Chapter 4 - Decisions to initiate prosecutions and the provision of legal services
This chapter examines issues surrounding decisions to
initiate prosecutions, the provision of legal advice for the initiation and
conduct of prosecutions, and the availability of legal services for members
charged with offences under the DFDA. It also considers the impact of the
Director of Military Prosecutions on the administration of criminal and
Decisions to Prosecute
Decisions to conduct prosecutions are based on DI(G)
PERS 45-4 Australian Defence Force
Prosecution Policy. According to DI(G) PERS 45-4, prosecuting charges under
the DFDA is an important means of maintaining discipline in the ADF. Further:
The initial decision whether or not to prosecute is the most
important step in the prosecution process. A wrong decision to prosecute, and
conversely a wrong decision not to prosecute, tends to undermine confidence in
the military discipline system.
DI(G) PERS 45-4 provides that decisions to initiate and
continue prosecutions under the DFDA rest with commanding officers.
It also outlines the factors that should govern a commander's decision
to prosecute. The 'fundamental question' for any commander is whether the prosecution
serves the public interest (defined primarily as the maintenance of Service
discipline). In reaching this
decision, commanders must consider:
whether the admissible evidence available is
capable of establishing the offence;
whether there is a reasonable prospect of
achieving a conviction; and
other discretionary factors, such as consistency
and fairness, operational requirements, deterrence, seriousness of the offence,
interests of the victim, nature of the offender, prior conduct, degree of
culpability, effect upon morale and delay in dealing with matters.
When a Service member is charged, commanding officers
or subordinate summary authorities (appointed by commanding officers) decide whether
to proceed with the matter. Commanding officers also decide the way in which
the matter will be conducted (the form of the tribunal, etc). As such, under
current arrangements, decisions to initiate and proceed with prosecutions are
located squarely and wholly within the chain of command.
Flawed decisions to prosecute
The committee has received evidence of two disturbing
instances evidencing significantly flawed decisions to prosecute. These two
cases highlight problematic aspects of prosecutorial decision-making processes.
In the SAS soldier's case, flowing on from the
investigative shortcomings discussed in Chapter 3, the decision to prosecute
was similarly defective. Evidence before the committee reveals the decision to
prosecute was based on unsworn, untested, unreliable, non-corroborating
inculpatory 'evidence', compiled long after the event, from witnesses that
would not and could not testify at the soldier's trial. This was coupled with a
concomitant failure to consider the significant body of exculpatory evidence
when deciding to prosecute.
Evidence to the committee overwhelmingly supports the
conclusion that adequate steps were not taken to ensure that the initial
decision to prosecute complied with the ADF's prosecution policy. Moreover, when it became apparent to
the prosecutor that a prosecution could not succeed, the policy was again
contravened by its continuation, regardless of the high likelihood of failure.
The committee is also aware that the full Federal Court
found the decision to initiate a prosecution against Mr
a Major in the Australian army, was flawed.
In this instance, charges were laid seven years after the alleged incident, in
a manner designed to avoid time limitations imposed under the DFDA barring the
prosecution. The court found that the attempt to charge Mr
Hoffman in this manner was invalid—the
decision to prosecute should not have been made. Mr
Griffin, commenting on this case, states:
The costs to the public purse of the lengthy investigation and
protracted prosecution and the multiple appeals to the Defence Force Discipline
Appeals Tribunal (DFDAT) and Federal Court are substantial.
As well as the financial costs flowing from the flawed
decision to prosecute, the inordinate length of time taken to resolve the
matter and the pressures associated with legal proceedings imposed
extraordinary hardship on Mr Hoffman
and his family.
Our family's psychological and emotional abuse suffered at the
hands of the military justice system has been likened to repeated bashings with
a baseball bat perpetuated by multiple unknown assailants on multiple occasions—never
sure if it was the last bashing...Our journey is a horrific example of the
appalling state of the military justice system, highlighting organisational
deficiencies, the system barriers, the lack and/or failure to adhere to the
relevant policies, processes or procedures. A complete abuse of process that
began in 1998 and continued for seven years—a system in total disarray.
