AUSTRALIAN DEFENCE FORCE PUBLICATION

ADMINISTRATION SERIES ADFP 201 DISCIPLINE LAW MANUAL VOLUME 1

Commonwealth of Australia 2001

This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Department of Defence. Annoncement statement may be announced to the public. Secondary release may be released to the Australian Defence Organisation. All Defence information, whether classified or not, is protected from unauthorised disclosure under the Crimes Act 1914. Defence information may only be released in accordance with the Defence Protective Security Manual (SECMAN 4) and/or Defence Instruction (General) OPS 134Release of Classified Defence Information to Other Countries, as appropriate. Requests and inquiries should be addressed to Director CP3-1-102, Department of Defence, CANBERRA ACT 2600. Defence Publishing Service,

JSP(AS) 201 First Edition 1985 ADFP 201 Second Edition 2001

Sponsor: Director-General Defence Legal Office

Developer: Director Discipline Law Defence Legal Office

Publisher: Defence Publishing Service Department of Defence CANBERRA ACT 2600

ADFP 201 VOLUME 1 iii

AUSTRALIAN DEFENCE FORCE PUBLICATION ADMINISTRATION SERIES DISCIPLINE LAW MANUAL

Australian Defence Force Publication 201 (ADFP 201) Discipline Law Manual , is issued for use by the Australian Defence Force and is effective forthwith. This publication supersedes JSP(AS) 201 Volume 1 (including ALs 1 to 10), all copies of which should be destroyed in accordance with current security instructions.

C.A. BARRIE Admiral, RAN Chief of the Defence Force Australian Defence Headquarters CANBERRA ACT 2600 April 2001

ADFP 201 VOLUME 1 iv

AMENDMENT CERTIFICATE
Proposals for amendment of ADFP 201 Discipline Law Manual are to be forwarded to:

Editor Defence Legal Office R8-1-017 Department of Defence CANBERRA ACT 2600

Amendment No Date

Effected Signature Date

Chapter 4 Chapter 5

24 Jan 02 24 Jan 02

as per Web site as per Web site

24 Jan 02 24 Jan 02

ADFP 201 VOLUME 1 v

CONTENTS
Page Authorisation Amendment Certificate iv Paragraph CHAPTER 1 INTRODUCTION ADF DISCIPLINE AND THE ROLE OF THE DEFENCE FORCE DISCIPLINE ACT HISTORICAL BACKGROUND OUTLINE OF THE DEFENCE FORCE DISCIPLINE ACT OBJECT OF THE DISCIPLINE LAW MANUAL Annex: A. Disciplinary Legislation In Effect In The Defence Force Before Implementation Of The Defence Force Discipline Act, 1982 CHAPTER 2 JURISDICTION GENERALLY OF SERVICE TRIBUNALS SERVICE TRIBUNALS SERVICE OFFENCES General Limitations as to Place where Offence Committed Limitations as to Time PERSONS WHO MAY COMMIT SERVICE OFFENCES Defence Members Members Attached to Other Forces or Organisations Members as Prisoners of War Members of Armed Forces of Other Countries Prisoners of War Members of Cadet Forces Defence Civilians PLACES WHERE A SERVICE TRIBUNAL MAY SIT OFFENCES THAT MAY ALSO BE TRIED BY CIVIL AUTHORITIES Notification Procedures for cases where military jurisdiction is exercised CHAPTER 3 INVESTIGATION OF SERVICE OFFENCES INTRODUCTION QUESTIONING OF PERSONS General Rule Person in Custody to be Given Caution before Questioning Person to be Charged or Summonsed to be Given Caution before Questioning Confessions Identification Parades Person Charged to be Cautioned Questioning of Person Charged with an Offence Persons Charged with Same Offence SUSPENSION FROM DUTY On Suspicion of Offence After Conviction 3.1 3.3 3.6 3.7 3.11 3.18 3.22 3.23 3.26 3.28 3.32 2.1 2.3 2.6 2.7 2.10 2.13 2.17 2.19 2.20 2.23 2.25 2.26 2.27 2.30 2.33 1.1 1.3 1.9 1.14

ADFP 201 VOLUME 1 vi Effecting Suspension from Duty Effect of Suspension fron Duty SUMMONS Introduction Summons Originating Proceedings Summons Requiring Further Attendance of Accused Person Summons or Arrest Following Non-attendance of Accused Person ARREST Introduction Arrest without Warrant Arrest under Warrant Effecting an Arrest PRE-CONVICTION CUSTODY General Person in Custody to be Cautioned and Informed of Rights Access to Friend, Relative and Legal Practitioner Exceptions to Access to Friend, Relative and Legal Practitioner Provisions Treatment of Person in Custody Fingerprints, Voice Recordings, Handwriting, Photographs Identification by Photographs Medical Examination Effect on Pre-conviction Custody SEARCHES Introduction Search of Private Premises, Vehciles, Etc Search with Consent Search on Being Taken into Custody Search in Emergency Search under Warrant CHAPTER 4 OFFENCES, CHARGES AND THEIR PROSECUTION PROSECUTION OF OFFENCES OFFENCES GENERALLY Statutory Alternative Offences CHARGING SERVICE OFFENCES General Vetting of Charges Limitations on Charging The Content of Charges Procedure for Charging Amendment of Charges Alternative Charges Charges Not Proceeded with at a Summary Hearing Charges in Trials by Court Martial or Defence Force Magistrate OFFENCES RELATING TO OPERATIONS AGAINST THE ENEMY Aiding Enemy Communication with the Enemy Leaving Post etc Endangering Morale Behaviour after Capture by the Enemy OFFENCES RELATING TO MUTINY, DESERTION AND UNAUTHORISED ABSENCES Mutiny 4.1 4.3 4.6 4.10 4.12 4.13 4.18 4.22 4.27 4.29 4.30 4.32 3.33 3.34 3.39 3.40 3.43 3.45 3.51 3.52 3.57 3.64 3.71 3.80 3.83 3.89 3.93 3.97 3.103 3.108 3.117 3.118 3.120 3.121 3.122 3.125 3.131

4.34 4.35 4.36 4.37 4.38

4.39

ADFP 201 VOLUME 1 vii Failure to Suppress Mutiny Desertion Absence from Duty Absence without Leave OFFENCES RELATING TO INSUBORDINATION AND VIOLENCE Assault on a Superior Officer Insubordinate Behaviour with Respect to Superior Officer Disobedience of Command Failure to Comply with Direction of Person in Command Failure to Comply with General Order Assault on a Guard Obstruction of Police Member Person on Guard or on Watch Assault, Insulting or Provocative Words Assault on Inferior OFFENCES RELATING TO PERFORMANCE OF DUTY Negligent Performance of Duty Dangerous Behaviour Unauthorised or negligent discharge of weapon Drunkenness on Duty etc Malingering OFFENCES RELATING TO SHIPS, VEHICLES, AIRCRAFT, WEAPONS OR PROPERTY Loss of or Hazard to Service Ship Use of Vehicles etc Low Flying Inaccurate Certification in Relation to Ships etc. Destruction of or Damage to Service Property Loss of Service Property Unlawful Possession of Service Property Possession of Property Suspected of Having Been Unlawfully Obtained Stealing and Receiving Looting OFFENCES RELATING TO ARREST, CUSTODY AND PROCEEDINGS BEFORE SERVICE TRIBUNALS Resisting Arrest Delay or Denial of Justice Escape from Custody False Evidence Contempt etc of Service Tribunal Unlawful Release, etc, of person in custody Custodial Offences MISCELLANEOUS OFFENCES Falsification of Service Documents False Statement in relation to application for benefit False statement in relation to appointment or enlistment Unauthorised disclosure of information Dealing in or possessing narcotic goods Prejudicial Behaviour OTHER OFFENCES Territory Offences Commanding or Ordering Commission of Service Offence Refusing to submit to medical examination etc Offence in relation to radar devices Ancillary Offences Aiders and Abettors 4.40 4.41 4.42 4.43

4.44 4.45 4.46 4.47 4.48 4.49 4.50 4.51 4.52 4.53 4.54 4.55 4.56 4.57 4.58

4.59 4.60 4.61 4.62 4.63 4.64 4.65 4.66 4.67 4.68

4.69 4.70 4.71 4.72 4.73 4.74 4.75 4.76 4.77 4.78 4.79 4.80 4.81 4.82 4.83 4.84 4.85 4.86 4.87

ADFP 201 VOLUME 1 viii Annexes: A. Corresponding Ranks in the Australian Defence Force B. Ancillary Offences - Jurisdiction of Service Tribunals CHAPTER 5 CRIMINAL RESPONSIBILITY SECTION 1 INTRODUCTION NATURE OF PROCEEDINGS UNDER THE DEFENCE FORCE DISCIPLINE ACT The Common Law FUNDAMENTAL CONCEPTS OF CRIMINAL LAW Mens rea Motive Constituents of a Crime Onus of Proof ANALYSIS OF "MENS REA" Conscious or Voluntary Act Unconscious or Involuntary Act and Insanity Loss of Memory Accident/Duress Irresistible Impulse Intention to Commit the Act Proof of Intent Intent and Premeditation Ignorance of the Law OTHER PROBLEMS IN RELATION TO INTENT, RECKLESSNESS AND NEGLIGENCE Recklessness Negligence Death Caused by Negligence Death Caused by Negligent Omission Death Caused by Negligence (under the DFDA) Distinction Between Recklessness and Negligence SECTION 2 - EXEMPTIONS FROM LIABILITY MISTAKE AND ACCIDENT Mistake Under the DFDA Accident INFANCY INSANITY Insanity as a Defence Unfitness to Plead by Reason of Insanity Onus of Proof of Insanity The Legal Meaning of Insanity Irresistible Impulse Diminished Responsibility The Difference between Insanity and Diminished Responsibility Absence of Motive AUTOMATISM Automatism and Insanity Contrasted INTOXICATION Intoxication as a Constituent of an Offence Intoxication as a Defence Insanity Caused by Intoxication Intoxication as an Issue DURESS Present Law in Relation to Duress 5.57 5.61 5.64 5.67 5.70 5.71 5.75 5.76 5.79 5.81 5.84 5.87 5.88 5.91 5.92 5.95 5.97 5.98 5.99 5.100 5.101 5.1 5.4 5.5 5.7 5.8 5.9 5.14 5.16 5.17 5.21 5.23 5.24 5.25 5.26 5.29 5.30 5.32 5.33 5.34 5.40 5.47 5.48 5.52 5.53

ADFP 201 VOLUME 1 ix Constituents of Duress Brainwashing Onus of Proof SUPERIOR ORDERS NECESSITY Necessity in a Service Context SECTION 3 - DEFENCES TO CHARGES OF ASSAULT ETC: JUSTIFIABLE USE OF FORCE CONSENT JUSTIFIABLE USE OF FORCE Execution of a Legal Sentence Arrest and Search Use of Force in Prevention of Crime Lawful Correction SELF-DEFENCE Self-defence in Homicide Cases Self-defence in Offences Other than Homicide PROVOCATION Drunkenness and Provocation Onus and Standard of Proof of Provocation SECTION 4 - MISCELLANEOUS ASPECTS OF CRIMINAL RESPONSIBILITY STRICT LIABILITY Defence to Offences of Strict Liability VICARIOUS LIABILITY The Vicarious Liability of Servicemen AIDING AND ABETTING Acting in Concert Acts Done in Furtherance of a Common Purpose ANCILLARY OFFENCES ACCESSORY AFTER THE FACT ATTEMPTS INCITING TO OR URGING THE COMMISSION OF OFFENCES CONSPIRACY The Nature of Conspiracy Parties to Conspiracy Evidence in Conspiracy Trials CHAPTER 6 THE LAW OF EVIDENCE SECTION 1 - INTRODUCTION The Nature of Evidence Evidence before Service Tribunals Scope of Evidence SECTION 2 - PROVING AN OFFENCE What must be Proved Proof of Commission of the Offence Proof of Identity BURDEN OF PROOFBY WHICH SIDE MUST PROOF BE GIVEN The Legal Burden of Proof 6.1 6.4 6.11 6.12 6.17 6.18 5.136 5.138 5.140 5.143 5.145 5.153 5.155 5.160 5.161 5.166 5.176 5.179 5.180 5.185 5.186 5.116 5.118 5.120 5.121 5.122 5.123 5.125 5.130 5.131 5.132 5.134 5.135 5.102 5.103 5.105 5.106 5.110 5.115

6.21

ADFP 201 VOLUME 1 x Burden of Proof in Relation to Unsoundness of Mind and Diminished Responsibility and other Defences Justification, Excuse, Proof or Alibi STANDARD OF PROOF Proof Beyond Reasonable Doubt Proof on Balance of Probabilities Standard of Proof for Evidentiary Determinations WHO MAY GIVE EVIDENCE - COMPETENCE AND COMPELLABILITY OF WITNESSES General Psychological Incompetence (Children, Persons with an Intellectual Disability) Physical Incompetence (Persons with a Physical Disability) The Accused Associated Defendants (Accomplices, Co-Accused) The Accused's Spouse and Family Other Persons THE FORM IN WHICH EVIDENCE MAY BE GIVEN Direct Evidence Circumstantial Evidence Oral Evidence Documentary Evidence The ways in which documentary evidence may be adduced Real Evidence MATTERS ON WHICH EVIDENCE IS NOT REQUIRED Formal Admissions Fact agreements Judicial Notice Presumptions PRIVILEGE OF WITNESSES Privilege Against Self-incrimination or Self-Exposure to a Penalty Family Privilege Legal Professional Privilege Religious Confessions Physician and Patient Exclusion of Evidence in the Public Interest SECTION 3 - THE PRINCIPAL RULE CONCERNING THE ADMISSIBILITY OF EVIDENCE: THE RELEVANCE RULE The Relevance Rule Provisional Relevance SECTION 4 - THE HEARSAY RULE SECTION 5 - EXCEPTIONS TO THE HEARSAY RULE General EVIDENCE RELEVANT FOR A NON-HEARSAY PURPOSE ADMISSIONS What is an Admission? 'First-hand' Evidence of an Admission Vicarious Admissions Use of an Admission in Respect of the Case of a Co-accused Requirements to be Satisfied before Evidence of an Admission is Admissible Requirements under the DFDA Admissions Influenced by Violence etc Reliability of Admissions etc Two further rules: evidence in relation to questioning

6.25 6.28 6.30 6.32 6.35 6.38

6.42 6.44 6.49 6.50 6.52 6.53 6.57 6.59 6.60 6.61 6.65 6.66 6.71 6.76 6.80 6.84 6.88 6.91 6.99

6.106 6.112 6.113 6.120 6.124 6.125

6.133 6.140 6.143 6.159 6.163 6.169 6.170 6.173 6.174 6.178 6.179 6.180 6.181 6.183 6.186

ADFP 201 VOLUME 1 xi Unsigned records of interview Unfavourable Inferences from Silence during Questioning 'FIRST-HAND' HEARSAY REPRESENTATIONS General Evidence of a 'First-hand' Hearsay Representation where the Maker is not Available to give Evidence Evidence of a 'First-hand' Hearsay Representation when the Maker is Available to Give Evidence MORE REMOTE HEARSAY SECTION 6 - OPINION EVIDENCE General: The Opinion Rule EXCEPTIONS TO THE OPINION RULE Lay Opinion Opinion Based on Specialised Knowledge ('Expert Opinion Evidence') Evidence of Expert Opinion Evidence by Certificate Operation of the Exception for Expert Opinion Evidence in Cases of Intoxication Evidence Relevant Otherwise than as Opinion Evidence Opinion Evidence on a Matter of Common Knowledge Opinion Evidence on an Ultimate Issue in a Proceeding Opinion Evidence in Certain Official Documents SECTION 7 - CHARACTER EVIDENCE General EVIDENCE OF AN ACCUSED'S CHARACTER, REPUTATION OR PAST CONDUCT THAT IS RELEVANT TO A FACT IN ISSUE General Tendency Reasoning Coincidence Reasoning Character Evidence to Rebut Evidence of Good Character Adduced by an Accused EVIDENCE OF THE CHARACTER, REPUTATION OR PAST CONDUCT OF OTHER PERSONS (EG OTHER WITNESSES, THE VICTIM OF AN ALLEGED OFFENCE) THAT IS RELEVANT TO A FACT IN ISSUE General Evidence (Including Tendency Evidence) of Sexual Reputation of a Complainant in Sexual Assault Cases SECTION 8 - IDENTIFICATION EVIDENCE General Visual identification evidence adduced by the prosecution Picture Identification Evidence Adduced by the Prosecution SECTION 9 - IMPROPERLY OR ILLEGALLY OBTAINED EVIDENCE General Evidence Obtained Improperly or Unlawfully (Except in Contravention of a Provision of DFDA Part VI) Evidence obtained in contravention of a provision of DFDA Part VI SECTION 10 - DISCRETIONARY EXCLUSION OF EVIDENCE General General Discretion: Section 135 of the Evidence Act Discretion to Exclude Prosecution Evidence of an Admission: Section 90 of the Evidence Act 6.187 6.188 6.190 6.195 6.208 6.211 6.218 6.223 6.226 6.234 6.236 6.238 6.240 6.241 6.242 6.243

6.251 6.253 6.264 6.273

6.277 6.279 6.280 6.281 6.284

6.290 6.293 6.299 6.303 6.307 6.314

ADFP 201 VOLUME 1 xii Exclusion of Prejudicial Evidence Adduced by the Prosecution: Section 137 of the Evidence Act SECTION 11 - EXAMINATION OF WITNESSES Preliminary Matters Witness to be Sworn Order of Witnesses Reviving Memory EXAMINATION-IN-CHIEF Leading Questions Cross-examining One's Own Witness CROSS-EXAMINATION The Object of Cross-examination Leading Questions Improper Questions Other Statutory and Ethical Restraints upon Cross-examination Cross-examination as to Credit When an Accused may be Cross-examined on a Matter Relevant only to Credit Admissibility Rules Relating to Evidence that is Relevant only to Credit Evidence Adduced in Cross-examination of a Witness Evidence Adduced in Rebuttal S.106(a) - the Witness is 'Biased or has a Motive to be Untruthful' S.106(b) - Prior Convictions of the Witness S.106(c) - Prior Inconsistent Statements of the Witness S.106(d) - the Witness's Inability to be Aware of Matters to which his or her Evidence Relates S.106(e) - the Witness 'has Knowingly or Recklessly made a False Representation while under an Obligation Imposed by an Australian Law or a Law of a Foreign Country to tell the Truth' The Effect of Cross-examination as to Credit RE-EXAMINATION RE-OPENING A CASE AND EVIDENCE IN REBUTTAL SECTION 12 - CORROBORATION General: Abolition of Most Corroboration and Corroboration Warning Requirements Corroboration with Respect to Perjury or a Similar or Related Offence Functions of Judge Advocate and Members of a Court Martial Direction by Judge Advocate CHAPTER 7 SUMMARY PROCEEDINGS SECTION 1 - GENERAL INTRODUCTION DISTINCTION BETWEEN DEALING WITH AND TRYING A CHARGE SUBORDINATE SUMMARY AUTHORITIES Jurisdiction Appointment Revocation of Appointment Punishments Available to a Subordinate Summary Authority Deciding Whether to Try a Charge Directing that a Charge not be Proceeded With 7.1 7.3 7.4 7.8 7.9 7.10 7.12 7.13

6.317 6.318 6.319 6.320 6.322 6.331 6.333 6.336 6.339 6.345 6.350 6.352 6.355 6.359 6.370 6.372 6.374 6.375 6.376 6.377 6.378

6.379 6.380 6.381 6.384

6.388 6.391 6.394 6.395

ADFP 201 VOLUME 1 xiii Referring a Charge to a Commanding Officer or Another Subordinate Summary Authority COMMANDING OFFICERS Jurisdiction Appointment Revocation of Appointment Punishments Available to a Commanding Officer Deciding Whether to Try a Charge Directing that a Charge Not be Proceeded With Referring a Charge to Another Commanding Officer Referring a Charge to a Superior Summary Authority Referring a Charge to a Convening Authority SUPERIOR SUMMARY AUTHORITIES Jurisdiction Appointment Punishments Available to a Superior Summary Authority SECTION 2 - SUMMARY HEARINGS PRELIMINARY MATTERS Documents Furnished to the Accused THE ACCUSED'S DEFENCE Defending Officer Duties of a Defending Officer before a Summary Hearing Duties of a Defending Officer during a Summary Hearing THE PROSECUTION CASE The Requirement for a Prosecutor The Appointment of a Prosecutor Duties of a Prosecutor before a Summary Hearing Duties of a Prosecutor at a Summary Hearing CONDUCT OF SUMMARY PROCEEDINGS General Procedures Generally Hearings Other than Trials Officials at a Summary Hearing Public Access to a Summary Hearing Legal Officers as defending officers RECORDING OF SUMMARY PROCEEDINGS Prior Written Statements by Witnesses Method of Recording Evidence Certification of the Record of Proceedings The Form in Which Proceedings are to be Recorded Summary Proceedings Report (Form PD105) Record of Evidence (Form PD 104) Filing and Transmission of Documents Relating to Summary Proceedings Summary Punishment Statistics Reporting of Not Guilty Verdicts SECTION 3EXAMINING OFFICERS Functions and Powers of Examining Officers Purpose of Directing an Examining Officer to Hear Evidence When an Examining Officer should be Directed to Hear Evidence PROCEDURE AT A HEARING BY AN EXAMINING OFFICER Before the Hearing Administrative Arrangements at the Hearing Conduct of the Hearing Recording the Proceedings 7.42 7.44 7.45 7.48 7.49 7.50 7.51 7.54 7.56 7.57 7.61 7.62 7.63 7.64 7.65 7.66 7.67 7.69 7.71 7.72 7.73 7.74 7.75 7.76 7.77 7.78 7.79 7.80 7.83 7.84 7.86 7.87 7.88

7.14 7.16 7.17 7.18 7.19 7.27 7.32 7.33 7.34 7.35 7.37 7.38 7.39

ADFP 201 VOLUME 1 xiv After the hearing OFFICER CADETS General Jurisdiction of Subordinate Summary Authorities in Relation to Officer Cadets Punishment of Officer Cadets by Subordinate Summary Authorities Jurisdiction of Commanding Officers in Relation to Officer Cadets Punishment of Officer Cadets by Commanding Officers Powers of Other Service Tribunals in Relation to Officer Cadets Annexes: A. Procedure ALPHA - Hearing (Other than a Trial) Conducted by a Subordinate Summary Authority B. Procedure ALPHA - Hearing (Other than a Trial) Conducted by a Subordinate Summary Authority (Diagram) C. Procedure BRAVO - Trial Conducted by a Subordinate Summary Authority D. Procedure BRAVO - Trial Conducted by a Subordinate Summary Authority (Diagram) E. Procedure CHARLIE - Hearing (Other than a Trial) Conducted by a Commanding Officer F. Procedure CHARLIE - Hearing (Other than a Trial) Conducted by a Commanding Officer (Diagram) G. Procedure DELTA - Trial Conducted by a Commanding Officer H. Procedure DELTA - Trial Conducted by a Commanding Officer (Diagram) I. Procedure ECHO - Hearing (Other than a Trial) Conducted by a Superior Summary Authority J. Procedure ECHO - Hearing (Other than a Trial) Conducted by a Superior Summary Authority (Diagram) K. Procedure FOXTROT - Trial Conducted by a Superior Summary Authority L. Procedure FOXTROT - Trial Conducted by a Superior Summary Authority (Diagram) M. Summary Proceedings - Court Layout N. Procedure GOLF - Procedure Before an Examining Officer (Other than where a Person is Dangerously Ill) O. Notes on Summary Proceedings P. Rights of an Accused Person at Summary Proceedings Q. Notes on Bias R. Pre-Sentence Report (Form PD 108) S. Summary Proceedings Report (Form PD 105) T. Record of Evidence (Form PD 104) U. Notification and Election (for trial) V. Notification and Election (for punishment) W. Instructions on the Completion of Punishment Statistics Spreadsheets X. Punishment Statistics Spreadsheets CHAPTER 8 COURTS MARTIALBEFORE THE TRIAL SECTION 1 - GENERAL Introduction Types of Court Martial Jurisdiction of Court Martial Power of Punishment Held by Courts Martial Conduct of Courts Martial 8.1 8.2 8.3 8.4 8.6 7.89 7.90 7.91 7.92 7.95 7.96 7.98

ADFP 201 VOLUME 1 xv SECTION 2 - CONVENING A COURT MARTIAL CONVENING AUTHORITIES Appointment of Convening Authorities Power of a Convening Authority to Convene a Court Martial COURSES OPEN TO A CONVENING AUTHORITY General Where a New Trial has been Ordered Where Accused has Elected to be Tried by Court Martial or Defence Force Magistrate Where an Accused has Elected to be Punished by a Court Martial or Defence Force Magistrate Directing that a Charge be not Proceeded With Referring a Charge to a Summary Authority Referring a Charge to a Defence Force Magistrate Deciding Whether to Convene a Restricted or General Court Martial CONVENING A COURT MARTIAL Eligibility to be a Member of a Court Martial Eligibility to be a Judge Advocate Convening Order Other Documentation to be Provided by a Convening Authority Notification of Accused Person's Rights Court Martial Administrative Order Attendance of Witnesses Public Access to Courts Martial PRELIMINARY HEARINGS General Notification of Applications or Objections Applications or Objections which may be Heard at a Preliminary Hearing Who Should Attend a Preliminary Hearing Procedure at a Preliminary Hearing THE PROSECUTION CASE Nomination of a Prosecutor Documents to be Supplied to a Prosecutor Duties of a Prosecutor on Receipt of Documents from a Convening Authority Disqualification of the Prosecutor Preparing the Prosecution Case Keeping the Accused Informed of the Case Against Him Pre-trial Conferences with Witnesses Obtaining Additional Evidence Documentary and Other Evidence SECTION 3 - THE ACCUSED'S DEFENCE Legal Representation DUTIES OF A DEFENDING OFFICER General Pre-trial Duties of a Defending Officer Interview with the Accused Applications and Objections before Trial Deciding the Plea Evidence for the Defence Giving of Evidence by the AccusedImplications Other Defence Witnesses Character Witnesses Alibi Evidence Defence Opening Address Plea in Mitigation 8.7 8.8 8.10 8.11 8.12 8.14 8.15 8.16 8.18 8.22 8.24 8.25 8.26 8.29 8.30 8.31 8.34 8.35 8.37 8.38 8.40 8.43 8.44 8.45 8.46 8.47 8.49 8.51 8.52 8.53 8.54 8.55 8.57 8.58 8.59 8.60 8.61 8.62 8.63 8.64 8.66 8.68 8.70 8.71 8.72

ADFP 201 VOLUME 1 xvi Pre-sentence Report SECTION 4 - DUTIES OF OTHER OFFICIALS CLERK OF THE COURT Introduction Duties in Relation to Documents Ordering or Summonsing of Persons to Attend Other Duties of the Clerk THE ESCORT CHAPTER 9 COURTS MARTIALAT THE TRIAL General GENERAL DUTIES OF A COURT MARTIAL IN RELATION TO EVIDENCE Issues of Fact Issues of Fact to be Decided on the Evidence The Demeanour and Credibility of Witnesses Inferences to be Drawn when Accused Does Not Give Evidence Circumstantial and Direct Evidence Onus and Standard of Proof FUNCTIONS OF THE PRESIDENT, MEMBERS AND JUDGE ADVOCATE AT A COURT MARTIAL General FUNCTIONS OF THE PRESIDENT General Orders or Summonses to an Accused Person Orders or Summonses to Witnesses Public Hearings Oath or Affirmation by Witnesses Recorders and Interpreters Removal of an Accused Person from the Court FUNCTIONS OF THE COURT General Determination of Questions Amendment of Charge Sheet Withdrawal of Charge Adjournments Powers in Relation to Pleading Powers in Relation to Witnesses Powers in Relation to Evidence Manner of Voting of Court Martial FUNCTIONS OF THE JUDGE ADVOCATE General Replacement of Member of the Court Swearing or Affirming of the Court Objections to Recorders or Interpreters Substitution of Plea Questioning of Witnesses Summing up Record of Proceedings Evidence of Alibi Exclusion of Evidence Illegally Obtained No Case Submission FUNCTIONS OF THE PROSECUTOR Appointment Prosecution Opening Address - Plea of Not Guilty 8.76 8.78 8.79 8.80 8.82 8.75

9.1

9.5 9.6 9.7 9.10 9.11 9.12

9.13 9.15 9.17 9.18 9.19 9.20 9.21 9.22 9.23 9.24 9.25 9.26 9.27 9.28 9.29 9.30 9.32 9.33 9.38 9.41 9.42 9.43 9.44 9.45 9.46 9.47 9.48 9.49 9.50 9.53

ADFP 201 VOLUME 1 xvii Outline of Material facts by Prosecution after Conviction on Guilty Plea General Responsibility in the Presentation of the Prosecution Case Responsibility of the Prosecutor in the Sentencing Process FUNCTIONS OF OTHER OFFICIALS AT A COURT MARTIAL Functions of the Clerk Functions of the Orderly Functions of the Escort FUNCTIONS OF THE RECORDER Requirement to Keep a Record Method of Recording Preparing a Transcript Annexes: A. Order of Procedure at a Trial by Court Martial (Diagram) B. Order of Procedure at a Trial by Court Martial C. Courts Martial - Recording the Proceedings D. Court Layout E. National Guidelines Governing the Use of Interpreters in the Australian Legal System CHAPTER 10 DEFENCE FORCE MAGISTRATES Appointment of Defence Force Magistrates Jurisdiction and Powers of a Defence Force Magistrate Engaging the Jurisdiction and Powers of a Defence Force Magistrate Referring a Charge to a Defence Force Magistrate Administrative Order for Hearing by Defence Force Magistrate Participants at a Hearing Before a Defence Force Magistrate Functions of a Defence Force Magistrate at a Hearing Procedure at a Trial by a Defence Force Magistrate Public Access to a Hearing by a Defence Force Magistrate Annexes: A. Order of Procedure at a Trial by a Defence Force Magistrate B. Order of Procedure at a Trial for Sentence by a Defence Force Magistrate CHAPTER 11 PUNISHMENTS AND ORDERS SECTION 1INTRODUCTION SECTION 2PUNISHMENTS GENERALLY SENTENCING PRINCIPLES General Principles of Sentencing Applied by Civil Courts The Need to Maintain Discipline in the Defence Force SCALE OF PUNISHMENTS LIMITATIONS ON PUNISHMENTS COMMENCEMENT OF PUNISHMENTS SECTION 3NOTES ON PUNISHMENTS IMPRISONMENT General Life Imprisonment Imprisonment for a Specific Period Miscellaneous Aspects of Punishment of Imprisonment 11.13 11.14 11.16 11.18 11.2 11.3 11.4 11.5 11.7 11.11 11.1

9.55 9.56 9.59 9.65 9.66 9.69 9.71 9.72 9.74

10.1 10.2 10.3 10.4 10.6 10.7 10.8 10.9 10.10

ADFP 201 VOLUME 1 xviii DISMISSAL FROM THE DEFENCE FORCE DETENTION General Periods of Detention Suspension of Detention Revocation/Remission of Suspended Detention Forfeiture of Salary and Allowances in Detention REDUCTION IN RANK General Reduction in Rank of Officers Reduction in Rank of Members Other than Officers FORFEITURE OF SERVICE FOR THE PURPOSES OF PROMOTION FORFEITURE OF SENIORITY FINES General Suspension and Remission of Fines Advantages and Limitations Recovery of Fines etc SEVERE REPRIMAND/REPRIMAND RESTRICTION OF PRIVILEGES, STOPPAGE OF LEAVE, EXTRA DUTIES AND EXTRA DRILL (MINOR PUNISHMENTS) General Restriction of Privileges Stoppage of Leave Extra Duties Extra Drill Miscellaneous Aspects of Minor Punishments PUNISHMENT OF DETAINEES Custodial Punishments Offences which Attract Custodial Punishments Miscellaneous ACTION, OTHER THAN PUNISHMENT, UNDER PART IV OF THE DFDA CONVICTION WITHOUT PUNISHMENT General Matters to be Considered First Offenders Breach of Undertaking to be of Good Behaviour RESTITUTION AND REPARATION ORDERS Restitution Circumstances in which Restitution Orders may be Made Reparations Maximum Amounts Payable by Way of Reparation Execution and Enforcement of Restitution and Reparation Orders CHAPTER 12 REVIEWS AND APPEALS SECTION 1 REVIEWS GENERAL REVIEWING AUTHORITIES 12.1 12.4 11.60 11.61 11.62 11.63 11.66 11.67 11.68 11.71 11.72 11.19 11.22 11.26 11.27 11.28 11.29 11.30 11.32 11.34 11.36 11.38 11.40 11.42 11.43 11.44 11.45

11.46 11.47 11.48 11.49 11.50 11.51 11.53 11.55 11.58

ADFP 201 VOLUME 1 xix AVENUES OF REVIEW Preliminary Automatic Review by Commanding Officer Automatic Review by Reviewing Authority Review on Petition to a Reviewing Authority Review by Service Chief REVIEW OF CONVICTIONS General Grounds for Quashing Convictions Quashing Conviction on the Ground of Unsoundness of Mind Receiving Other Evidence Ordering a New Trial Substitution of Conviction of Alternative Offence POST REVIEW NOTIFICATION REVIEW OF PUNISHMENTS OR ORDERS General Punishments etc which are Wrong in Law Punishments etc which are Excessive Taking Other Offences into Consideration Elective Punishments Substitution of Punishment or Order Fixing a Non-parole Period Suspending the Punishment of Detention OTHER MATTERS RELATING TO REVIEW OF PUNISHMENTS AND ORDERS Punishments and Orders which are Subject to Approval When Approved Punishments Take Effect Substitution of Punishments or Orders where the Original Punishment or Order is not approved Custody of Convicted Persons Pending Approval of Certain Punishments Stay of Execution of Punishment ACTION ON REVIEW OF PROCEEDINGS THAT HAVE RESULTED IN AN ACQUITTAL ON THE GROUND OF UNSOUNDNESS OF MIND General Quashing of a Prescribed Acquittal Receiving Other Evidence Finding of "Unfit to Plead" Ordering a New Trial SECTION II - APPEALS GENERAL DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL Composition of Tribunal Sittings of the Tribunal Sittings before a Single Member BRINGING OF APPEALS Who May Appeal Grounds of Appeal With whom Appeals etc may be Lodged Time Limits on Lodging Appeals etc DETERMINATION OF APPEALS Receiving Other Evidence Quashing of Conviction etc. Substitution of Conviction for Alternative Offence Quashing Conviction on the Ground of Unsoundness of Mind Ordering a New Trial 12.59 12.61 12.62 12.64 12.66 12.67 12.69 12.70 12.72 12.73 12.74 12.77 12.80

12.8 12.11 12.15 12.19 12.21 12.22 12.23 12.26 12.27 12.29 12.31 12.32 12.33 12.34 12.36 12.38 12.40 12.42 12.43

12.44 12.47 12.48 12.49 12.52

12.53 12.54 12.55 12.56 12.57

ADFP 201 VOLUME 1 xx Person Deemed to have been Acquitted INCIDENTAL POWERS OF THE TRIBUNAL Powers in Relation to Witnesses and Evidence Power to Obtain Report Warrants Costs Restitution Order and Reparation Orders REPRESENTATION AND ATTENDANCE OF APPELLANT AT HEARINGS Attendance of Appellant Representation of Appellant Defence of Appeals OFFENCES IN RELATION TO THE TRIBUNAL Offences Contempt REFERENCES AND APPEALS FROM THE TRIBUNAL TO THE FEDERAL COURT References During Hearings Before the Tribunal Appeals from Decisions of the Tribunal Powers of the Federal Court in Relation to Appeals Custody Orders and Sending of Documents to the Federal Court Annexes: A. Petitions for Review of Convictions, Punishments and Orders B. Format of Petition for Review of Conviction, Punishment or Order C. Format of Signal for Report of Receipt of a Petition CHAPTER 13 DISCIPLINE OFFICERS INTRODUCTION DISCIPLINE OFFICER Appointment Role JURISDICTION DISCIPLINARY INFRINGEMENTS RELEVANT OFFICER Authorisation Role INFRINGEMENT NOTICE General Part 1 - Infringement Details Part 2 - Election Part 3 - Hearing by Discipline Officer Part 4 - Information for Defence Members PUNISHMENTS INFRINGEMENT REGISTER APPEALS AND REVIEWS Annexes: A. Guide to Procedure for Relevant Officer B. Infringement Notice C. Guide to Procedure for Hearing by Discipline Officer D. Discipline Officer - Statistics 13.1 13.4 13.6 13.10 13.13 13.15 13.16 13.20 13.23 13.25 13.27 13.29 13.33 13.36 13.39 12.81 12.82 12.83 12.84 12.85 12.86

12.87 12.88 12.89 12.90 12.91

12.92 12.93 12.94 12.95

ADFP 201 VOLUME 1 CHAPTER 1

INTRODUCTION
ADF DISCIPLINE AND THE ROLE OF THE DEFENCE FORCE DISCIPLINE ACT 1.1 It is critical that the ADF establish and maintain the high standard of discipline that is necessary for it to conduct successful operations. As the ADF may be required to transition at short notice from peace to conflict, a common and high standard of discipline must be maintained at all times. Discipline is achieved and maintained by many means including leadership, training and the use of administrative sanctions. The Defence Force Disipline Act 1982 (DFDA) is a particularly important means of maintaining discipline in the ADF. Indeed, the primary purpose of the DFDA is to establish and maintain a high level of Service disicpline. 1.2 In some circumstances, maintenance of discipline will best be achieved by taking administration action against members in accordance with single-Service Instructions. In other situations, notably those involving minor breaches of discipline, resort to proceedings before a Discipline Officer may be appropriate. However, Discipline Officer action or administrative action alone is inappropriate to deal with situations in which a serious beach of discipline is alleged or where the conduct involved is otherwishe deemed to be sufficiently serious as to require the preferment of charges under the DFDA. In short, alternative disposal methods should not be used as a means to avoid the preferment of charges in situations in which formal disciplinary action is appropriate. HISTORICAL BACKGROUND 1.3 As old as armies and navies is the idea of a special discipline and a special body of law applicable to the armed forces, usually taking the form of a curtailment or abolition of such rights as the soldier would have had as a citizen. In Roman times the foundation of military law was complete subjection of the soldier to the will of the commander. The harshness of this system is apparent from the following description by the Roman scholar Cicero:
The general was at liberty to behead any man serving in his camp and to scourge with rods the staff officer as well as the common soldier; nor were such punishments inflicted merely on account of common crimes, but also when an officer had allowed himself to deviate from the orders which he had received or when a division had allowed itself to be surprised or had fled from field of 1 battle

1.4 The harshness of military discipline in the Middle Ages is illustrated by reference to the Ordonnances of King Richard I of England. For example, "whoever shall commit murder aboard ship shall be tied to the corpse and thrown into the sea: if ..... on land ..... tied to the corpse and buried alive or ..... if a robber be convicted, boiling pitch shall be poured over his head and a shower of feathers be 2 shaken over to mark him, and he shall be cast ashore. 1.5 As late as the 18th Century the eminent English legal writer Blackstone charged that the military system of justice was not built upon any settled principles, but was entirely arbitrary in its decisions and was something indulged rather than allowed as law. 1.6 In the 19th Century the system of military justice as it applied in the British Army and the Royal Navy was radically reformed with the implementation in 1847 of the Naval Discipline Act and, in 1879, of the Army Discipline and Regulation Act. These Acts brought the code of disciplinary laws into line with the more humane standards of the day and conferred upon naval and military personnel a broader range of rights under the law than had hitherto existed. 1.7 This 19th Century British legislation, as amended from time to time, formed the basis of the previous system of disciplinary law in each of the three arms of the Australian Defence Force and came in for well merited criticism over many years on various grounds. At the end of its period of

See Bishop, J.W. Justice Under Fire New York: Charterhouse, 1974. Exton, Maritime Dicacologie, London: 1664

ADFP 201 VOLUME 1 12 operation the legislation governing discipline in the Australian Defence Force was contained in the following: three United Kingdom Acts, two of which had ceased to operate in the UK; four sets of United Kingdom rules or regulations, all of which had ceased to operate in the UK; three Australian Acts; and nine sets of regulations under the Australian Acts. 1.8 This maze of legislation was replaced by the DFDA when implemented on 3 July 1985. The DFDA contains for the first time in one Act, the disciplinary law applicable to the three arms of the Defence Force. Detailed notes on the disciplinary legislation which preceded implementation of the DFDA are contained in Annex A. OUTLINE OF THE DEFENCE FORCE DISCIPLINE ACT 1.9 The DFDA creates service tribunals with power to try members of the Defence Force on charges of service offences against the Act. 1.10 The Act also provides these tribunals with power to try civilians accompanying the Defence Force outside Australia or on operations against the enemy for some of these offences in certain circumstances. Civilians are not otherwise liable to be tried by service tribunals, nor are any offences created by the Act triable by civil courts. 1.11 The Act creates a system of internal appeals against and review of convictions and punishments, complementary to the system of external appeal to a tribunal (comprising not less than three judges) against, and review of, convictions provided by the Defence Force Discipline Appeals Act. 1.12 The DFDA also provides for related matters such as investigation of offences, suspension from duty, powers of arrest, power to order restitution of stolen property or payment of reparation for damage or loss caused, conviction without punishment, approval of certain punishments by higher authority, suspension and remission of punishments, execution and enforcement of punishments and parole. 1.13 As a result of the 1989 Report of the Defence Force Discipline Legislation Board of Review, in 1995 an additional discipline regime, the discipline officer, was introduced to deal with minor disciplinary infringements. The discipline officer is not a service tribunal and does not deal with service offences thus avoiding the complexity associated with trials by service tribunals. The discipline officer regime is detailed in Chapter 13 of this Volume. OBJECT OF THE DISCIPLINE LAW MANUAL 1.14 The object of this Manual is to provide members of the Defence Force with guidance on the law relating to the investigation, hearing and trial of service offences, the review of proceedings of service tribunals, and petitions and appeals against decisions of service tribunals. 1.15 The principal laws directly applicable are the DFDA and the Defence Force Discipline Appeals Act 1955, the regulations made under each of those Acts, and the rules of procedure and other instruments made under the former of those Acts. These laws are reproduced in this Manual. 1.16 Apart from the legislation referred to in paragraph 113, the DFDA incorporates by reference other laws of the Commonwealth for certain specific purposes. For example, the DFDA creates Territory Offences which are offences against laws of the Commonwealth in force in the Jervis Bay Territory, offences against the Crimes Act 1900 (New South Wales) in its application to the Jervis Bay Territory and offences against the ACT Police Offences Act 1930 in its application to the Jervis Bay 3 Territory . Additionally, the principles of common law with respect to criminal liability apply in relation to

DFDA s.3, s.61

ADFP 201 VOLUME 1 13 service offences and the rules of evidence in force in the Australian Capital Territory apply to 5 proceedings before service tribunals. 1.17 Volume 2 of this Manual contains relevant parts of other legislation necessary to the operation of the DFDA. This legislation includes: a. b. The Evidence Act 1995 (Commonwealth). Selected parts of the Crimes Act 1900 (NSW) in its application to the Jervis Bay Territory and the Crimes Act 1914 (Commonwealth). (The provisions omitted either do not apply to trials by service tribunals or create offences that a service tribunal is not likely to be called upon to try.) Provisions of the Customs Act 1901 (Commonwealth) and the Customs (Narcotic Substances) Regulations relating to drug offences under s 59 of the DFDA. Miscellaneous legislation including Part XIII of the Defence Force Regulations (suspension and forfeiture of salary and allowances) and the High Court Rules relating to the payment of witness
4

c.

d.

1.18 Chapters 2 to 12 are a layman's guide to this law. Any person required to act in accordance with any of the laws referred to may need to acquaint himself with the precise terms of the particular law. For this purpose, the notes to these chapters refer to the relevant provisions of the Act of Parliament, Ordinance, Regulations or Rules of Procedure. Annex: A. Disciplinary Legislation In Effect In The Defence Force Before Implementation Of The Defence Force Discipline Act, 1982

DFDA s.10; see also Chapter 5 paragraph 5.4 DFDA s.146; these rules are subject to modification by DFD Regulation 20

ADFP 201 VOLUME 1 ANNEX A TO CHAPTER 1

DISCIPLINARY LEGISLATION IN EFFECT IN THE DEFENCE FORCE BEFORE IMPLEMENTATION OF THE DEFENCE FORCE DISCIPLINE ACT, 1982
PREVIOUS LEGISLATION 1. The Defence Force Discipline Act (DFDA) replaced the separate disciplinary legislation of the Navy, the Army and the Air Force. The previous legislation consisted in each case of a compound of United Kingdom and Australian legislation, as described in paragraphs 4 to 17 2. The word "code" has been used in the following descriptions as a matter of convenience. In the strict legal sense, a code means a compilation of laws intended to regulate completely the subject or subjects to which it relates. Neither the previous legislation nor the DFDA comprise a code in this sense. 3. The following abbreviations have been used throughout this annex: a. The Army 4. Before implementation of the DFDA, there were two codes of discipline for the Army. When members of the Army were on war service they were subject to the British code. The expression "war service" was something of a misnomer because for this purpose it not only included service in time of war, but also active service (see definitions of "active service" and "war service" in DA 4(1)) and all service outside Australia in time of peace(see DA 54). 5. This code, which was applied by DA 54 and DA 55, comprised the (UK) Army Act (of 1881) and the (UK) Rules of Procedure 1947 made thereunder, as modified and adapted by the Australian Military Regulations. Certain provisions of the Defence Act and the Australian Military Regulations also formed part of the code; for example, the provisions relating to the convening of courts martial, the confirmation and review of findings and sentences, arrest and custody and the serving of sentences of imprisonment and detention. 6. When members of the Army were not on war service (ie when serving in Australia in peace time), they were subject to what may be termed the Australian code. This, in fact, incorporated part of the British code in that DA s 88 applied those provisions of the British code that related to the procedures to be followed at trials by courts martial and the confirmation and review of findings and sentences of courts martial. 7. The remainder of the Australian code was prescribed in the Defence Act and the Australian Military Regulations. As the offences prescribed in the Australian Military Regulations were mostly taken verbatim from the British code, the principal difference from the code that was applicable to members on war service were: a. b. c. there were no service offences of treason or treachery; offences against the ordinary law (other than the Defence Act) were not triable; punishments imposable by officers dealing with offences summarily were restricted (DA s 108); and all offences, regardless of their relative seriousness, carried the same maximum punishment of imprisonment for three months (AMR reg 215). for Defence Act 1903 - DA; for Australian Military Regulations - AMR; and for Air Force Regulations - AFR.

d.

8. The restricted nature of this code was a consequence of the fact that it was initially designed for what was essentially a militia force, because s 31(2) of the original Defence Act of 1903 prohibited the raising of a standing army in peacetime (with the exception of administrative and instructional staffs).

ADFP 201 VOLUME 1 1A2 9. In their application to the Australian Army, the (UK) Army Act and the (UK) Rules of Procedures 1947 applied as in force on 29 October 1956 (see definition of "Army Act" in DA s 1(1)). The Air Force 10. Members of the Air Force were subject to the disciplinary code prescribed in the (UK) Air Force Act and the (UK) Rules of Procedure (Air Force) 1933 made thereunder and the King's Regulations and Air Council Instructions for the Royal Air Force. There was no distinction in this regard between war service and other service. 11. The (UK) Air Force Act was originally the (UK) Army Act (1881) as in force in 1917, applied to the Royal Air Force by the (UK) Air Force (Constitution) Act 1917, and appropriately retitled and amended by the latter Act. In its application to members of the Australian Air Force, the (UK) Air Force Act applied as in force on 15 December 1939 (see s 5(1) of the Air Force Act 1923) and as modified and adapted by the Air Force Regulations (see AFR reg 12 and Schedule 2). 12. The Rules of Procedure under the (UK) Air Force Act were applied to members of the Air Force by AFR reg 13(1). Although the definition of "the Rules of Procedure" in AFR reg 4(1) referred to the Rules of Procedure as being the (UK) Rules of Procedure (Air Force) 1933 "as amended from time to time", the effect of the repeal of the (UK) Air Force Act with effect from 1 January 1957 was that the Rules of Procedure applied in force on 31 December 1956. They applied as modified and adapted by the Air Force Regulations (see AFR reg 13B and Schedule 3). 13. The (UK) King's Regulations and Air Council Instructions were applied to members of the Air Force by AFR reg 13B(1). Only selected paragraphs relating to discipline, courts martial and forfeiture were applied. The KR and ACI applied as in force on 18 July 1940 (ie the 1939 edition) and as modified and adapted by the Air Force Regulations (see AFR reg 13B and Schedule 4). 14. Certain provisions of the Defence Act 1903 on disciplinary matters applied to members of the Air Force, in some cases in parallel with provisions of the (UK) Air Force Act, in other cases in place of such provisions. The Navy 15. Members of the Navy were subject to the disciplinary code prescribed in the (UK) Naval Discipline Act 1957 and the Queen's Regulations and Admiralty Instructions, in both cases as in force on 6 November 1964 (see s 3 (definition of "the Naval Discipline Act") and 34 of the Naval Defence Act 1910). There was no distinction in this regard between war service and other service. 16. In their application to members of the Australian Navy, the (UK) Naval Discipline Act 1957 and the QR and AI (1953 edition) were modified and adapted by the Naval Forces Regulations (see NFR reg 9 and Schedules 1 and 2). An effect of the modifications and adaptations was that only selected chapters of the QR and AI relating to discipline and courts martial continued to apply. 17. Certain provisions of the Defence Act 1903 on disciplinary matters applied to members of the Navy, in some cases in parallel with provisions of the (UK) Naval Discipline Act 1957, in other cases in place of such provisions. 18. Legislative Basis for the DFDA. The DFDA was based on the (UK) Army Act 1955, Air Force Act 1955 and Naval Discipline Act 1957. These Acts were chosen as the basis because they were the result of a thorough review of the AA, the AFA and the (UK) Naval Discipline Act of 1866 by a select committee of the House of Commons. The following House of Commons reports refer: a. b. c. Report from the Select Committee on the Army Act and Air Force Act (No. 289, 1953) the same (No. 223, 1954); and Report from the Select Committee on the Naval Discipline Act (No. 421, 1956).

ADFP 201 VOLUME 1 CHAPTER 2

JURISDICTION GENERALLY OF SERVICE TRIBUNALS

SERVICE TRIBUNALS 2.1 Service tribunals comprise the following: a. courts martial, comprising: (1) (2) b. c. general courts martial, and restricted courts martial;

Defence Force magistrates; and summary authorities comprising: (1) (2) (3) superior summary authorities, commanding officers, and subordinate summary authorities.

2.2 This chapter describes the jurisdiction of service tribunals generally. The specific jurisdiction and powers of particular service tribunals are set out in Chapter 7 in relation to summary authorities and Chapters 8, 9 and 10 in relation to courts martial and Defence Force magistrates. SERVICE OFFENCES General 2.3 Service tribunals have jurisdiction to act in relation to Service offences only. Jurisdiction is 1 conferred in relation to charges. A charge is defined as a charge of a Service offence and a service offence is defined as: a. an offence against the Defence Force Discipline Act 1982 (DFDA) (ie s.15 to s.62 inclusive, and s.101QA) or the regulations; or an ancillary offence in relation to an offence referred to in subparagraph a.
2

b.

2.4 Offences against the DFDA or the regulations include aiding and abetting the commission of 3 any of the offences referred to in paragraph 2.3a. 2.5 An ancillary offence is defined as an offence against s.6 (Accessory after the fact), s.7 4 (Attempts), s.7A (Inciting to or urging the commission of an offence) or s.86(1)(a) (Conspiracy ) of the 5 Crimes Act 1914.

DFDA s.106, s.107, s.108, s.115 and s.129. DFDA s.3(1) (definition of charge and service offence); as to the meaning of ancillary offence see paragraph 2.5 and Annex C to Chapter 4. Crimes Act 1914, s.5. Note Crimes Amendment Act 1995 (No. 11 of 1995) with respect to restrictions on offence of conspiracy. DFDA s.3(13).

ADFP 201 VOLUME 1 22 Limitations as to Place where Offence Committed 2.6 The only limitation imposed on Service tribunals in relation to the place where a service offence was committed is that certain Service offences when committed in Australia cannot be tried except with the consent of the Director of Public Prosecutions. These offences are: a. b. treason, murder, manslaughter or bigamy; an offence against s.92A to s.92NB (inclusive) of the Crimes Act 1900 of the State of New South Wales, in its application to the Jervis Bay Territory; an offence in respect of which proceedings could not be brought in the Jervis Bay Territory without the consent of the Minister, the Director of Public Prosecutions or a person authorised by the Director of Public Prosecutions to give consent; or an ancillary offence in relation to an offence in sub-paragraphs a., b. or c.
6

c.

d.

Limitations as to Time 2.7 A person cannot lawfully be charged with a Service offence if the period of time (if any) within which a charge is required to be brought has expired. The periods are as follows: a. in the case of an offence (other than a Territory offence or those offences specified in subparagraph b.) - three years after the date of commission of the alleged offence, disregarding any time as a prisoner of war, or while absent without leave or serving a 7 sentence of imprisonment. in the case of an offence against s.15 (aiding enemy), s.16 (communication with enemy), s.20 (mutiny) or s.22 (desertion) of the DFDA or an ancillary offence relating 8 to such an offence - no time limitation; and in the case of an offence that is a Territory offence (including an ancillary offence in relation to a Territory offence) - whatever period applies in a civil court in the Jervis 9 Bay Territory (see below).

b.

c.

2.8

In the case of Territory offences referred to in paragraph 2.7, the periods are: a. where the maximum term of imprisonment for the offence in the case of a first conviction exceeds six months - no time limitation; where the maximum term of imprisonment for the offence for a first conviction does not exceed six months or the punishment for the offence is a pecuniary penalty (no term of imprisonment being mentioned) - one year after the date of commission of the alleged offence; and in any case where a longer time limitation than one year is provided - that longer 10 period.

b.

c.

DFDA s.63(1). DFDA s.96(1), (3) DFDA s.96(2) DFDA s.96(4); see also paragraph 2.8 re Territory offences. Crimes Act 1914 s.21 in relation to offences against laws of the Commonwealth.

10

ADFP 201 VOLUME 1 23 2.9 A person who has ceased to be a member of the Defence Force or a defence civilian, cannot be charged with a service offence unless the maximum punishment for the offence is imprisonment for two years or a more severe punishment and the person is charged not later than six months after he 11 or she ceased to be a member or a defence civilian, as the case may be. PERSONS WHO MAY COMMIT SERVICE OFFENCES 2.10 With one exception service offences (ie offences against the DFDA or the DFD Regulations) may be committed only by defence members or defence civilians. Many service offences 13 may be committed only by defence members. 2.11 The exception is that of a person making a false statement etc in relation to his or her application for appointment to, or enlistment in, the Defence Force. However, this offence is punishable under the Act only if the person's application is successful and the person becomes a 14 member of the Defence Force. 2.12 The effect of the foregoing is that only a person who is or has been a defence member or a defence civilian may be dealt with or tried by a service tribunal for a service offence. Defence Members 2.13 A defence member is: a. a member of the Permanent Naval Forces, the Australian Regular Army, the Regular Army Supplement or the Permanent Air Force; or a member of the Emergency Forces or the Reserve Forces who: (1) (2) is rendering continuous full time service, or is on duty or in uniform.
15 12

b.

2.14 The Emergency Forces comprise the Naval Emergency Reserve Forces, the Regular Army 16 Emergency Reserve and the Air Force Emergency Force. The Reserve Forces comprise the 17 Australian Naval Reserve, the Australian Army Reserve and the Australian Air Force Reserve. 2.15 A member of the Emergency Forces or the Reserve Forces is rendering continuous full time service when he is rendering service under Defence Act 1903, s.45(4), s.46, s.50(3) or s.50A(1), Naval Defence Act 1910, s.32 or s.32A(3) or Air Force Act 1923, s.4H(2), (6) (7) or s.4J(3). 2.16 In addition to the occasions when a member of the Emergency Forces or the Reserve Forces is clearly on duty, a member is deemed to be on duty for the purposes of the DFDA:

11

DFDA s.96(6). DFDA s.57(1). DFDA s.17, ss19-27, s.31(1)(b), s.32, ss34-35, ss37-39, s.41, s.50, s.54(1), s.57(2), s.59(5), s.60 and s.62. DFDA s.57(1). DFDA s.3(1) (definition of defence member). DFDA s.3(1) (definition of Emergency Forces). DFDA s.3(1) (definition of Reserve Forces).

12

13

14

15

16

17

ADFP 201 VOLUME 1 24 a. from the time appointed for the member to report to, or to attend at, a specified place for any naval, military or air force service that the member is required to render by or under the Defence Act, the Naval Defence Act or the Air Force Act until duly released or discharged from that service; or while acting or purporting to act in his or her capacity as a member of the Emergency 18 Forces or the Reserve Forces.

b.

Members Attached to Other Forces or Organisations 2.17 The fact that a member of the Defence Force is attached to, or allotted for duty with, the armed forces of another country, a force raised or organized by the United Nations or another international body, or a peacekeeping force does not, in itself, affect the members membership of the 19 Defence Force. 2.18 A peacekeeping force is a force raised or organized for the purpose of peacekeeping in an area outside Australia or observing or monitoring any activities of persons in an area outside Australia that may lead to an outbreak of hostilities, being a force designated as a peacekeeping force for the 20 purposes of Division 10 of Part III of the Repatriation Act 1920. Members as Prisoners of War 2.19 Where a member of the Defence Force is captured by the enemy the member becomes a prisoner of war. The member remains a defence member but the Detaining Power would not ordinarily allow an Australian service tribunal to exercise jurisdiction while the person remains a prisoner of war. The member may, on restoration to the Australian forces, be tried by an Australian service tribunal for acts or omissions committed by him or her before, or while, the member was a prisoner of war, that constitute service offences. Any period during which a member is a prisoner of war is to be disregarded in 21 assessing whether the time during which a charge of a service offence may be brought has expired. Members of Armed Forces of Other Countries 2.20 A member of the armed forces of another country who is temporarily attached to a part of the Defence Force under the Defence Act 1903, s.116B(1) is, while so attached, regarded as a member of that part of the Defence Force, as holding the appropriate rank therein and as having appropriate 22 status and powers for the purposes of command and discipline. 2.21 Such a person is accordingly, for disciplinary purposes, both a member of the Defence Force and a defence member while the person continues to be so attached. The operation of the law governing the Australian Defence Force (including the DFDA), in its application to such a person, is subject to any exceptions, etc, specified by the Minister. By Order dated 3 June 1988 the Minister modified the DFDA by omitting subsection 3(9) and substituting the following subsection for members of armed forces of other countries:
'(9) A reference in this Act to the amount of a convicted person's pay for a specified number of days shall be read as a reference to an amount that is the product of-

a.

the amount of daily rate of pay payable to the person on the day on which the person was so convicted; and

18

DFDA s.3(4). DFDA s.3(7). Repatriation Act 1920 s.107J(1). DFDA s.96(3). Defence Act 1903 s.116B(2).

19

20

21

22

ADFP 201 VOLUME 1 25 b. the number of days specified in the reference.

2.22 Such a person may therefore be tried by service tribunals under the DFDA, for offences committed while the person was a defence member; the person may also be given any appointment under the DFDA or other defence legislation for which the person is eligible by rank and status. Prisoners of War 2.23 The DFDA applies to a person who becomes a prisoner of war under Australian control as if the person were a member of the Defence Force and a defence member. This position continues 23 while Australia remains responsible for the person. The operation of the DFDA, in its application to 24 such a person, is subject to any exceptions etc provided for by the regulations under the DFDA. 2.24 This application of the DFDA is necessary to meet the requirements of article 82 of the Geneva Convention Relative To The Treatment Of Prisoners Of War. Members of Cadet Forces 2.25 The Australian Cadet Corps, the Naval Reserve Cadets and the Air Training Corps are not part of the Defence Force and an officer, instructor or cadet belonging to one of these bodies does not become a member of the Defence Force merely by reason of his or her membership of that body or by his 25 or her rendering of service under the Cadet Forces Regulations. Defence Civilians 2.26 A person is a defence civilian if the person, with the authority of an authorized person, accompanies a part of the Defence Force that is outside Australia or on operations against the enemy and (in either case) has consented in writing to subject himself or herself to Defence Force discipline 26 while so accompanying that part of the Defence Force. PLACES WHERE A SERVICE TRIBUNAL MAY SIT 2.27 A service tribunal may sit at any place inside or outside Australia. It may sit inside Australia to try a charge of a service offence committed outside Australia and vice versa. 2.28 A service tribunal of the armed forces of a country may exercise its jurisdiction in another country when the forces of the first country are passing through, stationed in, or in occupation of, the other country. The position may be regulated by agreement between the two countries and may be the 28 subject of legislation. For example, Australian service tribunals may exercise jurisdiction over Australian Servicemen in Malaysia and Singapore subject to the 'status of forces' provisions contained in the Five Power Defence Arrangements. Similar arrangements exist in respect of Australian Servicemen in Papua New Guinea - under the Status of Forces Agreement between Australia and PNG. Before an Australian service tribunal exercises jurisdiction under the DFDA in another country, it 29 is necessary to consult with the appropriate Australian authorities to ascertain whether or not the service tribunal has jurisdiction and the existence or otherwise of any agreements with that country.
27

23

DFDA s.7(1). DFDA s.7(2). Defence Act 1903 s.62(3), (4); Naval Defence Act 1910 s.38(3), (4); Air Force Act 1923 s.8(3), (4). DFDA s.3(1) (definition of defence civilian). DFDA s.9. OConnell, D.P. International Law Vol II. London: Stevens & Sons Limited 1965, at p 954. Refer to Director of Agreements, Defence Legal Office, Department of Defence Canberra

24

25

26

27

28

29

ADFP 201 VOLUME 1 26 2.29 A warship has some degree of immunity from the jurisdiction of a foreign government and the local authorities of a foreign country have no authority with respect to crimes committed on board in the territorial waters of that country unless the commanding officer surrenders the alleged offender 30 to them. A service tribunal of the armed forces of a country may exercise its jurisdiction in a warship 31 of that country in the territorial waters of a foreign country. OFFENCES THAT MAY ALSO BE TRIED BY CIVIL AUTHORITIES 2.30 Members of the ADF are subject to both the ordinary criminal law of Australia and to the disciplinary system provided for in the DFDA. Since the commencement of the DFDA in 1985, doubts have existed about the appropriateness of taking disciplinary action under the DFDA in cases where a civil criminal prosecution would also be possible. 2.31 The High Court of Australia has now on several occasions considered the question of the 32 jurisdiction of the ADF to deal with matters which are also offences under the ordinary criminal law . In effect, the High Court has decided that the ADF may only deal with matters, where proceedings under the DFDA can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline. With respect to some matters, there is little doubt that they are directly related to the maintenance and enforcement of service discipline. For example, Absence without Leave; Absence from Duty; Insubordination; and Disobedience of a Lawful Command are clearly matters which fall within military jurisdiction. Other matters, such as theft, assault and fraud or fraud related offences, may fall within either military jurisdiction or within the jurisdiction of the civil authorities. Others again, such a serious sexual harassment; sexual assault; serious fraud; and serious assaults should be referred to the civil authorities. 2.32 In respect of serious matters or where there is any doubt as to whether a matter falls within 33 military jurisdiction, advice must be sought from a legal officer before proceeding with the 34 investigation and or preferring a charge . Notification Procedures for cases where military jurisdiction is exercised 2.33 Whenever a service tribunal exercises jurisdiction over an alleged offence of a type which overlaps with the ordinary criminal law as described in paragraph 2.31, results of any subsequent Service prosecution are to be notified to the relevant civil prosecuting authority, either the State or Commonwealth DPP as soon as possible. Notifications are to be in the form at Annex D to DI(G)PERS 45-1 and for offences against Commonwealth laws, are to be sent to the Head Office of the Commonwealth Director of Public Prosecutions. For offences against State or Territory laws, the

30

OConnell, D.P. International Law Vol II. London: Stevens & Sons Limited 1965, at p 939. Oppenheim, L. International Law 8th Edition, (H. Lauterpacht ed.) Vol I. London: Longmans, Green and Co., 1958, at p 854. See Re Tracey; ex parte Ryan (1989) 166 CLR 518; Re Nolan; ex parte Young (1991) 172 CLR 460; Re Tyler and Ors; ex parte Foley (1994) 181 CLR 18. Legal officers need to be aware of the difficulties associated with the determination of jurisdiction as between civil and military authorities. In the very serious cases, the course to be followed will be straight forward: the matter will be handed to State or federal police (as appropriate) who will complete the investigation and will proceed to charge the accused under the appropriate State of federal law. There may be other cases where the State or Federal police having investigated the matter are not prepared to deal with it and may prefer to refer it back for prosecution under the DFDA. Where such a matter is one which might properly be charged under the civil law, if it is a State offence, the State DPP should be approached, made aware of the circumstances and asked if they are prepared to consent to the matter being dealt with under the DFDA. If it is a federal offence, the Commonwealth DPP should be similarly approached. To avoid embarrassment for the Commonwealth DPP that office is not to be approached with respect to matters which may properly be charged under State law. See generally DI(G)PERS 45-1 - Jurisdiction under Defence Force Discipline ActGuidance for Military Commanders

31

32

33

34

ADFP 201 VOLUME 1 27 notifications are to be made to the relevant State or Territory DPP prosecuting authorities. A copy of the completed form is to be attached to the Summary Proceedings Report (Form PD105) before it is dispatched for review by a legal officer.

ADFP 201 VOLUME 1 CHAPTER 3

INVESTIGATION OF SERVICE OFFENCES

INTRODUCTION 3.1 This chapter provides guidance on provisions of the Defence Force Discipline Act (DFDA) which relate to the investigation of alleged Service offences and to the summons, arrest, custody and suspension from duty of persons suspected of having committed Service offences. The chapter is intended to assist Service police, and other persons, who may be required to investigate or take other action in relation to a possible Service offence but does not give detailed advice on all administrative matters in connection with such investigations or other action, as these may vary according to the circumstances of each case and are more properly dealt with in Service police manuals or by other administrative instructions. 3.2 The matters dealt with in this chapter are largely governed by Parts V and VI of the DFDA. QUESTIONING OF PERSONS General Rule 3.3 An investigating officer may ask a person questions about an offence where the investigating officer believes that the person (whether a suspect or not) may be able to furnish information that may assist him in his investigation of the offence. The right of an investigating officer 2 to do this is subject to requirements of Part VI of the Act . 3.4 A person who is asked a question by an investigating officer is not obliged to answer .
3 1

3.5 Whenever a caution is required, the caution at Form 1 of the Schedule to the Defence Force Discipline Regulations (DFD Regs) should be used. Person in Custody to be Given Caution before Questioning 3.6 Persons in custody, eg following arrest, must be cautioned prior to questioning (see paragraph 3.80 for further details), but there is no requirement to caution merely because a person has been arrested or is otherwise in custody. Person to be Charged or Summonsed to be Given Caution before Questioning 3.7 After an investigating officer has decided to charge a person with a service offence or to seek a summons against a person for a service offence or to recommend that a person be charged or a summons be sought, the investigating officer must not ask the person any questions or request that the person do anything in connection with the service offence unless the investigating officer or 4 another investigating officer cautions the person. 3.8 A caution must be given in or translated into a language in which the person being cautioned is able to communicate with reasonable fluency and must tell the person that he or she does not have to say or do anything but that anything that the person does say or do may be used in evidence.

Defined by DFDA s.101(1) DFDA s.101B(1) DFDA s.101B(2) DFDA s.101Dcompare s.101S and para. 3.22 which deals with cautioning after a person has been charged

ADFP 201 VOLUME 1 32 3.9 A caution need not be given in writing. However, if practicable, the investigating officer is to tape record the giving of the caution and the person's response to the caution (if any). If an investigating officer does caution a person and the caution and any response are not tape recorded, then in any subsequent proceedings before a service tribunal, the prosecution must prove that it was not practicable to tape record the caution or response. 3.10 This rule does not apply to asking a person to take part in an identification parade. See paragraphs 3.18 to 3.21. Confessions 3.11 The admissibility of a confession on the trial of a person is governed by the rules of evidence, which are dealt with in Chapter 6 and by sections 101J, 101JA and 101K of the DFDA. The rules of evidence affect the manner in which an accused person may be questioned by an investigating officer because a confession is not admissible if not made voluntarily. A confession obtained by the use or threat of physical violence or by the making of a promise, threat or other inducement (not being physical violence or a threat of physical violence) likely to cause the person to 5 make a confession that is untrue, is deemed not to be made voluntarily . 3.12 If a person who is being interviewed as a suspect (whether that person is under arrest or not) makes a confession or admission to a police member, the confession or admission is inadmissible as evidence against the person in proceedings for a service offence unless the following procedure is 6 followed : a. the questioning of the person and anything said during that questioning was tape 7 recorded , if the circumstances are such that it was reasonably practicable to tape record the confession or admission; or if it was not reasonably practicable to tape record the confession or admission then: (1) a record in writing of the things said by or to the person was made at the time of the interview or as soon as practicable afterwards either in English or in another language used by the person; the record was read to the person in the language used by him or her as soon as practicable after the record was made and a copy of the record was made available to the person; the person was given the opportunity to interrupt the reading to draw attention to any errors or omissions in the record and was also given the opportunity at the end of the reading to draw attention to any errors in or omissions from the record; the reading of the record and anything said by the person during that reading are tape recorded; before the record was read to the person, the following explanation was given to the person:

b.

(2)

(3)

(4)

(5)

When you were interviewed by ........................... (name of police member), a written record was made of what you said, and what was said to you, in the interview. The record was made *at the time of the interview *as soon as practicable after the interview. It is in *English *the language you used at the interview. You will be given a copy.

DFDA s.101J DFDA s.101A The definition of tape recording is in DFDA s.101(1) and includes sound recording and video recording

ADFP 201 VOLUME 1 33 I am now going to read it to you in ....................... (language), the language you used in the interview. You have the right to interrupt the reading at any time if you think there is something wrong with the record. At the end of the reading, you have the right to tell me about anything else you think is wrong with the record, as well as the things you mentioned during the reading. A tape recording will be made of the reading of the record and of everything you say, and everything said to you, during the reading and at the end. You will be given a copy of that tape recording and, if a transcript is made, a copy of that transcript. *Delete whichever is not applicable 3.13 The person who has made the confession or admission or his or her legal representative, is entitled, without charge, to a copy of the recording of that confession or admission in accordance with the following: a. if the recording is a sound recording only or a video recording only, the police member concerned must make the recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording; and if both a sound recording and a video recording were made, the police member concerned must make the sound recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording, and notify the person or his or her legal representative that an opportunity will be provided, on request, for viewing the video recording; and if a transcript of the tape recording is prepared, the police member concerned must make a copy of the transcript available to the person or his or her legal representative within 7 days after the preparation of the transcript.

b.

c.

3.14 However, a failure to provide the person or his or her legal representative with a copy of the tape recording, will not prevent the admissibility of the relevant confession or admission if the service tribunal or judge advocate is satisfied that it was not practicable to comply with the requirements. A judge advocate who permits the evidence to be given in such circumstances must inform the court martial of the non-compliance with the requirements and give the members such warnings about the evidence as he or she thinks appropriate. 3.15 In proceedings for a service offence, evidence of a confession or admission may still be admissible notwithstanding that the tape recording requirements have not been complied with, if the service tribunal, or judge advocate, is satisfied that in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice. This also applies in cases where there is insufficient evidence of compliance with the requirements. A judge advocate who permits the evidence to be given in such circumstances must inform the court martial of the noncompliance with the requirements and give the members such warnings about the evidence as he or she thinks appropriate. 3.16 A strict procedure is also laid down for the recording and witnessing of oral confessions by an investigating officer who is not a police member, in the case of a serious Service offence, which is 8 a Service offence punishable by imprisonment for more than 6 months . In brief, the requirement is for one of the following procedures to be observed: a. The interview during which the confession is made is contemporaneously tape recorded by a multiple tape sound recorder. If such an apparatus is not available, one sound recording is made and a copy made as soon as possible thereafter.

b.

DFDA s.101(1)

ADFP 201 VOLUME 1 34 c. The interview is recorded in writing contemporaneously or as soon as practicable thereafter, and the record is acknowledged in the prescribed manner by the accused person and a copy given to the accused person. The interview is recorded in writing contemporaneously or as soon as practicable thereafter. The record is then read back to the accused person, a copy given to the accused person and the accused person is given an opportunity to deny or comment on the record. This whole process is recorded on a multiple tape sound recorder or 9 conducted before an appropriate witness .

d.

3.17 Where sound recordings are made, the investigating officer is to hand one of the recordings to the accused person, inform the accused person that the other recording will be retained and may be used in evidence and advise the accused person to make arrangements for the safe custody of his or her recording. If the accused person so requests, the investigating officer is to afford the accused person an opportunity of making such arrangements and to provide reasonable facilities for the person 10 or his or her legal practitioner to listen to the recording . Identification Parades 3.18 An identification parade for the purpose of identifying a possible suspect is not to be held unless the suspect has agreed to the holding of the parade and has been informed by an investigating officer in writing and also, if practicable, orally, in a language in which the suspect is reasonably fluent: a. b. that he or she is not obliged to take part in the parade; that, if he or she does not take part, evidence may be given in proceedings for the offence being investigated of any identification of him or her by a witness from photographs or otherwise than as a result of an identification parade; that, if he or she does take part, evidence may be given of any identification of him or her made by the witness, of any doubts experienced by the witness during or immediately after the parade and of any unfairness in conducting the parade; and that he or she may have a legal practitioner or other person present during the parade 11 if his or her presence can be obtained within a reasonable time .

c.

d.

The investigating officer is then to ask the suspect to acknowledge, on the prescribed form, that the 12 suspect has been so informed . 3.19 The investigating officer is to: a. ensure that the identification parade is conducted fairly and, as far as practicable, so as not to suggest to the witness which of the persons is the suspect; cause at least one photograph (in colour if practicable) of the parade to be taken, unless a videotape recording is taken; and cause particulars of what happens during the parade, and (with their consent) the names, addresses and occupations of the persons (other than the suspect) taking 13 part, to be recorded .

b.

c.

DFDA s.101K(2) to (4). As to the prescribed manner of acknowledgment see DFD Regs 39 and 40. DFDA s.101K(5), (6) DFDA s.101N(1) DFDA s.101N(2), DFD Reg 42

10

11

12

ADFP 201 VOLUME 1 35 3.20 If the suspect so requests, the suspect is to be provided with: a. b. if a photograph has been takena copy; if a videotape recording has been taken-reasonable facilities to enable it to be reproduced visually and, if practicable, in sound; and a copy of the record of particulars of what happened (other than the names, etc of 14 persons included in the parade).

c.

3.21 A person who has been asked to take part in an identification parade need not be 15 cautioned . Person Charged to be Cautioned 3.22 Immediately after a person in custody is charged with a Service offence the investigating officer in charge is required to caution the accused person, in a language in which the person is reasonably fluent, in writing and also, if practicable, orally, that the accused person is not obliged to answer any questions, or to do anything asked of him or her by an investigating officer and that 16 anything said or done by him or her may be used in evidence. Questioning of Person Charged with an Offence 3.23 After a person has been charged with, or summoned for, an offence, an investigating officer is not permitted to ask the person any question relating to the offence, except for the purpose of clearing up an ambiguity in an answer to a question asked before the person was charged or summoned, or in a statement made by the person, whether made before or after the person was charged or summoned, or where it is necessary to assist the investigating officer in dealing with an 17 emergency . 3.24 Where however, fresh evidence becomes available, an investigating officer may ask the person whether he or she wishes to make a statement with respect to it, but the investigating officer may not ask any further questions other than questions to clear up any ambiguities in any statement made by the person. Before the investigator asks any question the investigator is required either to 18 caution the person or to remind the person of the caution given when the person was charged . 3.25 If a person who has been charged with, or summoned for, an offence voluntarily makes a statement to an investigating officer in relation to the offence, the investigating officer is required to caution the person before the person makes the statement, if practicable, otherwise as soon as practicable after the person begins to make the statement, that the person is not obliged to make any 19 statement. The caution must be given in writing and also orally, if practicable .

13

DFDA s.101N(4), (5) DFDA s.101N(6) DFDA ss.101C(3) and101D(5) DFDA s.101S DFDA s.101T DFDA s.101T(2), (3) DFDA s.101T(4)

14

15

16

17

18

19

ADFP 201 VOLUME 1 36 Persons Charged with Same Offence 3.26 Where two or more persons have been charged with the same offence and one of the accused persons furnishes to an investigating officer a written statement relating to the offence, the investigating officer may furnish each of the other accused persons with a copy of the statement but the investigating officer is not to read the statement to them (unless they cannot read it or request that 20 it be read) or invite them to comment on it . 3.27 If an accused person who has been furnished with a statement made by another accused person voluntarily makes a statement to an investigating officer by way of comment on the other accused person's statement, the investigating officer is required to caution the person before the person makes the statement, if practicable, otherwise as soon as practicable after the person begins 21 to make the statement, that the person is not obliged to make any statement . SUSPENSION FROM DUTY On Suspicion of Offence 3.28 Where a member of the Defence Force is charged with an offence triable by a Service tribunal or a civil court, in Australia or overseas, or an authorised officer suspects, on reasonable grounds, that the member has committed a Service offence, and orders an investigation, the 22 authorised officer may suspend the member from duty . 3.29 This power is appropriate for use in circumstances where, because of the nature of the offence that the person is suspected of having committed (eg fraudulent misappropriation of money), it is desirable that the person should cease to attend at his or her unit until the matter has been enquired into and, if a charge is preferred, until the charge is finalised. 3.30 The power applies to a member of the Defence Force whether or not the member is a defence member; for example, it permits the suspension of a reservist who is not for the time being rendering service in respect of an offence that the reservist is suspected of having committed during a period when the reservist was rendering service. 3.31 A suspension from duty ceases on completion of the investigation (unless the person is then charged with an offence) or on the person being notified that the charge will not be proceeded with or that the prosecution of the charge is abandoned or on the termination of the proceedings before the 23 Service tribunal or civil court . After Conviction 3.32 duty: Where a member of the Defence Force is convicted, the member may be suspended from

a.

in a case where the punishment imposed requires approvalby the Service tribunal or a reviewing authority, pending approval of the punishment; or where the member was convicted by a service tribunal or by a civil court in Australia or overseasby an authorised officer, pending a decision as to the termination of the 24 service of the member .

b.

20

DFDA s.101U(1), (2) DFDA s.101U(3) DFDA s.98(1), (2); s 86 DFDA s.98(3), (4), (5) DFDA s.99(1), (2)

21

22

23

24

ADFP 201 VOLUME 1 37 Effecting Suspension from Duty 3.33 Suspension from duty is required to be effected by notice in writing served on the person . 26 Forms 15 or 16 may be used for this purpose . Effect of Suspension from Duty 3.34 While a member of the Defence Force is suspended from duty, the member is not required to perform any duties of his or her office (other than those such duties which may be necessary to 27 relieve the member of that office) . In addition, except in the case of a member suspended during the investigation of an offence, a member who is suspended from duty is not entitled to receive any 28 remuneration (pay or allowances) during the period of suspension . However, a member who is suspended from duties may engage in employment outside the Defence Force during the period when the member is not in receipt of any remuneration from the Defence Force. 3.35 A member who is suspended from duty and who is not entitled to remuneration, may apply to a relevant authority on the grounds of hardship and the relevant authority may direct that the member is to receive pay and allowances during the whole or a part of the suspension period. Such a direction may only relate to the whole of member's remuneration; there is no provision for a relevant authority to direct that a member receive part of his or her pay and allowances; though the direction may relate to part of the suspension period during which the hardship exists. 3.36 The application for remuneration on the grounds of hardship must be in writing to the relevant authority (see paragraph 3.38) and must set out the reasons why the member is suffering or has suffered hardship as a result of the suspension, for example hardship may result from the inability to meet legal financial obligations. 3.37 The loss of accommodation allowances as a result of suspension from duty, will prima facie amount to hardship for the purpose of s.100(4) and will result in the member being entitled to pay and allowances during part of the suspension period sufficient to meet the payment of the accommodation 29 expenses. 3.38 The relevant authority for each case depends on the grounds for suspension and is as follows: a. in the case of a member who has been suspended from duty after being charged with an offencean authorised officer (this includes the commanding officer of that 30 member) ; in the case of a member who has been convicted of an offence and a decision is being made as to termination of the member's servicean authorised officer (this includes the commanding officer of the member); and in the case of a member who has had a punishment imposed which is subject to approvalthe Service tribunal which imposed the punishment or the reviewing authority.
25

b.

c.

25

DFDA s.98(1), (2), (6); s.99(1), (2), (3) See Volume 2 Part 12 DFDA s.100(1) DFDA s.100(2) Ministerial Policy Direction of 15 June 1995 DFDA s.86

26

27

28

29

30

ADFP 201 VOLUME 1 38 SUMMONS Introduction 3.39 Because a defence member may be ordered to appear before a Service tribunal, the issue of a summons with regard to an accused person will be uncommon because it will, in practice, be restricted to cases involving a defence civilian or former defence civilian, a reservist not rendering service (and hence not a defence member) or a former member of the Defence Force. There are three types of summons which may be issued with regard to an accused person and care should be taken that the correct summons is used. The types of summons which are available are discussed in paragraphs 3.40 to 3.50. Summons Originating Proceedings 3.40 A defence member who has been charged with a Service offence may be ordered by an authorised member of the Defence Force to appear before a summary authority for the hearing of the charge. In such a case, the defence member is, preferably at the same time, to be given a copy of the 31 charge or charges against him or her . 3.41 Any person who is alleged to have committed a Service offence may initially be proceeded against by way of summons but this procedure is not appropriate in the case of defence members. 3.42 A summons under s.87(1) of the DFDA can require attendance only before a commanding officer. It is to be signed by an authorised member and served in the manner specified in the DFD 32 Regs and, when it is served, the person is deemed to have been charged with the offence . Summons Requiring Further Attendance of Accused Person 3.43 A defence member who appears as an accused person before a Service tribunal may be 33 ordered by a superior officer to attend again before the same or another Service tribunal . 3.44 Any person who appears as an accused person before a Service tribunal may be required by 34 summons to attend again before the same or another Service tribunal . It is to be signed by the appropriate authority and served in the manner specified in the Defence Force Discipline Rules (DFD 35 Rules). This procedure (ie by way of summons) is not appropriate in the case of defence members. Summons or Arrest Following Non-attendance of Accused Person 3.45 A defence member charged with a Service offence who fails to appear before a Service tribunal for the hearing of the charge may be ordered by an authorised officer to appear before the 36 Service tribunal . 3.46 A person charged with a Service offence who fails to appear before a Service tribunal for the hearing of the charge may be required by summons to appear before the Service tribunal or a warrant 37 may be issued for his arrest .

31

DFDA s.87(1), (6) DFDA s.87(2), (3); DFD Reg 34 DFDA s.87(4) DFDA s.87(5) DFD Rule 6 DFDA s.88(1) DFDA s.88(1)

32

33

34

35

36

37

ADFP 201 VOLUME 1 39 3.47 Where action by way of summons or warrant is contemplated in a particular case, the decision will depend upon the circumstances of the case; in particular, upon the reason for the person's non-attendance. A warrant should not be issued unless there are reasonable grounds for believing that the issue of a summons under s.88(1) of the DFDA would not be effective. 3.48 A summons is to be signed by an authorised officer and served in the manner specified in 38 the DFD Regs . 3.49 A warrant is to specify the name of the accused person, and the charge and should state that it is issued because the accused was not present at a hearing before the Service tribunal 39 specified in the warrant. The warrant must specify the date on which it ceases to have effect . 3.50 A warrant may be executed by a constable or a member of the Defence Force (but not by a 40 constable of a country other than Australia) . ARREST Introduction 3.51 The following paragraphs deal with the apprehension of persons under the DFDA in connection with trial by Service tribunal. They do not deal with custody after conviction nor do they deal with arrest under other laws. Arrest without Warrant 3.52 Section 89 of the DFDA confers on members of the Defence Force certain powers of arrest without warrant over defence members and defence civilians. 3.53 The exercise of this power is strictly limited to circumstances where the person making the arrest believes on reasonable grounds: a. b. that the other person has committed, or is committing a Service offence; that the arrest of the other person is necessary for the purpose of ensuring his or her appearance before a Service tribunal, or preventing a continuation or repetition of the offence or the commission of a further Service offence, or preventing the concealment, loss or destruction of evidence of or relating to the offence or for the purpose of preserving the safety or welfare of the other person; and that proceedings by way of ordering or summoning the other person under s.87 of the 41 DFDA would not be effective for the purpose .

c.

3.54

This power may be exercised as follows: a. An officer may be arrested by: (1) (2) an officer who is his or her superior officer; any officer (whether his or her superior officer or not) if the alleged offence is mutiny or a Service offence involving disorderly or violent behaviour; or

38

DFDA s.88(2); DFD Reg 34 DFDA s.88(3), (5) DFDA s.88(4) and definition of constable in s.3(1) DFDA s.89(1)

39

40

41

ADFP 201 VOLUME 1 310 (3) subject to the regulations, a police member or a person lawfully exercising 42 authority under or on behalf of a Service police officer.

b.

A sailor, soldier or airman may be arrested by: (1) an officer or a warrant officer or non-commissioned officer who is his or her superior officer; any warrant officer or non-commissioned officer (whether his or her superior officer or not) if the alleged offence is mutiny or a service offence involving disorderly or violent behaviour; a police member or a person lawfully exercising authority under or on behalf of a police member; or in the case of a sailor onlya member of the regulating staff or the staff of the officer of the watch or officer of the day, of a naval ship or establishment.

(2)

(3)

(4)

c.

A defence civilian may be arrested by: (1) (2) an officer; or subject to the regulations, a police member who is an officer, warrant officer or non-commissioned officer or a person lawfully exercising authority under or on 43 behalf of a Service police officer.

3.55 This power may be exercised personally or by ordering the alleged offender into arrest or by 44 giving an order to a third person to arrest the alleged offender . 3.56 A person who is reasonably believed to be escaping from, or to have escaped from, custody 45 under the DFDA may be arrested, without warrant, by a constable . Arrest under Warrant 3.57 Section 90 of the DFDA confers on an authorised officer power to issue a warrant for the 46 arrest of a person who is reasonably suspected of having committed a Service offence . 3.58 The exercise of this power is subject to strict criteria to be applied by an authorised officer when considering whether to issue a warrant. 3.59 First, the authorised officer has to be satisfied by sworn or affirmed information that there are reasonable grounds for suspecting that the person has committed a Service offence, and to believe on reasonable grounds that proceedings by way of ordering or summoning the person under s.87 of the 47 DFDA would not be effective . 3.60 Secondly, the authorised officer has to be provided with an affidavit by the informant setting out the reasons for which the issue of the warrant is sought (including the reasons why it is believed

42

DFD Reg 35(1) DFDA s.89(2); DFD Reg 35(2) DFDA s.89(3) DFDA s.89(5) DFDA s.3(1); s 86 DFDA s.90(1)

43

44

45

46

47

ADFP 201 VOLUME 1 311 that the person committed the offence and the reasons why it is claimed that proceedings under s.87 of the DFDA would not be effective). Thirdly, the authorised officer has to be provided with such further sworn or affirmed information as the authorised officer requires regarding the reasons for which the warrant is sought. Furthermore, the authorised officer has to be satisfied after considering the 48 affidavit and other information, that there are reasonable grounds for issuing the warrant . 3.61 Finally, if the authorised officer issues the warrant, the authorised officer is required to specify on the affidavit which of the reasons specified in the affidavit, and any other reasons, the 49 authorised officer has relied upon as justifying the issue of the warrant . 3.62 A warrant is to specify the name of the person concerned and the Service offence that the 50 person is alleged to have committed . 3.63 A warrant may be executed by a constable or a member of the Defence Force (but not by a 51 constable of a country other than Australia) . Effecting an Arrest 3.64 Arrest normally consists of the actual seizure or touching of a person's body with a view to the persons detention, but there may be an arrest without imposition of hands provided there is constraint of a person's will. The mere pronouncing of the words of arrest is not an arrest, unless the 52 person sought to be arrested submits and goes with the arresting officer . If the person making the arrest does so under the authority of a warrant, the person making the arrest should show it to the person being arrested if the person making the arrest has it in his or her possession. Otherwise the person making the arrest should tell the person of the reason for the arrest and ensure that the warrant is shown to him or her as soon as practicable. 3.65 A person who makes an arrest is required to inform the person being arrested of the service offence for which he or she is arrested unless, because of the circumstances in which the arrest occurs, the arrested person ought to know the substance of the offence for which he or she is arrested or he or she makes it impracticable, because of his or her actions, for the person making the arrest to 53 inform him or her of the offence . 3.66 It is sufficient compliance if the person making the arrest informs the arrested person of the 54 substance of the offence; language of a precise or technical nature is not necessary . 3.67 A person making an arrest under the DFDA is not to use more force or subject the person being arrested to greater indignity than is necessary to make the arrest or to prevent the other 55 person's escape after arrest . 3.68 The use of force likely to cause the death of the person being arrested or grievous bodily harm to the person is specifically prohibited unless the person making the arrest believes on reasonable grounds that the use of such force is necessary to protect life or to prevent serious injury

48

DFDA s.90(2) DFDA s.90(3) DFDA s.90(4) DFDA s.90(5) Watson, Blackmore, Hosking: Criminal Law in New South Wales, Sydney: LBC, 1996 at 2.33450. DFDA s.93(1), (3) DFDA s.93(2) DFDA s.92(1)

49

50

51

52

53

54

55

ADFP 201 VOLUME 1 312 to a person (including the person making the arrest) and, where the person being arrested is fleeing, unless the person has, if practicable, been called upon to surrender and the person making the arrest 56 believes on reasonable grounds that the person cannot be apprehended in any other manner . 3.69 In executing a warrant for arrest, a member of the Defence Force has no right of entry to private property although the member may enter the property with the consent of the owner or occupier. 3.70 A constable may, in executing a warrant for arrest under the DFDA or for the purpose of arresting a person who is escaping or has escaped from lawful custody, enter premises (by force if necessary) at any time and search the premises provided the constable believes on reasonable 57 grounds that the person is on the premises . The constable is not entitled to enter premises between 9 pm and 6 am if the constable believes on reasonable grounds that it will be practicable to arrest the 58 person at any other time. PRE-CONVICTION CUSTODY General 3.71 A person arrested under the Act by a constable may be detained in a police station or similar premises for such time as is reasonably necessary to enable the arrested person to be delivered into 59 the custody of a police member or an authorised officer . 3.72 Where a person is arrested under the Act by a member of the Defence Force or having been arrested under the Act comes into the custody of a member, the member is required, as soon as practicable, to take all reasonable steps to ensure that the arrested person is delivered into the 60 custody of a commanding officer . This does not mean the custody of the commanding officer personally but the arrested person is to be brought to the unit and handed over to the officer in the unit who is responsible to the commanding officer for the custody of persons who have been arrested. 3.73 Where a person arrested under the Act is in the custody of a member of the Defence Force and no suitable Defence premises for the persons custody are available (eg where the arrested person is being escorted from one locality to another), the person may be detained in a civil detention 61 facility for a period not exceeding 7 days . 3.74 A person arrested under the Act must be released from custody if the person is not charged with a Service offence within 24 hours of being delivered into the custody of a commanding officer. This does not apply in the case of a person arrested under a warrant issued under s.88 of the DFDA 62 (because such a person has already been charged). Where a person is charged the person is to be 63 given a copy of the charge forthwith . 3.75 Where a person is arrested under the DFDA and held in custody, the commanding officer is required to cause proceedings to be commenced as soon as practicable for dealing with the charge. If

56

DFDA s.92(2) DFDA s.91(1),(2) DFDA s.91(3) DFDA s.94(1) DFDA s.95(1) DFDA s.94(2) DFDA s.95(2) DFDA s.95(3)

57

58

59

60

61

62

63

ADFP 201 VOLUME 1 313 proceedings are not commenced within 48 hours after the person comes into the custody of the commanding officer, the latter is required to report to a convening authority, in writing, stating his or her reasons for the delay. Similar reports are to be made after each subsequent 8 day period for which the person remains in custody without the charge having been dealt with, commencing from the time 64 when the person was first placed in custody . 3.76 If the person remains in custody for 30 days without the charge having been dealt with, the convening authority is required to notify a Service chief (or an authorised officer) who is to order the release of the person unless the Service chief is satisfied that it is proper for the person to remain in 65 custody . 3.77 The release from custody of a person charged with a Service offence may be effected at any time by a commanding officer (or an officer authorised in writing by the commanding officer). The officer releasing the person may impose on that person such conditions and restrictions pertaining to the release as the officer considers necessary (being conditions or restrictions of a kind authorised by 66 a Service chief), and may vary or revoke any condition or restriction so imposed . 3.78 A condition or restriction imposed on a person ceases to have effect if a summary authority or a convening authority directs that the charge be not proceeded with, if the person is acquitted or 67 convicted of the charge or if the charge is dismissed . 3.79 Where a person charged with an offence is released from custody, the person may not be again taken into custody unless the person breaches a condition or restriction imposed on him or her 68 or the person is arrested for another Service offence . Person in Custody to be Cautioned and Informed of Rights 3.80 When a person is in custody in respect of a Service offence, an investigating officer is required, before the investigating officer asks the person any question or to do anything in relation to the offence: a. b. to tell the person the investigating officers name and rank; to caution the person that the person is not obliged to answer any questions or to do anything asked of the person, and that anything said by the person may be used in evidence; and to inform the person that the person may consult a legal practitioner, or communicate 69 with a relative or friend, if the person wishes to do so .

c.

3.81 An investigating officer is not obliged to caution the person or to inform the person of the persons right to consult a legal practitioner, etc: a. if the person has already been cautioned, etc, at or since the beginning of the interview, under s.101D(2) of the DFDA (which deals with the caution, etc, to be given to a person when an investigating officer has decided to charge a person with a Service offence or to seek the issue of a summons against that person); or

64

DFDA s.95(4), (5) DFDA s.95(8), (9) DFDA s.97(1), (2) DFDA s.97(5) DFDA s.97(4) DFDA s.101C(1), (2)

65

66

67

68

69

ADFP 201 VOLUME 1 314 b. when asking a person to take part in an identification parade .
70

3.82 An investigating officer should take reasonable steps to ensure that other investigating 71 officers comply with these requirements. Access to Friend, Relative and Legal Practitioner 3.83 If a person is in custody in respect of a Service offence, an investigating officer concerned in the investigation of the offence must, before starting to question the person, inform the person that he 72 or she may : a. communicate, or attempt to communicate, with a friend or relative to inform that person of his or her whereabouts; and communicate, or attempt to communicate, with a legal practitioner of the persons choice and arrange, or attempt to arrange, for a legal practitioner of the persons choice to be present during questioning.

b.

3.84 The list of legal officers who are able to assist persons in custody is held by police members 73 and legal officers . 3.85 After the investigating officer has informed the person of this right, the investigating officer must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning. 3.86 If a person in custody in respect of a Service offence wishes to communicate with a friend, relative or legal practitioner, the investigating officer holding the person in custody must: a. as soon as practicable, give the person reasonable facilities to enable the person to do so; and in the case of communication with a legal practitioner, the investigating officer must allow the legal practitioner or the clerk of the legal practitioner to communicate with the person in circumstances in which, as far as practicable, the communication will not be 74 overheard .

b.

3.87 Where a person in custody in respect of a Service offence arranges for a legal practitioner to be present during the questioning, the investigating officer holding the person in custody must: a. allow the person to consult with the legal practitioner in private and provide reasonable facilities for that consultation; and allow the legal practitioner to be present during the questioning and to give advice to the person, but only while the legal practitioner does not unreasonably interfere with 75 the questioning .

b.

70

DFDA s.101C(2), (3) DFDA s.101D(1)(b) DFDA s.101E(1) DFDA s.101F(2) DFDA s.101E(2) DFDA s.101E(3)

71

72

73

74

75

ADFP 201 VOLUME 1 315 3.88 Where a person is in custody in respect of a Service offence, the investigating officer is to comply with the provisions of DFDA s.101F(3) (which requires an investigating officer to provide the person in custody with a list of legal officers) if applicable and if the exigencies of the service permit. Exceptions to Access to Friend, Relative and Legal Practitioner Provisions 3.89 The outlined requirements relating to access to friends and relatives, do not apply if, and so long as, the investigating officer has reasonable grounds for believing that: a. compliance with the requirements is likely to result in an accomplice of the person taking steps to avoid apprehension; or compliance with the requirements is likely to result in the concealment, fabrication or destruction of evidence or the intimidation of a witness; or if the requirement relates to the deferral of questioning, the questioning is so urgent, having regard to the safety of other people, that it should not be delayed by 76 compliance with the requirement .
77

b.

c.

3.90 In exceptional circumstances , the requirements relating to allowing the person to have access to a legal practitioner, will also be avoidable if, and so long as, the investigating officer has reasonable grounds for believing that the matters listed at paragraph 3.89 have been satisfied, and: a. an appropriate officer has authorised the non-compliance and has made a record of 78 the investigating officers grounds for belief ; and exceptional circumstances exist for not complying with the requirements and the investigating officer reverts to complying as soon as the circumstances allow.

b.

3.91 If the need to continue with the investigation results in preventing or delaying the person communicating with a legal practitioner of his or her choice; or preventing or delaying a legal practitioner of the persons choice attending at any questioning, the investigating officer must offer the services of another legal practitioner and if the person accepts the offer, make the necessary 79 arrangements . 3.92 An appropriate officer for the purpose of authorising the investigating officer to proceed without complying with the requirements relating to access to legal practitioner is: a. if the person in custody is a member of the Australian Navya member of the Australian Navy holding the rank of commander or a higher rank; if the person in custody is a member of the Australian Armya member of the Australian Army holding the rank of lieutenant colonel or a higher rank; or if the person in custody is a member of the Australian Air Forcea member of the 80 Australian Air Force holding the rank of wing commander or a higher rank .

b.

c.

76

DFDA s.101G(1) DFDA s.101G(3) DFDA s.101G(4) DFDA s.101G(2) DFDA s.101G(5)

77

78

79

80

ADFP 201 VOLUME 1 316 Treatment of Person in Custody 3.93 A person in custody in respect of a Service offence is to be treated with humanity and with 81 respect for human dignity; cruel, inhuman or degrading treatment is prohibited. 3.94 Where a person in custody asks for medical treatment for an illness or injury or the investigating officer reasonably believes that the person requires such treatment, the investigating 82 officer is required to take reasonable action to have the medical treatment provided. 3.95 If the person in custody is a member of the Defence Force and the terms of the governing Defence legislation and Defence Instructions are complied with, the cost of such treatment will be 83 borne by the Commonwealth. If the person is a defence civilian, the person may be entitled to free medical treatment: a. b. if the person is a dependant of a member of the Defence Force ; or by reason of the terms and conditions of his or her employment.
85 84

3.96 A person in custody is to be provided with reasonable refreshments and reasonable access to toilet facilities and, before being brought before a Service tribunal, is to be provided with facilities to 86 wash or shower and the opportunity to obtain, and change into, other clothes. Fingerprints, Voice Recordings, Handwriting, Photographs 3.97 Where a person is in custody in respect of a Service offence, prints of the persons hands, fingers, feet or toes, recordings of the persons voice, samples of the persons handwriting or photographs of the person may be taken in the following circumstances: a. if an investigating officer reasonably believes that it is necessary for the purpose of establishing who the person is, or of identifying the person as the offender or of providing evidence relating to the offence; if the investigating officer reasonably believes that the person has committed another Service offence and the prints, etc are to be taken for the purpose of identifying the person as the offender or of providing evidence relating to that offence; if an authorised officer has given approval for the investigating officer to take the prints etc; or if the person consents in writing.
87

b.

c.

d.

3.98 An authorised person may also give approval for an investigating officer to take the prints, 88 etc of a person against whom proceedings have been instituted by summons.

81

DFDA s.101H(1), (2) DFDA s.101H(3) DFR 58F. Determination made under s.58B of the Defence Act 1903 See, for example, in the case of public servants of the Commonwealth and their dependants, determinations relating to overseas service. DFDA s.101H(4), (5) DFDA s.101L(1), (3), (4)

82

83

84

85

86

87

ADFP 201 VOLUME 1 317 3.99 An application by an investigating officer to an authorised officer may be made in person or, if that is not practicable, by telephone and the authorised officer may approve the application if the authorised officer thinks it proper in all the circumstances to do so. If approval is given by telephone, the authorised officer is required to cause the instrument of approval to be sent to the investigating 89 officer. 3.100 90 etc. An investigating officer may use such reasonable force as is necessary in taking the prints,

3.101 The foregoing powers are not exercisable by an investigating officer who is a member of the 91 Defence Force unless the investigating officer is an officer or warrant officer. 3.102 An investigating officer is prohibited from taking prints, etc of a person in custody in 92 connection with a Service offence except in accordance with the DFDA. Identification by Photographs 3.103 Where a suspect is in custody in respect of a Service offence, an investigating officer is prohibited from showing photographs to a witness for the purpose of identifying the offender unless the suspect has refused to take part in an identification parade or the holding of an identification 93 parade would be unfair to the suspect or impracticable. 3.104 When an investigating officer shows photographs to a witness for the purpose of identifying an offender, the investigating officer is required to do so with fairness to the suspect, to keep a record of the photographs shown and, upon application by the suspect, to provide a copy of the record and 94 permit the suspect to inspect the photographs shown to the witness. 3.105 Where a suspect is in custody in respect of a Service offence, identikit pictures are not to be shown to a witness and if the suspect comes into custody after such a picture has been shown to a 95 witness, the investigating officer is to arrange an identification parade unless it is impracticable. 3.106 Where identikit pictures are shown to a witness before a person is charged with an offence, the investigating officer is required, upon application by the person after the person is charged, to provide the person with particulars of any pictures shown and any comments made by the witness 96 with regard to the pictures. 3.107 Where there is more than one suspect but not all are in custody, an investigating officer is not debarred from showing photographs or identikit pictures to a witness for the purpose of identifying 97 the suspects not in custody.

88

DFDA s.101L(3)(d), (4) DFDA s.101L(3)(a), (b), (4), (5) DFDA s.101L(6) DFDA s.101L(1), (3) DFDA s.101L(2) DFDA s.101M(1) DFDA s.101M(2) DFDA s.101M(3), (5) DFDA s.101M(6) DFDA s.101M(7)

89

90

91

92

93

94

95

96

97

ADFP 201 VOLUME 1 318 Medical Examination 3.108 Where a person is in lawful custody in respect of a Service offence, an investigating officer may arrange for a medical practitioner to examine the person for the purpose of securing evidence relating to the offence if the investigating officer reasonably believes that the examination is likely to provide such evidence and the person has consented in writing or, in relation to drug offences, an 98 authorised officer has approved in writing . 3.109 Arrangements may similarly be made for a specimen to be taken from such a person for the 99 purpose of having the specimen analysed or otherwise examined . 3.110 Application to an authorised officer seeking approval may be made by an investigating officer in person or, if impracticable, by telephone. Any resulting approval must be by instrument in writing 100 which must be forwarded to the investigating officer . 3.111 An authorised officer may give his or her approval to the medical examination or taking of a specimen, if the authorised officer is satisfied that the investigating officer has reasonable grounds for believing that the medical examination or the specimen analysis is likely to provide evidence relating to a service offence and the authorised officer believes that the medical examination or specimen analysis is reasonably necessary for the purpose of obtaining evidence relating to the presence or 101 102 absence of a narcotic substance in the blood or urine of the person . 3.112 In considering whether to give approval to the medical examination or taking of the specimen, an authorised officer may take into account the physical health of the person in custody. 3.113 In certain circumstances, a person who without reasonable excuse refuses or fails to submit to a medical examination or the taking of the specimen or refuses or fails to do an act reasonably 103 necessary to enable the specimen to be taken, is guilty of an offence . 3.114 The investigating officer may use such reasonable force as is necessary to take the person 104 to the medical practitioner. 3.115 The person is, on request, to be provided with a copy of the report of the examination.
105

3.116 Where a person is examined, etc and no proceedings are instituted within 12 months or the person is acquitted, the person having the report of the examination and any investigating officer 106 having a copy of it is required to destroy it.

