Wednesday, January 3, 2018

"A rose by any other name" -- civilian vs military assault and Australian constitutional law

Shortly before the Christmas break, Tracey J of the Federal Court of Australia gave his written reasons in Director of Military Prosecutions v Henderson [2017] FCA 1608This decision may be of interest to readers of this blog - certainly in Australia but also elsewhere.

This was an application for judicial review of a decision made by a Defence Force Magistrate (DFM), Group Captain Ian Henderson. It is notable for the fact (among others) that the application for judicial review was brought by the Director of Military Prosecutions (DMP), which I do not perceive to be all that common an occurrence. I begin my comments by noting that Group Captain Henderson is an old friend of mine, so readers can take that into account if they wish! The DMP applied to the Federal Court against the DFM's decision not to allow a plea bargain to take effect under which the accused, Sergeant Jonathan Mark Uren, would plead guilty to lesser charges of common assault under the law of the Jervis Bay Territory, and the DMP would accept those pleas and not offer evidence on the more serious offences alleged. Offences under the law of the Jervis Bay Territory ("Territory offences") are used under Australian military law to import civilian law into the military code. This avoids the necessity to repeat the panoply of ordinary offences in the Defence Force Discipline Act 1982 (DFDA) -- they are imported by reference under section 61 of the DFDA.

In an earlier case, Hoffman v Chief of Army (2004) 137 FCR 520; [2004] FCAFC 148, a full Court of the Federal Court held that it was not constitutional for a Territory offence to be preferred where a "garden variety" military offence under the DFDA itself could be alleged. This is a reflection of the limited jurisdiction ratione materiae which is permitted to Australian military law under the Australian Constitution (as interpreted in a long line of cases) in cases which have a mixture of civilian as well as military elements -- as in Sergeant Uren's case. In Sergeant Uren's case, the DMP preferred the Territory offence of common assault as alternative charges. The DFM held that that was not permissible under the rule in Hoffman's case, because the DMP could and therefore should have preferred offences of assault contrary to section 33(a) of the DFDA. The DFM ruled that, because of this, he had no jurisdiction in respect of the alternative charges relied on as part of the plea bargain and he referred those back to the DMP under the relevant procedural law.

Tracey J decided the application on the basis that, in this case, the Territory offence of common assault was not the same as the DFDA offence of assault (hence my Shakespearean reference), because the DFDA offence only applied in a service environment (my shorthand) or a "public place". Two of the alternative charges related to bottom grabbing in private hotel rooms which Tracey J held not to be public places - hence the more general Territory offence of common assault was justified and thus the DFM did have jurisdiction over those charges.

Happy holidays . . . I'm off to the beach again.

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