Both these cases have had high public profiles and
attracted considerable media attention. Again, the committee wonders how many
other ADF members have endured a similar ordeal.
It is important to note that, when the initial decision
to prosecute was made in both these instances, the Office of the Director of
Military Prosecutions did not exist and therefore advice of the Director of
Military Prosecutions was not sought.
Findings of previous inquiries
Previous inquiries have also highlighted problems with the
disciplinary decision-making process, particularly the appropriateness of the CO's
role as 'decision maker'. The 1995 Abadee report discussed the CO's multiple
and potentially conflicting roles:
There is a particular view, indeed almost a consensus view, that
provisions of the DFDA in allocating multiple roles to the CA [Convening Authority],
including the initiation of prosecution, and review of CM [Courts Martial] (and
DFM) proceedings, do raise legitimate concerns as to the appearance of fairness
and impartiality of such trials, despite the specific precautions to protect
against the improper or unlawful use of command influence and the wide range of
procedural rights to guard against command influence...There is an acceptance
that the system may be perceived to place the CA...in the position of determining
whether there be a trial, the nature of the tribunal and charges, and selecting
the trial judge, 'jury' and prosecutor, as well as reviewing the proceedings.
To avoid the difficulties presented by the multiple
roles of the CO/convening authority, Justice Abadee
recommended establishing an independent tri-Service Director of Military
Prosecutions (DMP). The proposed DMP would assume a decision-making role similar
to the Commonwealth, State or Territory Directors of Public Prosecutions, thereby
removing decisions to prosecute from commanding officers. Justice
Abadee argued there was a 'substantial case'
in favour of doing this, claiming it would:
help to ensure a high degree of independence in the vital task
of making prosecution decisions (including during a trial) and exercising
prosecution discretions, and objectively assist in avoiding suspicions that
prosecutorial discretions will be exercised save upon entirely 'neutral grounds'.
In its 1999 Military
Justice Report, the JSCFADT discussed the arguments for and against establishing
the office of DMP. The joint committee expressed the view that a DMP would add
to the perception of independence, provide consistency and assist to ensure
that, as far as possible, the prosecution component of the trial process was
impartial. The 2001 Burchett
report also concluded that a DMP would be beneficial:
I have reached the view that, on balance, there is more to be
gained from the early introduction of an independent DMP than from postponing
the decision any further. In my opinion it would not only enhance the
perception and reality of fairness in the system but, as the Judge Advocate
General has observed, would also provide a more professional, unified and
consistent approach to prosecution decisions.
All reports commented on the experiences of other
jurisdictions—most notably Canada
and the UK. Both these countries had introduced
independent DMPs to avoid perceptions of unfairness, and protect Service
personnel's right to a fair and independent trial.
An independent Australian Director of Military Prosecutions?
In its March 2002 response to the JSCFADT's Rough Justice report, and following
repeated recommendations contained in other reports and the success of
developments overseas, the Government indicated that it would establish an
independent Office of the Director of Military Prosecutions (ODMP). The Government Response stated that legislation to amend the DFDA would be proposed once the Chiefs of
Staff Committee (COSC) had considered the DMP's appointment process and
functions. Agreement on the establishment of an independent statutory
DMP was reached on 19 February 2003.
has been asked to examine the impact of the proposed ODMP. This encompasses an analysis of the
institutional framework creating the ODMP, in addition to an evaluation of the
practical operation of the office's activities.
Following COSC agreement on the structure and function
of the ODMP, on 15 August 2003,
DI(G) PERS 45-6 Director of Military
Prosecutions—Interim Implementation Arrangements was issued. It states:
The establishment of the DMP is designed to enhance the
independence and impartiality of the military prosecution process under the
DFDA. The DMP will be an independent statutorily-appointed position separate to
the chain of command.