98

DFDA ss.101Q(1), 101(4) and 101(4A) DFDA s.101Q(2) DFDA ss.101(3) and 101(5) Narcotic substance has the same meaning as in the Customs Act 1901 DFDA ss.101Q(4) and 101Q(4A) See Chapter 4 para. 4.67 DFDA s.101Q(8) DFDA s.101Q(11) DFDA s.101Q(9)

99

100

101

102

103

104

105

106

ADFP 201 VOLUME 1 319 Effect of Pre-conviction Custody 3.117 A member of the Defence Force while held in custody under the DFDA before conviction is released from any requirement to perform the duties of his or her office but being in custody does not 107 affect the members pay. SEARCHES Introduction 3.118 The circumstances in which an investigating officer may search a person, the clothing the person is wearing and property in the persons immediate control and may seize anything that the investigating officer believes on reasonable grounds to be connected with an offence are briefly as follows: a. b. c. d. with the consent of the person;
108

upon taking the person into custody; in emergencies;

110

109

or

under a warrant.

111

3.119 In the circumstances outlined above, an investigating officer may enter and search Service land or premises on Service land or any Service ship, aircraft or vehicle. The investigating officer may also enter and search any non-Service ship, aircraft or vehicle on Service land. A reference to Service land or premises on Service land does not include land or premises used as married quarters in 112 Australia. Generally, the powers of search of investigating officers are restricted to the search of persons who are defence members or defence civilians or to the search of Service land, premises, ships, aircraft or vehicles. Search of Private Premises, Vehicles, Etc 3.120 An investigating officer may enter and search private premises, including married quarters, if and only if the investigating officer first obtains the consent in writing of the occupier of the premises. Similarly, the investigating officer may enter and search non-Service ships, aircraft and vehicles not on Service land if and only if the investigating officer first obtains the consent in writing of the person in charge of the ship, aircraft or vehicle. Search with Consent 3.121 Before the investigating officer obtains the consent of a person to a search or an entry and search, the investigating officer is to inform the person that the person may refuse to give his or her consent. If the person gives his or her consent, the investigating officer is required to ask the person to

107

This needs to be distinguished from the situation where a member is charged with an offence and is suspended from duty. See paragraphs 3.34-3.38 DFDA s.101ZA DFDA s.101P DFDA s.101Z DFDA s.101X DFDA s.101W(2); 101V(2), (3)

108

109

110

111

112

ADFP 201 VOLUME 1 320 acknowledge, on the prescribed form, that he or she has been so informed, that he or she voluntarily 113 consented and the date and time of consent. Search on Being Taken into Custody 3.122 An investigating officer, on taking a person into lawful custody, may search the person, the clothing that the person is wearing and property in the persons immediate control if the investigating officer believes on reasonable grounds that it is necessary to do so: a. to find out whether the person has on him or her a weapon or other article capable of being used to inflict bodily injury or to escape from custody; or to prevent the concealment, loss or destruction of evidence of the offence.
114

b.

3.123 An investigating officer may seize any article of the kind described, or anything the investigating officer believes on reasonable grounds to be connected with the commission of an 115 offence, found as a result of the search. 3.124 An investigating officer exercising such a power of search is not authorised to require the 116 person to remove any clothing that the person is wearing. Search in Emergency 3.125 The powers of an investigating officer (who is not a constable) in the emergency circumstances described below are restricted to the search of persons who are defence members and defence civilians and property which is on Service land, premises on Service land (other than married quarters in Australia), Service ships, aircraft or vehicles; or ships, aircraft or vehicles on Service 117 land. 3.126 An investigating officer may search a person, the clothing that the person is wearing and property in the persons immediate control if the investigating officer suspects the person to be carrying anything connected with an offence and may seize anything found in the course of the search if: a. the investigating officer believes on reasonable grounds that it is necessary to do so to prevent the concealment, loss or destruction of anything connected with the offence; and the circumstances are of such seriousness and urgency as to require and justify 118 immediate search without warrant.

b.

3.127 Premises or a vehicle or vessel may be entered and searched and property seized in the 119 same circumstances.

113

DFDA s.101ZA(1), (2); DFD reg 43 DFDA s.101P(1) DFDA s.101P(3) DFDA s.101P(2) DFDA ss.101Z(1); 101V(2), (3) DFDA s.101Z(1)(a), (c), (d) DFDA s.101Z(1)(b), (c), (d)

114

115

116

117

118

119

ADFP 201 VOLUME 1 321 3.128 Where an investigating officer believes on reasonable grounds that a person is, without lawful authority or reasonable excuse, carrying an offensive weapon or anything connected with a serious Service offence, the investigating officer may stop and search the person and seize any such 120 weapon or thing found on the person. 3.129 A vehicle or vessel may be stopped, entered and searched and property seized in the same 121 circumstances. 3.130 In a search in an emergency an investigating officer of the same sex as the suspect may 122 require the suspect to remove any clothing that he or she is wearing. Search under Warrant 3.131 In certain circumstances, search warrants may be issued authorising investigating officers to search persons, property, vehicles, etc for things connected with a Service offence. The power to 123 issue a warrant is vested in an authorised officer. 3.132 Before a search warrant may be issued, strict requirements have to be met, as follows: a. An information on oath or affirmation must be laid before an authorised officer alleging that there are reasonable grounds for suspecting that a thing of a particular kind connected with a particular Service offence may be found on a defence member or defence civilian, or in clothing being worn by, or property under the immediate control of, a defence member or defence civilian, and the information must set out those grounds; Such further information as the authorised officer may require concerning the grounds on which the issue of the warrant is being sought must be provided to the authorised officer either orally or by affidavit; and The authorised officer must be satisfied that there are reasonable grounds for issuing 124 the warrant.

b.

c.

3.133

A search warrant is required to state: a. b. c. d. the purpose of the warrant and the nature of the offence; the kinds of things authorised to be seized; the date of expiry of the warrant; in the case of a warrant for the search of land, premises, ships, aircraft or vehiclesat what times entry is authorised.

3.134 The maximum period for which a search warrant may be issued is one month from the date 125 of issue.

120

DFDA s.101Z(2) DFDA s.101Z(3) DFDA s.101Z(4), (5) DFDA s.101X(1), (2) DFDA s.101X(1), (2), (3) DFDA s.101X(4)

121

122

123

124

125

ADFP 201 VOLUME 1 322 3.135 In cases of urgency, application for the issue of a search warrant may be made by telephone after an information is made out (although it may not have yet been sworn). The issuing officer may issue the search warrant on the basis of the information (and any further information the issuing officer may require) being given to the issuing officer over the telephone. If the issuing officer decides to issue the warrant, the issuing officer must make out and sign a search warrant and read out the particulars to the investigating officer, who is to complete a warrant in similar terms endorsing on it the 126 name of the issuing officer and the date and time when the warrant was signed. 3.136 Within one day of the expiry date of the warrant, the investigating officer is to send the investigating officers copy of the search warrant and the information (duly sworn or affirmed) to the 127 issuing officer for attachment to the issuing officers copy of the warrant. 3.137 An investigating officer, in executing a warrant to search a person, their clothing or property under their control may require that person to remove clothing that he or she is wearing but a person 128 may only be searched by a person of the same sex. 3.138 If an investigating officer, in executing a search warrant, finds something not specified in the warrant but that the investigating officer reasonably believes to be connected with the Service offence in question or another Service offence and that it should be seized to prevent its concealment, loss or destruction or its use for the commission of a further Service offence, the investigating officer may 129 seize it.

126

DFDA s.101Y(1), (2), (3), (4) DFDA s.101Y(5), (6) DFDA s.101X(6), (7) DFDA s.101X(5)

127

128

129

INTRODUCTION TO REVISED DISCIPLINE LAW MANUAL VOLUME 1 CHAPTER 4 AS AT 18 JAN 02

Introduction 1. This document introduces the revised Discipline Law Manual (DLM) Volume 1
REVISED CHAPTER COMMENCES ON PAGE

Chapter 4 (THE

OF THIS DOCUMENT).

The

chapter has been revised to take into account the amendments to Defence Force Discipline Act (DFDA) offences brought about by the new Commonwealth Criminal Code. 2. These changes apply to all Commonwealth criminal legislation including the

DFDA and are designed to codify the general principles of criminal responsibility. The revised DLM Vol 1 Chap 5 contains a detailed analysis of the principles of criminal responsibility. However, the following abstract is all that is needed for the drafting of charges and proving the elements of each offence. Criminal Responsibility 3. In its narrowest sense, criminal responsibility means liability to punishment. To say that a person is criminally responsible means that he or she is liable to punishment for having committed an offence. Proof of commission of an offence requires proof of all parts or elements of the offence. 4. Under the DFDA, all offences have been broken up into such parts or elements.

The elements are listed as proofs for each charge in DLM Vol 1 Chap 4. The Criminal Code does not change this process. Under the Criminal Code, DFDA offences still consist of parts or elements but these parts are now known as physical elements and fault elements. 5. Physical elements are: a. conduct (ie, the accuseds acts or omissions);

REVISED DISCIPLINE LAW MANUAL VOL 1 CHAPTER 4 AS AT 18 JAN 02

b.

a circumstance in which conduct occurs (ie, the circumstances surrounding the accuseds acts or omissions); or

c. 6.

a result of conduct (ie, the results of the accuseds acts or omissions).

Fault elements are: a. Intention (on the part of the accused), b. Knowledge (on the part of the accused), c. Recklessness (on the part of the accused), or d. Negligence (on the part of the accused).

7.

In order to find a person guilty of an offence, it is necessary to prove: a. b. the existence of the relevant physical elements of the offence; and one fault element for each physical element that requires a fault element, unless the law creating the offence expressly provides otherwise.

8.

In other words, a person who brings about the external physical elements of an

offence together with the appropriate fault element (without justification or excuse) commits the offence and is liable to punishment. The terms intention, knowledge, recklessness and negligence now have the statutory definitions found in the Criminal Code. The definitions of recklessness and negligence are amplified by DFDA s.11. Intention 9. Section 5.2 of the Criminal Code defines intention as follows: 5.2 (1) (2) Intention A person has intention with respect to conduct if he or she means to engage in that conduct. A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

REVISED DISCIPLINE LAW MANUAL VOL 1 CHAPTER 4 AS AT 18 JAN 02

REVISED DISCIPLINE LAW MANUAL VOL 1 CHAPTER 4 AS AT 18 JAN 02

(3) 10.

A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

Unless the legislation expressly provides otherwise, intention is, by default, the

fault element for any physical element that consists only of conduct.1 This means that, if legislation provides that it is an offence if the accused commits act X, then, in the absence of any express provision to the contrary, the prosecution will have to prove that the accused intended to do X before the accused can be convicted of that offence. For example, in the offence under DFDA s.36A(1) Unauthorised discharge, the prosecution must prove that the accused discharged a weapon. The act of discharging a weapon is a physical element of conduct but the offence is silent as to any fault element for this physical element. Upon application of s.5.6(1) of the Criminal Code, by default the relevant fault element is intention. Hence, the prosecution must prove that D intended to discharge the weapon. 11. When intention appears in the statutory language defining crimes, it is usually,

though not exclusively, used with respect to a result (s.5.2(3) of the Criminal Code). For example, DFDA s.15A(1) Causing the capture or destruction of a service ship etc, requires an intention to produce the result of causing the capture or destruction by the enemy of a service ship, service aircraft or service armoured vehicle. 12. See Chapter 5 for further discussion of the Criminal Code definition of intention.

Knowledge 13. Section 5.3 of the Criminal Code defines knowledge as follows: 5.3 Knowledge

A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events. 14. Under the Criminal Code an accused cannot have knowledge of conduct, but

only of circumstances or results. For example, under DFDA s.48(2) Looting, an

See Criminal Code, s.5.6(1).

REVISED DISCIPLINE LAW MANUAL VOL 1 CHAPTER 4 AS AT 18 JAN 02

REVISED DISCIPLINE LAW MANUAL VOL 1 CHAPTER 4 AS AT 18 JAN 02

offence is committed if a person receives looted property knowing that its obtaining amounted to looting under DFDA s.48(1): this is knowledge of a circumstance. 15. See Chapter 5 for further discussion of the Criminal Code definition of

knowledge. Recklessness 16. Section 5.4 of the Criminal Code defines recklessness as follows: 5.4 (1) (a) Recklessness A person is reckless with respect to a circumstance if: he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. A person is reckless with respect to a result if: he or she is aware of a substantial risk that the result will occur; and having regard to the circumstances known to him or her, it is unjustifiable to take the risk. The question whether taking a risk is unjustifiable is one of fact. If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. (a) (b)

(2)

(3) (4)

Commentary on Recklessness 17. This definition is applicable to all offences under the DFDA that refer to a fault

element of recklessness either expressly or by virtue of the default provisions of the Criminal Code. 18. It is important to recognize that the word recklessness has been, and is For offences

currently, used in many different ways in different legal contexts. recklessness unless they refer to section 5.4 of the Criminal Code. 19.

committed on or after 5 December 2001, do not rely on materials relating to

Substantial means of substance, but does not require that the risk be

exceptional or unusual.

REVISED DISCIPLINE LAW MANUAL VOL 1 CHAPTER 4 AS AT 18 JAN 02

REVISED DISCIPLINE LAW MANUAL VOL 1 CHAPTER 4 AS AT 18 JAN 02

20.

The taking of a risk is unjustifiable if, in all the circumstances, a reasonable

person with the accuseds knowledge of those circumstances would not have proceeded with his conduct because of that risk. 21. See Chapter 5 for further discussion of the Criminal Code definition of

recklessness. Negligence 22. Section 5.5 of the Criminal Code defines negligence as follows: 5.5 Negligence

A person is negligent with respect to a physical element of an offence if his or her conduct involves: (a) (b) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and such a high risk that the physical element exists or will exist;

that the conduct merits criminal punishment for the offence. Commentary on Negligence 23. The required standard of care will be determined by the particular action to be

performed. If, for example, the action is to flag unexploded ordnance on a firing range, the standard of care required will be that of a reasonable person who possesses the accuseds experience and training and is required to perform that particular function. Failure to flag an unexploded shell lying on the surface in plain view would be a great falling short of that standard of care: failure to flag a shell that has gone down a rabbit hole with no obvious disturbance to the soil would be a much lesser failure to meet the standard of care, possibly to the extent of not being negligence at all. 24. The standard of care is not the simple civil standard of doing something that a

reasonable person would not do in the circumstances: section 5.5 requires a great falling short of the standard of care and a high risk that a given physical element exists or will exist.

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25.

The standard of care in each case is to be determined as that which a

reasonable person who was a member of the ADF with the same training and experience as the member charged, and was engaged in the relevant activities in the course of the members duty or in accordance with the requirements of the ADF: DFDA subsection 11(2). However, whilst a service tribunal must have regard to these factors, they do not alter the definition of negligence in section 5.5 of the Criminal Code: DFDA subsection 11(3A). 26. Negligence also requires that the accuseds conduct entailed a high risk that

some particular result would occur (ie. the failure to flag the shell, it is not detected and subsequently explodes). It is essential to be able to identify the element of high risk. 27. If paragraphs (a) and (b) of the definition of negligence are made out, it follows

that the accuseds conduct merits criminal punishment: this is not an additional matter that needs to be proved by the prosecution. 28, See Chapter 5 for further discussion of the Criminal Code definition of

negligence. Strict Liability 29. The concept of a criminal offence usually incorporates a fault element on the part

of the accused. Some offences do not require proof of a fault element either for the whole of the offence or a particular element of the offence. Where it is not necessary to prove a fault element, strict liability is regarded as applying to the offence or one of its elements. 30. In the DFDA where an offence contains a strict liability element, or the entire

offence is one of strict liability, this is clearly indicated in the offence provision and in the Chapter 4 proofs for the charge. 31. As strict liability means that no fault element is required to be proven on the part

of the accused, the offences to which it applies tend to be the less serious disciplinary offences (for example, section 24 Absence without leave, section 29 Failure to

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comply with lawful general order). Disciplinary offences (those military offences which have no civilian criminal offence equivalents) have a different purpose than criminal offences. They are designed to assist in the maintenance of discipline. Because of their special role, it is appropriate that these offences are ones of strict liability. Defences 32. The amended DFDA continues to contain statutory defences for certain offences.

Where these have been specified, the onus of proving them rests on the defendant. That means the defendant must prove the existence of the defence on the balance of probabilities (for example, s.23 Absence from duty has a statutory defence in s.23(4) of reasonable excuse). 33. In addition, there are a number of statutory defences in the Criminal Code. mistake of fact; claim of right; intervening conduct or event; duress; sudden or extraordinary emergency, self-defence; and lawful authority. 34. These defences are found in Division 9 and 10 of the Criminal Code. These

These defences generally apply to all DFDA offences. They include:

defences existed in various forms under the current DFDA regime based on common law principles. They have now been codified in the Criminal Code. 35. Detailed discussion of these defences is set out in the revised Chapter 5 of DLM

Vol 1. If a defendant raises one of these defences to deny criminal responsibility, that is, to deny the offence, then he or she must establish what is called an evidential burden. This position differs from the burden a defendant has if he or she wishes to rely on one of the statutory defences in the DFDA such as the one referred to above in s.23. For a statutory defence in the Criminal Code, the defendant must merely adduce

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or point to evidence that suggests a reasonable possibility that the matter (ie. the evidence supporting the defence) exists or does not exist. This is a lesser burden than is required for the statutory defences in the DFDA. Once this has occurred, the prosecution must then disprove the matter beyond reasonable doubt. Format and Proof of Charges 36. In the material that follows, each offence provision has been set out together with

a specimen charge and its proofs using the same format as the currently published version of Chapter 4. 37. The main difference that you will observe between the currently published

version of Chapter 4 and the material that follows is that the number of proofs for each of the charges has increased so that each physical element and the corresponding fault element is specified. This does not mean that it is necessary to acquire more evidence to support a charge or that proving a charge will be more difficult. It just means that each specific part of the charge has been more clearly divided into proofs. 38. For each charge, you will see prosecution proofs, defence proofs (if there is a

statutory defence), and clearly marked physical and fault elements. The marking of physical and fault elements simply indicates the division between the external factors that need to be proved by the prosecution and a fault element on the part of the accused that also needs to be proved by the prosecution. 39. If you have any doubts about these changes, seek legal advice.

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CHAPTER 4

OFFENCES, CHARGES AND THEIR PROSECUTION

PROSECUTION OF OFFENCES

In addition to their liability under the ordinary criminal laws of the Commonwealth of Australia, the States and Territories, members of the Australian Defence Force (ADF) are subject to the Defence Force Discipline Act (DFDA). When serving overseas, members may also be subject to the criminal law of their host nation. The decision to prosecute members for criminal offences in Australia (other than offences against the DFDA) will usually be made by relevant Commonwealth, State or Territory police or Directors of Public Prosecutions. The decision to charge a member with a Service offence under the DFDA is a command decision. At the lower rank levels, and in the case of less serious offences, the decision will be made by appropriate unit or command authorities who are best placed to determine the discipline needs of their unit, ship or establishment. Guidance to commanders in making that decision is found in Defence Instruction (General) Personnel 45-2 ADF Prosecution Policy. Some of the factors to be considered before commencing a prosecution include: Whether or not the admissible evidence available is capable of establishing each element of the offence; Whether or not there is a reasonable prospect of conviction by a Service tribunal properly instructed by the law; and Whether or not discretionary factors nevertheless dictate that charges should not be laid in the public interest.

The decision whether or not to prosecute or to proceed with a charge is the most important step in the prosecution process. A wrong decision to prosecute, or a wrong decision not to prosecute, may undermine confidence in the military discipline system. It is important therefore that these decisions be made carefully, impartially and without undue delay.

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OFFENCES GENERALLY In some circumstances minor infringements of discipline may be dealt with by issuing an offender with an Infringement Notice rather than commencing formal proceedings before a Service tribunal. Guidance as to when to deal with matters by way of discipline officers can be found in Chapter 13. This chapter provides guidance on the offences with which a member of the ADF or other person who is subject to the DFDA may be charged and convicted by a Service tribunal. Generally, these offences are created by Part Ill of the DFDA and fall into the following categories: offences relating to operations against the enemy; offences relating to mutiny, desertion and unauthorised absence; offences relating to insubordination and violence; offences relating to performance of duty; offences relating to ships, vehicles, aircraft and weapons; offences relating to property; offences relating to arrest, custody and proceedings before service tribunals; miscellaneous offences including custodial offences; and offences based on Territory offences (offences against the ordinary law which are triable by service tribunals).

Other offences are created by section 101QA (the offence of refusing to submit to a medical examination, etc) and DFD Regulation 25B (offence relating to the use of radar devices). Each of the offences created by the DFDA and DFD Regulations is discussed in some detail in the following paragraphs and for each offence a specimen charge is included.

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Statutory Alternative Offences Section 142 of the DFDA deals with statutory alternative offences2. That section provides, in effect, that where a Service tribunal acquits a person of a Service offence the tribunal may convict that person of a statutory alternative offence provided that it is satisfied beyond reasonable doubt that the person is guilty of that offence. The purpose of s.142(2) is to avoid the necessity of listing charges in the alternative on a charge sheet (however, this option is still available in appropriate casessee discussion below). If the accused is charged with, and pleads not guilty to, an offence that has a statutory alternative, then he or she should be made aware, after entering the plea, that statutory alternatives may be considered. Alternative offences to certain offences against the DFDA (other than Territory offences) are specified in Schedule 6 of the Act. For convenience they are also set out in the discussion of each offence in the Offences section of the chapter. For example, an offence against s.24 (absence without leave) is an alternative to an offence against s.22 (desertion).3 In an appropriate case a person may be convicted of attempting to commit a Service offence, as an alternative to the Service offence which has been alleged.4 As to what constitutes an attempt see s.11.1 of the Criminal Code Act 1995. If the offence alleged is a Territory offence under s.61 of the DFDA (ie an offence against the ordinary law) the person may be convicted of an alternative offence if, in a trial in a civil court in the Jervis Bay Territory, the court could convict the person of the same alternative offence. For example, on a charge of murder under s.61 of the DFDA and s.12 of the Crimes Act (ACT) in its application to the Jervis Bay Territory, it is open

That is, alternative offences which are provided for by legislation. This is to be contrasted with alternative charges which are set out in the charge sheet. See discussion at paragraph 4.10. DFDA s 142(1) and Schedule 6. DFDA s 142(1)(b).

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to a Service tribunal to convict on the lesser offence of manslaughter.5 Although statutory alternatives exist under the Crimes Act (ACT) they generally apply to offences not likely to be tried by Service tribunals or to offences which are likely to be tried only outside Australia, eg. murder or sexual offences. Where a Territory offence is charged, it is necessary to examine the relevant legislation to ascertain whether there is a statutory alternative to that offence. Other Alternative Offences As discussed above, s.142 of the DFDA is designed to avoid the necessity for alternative charges to appear on the one charge sheet and therefore alternative charges should not normally be preferred against an accused. However, where there is no statutory alternative offence for a particular offence but the facts of the case appear to support two charges, it is permissible to charge the member with both offences, the second being expressed to be in the alternative. For example: First Charge: DFDA s.33(c) Obscene conduct Being a defence member at Main Street Singleton on 25 April 2002, 342786 Private J. Smith engaged in conduct that was obscene, by urinating in the gutter within the view of Joan Smith. Second Charge (in the Alternative to the First Charge)DFDA s.60 Prejudicial Conduct Being a defence member at Main Street Singleton on 25 April 2002, 342786 Private J. Smith engaged in conduct that was likely to bring discredit upon the Defence Force by urinating in the gutter whilst wearing uniform.

DFDA s.142(1)(c), (d).

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CHARGING SERVICE OFFENCES General Where an authorised member of the ADF believes on reasonable grounds that a person who is a defence member has committed a Service offence the authorised member may: charge the person with a Service offence, cause the person to be given a copy of the charge, and order the person to appear before a summary authority at a specified time and place for a hearing.6

An authorised member for the above purposes means a member of the ADF authorised in writing by a commanding officer to lay charges.7 In most situations where minor Service offences are alleged, the person who investigates the offence will also be authorised to lay charges. A member should normally lay charges only against an offender who is junior to him or her in rank. Where all members authorised to lay charges are junior to the offender, the charge may be laid by an authorised officer of another superior unit or formation. Vetting of Charges In general, all charges should be vetted for accuracy and sufficiency by a coxswain, regimental sergeant major (RSM) or warrant officer disciplinary (WOD). However, charges drafted by Service police or legal officers should only be amended in consultation with the drafter. There are a number of charges under the DFDA where legal advice should always be sought before charges are preferred. These include: Offences involving dishonesty eg, possession of property unlawfully obtained, theft; and receiving; Falsifying Service documents;

DFDA s.87(1). DFDA s.87(6); DLM Vol 2 Part 12 Form 3.

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Dealing in or possession of narcotic goods; Assaults; Offences involving proof of negligence or recklessness; Any offence arising out of a Service Police Report; and Any other offence in which complex defences or evidence exist.

Limitations on Charging Service Offences General. A person must be charged as soon as practicable after the investigating officer, or another person authorised to lay charges, decides that a service offence has been committed and that there is sufficient evidence to support the charge against the alleged offender. Persons in Custody. In cases where a member arrests an offender, or receives into custody a person who has already been arrested, that member must take all reasonable steps to ensure that the arrested person is delivered into the custody of the officer who is responsible to the commanding officer for such custody. The commanding officer is to ensure that the arrested person is charged within 24 hours after the delivery into custody.8 Time Limitations.9 Generally, a person is not to be charged with an offence against the DFDA if a period of five years has elapsed from the time when the offence is alleged to have been committed. In calculating the five year period any period during which the alleged offender was a prisoner of war, absent without leave or serving a sentence of imprisonment should be disregarded. Where a Territory offence (s.61) is charged, the time limit is that which applies in a civil court in the Jervis Bay Territory. Members Ceasing to Serve. A person who ceases to be a member of the Defence Force is not to be charged with a Service offence unless the person is charged within 6

DFDA s.95(2). See paras. 2.7 to 2.9 and DFDA s 96.

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months of ceasing to be a member and the offence for which the person could or would be charged carries a maximum punishment of imprisonment for a period not less than 2 years.10 Members Transferred to the Reserve Forces. A member who has transferred to the Reserve Forces does not cease to be a member of the Defence Force. Accordingly, the time limitation placed on charging members with Service offences contained in DFDA s.96(6) does not apply to members transferring to the Reserve Force. Nevertheless, the decision to proceed with charges must be made with respect to the Service nexus test; that the disciplinary action substantially serves the purpose of maintaining or enforcing Service discipline. The greater the period of time that has elapsed since the member ceased full time Service, the weaker the nexus is likely to be. The Content of Charges A charge against an accused must be entered on a charge sheet.11 Each charge must allege one offence only and must consist of 2 parts: the statement of the alleged offence and the particulars of the act or omission constituting the offence. The statement of the alleged offence should refer to the statutory provision creating the offence, eg DFDA s.27, and a brief description of the offence, eg disobeying a lawful command. The particulars of an offence must contain a sufficient statement of the circumstances of the offence to enable the accused person to know what the prosecution intends to prove to establish that the accused committed the offence.12 The specimen charges set out in this chapter generally contain a statement of the alleged offence in conformity with Schedule 1 of the DFD Rules. Rule 9(4) of the DFD Rules provides, however, that the statement of an offence may be in any sufficient form, not necessarily the form in Schedule 1. It is therefore not mandatory to draft the

10

DFDA s.96(6). DFD Rule 8(1).

11

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statement in accordance with the form shown in Schedule 1 but any statement so drafted will be sufficient compliance with the Act. In every case the relevant section of the Act should be consulted in order to determine the elements that must be proved in order to substantiate the charge. The offences created by the DFDA are set out and discussed in the following paragraphs. Although the drafting of charges will vary according to the circumstances of each case, the accuseds name and service particulars should always be set out in full, as should be the details of any other person mentioned in the particulars of the offence. The legislative provisions on which the charge is based should be provided and the date, time and place of the alleged offence specified. An example of how a charge may be drafted is shown below: DFDA s.47C Theft Being a defence member at RAAF Base Amberley at or about 1830 hours on 6 December 20xx dishonestly appropriated property, being the sum of $495 belonging to Sergeant Alan Steven Jones A135791 with the intention of permanently depriving SGT Jones of that property.

12

DFD Rule 9(5).

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Procedure for Charging Preparation of Charge Sheet. Where an investigation has been completed and it is decided that a person should be charged, the charge should be entered on Part 1 of a Form PD 105 Summary Proceedings Report. All relevant sections of the PD105 should be completed eg: details of witnesses and person preferring the charge. Copies of written statements by all material witnesses who are likely to be called to give oral evidence in support of the charge should be attached to the Form PD 105.13 Not more than one person may be charged on the one Form PD 105.14 Method of Preferring Charges. The member authorised to lay charges is to order the offender to attend at a specified time and place. To ensure that any statements made by the offender can be used in subsequent proceedings, a caution in the form prescribed by section 101D should normally be administered to the offender prior to charges being laid. The authorised member must then15: read out the charge to the accused; hand to the accused Copy No. 3 of the Form PD 105 and the statements prepared by witnesses; advise the accused that he or she has certain rights and may make certain applications and that these are printed on the reverse of Form PD 105; advise the accused that he or she may be represented at a hearing by a member of the ADF and that he or she should make the necessary arrangements; if the accused is unable to make such arrangements and requires assistance, he or she should report his or her difficulties to the person or persons responsible for arranging the conduct of summary proceedings, eg the Coxswain, RSM or WOD; and order the accused to appear before a designated summary authority at a specified time and place.

13

DFD Rule 15. DFD Rule 8(4). Where the accused is in custody at the time of laying the charges, a further caution is required to be administered immediately by the investgating officer in charge, who may or may not be the member laying the charges (see para. 3.22).

14

15

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Where a charge sheet contains multiple charges the accused should be ordered to appear before the summary authority who has jurisdiction to deal with the most serious of the charges, notwithstanding that some of the charges, taken alone, could be dealt with by a more junior summary authority. Summons. In exceptional circumstances it may be necessary to prepare a summons directed to a person accused of committing a service offence and requiring that person to appear before a commanding officer at a specified time and place. This procedure will generally only be necessary where a Defence civilian is to be charged. Where a summons becomes necessary, Form 46, 47 or 48 is to be used, as appropriate. Withdrawing charges. Once a charge has been preferred in accordance with the procedure outlined above, it cannot be withdrawn by the prosecutor or the person laying the charge before being dealt with by a summary authority. The summary authority must dispose of the matter in accordance with the procedures set out in Chapter 7. Amendment of Charges Under s.141A(1) of the DFDA, where a summary authority is of the opinion that for any reason the charge should be amended, the summary authority may make such amendments to the charge as the summary authority thinks necessary unless the amendment cannot be made without injustice to the accused person. An amendment to a charge includes the addition of a charge or substitution of a charge for another charge as long as the amendment is based on the same or closely related facts.16 The power to amend a charge may also be exercised by: a convening authority at any stage after the charge has been referred to the convening authority; the judge advocate of a court martial before the court martial tries a charge or at any stage of the trial of a charge; or,

16

DFDA s 141A(2).

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a Defence Force magistrate, before trying a charge or at any stage of trying a charge.

Apart from the general power of amendment provided by s.141A of the DFDA, Rule 12 of the DFD Rules creates what may be described as a slip rule in relation to charges of Service offences. Under Rule 12, a Service tribunal may amend a charge sheet at any time during the hearing of proceedings in order to correct a mistake in the name or description of the accused person or a mistake that is attributable to clerical error. Minor amendments of this nature may be done by hand in the course of the proceedings. If it becomes necessary to make any other amendment to a charge sheet after the Form PD 105 has been issued to the accused, any amendment should be considered and dealt with during proceedings before the Service tribunal. The accused should be given notice of the proposed amendment. Charges Not Proceeded with at a Summary Hearing General. A summary authority may only direct at a hearing (dealing stage) that a charge is not to be proceeded with where the authority has no jurisdiction to try the charge and where he or she considers that there is insufficient evidence to support the charge. The summary authority will have generally reached a conclusion that the evidence presented by the prosecutor is not sufficient to establish a prima facie case on one or all of the charges. A direction that a charge is not to be proceeded with does not prevent the matter being brought before the summary authority at a later time, should, for example, further evidence come to light. On the other hand, where the summary authority has jurisdiction to try the charge, he or she must proceed to try the charge or refer the matter to another authority. The summary authority cannot make a direction for a charge to not be proceeded with in those circumstances.

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DEFENCE FORCE DISCIPLINE ACT 1982 Part IIIOffences

Division 1Offences relating to operations against the enemy

Section 15 Abandoning or surrendering a post etc. (1) A person who is a defence member or a defence civilian is guilty of an offence if: (a) (b) (c) the person has a duty to defend or destroy a place, post, service ship, service aircraft or service armoured vehicle; and the person knows of that duty; and the person abandons or surrenders to the enemy the place or thing mentioned in paragraph (a).

Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.15(1) Abandoning or surrendering a (place) (post) (service ship) (service aircraft) (service armoured vehicle) Being a defence member, at.. on . having a duty to defend the munitions store at Fire Support Base Viking surrendered the store to the enemy. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element);

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that the accused had a specified duty to defend or destroy a specified place, post, service ship, service aircraft or service armoured vehicle (physical element);

d e

that the accused knew of the specified duty in (c) (fault element); that the accused abandoned or surrendered to the enemy the specified place, post, service ship, service aircraft or service armoured vehicle in (c) (physical element);

that the accuseds act or omission in (e) was intentional (fault element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.15(2) that he or she had a reasonable excuse for the conduct in (e); and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 15A Causing the capture or destruction of a service ship, aircraft or vehicle (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) (c) the person engages in conduct; and the conduct causes the capture or destruction by the enemy of a service ship, service aircraft or service armoured vehicle; and by engaging in the conduct, the person intends to bring about that result.

Maximum punishment: Imprisonment for 15 years.

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(2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.15A(1) Causing the capture or destruction of a (service ship) (service aircraft) (service armoured vehicle) Being a defence member at on .. did intentionally cause the destruction by the enemy of a service ship, namely HMAS NONSUCH, by providing enemy personnel with information concerning the deployment of HMAS NONSUCH. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element); d e that the accuseds act or omission in (c) was intentional (fault element); that the accuseds act or omission in (c) caused the capture or destruction by the enemy of a service ship, service aircraft or service armoured vehicle (physical element); f that the accused intended the result in (e) (fault element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.15A(2) that he or she had a reasonable excuse for the conduct in (c); and b if raised, the accused must prove this defence on the balance of probabilities.

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STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 15B Aiding the enemy while captured (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person is captured by the enemy; and the person serves with the enemy, aids the enemy in prosecuting hostilities or measures likely to influence morale or aids the enemy in any other manner that is not authorised by international law.

Maximum punishment: Imprisonment for life. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.15B(1) Aiding the enemy while captured Being a defence member at . on having been captured by the enemy aided the enemy in measures likely to influence morale by making a propaganda broadcast condemning the use of force by the Australian Army during peacekeeping operations in Orangeland. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c d that the accused was captured by the enemy (physical element); that the accused either knew or was reckless as to (c) (fault element);

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that the accused served with the enemy or aided the enemy in prosecuting hostilities or measures likely to influence morale or aided the enemy in any other specified manner that is not authorised by international law (physical element);

that the accuseds act or omission in (e) was intentional (fault element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.15B(2) that he or she had a reasonable excuse for the conduct in (e); and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY:

Serves with or ... aids. The accused should be charged with serving with the enemy

where there is evidence that the accused served with the armed forces of the enemy; otherwise the accused should be charged with aiding the enemy. Measures likely to influence morale. An example of this is broadcasting for the enemy on radio or television. It seems that it is immaterial whether the act was likely to influence the morale of Australian, allied or enemy forces or the civilian population, but that the act must be likely to influence morale to the enemys advantage. Not authorised by international law. The kinds of activities upon which prisoners of war may lawfully be employed by the Detaining Power are set out in Part III, Section Ill of the Geneva Convention Relative to the Treatment of Prisoners of War. Section 15C Providing the enemy with material assistance (1) A person who is a defence member or a defence civilian is guilty of an offence if the person provides the enemy with, or permits or enables the enemy to have access to, arms, ammunition, vehicles, supplies of any description or any other thing likely to assist the enemy. Maximum punishment: Imprisonment for life. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct.

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Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.15C(1) Providing the enemy with material assistance Being a defence member at . on . provided ABC, an enemy soldier, with supplies namely one 50 calibre submachine gun and six hand grenades to assist the enemy. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused provided the enemy with, or permitted or enabled the enemy to have access to, arms, ammunition, vehicles, supplies of any description or any other thing likely to assist the enemy (physical element); d e f that the accuseds act or omission in (c) was intentional (fault element); that the accuseds act or omission in (c) assisted the enemy (physical element); that the accused either knew or was reckless as to the result in (e) (fault element). DEFENCE PROOFS: a the accused may raise the statutory defence under s.15C(2) that he or she had a reasonable excuse for the conduct in (c); and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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Section 15D Harbouring enemies (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) (c) (d) the person harbours or protects another person; and that other person is an enemy person; and that other person is not a prisoner of war; and the first-mentioned person knows that the other person is an enemy person.

Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.15D(1) Harbouring enemies Being a defence member at . on . protected XYZ, an enemy person who was not a prisoner of war. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused harboured or protected another person in a specified manner (physical element); d e that the accuseds act in (c) was intentional (fault element); that the person harboured or protected in (c) was an enemy person (physical element);

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f g

that the accused knew the other person was an enemy person (fault element); that the person harboured or protected in (c) was not a prisoner of war (physical element);

that the accused either knew or was reckless as to (f) (fault element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.15D(2) that he or she had a reasonable excuse for the conduct in (c); and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Enemy person. This has a restricted meaning, see the definition in subsection 3(1). Section 15E Offences relating to signals and messages (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person is engaged on service in connection with operations against the enemy; and the person: (i) (ii) (iii) gives a signal, message or other communication that the person knows to be false; or alters or interferes with a signal, message or other communication; or alters or interferes with apparatus for giving or receiving a signal, message or other communication.

Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct.

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Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code

SPECIMEN CHARGE: s.15E(1)(b)(i) Giving false communication Being a defence member at . on . while engaged on service in connection with operations against the enemy as the watch signalman in the Main Signals Office of HMAS BALDRIC gave a false message namely message ABC 121456Z to HMAS BLACKADDER to alter course 90 degrees to starboard, knowing that the message was false. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused was engaged on service in connection with operations against the enemy (physical element); d e that the accused either knew or was reckless as to (c) (fault element); that the accused gave a false signal, message or other communication (physical element); f that the accused intends to give the signal, message or other communication that was false (fault element). DEFENCE PROOFS: a the accused may raise the statutory defence under s.15E(2) that he or she had a reasonable excuse for the conduct in (e); and b if raised, the accused must prove this defence on the balance of probabilities.

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STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.15E(1)(b)(ii) Altering or interfering with communication Being a defence member at . on . while engaged on service in connection with operations against the enemy as the watch signalman in the Main Signals Office of HMAS BALDRIC altered a signal, namely, by changing the date time group of a signal to HAMS BLACKADDER from 210130Z Dec XX to 220130Z Nov XX. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused was engaged on service in connection with operations against the enemy (physical element); d e that the accused either knew or was reckless as to (c) (fault element); that the accused altered or interfered with a signal, message or other communication (physical element); f that the accuseds act or omission in (e) was intentional (fault element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.15E(2) that he or she had a reasonable excuse for the conduct in (e); and b if raised, the accused must prove this defence on the balance of probabilities.

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STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.15E(1)(b)(iii) Altering or interfering with apparatus for giving or receiving communication Being a defence member at . on . while engaged on service in connection with operations against the enemy as the watch signalman in the Main Signals Office of HMAS BALDRIC interfered with apparatus for receiving a signal, naely, by disconnecting the power cable for the receiving unit. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused was engaged on service in connection with operations against the enemy (physical element); d e that the accused either knew or was reckless as to (c) (fault element); that the accused altered or interfered with an apparatus for giving or receiving a signal, message or other communication (physical element); f that the accuseds act or omission in (e) was intentional (fault element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.15E(2) that he or she had a reasonable excuse for the conduct in (e); and b if raised, the accused must prove this defence on the balance of probabilities.

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STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: These offences are unlikely to be committed by a defence civilian because such a person will normally not be engaged on service in connection with operations against the enemy. Section 15F Failing to carry out orders (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) the person: (i) (ii) (b) is ordered by his or her superior officer to prepare for, or to carry out, operations against the enemy; or is otherwise under orders to prepare for, or to carry out, operations against the enemy; and

the person does not use his or her utmost exertions to carry those orders into effect.

Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.15F(1) Failing to carry out orders Being a defence member at . on . Having been ordered by his superior officer, Squadron Leader ABC, to prepare for operations against the enemy by arming Tiger Moth aircraft no FC345 with Blackeye missiles by (time) on (date) at 1900 hours on 11 July 2002, did not use his utmost exertions to carry that order into effect by not completing the task by the nominated time.

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PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused was either ordered by his or her superior officer to prepare for, or to carry out, specified operations against the enemy or is otherwise under orders to prepare for, or to carry out, specified operations against the enemy (physical element); d that the accused either knew of the fact of (c) or was reckless as to the fact of (c) (fault element); e that the accused did not use his or her utmost exertions to carry those orders into effect (physical element); f that the accuseds act or omission in (e) was intentional (fault element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.15F(2) that he or she had a reasonable excuse for the conduct in (e); and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: It is highly unlikely that these offences can be committed by a defence civilian because such a person does not have a superior officer (see definition of that expression in subsection 3(1)) and cannot be under orders to carry out operations against the enemy.

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Section 15G Imperilling the success of operations (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person engages in any conduct; and the conduct imperils the success of operations against the enemy.

Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.15G(1) Imperilling the success of operations Being a defence member at . on . imperilled the success of operations against the enemy by making unauthorised calls on a mobile telephone during a period of electronic silence ordered by her commanding officer. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element); d e that the accuseds act or omission in (c) was intentional (fault element); that the accuseds act or omission in (c) imperilled the success of operations against the enemy (physical element); f that the accused either knew or was reckless as to the result in (e) (fault element).

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DEFENCE PROOFS: a the accused may raise the statutory defence under s.15G(2) that he or she had a reasonable excuse for the conduct in (c); and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 16 Communicating with the enemy (1) A person who is a defence member or a defence civilian is guilty of an offence if the person communicates with, or gives intelligence to, the enemy. Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.16(1) Communicating with the enemy Being a defence member at . on . communicated with the enemy by email dated .. concerning the electronic countermeasures equipment fitted in HMAS ENTERPRISE. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused communicated with or gave intelligence to the enemy in a specified manner (physical element);

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that the accuseds act or omission in (c) was intentional (physical element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.16(2) that he or she had a reasonable excuse for the conduct in (c); and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Intelligence. This is not defined and has its ordinary meaning of information or news. But it seems that, in the context and having regard to the definition of the enemy (see s.3(1)), the subject matter must be such as would or might be directly or indirectly useful to the enemy in the conduct of operations of war against Australia or an allied force or in the conduct of armed hostilities against the Defence Force or an allied force. If there is doubt whether the information alleged to have been conveyed by the accused to the enemy can properly be regarded as being intelligence, the accused should be charged with communication with the enemy; the maximum penalty is the same. If it can be proved that the accused disclosed the information and that the information constituted intelligence but there is insufficient proof that the accused gave the intelligence to the enemy (either directly, or indirectly through a third party), consideration should be given to charging the accused with an offence against s.58 (Unauthorised disclosure of information). Section 16A Failing to report information received from the enemy (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) (c) the person receives information from the enemy; and the person does not make the information known to proper authority; and the information is likely to be directly or indirectly useful in operations against the enemy; and

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(d)

the person knows or could reasonably be expected to know that the information is likely to be directly or indirectly useful in operations against the enemy.

Maximum punishment: Imprisonment for 15 years. (2) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.16A(1) Failing to report information received from the enemy Being a defence member at . on . failed to make known to a proper authority namely .. information namely . received from the enemy that he knew was likely to be directly useful in operations against the enemy. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused received specified information from the enemy (physical element); d e that the accused either knew or was reckless as to (c) (fault element); that the accused did not make the information received known to the proper authority (physical element); f that the accuseds failure to make the information received known was intentional (fault element); g that the information received was likely to be directly or indirectly useful in operations against the enemy (physical element);

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that the person knew that the information was likely to be directly or indirectly useful in operations against the enemy (fault element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.16A(2) that he or she had a reasonable excuse for the conduct in (e); and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Proper authority. This expression is not defined. It seems that it means that authority (normally the intelligence officer, or where the accused is a defence member, any superior officer, or where the accused is a defence civilian, any officer) to whom, having regard to the status of the accused and the circumstances in which the accused was placed, the accused could reasonably have been expected to have reported the information. Section 16B Offence committed with intent to assist the enemy (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person engages in conduct that constitutes an offence against any of sections 15 to 16A (other than section 15B or 15C); and the person engages in that conduct with intent to assist the enemy.

Maximum punishment: Imprisonment for life. (2) In paragraph (1)(a), strict liability applies to the physical element of circumstance, that the conduct constitutes an offence against the section concerned.
Note: For strict liability, see section 6.1 of the Criminal Code.

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SPECIMEN CHARGE: s.16B(1) Committing the offence of [name of offence against section 15 to 16A (other than 15B or 15C)] with intent to assist the enemy Being a defence member at . on . with intent to assist the enemy, engaged in conduct that constituted an offence against DFDA section 15D namely protection of XYZ an enemy person who was not a prisoner of war. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element); d that the accuseds act or omission in (c) was intended to assist the enemy (fault element); e that the accuseds act or omission in (c) constituted an offence against any of sections 15 to 16A (but not section 15B or 15C); f no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical element (e) as this is an element of strict liability under s.16B(2). STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 17 Leaving a post, abandoning equipment or otherwise failing to perform duty (1) A defence member is guilty of an offence if the member is engaged on service in connection with operations against the enemy and:

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(a)

the member: (i) (ii) has a duty to be at a post, position or other place; and leaves the post, position or place; or

(b) (c)

the member abandons his or her weapons or other equipment; or the member does not properly perform his or her duty in any other manner in attacking or defending against the enemy.

Maximum punishment: Imprisonment for 5 years. (2) It is a defence if the member proves that he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code.

(3)

In this section:

equipment includes vehicles, ammunition, instruments and tools. SPECIMEN CHARGE: s.17(1)(a) Leaving (post) (position) (place) in connection with operations Being a defence member at . on . while engaged on service in connection with operations against the enemy left her post at the main gate of RAAF Base Wirraway Ammunition Depot. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused was engaged on service in connection with operations against the enemy (physical element);

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that the accused either knew or was reckless as to the fact that he or she was engaged on service in connection with operations against the enemy (fault element);

that the accused had a specified duty to be at post, position or other place (physical element);

f g h

that the accused either knew or was reckless as to (e) (fault element); that the accused left the post, position or place (physical element); that the accuseds act or omission in (g) was intentional (fault element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.17(2) that he or she had a reasonable excuse for the conduct in (g); and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: A post is not bounded by an imaginary line but includes, according to orders or circumstances, such surrounding area as may be necessary for the proper performance of the duties for which the person was posted. The offence of leaving post is committed when the person goes such a distance from his or her post that the person would be unable fully to perform the duty for which the person was posted. Similar reasoning applies in relation to a position or place. The fact that the accused had not been formally ordered to take up his or her post is immaterial provided evidence is given to prove that the accused knew or was reckless as to the fact that his or her duty required the accused to be there. In determining what in any particular case is a post, a Service tribunal may use its general Service knowledge.

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A person who has not taken up the persons post cannot leave it; failure to take up the persons post is not an offence against this section but may be charged under section 32. SPECIMEN CHARGE: s.17(1)(b) Abandoning (weapons) (other equipment) in connection with operations Being a defence member at . on . while engaged on service in connection with operations against the enemy abandoned his weapons namely a F88 Steyr rifle, a bayonet and ammunition. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused was engaged on service in connection with operations against the enemy (physical element); d that the accused either knew or was reckless as to the fact that he or she was engaged on service in connection with operations against the enemy (fault element); e that the accused abandoned his or her weapons or other equipment (physical element); f that the accuseds act or omission in (e) was intentional (fault element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.17(2) that he or she had a reasonable excuse for the conduct in (e); and b if raised, the accused must prove this defence on the balance of probabilities.

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STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: This offence is principally directed at a person who, when retreating, leaves the persons weapons or other equipment behind or throws them or it away. The expression equipment is defined to include vehicles, ammunition, instruments and tools. In the circumstances, it seems that the reference to the members weapons etc means the weapons etc which the accused had for the time being in his or her possession or under his or her immediate control. SPECIMEN CHARGE: s.17(1)(c) Failing to properly perform duty in attacking or defending against the enemy Being a defence member at . on . while engaged on service in connection with operations against the enemy failed to transmit a message to Air Command that RAAF Base Northland was under missile attack. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused was engaged on service in connection with operations against the enemy (physical element); d that the accused either knew or was reckless as to the fact that he or she was engaged on service in connection with operations against the enemy (fault element); e that the accused had a duty to perform attacking or defending against the enemy (physical element);

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f g

that the accused either knew or was reckless as to (e) (fault element); that the accused did not properly perform the duty in (f) in any manner other than as set out in 17(1)(a) or (b) (physical element);

that the accuseds act or omission in (g) was intentional (fault element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.17(2) that he or she had a reasonable excuse for the conduct in (g); and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 18 Endangering morale (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) (c) the person spreads a report; and the report relates to operations against the enemy; and by spreading the report the person intends to create despondency or unnecessary alarm.

Maximum punishment: Imprisonment for 2 years. (2) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) (c) (d) the person is engaged on service in connection with operations against the enemy; and the person spreads a report; and the report relates to operations against the enemy; and by spreading the report the person intends to create despondency or unnecessary alarm.

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Maximum punishment: Imprisonment for 5 years. SPECIMEN CHARGE: s.18(1) Endangering morale Being a defence member at . on . with intent to create despondency amongst the members of her section spread a report that related to operations against the enemy, namely, that the enemy had received reinforcements and fresh supplies. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); c d that the accused spreads a report as specified (physical element); that the accuseds act or omission in (c) was intended to create despondency or unnecessary alarm (fault element); e f that the report relates to operations against the enemy (physical element); that the accused either knew or was reckless as to (e) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.18(2) Endangering morale in connection with operations Being a defence member at . on . when engaged on service in connection with operations against the enemy, with intent to create unnecessary alarm spread a report that related to operations against the enemy, by saying to members of

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his unit We havent got a hope in hell. We dont have enough ammo. Well all be wiped out. or words to that effect. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); c that the accused was engaged on service in connection with operations against the enemy (physical element); d e f that the accused either knew or was reckless as to (c) (fault element); that the accused spread a report as specified (physical element); that the accuseds act or omission in (e) was intended to create despondency or unnecessary alarm (fault element); g h that the report in (e) related to operations against the enemy (physical element); that the accused either knew or was reckless as to (g) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: The particulars of the charge must detail the reports alleged to have been spread. It is not necessary that the reports be false; despondency or unnecessary alarm may also be caused by the spreading of true reports of unfavourable information. It is not necessary to show that any effect was produced by the reports; it would, however, seldom be expedient to try a person for these offences if the reports could not be shown to have had some effect. Section 19 Conduct after capture by the enemy (1) A defence member is guilty of an offence if:

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(a) (b) (c)

the member is captured by the enemy; and any reasonable steps are available to the member to rejoin his or her force; and the member does not take those steps.

Maximum punishment: Imprisonment for 5 years. (2) A defence member is guilty of an offence if: (a) (b) (c) the member and another person are captured by the enemy; and any reasonable steps are available to the other person to rejoin his or her force; and the member prevents or discourages the other person from taking those steps.

Maximum punishment: Imprisonment for 5 years. (3) A defence member is guilty of an offence if: (a) (b) (c) the member is captured by the enemy; and the member engages in conduct with the intention of securing favourable treatment for himself or herself; and the conduct is detrimental to other persons also captured by the enemy.

Maximum punishment: Imprisonment for 5 years. (4) A defence member is guilty of an offence if: (a) (b) (c) the member is captured by the enemy; and the member is in a position of authority over other persons also captured by the enemy; and the member ill-treats those other persons.

Maximum punishment: Imprisonment for 5 years.

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SPECIMEN CHARGE: s.19(1) Failed to rejoin force Being a defence member at . on . having been captured by the enemy did not take reasonable steps that were available to him to rejoin his force, C Company 5 RAR, by refusing to accept an offer of repatriation made by the enemy. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c d e that the accused was captured by the enemy (physical element); that the accused either knew or was reckless as to (c) (fault element); that reasonable steps were available to the accused to rejoin his or her force (physical element); f g h that the accused either knew or was reckless as to (e) (fault element); that the accused did not take the steps in (e) (physical element); that the accused intended not to take the steps referred to in (e) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Escape from the enemy is regarded as authorised by custom. A member of the Defence Force who is captured by the enemy has a duty to escape and return to his or her own forces. This duty is not absolute and it is an offence only if the member does not take reasonable steps that are available to the member to escape.

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SPECIMEN CHARGE: s.19(2) Preventing another rejoining (his) (her) force Being a defence member at . on . having been captured by the enemy, discouraged F123456 Private A.B. Bull, another person who had been captured by the enemy, from taking steps to rejoin her force when reasonable steps were available to Private Bull to rejoin her force. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused and another specified person were captured by the enemy (physical element); d e that the accused either knew or was reckless as to (c) (fault element); that reasonable steps were available to the other specified person to rejoin his or her force (physical element); f g that the accused either knew or was reckless as to (e) (fault element); that the accused prevented or discouraged the other person from taking the steps in (e) (physical element); h that the accused acted intentionally in relation to (g) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: The law relating to the requirement for a captured person to rejoin his or her own force is as stated above.

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The other person need not be a member of the Defence Force; he or she may be a member of the armed forces of another country. SPECIMEN CHARGE: s.19(3) Securing favourable treatment to detriment of others Being a defence member at . on . having been captured by the enemy and with intent to secure favourable treatment for himself, reported the whereabouts of tools and supplies stored by other prisoners of war thereby causing those other prisoners to be severely punished by the enemy. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c d e that the accused is captured by the enemy (physical element); that the accused either knew or was reckless as to (c) (fault element); that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element); f that the accuseds act or omission in (e) was intended to secure favourable treatment for himself or herself (fault element); g that the accuseds act or omission in (e) was detrimental to other persons also captured by the enemy (physical element); h that the accused either knew or was reckless as to (g) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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COMMENTARY: This offence relates to behaviour by a prisoner of war which seeks amelioration of the members conditions to the detriment of other prisoners of war. This behaviour may be, eg the reporting of plans of escape being made by others or the reporting of caches of food, equipment or arms. The behaviour must be detrimental to the accuseds fellow prisoners of war, eg by way of disciplinary punishment or special surveillance. Other persons so captured need not be members of the Defence Force; they could be members of other armed forces or be civilians who are prisoners of war. SPECIMEN CHARGE: s.19(4) Ill-treating other persons over whom member has authority Being a defence member at . on . having been captured by the enemy, ill-treated prisoners subject to his authority by withholding part of their daily ration entitlement. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c d e that the accused is captured by the enemy (physical element); that the accused either knew or was reckless as to (c) (fault element); that the accused is in a position of authority over other persons also captured by the enemy (physical element); f g h that the accused either knew or was reckless as to (e) (fault element); that the accused ill-treats the other persons mentioned in (e) (physical element); that the accuseds act or omission in (g) was intentional (fault element).

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STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: The source of the authority is not material. It may arise from the military rank or status of the accused, through designation by the captor authorities or from voluntary election or selection by other prisoners of war for their self-government. The ill-treatment must be real although not necessarily physical. Abuse of an inferior by inflammatory and derogatory words may, through mental anguish, amount to illtreatment. To subject to improper punishment or to deprive of benefits would also amount to ill-treatment. The other persons need not be members of the Defence Force; they may be other armed forces or be civilians who are prisoners of war.

Division 2Mutiny, desertion and unauthorised absence

Section 20 Mutiny (1) A defence member who takes part in a mutiny is guilty of an offence.

Maximum punishment: Imprisonment for 10 years. (2) A defence member is guilty of an offence if: (a) (b) the member takes part in a mutiny; and the mutiny's object, or one of its objects, is the refusal or avoidance of duty or service in connection with operations against the enemy or the impeding of the performance of such a duty or service.

Maximum punishment: Imprisonment for life. SPECIMEN CHARGE: s.20(1) Mutiny Being a defence member at . on . took part in a mutiny in that he combined with Leading Seaman Hook and Able Seaman Brown to overthrow the lawful authority of Captain B. Bold RAN, the Commanding Officer of HMAS INTREPID.

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PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused combined with one or more other members of the Defence Force (physical element); d e that the accused either knew or was reckless as to (c) (fault element); that the accused acted either: (i) to overthrow lawful authority in the Defence Force or in an allied force (physical element); or (ii) to resist such lawful authority in such a manner as to prejudice substantially the operational efficiency of the Defence Force or of, or of a part of, an allied force (physical element); f that the accuseds act or omission in (e) was intentional (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.20(2) Mutiny in connection with service against enemy Being a defence member at . on . took part in a mutiny with the object of avoiding duty in connection with operations against the enemy in that he combined with Leading Seaman Hook and Able Seaman Brown to hold Captain B. Bold RAN, the Commanding Officer of HMAS INTREPID in custody in his cabin when contact with the enemy was imminent.

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PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c d e that a mutiny was taking place (physical element); that the accused knew of the matter in (c) (fault element); that the object of the mutiny, or one of its objects was: (i) the refusal or avoidance of duty or service in connection with operations against the enemy (physical element); or (ii) f the impeding of the performance of such duty or service (physical element);

that the accused either knew or could reasonably have been expected to know of (e) (fault element);

that the accused did not take reasonable steps either: (i) (ii) to suppress or prevent the mutiny (physical element); or to report to proper authority without delay that the mutiny is taking place or is intended (physical element)

that the accuseds act or omission in (g) was intentional (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Mutiny. Subsection 3(1) defines 2 types of mutiny. One consists of a combination between persons to overthrow lawful authority in the Defence Force or in an allied force. The other consists of a combination between persons to resist lawful authority in the

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Defence Force or in an allied force in such a manner as to prejudice substantially the operational efficiency of the Defence Force or of, or a part of, an allied force. In either case, the combination is between at least 2 persons who are members of the Defence Force. The definition of mutiny is intended to exclude those forms of collective insubordination which, while amounting to a resistance to lawful authority, are not formed to overthrow the authority or to substantially prejudice operational efficiency but are directed at such matters as poor food or living conditions, or at delays in repatriation or demobilisation after the conclusion of hostilities. It is not necessary that the mutiny be successful (ie that lawful authority be overthrown or that operational efficiency of the force be substantially prejudiced). There must be the intention to act in the manner described and some action in furtherance of that intention. The action may be any step towards the mutiny (eg the making out or preparation of those who may be persuaded to join in, or the approaching of a third person to take part). The action may be positive (eg switching off lights, locking or barricading doors, a small arms party throwing down their arms) or negative (eg refusing to move when ordered, remaining in quarters when due to come on duty). The intention may be declared in words, inferred from acts done or inferred from surrounding circumstances. The combination may be preconceived or it may be formed on the spot. Section 21 Failing to suppress mutiny (1) A defence member is guilty of an offence if: (a) (b) (c) a mutiny is taking place or is intended; and the member knows that fact; and the member does not take reasonable steps: (i) (ii) to suppress or prevent the mutiny; or to report to proper authority without delay that the mutiny is taking place or is intended.

Maximum punishment: Imprisonment for 2 years. (2) A defence member is guilty of an offence if: (a) (b) a mutiny is taking place or is intended; and the member knows that fact; and

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(c)

the member knows, or could reasonably be expected to know, that the mutiny's object, or one of its objects, is: (i) (ii) the refusal or avoidance of duty or service in connection with operations against the enemy; or the impeding of the performance of such duty or service; and

(d)

the member does not take reasonable steps: (i) (ii) to suppress or prevent the mutiny; or to report to proper authority without delay that the mutiny is taking place or is intended.

Maximum punishment: Imprisonment for 5 years. SPECIMEN CHARGE: s.21(1) Failing to suppress mutiny Being a defence member at . on ., knowing that a mutiny was intended by members of his section namely, Training Flight No 100 Squadron, did not take reasonable steps to suppress the mutiny by reporting without delay to a proper authority, namely the Commanding Officer No 100 Squadron, that the mutiny was intended. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that a mutiny was taking place or was intended either: (i) to overthrow lawful authority in the Defence Force or in an allied force (physical element); or

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(ii)

to resist such lawful authority in such a manner as to prejudice substantially the operational efficiency of the Defence Force or of, or of a part of, an allied force (physical element);

d e

that the accused knew of the matter in (c) (fault element); that the accused did not take reasonable steps to either: (i) (ii) suppress or prevent the mutiny (physical element); or to report to the proper authority without delay that the mutiny was taking place or was intended (physical element);

that the accuseds act in (e) was intentional (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: As to what constitutes a mutiny, see the commentary on s.20. What constitutes reasonable steps will depend upon the status of the accused and the circumstances. Mutiny is the most serious of all disciplinary offences and any members who learns of a mutiny or intended mutiny is under a high standard of duty to act. The expression proper authority is not defined. It is taken to mean the authority (normally a superior officer or a police member) to whom the member could, in the circumstances, reasonably be expected to report the mutiny or intended mutiny. SPECIMEN CHARGE: s.21(2) Failing to suppress mutiny in connection with service against enemy Being a defence member at . on ., knowing that a mutiny involving members of his section namely, Operations Flight No 100 Squadron, was taking place and that the mutiny had as its object the avoidance of duty in connection with operations against the enemy, did not take reasonable steps to suppress or prevent the mutiny by

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reporting without delay to a proper authority namely the Commanding Officer No 100 Squadron that the mutiny was taking place. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that a mutiny was taking place or was intended either: (i) to overthrow lawful authority in the Defence Force or in an allied force (physical element); or (ii) to resist such lawful authority in such a manner as to prejudice substantially the operational efficiency of the Defence Force or of, or of a part of, an allied force (physical element); d e that the accused knew of the matter in (c) (fault element); that the object of the mutiny, or one of its objects was: (i) the refusal or avoidance of duty or service in connection with operations against the enemy (physical element); or (ii) f the impeding of the performance of such duty or service (physical element);

that the accused either knew or could reasonably have been expected to know of (d) (fault element);

that the accused failed to take reasonable steps to either: (i) (ii) suppress or prevent the mutiny (physical element); or report to the proper authority without delay that the mutiny was taking place or was intended (physical element);

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that the accuseds act in (g) was intentional (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: As to what constitutes a mutiny, see the commentary on s.20. What constitutes reasonable steps will depend upon the status of the accused and the circumstances. Mutiny is the most serious of all disciplinary offences and any members who learns of a mutiny or intended mutiny is under a high standard of duty to act. The expression proper authority is not defined. It is taken to mean the authority (normally a superior officer or a police member) to whom the member could, in the circumstances, reasonably be expected to report the mutiny or intended mutiny. Section 22 Desertion (1) A defence member is guilty of an offence if the member: (a) (b) is on active service or has been warned for active service; and without leave, and with the intention of avoiding that service, departs from, or does not attend at, his or her place of duty.

Maximum punishment: Imprisonment for 5 years. (2) A defence member is guilty of an offence if: (a) (b) (c) the member is absent without leave; and the member engages in conduct; and the conduct manifests an intention to avoid active service.

Maximum punishment: Imprisonment for 5 years.

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SPECIMEN CHARGE: s.22(1) Absence from place of duty with intention to avoid active service Being a defence member at . on . having been warned for active service and with intent to avoid that service departed without leave from her place of duty, namely, the Air Movements Office at RAAF Base Lancaster. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused was on active service or was warned for active service (physical element); d e f g that the accused either knew or was reckless as to (c) (fault element); that the accused did not have leave (physical element); that the accused knew or was reckless as to (e) (fault element); that the accused departed from, or did not attend at, his or her place of duty as specified (physical element); h that the accuseds act or omission in (g) was intended to avoid active service (fault element). STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: The necessary intention for an offence against this section can be provided by some admission by the accused or by inference from the accuseds conduct (which includes

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any statements made by the accused). For example, the state of the accuseds kit, change of name, circumstances in which the accused has been living, his or her engagement in civil employment or joining other armed forces, possession of a passport with a recent visa and length of absence are matters which may well support an inference that the accused intended to desert. No particular length of time can be specified as being sufficient to justify an inference that the accused intended to desert nor is the mode by which the accused is recovered (ie by being apprehended or by voluntarily surrendering) conclusive of intention to desert. Each case must be judged in the light of surrounding circumstances. SPECIMEN CHARGE: s.22(2) Absence without leave with intention to avoid active service Being a defence member at .on., while absent without leave, engaged in conduct that manifested an intention to avoid active service in that he informed that he would not be returning to his unit and that he had obtained a visa to enter and remain in the USA with effect from for a period of .. months. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused was required to be at his or her unit (or ship etc) (physical element); d e that the accused either knew or was reckless as to (c) (fault element); that the accused was absent from his or her unit (or ship etc) as specified (physical element); f g that the accused either knew or was reckless as to (e) (fault element); that the absence was without authority of anyone competent to give the accused leave (physical element);

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h i

that the accused either knew or was reckless as to (g) (fault element); that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element);

j k

that the accuseds act or omission in (g) was intentional (fault element); that the accuseds act or omission in (g) manifested an intention to avoid active service (physical element);

that the accused either knew or was reckless as to (j) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: The necessary intention for an offence against this section can be provided by some admission by the accused or by inference from the accuseds conduct (which includes any statements made by the accused). For example, the state of the accuseds kit, change of name, circumstances in which the accused has been living, his or her engagement in civil employment or joining other armed forces, possession of a passport with a recent visa and length of absence are matters which may well support an inference that the accused intended to desert. No particular length of time can be specified as being sufficient to justify an inference that the accused intended to desert nor is the mode by which the accused is recovered (ie by being apprehended or by voluntarily surrendering) conclusive of intention to desert. Each case must be judged in the light of surrounding circumstances. Section 23 Absence from duty (1) A defence member is guilty of an offence if the member: (a) (b) is required to attend for duty; and does not attend for the duty.

Maximum punishment: Imprisonment for 12 months. (2) A defence member is guilty of an offence if the member:

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(a) (b)

is required to perform a duty; and ceases to perform the duty before he or she is permitted to do so.

Maximum punishment: Imprisonment for 12 months. (3) An offence under this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(4) It is a defence to a charge under this section if the person proves that he or she had a reasonable excuse for engaging in the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.23(1) Absence from duty failure to attend Being a defence member at ...... ....... on ............., being required to attend for duty as quartermaster of the morning watch on board HMAS NONSUCH, did not attend for that duty. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused was required to attend for specified duty at a specified time (or during specified hours) (physical element); c d that the accused did not attend for that duty (physical element); and no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements in (a), (b) and (c) as this is an offence of strict liability under s.23(3).

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DEFENCE PROOFS: a the accused may raise the statutory defence under s.23(4)17 that he or she had a reasonable excuse for engaging in the relevant conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: a There are a number of statutory defences in the Criminal Code, in addition to those specifically set out in the offence-provisions of the DFDA. These defences generally apply to all DFDA offences. They include: mistake of fact; claim of right; intervening conduct or event; duress; sudden or extraordinary emergency, self-defence and lawful authority, and are found in Division 9 and 10 of the Criminal Code. These defences existed in various forms under the current DFDA regime based on common law principles. They have now been codified in the Criminal Code. b Detailed discussion of these defences is set out in Chapter 5 of DLM Vol 1. If a defendant raises one of these defences to deny criminal responsibility, that is, to deny having committed the offence, then he or she must establish what is called an evidential burden. This position differs from the burden a defendant has if he or she wishes to rely on a defence contained in a DFDA offence-provision such as subsection 23(4) where the defendant has a legal burden in respect of the defence of reasonable excuse. The evidential burden means that the defendant must merely adduce or point to evidence that suggests a reasonable possibility that the matter (ie. the evidence supporting the defence) exists or does not exist. Once this has occurred, the prosecution must then disprove the matter beyond reasonable doubt.

17

Strictly speaking the prosecution does not have to establish that the accused did not have a reasonable excuse for engaging in the conduct to which the charge relates. The presence of such an excuse is something the accused may raise by way of defence under s.23(4). However, if the prosecution is readily able to establish that the accused did not have a reasonable excuse, then it is prudent to lead that evidence during the prosecution case, for it may not be permissible for the prosecution to call further evidence to rebut that defence if raised during the prosecution case.

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SPECIMEN CHARGE: s.23(2) Absence from duty ceasing to perform Being a defence member at ............ on ............, being trained to perform his duty as the security supervisor at the main gate of RAAF Base Westland, ceased to perform that duty before being permitted to do so. PROSECUTION PROOFS: a b c that the accused was a defence member (physical element); that the accused was required to perform a specified duty (physical element); that the accused ceased to perform that duty before he or she was permitted to do so (physical element); and d no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements in (a), (b) and (c) as this is an offence of strict liability under s.23(3). DEFENCE PROOFS: a the accused may raise the statutory defence under s.23(4)18 that he or she had a reasonable excuse for engaging in the relevant conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See discussion above. COMMENTARY: The section is intended to apply to the circumstances where a member is absent from duty without necessarily being absent from his or her unit. This section is usually used where the member has attended for initial duty and is then later absent from a particular

18

See footnote 1.

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duty but has not left the barrack or unit etc. Where the member has left the barrack or unit etc at the time he or she was required to attend for the later, particular duty, the charge of section 24 absence without leave is used. Likewise, where a member fails to report for initial duty, the charge of section 24 is used. The offences of absence from duty in this section and absence without leave in s.24 are not always mutually exclusive and for that reason the sections have the same maximum punishment (12 months imprisonment). Section 24 is an alternative offence to a charge under s.23 (see discussion on alternate offences at paragraphs 4.7 and 4.28). Should a member fail to appear for initial duty (eg 0730 parade, etc) whether the member is within the barrack, camp, etc or outside, the member should be charged with absence without leave under s.24(1). The above does not apply to Navy where the expiry time of short leave is promulgated in daily orders. Whether a member should be charged with absence from duty or absence without leave will therefore depend on whether or not the member was onboard the ship or establishment at the relevant time. What the accuseds place of duty was, is a question of fact to be decided by the Service tribunal on the evidence. The Service tribunal may call upon general service knowledge to determine the issue. In certain circumstances, absence from duty is regarded as particularly serious and special offences are provided (s.17(1)(a) (leaving a post) and s.32(1)(d) (leaving post or absenting oneself)). At other times the infringement may be purely disciplinary and therefore may be dealt with by a Discipline Officer. As noted above, the offence of absence from duty in this section and absence without leave in s.24 are not always mutually exclusive. It should be noted, however, that the statutory defences in each section (s.23(4) and s.24(3)) are distinguishable in their operation. A person charged under s.23 is able to argue that he or she had a reasonable excuse for not attending the duty as required. A person charged under s.24 is able to argue that he or she was absent due to circumstances not reasonably within the members control. A point of distinction between the two defences is that whilst an event that is not reasonably within a persons control could constitute a reasonable excuse, the reverse may not necessarily be true. An event that constitutes a reasonable excuse for absence may not necessarily be an event that is not reasonably within the persons control. Hence, the defence in s.24 is qualitatively different from the defence in s.23. Section 24 Absence without leave (1) A defence member who is absent without leave is guilty of an offence.

Maximum punishment: Imprisonment for 12 months.

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(2)

An offence under subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) It is a defence if the member proves that he or she was absent due to circumstances not reasonably within the member's control.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.24(1) Absence without leave Being a defence member at ............ on ............, was absent without leave from (specified unit/ship etc) from ............. to ................ PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused was required to be at his or her unit (or ship etc) (physical element); c that the accused was absent from his or her unit (or ship etc) as specified (physical element); d that the absence was without authority of anyone competent to give the accused leave (physical element); and e no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements in (a), (b), (c) or (d) as this is an offence of strict liability under s.24(2).

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DEFENCE PROOFS: a the accused may raise the statutory defence under s.24(3)19 that he or she was absent due to circumstances not reasonably within the members control; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: The expression absent without leave is not statutorily defined but is interpreted as applying when a member is absent, without authority or acceptable excuse, from his or her unit, ship, establishment, barrack, camp, air force base etc. Where the accused is absent from particular duty (eg from parade, workshop, store, weapon practice) but has not left the barrack, camp, ship, etc without leave, the accused should not be charged with absence without leave but with absence from duty under s.23. (However see commentary for s.23.) The offence of being absent without leave is committed where a members absence occurs owing to circumstances within the members control. Circumstances within the members control include failure to return to the members place of duty in time owing to any of the following actions by the member: a. b. c. d. getting drunk; missing his or her transport through allowing insufficient time to reach the point of departure; falling asleep on a train or bus and being carried past the station or stop; and running out of fuel when driving a motor vehicle.

19

Strictly speaking the prosecution does not have to establish that the accuseds absence was not due to circumstances not reasonably within the accuseds control. The accused may raise by way of defence that his or her absence was due to circumstances not reasonably within his or her control. However, if the prosecution is able to establish that the defence is not available, then it is prudent to lead that evidence during the prosecution case, for it may not be permissible for the prosecution to call further evidence to rebut the defence if raised during the defence case.

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Circumstances not within the members control may include accident or illness. Where, however, a member deliberately inflicts an injury on himself or herself with the intention of rendering himself or herself unable to return to duty, the absence would arise from circumstances within the members control (the member may also have committed an offence against s.38 (Malingering)). If a member who is prevented by illness or injury from returning in time fails to report the fact, the member may have committed an offence against s.29 (Failure to comply with general order). Where a member leaves the members unit in the honest, though mistaken, belief that leave has been granted and has reasonable grounds for that belief, the member is not guilty of absence without leave (see s.9.2 of the Criminal Code). The mere fact that the member has applied for leave and expects that it will be granted will be no defence if the member departs before being notified that leave has been granted. See commentary on s.23 in relation to the distinction between the statutory defences for s.23 and s.24. Under Regulation 65 of Defence Force Regulations (reprinted in Part 11 of Volume 2), a member convicted of absence without leave for 24 hours or more forfeits all salary and allowances that accrued to the member during the period that begins at the end of the day on which the member first became absent and ends at the end of the day on which the member ceased to be absent.

Division 3Insubordination and violence

Section 25 Assaulting a superior officer (1) A defence member is guilty of an offence if: (a) (b) the member assaults a person; and that person is a superior officer.

Maximum punishment: Imprisonment for 2 years. (2) Strict liability applies to paragraph (1)(b).

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, that the person against whom the offence is alleged to have been committed was a superior officer.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

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SPECIMEN CHARGES: s.25(1) Assaulting a superior officer Being a defence member at ............. on ............., assaulted Sergeant X of 1st BlanketFolding Battalion, his superior officer, by punching him in the face. PROSECUTION PROOFS: In relation to defence member: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); In relation to assault: c d e that the accused did a specified act to a person (physical element); that the accuseds act or omission in (c) was intentional (fault element); that the act either results in infliction of force on the person (or engenders fear in the person that force is about to be inflicted) (physical element); f g h that the other person does not consent to the result in (e) (physical element); that the result in (e) is unlawful (physical element); that the accused either knew or was reckless as to (e) (infliction of force or engendering of fear), (f) (lack of consent) and (g) (unlawfulness of the result) (fault element); In relation superior officer: i the person in (c) was the superior officer of the accused (physical element); and

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no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical element in (i) that the person was the superior officer of the accused as this element is strict liability under s.25(2).20

DEFENCE PROOFS: a the accused may raise the statutory defence under s.25(3) that he or she neither knew, nor could reasonably be expected to have known, that the person to whom the offence was committed was a superior officer; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: The term superior officer is defined in subsection 3(1) of the Act. The term assault will continue to be interpreted in accordance with its common law meaning. An assault encompasses what is referred to in common law as a common assault as well as a battery. The term assault is interpreted as a deliberate engendering in another person of the fear that unlawful force is about to be inflicted upon him or her, or the actual intended or reckless application of unlawful force to another, without his or her consent, or being reckless as to his or her consent. In relation to application of force, mere words can never amount to an assault. There must be some bodily act or gesture or touching, to any extent. The general rule is that if the victim consents to the application of force, it is not an assault. However, the consent cannot extend to causing serious bodily injury or consent obtained by fraud. Sporting contests, pub brawls and invitations outside to fight require careful scrutiny. It is not an assault if there is physical contact between two persons as part of normal social interaction.

20

Subsection 25(2) means that strictly speaking the prosecution does not have to establish that the accused knew, or could reasonably be expected to have known, that the person against whom the offence is alleged to have been committed was a superior officer. The lack of such knowledge is something that the accused may raise by way of defence. However, if the prosecution is readily able to establish that the accused was aware that the victim was a superior officer, for example because the officer was in uniform or was known by the accused, then it is prudent to lead that evidence during the prosecution case, for it may not be permissible for the prosecution to call further evidence to rebut that defence if raised during the defence case.

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The proofs and commentary in respect of assault for section 25 also apply to s.30 (assaulting a guard), s.33 (assault while in a public place) and s.34 (assaulting an inferior). The expression superior officer means any other member of the Defence Force who holds a higher rank than the accused. The ranks of members of the Defence Force and their relationship are set out in Annex A. The expression superior office also means any other member of the Defence Force who by virtue of his or her office or appointment is entitled to exercise command over the accused. Examples of appointments which confer command irrespective of rank are: a. commanding officer of a unit: command may be exercised over any member of the unit. (In the case of a Service ship, command may be exercised over any other member of the Defence Force in any matter relating to the safety or navigation of, or maintenance of order in, the ship or the safety of persons on board); second in command of a unit; officer of the watch of a Service ship; and aircrew on flying duties.

b. c. d.

Members of the armed forces of other countries may by law be superior officers when formally attached to the Defence Forcesee s.116B of the Defence Act 1903. The name and rank of the superior officer, and if relevant the capacity in which the superior officer was exercising command, must be given in any charge under this section. Section 26 Insubordinate conduct (1) A defence member is guilty of an offence if: (a) (b) the member engages in conduct that is threatening, insubordinate or insulting to a person; and the person is a superior officer.

Maximum punishment: Imprisonment for 6 months. (2) A defence member is guilty of an offence if: (a) the member uses language that is threatening, insubordinate or insulting about a person; and

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(b) (c)

the language is used in that person's presence; and the person is a superior officer.

Maximum punishment: Imprisonment for 6 months. (3) An offence against this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(4) It is a defence to a charge under this section if the person proves that he or she neither knew, nor could reasonably be expected to have known, that the person against whom the offence is alleged to have been committed was a superior officer.
Note: The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.26(1) Engaging in threatening conduct Being a defence member at ............ on .........., engaged in conduct that was threatening to ...., his superior officer, by shaking his fist whilst saying Im going to get you, you bastard or words to that effect. s.26(1) Engaging in insubordinate conduct Being a defence member at ............ on ..........., engaged in conduct that was insubordinate to ...................., his superior officer, by failing to pay appropriate marks of respect to him during inspection of the main galley. s.26(1) Engaging in insulting conduct Being a defence member at ............. on ............., engaged in conduct that was insulting to ......................, her superior officer, by making an obscene gesture towards her during the morning parade. PROSECUTION PROOFS: a that the accused was a defence member (physical element);

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that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element);

that the conduct in (b) was threatening, insubordinate or insulting (physical element);

d e

that the conduct in (b) was directed to a person (physical element); that the other person in (d) was a superior officer of the accused at the time (physical element);

no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements in (a), (b), (c), (d) or (e) as this is an offence of strict liability under s.26(3).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.26(4) that he or she neither knew, nor could reasonably be expected to have known, that the person to whom the offence was committed was a superior officer;21 and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: As to the meaning of superior officer see the commentary on s.25. The name and rank of the superior officer and, if relevant, the capacity in which the officer was exercising command, must be given in any charge of this offence. The expression to a superior officer indicates that the conduct referred to is conduct directed to the superior and intended to come to the superiors notice. Ordinarily the conduct will occur within sight or earshot of the superior but nevertheless encompassed

21

See footnote 4.

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by this offence are insubordinate conduct in a telephone conversation with the superior or a letter sent to the superior and couched in insubordinate terms or otherwise intended to be insubordinate. The expression threatening conduct means conduct from which a person may reasonably infer that violence may be used. Where the threatening conduct amounts to an assault the accused should be charged with an offence under s.25. The expression insubordinate conduct means conduct that shows a marked disdain or indifference or insolence, impertinence, undue familiarity or other rudeness, in the presence of the superior. If the insubordinate conduct is solely the language used and not its manner of delivery or the circumstances in which the language is used, consideration should be given to charging the accused with using insubordinate language under s.26(2). Whether the conduct was threatening, insubordinate or insulting will ultimately be judged by the Service tribunal hearing the charge. SPECIMEN CHARGE: s.26(2) Using threatening language Being a defence member at ............. on ............, used language that was threatening about Lieutenant ABC, his superior officer, by saying in his presence: Im going to get that bastard ABC or words to that effect. s.26(2) Using insubordinate language Being a defence member at ............ on ............., used language that was insubordinate about Lieutenant ABC, his superior officer, by saying in his presence: I dont think ABC knows what he is doing or words to that effect. s.26(2) Using insulting language Being a defence member at ........... on ............, used language that was insulting about Lieutenant ABC, his superior officer, by saying in his presence: ABCs a bloody idiot and always has been or words to that effect. PROSECUTION PROOFS: a that the accused was a defence member (physical element);

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b c

that the accused used language about another person (physical element); that the language used was threatening, insubordinate or insulting (physical element);

that the use of the language took place in the presence of the person in (b) (physical element);

the other person in (b) and (d) was a superior officer of the accused person at the time (physical element); and

no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements in (a), (b), (c), (d) or (e) as this is an offence of strict liability under 26(3).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.26(4) that he or she neither knew, nor could reasonably be expected to have known, that the person to whom the offence was committed was a superior officer22; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: In s.26(2) the language complained of need not be heard by the superior about whom the language was used but the use must occur in the persons presence. As to the meaning of the expression superior officer, see the commentary on s.25.

22

See footnote 4.

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The name and rank of the superior officer and, if relevant, the capacity in which the officer was exercising command must be given in any charge of this offence. The expression threatening language means language from which the person the object of the threat may reasonably infer that violence may be used. This may be inferred either from the character of the language used or from the surrounding circumstances. All threatening language is insubordinate but the converse is not the case. In any case in which it is doubtful if the language used constitutes a threat, the accused should be charged with using insubordinate language and not with using threatening language. If the language used is not in itself insubordinate but is used in a manner or in circumstances which show an intent to be insubordinate, the accused should be charged with insubordinate conduct. If the language used is not in itself insulting but is used in a manner which shows an intent to be insulting, the accused should be charged with insulting conduct. Whether the language was threatening, insubordinate, or insulting will ultimately be judged by the Service tribunal hearing the charge. Section 27 Disobeying a lawful command (1) A defence member is guilty of an offence if: (a) (b) (c) a person gives the member a lawful command; and the person giving the command is a superior officer; and the member disobeys the command.

Maximum punishment: Imprisonment for 2 years. (2) Strict liability applies to paragraphs (1)(b) and (c).

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, that the person who gave the command was a superior officer.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

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SPECIMEN CHARGE: s.27(1) Disobeying lawful command Being a defence member at ............ on ............... disobeyed the lawful command given to her by Sergeant ......................... her superior officer, to leave the other rank canteen immediately. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c d that a person gave the accused a specified lawful command (physical element); that the accused either knew or was reckless as to the matter in (c) (fault element); e that the person who gave the command was, at the time, a superior officer of the accused (physical element); f g that the accused disobeyed the command (physical element); and no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical elements in (e) and (f) as these are elements of strict liability under s.27(2). DEFENCE PROOFS: a the accused may raise the statutory defence under s.27(3) that he or she neither knew, nor could reasonably be expected to have known, that the person who gave the command was a superior officer; and b if raised, the accused must prove this defence on the balance of probabilities.

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STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Lawful command. To be lawful, a command must relate to military duty (ie be intended to effect some military object or purpose) and be one which the superior officer has authority in the circumstances to give the accused. A command which has for its sole object the attainment of some private end or which is otherwise not connected with military duty would not be lawful. A person cannot be convicted of this offence if the command was unlawful. A person given an order requiring the performance of military duty may infer it to be lawful and disobeys it at the persons peril. Where, however, a command orders the doing of something that is apparently unlawful in the sense that its execution involves the commission of a Service offence or a civil offence, the person to whom it is given is justified in questioning it and refusing to execute it if its legality is not established. Where a person who knew, or could reasonably be expected to have known, that the order was unlawful in this sense nevertheless executes the order and is subsequently charged with the commission of that offence, the person could not successfully plead the defence of obedience to superior orders. (See s.14 of the DFDA and Chapter 5 Superior Orders.) General order not a command. An order in the nature of a general order is not a command within the meaning of s.27 (see definition of general order and order in s.3(1)) and a breach of such an order should be charged as an offence against s.29 (Failure to comply with general order). Form of command. Words alleged to constitute a command must always be examined in the light of the circumstances in which they were used and this examination may show clearly enough that the words used, although not otherwise supportable as a command, were intended by the speaker to be a command and were so understood by the person to whom they were spoken. How command conveyed. The command must be conveyed to the accused personally, whether individually or in a group of members to whom the command is given simultaneously. The command may be given orally or in writing or be conveyed by message. In the case of an oral message, it must be conveyed to the accused by a person whom the accused might reasonably suppose to have been duly authorised to convey it and it must be given to the accused as the command of the superior officer. In the case of an oral message, evidence of what the superior officer said when the officer originated the command may be given even though the accused was not present at the time because

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what has to be proved is the fact that the order originated from the superior officer (in addition to the messenger giving evidence as to the actual message that he delivered). When command to be obeyed. When a command is not required to be carried out immediately but at (or by the expiration of) some later time and the person says that he or she will not obey the command, the person should not be charged with an offence under s.27 unless the time arrives to carry out the command (or by which the command was to have been carried out) and the person does not comply with it. A mere statement by the person that he or she will not carry out a command that is to be carried out at (or by) some future time is not disobedience within the meaning of s.27 because the person may change his or her mind and obey it when (or before) the time comes. A person should not be charged with an offence under s.27 in a case where, the person having stated that he or she will not obey a command, the person is arrested before the time by which the command was to have been carried out, and is thus prevented from carrying it out. Where a person says that he or she will not obey a command, the person may be liable to be charged with an offence against s.26 (Insubordinate conduct) regardless of whether the person subsequently obeys the command. Superior Officer. As to the meaning of the expression superior officer, see the commentary on s.25. The name and rank of the superior officer and, if relevant, the capacity in which the officer was exercising command, must be given in any charge under this section. A civilian cannot be the superior officer of a member of the Defence Force and hence cannot give a lawful command within the meaning of s.27. However, it may be the duty of a member of the Defence Force to comply with a proper request made by a civilian and if the member does not do so, the member may be liable under s.60 (Prejudicial conduct). The command which is alleged to have been disobeyed should be set out in the particulars of the charge. Section 28 Failing to comply with a direction in relation to a ship, aircraft or vehicle (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) the person is in or near a service ship, service aircraft or service vehicle; and

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(b) (c)

the person is given a lawful direction by, or with the authority of, the person in command of the ship, aircraft or vehicle; and the direction: (i) (ii) relates to the sailing or handling of the ship, the flying or handling of the aircraft or the handling of the vehicle; or affects the safety of the ship, aircraft or vehicle or of the persons on board the ship, aircraft or vehicle; and

(d)

the first-mentioned person does not comply with the direction.

Maximum punishment: Imprisonment for 2 years. (2) Strict liability applies to paragraph (1)(d).

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) It is a defence if the person proves that he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.28(1) Failing to comply with direction of person in command of (service ship) (service aircraft) (service vehicle) Being a defence member at .on whilst on the Service ship HMAS TOBRUK, failed to comply with the lawful direction given to him by the Commanding Officer of HMAS TOBRUK ., being a direction that affected the safety of the ship or the persons onboard, namely, to cease smoking on the upper deck during the loading of ammunition. PROSECUTION PROOFS: In relation to defence member: a that the accused was either a defence member or a defence civilian (physical element);

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that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element);

In relation to lawful direction: c that the accused was in or near a service ship, service aircraft or service vehicle (physical element); d that the accused was given a specified direction by, or with the authority of, the person in command of the ship, aircraft or vehicle (physical element); e f that the direction was lawful (physical element); that the direction either: (i) related to the sailing or handling of the ship, the flying or handling of the aircraft or the handling of the vehicle (physical element); or (ii) affected the safety of the ship, aircraft or vehicle or of the persons aboard the ship, aircraft or vehicle (physical element); g that the accused either knew or was reckless as to (c), (d), (e) and (f) (fault element); In relation to did not comply: h i that the accused did not comply with the direction (physical element); no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical element (k) as this is an element of strict liability under s.28(2).

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DEFENCE PROOFS: a the accused may raise the statutory defence under s.28(3) that he or she had a reasonable excuse for the relevant conduct;23 and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: The offences in s.28 are intended to deal with a narrow range of acts of disobedience in relation to service ships, service aircraft and service vehicles that are not caught by the offence in s.27 (Disobedience of command). The section is principally directed at acts of disobedience by defence members who are passengers or bystanders or by defence civilians. Under the provisions of this section a lawful direction may be given by a member to a passenger who is senior in rank to the member. Members of the crew are under the command of the commanding officer of the ship or the captain of the aircraft in relation to all their duties on board (not only in relation to those matters mentioned in s.28). It will generally be found expedient to deal with all acts of disobedience of command by such persons under s.27 (Disobedience of command) rather than under this section. Even in the case of members of the Defence Force who are not members of the crew, it may well be that the direction referred to is given by a member of the crew of the ship or aircraft who is the superior officer24 of the recipient in which case the direction may amount to a command for the purpose of s.27 and, if so, it may be expedient to bring a charge under that section rather than under this section. Service ship, Service aircraft, Service vehicle'. These expressions are given a wide definition. The expression Service ship means a ship used by or in the possession or

23

Strictly speaking the prosecution does not have to establish the the accused did not have a reasonable excuse for engaging in the conduct to which the charge relates. The presence of such an excuse is something the accused may raise by way of defence under s.28(3). However, if the prosecution is readily able to establish that the accused did not have a reasonable excuse, then it is prudent to lead that evidence during the prosecution case, for it may not be permissible for the prosecution to call further evidence to rebut that defence if raised during the prosecution case. DFDA s.3(1) definition of superior officer.

24

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under the control of the Defence Force, or an allied force or an institution of the Defence Force or of an allied force.25 The expression allied force is defined as meaning a force of another country that is acting in co-operation with the Defence Force.26 The expression institution is defined as meaning a mess, club, band, canteen or other institution of the Defence Force or of an allied force.27 Similar reasoning applies to service aircraft and service vehicle. Lawful direction. The use of this expression obviates any pre-requisite for a Service command relationship between the person giving the direction and the recipient. The offence is accordingly applicable in the case of an allied ship or aircraft manned by allied servicemen notwithstanding that there may not be in force a relevant order under the Defence Act 1903 section 116D (which deals with corresponding ranks between a part of the Defence Force and a part of the forces of another country when serving together). The offence is also applicable in the case of a civilian-manned ship, aircraft or vehicle used by, or in the possession or under the control of the Defence Force or an allied force. The direction alleged not to have been complied with should be set out in the charge. Section 29 Failing to comply with a general order (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) a lawful general order applies to the person; and the person does not comply with the order.

Maximum punishment: Imprisonment for 12 months. (2) An offence under subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, of the order.

25

DFDA s.3(1) definition of service property. DFDA s.3(1) definition of allied force. DFDA s.3(1) definition of institution.

26

27

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Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

SPECIMEN CHARGES: s.29(1) Failing to comply with general order Being a defence member at ............. on ............., . did not comply with a lawful general order that was applicable to her by revealing information relating to a Defence procurement, which could give a pecuniary advantage to an interested party, contrary to the provisions of subparagraph of Defence Instruction (General) ADMIN .. Public Comment and Dissemination of Information by Members of the Defence Force. s.29(1) Failing to comply with general order Being a defence member at ............. on ............., did not comply with a lawful general order that was applicable to her, by failing to be in the dress of the day when attending parade, contrary to Unit Routine Order dated ................. PROSECUTION PROOFS: a that the accused was either a defence member or a defence civilian (physical element); b c d e that there was a specified lawful general order (physical element); that the general order was applicable to the accused (physical element); that the accused did not comply with the order (physical element); and no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements in (a), (b), (c) or (d) as this is an offence of strict liability under s.29(2).

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DEFENCE PROOFS: a the accused may raise the statutory defence under s.29(3) that he or she neither knew, nor could reasonably be expected to have known, of the order28; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: General order. This is defined first as meaning a Defence Instruction (General), a Defence Instruction (Navy), a Defence Instruction (Army) or a Defence Instruction (Air Force).29 Such Defence Instructions are issued in pursuance of Defence Act 1903, section 9A. Defence Instructions also include orders or instructions, still in force, issued before 9 February 1976 by the now defunct Naval Board, Military Board or Air Board.30 Books, manuals or hand books of instruction, issued by commercial firms etc in respect of equipment etc supplied by the firm or issued by authorities of other countries, being books or manuals supplied for use by the Defence Force, are not general orders unless it can be established: a. b. c. that the book etc had been issued before 9 February 1976 by the Naval Board, the Military Board or the Air Board; that the book etc had been issued as a Defence Instruction; or that the book etc had otherwise been issued by, or under the authority of a Service chief (see paragraph (b) of the definition of general order).

General order is secondly defined as meaning any other order, instruction or directive issued by, or under the authority of, a Service chief.

28

Strictly speaking the prosecution does not have to establish that the accused knew or could reasonably be expected to have known of the lawful general order. The lack of such knowledge is something that the accused may raise by way of defence. However, if the prosecution is readily able to establish that the accused did not know of the general order, then it is prudent to lead that evidence during the prosecution case, for it may not be permissible for the prosecution to call further evidence to rebut that defence if raised during the defence case. DFDA s.3(1). Defence Force Reorganisation Act 1975, ss.23, 65, 95.

29

30

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The use of the expression issued (contrasted with given, as used in sections 27 and 28) implies that the order etc is one made in writing. Such an order etc will ordinarily bear a facsimile of the signature of the service chief or of another officer issuing the order for or on behalf of the Service chief. This will not be the case if the order etc is transmitted by signal/message or radio. Usage has blurred whatever distinction there may once have been between orders and instructions. A form of writing issued by a Service chief requiring subordinates to take certain action or prohibiting certain conduct would usually be regarded as being an order rather than an instruction or directive, whether or not the word order was actually used. It would not usually be regarded as being: a. b. an instruction, unless it is described in the document as being such, or uses the word instruct or instructed; or a directive, unless it is described in the document as being such, or uses the word direct or directed.

General order is finally defined as meaning a general, standing, routine or daily order in force with respect to a part of the Defence Force. The expression standing orders may be described or orders that are not transitory, ie that continue in force from day to day and from week to week. Standing orders are usually designated as such, frequently with the addition of a prefix such as ships, unit or formation. The expression routine orders essentially means orders that relate to the daily routine of a unit or other body. In practice, routine orders are of a transitory nature and are frequently also used as a convenient vehicle for the conveyance of other information of a transitory nature. Routine orders are usually designated as such except in the Navy where the title daily orders is customarily used. Where documents are issued that are meant to be binding upon subordinates and, instead of their being entitled orders, they are issued under some other title such as memoranda they may still be considered orders for the purposes of the section. Whether documents are considered to be orders will depend on all the circumstances. Factors which are relevant include whether the document is intended to be complied wit, and whether the document is couched in mandatory or imperative language as opposed to being merely descriptive or narrative. The mere inclusion of matter in standing orders (for example) may not in itself result in non-compliance being an offence under this section. If the matter is so drafted that the relevant members are in fact given an option whether or not to comply (for example by use of the word should, which is merely an exhortation) then a duty to comply will not have been imposed. Given the wide variety of documents, manuals and instructions in use in the Defence Force, it is advisable that particular matters for which it is sought to

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specify as an order, are re-drafted in clear, mandatory language and included in unit daily, routine or standing orders. Lawful general order. To be lawful, a general order must relate to military duty (ie be intended to achieve some military object or purpose) and be one which the officer who issued it has authority to issue. A lawful general order is subject to the supervening requirement of lawfulness.31 Section 30 Assaulting a guard (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) (c) the person assaults another person; and that other person is a member of the Defence Force or of an allied force; and that other person is on guard duty.

Maximum punishment: Imprisonment for 2 years. (2) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) (c) (d) the person is engaged on service in connection with operations against the enemy; and the person assaults another person; and that other person is a member of the Defence Force or of an allied force; and that other person is on guard duty.

Maximum punishment: Imprisonment for 5 years.

31

See JAG Report and s.154 Report on Atkinson (Vol 8 forthcoming).

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SPECIMEN CHARGE: s.30(1) Assaulting a guard Being a defence member at on .............. assaulted Corporal A.B. Black who was on guard duty at the main gate of RAAF Base Richmond by punching her in the face. PROSECUTION PROOFS: In relation to defence member: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); In relation to assault: c d e that the accused did a specified act to a person (physical element); that the accuseds act or omission in (c) was intentional (fault element); that the act either results in infliction of force on the person (or engenders fear in the person that force is about to be inflicted) (physical element); f g h that the other person does not consent to the result in (e) (physical element); that the result in (e) is unlawful (physical element); that the accused either knew or was reckless as to (e) (infliction of force or engendering of fear), (f) (lack of consent) and (g) (unlawfulness of the result) (fault element);

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In relation to the other person: i that the person in (c) was a member of the Defence Force or of an allied force (physical element); j k that the person in (c) was on guard duty (physical element); that the accused either knew or was reckless as to (j) and (k) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.30(2) Assaulting a guard in connection with operations against the enemy Being a defence member at .. on ............... whilst engaged in service in connection with operations against the enemy assaulted Private R.T. Jones who was on guard duty at the entrance to Military Headquarters Gove by pushing him in the chest. PROSECUTION PROOFS: In relation to defence member: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); In relation to operations against the enemy: c that the accused was engaged on service in connection with operations against the enemy (physical element); d that the accused either knew or was reckless as to (c) (fault element);

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In relation to assault: e f g that the accused did a specified act to a person (physical element); that the accuseds act or omission in (e) was intentional (fault element); that the act either results in infliction of force on the person (or engenders fear in the person that force is about to be inflicted) (physical element); h i j that the other person does not consent to the result in (g) (physical element); that the result in (g) is unlawful (physical element); that the accused either knew or was reckless as to (g) (infliction of force or engendering of fear), (h) (lack of consent) and (i) (unlawfulness of the result) (fault element); In relation to the other person: k that the person in (e) was a member of the Defence Force or of an allied force (physical element); l m that the person in (e) was on guard duty (physical element); that the accused either knew or was reckless as to (k) and (l) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Person on guard duty includes not only a person on guard duty at a particular post, but also a person who is posted or ordered to patrol for the purpose of protecting any person, premises, place, ship, aircraft, vehicle, etc; for the purpose of preventing or

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controlling access to or egress from any premises, place, etc; or for the purpose of regulating traffic by land or water.32 The term assault will continue to be interpreted in accordance with its common law meaning. As assault encompasses what is referred to in common law as a common assault as well as a battery. The term assault is is interpreted as a deliberate engendering in another person of the fear that unlawful force is about to be inflicted upon him or her, or the actual intended or reckless application of unlawful force to another, without his or her consent, or being reckless as to his or her consent. In relation to application of force, mere words can never amount to an assault. There must be some bodily act or gesture or touching, to any extent. The general rule is that if the victim consents to the application of force, it is not an assault. However, the consent cannot extend to causing serious bodily injury or consent obtained by fraud. Sporting contests, pub brawls and invitations outside to fight require careful scrutiny. It is not an assault if there is physical contact between two persons as part of normal social interaction. Section 31 Obstructing a police member (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person obstructs another person; and that other person: (i) (ii) officer. Maximum punishment: Imprisonment for 12 months. (2) A defence member is guilty of an offence if: (a) (b) the member is called on to assist another person; and that other person: (i) (ii) is a police member acting in the performance of his or her duty; or is lawfully exercising authority under or on behalf of a service police officer; and is a police member acting in the performance of his or her duty; or is lawfully exercising authority under or on behalf of a service police

32

DFDA s.3(12).

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(c)

the member refuses to assist that other person.

Maximum punishment: Imprisonment for 12 months. (3) In paragraphs (1)(b) and (2)(b), strict liability applies to the physical element of circumstance, that the person was a police member, or a person lawfully exercising authority under or on behalf of a service police officer.
Note: For strict liability, see section 6.1 of the Criminal Code.

(4) It is a defence to a charge under this section if the person proves that he or she neither knew, nor could reasonably be expected to have known, that the other person was a police member, or a person lawfully exercising authority under or on behalf of a service police officer, as the case requires.
Note: The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.31(1) Obstructing a police member Being a defence member at .. on ., obstructed Leading Seaman R. Smith, Naval Police Coxswain, a police member acting in the performance of his duty to search vehicles entering Fleet Base East, by refusing to allow LSNPC Smith to search vehicle registered number NBJ 296. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused obstructed another person in a specified manner (physical element); d that the accuseds act or omission in (c) was intentional (fault element);

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that the other person is either a police member acting in the performance of his or her duty or lawfully exercising authority under or on behalf of a service police officer (physical element);

no requirement to prove a fault element on the part of the accused in relation to the physical element in (e) as this is an element of strict liability.

DEFENCE PROOFS: a the accused may raise the statutory defence under s.31(4) that he or she neither knew, nor could reasonably be expected to have known, that the other person was a police member, or a person lawfully exercising authority under or on behalf of a service police officer; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: It appears that obstructing requires some positive act and mere inaction is not enough. On the other hand, it appears that the act does not have to amount to physical obstruction; for example, warning an offender of the approach of a police member who has made up his or her mind to arrest the offender or of the presence of a police member when an offence is being committed and there is some concert between the accused and those warned may be sufficient. SPECIMEN CHARGE: s.31(2) Refusing to assist a police member Being a defence member at ............ on .................... when called upon to do so, refused to assist Sergeant G. Powell Royal Australian Military Police Corps, a police member acting in the performance of his duty to restore order in the Soldiers Club at Woodside.

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PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused was called on to assist another person in a specified manner (physical element); d e that the accused either knew or was reckless as to (c) (fault element); that the other person is either a police member acting in the performance of his or her duty or lawfully exercising authority under or on behalf of a service police officer (physical element); f no requirement to prove a fault element on the part of the accused in relation to the physical element in (e) as this is an element of strict liability; g h that the accused refused to assist the other person (fault element); that the accused act in (f) was intentional (physical element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.31(4) that he or she neither knew, nor could reasonably be expected to have known, that the other person was a police member, or a person lawfully exercising authority under or on behalf of a service police officer; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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COMMENTARY: Any request by a police member for assistance must be reasonable having regard to the circumstances in which it is made. The provision is also applicable only to certain bystanders not to persons who are involved or suspected of being involved in the commission of Service offences. The duty to assist police members does not override the provisions of Part V and Part VI of the DFDA relating to arrest, custody and investigation of Service offences. Section 32 Person on guard or on watch (1) A defence member is guilty of an offence if the member is on guard duty or on watch and the member: (a) (b) (c) (d) sleeps at the member's post or on watch; or is not on duty at a post but sleeps when the member's duty requires him or her to be awake; or is intoxicated (see subsection (5)); or leaves his or her post before being regularly relieved or otherwise absents himself or herself from a place where it is the member's duty to be.

Maximum punishment: Imprisonment for 12 months. (2) Strict liability applies to paragraphs (1)(a), (b), (c) and (d).

