Chapter 1
Annual reports
Director of Military Prosecutions
1.1
The Director of Military Prosecutions Report for 2011 was tabled in the
Senate on 21 June 2012. This is the fifth report presented to Parliament by
Brigadier L.A. McDade.
1.2
The Office of the Director of Military Prosecutions (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.[1]
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.[2]
1.3
Under section 188GA of the DFDA, the DMP has the following functions:
(a) 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;
(b) to seek the consent of the Directors of Public Prosecutions as required
by section 63;
(c) 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;
(d) to represent the service chiefs in proceedings before the Defence Force
Discipline Appeal Tribunal;
(e) to do anything incidental or conducive to the performance of any of the
preceding functions.[3]
1.4
The primary function of the DMP is to carry on prosecutions for service
offences in proceedings before courts martial or Defence Force magistrates. [4]
1.5
Brigadier McDade reported that at the commencement of the reporting
period the DMP established 14 positions for prosecutors.[5]
External Associations
1.6
Brigadier McDade noted that, since 2007, prosecutors from the Office of
the Director of Military Prosecutions (ODMP) have been admitted as members of
the Australian Association of Crown Prosecutors (AACP). As the AACP held its
annual conference in Canberra in 2011, most ODMP prosecutors were able to
attend, without significant cost. Brigadier McDade noted that attendance at the
conference provided junior military prosecutors with the opportunity to mix
with senior Crown prosecutors from all Australian jurisdictions.[6]
Internal Liaison: amendments to the DFDA
1.7
Brigadier McDade noted that the Military Justice Coordination Committee
(MJCC) has provided an effective forum to initiate amendments to the DFDA.[7]
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.[8]
1.8
The matters raised by Brigadier McDade included:
(a) difficulties concerning the framing and extent of drug offences under
the DFDA compared to equivalent legislation in other jurisdictions;
(b) providing input on proposed changes to the investigative provisions of
the DFDA to update and improve those provisions; and
(c) advancing matters previously raised including the implementation of
global punishments.
Contact with military prosecuting authorities of other armed forces and
other organisations
On 3 November 2011, Brigadier McDade met with the Canadian
Director of Military Prosecutions, Captain John Maguire, Royal Canadian Navy. Brigadier McDade
noted similar experiences of the Canadian DMP, especially in relation to the
interactions with command with respect to difficult prosecutions. Of particular
interest, Brigadier McDade mentioned the Canadian DMP's ability to appeal
decisions on matters of law and in relation to sentence.[9]
Caseload
1.9
Brigadier McDade noted that from 1 January 2011–31 December 2011, 38
Defence Force Magistrate (DFM), 14 Restricted Courts Martial (RCM) and five
General Court Martial (GCM) hearings were held. She also provided the following
caseload data for the reporting period:
(a) 36 matters were not proceeded;
(b) 42 matters were referred back for summary disposal;
(c) 7 matters were referred to civilian Directors of Public Prosecution; and
(d) as at 31 December 2011, ODMP had 47 open matters.[10]
Significant cases
1.10
The Annual Report cited eight significant cases heard during the
reporting period:[11]
(a) Davis v Chief of Army [2011] ADFDAT 1: an appeal to the Defence
Force Discipline Appeals Tribunal (DFDAT) was heard on 29 November 2010
which was dismissed by the tribunal on 22 February 2011.
(b)
Green v Chief of Army [2011] ADFDAT 2: an appeal to the DFDAT was
dismissed on 22 June 2011.
(c) Low v Chief of Navy [2011] ADFDAT 3: an appeal in relation to a
conviction by a RCM for an act of indecency. The appeal was dismissed and the
conviction upheld.
(d) Haskins v the Commonwealth [2011] HCA 28 and Nicholas v the Commonwealth
[2011] HCA 29: on 26 August 2009, the High Court declared that the provisions
of Division 3, Part VII of the DFDA, were invalid. The provisions included
sections establishing the Australian Military Court (AMC). In response to the
judgement, and in order to provide continuity of the discipline system, the
Parliament enacted the Military Justice (Interim Measures) Act (No 1) 2009
and Military Justice (Interim Measures) Act (No 2) 2009. Haskins v
the Commonwealth and Nicholas v the Commonwealth were heard together
and the court held that the legislation was a valid law of the Commonwealth.
(e) 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.
(f) General Court Martial Trial of Able Seaman Steward Adrian Mill: at trial
by GCM on 5 December 2011, Able Seaman Mill pleaded guilty and was convicted of
two counts of 'culpable driving causing grievous bodily harm'. Able Seaman Mill
was sentenced to be dismissed from the Defence Force and sentenced to 18 months
imprisonment, 15 months of which were suspended.
