We've had several posts concerning the "rubber chicken" case in Australia, most recently
here, from last December. There was another decision on March 27, 2017, about which Greg Hogan has just commented. Since comments on older posts tend to be buried, we are cross referencing it. You can find
Angre v. Chief of Navy (No. 3) [2017] AFDAT 2
here. appeal. The tribunal's conclusion:
It was not in dispute that, in the event that the appeal were to succeed, the proper order was one pursuant to DFDAA s 24 for a new trial. Whether, having regard to the outcome of the trial that proceeded against two of the co-accused, the surviving plea of guilty in respect of Charge 6, and the protracted proceedings in which Able Seaman Angre has been entwined since 2014—including the original Court Martial, the proceedings before the Chief Judge Advocate (which occupied 11 days), the interlocutory applications to this Tribunal, the Chief of Navy’s appeal to the Full Federal Court, and ultimately the hearing of this appeal (over four days)—his involvement as an Able Seaman five years ago in the events of the so-called “Last Night at Sea” ceremony in 2011 is such as to justify his being put on trial again, is a matter for the discretion of the DMP.
Global Military Justice Reform is not an online betting site, so no odds are offered as to whether the DMP will try again. Still, it seems a case of diminishing returns.
Australia's Defence Force Discipline Appeal Tribunal (DFDAT) in two recent decisions has highlighted some of the considerations which guide the exercise of the discretion for a new trial.
ReplyDeleteThe DFDAT referred to the considerations summarised by McClellan CJ at Common Law (who cited the authorities) in Gilham v The Queen (2012) 224 A Crim R 22; [2012] NSWCCA 131 at [649].
The various factors for consideration, include:
the public interest;
the seriousness of the allegation;
the strength of the prosecution case;
the length of time between the alleged offence and the new trial;
whether a new trial would impermissibly give the prosecution an opportunity to "patch up" its case;
the interests of the individual accused; and
the expense and length of a further trial.
The two recent decisions published by the DFDAT are as follows:
Douglas v Chief of Army [2017] ADFDAT 5, where the DFDAT found there exists cogent evidence which, if accepted, would support convictions. The charges are serious. No “patching up” of a deficient case on the evidence would be involved. The witnesses’ memories of events are unlikely to have faded and can be refreshed by reference to previous statements made by them.
The second decision is McKenna v Chief of Navy [2017] ADFDAT 1, where the DFDAT having weighed the competing considerations concluded that a new trial should not be ordered. It was mindful of the long period which had elapsed since the offence had allegedly been committed. It gave considerable weight to the advice that the prosecutor did not, despite any order which might be made by the Tribunal, propose to prosecute a new trial.
Both decisions can be viewed at http://www.defenceappeals.gov.au/tribunal-decisions