Note: For strict liability, see section 6.1 of the Criminal Code.

(3)

A defence member is guilty of an offence if the member: (a) (b) (c) is engaged on service in connection with operations against the enemy; and is on guard duty or on watch; and engages in conduct that constitutes an offence against subsection (1).

Maximum punishment: Imprisonment for 5 years. (4) Strict liability applies to paragraph (3)(c).

Note: For strict liability, see section 6.1 of the Criminal Code.

(5) For the purposes of this section, a person is intoxicated if, and only if, the person's faculties are, because of the person being under the influence of intoxicating liquor or a drug (other than a drug administered by, or taken in accordance with the

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directions of, a person lawfully authorised to administer the drug), so impaired that the person is unfit to be entrusted with the person's duty or with any duty that the person may be called on to perform. (6) It is a defence if a person charged with an offence under this section proves that he or she had a reasonable excuse for engaging in the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (6). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.32(1)(a) Sleeping (at post) (on watch) while on (guard duty) (watch) Being a defence member at ........... on .... whilst quartermaster of the middle watch did sleep on watch on HMAS Adelaide. PROSECUTION PROOFS: a b c d that the accused was a defence member (physical element); that the accused was on guard duty or on watch as specified (physical element); that the accused slept at his or her post or his or her watch (physical element); no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical elements in (a), (b) or (c) as these are elements of strict liability under s.32(2). DEFENCE PROOFS: e the accused may raise the statutory defence under s.32(6) that he or she has a reasonable excuse for engaging in the relevant conduct; and f if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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COMMENTARY: As to the nature of a post and what constitutes being posted, see the commentary on section 17. Care needs to be taken that the correct offence is charged. If the accused is found asleep outside the perimeter of the area that is the accuseds post, the accused could not be convicted of sleeping at his or her post and should be charged under paragraph (d) with leaving his or her post. The expression on watch is not defined. It can mean any member of the Defence Force who is placed on watch, in the sense of being a sentinel or look out. It also has a particular nautical meaning. A ships company is divided into watches and the members of a watch together attend to the working of the ship during their watch. A member of the ships company on watch is such a member on duty during his watch whatever the nature of his duty may be. SPECIMEN CHARGE: s.32(1)(b) Sleeping on duty while on (guard duty) (watch) Being a defence member at ............ on ..., while on guard duty at the 1st Battalion, The Royal Australian Regiment, but not on duty at a post, slept when her duty required her to be awake to assist the sentry at the main gate when required. PROSECUTION PROOFS: a b c that the accused was a defence member (physical element); that the accused was on guard duty or on watch as specified (physical element); that the accused is not on duty at a post but sleeps when the members duty requires him or her to be awake (physical element); d no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical elements in (a), (b) or (c) as these are elements of strict liability under s.32(2). DEFENCE PROOFS: a the accused may raise the statutory defence under s.32(6) that he or she has a reasonable excuse for engaging in the relevant conduct; and

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if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: As to the nature of a post and what constitutes being posted, see the commentary on section 17. The expression on watch is not defined. It can mean any member of the Defence Force who is placed on watch, in the sense of being a sentinel or look out. It also has a particular nautical meaning. A ships company is divided into watches and the members of a watch together attend to the working of the ship during their watch. A member of the ships company on watch is such a member on duty during his watch whatever the nature of his duty may be An offence against s.32(1)(b) is primarily directed at a person on guard duty who is a member of a guard or other party mounted or ordered to patrol; one member would be on duty at the post at a given moment and the other one would be waiting to relieve him or her and the others allowed to sleep. If the one waiting goes to sleep, he or she commits an offence against this paragraph. The offence is not primarily directed at a person who is a member of the duty watch in the naval sense; if such a person were to be asleep, the persons action would be an offence that could more conveniently be charged and tried as an offence against s.32(1)(a). SPECIMEN CHARGE: s.32(1)(c) Being intoxicated while on (guard duty) (watch) Being a defence member at .............. on ......., was intoxicated whilst quartermaster of the middle watch on HMAS Adelaide. PROSECUTION PROOFS: a b c that the accused was a defence member (physical element); that the accused was on guard duty or on watch as specified (physical element); that the accused was intoxicated (physical element);

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no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical elements in (a), (b) or (c) as these are elements of strict liability under s.32(2).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.32(6) that he or she has a reasonable excuse for engaging in the relevant conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Under s.32(5), a person shall be deemed to be intoxicated only if the persons faculties are so impaired, by reason of the person being under the influence of intoxicating liquor or a drug (other than a drug which has been lawfully administered), that the person is unfit to be entrusted with the persons duty or any other duty which the person may be called upon to perform. As to evidence of intoxication see Chapter 6. SPECIMEN CHARGE: s.32(1)(d) (Leaving post) (absence from place of duty) while on (guard duty) (watch) Being a defence member at .............. on ....., while on guard duty left her post as the Range Gate Sentry before being regularly relieved. s.32(1)(d) (Leaving post) (absence from place of duty) while on (guard duty) (watch) Being a defence member at ............ on ..., while on guard duty as a member of the Army Recruit Training Centre absented himself from the Guard Room where it was his duty to be.

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PROSECUTION PROOFS: a b c that the accused was a defence member (physical element); that the accused was on guard duty or on watch as specified (physical element); that the accused left his or her post before being regularly relieved or otherwise absented himself or herself from the place where it was his or her duty to be (physical element); d no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical elements in (a), (b) or (c) as these are elements of strict liability under s.32(2). DEFENCE PROOFS: a the accused may raise the statutory defence under s.32(6) that he or she has a reasonable excuse for engaging in the relevant conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: As to the nature of a post see the commentary to s.17. Where a person does not have a post while on guard duty or on watch, the person may be charged, under the second arm of s.32(1)(d), with absence from a place where it is the persons duty to be. The charge should be formulated in this way, for example, where a person who, while on guard duty or on watch, has a duty to visit a number of specified places but goes elsewhere. The question of whether or not a person has been regularly relieved must be determined by reference to the arrangements prescribed in the ship, unit or establishment for the relief of persons at their posts or to the usual practice in the Service.

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SPECIMEN CHARGE: s.32(3)(c) Committing the offence of [name of offence against paragraph 32(1)(a), (b), (c) or (d)] in connection with service against enemy Being a defence member at ................ on ................... being on watch while engaged on service in connection with operations against the enemy did leave his post as the starboard lookout before being regularly relieved. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused was engaged on service in connection with operations against the enemy (physical element); d e f g that the accused either knew or was reckless as to (c) (fault element); that the accused was on guard duty or on watch (physical element); that the accused either knew or was reckless as to (e) (fault element); that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element); h i that the accuseds act or omission in (h) was intentional (fault element); that the accuseds act or omission in (h) constituted an offence against s.32(1) (physical element); j no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical element in (g) as this is an element of strict liability under s.32(4);

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DEFENCE PROOFS: a the accused may raise the statutory defence under s.32(6) that he or she has a reasonable excuse for engaging in the relevant conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 33 Assault, insulting or provocative words etc. A person who is a defence member or a defence civilian is guilty of an offence if the person is on service land, in a service ship, service aircraft or service vehicle or in a public place and the person: (a) (b) (c) (d) assaults another person; or creates a disturbance or takes part in creating or continuing a disturbance; or within the view or hearing of another person, engages in conduct that is obscene; or uses insulting or provocative words to another person.

Maximum punishment: Imprisonment for 6 months. SPECIMEN CHARGES: s.33(a) Assaulting another person (on service land) (in service ship) (in service aircraft) (in service vehicle) (in a public place) Being a defence member at ............. on ............., assaulted Leading Aircraftman R.K. Thames in the Orderly Room at RAAF Base Sale, by punching him in the face.

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s.33(a) Assaulting another person (on service land) (in service ship) (in service aircraft) (in service vehicle) (in a public place) Being a defence member at ........... on ............ assaulted Able Seaman P.J. Matelot in the public bar of the Tattersalls Hotel by kicking him in the shins. PROSECUTION PROOFS: In relation to defence member: c d that the accused was a defence member or a defence civilian (physical element); that the accused knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); In relation to service land, ship, aircraft etc: e that the accused was on service land (or in a service ship, service aircraft or service vehicle or in a public place) as specified (physical element); f that the accused knew or was reckless as to (c) (fault element);

In relation to assault: g h i that the accused did a specified act to a person (physical element); that the accuseds act or omission in (e) was intentional (fault element); that the act either results in infliction of force on the person (or engenders fear in the person that force is about to be inflicted) (physical element); j k l that the other person does not consent to the result in (g) (physical element); that the result in (g) is unlawful (physical element); that the accused either knew or was reckless as to (g) (infliction of force or engendering of fear), (h) (lack of consent) and (i) (unlawfulness of the result) (fault element);

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STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Assault. The term assault will continue to be interpreted in accordance with its common law meaning. As assault encompasses what is referred to in common law as a common assault as well as a battery. The term assault is interpreted as a deliberate engendering in another person of the fear that unlawful force is about to be inflicted upon him or her, or the actual intended or reckless application of unlawful force to another, without his or her consent, or being reckless as to his or her consent. In relation to application of force, mere words can never amount to an assault. There must be some bodily act or gesture or touching, to any extent. The general rule is that if the victim consents to the application of force, it is not an assault. However, the consent cannot extend to causing serious bodily injury or consent obtained by fraud. Sporting contests, pub brawls and invitations outside to fight require careful scrutiny. It is not an assault if there is physical contact between two persons as part of normal social interaction. A charge under s.33(a) should usually be confined to an assault on a person of the same rank as the accused. When the assault is alleged to have been committed on a superior officer the charge should generally be made under s.25. Similarly an alleged assault against a person who is inferior in rank to the accused should generally be charged under s.34 and an alleged assault on a guard should generally be charged under s.30. SPECIMEN CHARGE: s.33(b) Creating a disturbance (on service land) (in service ship) (in service aircraft) (in service vehicle) (in a public place) Being a defence member at ................. on ............. in the Soldiers Club at Randwick Barracks did create a disturbance by .. PROSECUTION PROOFS: In relation to defence member: a b that the accused was a defence member or a defence civilian (physical element); that the accused knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element);

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In relation to service land, ship, aircraft etc: c that the accused was on service land (or in a service ship, service aircraft or service vehicle or in a public place) as specified (physical element); d that the accused knew or was reckless as to (c) (fault element);

In relation to disturbance: e that the accused created a disturbance or took part in creating a disturbance or continuing a disturbance (physical element); f that the accuseds act or omission in (e) was intentional (fault element);

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Disturbance. This is not defined. This offence is intended for dealing with the more serious disturbances such as fighting or brawling or violent or disorderly disputation. Charges should not be laid indiscriminately under this paragraph for mere squabbles or other noisy conduct of minor significance. SPECIMEN CHARGE: s.33(c) Engaging in obscene conduct (on service land) (in service ship) (in service aircraft) (in service vehicle) (in a public place) Being a defence member at .. on in the junior sailors mess at HMAS Nonsuch, engaged in conduct that was obscene by removing his trousers and exposing himself to female sailors within their view. PROSECUTION PROOFS In relation to defence member: a that the accused was a defence member or a defence civilian (physical element);

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that the accused knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element);

In relation to service land, ship, aircraft etc: c that the accused was on service land (or in a service ship, service aircraft or service vehicle or in a public place) as specified (physical element); d that the accused knew or was reckless as to (c) (fault element);

In relation to obscene conduct: e f g h that the accused did a specified act or omission (physical element); that the accuseds act or omission in (e) was intentional (fault element); that the accuseds act or omission in (e) was obscene (physical element); that the accuseds act or omission in (e) was committed within the view or hearing of another person (physical element); i that the accused either knew or was reckless as to (g) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: The word obscene, as an ordinary English word, ... is used to describe things which are offensive to current standards of decency.... It can mean something that is indecent or disgusting, and can encompass conduct that is grossly vulgar or repugnant to common propriety. Obscenity must be judged objectively, based on the views of the average person in the community as opposed to the views of the most prudish or the most tolerant.33

33

See R v Close [1948] VLR 445 at 463; Crow v Graham (1968) 121 CLR 375 at 394. See also s.154 Report in the matter of Gillman (Vol 5) and s.154 Report in the matter of Cooper (Vol 7).

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For a male bather to enter the water nude in the presence of ladies would be indecent, but it would not necessarily be obscene. But if he directed the attention of a lady to a certain member of his body his conduct would certainly be obscene. The same conduct which in certain circumstances may merit only the milder description, may in other circumstances deserve a harder one. SPECIMEN CHARGE: s.33(d) Using (insulting) (provocative) words (on service land) (in service ship) (in service aircraft) (in service vehicle) (in a public place) Being a defence member at on . at the Recruit Training School, HMAS CERBERUS, used insulting words to Seaman D.A. Jones R24567 by saying to her in the presence of members of Recruit Class 2/02: You are fat, ugly and stupid and will never complete this course or words to that effect. PROSECUTION PROOFS In relation to defence member: a b that the accused was a defence member or a defence civilian (physical element); that the accused knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); In relation to service land, ship, aircraft etc: c that the accused was on service land (or in a service ship, service aircraft or service vehicle or in a public place) as specified (physical element); d that the accused knew or was reckless as to (c) (fault element);

In relation to insulting or provocative words: e that the accused used insulting or provocative words to another person (physical element); f that the accuseds act or omission in (e) was intentional (fault element);

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STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Provocative. This is not defined and should be given its ordinary meaning having regard to the context in which it is used. In general, provocative words for the purposes of s.33(d) must be likely in the view of a reasonable person to lead to a disturbance.34 Insulting. This is also not defined and whether the words used on any particular occasion will be insulting to another person will depend not only on the words used but on the circumstances and the context in which they are used. Insulting words do not necessarily have to lead to a disturbance in the same way that provocative words are interpreted.35 In a disciplined service the use of insulting and provocative words by a member to a subordinate should not be tolerated. In these situations, particularly where a subordinate is unnecessarily humiliated by the insulting or provocative words of a superior officer, charges should be brought under s.33(d). Consideration should also be given to laying charges under this section against members who use insulting or provocative words against other members, irrespective of their relative ranks, when those words are offensively racist or sexist or are otherwise likely to cause another person to be unnecessarily embarrassed, angered or humiliated. Section 34 Assaulting an inferior (1) A defence member is guilty of an offence if: (a) (b) the member assaults or ill-treats a person; and the person is a member of the Defence Force who is of inferior rank to the member.

Maximum punishment: Imprisonment for 2 years. (2) Strict liability applies to paragraph (1)(b).

Note: For strict liability, see section 6.1 of the Criminal Code.

34

See Defence Force Discipline Tribunal (DFDAT) Anning (unreported 11 May 1990). See also JAG Report in the matter of Duggan (Vol 7). See discussion on whether the DFDAT decision in Anning applies to insulting words in s.33(d) in JAG Report in the matter of Duggan (Vol 7).

35

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(3) It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, that the other person was a member of the Defence Force of inferior rank to the member.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.34(1) Assaulting an inferior Being a defence member at ........... on ........... assaulted ................, a member of the Defence Force who was inferior to him in rank by punching him in the arm. PROSECUTION PROOFS FOR ASSAULT ON INFERIOR: In relation to defence member: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); In relation to assault: c d e that the accused did a specified act to a person (physical element); that the accuseds act or omission in (c) was intentional (fault element); that the act either results in infliction of force on the person (or engenders fear in the person that force is about to be inflicted) (physical element); f g h that the other person does not consent to the result in (e) (physical element); that the result in (e) is unlawful (physical element); that the accused either knew or was reckless as to (e) (infliction of force or engendering of fear), (f) (lack of consent) and (g) (unlawfulness of the result) (fault element);

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In relation to inferior in rank: i the person in (c) was at the time a member of the Defence Force of inferior rank to the accused (physical element); and j no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical element in (i) as this element is strict liability under s.34(2). DEFENCE PROOFS: a the accused may raise the statutory defence under s.34(3)36 that he or she neither knew, nor could reasonably be expected to have known, that the person to whom the offence was committed was a person of inferior rank to the accused; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.34(1) Assaulting an inferior Being a defence member at ........... on ............. ill-treated Petty Officer Anton S. Blake a member of the Defence Force who was of inferior rank to her by making him do 100 push-ups on the hot parade ground dressed in his service dress.

36

All that this section requires the prosecution to prove is that the accused was a defence member and that he or she assaulted or ill-treated a member who was of inferior rank. Strictly speaking the prosecution does not have to establish that the accused knew, or could reasonably be expected to have known, that the alleged victim was of inferior rank. The lack of such knowledge is something that the accused may raise by way of a defence. However, if the prosecution is readily able to establish that the accused was aware that the victim was of inferior rank, then that evidence should be lead during the prosecution case, as it may not be possible to present it at a later stage.

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PROSECUTION PROOFS FOR A CHARGE OF ILL-TREATMENT OF AN INFERIOR: In relation to defence member: a b that the accused was a defence member (physical element); that the accused knew or was reckless as to the fact that he or she was a defence member (fault element); In relation to ill-treatment: c that the accused engaged in conduct (by doing or omitting to do a specified act) to a person (physical element); d e f that the accuseds act or omission in (c) was intentional (fault element); that the act amounted to ill-treatment of the person (physical element); that the accused either knew or was reckless as to (e) (fault element);

In relation to inferior in rank: g the person in (c) was at the time a member of the Defence Force of inferior rank to the accused (physical element); and h no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical element in (g) as this element is strict liability under s.34(2). DEFENCE PROOFS: a the accused may raise the statutory defence under s.34(3)37 that he or she neither knew, nor could reasonably be expected to have known, that the person to whom the offence was committed was a person of inferior rank to the accused; and

37

See footnote 19.

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if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Assault. The term assault will continue to be interpreted in accordance with its common law meaning. As assault encompasses what is referred to in common law as a common assault as well as a battery. The term assault is interpreted as a deliberate engendering in another person of the fear that unlawful force is about to be inflicted upon him or her, or the actual intended or reckless application of unlawful force to another, without his or her consent, or being reckless as to his or her consent. In relation to application of force, mere words can never amount to an assault. There must be some bodily act or gesture or touching, to any extent. The general rule is that if the victim consents to the application of force, it is not an assault. However, the consent cannot extend to causing serious bodily injury or consent obtained by fraud. Sporting contests, pub brawls and invitations outside to fight require careful scrutiny. It is not an assault if there is physical contact between two persons as part of normal social interaction. Ill-treat. There is no legal definition of ill-treat. The term must be interpreted in a military context and, in general, can be considered to encompass all forms of neglect not constituting an assault, for example, the unlawful imposition of a punishment or the deliberate and improper withholding of benefits. The following considerations would be relevant: a. b. c. Was the conduct likely to result in the person holding inferior rank suffering physical or mental ill-effects of more than a transient nature? Did the conduct have a purpose related to the proper functioning of the ADF? Was the conduct cruel, vindictive, discriminatory or humiliating?

As to the ranks of members of the Defence Force, and their relationships, see Annex A to this Chapter. Members of the armed forces of other countries may, by law, be regarded as being members of the Defence Force when formally attached to the Defence Force under the Defence Act 1903, section 116B. The name and rank of the alleged victim must be given in any charge under this section.

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Division 4Offences relating to performance of duty

Section 35 Negligent performance of duty A defence member is guilty of an offence if the member: (a) (b) is required by the member's office or appointment to perform a duty; and by act or omission, performs that duty negligently.

Maximum punishment: Imprisonment for 3 months. s.35 Negligent performance of duty Reserved. Seek legal advice in relation to use of this charge. Section 36 Dangerous conduct (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person engages in conduct; and the conduct is in or in connection with: (i) (ii) the operation, handling, servicing or storage; or the giving of directions with respect to the operation, handling, servicing or storage;

of a ship, aircraft or vehicle or a weapon, missile, explosive or other dangerous thing or equipment; and (c) (d) (e) the conduct causes, or is likely to cause, the death of or grievous bodily harm to another person; and the first-mentioned person knows of the matter mentioned in paragraph (c); and where the person mentioned in paragraph (c) is an enemy personthe conduct is not in the execution of the first-mentioned person's duty.

Maximum punishment: Imprisonment for 10 years. (2) if: A person who is a defence member or a defence civilian is guilty of an offence

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(a) (b)

the person engages in conduct; and the conduct is in or in connection with: (i) (ii) the operation, handling, servicing or storage; or the giving of directions with respect to the operation, handling, servicing or storage;

of a ship, aircraft or vehicle or a weapon, missile, explosive or other dangerous thing or equipment; and (c) (d) (e) the conduct causes, or is likely to cause, the death of or grievous bodily harm to another person; and the first-mentioned person is reckless as to the matter mentioned in paragraph (c); and where the person mentioned in paragraph (c) is an enemy personthe conduct is not in the execution of the first-mentioned person's duty.

Maximum punishment: Imprisonment for 5 years. (3) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person engages in conduct; and the conduct is in or in connection with: (i) (ii) the operation, handling, servicing or storage; or the giving of directions with respect to the operation, handling, servicing or storage;

of a ship, aircraft or vehicle or a weapon, missile, explosive or other dangerous thing or equipment; and (c) (d) (e) the conduct causes, or is likely to cause, the death of or grievous bodily harm to another person; and the first-mentioned person is negligent as to the matter mentioned in paragraph (c); and where the person mentioned in paragraph (c) is an enemy personthe conduct is not in the execution of the first-mentioned person's duty.

Maximum punishment: Imprisonment for 2 years.

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SPECIMEN CHARGE: s.36(1) Dangerous conduct with knowledge of consequences Being a defence member at .................... on ............, as the non-commissioned officer responsible for servicing aircraft engine number CAC 79, omitted to ensure that the internal circlip was fitted to the engine in accordance with Special Technical Instruction ATAR/51 knowing that this omission was likely to cause the grievous bodily harm to the pilot of the aircraft in which the engine was subsequently fitted. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element); d e that the accuseds act or omission in (c) was intentional (fault element); that the act in (d) is in or in connection with: (i) (ii) the operation, handling, servicing or storage; or the giving of directions with respect to the operation, handling, servicing or storage;

of a ship, aircraft or vehicle or a weapon, missile, explosive or other dangerous thing or equipment (physical element); f g that the accused either knew or was reckless as to (e) (fault element); that the accuseds act or omission in (d) caused, or was likely to cause, the death or grievous bodily harm of another person (physical element); h that the accused knew his or her conduct would have this result (fault element);

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where the person who has died or caused grievous bodily harm is an enemy person, that the accuseds act or omission in (d) is not in the execution of the accuseds duty (physical element);

that the accused either knew or was reckless as to (i) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.36(2) Dangerous conduct with recklessness as to consequences Being a defence member at .................... on ............ as the non-commissioned officer responsible for servicing aircraft engine number CAC 79, omitted to ensure that the internal circlip was fitted to the engine in accordance with Special Technical Instruction ATAR/51 and was reckless as to whether this omission was likely to cause the grievous bodily harm to the pilot of the aircraft in which the engine was subsequently fitted. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element); d e that the accuseds act or omission in (c) was intentional (fault element); that the act in (d) is in or in connection with: (i) (ii) the operation, handling, servicing or storage; or the giving of directions with respect to the operation, handling, servicing or storage;

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of a ship, aircraft or vehicle or a weapon, missile, explosive or other dangerous thing or equipment (physical element); f g that the accused either knew or was reckless as to (e) (fault element); that the accuseds act or omission in (d) caused, or was likely to cause, the death or grievous bodily harm of another person (physical element); h that the accused was reckless as to whether his or her conduct would have this result (fault element); i where the person who has died or caused grievous bodily harm is an enemy person, that the accuseds act or omission in (d) is not in the execution of the accuseds duty (physical element); j that the accused either knew or was reckless as to (i) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.36(3) Dangerous conduct with negligence as to consequences Being a defence member at .................... on ............., as the non-commissioned officer responsible for servicing aircraft engine number CAC 79, omitted to ensure that the internal circlip was fitted to the engine in accordance with Special Technical Instruction ATAR/51 and was negligent as to whether this omission was likely to cause the grievous bodily harm to the pilot of the aircraft in which the engine was subsequently fitted. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element);

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that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element);

d e

that the accuseds act or omission in (c) was intentional (fault element); that the act in (d) is in or in connection with: (i) (ii) the operation, handling, servicing or storage; or the giving of directions with respect to the operation, handling, servicing or storage;

of a ship, aircraft or vehicle or a weapon, missile, explosive or other dangerous thing or equipment (physical element); f g that the accused either knew or was reckless as to (e) (fault element); that the accuseds act or omission in (d) caused, or was likely to cause, the death or grievous bodily harm of another person (physical element); h that the accused was negligent as to whether his or her conduct would have this result (fault element); I where the person who has died or caused grievous bodily harm is an enemy person, that the accuseds act or omission in (d) is not in the execution of the accuseds duty (physical element; J that the accused either knew or was reckless as to (i) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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COMMENTARY: Likely. This is not defined and has its ordinary meaning in the context. It has the meaning in relation to a possible outcome, of seeming as if it would happen38 or that there is a reasonable probability that it will happen. On a charge that the accuseds behaviour is likely to cause death or grievous bodily harm it is not necessary that another person has actually suffered death or grievous bodily harm. Grievous bodily harm. This is to be given its ordinary and natural meaning of serious bodily harm. Where the person intentionally causes death, a charge of murder should ordinarily be laid against the person instead of a charge under this subsection. Where the person intentionally causes grievous bodily harm, consideration should be given to laying a charge under DFDA s.61 and the Crimes Act, 1900 (ACT) in its application to the Jervis Bay Territory, section 19,39 against the person instead of a charge under this subsection. Section 36A Unauthorised or negligent discharge of weapon (1) offence if: (a) (b) A person who is a defence member or a defence civilian is guilty of an the person discharges a weapon; and the person is not authorised to discharge the weapon in the circumstances in which the discharge takes place.

Maximum punishment: Imprisonment for 6 months. (2) A person who is a defence member or a defence civilian is guilty of an offence if, by act or omission, the person negligently causes or contributes to the discharge of a weapon. Maximum punishment: Imprisonment for 6 months.

38

The Shorter Oxford English Dictionary (C.T. Onions, Ed) 3rd Ed., Oxford: The Clarendon Press, 1968. See Part 7 of Vol. 2. See generally the offences in the Crimes Act 1900 (ACT) Part III.

39

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SPECIMEN CHARGE: S.36A(1) Unauthorised discharge of weapon Being a defence member at ............. on ............, discharged a Steyr Rifle on the rifle range when she was not authorised to do so. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused knew or was reckless as to the fact that he or she was a defence member (fault element); c d e that the accused discharged a weapon (physical element); that the accuseds act or omission in (c) was intentional (fault element); that the accused was not authorised to discharge the weapon in the circumstances in which the discharge occurred (physical element); f that the accused either knew or was reckless as to (e) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.36A(2) Negligent discharge of weapon Being a defence member at ............ on ............., negligently caused the discharge of a weapon by failing to remove the loaded magazine on his Steyr Rifle whilst carrying the unload procedure. PROSECUTION PROOFS: a that the accused was a defence member (physical element);

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that the accused knew or was reckless as to the fact that he or she was a defence member (fault element);

that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element);

d e

that the accuseds act or omission in (c) was negligent (fault element); that the accuseds act or omission causes (or contributes) to the discharge of a weapon (physical element); and

that the accused was negligent as to the result in (e) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Act or omission. An offence under s.36A(2) may be committed by performing a negligent act which contributes to or causes a weapon to discharge or by negligently failing to do something the omission contributing to or causing a weapon to discharge. Unauthorised is not defined and is a question of fact to be determined by the Service tribunal as to whether the discharge of the weapon was or was not authorised in the circumstances. If the circumstances of the unauthorised discharge are such that it is likely to cause the death of or grievous bodily harm to another person, the member is to be charged under s.36 Dangerous Conduct. An offence under this section is only committed when the accused acts intentionally and this results in an unauthorised discharge or the accused is negligent and this contributes to or causes a weapon to discharge. No offence is committed under this section if a weapon accidentally discharges in circumstances in which no blame can be attached to the accused, eg a member faints on parade resulting in a weapon discharging or a weapon which has been made safe, nonetheless discharges when accidentally dropped or is otherwise bumped. However, if the weapon discharges in these circumstances because the member has failed to make safe the weapon, the member has committed an offence under this section.

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In addition, a member may be charged under another section if the circumstances of the discharge so warrant, eg s.27 (Disobedience of a Lawful Command), s.29 (Failure to Comply with a Lawful General Order) or s.60 (Prejudicial conduct). Section 37 Intoxicated while on duty etc. (1) A defence member is guilty of an offence if: (a) (b) the member is on duty, or reports or should report for duty; and the member is intoxicated (see subsection (3)).

Maximum punishment: Imprisonment for 6 months. (2) An offence under this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) For the purposes of this section, a person is intoxicated if, and only if, the person's faculties are, because of the person being under the influence of intoxicating liquor or a drug (other than a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the person is unfit to be entrusted with the person's duty or with any duty that the person may be called on to perform. SPECIMEN CHARGE: s.37 Being intoxicated (while on duty) (when reporting for duty) (when required to report for duty) Being a defence member at ............ on ............., was intoxicated while on duty as a security sentry at the Joint Warfare Centre. s.37 Being intoxicated (while on duty) (when reporting for duty) (when required to report for duty) Being a defence member at ............. on ............., was intoxicated when he reported for duty as a steward at the Officers Mess at the School of Artillery. PROSECUTION PROOFS: a that the accused was a defence member (physical element);

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that the accused was on duty (or reported for duty or was supposed to have reported for duty) (physical element);

c d

the accused was intoxicated as defined in s.37(3) (physical element); and no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements in (a), (b) or (c) as this is an offence of strict liability under s.37(2).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Any person may give his or her opinion whether or not the accused was intoxicated but the opinion will have little weight unless the witness describes the symptoms on which the opinion is based ie. slurred speech, unable to maintain balance, unsteady on feet, dishevelled appearance, breath smelling of alcohol, bloodshot eyes etc.40 The time between when a member last consumed alcohol and when the member was required to report for or perform a duty is not necessarily an impediment to framing a charge under this section. For example, a member may present to work after having drunk heavily the previous evening and still retain a quantity of alcohol in his/her system that continues to act thereupon. Accordingly, it could transpire that the accused could be regarded as being under the influence of intoxicating liquor (within the deeming provision of section 37(3)) notwithstanding that the accused last consumed alcohol a number of hours previously. Section 38 Malingering (1) A defence member is guilty of an offence if, with intent to make or keep himself or herself unfit for duty or service, the member: (a) injures himself or herself or causes or permits himself or herself to be injured; or

40

See discussion on opinion evidence in Chapter 6.

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(b)

by act or omission, causes himself or herself to suffer from a sickness or disability or prolongs or aggravates a sickness or disability from which he or she is suffering.

Maximum punishment: Imprisonment for 12 months. (2) A defence member is guilty of an offence if: (a) (b) (c) (d) the member represents himself or herself to be suffering from a physical or mental condition; and the member makes the representation with intent to avoid duty or service; and the representation is false; and the member knows that the representation is false.

Maximum punishment: Imprisonment for 12 months. SPECIMEN CHARGE: s.38(1)(a) Malingering self injury Being a defence member at .................. on .........., with intent to make herself unfit for service injured herself by shooting herself in the foot. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused injured himself or herself or caused or permitted himself or herself to be injured (physical element); d that the accuseds act or omission in (c) was intended to make or keep himself or herself unfit for duty or service (fault element). STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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SPECIMEN CHARGE: s.38(1)(b) Malingering prolonging sickness or disability Being a defence member at ................. on .........., with intent to keep himself unfit for duty as a forward observer on the Majura range, caused himself to aggravate a disability from which he was suffering by engaging in heavy lifting and thereby aggravating a hernia. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element); d that the accuseds act or omission in (c) was intended to make or keep himself or herself unfit for duty or service (fault element); e that the accuseds act or omission in (c) resulted in the accused suffering from a sickness or disability, or prolonged or aggravated a sickness or disability from which he or she was suffering (physical element); f that the accused either knew or was reckless as to the result in (e) (fault element). STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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SPECIMEN CHARGE: s.38(2) Malingering falsely representing oneself as suffering from physical or mental condition Being a defence member at ................. on ..........., with intent to avoid duty as a crewman in Seaking Helicopter H123 during Exercise Kangaroo 2002, falsely represented himself to be suffering from severe tendonitis of the right shoulder, knowing that the representation was false. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused represented himself or herself to be suffering from a physical or mental condition as specified (physical element); d that the accuseds representation in (c) was intended to avoid duty or service (fault element); e f that the accuseds representation was false (physical element); that the accused knew the representation was false (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Unfit. The unfitness may be temporary or permanent. Duty or service. Where the charge refers to duty, the nature of the duty should be specified. Where the charge relates to service, the nature of the service may or may not need to be specified according to the circumstances.

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Division 5Offences relating to ships, vehicles, aircraft and weapons

Section 39 Loss of, or hazard to, service ship (1) A defence member is guilty of an offence if: (a) (b) (c) the member engages in conduct; and the conduct causes or allows a service ship to be lost, stranded or hazarded; and the member intends that the conduct will have that result.

Maximum punishment: Imprisonment for 5 years. (2) A defence member is guilty of an offence if: (a) (b) (c) the member engages in conduct; and the conduct causes or allows a service ship to be lost, stranded or hazarded; and the member is reckless as to whether the conduct will have that result.

Maximum punishment: Imprisonment for 2 years. (3) A defence member is guilty of an offence if: (a) (b) (c) the member engages in conduct; and the conduct causes or allows a service ship to be lost, stranded or hazarded; and the member is negligent as to whether the conduct will have that result.

Maximum punishment: Imprisonment for 6 months. SPECIMEN CHARGE: s.39(1) Intentionally causing (loss of) (stranding of) (hazarding of) service ship Being a defence member at ............ on ............., with the intention of causing a service ship to be lost, ordered Lieutenant. O. Wilde RAN, the Officer of the Watch, to take HMAS Nonsuch into waters less than 3 metres in depth and thereby caused that service ship to be lost.

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PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element); d e that the accuseds act or omission in (c) was intentional (fault element); that the accuseds act or omission in (c) caused or allowed a service ship to be lost, stranded or hazarded (physical element); f that the accused intended that his or her act or omission in (c) would have the result in (e) (fault element). STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.39(2) Recklessly causing (loss of) (stranding of) (hazarding of) service ship Being a defence member at ............ on ............, being reckless as to whether a service ship would be stranded, ordered Lieutenant. O. Wilde RAN, the Officer of the Watch of HMAS Nonsuch, to take that ship into uncharted waters within 1 mile of Cape Disaster and thereby caused that service ship to be stranded. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element);

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that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element);

d e

that the accuseds act or omission in (c) was intentional (fault element); that the accuseds act or omission in (c) caused or allowed a service ship to be lost, stranded or hazarded (physical element);

that the accused was reckless as to whether his or her act or omission in (c) would have the result in (e) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.39(3) Negligently causing (loss of) (stranding of) (hazarding of) service ship Being a defence member at ............ on .........., being negligent as to whether a service ship would be stranded, ordered Lieutenant. O. Wilde RAN, the Officer of the Watch of HMAS Nonsuch, to take that ship into uncharted waters within 1 mile of Cape Disaster and thereby caused that service ship to be stranded. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element); d e that the accuseds act or omission in (c) was intentional (fault element); that the accuseds act or omission in (c) caused or allowed a service ship to be lost, stranded or hazarded (physical element);

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that the accused was negligent as to whether his or her act or omission in (c) would have the result in (e) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: The particulars should allege only those matters which can be proved to have brought about the loss, stranding or hazarding in circumstances constituting negligence. Matters should not be alleged which of themselves, or in combination with other matters, were incapable of having caused the loss etc even though, in the given circumstances, they may have been capable of constituting negligence. In this regard it is therefore important to distinguish between the conduct which is likely to have brought about the incident and the conduct which, although constituting breaches of established or recommended navigational practice are not causally connected with the loss, stranding or hazarding. For example, in a case arising from a collision between two ships, the failure by either commanding officer to sound his ships siren, after it had become apparent that collision was inevitable, should not be alleged as a particular of negligence. Similarly, in a case where a ship runs aground on an unknown or uncharted object in waters which were hitherto regarded as being well-charted, the particulars should not allege any conduct against the accused which relies on knowledge by the accused of the existence of the uncharted danger unless, in all the circumstances of the case, the accused should have been aware of the probable existence of the danger. Even in these circumstances, consideration must be given to whether the conduct alleged did in fact contribute directly to the grounding or was merely incidental to it. The particular conduct by the accused which is alleged to constitute the offence should be set out concisely on the charge sheet. These particulars should not attempt to provide an outline of the evidence intended to be adduced by the prosecution, nor should they allege failure to comply with a general orderas this may amount to allegation of a separate offence under s.29 of the DFDA and be bad for duplicity. Causes or allows. This is not defined. The behaviour of the accused may consist of something done by the accused or may consist of a failure by the accused to act. It is only permissible to plead either causes or allows in a particular charge. A charge pleading both will be bad for duplicity. Loss. This is not defined. It means total loss. A surface ship can be lost without necessarily being lost to view as, for example, when salvage operations for her recovery are abandoned. Salvage operations undertaken for the purpose merely of saving anything of value that may be in the hull, but not the hull itself, will not prevent a ship

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from being regarded as lost. A vessel which is wholly submerged and incapable of coming to the surface by her own efforts is lost within the meaning of this section.41 Stranded. This is not defined. It is not sufficient to prove that the ship touched ground. It must be established that the ship ran aground or into some object affixed to the ground, such as a groyne, and remained fast for a time, rather than momentarily. A ship is not stranded if she scrapes over a shoal patch.42 Hazarded. This is not defined. It has its ordinary meaning of being exposed to danger. When a large ship is brought into risk of collision with a small boat which could not endanger her, the large ship cannot be said to be hazarded.43 If the behaviour of the accused caused or was likely to have caused death or grievous bodily harm to another person, consideration should be given to charging the accused with an offence against section 36 (Dangerous behaviour). STATUTORY ALTERNATIVE OFFENCES AND ALTERNATIVE CHARGES. 454A. Where a service tribunal acquits a person of an offence under section 39(1) but is satisfied beyond reasonable doubt that the person is guilty of an offence under sections 39(2) or 39(3) it may convict on either of these offences. Similarly, a Service tribunal may convict of an offence under section 39(3) where it has acquitted the accused under section 39(2). Where, however, a person is charged under section 39(3) no statutory alternative is provided by the DFDA. In this situation it may be appropriate to include a specific alternative charge on the charge sheet. For example, where an offence against s.39(3) for negligently stranding is alleged, and some doubt exists as to whether the ship remained fast for a time, it may be appropriate to charge in the alternative the offence of s.39(3) for negligently hazarding. Similarly, where the principal charge alleges that the accused negligently caused the stranding or hazarding it may be appropriate to include an alternative charge of negligently allowing the stranding or hazarding (as the case may be). In fairness to the accused, however, if an essential ingredient of the principal charge is unlikely to be able to be proved beyond reasonable doubt, the charge should not be alleged against the accused and then backed-up by an alternative charge. Section 40 Driving while intoxicated (1) if: A person who is a defence member or a defence civilian is guilty of an offence

41

Based on a note to Naval Discipline Act, 1957 (Imp), s.19 (loss or hazarding of ship or aircraft) in the (Aust) Manual of Naval Law (1970). See footnote 52 See footnote 52.

42

43

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(a) (b)

the person drives a service vehicle in any place, whether a public place or not; and the person is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle.

Maximum punishment: Imprisonment for 12 months. (2) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person drives a vehicle on service land; and the person is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle.

Maximum punishment: Imprisonment for 12 months. (3) An offence under this section is an offence of absolute liability.

Note: For absolute liability, see section 6.2 of the Criminal Code. SPECIMEN CHARGE: s.40(1) Driving a service vehicle while intoxicated Being a defence member at ..................... on .......... drove a service vehicle registered number ARN 0-111 on the Hume Highway while under the influence of intoxicating liquor to such an extent as to be incapable of having proper control of the vehicle. PROSECUTION PROOFS: a b c that the accused was a defence member or a defence civilian (physical element); that the accused drove a service vehicle in a specified place (physical element); that that accused was under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle (physical element);

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no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical elements in (a), (b) or (c) as this is an offence of absolute liability under s.40(3).

STATUTORY CRIMINAL CODE DEFENCES: a This section creates offences of absolute liability to which s.6.2(1) of the Criminal Code applies. See Commentary below for text of s.6.2(1) of the Criminal Code. b The specification of absolute liability means that the defence of mistake of fact under s.9.2 is not available to an accused who has been charged with an offence against this section. c Other statutory defences found in the Criminal Code are available. These are discussed in the Commentary on s.23. SPECIMEN CHARGE: s.40(2) Driving a vehicle on service land while intoxicated Being a defence member at........................ on ................ drove a Ford Falcon vehicle, registration number YMR 210, from the RAAF Base East Sale Officers Mess to the main gate whilst under the influence of intoxicating liquor to such an extent as to be incapable of having proper control of the vehicle. PROSECUTION PROOFS: a b c that the accused was a defence member or a defence civilian (physical element); that the accused drove a vehicle on service land (physical element); that that accused was under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle (physical element);

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no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical elements in (a), (b) or (c) as this is an offence of absolute liability under s.40(3).

STATUTORY CRIMINAL CODE DEFENCES: a This section creates offences of absolute liability to which s.6.2(1) of the Criminal Code applies. See Commentary below for text of s.6.2(1) of the Criminal Code. b The specification of absolute liability means that the defence of mistake of fact under s.9.2 is not available to an accused who has been charged with an offence against this section. c Other statutory defences found in the Criminal Code are available. These are discussed in the Commentary on s.23. COMMENTARY: Absolute Liability. Absolute liability in relation to an offence applies as specified in s.6.2(1) of the Criminal Code as follows: 6.2 Absolute Liability (1) If a law that creates an offence provides that the offence is an offence of absolute liability: (a) (b) there are no fault elements for any of the physical elements of the offence; and the defence of mistake of fact under section 9.2 is unavailable.

Civilian Jurisdiction. Although s.40 may literally enable Service tribunals to deal with some driving offences which occur in places other than on service land the section is not intended to oust the jurisdiction of the civil courts in relation to such offences. On the contrary, most offences which occur off base will continue to be prosecuted by the civil police in the civil courts. However, cases may arise from time to time where it is more appropriate to deal with driving offences under the DFDA. For example in remote localities and in some overseas countries there may be a shortage of police or a likelihood of an unreasonable delay in having a matter dealt with. As a general rule the consent of the local civil authorities should be obtained before a Service tribunal hears a charge relating to the use of vehicles off base. This rule does not apply, however, where it appears in the circumstances of the case that the interests of justice will not be

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well served by having the case dealt with by the civil authorities. In such a case advice should be sought from the appropriate Service administrative authority as to which course to follow. Drive. This includes ride, eg riding a motorcycle. This section does not refer to a person being in charge of a vehicle and decisions based on the use of those or similar words in State and Territory road traffic laws are not relevant to this section. Vehicle. This is not defined. It has its ordinary meaning. Under the influence of intoxicating liquor or a drug. Any person may give his or her opinion whether or not the accused was under the influence of intoxicating liquor or a drug but the opinion will have little weight unless the witness describes the symptoms on which the opinion is based is based ie. slurred speech, unable to maintain balance, unsteady on feet, dishevelled appearance, breath smelling of alcohol, bloodshot eyes etc.44 See Chapter 3, paragraph 3.106 as to the medical examination of persons suspected of being under the influence of intoxicating liquor or a drug. Section 40A Dangerous driving (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person drives a service vehicle in any place, whether a public place or not; and the person does so at a speed, or in a manner, dangerous to another person in that place.

Maximum punishment: Imprisonment for 6 months. (2) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person drives a vehicle on service land; and the person does so at a speed, or in a manner, dangerous to another person on that land.

Maximum punishment: Imprisonment for 6 months. (3) Absolute liability applies to paragraphs (1)(a) and (2)(a).

44

See discussion on opinion evidence in Chapter 6.

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Note: For absolute liability, see section 6.2 of the Criminal Code.

(4)

Strict liability applies to paragraphs (1)(b) and (2)(b).

Note: For strict liability, see section 6.1 of the Criminal Code.

SPECIMEN CHARGE: s.40A(1) Dangerous driving of a service vehicle Being a defence member at........................ on ..............., drove a service vehicle registered number ARN-111 in a public place, namely, the service road into Wayoutback NT, in a manner dangerous to another person by crossing over double yellow lines and remaining on the wrong side of the road for a distance of about 1 kilometre. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c d that the accused drove a vehicle in a specified place (physical element); no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical element in (c) as this is an element of absolute liability under s.40A(3); e that accuseds driving was at a speed or in a manner dangerous to another person in the specified place (physical element); f no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical element in (e) as this is an element of strict liability under s.40A(4).

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STATUTORY CRIMINAL CODE DEFENCES: g In this offence absolute liability has been specified to apply to the physical elements in s.40A(1)(a) and s.40A(2)(a). Section 6.2(2) of the Criminal Code applies to these elements. See Commentary below for text of s.6.2(2) of the Criminal Code. h The application of absolute liability means that the defence of mistake of fact under section 9.2 of the Criminal Code is not available to an accused who wishes to rely on it in relation to the physical elements in s.40A(1)(a) and s.40A(1)(b). i Other statutory defences found in the Criminal Code are available. These are discussed in the Commentary on s.23. SPECIMEN CHARGE: s.40A(2) Dangerous driving of a vehicle on service land Being a defence member at......................... on .............. did drive a vehicle, namely a Toyota Corona sedan registration number HIE 614, at a speed dangerous to another person by driving at a speed of 100 kilometres an hour through the married quarters area at RAAF Base Richmond. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c d that the accused drove a vehicle on service land (physical element); no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical element in (c) as this is an element of absolute liability under s.40A(3);

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that accuseds driving was at a speed or in a manner dangerous to another person in the specified place (physical element);

no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical element in (e) as this is an element of strict liability under s.40A(4).

STATUTORY CRIMINAL CODE DEFENCES: a In this offence absolute liability has been specified to apply to the physical elements in s.40A(1)(a) and s.40A(2)(a). Section 6.2(2) of the Criminal Code applies to these elements. See Commentary below for text of s.6.2(2) of the Criminal Code. b The application of absolute liability means that the defence of mistake of fact under section 9.2 of the Criminal Code is not available to an accused who wishes to rely on it in relation to the physical elements in s.40A(1)(a) and s.40A(1)(b). c Other statutory defences found in the Criminal Code are available. These are discussed in the Commentary on s.23. COMMENTARY: Absolute Liability. Absolute liability where applied to a physical element in an offence is defined in s.6.2(2) of the Criminal Code as follows: 6.2 Absolute Liability (2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence: (a) (b) there are no fault elements for that physical element; and the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.

Drive. This includes ride, eg riding a motorcycle. This section does not refer to a person being in charge of a vehicle and decisions based on the use of those or similar words in State and Territory road traffic laws are not relevant to this section. Vehicle. This is not defined. It has its ordinary meaning.

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Driving at a speed, or in a manner, dangerous. The meaning of this phrase was set out by Starke, J. in the case of R. v Coventry45 where he said:
The offence is established if it be proved that the acts of the driver create danger, real or potential, to the public. Advertence to the danger on the part of the driver is not essential; all that is essential is proof that the acts of the driver constitute danger, real or potential, to the public. But whether such danger exists depends upon all the circumstances of the case, eg, the character and condition of the roadway, the amount and nature of the traffic that might be expected, the speed of the motor vehicle, the observance of traffic signals, the condition of the drivers car, especially if he knew, for instance, that his brakes were out of order and so forth.

If the driver is adversely affected by drink, this fact is a circumstance relevant to the issue whether he or she was driving dangerously. Speed. To drive a motor car on a highway at a speed dangerous to another person is not an offence consisting solely of exceeding a speed limit fixed under an Act. Excessive speed alone may, although it will not necessarily in all cases, constitute dangerous driving, and where the speed at which a vehicle is driven is in itself a dangerous speed no other circumstances need be taken into consideration. Manner. Manner of driving includes all matters connected with the management and control of a car by a driver when it is being driven. It includes starting and stopping, signalling or failing to signal, and sounding a warning or failing to sound a warning, as well as other matters affecting the speed at which, and the course in which, the car is driven. Section 40B Negligent conduct in driving (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person drives a service vehicle in any place, whether a public place or not; and in doing so, the person engages in negligent conduct.

Maximum punishment: Imprisonment for 3 months. (2) if: A person who is a defence member or a defence civilian is guilty of an offence (a) the person drives a vehicle on service land; and

45

(1938) 59 CLR 633.

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(b)

in doing so, the person engages in negligent conduct.

Maximum punishment: Imprisonment for 3 months. (3) Absolute liability applies to paragraphs (1)(a) and (2)(a).

Note: For absolute liability, see section 6.2 of the Criminal Code.

Reserved. Seek legal advice in relation to use of this charge. Section 40C Driving a service vehicle for unauthorised purpose (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) the person: (i) (ii) (b) drives a service vehicle in any place, whether a public place or not; and is not authorised to drive that vehicle; or

the person uses a service vehicle for an unauthorised purpose.

Maximum punishment: Imprisonment for 3 months. (2) An offence under this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code. (3) It is a defence to a charge under subsection (1) if the person proves that he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.40C(1)(a) Driving a service vehicle while not authorised Being a defence member at ...................... on .................. without being authorised to drive a Service vehicle, did drive Service vehicle ZOO-112 from Albury to Wodonga. PROSECUTION PROOFS: a that the accused was a defence member or a defence civilian (physical element);

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b c

that the accused drove a service vehicle in a specified place (physical element); that the accused was not authorised to drive the service vehicle in (b) (physical element);

no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical elements in (a), (b) and (c) as this is an offence of strict liability under s.40C(2);

DEFENCE PROOFS: a the accused may raise the statutory defence under s.40C(3) that he or she had a reasonable excuse for the relevant conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Drive. This includes ride, eg riding a motorcycle. This section does not refer to a person being in charge of a vehicle and decisions based on the use of those or similar words in State and Territory road traffic laws are not relevant to this section. Vehicle. This is not defined. It has its ordinary meaning. Civilian Jurisdiction. Although s.40 may literally enable Service tribunals to deal with some driving offences which occur in places other than on service land the section is not intended to oust the jurisdiction of the civil courts in relation to such offences. On the contrary, most offences which occur off base will continue to be prosecuted by the civil police in the civil courts. However, cases may arise from time to time where it is more appropriate to deal with driving offences under the DFDA. For example in remote localities and in some overseas countries there may be a shortage of police or a likelihood of an unreasonable delay in having a matter dealt with. As a general rule the consent of the local civil authorities should be obtained before a Service tribunal hears a charge relating to the use of vehicles off base. This rule does not apply, however, where it appears in the circumstances of the case that the interests of justice will not be well served by having the case dealt with by the civil authorities. In such a case advice should be sought from the appropriate Service administrative authority as to which course to follow.

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SPECIMEN CHARGE: s.40C(1)(b) Using a service vehicle for an unauthorised purpose Being a defence member at ........................ on .................. did use Service vehicle ZOO-113 for an unauthorised purpose namely to do his Christmas shopping at Westfield shopping centre, Frankston. PROSECUTION PROOFS: a b c that the accused was a defence member or a defence civilian (physical element); that the accused used a service vehicle (physical element); that the purpose for which the vehicle was used was unauthorised (physical element); d no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical elements in (a), (b) and (c) as this is an offence of strict liability under s.40C(2); DEFENCE PROOFS: a the accused may raise the statutory defence under s.40C(3) that he or she had a reasonable excuse for the relevant conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Use. This is not defined. It has its ordinary meaning which is wider in scope that drive. Drive. This includes ride, eg riding a motorcycle. This section does not refer to a person being in charge of a vehicle and decisions based on the use of those or similar words in State and Territory road traffic laws are not relevant to this section.

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Vehicle. This is not defined. It has its ordinary meaning. Civilian Jurisdiction. Although s.40 may literally enable Service tribunals to deal with some driving offences which occur in places other than on service land the section is not intended to oust the jurisdiction of the civil courts in relation to such offences. On the contrary, most offences which occur off base will continue to be prosecuted by the civil police in the civil courts. However, cases may arise from time to time where it is more appropriate to deal with driving offences under the DFDA. For example in remote localities and in some overseas countries there may be a shortage of police or a likelihood of an unreasonable delay in having a matter dealt with. As a general rule the consent of the local civil authorities should be obtained before a Service tribunal hears a charge relating to the use of vehicles off base. This rule does not apply, however, where it appears in the circumstances of the case that the interests of justice will not be well served by having the case dealt with by the civil authorities. In such a case advice should be sought from the appropriate Service administrative authority as to which course to follow. Section 40D Driving without due care or attention etc. (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person drives a service vehicle in any place, whether a public place or not; and the person does so without due care and attention or without reasonable consideration for another person in that place.

Maximum punishment: (c) (d) (2) if: if the person is a member of the Defence Forcea fine of the amount of the member's pay for 7 days; or in any other casea fine of $100.

A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person drives a vehicle on service land; and the person does so without due care and attention or without reasonable consideration for another person on that land.

Maximum punishment: (c) if the person is a member of the Defence Forcea fine of the amount of the member's pay for 7 days; or

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(d) (3)

in any other casea fine of $100.

An offence under this section is an offence of absolute liability.

Note: For absolute liability, see section 6.2 of the Criminal Code.

SPECIMEN CHARGE: s.40D(1) Driving a service vehicle without due care and attention or without reasonable consideration Being a defence member at ....................... on ................... drove Service vehicle ZOO114 without due care and attention and thereby collided with the stop sign at the intersection of Mangana Place and Domain Street, Foreignville Orangeland. PROSECUTION PROOFS: a b c that the accused was a defence member or a defence civilian (physical element); that the accused drove a service vehicle in a specified place (physical element); that the accused drove without due care and attention or without reasonable consideration for another person in that place (physical element); d no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical elements in (a), (b) and (c) as this is an offence of absolute liability under s.40D(3). STATUTORY CRIMINAL CODE DEFENCES: e This section creates offences of absolute liability to which s.6.2(1) of the Criminal Code applies. See Commentary below for text of s.6.2(1) of the Criminal Code. f The specification of absolute liability means that the defence of mistake of fact under s.9.2 of the Criminal Code is not available to an accused who has been charged with an offence against this section. g Other statutory defences found in the Criminal Code are available. These are discussed in the Commentary on s.23.

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SPECIMEN CHARGE: s.40D(2) Driving a vehicle on service land without due care and attention or without reasonable consideration Being a defence member at ........................ on ............. drove a vehicle, namely a Holden Commodore, registration number ABC 123, without due care and attention and thereby collided with a Ford Falcon sedan, registration number 888-NBO which was parked in the car park on RAAF Base Amberley. PROSECUTION PROOFS: a b c that the accused was a defence member or a defence civilian (physical element); that the accused drove a vehicle on service land (physical element); that the accused drove without due care and attention or without reasonable consideration for another person in that place (physical element); d no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical elements in (a), (b) and (c) as this is an offence of absolute liability under s.40D(3). STATUTORY CRIMINAL CODE DEFENCES: a This section creates offences of absolute liability to which s.6.2(1) of the Criminal Code applies. See Commentary below for text of s.6.2(1) of the Criminal Code. b The specification of absolute liability means that the defence of mistake of fact under s.9.2 of the Criminal Code is not available to an accused who has been charged with an offence against this section. c Other statutory defences found in the Criminal Code are available. These are discussed in the Commentary on s.23.

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COMMENTARY: Absolute Liability. Absolute liability is defined in s.6.2(1) of the Criminal Code as follows: 6.2 Absolute Liability (1) If a law that creates an offence provides that the offence is an offence of absolute liability: (a) (b) there are no fault elements for any of the physical elements of the offence; and the defence of mistake of fact under section 9.2 is unavailable.

Without due care and attention. . In a case dealing with a charge of driving without due care and attention the court had the following to say:
That standard is an objective standard, improved and universal, fixed in relation to the safety of other users of the highway. It is in no way related to the degree of proficiency or degree of experience attained by the individual driver. The question is not a question dependent upon inexperience or lack of skill. It is a question dependent upon lack of care and attention. I think that it is not without significance that the statute uses both the word care and the word attention. In other words, any driver, whoever he may be, experienced or inexperienced, must see what he is about. He must pay attention to the thing he is doing, and, perceiving that which he is doing or entering upon, he must do his best, and he must show proper care in the doing of that thing upon which he is intent . . . Due care and attention is something not related to the proficiency of the driver, but governed by the essential needs of the public on the highway.46

Civilian Jurisdiction. Although s.40 may literally enable Service tribunals to deal with some driving offences which occur in places other than on service land the section is not intended to oust the jurisdiction of the civil courts in relation to such offences. On the contrary, most offences which occur off base will continue to be prosecuted by the civil police in the civil courts. However, cases may arise from time to time where it is more appropriate to deal with driving offences under the DFDA. For example in remote localities and in some overseas countries there may be a shortage of police or a likelihood of an unreasonable delay in having a matter dealt with. As a general rule the consent of the local civil authorities should be obtained before a Service tribunal hears a charge relating to the use of vehicles off base. This rule does not apply, however, where it appears in the circumstances of the case that the interests of justice will not be well served by having the case dealt with by the civil authorities. In such a case advice should be sought from the appropriate Service administrative authority as to which course to follow.

46

McCrone v Riding [1938] 1 All ER 157 at p 158 per Lord Hewart, LCJ.

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Section 41 Low flying (1) A defence member is guilty of an offence if: (a) (b) (c) (d the member flies a service aircraft; and by or in accordance with a lawful general order, there is a minimum height at which the member is authorised to fly; and the height at which the member flies is less than that minimum height; and the member is reckless or negligent as to the matter in paragraph (c).

Maximum punishment: Imprisonment for 12 months. (2) Strict liability applies to paragraph (1)(b).

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, of the general order.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.41(1) Flying a service aircraft below the minimum height Being a defence member at ................ on ................., flew a service aircraft being a Macchi jet trainer MK 368 over Point Perpendicular at a height lower than the minimum height of 1000 metres at which he was authorised to fly by or in accordance with a lawful general order, namely, the Standing Orders for 819 Squadron issued on ..200X. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused flew a service aircraft (physical element);

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d e

that the accuseds conduct in (c) was intentional (fault element); that a lawful general order specified a minimum height at which the accused was authorised to fly the aircraft (physical element);

no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical element in (e) as this is an element of strict liability under s.41(2);

g a.

that the height the accused flew the aircraft at in (c) was less that the specified minimum height (physical element); that the accused was reckless or negligent as to (g) (fault element);

DEFENCE PROOFS: a the accused may raise the statutory defence under s.41(3) that he or she neither knew nor could reasonably be expected to have known of the general order; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: General order, Lawful general order. See the commentary on section 29 (Failure to comply with general order). By or in accordance with a lawful general order. Minimum flying heights may be laid down in a general order or a general order may authorise a particular officer to set minimum flying heights. Section 42 Inaccurate certification in relation to ships, aircraft, vehicles etc. A person who is a defence member or a defence civilian is guilty of an offence if: (a) the person gives a certificate, makes or signs a document or makes an entry in a document; and

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(b)

the certificate, document or entry relates to any matter affecting the safety or efficiency of a service ship, service aircraft, service vehicle, service missile or service weapon; and the person does not take reasonable care to ensure the accuracy of the certificate, document or entry.

(c)

Maximum punishment: Imprisonment for 12 months. SPECIMEN CHARGE: s.42 Giving inaccurate certification to a matter affecting a (service ship) (service aircraft) (service vehicle) (service missile) (service weapon) Being a defence member at ........................ on ............. made an entry in the Daily Security Record that rounds were correct at 2230 hours on 1 May 2002 without having taken reasonable care to ensure the accuracy of the record. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused gave a certificate or made or signed a document or made an entry in a document (physical element); d e that the accuseds act or omission in (c) was intentional (fault element); the certificate, document or entry in (c) related to a matter affecting the safety or efficiency of a service ship, service aircraft, service vehicle, service missile or service weapon (physical element); f g that the accused either knew or was reckless as to (e) (fault element); that the accused did not reasonable care to ensure the accuracy of the certificate, document or entry (physical element);

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that the accused either knew or was reckless as to (g) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Certificate. This is not defined. It has its ordinary meaning of a document wherein a fact is formally certified. Document. Section 25 of the Acts Interpretation Act 1901(Cth) provides as follows: 25. In any Act, unless the contrary intention appears: document includes: (a) (b) (c) any paper or other material on which there is writing, any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;

record includes information stored or recorded by means of a computer; writing includes any mode of representing or reproducing words, figures, drawings or symbols in a visible form.

Division 5AProperty offences Subdivision AService property offences

Section 43 Destroying or damaging service property (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person engages in conduct; and the conduct results in the destruction of, or damage to, service property; and

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(c)

the person intends that result.

Maximum punishment: Imprisonment for 5 years. (2) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) (c) the person engages in conduct; and the conduct results in the destruction of, or damage to, service property; and the person is reckless as to that result.

Maximum punishment: Imprisonment for 2 years. (3) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) (c) the person engages in conduct; and the conduct results in the destruction of, or damage to, service property; and the person is negligent as to that result.

Maximum punishment: Imprisonment for 6 months. (4) It is a defence to a charge under subsection (1) if the person proves that he or she had a reasonable excuse for engaging in the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.43(1) Intentionally (destroying) (damaging) service property Being a defence member at ........... on ............, intending that service property would be damaged, punched the plate glass window in the General Smith Officers Mess at 10 Blanket-Folding Battalion resulting in damage to the glass. PROSECUTION PROOFS: a that the accused was a defence member or a defence civilian (physical element);

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that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element);

that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element);

d e

that the accuseds act or omission in (c) was intentional (fault element); that the act or omission resulted in the destruction of, or damage to, property (physical element);

f g h

that the accused intended the result in (e) (fault element). that the property was service property (physical element); that the accused knew or was reckless as to (g) (fault element); and

DEFENCE PROOFS: a the accused may raise the statutory defence under s.43(4) that he or she had a reasonable excuse for the relevant act or omission; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.43(2) Recklessly (destroying) (damaging) service property Being a defence member at ........... on ..........., was reckless as to whether service property would be damaged, by kicking his office door when told he had an extra duty thereby resulting in damage to the door. PROSECUTION PROOFS: a that the accused was a defence member or a defence civilian (physical element);

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that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element);

that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element);

d e

that the accuseds conduct in (c) was intentional (fault element); that the conduct resulted in the destruction of, or damage to, property (physical element);

f g h

that the accused was reckless as to the result in (f) (fault element). that the property was service property (physical element); that the accused knew or was reckless as to (g) (fault element); and

DEFENCE PROOFS: a the accused may raise the statutory defence under s.43(4) that he or she had a reasonable excuse for the relevant act or omission; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.43(3) Negligently (destroying) (damaging) service property Being a defence member at ........... on ............, was negligent as to whether service property would be damaged, by pushing PTE A.B. Wacker into the plate glass window in the General Smith Officers Mess at 10 Blanket-Folding Battalion resulting in damage to the glass.

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PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element); d e that the accuseds act or omission in (c) was intentional (fault element); that the act or omission resulted in the destruction of, or damage to, property (physical element); f g h that the accused was negligent as to the result in (e) (fault element). that the property was service property (physical element); that the accused knew or was reckless as to (g) (fault element); and

DEFENCE PROOFS: a the accused may raise the statutory defence under s.43(4) that he or she had a reasonable excuse for the relevant act or omission; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Service property. Service property means property used by, or in the possession or under the control of: (a) (b) the Defence force; an allied force; or

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(c)

an institution of the Defence Force or of an allied force.

Property includes: (a) (b) (c) (d) (e) (f) real property; and personal property; and money; and a thing in action or other intangible property; and electricity; and a wild creature that is: (i) (ii) (iii) tamed; or ordinarily kept in captivity; or reduced (or in the course of being reduced) into the possession of a person.

Section 44 Losing service property (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person loses any property; and the property is, or forms part of, service property issued for the person's use, or entrusted to the person's care, in connection with the person's duties.

Maximum punishment: Imprisonment for 6 months. (2) Absolute liability applies to paragraph (1)(a).

Note: For absolute liability, see section 6.2 of the Criminal Code.

(3) It is a defence if the person proves that he or she took reasonable steps for the safe-keeping of the lost property.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

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SPECIMEN CHARGE: s.44(1) Losing service property Being a defence member at ........................ on .............. lost one Service pistol serial number ................. which was issued to him for his use in connection with his duties. PROSECUTION PROOFS: a b that the accused was a defence member or defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c d that the accused lost specified property (physical element); no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical element in (c) as this is an element of absolute liability under s.44(2); e that the property in (c) was or formed part of service property issued for the accuseds use, or entrusted to the accuseds care, in connection with the accuseds duties (physical element); f that the accused either knew or was reckless as to the circumstance in (e) (fault element); DEFENCE PROOFS: a accused may raise the statutory defence under s.44(3) that he or she took reasonable steps for the safe-keeping of the lost property; and b if raised, the accused must prove this defence on the balance of probabilities.

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STATUTORY CRIMINAL CODE DEFENCES: a In this offence absolute liability has been specified to apply to the physical element in s.44(1)(a). Section 6.2(2) of the Criminal Code applies to this element. See Commentary below for text of s.6.2(2) of the Criminal Code. b The application of absolute liability means that the defence of mistake of fact under section 9.2 of the Criminal Code is not available to an accused who wishes to rely on it in relation to the physical element in s.44(1)(a). c Other statutory defences found in the Criminal Code are available. These are discussed in the Commentary on s.23. COMMENTARY: Service property. Service property means property used by, or in the possession or under the control of: (a) (b) (c) the Defence force; an allied force; or an institution of the Defence Force or of an allied force.

Property includes: (a) (b) (c) (d) (e) (f) real property; and personal property; and money; and a thing in action or other intangible property; and electricity; and a wild creature that is: (i) (ii) (iii) person. tamed; or ordinarily kept in captivity; or reduced (or in the course of being reduced) into the possession of a

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Loss. Absolute Liability applies to this element. Loss of an item does not prove the offence; the other elements do not attract absolute liability and the prosecution must prove them beyond reasonable doubt. Entrusted to the accuseds care, in connection with the accuseds duties. It is not intended that a member should be liable under s.44 for stores in a storeroom of which the member has the charge, or of a ship or aircraft of which the member is in command. Section 44 is intended principally for articles issued to a person for his use, such as tools, instruments, equipment and weapons.47 Section 45 Unlawful possession of service property (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person is in possession of service property; and the person has no lawful authority for being in possession of the property.

Maximum punishment: Imprisonment for 6 months. (2) An offence under subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3)

It is a defence if the person proves that he or she: (a) (b) (c) was not aware that he or she was in possession of the property; or was not aware that the property was service property; or had a reasonable excuse for his or her possession of the property without authority.

Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

47

Defence Force Discipline Bill 1982 Explanatory Memorandum para 430.

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SPECIMEN CHARGE: s.45(1) Unlawful possession of service property Being a defence member at ........................ on ............... was in possession of Service property, namely, three flying suits pattern no. ............................., without lawful authority. PROSECUTION PROOFS: a b c d that the accused was a defence member or defence civilian (physical element); that the accused was in possession of specified property (physical element); that the property was service property (physical element); that the accused had no lawful authority for being in possession of the property (physical element); and e no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical elements in (a), (b), (c) or (d) as this is an offence of strict liability under s.45(2); DEFENCE PROOFS: a accused may raise the statutory defence under s.45(3) that he or she: (i) (ii) (iii) was not aware that he or she was in possession of the property; or was not aware that the property was service property; or had a reasonable excuse for his or her possession of the property without authority; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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COMMENTARY: This offence differs materially from offences in State and Territory law relating to the unlawful possession of property and consequently the decisions on the latter offences must be very carefully considered before being quoted or accepted as authority for the interpretation of s.45. Possession. This is not defined. It is likely in the context to mean actual rather than legal or constructive possession. The comments made by Pollock and Wright have received judicial approval in a case regarding actual possession, however, these comments must only be considered in the context of this offence where no fault element attaches to the physical element that the accused was in possession of specified property. The authors said:
The word possession is used in relation to movable things in three different senses. Firstly, it is used to signify mere physical possession which is rather a state of facts than a legal notion. The law does not define modes or events in which it may commence or cease. It may perhaps be generally described by stating that a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and, so far as regards other persons, the thing is under the protection of his personal presence, or in a house or land occupied by him, or in some receptacle belonging to him and under 48 his control, he is in physical possession of the thing.

Service property. Service property means property used by, or in the possession or under the control of: (a) (b) (c) the Defence force; an allied force; or an institution of the Defence Force or of an allied force.

Property includes: (a) (b) (c) (d) (e) real property; and personal property; and money; and a thing in action or other intangible property; and electricity; and

48

Pollock and Wright. Possession in the Common Law, at pp. 118-19, quoted in Moors v Burke [1919] 26 CLR 265 at p. 270.

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(f)

a wild creature that is: (i) (ii) (iii) tamed; or ordinarily kept in captivity; or reduced (or in the course of being reduced) into the possession of a person.

Subdivision BPossession of property suspected of having been unlawfully obtained

Section 46 Possession of property suspected of having been unlawfully obtained (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person is in possession of property; and the property may reasonably be suspected of having been unlawfully obtained.

Maximum punishment: Imprisonment for 6 months. (2) An offence under subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3)

It is a defence if the person proves that he or she: (a) (b) (c) was not aware that he or she was in possession of the property; or was not aware of the circumstances by reason of which that property may reasonably be suspected of having been unlawfully obtained; or had a reasonable excuse for his or her possession of the property.

Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

(4) It is a defence if the person proves that the property was not unlawfully obtained.
Note: The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code.

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SPECIMEN CHARGE: s.46(1) Possession of property suspected of having been unlawfully obtained Being a defence member at .................. on .............. was in possession of property, namely 1 Pioneer stereo receiver serial number .... which may reasonably be suspected of having been unlawfully obtained. PROSECUTION PROOFS: a b c that the accused was a defence member or defence civilian (physical element); that the accused was in possession of specified property (physical element); that the property may reasonably be suspected of having been unlawfully obtained (physical element); d no requirement for prosecution to prove a fault element on the part of the accused in relation to the physical elements in (a), (b) or (c) as this is an offence of strict liability under s.46(2); DEFENCE PROOFS: a accused may raise the statutory defence under s.46(3) and s.46(4) that he or she: (i) (ii) (iii) (iv) b was not aware that he or she was in possession of the property; or was not aware of the circumstances by reason of which that property may reasonably be suspected of having been unlawfully obtained; or had a reasonable excuse for his or her possession of the property without authority; or the property was not unlawfully obtained; and

if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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COMMENTARY: This offence differs materially from the corresponding offences in State and Territory Acts and consequently the decisions on the latter offences must be very carefully considered before being quoted or accepted as authority for the interpretation of s.46. Possession, property. See the commentary on s.45. Reasonably suspected of having been unlawfully obtained. The reasonable suspicion must attach to the property, and not merely to the person in possession of it; and the fact that the person in possession of the property has given a false account as to how he came by the property does not, of itself, justify a reasonable suspicion that the property was stolen or unlawfully obtained. It is not necessary, however, before a reasonable suspicion can be formed, that the person suspecting should know or believe that the property answers to the description of property reported as stolen. Other circumstances including the nature of the property, the circumstances in which it has been found, and the behaviour of the possessor with respect to it may reasonably attract suspicion to the property. It is not necessary to prove that the property was in fact unlawfully obtained. In order to obtain a conviction of this offence, the test is not what suspicion was, or could be, reasonably held at the time that the accused was charged in the light of the known facts at that time but what suspicion can be reasonably held in the light of all the evidence adduced at the trial.49 It is for the service tribunal to decide whether it is satisfied, beyond reasonable doubt, that it is proper to entertain a reasonable suspicion that the property was unlawfully obtained.

Subdivision CFraudulent conduct

Section 47C Theft (1) A person who is a defence member or a defence civilian is guilty of an offence if the person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property. Maximum punishment: Imprisonment for 5 years. (2) For the purposes of this Act, an offence against subsection (1) is to be known as the offence of theft.

49

This is implied by the existence of the defences in DFDA s 46(2) and (3).

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SPECIMEN CHARGE: s.47C Theft Being a defence member at ..................... on ................. dishonestly appropriated property, being the sum of $495 belonging to 123456 Gunner G.K. Rich with the intention of permanently depriving Gunner Rich of that money. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); c d that the accused appropriated specified property (physical element); that in appropriating the property as specified in (c), the accused intended to permanently deprive the other person of the property (fault element); e that the appropriation of property is dishonest according to the standards of ordinary people (physical element); f that the accused knew that the appropriation was dishonest according to the standards of ordinary people (fault element); g h that the property belonged to another person (physical element); and that the accused either knew or was reckless as to (g) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: As noted above, this offence is closely modelled on the theft provisions contained in Chapter 7 of the Criminal Code especially section 131.1 (theft). New interpretative

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provisions for the s.47C offence have replaced the interpretative provisions in subsection (3) of the previous s.47. Appropriate: This word ordinarily means to take for ones own, or to oneself but for the purposes of charges for theft, the definition in s.47E of appropriation of property should be applied. Property: This is not limited to Service property. Subsection 3(1) defines property to include money and everything animate or inanimate, capable of being the subject of ownership. Property belonging to another person: See s.47. Dishonesty: See s.47A. Intention of permanently depriving a person of property: See s.47M and s.47J(2) When is the act of theft complete? Sometimes it is claimed by accessories to a person who commits a theft that they only assisted the accused after he/she had already taken the property. The act of stealing can extend from a simple movement of the goods to hiding the goods in a place for a lengthy period until it was safe to convert them. In the latter case, an accused who knowingly assists before the complete act of conversion is also guilty of theft, rather than of being an accessory after the fact. Statutory Criminal Code Defences: See s.23 discussion. A person charged under s.47C with an offence of theft may raise the defence of claim of right under s.9.5 of the Criminal Code. A claim of right is a claim by the person that they have some bona fide proprietary right to have the property. That section provides: 9.5 Claim of right (1) A person is not criminally responsible for an offence that has a physical element relating to property if: (a) (b) (2) at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and the existence of that right would negate a fault element for any physical element of the offence.

A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist. This section does not negate criminal responsibility for an offence relating to the use of force against a person.

(3)

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An accused has an evidential burden of proof if he or she raises this defence in answer to a charge of theft. An evidential burden in relation to a matter means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist: Criminal Code s.13.3(6). For example, an accused person might contend that he/she thought that the allegedly stolen property was his/hers. The accused would therefore have to adduce or point to evidence that suggests this honest belief. This evidence usually comes from statements made by the accused to investigating authorities. If this evidential burden is discharged the prosecution then has the burden of proving beyond reasonable doubt that the accused did not have the relevant belief. This is often referred to as the persuasive burden and the necessary standard is beyond reasonable doubt. Section 47P Receiving (1) A person who is a defence member or a defence civilian is guilty of an offence if the person dishonestly receives stolen property, knowing or believing the property to be stolen. Maximum punishment: Imprisonment for 5 years. (2) For the purposes of this Act, an offence against subsection (1) is to be known as the offence of receiving. Stolen property (3) For the purposes of this section, property is stolen property if, and only if: (a) (b) (c) it is original stolen property (as defined by subsection (5)); or it is previously received property (as defined by subsection (6)); or it is tainted property (as defined by subsection (8)).

This subsection has effect subject to subsections (4) and (7). (4) For the purposes of this section, stolen property does not include land obtained in the course of an offence against a law of the Commonwealth, a State or a Territory that involves obtaining property by deception (however described). Original stolen property (5) For the purposes of this section, original stolen property is: (a) property, or a part of property, that: (i) was appropriated in the course of theft (whether or not the property, or the part of the property, is in the state it was in when it was so appropriated); and

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(ii) (b)

is in the possession or custody of the person who so appropriated the property; or

property, or a part of property, that: (i) was otherwise unlawfully obtained (whether or not the property, or the part of the property, is in the state it was in when it was so obtained); and is in the possession or custody of the person who so obtained the property or the person for whom the property was so obtained.

(ii)

Previously received property (6) For the purposes of this section, previously received property is property that: (a) (b) was received in the course of an offence against subsection (1); and is in the possession or custody of the person who received the property in the course of that offence.

(7) For the purposes of this section, property ceases to be original stolen property or previously received property: (a) after the property is restored: (i) (ii) (b) after: (i) (ii) the person from whom the property was appropriated or obtained ceases to have any right to restitution in respect of the property; or a person claiming through the person from whom the property was appropriated or obtained ceases to have any right to restitution in respect of the property. to the person from whom it was appropriated or obtained; or to other lawful possession or custody; or

Tainted property (8) For the purposes of this section, tainted property is property that: (a) is (in whole or in part) the proceeds of sale of, or property exchanged for: (i) (ii) original stolen property; or previously received property; and

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(b)

if subparagraph (a)(i) appliesis in the possession or custody of: (i) if the original stolen property was appropriated in the course of theft (whether in contravention of this Act or of another law)the person who so appropriated the original stolen property; or if the original stolen property was otherwise unlawfully obtainedthe person who so obtained the property or the person for whom the property was so obtained; and

(ii)

(c)

if subparagraph (a)(ii) appliesis in the possession or custody of the person who received the previously received property in the course of an offence against subsection (1).

Money transfers (9) For the purposes of this section, if, as a result of the application of subsection 134.1(9) or (10) of the Criminal Code, an amount credited to an account held by a person is property obtained in the course of an offence against section 134.1 of the Criminal Code: (a) (b) while the whole or any part of the amount remains credited to the account, the property is taken to be in the possession of the person; and if the person fails to take such steps as are reasonable in the circumstances to secure that the credit is cancelledthe person is taken to have received the property; and subsection (7) of this section does not apply to the property.

(c)

Note: Subsections 134.1(9) and (10) of the Criminal Code deal with money transfers.

Receiving property stolen before commencement (10) For the purposes of this section: (a) (b) it is to be assumed that section 47C of this Act had been in force at all times before the commencement of this section; and property that was appropriated or obtained at a time before the commencement of this section does not become original stolen property unless the property was appropriated or obtained in circumstances that (apart from paragraph (a)) amounted to an offence against a law of the Commonwealth, a State or a Territory in force at that time.

Definition (11) In this section:

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account has the same meaning as in section 133.1 of the Criminal Code SPECIMEN CHARGE: s.47P Receiving stolen property Being a defence member at .................. on ................. did receive property, namely, one gold watch, knowing the property to be stolen. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); c d e f g that the accused received specified property (physical element); that the accuseds act in (c) was intentional (fault element); that the specified property in (c) was stolen property (physical element); that the accused either knew or believed the property to be stolen (fault element); that the receiving of the property is dishonest according to the standards of ordinary people (physical element); h that the accused knew that the receiving was dishonest according to the standards of ordinary people (fault element). STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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COMMENTARY: Receive. 50 This is defined in subsection 3(1) as in relation to property, includes handle, retain, remove, dispose of or realise the property. The doctrine of recent possession (ie that possession of recently stolen property is evidence of stealing or receiving) applies; see the commentary on stealing, under the heading appropriate. Property. This is not limited to Service property. It includes money. Dishonestly appropriated 51. The normal method of proof is to call substantive evidence of the theft, for example evidence by the owner that the goods disappeared without the owners authority. It is not necessary to prove who stole the property. However, the circumstances in which the accused received the property may of themselves be sufficient proof that it had been stolen. It is not a rule of law that there must be other evidence of the theft. The fact that the accused told lies as to when the property came into the accuseds possession is not necessarily evidence that the goods were stolen. The fact that the accused was willing to sell the property at greatly below its value provides evidence that it is stolen property. Otherwise been unlawfully obtained. Other circumstances in which property may be unlawfully obtained include obtaining the property by way of robbery, burglary or deception (false pretences). Knowledge that the property had been stolen 52. This means knowledge at the time of receipt of the property. The circumstances in which a defendant receives property may of themselves prove that the property was stolen and, further, may prove that the accused knew it at the time when the accused received it. It is not a rule of law that there must be other evidence of the theft. Belief without actual knowledge is sufficient.

Subdivision D Looting
Section 48 Looting (1) A person who is a defence member or a defence civilian is guilty of an offence if, in the course of operations against the enemy, or in the course of operations

50

For further detail on receiving see Watson, Blackmore, Hosking: Criminal Law In New South Wales Sydney: LBC 1996 at paragraph 2.27080 et seq. B. Fisse: Howards Criminal Law 5 ed. LBC at p. 285 B. Fisse: Howards Criminal Law 5 ed. LBC at paragraph 275
th th

51

52

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undertaken by the Defence Force for the preservation of law and order or otherwise in aid of the civil authorities, the person: (a) (b) (c) takes any property that has been left exposed or unprotected; or takes any property from the body of a person who has been killed or from a person who has been wounded, injured or captured; or takes any vehicle, equipment or stores captured from or abandoned by the enemy.

Maximum punishment: Imprisonment for 5 years. (2) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) (c) the person receives property; and the property has been taken in circumstances constituting an offence against subsection (1); and the person knows of those circumstances.

Maximum punishment: Imprisonment for 5 years. (3) It is a defence to a charge under this section if the person proves that he or she took or received the property for the service of the Commonwealth or had other reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.48(1) Looting Being a defence member at ... on ........... in the course of operations undertaken by the Defence Force in aid of the civil authorities took property, namely 2 cartons of emergency stores, which had been left exposed awaiting collection by United Nations relief agencies. PROSECUTION PROOFS: a that the accused was a defence member or a defence civilian (physical element);

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that the accused either knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element);

that the accused was engaged in operations against the enemy or engaged in operations undertaken by the Defence Force for the preservation of law and order or otherwise in aid of the civil authorities (physical element);

d e

that the accused either knew or was reckless as to (c) (fault element); that the accused either: (i) (ii) took property that was left exposed or unprotected (physical element); took property from the body of a person who has been killed or from a person who has been wounded, injured or captured (physical element); or (iii) took a vehicle, equipment or stores captured from or abandoned by the enemy (physical element);

that the accuseds act or omission in (e) was intentional (fault element);

DEFENCE PROOFS: a accused may raise the statutory defence under s.48(3) that he or she took or received the property for the service of the Commonwealth or had another reasonable excuse for the relevant conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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SPECIMEN CHARGE: s.48(2) Receiving looted property Being a defence member at .................. on ............... in the course of operations against the enemy, received property, namely 2 cartons of emergency stores, which had been taken in circumstances constituting an offence against subsection 48(1) of the DFDA PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); c d e that the accused received specified property (physical element); that the accuseds act or omission in (c) was intentional (fault element); that the property in (c) was taken in circumstances which constituted an offence against s.48(1) (physical element); f that the accused knew that the property was taken in the circumstances specified in (e); DEFENCE PROOFS: a accused may raise the statutory defence under s.48(3) that he or she took or received the property for the service of the Commonwealth or had another reasonable excuse for the relevant conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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Division 6 Arrest, custody and proceedings before service tribunals

Section 49 Refusing to submit to arrest (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) (c) the person is ordered into arrest; and the order is lawful; and the person disobeys the order.

Maximum punishment: Imprisonment for 12 months. (2) Strict liability applies to paragraphs (1)(b) and (c).

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) It is a defence if the person proves that he or she neither knew, nor could reasonably be expected to have known, that the other person was acting lawfully.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.49(1) Refusing to submit to arrest Being a defence member at ................ on .............. disobeyed the lawful order of Sub Lieutenant P.K. Smith RAN, the officer in charge of the Naval Shore Patrol, ordering him into arrest. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); c that the accused was ordered into arrest (physical element);

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that the accused either knew or was reckless as to the circumstance in (c) (fault element);

e f

that the order specified in (c) was lawful (physical element); no requirement for prosecution to prove a fault element in relation to the physical element in (e) as this element is one of strict liability under s.49(2);

g h

that the accused disobeyed the order specified in (c) (physical element); no requirement for prosecution to prove a fault element in relation to the physical element in (g) as this element is one of strict liability under s.49(2).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.49(3) that he or she neither knew, nor could reasonably be expected to have know that the person ordering the accused into arrest was acting lawfully; and b if raised, the accused must prove this defence on the balance of probabilties.

STATUTORY CRIMINAL CODE DEFENCES: See s.23 discussion. Section 49A Assault against arresting person (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person assaults another person; and the other person: (i) has a power of arrest over him or her under section 89 and is arresting, or attempting to arrest, him or her in the exercise of that power; or is carrying out, or attempting to carry out, an order for his or her arrest under section 89; or

(ii)

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(iii)

is arresting, or attempting to arrest, him or her under a warrant under section 88 or 90; or

(iv) has him or her in custody. Maximum punishment: Imprisonment for 12 months. (2 In paragraph (1)(b), strict liability applies to the physical element of circumstance, that the conduct mentioned in that paragraph is lawful.
Note: For strict liability, see section 6.1 of the Criminal Code.

(3) It is a defence if the person proves that he or she neither knew, nor could reasonably be expected to have known, that the other person was acting lawfully.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.49A(1) Assault against arresting person Being a defence member at ................ on ............... assaulted Warrant Officer G.M. Crusher, a person who had a power of arrest over him under section 89 of the Defence Force Discipline Act 1982 and who was arresting him under that power by kicking her in the face. PROSECUTION PROOFS: In relation to defence member: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); In relation to assault: c d that the accused did a specified act to a person (physical element); that the accuseds act or omission in (c) was intentional (fault element);

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that the act either results in infliction of force on the person (or engenders fear in the person that force is about to be inflicted) (physical element);

f g h

that the other person does not consent to the result in (e) (physical element); that the result in (e) is unlawful (physical element); that the accused either knew or was reckless as to (e) (infliction of force or engendering of fear), (f) (lack of consent) and (g) (unlawfulness of the result) (fault element);

In relation to power of arrest under DFDA s.89: i that: (i) (ii) the other person had a power of arrest over the accused under DFDA s.89 and was arresting the accused under that power; or had otherwise engaged in the conduct specified in any of (b)(ii), (iii) or (iv) of s.49A(1) (physical element); and j no requirement for prosecution to prove a fault element in relation to the physical element in (i) that the conduct is lawful as this element is strict liability under s.49A(2). DEFENCE PROOFS: a the accused may raise the statutory defence under s.49A(3) that he or she neither knew, nor could reasonably be expected to have known that the person engaging in conduct specified in (i) was acting lawfully; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 50 Delaying or denying justice (1) A defence member is guilty of an offence if:

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(a) (b) (c)

a person is in custody on a charge; and the member is required by or under this Act to take action to have the charge dealt with in accordance with this Act; and the member does not take the action.

Maximum punishment: Imprisonment for 12 months. (2) A defence member is guilty of an offence if: (a) (b) (c) a person in custody is entitled to be released; and the member is required by or under this Act to take action to release, or to order the release of, the person; and the member does not take the action.

Maximum punishment: Imprisonment for 12 months. (3) It is a defence to a charge under this section if the member proves that he or she had a reasonable excuse for not taking the required action.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.50(1) Delaying or denying justice by failing to take action to have charge dealt with Being a defence member at ................ on ............... did not take the action required of him by subsection 95(5) of the Defence Force Discipline Act 1982 in that as the commanding officer of Able Seaman K. White R135426, a person who had remained in his custody for a period of 8 days or more without a charge against him having been dealt with, he failed to report in writing to a convening authority his reasons for delay in dealing with the charge. PROSECUTION PROOFS: a that the accused was a defence member (physical element);

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that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element);

c d

that a person was in custody on a charge (physical element); that the accused was required by (or under) the DFDA to have the charge dealt with in accordance with the DFDA (physical element);

that the accused knew or was reckless as to the matters specified in (c) and (d) (fault element);

f g

that the accused did not take the action required in (d) (physical element); that the accuseds act or omission in (f) was intentional (fault element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.50(3) that he or she had a reasonable excuse for not taking the required action; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.50(2) Delaying or denying justice by failing to take action to (release) (order release) of a person Being a defence member at .............. on ............ did not take the action required of him by subsection 95(2) of the Defence Force Discipline Act 1982 in that as the commanding officer of 234526 Corporal J. Jonah, a person who had been delivered into his custody without having been arrested in execution of a warrant issued under section 88 of the Act, he did not charge Corporal Jonah or release him from custody before the expiration of a period of 24 hours after that person had been delivered into his custody.

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PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused knew or was reckless as to the fact that he or she was a defence member (fault element); c d e that a person was in custody (physical element) that a person was entitled to be released from custody (physical element); that the accused was required by (or under) the DFDA to have taken action to release, or order the release of, the person in custody (physical element); f that the accused knew or was reckless as to the matters specified in (c), (d) and (e) (fault element); g h that the accused did not take the action required in (e) (physical element); that the accuseds act or omission in (g) was intentional (fault element).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.50(3) that he or she had a reasonable excuse for not taking the required action; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 51 Escaping from custody A person who is a defence member or a defence civilian is guilty of an offence if the person escapes from custody. Maximum punishment: Imprisonment for 2 years.

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SPECIMEN CHARGE: s.51 Escaping from custody Being a defence member at ............ on ............. did escape from the custody of .............. (insert name of custodian). PROSECUTION PROOFS: a b that the accused was a defence member or defence civilian (physical element); that the accused knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); c d that the accused was in custody (physical element); that the accused either knew or was reckless as to the matter specified in (c) (fault element); e f that the accused escaped from custody (physical element); that the accuseds act or omission in (e) was intentional (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 52 Giving false evidence (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) (c) (d) the person has been sworn or affirmed as a witness in proceedings before a service tribunal; and the person makes a false statement in those proceedings; and the person knows the statement to be false or does not believe it to be true; and the statement is material in those proceedings.

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Maximum punishment: Imprisonment for 5 years. (2) A person is not liable to be convicted of an offence under this section only on the evidence of one witness as to the falsity of the statement alleged to be false. SPECIMEN CHARGE: s.52(1) Giving false evidence before a service tribunal Being a defence member at ................ on .............. having been sworn as a witness in proceedings before the restricted court martial of 543671 Sergeant K. Schneider made a false and material statement in those proceedings, by stating in evidence that she had never met Sergeant Schneider prior to 3 July 2001, knowing that the statement was false. PROSECUTION PROOFS: a b that the accused was a defence member or defence civilian (physical element); that the accused knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); c that the accused was sworn (or affirmed) as a witness in proceedings before a service tribunal (or an examining officer) (physical element); d that the accused either knew or was reckless as to the matter in (c) (fault element); e that the accused made a statement as specified in those proceedings (physical element); f g h that the accuseds act or omission in (e) was intentional (fault element); that the statement was false (physical element); that the accused knew that the statement was false (or did not believe it to be true) (fault element);

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i j

that the statement was material to those proceedings (physical element); that the accused knew or was reckless as to the circumstance that the statement was material to the proceedings (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 53 Contempt of service tribunal (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) the person has been served, as provided for by the rules of procedure, with a summons to appear, or has been ordered to appear, as a witness before a service tribunal; and the person: (i) (ii) fails to appear as required by the summons or order; or fails to appear and report himself or herself from day to day and has not been excused or released by the tribunal from further attendance.

(b)

Maximum punishment: Imprisonment for 6 months. (2) A person who is a defence member or a defence civilian is guilty of an offence if the person is appearing as a witness before a service tribunal and the person: (a) (b) (c) refuses or fails to take an oath or make an affirmation when lawfully required to do so; or refuses or fails to answer a question that the person is lawfully required to answer by the tribunal; or refuses or fails to produce a document that the person was required to produce by a summons served on the person, as provided for by the rules of procedure, or by an order.

Maximum punishment: Imprisonment for 6 months. (3) It is a defence to a charge under subsection (1) or (2) if the person proves that he or she had a reasonable excuse for the relevant conduct.

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Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

(4) A person who is a defence member or a defence civilian is guilty of an offence if the person: (a) insults a member of a court martial, a judge advocate, a Defence Force magistrate or a summary authority in or in relation to the exercise of his or her powers or functions as such a member, judge advocate, magistrate or authority; or interrupts the proceedings of a service tribunal; or creates a disturbance or takes part in creating or continuing a disturbance in or near a place where a service tribunal is sitting; or engages in any other conduct that would, if a service tribunal were a court of record, constitute a contempt of that court.

(b) (c) (d)

Maximum punishment: Imprisonment for 6 months. (5) If an offence under subsection (4) is committed by a person in relation to a service tribunal that is a court martial or a Defence Force magistrate, during proceedings before the tribunal, the tribunal, if it considers it expedient to do so, may then and there order that the person be taken into custody and call on the person to show cause why the person should not be convicted of the offence. (6) If a service tribunal convicts a person under subsection (5), the maximum punishment for the offence is detention for 21 days. (7) An offence under this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

SPECIMEN CHARGE: s.53(1)(b)(i) Failing to appear before a service tribunal as required by (summons) (order) Being a defence member at ................... on ............. having been ordered to appear as a witness before the general court martial of 543768 Captain J. Smith, failed to appear before that Service tribunal as required by the order. PROSECUTION PROOFS: a that the accused was a defence member or a defence civilian (physical element);

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that the accused was served with a summons to appear as provided for by the rules of procedure, or has been ordered to appear, as a witness before a service tribunal (physical element);

that the accused failed to appear as required by the summons or order (physical element);

no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b) or (c) as this is an offence of strict liability under s.53(7).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.53(3) that he or she had a reasonable excuse for the relevant conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.53(1)(b)(ii) Failing to appear and report when not excused by service tribunal Being a defence member at ................... on ............. having been ordered to appear as a witness before the general court martial of 543768 Captain J. Smith failed to appear and report himself from day to day and was not excused or released by that Service tribunal from further attendance. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused was served with a summons to appear as provided for by the rules of procedure, or has been ordered to appear, as a witness before a service tribunal (physical element);

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that the accused failed to appear and report from date to day and has not been excused or released by the tribunal from further attendance (physical element);

no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b) or (c) as this is an offence of strict liability under s.53(7).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.53(3) that he or she had a reasonable excuse for the relevant conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.53(2)(a) Refusing to take an oath or make an affirmation before a service tribunal Being a defence member at .............. on .............. when appearing as a witness before the general court martial of 543768 Captain J. Smith refused to take an oath when lawfully required to do so. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused appeared as a witness before a service tribunal (physical element); c that the accused was lawfully required to take an oath or make an affirmation (physical element);

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that the accused refused or failed to take an oath or make an affirmation (physical element);

no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b), (c) or (d) as this is an offence of strict liability under s.53(7).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.53(3) that he or she had a reasonable excuse for the relevant refusal or failure; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.53(2)(b) Refusing to answer a question before a service tribunal Being a defence member at .................. on .................. when appearing as a witness before the general court martial of 543768 Captain J. Smith refused to answer a question that he was lawfully required by that Service tribunal to answer. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused appeared as a witness before a service tribunal (physical element); c that the accused was lawfully required to answer a question by the tribunal (physical element); d that the accused refused or failed to answer the question (physical element);

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no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b), (c) or (d) as this is an offence of strict liability under s.53(7).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.53(3) that he or she had a reasonable excuse for the relevant refusal or failure; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.53(2)(c) Refusal to produce a document required by (summons) (order) before a service tribunal Being a defence member at .................. on .................... when appearing as a witness before the general court martial of 543768 Captain J. Smith failed to produce a document that she had been ordered by the convening authority to produce. [Details of the document which the accused failed to produce must be set out accurately in the body of the charge or included separately in the particulars of the charge.] PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused appeared as a witness before a service tribunal (physical element); c that the accused was required by a summons served on the person, as provided for by the rules of procedure, or by an order, to produce a document (physical element); d that the accused refused or failed to produce the document (physical element);

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no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b), (c) or (d) as this is an offence of strict liability under s.53(7).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.53(3) that he or she had a reasonable excuse for the relevant refusal or failure; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.53(4)(a) Insulting a (member of a court martial) (judge advocate) (Defence Force magistrate) (summary authority) Being a defence member at .................... on ........... insulted the members of the general court martial by making loud and offensive comments to the court after its findings on the charges against 543768 Captain J. Smith had been read out. [Details of the conduct which constitutes the insult to the tribunal (including the actual words used by the accused) must be set out accurately in the body of the charge or included separately in the particulars of the charge.] PROSECUTION PROOFS: a b c that the accused was a defence member or a defence civilian (physical element); that the accused insulted a person (physical element); that the person insulted in (c) was a member of a court martial, a judge advocate, a Defence Force Magistrate or a summary authority;

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that the insult in (c) was in or in relation to the exercise of his or her powers or functions as such a member, judge advocate, magistrate or authority (physical element);

no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b), (c) or (d) as this is an offence of strict liability under s.53(7).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.53(4)(b) Interrupting proceedings of a service tribunal Being a defence member at ...................... on .............. interrupted the proceedings of a Service tribunal, in that he repeatedly interjected during the examination-in-chief of prosecution witnesses at the Defence Force magistrate trial of Petty Officer H. Hornblower. [Details of the conduct which constitutes the interruption to the proceedings of the tribunal (including the actual words used by the accused) must be set out accurately in the body of the charge or included separately in the particulars of the charge.] PROSECUTION PROOFS: a b c that the accused was a defence member or defence civilian (physical element); that a specified service tribunal was sitting (physical element); that the accused interrupted the service tribunals proceedings (physical element); d no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b) or (c) as this is an offence of strict liability under s.53(7).

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STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.53(4)(c) Creating a disturbance (in) (near) a service tribunal Being a defence member at ..................... on ............ created a disturbance near a place where a Service tribunal was sitting, by organising a noisy demonstration at the entrance to the hearing room where a court martial was sitting. PROSECUTION PROOFS: a b c that the accused was a defence member or defence civilian (physical element); that a specified service tribunal was sitting (physical element); that the accused (i) (ii) (iii) created a disturbance; or took part in creating; or took part in continuing

a disturbance in or near a place where the service tribunal was sitting as specified in (b) (physical element); d no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b) or (c)(i), (ii) or (iii) as this is an offence of strict liability under s.53(7). STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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SPECIMEN CHARGE: s.53(4)(d) Engaging in conduct that would constitute contempt of a service tribunal Being a defence member at .................. on ............. without the knowledge or consent of the members of a court martial removed documents held in the custody of that court and thereby engaged in conduct that would, if the court martial were a court of record, constitute a contempt of that court. PROSECUTION PROOFS: a b c that the accused was a defence member or defence civilian (physical element); that a specified service tribunal was sitting (physical element); that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element); d that the accuseds act or omission in (c) would, if the service tribunal specified in (b) was a court of record, constitute a contempt of that court (physical element); e no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b), (c) or (d) as this is an offence of strict liability under s.53(7). STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 54 Unlawful release etc. of person in custody (1) A defence member is guilty of an offence if: (a) (b) a person has been delivered into a member's custody or the member has a duty to guard a person; and by act or omission, the member intentionally allows the person to escape.

Maximum punishment: Imprisonment for 2 years.

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(2)

A defence member is guilty of an offence if: (a) (b) (c) a person has been delivered into a member's custody or the member has a duty to guard a person; and the member releases the person; and the member has no authority to release the person.

Maximum punishment: Imprisonment for 2 years. (3) A person who is a defence member or a defence civilian is guilty of an offence if the person intentionally facilitates the escape of a person from custody or a place of confinement. Maximum punishment: Imprisonment for 12 months. (4) A person who is a defence member or a defence civilian is guilty of an offence if, with intent to facilitate an escape from a place of confinement of another person, the first-mentioned person conveys anything into that place. Maximum punishment: Imprisonment for 12 months. SPECIMEN CHARGE: s.54(1) Intentionally allowing person in custody to escape Being a defence member at ................. on ............ having had ................... delivered into his custody, intentionally permitted him to escape. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that a specified person has been delivered into the custody of the accused (or the accused had a duty to guard a specified person) (physical element); d that the accused either knew or was reckless as to the matter specified in (c) (fault element);

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that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element);

f g

that the accuseds act or omission in (c) was intentional (fault element); that the accuseds act or omission in (e) resulted in the escape of the specified person in (c) (physical element); and

that the accused intended the result in (g) that is, the escape of the person (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.54(2) Unlawfully releasing a person in custody Being a defence member at ............. on ............. having had delivered into her custody, without lawful authority released him. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that a specified person has been delivered into the custody of the accused (or the accused had a duty to guard a specified person) (physical element); d that the accused either knew or was reckless as to the matter specified in (c) (fault element); e f that the accused released the specified person in (c) (physical element); that the accuseds act or omission in (e) was intentional (fault element);

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g h

that the accused had no authority to release the person (physical element); and that the accused either knew or was reckless as to (g) that he or she has not authority to release the person (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.54(3) Facilitating escape of a person in custody Being a defence member at ............... on ............ intentionally facilitated the escape of . from custody in the Defence Force Corrections Establishment, by leaving a key in the door of the cell occupied by him. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that a specified person is in custody or a place of confinement as specified (physical element); d that the accused either knew or was reckless as to the matter specified in (c) (fault element); e that the accused facilitated the escape of the specified person in (c) (physical element); f that the accuseds act or omission in (e) was intentional (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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SPECIMEN CHARGE: s.54(4) Conveying a thing into place of confinement with intent to facilitate escape of person Being a defence member at ............... on ............ with intent to facilitate an escape of another person from a place of confinement, namely Defence Force Corrections Establishment, convey into that place a hacksaw, a rope and a rope ladder. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that a specified person was in a specified place of confinement (physical element) d e that the accused either knew or was reckless as to (c) (fault element); that the accused conveyed a specified item into the place of confinement (physical element); f that the accuseds act or omission in (e) was intended to facilitate the escape of the person (fault element). STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

Division 6A Custodial offences

Section 54A Custodial offences (1) A detainee who: (a) (b) makes any unnecessary noise; commits a nuisance;

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(c) (d) (e) (f) (g)

is idle, careless or negligent at work; without lawful authority, converses or otherwise communicates with another person (whether or not a detainee); without lawful authority, gives any thing to, or receives any thing from, another person (whether or not a detainee); without lawful authority, has in his or her possession any thing; or without lawful authority, enters or leaves his or her cell;

is guilty of an offence. (2) A detainee who, while on leave of absence from a detention centre, refuses or fails to comply with a condition of the grant of the leave of absence is guilty of an offence. (2A) An offence under this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) It is a defence if a person charged with a custodial offence proves that he or she had a reasonable excuse for engaging in the behaviour to which the charge relates.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

(4) The maximum punishment for a custodial offence is segregated confinement for 10 days. (5) Subsection (4) has effect notwithstanding anything contained in section 64.

(6) If a person (other than a detainee) commits an offence against subsection (1) or (2) of this section by virtue of section 11.2 of the Criminal Code, that section has effect as if the maximum punishment for an offence against subsection (1) or (2) of this section were imprisonment for 10 days. SPECIMEN CHARGE: s.54A(1)(a) Detainee making unnecessary noise Being a detainee at ............... on ............ whilst undergoing detention at the Defence Force Correctional Establishment made an unnecessary noise by shouting to other detainees during the night.

