOW J: That is an enormous exception to Chapter III. Prima facie, the rule is people are tried before courts. This man is not.

MR WILLEE: Well, I am content with that, your Honour. I do not propose to take that any further. Your Honours, there is nothing of any real substance more I would be parading before you other than what we have dealt with in relation to the questions that flowed between us. And I do not see any point in boring your Honours with a further recitation unless your Honours want it.

GUMMOW J: What do you say about costs? There is a provision in the - - -

MR WILLEE: We do not have to worry about costs, your Honour. We do not ask for an order.

McHUGH J: Thank you, Mr Willee.

MR WILLEE: May it please your Honour.

McHUGH J: Yes, Mr Tracey.

MR TRACEY: If the Court pleases, the matter that confronted both the tribunal and the Full Federal Court was the application of section 23(1)(c). That required the court and the tribunal to make two judgments. The first was whether a material irregularity had occurred. Both bodies so found. The issue then became whether, having regard to all the circumstances of the trial, and extraneous matters that had a bearing on the purpose and provenance of the rule, whether it could be said, in addition, that there was a substantial miscarriage of justice. It is our contention that that had not been demonstrated to the satisfaction of either the tribunal or the court, both bodies being constituted by experienced trial judges. Perhaps the most experienced of them was Justice Sheppard. We would commend to this Court - - -

KIRBY J: Justice Northrop might contest that.

GUMMOW J: How does this matter, Mr Tracey? How can we evaluate the relevant experience of judges in courts below? What an invidious process.

MR TRACEY: Your Honour - - -

McHUGH J: Sir Frederick Jordan probably never tried - I think, yes, he did try one criminal case, but he was a profound criminal lawyer, as was Sir Owen Dixon, who tried Porter - that was the only case that he probably tried.

MR TRACEY: It ought not to be inferred that in any way am I seeking to deprecate the experience of any of the other judges of the court. I had in mind merely that Justice Sheppard has sat perhaps almost as long - - -

GUMMOW J: But how is it relevant to our cognitive processes?

MR TRACEY: Because what I want to commend to this Court is the approach that his Honour took, and that appears - - -

KIRBY J: I think it is best if you just go into the approach; we all have great respect for Justice Sheppard.

McHUGH J: His reasons will persuade us, not his experience.

MR TRACEY: Yes. At 322 and 323 of the appeal book, his Honour's approach was to stand back and say - and this was for the purpose of determining whether there was a substantial miscarriage of justice - to stand back and look at the totality of the trial, what had occurred. What he found was a very fair trial.

HAYNE J: But the root question is different.

McHUGH J: Exactly. I was going to - perhaps that suggests the error on the learned judge's part, that he looked at the wrong question - he asked himself the wrong question.

MR TRACEY: Your Honour, with respect, we say not. We say that if one is seeking to determine, without the application of any rigid formula, the question of whether there has been a substantial miscarriage of justice one must look at the error in the context of the trial as a whole. It is a relative term and it must be judged against the background of the totality of what has occurred. This Court has said, more than once, one looks at the whole of the circumstances.

Those circumstances that are relevant for present purposes have been identified in our written submissions. I would seek to elaborate only on some of them. The first is that in the conduct of the court martial this error was not a manifest error as far as anybody involved was concerned.

KIRBY J: It does not have to be manifest.

MR TRACEY: No, it does not, but the case for the appellant would be the stronger if it was. Not only was it not apparent at the trial, but it was not apparent up until the time this matter came before the tribunal. It was not a ground of appeal to the tribunal originally. What occurred was that in running, one of the members of the tribunal drew attention to it and then leave was obtained to amend the grounds.

McHUGH J: But the inability of a lawyer to perceive and set up a point may be a ground for caution, no more. I have to say, when I read those points of yours in paragraph 9 last night, I formed a provisional view that none of them were relevant. They just did not deal with the real issue in the case which, if I can put to you, is this: the legislature, through the regulations, has laid down a procedure to be followed, and there has not been a trial in accordance with that procedure. That is itself a miscarriage of justice, and if it was an essential requirement, then it is a substantial miscarriage of justice. One has to distinguish between the two types of miscarriage. The type that is spoken about in Wilde and other types where there is an error of law, wrongful admissal or rejection of evidence, misdirection, and so on. One may then seek to see how the verdict went. That is what paragraph 9 of yours seems to be aimed at but there is a deeper question, and that is whether this man really has had a trial according to law, because it is justice according to law that is administered by these tribunals, as well as by courts.

