Chapter 1
Annual reports
Director of Military Prosecutions
1.1
The Director of Military Prosecutions Report for the period 1 January to
31 December 2012 was tabled in the Senate on 15 May 2013. This is the sixth
report presented to Parliament by Brigadier LA McDade.
1.2
Brigadier McDade noted that this will be her last report as her term as Director
of Military Prosecutions (DMP) will expire on 11 July 2013. As such, Brigadier
McDade took the opportunity to thank the officers, non-commissioned officers
and Australian Public Service staff that have been posted to or worked at the
office during her appointment. She acknowledged that:
It is through their collective efforts, hard work, dedication
and support that the office has developed into an effective prosecutorial unit.[1]
1.3
The Office of the DMP is a statutory body created under the Defence
Force Discipline Act 1982 (DFDA). The position of the DMP was created by
section 188G of the DFDA and commenced on 12 June 2006.[2]
The office holder must be a legal practitioner with not less than five years
experience, and be a member of the Permanent Navy, Regular Army or Permanent Air
Force, or be a member of the Reserves rendering full-time service, holding a
rank not lower than the rank of Commodore, Brigadier or Air Commodore.[3]
1.4
Under section 188GA of the DFDA, the DMP has the following functions:
-
to carry on prosecutions for service offences in proceedings before a
court martial or a Defence Force magistrate, whether or not instituted by the
Director of Military Prosecutions;
-
to seek the consent of the Directors of Public Prosecutions as required
by section 63;
-
to make statements or give information to particular persons or to the
public relating to the exercise of powers or the performance of duties or
functions under this Act;
-
to represent the service chiefs in proceedings before the Defence Force
Discipline Appeal Tribunal; and
-
to do anything incidental or conducive to the performance of any of the
preceding functions.[4]
1.5
The primary function of the DMP is to carry on prosecutions for service
offences in proceedings before courts martial or Defence Force magistrates.[5]
Personnel
1.6
Brigadier McDade reported that at the commencement of the reporting
period the DMP had established 15 positions for prosecutors, a senior
commissioned officer performing the duties of a Service Police Investigations
Liaison Officer, and eight civilian support staff.[6]
External Associations
1.7
Brigadier McDade noted that, since 2007, prosecutors from the Office of
the DMP have been admitted as members of the Australian Association of Crown
Prosecutors (AACP). The AACP held its annual conference in Darwin in 2012.
Brigadier McDade, the deputy Director and two junior prosecutors attended the
conference, titled 'Crocs, Crooks and Chromosomes'. Brigadier McDade noted that
the conference provided:
...a practical look at DNA evidence and a unique opportunity to
explore the most effective methods of interpreting and presenting DNA evidence
in criminal trials, from a purely prosecutorial perspective.[7]
Internal (Department of Defence) Liaison
1.8
During the reporting period, Brigadier McDade provided regular reports
to the Chief of the Defence Force and the Service Chiefs. Quarterly reports on
the operations and workload of the Office of the DMP were provided to the
Minister.[8]
1.9
Brigadier McDade noted that the Military Justice Coordination Committee
(MJCC) has provided an effective forum to initiate amendments to the DFDA. This
committee was created in response to the Street/Fisher recommendation that a
committee be formed to:
Oversee and coordinate DFDA action items and facilitate
future efficiencies across the principal responsible DFDA agencies.[9]
1.10
The matters raised with the MJCC by Brigadier McDade included:
-
difficulties concerning the framing and extent of drug offences
under the DFDA compared to equivalent legislation in other jurisdictions; and
-
providing input on proposed changes to the investigative
provisions of the DFDA to update and improve those provisions.[10]
1.11
The OMDP continued to support the Defence Police Training Centre in its
training of service police in investigations and the management of
investigations.[11]
Contact with military prosecuting authorities of other armed forces and
other organisations
1.12
In May 2012, Brigadier McDade attended the XIXth Congress of
the International Society for Military Law and the Law of War in Quebec,
Canada. While in Canada, Brigadier McDade also met with the Canadian Director
of Military Prosecutions, Colonel Mario Leveillee who had just taken over the
role from Captain John Maguire, Royal Canadian Navy. She was provided with
briefings on the history and passage of Canada's recent military justice
legislation. Brigadier McDade noted that the two offices are highly
comparable, with similar caseloads, staffing levels and statutory powers and
constraints.[12]
Caseload
1.13
Brigadier McDade noted that from 1 January 2011 to 31 December 2012, 38 Defence
Force Magistrate (DFM), 11 Restricted Courts Martial (RCM) and one General
Court Martial (GCM) hearings were held. She also provided the following caseload
data for the reporting period:
-
32 matters were not proceeded;
-
35 matters were referred back for summary disposal;
- two matters were referred to civilian Directors of Public
Prosecution; and
-
as at 31 December 2012, Office of the DMP had 51 open matters.[13]
Significant cases
1.14
The annual report cited seven significant cases heard during the
reporting period:
- Li v Chief of Army [2012] ADFDAT 1: on 8 April 2011, Major
Li was convicted by RCM of creating a disturbance on service land. An appeal to
the DFDAT was heard on 16 December 2011 which was dismissed on 15 March 2012.
