COURTCWDS IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION BLACK CJ, LOCKHART, SHEPPARD, MATHEWS AND MADGWICK JJ
HRNG Defence and war - Defence Forces - service offences - court martial proceedings - appeal from Defence Force Discipline Appeal Tribunal
Criminal law - appeal and misdirection by Judge Advocate in court martial proceedings as to order of voting of members of court martial - Rule 33 of the Defence Force Discipline Rules (1985) - construction of s23(1)(c) of the Defence Force Discipline Appeals Act 1955 - whether substantial miscarriage of justice - whether Judge Advocate misdirected the court martial on the question of onus of proof Defence Force Discipline Appeals Act 1955 s23 Defence Force Discipline Act 1982 ss116, 124(1), 133, 149 Defence Force Discipline Rules (1985) No 128 Rules 31, 33 and 35 Mraz v The Queen (1955) 93 CLR 493 Wilde v The Queen (1988) 164 CLR 365 Glennon v The Queen (1994) 179 CLR 1 The Queen v Hall [1971] VR 293 Re Smerdon (1979) 37 FLR 49 Pryor v The Queen (1969) ALJR 388 ORDER MELBOURNE, 10 December 1996 #DATE 7:5:1997 #ADD 27:5:1997
Counsel for the Appellant: Mr P A Willee QC and Mr W Walsh-Buckley Solicitors for the Appellant: Bullards, Barristers and Solicitors Counsel for the Respondent: Mr R R S Tracey QC and Mr F B Healy Solicitors for the Respondent: Australian Government Solicitor JUDGE1 THE COURT ORDERS THAT: The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
BLACK CJ 1. This is an appeal from an order of the Defence Force Discipline Appeal Tribunal ("the Tribunal") dismissing appeals by the appellant, Sergeant Wayne Ronald Hembury, against his conviction by a court martial for the service offences of conduct likely to prejudice discipline, assault on a defence force member of an inferior rank and disobedience of a lawful command.
2. The facts of the case are set out in the reasons for judgment of Lockhart J which I have had the benefit of reading and I adopt what his Honour has written about them. Except in relation to one ground of appeal, ground 2(a) in the Notice of Appeal, I agree with Lockhart J for the reasons he gives that the appellant has not shown that there was any error in the judgment appealed from. 3. Ground 2(a) concerns the effect of a direction given by the Judge Advocate to the court martial before it retired to consider its verdict. The Judge Advocate said: "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." 4. The President of the court martial was an officer of the rank of lieutenant colonel and the other two members, it being a restricted court martial, were officers of the ranks of major and captain respectively. Accordingly, the statement was likely to be understood as meaning that the President should vote first, followed by the major and then the captain. This was contrary to Rule 33 of the Defence Force Discipline Rules, made in 1985 by the Judge Advocate General under s149 of the Defence Force Discipline Act 1982, which requires that the vote be taken in inverse order of seniority. Rule 33 provides: "33. 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." 5. Rule 33 is in accordance with a practice in courts martial of very long standing. Thus in A Treaties of the Principles and Practice of Naval Courts-Martial by John McArthur, published in London by Whieldon and Butterworth in 1792, it is said (at 61) of the members of naval courts martial that: "... they are sworn to administer justice according to their consciences, and the best of their understanding, and the custom of the navy in the like cases. In order that the minds of the younger members may not be influenced by the opinion of their seniors, the same form is observed as at the trial of a Peer, before the house of lords, and likewise in determinations of the privy council: for the youngest member is to vote first, proceeding up in order to the president, who votes last, and the determination of the court is settled according to the majority of voices." 6. As the Tribunal pointed out, the Judge Advocate was clearly aware of the requirements of Rule 33 because he later directed the court martial correctly on the order of voting when giving directions in respect of penalty. The erroneous direction was doubtless inadvertent. Nevertheless, as the Tribunal held, what was said was a clear misdirection. 7. Having determined that what had occurred was a material irregularity within the meaning of s23(1)(c) of the Defence Force Discipline Appeals Act 1955, the Tribunal went on to consider whether a substantial miscarriage of justice had occurred. Unlike the comparable provisions in the legislation relating to appeals against conviction to courts of criminal appeal, the reference to a substantial miscarriage of justice in s23(1)(c) of the Defence Force Discipline Appeals Act, as it has stood since amendments made in 1982, is not by way of proviso, but instead by way of additional requirement. Section 23(1)(c) provides: "(1) Subject to subsection (5), where in an appeal it appears to the Tribunal: ... (c) that there was a material irregularity in the course of the proceedings before the court martial or the Defence Force magistrate and that a substantial miscarriage of justice has occurred; or... it shall allow the appeal and quash the conviction or the prescribed acquittal." Sub-section (5) is not presently relevant. 8. The Tribunal concluded that no miscarriage of justice had occurred. It noted that the court martial had deliberated for about one and three-quarter hours before announcing its verdict and it observed that "it could not but be the case that before any vote was taken which resulted in the announcement of the verdicts, each of the three officers was well aware of the views of the others." The Tribunal observed that if, contrary to their oath, the junior officers were, or either of them was, willing to mould his or her decision to conform with that of the President, he or she must have had every opportunity to do so, irrespective of the order of voting. 9. Counsel for Sergeant Hembury submitted that the Tribunal was in error in concluding that there had been no miscarriage of justice and he relied upon Mraz v The Queen (1955) 93 CLR 493 and particularly the judgment of Fullagar J at 514 where in a passage that has been cited with approval on numerous occasions his Honour said: "It is very well established that the proviso to s.6(1) does not mean that a convicted person, on an appeal under the Act, must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried." 10. Although the leading cases such as Mraz v The Queen have been decided in the context of provisos like that found in s6(1) of the Criminal Appeal Act 1912 (NSW), the statements of principle in those cases as to what constitutes a substantial miscarriage of justice are equally applicable to explain what is meant by a substantial miscarriage of justice for the purposes of s23(1)(c). There will of course be differences in application. In particular, it is well established that when a proviso in the common form is applicable to a criminal appeal, the burden of persuading that court that no substantial miscarriage of justice has actually occurred rests upon the prosecution and it may be thought that the entitlement of a person to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence strictly followed, of which Fullagar J wrote in Mraz, is less fully protected by a provision such as the present s23(1)(c): cf Re Smerdon (1979) 37 FLR 49, a decision of the Courts-Martial Appeal Tribunal under s23 as it was prior to the 1982 amendment. 11. The effect of the authorities concerning the common form proviso was discussed in the joint judgment of Brennan, Dawson and Toohey JJ in Wilde v The Queen (1988) 164 CLR 365 at 371-372 in a passage that also supports the more general application of the principles that emerge from those cases as to the nature of a substantial miscarriage of justice. Their Honours said (footnotes omitted): "...where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost "a chance which was fairly open to him of being acquitted" to use the phrase of Fullagar J in Mraz v The Queen or 'a real chance of acquittal' to use the phrase of Barwick CJ in Reg v Storey. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen; Reg v Storey; Gallagher v The Queen. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice." 12. In cases in which evidence has been wrongly excluded or in which there has been a misdirection on the law unfavourable to the accused person, it may be easy to see that an accused has lost a chance of an acquittal fairly open to him but where there has been an irregularity of a different character it may sometimes be difficult or impossible to say what effect the error has had on the trial. If the case is one to which a proviso in the common form applies the accused's entitlement to a trial free of any irregularity may be protected on appeal by the need for the prosecution to persuade the court that the proviso should be applied. But here it is for the appellant to establish, as an additional factor, that there has been a substantial miscarriage of justice. 13. There may however be cases in which although an effect on the accused person's chance of acquittal cannot be shown "an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings": Wilde v The Queen (1988) 164 CLR 365 at 373 per Brennan, Toohey and Dawson JJ. Their Honours continued (at 373): "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 of justice." Although the High Court in Wilde was considering the application of the common form proviso their Honours' observations about the nature of a substantial miscarriage of justice are again applicable more generally. And as Mason CJ, Brennan and Toohey JJ emphasised in Glennon v The Queen (1994) 179 CLR 1 at 8 (footnotes omitted): "... the majority [in Wilde] stressed that there is no mechanical formula or rigid test to be applied to determine whether an irregularity is of this nature; each case will depend on its own circumstances and, in determining the question, it will be appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error." 