Hines v Commissioner of Police[2016] QCA 3

SUPREME COURT OF QUEENSLAND

[1] MORRISON JA:  Mr Hines marched in the 2012 Anzac Day parade in Brisbane.  He was at the rear of the Australian Army Training Team Vietnam, and wore various medals and ribbons on the left breast of a replica uniform.

[2] It was accepted that during the parade he represented himself to be a returned veteran of the Vietnam conflict, and that he wore duplicates of these service decorations: the Australian Active Service Medal, Vietnam Campaign Medal, Australian Service Medal, Republic of Vietnam Gallantry Cross with Palm, and the Infantry Combat Badge.

[3] Mr Hines was charged with two offences under the Defence Act 1903 (Cth) namely: falsely representing himself to be a returned soldier (s 80A), and improperly wearing service decorations that were not conferred on him (s 80B).

[4] He was convicted in the Magistrates Court.  On the first count he was released on a recognizance order in the sum of $1,000, on condition that he be of good behaviour for two years, and that he be subject to probation for 12 months.  On the second count he was fined $500.

[5] Mr Hines appealed the convictions and sentence under s 222 of the Justices Act 1886 (Qld).  The appeal was heard in the District Court.  It was dismissed on 28 November 2014.[1]

[6] Mr Hines seeks to challenge the dismissal of his appeal in respect of his conviction.  He applies for leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld).  Having filed his application for leave to appeal 12 days late, he also seeks an extension of time to lodge that application.

[7] The issues raised by the application for leave to appeal are whether:[2]

(a) an appeal is necessary to correct a substantial injustice; and

(b) there is a reasonable argument that there is an error to be corrected.

[8] On the application for an extension of time the issues are whether:[3]

(a) good reason for the delay has been shown; and

(b) it is in the interests of justice to grant the extension;

(c) that may necessitate a provisional assessment of the strength of the proposed appeal, the prejudice to the respondent, and the length of the delay.

Extension of time

[9] Mr Hines represented himself in the District Court and before this Court.  He explained that he attended at the registry to file his application for leave to appeal on 2 January 2015, the last day of the relevant period.  The registry was closed and when he spoke to an “on-call” registrar he was advised to apply for an extension of time.  By the time he worked out what documents to use and prepared them he was able to file the application on 14 January 2015, thus 12 days late.[4]

[10] The respondent conceded the delay was not long and that the explanation was “somewhat understandable given that [Mr Hines] is self-represented”.[5]  It was also conceded that no prejudice was suffered by the respondent.  Therefore those issues can be put aside.

[11] However, it was contended that the application for the extension should be refused because the prospects of the proposed appeal were not promising.  Since the prospects of success of the proposed appeal is a question that must be addressed in the application for leave to appeal, I will do so as part of that consideration.

Leave to appeal – prospects of success

[12] Mr Hines’ appeal to the District Court was under s 222 of the Justices Act 1886 (Qld).  Any appeal to this Court must be under s 118(3) of the District Court of Queensland Act 1967 (Qld).  There are differences between the two, as explained in White v Commissioner of Police:[6]

“There is therefore considerable difference between the nature of the appeal that was available to the applicant from the Magistrates’ Court to the District Court and that which he seeks to bring from the District Court to this Court. In the appeal to the District Court, s 223 of the Justices Act provides for a rehearing on the evidence given at trial, and any new evidence adduced by leave. That is a rehearing, in the technical sense consisting of a review of the record of the proceedings below, rather than a completely fresh hearing. To succeed on such an appeal an appellant must establish some legal, factual or discretionary error.[7] By contrast, an appeal to this Court from the District Court seeking to review the decision of the District Court in its appellate jurisdiction, may only be made with leave of this Court, and is not an appeal by way of hearing, but a strict appeal where error of law must be demonstrated.[8]”

[13] Therefore, in order to demonstrate prospects of success in the proposed appeal Mr Hines must identify error of law in the decision of the District Court.

