Sunday, June 7, 2015

Australian Navy 'rubber chicken' bounces

HMAS Newcastle
A former naval technician, court martialed (sic) after a fellow sailor was allegedly raped with a rubber chicken, has had his conviction quashed, and another alleged participant is seeking to withdraw his guilty plea amid allegations of evidence manipulation by defence investigators.
Late last year, [the two accused] pleaded guilty to charges of forcible confinement, committing an act of indecency and assault occasioning actual bodily harm over an incident on board the guided missile frigate HMAS Newcastle in August 2011.
It appears the first Sailor had negotiated a pretrial agreement which the government couldn't honor (sic).
In his written application, which has been widely circulated in defence legal circles, Able Seaman [] said investigators were "allegedly involved in the manufacture and manipulation of evidence during the investigation of the allegations which they provided to the prosecution to adduce at the trial".  He also asserted he was under pressure from his defence lawyer to plead guilty, and that the Judge Advocate did not ensure he fully understood the implications of the plea.
No dissonance today.  In the U.S. we occasionally have guilty pleas set aside because of some fundamental issue to do with the pretrial agreement.  Some years ago we had a case where a term of the agreement required the accused to go to Naval Consolidated Brig Miramar, CA, to serve confinement.  (Miramar is the premier military confinement facility in regard to sex offender treatment programs.). Unfortunately, the powers that be wouldn't or couldn't accommodate him.  See United States v. Smead, 60 M.J. 755 (N-M Ct. Crim. App. 2004).  And to see just how complex cases can get see United States v. Smead, 68 M.J. 44 (C.A.A.F. 2009), otherwise known as Smead III.  New trials after a guilty plea are quite hard to get, unless the issue relates to the providence of the plea or some underlying problem with the legality of the charges.

Postscript: Interested readers can now download the ADFDAT decision in the Thompson matter from the Australasian Legal Information Institute (, a joint facility of UTS and UNSW Faculties of Law. The case is Thompson v Chief of Navy [2015] ADFDAT 1 (22 May 2015). H/T to Anonymous for the link.--Ed.

1 comment:

  1. Definitely an interesting case. According to the Sydney Morning Herald:

    Able Seaman [Rohan Martin] Angre and Mr [ex-naval technician Michael Daniel] Thompson pleaded guilty in exchange for an agreement by the prosecution to drop the rape charges, not to seek a sentence of imprisonment, and for the matter to be dealt with by a Defence Force magistrate rather than a general court martial.

    This would have dramatically reduced the likelihood of either man going to jail.

    But the prosecution and the defence did not realise that, under the Defence Force Discipline Act, a new court martial had to be convened after a conviction was recorded.

    Mr Thompson, who now has a new lawyer, appealed against his conviction to the Defence Force Discipline Appeal Tribunal, which found that the errors amounted to a "substantial miscarriage of justice" and ordered a retrial.

    "I would not have changed my plea to guilty and endorsed the agreed statement of facts had I not been wrongly advised about being sentenced by a Defence Force magistrate," Mr Thompson said on Sunday.

    "I was enticed into taking that deal with them, when the prosecution should have known that they couldn't live up to their end of the bargain."

    Able Seaman Angre, who also has a new lawyer, was seeking to withdraw his guilty plea to the charges.

    He was claiming not only to have suffered the same miscarriage of justice as Mr Thompson, but that he was a victim of alleged impropriety by investigators from the Australian Defence Force Investigation Service.

    The decision in Thompson is not yet on the DFDAT website. The most recent decision posted there is from 2013. Readers in Australia are encouraged to comment on context and implications. (Real names only, please.)


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