Thursday, April 21, 2016

Where should this case be tried?

Here's an interesting choice of forum from Australia: an active duty soldier is being prosecuted in the local civilian court for robbing a bank located on a Royal Australian Air Force base near Sydney in 2014. Details here. Perhaps some reader in Australia can shed led on the jurisdictional issue: was there some reason the case could not be tried in a court-martial? If there was a choice of forums, who resolved it and according to what standards?

1 comment:

  1. Although I am not Australian, I have studied their system for comparative law purpose. But our Australian colleagues are free to correct me if I am wrong.

    My understanding is that where there is a civilian equivalent to a military offence, the consent of the Director of Public Prosecutor is needed before exercising military jurisdiction (Defence Force Discipline Act 1982 (Cth), no 152, section 63). In other words, during peacetime in Australia, when there is an overlap between civilian and military jurisdictions, proceedings under the "Defence Force Discipline Act 1982" can be initiated only when they substantially relate to military discipline (akin to military nexus test). Otherwise civilian authorities would prosecute. (see Kelly Buchanan, "Australia" in United States,"Military Justice Adjudications of Sexual Offences" (Washington, DC: The Law Library of Congress, 2013) at 6-7.

    As for the process, it seems there is a MOU between civilian Director of Public Prosecutions and Director of Military Prosecutions but I am not aware of the details.

    Here Ms Stahl was arrested by Windsor Police (New South Wales) and charged - presumably by civilian authorities - for armed robbery, possessing an unauthorised pistol and possessing a prohibited drug, all ordinary criminal offences. We can infer DPP did not want to let it go. The fact that Ms Stahl had remained at large for 2 years might explain why. On the picture with the detectives she is still wearing a uniform but they refer to her as 'Ms Stalh'. They indicate also that although investigation was transferred from military to civilian police at some point. Maybe the ADF have proceeded to her administrative release already and maybe there is even a time limitation to DFDA 1982 after someone is released.


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