[14] In order to assess the prospects it is helpful to understand the essential nature of the cases advanced by the prosecution and Mr Hines.  As mentioned above the prosecution case was that Mr Hines falsely represented himself to be a returned soldier, and a veteran of the Vietnam conflict.  It led evidence in three categories:

(a) first, from the Central Army Records Office; the military service record of Mr Hines was produced; it showed that he served in the Citizens Military Force (CMF) but never in a different unit, or on overseas service, nor did he receive any awards; all of those matters would have been noted in the records had they occurred;

(b) secondly, from the Directorate of Honours and Awards in the Defence Department; that witness explained that their records did not have any notation of Mr Hines receiving an award, nor any decoration; specifically, there was no record of Mr Hines being awarded the medals he wore in the Anzac parade;

(c) thirdly, the interviewing police officer was called; he was cross-examined with a view to showing the details that he had been given by Mr Hines in the seven hour interview; those details included service in Vietnam and elsewhere as a member of an undercover clandestine military unit; the officer was also cross-examined about the extent to which he had checked the information given.

[15] Mr Hines did not give evidence at the trial before the magistrate.  The police interview with him was put into evidence.  During the interview Mr Hines said that he was, in fact, a returned veteran of the Vietnam conflict where he had served in a clandestine, deep cover, special-forces “black ops” unit.  It was called MASK, the Military Assessment Service Keep.  He said he served on 48 different missions with MASK, in 21 different countries, from 1966 to 1982.  That included five or six missions in Vietnam, in 1968, 1969 and the early 1970’s.  He said the medals were conferred on him in secret ceremonies.

[16] The learned primary judge referred to the difficulties posed by the way the trial was conducted:[9]

“The case that was advanced for [Mr Hines] at the trial was that, given the detailed account which had been provided by [him] to the investigating officer, which had not been disproved in detail, the court could not be satisfied beyond reasonable doubt that the proposition that he had served in Vietnam was false, and that the proposition that these various awards had been conferred on him was false. The first difficulty with that case is that it was not put in cross-examination to the other two witnesses who were in a position to give evidence as to whether, if [Mr Hines] had served in such a clandestine military force, details of it would be kept on the records which were produced, and whether medals were ever awarded which were not covered by the records of the directorate. In these circumstances the court was entitled to take the evidence of these people at face value, to the effect that the records were comprehensive in this respect. In the event, his Honour held that he was not left in reasonable doubt as to all of the elements of each charge. [Mr Hines] was therefore convicted of each charge.”

[17] As to the appeal to the District Court, the learned primary judge again adverted to the difficulties confronting Mr Hines’ contentions.  Mr Hines submitted that he did not receive a fair trial because he was not allowed to give evidence or to place relevant evidence before the court.  He said that his solicitor had not conducted the trial in accordance with his instructions.  However, as the learned primary judge found:[10]

“No attempt was made by [Mr Hines] to demonstrate that the reasoning of his Honour was wrong in any way, or that the conclusion he reached was wrong on the basis of the evidence led at the trial. [Mr Hines’] argument was essentially that there was more evidence available to him, which if led would have shown that he had in fact served in Vietnam, and had been awarded the relevant decorations, or at least that the evidence would have given rise to a reasonable doubt about the allegations of the prosecution to the contrary.”

[18] The learned primary judge then reviewed the essential account of service in the clandestine MASK unit, and Mr Hines’ contention that because of the nature of MASK, its existence and activities were kept secret, so that the connection between MASK and the government could be denied if necessary.  His Honour went on:[11]

“[Mr Hines] has no objective material which supports this account, nor is he able to produce any other person who can say that he served with [Mr Hines] in this unit in this way. He claims that the various medals that were conferred on him were conferred in private ceremonies. It is this feature which provides a logical difficulty with his story: assuming that the government had a clandestine military force set up in such a way that its existence and activities were deniable, even to the point of being able to deny that the personnel serving in it were Australian military personnel, so that their service in it would not show on their service records, it would be entirely inconsistent with the maintenance of such deniability to confer ordinary service decorations upon such individuals.”

