Chapter 1


Chapter 1

Annual reports

Director of Military Prosecutions

1.1        The Director of Military Prosecutions Report for the period 1 January to 31 December 2012 was tabled in the Senate on 15 May 2013. This is the sixth report presented to Parliament by Brigadier LA McDade.

1.2        Brigadier McDade noted that this will be her last report as her term as Director of Military Prosecutions (DMP) will expire on 11 July 2013. As such, Brigadier McDade took the opportunity to thank the officers, non-commissioned officers and Australian Public Service staff that have been posted to or worked at the office during her appointment. She acknowledged that:

It is through their collective efforts, hard work, dedication and support that the office has developed into an effective prosecutorial unit.[1]

1.3        The Office of the DMP is a statutory body created under the Defence Force Discipline Act 1982 (DFDA). The position of the DMP was created by section 188G of the DFDA and commenced on 12 June 2006.[2] The office holder must be a legal practitioner with not less than five years experience, and be a member of the Permanent Navy, Regular Army or Permanent Air Force, or be a member of the Reserves rendering full-time service, holding a rank not lower than the rank of Commodore, Brigadier or Air Commodore.[3]

1.4        Under section 188GA of the DFDA, the DMP has the following functions:

  1. 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;
  2. to seek the consent of the Directors of Public Prosecutions as required by section 63;
  3. 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;
  4. to represent the service chiefs in proceedings before the Defence Force Discipline Appeal Tribunal; and
  5. to do anything incidental or conducive to the performance of any of the preceding functions.[4]

1.5        The primary function of the DMP is to carry on prosecutions for service offences in proceedings before courts martial or Defence Force magistrates.[5]

Personnel

1.6        Brigadier McDade reported that at the commencement of the reporting period the DMP had established 15 positions for prosecutors, a senior commissioned officer performing the duties of a Service Police Investigations Liaison Officer, and eight civilian support staff.[6]

External Associations

1.7        Brigadier McDade noted that, since 2007, prosecutors from the Office of the DMP have been admitted as members of the Australian Association of Crown Prosecutors (AACP). The AACP held its annual conference in Darwin in 2012. Brigadier McDade, the deputy Director and two junior prosecutors attended the conference, titled 'Crocs, Crooks and Chromosomes'. Brigadier McDade noted that the conference provided:

...a practical look at DNA evidence and a unique opportunity to explore the most effective methods of interpreting and presenting DNA evidence in criminal trials, from a purely prosecutorial perspective.[7]

Internal (Department of Defence) Liaison

1.8        During the reporting period, Brigadier McDade provided regular reports to the Chief of the Defence Force and the Service Chiefs. Quarterly reports on the operations and workload of the Office of the DMP were provided to the Minister.[8]

1.9        Brigadier McDade noted that the Military Justice Coordination Committee (MJCC) has provided an effective forum to initiate amendments to the DFDA. This committee was created in response to the Street/Fisher recommendation that a committee be formed to:

Oversee and coordinate DFDA action items and facilitate future efficiencies across the principal responsible DFDA agencies.[9]

1.10      The matters raised with the MJCC by Brigadier McDade included:

  • difficulties concerning the framing and extent of drug offences under the DFDA compared to equivalent legislation in other jurisdictions; and
  • providing input on proposed changes to the investigative provisions of the DFDA to update and improve those provisions.[10]

1.11      The OMDP continued to support the Defence Police Training Centre in its training of service police in investigations and the management of investigations.[11]

Contact with military prosecuting authorities of other armed forces and other organisations

1.12      In May 2012, Brigadier McDade attended the XIXth Congress of the International Society for Military Law and the Law of War in Quebec, Canada. While in Canada, Brigadier McDade also met with the Canadian Director of Military Prosecutions, Colonel Mario Leveillee who had just taken over the role from Captain John Maguire, Royal Canadian Navy. She was provided with briefings on the history and passage of Canada's recent military justice legislation. Brigadier McDade noted that the two offices are highly comparable, with similar caseloads, staffing levels and statutory powers and constraints.[12]

Caseload

1.13      Brigadier McDade noted that from 1 January 2011 to 31 December 2012, 38 Defence Force Magistrate (DFM), 11 Restricted Courts Martial (RCM) and one General Court Martial (GCM) hearings were held. She also provided the following caseload data for the reporting period:

  • 32 matters were not proceeded;
  • 35 matters were referred back for summary disposal;
  • two matters were referred to civilian Directors of Public Prosecution; and
  • as at 31 December 2012, Office of the DMP had 51 open matters.[13]

