DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Flynn v Chief of Army [2010] ADFDAT 1
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Citation: |
Flynn v Chief of Army [2010] ADFDAT 1 |
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Appeal from: |
General Court Martial |
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Parties: |
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File number(s): |
DFDAT 3 of 2009 |
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Members: |
TRACEY J (PRESIDENT), WHITE J (DEPUTY PRESIDENT) & MILDREN J (MEMBER) |
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Date of judgment: |
11 June 2010 |
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Catchwords: |
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Legislation: |
Criminal Code Act 1995 (Cth) ss 4.1, 4.2, 8.1, 8.5, 9.2 Defence Force Discipline Appeals Act 1955 (Cth) s 23 Defence Force Discipline Act 1982 (Cth) ss 3, 10, 32, 87, 95, 103, 105A-111, 146, 188GA Defence Legislation Amendment Act 2005 (No 2) (Cth) Defence Force Legislation Amendment Act 2006 (Cth) Defence Force Legislation Amendment Act 2007 (Cth) Director of Public Prosecutions Act 1983 (Cth) Director of Public Prosecutions Act 1990 (ACT) Evidence Act 1995 (Cth) ss 87, 184 Explanatory Memorandum for the Defence Legislation Amendment Bill (No 2) 2005, paras 5, 17, 18, 21 Explanatory Memorandum for the Defence Legislation Amendment Bill 2007, para 133 Military Justice (Interim Measures) Act (No. 1) 2009 (Cth) |
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Cases cited: |
Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180 referred to Grant v R (1975) 11 ALR 503 followed Lane v Morrison (2009) 239 CLR 230 cited M v R (1994) 181 CLR 487 followed R v Hodge [1838] 21 Lewin CC 227; 168 ER 1136 followed R v Grant [1975] VR 809 referred to R v Poulter (1978) 19 SASR 370 referred to |
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Other Sources: |
James Burchett QC, “Report of an Inquiry into Military Justice in the Australian Defence Force” (July 2001), paras 226-227, 234-235 Foreign Affairs, Defence and Trade References Committee of the Senate, “Report on the Effectiveness of Australia’s Military Justice System (June 2005) |
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Date of hearing: |
15 April 2010 |
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Date of last submissions: |
17 & 21 May 2010 |
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Place: |
Melbourne |
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Number of paragraphs: |
61 |
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Counsel for the Appellant: |
Mr T Berkley |
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Solicitor for the Appellant: |
Maleys Barristers & Solicitors |
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Counsel for the Respondent: |
Brigadier L McDade & Lieutenant Colonel H G Dempsey |
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Solicitor for the Respondent: |
Director of Military Prosecutions |
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DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL |
DFDAT 3 of 2009 |
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MICHAEL PAUL FLYNN Appellant
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AND: |
CHIEF OF ARMY Respondent
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MEMBERS: |
TRACEY J (PRESIDENT), WHITE J (DEPUTY PRESIDENT) & MILDREN J (MEMBER) |
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DATE OF ORDER: |
11 JUNE 2010 |
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WHERE MADE: |
MELBOURNE |
THE TRIBUNAL ORDERS THAT:
1. Leave to appeal be granted.
2. The appeal be allowed.
3. The conviction and sentence imposed by the General Court Martial be quashed.
4. In lieu thereof a verdict of not guilty be entered.
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DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL |
DFDAT 3 of 2009 |
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BETWEEN: |
MICHAEL PAUL FLYNN Appellant
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AND: |
CHIEF OF ARMY Respondent
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memberS: |
TRACEY J (PRESIDENT), WHITE J (DEPUTY PRESIDENT) & MILDREN J (MEMBER) |
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DATE: |
11 JUNE 2010 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
1 This is an application for leave to appeal against conviction by a General Court Martial on the sole ground that the conviction was unsafe or unsatisfactory, or to use the terminology in s 23(1)(a) of the Defence Force Discipline Appeals Act 1955 (Cth) (“the DFDAA”), “that the conviction…is unreasonable, or cannot be supported, having regard to the evidence.” No point was taken that the Tribunal ought to rule on the question of leave first, and the appeal was heard as if leave had been given.
2 The Appellant was charged and convicted of an offence against s 32(3) of the Defence Force Discipline Act 1982 (Cth) (“the DFDA”) of being intoxicated whilst on watch at Forward Operating Base Union III, as a Defence member at Baghdad on 24 December 2008 engaged on service in connection with operations against the enemy. The maximum penalty for this offence is imprisonment for five years, and for that reason the trial was conducted by a General Court Martial rather than a Restricted Court Martial.
BACKGROUND FACTS
3 The evidence called by the prosecutor at the trial was limited to a document containing agreed facts and a transcript of a Record of Interview recorded digitally between the Appellant and SGT Judges, a Service Police Investigator with the ADF Investigative Service, and WO1 Bodsworth who was present to assist in corroborating the interview. No oral evidence was called by the prosecution. The Appellant did not call or give any evidence. The Appellant was represented by counsel at his trial. The defence case was that, on the material before the Court, there was evidence that the Appellant entertained an honest and reasonable mistake of fact, the burden rested with the prosecution to prove beyond reasonable doubt that he was not so mistaken, or alternatively that the mistake was not a reasonable one, and the prosecution had failed to discharge that onus.
4 Section 10 of the DFDA provides that Chapter 2 of the Criminal Code Act 1995 (Cth) applies to all service offences. A service offence is defined by s 3(1) to include an offence against the DFDA. Section 9.2 of the Criminal Code provides for the defence of mistake of fact in cases of strict liability.
5 The agreed facts stated that the Appellant was a defence member at all relevant times, that at the time of the offence he was deployed on active service to the Middle East Area of Operations and attached to the Cavalry Troop, Security Detachment, “The Cove”, Forward Operating Base, Union III, Baghdad, and employed as a rifleman. His role whilst so deployed was to assist in the static security of the Australian Embassy, Baghdad, Observation Post duties and other duties as tasked.