- Li v Chief of Army [2012] FCAFC: on 13 April 2012, Major
Li lodged an appeal against the DFDAT decision with the Federal Court of
Australia. The appeal was heard on 13 November 2012. The appeal was dismissed
by a majority of the Full Court of the Federal Court of Australia on 26 February 2013.
- Jones v Chief of Navy [2012] ADFDAT 2: in December 2011,
Lieutenant Commander Jones was convicted by GCM of seven counts of 'indecent
conduct upon an Able Seaman without her consent' and one count of 'attempting
to destroy service property'. An appeal against the convictions on 'indecency
offences' to the DFDAT was heard on 15–16 March 2012. On 22 May 2012, the
appeal was dismissed (except for quashing one conviction, but convicting him of
the alternative charge of prejudicial conduct).
- Jones v Chief of Navy [2012] FCAFC 125: on 19 June 2012,
Mr Jones lodged and appeal to the federal Court of Australia against the DFDAT
decision. The appeal was heard on 19 July 2012. The appeal was dismissed on
7 September 2013 and Mr Jones was ordered to pay the Chief of Navy's
costs.
- Bateson v Chief of Army [2012] ADFDAT 3: on 3 August 2010,
Sergeant Bateson as convicted by a DFM of two charges of insubordinate conduct.
An appeal to the DFDAT was heard on 27 April 2012, and in its decision of
25 May 2012, the appeal was allowed and the convictions quashed. The DFDAT
did not order a retrial.
