Tuesday, December 13, 2016

Fragmentation of military appeals resisted in Australia

Wellington barrister Chris Griggs, Global Military Justice Reform's globetrotting contributor from New Zealand, has kindly filed the following post:

Chief of Navy v Angre [2016] FCAFC 171 (9 December 2016) is an interesting recent decision of the Full Court of the Federal Court of Australia (the civilian appellate court to which appeals lie from the Defence Force Discipline Appeals Tribunal (DFDAT)).  In Angre, Australia’s Chief of Navy appealed against a decision of the DFDAT in which that Tribunal allowed the calling of evidence under what it found to be an implicit power in its empowering legislation, rather than an explicit power to permit fresh evidence (which it appears would not apply to the facts of the case at bar).  Senior counsel for the Chief of Navy argued in the Federal Court that there was no such implicit power.

The DFDAT had yet to determine the substantive appeal.

The Federal Court rejected the appeal (and an associated attempt to engage judicial review), relying on a longstanding principle of Australian law that a right of appeal may only be exercised in respect of the substantive judgment of the court below, not an interlocutory decision. The leading case on this, applied by the Federal Court in Angre, is Director-General of Social Services v Chaney [1980] FCA 108.  Senior counsel for the Chief of Navy attempted to distinguish Chaney unsuccessfully.

It is unknown to this author whether a similar approach would be taken in other jurisdictions.  The question would not arise in New Zealand, because interlocutory appeals are explicitly permitted by section 7 of the Court Martial Appeals Act 1953, which is consistent with the ordinary criminal law of appeals in Part 6 of the Criminal Procedure Act 2011.  It seems that military law on both sides of the Tasman is remaining in step with the ordinary of law of those countries – but the band is playing a different tune!

1 comment:

  1. This blog has covered the so-called ‘rubber chicken rape’ case since 2015, as follows:
    Cave, P. “Australian Navy 'rubber chicken' bounces, 7 June 2015
    Fidel, E. “Rubber chicken case bounces back into view”, 31 August 2016
    Griggs, C. “Fragmentation of military appeals resisted in Australia”, 13 December 2016
    The latest (and possibly last) chapter in the case has been written. The Australian Defence Force Discipline Appeal Tribunal determined the substantive appeal, as published on 27 March 2017, of Angre v Chief of Navy (No 3) [2017] ADFDAT 2.
    Angre’s appeal against his convictions on charges 1 and 2 was allowed, and the convictions quashed. The judgement is a masterclass for prosecutors and defending legal officers alike on how (not) to conduct a plea bargain. The Tribunal highlighted three points with respect to charges 1 and 2. Firstly, Angre never entertained a genuine consciousness of guilt. Secondly, the possibility indeed probability of referral to a Defence Force Magistrate for sentencing was a material element of his plea. Thirdly, that it could be referred to a DFM was a misrepresentation. A fundamental assumption on which the plea was based—one to which the prosecution had materially contributed—was false. So a benefit held out to Angre in return for his plea was illusory. His plea therefore was not freely made. [His appeal however against the conviction on charge 6 was dismissed. The argument that alleged “prosecutorial misconduct” influenced his early guilty plea to charge 6 was rejected].

    The Tribunal notably recapped the charge sheet from 2014 against Angre and his three co-accused sailors. The eight charges were, as follows:
    Forcible confinement (Charge 1) (against all four accused);
    Engaging in an act of indecency without consent (Charge 2) (against all four accused);
    Engaging in sexual intercourse without consent (Charge 3) (against all four accused);
    Assault in a service ship (Charge 4) (against one co-accused);
    Aiding and abetting, counselling or procuring an assault in a service ship (Charge 5) (against Angre, and two co-accused);
    Assault occasioning actual bodily harm (Charge 6) (against Angre);
    Being knowingly concerned in an assault occasioning actual bodily harm (Charge 7) (against two co-accused); and
    Prejudicial conduct (Charge 8) (against one co-accused).

    It is worth noting that from the beginning of the Australian Defence Force Investigation Service’s investigation in November 2013 until the end of the General Court Martial (GCM) in October 2014, two of Angre’s co-accused always pleaded their innocence to all charges. They were fully vindicated. The GCM’s Panel of seven active service Navy officers exonerated these two sailors on all charges. In June 2015, the 3rd co-accused, who took the ‘guilty plea bargain’ with the Director of Military Prosecutions (DMP), had his conviction (on charges 1, 2 and 7) quashed on appeal to the Tribunal. The 3rd co-accused has not been retried.

    The Tribunal’s final paragraph in its judgement contains a salutary message. The Tribunal noted the lengthy passage of time: Beginning with Angre’s admitted pouring of a ‘kitchen sauce brew’ on the complainant (aka charge 6) in August 2011 and the alleged involvement of his co-accused in the so-called “Last Night at Sea” ritual aboard HMAS Newcastle. Jump to the protracted proceedings in which Angre has been entwined since 2014—the original General Court Martial (GCM), the second court martial before the Chief Judge Advocate, the interlocutory applications to the Tribunal, the Chief of Navy’s unsuccessful appeal to the Full Bench of five judges of the Federal Court of Australia, and ultimately this last appeal. Can it be justified that Angre (and the 3rd co-accused) be re-tried? The answer lies with the DMP, in what is already “the longest running (and possibly most costly) Court Martial in Australian history”.
    The Tribunal’s judgement is accessible at either http://www.defenceappeals.gov.au/tribunal-decisions or at http://www.austlii.edu.au/au/cases/cth/ADFDAT/2017/2.html


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