(g) General Court Martial Trial of Lieutenant Commander Alan John Jones: at
trial by GCM in December 2011, Lieutenant Commander Jones was found guilty and
convicted of seven counts of 'indecent conduct upon an Able Seaman without her
consent' and one count of 'attempting to destroy service property'. Lieutenant
Commander Jones was reduced in rank to Lieutenant, dismissed from the Defence
Force and sentenced to 18 months imprisonment, 6 months of which were suspended
(amongst other punishments). An appeal to DFDAT in relation to the 'indecency
offences' was heard in March 2012 and the Tribunal has reserved its decision.
(h) General Court Martial Trial of Sailor W: before a GCM on 31 October 2011,
Sailor W was acquitted of one charge of sexual intercourse without consent. In
defence to the charge, the sailor raised 'a diagnosis of "sexsomnia"
to negative the element of involuntariness'.[12]
Civilian casualty incident in Afghanistan
1.11
In the previous annual report, Brigadier McDade noted that three members
of the ADF were charged with service offences following a civilian casualty
incident in 2009. The matters were referred to the Registrar of Military
Justice for trial by GCM. In the current report, Brigadier McDade noted that as
the DMP:
...it is my responsibility to determine charges to be presented
before service tribunals and to prosecute without fear or favour and
independent of any interference.[13]
1.12
Brigadier McDade explained:
The charges arose from the conduct of Australian soldiers
during a night time clearance of an Afghan compound which resulted in the death
of a number of civilians.
...
Taking the incident in its entirety, I formed the view that a
prima facie case of manslaughter by criminal negligence and dangerous conduct
existed in respect to two soldiers.[14]
1.13
However, at a pre-trial hearing on 20 May 2011, the Chief Judge Advocate
(CJA), ruled in what Brigadier McDade considers to be the creation of new law,
that 'Australian soldiers have no duty of care at law to protected persons or
friendly forces during armed conflict'. The charges were dismissed. While Brigadier
McDade was not entirely convinced that the CJA's decision was correct in law,
she noted that the DMP has no inherent right of appeal within the military
justice system at any stage of the trial process.
1.14
Subsequently, further evidence was provided by defence counsel and
Brigadier McDade exercised her discretion to discontinue the prosecution.[15]
Investigative provisions of the
DFDA
1.15
Brigadier McDade observed that the investigative provisions of the DFDA
are in need of review and improvement. As an example, she cited s 101Q, which
provides for medical examinations to be conducted and medical specimens to be
taken from Defence members for the purpose of investigating service offences. She
recorded that the provision has not been significantly updated since 1982 and
as such does not take account of developments in comparable civil legislation
since that time. The result is that the provision does not contain any
requirement for consent to be 'informed consent'.[16]
Information communication
technology (ICT) function
1.16
Brigadier McDade reports that the ODMP has experienced a significant
deficiency in ICT function during the reporting period, which may lead to the
diminution of the capability of the ODMP to fulfil its function in a timely
manner.[17]
Table of Offences
1.17
The report included the following table of offences:
|
Class of Offence
|
RAN
|
ARMY
|
RAAF
|
TOTAL
|
|
Acts intended to cause injury
|
4
|
12
|
2
|
18
|
|
Sexual assault and related offences
|
8
|
4
|
1
|
13
|
|
Dangerous or negligent acts endangering persons
|
0
|
4
|
0
|
4
|
|
Theft and related offences
|
1
|
4
|
2
|
7
|
|
Fraud, deception and related offences
|
9
|
18
|
9
|
36
|
|
Illicit drug offences
|
8
|
3
|
0
|
11
|
|
Property damage and environmental pollution
|
0
|
0
|
1
|
1
|
|
Traffic and vehicle regulatory offences
|
0
|
1
|
0
|
1
|
|
Offences against justice procedures, government security and
government operations
|
1
|
0
|
0
|
1
|
|
Specific military discipline
offences
|
11
|
24
|
3
|
38
|
|
TOTAL
|
42
|
70
|
18
|
130
|
Conclusion
1.18
In conclusion, Brigadier McDade stated that:
The period of consolidation following
the re-introduction of the Defence Force magistrate and court martial system
has continued during the reporting period. The priority remains to conduct
efficient and effective prosecution of matters with a focus on timeliness.
Brigadier McDade stated that she looked forward to 'continuing this period of
consolidation as the office matures under the current legislative framework'.[18]
Judge Advocate General
1.19
The Judge Advocate General annual report for the period 1 January 2011
to 31 December 2011 was tabled in the Senate on 21 June 2012.
1.20
The office of the Judge Advocate General (JAG) of the Australian Defence
Force was created by s 179 of the Defence Force Discipline Act 1982 (DFDA).
The current JAG, Major General the Hon Justice R R S Tracey, RFD, was
reappointed as JAG on and from 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).