6 Between 1900 and 2300 hours on 24 December 2008 the Appellant and PTE Becke were conducting OP (“observation post”) piquet duties on the roof of a building known as the Ba’ath Party HQ, FOB Union III, Baghdad, in response to a Vehicle Borne IED threat. In the record of interview the Appellant explained that this meant a “Vehicle Borne Improvised Explosive Device.” As part of their duties, they were required to monitor traffic flow, radio through traffic reports if required, be vigilant for any traffic jams and report suspicious white fleet vehicles through to their superiors. They were also required to monitor and report any spotters, unusual activity from adjacent facilities and to report any incidents. The OP also had one US soldier who was co-located and on a four hour rotational shift.
7 At the time of mounting piquet, PTE Becke put several water bottles and snacks in the OP hut fridge for him and the Appellant to consume.
8 Throughout the earlier part of the shift, US soldiers were coming and going regularly and wishing them a merry Christmas. At one stage there were about 10 US soldiers on the roof of the building. The numbers fluctuated throughout the piquet. At some stage during the piquet, PTE Becke saw the Appellant talking with four US soldiers and drinking out of a Gatorade bottle. The US soldiers were happy and joking. At about 2030 hours, PTE Becke noticed that the Appellant’s behaviour was changing, but put it down to “having a laugh” because it was Christmas.
9 At approximately 2100 hours, the US soldiers left, leaving only one US soldier on the piquet. At this time PTE Becke noticed that there was a significant change in the Appellant’s behaviour. The Appellant started talking about dancing and clubbing and how he was the premier dancer in Australia, and then started dancing on the roof top. PTE Becke told the US soldier to ignore the Appellant. This lead to the Appellant making inappropriate remarks to PTE Becke, which in turn led to him taking an aggressive stance and using aggressive language to PTE Becke. Efforts by PTE Becke to calm the Appellant down were not successful. Eventually there was a struggle which led to the Appellant assaulting PTE Becke. It is not necessary to dwell on the circumstances in detail. Suffice it to say that the Appellant’s behaviour was bizarre, he was acting as if he was very drunk, and ultimately the Appellant was seen to be hunched over and “throwing up.” When asked if he was all right by CPL Donovan who had arrived in the meantime, he was incoherent and unresponsive. Although conscious, he could not string a sentence together. His condition further deteriorated to the stage where he was moving in and out of consciousness, appeared to have trouble understanding, was dry retching and eventually unable to walk.
10 The Appellant was administered first aid by a US medic and placed on an intravenous bag. He was assessed by a medic technician who noted that he was conscious but unable to respond verbally and could only manage hand gestures. At one stage he lapsed into unconsciousness briefly. The medic’s observation was that he appeared drunk. As his condition deteriorated, he was conveyed to the US 10 Combat Support Hospital. Whilst on the way to the hospital he was having difficulty breathing due to dry-retching, coughing and choking. In transit he was intubated for airway protection and sedated. The admission diagnosis was ethanol intoxication. He was released from hospital the next day.
11 PTE Becke, who had known the Appellant for about two years on a social and work level, had never seen the Appellant behave in this way previously.
12 A search was conducted of the Appellant’s room. No alcohol was found. It was not in issue that at the relevant time the Appellant was intoxicated, knew that he was engaged on service in connection with operations against the enemy, and knew that he was on guard duty.
13 In the record of interview, the Appellant said that he was offered a drink by an American and had “a couple of mouthfuls.” When asked to elaborate, he said “as best as I can remember I was just outside the OP, there was a large group of Americans up there, maybe 5 or more at least, um and one of them passed me a Gatorade bottle, told me to have a couple of swigs, or have a sip of that, which I did and it tasted pretty, pretty wrong, and I handed it back to him and I asked what it was and he said it was it….all I, I think he said Christmas cheer.” He said that at that stage he thought that it was probably alcohol. He said that the bottle was opened when he received it and about half full. Prior to drinking from the bottle, he did not know it contained alcohol. He said: “After I took that sip, I realised that it was something like that, but beforehand, before I took the sip I didn’t ask him what it was, I didn’t and I really aren’t really sure what I assumed it to be.” He said that he did not know the American. He said that the fluid “burnt, it hurt. It was not pleasant at all.” He said that his last memory was talking to a Corporal who had “come up with a cable” and an ac adaptor for the thermal sight, but the connection was wrong and the CPL left to obtain some batteries. At that stage he remembered feeling a little bit strange, having difficulty communicating and “almost I suppose dizzy…”. He said he had no recall of the altercation with PTE Becke, and his next recollection was waking in hospital at about 1922 hours, which must have been on the following evening. He was asked about whether he was told about the results of a blood test, and he said that he had been told that his reading was point two. In the interview he said that he did not know what ethanol was. The interviewing officer told him that ethanol was pure alcohol. He was asked if he knew or had heard of any of the American soldiers being involved in moonshine or making their own spirits, to which he replied, “No”.
14 It was an agreed fact that Gatorade was freely available to both US and Australian soldiers, and was free to Australian soldiers in their mess.
Arguments of the Appellant
15 The Appellant’s principal argument was that the evidence for the prosecution did not exclude as a reasonable possibility, consistent with innocence, that the Appellant held a mistaken belief as to the contents of the Gatorade bottle when he decided to drink from it, nor that he knew that if he took a sip, that the contents might make him intoxicated. Further, the prosecution did not show that every effort had been made to locate the US soldier who offered the drink to the Appellant. Presumably, had this witness been located evidence could have been called as to the actual contents of the bottle, and whether the Appellant took a sip or gulp out of the bottle, or whether he drank a lot more. During the course of oral submissions, this Tribunal raised questions directed to whether or not there was any evidence of the results of the blood tests (apart from the hearsay evidence in the record of interview), and there was none. The Tribunal also enquired of both counsel if there was any reason why expert evidence concerning the effects of imbibing a small amount of ethanol, and whether this could have caused the Appellant to suffer severe intoxication and illness to the degree established on the agreed facts, was not led by the prosecution. No satisfactory answer was given to these questions by counsel for the Respondent. Counsel for the Respondent submitted that the only evidence of mistake was in the record of interview which was self-serving, and that it was open to the General Court Martial to reject this evidence.