14. The question that now has to be considered is whether, having regard to the principles that emerge from these cases, the Tribunal was correct in its conclusion that no substantial miscarriage of justice had occurred. 15. Whatever may have been the position under s23 of the Defence Force Discipline Appeals Act when it contained the common form proviso I do not think it is possible to be affirmatively satisfied that by reason of the irregularity that occurred Sergeant Hembury may have lost a fair chance of acquittal on the charges upon which he was convicted such that it can be shown in that way that a substantial miscarriage of justice has occurred. To reach such a conclusion would seem to me to involve altogether too speculative an exercise. 16. But there remains for consideration whether this is one of those cases in which, to use the language of the majority of the High Court in Wilde v The Queen, the irregularity that occurred was such a departure from the essential requirements of the law that it went to the root of the proceedings, bearing in mind there is no mechanical formula or rigid test to be applied as to whether an irregularity is of this nature and that each case will depend upon its own circumstances. 17. Counsel for the respondent submitted that the irregularity was indeed of a fundamental nature, going to the root of the proceedings, and he relied particularly upon the decision of the Supreme Court of Victoria in R v Hall [1971] VR 293. In that case the accused challenged a prospective juror for cause. The issue of the challenge for cause was tried by two prospective jurors instead of by the judge, according to the old practice at common law but contrary to the mandatory provisions of s38 of the Juries Act 1967 (Vic). The Court held that the provisions of s38 were mandatory and constituted the only method by which a challenge for cause could be validly held and although the accused had subsequently changed his plea to one of guilty on the charges upon which he was convicted, the Court was of the view that the irregularity was so fundamental, affecting as it did the constitution of the jury, that it went to the root of the trial and constituted a miscarriage of justice of a kind falling outside the purview of the proviso to s568(1) of the Crimes Act 1958 (Vic). 18. The first thing to be observed about Rule 33 is that it bears deliberately and directly upon the way in which the ultimate issue or issues in a court martial are to be determined. (The operation of the Rule is not of course confined to ultimate issues.) Leaving to one side for a moment whether Rule 33 can be seen to serve an important purpose in a modern court martial conducted in accordance with the relevant legislation and the rules of procedure, the centrality of Rule 33 to the decision-making process cannot, as a formal matter, be denied. Given the intended and direct relationship between Rule 33 and the ultimate issue or issues in any court martial the Rule should, in my view, be seen as fundamental at least in a formal sense to the conduct of a court martial according to law. 19. This may be sufficient, of itself, to provide the foundation for a conclusion, arrived at after a consideration of all the circumstances (see Glennon at 8) that a substantial miscarriage of justice has occurred, as in R v Hall, but the nature of the Rule invites consideration of its role as a matter of substance. 20. An appropriate starting point for a consideration of whether, in point of substance as well as in point of form, adherence to Rule 33 is fundamental is the history of the rule. The rule reflects the practice of courts martial in the United Kingdom and in this country for more than two centuries. Provisions to the same effect as Rule 33 remain to this day in the rules relating to the conduct of courts martial in the United Kingdom (see Rules of Procedure (Army) 1972, rule 55(1) and the equivalent rules for the Royal Navy and the Royal Air Force), in New Zealand (see Armed Forces Discipline Rules of Procedure (SR 1983/236) rules 110 and 119), and in Canada (see the Queen's Regulations and Orders for the Canadian Forces subs112.41(3)). Traces of the practice remain in the United States of America (see Uniform Code of Military Justice Article 51(b) although not with respect to the voting on the findings and on the sentence, which must be by secret written ballot (see Article 51(a)). The value of the practice for courts martial in the Australian Defence Force must have been considered in 1985 when the Judge Advocate General at that time, the Hon R F Mohr, first made rules of procedure under the then recently enacted Defence Force Discipline Act and made a rule of procedure requiring the practice to be adhered to. Moreover, presumably because of doubt about the scope of s149 as originally enacted, specific provision was made by s65 of the Defence Legislation Amendment Act 1984 to empower the Judge Advocate General to make a rule providing for "the manner of taking the votes of the members of a court martial": see s149(1)(fa) of the Defence Force Discipline Act. Clearly, the Parliament considered that the matter was one deserving of attention and it must be accepted that the Judge Advocate General, upon whom the Parliament conferred the power to make rules, considered that the practice he embodied in Rule 33 had a desirable place in the proceedings of courts martial. It is a matter of public record that there have been several holders of the office of Judge Advocate General since it was held by the Hon R F Mohr at the time the Rules were made in 1985, and each Judge Advocate General has had the duty under s196A of the Defence Force Discipline Act of preparing and furnishing to the Minister for Defence an annual report relating to the operation of the Act, the regulations and the rules of procedure. The reports are required to be laid before each House of the Parliament and it was not suggested in argument that there has ever been a report recommending that Rule 33 should be revoked on the ground of lack of utility or otherwise. Indeed, it seemed to be common ground that in 1996, after the matter (amongst others) had been considered by a committee of military lawyers, a report was prepared by the Judge Advocate General which recommended that there be no change to Rule 33. 21. The Judge Advocate General is appointed by the Governor-General (see s179 of the Defence Force Discipline Act) and must be, or have been, a justice or a judge of a federal court or a Supreme Court of a State or Territory (s180(1)). He or she will may be expected to have had substantial experience in the conduct of the court martials for which, by reason of the office, the Judge Advocate General has important responsibilities: see, for example, s127 (appointment of officers to be Defence Force magistrates), s149 (power to make rules), Part IX generally (review of proceedings of service tribunals) and s196 (appointments to the judge advocates' panel). In these circumstances this court should be very reluctant to conclude that a rule of procedure concerning the conduct of a court martial, made by the Judge Advocate General and reviewed from time to time, is lacking in importance or utility. 22. In any event, I think clear that Rule 33 does have important purposes. What the rule does, as it seems to me, is to provide the framework for what might be termed the dynamics of decision-making in a court martial. 23. It follows from s133 of the Defence Force Discipline Act that a court martial must determine the question whether a person is guilty or not guilty of a service offence by sitting in private, without any other person present. The question must be decided in private and by the majority vote of the members, the court martial being required to find an accused person not guilty if there is an equality of votes. Having been made in private, the decision must be announced in public by the President, who speaks on behalf of the court martial in announcing its finding: see Rule 31(b). It is no doubt true that in the deliberations that must inevitably take place between the members of a court martial before a verdict is reached, the views held by the members from time to time (for they may very well change) are likely to become known to each other although that would not be inevitable. It is no doubt true too, that if a junior member did permit himself or herself to be overborne by the perceived wishes of a senior member, contrary to the oath that all members of courts martial must take, the circumstance that the most junior member must vote first when the decision is ultimately taken would not necessarily prevent that. But the Rule must be assumed to operate, and to have an intended serious purpose, in circumstances in which each member of the court martial will be conscientious and will strive to be true to the oath or affirmation that he or she has taken. The terms of that oath or affirmation, which must be administered to the President and each member of a court martial in the presence of the accused person before arraignment, are provided for by Rule 35(2), which is in the following terms: "(2) The oath or affirmation to be taken or made by a person for the purposes of this rule is an oath or affirmation that the person will duly administer justice according to law without fear or favour, affection or ill-will, that the person will well and truly try the accused person or persons before the court martial according to the evidence and that the person will not disclose the vote or opinion of any member of the court martial unless required to do so in due course of law." 24. In this context, it can be seen that Rule 33 does, as one would expect, have beneficial purposes. First, the requirement that voting on any question to be determined by the court martial is to be in inverse order of seniority serves to emphasise the ideals of justice reflected in the oath that each member has taken and the personal responsibility of each member of the court martial, irrespective of the seniority of that person. The emphasis results from the existence of the rule generally and from its application at the very moment of decision-making. These factors may be regarded as particularly important given the significance necessarily attached to rank and seniority in the armed forces, a significance that underlies the provisions in the Defence Force Discipline Act relating to the seniority of the President of a court martial and the seniority of its members: see ss116 and 124(1). (In fact, it is the most senior member, the President, who has the function, when presiding over a sitting of the court martial, to ensure that the proceedings are conducted in accordance with the Act, the Rules and in a manner befitting a court of justice: see Rule 31.) 