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PROSECUTION PROOFS: a b c d e that the accused was a defence member (physical element); that the accused was a detainee (physical element); that the accused made a noise (physical element); that the noise was unnecessary (physical element); no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b), (c) or (d) as this is an offence of strict liability under s.54A(2A). DEFENCE PROOFS: a the accused may raise the statutory defence under s.54A(3) that he or she had a reasonable excuse for engaging in the conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.54A(1)(b) Detainee committing a nuisance Being a detainee at ............... on ............ whilst undergoing detention at the Defence Force Correctional Establishment did commit a nuisance by throwing food at the other detainees in the mess hall. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused was a detainee (physical element);

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that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element);

d e

that the accuseds act or omission in (c) was a nuisance (physical element); no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b), (c) or (d) as this is an offence of strict liability under s.54A(2A).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.54A(3) that he or she had a reasonable excuse for engaging in the conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. s.54A(1)(c) Detainee being (idle) (careless) (negligent) at work Reserved. Seek legal advice in relation to this offence. SPECIMEN CHARGE: s.54A(1)(d) Detainee unlawfully communicating with another person Being a detainee at ........ on ............. whilst undergoing detention at the Defence Force Correctional Establishment without lawful authority conversed with .............. (name of other person). PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused was a detainee (physical element);

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that the accused conversed with or otherwise communicated with another person (whether or not the other person was a detainee) (physical element);

that the accuseds act or omission in (c) was without lawful authority (physical element);

no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b),(c) or (d) as this is an offence of strict liability under s.54A(2A).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.54A(3) that he or she had a reasonable excuse for engaging in the conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.54A(1)(e) Detainee unlawfully (giving) (receiving) any thing Being a detainee at ............. on ............ whilst undergoing detention at the Defence Force Correctional Establishment without lawful authority gave an axe and a saw to ................ (name of other person). PROSECUTION PROOFS: a b c that the accused was a defence member (physical element); that the accused was a detainee (physical element); that the accused gave an specified item to or received a specified item from another person (whether or not the other person was a detainee) (physical element);

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that the accuseds act or omission in (c) was without lawful authority (physical element);

no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b), (c) or (d) as this is an offence of strict liability under s.54A(2A).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.54A(3) that he or she had a reasonable excuse for engaging in the conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.54A(1)(f) Detainee unlawfully being in possession of any thing Being a detainee at ............... on ........... whilst undergoing detention at the Defence Force Correctional Establishment without lawful authority had a weapon, namely a service pistol, in her possession. PROSECUTION PROOFS: a b c d that the accused was a defence member (physical element); that the accused was a detainee (physical element); that the accused had in his or her possession a specified item (physical element); that the accuseds possession of the specified item in (c) was without lawful authority (physical element);

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no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b), (c) or (d) as this is an offence of strict liability under s.54A(2A).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.54A(3) that he or she had a reasonable excuse for engaging in the conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.54A(1)(g) Detainee unlawfully (entering) (leaving) cell Being a detainee at .......... on ........... whilst undergoing detention at the Defence Force Correctional Establishment without lawful authority left his cell ................. (give any other relevant details). PROSECUTION PROOFS: a b c d that the accused was a defence member (physical element); that the accused was a detainee (physical element); that the accused entered or left his or her cell as specified (physical element); that the accuseds act or omission (c) was without lawful authority (physical element); e no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b), (c) or (d) as this is an offence of strict liability under s.54A(2A).

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DEFENCE PROOFS: a the accused may raise the statutory defence under s.54A(3) that he or she had a reasonable excuse for engaging in the conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.54A(2) Detainee failing to comply with a condition of grant of leave of absence Being a detainee at .. on. whilst on a leave of absence from the Defence Force Correctional Establishment, failed to comply with a condition of the grant of his leave of absence by failing to report his whereabouts on an hourly basis. PROSECUTION PROOFS: a b c that the accused was a defence member (physical element); that the accused was a detainee (physical element); that the accused was on a leave of absence from a detention centre as specified (physical element); d that the leave of absence in (c) was subject to a condition as specified (physical element); e that the accused refused or failed to comply with the condition in (d) (physical element); f no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements (a), (b), (c), (d) or (e) as this is an offence of strict liability under s.54A(2A).

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DEFENCE PROOFS: a the accused may raise the statutory defence under s.54A(3) that he or she had a reasonable excuse for engaging in the conduct; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

Division 7 Miscellaneous offences

Section 55 Falsifying service documents (1) A person who is a defence member or a defence civilian is guilty of an offence if, with intent to make a gain for the person or another person or with intent to deceive, or to cause loss, damage or injury to, another person: (a) (b) (c) (d) the person makes or signs a service document that is false in a material particular; or the person makes in a service document an entry that is false in a material particular; or the person alters a service document so that the document is false in a material particular; or the person engages in conduct that results in the suppression of, the defacing of, the making away with or the destruction of a service document, or a part of a service document, that it is the person's duty to preserve or produce; or the person does not make an entry in a service document that it is the person's duty to make so that the document is rendered false in a material particular.

(e)

Maximum punishment: Imprisonment for 2 years. (2) In subsection (1):

service document means a document belonging or pertaining to, or connected with, the Defence Force.

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s.55(1)(a) (Making) (signing) false service document SPECIMEN CHARGE: Being a defence member at ............. on ............ with intent to deceive signed a Service document that was false in a material particular in that he signed a Stock Muster Report (Form: PP 123) for the Wardroom Mess at HMAS PENGUIN when a muster had not been completed on or about the date specified in the Report. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused made or signed a service document as specified (physical element); d that in making or signing the service document in (c), the accused intended to make a gain for the accused or cause loss, damage or injury to another person (fault element); e f that the document was false in a material particular (physical element); that the accused either knew or was reckless as to (e) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.55(1)(b) Making false entry in service document Being a defence member at .............. on .......... with intent to deceive made an entry in a Service document that was false in a material particular in that he entered the

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figure of $150 in the Sergeants Mess Book as the cost of flowers for the Christmas Cocktail Party instead of the true amount of $50. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c that the accused made an entry in a service document as specified (physical element); d that the accuseds act or omission in (c) was intended to make a gain for the accused or cause loss, damage or injury to another person (fault element); e f that the entry was false in a material particular (physical element); that the accused either knew or was reckless as to (e) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.55(1)(c) Altering service document Being a defence member at ............... on ............. with a view to gain for himself altered a Service document in a material particular by substituting the figure of $100 for the figure of $1000 in the Stores Receipt Book for the Airmens Mess as the cost of meat supplied by the XYZ Company to the Mess. PROSECUTION PROOFS: a that the accused was a defence member or a defence civilian (physical element);

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that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element);

c d

that the accused altered a service document as specified (physical element); that the accuseds act or omission in (c) was intended to make a gain for the accused or cause loss, damage or injury to another person (fault element);

that the alteration made the service document false in a material particular (physical element);

that the accused either knew or was reckless as to (e) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.55(1)(d) (Suppressing) (defacing) (making away with) (destroying) a service document Being a defence member at ................. on ............. with intent to deceive, destroyed part of a Service document, namely page 3 of the Radio Operator's Log for the signals office, HAMS ANZAC, that it was her duty to produce for weekly inspection by the Ships Communications Officer. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c the accused had a duty to preserve or produce a specified service document (physical element); d that the accused either knew or was reckless as to (c) (fault element);

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that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element);

that the accuseds act or omission in (e) was intended to make a gain for the accused or cause loss, damage or injury to another person (fault element);

that the accuseds act or omission in (e) resulted in the suppression of, the defacing of, the making away with or the destruction of the specified service document in (c) or part thereof (physical element);

that the accused either knew or was reckless as to whether the act or omission would result in (g) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.55(1)(e) Failing to make an entry in a service document Being a defence member at ........... on ............. with intent to make a gain for herself did not make any entry in a Service document that it was her duty to make in that she did not record in the Canteen Register the receipt of one case of Penfolds Club Port from ABC Wine Merchants. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c the accused had a duty to make an entry in a specified service document (physical element); d that the accused either knew or was reckless as to (c) (fault element);

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that the accused omitted to make an entry in the specified service document (physical element);

that the accuseds act or omission in (e) was intended to make a gain for the accused or cause loss, damage or injury to another person (fault element);

that the accuseds act or omission in (e) resulted in the document being rendered false in a material particular (physical element);

that the accused either knew or was reckless as to (g) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 56 False statement in relation to application for a benefit (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person makes a statement, (whether orally, in a document or in any other way); and the statement: (i) (ii) (c) (d) is false or misleading; or omits any matter or thing without which the statement is misleading; and

the person knows of the matter mentioned in paragraph (b); and the statement is made in, in connection with, or in support of, an application for: (i) (ii) (iii) a grant, payment or allotment of money or an allowance; or leave of absence; or any other benefit or advantage;

for the person or another person; and

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(e)

the application arises out of, or is based on, membership of, or service in or in connection with, the Defence Force.

Maximum punishment: Imprisonment for 12 months. (2) Subsection (1) does not apply as a result of subparagraph (1)(b)(i) if the statement is not false or misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code.

(3) Subsection (1) does not apply as a result of subparagraph (1)(b)(ii) if the statement did not omit any matter or thing without which the statement is misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal Code.

(4) if:

A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person makes a statement (whether orally, in a document or in any other way); and the statement: (i) (ii) (c) (d) is false or misleading; or omits any matter or thing without which the statement is misleading; and

the person is reckless as to the matter mentioned in paragraph (b); and the statement is made in, in connection with, or in support of, an application for: (i) (ii) (iii) a grant, payment or allotment of money or an allowance; or leave of absence; or any other benefit or advantage;

for the person or another person; and (e) the application arises out of, or is based on, membership of, or service in or in connection with, the Defence Force.

Maximum punishment: Imprisonment for 6 months.

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(5) Subsection (4) does not apply as a result of subparagraph (4)(b)(i) if the statement is not false or misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3) of the Criminal Code.

(6) Subsection (4) does not apply as a result of subparagraph (4)(b)(ii) if the statement did not omit any matter or thing without which the statement is misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6). See subsection 13.3(3) of the Criminal Code.

(7)

In this section:

benefit includes any advantage and is not limited to property. SPECIMEN CHARGE: s.56(1) Knowingly making false or misleading statement in relation to application for benefit Being a defence member at ............. on ............. made a false statement in support of an application for an allowance based on membership of the Defence Force in that he signed a declaration of Form XXX, Application for Rental Allowance, that he did not own his own home in the locality of his present posting, knowing that this declaration was false. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c d e that the accused made a statement (physical element); that the accuseds act or omission in (c) was intentional (fault element); that the specified statement was false or misleading (or omitted a matter or thing without which the statement was misleading) (physical element);

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that the accused knew that the statement was false or misleading (or omitted a matter or thing without which the statement was misleading) (fault element);

that the specified statement was made in, or in connection with, or in support of, an application for the accused or another person for a grant, payment or allotment of money or an allowance (or leave of absence or any other benefit or advantage) (physical element);

h i

that the accused either knew or was reckless as to (g) (fault element); that the application in (g) arose out of, or was based on, membership of or service in connection with the Defence Force (physical element);

that the accused either knew or was reckless as to (i) (fault element)

EXCULPATORY MATTERS: a s.56(1) may not apply to the accused because of an exculpatory matter in s.56(2) or s.56(3), namely, that the specified statement was not false or misleading in a material particular or that the specified statement did not omit any matter or thing without which the statement was false or misleading; b if raised by the accused, the accused bears an evidential burden in relation to s.56(2) or s.56(3) that only requires the accused to point to evidence of the exculpatory matter. SPECIMEN CHARGE: s.56(4) Recklessly making false or misleading statement in relation to application for benefit Being a defence member at ............. on ............. made a false statement in support of an application for a grant of money based on membership of the Defence Force by stating on Form XXX, Claim for Travel Expenses, that he was entitled to reimbursement of the cost of hotel accommodation in the sum of $900, being reckless as to whether the statement was false.

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PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element); c d e that the accused made an oral or written statement (physical element); that the accuseds act or omission in (c) was intentional (fault element); that the specified statement was false or misleading (or omitted a matter or thing without which the statement was misleading) (physical element); f that the accused was reckless as to whether the statement was false or misleading (or omitted a matter or thing without which the statement was misleading) (fault element); g that the specified statement was made in, or in connection with, or in support of, an application for the accused or another person for a grant, payment or allotment of money or an allowance (or leave of absence or any other benefit or advantage) (physical element); h i that the accused either knew or was reckless as to (g) (fault element); that the application in (g) arose out of, or was based on, membership of or service in connection with the Defence Force (physical element); j that the accused either knew or was reckless as to (i) (fault element)

EXCULPATORY MATTERS: a s.56(1) may not apply to the accused because of an exculpatory matter in s.56(2) or s.56(3), namely, that the specified statement was not false or misleading in a material particular or that the specified statement did not omit any matter or thing without which the statement was false or misleading;

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if raised by the accused, the accused bears an evidential burden in relation to s.56(2) or s.56(3) that only requires the accused to point to evidence of the exculpatory matter.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 57 False statement in relation to appointment or enlistment (1) A person is guilty of an offence if, in or in connection with an application for the person's appointment to or enlistment in the Defence Force: (a) the person: (i) (ii) (b) (c) is required to answer a question set out in a document required to be completed in relation to the person's appointment or enlistment; and with intent to deceive, makes a false answer to the question; or

with intent to deceive, the person gives any false information or document in relation to the person's appointment or enlistment; or with intent to deceive, the person does not disclose, if and when lawfully required to do so, particulars of any prior service in the Defence Force;

and as a result of that application, the person is appointed to or enlisted in the Defence Force. Maximum punishment: Imprisonment for 3 months. (2) A defence member is guilty of an offence if: (a) the member: (i) (ii) (b) (c) is required to answer a question set out in a document required to be completed in relation to the person's appointment or enlistment; and with intent to deceive, makes a false answer to the question; or

with intent to deceive, the member gives any false information or document in relation to the person's appointment or enlistment; or with intent to deceive, the member does not disclose, if and when lawfully required to do so, particulars of any prior service in the Defence Force.

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Maximum punishment: Imprisonment for 3 months. SPECIMEN CHARGE: s.57(1)(a) Person giving false answer to a question in a document relating to appointment or enlistment Being a defence member at ............. on ................. in connection with an application for appointment in the Defence Force and with intent to deceive made a false answer to a question in a document required to be completed in relation to appointment, namely, by stating falsely No to the question Have you ever suffered from asthma? set out in a medical questionnaire. PROSECUTION PROOFS: a that the accused was acting in or in connection with an application for appointment (or enlistment in) the Defence Force (physical element); b c that the accused either knew or was reckless as to (a) (fault element); that the accused was required to answer a question set out in a specified document required to be completed in relation to the accuseds appointment (or enlistment in) the Defence Force (physical element); d e f g that the accused either knew or was reckless as to (c) (fault element); that the accused made a false answer to the question (physical element); that the accuseds act or omission in (e) was intended to deceive (fault element); that as a result of the application the accused was appointed (or enlisted) in the Defence Force (physical element); h that the accused either knew or was reckless as to the result in (g) (fault element).

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STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.57(1)(b) Person giving false information or document in relation to appointment or enlistment Being a defence member at ............. on ............. with intent to deceive, in connection with an application for his enlistment to the Defence Force, which application resulted in his enlistment to the Defence Force, gave a false document, namely a character reference which he had written himself and on which he had forged the signatures of his purported referee. PROSECUTION PROOFS: a that the accused was acting in or in connection with an application for appointment (or enlistment in) the Defence Force (physical element); b c that the accused either knew or was reckless as to (a) (fault element); that the accused gave information (or a document) in relation to the accuseds appointment (or enlistment in) the Defence Force (physical element); d e f g that the accuseds act or omission in (c) was intended to deceive (fault element); that the information (or document) was false (physical element); that the accused either knew or was reckless as to (e) (fault element); that as a result of the application the accused was appointed (or enlisted) in the Defence Force (physical element); h that the accused either knew or was reckless as to the result in (g) (fault element).

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STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.57(1)(c) Person failing to disclose prior service Being a defence member at ............... on ............ with intent to deceive in connection with an application for her enlistment in the Royal Australian Navy, which application resulted in her enlistment in the Navy, did not disclose, when lawfully required to do so, particulars of her prior service in the Australian Army. PROSECUTION PROOFS: a that the accused was acting in or in connection with an application for appointment (or enlistment in) the Defence Force (physical element); b c that the accused either knew or was reckless as to (a) (fault element); that the accused was lawfully required to disclose particulars of any prior service in the Defence Force (physical element); d e that the accused either knew or was reckless as to (c) (fault element); that the accused did not disclose particulars of prior service in the Defence Force (physical element); f g that the accuseds act or omission in (e) was intended to deceive (fault element); that as a result of the application the accused was appointed (or enlisted) in the Defence Force (physical element); h that the accused either knew or was reckless as to the result in (g) (fault element).

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STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.57(2)(a) Member giving false answer to question in a document relating to appointment or enlistment Being a defence member at ................ on ........... with intent to deceive made a false answer to a question set out in a document required to be completed in relation to his enlistment by stating in Form .... that he had no relative presently living in . [a country required to be disclosed] when that was untrue. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused was acting in or in connection with an application for appointment (or enlistment in) the Defence Force (physical element); d e that the accused either knew or was reckless as to (a) (fault element); that the accused was required to answer a question set out in a specified document required to be completed in relation to the accuseds appointment (or enlistment in) the Defence Force (physical element); f g h i that the accused either knew or was reckless as to (e) (fault element); that the accused made a false answer to the question (physical element); that the accuseds act or omission in (g) was intended to deceive (fault element); that as a result of the application the accused was appointed (or enlisted) in the Defence Force (physical element);

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that the accused either knew or was reckless as to the result in (i) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.57(2)(b) Member giving false information or document in relation to appointment or enlistment Being a defence member at .............. on ................ with intent to deceive furnished a false certificate of birth in relation to his enlistment. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused was acting in or in connection with an application for appointment (or enlistment in) the Defence Force (physical element); d e that the accused either knew or was reckless as to (c) (fault element); that the accused gave information (or a document) in relation to the accuseds appointment (or enlistment in) the Defence Force (physical element); f g h i that the accuseds act or omission in (e) was intended to deceive (fault element); that the information (or document) was false (physical element); that the accused either knew or was reckless as to (g) (fault element); that as a result of the application the accused was appointed (or enlisted) in the Defence Force (physical element);

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that the accused either knew or was reckless as to the result in (i) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.57(2)(c) Member failing to disclose prior service Being a defence member at ............ on .............. with intent to deceive did not disclose when lawfully required to do so particulars of prior service in the Australian Army. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c that the accused was acting in or in connection with an application for appointment (or enlistment in) the Defence Force (physical element); d e that the accused either knew or was reckless as to (c) (fault element); that the accused was lawfully required to disclose particulars of any prior service in the Defence Force (physical element); f g that the accused either knew or was reckless as to (e) (fault element); that the accused did not disclose particulars of prior service in the Defence Force (physical element); h i that the accuseds act or omission in (g) was intended to deceive (fault element); that as a result of the application the accused was appointed (or enlisted) in the Defence Force (physical element);

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that the accused either knew or was reckless as to the result in (i) (fault element).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 58 Unauthorised disclosure of information (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) (c) the person discloses information; and there is no lawful authority for the disclosure; and the disclosure is likely to be prejudicial to the security or defence of Australia.

Maximum punishment: Imprisonment for 2 years. (2) Strict liability applies to paragraph (1)(c).

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) It is a defence if the person proves that he or she neither knew, nor could reasonably be expected to have known, that the disclosure of the information was likely to be prejudicial to the security or defence of Australia.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.58(1) Unauthorised disclosure of information Being a defence member at ................ on ............... without lawful authority disclosed the operational parameters of Operation XXX, the disclosure of which was likely to be prejudicial to the security of Australia, by providing such details to The Canberra Morning Herald. PROSECUTION PROOFS: a that the accused was a defence member or a defence civilian (physical element);

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that the accused either knew or was reckless as to the fact that he or she was a defence member or a defence civilian (fault element);

c d e f g

that the accused disclosed specified information (physical element); that the accuseds act or omission in (c) was intentional (fault element); that there was no lawful authority for the disclosure in (c) (physical element); that the accused knew or was reckless as to (e) (fault element); that the disclosure was likely to be prejudicial to the security or defence of Australia (physical element);

no requirement for prosecution to prove a fault element on the part of the accused in relation to (g) as this is an element of strict liability under s.58(3).

DEFENCE PROOFS: a the accused may raise the statutory defence under s.58(3) that he or she neither knew nor could reasonably have been expected to have known that the disclosure of the information was likely to be prejudicial to the security or defence of Australia; and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 59 Dealing in or possession of narcotic goods (1) A person who is a defence member or a defence civilian is guilty of an offence if the person: (a) (b) (c) is outside Australia; and sells, or deals or traffics in, narcotic goods; and knows the nature of the goods.

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Maximum punishment: Imprisonment for 10 years. (2) It is a defence to a charge under subsection (1) if the person proves that he or she had lawful authority for the conduct mentioned in paragraph (1)(b).
Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section 13.4 of the Criminal Code.

(3) A person who is a defence member or a defence civilian is guilty of an offence if the person: (a) (b) (c) is outside Australia; and is in possession of narcotic goods; and knows that he or she possesses those goods and knows their nature.

Maximum punishment: (d) if the offence is committed in relation to: (i) (ii) a substance other than cannabis; or a quantity of cannabis exceeding 25 grams in mass;

Imprisonment for 2 years; or (e) if the convicted person is a member of the Defence Force and the offence is committed in relation to a quantity of cannabis not exceeding 25 grams in mass: (i) (ii) (f) in the case of a first offencea fine of the amount of the member's pay for 14 days; or in the case of a second or later offencedismissal from the Defence Force; or

in any other casea fine of $100.

(4) It is a defence to a charge under subsection (3) if the person proves that he or she had lawful authority for possessing the narcotic goods.
Note: The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code.

(5) A person who is a defence member or a defence civilian is guilty of an offence if the person: (a) is outside Australia; and

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(b)

administers to himself or herself narcotic goods other than cannabis.

Maximum punishment: Imprisonment for 2 years. (6) A person who is a defence member or a defence civilian is guilty of an offence if the person uses cannabis, whether within or outside Australia. Maximum punishment: (a) if the convicted person is a member of the Defence Force: (i) (ii) (b) (7) in the case of a first offencea fine of the amount of the member's pay for 14 days; or in the case of a second or later offencedismissal from the Defence Force; or

in any other casea fine of $100.

A defence member is guilty of an offence if the member: (a) (b) (c) is in Australia; and is in possession of a quantity of cannabis not exceeding 25 grams in mass; and knows that he or she possesses the cannabis and knows its nature.

Maximum punishment: (d) (e) in the case of a first offencea fine of the amount of the member's pay for 14 days; or in the case of a second or later offencedismissal from the Defence Force.

(8) It is a defence to a charge under subsection (7) if the member proves that he or she had lawful authority for possessing the cannabis. Note: The defendant bears a legal burden in relation to the matter in subsection (8). See section 13.4 of the Criminal Code. (9) In this section:

cannabis means a cannabis plant, whether living or dead, and includes, in any form, any flower or fruiting tops, leaves, seeds, stalks or any other part of a cannabis plant or cannabis plants and any mixture of parts of a cannabis plant or cannabis plants, but does not include cannabis resin or cannabis fibre.

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narcotic goods has the same meaning as in the Customs Act 1901. SPECIMEN CHARGE: s.59(1) (Selling) (dealing) (trafficking) in narcotic goods outside Australia Being a defence member at RAAF Base Butterworth on .......... sold a quantity of narcotic goods, namely 10 gms of morphine, knowing the nature of the goods. PROSECUTION PROOFS: a b that the accused was a defence member or a defence civilian (physical element); that the accused knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); c d e that the accused is outside Australia (physical element); that the accused either knew or was reckless as to (c) (fault element); that the accused sold or dealt in or trafficked in goods as specified (physical element); f g h that the accuseds act or omission in (e) was intentional (fault element); that the specified goods were narcotic goods (physical element); that the accused knew the goods were narcotic goods (fault element);

DEFENCE PROOFS: a the accused may raise the statutory defence under s.59(2) that he or she had lawful authority for the conduct in (e); and b if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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COMMENTARY: Narcotic goods. A list of substances that comprise narcotic goods is set out in the Customs Act 1901, Schedule VI; this is supplemented by a further list in the Customs (Narcotic Substances) Regulations. These lists are extracted in Part 11 of Volume 2 of this Manual. The quantity of narcotic goods that is alleged to have been sold etc is not relevant to a charge under this subsection. SPECIMEN CHARGE: s.59(3) Possession of narcotic goods outside Australia Being a defence member at ................. on ............. on board HMAS ........ on passage from Hong Kong to Singapore was in possession of narcotic goods, namely 10 gms of cocaine, knowing that she possessed the goods and knowing their nature. PROSECUTION PROOFS: a b that the accused was a defence member or defence civilian (physical element); that the accused knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); c d e f that the accused is outside Australia (physical element); that the accused either knew or was reckless as to (c) (fault element); that the accused was in possession of goods as specified (physical element); that the accused knows that he or she possessed the goods specified (fault element); g h that the specified goods were narcotic goods (physical element); that the accused knew the goods were narcotic goods (fault element);

DEFENCE PROOFS: a the accused may raise the statutory defence under s.59(4) that he or she had lawful authority for the conduct in (e); and

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if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Narcotic goods. A list of substances that comprise narcotic goods is set out in the Customs Act 1901, Schedule VI; this is supplemented by a further list in the Customs (Narcotic Substances) Regulations. These lists are extracted in Part 11 of Volume 2 of this Manual. The quantity of narcotic goods that is alleged to have been sold etc is not relevant to a charge under this subsection. SPECIMEN CHARGE: s.59(5) Self administering narcotic goods other than cannabis outside Australia Being a defence member at Hickham Air Force Base, Hawaii, on ....... administered to himself narcotic goods, namely heroin. PROSECUTION PROOFS: a b that the accused was a defence member or defence civilian (physical element); that the accused knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); c d e f g h that the accused is outside Australia (physical element); that the accused either knew or was reckless as to (c) (fault element); that the accused administered himself or herself goods (physical element); that the accuseds act or omission in (e) was intentional (fault element); that the goods were narcotic goods other than cannabis (physical element); that the accused either knew or was reckless as to (g) (fault element);

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STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Narcotic goods. A list of substances that comprise narcotic goods is set out in the Customs Act 1901, Schedule VI; this is supplemented by a further list in the Customs (Narcotic Substances) Regulations. These lists are extracted in Part 11 of Volume 2 of this Manual. The quantity of narcotic goods that is alleged to have been sold etc is not relevant to a charge under this subsection . SPECIMEN CHARGE: s.59(6) Using cannabis Being a defence member at Kapooka on ........ used cannabis. PROSECUTION PROOFS: a b that the accused was a defence member or defence civilian (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member or defence civilian (fault element); c d e f g h that the accused was either within or outside Australia (physical element); that the accused either knew or was reckless as to (c) (fault element); that the accused used a substance (physical element); that the accuseds act or omission in (e) was intentional (fault element); that the substance was cannabis (physical element); that the accused either knew or was reckless as to the substance in (g) being cannabis (fault element); STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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COMMENTARY: Cannabis is defined in s.59(6) of the DFDA. SPECIMEN CHARGE: s.59(7) Possession of cannabis in Australia Being a defence member at HMAS PENGUIN on .............. was in possession of a quantity of cannabis not exceeding 25 grams in mass knowing that she possessed it and knowing its nature. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to the fact that he or she was a defence member (fault element); c d e f that the accused was in Australia (physical element); that the accused either knew or was reckless as to (c) (fault element); that the accused was in possession of a specified substance (physical element); that the accused knew that he or she possessed the goods specified in (e) (fault element); g that the substance was a quantity of cannabis not exceeding 25 grams in mass (physical element); h that the accused knew that the substance was a quantity of cannabis not exceeding 25 grams in mass (fault element); DEFENCE PROOFS: a the accused may raise the statutory defence under s.59(8) that he or she had lawful authority for the conduct in (e); and

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if raised, the accused must prove this defence on the balance of probabilities.

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Where the quantity of cannabis in the possession of a defence member in Australia exceeds 25 grams in mass the case must be referred to the civil authorities with a view to prosecution in the civil courts. Section 60 Prejudicial conduct (1) A defence member is guilty of an offence if the member engages in conduct that is likely to prejudice the discipline of, or bring discredit on, the Defence Force. Maximum punishment: Imprisonment for 3 months. (2) An offence under this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) It is a defence if the member proves that he or she had a reasonable excuse for the relevant conduct.
Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

SPECIMEN CHARGE: s.60 Prejudicial conduct Being a defence member at ............. on ............. engaged in conduct likely to prejudice the discipline of the Army by drawing cartoon figures of his Commanding Officer, Captain X. Being a defence member at ............. on ............. engaged in conduct likely to bring discredit upon the Defence Force by urinating in front of Parliament House Canberra whilst wearing Winter Mess uniform.

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PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused engaged in conduct (by doing or omitting to do a specified act) (physical element); c that the accuseds conduct in (b) was likely to prejudice the discipline of (or to bring discredit upon) the Defence Force (or a specified part of the Defence Force) (physical element); and d no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements in (a), (b) or (c) as this is an offence of strict liability under s.60(2). DEFENCE PROOFS: a. the accused may raise the statutory defence under s.60(3)53 that he or she had a reasonable excuse for the relevant conduct; and b. if raised, the accused must prove this defence on the balance of probabilities. STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: The specific offences provided by ss.15 to 59, s.61,s. 62 and s.101QA of the Act are intended to cover most forms of misconduct by members of the Defence Force. It is not practicable to proliferate offence provisions to provide specifically for all forms of misconduct that should be regarded as culpable. The intent is that the offence of prejudicial conduct is available for other forms of misconduct that merit punishment that are not covered by other specific offence provisions.

53

Strictly speaking the prosecution does not have to establish the accused did not have a reasonable excuse for engaging in the conduct to which the charge relates. The presence of such an excuse is something the accused may raise by way of defence under s.60(3). However, if the prosecution is readily able to establish that the accused did not have a reasonable excuse, then it is prudent to lead that evidence during the prosecution case, for it may not be permissible for the prosecution to call further evidence to rebut that defence if raised during the prosecution case.

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It was the intention of the framers of the DFDA that charges should not be laid under s.60 if they could properly be laid under some other section of the Act. To encourage this approach and to restrict the application of s.60, in practice, to minor infractions of discipline, a low maximum punishment was provided. There is no specific prohibition in the Act against laying a charge under s.60 in respect of conduct that could properly be the subject of a charge under another section and a charge under s.60 will not necessarily fail on that account. Charges under s.60 should not be brought against aiders and abettors, inciters and accessories after the fact in respect of offences under the other section. Likely'. This is not defined and has its ordinary meaning in the context, in relation to a possible outcome of seeming as if it would happen or that there is a reasonable probability that it will happen. It is not necessary for the discipline of the Defence Force to have actually been prejudiced or for discredit to have actually been brought upon the Defence Force. Defence Force'. It is sufficient if the discipline of a part of the Defence Force is likely to be prejudiced or if discredit is likely to be brought upon a part of the Defence Force.54 A specified part of the Defence Force could mean the Army, Navy or Air Force or a specified unit or ship. Prejudice discipline of, or bring discredit upon. Whether conduct is likely to prejudice the discipline of, or bring discredit upon, the Defence Force is a matter that will ultimately be judged by the Service tribunal hearing the charge.

Division 8 Offences based on Territory offences

Section 61 Offences based on Territory offences (1) if: A person who is a defence member or a defence civilian is guilty of an offence (a) (b) (2) if: the person engages in conduct in the Jervis Bay Territory; and engaging in that conduct is a Territory offence.

A person who is a defence member or a defence civilian is guilty of an offence (a) the person engages in conduct in a public place outside the Jervis Bay Territory; and

54

See DFDA s.3(2).

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(b) (3 if:

engaging in that conduct would be a Territory offence, if it took place in a public place in the Jervis Bay Territory.

A person who is a defence member or a defence civilian is guilty of an offence (a) (b) the person engages in conduct outside the Jervis Bay Territory (whether or not in a public place); and engaging in that conduct would be a Territory offence, if it took place in the Jervis Bay Territory (whether or not in a public place).

(4)

The maximum punishment for an offence against this section is: (a) (b) if the relevant Territory offence is punishable by a fixed punishmentthat fixed punishment; or otherwisea punishment that is not more severe than the maximum punishment for the relevant Territory offence.

(5)

Strict liability applies to paragraphs (1)(b), (2)(b) and (3)(b).

Note: For strict liability, see section 6.1 of the Criminal Code.

(6) To avoid doubt, section 10 of this Act does not have the effect that Chapter 2 of the Criminal Code applies to the law in force in Jervis Bay, for the purpose of determining whether an offence against this section has been committed.
Note: Section 10 of this Act applies Chapter 2 of the Criminal Code to the content of this section, but not to the content of the law in force in Jervis Bay. To determine, for the purposes of this section, whether Chapter 2 of the Code applies to Jervis Bay law, it is necessary to consult Jervis Bay law.

SPECIMEN CHARGE (1): DFDA section 61(1) Engaging in conduct in the Jervis Bay Territory that is a Territory offence, being the offence of act of indecency without consent, Crimes Act 1900 (ACT) s.92J(1) Being a defence member in the Jervis Bay Territory at on ............................. committed an act of indecency upon (or in the presence of) (name of victim), without the consent of (name of victim) and knowing that (he or she) did not consent (or reckless as to whether (he or she) consented).

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SPECIMEN CHARGE (2): DFDA section 61(1) Engaging in conduct in the Jervis Bay Territory that is a Territory offence, being the offence of assault occasioning actual bodily harm, Crimes Act 1900 (ACT) s.24 Being a defence member in the Jervis Bay Territory at harm. PROSECUTION PROOFS: a b that the accused was a defence member or defence civilian (physical element); that the accused either knew or was reckless as to as to whether he or she was a defence member or a defence civilian (fault element); c that the accused engaged in conduct (by doing or omitting to do an act) in the Jervis Bay Territory (physical element); d e that the accuseds act or omission in (c) was intentional (fault element); that the accuseds act or omission in (c) constitutes a Territory offence (physical element); f no requirement for prosecution to prove a fault element on the part of the accused in relation to (e) as this is an element of strict liability under s.61(5). STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. DFDA section 61(2) Engaging in conduct in a public place outside the Jervis Bay Territory that is a Territory offence being the offence of assault occasioning actual bodily harm, Crimes Act 1900 (ACT) s.24 Being a defence member in a public place outside the Jervis Bay Territory at .. on ............. assailted (name of victim), thereby occasioning to him actual bodily harm. .. on

............................. assaulted (name of victim), thereby occasioning to him actual bodily

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PROSECUTION PROOFS: a b that the accused was a defence member or defence civilian (physical element); that the accused either knew or was reckless as to as to whether he or she was a defence member or a defence civilian (fault element); c that the accused engaged in conduct (by doing or omitting to do an act) in a public place outside the Jervis Bay Territory (physical element); d e that the accuseds act or omission in (c) was intentional (fault element); that the accuseds act or omission in (c) would have been a Territory offence had it taken place in a public place in the Jervis Bay Territory (physical element); f no requirement for prosecution to prove a fault element on the part of the accused in relation to (e) as this is an element of strict liability under s.61(5). STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. DFDA section 61(3) Engaging in conduct outside the Jervis Bay Territory that is a Territory offence being the offence of murder, Crimes Act 1900 (ACT) s.12 Being a defence member outside the Jervis Bay Territory at Pearl Harbour in Hawaii on .. did murder (name of victim). PROSECUTION PROOFS: a b that the accused was a defence member or defence civilian (physical element); that the accused either knew or was reckless as to as to whether he or she was a defence member or a defence civilian (fault element); c that the accused engaged in conduct (by doing or omitting to do an act) outside the Jervis Bay Territory, whether or not in a public place (physical element); d that the accuseds act or omission in (c) was intentional (fault element);

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that the accuseds act or omission in (c) would have been a Territory offence if it had taken place in the Jervis Bay Territory (whether or not in a public place) (physical element);

no requirement for prosecution to prove a fault element on the part of the accused in relation to (e) as this is an element of strict liability under s.61(5).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. COMMENTARY: Section 61 makes certain civil offences (ie offences under the ordinary law) triable by a Service tribunal. These offences are known as Territory offences. Subsection 3(1) defines Territory offence as: a. b. an offence against a law of the Commonwealth in force in the Jervis Bay Territory other than the DFDA or DFD Regulations; or an offence against the Crimes Act 1900 of the Australian Capital Territory in its application to the Jervis Bay Territory as amended or affected by Ordinances in force in that Territory; or an offence against the Police Offences Act 1930 of the Australian Capital Territory, in its application to the Jervis Bay Territory as amended or affected by Ordinances in force in that Territory.

c.

A Territory offence is triable by a Service tribunal (subject in certain cases to the consent of the Director of Public Prosecution 55) whether or not it was committed in the Jervis Bay Territory. Framing of charges under section 61. Where it is intended to charge a person with a Territory offence under s.61 of the DFDA, the assistance of a legal officer must be obtained. Moreover, proceedings under the DFDA are not to be taken for the following offences when committed in Australia except with the consent of the Director of Public Prosecutions: a. treason, murder, manslaughter, bigamy or a related ancillary offence;

55

DFDA s.63.

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b. c. d.

an offence triable in the Jervis Bay Territory only with the consent of the Minister or the Director of Public Prosecutions; an offence against sections 92A to 92NB (inclusive) of the Crimes Act 1900 (ACT) in its application to the Jervis Bay Territory; and an offence prescribed in the DFD Regulations56.

Pending the giving of consent for proceedings under the DFDA, and in accordance with Part V of the Act, a warrant for the arrest of the person for the offence may be issued, the person may be arrested and kept in custody or otherwise dealt with, and the person may be charged with the offence.57 In view of the comprehensive range of specific service offences created by the DFDA, it is probable that the need to charge offences under s.61 will be infrequent and will generally be restricted to certain serious offences. Some other offences of a less serious nature may aslo be charged under this section, for example, an offence against the Defence Act 1903 for wearing a Service decoration or a Service uniform when not entitled to do so. Specimen charges are set out for some of the offences which may be charged under s.61. Detailed comments on questions of proof or other matters relating to the elements of these offences have not been included. Legal advice must be sought for s.61 charges. Where it is intended to charge a person under s.61, reference should be made to relevant criminal law publications dealing with the offence the subject of the charge58. See Annex C for further detail of fraud offences previously found in the Crimes Act 1914 (Cth) and prosecuted under this section of the DFDA as Territory offences.

Division 9 Miscellaneous

Section 62 Commanding or ordering a service offence to be committed (1) A defence member is guilty of an offence if:

56

DFDA s.63. DFDA s.63(2). The DFDA applies the Crimes Act 1900 (ACT) as it applies in the Jervis BayTerritory. Therefore, text on the NSW Crimes Act such as Watson, Blackman, Hosking: Criminal Law in New South Wales have little relevance to the DFDA offences and should not be used to frame charges. Michael Ward: Criminal Law and Practice (ACT) Vols I and II may be of assistance.

57

58

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(a) the member commands or orders a person to engage in conduct; and (b) the conduct would constitute the commission of a service offence. Maximum punishment: (c) if the last-mentioned offence is punishable by a fixed punishmentthat fixed punishment; or (d) otherwisea punishment that is not more severe than the maximum punishment for the last-mentioned offence. (2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.

SPECIMEN CHARGE: s.62 Commanding or ordering commission of service offence Being a defence member at ................. on ................ as platoon commander, ordered the commission of a Service offence by ordering ............. (name), a member of his platoon, to take property that had been left exposed or unprotected during operations undertaken by the Defence Force in aid of the civilian authorities in ............ (place) on ................. (date) which constituted an offence under subsection 48(1)(a) of the Defence Force Discipline Act 1982. PROSECUTION PROOFS: a b that the accused was a defence member (physical element); that the accused either knew or was reckless as to as to whether he or she was a defence member (fault element); c that the accused gave a specified command or order to a person to engage in specified conduct (physical element);

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d e

that the accuseds act or omission in (c) was intentional (fault element); that compliance with the accuseds command or order in (c) would constitute the commission of a service offence (physical element);

no requirement to prove a fault element on the part of the accused in relation to the physical element (e) as this is an element of strict liability under s.62(2).

STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. Section 101QA Offence of refusing to submit to medical examination etc. (1) If: (a) a person is in lawful custody in respect of a service offence; and (b) an investigating officer has arranged for a medical practitioner to examine the person for the purpose of securing evidence of, or relating to, the service offence; and (c) either: (i) the person has given his or her consent in writing to the examination; or (ii) an authorised officer has, under subsection 101Q(4), approved the examination; and (d) the investigating officer has informed the person that refusal or failure by him or her to submit to the examination will constitute an offence; and (e) after having been so informed, the person refuses or fails to submit to the examination; the person is guilty of an offence for which the maximum punishment is imprisonment for 6 months.

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(1A)

It is a defence to a charge under subsection (1) if the person proves that he or

she had a reasonable excuse for refusing or failing to submit to the examination.
Note: The defendant bears a legal burden in relation to the matter in subsection (1A). See section 13.4 of the Criminal Code.

(2)

If: (a) a person is in lawful custody in respect of a service offence; and (b) an investigating officer has arranged for a medical practitioner to take a specimen from the person; and (c) the officer believes on reasonable grounds that analysis or other examination of the specimen is likely to provide evidence of, or relating to, the service offence; and (d) either: (i) the person has given his or her consent in writing to the taking of the specimen; or (ii) an authorised officer has, under subsection 101Q(4), approved the taking of the specimen; and (e) the investigating officer has informed the person that refusal or failure by him or her: (i) to submit to the taking of the specimen; or (ii) to do any act reasonably necessary to enable the specimen to be taken; will constitute an offence; and (f) after being so informed, the person:

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(i) refuses or fails to submit to the taking of the specimen; or (ii) refuses or fails to do an act reasonably necessary to enable the specimen to be taken; the person is guilty of an offence for which the maximum punishment is imprisonment for 6 months. (2A) It is a defence to a charge under subsection (2) if the person proves that he or

she had a reasonable excuse for refusing or failing to do the act mentioned in subparagraph (2)(f)(i) or (ii).
Note: The defendant bears a legal burden in relation to the matter in subsection (2A). See section 13.4 of the Criminal Code.

(3)

It is a reasonable excuse for the purposes of subsection (1A) or (2A) that a

person has a medical condition that may be aggravated by the conduct of the medical examination or the taking of the specimen, as the case requires. (4) Nothing in this section renders a person guilty of an offence for refusing to submit

to a medical examination or the taking of a specimen to the extent that the person proves that the examination or the taking of the specimen, as the case may be, was not reasonably necessary for the purpose of obtaining evidence relating to the presence or absence of a narcotic substance in the blood or urine of a person.
Note: The defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code.

(5)

In subsection (4), narcotic substance has the same meaning as in the Customs

Act 1901.

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SPECIMEN CHARGE: s.101QA(1) Failing to submit to medical examination Being a defence member at . on . while in lawful custody in respect of the offence of using cannabis refused, without reasonable excuse and after being informed that refusal would constitute an offence, to submit to a medical examination which had been arranged by Sergeant E.L. Tracker A2341515, an investigating officer, and authorised by Wing Commander P.J. Smith CO 36 Squadron. PROSECUTION PROOFS: a that the accused was in lawful custody in respect of a service offence (physical element); b c that the accused either knew or was reckless as to (a) (fault element); that an investigating officer had arranged for a medical practitioner to examine the accused for the purpose of securing evidence of, or relating to, the service offence (physical element); d e that the accused either knew or was reckless as to (c) (fault element); that the accused has consented in writing to the examination or an authorised officer has approved the examination under s.101QA(4) (physical element); f g that the accused either knew or was reckless as to (e) (fault element); that the accused has been informed by the investigating officer that refusal or failure to submit to the examination constitutes an offence (physical element); h i that the accused either knew or was reckless as to (g) (fault element); that after having been informed of the matter in (g), the accused refused or failed to submit to the examination (physical element);

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that the accuseds refusal or failure to submit was intentional (fault element)

DEFENCE PROOFS: a the accused may raise the statutory defence under s.101QA(1A) that he or she have a reasonable excuse for refusing or failing to submit to the examination in (k); and b if raised, the accused must prove this defence on the balance of probabilities.

EXCULPATORY MATTER: a s.101QA(1) may not apply to the accused because of an exculpatory matter in s.101QA(4), namely, that the examination or the taking of the specimen, as the case may be, was not reasonably necessary for the purpose of obtaining evidence relating to the presence or absence of a narcotic substance in the blood or urine of a person; b if raised by the accused, the accused must prove this matter on the balance of probabilities. STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion. SPECIMEN CHARGE: s.101QA(2) Failing to submit to the taking of a specimen Being a defence member at on while in lawful custody in respect of the offence of using cannabis refused, without reasonable excuse and after being informed that refusal would constitute an offence, to submit to the taking of a specimen which had been arranged by Petty Officer I.B. Busy A4563, an investigating officer, and consented to in writing by the accused.

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PROSECUTION PROOFS: a that the accused was in lawful custody in respect of a service offence (physical element); b c that the accused either knew or was reckless as to (a) (fault element); that an investigating officer had arranged for a medical practitioner to take a specimen from the accused (physical element); d e that the accused either knew or was reckless as to (c) (fault element); that the investigating officer believed on reasonable grounds that analysis or other examination of the specimen is likely to provide evidence of that service offence (physical element); f g that the accused either knew or was reckless as to (e) (fault element); that the accused has consented in writing to the examination or an authorised officer has approved the examination (physical element); h i that the accused either knew or was reckless as to (g) (fault element); that the accused has been informed by the investigating officer that refusal or failure to submit to the taking of the specimen or to do any act reasonably necessary to enable the specimen to be taken constitutes an offence (physical element); j k that the accused either knew or was reckless as to (i) (fault element); that after having been informed of the matter in (i), the accused refused or failed to submit to the taking of the specimen or refused or failed to do any act reasonably necessary to enable the specimen to be taken (physical element); l that the accuseds refusal or failure in (k) was intentional (fault element)

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DEFENCE PROOFS: a b the accused may raise the statutory defence under s.101QA(2A); and if raised, the accused must prove these matters on the balance of probabilities.

EXCULPATORY MATTER: a s.101QA(2) may not apply to the accused because of an exculpatory matter in s.101QA(4), namely, that the examination or the taking of the specimen, as the case may be, was not reasonably necessary for the purpose of obtaining evidence relating to the presence or absence of a narcotic substance in the blood or urine of a person; b if raised by the accused, the accused must prove this matter on the balance of probabilities. STATUTORY CRIMINAL CODE DEFENCES: See section 23 discussion.

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REVISED DISCIPLINE LAW MANUAL VOLUME 1 CHAPTER 5 AS AT 8 JAN 02 CRIMINAL RESPONSIBILITY

Outline of Contents SECTION 1: INTRODUCTION Nature of DFDA proceedings Criminal responsibility at common law Impact of Criminal Code Act 1995 Burden of proof Prosecution burden Defence burden Evidential burden Legal burden

Elements of offences Physical elements Voluntary conduct Loss of memory

Fault elements Intention Knowledge Recklessness Substantial risk Unjustifiable risk

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Justifiable risk

Negligence Criminal Code definition Pre-Criminal Code definition Issues concerning Criminal Code definition of negligence Construction problems for certain offences involving negligence 2: CIRCUMSTANCES IN WHICH THERE IS NO CRIMINAL

SECTION

RESPONSIBILITY Mental impairment Intoxication Intoxication as a defence Types of intoxication Self-induced intoxication Basic and specific intent Negligence Fault elements of specific intent

Relationship of intoxication to other defences Burden of proof Intoxication-based DFDA offences

Duress Superior orders Sudden or extraordinary emergency Ignorance of law

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SECTION 3: DEFENCES TO ASSAULT-BASED CHARGES Consent Self-defence Criminal Code section 10.4 Burden of proof Relevant act Proportionality Objective element Perception Intoxication and self-defence Mental impairment Proximity of danger Retreat Provoked assaults Mixed motives Necessity Provocation and excessive self-defence

SECTION 4: EXTENSIONS OF CRIMINAL RESPONSIBILITY Introduction: strict, absolute and special liability Strict liability Absolute liability Special liability and ancillary offences Attempts

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Complicity and common purpose Innocent agency Incitement Accessories after the fact Conspiracy

NOTE: (1) In some sections of this revised chapter references have not been footnoted due to time limitations in order to make this document available. This will be rectified in the near future. (2) The commentary in this revised chapter pertaining to the fault elements of negligence and recklessness includes discussion of how the Criminal Code provisions may be interpreted. These provisions have not been judicially interpreted, hence, the commentary can only highlight areas where ambiguity or uncertainty appears to exist. No definitive statement as to the interpretation of these provisions can be provided at this time. If an issue arises that concerns an area mentioned in this commentary, legal advice should be sought from a regional ADF legal officer.

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5 Revised Discipline Law Manual Volume 1 Chapter 5 As At 8 Jan 02

SECTION 1 INTRODUCTION Nature of DFDA proceedings Proceedings under the DFDA are taken with a view to maintaining discipline in the Defence Force. The nature of these proceedings is essentially criminal. DFDA trials are the means by which a determination is made as to the culpability of a defence member or defence civilian and if guilty, the mechanism by which penalties are imposed on the convicted person. In this context, and in its narrowest sense, criminal responsibility means liability to punishment. To say that a person is criminally responsible means that he or she is liable to punishment for having committed an offence. Criminal responsibility at common law At common law, a person who brings about the external physical elements of an offence (actus reus or wrongful act) with the appropriate fault element (mens rea or guilty mind) without justification or excuse is said to commit the offence and is liable to punishment. Consequently, at common law, criminal responsibility depends on the proof of the following matters: a prohibition or obligation imposed by the criminal law; some conduct required by the offence charged usually an act, as where there is a duty to act, an omission (the actus reus or the wrongful act); a culpable state of mind accompanying the conduct or omission (called mens rea or the guilty mind); and the absence of any defence justifying the conduct or omission.

Criminal Code Act 1995 The general principles of criminal responsibility are now set out in Chapter 2 of the Criminal Code Act 1995 (the Criminal Code). Chapter 2 of the Criminal Code codifies the general common law principles of criminal responsibility applicable to offencecreating provisions in Commonwealth legislation. It contains all the general principles of

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6 Revised Discipline Law Manual Volume 1 Chapter 5 As At 8 Jan 02

criminal responsibility that apply to any offence, irrespective of how the offence is created. The codification of these common law principles is intended to introduce more certainty into the interpretation of offence-creating provisions by encapsulating key legal principles in the Criminal Code and requiring legislation, such as the DFDA, that creates offences to be more precisely drafted and to reflect these principles. The DFDA is a law of the Commonwealth and the Criminal Code applies to it. applies them to all service offences except for old system offences. The Criminal Code adopts the traditional common law division of offences into the actus reus and the mens rea but uses different language to describe these concepts and uses them differently. Section 3.1(1) of the Criminal Code states that offences consist of physical and fault elements. Physical elements. The Criminal Code adopts the common law requirement that criminal responsibility must generally involve an actus reus or wrongful act, that is, the performance by the defendant of some form of physical movement or bodily act or, in some cases, a failure to act. The Criminal Code refers to the wrongful act as the physical element of an offence. the Criminal Code. 4.1 Physical elements (1) A physical element of an offence may be: (a) (b) (c) (2) conduct; or a result of conduct; or a circumstance in which conduct, or a result of conduct, occurs. Physical elements may be conduct, or a circumstance in which conduct occurs or a result of conduct as indicated in s.4.1 of In

addition, DFDA s.10 adopts the Criminal Code criminal responsibility provisions and

In this Code:

conduct means an act, an omission to perform an act or a state of affairs. engage in conduct means:

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(a) (b)

do an act; or omit to perform an act.

Fault elements. The Criminal Code also adopts the common law concept of mens rea, that is, the mental ingredients that the prosecution must prove to secure a conviction for a particular offence that qualify the physical elements of an offence. The common law fault elements of intention, knowledge, recklessness and negligence are adopted by s.5.1 of the Criminal Code. 5.1 Fault elements (1) (2) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence. Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.

Burden of proof Prosecution. The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged (s.13.1 of the Criminal Code). In other words, the prosecution must prove the physical and, if necessary, the fault elements that make up the offence (s.3.2 of the Criminal Code). The standard of proof the prosecution must discharge is proof beyond reasonable doubt (s.13.2 of the Criminal Code). Defence: evidential burden. In general, a defendant who wishes to deny criminal responsibility bears an evidential burden in relation to that matter. Evidential burden means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist (s.13.3 of the Criminal Code). Part 2.3 of the Criminal Code lists a number of defences. An evidential burden of proof rests on the defendant who chooses to raise them.

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Defence: legal burden. By virtue of s.13.4 of the Criminal Code a legal burden of proof rests on the defendant if the law: expressly states that the burden of proof in relation to the defence is a legal burden; or requires the defendant to prove the matter; or creates a presumption that the matter exists unless the contrary is proved by the defendant. In the case of the DFDA, the Act creates statutory defences for many offences. The onus of proof of these defences is cast on the defendant and the Act notes that a legal burden, that is, proof on the balance of probabilities applies (s.13.5 of the Criminal Code). For example, DFDA s.44(3) - Losing service property, provides a statutory defence to the charge. Subsection 44(3) provides, It is a defence if the person proves that he or she took reasonable steps for the safe-keeping of the lost property. The note to DFDA s.44(3) states The defendant bears a legal burden in relation to the matter in sub-section (3). Elements of offences In the Criminal Codes analysis of crime, every offence consists of physical elements and fault elements. Physical elements may be conduct, a circumstance in which conduct occurs, or a result of conduct.1 Conduct is defined as an act, an omission to perform an act, or a state of affairs.2 For example, possession of a drug is not an act nor an omission, but a state of affairs. For each physical element of an offence, there may or may not be a corresponding fault element. If there is no fault element for a given physical element the offence is said to be one of strict liability or of absolute liability with respect to that element.
1 2 3

There

See Criminal Code, s.4.1. See Criminal Code, s.4.1(2). These terms are defined in Criminal Code Part 2.2, Division 6, ss. 6.1 6.2.

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may be no fault elements required for any of the physical elements of an offence. If a fault element exists for a given physical element, the fault element will be intention4, knowledge5, recklessness6 or negligence7. Physical elements: voluntary conduct Conduct can only be a physical element of an offence if that conduct is voluntary, that is, if it is a product of the will of the person whose conduct it is.8 Examples of conduct that is not voluntary are a spasm, convulsion or other unwilled bodily movement, an act performed during sleep or unconsciousness, or an act performed during impaired consciousness depriving the person of the will to act.9 For offences consisting only of a state of affairs (such as possession of a drug), the state of affairs is only voluntary if it is one over which the person is capable of exercising control.10 If the defendants act was not voluntary, it cannot constitute the physical element of an offence, and no further consideration of fault elements is required. For example, where the offence charged is murder and the killing occurred as a result of a shot fired at V, the physical act which caused the shot to be fired is the act of pulling the trigger of the firearm used. The prosecution must prove that Ds pulling of the trigger was voluntary; that it was a product of Ds will. These issues will usually not be in dispute. There are cases, however, where the pulling of a trigger may be a reflex, or accidental act, not consciously intended as, for instance, when the trigger is pulled in the course of a struggle for possession of a gun. There are other cases where the issue is whether the pulling of the trigger occurred during a state of automatism, or in circumstances in which the defendant did not act voluntarily, as, for instance, where D
4 5 6 7 8 9

Intention is defined in Criminal Code, s.5.2. Knowledge is defined in Criminal Code, s.5.3. Recklessness is defined in Criminal Code, s.5.4. Negligence is defined in Criminal Code, s.5.5. See Criminal Code, s.4.2. See Criminal Code, s.4.3. See Criminal Code, s.4.2(5).

10

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committed the act as the result of some physical force, or threat of physical force, or whilst under duress. A cardinal principle of the criminal law is that before a defendant can be convicted of a criminal offence he or she must have had at the relevant time the physical ability to control his or her conduct. In practice this principle is rarely called into question. If, however, there are sufficient grounds for believing that the conduct charged was done while the defendant was acting in a state of automatism or, perhaps, hypnosis, hypoglycaemia epilepsy, or as a reflex action upon being attacked by a swarm of bees or wasps11, the prosecution will have failed to prove beyond reasonable doubt that the physical element in question was voluntary. Physical elements: loss of memory The defendants inability to remember the events alleged to have taken place is in itself not conclusive of whether the defendant had the requisite criminal intent with respect to the physical act he or she allegedly performed. If, however, there is genuine retrograde amnesia, that is, loss of memory as to events after the act, there may also be amnesia of events for some period immediately preceding the relevant act. This could also occur where the defendant is intoxicated. In those circumstances there may be some scope for the defendant to argue that his or her conduct was involuntary. However, if as a result of excessive drinking D becomes so intoxicated as to have no subsequent memory of acts done by him or her, it does not necessarily follow that D did not know what he or she was doing at the time of doing those acts, or that he or she did not do those acts with the requisite criminal intent. The question in each case is whether, at the time of the occurrence of the relevant act, the mind of the defendant was consciously going with the act rather than his or her state of memory at a later time.

11

See Kay v Butterworth (1945) 61 TLR 192.

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One logical consequence of a claim by D not to remember events is that D is unable, by his or her own evidence, to dispute other evidence about those events. If D cannot remember punching V, D cannot give evidence that he or she did not punch V. D is not, however, prevented from calling other witnesses who say that D did not punch V. Fault elements: intention There are three separate statements of what amounts to intention corresponding to the three limbs of the definition of physical element in s.4.1(1) of the Criminal Code. Section 5.2 of the Criminal Code defines intention as follows: 5.2 Intention (1) A person has intention with respect to conduct if he or she means to engage in that conduct. (2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist. (3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events. Unless the legislation expressly provides otherwise, intention is, by default, the fault element for any physical element that consists only of conduct.12 This means that, if legislation provides that it is an offence if D does act X, then, in the absence of any express provision to the contrary, the prosecution will have to prove that D intended to do X before D can be convicted of that offence. For example, in the offence under DFDA s.42(a) - Inaccurate certification, in relation to ships, aircraft vehicles etc, the physical element gives a certificate, makes or signs a document or makes an entry in a document is one of conduct. As the offence is silent as to any fault element for this physical element, by default the relevant fault element is intention. prosecution must prove that D intended to give the certificate etc.
12

Hence, the

See Criminal Code, s.5.6(1).

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Note that although recklessness is the default fault element for physical elements consisting of result or circumstance,13 when used in this context, it is defined so as to include intention and knowledge as alternative applicable fault elements. When intention appears in the statutory language defining crimes, it is usually, though not exclusively, used with respect to a result (s.5.2(3) of the Criminal Code). For example, DFDA s.47C Theft, requires an intention to produce the result of permanently depriving the owner of his or her property, and the crime of murder requires an intention to produce the result of killing or inflicting grievous bodily harm on V. At common law, to intend to bring about a result entailed actual foresight by D of the certainty of that result being caused by Ds conduct. This is what appears to be meant by the words is aware that it will occur in the ordinary course of events in s.5.2(3) of the Criminal Code. Those words should be interpreted as is aware that it will necessarily occur in the ordinary course of events and not as is aware that it may (or even probably will) occur in the ordinary course of events.14 The prosecution must prove that the defendant had the requisite intent. The defendant does not have to prove that he or she did not have that intent, although from a tactical point of view the defence will usually seek to adduce some evidence of this either by cross-examination of a prosecution witness or by the defendants own sworn evidence. In the absence of admissions by the defendant, the relevant intent is usually inferred from the circumstances surrounding the alleged offence. The tribunal of fact has to determine, long after the event, what was in the defendants mind at the time of the
13 14

See Criminal Code, s.5.6(2).

The presumption that a person intends the natural consequences of his or her acts was firmly rejected by the High Court of Australia in Parker v R (1963) 111 CLR 610, and it is extremely improbable that Parliament intended to alter the law as declared in that case.

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commission of the offence. The fact that at the time of the trial, long after the offence, the defendant has (or professes to have) no memory of the events or of his or her state of mind at the time of the offence, or denies that he or she committed the physical acts, or, if he or she admits committing the physical acts, denies that he or she did those physical acts consciously, voluntarily or with the requisite intent, does not conclude the matter. Fault elements: knowledge Section 5.3 of the Criminal Code defines knowledge as follows: 5.3 Knowledge A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events. Note that one cannot have knowledge of conduct, but only of circumstances or results. For example, under DFDA s.48(2) Looting, an offence is committed if a person receives looted property knowing that its obtaining amounted to looting under DFDA s.48(1): this is knowledge of a circumstance. Again, it seems that the words will exist in the ordinary course of events should be interpreted to mean will necessarily exist in the ordinary course of events, and not will probably (or possibly) exist. This is in contrast to receiving stolen property under DFDA s.47P(1) Receiving, where the offence is committed if the defendant knows or believes that the property was stolen. Note that, as in DFDA s.47P - Receiving, there are other states of mind, apart from those considered here, that are used elsewhere in the DFDA (for example, reasonable belief in s.101P, and reasonable grounds for suspecting in s.101X). Parliament has clearly distinguished these states of mind from those upon which criminal liability is to be based, and they must never be allowed to replace the Criminal Codes requirements for criminal guilt. For example, if D suspects property was stolen, but does not know or

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14 Revised Discipline Law Manual Volume 1 Chapter 5 As At 8 Jan 02

believe that circumstance, D cannot be convicted of receiving that property contrary to DFDA s. 47P. Fault elements: recklessness Section 5.4 of the Criminal Code defines recklessness as follows: 5.4 Recklessness (1) A person is reckless with respect to a circumstance if: (a) (b) (2) he or she is aware of a substantial risk that the circumstance exists or will exist; and having regard to the circumstances known to him or her, it is unjustifiable to take the risk. A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) (3) (4) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. The question whether taking a risk is unjustifiable is one of fact. If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. It is important to note that, under s.5.6(2) of the Criminal Code, recklessness is the default fault element for result or circumstance elements of offences.15 Although this essentially reflects the common law position vis--vis recklessness, it may make this terms interpretation of great importance in the operation of the Criminal Code, and of the DFDA.
15

Criminal Code, s.5.6(2) provides - If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

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By expressly referring only to recklessness as to result and recklessness as to circumstance, the definition implicitly excludes the concept of recklessness as to conduct. This implication is confirmed by s.5.6(1) of the Criminal Code that provides that, by default, intention is the fault element for any physical element that consists only of conduct.16 It is also important to recognise that the word recklessness has been, and is currently, used in many different ways in different legal contexts. For offences committed on or after 15 December 2001, do not rely on materials relating to recklessness unless they refer to s.5.4 of the Criminal Code. Substantial risk. There is likely to be considerable debate about what constitutes a

substantial risk, given that the definition of negligence in s.5.5 of the Criminal Code refers to a high risk that an element does or will exist. At common law, to be reckless (in cases other than murder) one only had to have subjective foresight of the possibility of an outcome17, but this position would seem to have been overruled by the Criminal Codes requirement of substantial risk. It may be that the requirement is now more in line with that required for murder at common law where the defendant had to foresee the probability of death or grievous bodily harm resulting from his or her acts.18 None of the common law or previous statutory formulations will be definitive of, of even necessarily helpful in interpreting, the concept of recklessness created in s.5.4 of the Criminal Code. Whilst both the common law and statutory concepts contain the same elements of subjective foresight and objective risk as the Criminal Code concept, the

Criminal Code, s.5.6(1) provides If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
17 18

16

R v Coleman (1990) 19 NSWLR 467, 474. See Crabbe (1985) 156 CLR 464 (HCA), where the High Court of Australia stated:

It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results. It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result.

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ways they are expressed, and the relative weights to be accorded to each, are different in each instance. Case law on what is substantial notes that the word is ambiguous and is calculated to conceal a lack of precision.19 There may be considerable litigation over this provision before a settled meaning emerges. As far as guidance in DFDA proceedings is concerned, it is suggested that substantial can be interpreted as meaning of substance, but does not require that the risk be exceptional or unusual.20 Unjustifiable risk. Whether the recklessness is as to circumstance or as to result, the prosecution must prove beyond reasonable doubt that having regard to the circumstances known to him or her, it is unjustifiable to take the risk of the circumstance existing or the result occurring. This is a question of fact not a question of law.21 It is likely to pose enormous difficulties for summary authorities sitting as triers of fact and law, and for judge advocates in how they are to instruct the members of courts-martial who decide questions of fact. The only (and minimal) legislative guidance is provided in DFDA s.11(1) requiring a service tribunal considering recklessness to have regard to the fact that the member was engaged in the relevant activities in the course of the members duty or in accordance with the requirements of the Defence Force, as the case may be.22 This guidance does not alter the definition of recklessness in the Criminal Code23, nor does it limit the matters that the tribunal may take into account in determining whether a member was reckless or not.24
Tillmans Butcheries P/L v AMIEU (1979) 42 FLR 331 at 348. For recent authority, see DPP v Losurdo (1998) 44 NSWLR 618; Hanna v Kearney & DPP (unrep Studdert J, NSWSC 28 May 1998).
20 21 22 19

See e.g. DPP v Losurdo, (1998) 44 NSWLR 618. See Criminal Code, s.5.4(3).

When referring to DFDA s.11 Note 2 applies in relation to s.11(3) with the effect that the subsection refers to Chapter 2 of the Criminal Code and not the principles of common law as is stated in s.11(3). DFDA s.11(3A) provides In particular, subsections (1) and (2) merely provide for matters to which a service tribunal must have regard in deciding whether a member was reckless, or negligent. They do not alter the definitions of recklessness and negligence in sections 5.4 and 5.5 of the Criminal Code. DFDA s.11(3B) provides Subsections (1) and (2) do not limit the matters to which a service tribunal may have regard.
24 23

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It is impossible to define exactly what amounts to a justified risk, and there is often, in commercial enterprises (even more so in the ADF), a need to trade off risk to lives for community benefit. Where the trade-off involves a blatant disregard for human life, liability for recklessness may well be warranted. Where the trade-off is based on a wellgrounded choice among competing alternatives, however, a reckless crime is not committed because the defendant has taken a justifiable risk.25 The absence of lawful justification or excuse is an essential element of recklessness in crime. For example, not every fatal act done with the knowledge that death or grievous bodily harm will probably result is murder. The act may be lawful, that is, justified or excused by law. A surgeon who competently performs a hazardous but necessary operation is not criminally liable if the patient dies, even if the surgeon foresaw that his death was probable. This concept raises a significant problem for those offences of express (or, more likely, implied) recklessness that allow for statutory defences of reasonable excuse or lawful excuse. These concepts may overlap with lawful justification or excuse. This gives rise to the problem of having the prosecution bear the burden of proving unjustifiability as a part of recklessness beyond reasonable doubt, whilst the defendant bears the burden of proving reasonable or lawful excuse on the balance of probabilities.26 Justifiable risk. In todays technological society, people are accustomed to thinking in terms of risks and risk assessment, and are well acquainted with the idea of a calculated risk. So what is a justifiable risk? The Shorter Oxford Dictionary defines justifiable as capable of being justified, or shown to be just. Whether something is

25 26

Howards Criminal Law (5th Ed), at page 63, under the heading Recklessness and justification

Criminal Code, s 13.3(3) - A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.

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just or not is a matter of ethical judgment on which individual views can differ widely. In deciding whether an act is justifiable its social purpose or social utility may be important.27 As contained in s.5.4 of the Code, a justifiable risk appears to be an objective concept: would a reasonable person, having regard to the circumstances in which the defendant found himself or herself, and having considered the risk of the particular proscribed result or circumstance, have taken that risk? One must ask whether in the circumstances a reasonable man having such [subjective] foresight would have proceeded with his conduct notwithstanding the risk.28 In the absence of case law explaining the concept, this seems to be the extent of the advice that can be offered on this aspect of the definition. Note also that the legislative choice of words is it is unjustifiable to take the risk: the question to be decided is whether it was possible to justify taking the risk, not whether the risk taking was actually justified. Given that justifications that are offered (and sometimes, accepted) for the most appalling criminal acts (eg. religious or ethnic hatreds as a justification for mass murder), a liberal interpretation of what may possibly amount to a justification could well render strict recklessness (as distinct from the extended form encompassing intention or knowledge) almost impossible for the prosecution to prove. Furthermore, since this is a decision on a question of fact, the trier of facts decision on the question will be next to impossible to challenge on appeal.

27 28

See, for example, Howard, Criminal Law, 4th ed. (1982), at pp.54-55 and 357-359. Prof Glanville Williams, Criminal Law: The General Part, p 58 (Stevens & Sons, 1961).

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Fault elements: negligence Criminal Code. Section 5.5 of the Criminal Code defines negligence as a fault element of offences to which it applies in the following terms: 5.5 Negligence A person is negligent with respect to a physical element of an offence if his or her conduct involves: (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk that the physical element exists or will exist;

that the conduct merits criminal punishment for the offence. The required standard of care will be determined by the particular action to be performed. If, for example, the action is to flag unexploded ordnance on a firing range, the standard of care required will be that of a reasonable person who possesses the defendants experience and training and is required to perform that particular function. Failure to flag an unexploded shell lying on the surface in plain view would be a great falling short of that standard of care. Failure to flag a shell that has gone down a rabbit hole with no obvious disturbance to the soil would be a much lesser failure to meet the standard of care, possibly to the extent of not being negligence at all. The standard of care is not the simple civil standard of doing something that a reasonable person would not do in the circumstances. Section.5.5 of the Criminal Code requires a great falling short of the standard of care and a high risk that a given physical element exists or will exist. The standard of care in each case is to be determined as that which a reasonable person who was a member of the ADF with the same training and experience as the member charged, and was engaged in the relevant activities in the course of the

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members duty or in accordance with the requirements of the ADF: DFDA s.11(2). However, whilst a service tribunal must have regard to these factors, they do not alter the definition of negligence in s.5.5 of the Criminal Code: DFDA s.11(3A).29 Negligence also requires that the defendants conduct entailed a high risk that some particular result would occur (ie. the failure to flag the shell, it is not detected and subsequently explodes). It is essential to be able to identify the element of high risk. If paragraphs (a) and (b) of the definition of negligence are made out, it follows that the defendants conduct merits criminal punishment: this does not appear to be an additional matter that needs to be proved by the prosecution (however, see discussion below). It is important to note that the defence of mistake under s 9.1 of the Criminal Code does not apply where the fault element in respect of a physical element is negligence.30 More detailed discussion of the issues involved in interpreting s.5.5 follows in the next three sections (Pre-Criminal Code authorities, Issues concerning Criminal Code definition of negligence', and Construction problems for certain DFDA offences involving negligence). This discussion alludes to a number of areas of uncertainty in the definition and its application to DFDA offences. In the absence of judicial interpretation of s.5.5, it is really only possible to highlight these areas so that DFDA users are alerted to the potential problems. Personnel seeking further information on these matters should contact their regional legal officer.

When referrring to DFDA s.11 Note 2 applies in relation to s.11(3) with the effect that the subsection refers to Chapter 2 of the Criminal Code and not the principles of common law as is stated in s.11(3). Criminal Code s.9.1 provides A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if: a. at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and b. the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.
30

29

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Pre-Criminal Code authorities. The Criminal Code has introduced a single exclusive definition of negligence that is applicable to all offences under the DFDA of which negligence is an element. The concept of negligence is now defined in specific Past court decisions on negligence language which must be applied in all cases.

including the decision of the Federal Court in the case of Lamperd31 should no longer be relied upon to interpret the Criminal Code concept of negligence. Issues concerning Criminal Code definition of negligence. The definition of

negligence in s.5.5 of the Criminal Code is unique in the sense that no similar definition appears in any other Australian codification of criminal law. In other jurisdictions that use a criminal code, the common law meaning is used. Section 5.5 suffers from significant ambiguity. On one view (the individual view), it appears to create a twofold test for criminal negligence: (1) (2) Has there been a great departure from the requisite standard of care; and Was there a high risk that the relevant physical element does or will exist.

On this view, the third element of s.5.5, namely, that the conduct merits criminal punishment, is not a separate part of the test of negligence. If (1) and (2) are shown to a significantly high degree, then the conduct will merit criminal punishment. On the other hand, (the totality view), the use of the word such in s.5.5(a) and (b) is suggestive of the decision-maker having to assess the degree of want of care and risk, and then deciding whether, in totality, those warrant the application of the criminal sanction. Symbolically, the individual view could be expressed as: (a) high + (b) high => conduct meriting criminal punishment

31

(1983) 63 FLR 470

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whilst the totality view could be: [(a) + (b)] high => conduct meriting criminal punishment. In practical terms, the individual view requires the prosecution to prove both a serious departure from the standard of care and a high risk of some result, before a prosecution can succeed, whilst the totality view entails that a court could find that conduct merits criminal punishment where there is a high risk of some result element occurring, but only a much lesser breach of the standard of care. The former view commends itself on human rights grounds, the latter on public safety grounds. The ultimate choice will not be an easy one, and no legal authorities are available at this stage to provide authoritative guidance. There is a further ambiguity, and that is whether the requirement that conduct merits criminal punishment is a separate element from the tests set out in paragraphs (a) and (b) of s.5.5. Whichever of the individual or totality views above proves correct, must the court make a further value judgment that the defendants conduct merits criminal punishment, or does that flow automatically from finding that there has been a breach of the standard of care and a high risk of the relevant physical element existing? At this early stage in the life of the Criminal Code it is impossible to forecast which approach the courts will take towards interpreting the definition of negligence. Certainly, the position in the United Kingdom appears to be that the element of whether the conduct merits criminal punishment is a separate and most significant test of criminal responsibility for negligence.32 However, in that countrys formulation of the concept of negligence, the elements of standard of care and breach of that standard need only be established to the civil standard of negligence, and this is a much lower level than that required by the Criminal Code.

32

R v Adomako [1995] 1 AC 171

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Construction problems for certain DFDA offences involving negligence.

The

offences under DFDA ss.35 and 40B differ from other offences involving negligence in that they are committed if, respectively, whilst performing a duty or whilst driving a service vehicle or on service land, a defence member engages in negligent conduct. They do not appear to have been deconstructed into physical and fault elements in the Defence Legislation (Application of Criminal Code) Act 2001. DFDA s.35 provides: 35 Negligent performance of duty A defence member is guilty of an offence if the member: (a) (b) is required by the members office or appointment to perform a duty; and by act or omission, performs that duty negligently.

DFDA s.40B provides: 40B Negligent conduct in driving (1) A person who is a defence member or a defence civilian is guilty of an (a) (b) (2) the person drives a service vehicle in any place, whether a public place or not; and in doing so, the person engages in negligent conduct.
Imprisonment for 3 months. Maximum punishment:

offence if:

A person who is a defence member or a defence civilian is guilty of an (a) (b) the person drives a vehicle on service land; and in doing so, the person engages in negligent conduct.
Imprisonment for 3 months.

offence if:

Maximum punishment:

(3)

Absolute liability applies to paragraphs (1)(a) and (2)(a).

Note: For absolute liability, see section 6.2 of the Criminal Code.

The test of negligence remains the same as for the other offences. However, a difficulty with this formulation is that paragraph (b) of the definition of negligence in s.5.5 of the

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Criminal Code becomes meaningless in such a context. Since the relevant physical element is simply the conduct of the driver or person performing the duty, it cannot be sensibly said that there is a risk that that conduct will exist or not. That conduct has already occurred. It does not appear meaningful to describe conduct as existing or having a risk of existing. It seems inherent in the Criminal Codes definition of negligence that there will always be a physical element of result (or possibly circumstance) the risk of occurrence of which can be measured: the definition presupposes conduct which involves the risk that something, which can only be another defined or implicit physical element, exists or will exist. If this is so, how a court construing these offences will approach interpretation of a mandatory definition that lacks coherent meaning is uncertain. The commencement of s.5.5 of the Criminal Code as the test of criminal negligence under the DFDA will have a profound impact on what conduct may be the subject of successful prosecution action. The test is much more demanding than any presently in use, and much minor negligence now prosecuted will not sustain a conviction in accordance with s.5.5. The tests required by s.5.5 will involve prosecutors in the often difficult task of describing an appropriate standard of care that the defendants conduct has failed to meet, a task that is rarely undertaken in current prosecutions. This task will be made much more complicated because of the uncertainty surrounding the proper test of negligence: whether the individual view or the totality view is to be applied. The introduction of a more demanding test for criminal negligence can only be beneficial to discipline to prosecute the trivial, especially when what is involved is trivial negligence rather than minor, but intentional or reckless, breaches of discipline, tends to bring the prosecution system into disrepute. Minor negligent property damage should normally be dealt with by way of civil recovery processes (where this is permitted by Finance Instructions). Having to pay compensation is enough of a punishment for defence members without the addition of disciplinary proceedings, conviction and further punishment. Minor negligent acts able to be prosecuted under DFDA s.35 (apart from

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those giving rise to property damage) might be most appropriately dealt with through the infringement notice procedure. Furthermore, the obligation to define a suitable standard of care will often serve to highlight where such standards as do exist may be lacking. SECTION 2 - CIRCUMSTANCES IN WHICH THERE IS NO CRIMINAL RESPONSIBILITY Part 2.3 of the Criminal Code sets out the defences that are available to a defendant in DFDA proceedings in addition to the statutory defences found in the various DFDA offence provisions. The following Divisions are covered in Part 2.3: Division 7 - Circumstances involving lack of capacity. Division 8 - Intoxication Division 9 - Circumstances involving mistake or ignorance Division 10 - Circumstances involving external factors Detailed discussion of these defences can be found later in this chapter. discussed later in this chapter. Division 7 of the Criminal Code deals with circumstances involving lack of capacity. For example a child under 10 years is not criminally responsible for an offence. A child aged 10 years or more but under 14 years old can only be criminally responsible for an offence if the child knows that his or her conduct is wrong. This is a question of fact. Mental impairment Section 7.3 of the Criminal Code deals with mental impairment and provides as follows: (1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence the person was suffering from a mental impairment that had the effect that: The defence

known as defence of superior orders, provided for in DFDA s.14 is retained and is also

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(a) (b)

the person did not know the nature and quality of the conduct; or the person did not know that the conduct was wrong (that is the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong) ; or

(c)

the person was unable to control the conduct.

In this section mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder. Mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration, and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur. The question of whether a person was suffering from a mental impairment is one of fact. Psychiatric evidence would be essential in such a case. Intoxication A person is intoxicated if he or she has been affected by the ingestion of drugs or alcohol, to such an extent that he or she loses control of mental or physical powers. The term intoxication is the condition brought about by overindulgence in drugs or alcohol. Intoxication as a defence. The law that used to define the defence of intoxication to a charge under the DFDA was the law stated by the High Court in R v OConnor.33 That case held that evidence of intoxication was relevant to determine whether the defendant acted voluntarily when committing the proscribed conduct, and also whether or not the defendant possessed the fault element in relation to the proscribed conduct. The Criminal Code abandons the law in OConnor. The Criminal Code now states that self-induced intoxication cannot be considered when assessing whether conduct was
33

(1980) 54 ALJR 349 in which the High Court departed from DPP v Majewski [1976] 2 WLR 623.

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voluntary or not.34 Intoxication may be relevant to determining whether the defendant possessed the fault element in relation to the proscribed conduct, but only if the conditions laid down by the Code are satisfied. These conditions are discussed in the following paragraphs. Types of intoxication. intoxication. The Criminal Code distinguishes between two types of

They are self-induced intoxication and intoxication which is not self-

induced. Intoxication is self-induced unless it came about involuntarily, or as a result of fraud, a sudden or extraordinary emergency, accident, reasonable mistake, duress or force.35 As a general rule, the law relating to intoxication as a defence is different depending upon the fault element of the offence with which the person is charged. The exceptions to this general rule are that: Irrespective of the type of offence with which a person has been charged, a person is not liable for that offence if the conduct constituting the offence was done as a result of the fact that that person was intoxicated, and that intoxication was not selfinduced.36 This means that intoxication which is not self-induced may be a defence to all charges. In determining whether conduct was voluntary or not, self-induced intoxication cannot be considered.37 This rule does away with the law in R v OConnor where the High Court held that gross intoxication could be used as defence in circumstances where the intoxication prevented conduct being voluntary.

34

Criminal Code s.4.2(6) provides Evidence of self-induced intoxication cannot be considered in determining whether conduct is voluntary. See Criminal Code, s.8.1. See Criminal Code, s.8.5. See Criminal Code, s.8.2(1).

35 36 37

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Self-induced intoxication as a defence.

The Criminal Code provisions adopt the

broad approach followed in Queensland, Western Australia, Tasmania and, most recently, New South Wales criminal law in distinguishing between crimes of basic intent and those of specific intent. crimes is not easy. In simple terms, the distinction is between basic intent offences - for which all that needs to be established by the prosecution is that D intended to do the act constituting the offence (so that basic intent will usually be indistinguishable from voluntariness) - and specific intent offences- where an element of the offence is that D must have intended to bring about a particular consequence or achieve a particular purpose in addition to intending to perform the act or acts that provide the foundation for the offence. 38 The offence of assault would be considered to be a crime of basic intent, whereas assault with intent to rape is a crime of specific intent. The following table, extracted from Bronitt and McSherrys book Principles of Criminal Law compares some common criminal charges and, citing authority, differentiates those crimes which are crimes of basic intent, from those which are crimes of specific intent.39 Crimes of Basic Intent Manslaughter Assault and unlawful wounding Unlawfully causing grevious bodily harm Unlawful use of a motor vehicle Crimes of Specific Intent Murder Wounding with intent to prevent arrest Rape Stealing and larceny Differentiating between basic intent and specific intent

As any particular offence may have a number of fault elements, the Criminal Code is
38 39

Reference to be advised. Reference to be advised.

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drafted in terms of basic intent elements, rather than basic intent offences. Consistent with the above analysis, s.8.2(2) of the Criminal Code states A fault element of basic intent is a fault element of intention for a physical element that consists only of conduct. The explanatory memorandum notes a fault element with respect to a consequence or a circumstance is not a fault element of basic intent.40 It will be a matter of interpretation of the DFDA as to which elements of which offences are basic intent elements, and which are specific intent elements. It is clear, by way of example, that an offence like DFDA s.16B - Offence committed with intent to assist the enemy, contains specific intent elements as does DFDA s.22 - Desertion. The Criminal Code does not permit self-induced intoxication to be a defence to fault elements of basic intent, except in limited circumstances. They are: where the defence of accident is raised41; or where the defence raised is a mistaken belief about facts and whether a person had considered whether or not those facts existed.42 A person is regarded as having considered whether or not facts existed if: he or she had considered, on a previous occasion, whether those facts existed in circumstances surrounding that occasion43; and he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.44

40 41 42 43 44

Reference to be advised. See Criminal Code, s.8.2(3). See Criminal Code, s.8.2(4). See Criminal Code, s.8.2(5)(a). See Criminal Code, s.8.2(5)(b).

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Negligence. Where negligence is a fault element, in determining liability regard is to be had to the standard of a reasonable person who is not intoxicated.45 An exception arises where the intoxication is not self-induced. same extent as the person charged with the offence. Fault elements of specific intent. While the Criminal Code does not explicitly state If intoxication is not self-induced reference may then be had to the standard of the reasonable person intoxicated to the

that self-induced intoxication is a defence to fault elements of specific intent, this view can be inferred. The explanatory memorandum, after noting the limitations on basic intent offences, states thus a defendant would not be able to use voluntary intoxication to deny intent to act or omit, but could use it to deny intent, knowledge or recklessness with respect to circumstances or consequences.46 The intention of Parliament seems to have been to limit the defence of intoxication as it applies to fault elements of basic intent, but not to alter the defence as it would apply to fault elements of specific intent. This interpretation of the Criminal Code is supported by reference to the Parliamentary debate which accompanied the second reading of the Criminal Code Bill, as well as by criminal law texts.47 Where intoxication is used as a defence to a fault element of specific intent, the effect will be that the prosecution is unable to prove, beyond reasonable doubt, that the defendant formed the specific intent. However, this may not mean an acquittal of all charges. The defendant may still be liable for an offence which is committed but where there is no fault element of specific intention involved. For example, if a defendant were charged with assault with intent to rape (an offence involving a specific intent fault element), and successfully raised a defence of intoxication, this would have the effect of negativing the specific intent fault element i.e with intent to rape. The defendant could still be found guilty of assault since assault has only a basic intent fault element. With

45 46 47

See Criminal Code, s.8.3. Reference to be advised. Reference to be advised.

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some offences, once the specific intent fault element is negatived, there will be no residual offence and the defendant will not be criminally responsible for any offence. Relationship of intoxication to other defences. Intoxication may be relevant in terms of the operation of other defences. For example, can someone who is drunk, who breaks into a house honestly (though drunkenly) believing that house to be his own, be found liable for an offence? The Criminal Code provides that if any part of the other defence is based upon actual knowledge or belief, intoxication may be considered when determining whether that belief existed.48 An exception arises if any part of a defence is based on reasonable belief.49 In determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated.50 If the persons intoxication was not self-induced and a reasonable belief is part of the other defence, then regard must be had to the standard of a reasonable person intoxicated to the same extent as the person.51 If every physical element of an offence has a fault element of basic intent and any part of the defence is based on actual knowledge or belief, then self-induced intoxication cannot be considered in determining whether the knowledge or belief existed.52 Burden of proof. Although intoxication is colloquially referred to as a defence, it is clear that the prosecution bears the burden of disproving, beyond reasonable doubt, that intoxication was relevant, once the defendant has discharged the evidential onus. Intoxication-based DFDA offences. Certain provisions of the DFDA make intoxication an offence. Section 32, for example, makes it an offence to be intoxicated while on

48 49 50 51 52

See Criminal Code, s.8.4(1). See Criminal Code, s.8.4(2). See Criminal Code, s.8.4(2). See Criminal Code, s.8.4(3). See Criminal Code, s.8.4(4).

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guard or on watch. The term intoxication used in that section is given a special meaning by DFDA s.32 (5): For the purposes of this section, a person is intoxicated if, and only if, the persons faculties are, because of the person being under the influence of intoxicating liquor or a drug (other than a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the person is unfit to be entrusted with the persons duty or with any duty that the person may be called on to perform. A similar definition applies to the offence created by DFDA s.37 - Intoxicated while on duty. A different definition of intoxication applies with respect to DFDA s.40 - Driving while intoxicated. Section 40(1)(b) refers to a person being under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle. Duress Section 10.2 of the Criminal Code provides that a person is not criminally responsible for an offence which occurs while he or she is acting under duress. 10.2 Duress (1) (2) A person is not criminally responsible for an offence if he or she carries A person carries out conduct under duress if and only if he or she (a) (b) a threat has been made that will be carried out unless an offence is committed; and there is no reasonable way that the threat can be rendered ineffective; and out the conduct constituting the offence under duress. reasonably believes that:

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(c) (3)

the conduct is a reasonable response to the threat.

This section does not apply if the threat is made by or on behalf of a

person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out. Duress is limited to circumstances where: a person reasonably believes that a threat has been made out that will be carried out unless an offence is committed; and there is no reasonable way that the threat can be rendered ineffective; and the conduct is a reasonable response to the threat.

The Criminal Code definition of duress is considerably broader than the common law definition which formerly applied under the DFDA. In particular, though the duress was not, at common law, a defence to murder, no such limitation as to offences with which a person may plead duress applies under the Criminal Code. The Code definition does away with the debates as to whether threats to unlawfully imprison someone are or are not grounds of duress. Although threats to property could not, at common law, amount to duress, the same limitation does not hold under the Code. Nor is there a limitation under the Code that the threats be of such a nature that they would overbear the mind of a person of ordinary firmness. There is no limitation that the threat made must relate to the immediate application of harm, nor that the threats be directed at the defendant. It is clear that threats of death or grievous bodily harm would satisfy duress, though the Criminal Code defence of duress is not limited to such threats. memorandum to the Criminal Code Act quotes Yeo: 53 Once a person is under the influence of a threat, whatever he or she does depends on what the threatener demands. The crime demanded might be trivial or serious but it has no necessary connection with the type of threat
53

The explanatory

Yeo, Private Defences, Duress and Necessity (1991) 15 Crim LJ 139 at 143

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confronting the defendant. Policy reasons would, however, insist on a requirement that the defendants response was reasonably appropriate to the threat. The major limitation which applies to the use of the defence of duress is that it does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out. Additionally, the defence does not apply where there is a These two limitations are reasonable means of rendering the threat ineffective. duress. Although duress is colloquially referred to as a defence, it is clear that the prosecution bears the burden of disproving, beyond reasonable doubt, that duress was relevant, once the defendant has discharged the evidential onus. Superior Orders DFDA s.14 provides: 14. Act or omission in execution of law etc. A person is not liable to be convicted of a service offence by reason of an act or omission that: (a) (b) was in execution of the law; or was in obedience to: (i) (ii) a lawful order; or an unlawful order that the person did not know, and could not reasonably be expected to have known, was unlawful. The High Court held in A v Hayden54 superior orders are not and have never been a defence in our law. DFDA s.14 overcomes the limitation identified by the High Court
54

recognised at common law and are collectively referred to in the texts as self-induced

Citation to be advised.

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and codifies the principles outlined in the case of Smith.55 Smiths case was a South African case that was followed in the later South African case of Cellier.56 The principles in Smiths case and in DFDA s.14, to the extent that they are based on the possibility of a defence arising from an error of law, do not sit comfortably with the cases in which it has been stated ignorantia juris nemenem excusat (ignorance of the law is no excuse). The onus of proving the defence of superior orders rests on the defendant, on the balance of probabilities. Academic commentary has suggested that the defence of superior orders may be relevant as a collateral matter in certain property offences. Since a claim of right may be based on mistake or ignorance, the theory is that since it is necessary to prove theft to negative a claim of right, there may be circumstances in which a person acting under superior orders may believe it is his right to do what would otherwise be theft. Sudden or Extraordinary Emergency Section 10.3 of the Criminal Code provides for the defence of sudden or extraordinary emergency: 10.3 Sudden or extraordinary emergency (1) A person is not criminally responsible for an offence if he or she carries

out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency. (2) This section applies if and only if the person carrying out the conduct

reasonably believes that: (a) circumstances of sudden or extraordinary emergency exist; and

55 56

Citation to be advised. Citation to be advised.

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(b)

committing the offence is the only reasonable way to deal with the emergency; and

(c)

the conduct is a reasonable response to the emergency.

The defence of sudden and extraordinary emergency applies if, and only if, the person carrying out the conduct reasonably believes that circumstances of sudden or extraordinary emergency exist and committing the offence is the only reasonable way to deal with the emergency and the conduct is a reasonable response to the emergency.

This section is similar to s.25 of the Queensland Criminal Code and is broader than the common law defence of necessity which formerly applied under the DFDA. In his notes to the draft Criminal Code, Sir Samuel Griffith wrote: This section gives effect to the principle that no man is expected (for the purposes of the criminal law in all events) to be wiser and better than all mankind. It is conceived that it is a rule of the common law, as it undoubtedly is a rule upon which any jury would desire to act. It may, perhaps, be said that it sums up nearly all the common law rules as to excuses for an act which is prima facie criminal.57

Like the defence of duress, the circumstance of emergency and the response to the circumstance are both subject to an objective test. Unlike the Queensland Criminal Code provision, the sudden and extraordinary emergency defence in the Commonwealth Criminal Code is not limited to an urgent situation of imminent peril.

A sudden emergency is one which is unexpected. This has been held to include loud noise at the back of a car while it is being driven, being told that horses have escaped

57

Reference to be advised.

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onto a public road which is causing a danger to cars driving by and being chased by a another car.58 An extraordinary emergency, it has been suggested, may not entail suddenness or unexpectedness. Bronitt and McSherry suggest the emergency may extend over a period of time such as living in a war zone, or being adrift in the high seas.59 The defence would cover situations such as a fire in a barracks room. A soldier who broke a window in order to escape the fire would not be liable for the damage to the window, due the to the fact that breaking the window was done as a response to a sudden or extraordinary emergency.

The traditional view was that the defence of necessity (the common law equivalent of sudden and extraordinary emergency) did not extend so as to permit the taking of a human life. That view may no longer be good law since the cases concerning the separation of conjoined twins.60 Whatever the view of the common law, there are no restrictions on the taking of human life implied into the defence of sudden and extraordinary emergency.

The defence may be combined with the defence of mistake of fact. So, in R v Warner,61 where the defendant mistakenly believed he was being pursued by someone of whom he was scared, the Court of Criminal Appeal held that the defence of sudden or extraordinary emergency, combined with the defence of mistake of fact should have been left to the jury.

58 59 60 61

Citation to be advised. Reference to be advised. Citation to be advised. Citation to be advised.

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Although sudden or extraordinary emergency is colloquially referred to as a defence, it is clear that the prosecution bears the burden of disproving, beyond reasonable doubt, that the sudden or extraordinary emergency was relevant, once the defendant has discharged the evidential onus. Ignorance of Law The requirement of a fault element does not necessarily mean that the defendant must have been aware of the moral or legal wrongfulness of his or her conduct. Ignorance of these matters is usually no defence. The law does not presume that everyone does know the law, but the law cannot permit the defendant to escape the legal consequences of an act by saying that the defendant did not know he or she was breaking the law. Similarly, although moral considerations have had a profound influence on the development of the criminal law, the fact that the defendant believed his or her conduct was morally right is generally irrelevant if the facts necessary to impose criminal responsibility are proved. However, a belief that actions were morally right may become relevant to the question of the appropriate sentence if the defendant is found guilty of an offence. Under the Criminal Code, the rules relating to ignorance of statute law, and ignorance of subordinate legislation, are slightly different. A person can be criminally responsible for an offence against an Act of Parliament even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of that Act that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.62 However, the person will not be criminally responsible if the ignorance or mistake negates a fault element that applies to a physical element of the offence.63

62 63

See Criminal Code, s.9.3(1). See Criminal Code, s.9.3(2)(b).

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The same rules apply to ignorance of subordinate legislation.64 However, there is an added exemption from liability if, at the time of the conduct, copies of the subordinate legislation have not been made available to the public or to persons likely to be affected by it, and the person could not be aware of its content even if he or she exercised due diligence.65 SECTION 3 DEFENCES TO ASSAULT-BASED CHARGES Consent The absence of consent is usually a matter to be proved by the prosecution in a charge of assault66 or sexual assault67 and it may be relevant to some other offences68 as opposed to being a defence to a criminal offence. Notwithstanding this, the general rule is that if the victim consents to the application of force, it is not an assault. However, a person cannot consent to an assault that is likely or intended to cause actual bodily harm, unless the act falls within a recognised lawful exception such as surgery, tattooing, ear-piercing, or violent sports.69 In the case of sport, consent would be implied to contact that was authorised by the rules of the game, but not to contact that was not authorised (much less prohibited) by the rules.70 There is also implied consent to the ordinary physical contact of everyday life or physical contact between two persons as part of normal social interaction.

64

Criminal Code, s.9.4(1). subordinate legislation means an instrument of a legislative character made directly or indirectly under an Act, or in force directly or indirectly under an Act: Criminal Code, s.9.4(3). See Criminal Code, s.9.4(2)(c). Assault has not been defined in the Criminal Code, so the common law still applies to the various assault-based offences in the DFDA. Consent is irrelevant in some sexual offences such as incest, indecent assault of a child etc. Such as theft: DFDA s.47E(1) R v Brown [1994] AC 212. It follows that in cases of serious assault not falling within a recognised exception, the absence of consent is not an element of the actus reus. Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331; Williams v Wills (1977) 74 LSJS 450

65 66

67 68 69

70

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For assaults that are not intended to cause actual bodily harm, or harm other than of a merely transient kind, proof of non-consent by the victim is one of the physical elements of the offence. It is also necessary to prove, as one of the fault elements of the offence, that the defendant either knew, or was reckless as to, the victims non-consent.71 Consent cannot be validly obtained by threats, force or fraud. Submission does not equal consent. Self-Defence The law relating to self-defence, as it existed under the common law, has been replaced by the Criminal Code. An understanding of the previous law will be of benefit in construing the Code provisions. Prior to the commencement of the Code, the principles of self-defence applicable to DFDA offences were the same as those applying to offences under the common law. The law was stated by the High Court in Zecevic72 to be whether the defendant believed, upon reasonable grounds, that it was necessary in self-defence to do what he did.73 If the defendant had the required belief and there were reasonable grounds for it, or if the service tribunal is left in a reasonable doubt about either element, then the defendant is entitled to an acquittal. In other words, the prosecution must exclude, as a reasonable possibility, that the defendant held the belief or that there were reasonable grounds for it.74 The test has two elements. The subjective element is the belief of the defendant that it was necessary to do what he or she did. The objective element (which also has a

71

R v Aitken [1992] 1 WLR 1006; D. OConnor and P. Fairhall, Criminal Defences (3 Butterworths 1996) at p. 87.

rd

ed., Sydney:

Zecevic v Director of Public Prosecutions (Vic) (1987) 25 A Crim R 163; (1987) 61 ALJR 375; (1987) 71 ALR 641; (1987) 162 CLR 645
73 74

72

162 CLR at p. 661 R v Dziduch (1990) 47 A Crim R 378 at 381, R v Kurtic (1996) 86 A Crim R 57 at p. 63

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subjective component) is that there were reasonable grounds for the defendant to have the belief. The Zecevic test represented a change in the common law. In particular, self-defence was not confined to an unlawful attack and it no longer applied as a partial defence to murder (in cases of excessive force). Criminal Code s.10.4. The principles of law relating to self-defence are now contained in the Criminal Code. The main provision is s.10.4. 10.4 Self-defence (1) (2) A person is not criminally responsible for an offence if he or she carries A person carries out conduct in self-defence if and only if he or she (a) (b) (c) (d) (e) to defend himself or herself or another person; or to prevent or terminate the unlawful imprisonment of himself or herself or another person; or to protect property from unlawful appropriation, destruction, damage or interference; or to prevent criminal trespass to any land or premises; or to remove from any land or premises a person who is committing criminal trespass; and the conduct is a reasonable response in the circumstances as he or she perceives them. (3) This section does not apply if the person uses force that involves the (a) (b) (c) (4) (a) (b) to protect property; or to prevent criminal trespass; or to remove a person who is committing criminal trespass. the person is responding to lawful conduct; and he or she knew that the conduct was lawful. intentional infliction of death or really serious injury: out the conduct constituting the offence in self-defence. believes the conduct is necessary:

This section does not apply if:

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However, conduct is not lawful merely because the person carrying it out is not criminally responsible for it. Criminal Code s.10.4(1). Section 10.4(1) provides that a person is not criminally

responsible for an offence if he or she carries out the conduct constituting the offence in self-defence. Conduct is defined in s.4.1 as "an act, an omission to perform an act or a state of affairs." It is unlikely that an omission or state of affairs could be the relevant conduct for self-defence, having regard to s.4.3. Criminal Code s.10.4(2). Section 10.4(2) provides "if and only if he or she believes the conduct is necessary". This is the subjective element corresponding to the common law test as expounded in Zecevic. Thereafter a number of situations are set out. Paragraph (a) is the most common situation: the application of force by the defendant "to defend himself". Note that no minimum level of offensive threat or violence is stipulated. The other requirement is that "the conduct is a reasonable response in the circumstances as he or she perceives them". corresponding to the common law test in Zecevic. Section 10.4(2)(c) applies self-defence to the protection of property. It is not clear that self-defence applied to the protection of property at common law.75 Criminal Code s.10.4(3). Section 10.4(3) exempts self-defence from cases of death or serious injury in respect of property offences. To ensure that the section did not apply to an accident, the word intentional was added. The need to do so is not apparent. If the defendant caused death or serious harm by accident, he would lack the fault element. This is the objective element

75

D. OConnor and P. Fairhall, Criminal Defences (3 ed., Sydney: Butterworths 1996) at p. 181

rd

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"Really serious injury" was deliberately not defined. It is intended for it to be interpreted as equivalent to grievous bodily harm. dictionary. Criminal Code s.10.4(4). Section 10.4(4) removes self-defence if the sub-section is satisfied. Lawfulness is used here in the sense of authorised or justified by law, not conduct for which an attacker may not be legally responsible, such as the acts of a child or lunatic. The intention is clear enough, namely that the defendant could not rely on self-defence if he was resisting a wrongful (but lawful) arrest, even when he knew he was innocent (and had been arrested by mistake). Section 10.4(4)(b) refers to the state of mind of the defendant. It is not stated who carries the onus to satisfy paragraph (b). There is clearly no onus on the defendant to prove that the paragraph is satisfied: s.13.3(2). The legal burden is on the prosecution to prove the elements of the offence, but s.10.4(4) is not an element of the offence. The provisions of Division 13 do not obviously apply. However, prudence and principle dictate that the onus rests on the prosecution, beyond reasonable doubt. It is important to keep in mind that self-defence only becomes an issue if the elements of the offence have been proved.76 If the service tribunal is not satisfied of that, there is no need to consider self-defence. In the context of criminal proceedings, defence can be used in at least three senses. First, as a means of raising a reasonable doubt as to an element of the offence (physical or fault). Secondly, as an excuse which absolves the defendant from criminal responsibility, not because the elements of the offence have not been proved, but because the excuse has not been disproved by the prosecution. Thirdly, it may refer to an affirmative defence whereby the defendant must prove, on the balance of probabilities, the existence of certain facts. If these facts are proved, then the defendant
76

Note that serious harm is defined in the

R v Kurtic (1996) 85 A Crim R 57 at p. 62

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is absolved of criminal responsibility. Self-defence falls within the second category. An example of the third category is DFDA s.29(3). Disproving self-defence, in a case where self-defence arises because the evidential burden is satisfied, becomes an additional task of the prosecution to prove beyond reasonable doubt that: the defendant did not believe the conduct was necessary; or the conduct was not a reasonable response in the circumstances as he or she perceived them; or the defendant was responding to lawful conduct and he or she knew it.

Burden of proof. Section 13.3 of the Criminal Code imposes an evidential burden on the defendant in respect of self-defence. Note that self-defence may still be in issue although it is not relied upon by the defendant (even if it is expressly disavowed): s.13.3(4). For example, suppose there is a fight in the mess during which V is injured, allegedly by D. The defence is identity: that the prosecution evidence is insufficient to prove that D was the offender. If in the course of the prosecution case evidence is called that is sufficient to make self-defence an issue77, then the service tribunal must consider whether the prosecution has disproved self-defence, even where the defence case is directed to raising a doubt about identity, rather than self-defence. Relevant act. The question is not whether the defendant genuinely and reasonably held a belief that he or she had to defend himself somehow. One must look at the act which constitutes the offence and pose the subjective and objective questions in respect of that act.78

Which is evidence that suggests as a reasonable possibility that the defendant was acting in selfdefence: s.13.4(6). See R v Conlon (1993) 69 A Crim R 92. circumstances: R v Lean (1993) 66 A Crim R 396.
78

77

But the service tribunal must consider the whole

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Proportionality.

Proportionality is primarily determined by applying the objective Disproportion may also cast doubt upon

element. A great disproportion between the conduct and the threat is evidence that the conduct was not a reasonable response. whether the defendant actually believed that the use of such force was necessary. Objective element. The objective element has a subjective component based upon the circumstances "as he or she perceives them". Note that this is not the same as a reasonable person in the same situation as the defendant.79 Perception. Perception can be affected by, inter alia, fatigue, alcohol or drugs,80 illness, previous beliefs,81 even lighting conditions. An unresolved question is whether the subjective perception extends to delusions.82 It has been argued that a delusion is not based upon the actual circumstances and therefore perception must be limited to an appreciation, however distorted or mistaken, of an action that in fact occurred.83 Intoxication and self-defence. Section 8.2(1) of the Code removes self-induced

intoxication from consideration in the determination of a fault element.84 But as selfdefence is separate from that question, and only arises if the elements of the offence have been proven, the section has no direct bearing on the application of self-defence to an intoxicated defendant.

See R v Conlon (1993) 69 A Crim R 92 at p. 101, R v Hawes (1994) 35 NSWLR 294, R v Kurtic (1996) 85 A Crim R 57 at p. 63.
80 81

79

See R v Conlon (1993) 69 A Crim R 92.

Such as what the defendant had been told about the physical prowess or aggressive disposition of the victim: R v Masters (1986) 24 A Crim R 65 A delusion was held to be relevant to self-defence in R v Walsh (1991) 60 A Crim R 419 in respect of a provision in similar terms to s.10.4
83 84 82

Cf. R v Kurtic (1996) 85 A Crim R 57 at p. 64

Criminal Code, s.8.2(1) provides Evidence of self-induced intoxication cannot be considered in determining whether a fault element of basic intent existed.

