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Appendix 4 - Additional questions based on a submission received by the committee on 3
October from Mr Douglas McDonald
26. Mr Douglas McDonald raised concerns about the
eligibility of jurors as proposed in the bill. He noted that: 'The proposed
Defence Force Discipline Act section 122 will require a military jury to
consist of six members with at least one holding a rank not lower than
Lieutenant Colonel (E). The proposed Defence Force Discipline Act subsection
123(1) will state that in order to be eligible as a member of a military jury,
a juror must be an officer of not less than 3 years service and at a higher
rank than the Defendant. If the Defendant is not an officer, the proposed
Defence Force Discipline Act subsection 123(2) will specify that a juror must
be an officer or a Warrant Officer Class One (E) for a period not less than 3
years service and at a higher rank than the Defendant.' He surmised:
Undoubtedly at the commencement of these trials by Military
Judge and Jury, the Military Judge would address members of the jury on all
aspects of the decisions that have to make and the process of how they
determine a Defendant’s guilt or innocence. If this is the jurors’ preparation
for a trial, then a case exists to allow Warrant Officers Class Two (E), Sergeants
(E) or even Corporals (E) to also become members of a military jury. I believe
that the reason this has not been considered may well be due to their lack of
an appropriate level of seniority, military experience and credibility to make
decisions on military justice matters.
- Could you explain the reasons for the proposed eligibility
criteria including the reasons for excluding 'Sergeants or even Corporals'?
- Was the criteria based on an existing model for military juries?
27. Mr McDonald also suggested that there was the
potential for junior officers—Captains or Lieutenants—to be influenced or even
dominated by the more senior officer on the jury and their votes of Guilty or
Not Guilty, may be based on the views held by the Lt. Colonel.
- Could the committee have your views on the potential for junior
ADF members on military juries to be unduly influenced in their decision-making
by a senior officer?
- One of the major concerns expressed by the committee on a number
of occasions has been the influence of the chain of command in the operation of
the military justice system. What are the safeguards in the proposed military
jury that would prevent this influence from happening?
28. Mr Douglas was also concerned that the level of
training required for jurors was inadequate.
- Would you like to comment on his views?
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