- King v Chief of Army [2012] ADFDAT 4: on 28 September
2012, the DFDAT heard an appeal in relation to the conviction of Warrant
Officer Class One King by a DFM on one count of disobeying a lawful command,
two counts of prejudicial conduct, and a single count of giving false evidence
to an Inspector General-ADF inquiry officer. The DFDAT decision of
28 September 2012 allowed the appeal and quashed the convictions.
-
General Court Martial of Captain Stefan King, RAN: on 12 December
2012, Captain Stefan King, RAN was convicted by a GCM of three counts of
obtaining a financial advantage by deception, and four counts of obtaining
financial advantage contrary to subsection 61 (3) of the DFDA and section 135.2
(1) of the Criminal Code Act 1995 (Cth). Captain King has filed a notice
of appeal against his convictions in the DFDAT.[14]
Afghanistan—Detainee Management—Allegations of Procedural Misconduct
1.15
Brigadier McDade noted that the Australian Defence Force Investigative
Service (ADFIS) commenced an investigation in January 2011 into
allegations that previous members of the Detainee Management Team within the
ADF Initial Screening Area in Afghanistan 'did not comply with procedures
relating to the management and administrative processing of detainees and in
particular the requirement to maintain accurate records of that management and
processing'. Following the ADFIS investigation, four members of the previous
Detainee Management Team were charged with services offences alleging
falsification of service documents about detainees. Three of the trials concerning
these matters had been held at the time of reporting; the fourth trial was
scheduled for April 2013.[15]
Military Court of Australia Bills
1.16
The Military Court of Australia Bill 2012 and the associated Military
Court of Australia (Transitional Provisions and Consequential Amendments) Bill
2012 were introduced into the House of Representatives on 21 June 2012, and
referred to the Senate Legal and Constitutional Affairs Committee on 28 June
2012. Brigadier McDade made 'a succinct submission to the Committee, expressing
the hope that the Bills are constitutionally sound because it is inevitable
that they will be challenged'.[16]
1.17
The committee's report, tabled in the Senate on 9 October 2012,
recommended that the bills be passed subject to certain amendments being made
to the explanatory memoranda. Brigadier McDade noted that it was uncertain when
debate on the bills would resume in the House of Representatives. She urged
that,
...consideration be given to proceeding separately with those parts
of the second Bill which are not contingent on the establishment of the
Military Court of Australia, so that improvements such as statutory recognition
of the role of the Director of Defence Counsel Services are not held up.[17]
Investigative provisions of the
DFDA
1.18
Brigadier McDade observed that the investigative provisions of the DFDA
are in need of legislative reform and again noted the examples provided in the
previous annual report.[18]
Assistance to victims of service
offences
1.19
Brigadier McDade noted her ongoing focus on the positive management of
victims, including working with the Head of the Sexual Misconduct Prevention
and Response Office to support victims of sexual offences as well as assisting
in providing case studies for the purpose of educating commanders and ADF
personnel on the prevention of sexual offences.[19]
Information communication
technology (ICT) function
1.20
Brigadier McDade reported a number of ongoing information technology
problems for the ODMP. She noted that these concerns were raised in the
previous annual report.[20]
Table of Offences
1.21
The report included the following table of offences:[21]
Class of Offence
|
RAN
|
ARMY
|
RAAF
|
TOTAL
|
Acts intended to cause injury
|
1
|
16
|
14
|
21
|
Sexual assault and related offences
|
2
|
7
|
4
|
13
|
Dangerous or negligent acts endangering persons
|
0
|
1
|
0
|
1
|
Theft and related offences
|
4
|
3
|
1
|
8
|
Fraud, deception and related offences
|
7
|
14
|
8
|
29
|
Illicit drug offences
|
0
|
3
|
0
|
3
|
Prohibited and regulated weapons and explosives offences
|
1
|
1
|
0
|
2
|
Property damage and environmental pollution
|
1
|
1
|
0
|
2
|
Traffic and vehicle regulatory offences
|
0
|
6
|
0
|
6
|
Offences against justice procedures, government security and
government operations
|
1
|
0
|
0
|
1
|
Specific military discipline
offences
|
14
|
22
|
3
|
39
|
TOTAL
|
31
|
74
|
20
|
125
|
Conclusion
1.22
In conclusion, Brigadier McDade stated that:
The legislative establishment of the position of Director of
Military Prosecutions represented a radical shift to statutory independence in
the prosecution of service offences. In my opinion, during my tenure, awareness
and understanding—on the part of commanders, other ADF members and the public—of
the role and functions of the DMP has increased.[22]
Judge Advocate General
1.23
The Judge Advocate General annual report for the period 1 January 2012
to 31 December 2012 was tabled in the Senate on 18 June 2013.
1.24
The office of the Judge Advocate General (JAG) of the ADF was created by
s 179 of the Defence Force Discipline Act 1982 (DFDA). The current
JAG, Major General the Hon Justice RRS Tracey, RFD, was reappointed as JAG
on 10 February 2010 for a term of four years. The current JAG also holds
the appointment of President of the Defence Force Discipline Appeals Tribunal
(DFDAT).[23]
1.25
The functions of the JAG are prescribed by the DFDA. The JAG is
responsible for the following functions:
-
reporting annually to Parliament on the operation of the DFDA, the
Regulations, the Rules of Procedure, and the operation of any other law of the
Commonwealth or the ACT insofar as that law relates to the discipline of the
Defence Force;[24]
-
making Procedural Rules for Service tribunals, being Court Martial and
Defence Force Magistrate Rules, and Summary Authority Rules;
-
nominating the judge advocate for a court martial[25]
and Defence Force magistrates;[26]
-
nominating to a Service Chief officers to be members of the judge
advocate's panel;[27]
-
appointing Defence Force magistrates from officers appointed as members
of the judge advocate panel;[28]
-
nominating to a Service Chief legal officers for the purposes of DFDA s 154(1)(a);
and
-
if requested, providing a final and binding legal report in connection
with the internal review of proceedings before Service tribunals.
