The Court of Appeal dismissed Mark Beatty’s appeal against refusal of his application for non-party discovery of a recording of his summary Court-Martial appeal hearing. It affirmed the High Court decision, holding that he could seek access through an application to the Military Judge and had not shown that discovery was necessary to resolve material factual disputes in his judicial review case.
The application concerned a digital audio recording (DAR) of the hearing, which had not been transcribed. Beatty had challenged his conviction for insubordination under section 133 of the Defence Act 1954, arguing that the charge did not disclose an offence known to law and that irrelevant and prejudicial evidence had been admitted despite his solicitor’s objections. He sought judicial review and other relief, including damages.
The Court of Appeal did not decide whether Rule 40 of the Rules of Procedure (Defence Forces) 2008 gave Beatty a right to obtain the recording from the Court-Martial Administrator (CMA). The court said that question was not properly determined through an application for discovery. It also rejected Beatty’s objection that asking the Military Judge to direct release of the recording would improperly involve a respondent in the judicial review. The judge could consider such an application without entering the forensic dispute.
The court found that an alternative route to seek access was available. The Director of Military Prosecutions had offered to apply to the Military Judge, with the respondents bearing the transcript production costs, but the outcome of that application could not be guaranteed. Beatty had not accepted the proposal. The court said discovery should not be ordered where the documents could be sought by other means.
It also held that challenging the outcome of a judicial or quasi-judicial hearing does not, by itself, establish a right to its transcript or recording. Beatty had to connect the recording’s necessity to specific issues in the proceedings and identify material factual conflicts. The court concluded he had not done so. It also indicated it would not admit a new affidavit delivered shortly before the appeal hearing, noting that it raised matters that could have been addressed in the High Court and did not clearly set out the alleged conflict.
The court proposed that neither side receive costs in either court. That was a provisional proposal: either party could dispute it by notifying the Court of Appeal Office within seven days. The court did not finally determine the interpretation of Rules 39 and 40 or whether Beatty had an independent right to the recording.