Is there a reasonable doubt as to the Appellant’s guilt?
16 The test to be applied is whether this Tribunal thinks that on the whole of the evidence, it was open to the General Court Martial to be satisfied beyond reasonable doubt that the Appellant was guilty. If this Tribunal thinks that the evidence displays inadequacies or otherwise lacks probative force in such a way that there is a significant possibility that an innocent person has been convicted, this Tribunal should set aside the verdict based upon the evidence: see M v The Queen (1994) 181 CLR 487 at 493-494 per Mason CJ, Deane, Dawson and Toohey JJ. In this case, no witnesses actually were called to give evidence. Therefore this Tribunal is in as good a position as the General Court Martial was to decide this question.
17 In our opinion the evidence clearly raised the defences of involuntary intoxication (Criminal Code s 8.5) as well as honest and reasonable mistake. The defence of involuntary intoxication was not raised at the trial by counsel for the Appellant, and the learned Judge Advocate gave no direction concerning it. Nor was it directly raised on this appeal by counsel for the Appellant. As a consequence we requested counsel to provide further submissions on that issue.
18 Section 8.5 of the Criminal Code provides that “a person is not criminally responsible for an offence if the person’s conduct constituting the offence was as a result of intoxication that was not self-induced.” There is no definition of involuntary intoxication. However, s 8.1 of the Criminal Code provides that “intoxication is self-induced unless it came about (a) involuntarily; or (b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.”
19 Section 4.2 of the Criminal Code provides:
4.2 Voluntariness
(1) Conduct can only be a physical element if it is voluntary.
(2) Conduct is only voluntary if it is a product of the will of the person whose conduct it is.
(3) The following are examples of conduct that is not voluntary:
(a) a spasm, convulsion or other unwilled bodily movement;
(b) an act performed during sleep or unconsciousness;
(c) an act performed during impaired consciousness depriving the person of the will to act.
(4) An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing.
(5) If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.
(6) Evidence of self-induced intoxication cannot be considered in determining whether conduct is voluntary.
(7) Intoxication is self-induced unless it came about:
(a) involuntarily; or
(b) as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force.
20 Counsel for the Appellant submitted that the evidence raised the question whether the intoxication came about involuntarily “based upon the Appellant’s knowledge of what was in the bottle before he consumed it”. It was submitted that it cannot be said that a person has voluntarily consumed a substance, where the nature of the substance is important, unless the person has knowledge of the nature of the substance. It was submitted that the learned Judge Advocate should have directed the Court in terms of s 8.5 of the Criminal Code, albeit that no submission was made to her to do so by the Appellant’s trial counsel.
21 It might be argued that being intoxicated whilst on watch, etc, was a state of affairs within the meaning of s 4.1(2) and s 4.2(5) of the Criminal Code, and that in the circumstances of this case, the Appellant was not capable of exercising control over that state of affairs because he had no knowledge of what substance he was consuming. We think these provisions are directed more towards a situation where the accused person has been forced into the state of affairs, perhaps by the acts of others, which he had no ability to control, e.g. if the person had been forcibly held down and an intoxicating substance was poured down his throat. In the circumstances of this case, it is not necessary to decide if that is the kind of situation this provision is directed at because, in our opinion, the true basis of the defence is to be found in s 8.1, which is in identical terms to s 4.2(7)(b), namely, that intoxication which came about as a result of a reasonable mistake is not self-induced. This provision is obviously designed to cater for, amongst other things, drink-spiking, a common type of problem related to voluntariness.
22 In this case, the evidence raises the question of whether or not the Appellant’s intoxication came about as a result of a reasonable mistake as to the contents of the Gatorade bottle, and the likely effect of taking a sip or a swig from the bottle. On the whole of the evidence, the most likely inference is that the Appellant became severely intoxicated as a result of imbibing from the Gatorade bottle. The evidence establishes no more than that the Appellant took a small quantity of liquid from the bottle. It is true that the Appellant was unable to say, when interviewed, what he thought he was drinking at the time, but on the basis of the record of interview he did not become aware that the contents contained something which he thought was alcohol until he had swallowed the first mouthful. It was submitted that it is a reasonable inference that he quite possibly thought he was imbibing Gatorade, but in any event there is no evidence that he thought he was imbibing alcohol.
23 The Respondent submitted that an inference could be drawn that he must have known he was imbibing alcohol having regard to the fact that it was Christmas Eve, and he was offered a drink by one of the American soldiers, part of a group who were observed to be happy and joking. The evidence suggests that the contents may well have been some unidentified product other than a standard alcoholic drink, having regard to the extreme illness suffered by the Appellant, the time taken for the symptoms to appear, the bizarre and belligerent behaviours of the Appellant and the symptoms observed, according to the agreed facts, by the eyewitnesses. The prosecution must prove beyond reasonable doubt that the Appellant was not mistaken as to the contents of the bottle, or that if he was, his mistake was unreasonable. In our opinion, the prosecution failed to prove that he was not mistaken to that standard. Even if the Appellant had realised, or ought to have realised that the contents were likely to be alcohol, the prosecution did not prove that the contents of the drink were in fact alcohol nor that the Appellant knew or ought to have reasonably suspected that the contents were alcohol. We do not consider that it can reasonably be inferred that the Appellant ought reasonably to have realised that the taking of a small quantity of the contents of the bottle would have had the effect of causing the Appellant to become drunk. In our opinion, the prosecution did not prove beyond reasonable doubt that any mistake as to the contents of the bottle was unreasonable.