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How self-defence is affected by s.8.4 is a matter of interpretation. Under s.8.4(1)85 intoxication may be considered in determining whether, as part of a defence, an actual belief existed. However, s.8.4(4)86 removes self-induced intoxication from consideration in the determination of whether that belief existed if the offence is one of basic intent (as defined). The removal of intoxication from consideration in respect of the elements of an offence of basic intent is the subject of several sections of the Criminal Code. It may have been intended to make the law correspond with the position in the United Kingdom, as stated in DPP v Majewski.87 It is yet to be determined whether the provisions on intoxication have that effect. Section 8.4(4) raises questions of interpretation, such as the meaning of defence. It is not clear if it means all three senses as stated above, or just the first meaning. In addition to the prima facie conflict between ss.8.4(1) and 8.4(4), there are other conflicts. It is apparent that Parliament did not intend to exclude all defences which may be based upon the belief of an intoxicated defendant, having regard to s.8.2(4)88. Without some restriction, s.8.4(4) would conflict with s.8.2(4), which permits consideration of intoxication in determining a defendants (mistaken) belief, even in respect of offences of basic intent. The scope of s.8.4(4) is made more uncertain having

Criminal Code, s.8.4(1).provides If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in determining whether that knowledge or belief existed.
86

85

Criminal Code, s.8.4(4).provides If in relation to an offence: (a) each physical element has a fault element of basic intent; and (b) any part of a defence is based on actual knowledge or belief;

evidence of self-induced intoxication cannot be considered in determining whether that knowledge or belief existed.
87 88

[1977] AC 443

Criminal Code, s.8.2(4) provides This section does not prevent evidence of self-induced intoxication being taken into consideration in determining whether a person had a mistaken belief about facts if the person had considered whether or not the facts existed.

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regard to s.8.2(3).89

It is easy to think of examples of accidental contact by an

intoxicated defendant. See the commentary on intoxication for further guidance. Mental impairment. excluded.90 The mental impairment provisions may exclude self-defence

based upon a delusion. If s.7.3(7) of the Criminal Code applies, all other defences are It depends upon the delusion being within the definition of mental impairment (i.e. mental illness). If the delusion does fall within the definition, then the service tribunal must return a special verdict of not guilty because of mental impairment. Ordinarily a delusion, caused by an external factor such as alcohol or drugs, would not fall within the definition. Proximity of danger. There is no requirement that the threat is imminent or that the attack has commenced. Therefore pre-emptive force is not excluded. However if the attack is not imminent, it will be easier for the prosecution to prove that the defendant lacked the subjective belief or that his conduct was not a reasonable response. Retreat. There is no requirement that the defendant retreat. The failure to do so is a fact to be taken into account in assessing whether the prosecution have negatived selfdefence. Provoked assaults. The section could apply to a defendant even if he or she initiated the attack. For example, suppose there is a dispute in a mess where the defendant wrongfully punches the victim. The victim then reaches for a breadknife and lunges at the defendant. The sudden use of deadly force may well make self-defence an issue if the defendant further injures the victim.

Criminal Code, s.8.2(3) provides This section does not prevent evidence of self-induced intoxication being taken into consideration in determining whether conduct was accidental. Criminal Code, s.7.3(7) provides If the tribunal of fact is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence.
90

89

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However, it will be a rare case where an defendant can rely upon self-defence to an attack he or she provoked: A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.91 Mixed motives. At common law it is not necessary that self-defence be the sole state of mind of the defendant.92 He or she could be partly motivated by malice, but still be acquitted through the prosecution failing to disprove self-defence. The position under the Criminal Code is not clear.93 Necessity. A person defending himself from a threatened attack who has to react instantly to imminent danger cannot be expected to weigh precisely the exact measure of defensive action which is required.94 Provocation and excessive self-defence. Provocation and excessive self-defence are common law doctrines that could, in certain circumstances, reduce the criminal liability of a defendant from murder to manslaughter. Neither doctrine has been included in the Criminal Code and therefore neither is now applicable to the DFDA. SECTION 4: EXTENSIONS OF CRIMINAL LIABILITY Strict, absolute and special liability With the introduction of the Criminal Code and its new statutory provisions governing criminal responsibility there is now no doubt as to which offences require a fault element (such as intention, knowledge, recklessness or negligence) to be proved for a physical
91 92 93

See Zecevic (1987) 162 CLR 645 See R v Conlon (1993) 69 A Crim R 92 at p. 97

Note that s.10.4(2) states "if and only if". These words were not in the original draft. This raises the question of whether the words if and only if mean that if a defendant has mixed motives self-defence is inapplicable. See the dictionary definition of only. Another interpretation is that the words and only if reinforce if to make it abundantly clear that paras (2) (a) (e) are the only circumstances in which selfdefence may apply.
94

Palmer [1971] AC 814 at 831-832, Zecevic at 662-663

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element of an offence, and which offences do not. Those offences that do not require proof of a fault element are called strict liability and absolute liability offences. These types of offences are not new to the law, but prior to the Criminal Code identifying them was generally a difficult matter of construing the legislation that created the offence.95 Under the new provisions of the DFDA, sections creating offences of strict or absolute liability are now clearly identified by a statement within the section that creates the offence identifying the offence, and or any of its fault elements, as one which attracts either strict liability or absolute liability. The term special liability provision is defined in the dictionary to the Criminal Code. It means a provision in the Criminal Code that applies absolute liability to one or more (but not all) of the physical elements of an offence, or that it is not necessary for the prosecution to prove that an defendant knew a particular thing, or believed a particular thing. The Criminal Code changes the old law in that it now specifically applies special liability provisions to ancillary offences, such as aiding or abetting the commission of an offence. The aspects of criminal responsibility applying to ancillary offences will be explained in the discussion on those offences which follows. Strict liability Strict liability is defined at section 6.1 of the Criminal Code, which provides: 6.1 (1) Strict liability If a law that creates an offence provides that the offence is an offence of (a) (b) there are no fault elements for any of the physical elements of the offence; and the defence of mistake of fact under section 9.2 is available.

strict liability:

95

He Kaw Teh v The Queen (1985) 157 CLR 523; EPA v N (1992) 26 NSWLR 352 (Per Hunt CJ at CL at 354).

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(2)

If a law that creates an offence provides that strict liability applies to a (a) (b) there are no fault elements for that physical element; and the defence of mistake of fact under section 9.2 is available in relation to that physical element.

particular physical element of the offence:

(3)

The existence of strict liability does not make any other defence

unavailable. To prove a person guilty of a strict liability offence the prosecution must firstly prove the existence of the physical element that attracts strict liability. No fault element needs to be proved at all in respect of that physical element, however the defendant must be proved beyond reasonable doubt to have voluntarily performed the physical element. Sometimes, a defendant will argue that the physical elements were performed whilst he or she was acting under a mistaken factual belief. In such a case the prosecution must be able to prove, beyond reasonable doubt, that the defendant did not, at or just before the time of the conduct constituting the physical element, have a reasonable but mistaken belief in the existence of facts, which, if true, would not constitute an offence.96 Of course, other defences (such as necessity) will still be available to a person charged with a strict liability offence.97 A good example of the concept of strict liability as defined in s.6.1(1) of the Criminal Code is found in DFDA s.24 - Absent without leave. The physical element of being absent without leave98 is subject to strict liability.99 In other words, the offence is complete if the defendant is absent at any time he or she was required to be on duty, if the defendant was not granted leave to be absent. Nothing else need be proved by the

96 97 98 99

See Criminal Code, s. 9.2. See Criminal Code, s.6.2(3). See DFDA s.24(1). See DFDA s.24(2).

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prosecution unless the defendant raises a defence of mistake of fact as defined in s.9.2 of the Criminal Code. For example, the defendant might say that he or she had always reported for duty at a certain time, which was later discovered to be after the correct reporting time. This might happen say, when the defendant first reports for duty during stand-down, and the error in the defendants belief is not discovered until full manning is once again achieved. If the defendant honestly and reasonably held a belief that the later reporting time applied, and if it in fact did there would of course be no offence, then the defendant cannot be guilty of the offence. If, however, the correct reporting time can be shown by the prosecution to have been brought to the attention of the defendant, then it would not be honest or reasonable for the defendant to believe that a later reporting time applied. DFDA s.24(3) also provides a defence for a defendant who can show, on the balance of probabilities, that his or her absence was due to circumstances not reasonably within that members control. For example, acts of God, road accidents and injuries not contributed to by the member are matters not reasonably within the members control. These are examples of where the physical element of absence is not performed voluntarily. Other legal defences (for example duress or necessity) also affect the question of whether the physical element was performed voluntarily. discussed earlier in this chapter. The same considerations apply for an offence where there are more than one physical element, and strict liability attaches to one or more, but not all of those physical elements (see for example DFDA s.25 - Assaulting a superior officer). Strict liability attaches only to the physical element that the person assaulted was a superior officer.100 This is an example of an offence in which strict liability is found in part, but not the whole These defences have been

100

See DFDA s.25(2).

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offence. The first physical element of assaulting a person101 still requires proof that the defendant also had the fault element of intention to assault the victim, at the time that the assault is said to have occurred.

Absolute liability Absolute liability is defined in s.6.2 of the Criminal Code, which provides: 6.2 Absolute liability (1) If a law that creates an offence provides that the offence is an offence of (a) (b) (2) there are no fault elements for any of the physical elements of the offence; and the defence of mistake of fact under section 9.2 is unavailable. If a law that creates an offence provides that absolute liability applies to (a) (b) (3) there are no fault elements for that physical element: and the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element. The existence of absolute liability does not make any other defence unavailable. A good example of an absolute liability offence is found in DFDA s.44 - Losing service property. This is an offence of the kind described in s.6.2(2) of the Criminal Code. This offence has two physical elements: the first being losing any property; and the second being that the property was issued to the member or entrusted to the members care, in connection with the members duties. Absolute liability attaches to the physical element in DFDA s.44(1)(a), that of losing the property. That means that if the property cannot be produced or located when required, the member to whom it was issued or entrusted absolute liability:

a particular physical element of the offence:

101

See DFDA s.25(1)(a).

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to, is absolutely liable for that loss. The fault element of knowledge applies to the physical element in DFDA s.44(1)(b), that is to say, that the member charged with losing the property must have known that the property was issued to him, or entrusted to his care in connection with his duties. If the defendant can prove on the balance of probabilities that he or she took reasonable steps for the safe-keeping of the property102, or, raise some evidence (that the prosecution cannot disprove) that the property was stolen from him at the point of a gun (the defence of duress)103, then he or she will not be found guilty of the offence. Special liability and ancillary offences Chapter 2, Part 2.4 of the Criminal Code contains provisions which extend the general principles of criminal responsibility to include offences of attempts (s.11.1), complicity and common purpose (s.11.2), innocent agency (s.11.3), incitement (s.11.4) and conspiracy (s.11.5). These provisions are called ancillary offences. The offence of being an accessory after the fact is also an ancillary offence.104 Attempts Section 11.1(1) of the Criminal Code provides, in part, that: 11.1 (1) Attempt

A person who attempts to commit an offence is guilty of the offence of

attempting to commit that offence and punishable as if the offence attempted had been committed.

102 103

See DFDA s.44(3).

Criminal Code, s.6.2(3) continues to allow the existence of other defences even for absolute liability offences
104

See definitions in DFDA s.3(13) and the dictionary definition of ancillary offences in the Criminal Code.

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Attempt is not defined in the Criminal Code. An attempt to commit an offence occurs when an offender intends to, and takes steps, to a sufficient degree to commit an offence but does not, for whatever reason, manage to complete the commission of the offence. 105 The mere intention to commit a crime does not constitute an attempt. In the case of R v Donnelly106 Turner J outlined the types of cases, which may fall for consideration as attempts to commit offences. He said: He who sets out to commit a crime may in the event fall short of the complete commission of that crime for any one of a number of reasons. First, he may of course simply change his mind before committing any acts sufficiently overt to amount to an attempt. Second, he may change his mind but too late to deny that he got as far as an attempt. Third, he may be prevented by some outside agency from doing some act necessary to complete the commission of the crime as when a police officer interrupts him while he is endeavouring to force the window open, but before he has broken into the premises. Fourth, he may suffer no such outside interference, but may fail to complete the commission of the crime through ineptitude, inefficiency or insufficient means. The jemmy which he has brought with him may not be strong enough to force the window open.

105 106

Acts must be more than preparatory, this is discussed later. [1970] NZLR 980

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Fifth, he may find that what he is proposing to do is after all impossible not because of insufficiency of means, but because it is for some reason physically not possible, whatever means be adopted. He who walks into a room intending to steal, say, a specific diamond ring, and finds that the ring is no longer there but has been removed by the owner to the bank, is thus prevented from committing the crime which he intended and which, but for the supervening physical impossibility imposed by events he would have committed. Sixth, he may without interruption do every act which he set out to do but may be saved from criminal liability by the fact that what he has done, contrary to his own belief at that time, does not after all amount in law to a crime. The scenarios outlined by Turner J were later considered by Lord Hailsham in Haughton v Smith.107 Regarding those six types of cases, Lord Hailsham held that there was no criminal attempt in the first case, that there was in the second, and, assuming that the proximity test had been passed, there was a criminal attempt in the third case.108 Lord Hailsham held likewise in the fourth case that assuming the proximity test had been passed, a criminal attempt had been committed. The fifth case is now dealt with pursuant to s.11.2 (4) of the Criminal Code, which states that: (4) A person may be found guilty even if: (a) (b) committing the offence is impossible; or the person actually committed the offence attempted.

107 108

[1973] 3 All E.R 1109 at p.1115 Haughton v Smith [1973] 3 All E.R 1109, at p. 1115

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The ineptitude or adoption of insufficient means by the defendant to fulfil the attempted offence will not prevent a conviction for attempt. In R v Collingridge109 it was open to find the defendant guilty of attempted murder where he threw a live wire into the bath when the current in the wire was too weak to harm the person in the bath. In relation to the sixth type of case, Turner J found that there could not be a criminal attempt to commit an act, which if completed would not have amounted to a crime. This proposition is reflected in the opening words of s.11.1(1) of the Criminal Code, which refers to a person attempting to commit an offence. This means an attempt to commit an offence at law. Accordingly, a person cannot be convicted of an offence of attempted unlawful entry if he were caught by a passer-by trying to break into a house, if the house belonged to the person who was trying to break in because he or she had lost his or her keys. If the offence attempted has any special liability provisions, then those provisions apply to the offence of attempting to commit the offence.110 Special liability provisions are the provisions that provide for absolute liability to one or more (but not all) of the physical elements of the offence, or provide that it is not necessary for the prosecution to prove that the defendant knew a particular thing or believed a particular thing to be found guilty of the offence.111 In other words, no greater proof is required against the person attempting the offence with special liability provisions, than is required to prove the commission of the offence. Preparatory conduct. Sub-section 11.1(2) of the Criminal Code requires that, For the person to be guilty, the persons conduct must be more than merely preparatory to the commission of the offence. The question of whether the conduct is more than merely preparatory to the commission of the offence is one of fact. There have been a number

109 110 111

(1976) 16 SASR 117 See Criminal Code, s.11.1 (6A) See Criminal Code, Dictionary

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of different tests postulated to ascertain if a persons conduct has progressed to a stage where it can be said that it amounts to an attempt and not merely preparation. This question, which is one of degree, is to be decided by the trier of fact. The obtaining of rope, stupefying drugs and a car with the intention of kidnapping a person and then doing nothing more is preparatory conduct. In Hope v Brown112 the defendant was found not guilty of a charge relating to the over-pricing of meat. The defendant had prepared over-priced tickets with which he intended to mark the meat. He then put the tickets in a draw in his butchers shop. This conduct was held to be preparatory and not sufficient to amount to an attempt. Conversely, in R v Williams; Ex Parte Minister for Justice and A-G113 it was held that the pinning down of a naked woman, striking her and touching her on genital region whilst saying he was going to have her, was an attempted rape and not merely acts of preparation. This case canvassed a number of the proximity tests but failed to adopt one to the exclusion of others. Stable J114 stated the first step along the way of criminal intent is not necessarily sufficient and that final step is not necessarily required. The dividing line between preparation and attempt is to be found somewhere between the two extremes; but as to the method by which it is determined the authorities give no clear guidance.115

112 113 114 115

[1954] 1 WLR 250; 1 All ER 330 (CCA) [1965] Qd R 86 Approving a statement by Salmond J in R v Baker [1965] Qd R 86 at 102.

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Complicity and common purpose Section 11.2 of the Criminal Code provides that: 11.2 Complicity and common purpose A person who aides, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly. Accordingly, a defence member or defence civilian who aids, abets, counsels or procures another to commit an offence, is taken to have committed the offence and may be charged as if they committed it themselves and be tried by a service tribunal. An accessory is the generic term to describe anyone that aids, abets, counsels or procures another to commit an offence. The person who physically perpetrates the offence is called the principal. Historically, the common law distinguished between two types of accessory, those who were present at the principles crime, who were said to aid and abet; and those who were not present, who were said to counsel and procure. These distinctions are now obsolete and there is no distinction to be drawn between accessories that were present or absent. The ordinary meaning of the word aid is to give help, support or assistance, to the principal offender.116 Abet means to incite, instigate or encourage.117 A person is considered to be aiding and abetting, with the intention of helping the principal, if, for example, he or she stands outside a premises as a look-out (to warn the principal of anyone comes along); or if he or she provides the principal with the disguise
116 117

R v Giorgi and Romeo 7 A Crim R 305. Supra per Zelling J at p. 316

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and gun to rob the credit union on base; or if he or she waits around the corner of the credit union being robbed so as to help the principal escape. A further example of an accessory is a person who holds a victim from behind to assist the principal who is assaulting the victim. The word counsel has been held to be the equivalent to instigates118 or to advise or solicit.119 Whilst procure means to produce by endeavour. A thing can be procured by setting about to see that it happens and taking the appropriate steps to produce that happening.120 To constitute aiding and abetting, some assistance or encouragement must be given and the defendant must intend that assistance or encouragement in the sense that he or she knows that what he or she is doing will have a tendency to assist or encourage the acts which constitute or result in the crime. Inactivity may sometimes constitute encouragement, particularly when a person refrains from exercising a right he or she has to intervene. His or her passivity may then constitute a positive encouragement to another to continue in some unlawful activity. For a person to be guilty as an accessory under s.11.2, the principal whom he or she aided, abetted, counselled or procured to commit the offence must have actually committed the offence. Further, it must be shown that the actions of the accessory did in fact aid, abet counsel or procure the principle to commit the offence.121 A person is not guilty of being an accessory if, before the offence was committed, he or she terminated his or her involvement in assisting the principal and took all reasonable

118 119 120 121

R v Baker (1909) 28 NZLR 536. R v Calhaem [1985] QB 808. A-Gs Reference No 1 of 1975 [1975] QB 773 at 779. See Criminal Code, s.11.2(2).

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steps to prevent the commission of the offence.122

What will count as taking all

reasonable steps will vary according to the case but examples might be discouraging the principal offender, alerting the proposed victim, withdrawing goods necessary for committing the offence (for example the get-away car) and/or giving timely warning to the police.123 Fault element. Sub-section 11.2(3) of the Criminal Code provides that, for a defendant to be guilty as an accessory, he or she must have intended that: (1) his or her conduct would assist or encourage the commission of any offence of

the type the principal committed; or (2) his or her conduct would assist or encourage the commission of an offence and

have been reckless about the commission of the offence that he other person in fact committed. It must be shown in (1) that the defendant knew that the principal had in his or her mind the commission of an offence124, and that he or she intended and knew that his or her conduct would encourage or assist the principal in carrying out the offence. Recklessness will not suffice as a fault element in this subsection.

In (2) the fault element of recklessness is applicable in cases where the principal commits an offence, being one which the defendant did not intend the principal to commit. What must be shown is that the defendant knew and intended his or her conduct to assist the principal in the commission of an offence and that he or she was reckless as to what offence the principal would commit. That is, he or she

122 123

See Criminal Code, s.11.2(4)

Criminal Law Officers Committee of the Standing Committee of Attorneys-General Final Report December 1992 Chapter 2 General Principles of Criminal Responsibility. Other than in cases where the defendant is instigating the commission of a crime.

124

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was aware (having regard to the circumstances known to him or her) of the substantial risk that an offence other than the one he or she intended would be committed and he or she nevertheless, took an unjustifiable risk and assisted the principal. Thus, a person who aids another to commit an armed robbery will also be guilty of murder if the other person commits murder and the first person had foreseen a substantial risk of that occurring, and it was unjustifiable to take that risk.
A person may be found guilty of attempting to commit an offence even if the offence was actually committed.125 The charging of an offence of attempt, rather than the substantive offence, should not be done to try and make the prosecution case easier. Such a course is only justified when there is a real reason to doubt that the central offence has been committed. Pursuant to Criminal Code s.11.1(6) any defences, limitations or qualifying provisions that apply to the offence attempted also apply to the offence of attempting to commit that offence. Likewise, pursuant to Criminal Code s.11.1(6A), any special liability provisions that apply to an offence also apply to the offence of attempting to commit that offence.126 If the offence, which the defendant aids, abets, counsel or procures another to commit, has any special liability provisions, those provisions will apply to the offence of aiding abetting, counselling or procuring that offence.127 Special liability provisions were discussed earlier in this chapter. They apply absolute liability to one or more (but not all) of the physical elements of the offence, or provide that it is not necessary for the prosecution to prove that the defendant knew a particular thing or believed a particular thing to be found guilty of the offence.128 Once again, this provision of the Criminal

125 126 127 128

See Criminal Code, s.11.1(4)(b) See Criminal Code, s.11.1(3A). See Criminal Code, s.11.2(6) See the Dictionary in the Criminal Code definition of special liability provision.

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Code appears to have a purpose of ensuring that proof of the ancillary offence is not any more difficult to prove than the principal offence. Innocent Agency Section 11.3 of the Criminal Code provides: 11.3 Innocent agency A person who: (a) (b) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it; is taken to have committed that offence and is punishable accordingly. This section attaches liability to a procurer129 who instigates, encourages or assists another to perpetrate acts which constitutes a crime in circumstances where the person physically carrying out the acts does not attract liability. For example, it may be that the second mentioned person lacks the relevant fault element to be guilty of the offence. In this situation the procurer is not an accessory, as the second person had not committed the crime in the capacity of the principal.130 The procurer is not the principal either, because he or she did not physically perpetrate the acts constituting the offence. In this scenario, the common law doctrine of innocent agency treats the person procured (the innocent agent) to commit the offence as the mere instrument, albeit a human one of the procurers will. The doctrine deems the procurer131 to be the principal in the commission of the offence. This common law doctrine is now reflected in s.11.3 of the

129 130 131

See the definition of procure under the heading Complicity and Common Purpose Because he or she lacks the relevant knowledge or intention to commit he crime. Provided that he or she possessed the necessary fault element.

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Criminal Code. For example, if the procurer successfully encourages another to take a bag containing heroin on an international trip, the person who takes the bag without knowing that it contains heroin, commits the physical element of importation of a prohibited drug. He cannot be guilty of the offence, as he does not know that the bag contains heroin. The procurer who urged the innocent agent to take the bag is taken to have committed that offence and is punishable accordingly. Incitement Sub-section 11.4(1) of the Criminal Code provides: A person who urges the commission of an offence is guilty of the offence of incitement. This offence is designed to deter people from committing acts, which have the potential to cause or encourage another to commit a crime. The words, urges the commission of an offence are not defined in the Criminal Code. The word urges covers a broad range of acts which include the proposing, encouraging, suggestion, persuasion or the spurring on of another, to commit an offence.132 The fault element133 requires the defendant to intend that the offence incited be committed, except where special liability provisions apply to the principal offence.134 Special liability provisions are the provisions that provide for absolute liability to one or more (but not all) of the physical elements of the offence, or provide that it is not

132 133 134

In many cases urging and counselling in s.11.2(1) overlap. See Criminal Code, s.11.4(2) See Criminal Code, s.11.4(4A)

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necessary to prove that the defendant knew a particular thing or knew or believed a particular thing.135 For example, to prove a charge of incitement in relation to DFDA s.44 - Losing service property, the prosecution must prove that the defendant urged a member not to take proper safeguards for the protection of the service property with the intention that the person would lose that property. Absolute liability attaches to loss of property. This means that it is no more difficult for the prosecution to prove the incitement to commit an offence than it is for the prosecution to prove the principal offence. The penalties scheme for an offence of incitement is set out in s.11.4(5). Those

penalties vary depending on the maximum penalty for the substantive offence. For example, if the maximum penalty for the incited offence is life imprisonment, the maximum punishment for incitement of that offence is 10 years imprisonment.136 If the offence is punishable by a term of imprisonment of less than 10 years, the maximum punishment for incitement of that offence is either 3 years imprisonment or the maximum term of imprisonment for the offence incited, which ever is the lesser.137 If imprisonment is not a penalty prescribed for the incited offence, the penalty for incitement of that offence is a fine not exceeding the maximum fine available for the offence incited.138 Accessories after the fact DFDA s.3(13)(b) defines an ancillary offence as an offence against s.6 of the Crimes Act 1914. Section 6 of the Crimes Act 1914 provides: Any person who receives or assists another person, who is, to his knowledge, guilty of any offence against a law of the Commonwealth, in order

135 136 137 138

See The Dictionary in the Criminal Code definition of special liability provision. See Criminal Code, s.11.4(5)(a) See Criminal Code, s.11.4(5)(d) See Criminal Code, s.11.4(5)(e)

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to enable him to escape punishment or to dispose of the proceeds of the offence shall be guilty of an offence. An accessory after the fact assists not in the perpetration for the offence, but in helping the principal to escape apprehension or punishment. Examples include: concealing evidence of the commission of a crime, such as removing evidence of counterfeiting139 or concealing homicide by burying the body140; helping a thief to dispose of stolen goods by buying them or finding a buyer for them141; changing engine numbers on a stolen car142; giving clothes to or harbouring a fugitive; or misleading the police by supporting the principals false alibi. In a service context this may mean providing a hide out for and / or lying for a member so as to prevent the service police from catching him or her for an offence against DFDA s.24.143 For a defence member or defence civilian to be guilty of being an accessory after the fact, it must be shown that he or she knew that the principal had committed an offence and that he or she acted with the knowledge that his or her acts would assist the principal. Acts, which have the purpose and to assist the principal, are sufficient, even if they are not in fact successful. The prosecution must show that the principal offence was in fact committed. It has been held that it is not sufficient to prove the commission of the offence through the tendering of a certificate of conviction144 or a confession or admission by the principal.145

139 140 141 142 143

R v Levy [1972] 1 KB 158; 7 Cr App R 61 R v Williamson [1972] 2 NSWLR 281 R v Phelan [1964] Crim LR 468 R v Tevendale [1955] VR 95

Note also section 358AG of the Crimes Act 1900, creating an offence of harbouring, maintaining or employing another person, knowing the latter to have escaped from lawful custody or detention in respect of a law of the Territory, a State or another Territory. R v Kirkby (1988) 105 A Crim R. A certificate of conviction will be prima facie evidence that the offence was committed. R v Welsh [1999] 2 VR 62; 105 A Crim R 448

144

145

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Accordingly, the prosecution must call the service police member who investigated the principals case to give evidence about the commission of the crime and the identity of the principal named in the certificate of conviction. There can however be a conviction for an accessory after the fact, even though the principal is not charged.146 This situation might arise where the principal has fled the jurisdiction or has died prior to a conviction being recorded against him. Conspiracy Conspiracy is an offence that is completed once two or more persons enter into an agreement to commit an offence with at least one party to the agreement intending that the offence will be committed, and at least one party to the agreement has committed an overt act pursuant to the agreement.147 Section 11.5 of the Criminal Code provides that a person may be found guilty of conspiracy to commit an offence even if committing the offence is impossible or the only other party to the agreement is a body corporate.148 A person cannot be found guilty of an offence of conspiracy to commit an offence if all other parties to the agreement have been acquitted of the conspiracy and a finding of guilt would be inconsistent with that acquittal, or the alleged conspirator is a person for whose benefit or protection the offence exists.149 The term overt act requires explanation. The overt act must be proved beyond a reasonable doubt, and it must relate directly to the conspiracy charged if it is to be admissible against a person or persons charged with a conspiracy. It is not to be confused with preparatory acts, discussed earlier in the section on attempts. Evidence

146 147 148 149

R v White (1977) 16 SASR 571 at 573 See Criminal Code, s.11.5(2) See Criminal Code, s.11.5(3) See Criminal Code, s.11.5(4)

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of an overt act might be buying automotive paint in connection with a car-stealing operation. It might also be found in a finding of guilt for another substantive offence, which was committed to put the conspiracy agreement into agreement into effect. Evidence of an overt act is also evidence that goes to proving the agreement that is said to constitute the conspiracy, because the overt act must be referable to the conspiracy. An example is when it is said that two or more persons have conspired to say, commit an armed robbery. That the fact that a person is found guilty of stealing a rifle may be evidence of an overt act in furtherance of the conspiracy to commit armed robbery. It may also only be evidence that the person is a thief, rather than a robber or conspirator. There must be reasonable evidence of pre-concert between the conspirators before that evidence would be admissible against one or all of them.150 Since the essence of conspiracy is the agreement to commit a crime, rather than just possessing a joint intention that a crime be committed, the offence continues for as long as the agreement exists.151 A conspirator can leave the conspiracy agreement, but must be shown to have taken all reasonable steps to prevent the commission of the offence that was the subject of the conspiracy if he is to avoid conviction.152 This would usually and logically include telling the relevant authorities of the agreement to commit the offence, if it could not otherwise be stopped, and there were no plausible reason not to tell the authorities. As in the other ancillary offences, a person can commit an offence of conspiring to commit an offence that contains special liability provisions.153

150

Mai & Tran v R 60 A Crim R 49; Ahern v R (1988) 165 CLR 87 at 100; Tripodi v R (1961) 104 CLR 1 at Woss v Jackson (1983) 11 FCR 243 (FCA) per Toohey J at 250 See Criminal Code, s.11.5(5) See Criminal Code, s.11.5(7A)

7.
151 152 153

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Generally, conspiracy should not be charged where a substantive charge is available.154 In any event, proceedings for a conspiracy under the Criminal Code require the consent of the Director of Public Prosecutions.155 It is essential that the prosecution is able to particularise the words, actions or other evidence said to give rise to the conspiracy.156

154

R v Hoar (1981) 148 CLR 32 at 38; R v Davidovic (1990) 51 A Crim R 197 at 206; R v Pollitt [1991] VR 299. Criminal Code, s.11.5 (8) R v Mok (1987) 27 A Crim R 438, per Hunt J at 441

155 156

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ADFP 201 VOLUME 1 CHAPTER 6

THE LAW OF EVIDENCE

SECTION 1 - INTRODUCTION The Nature of Evidence
1

6.1 The law of evidence consists of the rules and principles which govern proof of the facts in issue at a trial. The `facts in issue' are those which the prosecutor or accused must prove in order to be successful. What the facts in issue are in a given case is determined first by substantive rules of law, secondly by the charge and plea and, thirdly, by the manner in which the case is conducted. The purpose of evidence led by the prosecution is to establish to the required standard of proof the elements of the offence. 6.2 The first part of the rules of evidence is concerned with relevance, namely, whether the evidentiary material could rationally affect the assessment of the probability of the existence a fact in issue. If it is relevant the material is, subject to other rules of evidence, admissible in evidence. 6.3 The second part of the rules of evidence are the technical rules of law which govern the admissibility of evidence, for not every piece of relevant evidence is necessarily admissible. Under these rules, evidence may be excluded because it is untrustworthy (eg. hearsay), or might operate unfairly against the accused (eg. prior convictions), or because a better class of evidence is available (eg. a rule which excludes oral evidence of the content of some written documents). In certain cases there are rules as to the quantity of evidence required (eg. corroboration in perjury and similar prosecutions). Evidence may also be excluded for reasons of public policy (eg. improperly or illegally obtained evidence). Evidence before Service Tribunals 6.4 Under the Defence Force Discipline Act 1985 (DFDA) s.146(1), the rules of evidence in force in the Jervis Bay Territory apply in relation to proceedings before a Service tribunal as if the tribunal were a court of the Jervis Bay Territory and the proceedings were criminal proceedings in the Territory. 6.5 Those rules of evidence are the rules of evidence that apply in proceedings before a court of 2 the Australian Capital Territory . 6.6 Since 18 April 1995, the Evidence Act 1995 (Evidence Act) has applied in relation to all 3 proceedings in a court of the Australian Capital Territory . 6.7 The Evidence Act is not the only source of evidence law which applies in ACT court proceedings and, hence, in proceedings before a Service tribunal. The Act is stated not to affect the 4 operation of particular laws . Also, while, subject to those other laws, the Act is a comprehensive

See Waight and Williams, Evidence Commentary and Materials, 4th edition, p1. See Jervis Bay Territory Acceptance Act 1975, ss. 4A and 4D. Evidence Act s.4(1). See Evidence Act ss. 8 and 9, and paragraph 6.8 below.

ADFP 201 VOLUME 1 62 statement of the law on the admissibility of evidence , it does not deal with every matter that may be 6 regarded as a matter of evidence law . 6.8 The Evidence Act provides for a hierarchy of laws that apply in ACT court proceedings, and which will therefore apply in proceedings before a Service tribunal, as follows: a. provisions of the Evidence Act 1971 (ACT) (the ACT Evidence Act) prescribed by the Evidence Regulations (Cth), other Commonwealth Acts (except sections 68, 79 80 and 80A of the Judiciary Act 1903), the Corporations Law and the ASC Law, other ACT Acts, ACT Ordinances and any Imperial Act or State Act in force in the ACT and ACT or Commonwealth regulations in force on 18 April 1995 (but only for so long thereafter as they are not amended)
5

PREVAIL OVER b. the Evidence Act

PREVAILS OVER c. to the extent of any inconsistency, provisions of the ACT Evidence Act that are not so prescribed, sections 68, 79 80 and 80A of the Judiciary Act 1903 (including the common law applied by those provisions), ACT or Commonwealth regulation made or amended since 18 April 1995, rules and any other instruments of a legislative character.

6.9 Thus, for example, in the event of any inconsistency between a provision of Part XA of the 7 ACT Evidence Act , prescribed by r.4 of the Evidence Regulations, and the Evidence Act, the provisions of Part XA of the ACT Evidence Act prevail. Further, nearly all Commonwealth Acts (for example, any provision of the DFDA) prevails, in the event of any inconsistency, over the Evidence Act. 6.10 In a trial by court martial, the judge advocate must determine any question of admissibility of 8 evidence. Any such ruling is binding on the court martial . In a summary trial of a Service offence, the officer trying the offence must determine any question of admissibility of evidence. Where he is uncertain whether the evidence should be admitted, he should adjourn the case and seek the advice of a legal officer or other appropriate authority. Scope of Evidence 6.11 The principal matters with which the rules of evidence are concerned may be classified as follows: a. b. c. d. what must be proved; by which side proof must be given (burden of proof); to what standard proof must be given (standard of proof); who may give evidence (competence and compellability of witnesses);

And on some other areas, eg. the competence and compellability of persons as witnesses in proceedings: see Evidence Act s.12. In the absence of any applicable statutory provision, the common law will apply in relation to those matters. Other than ss. 76F(1), (3) and 76G(4) of that Act: see r.4(c) of the Evidence Regulations. DFDA s.134(1) and (5).

ADFP 201 VOLUME 1 63 e. f. the form in which evidence may be given; matters on which evidence is not required: formal admissions, judicial notice and presumptions; what questions need not be answered and what documents need not be produced (privilege of witnesses); the principal rule concerning the admissibility of evidence the relevance rule; the hearsay rule and exceptions; the admissibility of opinions as evidence; character of the accused, character of other witnesses and the character of the victim; identification evidence; improperly or illegally obtained evidence; discretionary exclusion of evidence; the examination of witnesses; and the quantity of evidence required in certain cases - corroboration. SECTION 2 - PROVING AN OFFENCE What must be Proved 6.12 In a criminal trial where the accused pleads not guilty, every essential matter bearing upon the issue of his guilt must be proved by the prosecution. Allegations which are not essential to constitute the offence and which may be omitted without affecting the validity of the charge do not require proof and should be rejected. 6.13 The evidence generally comprises: a. facts relating to the elements of the offence alleged by the prosecution (so far as they are not denied by a plea of not guilty or are not formally admitted under statutory 9 provisions); and facts alleged by the defence in denial of the offence charged, or in support of an alibi, or alleged as matters of justification or excuse and contested by the prosecution.
10 11

g.

h. i. j. k. l. m. n. o. p.

b.

6.14 Except where the burden of proof is on the accused or the accused makes a special plea 12 he or she is not bound to adduce any evidence . He may seek simply to repudiate the prosecution case, by cross-examination of prosecution witnesses, by criticism of the weight of evidence and by submissions of law as to its validity.

eg. a formal admission under s.67 of the ACT Evidence Act as substituted by Schedule 1 of the DFD Regulations. Also see paragraph 6.84. See under burden of proof at paragraph 6.25. eg. a previous acquittal or conviction; see DFDA s.144. See Noor Mohammed v R [1949] A.C. 182 at 191.

10

11

12

ADFP 201 VOLUME 1 64 6.15 If the accused does adduce evidence it must be relevant; that is, it must rationally effect (directly or indirectly) the assessment of the existence of a fact put in issue by his or her plea of 'not 13 guilty' in the proceeding . 6.16 In proving its case, the prosecution must prove the commission of the offence, including any requisite intent and the identity of the offender. Proof of Commission of the Offence 6.17 The prosecution must prove that the offence alleged has been committed by the accused person. Where a particular intent is of the essence of the offence that intent must be proved, and proof 14 of a different intent will not suffice. Proof of Identity 6.18 After having proved the commission of the offence, the prosecution must prove that the accused is the person who committed it. It may choose to do so by direct evidence (eg. oral testimony by someone who saw the accused commit the offence) or by the drawing of inferences from other evidence (eg. oral testimony by a person or persons linking the accused in some way with the place at which the offence was committed at the relevant time, from which it is possible, in some cases with other evidence, to infer that the accused committed the offence). 6.19 In some cases the prosecution may seek to support an inference from evidence by expert opinion evidence (eg. opinion evidence may be given by a person who is an expert in identification by means of fingerprints comparing the characteristics of fingerprints observed at the place at which the offence was committed with the fingerprints of the accused). 6.20 Special rules, however, exist relating to the admissibility of visual identification evidence relating to an accused adduced by the prosecution (see paragraphs 6.280-6.289). BURDEN OF PROOFBY WHICH SIDE MUST PROOF BE GIVEN The Legal Burden of Proof 6.21 In a trial before a Service tribunal where an accused pleads not guilty, the prosecution must 15 prove the accused's guilt beyond reasonable doubt. 6.22 If, when a Service tribunal has heard and considered the totality of the evidence, it is not satisfied beyond reasonable doubt as to the guilt of the accused he is entitled to be acquitted, for the prosecution will have failed to discharge the burden which lies upon it. 6.23 In trials by court martial a majority verdict suffices. In the event of an equality of votes the verdict must be not guilty (DFDA s.133(4)). 6.24 If, at the close of its case, the prosecution has not adduced sufficient evidence from which the Service tribunal could find beyond reasonable doubt the accused guilty of the offence with which he or she has been charged, the charge should be withdrawn from the tribunal which should be directed to return a verdict of not guilty.

13

The relevance rule, the principal rule concerning the admissibility of evidence, is discussed at paragraphs 6.133 et seq. See R v Hildebrandt [1963] 81 WN (Pt 1) (NSW) 143. DFDA s.12(1); see also Evidence Act s.141(1). The meaning of beyond reasonable doubt is discussed at paragraph 6.32.

14

15

ADFP 201 VOLUME 1 65 Burden of Proof in Relation to Unsoundness of Mind and Diminished Responsibility and other Defences 6.25 Under DFDA s.12(3), the burden of proving unsoundness of mind or diminished responsibility is on the defence where it raises either issues. Under that provision, the defence also has the burden of proving any defences which are set out in the relevant statutory provision relating to the offence with which he or she has been charged. 6.26 The burden of proof resting on the defence in such cases is lower than that which lies on the 16 prosecution and is discharged by proof on the balance of probabilities . 6.27 In trials by court martial the question of insanity is determined by majority vote. In the event of equality of votes on the question whether the accused was suffering from such unsoundness of mind as not to be responsible for his criminal acts, the court martial must find that the accused was suffering from such unsoundness of mind (DFDA s.133(5)). Justification, Excuse, Proof or Alibi 6.28 There is no burden of proof imposed on an accused to establish an issue affording 17 justification or excuse such as consent, accident, self-defence, duress, insanity, automatism or 18 drunkenness. So also if provocation is raised as an issue in a trial for murder or if an accused puts 19 forward an alibi as an answer to a charge. 6.29 Where these issues are raised, the burden remains on the prosecution to prove beyond reasonable doubt that the accused is guilty of the charge alleged against him. STANDARD OF PROOF 6.30 The usual way of describing the two standards of proof applicable to criminal proceedings is proof beyond reasonable doubt and proof on the balance of probabilities. 6.31 As noted earlier in relation to the burden of proof, the prosecution is bound to prove the guilt of the accused beyond reasonable doubt. However, where the accused raises an affirmative defence such as unsoundness of mind or diminished responsibility, he is required to give proof only on the balance of probabilities. Many attempts have been made to define these two standards with greater particularity but these attempts have not generally been successful. Proof Beyond Reasonable Doubt 6.32 In the 1950s some English judges attempted to explain the meaning of the expression proof beyond reasonable doubt, but the High Court of Australia has expressed strong disapproval of their 20 efforts and of the efforts of Australian courts who have made similar attempts. In Green v R Barwick C.J. said:
A reasonable doubt is a doubt which the particular jury entertained in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgement.

16

DFDA s.12(2); see also Evidence Act s.141(2). See Plomp v R [1963] 110 CLR 234. R v Ryan [1974] 2 NSWLR; Johnson v R (1976) 136 CLR 619. R v Wood [1967) 52 Cr. App. Rep. 74 C.A. (1974) 126 CLR 28.

17

18

19

20

ADFP 201 VOLUME 1 66 6.33 Because attempts to explain the term to juries (and to courts martial) have met with judicial disapproval, it is probably safe to say only that the words must be given their plain English meaning in the circumstances of the particular case. 6.34 It is also true to say that this standard of proof imposes a heavy onus on the prosecution which if not discharged will result in the acquittal of the accused. The presumption that an accused is innocent of a charge applies in every case and can be rebutted only where the prosecution has proved its case to the high standard of being beyond reasonable doubt. Proof on Balance of Probabilities 6.35 Fewer problems have arisen in formulating a standard of proof which applies to the accused when he bears the burden of proof. 6.36 However, the phrase balance of probabilities does have its dangers. It may suggest that to satisfy the standard one need only introduce enough evidence to disturb a balanced set of scales. But in fact party A gives a little evidence and party B none, the balance may not necessarily be tipped in A's favour. Party A's evidence may be considered, in the light of other evidence, improbable; and failure to contradict an assertion does not necessarily make it credible. 6.37 As one writer has said: What is being weighed in the balance is not quantities of evidence 21 but the probabilities arising from that evidence and all the circumstances of the case. Standard of Proof for Evidentiary Determinations 6.38 The standard of proof for findings of fact necessary for deciding whether evidence should be admitted or not admitted in a proceeding, and for deciding any other question arising under the Evidence Act, is set out in Evidence Act s.142 as follows:

Admissibility of evidence: standard of proof 142 (1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding: (a) (b) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or any other question under this Act;

have been proved if it is satisfied that they have been proved on the balance of probabilities. (2) In determining whether it is so satisfied, the matters the court must take into account include: (a) (b) the importance of the evidence in the proceeding; and the gravity of the matters alleged in relation to the question.

6.39 Section 142 provides for a 'variable' standard of proof to apply to evidentiary determinations. In making findings of fact within the section, a tribunal is to find a fact proved if it is satisfied it has been proved on the balance of probabilities. In determining whether it is so satisfied, the tribunal must take into account 'the importance of the evidence in the proceeding' and 'the gravity of the matters alleged' in relation to the evidentiary determination.

21

See Heydon, Evidence Cases and Materials, 2nd edition, p 34.

ADFP 201 VOLUME 1 67 6.40 This 'variable' standard of proof enables a flexible standard of proof to apply so that in an appropriate case - for example, when it is alleged that the making of an admission has been influenced by a threat of violence - a higher standard of proof might apply than in relation to an evidentiary determination on some other issue in the proceeding. 6.41 The evidentiary standard, however, in Evidence Act s.142 applies 'except as otherwise provided by the Act'. Some provisions in the Act provide their own evidentiary standard in relation to a 22 finding of fact necessary for determining the admissibility of evidence. WHO MAY GIVE EVIDENCE - COMPETENCE AND COMPELLABILITY OF WITNESSES General 6.42 A witness is competent if he or she is able to give evidence. A witness is compellable if he or she can be obliged to give evidence. Under Evidence Act s.12, the general rule is that, except as otherwise provided by the Act, every person is a competent and compellable witness. The exceptions to the general rule are discussed at paragraphs 6.44 to 6.58. Further, in a strictly limited number of situations, a witness who is both competent and compellable may refuse to answer certain questions relying on a privilege (see paragraphs 6.106-6.123). 6.43 A person, who without reasonable excuse, disobeys a summons requiring him to attend as a witness before a Service tribunal may be charged with an offence under s.53(1) of the DFDA or s.86 of the Defence Act 1903, as appropriate. Psychological Incompetence (Children, Persons with an Intellectual Disability) 6.44 Evidence Act ss.13(1) and (3) provide exceptions, for persons who are psychologically unable to give evidence, to the general rule that every person is a competent and compellable witness. The exceptions is ss.13(1) and (3) may apply to some children and persons with an intellectual disability. 6.45 Under the Evidence Act s.13(1), a person is not competent to give sworn evidence if he or she is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence. Such a person may, however, be competent to give unsworn evidence (see paragraph 6.25 to 6.26). 6.46 Under the Evidence Act s.13(3), a person is not competent to give either sworn or unsworn evidence about a fact if he or she is incapable of giving a rational reply to a question about the fact. A young child may, for example, be not competent to give evidence about a fact about which he or she can only be asked abstract or inferential questions. The child may, however, in those circumstances, remain competent to give evidence about a fact about which he or she can be asked a single factual 23 question. 6.47 A person who is not competent to give sworn evidence under the Evidence Act s.13(1) may be competent to give unsworn evidence in certain situations. Under the Evidence Act s.13(2) such a

22

Examples include: Evidence Act s.57, which enables a court to, among other things, find evidence relevant if its relevanceepends upon the court making a finding and it is reasonably open to make that finding (see paragraph 6.141); and Evidence Act s.87, which enables a court to admit a representation of a person as an admission of a party if it is reasonably open to find that the representation was made in one of a number of stated circumstances. (see paragraphs 6.176-6.177). In the case of each of these provisions, the Service tribunal must nevertheless determine in the course of the proceeding whether or not to accept evidence admitted under the lower 'reasonably open to find' standard. See paras [13.4] to [13.6] of the extract from Evidence Act 1995 (with commentary) reproduced at page 9 of Volume 2 Part 5 of the Discipline Law Manual.

23

ADFP 201 VOLUME 1 68 person may be competent to give unsworn evidence if the Service tribunal is satisfied the person understands the difference between the truth and a lie, the tribunal tells the person it is important to tell the truth and the person indicates, by responding appropriately when asked, that he or she will not tell lies in proceedings. 6.48 Competence to give either sworn or unsworn evidence is presumed, until the contrary is 24 proved. Physical Incompetence (Persons with a Physical Disability) 6.49 Evidence Act ss.13(4) and 14 provide exceptions, for a person who is physically incompetent, to the general rule that every person is a competent and compellable witness. Under s.13(4) a person is not competent to give evidence about a fact if he or she is incapable of hearing or understanding, or of communicating a reply to, a question about the fact and the incapacity cannot be overcome. Under s.14 if the incapacity can be overcome, but only with substantial cost or delay, the person is not compellable to give evidence on a particular matter where adequate evidence has been or will be given on that matter. The Accused 6.50 An accused is not competent to give evidence as a witness for the prosecution.
25

6.51 An accused is competent to give evidence in his or her own defence. In a trial before a Service tribunal, the accused may elect to give evidence in his or her own defence, or remain silent. Associated Defendants (Accomplices, Co-Accused) 6.52 An 'associated defendant' is not compellable to give evidence for or against an accused in 26 proceedings before a Service tribunal unless he or she is being tried separately from the accused . An 'associated defendant' is a person who is being prosecuted for an offence that arose in relation to the same events as those in relation to which the offence for which the accused in the proceeding before the Service tribunal is being prosecuted arose, or relates to, or is connected with, that 27 offence. The Service tribunal must satisfy itself that an 'associated defendant', who is called as a witness in his or her joint trial with the accused before a Service tribunal, is aware that he or she is not 28 compellable to give evidence for or against the accused. The Accused's Spouse and Family 6.53 Evidence Act s.18 enables a person who is, when required to give evidence as a witness for the prosecution, the spouse, de facto spouse, a parent or child of the accused to object to giving evidence as such a witness in proceedings before a Service tribunal. 6.54 A person who is a spouse etc of the accused cannot object to giving evidence if the accused has been charged under the DFDA with certain offences relating to children and domestic evidence offences: an offence against a provision of Part III or IIIA of the (ACT) Crimes Act 1900 (being an offence against a child under the age of 16 years), an offence against sections 133, 134, 135, 139 or 140 of the (ACT) Children Services Act 1986 or an offence that is either a domestic violence offence

24

Evidence Act s.13(5). Evidence Act s.13(2). Evidence Act s.13(3) A co-accused in a joint trial, or an accomplice being tried separately from the accused, is each an 'associated defendant'. Evidence Act s.17(4).

25

26

27

28

ADFP 201 VOLUME 1 69 within the meaning of the (ACT) Domestic Violence Act 1986 or an offence under section 27 of that 29 Act. 6.55 A Service tribunal must uphold an objection by a person who is a spouse etc of the accused to giving evidence if it finds that: a. there is a likelihood that harm would, or might, be caused to the person or to his or her relationship with the accused if the person gives evidence; and the nature and extent of the harm outweighs the desirability of the evidence being given.

b.

6.56 A person who is a spouse etc of the accused can only object before giving evidence or as 30 soon as practicable after he or she becomes aware of his or her right to object. The Service tribunal must satisfy itself that a person who appears to have a right to object under s.18 is aware of the effect 31 of s.18 as it may apply to him or her. Other Persons 6.57 None of the person or persons constituting a Service tribunal is competent to give evidence 32 in a proceeding before the tribunal. 6.58 In the unlikely event that a member of a House of an Australian Parliament is called as a witness before a Service tribunal, the member is not compellable if attending to give evidence would prevent his or her attendance at a sitting of that House, a joint sitting of that Parliament or a meeting of 33 a committee of that House or that Parliament of which he or she is a member. Also, none of the Sovereign, the Governor-General, a State Governor, an Administrator of a Territory or a foreign sovereign or Head of State of a foreign country is compellable to give evidence before a Service 34 tribunal , nor is a person who is or was a judge in an earlier proceeding to give evidence about that 35 proceeding, unless the tribunal gives leave . THE FORM IN WHICH EVIDENCE MAY BE GIVEN 6.59 The proof of facts in issue and facts relevant to the issue may be established by direct evidence or circumstantial evidence. The means by which such evidence is given may be one or more of the following: oral evidence, documentary evidence or real evidence. Each of these terms is explained below. Direct Evidence 6.60 Direct evidence is an assertion made by a witness in court offered as proof of the truth of any fact asserted by him, including his own mental or physical state at a given time. For example, if in the hearing of a charge of driving under the influence of intoxicating liquor a witness stated, I saw A.B. (the defendant) driving motor car No AAA-000 south in George Street, that would be direct evidence

29

Evidence Act s.19. Evidence Act s.18(3). Evidence Act s.18(4). Evidence Act s.16(1). Evidence Act s.15(2). If a member of a House of the Commonwealth Parliament is called, see s.14(1) of the Parliamentary Privileges Act 1987 (Commonwealth). Evidence Act s.15(1). Evidence Act s.16(2).

30

31

32

33

34

35

ADFP 201 VOLUME 1 610 because it is an attestation of two facts in issue, perceived by the witness, ie that the accused was the driver of a motor vehicle. Circumstantial Evidence 6.61 If the only evidence that could be given of facts in issue were testimony, admissible hearsay, documents and things, many claims would fail for want of adequate proof. 6.62 The limited scope of the evidence provided by documents and things is obvious enough, and it is not often that every fact in issue was perceived, either by a witness, or else by the maker of a statement which is admissible under an exception of the rule against hearsay. 6.63 At some stage, resort almost always has to be had to circumstantial evidence. Such evidence is evidence of any fact (sometimes called an evidentiary fact, or fact relevant to the issue) from the existence of which the Service tribunal may infer the existence of a fact in issue (sometimes called the principal fact). A typical instance is afforded by the statement of a witness at a trial for murder that he saw the accused carrying a bloodstained knife at the door of the house in which the 36 deceased was found mortally wounded. 6.64 Circumstantial evidence is receivable in criminal as well as in civil cases. Indeed, the necessity of admitting such evidence is more obvious in criminal case, where the possibility of proving the matter charged by direct and positive testimony of eye-witnesses or by conclusive documents is much more rare than in civil cases. Where such evidence is not available, the Service tribunal is permitted to infer from the facts proved other facts necessary to complete the elements of guilt or to establish innocence. Oral Evidence 6.65 Oral evidence is that given by word of mouth in the witness box. It is evidence of a matter perceived by the witness with one of his five senses. Oral evidence may be divided into assertions of fact or of hearsay and may be given as direct evidence or circumstantial evidence. Direct evidence has been explained in paragraph 6.60; hearsay evidence is discussed at paragraph 6.143 et seq. Documentary Evidence 6.66 Documentary evidence is evidence as to the contents of a document. In relation to a Service 37 tribunal, a document is any record of information, and includes: a. b. anything on which there is writing; anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or a map, plan, drawing or photograph.

c.

d. 6.67

Before a document can be admitted into evidence, some basic rules must be observed: a. evidence of its contents must be adduced in the proceedings (see paragraph 6.71 et seq.); and it must be shown to be relevant because it has been duly executed or adopted or otherwise connected with a particular person.

b.

36

Cross on Evidence, 4th Australian edition, paragraph 1100. Evidence Act Dictionary Part 1, definition of 'document'.

37

ADFP 201 VOLUME 1 611 Additionally, like all other evidence, the contents of the document must be otherwise relevant and must not be inadmissible by virtue of other rules of evidence. 6.68 As a general rule, it is not acceptable for either the prosecution or the defence to simply 'table' a document during a summary hearing. It is necessary for documentary evidence to be formally admitted. The normal procedure is for an appropriate witness to be called and for either the prosecution or the defence to seek to have the documents admitted into evidence through the testimony of that witness. 6.69 When the prosecution wishes to tender a Service police record of interview containing an admission made by an accused to the Service police then the record of interview must have been 38 signed by the accused. The normal procedure to formally admit the record of interview into evidence is to call one of the Service police officers who conducted the interview as a prosecution witness to testify as to how the record of interview was compiled, that he or she saw the accused sign the record of interview (if that is the case) and, subject to any objections as to admissibility by the defence, the document can then be admitted into evidence. In the absence of an order by the tribunal made with the consent of the defence dispensing with application of any one or more relevant provisions of the 39 Evidence Act to evidence of the record of interview , it is not acceptable for the prosecution to simply tender the record as evidence without calling a witness to testify as to its admissibility. 6.70 In proceedings before a Service tribunal, a document certified by a commanding officer to be 40 a copy of a general order is evidence of that order unless the contrary is proved. The term 'general 41 order' includes Defence Instructions, and formation, standing and routine orders. The ways in which documentary evidence may be adduced 6.71 A party may adduce evidence of the contents of a document before a Service tribunal by tendering: a. b. the original document ; a purported copy of the document purportedly produced by a device (for example, a photocopier, fax machine or a word processor) that reproduces the contents of 43 documents ; if the contents of the document is a record of words capable of being reproduced as sound (for example, a tape-recording) or in a code (for example, shorthand notes), a 44 purported transcript of the words ; if the document is an article or thing on or in which information is stored in such a way that it cannot be used by the tribunal unless a device is used to retrieve, produce or collate it, a document purportedly produced by the device (for example, computer
42

c.

d.

38

Evidence Act s.86. The consent of the accused is ineffective unless the accused has been advised to consent by his or her lawyer or the tribunal is satisfied that the accused understands the consequences of giving the consent: see Evidence Act s.190(2). Reg. 27 of the DFD Regulations. DFDA s.3(1). Evidence Act s.48(1) (introductory words). Evidence Act s.48(1)(b). Evidence Act s.48(1)(c).

39

40

41

42

43

44

ADFP 201 VOLUME 1 612 output of information on a computer disk or tape, a document produced by an optical 45 disk reader of information recorded on an optical disk) ; e. a business record that is a purported copy of, extract from or summary of the 46 document, or a purported copy of such an extract or summary ; if the document is a public document within the meaning of the Evidence Act , a purported copy of the document purportedly printed by the Government Printer or the relevant government or official printer, by authority of the relevant government or administration concerned or by authority of an Australian Parliament or a House or a 48 committee of such a Parliament ; if the document is not available to the party or the existence or contents of the document are not in issue in the proceeding before the tribunal, a copy, extract from or 50 summary of the document or by adducing oral evidence of its contents .
49 47

f.

g.

6.72 A party may also adduce evidence of the contents of a document by adducing evidence of an admission about the contents of the document, although that evidence may only be used in respect 51 of the case of the adducing party and the party who made the admission . 6.73 A notice requirement applies where the party intends to adduce evidence of the contents of a document that is overseas by tendering a copy document, transcript, a document produced by a device, a business record or an officially printed document: a party can only do so if it serves on each other party to the tribunal proceeding a copy of the document it intends to tender in the proceeding not 52 less than 28 days beforehand . 6.74 A party against whom documentary evidence has been adduced may make certain requests to the tendering party to produce documents, be permitted to examine and test documents and to require persons involved in the production, maintenance or control of documents to be called as 53 witnesses where its authenticity, identity or admissibility is at issue . 6.75 A party may apply to a Service tribunal for a direction that it be permitted to adduce evidence 54 of the contents of 2 or more documents in the form of a summary . A tribunal may only make such a direction if it is satisfied it would not be possible to conveniently examine the evidence because of the volume or complexity of the documents and the party has served on each other party a copy of the summary disclosing the name and address of the person who prepared it and given each other party a reasonable opportunity to examine or copy the documents in question.

45

Evidence s.48(1)(d). Evidence Act s.48(1)(e). Evidence Act Dictionary Part 1, definition of 'public document'. Evidence Act s.48(1)(f). Evidence Act Dictionary Part 2, clause 5. Evidence Act s.48(4). Evidence Act ss. 48(1)(a) and 48(3). Evidence Act s.49. See Evidence Act Part 4.6 Division 1 (sections 166 to 169) and paragraphs [166.1] to [169.3] of the Evidence Act 1995 (plus commentary) reproduced at pages 89 to 92 of Volume 2 Part 5 of the Discipline Law Manual. Evidence Act s.50.

46

47

48

49

50

51

52

53

54

ADFP 201 VOLUME 1 613 Real Evidence 6.76 Real evidence is the evidence afforded by the production of physical objects (eg. the murder weapon) for inspection or other examination by the court. 6.77 The connection between such objects and facts in issue in a proceeding has to be established by other evidence (eg. a witness testifying where and when the murder weapon was 55 found ). 6.78 A document is not usually classified as real evidence. Usually it is the contents of a document that is relevant. However, in certain circumstances it may be regarded as real evidence. For example, in a charge of stealing a document, the document is the material object stolen and would therefore be real evidence. 6.79 Real evidence may involve the question of views. The purpose of a view is to enable the court to examine an object which could not conveniently be brought into a court room. For example, in a case involving the alleged hazarding of a ship, it may be desirable that the tribunal have a view of the bridge of the ship of a similar class. The tribunal may draw any reasonable inference from what it 56 observes on the view . MATTERS ON WHICH EVIDENCE IS NOT REQUIRED 6.80 It has been said in relation to criminal trials:
Whenever there is a plea of not guilty, everything is in issue, including the identity of the accused, 57 the nature of the act and the existence of any necessary knowledge or intent.

6.81 In the light of this statement it might be thought that everything which is relevant to a fact in issue in a criminal trial must be proved by evidence and that the court cannot be assumed to have knowledge of anything in connection with the case. 6.82 In practice, of course, this is not the case, as there are categories of matters of which evidence is not required. 6.83 These categories include formal admissions, fact agreements and judicial notice, which will be briefly discussed in the succeeding paragraphs. It is also appropriate to discuss presumptions in this context of matters not requiring strict proof. Formal Admissions 6.84 Section 67 of the ACT Evidence Act as substituted by Schedule 1 of the DFD Regulations provides:
Admission by accused person 67. In proceedings before a service tribunal, if the person charged with an offence makes an admission of a fact or other matter the service tribunal may accept the admission as sufficient evidence of that fact or other matter without further proof unless the tribunal is satisfied that it would be unfair to the person to accept the admission.

6.85 This provision, which will mainly concern uncontroversial matters, is designed to expedite proceedings, thus enabling the tribunal to decide a case on limited issues of fact and saving time and expense.

55

Ligertwood, Australian Evidence, 2nd edition, paragraph 7.13. Evidence Act s.54 Per Lord Goddard C.J. in R v Sims (1946) K.B. 531, 539.

56

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ADFP 201 VOLUME 1 614 6.86 At a court martial it is desirable that the content of the proposed admission be discussed with the judge advocate in the absence of the members of the court. The judge advocate should then decide whether or not it would be unfair to the accused person to accept the admission. To ensure accuracy in complicated matters the proposed admission may be reduced to writing and signed by the prosecutor, defending officer and the accused. 6.87 As to the effect of making formal admissions in relation to a comparable provision (s.404 of the Crimes Act 1900 (NSW)), see R v Longford (1970) 17 FLR at p.38. Fact agreements 6.88 Evidence Act s.191 provides:

Agreements as to facts 191. (1) In this section:

agreed fact means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed. (2) In a proceeding: (a) (b) evidence is not required to prove the existence of an agreed fact; and evidence may not be adduced to contradict or qualify an agreed fact;

unless the court gives leave. (3) Subsection (2) does not apply unless the agreed fact: (a) (b) is stated in an agreement in writing signed by the parties or by lawyers representing the parties and adduced in evidence in the proceeding; or with the leave of the court, is stated by a party before the court with the agreement of all the other parties.

6.89 Section 191 is also designed to expedite a proceeding, by limiting issues of fact and saving time and expense. It enables a party to agree not to dispute a fact in a proceeding without making an admission about the fact. 6.90 Where parties have agreed not to dispute a fact, and the requirements of subsection 191(3) have been satisfied, evidence may not be adduced to prove, contradict or qualify the fact unless the tribunal gives leave. Judicial Notice 6.91 Judicial notice means the acceptance by a fact-finding tribunal (eg. a court martial) of the truth of a fact without requiring proof of that fact. 6.92 Judicial notice is taken of Commonwealth, State and Territory law, including some subordinate laws, and certain knowledge that is not reasonably open to question. 6.93 Evidence Act s.143(1) provides that proof is not required about the provisions and coming into operation of Commonwealth, State and Territory Acts; Territory Ordinances; Imperial Acts in force in Australia; Commonwealth, State or Territory regulations, rules or by-laws; Proclamations or orders of the Governor-General, a State Governor or Territory Administrator made under a Commonwealth, State or Territory Act, a Territory Ordinance or an Imperial Act in force in Australia; or Commonwealth, State or Territory subordinate legislation required by law to be published or notified in a government gazette.

ADFP 201 VOLUME 1 615 6.94 Evidence Act s.144 provides that proof is not required about knowledge that is not reasonably open to question and is either: a. common knowledge generally or in the locality in which the proceeding is being held; or capable of verification by reference to a document the authority of which cannot reasonably be questioned.

b.

6.95 Examples of knowledge that is not reasonably open to question that is common knowledge generally would be the current Prime Minister of Australia, that hostilities in World War I ended upon the signing of the Armistice at 11 am on the 11th day of November 1918, or that Tokyo is in Japan. Knowledge of that kind that is common knowledge in the locality in which the proceeding is being held will include prominent landmarks in the locality (eg. the locality of the Opera House, the Harbour Bridge, or Wynyard Station when a Service tribunal is sitting in Sydney). 6.96 Examples of knowledge that is not reasonably open to question and is capable of verification by reference to a document the authority of which cannot reasonably be questioned will include knowledge about times of sunset or sunrise or weather conditions at a particular place at a particular time (capable of verification from meteorological documents), or knowledge about the location of a particular landmark (capable of verification from certain topographic or oceanographic maps). 6.97 The person or persons constituting the Service tribunal may require knowledge about which proof is not required in any way they think fit, but must give each party to the proceeding before the tribunal such opportunity to make submissions and to refer to relevant information about the acquiring and taking into account of such knowledge as is necessary to ensure that the party is not unfairly 58 prejudiced . 6.98 There are, also, occasions when statutes require courts to take judicial notice of facts. For example, by virtue of DFDA s.147, a Service tribunal may take judicial notice of all matters within the general Service knowledge of the tribunal or of its members. Thus, evidence need not be given as to the relative ranks of officers, as to the general duties, authorities and obligations of different members of the Defence Force or generally as to any matter which an officer may reasonably be expected to know. Presumptions 6.99 Evidence may not be required where on proof of one fact the existence of another fact can be presumed. 6.100 Conclusive presumptions, most commonly created by statute , are irrefutable.
59

6.101 A rebuttable presumption of law is one which requires a court to find that the presumed fact exists unless sufficient evidence to the contrary is adduced. For example, an accused is presumed to be sane unless he adduces evidence and satisfies the court by proof on the balance of probabilities that he is not; in other words the presumption of sanity is rebuttable by evidence to the contrary. 6.102 Presumptions of fact may also arise in criminal proceedings; in other words, on proof of fact A the court must find fact B to be proved unless evidence to the contrary is adduced. For example, in relation to a charge of stealing, the common law presumes that recent possession of property is evidence either that the person in possession stole the property or received it knowing it to have been

58

Evidence Act ss. 144(2) and (4). eg. s.27 of the (ACT) Children's Services Act 1986 presumes a child who has not attained the age of 8 years for all purposes to be incapable of committing an offence (on proof that a child is, say, 7 years old, it is presumed the child is incapable of committing an offence).

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ADFP 201 VOLUME 1 616 stolen . If an accused fails to give an explanation as to how he came by the goods the court may 61 convict him of stealing or receiving. 6.103 Presumptions of fact arising under statute may also facilitate the proof of particular facts by parties in proceedings. So, Evidence Act s.150(3) presumes, unless the contrary is proved, that a document purportedly signed by the holder of an office under an Australian or foreign law in his or her official capacity was signed in that capacity by the office holder holding the relevant office when the document was signed. 6.104 Most presumptions apply 'unless the contrary is proved'. In other words, they must be rebutted by proof to the contrary (eg. the presumption under Evidence Act s.150(3) would be rebutted by evidence proving that the office holder did not hold the office at the time the document was signed). 6.105 However, some presumptions facilitating the proof of particular facts by parties need not be rebutted but may be displaced quite easily: an example of such a presumption is one that is able to be 62 displaced 'unless evidence sufficient to raise doubt about the presumption is adduced' . Such a presumption does need to be rebutted, but can be displaced by credible evidence that is not consistent with the matter that would (otherwise) be presumed. If the presumption is displaced, the Service tribunal will make findings of fact relevant to the matter solely on the basis of the probative value of the evidence before it on that matter. PRIVILEGE OF WITNESSES Privilege Against Self-incrimination or Self-Exposure to a Penalty 6.106 Evidence Act s.128 contains rules about the giving of evidence that would incriminate a witness, or expose him or her to a penalty. 6.107 The general rule is that a witness, other than the accused who gives evidence about a fact in issue, must not be required to give particular evidence if he or she objects that the evidence may tend to prove he or she has committed an offence or is liable to a penalty arising under law. 6.108 However, except in the case of self-incrimination with respect to an offence or civil penalty arising under foreign law, the Service tribunal may require the witness to give the particular evidence if the interests of justice require that he or she do so. In such a case, the tribunal must cause the witness to be given a certificate in respect of the evidence (see paragraph 6.111). 6.109 Except where the tribunal requires the witness to give the evidence, if it finds there are reasonable grounds for the objection, the tribunal must give the witness the option not to give the particular evidence, or to give the evidence and to receive a certificate. If the witness chooses to give the evidence, the tribunal must cause the witness to be given such a certificate in respect of the evidence (see paragraph 6.111). 6.110 The tribunal must also cause the witness to be given such a certificate where the witness gives the particular evidence after his or her objection has been overridden and, after the evidence has been given, the tribunal finds there were reasonable grounds for the objection. 6.111 The effect of a certificate given under section 128 is that the evidence in respect of which the certificate has been given, and evidence of any information or document or thing obtained as a direct or indirect consequence of the witness having given evidence, cannot be used against the witness in
60

60

Trainer v The King (1906) 4 CLR 126. R v Bellamy (1981) 3 A. Crim R. 432. An example of such a presumption includes Evidence Act s.160(1) which presumes, unless evidence sufficient to raise doubt about the presumption is adduced, a postal article sent by prepaid post addressed to a person at a specified address in Australia or an external Territory was received at that address on the fourth working day after having been posted.

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ADFP 201 VOLUME 1 617 any proceeding before an Australian court (including a person or body authorised by Australian law to hear, receive and examine evidence), except in a criminal proceeding in respect of the falsity of the evidence. Family Privilege 6.112 Apart from certain offences relating to children and domestic evidence offences , a Service tribunal may uphold an objection by a person who is the spouse, de facto spouse, a parent or a child 64 of the accused to giving evidence as a witness for the prosecution in proceedings under the DFDA . Legal Professional Privilege 6.113 On objection by a person, evidence must not be given that would result in the disclosure of certain confidential communications made, or the contents of certain confidential documents prepared, 65 for the dominant purpose of either (a) the provision to the person by a lawyer of legal advice or (b) 66 the provision to the person of professional legal services relating to litigation . 6.114 The categories of protected confidential communications and documents is narrower in situation (a) than situation (b). 6.115 A confidential communication in situation (a) must have been made between the person and the lawyer, or 2 or more lawyers for the person. In situation (b), the confidential communication can have been between the person and someone else, or a lawyer acting for the person and someone else (that is, the category of projected communications in situation (b) extends to client/lawyer communications with a third party). 6.116 A confidential document in situation (a) must have been prepared by the person or the lawyer. In situation (b) the confidential document can have been prepared by some other person (that is, the category of protected documents in situation (b) extends to documents prepared by a third party). 6.117 From the defending officer's point of view, it is essential to remember that it is not his or her privilege but the accused person's. The privilege cannot be waived except with the authority of the 67 accused . 6.118 If a party to a proceeding before a Service tribunal is not represented in the proceeding by a lawyer, evidence must not be given on objection by the party that would result in the disclosure of a confidential communication made between the party and someone else, or the contents of a confidential document prepared by or for the party, for the dominant purpose of preparing for or 68 conducting the proceeding . 6.119 The privileges set out at paragraphs 6.113 to 6.116 and 6.118 do not apply in certain 69 situations and may on occasions be lost . An exception to the privileges which might occasionally
63

63

Evidence Act s.19. See paragraph 6.54. See under Who may give evidence Competence and Compellability of witnesses at paragraphs 6.53 to 6.56. Evidence Act s.118. Evidence Act s.119. See Tuckiar v R [1934] 52 CLR 335. Evidence Act s.120. See Evidence Act sections. 121 to 126 and paras [121.1] to [126.1] of the Evidence Act 1995 (plus commentary) reproduced at pages 63 to 67 of Volume 2 Part 5 of the Discipline Law Manual.

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66

67

68

69

ADFP 201 VOLUME 1 618 apply in a proceeding before a Service tribunal is the exception in Evidence Act s.123 in favour of an accused in a criminal proceeding. In a criminal proceeding, which will include a proceeding before a 70 Service tribunal , s.123 enables an accused to adduce evidence of most communications or documents otherwise protected by the privileges. Section 123 does not enable an accused person to adduce evidence that would result in the disclosure of a confidential communication made between an 71 associated defendant and a lawyer acting for that person in connection with the prosecution of that person or the contents of a confidential document prepared by an associated defendant or a lawyer acting for that person in connection with the prosecution of that person. The exception in s.123 may enable an accused to adduce evidence of a communication or a document contained in a prosecutor's brief. Religious Confessions 6.120 Evidence Act s.127 entitles a member or former member of the clergy to refuse to divulge a religious confession or that such a confession was made. 6.121 A religious confession is one made by a person to a member of the clergy in that member's professional capacity according to the ritual of the church or the religious denomination concerned (eg. one received by a priest of the Catholic Church in the sacrament of Penance). 6.122 The privilege is one that belongs to the member of the clergy: it is, under s.127, immaterial whether the person who made the confession wants it divulged. 6.123 The privilege does not, however, extend to a communication involved in a religious confession that was made for a criminal purpose (eg. where the member of the clergy and person are conspiring to commit a criminal offence and are using the ritual of the church or religious denomination concerned to attract privilege to the communication). Physician and Patient 6.124 No privilege exists in respect of confidential communications between a doctor and his patient (although it is often thought otherwise). Exclusion of Evidence in the Public Interest 6.125 Division 3 of Part 3.10 of the Evidence Act prohibits in the public interest particular kinds of evidence being adduced in proceedings. The rules, in sections 129, 130 and 131 of the Act, apply whether or not a party has made an objection to the giving of the evidence in the proceeding. 6.126 Two of the provisions, sections 129 and 131, provide rules prohibiting the giving of particular kinds of evidence that would seldom be called in proceedings before a Service tribunal: rules, in s.129, prohibiting evidence of the reasons for a decision or of the deliberations of a judge, arbitrator or juror in a proceeding and, in s.131, prohibiting evidence of settlement negotiations. 6.127 It is conceivable that the operation of the other provision, section 130, may arise in proceedings before a Service tribunal. 6.128 Evidence Act s.130(1) enables a Service tribunal to direct that information or a document that relates to matters of state not be adduced as evidence if the public interest in admitting the information or document into evidence is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document.

70

DFDA s.146(1)(b). A term 'associated defendant' bears the same meaning as it does in Evidence Act s.13(3): see paragraph 6.52. A co-accused in a joint trial, or an accomplice being tried separately from the accused, is each an 'associated defendant'.

71

ADFP 201 VOLUME 1 619 6.129 Information or a document that relates to matters of state includes information or a document which would prejudice the security or defence of Australia if it were adduced as evidence. 6.130 Under s.130(1), the Service tribunal must balance the respective public interests in preserving secrecy or confidentiality (that is, the public interest that harm should not be done to Australia by adducing the information or document as evidence) against the public interest in admitting the information or document into evidence (that is, the public interest in the administration of justice not being frustrated by the withholding of relevant evidence). If the public interest in preserving secrecy or confidentiality in relation to the information or document outweighs the public interest in admitting the information or document in evidence, the Service tribunal may direct that the information or document not be adduced as evidence. 6.131 In deciding whether to make a direction, the Service tribunal must take into account: a. b. the importance of the information or document in the proceedings; whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor and, if an accused is seeking to adduce the evidence, whether the direction is to be made subject to the condition that the prosecution be stayed; the nature of the Service offence or defence to that offence to which the information or document relates, and the nature of the subject matter of the proceedings; the likely effect of adducing evidence of the information or the document and the means available to limit its publications (see paragraph 6.90); whether the substance of the information or document has already been published.

c.

d.

e.

6.132 In taking into account the means available to limit publication of evidence of the information or document, a President of a court martial or a Defence Force magistrate would have regard to his or her powers under DFDA s.140(2) to order members of the public to be excluded from the proceedings or to order that no report be made of the whole or a specified part of the proceedings. SECTION 3 - THE PRINCIPAL RULE CONCERNING THE ADMISSIBILITY OF EVIDENCE: THE RELEVANCE RULE The Relevance Rule 6.133 Evidence adduced by the prosecution or an accused in a proceeding before a Service tribunal must be relevant. 6.134 Subsection 56(1) of the Evidence Act sets out the relevance rule, which is the principal rule concerning the admissibility of evidence in proceedings. It provides that:

56 (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
6.135 The corollary of the rule is stated in s.56(2), which provides that:

(2)

Evidence that is not relevant in the proceeding is not admissible.

6.136 Thus, if the evidence is relevant it is admissible in the proceeding, unless another provision of the Evidence Act excludes it: if evidence is irrelevant it is not admissible in the proceeding. 6.137 that: Whether or not evidence is relevant is determined by section 55 of the Act. Section 55 states

ADFP 201 VOLUME 1 620

55 (1) The evidence that is relevant in a proceeding is evidence that, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
6.138 The test in s.55 requires only a minimal logical connection between particular evidence and a fact in issue in the proceeding. If the evidence, if it were accepted (which, of course, it may not be), could rationally affect the assessment of the probability of such a fact it is relevant and, by virtue of s.56(1), admissible in the proceeding unless another provision of the Act excludes it. The effect may be direct (eg. because it is an assertion by a person who saw the occurrence of a fact in issue in the 72 proceeding ) or indirect (eg. where the Service tribunal is asked to infer the existence of a fact in 73 issue from circumstantial evidence adduced in the proceeding ). 6.139 While only a minimal logical connection between particular evidence and a fact in issue is required, marginally probative evidence may be excluded under s.135 of the Act where its probative value is substantially outweighed by the danger that it might cause or result in undue waste of time. Provisional Relevance 6.140 The relevance of some evidence may depend upon the acceptance of other evidence. For example, the relevance of evidence of the contents of a document will usually depend on proof of the authenticity of the document. Also, the relevance of much circumstantial evidence may depend upon other evidence in the proceeding. 6.141 If the determination of whether evidence is relevant depends upon the tribunal making another finding, Evidence Act s.57(1) enables the tribunal to find the evidence is relevant if it is reasonably open to make that other finding, or it may find the evidence is relevant subject to the admission of further evidence at a later stage of the proceeding that will make it reasonably open to make that other finding. 6.142 In the example given of evidence of the contents of a document, if the relevance of the evidence depends upon the tribunal making a finding that the document is authentic, the tribunal may find the evidence relevant if it is reasonably open to find that the document is authentic. Alternatively, the tribunal may find the evidence is relevant subject to further evidence being admitted that will make it reasonably open to find that the document is authentic (eg. in the case of a document that has been signed, evidence connecting the making of the document with the person who has apparently signed it). SECTION 4 - THE HEARSAY RULE 6.143 As explained at paragraphs 6.134 to 6.138, logically relevant evidence is admissible in a proceeding before a Service tribunal, unless another provision of the Evidence Act excludes it. 6.144 One of the most frequently arising exclusionary rules in the law of evidence is the rule against hearsay. 6.145 Under Evidence Act s.59(1), the rule against hearsay (described throughout the Act as 'the hearsay rule') is in the following terms:

59. (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
6.146 The operation of the rule is explained at paragraphs 6.147-6.158.

72

See the discussion of direct evidence at paragraph 6.60. See the discussion of circumstantial evidence at paragraphs 6.61-6.64.

73

ADFP 201 VOLUME 1 621 6.147 The hearsay rule applies to evidence of a representation that is a previous representation made by a person. 6.148 The term 'representation' is given an extended meaning in the Evidence Act and includes an express or implied representation (whether oral or in writing), a representation inferred from conduct (eg. a person can make a representation by pointing, or by nodding assent to what someone else has said), or a representation not intended to be communicated or not in fact communicated (eg. an entry in a diary). 6.149 The term 'previous representation' is given a special meaning by the Evidence Act . It is defined to meana representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
75 74

6.150 Thus, every statement made by a person, except when actually giving oral testimony before the Service tribunal in the proceeding concerned, and every statement contained in a document, is a 'previous representation' for the purposes of the hearsay rule. 6.151 The hearsay rule only applies to evidence of a previous representation made by a person. A representation made by a machine or a device is not a representation made by a person, and so will not be excluded by the hearsay rule. Examples of a representation made by a machine would include 76 some statements contained in an activity sheet generated by a fax machine . 6.152 The hearsay rule only applies to evidence of a previous representation made by a person to prove the existence of a particular fact (the fact that the person intended to assert). So the rule does not apply where evidence of the representation is admissible to prove some other fact than the existence of the fact the person intended to assert (eg. where it is admissible to prove, simply, that the representation was made). For example, consider where Mr B asserts to Mr A that he (B) is Napoleon. The hearsay rule applies to A's evidence about B's assertion on the question of whether or not B is Napoleon: A's evidence of B's assertion is not admissible on that question. On the other hand, the rule does not apply to A's evidence about B's assertion on the question whether or not B made the assertion to A, if that question is relevant (eg. on the issue of B's sanity). 6.153 It is sometimes said that evidence of a representation infringes the hearsay rule if it is adduced for a hearsay purpose (ie. to prove the existence of the particular fact asserted by the representation). Where the evidence is adduced for some other purpose (eg. to prove the representation was made), it is sometimes said that evidence of the representation is adduced for a non-hearsay purpose. 6.154 A useful common law example of the distinction between use of evidence of representation for a (impermissible) hearsay purpose and (permissible) use of evidence for a non-hearsay purpose is 77 the well-known case of Subramaniam v The Public Prosecutor . 6.155 In Subramaniam, the accused was charged with the unlawful possession of ammunition and his defence was that he was acting under duress from terrorists who had captured him. At first instance the trial judge rejected as hearsay his evidence of conversations with the terrorists relevant to establish the duress. The Privy Council reversed that decision on the basis that the evidence was not adduced as to the truth of what was actually alleged or asserted by the terrorists but to show Subramaniam's state of mind. The Privy Council said:

74

Evidence Act Dictionary Part 1, definition 'representation'. Evidence Act Dictionary Part 1, definition of 'previous representation'. A question may (often) arise whether the machine is generating the representation, or merely reproducing a representation entered into the machine by a person. (1956) 1 W.L.R. 965.

75

76

77

ADFP 201 VOLUME 1 622

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes....

6.156 This evidence, if believed, could have satisfied the court that duress was brought to bear upon the appellant. His evidence of his conversations with the terrorists was adduced for a nonhearsay purpose: that is, not to prove the existence of a fact asserted by the terrorists (that they would carry out their threats), but to prove that the threats were made, that question being relevant to the issue of the appellant's state of mind. 6.157 Finally, the hearsay rule only applies to evidence of a previous representation made by a person to prove the existence of a fact that the person intended to assert by the representation. Thus, an unintended assertion, ie. a representation not intended to be assertive of the facts it is adduced to prove, does not infringe the hearsay rule. An unintended assertion can be one that is an oral (or written) representation, or one that is an unintended assertion by conduct. An example of an unintended assertion that is an oral representation would be a case in which efforts were made to establish X's presence at a particular place by calling a witness to swear that he heard Y say Hello X at that place. An unintended assertion by conduct would be seeking to prove that beer at a hotel was of poor quality by calling a witness to testify that patrons of the hotel had left glasses of beer undrunk after tasting it. In neither case is the assertion being used to prove the existence of a fact intended to be asserted by the representation by the person who made the representation. In the first example cited, Y's representation is an unintended assertion about the identity of the person to whom Y is speaking. In the second example, each patron's assertion by conduct is an unintended assertion that the beer is bad. 6.158 Unintended assertions can, in some circumstances, be reliable as evidence. People do not generally say Hello X in order to deceive passers-by that X is there and patrons of hotels do not normally buy beer only to leave it undrunk. SECTION 5 - EXCEPTIONS TO THE HEARSAY RULE General 6.159 Logically relevant evidence that infringes the hearsay rule (see paragraphs 6.143-6.158) will nevertheless be admissible in a proceeding before a Service tribunal of it falls within an exception to the hearsay rule set out in the Evidence Act. 6.160 The exceptions to the hearsay rule in the Evidence Act fall into four categories: evidence relevant for a non-hearsay purpose; a. b. c. d. evidence relevant for a non-hearsay purpose; admissions; 'first-hand' hearsay representations more remote hearsay .
79 78

78

The concept of 'first-hand' hearsay is discussed at paragraphs 6.191-6.192. Unlike the exceptions for a 'first-hand' hearsay representation, the exceptions in this category apply whether or not the representation was made by a person who had personal knowledge of the fact the person intended to assert by the representation (see paragraphs 6.211-6.217).

79

ADFP 201 VOLUME 1 623 6.161 Under the Evidence Act s.61, none of the exceptions in Part 3.2 of the Act permit use of a previous representation to prove the existence of a fact intentionally asserted by the representation if the person who made the representation was not, at the time it was made, incapable of giving a rational reply to a question about the fact. So if, at the time a person makes a representation, he or she is psychologically incompetent to give evidence (for example, because he or she is a young child or a person with an intellectual disability: see paragraphs 6.44-6.46), evidence of the person's representations cannot (with one exception) be used under one of the exceptions to the hearsay rule set out in paragraphs 6.163-6.168 and 6.190-6.217. 6.162 The one exception is the exception to the hearsay rule set out at paragraph 6.213 for evidence of a contemporaneous representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind. Thus, to take an example, evidence of a young child, or a person whose capacities are affected by an intellectual disability, saying 'my chest hurts' can be used as evidence to prove the existence of pain the child or person was experiencing at that time even though the child or person was at that time psychologically incompetent to give evidence. EVIDENCE RELEVANT FOR A NON-HEARSAY PURPOSE 6.163 terms: Section 60 of the Evidence Act provides an exception to the hearsay rule in the following

60. The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.
6.164 The exception in s.60 permits hearsay use of evidence that has been admitted because it is relevant for a non-hearsay purpose. Thus, if a party can get a representation admitted into evidence for a non-hearsay purpose, it can be used for a hearsay purpose as well. 6.165 One example of when evidence of a representation may be admitted for a non-hearsay purpose is set out at paragraph 6.152. 6.166 Another example is where a witness has made a prior statement that is inconsistent with his or her testimony. If his or her testimony was about a fact in issue in the proceeding, the prior statement is relevant both for a hearsay and non-hearsay purpose. The prior statement is relevant for a hearsay purpose because it can (clearly) be used to prove the existence of a fact in issue in the proceeding. The statement is also relevant for a non-hearsay purpose because its relevance does not only relate to its truth, but also to the fact that the witness has given two inconsistent accounts of the same event or events. The fact that the witness has previously given a different account of the event or events from what he or she has said in the witness box reflects on the believability of the testimony he or she has given. 6.167 The effect of the exception in s.60 is that if the prior statement is admitted because it is relevant for a non-hearsay purpose (eg. because it is relevant to the credibility of the witness), it can also be used for a hearsay purpose (ie. to prove the existence of a fact in issue that the witness intentionally asserted by the statement). 6.168 Yet another example of evidence admitted for a non-hearsay purpose is evidence of a prior consistent statement of a witness admitted as being relevant to the credibility of evidence the witness has given. Where, for example, a prior inconsistent statement of a witness has been admitted, the tribunal may give leave under Evidence Act s.108(3) to adduce evidence of a prior consistent 80 statement of the witness . If the witness's prior consistent statement has been admitted as being relevant to credibility (a non-hearsay purpose) it can also be used to prove the existence of a fact in issue that the witness intentionally asserted by the statement.

80

Leave may also be given under Evidence Act s.108(3) to adduce evidence of a witness's prior consistent statement where it is or will be suggested that evidence given by the witness has been fabricated, reconstructed or is the result of a suggestion: see Evidence Act s.108(3)(b).

ADFP 201 VOLUME 1 624 ADMISSIONS 6.169 The hearsay does not apply to evidence of an admission if it is 'first-hand' (see paragraph 6.173). There are other requirements which also must be satisfied before evidence of an admission is admissible in a Service tribunal proceeding (see paragraph 6.179-6.185), and evidentiary rules in relation to questioning (paragraphs 6.186-6.189). What is an Admission? 6.170 An admission is defined in the Evidence Act ... a previous representation that is: a. made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and adverse to the person's interest in the outcome of the proceeding.
83 82 81

to mean:

b.

6.171 So 'first-hand' evidence of a single previous representation made by a person that turns out to be adverse to the person's interest in a Service tribunal proceeding to which the person is or 84 becomes a party is admissible as an exception to the hearsay rule . 6.172 Not only is evidence of the single previous representation that is an admission admissible as 85 an exception to the hearsay rule, but also evidence of some other previous representation made at or about the time the admission was made to which it is reasonably necessary to refer to understand 86 the admission . 'First-hand' Evidence of an Admission 6.173 As mentioned at paragraph 6.169, the hearsay rule does not apply to evidence of an admission if it is 'first-hand'. Evidence of the admission must be given orally by a person who saw, heard or otherwise perceived the admission being made or it must be a document in which the 87 admission is made . An admission is not made in a document unless the representation that is the admission was written, made or otherwise produced by the person who made the admission, or the person recognised the representation as his or her own representation by signing, initially or otherwise 88 marking the documents .

81

Evidence Act s.81(1). Evidence Act Dictionary Part 1, definition of 'admission'. The meaning of the term 'previous representation' is discussed at paragraphs 6.149-6.150. If the previous representation is not adverse to the person's interest in a proceeding (eg. if it is exculpatory), it may be admissible under other exceptions to the hearsay rule: see paragraphs 6.1906.210, particularly paras 6.208-6.210. See also paragraph 6.174 et seq. in relation to vicarious admissions. The meaning of the term 'previous representation' is discussed at paragraphs 6.149-6.150. Evidence Act s.81(2). Evidence Act s.82. Evidence Act Dictionary Part 2, clause 6.

82

83

84

85

86

87

88

ADFP 201 VOLUME 1 625 Vicarious Admissions 6.174 The definition of 'admission' in the Evidence Act (see paragraphs 6.170-6.171) requires that an admission must be made by a person who is or becomes a party to a Service tribunal proceeding. 6.175 However, an admission may also be made on behalf of a party: a representation made by a 89 person may be a vicarious admission of another person who is a party to a proceeding . 6.176 A Service tribunal can admit evidence of a representation made by a person as an admission of another person who is a party if it is reasonably open to find: a. that the person had authority to make statements on behalf of the party in relation to the matter concerned; the representation was made by an employee or agent about a matter within the scope of his or her employment or authority; or the representation was made in furtherance of a common purpose with the party.

b.

c.

6.177 Once the evidence is admitted, the Service tribunal must nevertheless determine in the course of the proceeding whether the representation of the person is an admission of the party to the proceeding (that is, it must decide whether or not to accept that the representation was made by a person who had authority etc). Use of an Admission in Respect of the Case of a Co-accused 6.178 In the case of a joint trial before a Service tribunal, the hearsay rule applies to evidence of an 90 admission of one accused in respect of the case of another co-accused . The co-accused may, however, consent to use of the other accused's admission in respect of its case, but consent cannot 91 be given in respect of part only (eg. only the favourable part) of that accused's admission . Requirements to be Satisfied before Evidence of an Admission is Admissible 6.179 As mentioned at paragraph 6.169, there are other requirements which must be satisfied before evidence of an admission is admissible in a Service tribunal proceeding. This is in addition to the requirement that evidence of an admission, to be an exception to the hearsay rule, must be 'firsthand' (see paragraph 6.173). Requirements under the DFDA 6.180 Some of those requirements apply under Part III Division 3 of the DFDA (see the discussion of DFDA ss. 101J, 101JA and 101K at paragraphs 3.9-3.15 of Chapter 3). See also, in relation to DFDA s. 101ZB, paragraphs 6.292 and 6.299 to 6.302. Admissions Influenced by Violence etc 6.181 If an accused in a Service tribunal proceeding against whom evidence of an admission has been adduced raises an issue about whether the admission or its making were influenced by violent, oppressive, inhuman or degrading conduct towards any person, or by a threat of such conduct, evidence of the admission is not admissible unless the tribunal is satisfied the admission and its 92 making were not so influenced .

89

Evidence Act s.87. Evidence Act s.83(1). Evidence Act ss. 83(2) and (3). Evidence Act s.84.

90

91

92

ADFP 201 VOLUME 1 626 6.182 Once the issue is raised by the accused, the onus lies with the prosecution to satisfy the tribunal that the admission and its making was not influenced by violent etc. conduct or a threat of such conduct. Reliability of Admissions etc 6.183 Evidence of an admission made by an accused in the course of official questioning by an investigating official, or as a result of an act of another person (eg. a commanding officer) who was able to influence the decision whether the prosecution of the accused should be brought or continued, is not admissible unless the circumstances in which the admission was made make it unlikely that the 93 truth of the admission was adversely affected . The onus of showing that the evidence is admissible lies upon the party adducing it. 6.184 The matters that a Service tribunal must take into account in deciding whether the truth of an admission was adversely affected include any relevant condition or characteristic of the accused (including his or her age, personality and any disability to which the person is or appears to be subject). A condition or characteristic of the accused would include one to which he or she was subject temporarily at the time of questioning (eg. intoxication, fatigue). 6.185 If the admission was made in response to questioning, the Service tribunal must also take into account the nature of the questions, the manner in which they were put, and the nature of any threat, promise or other inducement made to the accused. Two further rules: evidence in relation to questioning 6.186 Two evidentiary rules also apply in relation to questioning of persons. These rules apply in addition to those set out at paragraphs 6.179-6.185. Unsigned records of interview 6.187 First, if evidence of an admission made by an accused is sought to be given in the form of a record in writing of an interview with the accused that was prepared by or on behalf of an investigating official, the record is not admissible unless the accused has acknowledged it as a true record by 94 signing, initialling or otherwise marking it . Oral evidence of the admission can, however, be given by a person (including the investigating official) who heard the admission being made (see paragraph 6.173). Unfavourable Inferences from Silence during Questioning 6.188 Second, an inference unfavourable to a party must not be drawn in a Service tribunal proceeding from a failure or refusal by the party or another person to answer a question or respond to 95 96 a representation during official questioning . For example, an inference must not be drawn that a party did not answer one or more questions put to him or her during an interview by an officer investigating a Service offence because he or she believed he or she was guilty of the Service offence concerned. The obligation not to draw unfavourable inferences extends to partial silence in the course of an interview. 6.189 Evidence of the failure or refusal is inadmissible in the Service tribunal proceeding if the only use that could be made of the evidence is to draw an inference that is unfavourable to the party.

93

Evidence Act s.85. Evidence Act s.86. See paragraph 6.148 for the extended meaning given by the Evidence Act to the word 'representation'. Evidence Act s.89(1). The prohibition does not apply where the failure or refusal to answer or respond is a fact in issue in the proceeding: see Evidence Act s.89(3).

94

95

96

ADFP 201 VOLUME 1 627 'FIRST-HAND' HEARSAY REPRESENTATIONS General 6.190 Part 3.2 Division 2 of the Evidence Act provides for exceptions to the hearsay rule for evidence of a 'first-hand' hearsay representation. 6.191 A 'first-hand' hearsay representation is a representation made by a person who had personal knowledge of the fact he or she intended to assert by the representation: that is, his or her knowledge of that fact was based (or might reasonably be supposed to have been based) on his or 98 her own perception, and not on a representation made by some other person about that fact . 6.192 In the situation where a representation concerns an event, a 'first-hand' hearsay representation is a representation made by a person who witnessed the event. For example, if X saw Y fire a gun at Z, his representation that Y fired the gun at Z is a 'first-hand' hearsay representation: X's knowledge of the fact he or she intended to assert by the representation (that Y fired the gun at Z) was based on his or her own perception, and not on a representation made by some other person about that fact. 6.193 In a Service tribunal proceeding, the exceptions to the hearsay rule for evidence of a 'firsthand' hearsay representation vary depending upon whether or not the person who made the representation is available to give evidence in the proceeding about the fact he or she intended to 99 assert by the representation and, if the person is not available, whether evidence of the representation is adduced by an accused in the proceeding. 6.194 When a person is not available to give evidence about a fact is set out in clause 4 of Part 2 of the Dictionary at the end of the Evidence Act A person is not available to give evidence about a fact if he or she has died, is not competent to give evidence or cannot lawfully give evidence about the fact or, despite all reasonable steps having been taken, cannot be found or cannot be compelled to give evidence. A person is also not available to give evidence about a fact if the Evidence Act prohibits the evidence being given. Evidence of a 'First-hand' Hearsay Representation where the Maker is not Available to give Evidence 6.195 If the person who made the 'first-hand' hearsay representation is not available to give evidence of the fact he or she intended to assert by the representation, there are exceptions to the 100 hearsay rule for evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made if the representation was: a. made under a duty to make that representation or to make representations of that 101 kind ; made when or shortly after the fact the person intended to assert by the representation occurred and in circumstances that make it unlikely that the 102 representation is a fabrication ;
97

b.

97

See paragraph 6.148 for the extended meaning given by the Evidence Act to the word 'representation'. Evidence Act s.62. See paragraph 6.194 for when a person is available to give evidence about a fact. The exceptions do not apply unless reasonable notice in writing to adduce the evidence has been given to each other party to the Service tribunal proceeding (see paragraphs 6.199-6.207). Evidence Act s.65(2)(a). Evidence Act s.65(2)(b).

98

99

100

101

102

ADFP 201 VOLUME 1 628 c. made in circumstances that make it highly probable that the representation is 103 reliable ; or against the interests of the person who made it at the time it was made
104

d.

.
105

for 6.196 In addition to the exceptions set out at paragraph 6.195, there is also an exception evidence of a 'first-hand' hearsay representation made by a person who is not available to give evidence of the fact he or she intended to assert by the representation where the representation was made in the course of giving evidence in an earlier proceeding and the accused in the Service tribunal proceeding cross-examined the person who made the representation in the earlier proceeding, or had 106 a reasonable opportunity to do so . Evidence of the representation need not be given by a person was 'saw, heard or otherwise perceived' the representation being made: it can be given by producing a transcript or recording of the representation authenticated by the person, court or other body to which it was made, (if applicable) the registrar or other proper officer of such a court or body or the person or 107 body responsible for producing the transcript or recording . In a joint trial before a Service tribunal, evidence of the representation made in the earlier proceeding cannot be used against a co-accused who did not cross-examine or have a reasonable opportunity to cross-examine the person who made 108 the representation in the proceeding . 6.197 In addition to the exceptions set out at paragraphs 6.194 and 6.195, there is a further 109 exception where evidence of a 'first-hand' hearsay representation is adduced by an accused . The hearsay rule does not apply to oral evidence of a 'first-hand' hearsay representation adduced by an accused that is given by a person who saw, heard or otherwise perceived the representation being made, or to a document so far as it contains the 'first-hand' hearsay representation or some other representation to which it is reasonably necessary to refer to understand the 'first-hand' hearsay representation. 6.198 If an accused adduces evidence of a 'first-hand' hearsay representation about a matter, the hearsay rule also does not apply to evidence of another representation about the matter adduced by another party that is given by a person who saw, heard or otherwise perceived the representation 110 being made . 6.199 The exceptions to the hearsay rule set out at paragraphs 6.195, 6.196 and 6.197 do not apply to evidence adduced by a party unless that party has given reasonable notice in writing complying with Evidence Act s.67(3) and regulation 5 of the Evidence Regulations (see paragraphs 6.203-6.204) to each other party to the proceeding of his or her intention to do so.

103

Evidence Act s.65(2)(c). Evidence Act s.65(2)(d). A representation is taken to be against the interests of the person who made it if it tends to damage his or her reputation, incriminate him or her or show he or she is liable in an action for damages (see Evidence Act s.65(7). This exception also does not apply unless reasonable notice in writing to adduce evidence that has been given to each other party to the Service tribunal proceeding (see paragraphs 6.199-6.207). Evidence Act s.65(3). An accused is taken to have had a reasonable opportunity to cross-examine the person who made the representation in the earlier proceeding if he or she could reasonably have been present at a time when cross-examination might have been conducted and, if present, could have cross-examined that person (see Evidence Act s.65(5)). Evidence Act s.65(6). Evidence Act s.65(4). Evidence Act s.65(8). This exception also does not apply unless reasonable notice in writing to adduce evidence that has been given to each other party to the Service tribunal proceeding (see paragraphs 6.199-6.207). Evidence Act s.65(9).

104

105

106

107

108

109

110

ADFP 201 VOLUME 1 629 6.200 The requirement that notice in writing of an intention to adduce the evidence should be reasonable applies both to the timing of the notice and the content of the notice. 6.201 Notice must, under Evidence Act s.67(2), be given in accordance with any regulations or rules of court made for the purpose of section 67. 6.202 Evidence Act s.67(3) and regulation 5 of the Evidence Regulations set out the requirements in relation to the content of notices. 6.203 A notice must state: a. the particular provisions of Part 3.2 Division 2 of the Evidence Act on which the notifying party intends to rely in arguing that the hearsay rule does not apply to the evidence, and particulars of the facts on the basis of which it is alleged that the person who made the 'first-hand' hearsay representation referred to in the notice is not available to testify concerning the fact to be proved the representation; the substance of evidence of the 'first-hand' hearsay representation the notifying party intends to adduce and, so far as they are known to the party, the substance of all other relevant representations made by the person who made the 'first-hand' hearsay representation; and so far as they are known to the notifying party, particulars of the date, time, place and circumstances at or in which the 'first-hand' hearsay representation or other relevant representations were made and the names and address of the person by whom and to whom they were made.

b.

c.

6.204 If the notice refers to a 'first-hand' hearsay representation that is in writing, a copy of the document, or a relevant portion of the document, containing the representation must be attached to the notice and the notice must identify the document unless the identity of the document is apparent on the face of a copy of the whole of the document attached to the notice. 6.205 While there is no requirement that a specified period of notice must be given, timeliness of the notice would be relevant to whether reasonable notice in writing has been given. 6.206 The Service tribunal may, on the application of a party, direct that one or more exceptions to the hearsay rule apply to evidence adduced by a party despite a party's failure to give reasonable notice in writing. The direction may be subject to conditions. 6.207 In deciding whether to give a direction, the Service tribunal must take into account a. the extent to which the direction would be likely to add unduly to, or to shorten, the length of the hearing; the extent to which to give the direction would be unfair or to a witness; the importance of evidence of the 'first-hand' hearsay representation; the nature of the proceeding; and the power of the tribunal (if any) to adjourn the hearing or to make another order or 111 give a direction in relation to the evidence .

b. c. d. e.

111

Evidence Act s.192.

ADFP 201 VOLUME 1 630 Evidence of a 'First-hand' Hearsay Representation when the Maker is Available to Give Evidence 6.208 If the person who made the 'first-hand' hearsay representation is available to give evidence of the fact intended to be asserted by the representation, the hearsay rule, with one exception, does not apply to evidence of the representation given by the person (or by someone who saw, heard or otherwise perceived it being made) if, when the representation was made, the occurrence of the fact 112 intended to be asserted by the representation was fresh in the memory of the person who made it . If evidence of the representation is given by a person other than the person who made it, the person who made the representation must be called to give evidence in the Service tribunal proceeding. 6.209 The one exception is that the hearsay rule continues to apply to evidence of a 'first-hand' hearsay representation that was made for the purpose of indicating evidence the person could give in 113 a proceeding, unless the representation concerns the identity of a person, place or thing . Thus, the hearsay rule continues to apply to a witness's proof of evidence, but does not apply to evidence of an identification made by a witness (eg. a statement made by the witness identifying a person during the conduct of an identification parade). 6.210 A document containing a 'first-hand' hearsay representation of a person must not be tendered before the conclusion of the evidence in chief of the person who made the representation, 114 unless the Service tribunal gives leave . MORE REMOTE HEARSAY 6.211 Other exceptions to the hearsay rule apply whether or not the representation was made by a person who had personal knowledge of the fact the person intended to assert by the representation. 6.212 Several of these exceptions provide exceptions for some representations in business 115 records and in documents recording messages transmitted by fax, e-mail, telegram, lettergram or 116 telex . There is also an exception for certificates or other documents given evidentiary effect by 117 regulations made under an Act. 6.213 The hearsay rule does not apply to evidence of a representation made by a person about his or her health, feelings, sensations, intention, knowledge or state of mind at the time he or she made 118 the representation . For example, if a person experiencing pain in his or her chest says 'my chest hurts', his or her statement can be used to prove the existence of pain he or she was experiencing at that time. 6.214 The hearsay rule also does not apply to some evidence of reputation concerning certain relationships and a person's age (see paragraphs 6.215-6.216), and to some evidence of reputation concerning a public right or a general right (see paragraph 6.217).

112

Evidence Act s.66(2). See, in relation to these provisions, the discussion at paras [66.4] and [66.5] of the Evidence Act 1995 (plus commentary) reproduced at page 36 of Volume 2 Part 5 of the Discipline Law Manual concerning its application to evidence of statements made by a witness identifying a person (eg. during the holding of an identification parade) and evidence of complaint where relevant to a fact in issue in a sexual assault trial. Evidence Act s.66(3). Evidence Act s.66(4). Evidence Act ss. 69 and 70. See, in relation to the terms of Evidence Act s.69, paras [69.1] to [69.9] of the commentary reproduced at pages 38 to 39 of Volume 2 Part 5 of the Discipline Law Manual. Evidence Act s.71. Evidence Act s.59(3). Evidence Act s.72.