MR TRACEY: Your Honour, we, with respect, accept all that, and we accept that it logically follows that there has been a material irregularity. But, the legislature has drawn a clear distinction between the two terms.

McHUGH J: Yes, there is no doubt about that. It is plainly a cumulative condition, but the fact that there is a material irregularity, itself, constitutes a miscarriage of justice. The question is, is it material? How can you argue that it is not material when a person really has not been tried according to law. Supposing that when the accused was in the middle of his evidence the Crown was given leave to reopen its case for no good reason, well, that would be a material irregularity. One would not say. "Oh, well, it did not make much difference to the result anyway.", there just has not been a trial according to law.

MR TRACEY: Your Honour, that, of course, with respect, begs this question and that is whether Rule 33 is in that category and, your Honour, we would submit that Rule 33 needs to be read as part of the Defence Force Discipline Rules as a whole and, in particular, Part VII which deals specifically with courts martial.

KIRBY J: Are there any other rules that you can say, "Look at that - a breach of that - to say that that would completely undermine the trial according to law is absurd and therefore Rule 33 should be looked at in the same way".

MR TRACEY: One was adverted to earlier in argument, namely if a member of the court other than the president was to address a question to the judge advocate.

KIRBY J: Where is that passage?

MR TRACEY: At 31 paragraph (c). Rule 31(b); suppose in error the president asked, for whatever reason, the judge advocate to read the findings, having handed them to the judge advocate.

McHUGH J: Yes, but 31 deals with the functions of the president and the fact that the president may have done something not in accordance with his function does not necessarily invalidate the trial, as you pointed out, but surely 33, 34 and 35 are in a different category.

MR TRACEY: In that context, your Honour, 31(a) requires the president to ensure that the rules are abided by and that would include Rule 33.

McHUGH J: Yes. There may be many breaches of Rule 31 which would constitute a substantial miscarriage and there may be many that would not but does it really throw any light on what is a matter of procedure as to how the tribunal is to determine its verdict. Is it any different from a rule as to the way evidence is to be taken, as to the standard of proof, as to the right of the accused to hear the evidence, for example. Supposing evidence was taken in the absence of the accused.

MR TRACEY: Your Honour, given the circumstances of the trial, that may or may not be fundamental. Suppose, for example, the accused has been interrupting and is removed to ensure that the proceeding goes as it should. There can be no definitive answer to those questions outside the context of the particular trial, in our respectful submission, and that is why we submit that one has to look at this trial as a whole and see the significance of what this mere slip in a direction given by the judge advocate had by way of impact on the trial as a whole for the purpose of determining whether there has been a substantial miscarriage.

Your Honour, we do, amongst the other matters in the list in paragraph 9 draw attention to the fact that before this arose, the judge advocate gave a clear direction that the court was not to be influenced in any way by extraneous matters. Members of the court had sworn an oath that had that effect anyway at the start of the trial but then when it came to directing them on sentencing, not only did he direct them in accordance with Rule 33, he went further than that. He said to them, "That is the same manner as reaching your verdict."

Now, none of the members of the court then said, "Oh, just a minute, Mr Judge Advocate, we did not do it that way." They acquiesced in that so that it is in the context of the trial as a whole, in our submission, that this did not constitute an error that rose to the heights of a substantial, a fundamental, a radical error of the kind that one necessarily has to establish to make good a claim of substantial miscarriage of justice and it is in that context that the origins of the rule have some bearing because, as the Court has observed and we have given the reference to McKinney's Case, what will constitute a fair trial today may be quite different from what would have constituted a fair trial in days past.

McHUGH J: But this seems to assume that fair trial has some meaning over and above that laid down by the legislature. Now, here the legislature for good reason or bad reason has said that something must be done, probably because it feared, human nature being what it was, that junior officers might be influenced by the psychological or by reason of self-interest, but whatever the reason it was done, the legislature has laid it down and said, "That is the way these trials have got to be conducted" and this man is entitled to say, "I did not have a trial in accordance with the way the legislature said, so my trial cannot be fair."

MR TRACEY: With respect, your Honour, this is not the view of the legislature. This is a rule made by the judge advocate general.