25. Secondly, whatever may have been said in the course of deliberation it would seem inevitable that there will be situations in which the minds of at least some of those engaged in the task of reaching a verdict will remain undecided until, faced with the suggestion that it is now time to put the matter to a vote, a choice is made between views and conclusions that have been competing for acceptance in the mind. By requiring the vote to be taken in inverse order of seniority the junior members of a court martial may indeed vote free from whatever influence, subtle or more direct, that the casting of the vote of a more senior officer might have had upon their ultimate decision. Moreover, given that the verdict is to be arrived at by majority vote, the votes cast by the junior members might in some cases determine the outcome before the vote of the senior member is cast. 26. I would therefore conclude that in point of substance as well as in point of form, Rule 33 is of fundamental importance such that if a direction is given contrary to its requirements that irregularity is likely go to the root of the proceedings. 27. There is another matter that underlines the seriousness of any irregularity constituted by a direction that is not in strict conformity with Rule 33; a court martial is required to deliberate in private and so it is important for the maintenance of confidence in the integrity of the court martial process that when there is a rule specifically directed to something that is to happen in private, a direction likely to result in the rule not being complied with is seen as a serious matter. One other matter should be mentioned; looking at the cases for the prosecution and for the defence, it is apparent that the matter was by no means one in which convictions were inevitable. 28. These considerations lead me to conclude that the irregularity that occurred in this case did go to the root of the trial and did thereby occasion a substantial miscarriage of justice. 29. The circumstance that, at the court martial, no objection was taken to the erroneous statement by the Judge Advocate, though regrettable, cannot in this case cast a different light on what occurred. Nor is a different conclusion pointed to by the circumstances that the proceedings were otherwise well conducted and that the members of the court martial considered their verdicts over a considerable period of time. The fact remains, in my view, that a substantial miscarriage of justice occurred. 30. I would therefore allow the appeal. I would set aside the decision of the Tribunal and in place of it I would order that the convictions be quashed. I would wish to hear argument as to whether, in the circumstances, a new trial should be ordered and I would therefore order that the matter be listed again so that the submissions of the parties on that question may be heard. LOCKHART J 31. This is an appeal from a decision of the Defence Force Discipline Appeal Tribunal ('the Tribunal'), constituted by Northrop J (President), Cox and Badgery-Parker JJ (members), made on 9 June 1994 dismissing an appeal by the appellant, Sergeant Wayne Ronald Hembury, from convictions by a Military Restricted Court Martial at Watsonia, Victoria on 21 April 1993. The appeal is brought to the Court pursuant to s. 52 of the Defence Force Discipline Appeals Act 1955 ('the Discipline Appeals Act'). 32. The facts are not in dispute. The appellant was charged before a Restricted Court-Martial on a total of six counts, three of which were expressed as alternatives. At the time of the alleged offences he was a sergeant in the Royal Australian Army employed in the general clothing store at Simpson Barracks, Watsonia. The first charge was that between 1 and 25 December 1991 the appellant committed an act of indecency by standing behind a female soldier, Private Smith, and thrusting his hips forward towards her without her consent, knowing that she did not consent, or was reckless as to whether she did consent. The same facts were the foundation of the second charge which was expressed in the alternative to the first charge which was said to constitute conduct likely to prejudice the discipline of the army. 33. The third charge was that between 20 January 1992 and 6 February 1992 the appellant committed an act of indecency upon Private Smith by touching her on the area of her right breast without her consent, knowing that she did not consent, or was reckless as to whether she did consent. 34. The fourth charge was expressed to be alternative to the third charge and alleged the same facts that constituted the third charge. The fourth charge was that the conduct constituted an assault by the appellant upon Private Smith who was inferior in rank. 35. The fifth charge, also expressed as an alternative to the third charge, was that by engaging in the same conduct the appellant behaved in a manner likely to prejudice the discipline of the army. 36. The sixth charge was that between 20 January and 6 February 1992 the appellant disobeyed the lawful command given to him by his superior officer, Warrant Officer C R Cramp, Supervisor of the Army Clothing Store at Watsonia on a date in December 1991 to not touch Private Smith. The conduct constituting the charge was that he, notwithstanding the lawful command of his superior officer, touched Private Smith on the area of her right breast. 37. The appellant pleaded not guilty to all six counts. The members of the Court Martial retired to consider their verdicts at 0948 hours on 21 April 1993 and announced the verdicts at 1133 hours the same morning. The appellant was acquitted of the first charge (the act of indecency), but convicted of the alternative second charge (conduct likely to prejudice army discipline). He was acquitted of the third charge (act of indecency), but convicted of the alternative fourth charge (assault on a Defence Force member of inferior rank). In view of that verdict no verdict was taken on the fifth count, being a further alternative to the third charge. He was convicted of the sixth charge (disobedience of a lawful command). 38. The Court-Martial then sentenced the appellant. In respect of the second charge a fine of $700 was imposed of which $400 was suspended and $300 was to be payable by fortnightly instalments of $15 each. The appellant was also reprimanded concerning the second charge. In respect of the fourth charge, the appellant was sentenced to detention for a period of three months, but suspended for twelve months. In respect of the sixth charge a fine of $1,500 was imposed, of which $1,000 was suspended and $500 was to be payable by fortnightly instalments of $25 each. The appellant was also severely reprimanded concerning the sixth charge. 39. The appellant appealed against the convictions and punishments. 40. The first ground of appeal to the Tribunal was that the convictions were said to be unsafe and unsatisfactory. The Tribunal found that this ground turned on the findings of the Court Martial accepting Private Smith as a credible witness who could be believed on all issues and rejecting the appellant's version of the evidence where it conflicted with that of Private Smith. The Tribunal concluded that there was no basis for disturbing the finding of the Court Martial. The Tribunal applied the principles stated by the High Court in Chamberlain v R (No 2) (1984) 153 CLR 521; Morris v The Queen (1987) 163 CLR 545 and Chidiac & Asfour v R (1991) 171 CLR 432 and no challenge was made in argument before us to the Tribunal's application of those principles. I shall therefore say nothing further about this ground. 41. The second and third grounds of appeal before the Tribunal originally filed and the eighth ground added by leave of the Tribunal raised issues which were determined by the Tribunal and were not challenged in argument before us, so I need say nothing about them. 42. Counsel for the appellant attacked the findings of the Tribunal before us on three separate grounds and sought leave to add an additional ground to which reference will be made later. 43. The first of these grounds was the sixth ground of appeal before the Tribunal and was added by leave in the course of the hearing before the Tribunal after a member of the Tribunal drew the attention of the parties to a passage in the Judge Advocate's summing up at p. 214 of the transcript before the Court-Martial. The genesis of this ground of appeal lies in the direction of the Judge-Advocate to the Court Martial in the following terms: '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.' 