Under the auspices of DI(G) PERS 45-6, the DMP:
provides pre-trial advice to convening
conducts prosecutions at courts martial and DFM
provides legal advice to commanding officers to
assist them in determining whether to charge an individual under the DFDA; and
represents the ADF at appellate tribunals and
Amendments to the DFDA are required to establish formally
the statutorily independent DMP position. Under the current interim arrangements,
the DMP is appointed through, and remains subject to, the chain of command. Decisions
to initiate prosecutions therefore remain with commanding officers. The DMP
acts purely in an advisory capacity—commanding officers are free to accept or
reject any advice given.
In a media
release dated 30 June 2003,
The Hon Danna Vale, Minister Assisting the Minister for Defence, stated:
I have directed Defence to expedite the development of the
necessary legislation required to establish this position as a statutory
appointment providing independent prosecutorial decision-making similar to that
of Commonwealth, State and Territory Directors of Public Prosecution.
In his submission to this inquiry, General
Cosgrove indicated that legislation formally
establishing the appointment was anticipated for introduction in 2004. During evidence to the committee in
March of 2004, the Director-General of the Defence Legal Service (DGTDLS), Air Commodore
Harvey, also indicated that implementing legislation was 'imminent'.
The current DMP, Colonel Gary
Hevey, appeared before the committee on 2 August 2004. He gave a
compelling account of the need to introduce enabling legislation, the difficulties
with current structural arrangements, and his frustration with the Government's
inaction. Colonel Hevey
informed the committee that the matter had been referred to the
Attorney-General's Department, a drafter had been appointed, but the first
draft of the legislation has not yet been forwarded to him for comment. He
I am caught between a
rock and a hard place, where people demand statutory independence of me and do
not give it to me.
emphasised that the legislation was absolutely necessary to remove his position
from the chain of command and guarantee the independence of his office:
I have just sat in the
other room and watched the discussion concerning independence and how people
can be said to be independent. The claim can be made of me: don’t you have to
report to the Chief of the Defence Force? The answer is, ‘Yes, I do.’ Why? Because
he is my boss. Then the next question comes: ‘When you chose to prosecute or
not to prosecute Private
Bloggs, General Smith, Admiral Jones or whoever it may be, were you influenced
in that decision?’ Until I am removed from the chain of command by the office
being established properly, I cannot be independent. I must be a person who is
within a chain of command somewhere. So, no, the position is not statutorily
independent. Would I like it to be? Yes, please. How quickly? As quickly as you
can possibly do it.
A committee member asked Colonel Hevey
if the delay might be due to the complexity of the legislation. Colonel
Hevey told the committee that a bill could be
easily modelled on current statutes creating the various Commonwealth, State
and Territory Directors of Public Prosecutions, adding 'this is not a massive
commented that, if and when the ODMP becomes statutorily independent, it will
take over the decision-making function of some 33 one and two star officers in
the military justice system. As was outlined above, the DMP currently acts in
an advisory capacity. Decisions to initiate prosecutions still remain with
commanding officers. The committee notes if legislation is passed establishing
the ODMP, the decision-making function will be centralised. The control the DMP
will then have over the decision-making function will go a considerable way
towards improving the consistency of decision-making, and will reduce the
likelihood that prosecutorial aberrations will occur in the future. Indeed, in
his evidence to the committee, the SAS soldier stated:
The initiative of raising a Director of Military Prosecutions is
a very positive step which will ensure that investigations and the briefs of
evidence which are provided at the end of an investigation will be of the
proper standard and should go a long way to stop unsustainable cases from going
to DFDA action.
The committee holds the opinion that a statutorily
independent DMP is a vital element of an impartial, rigorous and fair military
justice system. It finds the Government's inaction unsatisfactory. Until such
time as the promised legislation is passed, decisions to initiate prosecutions
are not seen to be impartial, the DMP is not independent, and fundamentally,
the discipline system cannot be said to provide impartial, rigorous and fair
The Minister for Defence, Senator Robert
Hill, was asked during the May 2005 Budget
Estimates hearings whether the Government had drafted the necessary legislation
creating the statutorily independent office of the DMP. Senator Hill
acknowledged that it had taken "a very long time to get to this
point", but indicated that legislation would be finally introduced into
the Parliament during June 2005.