113

114

115

116

117

118

ADFP 201 VOLUME 1 631 6.215 The hearsay rule does not apply to evidence of reputation that is adduced by an accused concerning a. b. whether a person was married (either at a particular time or any time); whether a man and a woman cohabiting at a particular time were married to each other at that time; a person's age; or family history or family relationship,

c. d.

if the accused has given reasonable notice in writing to each other party of his or her intention to 119 adduce the evidence or it tends to contradict evidence of that kind that has been admitted . 6.216 The hearsay rule also does not apply to evidence of reputation concerning a matter described in paragraph 6.215 that is adduced by the prosecutor if it tends to contradict evidence of 120 that kind that has been admitted . 6.217 The hearsay rule also does not apply to evidence of reputation adduced by an accused concerning the existence, nature or extent of a public right (ie. a right that affects the entire public, for example, whether a road is a public road) or a general right (ie. a right that affects a class of persons, 121 for example, the inhabitants of a particular district) . The hearsay rule also does not apply to evidence of reputation of that kind adduced by the prosecutor if it tends to contradict evidence of that 122 kind that has been admitted . SECTION 6 - OPINION EVIDENCE General: The Opinion Rule 6.218 Another frequently arising exclusionary rule in the law of evidence is the rule relating to opinion evidence. 6.219 Evidence Act s.67 sets out the general exclusionary rule for opinion evidence (described throughout the Act as 'the opinion rule'). Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. 6.220 The effect of the opinion rule is that a witness must give a plain account of the actual perception of his physical senses, devoid of inference, evaluation, interpretation or belief. In general a witness must say what he or she saw and heard and may not say what he or she thought or believed. 6.221 Frequently arising exceptions to the opinion rule include: a. b. lay opinion (paragraphs 6.223-6.225); opinion based on specialised knowledge ('expert opinion evidence')(paragraphs 6.226-6.233).

Other exceptions to the opinion rule include evidence relevant otherwise than as opinion evidence (paragraphs 6.238-6.239).

119

Evidence Act s.73(1) and (2). Evidence Act s.73(3). Evidence Act s.74(1). Evidence Act s.74(2).

120

121

122

ADFP 201 VOLUME 1 632 6.222 Since the commencement of the Evidence Act, opinion evidence is admissible, if it falls within an exception to the opinion rule, on a matter of common knowledge (see paragraph 6.249) or on an ultimate issue in a proceeding (see paragraph 6.250). EXCEPTIONS TO THE OPINION RULE Lay Opinion 6.223 The opinion rule does not apply to evidence of an opinion expressed by a person that is based upon what the person saw, heard or otherwise perceived about a matter or event if evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of 123 the matter or event . 6.224 This exception for lay opinion recognises that a strict application of the opinion rule can disturb ordinary speech patterns by demanding testimony as to 'fact' rather than 'opinion' when very often the difference between the two is of little moment ... [when] ... [i]f a witness is constantly interrupted by objections and requests for reformulations of his testimony in terms of less inferential 124 language, he may well lose his group on what precisely he is saying . 6.225 Frequently, lay opinion may be accepted on matters of measurement (eg. quantity, weight, time, distance, velocity, size) or on 'short-hand' convenient descriptions of events (eg. he took up the stance of a boxer). Other matters on which lay opinion evidence may be admissible include: value, measure, form, age, strength, heat, cold, sickness and health; questions also concerning various mental and moral aspects of humanity such as disposition and temper, anger and fear, excitement, veracity, general character and so on. Opinion Based on Specialised Knowledge ('Expert Opinion Evidence') 6.226 The opinion rule does not apply to evidence of an opinion of a person with specialised knowledge based on his or her training, study or experience if the opinion is wholly or substantially 125 based on that knowledge . In the following paragraphs, such a person is referred to as 'an expert'. 6.227 Such an expert is permitted to give opinion evidence to assist the tribunal to draw the appropriate inference from the facts it finds in the proceeding. 6.228 An expert qualifies to give evidence under this exception to the opinion rule if he or she has 'specialised knowledge based on his or her training, study or experience'. Formal qualifications are unnecessary, relevant training or experience will suffice. 6.229 The specialised knowledge need only be 'based on the person's training, study or experience'. There is no requirement that the knowledge must also relate to a recognised field of expertise, nor to a particular subject matter. 6.230 There is also no requirement under the exception for expert opinion evidence that the opinion be about a matter outside the range of knowledge of the members of the tribunal (see paragraph 6.240). 6.231 The facts on which an opinion of an expert is based will ordinarily concern a matter or event that is admitted or is in issue in the tribunal proceeding. For example, in a court-martial arising out of the grounding of a naval vessel, an expert may give opinion evidence concerning navigational procedures appropriate to the weather conditions that existed when the vessel was grounded. If the

123

Evidence Act s.78. Australian Law Reform Commission, Evidence (Interim Report, No. 26 of 1985), volume 1, p.193 at paragraph 351. Evidence Act s.79.

124

125

ADFP 201 VOLUME 1 633 expert's opinion was based on weather conditions different to those that existed at that time, evidence 126 of the expert's opinion will be irrelevant and, therefore, not admissible in the proceeding . 6.232 Occasionally, the expert's knowledge (such as data published by other experts) that he or she uses to draw an inference from facts concerning a matter or event at issue in a proceeding may be challenged. Thus that knowledge may itself be raised as an issue in the proceeding. Ordinarily evidence is not required of such knowledge. However, if it becomes an issue in a proceeding (for example, if the published data which the expert has used to draw an inference is challenged, say, as a matter of debate within the relevant scientific or academic community), evidence of the expert's opinion that is based on that knowledge runs the risk of exclusion under Evidence Act s.135 if evidence of the knowledge is not given in the proceeding, or is only given by the expert whose opinion evidence has been adduced (rather than by, in the example given, the other experts whose published 127 data has been challenged) . 6.233 A Service tribunal is not bound to accept the evidence of an expert even if it is 128 uncontradicted . However, because such evidence may have some probative value, the tribunal 129 must not disregard it totally in determining questions of fact . Where there is conflicting evidence given by such persons who have been called on behalf of the prosecution and the defence, the court must decide the weight to be attached to each version of the evidence whilst bearing in mind that such witnesses often have a tendency to espouse the cause of the party by whom they are called. Evidence of Expert Opinion Evidence by Certificate 6.234 Evidence of an expert opinion can be adduced by tender of a certificate signed by an expert which sets out his or her opinion. 6.235 The procedure, set out in Evidence Act s.177, provides a means by which unchallenged expert opinion may be adduced without the need to call the expert as a witness in the proceeding. The party tendering the certificate must have first served on each other party written notice and a copy of 130 the certificate : a party so served may by written notice require the party intending to tender the 131 certificate to call the expert to give evidence in the proceeding . The certificate is not admissible as 132 evidence if such a requirement is made . Operation of the Exception for Expert Opinion Evidence in Cases of Intoxication 6.236 It is likely that the exception to the opinion rule for expert opinion evidence will enable opinion evidence about a person's sobriety to be given by a person with experience of observing

126

Evidence Act s.56(2). Section 135 enables a service tribunal to exclude evidence 'if its probative value is substantially outweighed by the danger that the evidence might ... be unfairly prejudicial to a party ... or cause or result in undue waste of time'. The evidence may be unfairly prejudicial to a party, or may cause or result in undue waste of time, if it is necessary for the tribunal to determine the probability of the existence of a fact upon which the opinion evidence is based in circumstances where either no evidence of the fact is called or such evidence as there is before the tribunal cannot be tested upon cross-examination. Exclusion of the opinion evidence in these circumstances should not be automatic, but should be considered by the tribunal on a case-by-case basis taking into account, with other relevant matters, the reasonableness of requiring a party to call further evidence in the proceeding. Minister v Ryan (1963) 9 LGRA 112. Anderson v The Queen [1972] A.C. 100. Evidence Act s.177(2). A 21 day time period, capable of being abridged by the tribunal, applies: Evidence Act s.177(3). Evidence Act s.177(5). Evidence Act s.177(6).

127

128

129

130

131

132

ADFP 201 VOLUME 1 634 others under the influence of intoxicating liquor. However, the evidence of such a person would only extend to the fact of intoxication, not to whether the person was 'under the influence ... to such an 133 extent as to be incapable of having proper control of [a] vehicle' or his or her 'faculties [were] ... so 134 impaired that [he or she was] unfit to be entrusted with [his or her] duty' . 6.237 In relation to the issue of intoxication, blood tests and breathalyser readings are not of themselves evidence of drunkenness or intoxication but may be given in evidence in cases of prosecutions for the particular statutory offences in respect of which such tests or readings are accorded the evidentiary effect of a statutory presumption, eg. driving a vehicle whilst having a percentage of alcohol in the blood equal to or in excess of the prescribed statutory percentage. Coupled with expert evidence about the reliability of the tests or readings and about the nature and relevance of the evidence so obtained to the issue of the intoxication, evidence of those tests or 135 readings may become admissible on the issue of intoxication. Evidence Relevant Otherwise than as Opinion Evidence 6.238 The opinion rule does not apply to evidence of an opinion that is admitted other than to prove 136 the existence of a fact about the existence of which the opinion was expressed . 6.239 Under this exception evidence of the opinion may be used to prove a fact asserted by the opinion if evidence of the opinion is admitted because it is relevant for another purpose. If, for example, the expression of an opinion is a fact in issue because it is relevant to an accused's state of knowledge (where, for example, in a prosecution for an offence against DFDA s.34(3) for negligent operation of a weapon, evidence is given by a weapons technician that he or she had informed the accused that the weapon would perform as predicted under stated conditions), evidence of the opinion may be used to prove a fact asserted by the opinion (eg. that the weapon would perform as predicted under those conditions). Opinion Evidence on a Matter of Common Knowledge 6.240 Under Evidence Act s.80, evidence of an opinion is not inadmissible only because it is about a matter of common knowledge. Thus, it is not necessary that the topic upon which an expert witness proposes to give opinion evidence is one outside the range of knowledge of members of the tribunal. Opinion Evidence on an Ultimate Issue in a Proceeding 6.241 Evidence Act s.80 also provides that evidence of an opinion is not inadmissible only because it is about a fact in issue or an ultimate issue. Thus, an expert may be asked a question about an issue that the tribunal itself must decide (eg. in a prosecution for an offence against DFDA s.32 for being drunk on watch, in which the person charged is 'deemed to be drunk if ... [his or her] faculties are so impaired that [he or she] is unfit to be entrusted with [his or her] duty or with any duty [he or she] may be called upon to perform', an expert may give an opinion about the accused's fitness for duty, as defined, even though this is a question which must be determined by the tribunal). Opinion Evidence in Certain Official Documents 6.242 Evidence of an admission is not inadmissible where the opinion is contained in a certificate 137 or other document given evidentiary effect by regulations made under an Act.

133

DFDA s.40. DFDA s.37. See also paragraph 6.241 in relation to expert opinion evidence on an ultimate issue in a proceeding. See Smith v Maddison (1967) V.R. 309, 310, Heywood v Robinson (1975) V.R. 562 and Wright v Bastin (No. 2) [1979] V.R. 329. Evidence Act s.77.

134

135

136

ADFP 201 VOLUME 1 635 SECTION 7 - CHARACTER EVIDENCE General 6.243 For convenience, character evidence is first discussed in relation to evidence concerning the character of an accused in a Service tribunal proceeding (see paragraphs 6.251-6.276). 6.244 Most of the rules that apply to an accused also apply in relation to evidence of the character of other persons (eg. witnesses in the proceeding, the victim of the alleged offence). The differences, where character is relevant to a fact in issue in the proceeding, are set out in paragraph 6.278. 6.245 The rules that apply to character evidence depend upon the use to which the evidence is sought to be put in the proceeding. 6.246 This Section of the Chapter discusses the rules that apply when evidence of the character of a person is relevant to a fact in issue in the Service tribunal proceeding. 6.247 If the only use to which the evidence can be put is to discredit evidence a witness has given in the proceeding, then the rules in Evidence Act Part 3.7 apply. Those rules are discussed in the context of rules that apply in relation to the cross-examination of witnesses in Section 11 of this Chapter (see paragraphs 6.359-6.379). 6.248 If, however, character evidence is relevant to a fact in issue in the proceeding, one or both of Parts 3.6 or 3.8 of the Evidence Act apply. 6.249 Evidence Act Part 3.6 applies when evidence of a person's character is relevant to a fact in 138 issue because the evidence is to be used for a tendency reasoning or a coincidence reasoning 139 purpose . The rules are discussed at paragraphs 6.253-6.263, and paragraphs 6.264-6.272, respectively. 6.250 Special rules, contained in Evidence Act Part 3.8, apply when the accused adduces evidence of his or her own good character. These are discussed at paragraphs 6.273-6.276. EVIDENCE OF AN ACCUSED'S CHARACTER, REPUTATION OR PAST CONDUCT THAT IS RELEVANT TO A FACT IN ISSUE General 6.251 Except where an accused puts his or her own good character in issue (see paragraphs 6.272 - 6.275), it is not permissible for evidence to be adduced that tends to show the accused is a person of bad character or reputation for the purpose of leading to the conclusion that he or she is a person likely to have committed the offence with which he or she has been charged. 6.252 However, the prosecution, or another accused in a proceeding, may adduce evidence of the 140 accused's character to seek to establish a fact an issue in a proceeding by either a process of

137

Evidence Act s.76(2). Tendency reasoning is a process of inferring that a person did a particular act or had a particular state of mind from evidence that he or she has or had a tendency to act in a particular way. Evidence of such a tendency will vary from case to case, but may be in the form of evidence of past conduct of the person, or of his or her character or reputation. Coincidence reasoning is a process of inferring that a person did a particular act or had a particular state of mind from the improbability that 2 or more events of a similar kind occurred coincidentally. The evidence may be direct evidence of the accused's character or reputation, evidence of his or her past conduct (including the accused's past criminal acts or convictions) or evidence of a tendency the accused has or had to act in a particular way or to have a particular state of mind.

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ADFP 201 VOLUME 1 636 tendency reasoning (see paragraphs 6.253-6.263) or coincidence reasoning (see paragraphs 6.2646.272). Tendency Reasoning 6.253 Tendency reasoning is the process of inferring that a person did a particular act or had a particular state of mind from evidence that he or she has or had a tendency to act in a particular way or to have a particular state of mind. The tendency of a person to act in a particular way or to have a particular state of mind may be established either by the past conduct of the person (eg. a tendency to carry out threats of violence may be proved by evidence of past occasions on which the person has occasioned threatened violence) or by evidence of character or reputation (that the person is a violent person, or has a reputation for violence). 6.254 Tendency may not necessarily relate to a tendency to act in some criminal or morally reprehensible way. Habit, and standard business or work practices, are also instances of a tendency to act in a particular way. One example of tendency reasoning is inferring that a person went to work by a particular route on a particular occasion from evidence that he or she regularly went to work by that route. 6.255 Special rules for the admission of tendency evidence are contained in Evidence Act Part 3.6.

6.256 Tendency evidence is evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, that a party seeks to have adduced to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind. 6.257 The special rules in Part 3.6 do not apply if the character, reputation, conduct or tendency of 141 a person is a fact in issue in the proceeding . If, however, the evidence is admissible for some other purpose (for example, if the evidence of conduct etc. is both a fact in issue and a fact from which other facts may be inferred by tendency reasoning) it cannot be used for a tendency reasoning purpose 142 unless the special rules in Part 3.6 have been satisfied . 6.258 The special rules in Part 3.6 do not apply to expert opinion evidence about an accused 143 adduced by a co-accused in a proceeding , or to evidence adduced to prove that such evidence 144 should not be accepted . 6.259 The special rules in Part 3.6 that must be satisfied are: a. reasonable notice in writing complying with subregulation 6 of the Evidence Regulations (see paragraph 6.263) must be given by the party intending to adduce the evidence to each other party to the proceeding of his or her intention to do so (but see 145 paragraphs 6.260-6.262) ;

141

Evidence Act s.94(3). For example, in a civil context, the rules in Part 3.6 do not apply to evidence of the reputation of the plaintiff in defamation proceedings. Evidence Act s.95. Evidence Act s.111(1). An example, in a common law context, of evidence to which s.111(1) applies is the evidence of the psychologist adduced by the co-accused King about the character of co-accused Lowery in Lowery v. R [1974] AC 85. Evidence Act s.111(2). Evidence Act ss. 97(1)(a) and 99.

142

143

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145

ADFP 201 VOLUME 1 637 b. the evidence must have significant probative value , either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence; and if the evidence is about an accused and is adduced by the prosecution other than to explain or contradict tendency evidence adduced by the accused, the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the 147 accused .
146

c.

6.260 The Service tribunal may, on the application of a party, direct that particular evidence is 148 admissible despite a party's failure to give reasonable notice in writing . The direction may be subject to conditions and may be given at or before the hearing of the proceeding. The application may be made by a party either before or after the time by which the party would be required to give, or have given, notice. 6.261 In deciding whether to give a direction, the Service tribunal must take into account: a. the extent to which to give the direction would be likely to add unduly to, or to shorten, the length of the hearing; to extent to which to give the direction would be unfair to a party or to a witness; the importance of the tendency evidence; the nature of the proceeding; any power of the tribunal to adjourn the hearing or to make another order or give a 149 direction in relation to the evidence .

b. c. d. e.

6.262 Reasonable notice in writing is not required if the tendency evidence is adduced to explain or 150 contradict tendency evidence adduced by another party . 6.263 The requirement that notice in writing of an intention to adduce tendency evidence should be reasonable applies both to the timing of the notice and the content of the notice. Under Evidence Act s.99, notice must be given in accordance with any regulations or rules of court made for the purposes of that section. Subregulation 6(1) of the Evidence Regulations sets out requirements in relation to the 151 content of notices . While no requirements relating to the period of notice which must be given are set out, timeliness of the notice would be relevant to determine whether reasonable notice in writing has been given. Coincidence Reasoning 6.264 Coincidence reasoning is the process of inferring that a person did a particular act or had a particular state of mind from the improbability that certain events occurred coincidentally.

146

Evidence Act s.97(1)(b). Evidence Act s.101. Evidence Act ss. 97(2)(a) and 100(1). Evidence Act s.192. Evidence Act s.97(2)(b). A notice must state the substance of the evidence the notifying party intends to adduce and, if the evidence consists of or includes evidence of the conduct of a person, particulars of other information (the date, time, place and circumstances at or in which the conduct occurred and the names and addresses of persons who witnessed it) so far as they are known to the party.

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ADFP 201 VOLUME 1 638 6.265 Coincidence evidence for the purposes of the Evidence Act is 'similar fact' evidence (that is, evidence of the occurrence of 2 or more events that are 'substantially and relevantly similar ... [occurring in] circumstances [that] ... are substantially similar') that is adduced for a coincidence reasoning purpose. The Act does not impose special requirements in relation to evidence other than similar fact evidence that is adduced for a coincidence reasoning purpose. 6.266 An example, in a common law context, of coincidence evidence that is adduced for a coincidence reasoning purpose is the famous 'baby-farming' case: Makin v Attorney-General for New 152 South Wales . In Makin, the accused husband and wife were charged with the murder of a child given to them for adoption for a fee. The child's body had been found buried in the garden of a house which the accused occupied. The defence was that the child had died from natural causes. Evidence was admitted that 12 other children had been given to the accused on like terms for adoption and that their corpses had been found in the gardens of other houses they occupied. The finding of the 13 corpses in the grounds of houses occupied by the accused gave rise to an inference that their connection with the corpses was not coincidental. 6.267 Special rules for admission of coincidence evidence adduced for a coincidence reasoning purpose are contained in Evidence Act Part 3.6. 6.268 The special rules that must be satisfied are: a. reasonable notice in writing complying with subregulation 6(1) of the Evidence Regulations (see paragraph 6.272) must be given by the party intending to adduce the evidence to each other party to the proceeding of his or her intention to do so (but see 153 paragraphs 6.269-6.271) ; the evidence must have, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, significant probative 154 value ; and if the evidence is about an accused and is adduced by the prosecution other than to explain or contradict coincidence evidence adduced by the accused, the probative value of the evidence must substantially outweigh any prejudicial effect it may have on 155 the accused . of a party, direct that particular coincidence 156 reasonable notice in writing . The direction before the hearing of the proceedings. The after the time by which the party would be

b.

c.

6.269 The Service tribunal may, on the application evidence is admissible despite a party's failure to give may be subject to conditions and may be given at or application may be made by a party either before or required to give, or have given, notice. 6.270

In deciding whether to give a direction, the Service tribunal must take into account: a. the extent to which to give the direction would be likely to add unduly to, or to shorten, the length of the hearing; to extent to which to give the direction would be unfair to a party or to a witness; the importance of the coincidence evidence;

b. c.

152

[1894] AC 56. Evidence Act ss. 98(1)(a) and 99. Evidence Act ss.98(1)(b). Evidence Act s.101. Evidence Act ss.98(3)(a) and 100(2).

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156

ADFP 201 VOLUME 1 639 d. e. the nature of the proceeding; any power of the tribunal to adjourn the hearing or to make another order or give a 157 direction in relation to the evidence .

6.271 Reasonable notice in writing is not required if the coincidence evidence is adduced to explain 158 or contradict coincidence evidence adduced by another party . 6.272 The requirement that notice in writing of an intention to adduce coincidence evidence should be reasonable applies both to the timing of the notice and the content of the notice. Under Evidence Act s.99 notice must be given in accordance with any regulations or rules of court made for the purpose of that section. Subregulation 6(2) of the Evidence Regulations sets out requirements in 159 relation to the content of notices . While no requirements relating to the period of notice which must be given are set out, timeliness of the notice would be relevant to determine whether reasonable notice in writing has been given. Character Evidence to Rebut Evidence of Good Character Adduced by an Accused 6.273 Special rules, contained in Evidence Act Part 3.8, apply when an accused adduces evidence of his or her own good character. 6.274 Other exclusionary rules set out in the Evidence Act (including the hearsay rule and the opinion rule) do no apply to evidence adduced by an accused to prove, either generally or in a 160 particular respect, that he or she is a person of good character . An accused may adduce evidence of this kind with a view to persuading the tribunal that as a person of good character, he or she is unlikely to have committed the offence with which he or she has been charged in the proceedings. 6.275 Where an accused has adduced evidence to prove he or she is a person of good character, 161 evidence to rebut such evidence is admissible . Rebuttal evidence is only admissible to the extent that the accused has adduced evidence of his or her own good character: if the accused has adduced evidence of his or her character only in a particular respect then only evidence limited to that respect 162 is admissible in rebuttal . 6.276 Evidence Act Part 3.8, therefore, allows an accused to put part only of his or her character in issue. For example, an accused who may have a reputation for dishonesty may put his good character in issue in relation to 'never having acted indecently to a woman' without putting his character 163 generally in issue .

157

Evidence Act s.192. Evidence Act ss.98(3)(b). A notice must state the substance of the evidence of the occurrence of the events the notifying party intends to adduce and particulars of other information (the date, time, place and circumstances at or in which each event occurred and the names and addresses of persons who witnessed each event) so far as they are known to the party. Evidence Act s.110(1). Evidence Act s.110(2). Evidence Act s.110(3). In this respect, Part 3.8 reverses the rule in R v Winfield (1939) 27 Cr App Rep 139 that a person cannot 'put half of his or her character in issue'.

158

159

160

161

162

163

ADFP 201 VOLUME 1 640 EVIDENCE OF THE CHARACTER, REPUTATION OR PAST CONDUCT OF OTHER PERSONS (EG OTHER WITNESSES, THE VICTIM OF AN ALLEGED OFFENCE) THAT IS RELEVANT TO A FACT IN ISSUE General 6.277 Occasionally, the character of a person other than an accused may be relevant to a fact in issue in a proceeding because it is to be used for a tendency reasoning or a coincidence reasoning 164 purpose . For example, the issue of self-defence may be raised by the accused, who may wish to adduce evidence of the past conduct of the victim, or someone else, to prove a tendency of the victim or that other person to act in a violent way. 6.278 The rules in relation to the admission of tendency evidence and also coincidence evidence about a person other than the accused are the same as for an accused (that is, as set out in paragraphs 6.253-6.272) except that the requirements set out at paragraph 6.259(c) for tendency evidence and at paragraph 6.268(c) for coincidence evidence will not apply to evidence about a person other than an accused. Evidence (Including Tendency Evidence) of Sexual Reputation of a Complainant in Sexual Assault Cases 6.279 In ACT courts (and, hence, before Service tribunals) in proceedings relating to sexual offences, evidence (including tendency evidence) concerning the sexual reputation of the complainant is inadmissible. No evidence may be adduced without the leave of the judge (or judge advocate) of the sexual experience of the complainant with a person other than the accused. Moreover, the judge (or judge advocate) may not grant leave for any evidence to be adduced or any question to be asked of the complainant in connection with his or her sexual experience with persons other than the accused unless: an application for leave is made to the judge advocate in the absence of the court; and, the judge advocate is satisfied that a refusal to allow the evidence to be adduced or the question to be 165 asked would prejudice the fair trial of the accused person . SECTION 8 - IDENTIFICATION EVIDENCE General 6.280 Evidence Act Part 3.9 contains special rules about the admissibility of visual identification evidence relating to an accused adduced by the prosecution. Visual identification evidence adduced by the prosecution 6.281 Under Evidence Act s.114 evidence adduced by the prosecution of an assertion made by a person that: a. the accused was, or resembles a person who was, present at or near a place where the offence was committed or an act connected with the offence was done at or about the time that the offence was committed or the act was done; and is based wholly or partly on what the person saw at that place and time; and is not 'picture identification evidence' (see paragraph 6.284),

b. c.

is not admissible unless:

164

See paragraphs 6.253-6.254 and 6.264-6.266 for what is meant, respectively, by a tendency reasoning process or a coincidence reasoning process. s.76G(1), G(2), G(3) of the (ACT) Evidence Act 1971.

165

ADFP 201 VOLUME 1 641 d. an identification parade that included the accused was made before the assertion was made; or it would not have been reasonable to have held such a parade; or the accused refused to take part in such a parade;

e. f.

and the assertion was made without the person having been intentionally influenced to identify the accused. 6.282 In deciding whether it was reasonable to hold an identification parade, the Service tribunal must take into account: a. b. c. the kind and gravity of the offence; the importance of the evidence; the practicality of holding an identification parade having regard, among other things, to the manner and extent of and reason (if any) for any failure to cooperate in the conduct of the parade, and to whether the assertion was made at or about the time of the commission of the offence (eg. if the witness happened to encounter and recognise the accused soon after the offence was committed); and the appropriateness of holding an identification parade having regard, among other things, to any relationship between the accused and the person who made the assertion (eg. it would be inappropriate to hold an identification parade if the accused was well-known to the witness);

d.

but must not take into account the availability of pictures or photographs that could be used in making 166 identifications . 6.283 if: It is presumed that it would not have been reasonable to have held an identification parade
167

a. b.

it would have been unfair to the accused to have held such a parade

if the accused refused to take part in a parade unless a lawyer acting for him or her or some other person was present and there were reasonable grounds to believe it was 168 not reasonably practicable for such a lawyer or person to be present .

Picture Identification Evidence Adduced by the Prosecution 6.284 Evidence Act s.115 provides three exclusionary rules for evidence adduced by the prosecution of an assertion made by a person that: a. the accused was, or resembles a person who was, present at or near a place where the offence was committed or an act connected with the offence was done at or about the time that the offence was committed or the act was done; and is based wholly or partly on what the person saw at that time and place; was made wholly or partly by the person examining pictures or photographs kept for 169 the use of police officers .

b. c.

166

Evidence Act ss. 114(3) and (6). Evidence Act ss.114(4). Evidence Act s.114(5).

167

168

ADFP 201 VOLUME 1 642 Such evidence is referred to in the Act as 'picture identification evidence'. 6.285 None of the three exclusionary rules apply to evidence adduced by the prosecution to contradict or qualify picture identification evidence adduced by the accused. 6.286 The first exclusionary rule is that picture identification evidence adduced by the prosecution is not admissible unless the pictures or photographs examined did not suggest that they were pictures 170 or photographs of persons in police custody . 6.287 The second exclusionary rule is that picture identification evidence adduced by the prosecution is not admissible if the accused was in the custody of an officer of the police force investigating the commission of the offence with which the accused has been charged and the picture of the accused was made or the photographs of the accused was taken before the accused was taken 171 into that custody . The rule does not apply if the accused's appearance had changed significantly between the time the offence was committed and the time the accused was taken into that custody or if it was not reasonably practicable to make a picture or take a photograph of the accused after he or 172 she was taken into that custody . 6.288 The third exclusionary rule is that picture identification evidence adduced by the prosecution is not admissible if the accused was in the custody of an officer of the police force investigating the commission of the offence with which the accused has been charged when the pictures or photographs were examined unless a. b. the accused refused to take part in an identification parade; or the accused's appearance had changed significantly between the time the offence was committed and the time the accused was taken into that custody; or it would not have been reasonable to have held an identification parade that included 173 the accused .

c.

6.289 This rule ensures that where an accused is in custody at the time pictures or photographs are examined, an identification parade (rather than examination of pictures or photographs) should be the primary means of obtaining visual identification evidence relating to an accused. SECTION 9 - IMPROPERLY OR ILLEGALLY OBTAINED EVIDENCE General 6.290 A Service tribunal is in certain circumstances prohibited from admitting improperly or unlawfully obtained evidence, and evidence obtained in consequence of an impropriety or a breach of the law. 6.291 The prohibition in respect of improperly obtained evidence, and evidence obtained in consequence of an impropriety, arises under Evidence Act s.138.

169

Police officer is defined in the Dictionary at the end of the Act as a member of the Australian Federal Police or a member of the police force of a State or Territory, it does not include Service police officers. Evidence Act s.115(2). Evidence Act s.115(3). Evidence Act s.115(4). Evidence Act s.115(5). See paragraphs 6.282-6.283 in relation to whether it would have been reasonable to have held an identification parade that included the accused.

170

171

172

173

ADFP 201 VOLUME 1 643 6.292 The prohibition in respect of unlawfully obtained evidence, and evidence obtained in consequence of a breach of the law, arises both under Evidence Act s.138 and, in cases where a provision of Part VI of the DFDA has been contravened, DFDA s.101ZB. While not completely free from doubt, it is likely that, in the case of evidence obtained in (or in consequence of) a contravention of a provision of DFDA Part VI, both Evidence Act s.138 and DFDA s.101ZB will apply to the evidence. Evidence Obtained Improperly or Unlawfully (Except in Contravention of a Provision of DFDA Part VI) 6.293 Evidence Act s.138(1) provides that evidence obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or in contravention of an Australian law, is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in the particular way it was obtained. 6.294 Once evidence is shown to have been obtained improperly or unlawfully, or in consequence of an impropriety or breach of the law, the onus is on the party seeking to have the evidence admitted to satisfy the Service tribunal that the evidence should be admitted. 6.295 Evidence Act ss 138(2) and 139 set out several occasions when evidence is, for the purpose of s.138(1), taken to have been obtained improperly. 6.296 Under Evidence Act s.138(2) an admission made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning a. did or failed to do an act in the course of questioning which he or she knew, or ought to have known, was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or made a false statement in the course of questioning which he or she knew, or ought to have known, was false and likely to cause the person being questioned to make an 174 admission .

b.

6.297 Under Evidence Act s.139, evidence of a statement made or act done by a person during questioning by an investigating official is in certain circumstances taken to have been obtained improperly if the person was not cautioned. Section 139 may on occasions apply in a Service tribunal proceeding if evidence is adduced of a statement made or act done by a Service member (or some other person) during questioning by a member of the Australian Federal Police or a State or Territory police force, or an officer of a government agency, in connection with the investigation of an 175 offence . 6.298 In determining, for the purpose of the Evidence Act s.138(1), whether the desirability of admitting improperly or unlawfully obtained evidence outweighs the undesirability of admitting such evidence, the Service tribunal must take into account the probative value of the evidence, its importance in the proceeding, the nature of the Service offence with which the accused has been charged, the gravity of the impropriety or contravention of law, whether it was deliberate or reckless or contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, whether any other proceeding is likely to be taken in relation to it and the difficulty 176 (if any) of obtaining the evidence without the impropriety or contravention .

174

Evidence Act s.138(2). See paragraphs [139.1] to [139.7] of the Evidence Act 1995 (plus commentary) reproduced at page 77 of Volume 2 Part 5 of the Discipline Law Manual. Evidence Act s.138(3).

175

176

ADFP 201 VOLUME 1 644 Evidence obtained in contravention of a provision of DFDA Part VI 6.299 While not completely free from doubt, it is likely that both Evidence Act s.138 and DFDA s.101ZB will apply to evidence obtained in contravention of a provision of DFDA Part VI or in consequence of such a contravention of Part VI. DFDA s.101ZB(1) provides as follows:

Exclusion of evidence illegally obtained 101ZB. (1) Where, in proceedings before a service tribunal in respect of a service offence, upon objection being taken to the admission of evidence on the ground that the evidence was obtained in contravention of, or in consequence of a contravention of, a provision of [Part VI of the DFDA], the service tribunal or, in the case of a court martial, the judge advocate of the court-martial, is satisfied, on the balance of probabilities, but having regard to any provision of this Act or the regulations relating to proof of particular matters, that the evidence was so obtained, the service tribunal or judge advocate shall not admit the evidence unless the service tribunal or judge advocate, as the case may be, is of the opinion that: (a) (b) admission of the evidence would substantially benefit the public interest in the administration of justice; and this benefit would outweigh any prejudice to the rights and freedoms of any person, including the accused person, that has occurred, or is likely to occur, as a result of the contravention or the admission of the evidence'.

6.300 Therefore if, for example, evidence was obtained in or in consequence of a contravention of DFDA Part VI (eg. if the accused made an admission during questioning by a Service police officer when the accused had not been cautioned in circumstances in which the Service police officer was obliged to have done so under DFDA s.101D), the Service tribunal must consider whether either of Evidence Act s.138(1) or DFDA s.101ZB requires it not to admit the evidence. 6.301 There is a difference in emphasis between the two tests in DFDA s.101ZB and Evidence Act s.138. Under s.101ZB(1) the tribunal must be satisfied that the admission of the evidence 'would substantially benefit the public interest in the administration of justice': under s.138 the tribunal must consider the admission of the evidence to be desirable, albeit to such an extent that it outweighs 'the undesirability of admitting [the] evidence'. The former provision also specifically requires the tribunal to consider any prejudice resulting from admission of the unlawfully obtained evidence in the proceeding on persons other than the accused. 6.302 At a procedural level, DFDA s.101ZB, but not Evidence Act s.138(1), requires an objection to be taken to the admission of the evidence. If it becomes apparent during the course of a proceeding that evidence has been obtained in or in contravention of a provision of DFDA Part VI, the tribunal must consider whether Evidence Act s.138(1) requires it not to admit the evidence, whether or not a party has formally objected to the evidence. In practice, it is likely in most cases that once a tribunal has drawn to attention its obligation to consider whether particular evidence is required not to be admitted under s.138, an objection will be made under s.101ZB. SECTION 10 - DISCRETIONARY EXCLUSION OF EVIDENCE General 6.303 Even if the admissibility rules under the Evidence Act (that is, those set out in paragraphs 6.133-6.302 and 6.359-6.379) have been satisfied in relation to a particular item of evidence, the Service tribunal may refuse to admit the evidence in the proceeding. 6.304 The power to do so arises under three separate provisions of the Evidence Act.

6.305 The first is section 135 of the Evidence Act, which applies irrespective of the party that adduced the evidence in the proceeding.

ADFP 201 VOLUME 1 645 6.306 The second and third provisions are sections 90 and 137 of the Evidence Act. They apply to 177 evidence adduced by the prosecution. Section 90 applies to evidence of an admission adduced by the prosecution in a proceeding, while section 137 applies to any evidence adduced by the prosecution. General Discretion: Section 135 of the Evidence Act 6.307 Under Evidence Act s.135, a Service tribunal may refuse to admit a particular item of evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, misleading or confusing, or cause or result in undue waste of time. 6.308 Section 135 is part of the Evidence Act's treatment of the issue of relevance . The effect of 179 the relevance rule, and more particularly the test of relevance in section 55 of the Act , is to provide that all logically relevant evidence is admissible in a proceeding. 6.309 The power to refuse to admit evidence that might unfairly prejudice a party enables a court, and therefore a Service tribunal, to exclude from a proceeding evidence that, because 'it appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish or triggers other 180 mainsprings of human action' , may cause the tribunal to make its decision on a basis unconnected to the issues in a case. This power would seldom arise in relation to evidence adduced by the prosecution, because Evidence Act s.137 requires a tribunal to exclude such evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant (see paragraph 6.317). 6.310 One occasion when the possible exercise of the power to refuse to admit evidence that might be misleading or confusing may arise is when evidence is adduced that, while logically relevant, may be given much more significance by the tribunal than it deserves (eg. evidence, in the prosecution of a member under DFDA s.35 for negligently performing a duty, of remedial measures taken by the member following the incident in relation to which he or she has been charged). 6.311 The power to refuse to admit evidence that might cause or result in undue waste of time 181 enables a tribunal to refuse to admit marginally relevant evidence . 6.312 The onus is on the party seeking exclusion of the evidence under Evidence Act s.135 to show that the danger the evidence might be unfairly prejudicial to a party etc. substantially outweighs the probative value of the evidence. 6.313 A Service tribunal may limit the use to be made of evidence if there is a danger that a 182 particular use may be unfairly prejudicial to a party, or misleading or confusing . Discretion to Exclude Prosecution Evidence of an Admission: Section 90 of the Evidence Act 6.314 Under Evidence Act s.90, a Service tribunal may refuse to admit evidence of an admission adduced by the prosecution, or refuse to admit it to prove a particular fact, if having regard to the circumstances in which it was made it would be unfair to an accused to use the evidence.
178

177

See paragraphs 6.171-6.172 in relation to the meaning given to the term 'admission' for the purposes of the Evidence Act. See paragraphs [135.1] to [135.9] of the Evidence Act 1995 (plus commentary) reproduced at page 74 of Volume 2 Part 5 of the Discipline Law Manual. For discussion of the relevance rule, see paragraphs 6.133-6.139. Australian Law Reform Commission, Evidence (Interim Report, No. 26 of 1985), volume 1, page 352 at paragraph 644. See paragraphs 6.138-6.139. Evidence Act s.136.

178

179

180

181

182

ADFP 201 VOLUME 1 646 6.315 Unlike the situation when the tribunal is looking at an admission which has been improperly obtained (see paragraphs 6.293-6.298), exclusion on this ground focuses upon the effect of use of the evidence upon a particular accused, rather than upon the desirability (or otherwise) of admitting the evidence. 6.316 The particular circumstances in which an admission was made may be, of course, both improper and result in unfairness to an accused: evidence of an admission may be at risk of exclusion on either ground. Brennan J (as he then was) in Duke v. The Queen (1988) 63 ALJR at 141 gave '...[t]rickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, crossexamination going beyond clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification' as examples of conduct that might justify exclusion of evidence under the common-law equivalents of either ground. Exclusion of Prejudicial Evidence Adduced by the Prosecution: Section 137 of the Evidence Act 6.317 Under Evidence Act s.137, a Service tribunal must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. This requirement, which reflects a trial judge's discretion under the common law to reject prosecution evidence that is more prejudicial than probative, protects an accused from evidence that is logically relevant and otherwise admissible: evidence which may be misused by a jury or may give rise to bias against an accused (eg. prosecution evidence of particularly graphic photographs of the deceased in a murder trial, which might influence the jury against an accused). The requirement applies not only to prosecution evidence of an admission, but to all evidence adduced by the prosecutor in a Service tribunal proceeding. SECTION 11 - EXAMINATION OF WITNESSES Preliminary Matters 6.318 The procedure at a criminal trial involves the elucidation of facts by means of questions put by parties or their representatives to witnesses summoned to give evidence. In general outline, the procedure for receiving evidence is that each witness is subjected to examination-in-chief by the party who has called that witness and then to cross-examination by the opposing party. The witness may then be re-examined by the first party about matters arising out of evidence the witness gave in crossexamination and, by leave of the Service tribunal, other questions may be put to the witness on reexamination. Witness to be Sworn 6.319 Every witness must be sworn or affirmed, except a person who is incapable of understanding that in giving evidence he or she is under an obligation to give truthful evidence. Such a person may 183 give unsworn evidence in some situations . Also, a person who has been summoned to produce documents may be permitted to hand over the documents to the court without being sworn - unless a party wishes to place evidence on the court record in relation to those documents, in which case he or she may insist that the person be sworn. Order of Witnesses 6.320 Witnesses may be called in any order except that when an accused is to give evidence he or 184 she should be called before any other defence witness. In practice, witnesses remain out of court until called to give evidence, so that each witness may be examined out of the hearing of the other witnesses on the same side who are to be later examined. Experts may be permitted to remain in

183

Evidence Act s.13(2) and paragraphs 6.47 - 6.48. R v Smith (Joan) [1968] 1 W.L.R. 636; also see Item 45 of Appendix 2 to Chapter 9.

184

ADFP 201 VOLUME 1 647 court before giving evidence evidence.

185

, especially if they are required to comment on matters already given in

6.321 Before discussing in detail the examination of witnesses, it is necessary to consider the important rules relating to the reviving of memory by a witness before or during the trial. Reviving Memory 6.322 A witness may use a document to try to revive his or her memory before giving evidence or, if the Service tribunal gives leave, in the course of giving evidence. 6.323 If a witness has used a document (or a thing) to try to revive his or her memory otherwise than while giving evidence, the Service tribunal may, at the request of a party, direct that the 186 document (or thing) be produced to the party . If the direction is not complied with (without reasonable excuse), the tribunal may refuse to admit evidence given by the witness about a fact 187 concerning which the witness so tried to revive his or her memory . 6.324 Once a witness is in the witness box, he or she must not use a document to try to revive his 188 or her memory about a fact or opinion unless the Service tribunal gives leave . 6.325 In deciding whether to give leave, the tribunal must take into account: a. whether the witness can recall the fact or opinion adequately without using the document; whether so much of the document as the witness proposes to use is (or is a copy of) a document that was written by the witness, or was found by him or her to be accurate, 189 at a time when the events recorded in it were fresh in his or her memory .

b.

6.326 A document need not have been written or checked contemporaneously or soon after the relevant event occurred, although it is more likely that events will be fresh in a person's memory soon after they occurred. 6.327 If a witness has used a document to try to revive his or her memory about a fact or opinion, the witness may, with leave of the tribunal, read aloud as part of his or her evidence so much of the 190 document as relates to the fact or opinion . 6.328 In deciding whether to give leave to read the document aloud, the Service tribunal must take into account: a. the extent to which to give leave would be likely to add unduly to, or to shorten, the length of the hearing; the extent to which to give leave would be unfair to a party or to a witness; the importance of the evidence the witness will give;

b. c.

185

R v Tait [1963] V.R. 520; R v Bicanin (1976) 15 S.A.S.R. 20. Evidence Act s.34(1). Evidence Act s.34(2). Evidence Act s.32. Evidence Act s.32(2). Evidence Act s.32(3).

186

187

188

189

190

ADFP 201 VOLUME 1 648 d. e. the nature of the proceeding; and any power of the tribunal to adjourn the hearing or to make another order or to give a 191 direction in relation to the evidence .

6.329 There may be occasions when a matter is not controversial (eg. a doctor reading from his or her patient records) or factual accuracy is important (eg. a police officer giving measurements taken at 192 the scene of an accident ) when it is desirable that a witness should be able to give his or her evidence by reading notes. 6.330 If a witness has used a document to try to revive his or her memory in the course of giving evidence, the Service tribunal may, at the request of a party, direct that so much of the document as 193 relates to the Service tribunal proceeding is produced to that party . Calling for production of the document or inspection of the document when produced does not require the party to tender the 194 document, nor entitle the producing party to tender it . If the party to whom the document is produced cross-examines the witness about a prior inconsistent statement in the document, the 195 Service tribunal can give directions about its use and admit it, unless the document is inadmissible . EXAMINATION-IN-CHIEF 6.331 The object of examination-in-chief is to obtain testimony in support of the version of the facts 196 in issue or relevant to the issue for which the party calling the witness contends . 6.332 In this section we will be concerned with the putting of leading questions in examination in chief and the cross-examination of one's own witness. Other rules that will apply during examination in chief, relating to use of documents to revive memory before or in the course of giving evidence, are dealt with at paragraphs 6.322-6.330. Leading Questions 6.333 A leading question is one which either directly or indirectly suggests a particular answer or assumes the existence of a disputed fact concerning which the witness has not yet testified. An example of the first type would be: Did you see the electrician lay the cables the wrong way? An example of the second type of question would be: After the accused fired the gun what did he then do? (if put to a witness who has not testified that the accused had fired the gun). 6.334 A leading question may not be put to a witness in examination in chief (or in re197 examination) unless: a. b. the Service tribunal gives leave; the question relates to an introductory matter or a matter not in dispute;

191

Evidence Act s.192. A member of the Australian Federal Police or a police force of a State or Territory may in some situations give evidence in chief for the prosecution by reading or being led through a written statement the officer previously made: see Evidence Act s.33. Evidence Act s.32(4). Evidence Act s.35. Evidence Act ss. 45(3) and (4). Cross on Evidence, 4th Australian edition, paragraph 17140. See paragraph 6.382.

192

193

194

195

196

197

ADFP 201 VOLUME 1 649 c. where all the parties to the proceeding other than the party examining the witness are represented by a lawyer and no objection to the question is made; in the case of a question put to a person with specialised knowledge based on his or her study, training or experience (see paragraphs 6.226-6.230), the question is put for the purpose of obtaining the person's opinion on a hypothetical statement of facts, 198 being facts in respect of which evidence has been or is intended to be given .

d.

6.335 Leading questions are inadmissible because of the danger that they allow collusion between the person asking them and the witness or because they assume the existence of facts which are not in evidence. Frequently, leading questions are put in such a form that the witness has to answer merely 'Yes' or 'No', and in the simplicity of this answer the full truth may not emerge. It is not true, however, that because a question may be answered Yes or No it is necessarily a leading question, although often it will be. Cross-examining One's Own Witness 6.336 A party may, with leave of the Service tribunal, question his or her own witness as though the party were cross-examining the witness about: a. b. evidence the witness has given that is unfavourable to the party; a matter of which the witness may reasonably be supposed to have knowledge about which it appears to the tribunal that the witness is not in examination in chief making a genuine attempt to give evidence; or whether the witness has at any time made a prior inconsistent statement
199

c.

With the leave of the tribunal, the party so questioning such a witness may question him or her about 200 matters relevant to his or her credibility . 6.337 Questioning a witness with that leave is to take place before other parties cross-examine the witness, although the tribunal may give directions about the order in which the parties may question 201 the witness . 6.338 In deciding whether to give leave or a direction, the Service tribunal must take into account: a. whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and the matters on which and the extent to which the witness has been, or is likely to be, 202 questioned by another party .

b.

198

Evidence Act s.37(1). Evidence Act s.38(1). See also paragraphs [38.2] to [38.5] of the commentary reproduced at page 19 of Volume 2 Part 5 of the Discipline Law Manual. Evidence Act s.38(3). Evidence Act ss. 38(4) and (5). Evidence Act s.38(6).

199

200

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ADFP 201 VOLUME 1 650 CROSS-EXAMINATION The Object of Cross-examination 6.339 The object of cross-examination is two-fold, first to elicit information concerning facts in issue or relevant to the issue that is favourable to the party on whose behalf the cross-examination is conducted, and, secondly, to cast doubt upon the accuracy of the evidence-in-chief given against such 203 a party. Anything which is relevant to the issues or the witness's credit is permissible whether it be to test and attack the opponent's case or to obtain evidence in support of the cross-examiner's case. 6.340 A cross-examiner's attack on a witness may be on a very wide front, including inaccurate observation, unreliable memory, bias and general credit. Furthermore, as a general rule, a crossexaminer may ask leading questions (see paragraphs 6.345-6.349). 6.341 If, in a crucial part of the case, a party intends to ask the court to disbelieve the evidence of a witness for an opponent, the witness should be challenged when in the witness-box, or, at least it 204 should be made plain while the witness is in the box that his or her evidence is not accepted. For example, in a case where identification of the accused is in issue and a witness has asserted that he or she saw the accused at a certain relevant time, the cross-examiner must make it clear to the witness, either by putting it directly to the witness that he or she is mistaken or lying, or by the nature of the cross-examination, that the evidence is not accepted. Failure by the cross-examiner to do this may allow the cross-examiner's opponent to recall the witness, so that the opponent has a full chance 205 to put the witness's evidence on the matter before the court. In determining the weight to be 206 attached to the witness's evidence, the court may take the failure to cross-examine into account. 6.342 Usually abstention from cross-examination indicates that the evidence-in-chief is accepted or, at all events, not controverted. On the other hand, it may indicate that the evidence-in-chief is regarded as irrelevant or so inherently implausible that it is not worthwhile wasting time on it. 6.343 In these paragraphs of Section 11 we will be concerned with the putting of leading questions in cross-examination (paragraphs 6.345-6.349), the power of a Service tribunal to disallow improper questions (paragraphs 6.350-6.351) and some other statutory and ethical restraints upon crossexamination (paragraphs 6.352-6.354). 6.344 We will also deal with the rules in Evidence Act Part 3.7 which set out: a. when an accused can be cross-examined on a matter that is relevant only to the credibility of evidence he or she has given in a Service tribunal proceeding (paragraphs 6.359-6.369); and admissibility rules relating to evidence that is relevant only to the credibility of evidence a witness has given in such a proceeding (paragraphs 6.370-6.379).

b.

Leading Questions 6.345 A leading question is one which either directly or indirectly suggests a particular answer or 207 assumes the existence of a disputed fact concerning which the witness has not yet testified .

203

Cross on Evidence, 4th Australian edition, paragraph 17430. The Rule in Browne v Dunn (1893) 6 R 67; Seymour v Australian Broadcasting Commission [1977] ACLD 511. Evidence Act s.46. Also see r 19 of the DFD Rules. Bulstrode v Trimble [1970] V.R. 840, 848. See, in relation to examples of leading questions, paragraph 6.332.

204

205

206

207

ADFP 201 VOLUME 1 651 6.346 A leading question may be asked in cross-examination, subject to a power in the Service 208 tribunal to disallow it or direct the witness not to answer it . 6.347 If the tribunal is satisfied that the facts would be better ascertained if leading questions were 209 not used, it must disallow a leading question or direct the witness not to answer it . 6.348 In deciding whether to disallow a question or give a direction, the tribunal must take into account the extent to which: a. evidence given by the witness in examination in chief is unfavourable to the party who called him or her; the witness has an interest consistent with an interest of the cross-examining party; the witness is sympathetic to the party conducting the cross-examination (either generally or about a particular matter); the witness's age, or any mental or physical disability to which he or she is subject, 210 may affect his or her answers .

b. c.

d.

6.349 One situation when a Service tribunal may consider exercising its power to disallow etc a leading question put in cross-examination is when a co-accused in a joint trial before the tribunal is seeking to lead evidence from a witness called by another co-accused. If, for example, the witness has given evidence that is favourable to the cross-examining co-accused, the fact-finding process of the tribunal might be assisted by a departure from the general rule that leading questions may be asked in cross-examination. Improper Questions 6.350 A Service tribunal may disallow, or inform the witness that he or she need not answer, a question put to a witness in cross-examination, that is misleading or unduly annoying, harassing, 211 intimidating, offensive, oppressive or repetitive . 6.351 In deciding whether to disallow a question or give a direction, the tribunal must take into account any relevant condition or characteristic of the witness (such as age or education) and any 212 mental or physical disability to which the witness appears to be subject . Other Statutory and Ethical Restraints upon Cross-examination 6.352 The operation of Evidence Act s.128, which provides protection to witnesses against selfincrimination or self-exposure to a penalty, may arise in the context of the cross-examination of a witness (see paragraphs 6.106-6.111). 6.353 Other statutory restraints upon cross-examination of a witness may arise in the context of the cross-examination of a witness that is relevant only to the credibility of evidence he or she has given in a proceeding (see paragraphs 6.359-6.379). 6.354 For ethical reasons a defending officer should not impugn a witness's character unless it is necessary to do so as part of the accused's case and the imputations are well founded, or the officer

208

Evidence Act s.42(1). Evidence Act s.42(3). Evidence Act s.42(2). Evidence Act s.41(1). Evidence Act s.41(2).

209

210

211

212

ADFP 201 VOLUME 1 652 Judicial discretion will not permit trap intends to call evidence in support of the imputations. questions, double-barrelled or vague ones, or questions such as Have you stopped beating your wife? when they proceed on an assumption which has neither been put to or accepted by the witness. Nor should questions be asked which amount only to comment. Cross-examination as to Credit 6.355 Cross-examination of a witness as to credit has been explained in the following terms:
Questions asked of a witness about his conduct in some matter merely collateral to facts in issue are permitted if they go to his credit. That is ... because if what is insinuated is admitted by (the witness) that may suggest that he is not to be believed on his oath. It is not that he is said to be a discreditable person: it is that, because of this, his testimony may be incredible. When lawyers speak of conduct or character as going to the credit of a witness, they use the word 'credit' in 214 relation to credibility, his veracity, not in the sense of his worthiness.
213

6.356 Matters which go to the credit of a witness include prior statements which are inconsistent with present testimony; specific contradictions, ie. proving that a fact asserted by a witness is untrue; bias; character and lack of capacity to observe, remember or recount the matters testified about. 6.357 Evidence Act Part 3.7 provides: a. rules setting out when an accused can be cross-examined on a matter relevant only to evidence he or she has given; admissibility rules relating to evidence that is relevant only to the credibility of evidence a witness has given.

b.

6.358 The rules in Part 3.7 apply only to evidence that is relevant only to credit. Evidence is relevant only to the credibility of evidence a witness has given in a proceeding if the only use to which it can be put in the proceeding is to discredit evidence the witness has given. Such evidence must not be relevant to the existence of a fact in issue in the proceeding (other than because of the veracity of a witness testifying about the fact). When an Accused may be Cross-examined on a Matter Relevant only to Credit 6.359 The accused is in a special position in relation to cross-examination on a matter that is 215 relevant only to determine the credibility of evidence he or she has given . 6.360 Evidence Act s.104 contains rules about when an accused can be cross-examined upon such a matter, whether by the prosecutor (see paragraphs 6.361-6.366) or another accused in the proceeding (see paragraphs 6.367-6.369). 6.361 Unless the evidence is about whether the accused: a. b. is biased or has a motive to be untruthful; is or was unable to be aware of or recall matters to which his or her evidence relates; or has made a prior inconsistent statement,

c.

213

Based on Rules 36, 37 and 38 of the ACT Barristers Rules. Wren v Emmett Contractors (1969) 43 ALJR 213 per Windeyer J. See the last two sentences of paragraph 6.358.

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215

ADFP 201 VOLUME 1 653 the prosecutor cannot cross-examine an accused about a matter relevant only to the credibility of evidence he or she has given in the proceeding unless the Service tribunal has given leave. 6.362 When leave is required, it must not be given unless the accused has adduced evidence in the proceeding that: a. tends to prove he or she is a person of good character, either generally or in a particular respect (see paragraphs 6.363 and 6.365); or has been admitted and tends to prove a witness called by the prosecutor has a tendency to be untruthful (see paragraphs 6.363-6.365).

b.

6.363 For the purpose of the leave requirement, an accused has 'adduced' evidence in the proceeding if he or she has actually given the evidence, led it from another witness he or she has called in the proceeding or has elicited it when cross-examining a witness called by another party (including the prosecutor). Evidence is not adduced from a witness when a suggestion is merely put to the witness during cross-examination but is not admitted by the witness. 6.364 Before leave can be given in circumstances where the accused has adduced evidence that tends to prove a witness called by the prosecutor has a tendency to be untruthful, the evidence must be relevant solely or mainly to the credibility of evidence the witness has given in the proceeding. The evidence must also not be evidence of conduct relating to the events in relation to which the accused is being prosecuted or the investigation of the offence with which the accused is being prosecuted. That is, an accused does not 'throw away his or her shield' when it is suggested, for example, that a prosecution witness has lied in the course of giving evidence about the events that are the subject of the charge, or that a confession allegedly made by the accused was fabricated. 6.365 An occasion when a Service tribunal might need to decide whether leave might be given would arise when the evidence adduced by the accused tends to prove that the prosecution witness lied on some occasion unconnected with the proceedings (eg. during the prosecution of some other person for some other Service offence). 6.366 In deciding whether to give leave, the Service tribunal must take into account: a. the extent to which to give leave would be likely to add unduly to, or to shorten, the length of the hearing; the extent to which to give leave would be unfair to a party or a witness; the importance of the evidence sought to be obtained by cross-examination of the accused; the nature of the proceeding; any power of the tribunal to adjourn the hearing or to make another order or give a 216 direction in relation to the evidence .

b. c.

d. e.

6.367 In joint trials before Service tribunals, an accused cannot cross-examine a co-accused about a matter relevant only to the credibility of evidence that the co-accused has given in the proceeding unless the tribunal gives leave. Leave cannot be given unless the co-accused has given evidence adverse to the accused who is seeking leave to cross-examine and the evidence has been admitted in the proceeding. 6.368 The Service tribunal must take into account the matters stated at paragraph 6.366 above in deciding whether to give leave.

216

Evidence Act s.192.

ADFP 201 VOLUME 1 654 6.369 It could be expected that on most occasions leave would be given. The general principle is 217 that an accused should be able to put his or her defence in its entirety . Admissibility Rules Relating to Evidence that is Relevant only to Credit 6.370 Evidence Act Part 3.7 also sets out admissibility rules relating to evidence that is relevant 218 only to the credibility of evidence a witness has given . 6.371 Those rules differ depending upon whether the evidence is adduced upon cross-examination of the witness or if it is adduced from some other person to rebut evidence given by the witness (eg. when a cross-examining party wishes to contradict evidence given by a witness on a matter relevant to the credibility of evidence the witness has given). Evidence Adduced in Cross-examination of a Witness 6.372 Evidence adduced in the cross-examination of a witness that is relevant only to the credibility 219 of evidence the person has given is admissible only if it has substantial probative value . 6.373 In deciding whether the evidence has substantial probative value, the Service tribunal must take into account: a. whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when under an obligation to tell the truth; and the period that has elapsed since the acts or events to which the evidence relates 220 were done or occurred .

b.

An obligation to tell the truth, in this context, includes both a legal and moral obligation to tell the truth. A person could not, for example, be considered to be under an obligation to tell the truth on some social occasions (eg. during drinks in the Other Rank's Canteen celebrating a win in an inter-unit sporting fixture). Evidence Adduced in Rebuttal 6.374 If a witness denies (for example, during cross-examination) the substance of evidence that is relevant only to the credibility of evidence a witness has given in the proceeding, the evidence is admissible if it is adduced otherwise than from the witness and it tends to prove he or she: a. b. c. d. e. is biased or has a motive to be untruthful; has been convicted of an offence; has made a prior inconsistent statement; is or was unable to be aware of matters to which his or her evidence relates; or has knowingly or recklessly made a false representation while under an obligation 221 imposed by or under an Australian law or a law of a foreign country to tell the truth .

217

See, in relation to an occasion within a civil context when leave may be refused, paragraph [104.8] of theEvidence Act 1995 (plus commentary) commentary reproduced at page 54 of Volume 2 Part 5 of the Discipline Law Manual. See the last two sentences of paragraph 6.358. Evidence Act s.103(1). Evidence Act s.103(2).

218

219

220

ADFP 201 VOLUME 1 655 Each of these matters is discussed in the succeeding paragraphs. S.106(a) - the Witness is 'Biased or has a Motive to be Untruthful' 6.375 Evidence that tends to prove a witness is biased or has a motive to be untruthful may include 222 where the witness has given or received a bribe , or where it is alleged that a witness had said to police that, if compelled to give evidence, he or she would lie in order to avoid offending the 223 accused . S.106(b) - Prior Convictions of the Witness 6.376 Very seldom would a conviction for a traffic offence satisfy the requirement under Evidence Act s.103 that the evidence has substantial probative value: hence the occasion for the operation of Evidence Act s.106(b) in relation to traffic offences would rarely arise. S.106(c) - Prior Inconsistent Statements of the Witness 6.377 Evidence Act s.43(2) permits a cross-examining party to adduce evidence of a prior inconsistent statement made by a witness if, during cross-examination, the cross-examining party informed the witness of enough of the circumstances of the making of the statement to identify it and drew the witness's attention to the inconsistency. If a record of the statement is contained in a 224 document, the document need not have been shown to the witness . S.106(d) - the Witness's Inability to be Aware of Matters to which his or her Evidence Relates 6.378 Examples of a matter that would fall within Evidence Act paragraph 106(d) is any physical 225 incapacity of the witness . S.106(e) - the Witness 'has Knowingly or Recklessly made a False Representation while under an Obligation Imposed by an Australian Law or a Law of a Foreign Country to tell the Truth' 6.379 Unlike the situation where the evidence is adduced in cross-examination (see paragraph 6.372), an obligation 'imposed by or under an Australian law or a law of a foreign country' to tell the truth will not include a moral obligation. Examples of occasions when a person is under an obligation 'imposed by or under' such a law to tell the truth include, but are not limited to, when the person gives evidence under oath in a proceeding before a court, or signs a statutory declaration. The Effect of Cross-examination as to Credit 6.380 Apart from the situation where Evidence Act s.60 applies, if a cross-examiner succeeds in destroying a witness's credit that does not entitle a court to find as established the opposite of what that witness asserted. To quote a well-known passage:
226

221

Evidence Act s.106. eg. Attorney-General v Hitchcock (1847) 1 Exch 91, 154 ER 38. eg. R v Angelis [1979] 20 S.A.S.R. 288. Evidence Act s.43(1)(b). See, for example, the statement by Lord Pearce in Toohey v Metropolitan Police Commissioner [1965] AC 595 at 608 that [i]f a witness purported to give evidence of something which he believed he had seen at 50 yards, it must surely be possible to call the evidence of an oculist to the effect that the witness could not possibly see anything at a greater distance than 20 yards .... See paragraphs 6.163 et seq., particularly paragraphs 6.166-6.167.

222

223

224

225

226

ADFP 201 VOLUME 1 656

If by cross-examination to credit you prove a man's oath cannot be relied on, and he has sworn that he did not go to Rome on May 1, you do not, therefore, prove that he did go to Rome on May 1; 227 there is simply no evidence on the subject.

RE-EXAMINATION 6.381 The purpose of re-examination is to clear up any ambiguity or uncertainty in the answers given in cross-examination and is permissible in every case where the answers or account given in 228 cross-examination would, if left unexplained or uncompleted, not constitute the whole truth. A witness may be questioned in re-examination about matters arising out of evidence he or she gave in cross-examination: other questions may not be put to the witness unless the Service tribunal gives leave. 6.382 The same rules in relation to leading questions that apply in examination in chief apply in reexamination (see paragraphs 6.332-6.334). 6.383 In some cases the operation of Evidence Act s.108(3) might arise on re-examination of a witness. Under s.108(3) evidence of a prior inconsistent statement of a witness is admissible if the tribunal has given leave to adduce the evidence, where: a. b. evidence of a prior consistent statement has been admitted; or it is or will be suggested that evidence given by the witness has been fabricated, reconstructed or is the result of a suggestion. RE-OPENING A CASE AND EVIDENCE IN REBUTTAL 6.384 It is a general rule of law that no party may split its case, but there are several exceptions to this rule. The rule applies to an accused person, as well as to the prosecution, but few problems arise in the case of an accused. 6.385 The two most frequently occurring situations where a party may seek to lead further 229 evidence after his case has closed are: re-opening and evidence in rebuttal . 6.386 A party may be permitted to re-open his case to meet an objection that some formal proof of a matter that really does not admit of denial has been overlooked, provided that re-opening the case is 230 necessary in the interests of justice. Leave to reopen should be limited to technicalities; eg. tendering of subordinate legislation or, in a Court of Marine Inquiry, proof that the defendant had a 231 Master's Certificate. 6.387 Evidence in rebuttal may be adduced by a prosecutor by leave of the Service tribunal on any matter raised by the defence where the requirement for such evidence was not reasonably foreseeable or could not properly have been adduced before the accused presented his or her 232 defence. The prosecutor should be permitted to adduce evidence in rebuttal only in exceptional

227

Hobbs v Tinling & Co Ltd [1929] K.B. 1, 21 per Scrutton L.J. per Wells Q.C. in An Introduction to the Law of Evidence (3rd Ed 1979). R v Boland (1974) V.R. 849 at 874, 5. See Waight and Williams, Evidence Commentary and Materials, 4th edition, p 331 See r.19(3) of the DFD Rules. In Re Kendrick (No. 2) (1903) 28 V.L.R. 472. Rule 19(2) of the DFD Rules; in relation to alibi evidence see DFDA s 145A.

228

229

230

231

232

ADFP 201 VOLUME 1 657 circumstances and when it is reasonably clear that the accused will not be unfairly prejudiced by the 233 admission of that evidence. SECTION 12 - CORROBORATION General: Abolition of Most Corroboration and Corroboration Warning Requirements 6.388 Evidence Act s.164(1) provides that '[i]t is not necessary that evidence on which a party relies be corroborated'. 6.389 Subsection 164(2) provides that Evidence Act s.164(1) 'does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related 234 offence' . Also, Evidence Act s.164(1) will not affect a requirement by another (Commonwealth) Act 235 that evidence be corroborated . 6.390 Evidence Act s.164(3) abolishes any rule of law or practice requiring corroboration warnings: 236 subject to other provisions of the Act , if there is a jury it is not necessary that a judge warn the jury that it is dangerous to act on uncorroborated evidence or give a direction relating to absence of corroboration. Corroboration with Respect to Perjury or a Similar or Related Offence 6.391 The common law ... provide[s] that a person should not be liable to be convicted of perjury ... solely upon the evidence of one witness as to the falsity of any statement alleged to be false ... The rule is strictly confined to proof of the falsity of the statement [R v. Linehan [1921] VLR 58; R v. Allsop 237 (1899) 24 VLR 812]... . 6.392 Corroboration means confirmation or support and it must take the form of a separate item of evidence implicating the accused. It can consist of the testimony of a second witness about the falsity of the statement, but the evidence of a second witness is not essential. For example, corroboration 238 can consist of an admission of the accused that the statement was false . 6.393 A person's statement in court may also be held to corroborate the case against him
239

Functions of Judge Advocate and Members of a Court Martial 6.394 At a court martial, it is a question of law to be decided by the judge advocate whether there 240 is evidence capable of amounting to corroboration ; it is a question for the court whether the

233

Per Fullagar J in Shaw v R (1952) 85 C.L.R. 365, 383-384; see also Lawrence v. R (1981) 38 A.L.R. 1, 3 An example of a 'similar or related offence' is an offence against s.35 of the Crimes Act 1914 (Cth.). For example, s.94(7) of the Marriage Act 1961 (bigamy): see Evidence Act s.8(1). Evidence Act s.165, for example, provides that in certain circumstances a judge must warn a jury about the dangers of evidence that is of a kind that may be unreliable. Where there is a jury and a party so requests, the judge must warn the jury that such evidence may be unreliable, inform the jury of the matters that may cause the evidence to be unreliable and warn the jury about the need for caution in determining whether to accept the evidence and what weight to give it. The judge need not give a warning if there are good reasons for not doing so. Cross on Evidence, 4th Australian Edition, paragraph 15020. See Cross, paragraph 15020, sixth sentence. Other examples of corroborative evidence in relation to the offence of perjury are also discussed by Cross at paragraph 15020. R v Dossi (1918) 13 Cr. App. Rep. 158.

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236

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238

239

ADFP 201 VOLUME 1 658 evidence is in fact corroborative and has any weight. In a case where there is no corroboration, the judge advocate should direct an acquittal if corroboration is required as a matter of law. Direction by Judge Advocate 6.395 Where a direction is given in a case where there is evidence capable of being corroborative it should not contain a general disquisition on the law of corroboration couched in lawyer's language 241 but should be tailored to the particular circumstances of the case. 6.396 Although there is no such thing as a model summing up in these cases, the judge advocate must tell the court what corroboration is - independent evidence of some material fact which implicates the accused and tends to confirm that he or she is guilty of the offence. Although it is probably unnecessary for the judge advocate to indicate which particular items of evidence could constitute corroboration there should be a broad indication of the sort of evidence which may be treated as corroborative. A conviction may be quashed if the judge advocate refers to items of evidence as being corroborative when in fact they are not. Where the corroboration relates to some counts but not all, 242 this fact should be made clear to the court.

240

DFDA s.134(1). per Lord Diplock in DPP v Hester [1973] A.C. 296, 328. Cross on Evidence, 4th Australian edition, paragraph 15255. See also Re Pixley's Appeal, Court Martial Appeal Tribunal 2/1980.

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242

ADFP 201 VOLUME 1

CHAPTER 7

SUMMARY PROCEEDINGS
SECTION 1 - GENERAL INTRODUCTION 7.1 The term summary when applied to proceedings is, in law, a reference to a mode of dealing 1 with certain matters expeditiously and without ordinary incidental formalities . In the context of disciplinary law in the Defence Force, the word summary is used to describe all proceedings under the Defence Force Discipline Act (DFDA) other than trial by court martial or Defence Force magistrate. 7.2 Under the DFDA there are 3 levels of summary authorities: superior summary authorities, commanding officers and subordinate summary authorities. The main purpose of having 3 levels of summary authority is to enable minor offences to be dealt with by junior officers and to ensure that more serious offences are dealt with by senior officers. Another purpose is to ensure that any officer who deals with a charge is of an appropriate rank, having regard to the rank of the accused. DISTINCTION BETWEEN DEALING WITH AND TRYING A CHARGE 7.3 The DFDA confers two kinds of jurisdiction on summary authorities: jurisdiction to deal with a charge and jurisdiction to try a charge. A summary authority's jurisdiction to deal with a charge is generally wider than his jurisdiction to try. In dealing with a charge, a summary authority is, in effect, deciding what course of action to take in relation to the charge. For this purpose a summary authority may hear evidence in connection with the charge or an outline of the case. Subject to which type of summary authority is involved, the following options may be open in dealing with a charge: a. b. c. to decide to try the charge, to direct that the charge be not proceeded with, or to refer the charge to another authority.

These options and the extent of both kinds of jurisdiction for each type of summary authority are discussed in succeeding paragraphs. SUBORDINATE SUMMARY AUTHORITIES Jurisdiction 7.4 A subordinate summary authority may deal with a charge against a soldier, sailor or airman, or an officer cadet in respect of a Service offence of a kind notified to him in writing by the 2 commanding officer who appointed him . In dealing with a charge, a subordinate summary authority may: a. decide to try a charge against a member of the Defence Force who is of or below the rank of leading seaman or corporal or is an officer cadet where the charge is of a kind 3 notified to him in writing by the commanding officer who appointed him ; where he does not have jurisdiction to try the charge and is of opinion that there is insufficient evidence to support the charge - direct that the charge not be proceeded 4 with ; or

b.

Dowson v McGrath (1956) W.A.R. 27. DFDA s.108(1); Reg 33 of the DFD Regulations. DFDA s.111(2)(a).

ADFP 201 VOLUME 1 72 c. whether or not he has jurisdiction to try the chargerefer the charge to the commanding officer who appointed him, or to another subordinate summary 5 authority .

7.5 A more detailed discussion of the specific ways in which a subordinate summary authority may deal with a charge is contained in paragraphs 7.12 to 7.15. 7.6 Ordinarily, a charge against an officer cadet or a member of the Defence Force who is not an 6 officer must be dealt with at first instance by a subordinate summary authority . However, a commanding officer may direct in a particular case or in relation to a particular class of cases that the charge is not to be dealt with by a subordinate summary authority. For example he may direct that a subordinate summary authority is not to deal with charges against sergeants or staff sergeants. 7.7 For further detail in relation to officer cadets, see paragraphs 7.90 to 7.98.

Appointment 7.8 A subordinate summary authority is appointed by a commanding officer by means of a 7 written instrument which specifies the kinds of Service offences with which the authority may deal . The specific offences which it is appropriate to authorise a subordinate summary authority to deal with will vary according to the officer's rank and, to a lesser extent, with the nature of the unit and its particular functions at the relevant time, but above all with the extent of his power to punish. The punishments available to a subordinate summary authority are set out in paragraphs 7.10 and 7.11. Revocation of Appointment 7.9 Where a commanding officer has appointed subordinate summary authorities, he must ensure that these appointments are revoked when any party is posted. The subordinate summary authorities affected should be given notice of the revocation. Provision for such revocation may be included at the bottom of the instrument of appointment. Where a subordinate summary authority is appointed as an officer included in a class of officers, there is no need to revoke his appointment on posting. Punishments Available to a Subordinate Summary Authority 7.10 The punishments available to a subordinate summary authority are set out in Table C to 8 Schedule 3 of the DFDA and, for convenience, are reproduced below . The punishments provided in the Act are in two scales. The first ('Scale 1'for the purposes of this paragraph) is applicable only to the Navy and then only to a subordinate summary authority who is an officer of the rank of commander or above, or who is the Executive Officer of a ship or establishment and is of or above the rank of lieutenant. The second scale ('Scale 2') applies to all other subordinate summary authorities and is, thus, applicable to the Army and the Air Force in all relevant cases and, in the Navy, to subordinate summary authorities such as officers of the watch or officers of the day. 7.11 The punishments available to each type of subordinate summary authority are as follows (in decreasing order of severity):

DFDA s.111(2)(b). DFDA s.111(2)(c). DFDA s.111 DFDA s.105(2), 108; also see Form 45. The punishments prescribed by the DFD Regulations in relation to officer cadets are incorporated in the reproduced table.

ADFP 201 VOLUME 1 73

Convicted person Leading seaman

Scale 1 Punishments - Navy Commanders and above and Executive Officers of or above the rank of lieutenant Fine not exceeding the amount of the convicted person's pay for 7 days Severe reprimand Stoppage of leave for a period not exceeding 21 days Reprimand Fine not exceeding the amount of the convicted person's pay for 7 days Severe reprimand Restriction of privileges for a period not exceeding 14 days Stoppage of leave for a period not exceeding 21 days Extra duties for a period not exceeding 7 days Extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days Reprimand Fine not exceeding the amount of the convicted persons pay for 3 days Severe reprimand Restriction of privileges for a period not exceeding 7 days Stoppage of leave for a period not exceeding 7 days Extra duties for a period not exceeding 3 days Reprimand (See paragraphs 7.90 to 7.98) Scale 2 Punishments - Army and RAAF subordinate summary authorities and Navy Officers-of-the-Watch/Day Fine not exceeding the amount of the convicted person's pay for 3 days Severe reprimand Reprimand Fine not exceeding the amount of the convicted persons pay for 3 days Severe reprimand Restriction of privileges for a period not exceeding 7 days Stoppage of leave for a period not exceeding 7 days Extra duties for a period not exceeding 7 days Extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days Reprimand

Sailor below the rank of leading seaman

Officer cadet of the rank of midshipman

Convicted person Non-commissioned officer of or below the rank of leading seaman or corporal, ie leading seaman, corporal, lance corporal9 Member below non- commissioned rank (ie able seaman, leading aircraftman, private, seaman, aircraftman) or officer cadet (See paragraphs 7.90 to 7.98)

For further information on punishments see Chapter 11. Deciding Whether to Try a Charge 7.12 In deciding whether to try a charge, a subordinate summary authority must first ascertain whether he has jurisdiction. If he does have jurisdiction, ordinarily he should proceed to try the charge. However, in any case where he is biased or likely to be biased or is likely to be thought on reasonable

Under s.3(1) of the DFDA, a non-commissioned officer means: (a) a sailor holding a rank not higher than the rank of chief petty officer and not lower than the rank of leading seaman; (b) a soldier holding a rank not higher than the rank of staff sergeant and not lower than the rank of lance-corporal; or (c) an airman holding a rank not higher than the rank of flight sergeant and not lower than the rank of corporal.'

ADFP 201 VOLUME 1 74 grounds to be biased he should not try the charge . Also, a subordinate summary authority should not try a charge, even though it falls within his jurisdiction, where after hearing, an outline of the prosecution case and some or all of the prosecution evidence he considers that he does not have the power to impose an appropriate punishment in the event that the accused is convicted. Directing that a Charge not be Proceeded With 7.13 If a subordinate summary authority does not have jurisdiction to try a charge, he may, nevertheless, hear evidence against the accused. If, in his opinion, this evidence is insufficient to 11 support the charge he should direct that the charge not be proceeded with . The purpose of this procedure is to ensure that frivolous or unsubstantiated allegations are not referred to a higher authority; however, the direction that a charge not be proceeded with does not operate as a bar to 12 further proceedings against the accused in respect of the same offence . In order that consideration can be given to any need for further proceedings against the accused, where a subordinate summary authority has directed that the charge not be proceeded with, the record of the proceedings is to be forwarded to a commanding officer. Referring a Charge to a Commanding Officer or Another Subordinate Summary Authority 7.14 As discussed in paragraph 7.4, whether or not a charge is within the jurisdiction of a subordinate summary authority to try, he may refer it to the commanding officer of the authority or to another subordinate summary authority. The latter procedure will generally only be applicable in the Navy in respect of a charge which has been dealt with by an officer-of-the watch/day and, in accordance with general or standing orders, is referred to the Executive Officer. However, it may also apply in other cases; for example, where a subordinate summary authority considers himself to be disqualified from trying a charge by reason of bias, he may refer the charge to another subordinate summary authority. 7.15 As discussed in paragraph 7.13, where the charge is not within the jurisdiction of a subordinate summary authority to try, he should only refer it to a commanding officer where he is of the opinion that there is sufficient evidence to support it. COMMANDING OFFICERS Jurisdiction 7.16 A commanding officer may deal with any charge against any person . As to who may be charged under the DFDA, see Chapter 2. In dealing with a charge, a commanding officer may try it, direct that it not be proceeded with or refer it to another commanding officer, a superior summary 14 authority or a convening authority . A commanding officer may try any charge except where it relates
13 10

10

DFDA ss.141(4)(b).). DFDA ss.111(2)(b). DFDA ss.144(4)(c). DFDA s.107(1). The persons who may be charged under the DFDA are described in Chapter 2. DFDA s.110.

11

12

13

14

ADFP 201 VOLUME 1 75 to a prescribed offence or where the accused is above the rank of flight lieutenant (or equivalent) or 16 is less than two ranks junior to him . Appointment 7.17 A commanding officer may have summary powers conferred upon him in either of two ways. First, he may deal with charges under the DFDA as an automatic consequence of his appointment as a commanding officer, whether this appointment is temporary or of a long-term nature. Alternatively, a 17 18 Service chief or an authorised officer may, by instrument in writing, appoint an officer to exercise all the powers conferred on a commanding officer under the DFDA or such of those powers as are 19 specified in the instrument of appointment . Revocation of Appointment 7.18 A Service chief or an authorised officer may revoke or limit a commanding officer's summary 20 powers whether they were conferred upon the commanding officer automatically or by instrument . Punishments Available to a Commanding Officer 7.19 Where a commanding officer tries a charge and convicts the accused, he may impose a punishment (or punishments) in accordance with Table B to Schedule 3 of the DFDA. For convenience, these punishments are set out in Table 1 overleaf. The punishments prescribed by the DFD Regulations in relation to officer cadets are incorporated in the table. 7.20 It should be noted that two scales of punishment are available to a Commanding Officer, namely, elective punishments (Column 2) and other punishments (Column 3). Elective punishments are those which may be imposed by a Commanding Officer where an accused: a. pleads guilty to a charge, is convicted and elects to be punished by a Commanding Officer rather than by a court martial or DFM, or pleads not guilty to a charge, elects to be tried by the Commanding Officer, instead of by a court martial or DFM and is subsequently convicted.
15

b.

A commanding officer may only award an elective punishment where the accused is offered an election as detailed above. However, notwithstanding the fact than an election has been given and the accused (or the convicted) has elected to be tried (or punished) by the commanding officer, the commanding officer is not compelled to award an elective punishment should a conviction be recorded. The giving of an election merely opens up the option for the commanding officer to award one of the more potent elective punishments. Upon conviction the evidence presented in mitigation or the circumstances surrounding the commission of the offence as detailed by the evidence or the prosecution outline may mitigate against the award of an elective punishment.

15

Section 104 of the DFDA specifies certain offences as being "prescribed offences". A prescribed offence includes treason, rape, murder, manslaughter or bigamy and any ancillary offences to those offences (eg being an accessory or inciting or a co-conspirator). Other prescribed offences are specified in the Regulations. With a few exceptions, these are offences which carry a maximum punishment exceeding two years imprisonment. Other prescribed offences are endangering morale (s.l8), or reckless or negligent hazarding of a ship (s.39(2),(3)). See Reg 44 of the DFD Regulations. DFDA s.107(2). ie CDF, CN, CA, CAF. ie an officer authorised for that purpose by a Service chief. DFDA s.5(1). DFDA s.5(3).

16

17

18

19

20

ADFP 201 VOLUME 1 76 7.21 Where an accused pleads guilty and is convicted, the right of election is given after the commanding officer has convicted the accused if the commanding officer considers that an elective punishment should be imposed (section 131(2A)). 7.22 Where an accused enters a plea of not guilty the accused is given the right of election where, in the course of a summary trial before the commanding officer, the commanding officer is of the opinion that the prosecution evidence is sufficient to support the charge and that in the event of 21 convicting the accused, the commanding officer is likely to impose an elective punishment . 7.23 If a commanding officer intends to give a member an election in respect of trial or punishment, written notification of the consequences of the election should be provided. The member involved should also record the exercise of his election in writing. The notification and acknowledgment forms provided for in Annexes U and V (Notification and Election) should be used for this purpose. Subject to the exigencies of the Service, a member who is given an election may discuss the exercise of the election with a legal officer. In all cases the member being given the election should be given the option of discussing the exercise of the election with his or her Defending officer (or an independent member of the ADF if the member is not represented). A short adjournment of the summary trial proceedings will normally be appropriate to allow for these consultations. 7.24 Where the accused elects to be tried or punished by court martial or DFM, the commanding officer is required, subject to the exigencies of the Service, to refer the charge to a Concerning 22 Authority . 7.25 Other punishments which are referred to in Column 3, are punishments which may be imposed in any case where an accused has not been offered the right to elect trial or punishment by court martial or Defence Force magistrate. Table 1 Table of Punishments
Column 1 Convicted person Officer (other than officer cadet) of or below the rank of Lieutenant in the Navy, Captain in the Army or Flight Lieutenant or Warrant Officer Officer Cadet Column 2 Elective punishment Fine exceeding the amount of the convicted person's pay for 7 days but not exceeding the amount of the convicted person's pay for 14 days As for any other officer Column 3 Other punishment Fine not exceeding the amount of the convicted person's pay for 7 days Severe reprimand Reprimand As for any other officer plus Restriction of privileges for a period not exceeding 14 days Stoppage of leave for a period not exceeding 21 days Extra duties for a period not exceeding 3 days Fine not exceeding the amount of the convicted person's pay for 28 days Severe reprimand Stoppage of leave for a period not exceeding 21 days Reprimand

Non-commissioned officer of the Navy 23

Reduction in rank by not more than one rank Forfeiture of seniority

21

DFDA s.131(1). DFDA s.131(2), (4). See DFDA s.3(1) (reproduced at footnote 9) for definition of non-commissioned officer.

22

23

ADFP 201 VOLUME 1 77

Column 1 Convicted person Non-commissioned officer of the Army or Air Force24

Column 2 Elective punishment Reduction in rank by not more than one rank (or 2 ranks if a corporal in the Army) Forfeiture of seniority Fine exceeding the amount of the convicted persons pay for 7 days but not exceeding the amount of the convicted persons pay for 14 days

Column 3 Other punishment Fine not exceeding the amount of the convicted persons pay for 7 days Severe reprimand Reprimand

Member below noncommissioned rank in the Navy 26

Member below noncommissioned rank in the Army or the Air Force who, at the time he committed the Service offence of which he has been convicted, WAS on active service

Detention for a period exceeding 14 days but not exceeding 42 days Fine exceeding the amount of the convicted person's pay for 14 days but not exceeding the amount of the convicted person's pay for 28 days

Detention for a period not exceeding 42 days Reduction in rank Forfeiture of seniority Fine not exceeding the amount of the convicted person's pay for 28 days Severe reprimand Restriction of privileges for a period not exceeding 14 days Stoppage of leave for a period not exceeding 21 days Extra duties for a period not exceeding 7 days Extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days Reprimand Detention for a period not exceeding 14 days Fine not exceeding the amount of the convicted person's pay for 14 days Severe reprimand Restriction of privileges for a period not exceeding 14 days Extra duties for a period not exceeding 7 days Extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days Reprimand

24

See DFDA s.3(1) (reproduced at footnote 9) for definition of non-commissioned officer.

ADFP 201 VOLUME 1 78

Column 1 Convicted person Member below noncommissioned rank in the Army or the Air Force who, at the time he committed the Service offence of which he has been convicted, was NOT on active service

Column 2 Elective punishment Detention for a period exceeding 7 days but not exceeding 28 days Fine exceeding the amount of the convicted person's pay for 7 days but not exceeding the amount of the convicted person's pay for 28 days

Person who is not a member of the Defence Force

Fine exceeding $100 but not exceeding $200

Column 3 Other punishment Detention for a period not exceeding 7 days Fine not exceeding the amount of the convicted person's pay for 7 days Severe reprimand Restriction of privileges for a period not exceeding 14 days Extra duties for a period not exceeding 7 days Extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days Reprimand Fine not exceeding $100

7.26

For further information on punishments see Chapter 11.

Deciding Whether to Try a Charge 7.27 In deciding whether to try a charge, a commanding officer must first ascertain that he has jurisdiction to do so. He does not have jurisdiction if the accused is an officer who is either less than two ranks junior to him or is above the rank of flight lieutenant (or equivalent) or the charge relates to a 25 prescribed offence . In all other cases he does have jurisdiction. Where a commanding officer does not have jurisdiction to try a charge, he may, nevertheless, receive prosecution evidence, and, if he is of the opinion that the evidence is insufficient to support the charge, is to direct that the charge not be 26 proceeded with otherwise, he is required to refer the charge to another authority. A commanding officer may either hear evidence himself or direct an examining officer to hear evidence, which the commanding officer will then consider, in order to determine whether to refer the charge or to direct that it not be proceeded with. 7.28 Where a commanding officer has jurisdiction to try a charge, he must then decide whether he should try it. First, he should consider whether there is a factor, such as bias, which might disqualify him, or whether it is desirable in the interests of justice or for any other reason that he should not try the charge. Then he must assess the gravity of the alleged offence and the punishment which would probably be appropriate in the event that the accused is convicted. In order to make this decision, he will need, in all cases, to have regard to the charge and to the maximum punishment which may be imposed in the event of conviction. In some cases he may also need to hear an outline of the 27 prosecution case and some or all of the prosecution evidence. 7.29 Having formed a view as to the probable seriousness of the charge, the commanding officer must then decide whether he has the power to impose an appropriate punishment in the event that the charge is proved. If in his opinion the charge, if proved, would warrant a more severe punishment than he could impose (whether the punishment be an elective one or otherwise) he must refer the charge to a convening authority. On the other hand, if he considers that he has the power to impose an appropriate punishment he should proceed with the trial. Where, in the course of the trial, he considers that the evidence adduced by the prosecution is sufficient to support the charge, and, in the event of convicting the accused, he is likely to impose an elective punishment, the commanding officer is

25

See DFDA s.104 (footnote 16) for definition of prescribed offence. See paragraph 7.32. For this purpose, evidence may be heard under s.111A of the DFDA.

26

27

ADFP 201 VOLUME 1 79 required to give the accused an opportunity to elect to be tried or punished by court martial or Defence 28 Force magistrate . 7.30 Where oral evidence is given at a hearing for the purpose of determining whether a commanding officer should try a charge, this evidence may form part of the evidence at the subsequent trial of the accused before the same commanding officer. Witnesses who give evidence at the hearing are not required to repeat that evidence at the trial unless the accused requires them to do so. Regardless of whether witnesses are required to give evidence at the trial (having given evidence 29 at a prior hearing) they must be made available for cross-examination by the accused . 7.31 In the event that a commanding officer decides to try a charge and commences the trial, he 30 may, nevertheless, break off the trial and refer the charge to a convening authority . Directing that a Charge Not be Proceeded With 7.32 If a commanding officer does not have jurisdiction to try a charge he may, nevertheless, hear evidence against the accused. If, in his opinion, this evidence is insufficient to support the charge he 31 must direct that the charge not be proceeded with . The commanding officer may hear the evidence himself or, where the charge relates to a prescribed offence or appears to be sufficiently serious to warrant trial by court martial or Defence Force magistrate, should direct an examining officer to hear evidence. Referring a Charge to Another Commanding Officer 7.33 Where it is desirable in the interests of justice or for any other reason, a commanding officer 32 may refer a charge to another commanding officer to deal with . Referring a Charge to a Superior Summary Authority 7.34 A commanding officer may refer a charge to a superior summary authority when it is within 33 the jurisdiction of the superior summary authority to try . As the jurisdiction of a superior summary authority in relation to a member of the Defence Force (which is restricted to offenders who are officers or warrant officers) is only one rank different from that of a commanding officer, there will usually be little purpose in referring a charge in this way. However, cases may occur from time to time, where, although a commanding officer has jurisdiction to try a particular charge, it may be preferable for policy reasons to refer the matter to a superior summary authority. Referring a Charge to a Convening Authority 7.35 A commanding officer may refer a charge to a convening authority whether or not the 34 commanding officer has jurisdiction to try it . If it is not within his jurisdiction to try, he should refer it to the convening authority only where he is satisfied that there is sufficient evidence to support it; 35 otherwise, he should direct that the charge not be proceeded with . Where the charge is within his

28

See paragraph 7.20. DFDA s.111A and Rule 6(2)(D) of the DFD Rules. DFDA s.131A. DFDA s.110(b); also see paragraph 7.13. DFDA s.110(e); see also paragraph 7.16. DFDA s.110(1)(c). DFDA s.110(2). See paragraphs 7.13 and 7.32.

29

30

31

32

33

34

35

ADFP 201 VOLUME 1 710 jurisdiction to try, a commanding officer should refer it to a convening authority only when he considers that he does not have the power to impose an appropriate punishment in the event that the accused is convicted, or, in an appropriate case, where the accused elects to be tried by court martial or Defence 36 Force magistrate . 7.36 Notwithstanding anything in paragraph 7.35, in a case where the alleged offence involves fraud against the Commonwealth, and the amount of the loss occasioned by the alleged offence exceeds the limit of a reparation order which may be imposed by a summary authority (see paragraph 11.71) the matter is not to be tried summarily bit is to be referred to a convening authority who is able to convene a trial by court martial or Defence Force magistrate. SUPERIOR SUMMARY AUTHORITIES Jurisdiction 7.37 A superior summary authority may deal only with a charge that has been referred to him by a commanding officer or a convening authority; he may not deal with a charge of his own motion. In 37 dealing with a charge he may try it or refer it to a convening authority . A superior summary authority 38 may try a charge in respect of a Service offence which is not a prescribed offence where the accused is two or more ranks junior to him being not higher in rank than squadron leader (or 39 equivalent), a warrant officer or a person who is not a member of the Defence Force . A superior summary authority may not try a charge against a member of the Defence Force who is not an officer or a warrant officer. Appointment 7.38 An officer may exercise the powers of a superior summary authority only when he has been 40 duly appointed as such by a Service chief . In exceptional circumstances it may be desirable that a commanding officer also hold an appointment as a superior summary authority. In such a case, the officer concerned may not deal with a charge as a superior summary authority with which he has dealt as a commanding officer, or which is related to such a charge. It should also be remembered that under the DFDA a summary authority may deal with a charge against a member of a Service other than his own. Thus, if the commanding officer of a naval air squadron, which is operating from a RAAF base, decides to refer a charge to a superior summary authority, he may refer it to the Officer Commanding the RAAF base (if he is appointed as a superior summary authority) rather than to a superior summary authority who is a naval officer. Punishments Available to a Superior Summary Authority 7.39 Where he tries a charge and convicts an accused, a superior summary authority may impose punishments in accordance with Table A of Schedule 3 of the DFDA. These punishments are in fact the same as those which may be imposed by a commanding officer in respect of officers, warrant officers and persons who are not members of the Defence Force and, for convenience, are set out below. It will be noted that 2 scales of punishment are available to a superior summary authority, namely, elective punishments and other punishments. At a trial before a superior summary authority, an accused's right to elect trial by or to be punished by court martial or Defence Force magistrate arises in the same way as explained in paragraph 7.20 in connection with punishments available to a commanding officer.

36

See paragraph 7.20. See paragraph 7.20. DFDA s.109. As to prescribed offences, see footnote 16. See paragraph 7.40. DFDA s.105(1).

37

38

39

40

ADFP 201 VOLUME 1 711 7.40 The punishments available to a superior summary authority are as follows:

Convicted person Officer of or below the rank of lieutenant commander, major or squadron leader or warrant officer

Elective punishment Fine exceeding the amount of the convicted person's pay for 7 days but not exceeding the amount of the convicted person's pay for 14 days Fine exceeding $l00 but not exceeding $200

Person who is not a member of the Defence force

Other punishment Fine not exceeding the amount of the convicted person's pay for 7 days Severe reprimand Reprimand Fine not exceeding $100

7.41

For further information on punishments see Chapter 11. SECTION 2 - SUMMARY HEARINGS PRELIMINARY MATTERS

7.42 Following the report of an offence, an authorised member of the Defence Force may, on reasonable grounds, charge a person with a Service offence. The manner in which a person may be charged is described in Chapter 4. 7.43 In order to make appropriate administrative arrangements for the conduct of summary proceedings, a summary authority may be informed of the general nature of charges with which he will have to deal. For instance, he may be told what the charges are, the rank and name of the accused, the number of prosecution witnesses who will be called and should be given some indication of the likely duration of the proceedings. A summary authority should not, however, seek to obtain any of the evidence or form any opinion on the merits of the case before the hearing commences. Accordingly, no documents in connection with the charge are to be provided to the summary authority before he commences the hearing. Written statements which have been made by witnesses prior to the hearing will not be made available until after the hearing is completed. Similarly, reports by police relating to the offence which is the subject of the charge may not be examined by a summary authority before he deals with the charge. Documents Furnished to the Accused 7.44 After an accused has been charged he must be given a copy of the charge and a copy of 42 each statement in writing obtained by the prosecutor from material witnesses to the alleged offence . If the prosecutor proposes to adduce evidence which is not contained in the statements which have been given to the accused, he must, as soon as practicable, furnish the accused with notice and particulars of the evidence. Similarly, if the prosecutor decides not to call a witness who has made a statement or has been notified to the accused, he should inform the accused before the hearing. THE ACCUSED'S DEFENCE Defending Officer 7.45 An accused may conduct his own case or request the services of a specified member of the Defence Force to defend him at a hearing before a summary authority. Where the services of the person who has been requested are reasonably available the person must be permitted to defend the accused. However, there is no right to be represented by a legal officer unless a commanding officer or a superior summary authority permits a legal officer to act as the defending officer. If the person is
41

41

DFDA s.87(1)(a)(ii); 95(3). DFD Rule 15.

42

ADFP 201 VOLUME 1 712 not reasonably available, the summary authority may, with the consent of the accused, direct another 43 member of the Defence Force to defend the accused . 7.46 In most simple cases it is suggested that an accused should be represented by an officer or warrant officer or senior non-commissioned officer who has specific duties in relation to the accused's employment and welfare and who knows him well. In difficult cases before a commanding officer or a superior summary authority, the summary authority can be requested to permit a legal officer to 44 represent the accused. 7.47 Where a person has been asked or directed to represent an accused, he thereby acquires a duty to guard the accused's interests by all honourable and legitimate means known to the law. If, for personal or Service reasons, the person considers that he cannot defend the accused effectively he should inform the accused and arrange for someone else to take on the case. In order to avoid conflict between his duty to the Service and his duty to an accused person, a defending officer should, before undertaking the defence of the accused, remind the accused that he is not obliged to say anything which will incriminate him. If the accused admits to committing the alleged offence, and intends to plead not guilty to the charge, the defending officer should generally withdraw from the case and inform the accused that he is unable to defend him effectively. When it is not practicable to arrange for another person to represent the accused, the defending officer should continue to act for him but may not falsely suggest to the Service tribunal that some other person committed the offence charged or set up an affirmative defence which is inconsistent with the admission by the accused. Duties of a Defending Officer before a Summary Hearing 7.48 Before a summary hearing commences, a defending officer should prepare the defence by studying the charge sheet and the statements made by witnesses, and determine whether the accused should call evidence contradicting any part of the prosecution case. The accused should consider whether any of the rights which are printed on the back of the Summary Proceedings Report apply to him and whether he wishes to make any appropriate applications or objections in respect of these rights. Consideration should also be given to calling character witnesses and to the preparation of a plea in mitigation. More specific advice is given in Chapter 8 paragraphs 8.58 to 8.75. Duties of a Defending Officer during a Summary Hearing 7.49 The defending officer should cross-examine prosecution witnesses where, in his opinion, this is likely to provide evidence favourable to the accused's defence. If the accused has a version of the facts which differs substantially from the case being put by prosecution witnesses, the defending officer should put this version to the appropriate witnesses. It is not part of the defending officer's duty to seek an acquittal at all costs but he should present the accused's case in the most favourable light possible. He should not make any allegations against the character of any other person that he cannot prove, nor should he attempt to deceive the summary authority. Prior to the plea in mitigation, the 45 defending officer may complete Form PD 108 and submit it to the summary authority. In making his plea in mitigation, the defending officer may call witnesses to give evidence as to the character of the accused and may address the authority on the question of punishment. THE PROSECUTION CASE The Requirement for a Prosecutor 7.50 A prosecutor is required at all summary hearings to present evidence in support of the charge. A summary authority may not, himself, act as prosecutor as this would be inconsistent with his duty to act impartially in dealing with a charge. An authority may ask questions of witnesses in the

43

DFD Rule 24. DFD Rule 24(2A). Pre-Sentence Report, see Annex R to this Chapter.

44

45

ADFP 201 VOLUME 1 713 course of a hearing but should limit such questions to clarification of evidence and should avoid the temptation to open an independent line of inquiry into the facts of a case. The Appointment of a Prosecutor 7.51 A commanding officer or superior summary authority should ensure that provision is made within his unit for the prosecution of Service offences. Normally, he should nominate persons to act as prosecutors when he first assumes his appointment in the unit or ship, etc. In nominating prosecutors, the authority should seek to provide a spread of rank and experience so that, in any case, the accused will be prosecuted by a person of appropriate rank, and that more difficult or complex cases will be dealt with by experienced personnel. 7.52 The authority may appoint prosecutors by name or from a class or group of members who by their rank and service duties are well suited for the task. Any officer, warrant officer or senior noncommissioned officer may be appointed as prosecutor for a particular case. 7.53 The selection of a prosecutor for a particular hearing will usually be the duty of the member of the Defence Force authorised to charge the member. In making his decision, the authorised member will have regard to the level of summary authority who will initially deal with the charge. A person who has been involved in the investigation of a Service offence should not usually act as prosecutor of a resulting charge. It may be necessary for an officer who holds an appointment as a subordinate summary authority, on occasions, to be used as a prosecutor, but, having acted in one of those capacities in relation to a charge, it would be improper for him to act in the other capacity in relation to the same charge. Duties of a Prosecutor before a Summary Hearing 7.54 On receipt of the charge sheet, the prosecutor should ensure that the charge is properly framed and that there is sufficient evidence to support the charge. He should confirm the date, time and place of the hearing and arrange for the attendance of witnesses necessary to prove each element of the charge. He should also arrange for the provision and safe-guarding of documentary evidence, if any, and the accused person's conduct record. The prosecutor must ensure that the accused is provided with a copy of the charge and a copy of each statement made by prosecution witnesses, if these have not already been provided by the authorised member. The prosecutor must also ensure that any material that might possibly assist the accused is disclosed to the defending officer. 7.55 Shortly before the hearing, the prosecutor should ensure that each witness is thoroughly conversant with the evidence which he is able to give and which he has recorded in his statement. The witness should be advised to go over his statement and refresh his memory of what he knows of the facts in issueparticularly dates and actual words used on the occasion of the alleged offence. The prosecutor may decide not to use a witness if he is unlikely to be credible or merely repeats another witness's evidence. If such a witness is not to give evidence, the defending officer should be advised so that he or she may consider whether to call that witness or ask for the prosecution to tender the witness for cross-examination. A witness should not be discarded only because he is likely to give evidence which is unfavourable to the prosecution case. Duties of a Prosecutor at a Summary Hearing 7.56 The prosecutor will be required to read the charge and place the original copy of the Summary Proceedings Report before the summary authority. The prosecutor should also address any statutory alternative charge upon which he or she might seek to rely if the primary charge is not made out. He is required to question prosecution witnesses and cross-examine defence witnesses to provide evidence in support of the charge. The prosecutor has a duty to present evidence in a way which is fair to the accused; it is not his duty to obtain a conviction at all costs. Where, at a trial, a person has been convicted, the prosecutor is responsible for producing the person's conduct record when called upon to do so. The Form PD 103Conduct Recordwill contain a note to the effect that some of the convictions recorded in it may be 'spent convictions' within the meaning of Part VIIC of the Crimes Act. A spent conviction is one where the punishment imposed was not more than 30 months imprisonment, and more than 10 years have elapsed or more than 5 years when the offender was a minor at the time of the conviction. Although the prosecutor may disclose a spent conviction to the

ADFP 201 VOLUME 1 714 summary authority, the prosecutor should draw to the attention of the summary authority the fact that the conviction is spent, so that the authority may exercise discretion as to whether or not to consider it in sentencing. CONDUCT OF SUMMARY PROCEEDINGS General 7.57 Where a summary authority decides to try a charge he is required to conduct the trial 'according to law, without fear or favour, affection or ill-will'. In particular he is required: a. to ensure that any hearing of a charge is conducted in accordance with the DFDA and the Rules and in a manner befitting a court of justice; to ensure that an accused does not suffer any undue disadvantage in consequence of his position as such or of his ignorance or of his incapacity to adequately examine or cross-examine witnesses or to make his own evidence clear and intelligible, or otherwise; to try the accused according to the evidence; to ensure that an adequate record of the proceedings before him is made ; and to be satisfied that on a plea of guilty the accused understands the effect of that plea, and if it appears that the accused does not, to substitute a plea of not guilty (DFD Rule 43).
46

b.

c. d. e.

7.58 For most practical purposes the procedure at all summary trials is the same, regardless of which level of summary authority is involved. Before discussing the procedures in detail, some comment is appropriate on what might be described as the 'ceremonial' aspects of summary trials. The word ceremonial in this context means such matters as marks of respect, saluting, standing at attention, removal of headdress, etc which form an ordinary part of everyday Service discipline. 7.59 The procedures which are set out in subsequent paragraphs do not attempt to fix rules governing all of the ceremonial aspects of summary trials. The purpose is to help ensure that the disciplinary law system in operation in the Defence Force remains flexible so that it can meet the needs and particular circumstances of different units within each Service. In this context, it is to be noted that a summary authority is required to hear a charge 'in a manner befitting a court of justice' and is to ensure that an accused person 'does not suffer any undue disadvantage in consequence of 47 his position . 7.60 It may be, in some cases, that the ordinary ceremonial aspects of summary proceedings do not promote or even are inconsistent with the administration of justice and, for that reason, ought to be dispensed with. For example, in any case where there is a large amount of evidence or for other reasons, it may be desirable that all the participants, including the accused, should remain seated throughout the proceedings. Similarly, every effort should be made to avoid transferring the military standards of the parade ground to a summary hearing, as this may tend to detract from the real purpose of the proceedings or may put the accused at a psychological disadvantage. It should also be remembered that proceedings under the DFDA are in the nature of criminal judicial proceedings with the special purpose of maintaining discipline in the Defence Force, and that the powers conferred by Parliament on summary authorities must be exercised strictly according to law.