Significant cases

1.14      The annual report cited seven significant cases heard during the reporting period:

  • Li v Chief of Army [2012] ADFDAT 1: on 8 April 2011, Major Li was convicted by RCM of creating a disturbance on service land. An appeal to the DFDAT was heard on 16 December 2011 which was dismissed on 15 March 2012.
  • Li v Chief of Army [2012] FCAFC: on 13 April 2012, Major Li lodged an appeal against the DFDAT decision with the Federal Court of Australia. The appeal was heard on 13 November 2012. The appeal was dismissed by a majority of the Full Court of the Federal Court of Australia on 26 February 2013.
  • Jones v Chief of Navy [2012] ADFDAT 2: in December 2011, Lieutenant Commander Jones was convicted by GCM of seven counts of 'indecent conduct upon an Able Seaman without her consent' and one count of 'attempting to destroy service property'. An appeal against the convictions on 'indecency offences' to the DFDAT was heard on 15–16 March 2012. On 22 May 2012, the appeal was dismissed (except for quashing one conviction, but convicting him of the alternative charge of prejudicial conduct).
  • Jones v Chief of Navy [2012] FCAFC 125: on 19 June 2012, Mr Jones lodged and appeal to the federal Court of Australia against the DFDAT decision. The appeal was heard on 19 July 2012. The appeal was dismissed on 7 September 2013 and Mr Jones was ordered to pay the Chief of Navy's costs.
  • Bateson v Chief of Army [2012] ADFDAT 3: on 3 August 2010, Sergeant Bateson as convicted by a DFM of two charges of insubordinate conduct. An appeal to the DFDAT was heard on 27 April 2012, and in its decision of 25 May 2012, the appeal was allowed and the convictions quashed. The DFDAT did not order a retrial.
  • King v Chief of Army [2012] ADFDAT 4: on 28 September 2012, the DFDAT heard an appeal in relation to the conviction of Warrant Officer Class One King by a DFM on one count of disobeying a lawful command, two counts of prejudicial conduct, and a single count of giving false evidence to an Inspector General-ADF inquiry officer. The DFDAT decision of 28 September 2012 allowed the appeal and quashed the convictions.
  • General Court Martial of Captain Stefan King, RAN: on 12 December 2012, Captain Stefan King, RAN was convicted by a GCM of three counts of obtaining a financial advantage by deception, and four counts of obtaining financial advantage contrary to subsection 61 (3) of the DFDA and section 135.2 (1) of the Criminal Code Act 1995 (Cth). Captain King has filed a notice of appeal against his convictions in the DFDAT.[14]

Afghanistan—Detainee Management—Allegations of Procedural Misconduct

1.15      Brigadier McDade noted that the Australian Defence Force Investigative Service (ADFIS) commenced an investigation in January 2011 into allegations that previous members of the Detainee Management Team within the ADF Initial Screening Area in Afghanistan 'did not comply with procedures relating to the management and administrative processing of detainees and in particular the requirement to maintain accurate records of that management and processing'. Following the ADFIS investigation, four members of the previous Detainee Management Team were charged with services offences alleging falsification of service documents about detainees. Three of the trials concerning these matters had been held at the time of reporting; the fourth trial was scheduled for April 2013.[15]

Military Court of Australia Bills

1.16      The Military Court of Australia Bill 2012 and the associated Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 were introduced into the House of Representatives on 21 June 2012, and referred to the Senate Legal and Constitutional Affairs Committee on 28 June 2012. Brigadier McDade made 'a succinct submission to the Committee, expressing the hope that the Bills are constitutionally sound because it is inevitable that they will be challenged'.[16]

1.17      The committee's report, tabled in the Senate on 9 October 2012, recommended that the bills be passed subject to certain amendments being made to the explanatory memoranda. Brigadier McDade noted that it was uncertain when debate on the bills would resume in the House of Representatives. She urged that,

...consideration be given to proceeding separately with those parts of the second Bill which are not contingent on the establishment of the Military Court of Australia, so that improvements such as statutory recognition of the role of the Director of Defence Counsel Services are not held up.[17]

Investigative provisions of the DFDA

1.18      Brigadier McDade observed that the investigative provisions of the DFDA are in need of legislative reform and again noted the examples provided in the previous annual report.[18]

Assistance to victims of service offences

1.19      Brigadier McDade noted her ongoing focus on the positive management of victims, including working with the Head of the Sexual Misconduct Prevention and Response Office to support victims of sexual offences as well as assisting in providing case studies for the purpose of educating commanders and ADF personnel on the prevention of sexual offences.[19]

Information communication technology (ICT) function

1.20      Brigadier McDade reported a number of ongoing information technology problems for the ODMP. She noted that these concerns were raised in the previous annual report.[20]

Table of Offences

1.21      The report included the following table of offences:[21]

Class of Offence

RAN

ARMY

RAAF

TOTAL

Acts intended to cause injury

1

16

14

21

Sexual assault and related offences

2

7

4

13

Dangerous or negligent acts endangering persons

0

1

0

1

Theft and related offences

4

3

1

8

Fraud, deception and related offences

7

14

8

29

Illicit drug offences

0

3

0

3

Prohibited and regulated weapons and explosives offences

1

1

0

2

Property damage and environmental pollution

1

1

0

2

Traffic and vehicle regulatory offences

0

6

0

6

Offences against justice procedures, government security and government operations

1

0

0

1

Specific military discipline offences

14

22

3

39

TOTAL

31

74

20

125

Conclusion

1.22      In conclusion, Brigadier McDade stated that:

The legislative establishment of the position of Director of Military Prosecutions represented a radical shift to statutory independence in the prosecution of service offences. In my opinion, during my tenure, awareness and understanding—on the part of commanders, other ADF members and the public—of the role and functions of the DMP has increased.[22]

Judge Advocate General

1.23      The Judge Advocate General annual report for the period 1 January 2012 to 31 December 2012 was tabled in the Senate on 18 June 2013.