Assessment of current operation per
Aside from examining the structural arrangements for
the ODMP, the committee has also examined its practical operation during the
Case management and workload
In his evidence to the committee, Colonel
Hevey indicated that the workload of the
newly-established ODMP far exceeded original expectations. The Office's caseload
was projected to total between 120 and 150 matters per year, with between 50
and 80 cases going to trial. In its first year of operation, however, the ODMP
has dealt with in excess of 260 matters.
We are moving out of the advice stage into the advocacy
stage; in other words, a lot of those matters that we have advised on are now
heading to trial work. That will put further pressure on us because we will not
have people in the office to do the advising because they will be doing their
Workloads will also become heavier as awareness of the ODMP
increases. Colonel Hevey
indicated that a significant portion of his time over the past year has been
devoted to elevating the profile of the Office within the Defence Forces. Despite
a fairly high profile within Army (Colonel Hevey's
own Service), the office remains 'relatively unknown' to many people in the
Navy and Air Force.  It can be expected that as the level
of awareness rises in Air Force and Navy, there will be a concomitant rise in
the number of cases referred.
An analysis of the operation of the ODMP reveals that
there are significant differences between projected and actual caseloads. The
volume of work is already double that originally anticipated, placing
considerable pressure on office personnel. This situation is unlikely to
improve if the profile of the office is elevated within the ADF, if matters
currently 'on the books' move from the advice stage into advocacy, and if staffing
remains at current levels. A service and resource review is required in order
to ensure that as the volume of work increases, client requirements are met.
Personnel—permanent legal and
The ODMP was established on 1 July 2003 and is located in Sydney.
It has a staff of ten personnel, comprising the Director, Deputy Director, six
prosecutors, a Service police investigator and a paralegal. The Deputy Director
and the prosecutors are Permanent Legal Officers (PLO's) drawn from all three Services.
The paralegal is an APS employee from the Department of Defence. The ODMP also
has access to over 300 legal reservists located around Australia.
Prior to joining the ODMP, PLOs undertake a unit of
discipline law as part of a Masters degree in Military Law. Upon assignment to
the Office, PLOs are initially posted to state offices of police prosecutions
for between six and twelve months. They then move to a three-month secondment
with the NSW Office of Public Prosecutions. These external postings are
designed to develop the practical skills required for effective legal advocacy.
PLOs are not required to hold practising certificates,
but have been admitted to practise as a barrister or solicitor in the Supreme
Court of the State where they were admitted.
The committee is aware a recent decision in the ACT Supreme Court, Vance v Chief of Air Force,
raised questions about the perceived independence and impartiality of PLOs
arising from the fact that they are not required to hold practising
certificates, regardless of whether or not they have been admitted to practise.
The committee considers that to enhance their independence, PLOs should be
required to hold practising certificates for ethical and professional conduct
reasons. Further discussion concerning the independence and impartiality of
PLOs is given below at para 4.58.
PLOs undertake a four week advanced course in military
discipline law. The DMP and Deputy DMP
also provide a degree of 'in house' training. The DMP considers that his staff
would benefit greatly from longer secondments with civilian prosecuting
authorities. Given the increasing workload, however, the ODMP has insufficient resources
available to allow lengthy absences, despite the beneficial effects this would
The committee considers that the training and
development requirements of ODMP personnel need to be addressed. Exposure to
civilian processes and the practical skills garnered during secondments with
civilian prosecuting authorities are vital to improving the quality of legal
services provided by PLOs and will broaden the skills base within the Office.
Personnel— the Director of Military
The DMP is a Reserve Legal Officer, not a permanent
member of the ADF. According to Colonel Hevey,
the occupant of the position requires considerable civilian and military legal
experience. Evidence to the
committee suggests that the DMP's reserve status is highly desirable, as
sufficient civilian experience cannot generally be readily acquired by
permanent ADF legal officers.