44. This ground of appeal had its origin in Rule 33 of the Defence Force Discipline Rules (1985) No 128 in the following terms: '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.' 45. It was argued before the Tribunal, and before us on appeal, that the direction given by the Judge Advocate was contrary to Rule 33 and was a material irregularity in the course of the proceedings within the meaning of s. 23(1)(c) of the Discipline Appeals Act. Section 23(1)(c) provides that where in an appeal to the Tribunal, it appears to the Tribunal 'that there was a material irregularity in the course of the proceedings before the court martial or the Defence Force magistrate and that a substantial miscarriage of justice has occurred' it shall allow the appeal and quash the conviction. 46. The Tribunal said that the learned Judge Advocate was clearly aware of the requirement of Rule 33 and that his omission in directing the court martial how they should vote on the question of guilt was entirely inadvertent. The Tribunal based its finding that the Judge Advocate was clearly aware of Rule 33 by referring to a later direction given by him to the court martial in respect of the matter of punishment in these terms: 'There is one matter I omitted to tell you, which I am sure will be obvious to you, but as far as voting is concerned on punishment it is done in the same manner as reaching your verdict. In other words, orally, starting with the junior member and it will be a majority vote on punishment.' 47. 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.' 48. Rule 33 is of ancient lineage and can be traced back at least to 1792 where it is referred to in the work of John McArthur, Secretary to the Right Honourable Lord Hood, Vice Admiral, Commander in Chief and Officiating Judge Advocate in North America. The rule was derived from the practice in trials in the House of Lords and in determinations of the Privy Council: see 'A Treatise of the Principles and Practice of Naval Courts-Martial', Wieldon and Butterworths, p. 61, BR 11 p 179 QR & AI 2182. 49. 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. 50. In my view the Tribunal was correct in concluding that the most obvious meaning of the Judge Advocate's direction to the Court Martial was that on the question of guilt the members should vote in order from the president down to the most junior member, and that this was a clear misdirection. 51. The real question is whether any substantial miscarriage of justice occurred because of the misdirection. Counsel for the appellant argued that the misdirection was of a fundamental kind that justice could be done only by quashing the conviction. Counsel argued that: 'justice depends not upon the effect of the departure on the verdict, but upon whether there has been a serious departure from the essential requirements of the law': a citation from R v Hall [1971] VR 293 per Winneke CJ at 299; also see Muto and Easty (1995) 83 ACrimR 67. 52. It was argued in the alternative by counsel for the appellant that, if it is not possible to determine whether or not the irregularity caused the miscarriage of justice, then it is for the respondent to make it clear that there is no real possibility that justice has miscarried; and that the respondent was and is in the circumstances unable to meet that onus. Reliance was placed upon M Raz v R (1955) 93 CLR 493 at 514 and Barker v R (1994) 54 FCR 451. 53. On this question whether substantial miscarriage of justice had occurred, the Tribunal said in its reasons for decision (at 26): 'As noted earlier, the court martial commenced to deliberate upon the verdict at 0948 hours and was so engaged until 1133 hours, a period of about one and three quarters hours. It cannot but be the case that before any vote was taken which resulted in the announcement of the verdicts as set out earlier, each of the three officers were well aware of the views of the others, and if contrary to their oath, the junior officers were, or either of them was, willing to mould his or her decision to confirm [sic] with that of the President, he or she must have had every opportunity to do so, irrespective of the order of voting.' 54. The Tribunal therefore concluded that it did not appear in the circumstances that any miscarriage of justice resulted or was likely to result, from the misdirection, and accordingly rejected ground 6. 55. In my opinion the Tribunal was correct in finding that there was no substantial miscarriage of justice arising from the misdirection. I agree with the reasons given by the Tribunal to support that finding. 56. There may be cases where a misdirection is of so fundamental a nature that it necessarily would lead to a substantial miscarriage of justice if the accused were found guilty; but the misdirection in this case is not of such a kind. The nature of the misdirection, the circumstances in which it occurred, the process of deliberation that took place between the members of the Court Martial over about one and three quarter hours, the fact that there was no request by the defending officer that the Judge Advocate correct his direction and the other matters to which the Tribunal referred, all lead to the conclusion that the Tribunal did not err in finding that there was no substantial miscarriage of justice arising from the misdirection. 57. I turn to the question whether the respondent bears an onus of establishing that there is no real possibility that justice has miscarried. 58. Section 23 of the Discipline Appeals Act was introduced into that Act by Act No 153 of 1982 and was part of a major legislative change to the regime of Defence Force discipline appeals. The amendments followed the decision of the Court Martial Appeal Tribunal in Re Smerdon (1979) 37 FLR 49 where the Tribunal considered s. 23 in the form which it then took. Section 23 then read as follows: '(1) Where, upon the hearing of an appeal against a conviction by a court martial, the Tribunal considers- (a) that the finding of the court martial- (i) is unreasonable, or cannot be supported, having regard to the evidence; or (ii) involves a wrong decision of a question of law; or (b) that, on any ground, there was a miscarriage of justice, the Tribunal shall, subject to this Division, allow the appeal. (2) Notwithstanding that the Tribunal is of the opinion that an appeal might otherwise be decided in favour of the appellant, the Tribunal may refuse to allow the appeal if it considers that no substantial miscarriage of justice has occurred. (3) Subject to this Division, if the Tribunal allows an appeal, it shall quash the conviction, and, if the Tribunal does not allow an appeal, it shall dismiss the appeal.' 59. The Tribunal held in Smerdon that the burden of proving that there was no substantial miscarriage of justice rested upon the prosecution and relied upon R v Williams [1956] VLR 96. 60. The form which s. 23 has taken since the amendments made by Act No 153 of 1982 is materially different from its earlier form. I do not regard the section in its present form as containing a proviso or something akin to it. Sub-section (1) of s. 23 provides a series of grounds established to require the Tribunal to quash the conviction. 61. The subsection is in the following form: '23(1) Subject to sub-section (5), wherein an appeal it appears to the Tribunal: (a) that the conviction or the prescribed acquittal is unreasonable, or cannot be supported, having regard to the evidence; (b) that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction or the prescribed acquittal was wrong in law and that a substantial miscarriage of justice has occurred; (c) that there was a material irregularity in the course of the proceedings before the court martial or the Defence Force magistrate and that a substantial miscarriage of justice has occurred; or (d) that, in all the circumstances of the case, the conviction or the prescribed acquittal is unsafe or unsatisfactory, it shall allow the appeal and quash the conviction or the prescribed acquittal.' 62. Before the Tribunal is obliged to quash the conviction it must be satisfied that there has been a material irregularity and that there has been a substantial miscarriage of justice. The reported cases dealing with provisos in this area of discourse are not relevant: see Wilde v R (1988) 164 CLR 365; and Smerdon at 56. It is not for the prosecution to prove that there has been no substantial miscarriage of justice. It is for the Tribunal to decide on hearing the whole of the relevant evidence, assuming there has been a material misdirection, that there has been a miscarriage of justice before the conviction can be quashed. 63. There was argument before us concerning the question whether s. 23 is exhaustive of the circumstances in which the Tribunal may quash a conviction. That is not a question which it is necessary to determine in the present case, so I shall say nothing about it. 64. I turn to the second ground on which the Tribunal's decision was challenged. 65. It was argued on behalf of the appellant that the Judge Advocate had clearly misdirected the court martial on the question of onus of proof when he stated: '... the accused need do no more than raise a reasonable doubt in the mind of the court ...' 66. It was submitted that this statement could have been construed by the Court Martial as reversing the onus of proof which is ordinarily upon the prosecution to prove its case beyond reasonable doubt. It was argued that this was a material irregularity which caused a substantial miscarriage of justice. 