46

DFD Rule 22. DFD Rule 22.

47

ADFP 201 VOLUME 1 715 Procedures Generally 7.61 The procedures to be followed at summary hearings are set out in Annexes A, C, E, G, I and K. In particular cases, the steps which are followed will vary according to which type of summary authority conducts the hearing, whether or not the authority has jurisdiction to try the charge, whetherdespite having jurisdiction to trythe authority decides he should not try it and, in the event that he does decide to try the charge, whether the accused pleads guilty or not guilty. As an aid to clarifying the various procedural steps involved in any summary hearing, diagrams are included at Annexes B, D, F, H, J and L The numbers which are included in the blocks in each diagram .. correspond to the 'Item numbers' in the written annex to which they apply. Hearings Other than Trials 7.62 A hearing will be conducted in all cases, although in the majority of cases it will consist of nothing more than the formal steps up to and including the reading of the charge sheet and the decision by the summary authority to proceed with the trial. In a small number of cases the summary authority may wish to hear an outline of the prosecution case and may also hear evidence of the prosecution witnesses before deciding whether or not to try the charge. The summary authority must follow one of the pre-trial hearing procedures which are set out in Annexes A, E and I. Officials at a Summary Hearing 7.63 Apart from the summary authority himself, the only other officials who are needed at a hearing are an orderly, a recorder and, when considered necessary, an escort. The function of the orderly is to assist in the conduct of the hearing as directed by the summary authority, to control the movement of witnesses into and out of the court and to administer the oath or affirmation. The recorder is required to take an accurate record of proceedings which may be handwritten during the course of proceedings or else recorded by means of sound recording apparatus and transcribed at a 48 later time . In either case, the recorder is not required to produce a verbatim record of proceedings unless the summary authority directs that part or all of the proceedings are to be recorded verbatim; see under Recording the Proceedings at paragraph 7.66. An escort is only required when an accused or a witness is being held in custody prior to the trial or where the accused, if convicted, is likely to receive a custodial punishment. Also, where it is considered that an accused may interrupt the proceedings or cause a disturbance therein, an escort should be provided. The functions of an escort at a summary hearing are similar to those of an escort at a court martial; see paragraphs 9.69 to 9.70. Public Access to a Summary Hearing 7.64 Summary Hearings are not subject to the open court principle, unlike hearings before a 49 court martial or Defence Force magistrate. The summary authority is therefore not obliged to allow access to the hearing by any persons beyond those necessary for the proper conduct of the hearing. That is, ordinarily, the proceedings will be closed. Legal Officers as defending officers 7.65 Commanding officers and superior summary authorities may grant leave for a legal officer to 50 appear as a defending officer. It is expected that leave should ordinarily be granted only in exceptional cases, where the interests of justice require it. The decision to grant leave should be made with regard to the factors listed at paragraph 7.57 and any relevant circumstances.

48

The summary authority may record the proceedings himself, thus obviating the need for a separate person to record the proceedings; see paragraph 7.66. DFDA s.140. DFD Rule 24(2A).

49

50

ADFP 201 VOLUME 1 716 RECORDING OF SUMMARY PROCEEDINGS 7.66 A summary authority is required (under section 148 of the DFDA) to keep a record of proceedings; the record must contain a list of witnesses, the substance of the evidence of the witnesses and such additional matter (if any) as is necessary to enable the merits of the case to be 51 judged . Where an election for trial or punishment by court martial or Defence Force magistrate has been offered by the summary authority, the record of proceedings should attach a copy of the written Notification and Election (Annex U in the case of an election to be tried by court martial or Defence Force magistrate or Annex V in the case of an election to be punished by court martial or Defence Force magistrate). This will be the form that was provided to and completed by the member facing trial. The record may be handwritten or recorded by shorthand or sound recording apparatus (and later transcribed). The summary authority himself may also fulfil the role of recorder. This method of recording may be impractical in complicated hearings, and the summary authority should be aware of the possibility that his record of proceedings may be criticised for lack of accuracy in any subsequent review. Prior Written Statements by Witnesses 7.67 In order to simplify the task of recording summary proceedings in the prescribed manner, it is generally permissible to treat a written statement made by a witness before commencement of a 52 hearing as forming part of the record of proceedings . Statements may be so treated when their contents correspond closely with the evidence given orally at the hearing by the witnesses who made them. However, they may not be treated as forming part of the record where the oral evidence given by witnesses differs in a material way from that contained in the statements. In the latter situation, where the differences between the written statements and the oral evidence form only a small part of the totality of the evidence, the statements may be amended to reflect the evidence given orally by the witnesses and may then be included in the record of proceedings. On the other hand, where the written statements are not easily amended to reflect the oral evidence, they should not be incorporated in the record of proceedings; instead, the oral evidence which is recorded at the hearing must be included. 7.68 It follows from the comments above that the recorder must make notes of the oral evidence of witnesses during the hearing in order to determine whether or not their prior written statements may be included in the record of proceedings. Method of Recording Evidence 7.69 Apart from the evidence-in-chief of prosecution witnesses (to which the procedure described in paragraph 7.62 will generally apply) other evidence in a record of proceedings will consist of what is recorded at a hearing. This evidence will include cross-examination and re-examination of all witnesses, evidence-in-chief of defence witnesses and any evidence which arises from questions asked by the summary authority in the course of the hearing. 7.70 There is no requirement that evidence be recorded verbatim; however, it is essential that the substance of the evidence be recorded accurately. Although the recorder has a responsibility for taking an accurate record, he should be assisted in this task by other participants at the hearing, especially when the record is being taken by hand. The summary authority, prosecutor and defending officer should all take notes of the evidence whenever they are able to do so and, at the end of the hearing, should make their notes available to the recorder. Additionally, in the course of a hearing, if some doubt arises in relation to any part of the evidence which has been heard, any participant who has taken a note of that part may say what is recorded in his note.

51

DFD Rule 55(1). Where the evidence given by the witness is relatively short it should generally be written into the body of the Record of Evidence.

52

ADFP 201 VOLUME 1 717 Certification of the Record of Proceedings 7.71 The record of proceedings at a summary hearing must be certified as being true and correct by the recorder and the summary authority as soon as practicable after the conclusion of the 53 hearing . The recorder and summary authority must also sign each page of the Record of Evidence. Where the record is taken by means of shorthand or by sound recording apparatus, the recorder must arrange for it to be transcribed and the person who transcribes the record must authenticate it. The Form in Which Proceedings are to be Recorded 7.72 The record of proceedings before a summary authority will comprise two separate forms, namely, the Summary Proceedings Report (Form PD 105) and the Record of Evidence (Form PD 104). These two forms are discussed below. Summary Proceedings Report (Form PD105)
54

7.73 The Summary Proceedings Report serves a number of functions. First, it provides relevant details of the accused; secondly, it embodies the charge sheet; and thirdly, it provides a resume of the action taken in relation to the charge from the moment it is first dealt with by a summary authority until it has passed through all possible avenues of review. Summary authorities who deal with a charge and reviewing authorities who review the conviction and/or punishment relating to the charge are responsible for completing the relevant parts of the Summary Proceedings Report and certifying that those parts are true and correct. When all action in relation to a charge is completed, copies of the Report are to be sent to all authorities shown on the distribution list for such follow-up action as may be appropriate. In every case the original of the Report is to be returned to the parent unit of the convicted person, under cover of Form PD 103 (see paragraph 7.75). Record of Evidence (Form PD 104)
55

7.74 The Record of Evidence should contain the substance of all evidence received during a hearing, whether it is received by a summary authority for the purpose of deciding how to deal with a charge or in the course of a trial. Where the prosecutor gives an outline of the case but does not call witnesses, the substance of this outline should be recorded whether the outline is given at a hearing (other than a trial) or in a trial. The substance of addresses made by the prosecutor or defending officer (or accused) should also be recorded and attached to the Record of Evidence when they assist in explaining the evidence or in judging the merits of the case. After the Record of Evidence has been completed and certified by the recorder and the summary authority, it is to be filed in Form PD 103 (see paragraph 7.75). Filing and Transmission of Documents Relating to Summary Proceedings 7.75 The Summary Proceedings Report and Record of Evidence, together with any other documents relating to a charge, should be filed in the Conduct Record (Form PD 103) which is a file cover. Form PD 103 provides for the recording of all offences which have been committed by a member of the Defence Force; all offences means Service offences, civil offences and overseas offences. (The requirement to maintain a record of all offences committed by members of the Defence Force arises as a consequence of section 70 of the DFDA which requires a Service tribunal to take previous offences into account in determining punishment.) When a summary authority refers a charge to another authority (including a reviewing authority) or directs an examining officer to hear evidence, he may send the documents relating to the charge under cover of Form PD 103. After the authority has completed the appropriate action in relation to the charge, he should return the form to the parent unit of the person who was charged or refer it to another authority (as the case may be). Form PD 103 should bear the privacy marking Staff-in-Confidence and be handled in accordance

53

DFD Rule 55(3). A sample Form PD 105 is at Annex M to this Chapter. A sample Form PD 104 is at Annex N to this Chapter.

54

55

ADFP 201 VOLUME 1 718 with the rules applicable to this caveat. Form PD 103 is to be forwarded to the parent unit of the 56 member when he is posted . Summary Punishment Statistics 7.76 Summary punishment statistics are to be reported quarterly Jan-Mar, Apr-Jun, Jul-Sep and Oct-Dec to the SO2 JAG by the legal office responsible for reviewing or examining forms PD105. Each legal office in the ADF has an Excel copy of the three forms that comprise this report. Each quarterly report is to be produced on a stand alone basis and will be compiled in a central database for each of the three Services by SO2 JAG. For information, a copy of each of the three forms is at Annex X and detailed instructions on their completion are at Annex W. Reporting of Not Guilty Verdicts 7.77 Legal officers do not review Not Guilty findings. Unless there are multiple charges with at least one of those charges resulting in a conviction, the Legal officer will not be aware of Not Guilty findings occurring in the unit. These Not Guilty findings must be included in the quarterly statistical return. All units are to make a note of Not Guilty findings which have not already been conveyed to the reviewing Legal officer and this information is to be provided to the Legal officer for inclusion in the quarterly statistics report. SECTION 3EXAMINING OFFICERS Functions and Powers of Examining Officers 7.78 Subject to the rules of procedure and the exigencies of service, a commanding officer may, at any stage of dealing with or trying a charge, direct an examining officer to hear evidence in relation 57 to the charge . The examining officer will generally be a legal officer. Where an examining officer is directed to hear evidence, he may exercise similar powers to those which may be exercised by a 58 commanding officer in dealing with a charge . Persons who give false evidence or behave with 59 contempt in proceedings before an examining officer are liable to be convicted of an offence . An 60 examining officer has the power to summon an accused or witnesses to appear at a hearing before 61 him, to take evidence on oath or affirmation and to adjourn proceedings . The hearing of evidence by 62 an examining officer may take place only in the presence of an accused ; the evidence which is taken 63 must be admissible under the rules of evidence applicable to Service tribunals ; and the proceedings 64 are to be recorded .

56

For more detailed instructions relating to Conduct Records see the single Service Supplements in Part 13 of Vol 2. DFDA s.130A; Form 43, 44. DFDA s.130A. DFDA s.52, s.53. DFDA s.87(5). DFDA s.138. DFDA s.139. DFDA s.130A. DFDA s.130A.

57

58

59

60

61

62

63

64

ADFP 201 VOLUME 1 719 Purpose of Directing an Examining Officer to Hear Evidence 7.79 A commanding officer may direct an examining officer to hear evidence for several purposes. First, use of an examining officer will spare a commanding officer the time consuming task of hearing evidence himself, in order to decide how to deal with a charge. Secondly, as evidence which is taken by an examining officer will generally be admissible (in the technical, legal sense), there is less likelihood that a commanding officer will make his decision in relation to a charge on the basis of evidence which should not be considered. Finally, and perhaps most importantly, where a charge is referred to a convening authority, any decision by the authority to have the charge tried by court martial or Defence Force magistrate will generally be made on the basis of sworn, admissible evidence. When an Examining Officer should be Directed to Hear Evidence 7.80 Although a commanding officer may direct an examining officer to hear evidence at any stage of dealing with or trying a charge, he should need to do so only in a relatively small number of cases. These cases are where a witness is dangerously ill, where the charge relates to a serious 65 offence or where certain officers have been charged with Service offences. In some circumstances a commanding officer should direct an examining officer to hear evidence before he hears any evidence himself. He would do so in the following circumstances: a. b. c. where a witness is dangerously ill; where the charge relates to a prescribed offence ; where a charge against an officer relates to a serious offence or where any charge is made against an officer above the rank of squadron leader (or equivalent); and where, although he has jurisdiction to try the charge, it is apparent that he should not do so (eg the theft of a large sum of money).
66

d.

7.81 In other circumstances, a commanding officer should direct an examining officer to hear evidence only after the commanding officer has heard evidence for the purpose of deciding how to deal with a charge. Such a course of action should be followed in any case where the evidence heard by a commanding officer indicates that the offence alleged is more serious than he had believed it to be at first sight and that it would probably warrant trial by court martial or Defence Force magistrate. 7.82 Apart from the circumstances above, a commanding officer may direct an examining officer to hear evidence even where he has started to try a charge. However, he should do so only in the rare situation where he decides to break off a trial because evidence at the trial indicates that the offence is much more serious than he had realised when he decided to try the charge. PROCEDURE AT A HEARING BY AN EXAMINING OFFICER 7.83 An examining officer may follow one of two procedures when he is directed to hear evidence. The choice of procedure depends upon whether he is required to hear evidence because a witness is dangerously ill or for other reasons. Where he is directed to take evidence from a person who is dangerously ill, an examining officer is to follow the procedure set out in DFD Rule 25. However, in all other cases, he should follow the procedure which is set out in the paragraphs which follow. Before the Hearing 7.84 After being directed to hear evidence, the examining officer should be given the Summary Proceedings Report containing the charge sheet, Record of Evidence taken at the proceedings before

65

A serious offence in this context is one which if proved would warrant a punishment higher than a fine of an amount of 7 days pay. See paragraph 7.27, footnote 26.

66

ADFP 201 VOLUME 1 720 the commanding officer and statements which may have been made by prosecution witnesses. He should also be given any other documents or objects which form part of the evidence of the case. After examination of this evidence and, if necessary, after discussion with the prosecutor in the proceedings before the commanding officer, the examining officer should decide who will be required to give evidence and should make the necessary arrangements to hear this evidence. 7.85 Whenever possible, the examining officer should seek to hear all the evidence in the course of one hearing and should direct all witnesses and the accused to attend at a time and place which he has nominated. Where any witness is not able to attend the hearing, the examining officer should make other arrangements for taking evidence from the witness and ensure that the accused, also, is present. Where it is not reasonably practicable for a witness to give evidence to the examining officer he may make a written statement to a person (usually a legal officer) who has been directed by the examining officer to take the statement. Written statements of this nature are to be read to the accused in the course of the hearing and are to form part of the record of evidence. Administrative Arrangements at the Hearing 7.86 The hearing-room may be arranged in whatever way is considered by the examining officer to be appropriate in the circumstances. In most cases an arrangement in accordance with the Layout in Annex G (modified to reflect the absence of the prosecutor) would probably be suitable. Apart from the examining officer, the only other officials who are needed at a hearing are an orderly, a recorder 67 and, when considered necessary, an escort . The function of the orderly is to assist in the conduct of proceedings as directed by the examining officer, to control the movement of witnesses into and out of the hearing-room and to administer the oath or affirmation. Conduct of the Hearing 7.87 The hearing of evidence by an examining officer is to be conducted in accordance with the procedure set out in Annex N. Recording the Proceedings 7.88 An examining officer is required to keep a record of proceedings which must contain a list of 68 witnesses and the substance of the evidence of the witnesses . In practice, the record of proceedings will generally be taken by a recorder who may take a handwritten or typewritten record. Alternatively, he may record the proceedings in shorthand or by means of sound recording apparatus and transcribe this record. Where the attendance of a witness cannot be reasonably procured and the witness makes a written statement in connection with the charge, the examining officer is to ensure that the statement 69 is included in the record of proceedings . After the hearing 7.89 When an examining officer has heard all the evidence, he should satisfy himself that the record reflects accurately the substance of the evidence given by witnesses and should certify that the record is true and correct. As soon as practicable after the hearing, an examining officer should forward the record of evidence to the commanding officer who directed him to hear evidence and provide the accused person with a copy of the record.

67

See Chapter 8 paragraphs 8.84 to 8.85 as to when an escort may be required and what functions he should perform. DFD Rule 26(3)(c). DFD Rule 26(3)(d).

68

69

ADFP 201 VOLUME 1 721 OFFICER CADETS General 7.90 An officer cadet is an officer who holds the rank of midshipman in the Navy, officer cadet in 70 the Army or officer cadet in the Air Force . By virtue of his or her appointment as an officer in the Defence Force, an officer cadet is subject, generally, to the same provisions of the DFDA as apply to all other members of the Defence Force who are officers. Additionally, the Defence Force Discipline Regulations (DFD Regulations) make special provision in relation to officer cadets, in recognition of 71 their youth and the particular disciplinary requirements associated with their training . Although these special provisions have been incorporated, where appropriate, in the foregoing discussion of summary procedures, for convenience they are summarised in the succeeding paragraphs. Jurisdiction of Subordinate Summary Authorities in Relation to Officer Cadets 7.91 In effect, the Regulations enable an officer who is appointed as a subordinate summary authority to deal with and to try certain offences against an officer cadet. In the event of convicting an officer cadet, a subordinate summary authority may impose a punishment from the punishments prescribed in the Regulations (see paragraph 7.92). A subordinate summary authority may deal with and try a charge against an officer cadet in respect of a Service offence of a kind notified in writing by the commanding officer who appointed him. The manner in which a subordinate summary authority may deal with a charge against an officer cadet, and the conduct of a summary hearing involving such 73 a charge, is the same as if the officer cadet were any other member of the Defence Force . Naval officers of or above the rank of commander or who hold an appointment of Executive Officer of a ship or naval establishment may deal with and try charges against midshipmen. They may also deal with charges against officer cadets in the Army or the RAAF but may not try such charges. Punishment of Officer Cadets by Subordinate Summary Authorities 7.92 The punishments which may be imposed by a subordinate summary authority on an officer 74 cadet who has been convicted of a Service offence are as follows : a. b. c. d. e. fine not exceeding the amount of the convicted person's pay for 3 days; severe reprimand; restriction of privileges for a period not exceeding 7 days; stoppage of leave for period not exceeding 7 days; extra duties for a period not exceeding 7 days (for naval subordinate summary authorities who are the rank of or above commander, or appointed as executive officers not exceeding 3 days); extra drill for not more than two sessions of 30 minutes each per day for a period not exceeding three days (this punishment is not available to naval subordinate summary authorities who are the rank of or above commander, or appointed as executive officers);
72

f.

70

Reg 3 of the DFD Regulations. The relevant regulations are made under s.6(2) of the DFDA. Reg 45 of the DFD Regulations' DFDA s.108(1A), (3), (4)(a). See especially paragraphs 7.1 to 7.15 and 7.42 to 7.77. Reg 33 of DFD Regulations.

71

72

73

74

ADFP 201 VOLUME 1 722 g. reprimand.

7.93 In addition to punishment, a subordinate summary authority may take other action under Part IV of the DFDA, such as making an order that a conviction be recorded without punishment or making an order for restitution of stolen property or the payment of reparations. 7.94 Certain naval officers who are appointed as subordinate summary authorities are empowered to impose more severe punishments on sailors than may be imposed by other 75 subordinate summary authorities . However, the powers of punishment in respect of midshipmen are not more severe than those available to other subordinate summary authorities. In fact, the punishments were originally identical to those of other subordinate summary authorities, but an amendment to Schedule 3 of the DFDA was not accompanied by an equivalent amendment to the DFD Regulations, resulting in the small differences between the two. Jurisdiction of Commanding Officers in Relation to Officer Cadets 7.95 A commanding officer has jurisdiction to deal with any charge against an officer cadet and 76 may try any charge, other than one relating to a prescribed offence , against an officer cadet. Where he tries an officer cadet and convicts him of a Service offence, a commanding officer may impose a punishment prescribed by the Regulations (see paragraph 7.96) or take any other action under Part IV of the DFDA as may be appropriate in the circumstances. Punishment of Officer Cadets by Commanding Officers 7.96 The following punishments may be imposed by a commanding officer on an officer cadet 77 who has been convicted of a Service offence : a. fine not exceeding the amount of the convicted person's pay for 7 days (see paragraph 7.97); severe reprimand; restriction of privileges for a period not exceeding 14 days; stoppage of leave for a period not exceeding 21 days; extra duties for a period not exceeding 3 days; reprimand.

b. c. d. e. f.

7.97 Where an officer cadet has been offered the right to elect trial by, or be punished by, court 78 martial or Defence Force magistrate and chooses instead to be tried or punished by a commanding officer, a fine of an amount exceeding 7 days pay but not exceeding 14 days pay may be imposed if the officer cadet is convicted. For further information on "elective punishments" see paragraph 7.20. Powers of Other Service Tribunals in Relation to Officer Cadets 7.98 A charge against an officer cadet may be tried by a superior summary authority when it has been referred to him by a commanding officer. If an officer cadet is convicted by a superior summary authority, he is liable to any of the punishments which may be imposed by a superior summary

75

See paragraph 7.10. See footnote 16. Reg 33 of the DFD Regulations. See DFDA s.131.

76

77

78

ADFP 201 VOLUME 1 723 authority on any other officer . Where an officer cadet is alleged to have committed a serious Service offence it may be appropriate that he be tried by court martial or Defence Force magistrate. Where he is convicted by court martial or Defence Force magistrate, an officer cadet may be punished as if he 80 were any other officer of the Defence Force . Annexes: A. Procedure ALPHA - Hearing (Other than a Trial) Conducted by a Subordinate Summary Authority B. Procedure ALPHA - Hearing (Other than a Trial) Conducted by a Subordinate Summary Authority (Diagram) C. Procedure BRAVO - Trial Conducted by a Subordinate Summary Authority D. Procedure BRAVO - Trial Conducted by a Subordinate Summary Authority (Diagram) E. Procedure CHARLIE - Hearing (Other than a Trial) Conducted by a Commanding Officer F. Procedure CHARLIE - Hearing (Other than a Trial) Conducted by a Commanding Officer (Diagram) G. Procedure DELTA - Trial Conducted by a Commanding Officer H. Procedure DELTA - Trial Conducted by a Commanding Officer (Diagram) I. Procedure ECHO - Hearing (Other than a Trial) Conducted by a Superior Summary Authority J. Procedure ECHO - Hearing (Other than a Trial) Conducted by a Superior Summary Authority (Diagram) K. Procedure FOXTROT - Trial Conducted by a Superior Summary Authority L. Procedure FOXTROT - Trial Conducted by a Superior Summary Authority (Diagram) M. Summary Proceedings - Court Layout N. Procedure GOLF - Procedure Before an Examining Officer (Other than where a Person is Dangerously Ill) O. Notes on Summary Proceedings P. Rights of an Accused Person at Summary Proceedings Q. Notes on Bias R. Pre-Sentence Report (Form PD 108) S. Summary Proceedings Report (Form PD 105) T. Record of Evidence (Form PD 104) U. Notification and Election (for trial) V. Notification and Election (for punishment) W. Instructions on the Completion of Punishment Statistics Spreadsheets X. Punishment Statistics Spreadsheets
79

79

See Table A of Schedule 3 to the DFDA and paragraph 7.40. See Schedule 2 to the DFDA.

80

ADFP 201 VOLUME 1 ANNEX A TO CHAPTER 7

PROCEDURE ALPHA - HEARING (OTHER THAN A TRIAL) CONDUCTED BY A SUBORDINATE SUMMARY AUTHORITY
Note: This procedure applies only in respect of offences which the Subordinate Summary Authority has been given jurisdiction to "deal with" (by instrument in writing under DFDA s.108(1)).

Item 1.

Procedure COURT ASSEMBLES

Notes 1. Court to be set out as in Annex M. 2. Assembly procedure may he amended when the hearing is held in the Authority's own office. 3. The prosecutor, defending officer, and recorder take their places in court before the Authority arrives. The accused and escort (if any) remain outside the court until called. 4. Headdress is to be worn.

2. 3. 4.

AUTHORITY ARRIVES PROSECUTOR ANNOUNCES CASE TO AUTHORITY AUTHORITY CALLS FOR ACCUSED. RECORDER (IF ANY) TO BE SWORN OR AFFIRMED

Those assembled should salute the Authority. The prosecutor should announce the names of the accused and the defending officer. 1. The accused (and escort if any) enters the court and salutes the Authority. The accused has the right to object that the recorder is not impartial or is not competent. 2. As to form of oath etc see Notes 6-8 and 12 in Annex O. 1. The Authority should explain the charge if necessary. 2. The accused should not be asked to plead to the charge at this stage. 3. Headdress may be removed after reading the charge.

5.

PROSECUTOR READS CHARGE

6.

AUTHORITY CONSIDERS CHARGE AND DETERMINES WHETHER HE HAS JURISDICTION TO TRY IT

1. As to jurisdiction, see paragraph 7.4 of the DLM. 2. If the authority does not have jurisdiction to try, he should hear evidence in order to decide whether the charge should not be proceeded with or whether it should be referred to another Authority - proceed to Item 6A. 3. If the Authority has jurisdiction to try, three courses are open to him: a. he may refer the charge to another Authority proceed to Item 6B; b. he may try the charge - proceed to Item 19; or c. he may hear an outline of the prosecution case in order to decide what to do - proceed to Item 6C. Also see Note 1 in Annex O.

6A.

AUTHORITY DECIDES TO HEAR EVIDENCE (HAS NO JURISDICTION TO TRY)

The Authority should say: "I HAVE NO POWER TO TRY THE CHARGE. HOWEVER, I SHALL HEAR EVIDENCE IN ORDER TO DECIDE WHETHER THE CHARGE SHOULD BE PROCEEDED WITH"proceed to Item 9.

ADFP 201 VOLUME 1 7A2

Item 6B.

Procedure AUTHORITY DECIDES TO REFER CHARGE TO ANOTHER AUTHORITY

Notes The Authority should say: "ALTHOUGH I HAVE THE POWER TO TRY THE CHARGE, HAVING CONSIDERED THE CHARGE, I BELIEVE IT WOULD BE IN THE INTERESTS OF JUSTICE TO REFER IT TO ..................................... (another Subordinate Summary Authority or a CO) TO BE DEALT WITH". The Authority should say: "ALTHOUGH I HAVE THE POWER TO TRY THE CHARGE, I INTEND TO CALL UPON THE PROSECUTOR TO OUTLINE THE FACTS OF THE CASE BEFORE DECIDING WHETHER I SHOULD TRY IT. IF I AM STILL UNDECIDED I WILL HEAR EVIDENCE IN SUPPORT OF THE CHARGE AND YOU WILL BE ENTITLED TO CROSS-EXAMINE PROSECUTION WITNESSES IN DUE COURSE". Proceed to Item 7. The prosecutor should state the elements of the charge and the facts and evidence he intends to produce. There are two courses open to the Authority at this stage. He may decide to: a. try the charge - proceed to Item 19; or b. hear the prosecution evidence before deciding what to do - proceed to Item 9.

6C.

AUTHORITY DECIDES TO HEAR OUTLINE OF CASE IN ORDER TO DETERMINE HOW CHARGE IS TO BE DEALT WITH

7.

AUTHORITY ASKS PROSECUTOR TO OUTLINE CASE AUTHORITY DECIDES ON FURTHER ACTION

8.

9. 10.

WITNESS TO BE SWORN OR AFFIRMED PROSECUTOR EXAMINES WITNESS

The witness must give evidence on oath or affirmation. See Notes 2-5 and 9-11 in Annex O. The witness should be examined by the prosecutor to establish all the facts necessary to prove the charge. Leading questions are not to be asked except to establish facts which are not likely to be disputed. See Note 13 in Annex O. Leading questions may be asked. See Note 14 in Annex O. Questions may only be asked on matters raised in cross-examination. See Note 15 in Annex O. Questions should only be asked to clarify evidence already given. The authority should not assume the role of prosecutor. If he considers that some aspect of the case has not been adequately presented to him he should invite the prosecutor to produce further evidence. See Note 16 in Annex O. If further questioning may be necessary, the witness should be ordered to remain in the vicinity of the court. Witnesses should be examined as in Items 9 to 13.

11.

ACCUSED OR DEFENDING OFFICER MAY CROSS- EXAMINE WITNESS PROSECUTOR MAY REEXAMINE WITNESS AUTHORITY MAY QUESTION WITNESS

12. 13.

14.

WITNESS MAY BE RELEASED

15.

FURTHER PROSECUTION WITNESSES MAY BE EXAMINED

ADFP 201 VOLUME 1 7A3

Item 16.

Procedure WITNESS MAY BE RECALLED

Notes This should be done only in exceptional circumstances at the discretion of the authority to clarify the evidence. The authority should remind the witness that he is on oath or affirmation. See Notes 17-19 in Annex O.

17.

PROSECUTOR ANNOUNCES THAT HE HAS PRESENTED ALL HIS EVIDENCE AUTHORITY DECIDES ON FURTHER ACTION There are three courses open to the Authority at this stage. He may decide to: a. try the charge proceed to Item 19; b. where he has no power to try the charge, and he considers that there is insufficient evidence to support the charge, direct that it not be proceeded with; or c. refer the charge to another Authority - proceed to Item 20.

18.

19.

AUTHORITY DECIDES TO TRY CHARGE

The Authority should inform the accused that he intends to try the charge. If the trial commences immediately proceed to PROCEDURE BRAVO Item 5A; if it is to be held at a later time, it commences at PROCEDURE BRAVO Item 1. The Authority should say: "I NOW REFER THE CHARGE TO (to be named if known, eg the CO or in the case of Navy to the Executive Officer if appropriate). THIS HEARING IS NOW COMPLETED".

20

AUTHORITY DECIDES TO REFER CHARGE TO ANOTHER AUTHORITY

ADFP 201 VOLUME 1 PROCEDURE ALPHA HEARING (OTHER THAN A TRIAL) CONDUCTED BY A SUBORDINATE SUMMARY AUTHORITY
1. COURT ASSEMBLES 2. THE AUTHORITY ARRIVES 6. AUTHORITY CONSIDERS THE CHARGE AND DETERMINES WHETHER HE HAS JURISDICITON TO TRY IT No jurisdiction to try 3. PROSECUTOR ANNOUNCES CASE

ANNEX B TO CHAPTER 7

4. AUTHORITY CALLS FOR ACCUSED. RECORDERSWORN OR AFFIRMED

5. PROSECUTOR READS CHARGE Has jurisdiction to try

6a. AUTHORITY DECIDES TO HEAR EVIDENCE

6b. AUTHORITY DECIDES TO REFER CHARGE TO ANOTHER AUTHORITY

6C. AUTHORITY DECIDES TO HEAR OUTLINE

19. AUTHORITY DECIDES TO TRY CHARDE

9-17. AUHORITY HEARS EVIDENCE

7. PROSECUTOR OUTLINES CASE

PROCEDURE BRAVO

18b. AUTHORITY DIRECTS THAT CHARGE NOT BE PROCEEDED WITH

20. AUTHORITY REFERS CHARGE TO ANOTHER AUTHORITY

8a. AUTHORITY DECIDES ON FURTHER ACTION

19. AUTHORITY DECIDES TO TRY CHARGE

8b. AUTHORITY DECIDES TO HEAR PROSECUTION EVIDENCE

PROCEDURE BRAVO

9-17. AUTHORITY HEARS PROSECUTION EVIDENCE

19. AUTHORITY DECIDES TO TRY CHARGE

20. AUTHORITY REFERS CHARGE TO ANOTHER AUTHORITY

PRODECURE BRAVO

ADFP 201 VOLUME 1 ANNEX C TO CHAPTER 7

PROCEDURE BRAVO - TRIAL CONDUCTED BY A SUBORDINATE SUMMARY AUTHORITY

Item 1.

Procedure COURT ASSEMBLES

Notes 1. Court to be set out as in Annex M. 2. Assembly procedure may be amended when the trial is conducted in the Summary Authority's own office. 3. The prosecutor, defending officer and recorder take their places in court before the trying officer arrives. The accused and escort (if any) remain outside the court until called. 4. Headdress is to be worn. Those assembled should salute the Authority. The prosecutor should announce the names of the accused and the defending officer. The accused (and escort if any) enters the Court and salutes the trying officer. The accused has the right to object that the recorder is not impartial or is not competent. See Notes 6-8 and 12 in Annex O for form of oath etc. 1. The Authority should explain the charge if necessary. 2. The accused should not be asked to plead to the charge at this stage. 3. The prosecutor should address any statutory alternative charge upon which he or she might seek to rely if the primary charge is not made out.

2. 3. 4.

SUBORDINATE SUMMARY AUTHORITY ARRIVES PROSECUTOR ANNOUNCES CASE TO AUTHORITY AUTHORITY CALLS FOR ACCUSED. RECORDER IF ANY) TO BE SWORN OR AFFIRMED

5.

PROSECUTOR READS CHARGE

5A.

AUTHORITY ASKS ACCUSED IF HE/SHE IS THE PERSON NAMED IN THE CHARGE SHEET AND IF HE/SHE ADMITS TO BEING A DEFENCE MEMBER (OR DEFENCE CIVILIAN) NOW AND AT THE TIME STATED IN THE CHARGE(S)

The purpose of seeking admissions as to identity and jurisdiction is to expedite the proceedings by removing the necessity for the prosecutor to adduce evidence of matters that generally should not be in issue. However, an accused is under no obligation to make any admissions whatsoever in relation to the charge against him. Where the accused does not admit to being the person named in the charge sheet or to being a defence member (or defence civilian) at the relevant time, the prosecution must adduce formal evidence of these matters. 1. The Authority should say: DO YOU UNDERSTAND THAT YOU ARE ABLE TO MAKE CERTAIN APPLICATIONS OR OBJECTIONS TO ME CONCERNING THE TRIAL AND THE CHARGE? 2. Some of the matters on which applications or objections may be made are printed on the reverse of the Summary Proceedings Report and in Annex P.

6.

AUTHORITY ASKS FOR APPLICATIONS OR OBJECTIONS IN RESPECT OF CHARGE

ADFP 201 VOLUME 1 7C2

Item 6

Procedure Continued

Notes 3. The Authority should grant an application where he is satisfied that the interests of justice require that it be granted. He should allow an objection where it is substantiated. 4. If the charge is amended as a consequence of an application or objection, it should be read over to the accused. 1. The Authority should put each charge separately, saying after each: ON THIS CHARGE, HOW DO YOU PLEAD, GUILTY OR NOT GUILTY? 2. If the accused pleads GUILTY the Authority should direct the prosecutor to outline the facts of the case then proceed to Item 28. However, if at any time during the trial it appears to the Authority that an accused who has pleaded guilty does not understand the effect of that plea, the Authority shall substitute a plea of not guilty and proceed accordingly (DFD Rule 43). 3. If the accused pleads NOT GUILTY proceed to Item 8 unless the Authority has already heard the evidence and the accused does not require that the evidence be given again, in which case proceed to Item 22, unless there is a submission of no case to answer, in which case proceed to Item 19.

7.

AUTHORITY CALLS UPON ACCUSED TO PLEAD

8.

AUTHORITY INFORMS ACCUSED OF TRIAL PROCEDURE

The Authority should say: I NOW INTEND TO HEAR THE EVIDENCE IN SUPPORT OF THE CHARGE. YOU WILL BE ENTITLED TO CROSS-EXAMINE ANY WITNESS FOR THE PROSECUTION AND YOU MAY AT A LATER STAGE GIVE EVIDENCE YOURSELF OR CALL WITNESSES TO GIVE EVIDENCE ON YOUR BEHALF. The prosecutor may outline the prosecution case to the Authority before calling his first witness. If the Authority has already heard the evidence of the prosecution at a hearing, he may admit the evidence under DFD Reg 26(1). The evidence may be admitted if the authority is satisfied that to do so would not be unfair to the accused and the accused consents to this course of action. The witness must give evidence on oath or affirmation. See Notes 2-5 and 9-11 in Annex O. 1. The witness should be examined by the prosecutor to establish all the facts necessary to prove the charge. 2. Leading questions are not to be asked except to establish facts that are not likely to be disputed. See Note 13 in Annex O.

9.

AUTHORITY ASKS PROSECUTOR TO CALL WITNESSES PROSECUTOR CALLS HIS FIRST WITNESS

10.

11. 12.

WITNESS TO BE SWORN OR AFFIRMED PROSECUTOR EXAMINES WITNESS

ADFP 201 VOLUME 1 7C3

Item 13.

Procedure ACCUSED OR DEFENDING OFFICER MAY CROSS-EXAMINE WITNESS PROSECUTOR MAY REEXAMINE WITNESS AUTHORITY MAY QUESTION WITNESS

Notes 1. Leading questions may be asked. 2. See Note 14 in Annex O. 1. Questions may only be asked on matters raised in cross-examination. 2. See Note 15 in Annex O. Questions should only be asked to clarify evidence already given. The authority should not assume the role of prosecutor; if the authority considers that some aspect of the case has not been adequately presented to him he should invite the prosecutor to produce further evidence. See Note 16 in Annex O. If further questioning may be necessary, the witness should be ordered to remain in the vicinity of the court. Witnesses should be examined as in Items 11 to 15. 1. This should be done only in exceptional circumstances to clarify the evidence. 2. See Notes 17-19 in Annex O. 1. The accused or the defending officer may at this stage submit that the prosecution evidence is insufficient to support the charge and therefore submit that there is no case to answer. 2. The authority may, if the interests of justice require, decide that there is insufficient evidence to support the charge without such a submission being made by the accused - proceed to Item 21. 3. See Notes 20-21 in Annex O. There are two courses open to the Authority: a. he may, if he finds that there is insufficient evidence to support the charges, dismiss some or all of the charges proceed to Item 21; or b. he may continue with the trial - proceed to Item 22. The Authority should say: I FIND THAT THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE CHARGE AND THEREFORE DISMISS THE CHARGE AGAINST YOU.

14.

15.

16.

WITNESS MAY BE RELEASED

17.

FURTHER PROSECUTION WITNESSES MAY BE EXAMINED WITNESS MAY BE RECALLED

18.

19.

NO CASE TO ANSWER

20.

AUTHORITY DECIDES ON FURTHER ACTION

21.

AUTHORITY DECIDES TO DISMISS CHARGE

ADFP 201 VOLUME 1 7C4

Item 22.

Procedure AUTHORITY DECIDES TO PROCEED WITH TRIAL

Notes 1. The Authority should say: I WILL NOW PROCEED WITH THE TRIAL. YOU MAY AT THIS STAGE GIVE EVIDENCE YOURSELF ON OATH OR AFFIRMATION, ON WHICH YOU MAY BE CROSS-EXAMINED 8Y THE PROSECUTOR. IF YOU WISH TO CALL OTHER WITNESSES AND ALSO INTEND TO GIVE EVIDENCE YOURSELF YOU SHOULD GIVE EVIDENCE FIRST. YOU MAY ALSO REMAIN SILENT. WHAT DO YOU WISH TO DO? 2. If the accused wishes to give or call evidence proceed to Item 23. 3. If the accused wishes to remain silent proceed to Item 26. 4. See Note 25 in Annex O.

23.

ACCUSED OR DEFENDING OFFICER MAY MAKE OPENING ADDRESS ACCUSED GIVES EVIDENCE

This may only be done in cases where the accused intends to call witnesses (other than himself) to give evidence as to the facts. 1. The accused is to be sworn if he elects to give evidence on oath or affirmation. The accused should be examined by the defending officer and cross-examined by the prosecutor and may be re-examined by the defending officer and asked questions by the authority (similar rules as in Items 12 to 15 apply). See Note 26 in Annex O. 1. All witnesses must give evidence on oath or affirmation. 2. The witnesses should be examined by the accused or the defending officer. They may be cross-examined by the prosecutor and reexamined by the accused or defending officer and the authority may ask questions of them. 3. See Note 27 in Annex O. In most simple cases there should be no need to make a closing address as the issues raised by the evidence should be clear. In most simple cases there should be no need to make a closing address as the issues raised by the evidence should be clear. 1. See Notes 28-29 in Annex O. 2. If the accused is found GUILTY the conviction is to be recorded. Then proceed as at Item 29. 3. If the verdict is NOT GUILTY, the charge must be recorded as dismissed. If all charges are dismissed, the accused should be discharged. Discretion should be exercised as to whether spent convictions should be considered (see paragraph 7.56).

24.

25.

DEFENCE WITNESSES GIVE EVIDENCE

26.

PROSECUTOR MAY MAKE CLOSING ADDRESS ACCUSED OR DEFENDING OFFICER MAY MAKE CLOSING ADDRESS AUTHORITY DECIDES GUILT

27.

28.

29.

AUTHORITY INSPECTS ACCUSEDS RECORD

ADFP 201 VOLUME 1 7C5

Item 30.

Procedure ACCUSED OR DEFENDING OFFICER MAY OFFER MITIGATION AUTHORITY CONSIDERS SENTENCE

Notes 1. Witnesses as to character may be called and a statement in mitigation may be made by the accused or the defending officer. 2. See Notes 30-33 in Annex O. The Authority should take into account the sentencing principles set out in Chapter 11 of the DLM. A separate punishment or order should be imposed or made in respect of each offence on which the accused is convicted. 1. On completion, the convicted person salutes the authority and marches out. 2. As to follow-up action see Notes 34-37 in Annex O.

31.

32.

AUTHORITY ANNOUNCES SENTENCE

ADFP 201 VOLUME 1

ANNEX D TO CHAPTER 7

PROCEDURE BRAVO TRIAL BY A SUBORDINATE SUMMARY AUTHORITY

1. COURT ASSEMBLES

2. AUTHORITY ARRIVES

3. PROSECUTOR ANNOUNCES CASE

4. AUTHORITY CALLS FOR ACCUSED/RECORDER SWORN OR AFFIRMED

5. PROSECUTOR READS CHARGE

5a. ADMISSIONS

6. APPLICATIONS OR OBJECTIONS BY ACCUSED

7. AUTHORITY CALLS ON ACCUSED TO PLEAD

ACCUSED PLEADS GUILTY

ACCUSED PLEADS NOT GUILTY

GO TO P.7D- 2

GO TO P.7D-3

ADFP 201 VOLUME 1

7D-2

ACCUSED PLEADS GUILTY

7. PROSECUTOR OUTLINES FACTS OF THE CASE

28. AUTHORITY DECIDES GUILT

29. AUTHORITY INSPECTS ACCUSEDS RECORD

30. PLEA IN MITIGATION

31. AUTHORITY CONSIDERS SENTENCE

32. AUTHORITY ANNOUNCES SENTENCE

ADFP 201 VOLUME 1

7D-3 ACCUSED PLEADS NOT GUILTY

YES

7. HAS THE AUTHORITY HEARD THE EVIDENCE ?

NO

8. AUTHORITY INFORMS ACCUSED OF TRIAL PROCEDURE

9-18. AUTHORITY HEARS PROSECUTION EVIDENCE

Sufficient Evidence to Support Charge

19-20. IS THERE A CASE TO ANSWER ?

Insufficient Evidence to Support Charge

22. PROCEEDS WITH TRIAL

21. CHARGE DISMISSED

23-25. DEFENCE CASE

26-27. CLOSING ADDRESSES

GUILTY 28. AUTHORITY DECIDES GUILT

NOT GUILTY

28a. ACCUSED DISCHARGED 29. AUTHORITY INSPECTS ACCUSEDS RECORD 30. PLEA IN MITIGATION 31. AUTHORITY CONSIDERS SENTENCE 32. AUTHORITY ANNOUNCES SENTENCE

ADFP 201 VOLUME 1 ANNEX E TO CHAPTER 7

PROCEDURE CHARLIE - HEARING (OTHER THAN A TRIAL) CONDUCTED BY A COMMANDING OFFICER

Item 1 Procedure COURT ASSEMBLES Notes 1. Court to be set out as in Annex M. 2. Assembly procedure may be amended when the hearing is conducted in the CO's office. 3. The prosecutor, defending officer and recorder take their places in court before the CO arrives. The accused and escort (if any) remain outside the court until called. 4. Headdress is to be worn. 2. 3. 4. CO ARRIVES PROSECUTOR ANNOUNCES CASE TO CO CO CALLS FOR ACCUSED. RECORDER (IF ANY) TO BE SWORN OR AFFIRMED Those assembled should salute the CO. The prosecutor should announce the names of the accused and the defending officer 1. The accused (and escort, if any) enters the court and salutes the CO. The accused has the right to object that the recorder is not impartial or is not competent. 2. As to form of oath etc see Notes 6-8 and 12 of Annex O. 1. The CO should explain the charge if necessary. 2. The accused should not be asked to plead to the charge at this stage. 3. Headdress may be removed after reading the charge. 1. As to jurisdiction see paragraph 7.16 of the DLM. 2. If the CO does not have jurisdiction to try, the following courses are open to him: a. he may hear evidence in order to decide whether the charge should not be proceeded with or whether it should be referred to another authorityproceed to Item 6A; or b. he may direct an examining officer to hear evidence before deciding whether the charge should not be proceeded with or whether it should be referred to another authority proceed to Item 6B. 2. If the CO has jurisdiction to try, the following courses are open to him: a. he may refer the charge to another authority proceed to Item 6C; b. he may try the chargeproceed to Item 22; c. he may hear an outline of the prosecution case in order to decide whether to try the charge himself or whether to refer it to another authorityproceed to Item 6D see Note 1 in Annex I); or d. he may direct an examining officer to hear evidence before deciding whether to try the charge or whether to refer it to another authority proceed to Item 6E.

5.

PROSECUTOR READS CHARGE

6.

CO CONSIDERS CHARGE AND DETERMINES WHETHER HE HAS JURISDICTION TO TRY

ADFP 201 VOLUME 1 7E2

Item 6A.

Procedure CO DECIDES TO HEAR EVIDENCE (HAS NO JURISDICTION TO TRY)

Notes The CO should say: I HAVE NO POWER TO TRY THE CHARGE. HOWEVER, I SHALL HEAR EVIDENCE IN ORDER TO DECIDE WHETHER THE CHARGE SHOULD BE PROCEEDED WITH. Proceed to Item 12. The CO should say: I HAVE NO POWER TO TRY THE CHARGE. HOWEVER, I HAVE DECIDED TO DIRECT AN EXAMINING OFFICER TO HEAR EVIDENCE IN CONNECTION WITH THE CHARGE. ON CONSIDERATION OF THIS EVIDENCE. I SHALL DECIDE WHETHER THE CHARGE SHOULD NOT BE PROCEEDED WITH OR WHETHER IT SHOULD BE REFERRED TO ANOTHER AUTHORITY. Proceed to Item 7. The CO should say: ALTHOUGH I HAVE THE POWER TO TRY THE CHARGE, I BELIEVE IT WOULD BE IN THE INTERESTS OF JUSTICE TO REFER IT TO ..... ..................TO BE DEALT WITH The CO should say: ALTHOUGH I HAVE THE POWER TO TRY THE CHARGE, I INTEND TO CALL UPON THE PROSECUTOR TO OUTLINE THE FACTS OF THE CASE BEFORE DECIDING WHETHER I SHOULD TRY IT. IF I AM STILL UNDECIDED, I WILL HEAR EVIDENCE IN SUPPORT OF THE CHARGE AND YOU WILL BE ENTITLED TO CROSS-EXAMINE PROSECUTION WITNESSES IN DUE COURSE. Proceed to Item 10. The CO should say: ALTHOUGH I HAVE THE POWER TO TRY THE CHARGE, IN VIEW OF ITS APPARENTLY SERIOUS NATURE, I HAVE DIRECTED AN EXAMINING OFFICER, (name) TO HEAR EVIDENCE IN CONNECTION WITH THE CHARGE. ON CONSIDERATION OF THIS EVIDENCE I SHALL DECIDE WHETHER TO TRY THE CHARGE OR WHETHER TO REFER IT TO ANOTHER AUTHORITY. Proceed to Item 7. An order directing an examining officer to take evidence should be made on Form 44. When the examining officer's record of evidence has been received the hearing recommences at Item 8.

6B.

CO DECIDES TO DIRECT EXAMINING OFFICER TO HEAR EVIDENCE. (CO HAS NO JURISDICTION TO TRY)

6C.

CO DECIDES TO REFER CHARGE TO ANOTHER AUTHORITY

6D.

CO DECIDES TO HEAR OUTLINE OF CASE IN ORDER TO DETERMINE HOW CHARGE IS TO BE DEALT WITH

6E.

CO DECIDES TO DIRECT EXAMINING OFFICER TO HEAR EVIDENCE IN ORDER TO DECIDE WHETHER TO TRY CHARGE OR WHETHER TO REFER IT TO ANOTHER AUTHORITY

7.

CO DIRECTS EXAMINING OFFICER TO HEAR EVIDENCE

ADFP 201 VOLUME 1 7E3

Item 8.

Procedure ACTION ON RECEIPT OF EVIDENCE FROM EXAMINING OFFICER

Notes 1. The authority examines the evidence. 2. The tribunal re-assembles as described in Items 1 to 5. 3. Five courses are open to the CO at this stage. He may: a. where he has no power to try the charge and he considers that there is insufficient evidence to support it, direct that the charge not be proceeded with; b. refer the charge to a convening authority proceed to Item 24; c. refer the charge to another COproceed to Item 9; d. refer the charge to a superior summary authority proceed to Item 23; or e. try the chargeproceed to Item 22. (Having read the evidence, the CO should not normally try the charge himself. The CO may try the charge where the accused does not object to this course of action or where the evidence has been taken from a person who is dangerously ill.)

9.

CO REFERS CHARGE TO ANOTHER CO

The CO should say: I NOW REFER THE CHARGE TO .............(name) ANOTHER COMMANDING OFFICER BECAUSE ......................................THIS HEARING IS NOW COMPLETED. The prosecutor should state the elements of the charges and the facts and evidence he intends to produce. 1. There are three courses open to the CO at this stage. He may decide to: a. try the charge - proceed to Item 22; b. direct that an examining officer hear evidence in relation to the charge - proceed to Item 7; or c. hear the prosecution evidence before deciding what to do - proceed to Item 12. The witness must give evidence on oath or affirmation. As to the forms of oath or affirmation see Notes 2-5 and 9-11 in Annex O. The witness should be examined by the prosecutor to establish all the facts necessary to prove the charge. Leading questions are not to be asked except to establish facts which are not likely to be disputed. See Note 13 in Annex O for further information on examination-in-chief. Generally, leading questions may be asked. See Note 14 in Annex O for further information on cross-examination.

10.

CO ASKS PROSECUTOR TO OUTLINE CASE CO DECIDES ON FURTHER ACTION

11.

12.

WITNESS TO BE SWORN OR AFFIRMED PROSECUTOR EXAMINES WITNESS

13.

14

ACCUSED OR DEFENDING OFFICER MAY CROSS-EXAMINE WITNESS

ADFP 201 VOLUME 1 7E4

Item 15. 16.

Procedure PROSECUTOR MAY REEXAMINE WITNESS CO MAY QUESTION WITNESS

Notes Questions may generally only be asked on matters raised in cross-examination. See Note 15 in Annex O. Questions should only be asked to clarify evidence already given. The CO should not assume the role of prosecutor; if he considers that some aspect of the case has not been adequately presented to him he should invite the prosecutor to produce further evidence. See Note 16 in Annex O. If further questioning may be necessary, the witness should be ordered to remain in the vicinity of the court. Witnesses should be examined as in Items 12 to 16

17.

WITNESS MAY BE RELEASED

18.

FURTHER PROSECUTION WITNESSES MAY BE EXAMINED WITNESS MAY BE RECALLED

19.

This should be done only in exceptional circumstances at the discretion of the CO to clarify the evidence. The CO should remind the witness that he is on oath or affirmation. See Notes 17-19 in Annex O.

20.

PROSECUTOR ANNOUNCES THAT HE HAS PRESENTED ALL HIS EVIDENCE CO DECIDES ON FURTHER ACTION There are five courses open to the CO at this stage. He may decide to: a. try the charge - proceed to Item 22; b. where he has no power to try the charge, and he considers that there is insufficient evidence to support the charge, direct that the charge not be proceeded with; c. direct that an examining officer hear evidence in relation to the charge - proceed to Item 7; d. refer the charge to a superior summary authority proceed to Item 23; or e. refer the charge to a convening authority with a view to trial by court martial or Defence Force magistrate - proceed to Item 24.

21.

22.

CO DECIDES TO TRY CHARGE

The CO should inform the accused that he intends to try the charge. If the trial commences immediately proceed to PROCEDURE DELTA Item 5A; if it is to be held at a later time, it commences at PROCEDURE DELTA Item 1 The CO should say: I NOW REFER THE CHARGE TO ......................A SUPERIOR SUMMARY AUTHORITY. THIS HEARING IS NOW COMPLETED. The CO should say: I NOW REFER THE CHARGE TO A CONVENING AUTHORITY, WITH A VIEW TO YOUR TRIAL BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE. THIS HEARING IS NOW COMPLETED.

23.

CO DECIDES TO REFER THE CHARGE TO A SUPERIOR SUMMARY AUTHORITY CO DECIDES TO REFER CHARGE TO CONVENING AUTHORITY

24.

ADFP 201 VOLUME 1

PROCEDURE CHARLIE HEARING (OTHER THAN A TRIAL) CONDUCTED BY A COMMANDING OFFICER

ANNEX F TO CHAPTER 7

1. COURT ASSEMBLES

2. CO ARRIVES

3. PROSECUTOR ANNOUNCES CASE

4. CO CALLS FOR ACCUSED/RECORDER SWORN OR AFFIRMED

6. CO CONSIDERS THE CHARGE AND DETERMINES WHETHER HE HAS JURISDICTION TO TRY IT

Has no jurisdiction to try

5. PROSECUTOR READS CHARGE

Has jurisdiction to try

6A. CO DECIDES TO HEAR EVIDENCE

12-20. CO HEARS EVIDENCE

6B. CO DECIDES TO DIRECT AN EXAMINING OFFICER TO HEAR EVIDENCE

22. CO DECIDES TO TRY CHARGE PROCEDURE DELTA

6c. CO DECIDES TO REFER CHARC\GE TO ANOTHER AUTHORITY

6d. CO DECIDES TO HEAR OUTLINE OF CASE 10. PROSECUTOR OUTLINES CASE

6e. CO DECIDES TO DIRECT EXAMINING OFFICER TO HEAR EVIDENCE

21B. CO DIRECTS THAT CHARGE NOT BE PROCEEDED WITH

23-24. CO REFERS CHARGE TO ANOTHER AUTHORITY

7. CO DIRECTS EXAMINING OFFICER TO HEAR EVIDENCE

11a. CO DECIDES TO TRY CHARGE

8. CO EXAMINES EVIDENCE

11c. CO DECIDES TO HEAR PROSECUTION EVIDENCE

11b. CO DECIDES TO DIRECT EXAMINING OFFICER TO HEAR EVIDENCE

PRODECURE DELTA 12-20. CO HEARS EVIDENCE 7. CO DIRECTS EXAMINING OFFICER TO HEAR EVIDENCE

8. CO REFERS CHARGE TO ANOTHER AUTHORITY

8. CO DIRECTS THAT CHARGE NOT BE PROCEEDED WITH

23-24. CO REFERS CHARGE TO ANOTHER AUTHORITY

22. CO DECIDES TO TRY CHARGE PROCEDURE DELTA

8. CO REFERS CHARGE TO ANOTHER AUTHORITY

22. CO DECIDES TO TRY CHARGE PROCEDURE DELTA

8. CO EXAMINES EVIDENCE

ADFP 201 VOLUME 1 ANNEX G TO CHAPTER 7

PROCEDURE DELTA - TRIAL CONDUCTED BY A COMMANDING OFFICER (CO)

Item 1. Procedure Procedure Notes 1. Venue to be set out as in Annex M. 2. Assembly procedure may be amended when the trial is conducted in the CO's office. 3. The prosecutor, defending officer and recorder take their places before the CO arrives. The accused and escort (if any) remain outside the venue until called. 4. Headdress is to be worn. 2. 3. 4. CO ARRIVES PROSECUTOR ANNOUNCES CASE TO CO CO CALLS FOR ACCUSED. RECORDER (IF ANY) TO BE SWORN PROSECUTOR READS CHARGE Those assembled should salute the CO. The prosecutor should announce the names of the accused and the defending officer. The accused (and escort if any) reports and salutes the CO. The accused has the right to object that the recorder is not impartial or is not competent. See Notes 6-8 and 12 in Annex O for form of oath etc. 1. The CO should explain the charge if necessary. 2. The accused should not be asked to plead to the charge at this stage. 3. The prosecutor should address any statutory alternative charge upon which he or she might seek to rely if the primary charge is not made out. 5A. CO ASKS ACCUSED IF HE/SHE IS THE PERSON NAMED IN THE CHARGE SHEET AND IF HE/SHE ADMITS TO BEING A DEFENCE MEMBER (OR DEFENCE CIVILIAN) NOW AND AT THE TIME STATED IN THE CHARGE(S) The purpose of seeking admissions as to identity and jurisdiction is to expedite the proceedings by removing the necessity for the prosecutor to adduce evidence of matters that generally should not be in issue. However, an accused is under no obligation to make any admissions whatsoever in relation to the charge against him. Where the accused does not admit to being the person named in the charge sheet or to being a defence member (or defence civilian) at the relevant time, the prosecution must adduce formal evidence of these matters. 1. The CO should say: DO YOU UNDERSTAND THAT YOU ARE ABLE TO MAKE CERTAIN APPLICATIONS AND OBJECTIONS TO ME CONCERNING THE TRIAL AND THE CHARGE? 2. Some of the matters on which applications or objections may be made are printed on the reverse of the Summary Proceedings Report and in Annex P. 3. The CO should grant an application where he is satisfied that the interests of justice require that it be granted. He should allow an objection where it is substantiated. 4. If the charge is amended as a consequence of an application or objection, it should be read over to the accused. PARTICIPANTS (OTHER THAN CO) ASSEMBLE

5.

6.

CO ASKS FOR APPLICATIONS OR OBJECTIONS IN RESPECT OF CHARGE

ADFP 201 VOLUME 1 7G2

Item 7.

Procedure CO CALLS UPON ACCUSED TO PLEAD

Notes 1. The CO should put each charge separately, saying after each: ON THIS CHARGE, HOW DO YOU PLEAD, GUILTY OR NOT GUILTY? 2. If the accused pleads GUILTY the CO should: a. direct the prosecutor to outline the facts of the case and proceed to Item 31; or b. if the CO has already heard the evidence of the prosecution at a hearing or has read the statements of evidence taken by an examining officer, proceed to Item 31. However, if at any time during the trial it appears to the summary authority that an accused who has pleaded guilty does not understand the effect of that plea, the summary authority shall substitute a plea of not guilty and proceed accordingly (DFD Rule 43). 3. If the accused pleads NOT GUILTY a. the CO should proceed to Item 8; or b. if the CO has already heard the evidence of the prosecution at a hearing and the accused does not require the evidence to be given again, the CO may: (1) proceed to Item 25; or (2) if he considers that he is likely to impose an elective punishment in the event of convicting the accused, proceed to Item 22, unless there is a submission of no case to answer in which case proceed to Item 19.

8.

CO INFORMS ACCUSED OF TRIAL PROCEDURE

The CO should say: I NOW INTEND TO HEAR THE EVIDENCE IN SUPPORT OF THE CHARGE. YOU OR YOUR DEFENDING OFFICER WILL BE ENTITLED TO CROSS-EXAMINE ANY WITNESSES FOR THE PROSECUTION AND YOU MAY AT A LATER STAGE GIVE EVIDENCE YOURSELF AND CALL WITNESSES ON YOUR BEHALF The prosecutor may outline the prosecution case to the CO before calling his first witness. If the CO has already heard the evidence of the prosecution at a hearing, he may admit the evidence under DFD Reg 26(1). The evidence may be admitted if the CO is satisfied that to do so would not be unfair to the accused and the accused consents to this course of action. The witness must give evidence on oath or affirmation. (As to form of oath or affirmation see Notes 2-5 and 9-11 in Annex O.)

9. 10.

CO ASKS PROSECUTOR TO CALL WITNESSES PROSECUTOR CALLS HIS FIRST WITNESS

11.

WITNESS TO BE SWORN OR AFFIRMED

ADFP 201 VOLUME 1 7G3

Item 12.

Procedure PROSECUTOR EXAMINES WITNESS

Notes 1. The witness should be examined by the prosecutor to establish all the facts necessary to prove the charge. 2. Leading questions are not to be asked except to establish facts that are not likely to be disputed. See Note 13 in Annex O. Generally, leading questions may be asked. See Note 14 in Annex O on cross-examination. Questions may only be asked on matters raised in cross-examination. See Note 15 in Annex O. Questions should only be asked to clarify evidence already given. The CO should not assume the role of prosecutor; if the CO considers that some aspect of the case has not been adequately presented to him he should invite the prosecutor to produce further evidence. See Note 16 in Annex O. If further questioning may be necessary, the witness should be ordered to remain in the vicinity of the venue. Witnesses should be examined as in Items 1115. This should be done only in exceptional circumstances to clarify the evidence. See Notes 17-19 in Annex O. 1. The accused or the defending officer may at this stage submit that the prosecution evidence is insufficient to support the charge. 2. The CO may, if the interests of justice so require, decide that there is insufficient evidence to support the charge without such a submission being made by the accused. 3. See Notes 20 and 21 in Annex O.

13.

ACCUSED OR DEFENDING OFFICER MAY CROSS-EXAMINE WITNESS PROSECUTOR MAY REEXAMINE WITNESS CO MAY QUESTION WITNESS

14. 15.

16.

WITNESS MAY BE RELEASED

17. 18.

FURTHER PROSECUTION WITNESSES MAY BE EXAMINED WITNESS MAY BE RECALLED

19.

NO CASE TO ANSWER

20.

CO DECIDES ON FURTHER ACTION

1. There are four courses open to the CO: a. he may, if he finds that there is insufficient evidence to support the charge, dismiss the charge - proceed to Item 21; b. he may, if he considers that he is likely to (l) impose an elective punishment, give the accused the option of electing to be tried by court-martial or Defence Force magistrate proceed to Item 22; c. he may, if he considers that his powers of punishment are insufficient, refer the case to a (l) convening authority proceed to Item 24; or (l) d. he may continue with the trial proceed to Item 25. (1) See Notes 22-24 in Annex O.

ADFP 201 VOLUME 1 7G4

Item 21.

Procedure CO DECIDES TO DISMISS CHARGE

Notes The CO should say: I FIND THAT THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE CHARGE AND THEREFORE DISMISS THE CHARGE AGAINST YOU. 1. The CO should say: I HAVE HEARD THE PROSECUTION EVIDENCE AND CONSIDER THAT IF I CONTINUE WITH THE TRIAL AND CONVICT YOU OF THESE CHARGES I MAY DECIDE TO AWARD AN ELECTIVE PUNISHMENT. THE ELECTIVE PUNISHMENTS THAT WOULD BE AVAILABLE TO ME SHOULD YOU ELECT TO BE TRIED BY ME ARE . (state elective punishments that are available to the accused if he elects to be tried by the CO). BEFORE I CONTINUE WITH THE TRIAL WITH THE OPTION OF AWARDING ELECTIVE PUNISHMENTS, I AM REQUIRED TO OFFER YOU THE OPTION OF ELECTING TO BE TRIED BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE. I WILL NOW HAND YOU A FORM THAT ADVISES YOU IN GREATER DETAIL OF YOUR ELECTION. YOU ARE TO CONSIDER THE INFORMATION CONTAINED IN THE FORM AND DISCUSS IT WITH YOUR DEFENDING OFFICER (or an independent person if you are not represented by a Defending officer). YOU ARE ALSO REQUIRED TO PROVIDE ME WITH WRITTEN NOTIFICATION OF YOUR ELECTION. THIS IS TO BE DONE BY COMPLETING AND SIGNING THE ELECTION SECTION OF THE FORM THAT I AM ABOUT TO HAND YOU. DO YOU HAVE ANY QUESTIONS REGARDING THE ELECTION PROCEDURE THAT I HAVE JUST EXPLAINED? (CO hands the member a copy of Annex U to Chapter 7 DLM Vol 1. The CO must complete/strike out relevant/irrelevant parts before giving it to the member.) 2. The CO should say: I WILL NOW ADJOURN THE PROCEEDINGS WHILE YOU CONSIDER WITH YOUR DEFENDING OFFICER THE INFORMATION CONTAINED IN THE FORM THAT I HAVE HANDED YOU AND, IF NECESSARY, OBTAIN FURTHER INDEPENDENT ADVICE IN RESPECT OF YOUR ELECTION. DURING THE ADJOURNMENT YOU ARE REQUIRED TO DECIDE YOUR ELECTION AND COMPLETE THE ELECTION SECTION OF THE FORM.

22.

CO GIVES ACCUSED OPTION OF ELECTING TRIAL BY COURT-MARTIAL OR DEFENCE FORCE MAGISTRATE

ADFP 201 VOLUME 1 7G5

Item 22

Procedure Continued

Notes (CO adjourns for such time that he considers reasonable in the circumstances to allow the member to read, consider and seek advice on the issue of his or her election.) 1. The tribunal should re-assemble. 2. The CO should say to the accused: I HAVE PREVIOUSLY GIVEN YOU THE OPTION TO ELECT TRIAL BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE OR TO BE TRIED BY ME. WHAT DO YOU WISH TO DO? WOULD YOU PLEASE PROVIDE ME WITH WRITTEN CONFIRMATION OF YOUR ELECTION. (CO should receive the written notice of election from the accused (Annex U) and ensure that the member has properly completed it and that it is consistent with the members oral election.) 3. If the accused elects trial by court martial or Defence Force magistrate proceed to Item 24; if the accused elects trial by the CO proceed to Item 25 if the accused has pleaded NOT GUILTY; or to Item 32 if he has pleaded GUILTY to all the charges.

23.

ACCUSED MAKES ELECTION

24.

CO REFERS CHARGE TO CONVENING AUTHORITY

The CO should say: I NOW REFER THE CHARGE TO A CONVENING AUTHORITY, WITH A VIEW TO TRIAL BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE. THIS TRIAL IS NOW COMPLETED 1. The CO should say: I WILL NOW PROCEED WITH THE TRIAL. YOU MAY AT THIS STAGE GIVE EVIDENCE YOURSELF ON OATH OR AFFIRMATION, ON WHICH YOU MAY BE CROSS-EXAMINED BY THE PROSECUTOR. IF YOU WISH TO CALL OTHER WITNESSES AND ALSO INTEND TO GIVE EVIDENCE YOURSELF YOU SHOULD GIVE EVIDENCE FIRST. YOU MAY ALSO REMAIN SILENT. WHAT DO YOU WISH TO DO? 2. If the accused wishes to give or call evidence proceed to Item 26. 3. If the accused wishes to remain silent proceed to Item 29. 4. See Note 25 in Annex O.

25.

CO PROCEEDS WITH TRIAL

26.

ACCUSED OR DEFENDING OFFICER MAY MAKE OPENING ADDRESS

This may only be done in cases where the accused intends to call witnesses (other than himself) to give evidence as to the facts.

ADFP 201 VOLUME 1 7G6

Item 27.

Procedure ACCUSED GIVES EVIDENCE

Notes 1. The accused is to be sworn or affirmed if he elects to give evidence. (See Notes 2-5 and 9-11 in Annex O.) The accused should be examined by the defending officer and cross-examined by the prosecutor and may be re-examined by the defending officer and asked questions by the CO (similar rules as in Items 12 to 15 apply). See Note 26 in Annex O. 1. All witnesses must give evidence on oath or affirmation. (As to form of oath or affirmation see Notes 2-5 and 9-11 in Annex O.) 2. The witnesses should be examined by the accused or the defending officer. They may be cross-examined by the prosecutor and reexamined by the accused or defending officer and the CO may ask questions of them. See Note 27 in Annex O. In most simple cases there should be no need to make a closing address as the issues raised by the evidence should be clear. In most simple cases there should be no need to make a closing address as the issues raised by the evidence should be clear. 1. See Notes 28-29 in Annex O. 2. If the accused is found GUILTY the conviction is to be recorded. 3. If the accused is found GUILTY on a plea of GUILTYproceed to Item 32. 4. If the accused is found GUILTY on a plea of NOT GUILTYproceed to Item 36. 5. If the verdict is NOT GUILTY, the charge must be recorded as dismissed. If all charges are dismissed, the accused should be discharged.

28.

DEFENCE WITNESSES GIVE EVIDENCE

29.

PROSECUTOR MAY MAKE CLOSING ADDRESS ACCUSED OR DEFENDING OFFICER MAY MAKE CLOSING ADDRESS COMMANDING OFFICER DECIDES GUILT

30.

31.

32.

COMMANDING OFFICER DECIDES ON FURTHER ACTION

There are two courses open to the CO: 1. He must, if he is of the opinion that an elective punishment should be imposed, give the accused the option of electing to be punished by Court Martial or Defence Force Magistrate proceed to Item 33, or 2. He may continue with the trial - proceed to Item 36.

ADFP 201 VOLUME 1 7G7

Item 33.

Procedure COMMANDING OFFICER GIVES ACCUSED OPTION OF ELECTING PUNISHMENT BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE

Notes 1. The CO should say: I HAVE HEARD THE OUTLINE OF THE FACTS OF THE CASE AND AM OF THE OPINION THAT, IF I PROCEED WITH THE TRIAL, I MAY WISH TO IMPOSE AN ELECTIVE PUNISHMENT. THE ELECTIVE PUNISHMENTS THAT WOULD BE AVAILABLE TO ME SHOULD YOU ELECT TO BE PUNISHED BY ME ARE AS FOLLOWS (state the elective punishments that are available if the accused elects to be punished by the CO). BEFORE I MAY AWARD THESE PUNISHMENTS I AM REQUIRED TO OFFER YOU THE OPTION OF ELECTING TO BE PUNISHED BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE RATHER THAN BY ME. I WILL NOW HAND YOU A FORMAL NOTIFICATION, WHICH ADVISES YOU IN GREATER DETAIL OF YOUR ELECTION. YOU ARE TO CONSIDER THE INFORMATION CONTAINED IN THE FORM AND DISCUSS IT WITH YOUR DEFENDING OFFICER (or an independent person if the member is not represented). YOU ARE ALSO REQUIRED TO PROVIDE ME WITH WRITTEN NOTIFICATION OF YOUR ELECTION. THIS SHOULD BE DONE BY COMPLETING AND SIGNING THE RELEVENT SECTION ON THE FORM THAT I AM ABOUT TO HAND YOU. DO YOU HAVE ANY QUESTIONS REGARDING THE ELECTION PROCEDURE THAT I HAVE JUST EXPLAINED? (CO hands the member a copy of Annex V to Chapter 7 DLM - Vol 1. The CO must complete/strike out relevant/irrelevant parts before giving it to the member.) 2. I WILL NOW ADJOURN THE PROCEEDINGS WHILE YOU CONSIDER WITH YOUR DEFENDING OFFICER THE INFORMATION CONTAINED IN THE FORM THAT I HAVE HANDED YOU AND, IF NECESSARY, OBTAIN FURTHER INDEPENDENT ADVICE IN RESPECT OF YOUR ELECTION. DURING THE ADJOURNMENT YOU ARE REQUIRED TO DECIDE YOUR ELECTION AND COMPLETE THE ELECTION SECTION OF THE FORM. (CO adjourns for such time that he considers reasonable in the circumstances to allow the member to read, consider and seek advice on the issue of his or her election.)

ADFP 201 VOLUME 1 7G8

Item 34.

Procedure ACCUSED MAKES ELECTION

Notes 1. The tribunal should re-assemble. 2. The CO should say to the accused: 'I HAVE PREVIOUSLY GIVEN YOU THE OPTION TO ELECT TO BE PUNISHED BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE OR TO BE PUNISHED BY ME. WHAT DO YOU WISH TO DO? WOULD YOU PLEASE PROVIDE ME WITH WRITTEN CONFIRMATION OF YOUR ELECTION.' (CO should receive the written notice of election from the accused (Annex V) and ensure that the member has properly completed it and that it is consistent with the member's oral election. If the accused fails to provide an election when offered one, the CO is able to proceed with punishment action under Part IV DFDA: see s.131(2B) DFDA.) 3. If the accused elects to be punished by Court Martial or Defence Force Magistrate, proceed to Item 35. If the accused elects to be punished by CO proceed to Item 36.

35.

CO REFERS CONVICTION TO CONVENING AUTHORITY

The CO should say: 'I NOW REFER THE CONVICTION TO ................A CONVENING AUTHORITY, WITH A VIEW TO PUNISHMENT BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE. THIS TRIAL IS NOW COMPLETED.' Discretion should be exercised as to whether spent convictions should be considered (see paragraph 7.56) Witnesses as to character may be called and a statement in mitigation may be made by the accused or the defending officer. See Notes 30-33 in Annex O. The CO should take into account the sentencing principles set out in Chapter 11 of the DLM. A separate punishment or order should be imposed or made in respect of each offence on which the accused is convicted. 1. On completion, the convicted person salutes the CO and marches out. 2. As to follow-up action see Notes 34-37 in Annex O.

36.

CO INSPECTS ACCUSED's RECORD ACCUSED OR DEFENDING OFFICER MAY OFFER MITIGATION CO CONSIDERS SENTENCE

37.

38.

39.

COMMANDING OFFICER ANNOUNCES SENTENCE

ADFP 201 VOLUME 1

ANNEX H TO CHAPTER 7

PRODECURE DELTA - TRIAL BY A COMMANDING OFFICER

1. COURT ASSEMBLES

2. CO ARRIVES

3. PROSECUTOR ANNOUNCES CASE

4. CO CALLS FOR ACCUSED/RECORDER SWORN

5. PROSECUTOR READS CHARGE

5a. ADMISSIONS

6. APPLICATIONS OR OBJECTIONS BY ACCUSED

ACCUSED PLEADS GUILTY

GO TO P.7H-2

7. CO CALLS ON ACCUSED TO PLEAD

ACCUSED PLEADS NOT GUILTY

GO TO PAGE 7H-3

ADFP 201 VOLUME 1

7H-2 ACCUSED ENTERS GUILTY PLEA

7. PROSECUTOR OUTLINES FACTS OF THE CASE

31. CO DECIDES GUILT

32. CO DECIDES FURTHER ACTION

33. CO OFFERS ACCUSED RIGHT TO ELECT TO BE PUNISHED BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE

34. ACCUSED ELECTS COS PUNISHMENT

36. CO INSPECTS ACCUSEDS RECORD

37. PLEA IN MITIGATION 34. ACCUSED ELECTS TO BE PUNISHED BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE

38. CO CONSIDERS SENTENCE

35. CO REFERS CONVICTION TO CONVENING AUTHORITY

39. CO ANNOUNCES SENTENCE

ADFP 201 VOLUME 1

7H-3 ACCUSED ENTERS PLEA OF NOT GUILTY

NO

HAS CO HEARD EVIDENCE IN PRIOR HEARING ?

YES

8. CO INFORMS ACCUSED OF TRIAL PROCEDURES

9-18. CO HEARS PROSECUTION EVIDENCE

SUFFICIENT EVIDENCE TO SUPPORT CHARGE INSUFFICIENT EVIDENCE TO SUPPORT CHARGE

19. CO CONSIDERS WHETHER THERE IS A CASE TO ANSWER

21. CO DISMISSES CHARGE 20. CO DECIDES ON FURTHER ACTION 22. CO OFFERS ACCUSED RIGHT TO ELECT TRIAL BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE 25. CO PROCEEDS WITH TRIAL

CONSIDERS ELECTIVE PUNISHMENT

26-28. DEFENCE CASE 23. ACCUSED ELECTS TRIAL BY COURT MARTIAL OR DFM 23. ACCUSED ELECTS TRIAL BY CO 29-30. CLOSING ADDRESS GUILTY 31. CO DECIDES GUILT 36. CO INSPECTS ACCUSEDS RECORD ACCUSED DISCHARGED 37-38. PLEA IN MITIGATION NOT GUILTY

24. CO REFERS CHARGE TO CONVENING AUTHORITY

39. CO ANNOUNCES SENTENCE

ADFP 201 VOLUME 1 ANNEX I TO CHAPTER 7

PROCEDURE ECHO - HEARING (OTHER THAN A TRIAL) CONDUCTED BY A SUPERIOR SUMMARY AUTHORITY

Item 1.

Procedure COURT ASSEMBLES

Notes 1. Court to be set out as in Annex M. 2. Assembly procedure may be amended when the hearing is conducted in the Superior Summary Authority's office. 3. The prosecutor, defending officer and recorder take their places in court before the authority arrives. The accused and escort (if any) remain outside the court until called. 4. Headdress is to be worn. Those assembled should salute the authority. The prosecutor should announce the names of the accused and the defending officer. 1. The accused (and escort, if any) enters the court and salutes the authority. The accused has the right to object that the recorder is not impartial or is not competent. 2. As to form of oath etc see Notes 6-8 and 12 in Annex O. 1. The authority should explain the charge if necessary. 2. The accused should not be asked to plead to the charge at this stage. 3. Headdress may be removed after reading the charge.

2. 3. 4.

SUPERIOR SUMMARY AUTHORITY ARRIVES PROSECUTOR ANNOUNCES CASE TO AUTHORITY AUTHORITY CALLS FOR ACCUSED. RECORDER (IF ANY) TO BE SWORN OR AFFIRMED

5.

PROSECUTOR READS CHARGE

6.

AUTHORITY CONSIDERS CHARGE AND DETERMINES WHETHER HE HAS JURISDICTION TO TRY IT

1. As to jurisdiction, see paragraph 7.37 of the DLM. 2. If the authority does not have jurisdiction to try he must refer the charge to a convening authority. Proceed to Item 6A. 3. If the authority has jurisdiction to try, three courses are open to him: a. he may try the charge - proceed to Item 19; b. he may refer the charge to a convening authority - proceed to Item 6B; or c. he may hear an outline of the prosecution case in order to decide whether to refer it to a convening authority - proceed to Item 6C. Also see Note 1 in Annex O.

6A.

AUTHORITY DECIDES TO REFER CHARGE TO CONVENING AUTHORITY. (AUTHORITY HAS NO JURISDICTION TO TRY)

The authority should say: "AS I HAVE NO POWER TO TRY THE CHARGE I AM REQUIRED TO REFER IT TO A CONVENING AUTHORITY".

ADFP 201 VOLUME 1 7I2

Item 6B.

Procedure AUTHORITY DECIDES TO REFER CHARGE TO CONVENING AUTHORITY

Notes The authority should say: "ALTHOUGH I HAVE THE POWER TO TRY THE CHARGE, HAVING CONSIDERED THE CHARGE, I BELIEVE IT WOULD BE IN THE INTERESTS OF JUSTICE TO REFER IT TO ................................... (convening authority) TO BE DEALT WITH". The authority should say: "ALTHOUGH I HAVE THE POWER TO TRY THE CHARGE, I INTEND TO CALL UPON THE PROSECUTOR TO OUTLINE THE PACTS OF THE CASE BEFORE DECIDING WHETHER I SHOULD TRY IT. IF I AM STILL UNDECIDED I WILL HEAR EVIDENCE IN SUPPORT OF THE CHARGE AND YOU WILL BE ENTITLED TO CROSS-EXAMINE PROSECUTION WITNESSES IN DUE COURSE". Proceed to Item 7. The prosecutor should state the elements of the charge and the facts and evidence he intends to produce. 1. There are two courses open to the authority at this stage. He may decide to: a. try the charge proceed to Item 19; or b. hear the prosecution evidence before deciding what to do - proceed to Item 9.

6C.

AUTHORITY DECIDES TO HEAR OUTLINE OF CASE IN ORDER TO DECIDE HOW CHARGES TO BE DEALT WITH

7.

AUTHORITY ASKS PROSECUTOR TO OUTLINE CASE AUTHORITY DECIDES ON FURTHER ACTION

8.

9.

WITNESS TO BE SWORN OR AFFIRMED PROSECUTOR EXAMINES WITNESS

The witness must give evidence on oath or affirmation. As to the forms of oath or affirmation see Notes 2-5 and 9-11 in Annex O. The witness should be examined by the prosecutor to establish all the facts necessary to prove the charges. Leading questions are not to be asked except to establish facts which are not likely to be disputed. See Note 13 in Annex O for further information on examination-in-chief Leading questions may be Asked. See Note 14 in Annex O for further information on crossexamination. Questions may only be asked on matters raised in cross-examination. See Note 15 in Annex O. Questions should only be asked to clarify evidence already given. The authority should not assume the role of prosecutor. If he considers that some aspect of the case has not been adequately presented to him he should invite the prosecutor to produce further evidence. See Note 16 in Annex O. If further questioning may be necessary, the witness should be ordered to remain in the vicinity of the court. Witnesses should be examined as in Items 9 to 14

10.

11.

ACCUSED OR DEFENDING OFFICER MAY CROSS- EXAMINE WITNESS PROSECUTOR MAY REEXAMINE WITNESS AUTHORITY MAY QUESTION WITNESS

12. 13.

14.

WITNESS MAY BE RELEASED

15.

FURTHER PROSECUTION WITNESSES MAY BE EXAMINED

ADFP 201 VOLUME 1 7I3

Item 16.

Procedure WITNESS MAY BE RECALLED

Notes This should be done only in exceptional circumstances at the discretion of the authority to clarify the evidence. The authority should remind the witness that he is on oath or affirmation. See Notes 17-19 in Annex O.

17.

PROSECUTOR ANNOUNCES THAT HE HAS PRESENTED ALL HIS EVIDENCE AUTHORITY DECIDES ON FURTHER ACTION 1. There are two courses open to the authority at this stage. He may decide to: a. try the charge proceed to Item 19; or b. refer the charge to a convening authority with a view to trial by court martial or Defence Force magistrate-proceed to Item 20.

18.

19.

AUTHORITY DECIDES TO TRY CHARGE

The authority should inform the accused that he intends to try the charge. If he has heard the prosecution evidence he may allow witnesses to he recalled for further cross-examination. If the trial commences immediately proceed to PROCEDURE FOXTROT Item 5A; if it is to be held at a later time, it commences at PROCEDURE FOXTROT Item 1 The authority should say: "I NOW REFER THE CHARGE TO A CONVENING AUTHORITY WITH A VIEW TO YOUR TRIAL BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE. THIS HEARING IS NOW COMPLETED".

20.

AUTHORITY DECIDES TO REFER CHARGE TO CONVENING AUTHORITY

ADFP 201 VOLUME 1 PROCEDURE ECHO HEARING (OTHER THAN A TRIAL) BY A SUPERIOR SUMMARY AUTHORITY

ANNEX J TO CHAPTER 7

1. COURT ASSEMBLES

2. AUTHORITY ARRIVES

3. PROSECUTOR ANNOUNCES CASE

4. AUTHORITY CALLS FOR ACCUSED RECORDER SWORN OR AFFIRMED

6. AUTHORITY CONSIDERS THE CHARGE AND DETERMINES WHETHER HE HAS JURISDICTION TO TRY IT

5. PROSECUTOR READS CHARGE

NO JURISDICTION TO TRY

HAS JURISDICTION TO TRY

6a. AUTHORITY REFERS CHARGE TO CONVENING AUTHORITY

19. AUTHORITY DECIDES TO TRY CASE

6c. AUTHORITY DECIDES TO HEAR OUTLINE OF CASE

6b. AUTHORITY DECIDES TO REFER CHARGE TO TO CONVENING AUTHORITY

PROCEDURE FOXTROT

7. PROSECUTOR OUTLINES CASE

19. AUTHORITY DECIDES TO TRY CHARGE

8b. AUTHORITY DECIDES TO HEAR PROSECUTION EVIDENCE

PROCEDURE FOXTROT

9-17. AUTHORITY HEARS EVIDENCE

19. AUTHORITY DECIDES TO TRY CHARGE PROCEDURE FOXTROT

20. AUTHORITY DECIDES TO REFER CHARGE TO A CONVENING AUTHORITY

ADFP 201 VOLUME 1 ANNEX K TO CHAPTER 7

PROCEDURE FOXTROT - TRIAL CONDUCTED BY A SUPERIOR SUMMARY AUTHORITY

Item 1.

Procedure COURT ASSEMBLES

Notes 1. Court to be set out as in Annex M. 2. Assembly procedure may- be amended when the trial is conducted in the Superior Summary Authority's office. 3. The prosecutor, defending officer and recorder take their places in court before the Authority arrives. The accused and escort (if any) remain outside the court until called. 4. Headdress is to be worn. Those assembled should salute the Authority. The prosecutor should announce the names of the accused and the defending officer. The accused (and escort if any) enters the court and salutes the authority. The accused has the right to object that the recorder is not impartial or is not competent. See Notes 6-8 and 12 in Annex O for form of oath etc. 1. The Authority should explain the charge if necessary. 2. The accused should not be asked to plead to the charge at this stage. 3. The prosecutor should address any statutory alternative charge upon which he or she might seek to rely if the primary charge is not made out. The purpose of seeking admissions as to identity and jurisdiction is to expedite the proceedings by removing the necessity for the prosecutor to adduce evidence of matters that generally should not be in issue. However, an accused is under no obligation to make any admissions whatsoever in relation to the charge against him. Where the accused does not admit to being the person named in the charge sheet or to being a defence member (or defence civilian) at the relevant time, the prosecution must adduce formal evidence of these matters. 1. The Authority should say: DO YOU UNDERSTAND THAT YOU ARE ABLE TO MAKE CERTAIN APPLICATIONS OR OBJECTIONS TO ME CONCERNING THE TRIAL AND THE CHARGE? 2. Some of the matters on which applications or objections may be made are printed on reverse of the Summary Proceedings Report and in Annex P. 3. The Authority should grant an application where he is satisfied that the interests of justice require that it be granted. He should allow an objection where it is substantiated.

2. 3. 4.

SUPERIOR SUMMARY AUTHORITY ARRIVES PROSECUTOR ANNOUNCES CASE TO AUTHORITY AUTHORITY CALLS FOR ACCUSED. RECORDER (IF ANY) TO BE SWORN OR AFFIRMED

5.

PROSECUTOR READS CHARGE

5A.

AUTHORITY ASKS ACCUSED IF HE/SHE IS THE PERSON NAMED IN THE CHARGE SHEET AND IF HE/SHE ADMITS TO BEING A DEFENCE MEMBER (OR DEFENCE CIVILIAN) NOW AND AT THE TIME STATED IN THE CHARGE(S)

6.

AUTHORITY ASKS FOR APPLICATIONS OR OBJECTIONS IN RESPECT OF CHARGE

ADFP 201 VOLUME 1 7K2

Item 6

Procedure Continued

Notes 4. If the charge is amended as a consequence of an application or objection, it should be read over to the accused. 1. The Authority should put each charge separately, saying after each: ON THIS CHARGE, HOW DO YOU PLEAD, GUILTY OR NOT GUILTY? 2. If the accused pleads GUILTY the Authority should: a. direct the prosecutor to outline the facts of the case and proceed to Item 31; or b. if the Authority has already heard the evidence of the prosecution at a hearing, proceed directly to Item 31. However, if at any time during the trial it appears to the Authority that an accused who has pleaded guilty does not understand the effect of that plea, the Authority shall substitute a plea of not guilty and proceed accordingly (DFD Rule 43). 3. If the accused pleads NOT GUILTY: a. the Authority should proceed to Item 8; or b. if the Authority has already heard the evidence of the prosecution at a hearing, and the accused does not require the evidence to be given again, the authority may: (1) proceed to Item 25; or (2) if he considers that he is likely to impose an elective punishment in the event of convicting the accused, proceed to Item 22, unless there is a submission of no case to answer, in which case proceed to Item 19.

7.

AUTHORITY CALLS UPON ACCUSED TO PLEAD

8.

AUTHORITY INFORMS ACCUSED OF TRIAL PROCEDURE

The Authority should say: I NOW INTEND TO HEAR THE EVIDENCE IN SUPPORT OF THE CHARGE. YOU OR YOUR DEFENDING OFFICER WILL BE ENTITLED TO CROSS-EXAMINE ANY WITNESSES FOR THE PROSECUTION AND YOU MAY AT A LATER STAGE GIVE EVIDENCE YOURSELF AND CALL WITNESSES ON YOUR BEHALF. The prosecutor may outline the prosecution case to the Authority before calling his first witness. If the Authority has already heard the evidence of the prosecution at a hearing, he may admit the evidence under DFD Reg 26(1). The evidence may be admitted if the Authority is satisfied that to do so would not be unfair to the accused and the accused consents to this course of action. The witness must give evidence on oath or affirmation. (As to forms of oath or affirmation see Notes 2-5 and 9-11 in Annex O.)

9.

AUTHORITY ASKS PROSECUTOR TO CALL WITNESSES PROSECUTOR CALLS HIS FIRST WITNESS

10.

11.

WITNESS TO BE SWORN OR AFFIRMED

ADFP 201 VOLUME 1 7K3

Item 12.

Procedure PROSECUTOR EXAMINES WITNESS

Notes 1. The witness should be examined by the prosecutor to establish all the facts necessary to prove the charge. 2. Leading questions are not to be asked except to establish facts that are not likely to be disputed. See Note 13 in Annex O. Leading questions may be asked. See Note 14 in Annex O on cross-examination. Questions may only be asked on matters raised in cross-examination. See note 15 in Annex O. Questions should only be asked to clarify evidence already given. The Authority should not assume the role of prosecutor; if the Authority considers that some aspect of the case has not been adequately presented to him he should invite the prosecutor to produce further evidence. See Note 16 in Annex O. If further questioning may be necessary, the witness should be ordered to remain in the vicinity of the court. Witnesses should be examined as in Items 1115. This should be done only in exceptional circumstances to clarify the evidence. See Notes 17-19 in Annex O. 1. The accused or the defending officer may at this stage submit that the prosecution evidence is insufficient to support the charge. 2. The Authority may, if the interests of justice so require, decide that there is insufficient evidence to support the charge without such a submission being made by the accused. 3. See Notes 20-21 in Annex O.

13.

ACCUSED OR DEFENDING OFFICER MAY CROSS EXAMINE WITNESS PROSECUTOR MAY REEXAMINE WITNESS AUTHORITY MAY QUESTION WITNESS

14. 15.

16.

WITNESS MAY BE RELEASED

17. 18.

FURTHER PROSECUTION WITNESSES MAY BE EXAMINED WITNESS MAY BE RECALLED

19.

NO CASE TO ANSWER

20.

AUTHORITY DECIDES ON FURTHER ACTION

There are four courses open to the Authority: a. he may, if he finds that there is insufficient evidence to support the charge, dismiss the charge proceed to Item 21; b. he may, if he considers that he is likely to impose an elective punishment,(l) give the accused the option of electing to be tried by court martial or Defence Force magistrate proceed to Item 22; c. he may, if he considers that his powers of punishment are insufficient, refer the case to a (l) convening authority - proceed to Item 24; or (l) d. he may continue with the trial proceed to Item 25. (1) See Notes 22-24 in Annex O

ADFP 201 VOLUME 1 7K4

Item 21.

Procedure AUTHORITY DECIDES TO DISMISS CHARGE

Notes The Authority should say: I FIND THAT THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE CHARGE AND THEREFORE DISMISS THE CHARGE AGAINST YOU. 1. The Superior Summary Authority should say: I HAVE HEARD THE PROSECUTION EVIDENCE AND CONSIDER THAT IF I CONTINUE WITH THE TRIAL AND CONVICT YOU OF THESE CHARGES I MAY DECIDE TO AWARD AN ELECTIVE PUNISHMENT. THE ELECTIVE PUNISHMENTS THAT WOULD BE AVAILABLE TO ME SHOULD YOU ELECT TO BE TRIED BY ME ARE (state elective punishments that are available is the accused elects to be tried by the Superior Summary Authority). BEFORE I CONTINUE WITH THE TRIAL WITH THE OPTION OF AWARDING ELECTIVE PUNISHMENTS, I AM REQUIRED TO OFFER YOU THE OPTION OF ELECTING TO BE TRIED BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE. I WILL NOW HAND YOU A FORM THAT ADVISES YOU IN GREATER DETAIL OF YOUR ELECTION. YOU ARE TO CONSIDER THE INFORMATION CONTAINED IN THE FORM AND DISCUSS IT WITH YOUR DEFENDING OFFICER (or an independent person if you are not represented by a Defending officer). YOU ARE ALSO REQUIRED TO PROVIDE ME WITH WRITTEN NOTIFICATION OF YOUR ELECTION. THIS IS TO BE DONE BY COMPLETING AND SIGNING THE ELECTION SECTION OF THE FORM THAT I AM ABOUT TO HAND YOU. DO YOU HAVE ANY QUESTIONS REGARDING THE ELECTION PROCEDURE THAT I HAVE JUST EXPLAINED? (Authority hands the member a copy of Annex U to Chapter 7 DLM Vol 1. The Authority must complete/ strike out relevant/irrelevant parts before giving it to the member.) 2. I WILL NOW ADJOURN THE PROCEEDINGS WHILE YOU CONSIDER WITH YOUR DEFENDING OFFICER THE INFORMATION CONTAINED IN THE FORM THAT I HAVE HANDED YOU AND, IF NECESSARY, OBTAIN FURTHER INDEPENDENT ADVICE IN RESPECT OF YOUR ELECTION. DURING THE ADJOURNMENT YOU ARE REQUIRED TO DECIDE YOUR ELECTION AND COMPLETE THE ELECTION SECTION OF THE FORM.

22.

AUTHORITY GIVES ACCUSED OPTION OF ELECTING TRIAL BY COURT-MARTIAL OR DEFENCE FORCE MAGISTRATE

ADFP 201 VOLUME 1 7K5

Item 22

Procedure Continued

Notes (The Authority adjourns for such time that he considers reasonable in the circumstances to allow the member to read, consider and seek advice on the issue of his or her election.) 1. The tribunal should re-assemble. 2. The Authority should say: I HAVE PREVIOUSLY GIVEN YOU THE OPTION OF TRIAL BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE OR TO BE TRIED BY ME. WHAT DO YOU WISH TO DO? WOULD YOU PLEASE PROVIDE ME WITH WRITTEN CONFIRMATION OF YOUR ELECTION. (The Authority should receive the written notice of election from the accused (Annex U) and ensure that the member has properly completed it and that it is consistent with the members oral election.) 3. If the accused elects trial by court martial or Defence Force magistrate proceed to Item 24; if the accused elects trial by the Authority proceed to Item 25 if the accused has pleaded NOT GUILTY or to Item 32 if he has pleaded GUILTY to all the charges.

23.

ACCUSED MAKES ELECTION

24.

AUTHORITY REFERS CHARGE TO CONVENING AUTHORITY

The Authority should say: I NOW REFER THE CHARGE TO A CONVENING AUTHORITY, WITH A VIEW TO TRIAL BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE. THIS TRIAL IS NOW COMPLETED. 1. The Authority should say: I WILL NOW PROCEED WITH THE TRIAL. YOU MAY AT THIS STAGE GIVE EVIDENCE YOURSELF ON OATH OR AFFIRMATION, ON WHICH YOU MAY BE CROSS-EXAMINED BY THE PROSECUTOR. IF YOU WISH TO CALL OTHER WITNESSES AND ALSO INTEND TO GIVE EVIDENCE YOURSELF YOU SHOULD GIVE EVIDENCE FIRST. YOU MAY ALSO REMAIN SILENT. WHAT DO YOU WISH TO DO? 2. If the accused wishes to give or call evidence proceed to Item 26. 3. If the accused wishes to remain silent proceed to Item 29. 4. See Note 25 in Annex O. This may only be done in cases where the accused intends to call witnesses (other than himself) to give evidence as to the facts.

25.

AUTHORITY PROCEEDS WITH TRIAL

26.

ACCUSED OR DEFENDING OFFICER MAY MAKE OPENING ADDRESS

ADFP 201 VOLUME 1 7K6

Item 27.

Procedure THE ACCUSED GIVES EVIDENCE

Notes 1. The accused is to be sworn or affirmed as appropriate if he elects to give evidence on oath or affirmation. (See Notes 2, 3, in Annex O). The accused should be examined by the defending officer. He may be cross-examined by the prosecutor and re-examined by the defending officer and the Authority may ask questions of him (similar rules as in Items 12 to 15 apply). See Note 26 in Annex O. 1. All witnesses must give evidence on oath or affirmation. (As to form of oath or affirmation see Notes 2, 3 in Annex O.) 2. The witnesses should be examined by the accused or the defending officer. They may be cross-examined by the prosecutor and reexamined by the accused or defending officer and the Authority may ask questions of them. See Note 27 in Annex O. In most simple cases there should be no need to make a closing address as the issues raised by the evidence should be clear. In most simple cases there should be no need to make a closing address as the issues raised by the evidence should be clear. 1. See Notes 28-29 in Annex O. 2. If the accused is found GUILTY the conviction is to be recorded. 3. If the accused is found GUILTY on a plea of GUILTYproceed to Item 32. 4. If the accused is found GUILTY on a plea of NOT GUILTYproceed to Item 36. 5. If the verdict is NOT GUILTY, the charge must be recorded as dismissed. If all charges are dismissed, the accused should be discharged.

28.

DEFENCE WITNESSES GIVE EVIDENCE

29.

PROSECUTOR MAY MAKE CLOSING ADDRESS ACCUSED OR DEFENDING OFFICER MAY MAKE CLOSING ADDRESS AUTHORITY DECIDES GUILT

30.

31.

32.

AUTHORITY DECIDES ON FURTHER ACTION

There are two courses open to the Authority: 1. He must, if he is of the opinion that an elective punishment should be imposed, give the accused the option of electing to be punished by Court Martial or Defence Force Magistrate proceed to Item 33, or 2. He may continue with the trialproceed to Item 36.

ADFP 201 VOLUME 1 7K7

Item 33.

Procedure AUTHORITY GIVES ACCUSED OPTION OF ELECTING PUNISHMENT BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE

Notes 1. The Authority should say: I HAVE HEARD THE OUTLINE OF THE FACTS OF THE CASE AND AM OF THE OPINION THAT IT MAY BE APPROPRIATE TO IMPOSE AN ELECTIVE PUNISHMENT. THE ELECTIVE PUNISHMENTS THAT WOULD BE AVAILABLE TO ME SHOULD YOU ELECT TO BE PUNISHED BY ME ARE AS FOLLOWS (state the elective punishments that are available if the accused elects to be punished by the Authority). BEFORE I MAY AWARD THESE PUNISHMENTS I AM REQUIRED TO OFFER YOU THE OPTION OF ELECTING TO BE PUNISHED BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE RATHER THAN BY ME. I WILL NOW HAND YOU A FORMAL NOTIFICATION, WHICH ADVISES YOU IN GREATER DETAIL OF YOUR ELECTION. YOU ARE TO CONSIDER THE INFORMATION CONTAINED IN THE FORM AND DISCUSS IT WITH YOUR DEFENDING OFFICER (or an independent person if the member is not represented). YOU ARE ALSO REQUIRED TO PROVIDE ME WITH WRITTEN NOTIFICATION OF YOUR ELECTION. THIS IS TO BE DONE BY COMPLETING AND SIGNING THE RELEVENT SECTION ON THE FORM THAT I AM ABOUT TO HAND YOU. DO YOU HAVE ANY QUESTIONS REGARDING THE ELECTION PROCEDURE THAT I HAVE JUST EXPLAINED? (Authority hands the member a copy of Annex V to Chapter 7 DLM Vol 1. The Authority must complete/ strike out relevant/irrelevant parts before giving it to the member.) 2. I WILL NOW ADJOURN THE PROCEEDINGS WHILE YOU CONSIDER WITH YOUR DEFENDING OFFICER THE INFORMATION CONTAINED IN THE FORM THAT I HAVE HANDED YOU AND, IF NECESSARY, OBTAIN FURTHER INDEPENDENT ADVICE IN RESPECT OF YOUR ELECTION. DURING THE ADJOURNMENT YOU ARE REQUIRED TO DECIDE YOUR ELECTION AND COMPLETE THE ELECTION SECTION OF THE FORM, (Authority adjourns for such time that he considers reasonable in the circumstances to allow the member to read, consider and seek advice on the issue of his or her election.)

ADFP 201 VOLUME 1 7K8

Item 34.

Procedure ACCUSED MAKES ELECTION

Notes 1. The tribunal should reassemble. 2. The Authority should say to the accused: I HAVE PREVIOUSLY GIVEN YOU THE OPTION TO ELECT TO BE PUNISHED BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE OR TO BE PUNISHED BY ME. WHAT DO YOU WISH TO DO?'. WOULD YOU PLEASE PROVIDE ME WITH WRITTEN CONFIRMATION OF YOUR ELECTION. (The Authority should receive the written notice of election from the accused (Annex V) and ensure that the member has properly completed it and that it is consistent with the members oral election. If the accused fails to provide an election when offered one, the Authority is able to proceed with punishment action under Part IV DFDA: see s.131(2B) DFDA.) 3. If the accused elects to be punished by Court Martial or Defence Force Magistrate, proceed to Item 35. If the accused elects to be punished by the authority proceed to Item 36.

35.

AUTHORITY REFERS CONVICTION TO CONVENING AUTHORITY

The Authority should say: 'I now refer the conviction to a convening authority, with a view to punishment by Court Martial or Defence Force Magistrate. This trial is now completed'. Discretion should be exercised as to whether spent convictions should be considered (see paragraph 7.56). Witnesses as to character may be called and a statement in mitigation may be made by the accused or the defending officer. See Notes 30-33 in Annex O. The Authority should take into account the sentencing principles set out in Chapter 11 of the DLM. A separate punishment or order should be imposed or made in respect of each offence on which the accused is convicted. 1. On completion, the convicted person salutes the Authority and marches out. 2. As to follow-up action see Notes 34-37 in Annex O.

36.

AUTHORITY INSPECTS ACCUSED'S RECORD ACCUSED OR DEFENDING OFFICER MAY OFFER MITIGATION AUTHORITY CONSIDERS SENTENCE

37.

38.

39.