24 The case was argued before the General Court Martial on the basis of honest and reasonable mistake of fact: see s 9.2 of the Criminal Code. Under this provision, “a person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted an offence.
One of the difficulties facing the Appellant with this defence is that there is no evidence as to what he believed the contents of the bottle contained. However, there is no evidence that he knew or might have suspected that the bottle contained alcohol, and it is a reasonable inference that he might have thought that the bottle contained either Gatorade or a properly manufactured alcoholic drink. If ethanol or some other substance such as methyl alcohol was in the bottle, it may well have been produced by an illegal still and it might well have contained impurities likely to be dangerous to health. If the Appellant’s belief had been that he thought the contents were either Gatorade or properly manufactured alcohol, it is reasonable to infer that drinking such a small quantity as he did would not have caused him to become drunk, and the conduct constituting the offence would not have occurred. The burden of proof beyond reasonable doubt otherwise fell on the prosecution. In our opinion the prosecution did not discharge its onus.
25 In our opinion, the Appellant has made out the principal argument that the conviction was “unsafe and unsatisfactory.” In those circumstances, we would grant leave to appeal, allow the appeal, quash the conviction and sentence, and enter a verdict of not guilty, despite the fact that counsel for the Appellant only sought an order for a re-trial. Clearly, if the evidence was such that this Tribunal is of the opinion that there is a reasonable doubt about the Appellant’s guilt, those are the appropriate orders: see the orders made in M v The Queen, supra at 538.
Other Grounds
26 Counsel for the Appellant raised other arguments which it seems to us were really separate grounds of appeal. For the sake of completeness, we will deal with them briefly. First it was submitted that the learned Judge Advocate failed to give a circumstantial direction in the form of a Hodge direction or similar direction: R v Hodge (1838) 2 Lewin CC 227; 168 ER 1136 (“Hodges’ Case”). In our opinion, no such direction was necessary in this case. The prosecution’s case did not depend on circumstantial evidence. The prosecution had proven each of the elements of the offence through the admissions and record of interview. The only remaining issue that the prosecution had to negative was the issue of mistake. There is no rule of law or practice that a Hodge direction must be given in every case where the prosecution relies upon inferences to be drawn from the facts, nor even where the prosecution’s case relies upon circumstantial evidence: see The Queen v Grant [1975] VR 809 at 811-812; affirmed in Grant v The Queen (1975) 11 ALR 503 (High Court); The Queen v Poulter (1978) 19 SASR 370. The directions given by the Judge Advocate on the issue of drawing inferences was satisfactory. We would dismiss this ground.
27 It was submitted that the learned Judge Advocate erred by allowing the trial to proceed in the absence of any oral evidence from the prosecution. It was submitted that there was no “fair trial” in accordance with the common law. In this case counsel for the Appellant made a forensic decision to advise the Appellant to admit virtually the whole of the prosecution case. In trials before General Courts Martial, the provisions of the Evidence Act 1995 (Cth)apply: DFDA s 146(1). Admissions of matters of fact are admissible pursuant to s 184 of the Evidence Act. At the hearing of the appeal, no point was taken about whether or not some of the matters admitted were or were not matters of fact except the admission that the Appellant was, and knew he was, engaged on service in connection with operations against the enemy. In general, we do not consider that a fair trial can never be held even if all of the evidence led by the prosecutor is in the form of admissions of fact and exhibits, although that would be most unusual. Of course, situations like the present are most unusual, and there is always a risk of unfairness to the accused if no witnesses are called to give evidence.
28 Admissions can only be made as to matters of fact, and not as to law or questions of mixed fact and law. What is, or is not, a matter of fact is not always an easy question to answer. In this case, the admission which is attacked is that the Appellant was engaged in connection with operations against the enemy. The expression “the enemy” is defined by s 3 of the DFDA to mean “a body politic or an armed force engaged in operations of war against Australia or an allied force and includes any force (including mutineers and pirates) engaged in armed hostilities against the Defence Force or an allied force.” As we understand the Appellant’s submission, the admission made is a conclusion drawn from facts which are otherwise not established. The question which is raised is what is meant by the word “force” in the expression “any force (including mutineers and pirates) engaged in armed hostilities against the Defence force or an allied force”. Counsel for the Appellant submitted that there had to be a “force” of some kind, and this would not include mere criminals engaged in terrorist acts. We doubt whether an admission of the kind made in this case is an admission as to a matter of fact, however, it is not necessary for us to decide this question.
29 The prosecutor tendered a transcript of the record of interview, and not the digital recording of the record of interview. No point was taken as to the admissibility of the transcript at the trial, perhaps for tactical reasons. Nevertheless, it is our view that as a rule, the course adopted in this case was incorrect. It is the digital recording which is the evidence, not the transcript, which is generally inadmissible: Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180. Further, the record was inadmissible because the requirements of s 87 of the Evidence Act were not complied with. The potential for unfairness to an accused person is significant. Where the prosecution intends to rely upon a record of interview which has been recorded, the record should be played so that the Court can see and hear for itself what is said and assess the defendant’s demeanour during the interviewing process. This may be an important consideration when the defendant relies upon the record of interview to raise a doubt about his or her guilt.
Was PTE Flynn ever charged with the offence?
30 The appeal may be disposed of on the principal ground raised by the Appellant. The Director of Military Prosecutions (who appeared for the Respondent) did, however, draw to the Tribunal’s attention a further ground which may have been available to PTE Flynn. She did so as a matter of fairness to him. She told the Tribunal that she had received advice from senior counsel in another matter which cast doubt on the legal validity of the process whereby PTE Flynn was brought before the General Court Martial. The Director disagreed with the advice and sought to argue that the charge against the Appellant was properly preferred. The Director indicated that the issue was of general importance because the process adopted by her in the present case had also been followed by her in many others. Counsel for the Appellant formally submitted that the appeal should be allowed on the additional ground that his client had not properly been charged but did not seek to develop any submissions to support this contention because he had only been given access to senior counsel’s opinion shortly before the hearing commenced.