67. This was not a ground of the appeal from the decision of the Court Martial to the Tribunal. It could only have been heard by the Tribunal by leave. The application to the Tribunal to amend the notice of appeal was well out of time, indeed made on the morning of the hearing, though some advance notice of it had been given by the filing shortly before of a notice of the 'Appellant's Additional Grounds of Appeal'. The Tribunal refused to grant leave to allow the point to be agitated. 68. It was argued on behalf of the appellant that the basis of the Tribunal's refusal to exercise its discretion in favour of the grant of leave is not apparent, especially as two other grounds (grounds 6 and 8) were permitted to be raised during the course of argument. 69. I have read the transcript of the proceedings before the Tribunal. The application to raise the point was raised very late in the history of the matter. Counsel appearing for the appellant before the Tribunal conceded that it was a 'novel' point which had arisen; that it may not have been a strong point, though not necessarily weak; that it was the appellant's legal advisers including counsel who made the decision not to incorporate that ground of appeal in the original notice of appeal because it was perceived by counsel as not being a 'terribly strong' point and he did not wish to have the Tribunal distracted with matters which were not the subject of reasonable argument. 70. In my opinion, the Tribunal's refusal to allow the point to be agitated at that late stage of the proceeding was fully within its discretion, a discretion which has not been shown to have miscarried. 71. Further, there is in my view no substance in the point when the impugned statement by the Judge Advocate is read in the context of other directions by him to the Court Martial. 72. If the direction is read in isolation, a direction by the Judge Advocate that 'the accused need do no more than raise a reasonable doubt in the mind of the Court' is a misdirection because it infers that the onus is cast upon the accused to prove the existence of a reasonable doubt. But when the transcript of the proceeding before the Court Martial is read as a whole there was no misdirection. The impugned passage was immediately preceded by the direction by the Judge Advocate to the Court Martial: 'The onus of proof. By entering a plea of not guilty, the accused has raised issues of fact for the court to determine. The prosecution has the task of proving the accused's guilt. The accused, on the other hand, does not have to prove anything.' 73. This was followed by a series of directions each of which emphasized the need for the court martial to be satisfied beyond reasonable doubt of all of the elements of each of the charges before any conviction could be recorded. 74. I accept the submission of counsel for the appellant that the directions by the Judge Advocate did at times blur the distinction between onus or burden of proof on the one hand and the standard of proof beyond reasonable doubt on the other. However, I do not think on reading the directions as a whole that it can realistically be said that members of the Court Martial would or could have thought that it was for the accused to establish the existence of a reasonable doubt. It must be remembered also that the accused gave sworn evidence in his own defence, so that reference to the accused raising a reasonable doubt was to my mind simply a statement to the Court Martial about one way in which a reasonable doubt might arise and lead to the appellant being acquitted. Also no objection was taken by the defending officer to the impugned direction of the Judge Advocate. 75. The impugned direction closely resembles the direction which was challenged before the High Court in Pryor v The Queen (1969) ALJR 388. The trial Judge in summing up to the jury said this: 'In this case the Crown had brought for trial two accused and the law is the Crown must prove their case against the accused. The burden of proof lies throughout upon the Crown. The burden lies throughout upon the Crown to prove the guilt of the accused beyond any reasonable doubt. The accused are not bound to establish their innocence. It is sufficient if they raise a doubt as to their guilt and if, after considering the circumstances of this case, as disclosed in the evidence on both sides, and taking into account the statements of the accused, there remains in your minds a doubt, that is to say, a real doubt based on common sense, if you have such a doubt, then the accused must be acquitted.' 76. Barwick CJ held (at 388) that when that passage was read with the summing up as a whole, it could not reasonably be regarded as a direction that the accused bore an onus or obligation to raise a doubt. McTiernan and Kitto JJ agreed with the Chief Justice. Menzies J said that he had no doubt that the direction as a whole made it quite clear that the onus of proof lay upon the Crown and that the accused could not be convicted unless the jury was satisfied beyond reasonable doubt of their guilt. Windeyer J agreed with Menzies J. 77. Pryor was an application for special leave to appeal to the High Court, not an appeal itself. Nevertheless, the observations made by the members of the Court reflect the views which they had formed upon the merits of the submission which formed the basis of the application for special leave. 78. Pryor supports the conclusion that, on the facts of the present case it is not correct to say that, on reading the directions of the Judge Advocate as a whole, the Court Martial was instructed that it was for the accused to establish the existence of a reasonable doubt. 79. This ground of appeal fails. 80. I turn to the third ground of appeal, namely, that the convictions on the fourth and sixth charges were unsafe and unsatisfactory in all the circumstances. It was conceded by counsel for the appellant that these two bases upon which it was alleged that the convictions were unsafe and unsatisfactory were not advanced before the Tribunal. Counsel for the appellant sought leave of the Court to raise these two points for the first time. The Court heard argument on the application to amend the notice of appeal and to raise these points as if it were hearing the appeal with respect to them, but reserved its decision as to whether leave should be granted. 81. The circumstances upon which reliance was placed by counsel for the appellant in support of its submission that the fourth and sixth charges were unsafe and unsatisfactory were as follows: 1. The finding that the appellant was not guilty of an act of indecency without consent (the third charge) must mean that the Court Martial accepted either that the touching of Private Smith's body was not intentional or that the touching was not in a relevant sexual area. Reliance was placed upon Private Smith's evidence before the Court Martial when she said that she did not like the touching, it made her feel uncomfortable; 'But I thought he may have been in a rush, I don't know, I don't know if it was meant or if it wasn't'. 2. An alternative case of guilty of assault on an inferior member of the Defence Force in inconsistent with the earlier finding because, absent that element of the offence that the act be intentional, hostile or unwarranted in some other way (such as by being indecent) necessary to constitute an assault, there is nothing to sustain such a finding. 3. It was the commission of that act of indecency without consent or alternatively of assault on an inferior which was the foundation of the sixth charge, as the act which constituted the appellant's disobedience. Again, if the finding of guilty of assault cannot be sustained there remains nothing to support the finding of disobedience. 4. The convictions were unsafe and unsatisfactory in that they must be taken to be based on an erroneous direction of law by the Judge Advocate on the use to be made of the concept of blameworthiness. It was said that the direction failed to isolate the elements of the offence, confused the element of blameworthiness with the requirement to establish mens rea and substituted blameworthiness for that element of the offence. 82. Reliance was placed in support of this submission on Chief of The General Staff v Stuart (1995) 58 FCR 299. 83. Other arguments were advanced by counsel for the appellant, but I have stated the substance of them. 84. In my opinion there is no inconsistency in the finding by the Court Martial of not guilty on the third change (act of indecency) and the finding of guilty on the fourth count (assault on an inferior). It was open to the Court Martial on the evidence before it to find that the appellant did assault Private Smith by touching her near, but not on, the right breast. There is no inconsistency between exonerating the accused with respect to the act of indecency and convicting him on the offence of assault on an inferior. 85. For this reason the finding of guilty on the sixth change (disobedience of lawful command) is therefore neither unsafe nor unsatisfactory. 86. In my opinion convictions on the charge concerning the thrusting forward of the appellant's hips did not confuse blameworthiness with the requirement to establish mens rea; nor did it substitute blameworthiness for that element of the offence. I agree with the submission of counsel for the respondent that in so far as the direction related to blameworthiness, it was given consistently with the majority judgments in Stuart's Case at 306-309 and 332. 87. In my opinion leave to raise this ground of appeal should be refused. 