McHUGH J: Nevertheless it is authorised by the legislature.

MR TRACEY: Yes.

GUMMOW J: Subject to disallowance - - -

McHUGH J: Subject to disallowance by the Parliament.

MR TRACEY: Yes. Your Honour, we do not want to undermine its authority and its importance in the scheme of things but, your Honour, if one is looking for a radical or fundamental departure from fair procedure, then one does have to ask the question, in our submission, whether a departure from this rule constitutes such a vice and it is in that context that we submit that the history of the rule is relevant and that changed social circumstances whereby there is not, in the modern era, as Justice Lockhart observed in the Federal Court, such deference to authority as may have been the case in an earlier era, is relevant. It may make an error a material error, but it does not necessarily make it an error that constitutes of itself a substantial miscarriage of justice and - - -

KIRBY J: Which is the case in the court in a criminal context that said in order to determine whether it goes to the root of the trial there is no rigid rule, you have just got to look at the whole nature of the trial? Which was that decision?

MR TRACEY Your Honour will find that both in Wilde and in Glennon.

HAYNE J: Wilde at page 373.

MR TRACEY It is also relevant to draw attention to the fact that the rule itself\ was continued following a review, and this is a matter referred to by Chief Justice Black at 278 to 279 of the appeal book. It is interesting to note that it was not preserved following that review in 1996 because it was perceived as a fundamental protection for the rights of an accused, it was preserved - and we have set out the committee's comment, and this was the full extent of it - it was preserved, firstly, because nobody had suggested any need to change, and secondly, the committee observed that they did not see any need to change the rule on voting orally; no direct attention being given to the order of voting. It is worth observing that under the American code voting is done by ballot in order to overcome the very problem that is adverted to in the judgments here, namely that, inevitably, views are going to be expressed in discussions by members of the court before they come to their vote.

KIRBY J: What would you say, assume we had such a rule and instead of doing it by ballot they did it just by open vote. Would that be so fundamental that it went to the nature of the trial? You would have to agree that it did.

MR TRACEY I have to say to your Honour that there is American authority which says just that.

KIRBY J: Is that authority of the Supreme Court?

MR TRACEY No, it is the Court of Military Justice.

KIRBY J: Have we got that decision?

MR TRACEY Yes, I can give your Honour that reference.

KIRBY J: Why should we have any lesser standard?

MR TRACEY We only have a lesser standard because Rule 33 so prescribes. Your Honour, the authority I had in mind is a case entitled United States v Goode 17 Military Justice Reports 916.

KIRBY J: It might be helpful to have a copy of that.

MR TRACEY We can arrange at the adjournment for photocopies to be taken and provided to the Court.

KIRBY J: Thank you.

MR TRACEY There may be another case to similar effect. It is also, perhaps, worth mentioning in this context, given that there was something said about it in the exchange between our friend and the Bench, the practice that he referred to in the Court of Appeal in New York is by no means uniform in America. As we understand the position, in the Supreme Court the Chief Justice speaks first in conference, and that is the case in all the appellate courts of the States in America.

KIRBY J: I understood it was opposite, but I stand to be corrected.

MR TRACEY: The basis for that belief appears in Paterson's work on the Law Lords and your Honour will find it referred to in footnote 33 to chapter 5. He is drawing a distinction between the position in the Privy Council and the House of Lords and the American position.

KIRBY J: Their Lordships follow the same reverse seniority.

MR TRACEY: Reverse seniority, yes, and there is reference in the work to the difficulties experienced by new Law Lords, unaware of the rule, when they are first asked to express a view.

KIRBY J: I am sure they soon learn.

MR TRACEY: The only other matter that we would seek to draw attention to in this context of the matter as a whole, is that - and we have annexed some of the work of Clode on the way military justice was dispensed at a time when this rule was introduced. Interestingly enough, the suggestion is that its prominence was a French military practice, rather than the Privy Council practice, that one of the judges in the Federal Court thought was the case, but the description of the trial that your Honours will find there is a long way from the trial conducted by court martial in the present day.

KIRBY J: What is your answer to Justice Gummow's point, that this is really an exception to chapter III, it is a tribunal, it is committing liberty of the person, because this appellant was convicted and sentenced to a term of confinement? That really is a serious consequence to commit to a lay tribunal. Why does that not speak of a need for a certain rigidity and conforming strictly to what Parliament has laid down, or permitted to be laid down?