31 Given the potential for the issue to arise in pending trials we have determined that it should be dealt with. We have had the benefit of hearing the competing arguments clearly expounded by the Director and we have been provided with a copy of senior counsel’s advice.
32 In order to understand the legal argument it is necessary first to explain the procedural steps which were taken in order to put PTE Flynn on trial before the General Court Martial.
33 The Director received from the Military Police a brief of evidence relating to the incident in Baghdad involving PTE Flynn. Having considered the brief the Director determined to charge PTE Flynn with one count under s 32(3) of the DFDA. She caused a summons, a charge sheet and a list of witnesses and exhibits, all dated 14 May 2009, to be served on PTE Flynn. The summons read as follows:
“DEFENCE FORCE DISCIPLINE ACT 1982
Charge by way of Summons to Alleged Offender
To 8500662 Private Michael Paul FLYNN of 5 RAR, Robertson Barracks Darwin in the Northern Territory Moorebank in the State of New South Wales, I, 8221390 Brigadier Lynette McDade, an authorized member of the Defence Force for the purposes of section 87(1) of the Defence Force Discipline Act 1982, believe on reasonable grounds that you have committed a Service offence, namely being intoxicated whilst on watch and whilst engaged on service in connection with operations against the enemy contrary to Defence Force Discipline Act 1982 section 32(3).
Pursuant to section 87(1)(b) of the Defence Force Discipline Act 1982, I charge you with the charge contained in the attached charge sheet.
Pursuant to section 87(1)(c)(ii) of the Defence Force Discipline Act 1982, I will request the Registrar to refer the charge against you to the Australian Military Court for trial.
Attached is a Notice to the Accused – List of Witnesses and Exhibits.
L.A. McDade
Brigadier
Director of Military Prosecutions
Authorised member
14 May 2009”
34 The Director ordered that officers in PTE Flynn’s unit were “not to arrange for a summary dealing in respect of these charges (sic) against PTE Flynn.” The unit was advised that, once the Director had received an affidavit of service of the documents, she would “exercise [her] powers under DFDA s 87(1)(c)(ii) to request that the Registrar [of Military Justice] refer the charges to the Australian Military Court for trial.”
35 The documents were served on PTE Flynn on 29 May 2009.
36 On 26 August 2009 the High Court handed down its decision in Lane v Morrison (2009) 239 CLR 230. The Court declared that Division 3 of Part VII of the DFDA, which established the Australian Military Court, was invalid. Shortly afterwards the Parliament enacted the Military Justice (Interim Measures) Act (No. 1) 2009 (Cth) (“the Interim Measures Act”). This Act, in substance, re-established the regime of Courts Martial and Defence Force Magistrates which had been obtained under the DFDA prior to its amendment by the Defence Force Legislation Amendment Act 2006 (Cth) which replaced these tribunals with the Australian Military Court. The Interim Measures Act contained transitional provisions under which charges pending in the Australian Military Court at the time of the High Court’s decision were to be dealt with by Courts Martial or Defence Force Magistrates. The present was one such case.
37 After the commencement of the Interim Measures Act, the Director, on 24 September 2009, issued the following request to the Registrar of Military Justice:
“REQUEST TO REGISTRAR TO CONVENE A GENERAL COURT
MARTIAL TO TRY THE CHARGES
Defence Force Discipline Act 1982
TO: The Registrar of Military Justice
Pursuant to section 87(1)(c)(iii) Defence Force Discipline Act 1982, I request that you convene a General Court Martial to try the attached charge against 8500662 Private Michael Paul Flynn, the accused person.
Further, I certify that prior to referring this matter to the Registrar of Military Justice, that all documents have been disclosed to the accused person.
Subject to witness’ availability, the available trial dates are from October 2009.
The preferred venue for the trial is Robertson Barracks, Darwin.
Date this 24 day of September 2009
L.A. McDade
Brigadier
Director of Military Prosecutions”
38 In both the Summons and the Request to the Registrar of Military Justice the Director relied on powers conferred on her by s 87 of the DFDA. At relevant times that section provided:
“(1) Where an authorized member of the Defence Force believes, on reasonable grounds, that a person has committed a service offence, the authorized member may:
(a) if the person is a defence member:
(i) charge the defence member with the service offence;
(ii) cause a copy of the charge to be given to the defence member; and
(iii) order the defence member to appear before a summary authority at a specified time and place to be dealt with in accordance with section 110 or 111; or
(b) whether or not the person is a defence member-cause to be prepared a summons directed to the person specifying the service offence that the person is alleged to have committed and requiring the person to appear before a commanding officer at a time and place specified in the summons to be dealt with in accordance with section 110; or
(c) if the authorized member is the Director of Military Prosecutions, do one of the following:
(i) if the charge is a charge that is within the jurisdiction of a superior summary authority or a commanding officer to try-refer the charge to a superior summary authority or a commanding officer for trial under section 106 or 107;
(ii) request the Registrar to refer the charge to a Defence Force magistrate for trial;
(iii) request the Registrar to convene a court martial to try the charge.
(1A) To avoid doubt, the Director of Military Prosecutions:
(a) may exercise any or all of the powers referred to in paragraphs (1)(a), (b) and (c); and
(b) may exercise the power referred to in paragraph (1)(c) in addition to, or instead of, the powers referred to in paragraphs (1)(a) and (b).
(2) A summons under paragraph (1)(b) shall be served on the person to whom it is directed in a manner specified in the regulations.
