Saturday, December 23, 2017

No public kissing and hugging on shore leave

HMAS Anzac (FFH 150)
For an Australian case that may have escaped your attention, consider Komljenovic v Chief of Navy [2017] ADFDAT 4. The Defence Force Discipline Appeal Tribunal addressed two issues: the appearance of judicial bias and whether the accused's conduct was likely to prejudice service discipline. It is hard not to be interested in an appellate judgment that begins as follows:
1    It is a matter of history that, in May 1941, British, Australian, New Zealand and Greek troops were heavily engaged in a desperate but ultimately unsuccessful defence of the Greek island of Crete from a German airborne and seaborne invasion (Australian War Memorial War History, Crete, Kreta: the battles of May 1941: accessed, 28 April 2017). The vital ground for the defence of the island comprised the airfields and ports along the north coast of the island. The ports were at Souda (then more commonly spelled, “Suda”) Bay and at the city of Chania. Ships of the Royal Navy and of the Royal Australian Navy (“the RAN”) made valiant efforts to interdict the seaborne elements of the invasion force and, once it became apparent that the invasion force had reached overwhelming strength, to evacuate the defenders. For their service in the waters around Crete in the Mediterranean Sea between 20 May and 1 June 1941 HMA Ships Perth, Napier, Nizam, Stuart, Voyager, Vampire, Vendetta and Waterhen received the Battle Honour, “Crete” (RAN website: accessed, 28 April 2017). 
2    Some 74 years later, another Australian warship, HMAS ANZAC, came to Chania. The port city and Souda Bay, as with the rest of Crete, had long since reverted to peace and tranquillity. The ship was en route to the Gallipoli Peninsula, Turkey, where she and her crew were to undertake representational duties, in particular to participate in events related to the commemoration of the centenary of the Landing at ANZAC Cove on 25 April 1915. 
3    A recollection of this history is not irrelevant to the disposition of this appeal. For it serves as a reminder that a warship and her crew must sometimes undertake roles which have no equivalent in civilian life and which correspondingly demand related norms of conduct by that crew, which also differ from, and are more exacting than, those of civilian life. The very name, “warship” indicates this.
Among the court's observations on the merits of the charge:

45    Leading Seaman Komljenovic did not submit that it was beyond the constitutional legislative competence of the Parliament for the application of the DFDA [Defence Force Discipline Act] to be extended to the conduct charged. The ground is therefore not, in terms, one which raises the same question as that considered in Re Aird; Ex parte Alpert (2004) 220 CLR 308 (Alpert). Even so, the conduct charged having occurred on shore leave while the defence members charged were in civilian attire at a non-military venue, there may be some inherent tension with respect to a charge such as the present between a submission which concedes jurisdiction and yet denies that the conduct could be regarded as likely to prejudice the discipline of the Defence Force. That is because, on the assumption (cf Williams v Chief of Army [2016] ADFDAT 3) that it was accepted in Alpert that the mere status of the person charged as a defence member at the time when the alleged service offence was committed was insufficient foundation under s 51(vi) of the Constitution for legislative competence, a relevant “service connection” would be required. 
46    In the present case, the service connection is very much stronger than that which persuaded a bare majority in Alpert that the offence charged fell within the lawful application of the DFDA. In Alpert, the defence member was not just on leave and in civilian attire but in a different country, hundreds of kilometres away from where he was temporarily stationed abroad and had entered that different country on his civilian passport. In the present case, Lieutenant Commander Plenty and Leading Seaman Komljenovic were on short term shore leave as crew members from a warship in the course of an ongoing overseas deployment and temporarily moored in the same port as where the alleged offending conduct occurred. Consent does not confer jurisdiction. Insofar as it may be necessary for us to be satisfied on that subject, we are well satisfied that a service connection necessary to enliven the lawful application of the DFDA is present.
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55    We consider that we should add the following. Acts of physical intimacy and even socialising between persons of different rank in any disciplined force can be fraught with a potential likelihood of prejudice to the discipline of that force. However, as has long been understood in respect of the offence created by s 60(1) of the DFDA and earlier analogues, it is always necessary to judge the likelihood of prejudice to discipline objectively not just by reference to the conduct charged but also by reference to its surrounding circumstances. The outcome of such adjudication will, necessarily, be fact specific. It is essential that such outcomes not uncritically be elevated to a matter of principle to the detriment of an objective consideration of the facts of another case.

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