88. The appeal should be dismissed. SHEPPARD J 89. In this matter I have had the advantage of reading the judgment to be delivered by Lockhart J. I am thus saved the need to refer fully to the facts of the matter or to the legislative provisions which are in question. I agree in the conclusions reached by Lockhart J and with the order which he proposes. However, I wish to say a little about two of the points involved in the appeal. Both were the subject of misdirections by the Judge Advocate in his charge to the members of the Court. The first concerns the order of voting and the second an aspect of the directions given in relation to the onus of proof. 90. The order of voting was explained to the members of the court martial by the Judge Advocate in the following terms: "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." 91. The direction is in conflict with Rule 33 of the Defence Force Discipline Rules (1985) made pursuant to para. 149(1)(fa) of the Defence Force Discipline Act 1982 ("the Discipline Act"). That paragraph provides that the Judge Advocate General may make rules of procedure, not inconsistent with the Act, providing for or in relation to the practice and procedure to be followed by service tribunals and, in particular, providing for or in relation to the manner of taking the votes of the members of a court martial. The paragraph was inserted into the Act by s.65 of the Defence Legislation Amendment Act 1984. 92. In the Explanatory Memorandum circulated to members of the House of Representatives at the time that the amending Act was introduced, it is said (at 44) that the clause providing for the amendment made a clarifying amendment to s.149 of the Discipline Act to avoid any possibility that a rule of procedure proposed to be made under s.149 on the question of how the votes of members of a court martial were to be taken, would be ultra vires the Act. It may also be observed that in 1996 a report was prepared by the Judge-Advocate General recommending (at 50) that Rule 33 not be amended. The opinion was expressed that none was required. The report added, "In particular we did not see the need to change the Rule on voting orally." The recommendation comes from a report made by a committee to the Judge- Advocate General. The Committee had been appointed by him. It reported in 1995. 93. During the argument there was some discussion concerning the meaning of the Judge Advocate's direction. The question was raised whether the phrase "in order of seniority" was capable of meaning "in order of seniority commencing with the most junior in rank" as the Rule requires. In my opinion that is not the usual or natural meaning of the words in the context in which they were used. Unless otherwise indicated, to vote in order of seniority means that the first vote is cast by the most senior officer and the votes which follow are announced in descending order of seniority. That is why the Rule itself makes it clear that the voting is to commence with the most junior officer and not with the most senior. That is what it seeks to achieve. 94. In Administration of Justice under Military and Martial Law, Charles M. Clode, 2nd ed. 1874, it is said (at 150-151): "It has been a fundamental principle in all Military Codes that, to secure the freedom of Junior Officers, the votes should be taken from the youngest up to the eldest member of the Court. In no other way could this freedom be secured; for the service of all Officers upon a Court-martial is, as we have seen, a Military duty discharged under the Mutiny Act, in subordination to the President appointed by the Convening Officer. The votes of the Juniors, unless given before those of their Superiors, might place them in direct conflict with their declared opinions. The decision of the Court is also to be governed by a plurality of votes, with a Statutory quorum in case of Capital crimes." 95. The quoted text shows the reason for the Rule. Its object is to attempt to ensure that junior officers are not overborne by senior officers. It was apparently regarded as an important safeguard likely to help ensure the fair trial of an accused. 96. The appeal to this Court comes from the Defence Force Discipline Appeal Tribunal by the operation of s.52 of the Defence Force Discipline Appeals Act 1955 ("the Appeals Act"). The appeal lies only on a question of law. 97. Part III of that Act deals with appeals to the Tribunal from courts martial established under the Discipline Act. Section 23 of the Appeals Act deals with the quashing of convictions. So far as relevant that section provides: "(1) Subject to subsection (5), where in an appeal it appears to the Tribunal: ................................... (c) that there was a material irregularity in the course of the proceedings before the court martial or the Defence Force magistrate and that a substantial miscarriage of justice has occurred; or ................................... it shall allow the appeal and quash the conviction or the prescribed acquittal." 98. It is unnecessary to refer to the definition of "prescribed acquittal" in subsec. 4(1) or to the provisions of subsec. 23(5) which make some detailed provisions concerning the quashing of convictions. 99. In the submission of counsel for the appellant, the misdirection of the Judge Advocate in relation to the order of voting was a material irregularity and involved a substantial miscarriage of justice. The Tribunal held, however, that no substantial miscarriage of justice had occurred. 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. However, the question then is whether any substantial miscarriage of justice has occurred. As noted earlier, the court martial commenced to deliberate upon the verdicts at 0948 hours and was so engaged until 1133 hours, a period of about one and three-quarter hours. It cannot but be the case that before any vote was taken which resulted in the announcement of the verdicts as set out earlier, each of the three officers was well aware of the views of the others, and if contrary to their oath, the junior officers were, or either of them was, willing to mould his or her decision to confirm with that of the president, he or she must have had every opportunity to do so, irrespective of the order of voting. It does not appear in those circumstances that any miscarriage of justice resulted, or was likely to result, from the misdirection, and accordingly ground six is rejected." 100. Counsel for the appellant said that, if it be presumed that the vote occurred in order of seniority and that a material irregularity occurred, a contention that it produced no miscarriage of justice was ill met by the proposition that the court martial had deliberated for a period of 1 1/2 hours before verdict, during which time it must be the case that each of the three officers became well aware of the views of the others and a junior officer willing to mould his or her decision to conform with that of a senior, had every opportunity to do so irrespective of the order of voting. Counsel submitted that there was no evidence to support such a finding with the consequence that the proposition was speculative. It was said that many other reasonable hypotheses concerning what may have occurred during the deliberations were equally tenable. These ranged from those which could be described as harmless to the extreme at which the Rule is aimed. For example, a situation in which most of the retirement was spent, not in consideration of the issues, but on irrelevancies at the dictate of a senior officer bent upon indicating the ultimate path of the vote. Or, in discussion which exposed views of the participants which were so equivocal or ambivalent as to leave them with no idea of the intention of their fellows. Counsel said that the junior officers might, after such a discussion, have been left in a state of such equivocation that they were unable to make a decision except one triggered by the vote of a superior. Counsel said that the possible permutations were in no way exhausted by these examples. 101. I do not think it correct to speculate in this way. The Tribunal approached the matter by assuming that voting had been carried out in the wrong order. That put the case as favourably for the appellant as it could have been put. For my part, I think it enough to say that there was a material irregularity because of the form of the direction coupled with the fact that there was a real risk that, because of it, the members of the Court may have voted in the wrong order. 102. In the run of the submissions, there were statements made that the Rule no longer served any really useful purpose. It was of ancient origin and was thought to be necessary for the circumstances of the services in previous times. It is difficult to take that view when the Rule was made in 1985 after an amendment to the Discipline Act which was made specifically to put beyond doubt the power of the rule making authority to make such a rule. 103. In the submission of counsel for the appellant the error of law committed by the Tribunal involved the overlooking of a fundamental irregularity. Counsel referred to a number of authorities including The Queen v Hall [1971] VR 293 where Winneke CJ said (at 299) that, where a departure from the regular and duly recognised process of law is involved, the question of miscarriage of justice depends not upon the effect of the departure on the verdict, but upon whether there has been a serious departure from the essential requirements of the law. 104. In Wilde v The Queen (1988) 164 CLR 365 the High Court held that the proviso to s.6(1) of the Criminal Appeal Act (1912) NSW had no application where an irregularity had occurred which was such a departure from the essential requirements of the law that it went to the root of the proceedings. Where that occurred, it could be said, without considering the effect of the irregularity on the verdict, that the accused person had not had a proper trial and there had been a substantial miscarriage of justice. Wilde's case, as indeed was Hall's case, was a case involving the proviso. There is no provision in the present legislation in terms of the common form of proviso to be found in criminal appeal Acts in Australia. But the judges of the High Court used the expression "irregularity" so that the cases are of relevance here notwithstanding the different statutory language which is involved. 