(3) Where a summons relating to a service offence is served on a person in accordance with subsection (2), the person shall be taken, for the purposes of this Act, to have been charged with the offence.
…
(6) In this section:
authorized member of the Defence Force means:
(a) the Director of Military Prosecutions;
…”
39 It is convenient, at this point, to note that, when it was first introduced in 2005, s 87(1A) read:
“(1A) To avoid doubt, the powers of the Director of Military Prosecutions under paragraph (1)(c) are in addition to, and not in substitution for, his or her powers under paragraphs (1)(a) and (b).
Section 87(1A) was introduced to the DFDA in its present form by the Defence Legislation Amendment Act 2007 (Cth). The Explanatory Memorandum for the Bill which became that Act said (at para 133) that the amendment to s 87(1A) was proposed for the following reasons:
“Item 1 repeals and substitutes subsection 87(1A) to clarify the powers of the DMP under section 87. Current DFDA subsection 87(1A) is unclear as to whether it fully provides for the intended extent of the DMP’s powers. These include charging a member with a service offence, summonsing a member to appear before a summary authority, referring a charge to a summary authority or requesting the Registrar of Military Justice to refer a charge to a Defence Force magistrate or convene a court martial (and in future, the Australian Military Court). In the interests of ensuring the DMP can perform his or her role in supporting the ADF discipline system, it is intended to amend the DFDA to clarify the DMP’s powers under s 87 and to make it clear that he or she has the full range of options that are required by the position. It is not intended to add to or diminish the existing options under this provision.” (Emphasis added).
40 Sections 106 and 107 of the DFDA respectively conferred jurisdiction to try charges in respect of service offences on superior summary authorities and commanding officers. Although not specifically referred to in s 87, s 108 of the DFDA further confers jurisdiction to deal with charges on subordinate summary authorities. Sections 109, 110 and 111 of the DFDA confer power, respectively, on superior summary authorities, commanding officers and subordinate summary authorities to make various decisions in dealing with charges which fall within their jurisdiction. Section 110 provided:
“(1) In dealing with a charge, a commanding officer may:
(a) where the charge is within his or her jurisdiction to try under subsection 107(2) – make a decision to try the charge under that subsection;
(b) where the charge is not within his or her jurisdiction to try under subsection 107(2) and he or she is of the opinion that there is insufficient evidence to support the charge – direct that the charge be not proceeded with;
(c) where the charge is within the jurisdiction of a superior summary authority to try under section 106 – refer the charge to a superior summary authority;
(d) refer the charge to the Director of Military Prosecutions; or
(e) where it is desirable in the interests of justice or for any other reason – refer the charge to be dealt with by another commanding officer.
(2) A commanding officer may refer a charge under paragraph (1)(c) or (d) whether or not the charge is within his or her jurisdiction to try under subsection 107(2).”
41 Mention should also be made of some related provisions which have a bearing on the issue under consideration. Section 105A of the DFDA provides:
“(1) This section applies if:
(a) a person has been charged with a service offence; and
(b) the charge has not yet been dealt with under section 109, 110 or 111.
(2) The person’s commanding officer, or a superior officer in relation to the person’s commanding officer, may refer the charge to the Director of Military Prosecutions.
(3) Subject to paragraph 103(1)(b), if a charge is referred to the Director of Military Prosecutions under this section, the charge must not be dealt with under section 109, 110 or 111.”
42 Section 103(1) of the DFDA provides:
“Where a charge is referred to the Director of Military Prosecutions under subsection 105A(2), paragraph 109(b) or 110(1)(d), subsection 129D(2) or 130(5), section 131A or subsection 141(8), 145(1) or (3) or 194(7), the Director of Military Prosecutions may:
(a) direct that the charge be not proceeded with;
(b) if the charge is a charge that is within the jurisdiction of a superior summary authority or a commanding officer to try (other than a charge referred under subsection 145(1) or (3)) – refer the charge to the superior summary authority or the commanding officer for trial;
(c) request the Registrar to refer the charge to a Defence Force magistrate for trial; or
(d) request the Registrar to convene a general court martial or a restricted court martial to try the charge.”
43 Section 95 provides that, where a member of the Defence Force has been arrested, the member must be delivered into the custody of a commanding officer. When this occurs s 95(2) provides that the commanding officer shall either charge the member with a service offence within 24 hours or release the person from custody. If a charge is laid the commanding officer must immediately arrange for a copy of the charge to be given to the member: see s 95(3). The commanding officer is further obliged, where a charge has been laid, to cause proceedings to be commenced for dealing with the charge as soon as practicable: see s 95(4).
44 When the Director charged him with an offence under the DFDA, PTE Flynn was a Defence member. The Director, as an authorised member of the Defence Force could, therefore, have laid the charge under s 87(1)(a). She did not do so. Rather she chose to act (as the charge states) under s 87(1)(b). The summons did not, however, require PTE Flynn to appear before a commanding officer to be dealt with in accordance with s 110 of the DFDA. Instead, the summons specified the service offence which PTE Flynn was alleged to have committed and then notified him that the Director proposed, pursuant to s 87(1)(c)(ii), to request the Registrar to refer the charge to the Australian Military Court (later amended to substitute a General Court Martial).
45 Senior counsel’s advice to the Director was that a service member could not be taken to have been charged with an offence under the s 87(1)(b) process unless the summons both specified the service offence and required the person to appear before a commanding officer. For similar reasons, he considered that the provisions of s 87(1)(a) were cumulative and that a service member could not be said to have been charged until all of the steps prescribed in the three subparagraphs had been taken. He advised that, if s 87(1)(a) and (b) were so construed, any attempt on the part of the Director to exercise her powers under s 87(1)(c) must fail because the powers which that paragraph confers on the Director can only be exercised once the service member has been charged with a service offence in accordance with some other provision of the DFDA. Senior counsel considered that his preferred construction was supported by the terms of s 87(1A) when it declared a legislative intention that the Director’s powers under s 87(1)(c) were to be understood to be in addition to and not in substitution for the powers conferred on her by s 87(1)(a) and (b). He was also of the view that the construction contended for by the Director was tantamount to a claim by her to have the power to modify the operation of either s 87(1)(a)(iii) or s 87(1)(b) to avoid the necessity for any charges first to be considered by a commanding officer. It was, he said, “logically untenable” to assert that s 87(1)(c) could be construed as conferring such a modifying power.