1.21
The functions of the JAG are prescribed by the DFDA. The JAG is
responsible for the following functions:
(a)
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;[19]
(b) making Procedural Rules for Service tribunals, being Court Martial and
Defence Force Magistrate Rules, and Summary Authority Rules;
(c) nominating the judge advocate for a court martial[20]
and Defence Force magistrates;[21]
(d) nominating to a Service Chief officers to be members of the judge
advocate's panel;[22]
(e) appointing Defence Force magistrates from officers appointed as members
of the judge advocate panel;[23]
(f) nominating to a Service Chief legal officers for the purposes of DFDA s 154(1)(a);
and
(g)
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
1.22
The JAG noted that the Military Justice (Interim Measures) Act (No 1)
2009 reinstated the system of trials by court martial and Defence Force
Magistrate (DFM) that had existed in 2006, prior to the passage of the Defence
Legislation Amendment Act 2006 which purported to create the former
Australian Military Court (AMC). The JAG raised concerns that the explanatory
memorandum to the bill indicated that this is 'an interim measure until the
Government can legislate for a Chapter III court'.[24]
1.23
The JAG believed that it is undesirable for 'interim' arrangements to go
indefinitely. In particular, there are a number of procedural issues that
should be addressed if the system of court martial and DFM trials continues for
a significant period of time.[25]
Appeals to the Defence Force
Discipline Appeal Tribunal
1.24
During the reporting period, there were three appeals to the Defence
Force Discipline Appeal Tribunal (DFDAT) in connection with convictions
recorded by courts martial and DFM. These were:
(a) Green v Chief of Army [2011] ADFDAT 2;
(b) Low v Chief of Navy [2011] ADFDAT 3; and
(c) Li v Chief of Army [2011] ADFDAT 4.
1.25
The appeals in Green and Low were dismissed, and judgement
for Li was not handed down during the reporting period.[26]
Legislation
1.26
The JAG noted that the Military Court of Australia Bill and the Military
Court of Australia (Transitional Provisions and Consequential Amendments) Bill
were scheduled to be introduced during the Winter 2012 sittings of Parliament.[27]
If enacted, the bills will establish the Military Court of Australia.[28]
High Court Challenge
1.27
During the reporting period, the Military Justice (Interim Measures)
Act (No 2) 2009 was challenged in the High Court. Haskins v the
Commonwealth and Nicholas v the Commonwealth were heard together and
the court held that the legislation was a valid law of the Commonwealth.[29]
Proceedings brought as a result of civilian causalities in Afghanistan
1.28
The JAG recorded that during the reporting period a GCM was convened to
try charges of manslaughter and dangerous conduct against two soldiers
allegedly responsible for civilian casualties in Afghanistan in 2009. The
accused men entered certain objections to the charges prior to the court
martial being assembled and sworn in. The Chief Judge Advocate ruled that
In the absence of a duty of care imposed by statute, mere
negligence, even if established, will not suffice to establish criminal
culpability in the case of actual engagement in armed conflict.[30]
The intended operation of Defence
Force Discipline Act 1982 s 36, dangerous conduct
1.29
In the JAG's view, the ruling raised a number of issues with the
drafting and intended application of DFDA s 36, dangerous conduct. These
included:
- the intended scope of sub-section 36(3), dangerous conduct by negligence;
- the intended operation of sub-sections 36(1)(e), (2)(e), and
(3)(e), the exclusion applicable to enemy persons killed or injured in the
course of duty; and
- the way in which s 36 as whole is intended to operate in the case
of death or grievous bodily harm occasioned to civilians or enemy personnel in
regards to the specific Offences Against Humanity and Related Offences
created by the Criminal Code Act 1995 Chapter 8.[31]
The
power of the president at a court martial to make protective orders and
non-publication orders
1.30
The JAG noted that the consideration of the case resulting from the
civilian casualties in Afghanistan also raised concerns about the role of the
president in the making of protective orders under DFDA s 140, public hearings,
and non-publication orders under DFDA s 148, that record of proceedings be
kept. The JAG believed that discretions under DFDA s 140 and s 148 should be vested
in the Judge Advocate, rather than the president of the court martial, which is
currently the case. The JAG suggested that the existing arrangements should be
reviewed as a matter of urgency.[32]
Pre-trial applications or
objections
1.31
The JAG believed that it would be desirable if s 141 of the DFDA were
amended to allow pre-trial applications by the prosecution. Currently, s 141
expressly provides for pre-trial applications by the accused, while there is no
provision for
pre-trial applications by the prosecution.
The accused's attendance at all
hearings
1.32
In his report, the JAG stated that DFDA s 139 provides that '...a
hearing before a service tribunal shall be held in the presence of an accused
person'. The JAG argued that provision should be amended to dispense with the
requirement that the accused be present at purely procedural hearings, such as
adjournment applications.[33]
Conclusion
1.33
In conclusion, the JAG stated that:
The interim arrangements reinstating the system of trial by
court martial and DFM continue to operate satisfactorily, but it is undesirable
for 'interim' arrangements to continue indefinitely.
He was pleased to note that the
Military Court of Australia Bill and the Military Court of Australia Transitional
Provisions and Consequential Amendments) Bill were scheduled for introduction
into the Parliament during the Winter 2012 sittings.[34]
Senator the Hon. Ursula
Stephens
Chair
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