The DMP's role was originally envisioned as that of an
'overseer'. It was expected that he or she would attend the office for one week
per month. The work involved in establishing the office has, however, meant
that the current DMP, Colonel Hevey,
has spent far more time in the Sydney
office and travelling around Australia
than anticipated. He indicated to
the committee that over the twelve months to August 2004, he spent more than
half his working year acting in his capacity as DMP:
My last 15 months have
required in excess of 140 days, which is, frankly, an enormous commitment. Over
the last 12 months it has been in excess of 110 days. If we take a normal
working year, it rounds out at about 200 working days per year after normal
adjustments for weekends, leave et cetera. More than half my year has been
devoted to trying to get this office up and running. That has meant that I have
spent a lot of time in the office in Sydney, which is where we are currently
located—about 40 days all told there. But there has been a lot of time spent
either here in Canberra or around the traps, telling people that this office is
up and running and introducing myself...there has been an establishment phase. It
has been a demanding phase because, as well as the establishment, we have
obviously had the committee and
have had to attend to its requirements. We have had a Defence Force Discipline Appeal
Tribunal hearing and we have had a matter before the High Court, so we have had
a very demanding year. For the last financial year, my time in the service, as
it were, is in excess of 110 days. So more than half of my working year has
been spent doing this particular job.
The DMP position is established at the rank of Colonel.
The rank of the position presents two problems. First, difficulty stems from a
Colonel taking over the prosecutorial decision-making function of officers
considerably higher up than he or she in the chain of command (one and two star
General-equivalent officers). Second, the level of remuneration for a reserve
legal officer with the rank of Colonel is approximately $275 per day. This is considerably below the rate
that a reserve legal officer with the experience and qualifications required of
the DMP could expect to receive in private practice.
This disparity between remuneration rates may operate
as a barrier to attracting high quality personnel in the longer term. The
current DMP indicated to the committee that he considers the work to be a
'labour of love' and does it 'because I am silly enough to think it is
worthwhile'. If the DMP's remuneration
rate is not pegged at a level more commensurate with private rates, it cannot
always be assumed that the position will attract personnel as experienced,
committed and altruistic as Colonel Hevey.
The committee is mindful of the constraints faced by
the ODMP. It is concerned about the training provided to staff and the level of
resources assigned to the office in the face of rising workloads. Despite these
concerns, the committee is nonetheless very impressed with the work of the ODMP
to date. It considers that despite the difficulties mentioned, the DMP is doing
an admirable job. The committee has no doubt that, if given adequate resources,
a statutory mandate, and more time to develop its operational capability, the
ODMP will continue to provide an invaluable service to the ADF.
Findings and Recommendations
The committee holds the view that decisions to initiate
prosecutions for civilian equivalent and Jervis
crimes should be referred in the first instance to civilian prosecuting
authorities. The DMP should only exercise a decision-making function where
there is no civilian equivalent crime, or where matters have been referred back
from the civilian authorities.
4.44 The committee recommends that all decisions to initiate
prosecutions for civilian equivalent and Jervis
offences should be referred to civilian prosecuting authorities.
4.45 The committee recommends that the Director of Military
Prosecutions should only initiate a prosecution in the first instance where
there is no equivalent or relevant offence in the civilian criminal law. Where
a case is referred to the Director of Military Prosecutions, an explanatory
statement should be provided explaining the disciplinary purpose served by
pursuing the charge.
4.46 The committee recommends that the Director of Military Prosecutions
should only initiate prosecutions for other offences where the civilian
prosecuting authorities do not pursue a matter. The Director of Military Prosecutions
should only pursue a matter where proceedings under the DFDA can reasonably be
regarded as substantially serving the purpose of maintaining or enforcing Service
4.47 The committee recommends that the Government legislate
as soon as possible to create the statutorily independent Office of Director of
4.48 The committee recommends that the ADF conduct a review
of the resources assigned to the Office of the Director of Military Prosecutions
to ensure it can fulfil its advice and advocacy functions and activities.
4.49 The committee recommends that the ADF review the
training requirements for the Permanent Legal Officers assigned to the Office
of the Director of Military Prosecutions, emphasising adequate exposure to
civilian courtroom forensic experience.
4.50 The committee recommends that the ADF act to raise
awareness and the profile of the Office of the Director of Military Prosecutions
within Army, Navy and Air Force.