MR TRACEY: Well, your Honour, the first thing is he was not sentenced to imprisonment, he was sentenced on one count to military detention and that was suspended - - -

KIRBY J: Leave aside what happened to him, I mean, you have to look at what the tribunal can do and it can sentence people to long periods of detention.

MR TRACEY: Yes, it can do that. Our answer to that is this, that this is for a disciplinary purpose, not for a purpose of enforcing the criminal law - - -

KIRBY J: I am sure staring up at the stars at night with a bar between you and freedom, it would seem rather similar.

MR TRACEY: That consequence certainly is, but unlike the criminal courts in the civil jurisdiction, there is no record of a conviction or anything of that kind that is going to be brought against that person into the future, there are - - -

KIRBY J: What, even in the military, even for advancement, even for promotion?

MR TRACEY: I am not suggesting that. I am suggesting that externally of the military.

KIRBY J: But this man has been convicted and found that he is guilty of serious offences of sexual harassment. They touch on his reputation and he was sentenced to fines and military detention, now - - -

MR TRACEY: We accept all that, your Honour, but he was dealt with for a disciplinary purpose. I concede that the consequences are not dissimilar but, in this context, they may well be.

KIRBY J: Justice Gummow's point is really very particular. It is this is a tribunal, it is not a court, and it has to be held strictly to the requirements of law because of its lay nature and its great powers. That seems right to me.

In principle, that has an attraction, your Honour, if I may say so, but whether there has a substantial miscarriage of justice falls to be determined by the application of the normal principles that would be applied by a court in dealing with a criminal appeal. There is no difference in terminology; the jurisprudence is, in our respectful submission, the same.

GUMMOW J: There is, for starters, because it only gets into the Federal Court, so it only get into the exercise of judicial power in a very limited fashion as a question of law, does it not?

MR TRACEY: Yes, it does.

GUMMOW J: There is no full appeal.

MR TRACEY: There is an original appeal - - -

GUMMOW J: I am talking about judicial power; you keep talking about something else. I am saying it only gets into the judicial power in the Federal Court, which was exercising original jurisdiction in this case - - -

MR TRACEY: Yes.

GUMMOW J: - - -..... by this great plurality of judges, on a question of law.

MR TRACEY: I accept that, your Honour, but - - -

GUMMOW J: It is not anywhere like an ordinary criminal appeal. There is some internal administrative procedure, I agree.

MR TRACEY: Your Honour, it is the terminology that I am referring to, not the process.

GUMMOW J: I am trying to refer to concepts.

MR TRACEY: Your Honour, we would submit that - - -

GUMMOW J: Constitutional concepts too.

MR TRACEY: Your Honour, it comes back to a construction of the statutory language: material irregularity; substantial miscarriage of justice.

GUMMOW J: Yes, but construing it against the Constitution.

MR TRACEY: Yes. Your Honour, that is language that attends normal criminal appeals, and there has been no suggestion, thus far, in any of the appeals that have dealt with this matter, that - - -

GUMMOW J: There is no appeal. There is a proceeding in the original jurisdiction of the Federal Court. It is just like taking a case from the AAT on a question of law.

MR TRACEY: I accept all that, your Honour, but we submit that that has no effect for the purposes of the - - -

GUMMOW J: The only appeal is the appeal from the Full Federal Court to this Court.

MR TRACEY: Your Honour, our submission is that, given all that, that has no bearing on the outcome of the present matter, which really turns on the meaning of whether there has been a substantial miscarriage of justice.

McHUGH J: On that point, I am not sure that I grasp the full implications of your argument when the submission against you is that the error goes to the root of the proceedings. Do you say that no matter what error is relied on, one can always look at the whole of the circumstances, so that there is no such thing as an error which itself automatically constitutes a substantial miscarriage of justice?

MR TRACEY: No, we do not submit that, your Honour, but we do submit that a departure from these rules does not necessarily involve a - such a fundamental error that would strike at the root of the trial.

McHUGH J: So a breach of Rule 33 is always to be looked at on a case by case basis. So that if you have got a case where the President was a General and the two junior officers were Lieutenants, you might have a substantial miscarriage of justice. On the other hand, if you have got five star, four star and three stars Generals, no.