46 The Director submitted that the powers conferred on her by each of s 87(1)(a) and (b) were not cumulative and could be disaggregated. Thus, she could exercise the power to charge a Defence member under s 87(1)(a)(i), without having to order the member to appear before a summary authority and could, under s 87(1)(b), cause the summons to be prepared which specified the offence that the member was alleged to have committed without also requiring the person to attend before a commanding officer. The Director contended that, once she had laid a charge under s 87(1)(a) or (b), she could then exercise any of the powers conferred on her by s 87(1)(c).
47 Paragraphs 87(1)(a) and (b) have appeared in the DFDA since its inception. Paragraph (a) is designed to deal with the more common situation in which an authorised member of the Defence Force desires to charge another Defence member with a service offence. The Defence member will be accessible and can be told that he or she has been charged with an offence. This may well be done orally. The charge is to be reduced to writing and given to the member and the member then ordered to appear before a summary authority so that the charge can be dealt with under ss 110 or 111. These three steps may be taken contemporaneously or at different times. Cumulatively, they are designed to ensure that the charged member is brought before a service tribunal.
48 Paragraph (b) is necessary to take account of the possibility that the alleged offender is not readily accessible to the authorised member because he or she is a Defence civilian, a former Defence civilian, a reservist who is not rendering full time service or a former Defence member, none of whom can be ordered to attend before a commanding officer. Such a person is deemed, by s 87(3) to have been charged with a service offence when the summons has been served. The paragraph is also available as an alternative method of proceeding against a serving member.
49 When the Office of Director of Military Prosecutions was created in 2005, paragraphs (1)(a) and (b) were left unchanged. Paragraph (c) was added and s 87(6) provided that the Director was to be treated as an “authorised member” for the purposes of s 87(1). Other references to the Director were added, including those appearing in ss 103, 105A and 110. See Defence Legislation Amendment Act (No 2) 2005 (Cth).
50 The creation of the Office was recommended by the Honourable James Burchett QC in his Report of an Inquiry into Military Justice in the Australian Defence Force which was tendered in July 2001 and in a subsequent Report in June 2005 on the Effectiveness of Australia’s Military Justice System, by the Foreign Affairs, Defence and Trade References Committee of the Senate.
51 When recommending the appointment of a Director of Military Prosecutions Mr Burchett was alert to the tension between the traditional role of the chain of command in maintaining military discipline and the independent discretions to lay and prosecute charges which he proposed should be conferred on the Director. He was also mindful of the distinction between matters referred to the Director, through the chain of command, after a service member had been charged, and matters in which the Director might herself decide to lay charges following receipt of briefs of evidence prepared by the military police or other authorities.
52 The elements of the model proposed by Mr Burchett included:
“• That receipt of matters by DMP would be via a process of referral by a Commanding Officer through a Superior Authority. That is, the involvement of the Commanding Officer in dealing with a matter would be similar to that in use at present. Where a matter, for whatever reason, appeared to warrant trial by Court Martial or DFM, the Commanding Officer would refer it to his Superior Authority (which might correspond to current Convening Authorities) to confirm further referral to the DMP or back to the Commanding Officer to try as appropriate. Such a process would allow the chain of command to remain involved in the matter while being separated from the technical decision to prosecute which would be made by the DMP according [to] the Australian Defence Force prosecution policy.
• That referrals by a Superior Authority could be accompanied by a statement of the “Service interest” in the matter and possibly a recommendation as to what type of trial (DFM, General or Restricted Court Martial) might be appropriate if the DMP decided to proceed …”
See at para 226. Mr Burchett went on to say (at para 227) that he saw:
“… no compelling reason why a system such as that outlined above would not be practicable. It would not interfere with the present pivotal role of the CO or, indeed, substantially alter the existing process up to CO level. Thereafter, for matters potentially requiring trial by Court Martial or DFM, importantly, it allows the chain of command to remain involved in the process without the potential to attract criticism on the ground of lack of independence or impartiality in the exercise of the discretion to prosecute.”
Later (at para 234) he noted that the model which he had proposed “leaves the chain of command precisely where it is, for all practical purposes.”
53 He dealt separately with the considerations which might arise where, as in the present case, a matter comes to the Director’s attention other than through the chain of command. In dealing with this type of case he said (at para 235) that:
“… It is a separate question whether the DMP should also have power to prosecute crimes revealed by investigations reported to him… . I would suggest this also could have little practical effect on a commander’s position, since cases of that type, in which a crime had actually been committed, and prima facie proof was shown, could not in general be dealt with otherwise than by prosecution. The DMP would not be prosecuting unless, in his expert legal opinion, it was such a case. However, there could be exceptional situations in which a Service interest ought to be taken into account. For that reason, I think the DMP should be required, before making a decision in a matter that comes other than from a CO, to seek, from a senior officer in the chain of command information as to any Service interest that should be taken into account. With that qualification, the DMP should have power to decide whether to prosecute in a matter referred in the manner I have described.” (Emphasis added).
54 Notably absent from Mr Burchett’s report was any suggestion that a decision by the Director to prefer charges against a service member could effectively be vetoed by a commanding officer giving a direction under s 110(1)(b). Indeed, the notion that a commanding officer, who would normally not be a lawyer, could contradict the opinion of the Director about the sufficiency of the evidence to support a charge, runs counter to the express observations of Mr Burchett that decisions to prosecute should be made by the Director independently of the chain of command.