Operation of the Superior Military Tribunals
1.26
The JAG noted that during the reporting period, trials by court martial
and DFM continued in accordance with the Military Justice (Interim Measures)
Act (No 1) 2009, as amended by the Military Justice (Interim Measures)
Amendment Act 2011.[29]
Appeals to the Defence Force
Discipline Appeal Tribunal
1.27
During the reporting period, there were four appeals to the Defence
Force Discipline Appeal Tribunal (DFDAT) in connection with convictions
recorded by courts martial and DFM. These were:
- King v Chief of Army [2012] ADFDAT 4;
- Bateson v Chief of Army [2012] ADFDAT 3;
- Jones v Chief of Navy [2012] ADFDAT 2; and
- Li v Chief of Army [2012] ADFDAT 1.
1.28
The appeals in King and Bateson were upheld, the appeal in
Jones was partly upheld (a subsequent appeal to the Full Bench of the
Federal Court was dismissed) and the appeal in Li was dismissed.[30]
Legislation
1.29
The JAG also noted that the Military Court of Australia Bill 2012 and
the associated Military Court of Australia (Transitional Provisions and
Consequential Amendments) Bill 2012 were introduced into the House of
Representatives on 21 June 2012, and referred to the Senate Legal and
Constitutional Affairs Committee on 28 June 2012. The committee report,
tabled in the Senate on 9 October 2012, recommended that the bills be passed
subject to certain amendments being made to the explanatory memoranda. The JAG
noted that the bills were not passed during the reporting period.[31]
Other Military Discipline Reform
1.30
The JAG noted that during the reporting period Defence Legal had
developed simplified procedures with guidance and commentary for summary
proceedings. Defence Legal also reviewed the chapters of the Discipline Law
Manual which provides guidance to those involved in summary authority
proceedings.
1.31
During the reporting period the publication of trial outcomes for courts
martial and DFMs in service newspapers commenced. The JAG commended this
initiative as it enhances openness and transparency. However, the JAG did raise
concerns that in some cases acquittals were not being included in the
reporting.[32]
Discipline Law Training
1.32
The Governance of Military Justice Training Manual (the manual) came
into effect in September 2012. The JAG explained that the manual provides
direction to the Services for the provision of military justice training across
Defence.
1.33
The promulgation of the manual implements military justice
recommendations by:
-
Mr JCS Burchett, QC in the 2001 Report of an Inquiry into
Military Justice in the Australian Defence Force;
-
The Senate Foreign Affairs, Defence and Trade References
Committee in the 2005 report The Effectiveness of Australia's Military
Justice System;
-
The Inspector-General ADF in the 2006–2007 and 2007–2008 Defence
Annual Reports; and
-
Sir Laurence Street, AC KCMG, QC and Air Marshal Leslie Fisher AO
(Retd), in the 2009 Report of the Independent Review on the Health of the
Reformed Military Justice System.[33]
1.34
The JAG outlined the discipline law training provided in the ADF during
the reporting period, and the ongoing development of discipline law training.[34]
Conclusion
1.35
In conclusion, the JAG stated that:
The interim arrangements reinstating the system of trial by
court martial and DFM continue to operate satisfactorily.[35]
1.36
He noted that these will be replaced by the independent Chapter III
civilian Military Court of Australia if the Military Court of Australia Bill 2012
and the Military Court of Australia Transitional Provisions and Consequential
Amendments) Bill 2012 are enacted.[36]
Senator Alan Eggleston
Chair
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