MR TRACEY: I would not want to go that far either, your Honour, but I would want to submit that if the judge advocate gave them a misdirection whereby, for example, they were told not to have any discussion before they vote, that they went into their room, the moment they got there they voted without any discussion, that might be a very different matter. It would depend upon just what was said them to and the context in which it was said to them.

McHUGH J: But your point is that at least under these rules, the court is to examine all the circumstances of a case and no breach of any of these rules, in all events, is sufficient by itself to constitute a substantial - - -

MR TRACEY: That is our submission, your Honour, yes.

McHUGH J: I understand that. And I take it you would contrast breach of these rules with, say, a failure to give any directions on the onus of proof. Would you concede that was a substantial miscarriage of justice, irrespective of the weight of the evidence against the accused?

MR TRACEY: Indeed, your Honour, yes.

McHUGH J: Yes, I follow.

HAYNE J: When you say to Justice McHugh that it is necessary to consider all of the circumstances of the case, are you, in that process, contending that the court is to assess the likelihood of a different verdict having been returned?

MR TRACEY: Not unless the substantial miscarriage of justice is said to have occurred such that the accused has been deprived of his opportunity of a fair trial. But not for the purpose - - -

HAYNE J: In considering the question that is presented to us, are we, on your submission, to make some assessment of whether a different verdict could, might or would have been returned?

MR TRACEY: Your Honour, if what our friends have invited you to do is to decide whether or not this is a fundamental error that strikes at the root of the trial, then that exercise will not be necessary. If they go beyond that and say that the accused has been deprived of an acquittal, or the possibility of an acquittal that was fairly open, then it would arise, your Honour. But we do not understand them to go that far and, indeed, we note that our friend adopted in toto Chief Justice Black's decision below, and his Honour particularly held that that was not the basis on which the matter was proceeded.

McHUGH J: I am sorry, Mr Tracey, I may not have quite grasped your submission when I spoke to you earlier. Is it your submission that breach of these rules can never go to the root of the trial, that at most there could be errors which may or may not be a substantial miscarriage of justice?

MR TRACEY: Yes, your Honour, we would go that far.

McHUGH J: Yes, I thought - - -

MR TRACEY: We would make the alternative submission that if that is not accepted, then the impact of the breach of each rule needs to be examined in the context of the particular trial.

KIRBY J: I thought in answer to me at the opening the appellant said that he did contend that he lost an opportunity of acquittal fairly open to him.

MR TRACEY: We did note that, your Honour, but we also noted that there is nothing in his written submissions in support of that proposition and he had earlier adopted in its entirety what Chief Justice Black had said which specifically put that issue to one side. Nothing more was said about it in argument and we rather took it that although our friend, in response to your Honour, did say that, that rather on reflection he chose not to press it.

The only other matter that we would seek to address argument on very briefly is the disposition of the matter. We note that both the tribunal and the Court have the power to both quash and order retrial and Chief Justice Black specifically said that he would have wished to have heard argument had his view prevailed in the Federal Court on whether there should be a retrial. We do not have instructions as to what attitude the convening authority might adopt in the event that that matter is to be agitated and we would ask that in the event that the Court is against us and is disposed to allow the appeal, that the Court would make an order that would enable that issue to be pursued.

GUMMOW J: It would be for us to do what the Full Court should have done and you would say what the Full Court should have done, in these circumstances, would have been to remit it back to the tribunal under section 24 to decide whether they would, in the interests of justice, try again.

MR TRACEY: That may be, but your Honour will also note that the Full Federal Court had the power to order a retrial itself under section 52.

GUMMOW J: Yes.

MR TRACEY: So it presumably could have done it without remitting it.

GUMMOW J: Yes, but it could have remitted.

MR TRACEY: Yes.

GUMMOW J: That is what you would prefer us to do.

MR TRACEY: We would prefer it go back to the tribunal, I think. Apart from anything else it is a matter of convenience of getting the requisite number of judges together and matters of that kind.

HAYNE J: There was reference in Mr Willee's argument at one point, Mr Tracey, to the possibility of because Mr Hembury is no longer in the service there might be some time limit on retrial. The only provision that I could quickly turn up that might bear on it seemed to be in the Discipline Act as opposed to the Appeals Act at section 96(6) which limited the time within which charges might be brought after severance from the service. Do you point to any inhibition on retrial that might arise by reason of Mr Hembury's leaving the service?