4.51 The committee recommends that the Director of Military Prosecutions
be appointed at one star rank.
4.52 The committee recommends the remuneration of the Director
of Military Prosecutions be adjusted to be commensurate with the professional
experience required and prosecutorial function exercised by the office-holder.
Defence Counsel Services
In addition to the legal advice provided to Commanding
Officers for the prosecution of Service offences, the committee has also
considered the legal advice available to Service personnel accused of
committing Service offences.
Currently, legal advice at Commonwealth expense is
available to members who are being investigated or charged with an offence
under the DFDA. The committee
notes, however, that there are conditions attached to securing assistance.
The DLM provides that, in summary hearings, an accused
has the right to conduct his or her own defence or request the services of a
member of the Defence Force to defend him or her. Where the services of the
requested person are reasonably available, the person must be permitted to
defend the accused. The manual expressly states, however:
There is no right to be represented by a legal officer unless a
commanding officer or a superior summary authority permits a legal officer to
act as the defending officer.
At the summary level, the right to be represented by a Legal Officer is
therefore contingent upon the permission of the Commanding Officer. At courts
martial and DFM trials, an accused person may be represented by any member of
the Defence Force or by any legal practitioner. Pre-trial advice is available
free of cost from a permanent or reserve legal officer.
When Service members are
in custody for an offence, they should be advised that they may speak with a
legal practitioner of their choice. Members are then given a list of legal
officers. The JAG appoints legal officers on the list. All ADF legal officers
are admitted to practise as a barrister or solicitor of the Supreme Court of
the state where they were admitted to practice. Reserve Legal Officers (RLOs) hold
practising certificates and are bound by the rules of ethics and professional
conduct governing the law societies (or equivalent) of which they are members.
Permanent Legal Officers (PLOs), however, are not required to hold practising
certificates and are therefore not bound by the same rules of ethics and
professional conduct as their Reserve colleagues.
Concerns have been raised with the committee that the
absence of a requirement that PLOs hold practicing certificates may impact upon
perceived or real impartiality and independence. The committee has already
noted that the recent ACT Supreme Court decision Vance v Chief of Air Force
raises questions about the status of PLOs due to this systemic failing (see
The committee is concerned that PLOs may not have a
sufficient degree of perceived or real impartiality and independence. The
committee has already noted that the recent ACT Supreme Court decision Vance v Chief of Air Force cast considerable doubt on the
status of PLOs (see para. 4.35).
In the Vance decision, Justice Crispin
determined that PLOs lack perceived independence, basing his decision on the
absence of practising certificates. He observed that PLOs were not bound by the
same rules of professional conduct or codes of ethics as lawyers holding practising
certificates, and also are not required to undertake continuing legal education.
The law is substantially dependent upon trust in the competence
and integrity of legal practitioners to obviate or at least reduce that risk
[of spurious claims to lawyer-client privilege]. That trust is not based solely
upon the possession of academic qualifications in law or admission as legal
practitioners. It is based largely upon continued good standing in a profession
that takes active steps to ensure the maintenance of appropriate ethical and
professional standards. It does so by fostering awareness of its traditions of
integrity and service, by the influence of peers, by the need for practitioners
to demonstrate continuing compliance with ethical and professional standards
and in most jurisdictions participation in continuing legal education in order
to maintain practising certificates.
In contrast, as Commodore Smith [DGTDLS at the time of this
trial] conceded, DLOs are not required to keep abreast of relevant changes in
the rules of practice or legal ethics.
Crispin observed that PLOs could be lawfully
ordered to act in a manner contrary to the standards set in codes of ethics and
professional conduct. He also noted that a culture existed in the Defence Forces
'within which there may be scant recognition of the need for independence'. He observed that the two legal
officers in Vance
Had been so influenced by the cultural milieu within which they
worked that they were effectively unable to make an independent judgement based
on legal and ethical duties that should have been accepted without question by
any legal practitioner.