105. In Wilde, the High Court said (at 372-3): "...the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' (the phrase of Barwick CJ in Driscoll v The Queen (1977) 137 CLR 517 at 527); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. 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 of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see R v Hildebrandt (1963) 81 WN (Pt 1) (NSW) 143 at 148; R v Henderson [1966] VR 41 at 43; R v Couper (1985) 18 A Crim R 1 at 7-8. There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial: see Cooke, 'Venire de Novo' (1955) 71 Law Quarterly Review 100 at 128; R v Rose [1982] 1 WLR 614 at 621-622; [1982] 2 All ER 536 at 542; and, in the House of Lords [1982] AC 822 at 831-834. But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances." 106. In Glennon v The Queen (1994) 179 CLR 1, Mason CJ and Brennan and Toohey JJ said (at 8-9) that in order to apply the proviso where there had been a misdirection by the trial judge that was not fundamental in the sense discussed by the Court, the Court of Criminal Appeal must be satisfied that, in the absence of the misdirection, the jury would inevitably have reached the same verdict. This was said to be so even if the case against the accused was otherwise a strong one. However, the Judges had earlier said, after referring to Wilde (at 8): "In the circumstances of this case, it cannot be said that the trial judge's misdirection on the applicant's right to silence was 'so fundamental' that the trial was 'hardly a trial at all'. Although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in Wilde. In this case, the trial judge directed the jury that they were not to use the applicant's exercise of his right to silence in a manner adverse to him. This direction was perfectly proper. However, the trial judge then qualified the direction by informing the jury that they might use the applicant's silence to test the veracity of the applicant's defence. This subsequent direction was clearly erroneous. However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge's misdirection was not a fundamental irregularity. We would reject the applicant's submissions in so far as they are based on this approach to the proviso." 107. I do not think that the question we have to decide is without difficulty. Rule 33 is part of the procedural law applicable to the proceedings before the court martial and must be given its proper place and effect. It cannot be right to treat it as an anachronism or to undervalue its importance or significance. Its re-enactment in recent years and its retention in quite modern legislation demonstrates that Parliament intended it to have the significance and importance which it had always apparently had. 108. I must confess, however, that I find the procedure somewhat difficult to understand. At first sight, one might be forgiven for thinking that the members of the court martial would consider the matter before them in the absence of the accused, counsel and the Judge Advocate and then, without disclosing to each other their respective conclusions, return to give their verdict by announcing their votes in ascending order of seniority in open court. That indeed is what happened here but it was the President who announced the result on behalf of all the members of the Court. 109. It emerges from some of the older texts and from what was said during the submissions that the procedure followed in the present case is that which is ordinarily adopted. The voting is done - has apparently always been done - by the members of the court martial alone. It is not done in open court. Members of a court martial consider the matter in the absence of parties, their legal representatives and the Judge-Advocate just as a jury considers matters which have to be decided by it. In this respect, it may be noted that para. 73 of the Manual of Military Law (1956) issued by the War Office in the United Kingdom says that a Judge-Advocate will retire from the Court after his summing up has concluded. To enable the Court to deliberate on the finding in closed court, the Court will either be closed or the members of it will retire to another room. Paragraph 78 says that each member will give his opinion by word of mouth on each charge separately commencing with the junior and para. 79 that the Court having come to a finding, the President will re-open the Court. The finding will be announced by the President in open court. 110. The procedure may be compared with that where a court tries a case with a jury. The jury retires and considers its verdict. It votes in the jury room and, if it is agreed, returns with a verdict which is announced by the foreman. If a jury were told that it was to vote when in consultation in ascending order of age, there is a question whether it would be able to comply with such a direction. 111. Judges and others discussing the outcome of a case in private cannot usefully do so unless they express tentative or provisional views about the various matters to be decided. There is a discussion often of the pros and cons of deciding an issue this way or that and minds will often fluctuate influenced as they must be by the views of other members of the court or tribunal expressed in the run of discussion. Underlying the Rule appears to be an assumption that, although this process will go on as it does in so many other similar situations, it will go on to the stage where members are ready to announce their own decision but they will not announce it. One is left with the impression that the draftsman of the Rule thought that this was a possible process for human beings engaged in such an activity to engage in. That may be the philosophy of the services and it may be that my lack of understanding of that philosophy and history is the reason I have the difficulty to which I refer. 112. In the end, of course, if a court is about to announce a decision, the presiding member needs to know what the outcome will be and must ascertain from the members what, in each of their individual opinions, the result should be. Only in that way can the outcome be determined. The Rule requires that process to take place as the last act in the discussion. It is true to say that it always will, but what is difficult to understand is that it takes place once and for all with the junior officer voting first and the most senior officer voting last. As the Tribunal said, it is difficult not to think that the views of a particular member of the Court will not emerge sufficiently clearly from the discussion to be apparent to the other members when the vote is formally taken. A person whose views are made apparent in this way, even though they are not finally expressed, may be the most senior officer or one of the other officers senior to the most junior. But to say that that process, which is so necessary in the proper consideration of all matters of this kind must be strictly adhered to, imposes on members of the Court a procedure which may be impossible for ordinary human beings faithfully to carry out, notwithstanding a proper sense of duty and propriety and, indeed, honour. That is really the approach which the Tribunal adopted and the question is whether it was correct to do so. 113. My concern is that, if the Court says that it was, the effect of its decision in practical terms will be to write the Rule out of the legislation and thus run counter to the intention of those responsible for its very considered and deliberate retention. The trouble is that, if what has been decided by the Tribunal is correct, it would seem difficult ever to find a case in which a breach of the Rule would have any significance. That, I think, is the dilemma which confronts the Court in this case. 114. In the end one must go back to para. 23(1)(c) of the Appeals Act. It is common ground that there was a material irregularity. The Judge- Advocate's direction infringed Rule 33. The irregularity was material because of the presence of the Rule in the legislation coupled with its long history in the procedures of courts martial and its recent re-enactment which emphasises that the Rule has a modern place in that procedure. But, unless a material irregularity has brought about a substantial miscarriage of justice, the conviction will stand. That is the clear purport of para. 23(1)(c) which requires a conviction to stand unless the material irregularity has occasioned a substantial miscarriage of justice. 115. Counsel for the appellant has correctly reminded us that in cases where the irregularity involves such a departure from the essential requirements of the law that it goes to the root of the proceedings, there has not been a proper trial. The fact that a court may think that the accused was clearly guilty of the crime with which he was charged is not to the point. The error is regarded as so fundamental that it requires the conviction to be set aside. This is the purport of the decision of the High Court in Wilde to which I have referred. But the judges went on to emphasise that the proviso may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. That approach to problems of this kind was echoed in Glennon. 