[19] The learned primary judge then reviewed the contentions advanced by Mr Hines, taking into account the extra material which Mr Hines said he would have put before the magistrate if had been allowed to do so.  The contentions included:

(a) criticism of the prosecution for failing to put evidence in or to call certain witnesses;

(b) criticism of the failure to call the person who supplied him with the duplicate medals worn in the Anzac parade;

(c) criticism of the failure to call his medical practitioner to prove that Mr Hines had wounds consistent with bullet wounds and that he had contracted malaria in the past;

(d) criticism of the failure to call someone who had investigated his case for the Department of Veteran Affairs;

(e) analogies with RAAF personnel who had provided support for troops in Vietnam from a base in Thailand;

(f) support sought to be drawn from two books entitled “Soldiers Without Borders” and “The Assassination of Harold Holt”;

(g) inferences he said should have drawn from some physical articles he produced, namely a steel battle-axe, a letter dated March 1967, a pair of old jungle boots and an old shoulder patch;

(h) arguments that the Magistrate was biased, or should have directed himself differently; and

(i) new material that Mr Hines sought to adduce.

[20] In each case the learned primary judge gave comprehensive reasons why there was nothing in the point raised.[12]

[21] The last point in paragraph [19](i) above deserves some mention.  Some of the new material put forward was found to have been fabricated, which accounted for why they had not been used at the trial.[13]  Further, a reference in one of the fabricated documents to “MASK S/P” was inconsistent with other new material put forward:[14]

“These are letters to [Mr Hines] dated 14 October and 28 October 2013, from the then Chief of the Defence Force and the then Acting Chief of the Defence Force each of which asserts that the Australian Defence Force has no record of the “military assessment surveillance keep” referred to, that is to say “MASK”. These letters are consistent with only two rational possibilities: [Mr Hines’] account is a complete fabrication, or the Australian Defence Force is maintaining a policy of denying the existence of such a unit, and that [Mr Hines] (or I suppose anyone else) served in it. Even though theoretically consistent with the latter explanation, they do not amount to evidence in support of it. This points up the absurdity of the notion that if such a unit existed the authorities would confer conventional service decorations on the individuals who had served in it, even in secret.”

[22] In none of the findings to that point of the reasons below is there discernable error of law.

[23] Because the thrust of Mr Hines’ contention on the appeal to the District Court was that he did not receive a fair trial because he was not allowed to give evidence or to place relevant evidence before the court, which was what he wanted to do, the learned primary judge then turned to a consideration of the impact of the extra material.  His Honour said:[15]

“Having considered the material now put forward by [Mr Hines], and heard and considered his submissions, I have no hesitation in concluding that he has not lost any chance of acquittal because of the failure of his legal representative to put this material forward at the trial, or otherwise to conduct the trial differently, in the way that [Mr Hines] has submitted it ought to have been conducted.

Most of the matters sought to be relied on by [Mr Hines] are plainly inadmissible, either on the ground of hearsay, or simply on the ground that they are irrelevant because they provide no rational support for [his] case or any rational basis for casting any doubt on the respondent’s case. There is nothing that [Mr Hines] is able to put forward which provides any objective support for the existence of the clandestine military unit in which he alleges that he served, or his service in it, or that for such service he was awarded conventional service decorations, albeit secretly.”

[24] Mr Hines’ arguments before this Court, both written and orally, have failed to identify any error of law in the learned primary judge’s assessment.  That assessment was based on a consideration of the evidence at the trial as well as the additional material that Mr Hines wished to advance.[16]  That was appropriate given that the appeal to the District Court was by way of a rehearing: s 223 of the District Court of Queensland Act 1967 (Qld).  However, the same does not apply on the application to appeal to this Court, which if granted leads to a strict appeal, where error of law must be demonstrated to succeed.

[25] Indeed Mr Hines faced the same logical difficulty in this Court as was identified by the learned primary judge.  That difficulty arose from the very fact that the medals worn by Mr Hines were the Australian Active Service Medal, Australian Service Medal, and the Infantry Combat Badge.  The unchallenged evidence from the Directorate of Honours and Awards in the Defence Department, as to the qualifications required for the award of the various service medals, was that:

(a) the Australian Active Service Medal was issued to an active member who had undertaken warlike service, namely engaged in an operation that has been deemed warlike;

(b) the Australian Service Medal was an award for members who had rendered non-warlike service overseas; and

(c) the Infantry Combat Badge was a badge awarded to a member of the infantry after 90 days’ service on operations as part of the infantry.