made particular reference to the position of PLOs appointed to defend Service
personnel charged with disciplinary offences. He stated there was evidence in
this particular case that the legal officers seemed unable to understand the
need to act independently. In his judgement he identified an incontrovertible
conflict between the duty the PLO owed to the defendant, and his or her position
as a member of the ADF:
Any lawyer representing a person at any hearing, let alone a
criminal trial, must obviously regard that person as his or her client ... and as
Street CJ said in Law Society of New South Wales v Harvey  2 NSWLR 154,
at 170, there can be no doubt that 'the duty of a solicitor to his client is
paramount, and that he must not prefer his or the interest of another to that
of his client'. The mere fact that he or she has been employed or retained by
some other person or body to represent the client does not in any way relieve
him or her of that duty. Hence, a lawyer engaged by a legal aid body to
represent an accused person would clearly breach his or her duty by accepting
any instruction not to take any steps in the client's interests that might
embarrass or otherwise adversely affect that body's interests.
It is true that lawyers should generally seek to avoid such
conflicts of interest and that, if the interests of the client and instructing
solicitors conflict, counsel should normally advise the solicitors that they
should decline to accept further instructions in the matter and refer the
client to independent solicitors. However, the terms of s 137 of the Discipline
Act and the relevant portion of the Australian Defence Force Administrative
Inquiries Manual clearly contemplate the allocation of DLOs to represent
members of the ADF in circumstances in which such conflicts are likely to
arise. In this context it is difficult,
if not impossible, to see how the ADF could comply with the requirements of the
Act and/or Manual without placing DLOs in a position in which they were forced
to choose between adhering to their duty to the client and infringing the direction
[not to provide advice that may be contrary to the Commonwealth's interests].
It is also true that, viewed over all, the interests of the
Commonwealth may be served by allocating DLOs to represent people accused of
offences or likely to be affected by inquiries, and thereby facilitating fair
and effective hearings. However, the direction does not suggest that the
interests of the Commonwealth should be given priority only in that sense and
it seems unlikely that it was either intended to be or was likely to be
construed in such a theoretical or systemic manner. It seems rather to reflect
a perception that, whilst some conflicts
of interest may be intolerable, DLOs should generally defend or otherwise
represent people who may be accused of committing offences under Commonwealth
law or of misconduct in connection with duties owed to the Commonwealth whilst,
at the same time, continuing to accept an overriding duty not to provide advice
that may be contrary to the Commonwealth's interests. Such an approach is
entirely incompatible with what Street CJ described as the 'paramount' duty
which a legal practitioner owes to his or her client.
considered, however, that RLOs are in a different position to PLOs. He observed
that, although the provisions of the DFDA imposing criminal sanctions for
disobedience to superior orders apply to RLOs rendering continuous full-time
service, on duty or in uniform, there are a number of considerations that grant
them greater independence and impartiality than their permanent colleagues. The
primary distinguishing factor was the possession of practising certificates.
His Honour also noted that the nature of RLO's duties require them to be
involved 'in the ADF culture on only a part-time basis.'
The committee questioned the Director-General of the
Defence Legal Service, Air Commodore Harvey, and the Chief Judge Advocate, Colonel
Westwood, at length concerning the absence
of a requirement to possess practicing certificates and the associated perceived
lack of PLO independence. A
committee member questioned Air Commodore Harvey concerning conflicts inherent
in the dual function of providing advice to commanding officers and defending
personnel accused of committing Service offences. Air Commodore Harvey stated that
the issues concerned a 'perception rather than a reality'. When a number of scenarios were put
to Air Commodore Harvey wherein a conflict could potentially arise, he conceded:
It is something that I recognise is an issue that has to be very
carefully managed and we are alert to it.
The committee agrees with the findings made by Justice
Crispin in the Vance decision concerning the flaws inherent
in a system that does not require its lawyers to possess practicing
certificates, and the impact this may have on perceived independence and
impartiality. The committee is concerned that the potential exists for a lack
of independence to go beyond perception and constitute reality. Practicing
certificates require that lawyers undergo continual training to maintain their
skills, and mandate that lawyers continually uphold and conform to codes of
ethical and professional conduct. The committee considers that all PLOs should
possess practising certificates—PLOs should be required to continually update
their skills, and should be held to the same ethical and professional codes of
conduct as other legal practitioners. The current failure of the military
justice system to require that PLOs possess practicing certificates lets down
PLOs and ordinary service personnel alike. The committee also notes that the
Canadian Government has legislated to establish an independent Director of
Defence Counsel Services, staffed by legal officers that must possess practising certificates.
