Saturday, June 27, 2020

Did an ADF Defence Force Magistrate consider ex parte information, prejudge a case, and impose an excessive sentence?

There's been an interesting preliminary decision in Australia's Federal Court. At issue in Igoe v. Ryan, [2020] FCA 789 (June 5, 2020) (Collier J), was whether an order of a Defence Force Magistrate sentencing the accused to 35 days' confinement should be stayed pending plenary review. The opinion, which followed ex parte proceedings (there's an irony there, given one of the issues noted below), recites (paragraph numbering omitted, highlighting added):
These offences related to the alleged capturing of visual data by the applicant on a mobile phone using the application Snapchat, while the applicant was at the Australian Defence Force Academy (ADFA). In particular, the offences concerned the conveyance of moving images depicting a 10 second continuous loop of sexual intercourse and intimacy between three people (one of whom was the applicant). 
The applicant pleaded guilty to the relevant charges before the DFM, who heard submissions from both the prosecution and the defence. 
Because of COVID-19 restrictions, sentencing proceedings in this matter were conducted through video link. During those proceedings the applicant and his defending officer were at RAAF Base Amberley in Queensland, and the DFM and the prosecutor were in the Court Martial Facility at Fyshwick in the Australian Capital Territory. 
During the course of the hearing, an issue arose whether the proceedings were comparable with those originally described in R v McDonald and DeBlaquiere [2013] ACTSC 122. In that case two ADFA cadets were prosecuted in respect of illicit filming and broadcasting, via a Skype connection, to the computer of one of the defendants, of moving images referable to sexual intercourse. The cadets in that case were charged with offences relating to acts of indecency (contrary to s 60 of the Crimes Act 1900 (ACT)) and using a carriage service in a manner which was offensive (contrary to s 474.17(1) of the Criminal Code 1995 (Cth)). The cadets were dismissed from the ADF. Relevantly to the present application, the Supreme Court of the Australian Capital Territory imposed a sentence that saw no conviction recorded and 12 month good behaviour bonds imposed on each defendant: R v DeBlaquiere and McDonald SCC 346 of 2011; SCC 405 of 2011 (23 October 2013)
The applicant submitted during the disciplinary proceedings before the DFM that the offending in the McDonald and DeBlaquiere case was of greater seriousness than those involving him, in that the McDonald and DeBlaquiere case involved the premeditated concealment of a video camera. 
The learned DFM obtained a copy of the transcript of the McDonald and DeBlaquiere case, but did not make the transcript available to the applicant or his defending officer.
The proceedings before the DFM were adjourned at one point, and resumed one and a half hours later, during which period of time the DFM had caused to be placed on the defending officer’s table an envelope containing a Finding Sheet, and a Warrant requiring the applicant to be delivered into the custody of the warrant officer and identifying his imprisonment for a period of 35 days following his termination from the Australian Defence Force (ADF). An inference could therefore be drawn that the imposition of custodial punishment and the termination of the applicant from the ADF were determined prior to the completion of submissions. 
The DFM said that he viewed the applicant’s offending as more serious than that described in the McDonald and DeBlaquiere case, because the earlier case involved Skype (and thus was not recorded), whereas the applicant’s conduct involved use of Snapchat (and thus an “indelible record” of the event was created). The applicant contended that the DFM erred in finding that an indelible record of the relevant conduct was kept by Snapchat, and that the DFM acknowledged this error but declined to amend his reasoning notwithstanding this acknowledgment. 
The DFM concluded that the applicant should be dismissed from the ADF and sentenced to a “relatively short period of imprisonment”, namely 35 days for each charge, to be served concurrently. 

The applicant sought a stay by the Reviewing Authority of the execution of punishment, and a stay was granted by the Reviewing Authority on 20 April 2020. 
On 27 May 2020, the third respondent informed the applicant that his Petition for review of punishment had been unsuccessful, and ordered that the applicant be taken into custody at an Australian Defence Force detention centre, and his imprisonment for a term of 35 days at the Silverwater Correctional Complex in New South Wales take effect from 9 June 2020. 
The applicant further submitted that, in dismissing the Petition for review, the third respondent had failed to have regard to s 70(1)(a) of the Defence Force Discipline Act, which relevantly provides that: 
(1) A service tribunal, in determining what action under this Part should be taken in relation to a convicted person, shall have regard to: 
(a) the principles of sentencing applied by the civil courts, from time to time; and
I am satisfied for present purposes that, at the relevant time, the third respondent was exercising his powers as a Defence Force Magistrate. I am also satisfied for present purposes that both the DFM and the third respondent were “service tribunals” for the purposes of s 70(1)(a): s 3(1) of Defence Force Discipline Act. I further note s 17A of the Crimes Act 1914 (Cth) which relevantly provides: 
(1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory, that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

As Gleeson CJ and Crennan J explained in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [19], an applicant seeking interlocutory injunctive relief must demonstrate that: 
there is a serious question to be tried as to the applicant’s entitlement to relief; 
the applicant is likely to suffer injury for which damages will not be an adequate remedy; and
the balance of convenience favours the granting of an interlocutory injunction.
In the present case the interlocutory application is, for all intents and purposes, ex parte, because the respondents have not been served with formal court documentation. However as Isaacs J pointed out in Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 at 681-682: 
"There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence. But instances occur where justice could not be done unless the subject matter of the suit were preserved, and, if that is in danger of destruction by one party, or if irremediable or serious damage be imminent, the other may come to the Court, and ask for its interposition even in the absence of his opponent, on the ground that delay would involve greater injustice than instant action. But, when he does so, and the Court is asked to disregard the usual requirement of hearing the other side, the party moving incurs a most serious responsibility."
On balance, I am persuaded that, notwithstanding the absence of service of court process on the respondents in this case to date, it is appropriate to apply the principles explained in O’Neill, and further that the application of those principles warrants orders in the applicant’s favour. I take this view for the following reasons. 
First, I am satisfied there is a serious question to be tried in respect of the question whether relevant decisions of the respondents leading to their existing orders are affected by jurisdictional error for the purposes of s 39B of the Judiciary Act 1903 (Cth). In particular, there are serious questions to be tried as to: 
Issues of procedural fairness relating to the conduct of the hearing by the DFM, including whether the DFM had reached a decision prior to hearing all submissions, and in relation to the failure of the DFM to provide a copy of the transcript in the McDonald and DeBlaquiere case to the applicant’s defending officer; 
Whether either or both of the first and third respondents failed to apply proper sentencing principles in the circumstances of the case; 
Whether the DFM correctly understood the features of the application Snapchat including whether it created an indelible record, such that (contrary to his finding) the case before him was similar to the McDonald and DeBlaquiere case; and 
Whether the DFM correctly applied the precedent of McDonald and DeBlaquiere case in respect of premeditated conduct. 
Second, I am satisfied that the prospect of the applicant being imprisoned for 35 days in Silverwater Correctional Complex poses an injury to him for which damages would not be an adequate remedy. I also consider this prospect to be “damage” within the meaning contemplated by Isaacs J in Bullock such as to warrant ex parte orders. 
Third, in light of the very serious consequences to the applicant of the implementation of the existing orders of the respondents, I am satisfied that the balance of convenience favours the grant of an interlocutory injunction. 

It is appropriate to order, until further order, an injunction restraining the implementation of orders of the respondents requiring the applicant to undergo a period of imprisonment for 35 days. . . .
Watch for further proceedings . . . unless the respondents throw in the towel.

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