1.24      The office of the Judge Advocate General (JAG) of the ADF was created by s 179 of the Defence Force Discipline Act 1982 (DFDA). The current JAG, Major General the Hon Justice RRS Tracey, RFD, was reappointed as JAG on 10 February 2010 for a term of four years. The current JAG also holds the appointment of President of the Defence Force Discipline Appeals Tribunal (DFDAT).[23]

1.25      The functions of the JAG are prescribed by the DFDA. The JAG is responsible for the following functions:

  1. reporting annually to Parliament on the operation of the DFDA, the Regulations, the Rules of Procedure, and the operation of any other law of the Commonwealth or the ACT insofar as that law relates to the discipline of the Defence Force;[24]
  2. making Procedural Rules for Service tribunals, being Court Martial and Defence Force Magistrate Rules, and Summary Authority Rules;
  3. nominating the judge advocate for a court martial[25] and Defence Force magistrates;[26]
  4. nominating to a Service Chief officers to be members of the judge advocate's panel;[27]
  5. appointing Defence Force magistrates from officers appointed as members of the judge advocate panel;[28]
  6. nominating to a Service Chief legal officers for the purposes of DFDA  s 154(1)(a); and
  7. if requested, providing a final and binding legal report in connection with the internal review of proceedings before Service tribunals.

Operation of the Superior Military Tribunals

1.26      The JAG noted that during the reporting period, trials by court martial and DFM continued in accordance with the Military Justice (Interim Measures) Act (No 1) 2009, as amended by the Military Justice (Interim Measures) Amendment Act 2011.[29]

Appeals to the Defence Force Discipline Appeal Tribunal

1.27      During the reporting period, there were four appeals to the Defence Force Discipline Appeal Tribunal (DFDAT) in connection with convictions recorded by courts martial and DFM. These were:

  1. King v Chief of Army [2012] ADFDAT 4;
  2. Bateson v Chief of Army [2012] ADFDAT 3;
  3. Jones v Chief of Navy [2012] ADFDAT 2; and
  4. Li v Chief of Army [2012] ADFDAT 1.

1.28      The appeals in King and Bateson were upheld, the appeal in Jones was partly upheld (a subsequent appeal to the Full Bench of the Federal Court was dismissed) and the appeal in Li was dismissed.[30]

Legislation

1.29      The JAG also noted that the Military Court of Australia Bill 2012 and the associated Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 were introduced into the House of Representatives on 21 June 2012, and referred to the Senate Legal and Constitutional Affairs Committee on 28 June 2012. The committee report, tabled in the Senate on 9 October 2012, recommended that the bills be passed subject to certain amendments being made to the explanatory memoranda. The JAG noted that the bills were not passed during the reporting period.[31]

Other Military Discipline Reform

1.30      The JAG noted that during the reporting period Defence Legal had developed simplified procedures with guidance and commentary for summary proceedings. Defence Legal also reviewed the chapters of the Discipline Law Manual which provides guidance to those involved in summary authority proceedings.

1.31      During the reporting period the publication of trial outcomes for courts martial and DFMs in service newspapers commenced. The JAG commended this initiative as it enhances openness and transparency. However, the JAG did raise concerns that in some cases acquittals were not being included in the reporting.[32]

Discipline Law Training

1.32      The Governance of Military Justice Training Manual (the manual) came into effect in September 2012. The JAG explained that the manual provides direction to the Services for the provision of military justice training across Defence.

1.33      The promulgation of the manual implements military justice recommendations by:

  • Mr JCS Burchett, QC in the 2001 Report of an Inquiry into Military Justice in the Australian Defence Force;
  • The Senate Foreign Affairs, Defence and Trade References Committee in the 2005 report The Effectiveness of Australia's Military Justice System;
  • The Inspector-General ADF in the 2006–2007 and 2007–2008 Defence Annual Reports; and
  • Sir Laurence Street, AC KCMG, QC and Air Marshal Leslie Fisher AO (Retd), in the 2009 Report of the Independent Review on the Health of the Reformed Military Justice System.[33]

1.34      The JAG outlined the discipline law training provided in the ADF during the reporting period, and the ongoing development of discipline law training.[34]

Conclusion

1.35      In conclusion, the JAG stated that:

The interim arrangements reinstating the system of trial by court martial and DFM continue to operate satisfactorily.[35]

1.36      He noted that these will be replaced by the independent Chapter III civilian Military Court of Australia if the Military Court of Australia Bill 2012 and the Military Court of Australia Transitional Provisions and Consequential Amendments) Bill 2012 are enacted.[36]

Senator Alan Eggleston
Chair

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