The Canadian Director of Defence Counsel Services
As part of a broad-ranging legislative program to
reform its military justice system, the Canadian Government legislated to
establish the office of the Director of Defence Counsel Services (DDCS).
The DDCS is an experienced lawyer who is also a legal officer
in the Canadian Forces. The DDCS is appointed by the Minister of National
Defence, and not through the chain of command. The Office of the DDCS provides
legal counsel services to accused persons:
who may be/are unfit to stand trial;
in hearings for release from custody pending
appeal, and retention in custody; and
in appeals to the Court Martial Appeal Court or
Supreme Court of Canada on the legality of a finding or severity of a
The Office also provides advisory services to:
persons arrested or detained in respect of a Service
'assisting officers' or accused persons with
respect to electing trials by court martial;
'assisting officers' or accused persons on
matters of a general nature relating to summary trials; and
persons subject to an investigation under the
Code of Service Discipline, a summary investigation or a board of inquiry.
Legal counsel and general advisory services are
provided by qualified lawyers. DDCS lawyers are members of the Canadian Forces,
and perform their duties under the supervision of the Canadian JAG. In addition
to their obligations and duties under the National Defence Act, the Code of
Service Discipline, and the Queens Regulations and Orders, they are also bound
by the codes of professional conduct associated with the relevant law societies
to which they belong. DDCS lawyers provide their clients with services akin to
those typically provided by criminal lawyers in the civilian practice of law.
The legislative framework creating the office of the DDCS is structured in a
manner designed to enhance the independence of DDCS lawyers to the fullest
DDCS lawyers perform their duties and provide their services
independent of the chain of command and of CF and Department of National
Defence disciplinary and enforcement authorities. The sole restraints on the
provisions of their services are those imposed by law and by professional
ethics, including the requirements and constraints of solicitor-client
In conducting their lawful and ethical activities in their
capacity as defence counsel, DDCS are legally immune from any influence or
authority purported to be exercised by the chain of command.
At summary level, accused persons are not entitled to
legal representation. However, accused persons, or the officer appointed to
assist them through the summary process, may obtain the advice of a DDCS lawyer
on general matters relating to the summary trial process. 'Assisting Officers'
are not generally legally trained. It is their duty and responsibility:
to assist in the preparation of and presentation
at summary trial of the accused's case to the extent desired by the accused;
prior to the accused making an election to be
tried by summary trial or court martial, to ensure that the accused is aware of
the nature and gravity of the offences which he or she has been charged and of
the differences between a summary trial and a court martial.
At the court martial level, personnel are entitled to
the services of and representation by a DDCS lawyer free of charge, or they may
retain a civilian lawyer at their own expense or, where qualifying criteria are
met, with the assistance of a provincial legal aid plan.
In discussing the establishment of the DDCS and the
requisite degree of independence, the Canadian JAG stated:
Military defence counsel must defend their clients against the
prosecutorial powers of the State in circumstances where their client's actions
and the defence counsel's arguments may be highly unpopular with senior members
of the Canadian Forces. It is important to avoid any unnecessary or
unintentional derogation from the actual and perceived independence of DDCS
In his independent review of the Canadian military
justice system, the Rt Hon Antonio Lamer commented:
The creation of the DDCS was a great step forward in affording
members of the Canadian Forces the protection of legal advice and
representation that is intended to be independent of the chain of command.
The committee notes the capacity for the Canadian DDCS
to provide Service personnel with access to more independent and impartial
legal advice than is currently available in Australia,
and considers that the Australian Defence Force should provide similar access
to its Service personnel.
4.75 The committee recommends that all Permanent Legal
Officers be required to hold current practicing certificates.
4.76 The committee recommends that the ADF establish a
Director of Defence Counsel Services.
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