[26] As the learned primary judge said:[17]

“One logical difficulty with his case is that, whether the service in this clandestine unit constituted warlike service or not, it must have been one or the other, so that theoretically he might have qualified for either the Australian active service medal or for the Australian service medal, but not both. Furthermore, if this secret unit was not part of the army, it was certainly not part of the infantry, so he could not have qualified for the infantry combat badge through service in it.”

[27] With respect, I share that view.  The evidence from the Directorate of Honours and Awards in the Defence Department as to the medals, and the finding in paragraph [26] above, formed a significant part of the basis for the learned primary judge’s conclusion that he had no reasonable doubt that Mr Hines was guilty of both offences.[18]  No error of law has been identified in that process.

[28] Mr Hines set out many proposed grounds of appeal.[19]  Most do not identify a challenge based on an error of law in the reasoning of the learned primary judge.  I intend to deal only with those that arguably do.

[29] Grounds (a) and (k) contend that Mr Hines did not receive a fair hearing on the appeal because “almost the entire evidence was brushed aside or received a smidgen of interest”,[20] and the learned primary judge “showed no interest in [Mr Hines’] exhibits yet agreed with Crown evidence and exhibits even though trite”.[21]  That is not borne out by a consideration of the reasons or the transcript in the District Court appeal.  Mr Hines received a detailed, and balanced, consideration of the material he urged in his favour, including that which was not strictly admissible.

[30] Ground (aa) contends that the learned primary judge “waves off Book Excerpts as hearsay and not significant”.  This refers to the books “Soldiers Without Borders” by Ian McPhedran and “The Assassination of Harold Holt” by Paul McLeod.  Mr Hines sought to compare passages in a draft book he had co-written with the two books in order to support his evidence.  However, the learned primary judge was plainly correct in his assessment:[22]

“Similarities he alleges exist between what he says in his story and things written in these books prove nothing. The fact that these people describe events which bear some similarity to events described by the appellant does not make what they say admissible as evidence, partly because there is no evidence that they are describing the same events, and partly because there is no evidence that what these other people are saying is something which was true within the knowledge of the authors. The fact that something is said in a book which has been published does not make it evidence of its truth.”

[31] Ground (cc) contends that the learned primary judge disregarded a letter dated March 1967 as being “hearsay and not significant”.  The learned primary judge did not disregard the letter.  It is referred to in paragraph [20] of the reasons.  What his Honour found is that the letter would not “provide evidence that [Mr Hines] had served in Vietnam, or that any particular medals had ever been awarded to him”.  That conclusion was correct.  According to Mr Hines[23] the letter was “from a Sergeant known to [Mr Hines] as Arthur Ralph (who could not be located by Police)”.  Sergeant Ralph was said by Mr Hines to be “the Chief Instructor of MASK techniques”, and that “his identity may or may not have been the same or known to [Mr Hines] during those early years”.[24]  The problems with admissibility are obvious, as the author is unable to give evidence and there is nothing to establish that he had actual knowledge of the facts in the letter, or that they were true.

[32] Ground (ll) contends that the learned primary judge considered Mr Hines’ evidence of Government Black Operations from 1966-1982 as “self-serving”.  This ground relates to the prosecutor’s refusal to tender Mr Hine’s interview at the trial.  The learned primary judge dealt with that contention in these terms:[25]

“The appellant criticised the failure of the prosecution to put in evidence the content of his interview with the investigating officer, but there was no obligation on the prosecution to put in evidence that interview. There is good authority for the proposition that if an out of court statement by a defendant is entirely self-serving it is inadmissible as hearsay.[26] It is true that if there is an interview which includes admissions on which the prosecution seeks to rely it is necessary for the prosecution to put in evidence the whole of the interview, and the self-serving parts of the interview are available then as evidence in the trial as well as those parts that constitute admissions.[27] Nevertheless, a prosecutor is not obliged to put in evidence an interview which is largely self-serving just because it contains one or more admissible admissions. No valid criticism can be made of the prosecutor in the present case for failing to tender that recorded interview.”