55 The essential elements of Mr Burchett’s recommendations were adopted by the legislature following further consideration of the issue by the Senate committee which supported the proposition that decisions to prosecute service offences should rest with an independent Director of Military Prosecutions.
56 The Office of Director of Military Prosecutions was established under Part XIA of the DFDA. The provisions of the Part relating to the appointment, powers, functions and tenure of the office are modelled on those to be found in the Director of Public Prosecutions Act 1990 (ACT) and the Director of Public Prosecutions Act 1983 (Cth): see Explanatory Memorandum for the Defence Legislation Amendment Bill (No 2) 2005 at para 5. These provisions serve to protect the independence of the office from command and other influence. The functions of the Director include carrying on prosecutions for service offences whether or not those prosecutions have been instituted by the Director or not: see s 188GA(1)(a).
57 The power of the Director to lay charges is to be found in s 87(1)(a) and (b). Other authorised officers, including commanding officers, may charge service members under these and other provisions such as s 95. In a case in which the Director determines to exercise her independent statutory discretion to charge a service member with a service offence it may reasonably be presumed that she considers that the evidence available to her warrants the charge being heard and determined by a service tribunal. The construction of s 87(1) which is favoured by senior counsel would mean that no charge laid by the Director would be complete unless the Defence member was ordered or summoned to appear before a commanding officer to be dealt with under s 110. When the commanding officer comes to deal with the member under that provision he or she has a number of options. As already noted, one of these options is to direct that the charge not be proceeded with. The commanding officer could also refer the charge for hearing by a service tribunal other than the one considered appropriate by the Director. Another option would be for the commanding officer to refer the matter back to the Director who could then (but only then) exercise the powers conferred on her by s 87(1)(c). Such a construction would make s 87(1)(c) otiose because s 103(1) already confers the same powers on the Director if a charge is referred to her under s 110(1)(d).
58 The Explanatory Memorandum for the Bill which became the amending Act suggests that such was not the intention of the legislature when it modified s 87 to confer powers on the Director. Paragraphs 17, 18 and 21 of the Explanatory Memorandum read:
“17. Item 9 [which introduced s 87(1)(c)] provides for the Director of Military Prosecutions to have certain powers in relation to directing what is to be done once a charge has been preferred by the Director of Military Prosecutions. The Director of Military Prosecutions has the power to prefer charges as the Director of Military Prosecutions is an “authorized officer” for the purposes of the section (see subsection 87(6)).
18. The Director of Military Prosecutions is given the power to request the Registrar of Military Justice to refer the charge to a Defence Force Magistrate or convene a court martial to try the charge without the need for a charge to be first dealt with by a Commanding Officer under s 110 of the Act.
…
21. Item 11 repeals the existing subsection 87(6) and substitutes a new subsection (6) to ensure that the Director of Military Prosecutions is an authorised member for the purposes of s 87, which enables the Director of Military Prosecutions to, inter alia, prefer charges …” (Emphasis added).
59 Despite a number of attempts by Parliament to clarify the Director’s powers, under s 87, to charge a service member and to cause the charge to be placed before an appropriate service tribunal, the section remains difficult to construe. We are satisfied by reference to the language of the section and the extrinsic materials to which we have referred that it was the legislature’s intention that the Director should have the power to prefer charges, the power to make the ultimate decision as to whether charges (whether initiated by the Director or referred to the Director) should be prosecuted and if so in what tribunal and the power to conduct the prosecutions. The Director would not have all of these powers if, in order to initiate a charge herself, she must comply with s 87(1)(a) or (b) in their entirety before she can exercise any of the powers conferred on her by s 87(1)(c). Section 87(1A) in its present form was, according to paragraph 133 of the Explanatory Memorandum, designed to ensure that the Director “has the full range of options that are required by the position.” This objective could be achieved if the Director could choose to exercise the powers conferred on her by s 87(1)(a)(i) and (ii) or by s 87(1)(b) to the extent of causing to be prepared a summons which advised the service member of the offence that the person is alleged to have committed and then exercise one or more of the powers conferred on her by s 87(1)(c). Such an ability to “cherry pick” the powers conferred by s 87(1)(a) and (b) is suggested by s 87(1A)(a) which speaks of “any or all of the powers” conferred by those two paragraphs. Section 87(1A)(b), however, complicates matters by using the phrase “the power referred to in paragraph (1)(c)” when paragraph (c) plainly confers multiple powers on the Director and by saying that these powers may be exercised “in addition to, or instead of, the powers referred to in paragraphs (1)(a) and (b).” The powers conferred by s 87(1)(c) are all powers that fall to be exercised after a charge has been laid by the Director or some other authorised member of the Defence Force. It is, therefore, difficult to comprehend how the Director’s powers under s 87(1)(c) could be exercised “instead of” any of the powers conferred by s 87(1)(a) or (b).
60 Despite these difficulties, we consider that the better view is the one contended for by the Director under which she is able to charge a service member with an offence under either s 87(1)(a) or (b) and then exercise one or more of the powers conferred on her by s 87(1)(c). This construction is supported by s 87(1A)(a) and it is consistent with Mr Burchett’s recommendations and the passages in the Explanatory Memoranda which we have set out.
61 In the present case the Director exercised her power under s 87(1)(b) to cause a summons to be prepared which specified the service offence that PTE Flynn was alleged to have committed and then arranged for the summons to be served on him. Once that occurred she exercised the power conferred by s 87(1)(c)(iii) to request the Registrar of Military Justice to convene a General Court Martial to try the charge. In this way we consider that PTE Flynn was charged conformably with the DFDA at the time on which he was called on to plead to the charge at his trial. We note that no objection to the efficacy of the charge was taken when PTE Flynn was arraigned.
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I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of Tracey, White & Mildren JJ. |
Associate:
Dated: 11 June 2010