MR TRACEY: No, your Honour, and particularly if, having left the regular service, he has been transferred to an inactive list but is still nominally part of the service, which is a common practice. He would still be within the reach of military justice.

HAYNE J: Yes.

MR TRACEY: If the Court pleases.

McHUGH J: Thank you, Mr Tracey. Yes, Mr Willee, anything in reply?

MR WILLEE: Only, your Honour, that we do not seek to resist those sorts of dispositionary orders. If my learned friends want to ventilate that elsewhere, we would not attempt to shut them out. There are a couple of matters that, depending on one point of view, may not be relevant but, on another, may well be, that perhaps need correction.

My learned friend has pointed to the context of the tribunal taking the oath some two days before having to decide this matter, but it is important to look at the context of how it was that they were ordered to vote on this issue by the judge advocate and that appears at page 204 of the appeal book. At line 4 the judge advocate said:

When you come to voting on the questions of guilt -

not guilt or innocence but "on the questions of guilt" -

you should vote, orally, in order of seniority. Voting is by majority vote. It does not have to be unanimous. You will not have access to Discipline Law manuals and you should not seek to look at those books. What you are required to do is consider your verdict, based on what you have heard in the court and what directions I have given you, and not, if you like, place your own interpretation on reading other documents.

So they were precluded from access to the very documents which might have corrected the position. They were ordered, in effect, to vote in accordance with the directions he gave them, wrongly, and that was all delivered in the context of voting in the wrong order. To suggest that in those circumstances the oath is called into contemplation is the very reverse of what Chief Justice Black had said as to the importance of the reinforcing of the oath by the application of the rule.

It was suggested by the respondent that this was not seen by the committee that reviewed the rules as a fundamental protection because of the comment that was made. Now, I do not know whether that was an attempt to draw me as the consultant to the committee and the writer of the report, but if your Honours were to look at the report you will see that where there was no change we always expressed the lack of change using the same comment and there is nothing magic in those words and, in any event, it does not and he cannot point to the contents of the discussion that took place in relation to that recommendation. It may well have been that there was a consideration - - -

McHUGH J: I think it better that this matter be pushed aside.

MR WILLEE: I was not going to suggest what did happen, just that there are many, many other matters that could have happened during the course of that discussion, but nothing could be stronger as an indication of the fundamental protection than the fact that in 1984 the Parliament was asked, and acceded to, the change in the Defence Force Discipline Act by the amendment to section 149(1)(fa) to put it beyond doubt that such a discipline rule as Rule 33 could be made.

Now, that has two concomitants, in our submission. First of all, it shows that those who were responsible for the administration of military justice, and in this case the judge advocate general was an army officer, not a naval or an air force officer, thought that the matter was sufficiently important to engage in that process and, secondly, that Parliament thought it was important enough to accede to the request. In those circumstances, it is submitted that it could not possibly be anything other than fundamental. Those are the only matters I wish to - - -

KIRBY J: Do you have any comments on the American cases that were referred to? Have you seen them?

MR WILLEE: I am aware of them, your Honour, but I do not have a ready recollection of their contents, but certainly - - -

KIRBY J: They seem to support the sort of propositions you are putting.

MR WILLEE: Yes, your Honour, and we would say that when the Americans went away from the practice of, or made it clear that voting was to be by secret ballot, that was to make the situation stronger, not weaker. But it is noteworthy that the American procedure of voting in order of juniority is preserved for every other process of dissent or agreement with the ruling of the president of the court.

KIRBY J: So the voting on the conviction or acquittal is the only one that has to be done by secret ballot?

MR WILLEE: Precisely, your Honour. Every other matter, and sentence, but every other matter where there is likely to be some form of objection to the process that is going on that is being conducted by the president or the military judge is subject to the procedure that we are looking at here under Rule 33. That is set out in the Uniform Code of Military Justice, a copy of which is next to the appellant's submissions. May it please the Court.

McHUGH J: Thank you, Mr Willee.

MR TRACEY Your Honour, before the Court adjourns, may I correct the title of that case that I provided in answer to Justice Kirby. It is United States v Martinez, not Goode. The reference was right, it just happened to be on a page that also had the other case on it.

McHUGH J: The Court will reserve its decision in this matter and the Court is indebted to counsel for their assistance. Court will now adjourn until tomorrow.

AT 11.54 AM THE MATTER WAS ADJOURNED