[33] This ground does not establish an error of law.  The learned primary judge’s treatment of this evidence was unimpeachable.  Further, the logical difficulties confronting Mr Hines’ version of events, together with the findings as to the poor evidentiary value of those things said to support his version, provided a solid basis for the rejection of Mr Hines’ account at trial and on appeal.

[34] Ground (mm) contends that the learned primary judge did not consider a statement from General David Hurley to the Courier Mail.  The statement consisted of a reference to an announcement by General Hurley on 3 October 2013, in relation to the capture of a fugitive Afghan soldier in Afghanistan.  The story in the Courier Mail commenced: “Elite Australian spies in the Government’s most obscure intelligence agency were behind the capture…”.  General Hurley is referred to as making an announcement “of the development” and in doing so “took the unusual step of revealing the involvement of Australia’s most secretive intelligence bodies”.  There are no direct quotes of what the General said.

[35] Mr Hines wrote twice to General Hurley following the story.  The response was that “the Australian Defence Force has no record of the ‘Military Assessment Surveillance Keep’ you refer to”.  Mr Hines contended that the letters somehow established the truth of his account.  Of course, they did not, nor were they admissible.  Quite apart from anything else, the story related to events more than 30 – 45 years after the period of Mr Hines supposed service in MASK.  The learned primary judge was right to ignore them, and the story in the Courier Mail.

[36] None of the grounds has any merit and nothing raised in argument identified an arguable error of law on the part of the learned primary judge.  The prospects of success on the proposed appeal are hopeless.

[37] It should be mentioned that Mr Hines applied for leave to adduce further evidence on the hearing of the application before this Court.  The question of leave was reserved, as was the question of the admissibility of any of the material sought to be tendered.  I have examined the new material.  None of it advances Mr Hines’ case in terms of admissible or cogent evidence supporting his claim to have been a member of MASK, or serving in Vietnam or elsewhere overseas.  The application to adduce further evidence should be refused.

Need to correct a substantial injustice

[38] Given the conclusion that the proposed appeal has no prosects of success it is not necessary to deal with this question.

Application for leave to appeal against sentence

[39] In the material sought to be advanced as new evidence before this court, Mr Hines included an unfiled application for leave to appeal against his sentence.  Nothing was said in his written or oral submissions as to why the learned primary judge was in error in his treatment of that part of Mr Hines’ appeal in the District Court.  That seems to mirror the course taken on that appeal, where no specific submissions were made as to the sentence imposed.[28]

[40] The learned primary judge nonetheless reviewed the maximum penalty that might be imposed, the fact that Mr Hines had no prior criminal history, the trend in comparable cases, Mr Hines’ age and personal circumstances, and the fact that his admissions demonstrated cooperation with the authorities.[29]  His Honour said:[30]

“In all the circumstances, it seems to me that the fine, which was really fairly modest even for a pensioner, cannot be said to be manifestly excessive, even in circumstances where the appellant was also released on a bond for two years to include one year’s probation. It may be that other sentences could have been imposed on him. Overall I am not persuaded that the sentences imposed were manifestly excessive, or that the sentencing discretion otherwise miscarried. This aspect of the appeal is also dismissed.”

[41] No error of law is shown in respect of that part of the learned primary judge’s reasons.

Conclusion

[42] For the reasons given above I would refuse the application for extension of time.  I propose the following orders:

1. The application to adduce further evidence is refused.
2. The application for an extension of time is refused.
3. The applicant is to pay the respondent’s costs, of and incidental to the application, to be assessed on the standard basis.

[43] PHILIPPIDES JA:  I agree with the orders proposed by Morrison JA for the reasons given by his Honour.

[44] NORTH J:  I agree with the orders proposed by Morrison JA for the reasons given by his Honour.