116. The language of the common form proviso and of para. 23(1)(c) are not the same. But the paragraph requires the Tribunal to sustain a conviction notwithstanding a material irregularity unless there has been a substantial miscarriage of justice. That is the question which arises for decision here. Has there been a substantial miscarriage of justice as a consequence of the misdirection? 117. In my opinion the overall circumstances of the case point strongly against that being so. Subject to what needs to be said about the onus of proof, the trial appears to have been conducted in orthodox fashion. There were substantial questions of credibility for the Court to resolve. That was a matter for it. The charges themselves were properly explained. No complaint has been made about any direction on the law other than that concerning the matter now being considered and the onus of proof with which I have yet to deal. The evidence was summarised by the Judge-Advocate in a balanced way. The members of the Court appear to have conducted themselves judicially and fairly. Understandably and, in my opinion, very properly, they took time for consideration. They had a number of matters to decide. They did not find the appellant guilty of any of the more serious charges, but they obviously accepted the substance of the case against the appellant. It is clear from their conclusions that they understood their not uncomplicated task very well, and they brought in findings which were clear and gave effect to the conclusions they had reached. Furthermore, these appear to have been reached in accordance with the way in which they were instructed to look at the matter in the Judge- Advocate's summing up. 118. The provisions of para. 23(1)(c) of the Appeals Act will not authorise the Tribunal to quash a conviction unless two elements are present. Firstly, there must have been a material irregularity. Plainly there was such an irregularity in this case. Then there must have been a substantial, i.e. grave or serious, miscarriage of justice. That question is posed generally in the language which is used but it should be inferred that the paragraph contemplates a substantial miscarriage of justice because of the material irregularity which has occurred. Having considered the matter, I have reached the conclusion that the failure of the Judge-Advocate to direct the members of the Court in accordance with Rule 33 was not in all the circumstances of the case the cause of any substantial miscarriage of justice in the proceeding. Subject to the question of the correctness of the direction given in relation to the onus of proof, it does not appear to me, from my reading of the evidence and the other material, that there has been any such miscarriage of justice. The submissions relied upon by counsel for the appellant should be rejected. 119. I turn to the question concerning the direction as to the onus of proof. The portion of the summing up which is complained of is in the early part of the Judge-Advocate's charge. The sentence in question needs to be read in context so that the quotation from the summing up which contains it is rather longer than perhaps is necessary. The Judge-Advocate said: "The onus of proof. By entering a plea of not guilty, the accused has raised issues of fact for the court to determine. The prosecution has the task of proving the accused's guilt. The accused, on the other hand, does not have to prove anything. The standard of proof which is to be applied. The standard of proof which the prosecution is required to meet is proof beyond reasonable doubt, and I will say more about that later. The accused need do no more than raise a reasonable doubt in the mind of the court. If when you have heard and considered the whole of the evidence relevant to the charges, you are not satisfied beyond reasonable doubt of the guilt of the accused, you must acquit him because the prosecution will have failed to discharge the burden which has been placed upon it." The emphasis is added. 120. The vice in what was said is to be found in the sentence in the second paragraph, "The accused need do no more than raise a reasonable doubt in the mind of the court." The sentence appears in a portion of the summing up where the Judge-Advocate is dealing with the standard of proof rather than the onus, but the sentence complained of deals with onus and not with the standard. So does the last sentence of the quoted paragraphs. 121. The sentence which I have emphasised in the quoted passage involves a clear misdirection and a material irregularity. If, reading the summing up as a whole, that sentence conveyed the impression that the appellant bore an onus himself to raise a reasonable doubt, it would follow that there had been a substantial miscarriage of justice. The most important directions which are given by a judge summing up to a criminal jury or by a judge-advocate summing up to the members of a court martial concern the onus and the standard of proof. The direction is wrong because it suggests that the appellant bore an onus himself to raise a reasonable doubt. That is a fundamental error. This was explained by the High Court in Pryor v The Queen (1969) 43 ALJR 388. Barwick CJ, who gave the principal judgment, said (at 388): "The submission of counsel for the applicant is that a passage in the summing up in the following terms was calculated to give the jury the impression that some onus or obligation rested on the accused to raise a doubt as to their guilt. I will read the passage in full. 'In this case the Crown has brought for trial two accused and the law is the Crown must prove their case against the accused. The burden of proof lies throughout upon the Crown. The burden lies throughout upon the Crown to prove the guilt of the accused beyond any reasonable doubt. The accused are not bound to establish their innocence. It is sufficient if they raise a doubt as to their guilt and if, after considering the circumstances of this case, as disclosed in the evidence on both sides, and taking into account the statements of the accused, there remains in your minds a doubt, that is to say, a real doubt based on commonsense, if you have such a doubt, then the accused must be acquitted." 122. Barwick CJ went on to say (at 388) that, if he could conclude that the impression could have been given to the jury by what he had read that it was for the accused to raise a doubt as to his guilt, he would think that the summing up was fundamentally incorrect and that the error could not be overlooked because of the absence of an objection by counsel at the trial. But he said that, after reading and rereading the passage, he was unable to conclude that it could be heard as reasonably creating the impression suggested by counsel. The passage taken with the summing up as a whole could not reasonably be heard as a direction that the accused bore an onus or obligation to raise a doubt. 123. His Honour added (at 388): "I would like to add, however, that in my opinion, the use of such an expression as occurs in this summing up namely, that 'it is sufficient if they raise a doubt', is to say the least standing by itself ambiguous, and that such an expression ought not to be used in a summing up. The jury, in my opinion, should be told simply that if at the end they entertain a reasonable doubt they should acquit. Also such a direction, as I have last mentioned, ought not, in my opinion, to be associated with a direction that the accused does not bear an onus or that the accused does not have to establish his innocence. It is the verbal association of these two concepts in the present case that has afforded the occasion for the attack upon the summing up." 124. The other judges of the Court, McTiernan, Kitto, Menzies and Windeyer JJ, agreed in the judgment of Barwick CJ but McTiernan J said (at 388) that he had come to his decision with some reluctance "in view of the observations made by the Chief Justice about the particular passage." 125. In the passage I have quoted from the summing up in this case, the remarks made by the Judge-Advocate would have been plainly correct except for what was said in the offending sentence. If it had been omitted, there would have been no problem. Furthermore, there is no repetition of the error in surrounding statements of the Judge- Advocate. Two paragraphs further on, when dealing with the first charge, he said that the members of the Court had to be satisfied beyond reasonable doubt of each element of the charge. It is true that that statement may be regarded as equivocal in relation to the present problem because it did not make it clear that the onus of satisfying the Court beyond reasonable doubt was on the prosecution. 126. In respect of the succeeding charges similar remarks were made. Later, however, the Judge-Advocate said: "You have to be satisfied that if it happened, it happened in the presence of PTE Smith, and I think there is ample evidence for you to consider that for yourselves; that the incident, if you find it occurred, happened without her consent. You will recall PTE Smith gave evidence that she did not consent to the incident and that she had complained to WO Cramp. You have to be satisfied - and when I say 'satisfied' throughout this summing up, I mean satisfied beyond reasonable doubt as to each of the elements - you have to be satisfied that the accused knew that she did not consent or was reckless as to whether she consented or not. The prosecution, therefore, is required to prove that SGT Hembury knew PTE Smith was not consenting to his actions or was reckless. The term 'reckless' means that the accused's state of mind was such that he realised the possibility that PTE Smith was not consenting to what he did, but went ahead notwithstanding." Again the emphasis is added.