AUTHORITY ANNOUNCES SENTENCE

ADFP 201 VOLUME 1 PROCEDURE FOXTROT - TRIAL CONDUCTED BY A SUPERIOR SUMMARY AUTHORITY
1. COURT ASSEMBLES

ANNEX L TO CHAPTER 7

2. AUTHORITY ARRIVES

3. PROSECUTOR ANNOUNCES CASE

4. AUTHORITY CALLS FOR ACCUSED/RECORDER SWORN

5. PROSECUTOR READS CHARGE

5a. ADMISSIONS

6. APPLICATIONS OR OBJECTIONS BY ACCUSED

ACCUSED PLEADS GUILTY GO TO PAGE 7L-2 7. AUTHORITY CALLS ON ACCUSED TO PLEAD

ACCUSED PLEADS NOT GUILTY GO TO PAGE 7L-3

ADFP 201 VOLUME 1

7L-2 ACCUSED ENTERS GUILTY PLEA

7. PROSECUTOR OUTLINES FACTS OF THE CASE

32. Considers Elective Punishment 32. Powers of Punishment Adequate

31. AUTHORITY DECIDES GUILT

33. AUTHORITY OFFERS ACCUSED RIGHT TO ELECT TO BE PUNISHED BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE

34. ACCUSED ELECTS TO BE PUNISHED BY AUTHORITY

36. AUTHORITY INSPECTS ACCUSEDS RECORD

37. PLEA IN MITIGATION 34. ACCUSED ELECTS TO BE PUNISHED BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE

38. AUTHORITY CONSIDERS SENTENCE

35. AUTHORITY REFERS CONVICTION TO CONVENTING AUTHORITY

39. AUTHORITY ANNOUNCES SENTENCE

ADFP 201 VOLUME 1

7L-3 ACCUSED ENTERS PLEA OF NOT GUILTY YES

7. HAS AUTHORITY HEARD EVIDENCE ?

NO

8. AUTHORITY INFORMS ACCUSED OF TRIAL PROCEDURE

9-18. AUTHORITY HEARS PROSECUTION EVIDENCE 19. IS THERE A CASE TO ANSWER

Sufficient Evidence to Support Charge Insufficient Evidence to Support Charge

20. AUTHORITY DECIDES ON FURTHER ACTION

Continues with Trial - Sufficient Powers of Punishment

21. DISMISSES CHARGE

CONSIDERS ELECTIVE PUNISHMENT 22. AUTHORITY OFFERS ACCUSED RIGHT TO ELECT TRIAL BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE ACCUSED ELECTS TRIAL BY CM OR DFM GUILTY 23. ACCUSED ELECTS TRIAL BY AUTHORITY

25. PROCEEDS WITH TRIAL

26-28. DEFENCE CASE

29-30. CLOSING ADDRESSES NOT GUILTY 31. AUTHORITY DECIDES GUILT 24. AUTHORITY REFERS CHARGE TO CONVENING AUTHORITY

36. INSPECTS ACCUSEDS RECORD

31. ACCUSED DISCHARGED

37. DEFENCE PLEA IN MITIGATION

38. AUTHORITY CONSIDERS SENTENCE

39. AUTHORITY ANNOUNCES SENTENCE

ADFP 201 VOLUME 1 ANNEX M TO CHAPTER 7

SUMMARY PROCEEDINGS - COURT LAYOUT

OFFICER CONDUCTING THE COURT

RECORDER

WITNESS

PROSECUTOR

ACCUSED AND DEFENDING OFFICER ESCORT

ADFP 201 VOLUME 1 ANNEX N TO CHAPTER 7

PROCEDURE GOLF - PROCEDURE BEFORE AN EXAMINING OFFICER (OTHER THAN WHERE A PERSON IS DANGEROUSLY ILL)
Item 1. Procedure COURT ASSEMBLES Notes 1. Hearing room to be set out as in Annex M. 2. Recorder, accused and defending officer (and escort, if any) take their places in court before the examining officer arrives. 3. Headdress is to be worn. Those assembled should salute the examining officer. Headdress may then he removed. He should say: I HAVE BEEN DIRECTED BY .................... (CO) .................TO HEAR EVIDENCE IN CONNECTION WITH A CHARGE AGAINST .......................(accused) UNDER THE DEFENCE FORCE DISCIPLINE ACT. 1. The accused has the right to object that the recorder is not impartial or is not competent. 2. As to form of oath or affirmation see Notes 6-8 and 12 in Annex O. 1. After reading the charge the examining officer should say: ARE YOU THE PERSON NAMED IN THE CHARGE SHEET? 2. The accused should acknowledge. He should say: DURING THIS HEARING I SHALL HEAR EVIDENCE IN SUPPORT OF THE CHARGE AGAINST YOU AND THIS EVIDENCE WILL BE RECORDED. YOU ARE ENTITLED TO CROSS-EXAMINE ANY OF THE WITNESSES WHO GIVE EVIDENCE DURING THIS HEARING (OR YOUR DEFENDING OFFICER MAY DO IT FOR YOU). IF YOU DO, YOUR QUESTIONS AND THE ANSWERS GIVEN BY THE WITNESSES WILL BE RECORDED. AFTER I HAVE HEARD THE EVIDENCE IN SUPPORT OF THE CHARGE I SHALL GIVE YOU AN OPPORTUNITY TO GIVE EVIDENCE YOURSELF AND TO CALL OTHER WITNESSES ON YOUR BEHALF. AFTER I HAVE HEARD ALL THE EVIDENCE I SHALL SEND THE RECORD OF THIS HEARING TO ............. (CO)....... WHO WILL DECIDE WHAT ACTION TO TAKE IN RESPECT OF THE CHARGE. YOU WILL BE GIVEN A COPY OF THE RECORD. 1. The orderly is to control the entry and exit of witnesses. 2. The orderly should administer the oath or affirmation to each witness in turn. The forms of oath or affirmation are set out in Notes 2-5 and 9-11 in Annex O. 1. Witnesses are to he examined on the basis of prior written statements which they have made in connection with the alleged offence. 2. The examining officer is bound by the rules of evidence applicable to an examination-in-chief and he should avoid asking leading questions on any of the facts in issue. He should also ensure that all of the evidence which is recorded is admissible before a service

2. 3.

EXAMINING OFFICER ARRIVES EXAMINING OFFICER EXPLAINS PURPOSE OF HEARING

4.

RECORDER TO BE SWORN OR AFFIRMED

5.

EXAMINING OFFICER READS CHARGE

6.

EXAMINING OFFICER EXPLAINS PROCEDURE

7.

EXAMINING OFFICER CALLS EACH WITNESS IN TURN

8.

EXAMINING OFFICER QUESTIONS EACH WITNESS

ADFP 201 VOLUME 1 7N2

Item 8

Procedure Continued

Notes tribunal. In particular he should ensure that hearsay , character and opinion evidence which is not admissible under the rules of evidence is not recorded. Where the opinion of experts is relevant to a fact in issue and is otherwise admissible their evidence may be heard and recorded. 3. Where documents or other evidence form part of the evidence in the case they should be marked for identification by the examining officer when first referred to by a witness in the course of giving oral evidence. Leading questions may be asked. See Note 14 in Annex O on cross-examination. This need not be done where all the evidence is recorded and transcribed and is only required when the examining officer is summarising the evidence. When this procedure is used, the examining officer asks the witness whether it is an accurate record of his testimony. If the witness does not agree with the accuracy of any part of his evidence he should be given an opportunity to give the relevant evidence again. On completion, the witness and the examining officer should sign the record. The examining officer considers whether any of the evidence is inadmissible before a service tribunal and may decide to delete portions of the evidence on this ground. Before accepting the written evidence of witnesses who cannot attend, the examining officer must cause the document to be read to the accused. The accused and defence witnesses may be cross-examined.

9.

10.

ACCUSED OR DEFENDING OFFICER MAY CROSSEXAMINE WITNESS EXAMINING OFFICER READS RECORD OF EVIDENCE TO WITNESS

11.

EXAMINING OFFICER ASKS ACCUSED WHETHER ANY OTHER EVIDENCE IS OBJECTED TO EXAMINING OFFICER ACCEPTS WRITTEN EVIDENCE ACCUSED MAY ELECT TO GIVE EVIDENCE OR CALL WITNESSES ON HIS BEHALF WITNESSES MAY BE EITHER RELEASED OR RECALLED HEARING ENDS

12.

13.

14. 15.

1. Once the last witness is heard the examining officer declares that the hearing is completed. All persons present are to stand, put on headdress and salute the examining officer. 2. All persons are to remain in the hearing room until the examining officer has left the room. 1. The examining officer must satisfy himself that the record accurately reflects the substance of the evidence and that any written statements made by witnesses who were unable to attend the hearing are included in the record. 2. The record of the hearing is to be forwarded to the commanding officer who directed the examining officer to hear evidence and a copy is to be provided to the accused.

16.

POST HEARING PROCEDURE

ADFP 201 VOLUME 1 ANNEX O TO CHAPTER 7

NOTES ON SUMMARY PROCEEDINGS

Considering Whether To Try A Charge 1. In some cases the gravity of an alleged offence may not be apparent to a summary authority simply by examining the charge. In such cases, although the authority may have jurisdiction to try the charge, he should not commence the trial unless, in the event of convicting the accused, he is able to impose an appropriate punishment. To meet this situation, the DFDA provides that a summary authority may hear an outline of the case or prosecution evidence in order to determine whether he should try the charge or deal with it in some other way. Form Of Oath By Witness 2. An oath may be taken in any form which is binding on a witness's conscience. However, the form in which the oath is normally to be taken is as follows: 3. 4. 5. The orderly is to provide the witness with a Bible and is to ask the witness: Do you swear to tell the truth, the whole truth and nothing but the truth? The witness, holding the Bible in his right hand, answers: I do.

Form Of Oath By Recorder 6. An oath may be taken in any form which is binding on the recorder's conscience. The form usually followed is: 7. The recorder takes the Bible in his right hand and says:

8. I swear that I will to the best of my ability, truly record (and transcribe) the evidence to be given in these proceedings (and will deliver a true transcript). Form Of Affirmation By Witness 9. If the witness does not wish to take an oath he may make an affirmation. In this case the orderly is to ask the witness: 10. Do you solemnly, sincerely and truly declare that the evidence you shall give will be the truth, the whole truth and nothing but the truth? 11. The witness is to answer: I do.

Form Of Affirmation By Recorder 12. I solemnly, sincerely and truly declare and affirm that I will to the best of my ability, truly record (and transcribe) the evidence to be given in these proceedings (and will deliver a true transcript). Examination Of Prosecution Witnesses 13. Chapter 6 paragraphs 6.170 to 6.194 should be read in relation to examination of prosecution witnesses. Witnesses should be identified and then asked to give their version of the facts in their own words. If they have made a prior statement, the prosecutor should seek to adduce in oral form the evidence recorded therein; the statements themselves are generally not admissible as evidence (see paragraph 6.101). Leading questions should not generally be asked in examination-inchief (see paragraph 6.186). A prosecutor must also ensure that his examination-in-chief does not extend to matters of which the accused has not been given notice.

ADFP 201 VOLUME 1 7O2 Cross-Examination 14. (See paragraphs 6.195 to 6.210) A witness may be cross-examined on any relevant issues of fact and on his credit. Where the cross-examine' attacks the witness's credit he is generally bound by the answers he receives and may not seek to adduce other evidence to contradict the witness (see paragraph 6.200). Generally, leading questions may be asked. If in a crucial part of the case the cross-examiner intends to ask the summary authority to disbelieve the evidence of a witness, the witness must be challenged on the issue in the course of his cross-examination (see paragraph 6.195 et seq). Re-Examination 15. A party who has called a witness may re-examine that witness only on matters which have arisen out of cross-examination or where a particular question or line of questioning is allowed by the summary authority. (See paragraph 6.211 and DFD Rule 18(1)(c).) Examination By Summary Authority 16. The summary authority may ask questions of a witness (DFD Rule 18(3)). Such questions should be relevant to the issues in the case. If the summary authority asks questions of a witness, the prosecutor and the accused (or his representative) may put such questions arising from the answers which he has given as seems proper to the authority (Rule 18(4)). Recalling Witnesses 17. The prosecutor and accused may, at any time before the summary authority makes a finding on the charge, recall a witness where leave to do so has been given by the authority; DFD Rule 19(1)(b). Leave should normally he granted where the authority is satisfied that the accused would be put at an undue disadvantage if the witness were not recalled. 18. The summary authority may call a witness or recall a witness if, in his opinion, it is in the interests of justice to do so; DFD Rule 19(3). 19. Where a witness is called or recalled pursuant to the above rules, the prosecutor or the accused may put such questions to the witness as seem proper to the summary authority; DFD Rule 19(4). No Case To Answer 20. After hearing the prosecution evidence, the summary authority must decide whether the evidence is sufficient to support the charge, ie whether a prima facie case exists. If he decides that there is insufficient evidence he must dismiss the charge. If he decides there is sufficient evidence, he must proceed with the trial (DFDA s.130(1)) 21. In determining whether there is sufficient evidence, the authority must be satisfied on the balance of probabilities (see paragraph 6.19) that the evidence is sufficient to prove every element of the charge. Courses Open Where There Is Sufficient Evidence To Support Charge (commanding officers and superior summary authorities only) 22. Right to elect trial by court martial. Before he offers an accused the right to elect trial by court martial or Defence Force magistrate, the summary authority must be satisfied that if he convicts the accused, it would be appropriate to impose an elective punishment upon him. (As to elective punishments see paragraph 7.20.) It should also be noted that the right to elect trial by court martial arises only in trials before commanding officers and superior summary authorities (DFDA s.l31). 23. Breaking-off trial by summary authority on own motion. If a summary authority is of the opinion that the charge, if proved, warrants a more severe punishment than he can impose, he should refer the charge to a convening authority (see paragraphs 7.16, 7.37). In most cases there should be no need for a summary authority to break off a trial because he should have been made aware of the

ADFP 201 VOLUME 1 7O3 gravity of the alleged offence in the course of the hearing prior to the trial. Occasionally, however, a summary authority may find that the evidence which is given at the trial reveals a more serious offence than had originally been thought to have been committed. For example, on a charge of assault, medical evidence may be received at the trial in relation to the injuries suffered by the victim, which reveals that the offence is far more serious than the authority had realised when he decided to try the charge. In such a case the authority may break off the trial and refer the charge to a convening authority to be dealt with. 24. Deciding to proceed with the trial. If neither of the above courses of action is appropriate, the authority must proceed with the trial (DFDA s.130). Election By Accused To: Give Evidence/Remain Silent 25. The accused is entitled to give evidence at any time during the hearing of the defence case, even if he has not previously applied to do so. However, if he indicates his intention to postpone giving evidence until after hearing other defence witnesses, he should be warned that the value of his evidence may be considerably discounted. Giving Of Evidence By Accused 26. Once the accused has elected to give evidence on oath, he may be asked, and is bound to answer, a question which may tend to incriminate him in the offence with which he is charged. Furthermore, if the accused has asked questions or adduced evidence which has tended to show that he is a person of good character or he has impugned the character of prosecution witnesses or co-accused, he may be asked, and is bound to answer, questions which show that he has been convicted or tried of other offences or that he is a person of bad character (see paragraphs 6.125 to 6.136). Recalling Prosecution Witnesses At End Of Defence Case 27. After defence witnesses have given their evidence, the prosecutor may, by leave of the summary authority, call a witness or recall a witness to give evidence on any matter raised by the accused in his defence which could not properly have been raised or foreseen by the prosecutor before the accused presented his defence (DFD Rule 19(2)). Determining Whether Accused Is Guilty As Charged 28. The authority may announce his finding immediately or may adjourn the proceedings in order to deliberate further on it. 29. In considering his verdict the summary authority must have regard to the following matters: a. Onus of proof. Before he may convict an accused the authority must be satisfied that every element of the charge has been proved beyond reasonable doubt. (As to 'proof beyond reasonable doubt' see paragraph 6.18.) The evidence in the case. Apart from matters on which evidence is not required (see paragraphs 6.42 to 6.53), the summary authority must consider only the evidence in the case and must not allow himself to be influenced by his personal feelings towards or knowledge of the accused or by any personal prejudices he may have in relation to the offence with which the accused is charged. If he is not satisfied beyond reasonable doubt that there is sufficient reliable evidence to prove every element of the charge he must find the accused not guilty. In cases where the evidence against the accused includes evidence by accomplices, the authority must not convict on this evidence unless it is corroborated (see paragraph 6.220).

b.

Plea In Mitigation 30. The accused or his representative may call witnesses as to character or adduce any other evidence relevant to punishment (or other action under Part IV) (DFD Rule 50(2)). Any witnesses who are called are sworn or affirmed in the manner described in Notes 2-5 and 9-11.

ADFP 201 VOLUME 1 7O4 31. Character witnesses may be cross-examined by the prosecutor but such cross-examination should be limited to clarifying the evidence-in-chief. The prosecutor should not attack the credit of character witnesses unless he intends to call evidence to support the attack. 32. Whether or not the accused has called character witnesses he or his representative may address on the issue of punishment (DFD Rule 50(2)). 33. If the accused or any witness called by him gives evidence in mitigation which denies an essential ingredient of the charge to which the accused has pleaded guilty, the summary authority should substitute a plea of not guilty. The charge should then be dealt with as a defended matter by the same or another summary authority. Post Trial Procedure 34. The convicted person is to be counselled by his defending officer in relation to the effect of the punishment imposed by the authority as soon as practicable after completion of the trial. 35. The record of proceedings is to be prepared in accordance with the instructions at paragraph 759 and certified as true and correct by the recorder as soon as practicable after completion of the trial (DFD Rule 52(3)). 36. A subordinate summary authority is to forward the record of proceedings to his commanding officer, for review, as soon as practicable after the trial is completed (DFDA s.151(1)). 37. Where the trial has been conducted by a commanding officer or a superior summary authority, the proceedings are to be forwarded to a reviewing authority as soon as practicable after completion of the trial (DFDA s.152(1)).

ADFP 201 VOLUME 1 ANNEX P TO CHAPTER 7

RIGHTS OF AN ACCUSED PERSON AT SUMMARY PROCEEDINGS

General 1. An accused person has the following rights where, having been charged with a service offence, he is directed to appear before a summary authority. Right to be Informed of Charge 2. An accused has a right to be given a copy of the charge preferred against him at the time he is charged (DFDA s.87(1)(a); 95(3); DLM paragraph 4.7). Right to be Represented 3. An accused person may defend himself or may be defended by any member of the Defence Force if that person is reasonably available; otherwise another person may be appointed to represent him (DFD Rule 24; DLM paragraph 7.45). Rights Before Accused is Asked to Plead at a Trial 4. Applications. An accused person has a right to make any application in connection with a trial, including any of the following matters, before being asked to plead (DFDA s.141(1)): a. Adjournment. An accused may apply for an adjournment on the grounds that he has not had an adequate opportunity to prepare his defence or to choose a person to represent or advise him. Securing of Witnesses. An accused may apply to secure the attendance of witnesses or additional witnesses on his behalf. Separate trials: (1) If an accused is charged with more than one service offence, he may apply for each charge to be heard separately if he considers that the evidence in some of the charges would unfairly prejudice him in his defence of other charges. This only applies where the charges are of a different nature or are separated in time by a considerable period. If an accused is charged with one or more other persons, he may apply to be dealt with separately on the grounds that he would otherwise be prejudiced in his defence.

b.

c.

(2)

5. Objections. An accused person has a right to enter an objection to a charge on any ground, including any of the following, before being asked to plead at a summary trial (DFDA s.141(1)): a. that he is not liable to be tried for the offence with which he has been charged, by virtue of previous acquittal or conviction; that the charge was made outside the required time limitation; that the offence with which he has been charged has already been taken into consideration by a court martial or Defence Force magistrate; that the charge does not disclose a service offence or is otherwise wrong in law; and that the summary authority does not have jurisdiction or is otherwise ineligible to try the charge (DLM, Chapter 7).

b. c.

d. e.

ADFP 201 VOLUME 1 7P2 Rights With Regard To Pleading 6. An accused person is presumed to be innocent of any offence until proved guilty. Before a summary authority may convict an accused, the prosecution must prove his guilt beyond reasonable doubt. 7. An accused person who pleads not guilty is not necessarily stating that he did not commit the alleged offence. The effect of this plea is to require the prosecution to prove the charge against him. An accused has the right to plead not guilty or to remain silent. If he chooses to remain silent the proceedings will proceed as though he had pleaded not guilty. 8. An accused person who pleads guilty admits the offence with which he is charged but does not admit that every allegation made against him in connection with the offence is true. Rights in Connection With Conduct of Summary Hearings 9. Right to Request an Adjournment . An accused may, at any time, apply to a summary authority, on any reasonable grounds, for an adjournment of proceedings (DFD Rule 39). 10. Right to Cross-examine . An accused person (or his defending officer) has the right to cross-examine witnesses for the prosecution. 11. Right to Give Evidence etc. An accused person may give evidence on oath or affirmation or remain silent. Where he gives evidence on oath or affirmation, an accused may be cross-examined by the prosecution.. 12. Right to Call Witnesses to Fact . An accused person has a right to call witnesses to give evidence on his behalf on the facts in issue. 13. Right to Address the Summary Authority at a Trial . An accused person may address a summary authority: a. b. c. d. before presenting evidence (usually only necessary in a complicated case); at the end of the prosecution case - he may submit that there is no case to answer; at the end of all evidence in the case - on the question of guilt; and after the summary authority has convicted him - in mitigation of sentence.

14. Right to Call Witnesses to Character . A convicted person has a right to call witnesses to give evidence as to his good character. Where a witness is not reasonably available to give evidence as to good character a summary authority may accept evidence in documentary form. Rights in Relation to Punishment 15. Authorised Punishments . Where a person is convicted by a summary authority, the authority may not impose a punishment or take action other than as authorised by the DFDA (see DLM, Chapter 11). 16. Elective Punishments. An elective punishment (see DLM, Chapter 11) may not be imposed by a commanding officer or superior summary authority unless the convicted person has been offered the right to elect trial by court martial or Defence Force magistrate and he has chosen to he tried by a CO or superior summary authority (as the case may be). Similarly, a CO or superior summary authority may not impose an elective punishment on a person who has breached an undertaking to be of good behaviour for 12 months unless the authority has offered the person the right to elect punishment by a court martial or Defence Force magistrate and the person has chosen to be punished by the CO or superior summary authority (as the case may be).

ADFP 201 VOLUME 1 7P3 17. Where an accused is offered the right to elect trial by court martial or Defence Force magistrate he has a right to be given a reasonable time in which to consider his decision. Right to Review of Proceedings 18. Where any person is convicted by a summary authority the proceedings are automatically reviewed by a reviewing authority. If, in the opinion of the reviewing authority, a miscarriage of justice has occurred he may quash the conviction and punishment or take such other action as may be appropriate (see DLM Chapter 12). In addition to automatic review, a convicted person is entitled to seek review by petition to a reviewing authority or to a Service chief.

ADFP 201 VOLUME 1 ANNEX Q TO CHAPTER 7

NOTES ON BIAS
1. Summary authorities, members of Courts Martial, judge advocates and Defence Force magistrates have a duty to ensure that they do not try a charge in respect of which they may be biased. This duty arises under the common law as well as under specific provisions of the Defence Force Discipline Act (DFDA) or Rules. The common law requirement for impartiality is contained in the classic statement 'Justice should not only be done, but should manifestly and undoubtedly be seen to 1 be done'. The reason is plain enough, justice must be rooted in confidence, and confidence is 2 destroyed when right minded people go away thinking: The Judge was biased. 2. Under the Defence Force Discipline legislation, a variety of provisions relate to the question of bias. These provisions and the tribunals to which they apply are set out in paragraphs 3, 4 and 5 below. 3. Courts Martial a. Biased members or judge advocate not to be appointed (DFDA s.118): 118. A convening authority shall not appoint as a member or as a reserve member, or as the judge advocate, of a court martial an officer whom he believes to be : a. b. b. biased or likely to be biased; or likely to be thought, on reasonable grounds, to be biased.

Objection on ground of ineligibility etc. (DFDA s.121): 121. At any time before a court martial is sworn or affirmed, the accused person may lodge an objection with the convening authority to any member or reserve member of the court martial or to the judge advocate on the ground that the member or judge advocate: a. b. c. is ineligible; is, or is likely to be, biased; or is likely to be thought, on reasonable grounds, to be biased.

c.

Notification of belief of bias (DFDA s.122): 122. A member or reserve member, or the judge advocate, of a court martial who believes himself: a. to be biased, or likely to be biased; or

b. likely to be thought, on reasonable grounds, to be biased, shall notify the convening authority forthwith. d. Applications and objections (DFDA ss.141(2),(3)): 141. (2) At any time before a court martial is sworn or affirmed, the accused person may enter an objection to any member or reserve member of the court martial on the ground that the member:

R v Sussex Justices; Ex parte McCarthy [1924] 1 K.B. 256 and 259 per Lord Hewart C.J. Reg v Nailsworth Licensing Justices, Ex parte Bird [1953] 1 W.L.R. 1046; [1953] 2 All E.R. 652, DC.

ADFP 201 VOLUME 1 7Q2 a. b. c. is ineligible; is, or is likely to be, biased; or is likely to be thought, on reasonable grounds, to be biased.

141. (3) At any time before an accused person is asked to plead at a trial by a court martial, the accused person may enter an objection to the judge advocate on the ground that the judge advocate a. b. c. is ineligible; is, or is likely to biased; or is likely to be thought, on reasonable grounds, to be biased.

The judge advocate must allow any objection under s.141(2) or (3) when he is satisfied that it has been substantiated by the accused (DFDA s.141(6)). 4. Defence Force Magistrates At any time before an accused person is asked to plead at a . trial before a Defence Force Magistrate the accused person may enter an objection on the ground that the Defence Force magistrate: a. b. is, or is likely to be, biased; or is likely to be thought, on reasonable grounds, to be biased, (DFDA s.141(4)).

The Defence Force magistrate must allow an objection under s.141(4) when he is satisfied that it has been substantiated by the accused. (DFDA s.141(6)). 5. Summary Authorities. A summary authority must duly administer justice according to law 3 without fear or favour affection or ill-will .............. ; accordingly he may not try a charge in relation to which he is biased. At a trial before a summary authority, an accused person may not, however, enter an objection to the authority on the ground that the authority is biased or is likely to be biased or is 4 likely to be thought, on reasonable grounds to be biased. Nevertheless, an allegaltion of bias in respect of a summary conviction may be made at the prost trial, review by petition, stage. It is therefore imperative that summary authorities conduct themselves in such a way as to avoid giving rise to a perception of bias. Specifically, unless the exigencies of the Service require otherwise, a summary authority that has been involved in the investigation or preferment of a charge against an accused should not hear or deal with the charge against the accused. 6. In respect of summary trials, the mere fact that the Service tribunal is the members Commanding Officer (CO) is not, by itself, enough to establish bias or a likelihood of bias on the part of the CO. As stated in ss 141(4A) and (4B): 141 (4A) regarded: a. b. For the purposes of this section, a summary authority is not to be

as biased; or as likely to be biased;

in relation to the trial of an accused person merely because the summary authority is the commanding officer of the accused person.

Rule 22 of the DFD Rules. DFDA s.141(4): Note that nothing in this sub-section is to be taken, by implication to authorise trial by a summary authority who may be biased.

ADFP 201 VOLUME 1 7Q3 141 (4B) For the purposes of this section, the circumstances that a summary authority is the commanding officer of an accused person is not, without more, a reasonable ground for thinking that, in relation to the trial of the accused person, the summary authority is biased. What Constitutes Bias 7. Bias may be categorised as actual bias, likelihood of bias and imputed bias - ie a likelihood that a person would be thought on reasonable grounds to be biased. 8. Actual Bias. Actual bias arises where a person has a direct interest usually of a pecuniary nature, in the outcome of a trial. In a service context actual bias may also be substantiated where the dislike of an adjudicator for an accused person is notorious or where there is evidence that the adjudicator has pre-judged a particular case. For example a comment by a summary authority that he was going to try that lying crook Able Seaman Jones would constitute actual bias. 9. Likelihood of Bias, Imputed Bias. Examples of situations where there is a likelihood of bias or where a person is likely to be thought, on reasonable grounds, to be biased are set out below. These examples are not intended to be exhaustive as there may be many other circumstances which suggest bias. a. A member of a court martial or a summary authority makes statements or passes comments on a case before it is heard. Such statements or comments may provide reasonable grounds for supposing that the officer is likely to be biased. Before commencement of a trial of a person by court martial on a charge relating to the loss of certain secret documents, the President of the court was briefed on the matter by his superior officers. In the opinion of the Courts Martial Appeal Tribunal this prior briefing raised a likelihood of bias and infringed the principle that justice must not 5 only be done but must be seen to be done. A member of a court martial or a summary authority is likely to be thought to be biased where he is involved in a case before it is tried. Whether or not there are reasonable grounds for this belief will usually depend on the extent of involvement of the officer concerned. Some guidelines in this regard in relation to summary authorities are set out in paragraph 738. The guidelines apply mutatis mutandis to courts martial. At a trial by court martial the judge advocate may ask questions of a witness when, in his opinion, it is necessary to do so or in order to clarify evidence which has been given by the witness. The judge advocate should keep his questions to a minimum so as to avoid the appearance of bias. Similar care should be exercised by a summary 6 authority when he asks questions of witnesses at a summary trial. A member of a court martial or a summary authority should not make known his views about issues of a similar nature to the case under consideration in such a way as to 7 suggest prejudgment. But is not enough to substantiate a claim of bias merely to 8 show that the officer holds strong views on the general subject matter. The fact that an accused person is known by a summary authority to have committed prior offences (including offences tried by the authority) does not, of itself, render the

b.

c.

d.

e.

f.

Re Feiss Appeal [1959] 8 F.L.R. 336 especially p 351, 352. Taylor v National Union of Seaman [1967] 1 All ER 767, Re Lamperd, Courts Martial Appeal Tribunal 1/1981 R v Kent Police Authority, Ex parte Godden [1g71] 2 QB 662. Ex parte Wilder [1902] 66 JP 761, DC.

ADFP 201 VOLUME 1 7Q4 authority biased and there is no requirement for him to disqualify himself from trying a charge against such a person. In order to constitute bias in such a case it would be necessary that the previous offences were of such a nature and gravity as to be likely to affect the impartiality of the summary authority in relation to the charge before him. g. In respect of proceedings before all levels of Service tribunals, care must be taken to avoid giving rise to a perception of bias. In particular, private discussions with the prosecutor, defending officer, witnesses, clerk and the recorder during the course of a hearing or trial (including any adjournments) must be avoided. However, nothing prevents a Service tribunal from receiving independent legal advice, during a hearing or trial. In the case of court martial proceedings, this advice will be provided by the Judge Advocate. Care must also be exercised in pre-hearing and pre-trial discussions to avoid the possibility of an allegation of perceived bias arising. Specifically, discussions of matters related to the charges should be kept to a minimum and should be confined to administrative matters relating to the hearing or trial. The circumstances of the incident or the evidence relating to the charges should not be discussed. However, in respect of trials at the summary level, it is recognised that unit authorities may become aware and have some knowledge of an incident or circumstances giving rise to charges as a result of the performance of their normal unit duties. This in itself will not give rise to a perception of bias. Nevertheless, in such circumstances, summary authorities must carefully consider whether the extent of their prior knowledge could give rise to a perception of bias that justifies the referral of charges to another summary authority.

ADFP 201 VOLUME 1

ANNEX R TO CHAPTER 7

FORM PD 108PRE-SENTENCE REPORT

PD 108 Revised Jul 97

Staff-in-Confidence (After first entry)

Department of Defence

Pre-Sentence Report
If space is insufficient, attach all necessary additional information.
Personal Particulars
Full Name Rank Date of Birth Service Number Mustering, Category or ECN Discharge Date

Member's Income (Spouse includes defacto)

Fortnightly Military Salary (Salary + Service
Allowance + Other Allowances)

$ $

A B

Daily Military Salary (Fineable Daily Rate of Pay ie Military salary less all allowances) Tax $ DFRDB/MSBS $ Rent or Mortgage $ Hire Purchase $ Other Loans $ Food $ Gas or Electricity $ Other $ Total $ Net Fortnightly Income (A-C) Other Income per Fortnight Spouse's Income per Fortnight Total Family Income per Fortnight (D+E+F) Assets Single Separated Savings Under $500 Flat House $500 to $1000 Land Vehicle $1000 to $1500

Fortnightly Expenses (If necessary, attach additional information)

Date of Enlistment or Appointment Seniority in Present Rank

Education and Trade Qualifications

$ $ $ $ $
Furniture Other $1500 and over

C D E F

Marital Status
Divorced Married Defacto

Is your spouse employed?

No

Yes

Dependants
Do you have any dependants? (eg children, parents etc) No Yes Dependent Children (Insert number) At Preschool At School At Tertiary Level Do you have a dependent parent? No Yes Mother Father Employed Unemployed

Defending Officer
Are medical or social worker reports referable to sentencing attached at Annex A? Are reports of superior officer as to behaviour attached at Annex B? Is report on consequential effects of conviction or punishment attached at Annex D? Signature Printed Name Yes Yes No No No No

Go to Member's Income Section

Are character references attached at Annex C? Yes Yes

Date

Accused
I request that the above information be placed before the Service Tribunal in the event of my conviction Signature Date

Are they wholly dependent or partially dependent? Wholly Other Dependants Partially

Summary Authority, Defence Force Magistrate or Clerk of Court

I have received this Pre-Sentence Report Summary Authority Signature Printed Name Defence Force Magistrate Clerk of Court Date

Stock No 7530-66-122-7780

Staff-in-Confidence (After first entry)

ADFP 201 VOLUME 1

ANNEX S TO CHAPTER 7

FORM PD 105SUMMARY PROCEEDINGS REPORT

PD 105 Revised Jun 98

Department of Defence

Summary Proceedings Report

Rights of an Accused Person at Summary Proceedings General
1. An accused person has the following rights where, having been charged with a Service offence, he or she is directed to appear before a summary authority. (The following abbreviations have been used in these notes: 'DFDA' - Defence Force Discipline Act; 'Rule' - Defence Force Discipline Rule; 'DLM' - Defence Force Discipline Law Manual ADFP 201).

Right to be Informed of Charge

2. An accused has a right to be given a copy of the charge preferred against him or her at the time he or she is charged (DFDA s87(1)(a); DFDA s95(3); DLM para 408).

Right to be Represented
3. An accused person may defend him or her self or may be defended by any member of the Defence Force if that person is reasonably available; otherwise another member may be appointed to represent him or her (Rule 24; DLM para 740).

Rights with Regard to Pleading

4. Applications. An accused person has a right to make any application in connection with a trial, including any of the following matters, before being asked to plead (DFDA s141): a. Adjournment. An accused may apply for an adjournment on the grounds that he or she has not had an adequate opportunity to prepare his or her defence or to choose a person to represent or advise him or her. b. Securing Witnesses. An accused may apply to secure the attendance of witnesses or additional witnesses on his or her behalf. c. Separate Trials. (1) If an accused is charged with more than one Service offence, he or she may apply for each charge to be heard separately if he or she considers that the evidence in some of the charges would unfairly prejudice him or her in defence of other charges. This only applies where the charges are of a different nature or are separated in time by a considerable period. (2) If an accused is charged with one or more other persons, he or she may apply to be dealt with separately on the grounds that he or she would otherwise be prejudiced in his or her defence. 5. Objections. An accused person has a right to enter an objection to a charge on any ground, including any of the following, before being asked to plead at a summary trial (DFDA s141): a. that he or she is not liable to be tried for an offence with which he or she has been charged, by virtue of previous acquittal or conviction; b. that the charge was made outside the required time limit; c. that the offence with which he or she has been charged has already been taken into consideration by a Court Martial or Defence Force Magistrate; d. that the charge does not disclose a Service offence or is otherwise wrong in law; or e. that the summary authority does not have jurisdiction or is otherwise ineligible to try the charge (See DLM, Chapter 7).

Rights Before Accused is Asked to Plead at a Trial

6. An accused person is presumed to be innocent of any offence until proved guilty. Before a summary authority can convict an accused, the prosecution must prove his or her guilt 'beyond reasonable doubt' (DFDA s12). An accused person who pleads 'not guilty' is not necessarily stating that he or she did not commit the alleged offence. The effect of this plea is to require the prosecution to prove the charge against him or her. An accused has the right to plead 'not guilty' or to remain silent. If he or she chooses to remain silent the proceedings will proceed as though he or she had pleaded 'not guilty' (DFDA s130). An accused person who pleads 'guilty' admits the offence with which he or she is charged but does not admit that every allegation made against him or her in connection with the offence is true.
PD 105 - Page 1 of 4

7.

8.

ADFP 201 VOLUME 1

7S2

Rights in Connection with Conduct of Summary Hearings

9. Right to Request an Adjournment. An accused may, at any time, apply to a summary authority, on any reasonable grounds, for an adjournment of proceedings (Rule 39).

10. Right to Cross-Examine. An accused person (or defending officer) has the right to cross-examine witnesses for the prosecution (Rule 18). 11. Right to Give Evidence. An accused person may give evidence on oath or affirmation, make an unsworn statement, or remain silent. Where he or she gives evidence on oath or affirmation, an accused may be cross-examined by the prosecution. Where he or she makes an unsworn statement, an accused may not be cross-examined. An unsworn statement may not carry as much weight as evidence on oath or affirmation (Rule 46). 12. Right to Call Witnesses to Fact. An accused person has a right to call witnesses to give evidence on his or her behalf on the facts in issue (Rule 14). 13. Right to Address the Summary Authority at a Trial. An accused person may address a summary authority: a. before presenting evidence (usually only necessary in a complicated case) (Rule 45); b. at the end of the prosecution case - he or she may submit that there is no case to answer (Rule 44); c. at the end of all evidence in the case - on the question of guilt (Rule 47); and d. after the summary authority has convicted him or her - in mitigation of sentence (Rule 50). 14. Right to Call Witnesses to Character. A convicted person has a right to call witnesses to give evidence as to his or her good character. Where a witness is not reasonably available to give evidence as to good character a summary authority may accept evidence in documentary form (Rule 50).

Rights in Relation to Punishment

15. Authorised Punishments. Where a person is convicted by a summary authority, the authority may not impose a punishment or take other action other than as authorised by Part IV of the DFDA. (See DLM, Chapter 11.) 16. Elective Punishments. An 'elective punishment' (see DLM, Chapter 11) may not be imposed by a commanding officer or Superior Summary Authority unless the convicted person has been offered the right to elect trial by Court Martial or Defence Force Magistrate and he or she has chosen to be tried by a CO or Superior Summary Authority (as the case may be). Similarly, a CO or Superior Summary Authority may not impose an elective punishment on a person who has breached an undertaking to be of good behaviour for 12 months - unless the authority has offered the person the right to elect punishment by a Court Martial or Defence Force Magistrate and the person has chosen to be punished by the CO or Superior Summary Authority (as the case may be) (DFDA s131). 17. Where an accused is offered the right to elect trial by Court Martial or Defence Force Magistrate he or she has a right to be given a reasonable time in which to consider his or her decision.

Right to Review of Proceedings

18. Where any person is convicted by a summary authority the proceedings are automatically reviewed by a reviewing authority. In addition to automatic review, a convicted person is entitled to seek review by petition to a reviewing authority and then to a service chief (DFDA Part IX).

PD 105 - Page 2 of 4

ADFP 201 VOLUME 1

7S3

PD 105 Revised Jun 98

Department of Defence

Ship or Unit

Summary Proceedings Report

This form is to be completed in accordance with the instructions contained in DLM Chapter 7. Before a Hearing or Trial is held, the third copy of this form showing the charge(s) preferred, is to be given to the Accused. The attention of the Accused is to be drawn to the notes on pages one and two of this form. If acquitted of all charges, all copies of the Summary Proceedings Report must be destroyed.
Distribution Original - 1. Summary Authority 2. CO (if convicted by a SUBSA) or Legal Officer (if convicted by a CO or SUPSA) 3. Legal Officer (if convicted by a SUBSA) or Reviewing Officer (if convicted by a CO or SUPSA) 4. Unit Admin 5. Conduct Record

Serial Number

Copy 2 - 1. Summary Authority 2. CO (if convicted by a SUBSA) or Legal Officer (if convicted by a CO or SUPSA) 3. Legal Officer (if convicted by a SUBSA) or Reviewing Officer (if convicted by a CO or SUPSA) 4. Unit Admin 5. Personnel Office Navy - Naval Police Central Records Army - DGCM-A (for Officers) SCMA (for all other ranks) Air Force - DGCM-AF

Copy 3 - Accused Copy 4 - Police Records Office Navy - Naval Police Central Records Army - Military Police Central Records Air Force - Directorate of Security and Policing

Part 1 - Charge Sheet

Particulars of Accused
Family Name (In block letters) Given Name(s) Rank Number

Date of Offence

DFDA Section

Statement of Offence and Charges

Plea Finding

Convict or Dismiss*

*It is a requirement under the DFDA to formally convict or dismiss in respect of each charge.
Charges Preferred by Prosecutor Defending Officer

Witnesses (Whether or not they are called to give evidence they must be listed)

Documentary Evidence

Particulars of Arrest
Date of Arrest Time of Arrest Authorised by Date of Release Time of Release Authorised by

Conditions of Release (If any) (DFDA s97)

Stock No 7530-66-122-4996

PD 105 - Page 3 of 4

ADFP 201 VOLUME 1

7S4

Part 2 - Hearing or Trial

Summary Authority
Printed Name Rank Appointment Date(s) of Hearing Date(s) of Trial

Charge(s) referred to other Summary Authority (Specify below)

Printed Name Rank Appointment

Date

Date(s) of Hearing

Date(s) of Trial

1. Date directed that the charges should not proceed 3. Date Hearing recommenced 5. Date Accused did or did not elect trial or punishment by Court Martial or Defence Force Management

Date

2. Date Examining Officer appointed 4. Date Accused advised of right to elect trial or punishment by Court Martial or Defence Force Magistrate 6. Date Charge(s) referred to Convening Authority for trial by Court Martial or Defence Force Magistrate

Date

Date

Date

Date

Date

Punishment(s) Awarded or Orders Imposed (A separate punishment must be awarded for each conviction)
Charge 1 Charge 2 Charge 3

Charge 4

Charge 5

Charge 6

Automatic Forfeiture of Pay

Signature

Printed Name

Rank

Appointment

Date

Part 3 - Post Trial

Review by Commanding Officer of Subordinate Summary Authority Trial (*Attach reasons) Report of Appointed Legal Officer Conviction Punishment or Orders
Signature Upheld Yes Quashed * Substituted as follows * Upheld Quashed * Printed Name Revoked * Rank Appointment Date No Substituted as follows *

Report by Legal Officer (*Attach reasons) Correct in law in accordance with Part IX.DFDA
Signature Printed Name

Incorrect in law * in accordance with Part IX.DFDA

Rank Appointment Date

Review or Approval by Reviewing Officer (*Attach reasons) Report of Appointed Legal Officer obtained on Conviction Conditional Punishments, Reparation or Restitution Orders Punishments
Signature Upheld Date

Quashed *

Substituted as follows *

Substituted as follows * Approved Upheld Revoked * Quashed * Substituted as follows *

Printed Name

Rank

Appointment

Date

Administrative Action Personnel Office or Orderly Room Conduct record noted

Yes Signature Date Signature Date Signature Date

EDP Report
Form PD M/N

Pay Office
Form Number

PD 105 - Page 4 of 4

ADFP 201 VOLUME 1

ANNEX T TO CHAPTER 7

FORM PD 104RECORD OF EVIDENCE

PD 104 Revised Jul 96

Department of Defence

Distribution
To accompany copies 1, 2 & 4 of the PD 105 - Summary Proceedings Report

Record of Evidence
This form is to be completed in accordance with DLM and is to contain the substance of the evidence of the witness in sufficient detail to enable the merits of the case to be judged.

Particulars
Family Name Initials Number Rank Ship or Unit

Date Court Assembled

Time

Applications or Objections No Yes

If 'Yes', state below

Applications or Objections (State briefly the Applications or Objections and Action Taken)

Summary of Evidence

Certification
I hereby certify that this record of evidence is true and correct. Recorded or Transcribed by
Signature Printed Name Date

Summary Authority
Signature Printed Name Date

Stock No 7530-66-122-4995

ADFP 201 VOLUME 1

7T2

Family Name

Initials

Number

Rank

Ship or Unit

Applications or Objections (Continued from page 1)

Summary of Evidence

ADFP 201 VOLUME 1 ANNEX U TO CHAPTER 7

NOTIFICATION AND ELECTION

RIGHT TO ELECT TO BE TRIED BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE Summary trial of charges against . 2 3 by .. a Commanding Officer/ Superior Summary Authority 4 commencing on .
Having heard the prosecution evidence in respect of the charges against you, I consider that, if I continue with the trial and convict you of some or all of the offences that you are charged with, I may decide to award an elective punishment. I may only award an elective punishment if I have previously offered you the right or option of electing trial by court martial or Defence Force Magistrate and you consent to be tried by me. The elective punishments that I would be at liberty to award should you elect to continue with the trial before me and be convicted are as follows:5 The following additional information should be noted when exercising your election: You should discuss the exercise of your election with your Defending Officer (or an independent member of the ADF if you are not represented). You may also discuss the exercise of your election with an ADF legal officer if one is reasonably available. giving an election does not mean that an elective punishment will be imposed should I convict you of an offence; it merely provides me with the option of awarding such a punishment upon conviction. If you elect to be tried by court martial or Defence Force Magistrate, the summary trial before me will be concluded and the charges will be referred to a Convening Authority. The Convening Authority may arrange for the appointment of a Defence Force Magistrate or the convening of a court martial to further try the charges. If you express a preference that a Defence Force Magistrate try your charges, the Convening Authority may decide that the charges should be tried by court martial. Should you elect trial by court martial or Defence Force Magistrate and subsequently be convicted, the court martial or Defence Force Magistrate will be at liberty to award punishment (or punishments) in accordance with Schedule 2 of the Defence Force Discipline Act. These represent considerably greater powers of punishment than are available to me should the matter proceed before me. You should discuss this matter with your Defending Officer (or other adviser as detailed above).
1

. Date
(Commanding Officer/Superior Summary Authority)

Insert rank, name, Service number and unit of accused Insert name and position of summary authority Delete non-applicable one Insert commencement date of trial Insert elective punishments that are applicable to the accused. (see schedule 3 to the DFDA).

ADFP 201 VOLUME 1 7U2

ELECTION BY MEMBER
I ..6, acknowledge as follows: I have read and understand the information contained in this notice of election I am aware that I am entitled to discuss my election with my Defending Officer (or an independent member of the ADF if I am not represented) or an ADF legal officer if one is reasonable available and that I may apply for such adjournment of the summary proceedings that is necessary for me to obtain that advice. I understand that by electing trial by Commanding Officer/ Superior Summary Authority the summary authority will have the option of awarding an elective punishment if I am convicted of an offence. Alternatively, I understand that if I elect to be tried by court martial or Defence Force Magistrate the charges against me will be referred to a Convening Authority who may appoint a Defence Force Magistrate or convene a court martial to try the matter.

I ELECT to continue to be tried summarily by you 7 OR I elect to be tried by Court Martial or Defence Force Magistrate and express a desire to be tried by a ...8 (insert above either Court Martial or Defence Force Magistrate)

. .. Accused Witness (Defending Officer/ or other independent member) Date Date

Name, number and unit of member being tried One of the trial options to be selected by striking out the non-applicable one One of the trial options to be selected by striking out the non-applicable one

ADFP 201 VOLUME 1 ANNEX V TO CHAPTER 7

NOTIFICATION AND ELECTION

RIGHT TO ELECT TO BE PUNISHED BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE
Summary trial of charges against .1 by ..2 a Commanding Officer/ Superior Summary Authority 3 commencing on .4
In light of your guilty plea to the charge (or charges), I have considered the powers of punishments that are available to me. Specifically, after considering the submission of the prosecutor in respect of the material facts, which show the nature, and gravity of the offence(s), I am of the opinion that the award of an elective punishment may be appropriate. However, I may only award an elective punishment if I have previously offered you the right or option of electing to be punished by court martial or Defence Force Magistrate and you consent to be punished by me. The elective punishments that I would be entitled to award should you elect to be punished by me are as follows:5

The following additional information should be noted when exercising your election: You should discuss the exercise of your election with your Defending Officer (or an independent member of the ADF if you are not represented). You may also discuss the exercise of your election with an ADF legal officer if one is reasonably available. Giving an election does not mean that an elective punishment will be imposed; it merely provides me with the option of awarding such a punishment. If you elect to be punished by court martial or Defence Force Magistrate, the summary proceedings before me will be concluded and the issue of punishment will be referred to a Convening Authority. The Convening Authority may arrange for the appointment of a Defence Force Magistrate or the convening of a court martial to determine the issue of punishment If you express a preference to be punished by a Defence Force Magistrate, the Convening Authority may nevertheless direct that your punishment be decided by a court martial. Should you elect trial by court martial or Defence Force Magistrate and subsequently be convicted, the court martial or Defence Force Magistrate will be at liberty to award punishment (or punishments) in accordance with Schedule 2 of the Defence Force Discipline Act. These represent considerably greater powers of punishment than are available to me should the matter proceed before me. You should discuss this matter with your Defending Officer (or other adviser as detailed above). . Date

(Commanding Officer/Superior Summary Authority)

Insert rank, name, Service number and unit of accused Insert name and position of summary authority Delete non-applicable one Insert commencement date of trial

ADFP 201 VOLUME 1 7V2

ELECTION BY MEMBER
I.6, acknowledge as follows: I have read and understand the information contained in this notice of election I am aware that I am entitled to discuss my election with my Defending Officer (or an independent member of the ADF if I am not represented) or an ADF legal officer if one is reasonable available and that I may apply for such adjournment of the summary proceedings that is necessary for me to obtain that advice. I understand that by electing punishment by Commanding Officer/ Superior Summary Authority the summary authority will have the option of awarding an elective punishment. Alternatively, I understand that if I elect to be punished by court martial or Defence Force Magistrate the issue of my punishment will be referred to a Convening Authority who may appoint a Defence Force Magistrate or convene a court martial to punish me.

I ELECT to punished by you7 OR I elect to be punished by Court Martial or Defence Force Magistrate and express a desire to be punished by a ...8 (insert either Court Martial or Defence Force Magistrate)

. Accused Date ..

.. Witness (Defending Officer/ or other independent member) Date ..

Insert elective punishments that are applicable to the accused. These are detailed in the Schedule 3 DFDA

Name, number and unit of member being tried One of the trial options to be selected by striking out the non-applicable one One of the trial options to be selected by striking out the non-applicable one

ADFP 201 VOLUME 1 ANNEX W TO CHAPTER 7

INSTRUCTIONS ON THE COMPLETION OF PUNISHMENT STATISTICS SPREADSHEETS

Sheets 1-3 1. It is vitally important that the statistics on Sheets 1-3 only reflect members of one Service. For the majority of legal offices this will be simple, however, where a summary authority of one particular service (eg Army) tries a member of a different service (eg Navy), this must not be included in with the usual return, which must show only Army members tried. In these circumstances, separate Sheets 1-3 must be sent indicating that the Army tried a member of the Navy. These figures will then be included in the Navy statistics. This is essential so that the three individual Service versions of Sheets 1-3 only reflect statistics of members of that particular Service. For tri-Service units/ establishments, this may require three versions of Sheets 1-3. 2. There are two reasons for taking this strict approach. Firstly, the statistics required to be collected on Sheets 1-3 are related to the Service of the offender, not the Service of the summary authority and secondly, it will indicate to the three Service chiefs the number of their respective personnel being tried by other Services.

ADFP 201 VOLUME 1

Sheet 1 Period of Report:

Command/Legal Office:

PUNISHMENT STATISTICS SPREADSHEETS

STATISTICS OF TRIALS AND OUTCOMES BEFORE SUMMARY AUTHORITIES FOR MEMBERS OF THE - NAVY ARMY AIR FORCE

Circle one service

SUPERIOR SUMMARY AUTHORITY (2) NUMBER CHARGES TRIED OF TRIALS QUASHED GUILTY N.G. (1) (3) HELD January February March April May June July August September October November December TOTAL

NUMBER OF TRIALS HELD (1)

COMMANDING OFFICER CHARGES TRIED (2) GUILTY N.G. QUASHED

(3)

SUBORDINATE SUMMARY AUTHORITY CHARGES TRIED (2) NUMBER OF TRIALS QUASHED GUILTY N.G. (1) (3) HELD

1. A trial is defined as each single occurrence of an accused person appearing before a summary authority, regardless of the number of offences heard. 2. Alternate charges not proceeded with are not recorded.

ANNEX X TO CHAPTER 7

3. Shows convictions quashed in the month that the conviction was originally recorded. (If a conviction is quashed after the quarterly report has been forwarded, include separate advice with the next quarterly report. SO2 JAG will adjust the previous report accordingly).

ADFP 201 VOLUME 1

7X2

Sheet 2

CONVICTIONS FOR OFFENCES COMMITTED BY RANK FOR MEMBERS OF THE - NAVY ARMY Circle one service AIR FORCE
Note: Only the most frequently used sections of the DFDA have been included. Add a new row where necessary.

Officer Officer WO1 WO2 SSGT Cadet WO CPO WOFF FSGT Sect 23 24 25 26 27 29 32 33(a) 33(b) 33(C) 33(d) 34 35 36A 37 38 40 43 44 45 46 47 49 55 56 59(4) 59(5) 60 TOTAL

SGT PO

CPL LS

LCPL

AB LAC

PTE SMN AC

Note: Where a conviction has been quashed and shown as such on sheet 1, the relevant offence must be deleted from the statistics on this sheet and details of the conviction quashed must be provided in the box below. Details of Quashed Convictions
DFDA Sect. Rank Short summary of Offence Reason for quashing

ADFP 201 VOLUME 1

Sheet 3

PUNISHMENTS IMPOSED BY RANK ON MEMBERS OF THE- NAVY ARMY AIR FORCE

Circle one service

Officer Officer WO1 WO2 SSGT Cadet WO CPO WOFF FSGT Reprimand Conditional conviction without punishment Unconditional conviction without punishment Severe reprimand Extra duties Stoppage of leave Restriction of privileges Suspended fine Fine <= 14 days Fine > 14 days Forfeiture of service for purposes of promotion Forfeiture of seniority Reduction in rank Suspended detention Committed detention TOTAL

SGT PO

CPL LS

LCPL

AB LAC

PTE SMN AC
7X3

Note: Where a conviction has been quashed and shown as such on sheet 1, the relevant punishment must be deleted from the statistics on this sheet.

ADFP 201 VOLUME 1 CHAPTER 8

COURTS MARTIALBEFORE THE TRIAL

SECTION 1 - GENERAL Introduction 8.1 A court martial is a Service tribunal which is created for the purpose of trying a defence member or a defence civilian on a specific charge, usually of a serious nature. In certain circumstances a court martial may also be convened solely for the purpose of determining punishment 1 (or other action) in respect of a person who has been convicted by another Service tribunal. A court martial is created by means of a convening order which is made by a person who has been appointed as a convening authority by a chief of staff. A convening order appoints the members of the court and the judge advocate and fixes, or provides for the fixing of, the time and place for assembly of the court. Types of Court Martial 8.2 A court martial may be either a general court martial or a restricted court martial. A general court martial comprises a President, who is not below the rank of colonel or equivalent, and not less than four other members. A restricted court martial comprises a President, who is not below the rank of lieutenant colonel or equivalent, and not less than two other members. A judge advocate is appointed to both types of court martial. A general court martial has wider powers of punishment than 2 a restricted court martial. Jurisdiction of Court Martial 8.3 Both types of courts martial have jurisdiction to try any charge of a Service offence, other 3 than a charge of a custodial offence, against any defence member or defence civilian. Where the offence to which the charge relates is a section 63 offence, it may not be tried by a court martial except with the consent of the Attorney-General. A section 63 offence is any of the following offences: a. b. treason, murder, manslaughter, rape or bigamy; offence in respect of which proceedings could not be brought in the Australian Capital Territory without the consent of a Minister; an offence which has been prescribed in the Defence Force Discipline Regulations 4 (DFD Regs) for the purpose of this section; or an ancillary offence in relation to any of the offences referred to above.
5

c.

d.

eg where a person who is in breach of an undertaking to be of good behaviour elects to be punished by court martial (DFDA s.103(6), (7)) or where a previous court is dissolved or discontinued after it has convicted a person but before it has imposed a punishment (DFDA s.125(6), s.129A(4)). See chapter 11, especially para. 11.14. ie an offence committed by a person whilst undergoing punishment of detention; see para. 11.54 et seq. No offences have been prescribed in the Regulations. eg being an accessory, inciting, conspiracy, etc; see section 4 of Chapter 5.

ADFP 201 VOLUME 1 82 Power of Punishment Held by Courts Martial 8.4 The punishments which may be imposed by a court martial are set out in Schedule 2 of the 6 Defence Force Discipline Act (DFDA) and, for convenience, are also reproduced at Table 1.

Convicted Person Officer

Punishment Imprisonment Dismissal from the Defence Force Reduction in rank Forfeiture of service for the purposes of promotion Forfeiture of seniority Fine of an amount not exceeding the amount of the convicted person's pay for 28 days Severe reprimand Reprimand Imprisonment Dismissal from the Defence Force Detention for a period not exceeding two years Reduction in rank Forfeiture of seniority Fine not exceeding the amount of the convicted person's pay for 28 days Severe reprimand Reprimand Imprisonment Fine of an amount not exceeding $500

Member of the Defence Force who is not an officer

Person who is not a member of the Defence Force

8.5 The punishments that may be imposed by a restricted court martial are the same as those that may be imposed by a general court martial except that a restricted court martial may not impose imprisonment for life, imprisonment for a period exceeding 6 months or detention for a period exceeding 6 months. The scale of punishments available to a restricted court martial is the same as that for a Defence Force magistrate. Conduct of Courts Martial 8.6 The procedure to be followed at a court martial must conform with the provisions of s.132 of the DFDA; the detailed procedure based on s.132 is set out in Annex B of Chapter 9. With some modifications, the procedure at a trial by court martial is the same as that at a trial by jury in the Australian Capital Territory. Some of the unique features of trial by court martial are that the President and members determine, by majority vote, the guilt or innocence of an accused person, and, where the finding of guilty is made, the President and members determine punishment. The judge advocate takes no part in the deliberations of the court on the verdict or punishment but has a duty to advise the court on all questions of law arising in the course of the trial. The functions and duties of the President and members of the court and the judge advocate are discussed in more detail in Chapter 9.

Also see Chapter 12.

ADFP 201 VOLUME 1 83 SECTION 2 - CONVENING A COURT MARTIAL CONVENING AUTHORITIES Appointment of Convening Authorities 8.7 The power to convene courts martial is vested in convening authorities, who are senior 7 officers specially appointed for the purpose by a Service chief. Where a person has been appointed as a convening authority he may, in addition to convening courts martial, exercise such powers and functions as are conferred on convening authorities under the DFDA or the DFD Regs. In general these powers and functions are incidental to the convening of courts martial or to the trial or punishment of a Service offence by another Service tribunal. Power of a Convening Authority to Convene a Court Martial 8.8 A convening authority has power to convene a court martial only where a charge has been referred to him by another authority. The majority of charges that are referred to a convening authority are those relating to serious offences that have been dealt with at first instance by a commanding officer or a superior summary authority. Such charges may be referred to a convening authority because the summary authority has no jurisdiction to try them or because the summary authority is not empowered to impose an appropriate punishment, in the event that the accused is convicted, or 8 because the accused person elects to be tried by court martial. 8.9 A charge may also be referred to a convening authority by another authority in the following circumstances: a. by a Defence Force magistrate or judge advocate after granting an application or 9 allowing an objection by an accused person before he has pleaded to a charge; by a summary authority, where the soundness of mind of the accused at the time of 10 the offence or the trial may be in issue; by the Governor-General where the accused, having been previously mentally unfit to 11 stand trial, is now considered to be fit for trial; by a reviewing authority who has ordered a new trial;
12

b.

c.

d. e.

or

by a summary authority where an accused has elected to be punished by a Defence 13 Force magistrate or by a court martial.

DFDA s.102; GOCs, AOCs and Flag Officers Commanding generally hold appointments as convening authorities. See Chapter 7, especially paras. 7.20 and 7.29. DFDA s.141 (8) DFDA s.145 (1), (3). DFDA s.194 (7). DFDA ss.160, 166; also see para. 12.11. DFDA s.131. The right to elect punishment by Defence Force magistrate or by court martial also arises where a person is in breach of an undertaking to be of good behaviour; see paragraph 11.59.

10

11

12

13

ADFP 201 VOLUME 1 84 COURSES OPEN TO A CONVENING AUTHORITY General 8.10 Several possible courses of action are open to a convening authority in respect of a charge which has been referred to him by another authority. Except in a case where a reviewing authority or 14 appellate tribunal has ordered a new trial, or where an accused person has elected to be tried or 15 punished by court martial or Defence Force magistrate, where a charge is referred to a convening authority the convening authority may: a. b. direct that the charge be not proceeded with;
16

if the charge is within the jurisdiction of a superior summary authority or a commanding officer to tryrefer the charge to a superior summary authority or 17 commanding officer for trial; refer the charge to a Defence Force magistrate for trial;
18

c. d.

or

convene a general court martial or restricted court martial to try the charge.

Where a New Trial has been Ordered 8.11 Where a new trial has been ordered by a reviewing authority, the Defence Force Discipline 20 21 Appeal Tribunal or the Federal Court of Australia, a convening authority may refer the charge to a superior summary authority, commanding officer or Defence Force magistrate for trial or may convene 22 a court martial to try the charge. A convening authority may not direct that a charge be not proceeded with when a new trial has been ordered. On the other hand, a convening authority is not obliged to proceed with a new trial unless he is satisfied that there is sufficient cogent evidence to 23 justify it . Where Accused has Elected to be Tried by Court Martial or Defence Force Magistrate 8.12 In trials before a superior summary authority or a commanding officer, an accused person may be offered the right to elect trial by court martial or Defence Force magistrate. An accused must be offered the right to elect where the summary authority considers that the charge if proved would 24 warrant the imposition of an elective punishment. Where the accused elects to be tried by court
19

14

See para. 8.11. See para. 7.20. DFDAs s.103(1)(a) and para. 8.15. DFDA s.103(1)(b); see para. 8.17. DFDA s.103(1)(c); see para. 8.18. Under DFDA s.160 or s.166; see Chapter 12, para. 12.11. See para. 12.80. See para. 12.94. DFDA s.103(2). Where the soundness of mind of an accused is in issue the charge may not be referred to a summary authority for trial. DFDA s. 103(1), (2), (3). For an explanation of elective punishments see paras. 7.20 7.25.

15

16

17

18

19

20

21

22

23

24

ADFP 201 VOLUME 1 85 martial and the charge is referred to a convening authority, the convening authority may direct that the 25 26 charge be not proceeded with or may convene a court martial to try the charge. 8.13 Where the accused elects to be tried by a Defence Force Magistrate, and the charge is referred to a convening authority, the convening authority may direct that the charge be not proceeded with, refer the charge to a Defence Force magistrate for trial or convene a court martial to try the charge. A convening authority may convene a court martial in these circumstances only if no Defence Force magistrate is available or if the authority considers that it would be more appropriate for the 27 charge to be dealt with by a court martial. Where an Accused has Elected to be Punished by a Court Martial or Defence Force Magistrate 8.14 In one circumstance only, a convicted person may elect to be punished by a court martial or Defence Force magistrate. That circumstance arises where the person is convicted by a superior summary authority or commanding officer on a charge which constitutes a breach of an undertaking to 28 be of good behaviour for a period of 12 months and where the summary authority proposes to impose an elective punishment for the Service offence in relation to which the undertaking was given. Where the convicted person elects to be punished by a court martial, and the summary authority refers the conviction to a convening authority, the convening authority may convene a court martial to 29 determine punishment. Alternatively, where the convicted person elects to be punished by a Defence Force magistrate and the conviction is referred to a convening authority, the convening authority may 30 refer the case to a Defence Force magistrate or convene a court martial to determine punishment. A court martial should not be convened contrary to the election of the accused unless a Defence Force magistrate is not available or unless the authority considers that it would be more appropriate for the matter to be dealt with by a court martial. Directing that a Charge be not Proceeded With 8.15 Where a convening authority is of the opinion that there is insufficient evidence to support a charge which has been referred to him, he should direct that the charge be not proceeded with. The effect of this direction is that proceedings against the accused person are stayed although the 31 accused is not deemed to have been acquitted of the offence charged. A direction that the charge be 32 not proceeded with may also be made where it is otherwise in the interests of justice to do so. For example, the direction may be given in a case where several persons are charged with the same offence and it is desirable for one co-accused to give evidence for the prosecution against another coaccused. It may also be in the interests of justice to direct that a charge be not proceeded with where 33 there has already been a summary trial on the same events.

25

See para. 8.15. DFDA s.103(5). DFDA s.103(4). See para. 11.64 et seq. Or take the other appropriate action under Part IV of the DFDA. Or take the other appropriate action under Part IV of the DFDA. DFDA s.144(4)(c) See Halsbury's Laws of England 4th Ed Vol 11 at para. 222. See Re Beresford (1952) 46 Cr. App. Rep. 1 (death caused by motor accident; summary trial for dangerous driving, subsequent charge of manslaughter pursuant to coroner's inquest).

26

27

28

29

30

31

32

33

ADFP 201 VOLUME 1 86 Referring a Charge to a Summary Authority 8.16 On occasions, charges will be referred to a convening authority which lie within the jurisdiction of a summary authority to try. In most cases the decision not to try a particular charge is made by a summary authority because he is of the opinion that the charge, if proved, would warrant a more severe punishment than he is empowered to impose. 8.17 On examination of a charge and the evidence in support of the charge, a convening authority may decide that a court martial is not appropriate; he may then refer the charge to a superior summary authority or a commanding officer for trial. Where he decides to take this course of action, a convening authority should usually refer the charge to a summary authority other than the authority who dealt with the charge in the first instance. Referring a Charge to a Defence Force Magistrate 8.18 A convening authority may, of his own motion or in response to an election by an accused, refer a charge to a Defence Force magistrate for trial. In either case, a convening authority must consider before referring the charge in this way whether it would be more appropriate for the matter to be dealt with by court martial. In making his decision, a convening authority should have regard to the following factors: a. whether the punishment which may be imposed by a Defence Force magistrate is likely to be sufficient, the nature of the charge, and administrative convenience.

b. c.

Each of these matters is discussed briefly below. 8.19 In relation to punishment, a Defence Force magistrate is empowered to impose the same punishments upon a convicted person as may be imposed by a restricted court martial; see paragraph 8.4. 8.20 As a general rule, a Defence Force magistrate should not try a charge in which Service customs, practices or procedures are a material element or a charge of an offence which is manifestly injurious to Service discipline. Application of this general rule may be difficult in some instances because of the particular circumstances in which certain alleged offences have occurred, which may lead to differing views on the service or disciplinary element involved. In order to resolve this difficulty, it is suggested that a Defence Force magistrate should not, ordinarily, try a charge which is brought under any of sections 15 to 60 of the DFDA other than the following: use of vehicles (s.40); unlawful possession of property (ss.45, 46); stealing and receiving (s.47); resisting arrest (s.49); escape from custody (s.51); false evidence (s.52); contempt etc. (s.53); unlawful release of person in custody (s.54); falsification of Service documents (s.55); false statement in relation to application for benefit (s.56); false statement in relation to enlistment (s.57); certain drug offences (s.59). In addition to these offences, it may be appropriate for a Defence Force magistrate to try certain Territory offences, ie 34 offences against the ordinary law. 8.21 In any case, operational or administrative convenience may be an important factor in determining whether a charge should be tried by a Defence Force magistrate or by court martial. Clearly a trial by Defence Force magistrate is often more easily organised and less disruptive to the normal activities of members of the Defence Force than is a trial by court martial. Additionally, where a case involves consideration of complex issues of fact or law and is likely to take some time to complete, it may be more appropriate for it to be tried by a Defence Force magistrate. However, where a Defence Force magistrate is not readily available, or for other reasons, trial by court martial may be more appropriate.

34

See Chapter 4 para 4.82.

ADFP 201 VOLUME 1 87 Deciding Whether to Convene a Restricted or General Court Martial 8.22 Where a convening authority is of the opinion that it is necessary to convene a court martial, he must also decide whether it should be a general or restricted court martial. In making this decision, a convening authority should have regard, principally, to the gravity of the alleged offence. 8.23 Where the offence is so serious that if proved it would warrant punishment by imprisonment, it would generally be appropriate for the accused to be tried by general court martialnotwithstanding that a restricted court martial may impose the punishment of imprisonment or detention for a period not exceeding 6 months. Additionally, where the person is a senior non-commissioned officer, warrant officer or officer, or where the trial is likely to attract media interest, it will usually be more appropriate to convene a general court martial. CONVENING A COURT MARTIAL Eligibility to be a Member of a Court Martial 8.24 A person is eligible to be a member of a court martial only if he is an officer who has held an appointment as an officer for a continuous or aggregate period of not less than three years and is 36 not lower in rank than the accused. In order to be appointed as President of a court martial, an 37 officer must hold a rank not lower than the rank of colonel or equivalent, in the case of a general court 38 39 martial, or lieutenant-colonel or equivalent in the case of a restricted court martial. Eligibility to be a Judge Advocate 8.25 A person is eligible to be the judge advocate of a court martial if he is a member of the judge 40 advocate's panel. In order to be appointed to the judge advocate's panel a person must be an officer 41 who has been enrolled as a legal practitioner for not less than five years. Convening Order 8.26 Having decided to convene a court martial, a convening authority must make a convening order appointing the President and other members, an adequate number of Service members and the 42 judge advocate. The convening order may fix or provide for the fixing of the time and place for the 43 assembling of the court martial. A pro forma convening order is shown at Form 33.
35

35

In relation to the Navy an officer is a person who is appointed or in pay of the Australian Navy including a person who holds the rank of midshipman or acting sub-lieutenant. In relation to the Army and the Air Force an officer is a person who is appointed or in pay as an officer of the Australian Army or the RAAF. DFDA s.116(2). ie captain in the Navy; group captain in the Air Force. ie commander in the Navy; wing commander in the Air Force. DFDA s.116(2). DFDA s.117. DFDA s.196. DFDA s.119(a). DFDA s.119(b).

36

37

38

39

40

41

42

43

ADFP 201 VOLUME 1 88 8.27 As soon as practicable after he makes an order convening a court martial, a convening 44 authority must cause a copy of the order to be given to the accused person. If an order convening a 45 court martial is subsequently varied, the convening authority must inform the accused accordingly. A copy of the convening order should also be sent to all members (including reserve members) of the 46 court martial and the original is to be sent to the judge advocate. 8.28 The convening order should be made a reasonable time before the date fixed for the court martial in order to afford the accused time to prepare a defence or to lodge an objection on the ground 47 of ineligibility or bias of the judge advocate or any member of the court. On receipt of a convening order, a member or reserve member or the judge advocate of a court martial who believes that he may be biased or is likely to be thought to be biased is required to give notification of this belief to the 48 convening authority. A convening authority may revoke the appointment of any member of a court martial or the judge advocate as the case may be, at any time before a court martial is sworn or 49 affirmed and may then appoint another to fill any vacancy thus created. Other Documentation to be Provided by a Convening Authority 8.29 In addition to the convening order, certain other documents are required to be provided to the accused and the judge advocate by a convening authority. The particular documents required are listed in paragraph 8.80. Notification of Accused Person's Rights 8.30 In order that an accused person may be made aware of the more important of his rights in connection with his trial or punishment by court martial he should be given notification of his rights. The format in Form 24 may be used for this purpose. Court Martial Administrative Order 8.31 In addition to the convening order and the other documents referred to in paragraphs 8.26 and 8.29, a convening authority must also make appropriate administrative arrangements for the conduct of a court martial. These arrangements include the giving of notice of the court martial to relevant authorities, nominating all of the participants and giving directions on matters such as dress or ceremonial requirements. 8.32 In relation to participants at a court martial, apart from the President, and members of the court and the judge advocate, who are appointed by the convening order, a convening authority must nominate suitably qualified persons to carry out the duties of prosecutor (see paragraph 8.47); defending officer (see paragraph 8.60); clerk (see paragraph 8.78); orderly (see paragraph 9.66 to 9.68); escort (see paragraph 8.84 to 8.85): and recorder (see paragraphs 9.71 to 9.73). 8.33 A convening authority may nominate the participants in a court martial and issue all other relevant administrative directions by means of a Court Martial Administrative Order. This order may be promulgated by signal in the format shown in Form 31 or in any other appropriate way. As soon as practicable on receipt of the Court Martial Administrative Order, relevant addressees should inform the convening authority if any of the nominated personnel will be unable to attend on the date specified.

44

DFDA s.120(1). DFDA s.120(2). DFD Rule 27. DFDA s.121. DFDA s.122. DFDA s.122.

45

46

47

48

49

ADFP 201 VOLUME 1 89 Attendance of Witnesses 8.34 A convening authority must ensure that witnesses who are required to give evidence or 50 produce documents at a court martial are duly summoned or ordered to appear. Generally, it should be necessary to issue a summons only to a person who is not a defence member; a person who is a defence member may be ordered by a superior officer to appear before a court martial. An order to a defence member to appear as a witness at a court martial may be included in a court martial administrative order. However, where a defence member is required to attend a court martial and to produce documents, a convening authority should make a separate order in writing ordering him to attend and specifying the particular documents that he is required to produce. A person (other than a defence member) summoned to appear as a witness before a Service tribunal is entitled to be paid such fees and allowances in respect of his appearance as are prescribed in regulations under the 51 Public Works Committee Act 1969. Public Access to Courts Martial 8.35 The hearing of proceedings before a court martial are open to the public. Where the court martial is held in a secure place, that is a place to which entry is controlled by guards who are 53 constables or members of the Defence Force, the public must be granted reasonable access. The President of a court martial may, after consultation with the judge advocate, restrict access and reporting of proceedings where he considers it necessary in the interests of the security or defence of 54 Australia, the proper administration of justice or public morals. 8.36 In choosing a place for the conduct of a court martial a convening authority should have regard to the requirement to grant reasonable access to the public. Where a court martial is likely to attract public interest, a convening authority should ensure that adequate seating and other facilities, including telephones, are provided. A convening authority should also consider appointing a press liaison officer to assist and advise members of the press who are reporting the trial. PRELIMINARY HEARINGS General 8.37 A preliminary hearing is a hearing before a judge advocate at any time after a convening order has been made but before a court martial has assembled. Such a hearing must be held by a judge advocate when notified by an accused person, under s.141(7) of the DFDA, of any application or objection which the accused wishes to make in connection with the charge against him. Notification of Applications or Objections 8.38 Where an accused person wishes to have an application or an objection heard before a court martial assembles, he should notify the judge advocate, through the convening authority, at the earliest opportunity. The format shown in Form 26 may be used for this purpose. An accused person may provide a written submission in support of his application or objection but he is not obliged to do so. Nevertheless, where the matter in issue is likely to be complicated or protracted, the accused should provide such information as will enable the judge advocate to form a reasonable view as to how much time should be allowed for the hearing.
52

50

See DFDA s.138(2), (3); and DFD Rule 6. See DFD Rules 21, and 7 (2) and Part 11 of Vol 2. DFDA s.140(1). DFDA s.40(4). DFDA s.140(2), (3).

51

52

53

54

ADFP 201 VOLUME 1 810 8.39 After he has received the notification and after consultation with the convening authority, the judge advocate should fix a date and time for the hearing. The date should usually be as soon as practicable after receipt of the notification. However, with the consent of the accused and subject to the nature of the application or objection, a judge advocate may fix a date or time for the hearing immediately preceding the date or time fixed for the court martial. The date and time of the hearing should then be promulgated, by signal, by the convening authority to all relevant authorities. The pro forma shown in Form 31, adapted as necessary, may be used for this purpose. Applications or Objections which may be Heard at a Preliminary Hearing 8.40 At a preliminary hearing, or at any time before he is asked to plead at a trial, an accused 55 may do any one or more of the following: a. apply for an adjournment on the ground that he has not had adequate opportunity to prepare his case or choose counsel; apply to secure attendance of witnesses or additional witnesses on his behalf; where he is charged with more than one Service offence, apply for each charge to be heard separately; where he is charged with one or more other persons, apply to be tried separately on the ground that he would otherwise be prejudiced in his defence; and make such other applications as he considers relevant in connection with his trial.

b. c.

d.

e.

8.41 An accused person may also enter an objection to the charge on any ground, including any of the following grounds: a. that by virtue of previous acquittal or conviction he is not liable to be tried for the Service offence with which he has been charged; that the charge was made outside the time limitations provided in s.96 of the DFDA; that he has, in the exercise of the royal prerogative of mercy, been pardoned for the Service offence with which he has been charged or for a civil court offence which is substantially the same; that the charge does not disclose a Service offence or is otherwise wrong in law; that the court martial does not have jurisdiction; and that any member or reserve member or judge advocate of the court martial is ineligible 56 or biased.

b. c.

d. e. f.

8.42 The judge advocate must grant an application where he is satisfied that the interests of justice require that it be granted and must allow any objection where he is satisfied that it has been 57 substantiated by the accused. Where a judge advocate grants an application or allows an objection he may refer the charge against the accused person to a convening authority.

55

DFDA s.141(2), (3). DFDA s.141(2), (3). DFDA s.141(5), (6).

56

57

ADFP 201 VOLUME 1 811 Who Should Attend a Preliminary Hearing 8.43 As a preliminary hearing forms part of the proceedings of a court martial, it must be attended by all persons, other than the President, members or reserve members of the court, who are required 58 59 by law to be present at the court martial. In effect this means that the judge advocate, the accused 60 and a court recorder are required to attend. It is expected also that the hearing would be attended by the prosecutor and the defending officer and, in most cases, by the clerk. An orderly would not normally be required unless the matter is likely to involve complex administrative arrangements. An escort is also not normally required unless the accused is being held in custody at the date of the hearing. Notwithstanding, a judge advocate may exercise his discretion in determining who should attend the hearing and should advise the convening authority accordingly. Procedure at a Preliminary Hearing 8.44 The procedure at a preliminary hearing is similar to the procedure at any hearing in the absence of the court which is held in the course of the trial. The detailed procedure is set out in Item 14 of Annex B to Chapter 9 (Order of Procedure at a Trial by Court Martial). THE PROSECUTION CASE Nomination of a Prosecutor 8.45 At any time after a convening authority has decided to convene a court martial, he may nominate a person to act as prosecutor. The prosecutor should be a legal officer, that is, an officer of 61 the Permanent Forces or the Reserve Forces who is a legal practitioner. Legal officers appearing as prosecutors at courts martial, or any hearings in connection with courts martial should always wear uniform. Documents to be Supplied to a Prosecutor 8.46 When a person has been chosen to act as prosecutor but before the convening order is promulgated, the convening authority should supply that person with the following documents: a. b. c. a copy of the convening order in draft form; a copy of the charge sheet or charge sheets; a copy of the record of evidence taken in relation to the charge in prior proceedings before a summary authority or an examining officer; a copy of any other statements taken from prosecution witnesses; a list of the prosecution exhibits which are held by the convening authority; a list of witnesses for the prosecution; and the accused person's Form PD103 Conduct Record.

d. e. f. g.

Although the convening authority may take into account the existence of a spent conviction (as to the definition of which, see paragraph 7.56) in deciding whether or not to convene, the convening authority

58

DFDA s.141(7). DFDA s.139. DFDA s.148. DFDA s.3(1): definition of legal officer.

59

60

61

ADFP 201 VOLUME 1 812 should exercise a discretion as to whether or not to instruct the prosecutor to disclose the existence of spent convictions to the tribunal in the event of a conviction. Duties of a Prosecutor on Receipt of Documents from a Convening Authority 8.47 On receipt of the documents referred to in paragraph 8.46, the prosecutor should satisfy himself that the charge has been properly made, that it discloses a Service offence and that a court martial has jurisdiction to try the charge. If the prosecutor is of the opinion that no charge lies against the accused person or that the charge requires to be amended, he should inform the convening authority accordingly. 8.48 The prosecutor should examine the record of evidence and the exhibits in order to satisfy himself that the evidence is sufficient to support the charge. Where a prosecutor is of the opinion that the evidence is not sufficient to support the charge he should inform the convening authority so that arrangements can be made for obtaining further evidence or so that consideration may be given to some other course of action in respect of the charge. The prosecutor should also inform the convening authority of the names of any persons, other than those specified in the list of witnesses, whom he may require to give evidence. Disqualification of the Prosecutor 8.49 A person who has been nominated as a prosecutor is obliged to inform a convening authority at the earliest opportunity if, in his opinion, it would be improper to act as prosecutor. Some circumstances in which it would be improper to act are: a. b. where there is a serious conflict of interest; where a prosecutor and the accused person share membership of or association with various bodies; where a prosecutor has given prior advice relating to the case to the accused; where a prosecutor has a personal relationship with the accused, any witness, the judge advocate or any member of the court; and where the prosecutor may be required as a witness.
62

c. d.

e.

8.50 The mere fact that a prosecutor knows the accused or has served with him at some time does not of itself provide grounds for disqualification unless it can be shown that this relationship 63 would cause bias, prejudice or hostility against the accused. Preparing the Prosecution Case 8.51 The prosecution has responsibility for the preparation and conduct of a case, subject to the directions of the convening authority. In preparing the case, the prosecutor must attend to some or all 64 of the following matters: a. the attendance of prosecution witnesses who may be required to give evidence at a preliminary hearing; preparation of a submission in response to any applications or objections made by an accused person;

b.

62

See Halsbury's Laws of England 4th Ed Vol 3 para. 1138. As to bias generally, see Annex K to Chapter 7. Some of these matters are discussed in more detail in subsequent paragraphs.

63

64

ADFP 201 VOLUME 1 813 c. d. pre-trial conferences with prosecution witnesses; the obtaining of any additional evidence which in his opinion is necessary to support the charge; the safeguarding of documentary or other evidence which may be in his possession; ensuring that the accused is kept informed of the case which he has to meetby forwarding notice of new evidence when it arises; the attendance of prosecution witnesses at the trial; preparation of an opening address.

e. f.

g. h.

Keeping the Accused Informed of the Case Against Him 8.52 It is a basic principle of law that an accused person is entitled to be informed of all of the evidence in support of a charge against him. For this reason, when a convening authority convenes a court martial, he is required to send to an accused person the record of evidence taken in prior proceedings before a summary authority or an examining officer, any other statements made by prosecution and witnesses, a list of witnesses and exhibits and to give an accused the opportunity to 65 inspect and copy any of the exhibits. In any case where additional evidence becomes available after a court martial has been convened, the prosecutor must ensure that the accused is informed of this fact. Where the evidence is in the form of an exhibit the accused must be given the opportunity to inspect and copy the exhibit; where the evidence is in the form of a statement by a prosecution witness a copy of the statement must be given to the accused. Pre-trial Conferences with Witnesses 8.53 Before the trial, the prosecutor must ensure that each of the witnesses he proposes to call is thoroughly conversant with the procedure for giving evidence at the trial as well as being familiar with the content of his evidence. Witnesses should be told to read over their statements of evidence carefully, to refresh their memories of the matters in which they are to testify, especially dates and actual words used, where these are relevant to facts in issue. The prosecutor is entitled not to call a particular witness if in his opinion the witness is unlikely to be credible or will merely corroborate other evidence. However, a material witness should not be discarded solely on the basis that not all of his 66 evidence supports the prosecution case. An accused person or his representative is entitled to cross-examine any prosecution witness who does not give evidence. For this purpose the prosecution must take all reasonable steps to secure their presence, but, at the discretion of the judge advocate, 67 the trial may proceed without them. Obtaining Additional Evidence 8.54 Before the trial commences, a prosecutor must be satisfied that there is sufficient evidence to prove, beyond reasonable doubt, each element of the offence alleged against the accused. Accordingly, he must be alert to a possible requirement to obtain additional evidence where such evidence is available. Where it is necessary to obtain statements from other witnesses, the prosecutor should ask the convening authority to make appropriate arrangements for the taking of these statements and to ensure that the witnesses are ordered or summoned to appear at the trial.

65

DFD Rule 30. R v Oliva (1965) 1 WLR 1028 at 1035. R v Shaw (1972) 1 WLR 676; also R v Sterle (1972) CLR 391.

66

67

ADFP 201 VOLUME 1 814 Documentary and Other Evidence 8.55 A prosecutor should give careful consideration to any documentary or other evidence on 68 which he proposes to rely. The questions which must be considered in relation to documents are: a. whether the evidence will be admissible in documentary form or whether it must be 69 given orally; whether the original of a document can be produced and, if not, whether its absence can be satisfactorily explained; whether the subject matter of the document is something of which a court martial may 70 take judicial notice; whether the document is in a form which will be of assistance to the court and whether copies or enlargements should be made; whether the accused has copies of all the documents which will be used in evidence against him; and when and through whom a document is to be tendered in evidence.

b.

c.

d.

e.

f.

8.56 As to evidence which is other than oral or documentary, a prosecutor needs to satisfy himself that any object which he seeks to tender is readily available, is of some probative value and 71 that proper custody and control have been exercised over it since the time of the alleged offence. SECTION 3 - THE ACCUSED'S DEFENCE Legal Representation 8.57 An accused person may be represented at a court martial by any member of the Defence 72 Force or by any legal practitioner. Whilst an accused is awaiting trial, a convening authority is 73 required to afford him the opportunity to be advised before the trial and be represented at the trial, free of cost, by a legal officer. A legal officer is an officer of the Permanent Forces or the Reserve 74 Forces who is a legal practitioner. Any person who represents a person at a court martial is known as a defending officer. Subject to exigencies of service, an accused person should be given the opportunity to consult with his legal adviser and to communicate with persons whom he may wish to give evidence on his behalf.

68

See Chapter 6 . See Part 2.2 of the Evidence Act 1995 (Cth). DFDA ss.146, 147; also see Chapter 6. Also see Chapter 6. The practitioner must be qualified to practise before the civil courts of Australia or, if the trial is held outside Australia, in the civil courts of that place; see DFDA s.36. Subject to exigencies of service; DFDA s.137(1). As defined in DFDA s.3(1).

69

70

71

72

73

74

ADFP 201 VOLUME 1 815 DUTIES OF A DEFENDING OFFICER General 8.58 A defending officer has a duty to guard the interests of the accused by all honourable and legitimate means known to the law. It is his duty to undertake the defence regardless of his personal opinion of the guilt of the accused. Notwithstanding, if an accused, who intends to plead not guilty, confesses his guilt to a defending officer, the officer may, if there is sufficient time for another person to take over the 'brief' before the trial and circumstances allow, arrange for some other qualified person to act for the accused. Where circumstances do not allow another person to take over the case, a defending officer may not falsely suggest to the court that some other person committed the offence charged and may not set up an affirmative case inconsistent with such confession. However, he may argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged or that for some reason of law the accused is not guilty. Pre-trial Duties of a Defending Officer 8.59 As a first step, a defending officer should examine the convening order, the charge sheet, the record of evidence of prior proceedings and any summaries of evidence by prosecution witnesses in order to gain an appreciation of the case against the accused. The defending officer should then have careful regard for whether there may be some technical or legal irregularity in the charge, the evidence or the convening order which would provide a proper basis for making an application or objection under s.141(7) of the DFDA. Where, in the opinion of the defending officer, an application or objection should be made in connection with a charge, the matter may be dealt with by the judge advocate at a preliminary hearing; see paragraphs 8.37 to 8.44. Some examples of general matters which a defending officer might consider are: a. b. c. whether the court has jurisdiction to try the charge; whether any member of the court or the judge advocate might be ineligible or biased whether any charge against the accused should be severed and dealt with on some other occasion; irregularities in charges which might render them void or requiring amendment, eg ambiguity, duplicity, failure to disclose an offence; and unfitness of the accused to plead.

d.

e.

Interview with the Accused 8.60 When the defending officer has gained an appreciation of the case, he should interview the accused and, if necessary, explain the contents of the prosecution documents to him. The accused person should then be invited to give his version of the facts of the case, if these facts are in issue, or any instructions on how he wishes his defence to be conducted. The defending officer is not obliged to suggest to the accused that a particular defence (other than a defence on a question of law) is available. Instead, he should prepare a defence based on the accused's own explanation of what happened and any other instructions given to him by the accused. As the accused may not be able to express himself well or to appreciate which matters are important to his case, the defending officer should try to confine the accused's story to the facts in issue in the case in order to avoid wasting time on irrelevant matters. In cases where the facts are complicated or where the accused person wishes his defence conducted in a manner contrary to the manner in which the defending officer considers it should be conducted, the accused should be asked to put the facts or instructions in writing. Applications and Objections before Trial 8.61 A defending officer should give early consideration to whether the accused's interests would be advanced by having an application or objection heard before the court assembles. Where grounds

ADFP 201 VOLUME 1 816 for such a hearing do exist it would generally be advantageous to the accused to avail himself of it, as the decision of the judge advocate on the particular application or objection will usually affect the way in which the defence case is prepared and argued before the court. As to notification of applications or objections see paragraph 8.38. Deciding the Plea 8.62 The ultimate responsibility for deciding how to plead to each charge rests with the accused but, before he decides, the defending officer should ensure that the accused understands the implications of his plea. He should be informed, for instance, that it does not necessarily follow that, although the accused admits to some or all of the facts alleged against him, he must plead guilty. There may be circumstances such as intoxication or lack of knowledge of certain facts, which may either constitute a legal defence to the charge or be sufficient to raise a reasonable doubt in the minds of the court as to the guilt of the accused. On the other hand, in a hopeless case it may be better to advise the accused to plead guilty, at least to some charges, in the hope that the prosecutor may decide to abandon or amend one or more of the charges to which a plea of not guilty is to be entered or in an endeavour to mitigate punishment. Evidence for the Defence 8.63 Having considered the prosecution case and determined how the accused intends to plead to the charges against him, the defending officer should ask the accused whether he intends to give evidence and/or to call other witnesses to give evidence on his behalf. The accused should be informed that if he gives evidence, he is liable to be cross-examined by the prosecution and that he may, instead, choose to remain silent. Where the accused is likely to do significant damage to his case by the way in which he gives evidence it may be advisable for him to remain silent, particularly if there is other evidence in his favour. Giving of Evidence by the AccusedImplications 8.64 Once the accused has elected to give evidence on oath, he may be asked, and is bound to answer, a question notwithstanding that the answer to the question may tend to incriminate him in 76 relation to the offence to which the proceeding relates. Furthermore, if the accused has asked questions or adduced evidence which has tended to show that he is a person of good character or has 77 impugned the character of prosecution witnesses or co-accused, he may be asked and is bound to answer questions which show that he has been convicted or tried of other offences or that he is a 78 person of bad character. It must be emphasised that the matter of what questions may or may not be asked in cross-examination arises only when the accused gives evidence. Although the accused may have attacked the character of witnesses for the prosecution, if he does not then give evidence himself, the prosecutor cannot put any questions to him at all. Nevertheless, if the defence puts forward the accused's good character, the prosecutor may always rebut such evidence by evidence of the accused's bad character, whether or not the accused gives evidence himself. 8.65 Whether or not the accused is to give evidence is a question of vital importance which the accused himself must decide. The defending officer should do no more than advise him of the advantages and disadvantages inherent in each course of action. He should also point out that, 79 although it must not be made subject of comment by the prosecutor, the failure of the accused to
75

75

The grounds are set out in s.141 of the DFDA; also see paras. 8.40 and 8.41. Evidence Act 1995 s.128. A mere denial of prosecution evidence or suggestion that prosecution witnesses are telling lies is not such an imputation. An allegation that a prosecution witness committed the offence or invented his evidence out of malice to the accused is an imputation. Evidence Act 1995 s.110; Evidence Ordinance (ACT) s 70. Evidence Act 1995 s.20.

76

77

78

79

ADFP 201 VOLUME 1 817 give evidence may produce an unfavourable effect in the minds of members of the court. He may advise the accused which course he thinks that the accused should take, so long as he stresses that the decision must be that of the accused himself. Other Defence Witnesses 8.66 Where an accused person intends to plead not guilty to a charge, his defending officer should ascertain whether there are any persons who may be able to give evidence for the defence on any of the facts in issue. The defending officer should then interview these persons, preferably in the absence of the accused, in order to hear their version of the facts and to decide whether they are likely to be believed by the court. In the event that the defending officer decides to call any of these persons he should make a precis of the evidence which they are prepared to give, as a basis for his examination of them in court. 8.67 Whenever practicable a defending officer should inform the convening authority of the names and addresses of any persons whom he will require to give evidence at the trial or preliminary hearing (as the case may be). The convening authority should then direct these persons to attend as 80 witnesses. A direction to appear as a witness may be made by means of an order or a summons. Character Witnesses 8.68 A Service tribunal may take into account evidence as to the character of the accused person, 81 in relation to whether the person is guilty of the offence with which he is charged. Accordingly, a defending officer should consider whether to call witnesses to attest to the good character of an accused person in order to persuade the court that the accused is not guilty as charged. Clearly, the weight to be attached to such evidence will depend on the circumstances of each case; for example, a reputation for honesty may be significant in relation to a charge of stealing but is unlikely to carry much weight in relation to whether a person is guilty of a charge of absence from duty. Before putting an accused's character in issue, the defending officer should always have regard to the risks involved. One particular risk is that introduction of character evidence opens the door to the prosecution to 82 adduce evidence of the accused person's bad character, which otherwise would be inadmissible. 8.69 After a person has been convicted, it will usually be desirable for the defending officer to call witnesses to testify to the good character of the accused. In determining punishment, the Service tribunal is required to take into account this evidence. This matter is dealt with under Plea in Mitigation at paragraph 8.72. Alibi Evidence 8.70 Where an accused person intends to adduce evidence of an alibi at a court martial, he is required to give notice to a convening authority of the particulars of the alibi within 14 days of the 83 making of the convening order. A defending officer should ensure in an appropriate case that a notice of alibi is given in writing to a convening authority within the required time limit or as soon as 84 possible thereafter. The notice should be given in the manner shown in Form 17.

80

See para. 8.34. Evidence Act 1971 (ACT) s.70(3). Evidence Act 1995 s.110. DFDA s.145A. See Part 12 of Vol 2 of DLM.

81

82

83

84

ADFP 201 VOLUME 1 818 Defence Opening Address

85

8.71 A defending officer may open the case for the accused by giving an opening address. When he does so, the defending officer may indicate which of the facts in issue will be contested and the nature and effect of the evidence he will be adducing in rebuttal of the prosecution case. An opening address should not be necessary in a case where defence witnesses will testify only to the good character of the accused person. A defence opening address should be prepared in outline form before commencement of the trial and amended, as required, in the light of evidence given by prosecution witnesses. Plea in Mitigation 8.72 In preparing a case, a defending officer should consider the punishment which is likely to be imposed on the accused in the event that he is convicted. If the accused intends to plead guilty, the defending officer should prepare a plea of mitigation of punishment before the trial commences. If the accused intends to plead not guilty, a plea in mitigation in outline form should be prepared in advance. 8.73 The defending officer may be very free in his plea of mitigation; he may call witnesses, who 86 87 may give hearsay evidence, documentary evidence of character and evidence of motive or he may simply address the court himself about the accused's circumstances, character and motives. In this address, the defending officer may bring to the attention of the court the sentencing principles contained in s.70 of the DFDA and explain how these principles should be taken into account in relation to a convicted person. 8.74 In some cases the court will be assisted in determining an appropriate punishment by reports from non-legal specialists on the mental or physical condition of the accused. If such reports are likely to be required, the defending officer should make the necessary arrangements for the accused to be interviewed by a social worker, doctor or psychiatrist (as the case may be) before the trial commences. Where it is not practicable to do this the defending officer should be prepared to seek an adjournment before the court martial decides the punishment in order that appropriate reports may be obtained. Pre-sentence Report 8.75 In preparing a plea in mitigation, a defending officer should complete a pre-sentence report to be handed up to the court at the end of the plea in mitigation. The pre-sentence report may be made in the format shown in Form PD 108 or in any other manner considered appropriate by the defending officer. The defending officer should provide a copy of the pre-sentence report to the prosecution before it is given to the court. The prosecutor is entitled to object to any matter included in or annexed to the report; however, he should not do so unless he considers that the matter in question is false in a material way or is likely to mislead the court. SECTION 4 - DUTIES OF OTHER OFFICIALS CLERK OF THE COURT Introduction 8.76 When a convening authority decides to convene a court martial he may nominate a person as the clerk of the court whose function is to perform various administrative tasks in connection with the trial. The clerk may be an officer, warrant officer or a senior non-commissioned officer, but, in any case, he should have a good working knowledge of Service disciplinary law and be someone who can be relied on to carry out his duties without supervision.

85

DFD Rule 45. R v Marquis (1951) 35 Cr. App R 33. Eg an Army record: R v Roche (1944) 30 Cr. App. R.29.

86

87

ADFP 201 VOLUME 1 819 8.77 The principal pre-trial duties of the clerk are the preparation and dispatch of documents in connection with the trial and the issuing of orders and summonses to persons who are required to attend the court martial. Duties in Relation to Documents 8.78 When a convening authority makes a convening order for a court martial, the clerk should on behalf of the convening authority send: a. to the President and each member or reserve member of the courta copy of the 88 convening order; to the judge advocate: (1) (2) (3)
89

b.

the convening order; the charge sheet; the record of evidence taken at proceedings in relation to the charge before a commanding officer, a superior summary authority or an examining officer; any other statement taken from a witness to be called for the prosecution;

(4) c.

to the accused: (1) (2) (3) a copy of the convening order; a copy of the charge sheet;
91 90

a copy of the record of evidence taken in relation to the charge in prior 92 proceedings before a summary authority or an examining officer; copy of any other statement taken from a witness to be called for the 93 prosecution; a notice of the rights of an accused person (Form 24);
94

(4)

(5) (6) d.

and
95

a notice of requirements in respect of alibi evidence (Form 23); and

to the prosecutionthe accused person's Conduct Record (Form PD103) and a copy 96 of the convening order.

88

DFD Rule 29(1)(a). DFD Rule 29(1)(b). DFDA s.120. DFD Rule 29(1)(c). DFD Rule 29(1)(c). DFD Rule 29(1)(c). See Part 12 of Vol 2. See Part 12 of Vol 2.

89

90

91

92

93

94

95

ADFP 201 VOLUME 1 820 Ordering or Summonsing of Persons to Attend 8.79 The clerk is responsible for ensuring that persons who are required to attend a court martial or preliminary hearing whether as an accused person or a witness for the prosecution or defence are ordered or summonsed to appear. Persons who are members of the Defence Force should generally be ordered to appear by the convening authority. Inclusion of names of the accused or witnesses in 97 the Court Martial Administrative Order is a sufficient method of ordering them to attend. Where it is necessary to issue a summons compelling a person to attend a court martial, the clerk should prepare 98 99 the summons. A summons to a witness should be made in the manner shown in Form 49. A summons to an accused person should be made as shown in Form 46. When a summons has been made out it should be signed by the convening authority and served in accordance with Rule 6 of the Defence Force Discipline Rules. The clerk should ensure that the person named in the summons is given sufficient notice to enable him to travel between his place of residence or employment 100 (whichever is appropriate) and the place of sitting of the court martial. Other Duties of the Clerk 8.80 In the pre-trial period, the clerk should be available to assist the convening authority or any of the participants with any of the administrative arrangements which must be made in connection with the trial. Some of the specific matters in which he may be called upon to assist are: a. preparing an order to an escort paragraphs 8.84-8.85;
101

or an order for transfer of a detainee

102

see

b.

liaising with the judge advocate and the accused in relation to arrangements for a 103 preliminary hearing; making arrangements for recording of proceedings; promulgating the Court Martial Administrative Orders;
104

c. d. e. f.

supervising the arrangements at the place where the trial is to be held; and providing such documents or materials as may be required at the trial by the President, the judge advocate, the prosecutor or the defending officer.

8.81

The duties of the clerk at the trial are outlined at paragraph 9.65.

96

Other documents, as specified in para. 8.46 should be sent to the prosecutor before the convening order is made. See para. 8.34 Attendance of witnesses. This should be necessary usually only where the person is not a member of the Defence Force. See Part 12 of Vol 2 of DLM. DFD Rule 6(2). Per Form 42. Per Form 41. See para. 8.37 et seq. See para. 8.31.

97

98

99

100

101

102

103

104

ADFP 201 VOLUME 1 821 THE ESCORT 8.82 In an appropriate case, a convening authority may order a person, known as the escort, to take an accused or a witness into his custody for the purpose of attending a court martial. In most cases an escort should not be required. However, where an accused or a witness is being held in custody prior to the trial or where an accused, if convicted, is likely to be sentenced to a period of detention or imprisonment, an escort should be provided. Also, where it is believed, on reasonable grounds, that an accused is likely to interrupt the proceedings of a court martial or create a disturbance therein, an escort should be provided. 8.83 In a case where a convening authority considers that an escort is necessary, he should issue an order to the escort in the manner shown in Form 42. Where a person who is serving a punishment of imprisonment or detention is required to appear at a court martial, he may be released from the detention centre or prison (as the case may be) into the custody of an escort. A person who is in 105 A detention may be released into the custody of an escort by order of the convening authority. 106 person who is in detention may be released into the custody of an escort by summons.

105

See Form 41. See Form 46.

106

ADFP 201 VOLUME 1 CHAPTER 9

COURTS MARTIALAT THE TRIAL

General 9.1 In this chapter the powers and duties of the President, members, judge advocate and other officials at a court martial are summarised. The need for this summary arises because courts martial are proceedings which are sui generis (of their own kind) and, for that reason, are different in several important respects from trials in the civil criminal courts. For example, at a court martial, the President 1 presides except when it is necessary for the judge advocate to determine certain questions of law in the absence of the court, in which case the judge advocate will temporarily preside over the proceedings. In contrast, in criminal proceedings before a jury in the civil courts, the judge has exclusive powers to direct proceedings in his court. 9.2 Nevertheless, a basic similarity exists between trials by court martial and trials on indictment in civil courts in that in both forms of trial, issues of fact are determined by a group of people specially appointed for the purpose who are directed on the law by a judge. In the civil courts, the jury determines issues of fact subject to the directions on law given by the judge. In a court martial, the court, comprising the President and members, determines issues of fact subject to any rulings on questions of law given by the judge advocate. 9.3 In addition to discussing the specific functions of various persons at courts martial this chapter sets out in some detail the procedure to be followed at a court martial and illustrates how the proceedings may be recordedsee Annexes A to D. 9.4 Before considering specific matters relating to the conduct of courts martial, some guidance is offered, in paragraphs 9.5 to 9.12, on how the court should use the evidence before it in the course of determining issues of fact. GENERAL DUTIES OF A COURT MARTIAL IN RELATION TO EVIDENCE Issues of Fact 9.5 A court-martial is convened to decide whether the offences specified in the charge-sheet have been committed by the person accused of them, and, if so, to award a just punishment. If the accused pleads guilty to all charges and as a result the court records a conviction on them, the only question for the court to decide is the appropriate punishment. If, however, the accused pleads not guilty to a charge, he raises an issue of fact before the court and puts the burden of proving his guilt on the prosecution. The accused himself need do no more than raise a doubt in the minds of the court whether the prosecution has proved his guilt of the offence with which he is charged. Issues of Fact to be Decided on the Evidence 9.6 When an issue is thus raised, it is the duty of the court to decide impartially where the truth lies in the evidence called and duly to administer justice according to law. The truth must be reached by legal evidence and not by any personal sense of justice or injustice, and each member of the court must decide the matter in issue according to his conscience, forming his judgement as he would in a matter of high personal concern. The Demeanour and Credibility of Witnesses 9.7 Deciding the weight to be given to the evidence of a witness is often a matter of great difficulty. His demeanour should be very carefully observed: his manner of giving evidence, even the way he stands or his movements, will often give some indication to an experienced judge whether he is a credible witness or not. A word of caution is required, however; for a perfectly truthful witness will sometimes make an unfavourable impression because he has never been in court before, or because

See DFDA s.133.

ADFP 201 VOLUME 1 92 he is nervous, or because he is shy of giving unpleasant details in public, or because he is overawed by having to speak in front of senior officers. Allowance must be made for the inability of many witnesses to express themselves clearly. Many witnesses giving evidence are under a strain: for example, the accused because of the peril in which he stands or some other witness because he has to recount an unpleasant experience or has to give evidence against a superior. 9.8 A sympathetic hearing will often elicit the truth better than questions asked in a hostile manner and every allowance must, where appropriate, be made for the factors mentioned above, before the court forms an opinion adverse to the witness. Sometimes the court may be asked to disbelieve a witness because he said that certain events lasted five minutes, when it is clear from other evidence that they cannot have lasted more than a few moments. This is an unreliable guide to a witness's credibility, because some new and perhaps terrifying experience may temporarily destroy a person's sense of time. The court must judge for itself whether what the witness means is a long or short time, as the case may be, without reference to the hands of the clock. 9.9 Upon the court alone rests the responsibility of deciding whether a witness is telling the truth. Statements which appear distinct on the record may have been made by the witness in such a way as to produce exactly the opposite effect to that which is produced by the written language. Those who have seen and heard the witnesses can best form a reliable opinion of the effect of any individual statement. In summing up a witness, the court should remember that persons may have hidden motives for giving evidence against someone; they should consider that possibility and, if they think that it exists, they should make full allowance for it, taking special care if that factor might be present and the witness is the only witness, or the basic witness, against the accused. Inferences to be Drawn when Accused Does Not Give Evidence 9.10 The accused need not prove his innocence and is entitled to sit back and say prove it to the prosecution. Therefore, if the prosecution case is not strong enough for the court to say that it is prepared to convict on the prosecution's evidence, the court must not draw any adverse inference if the accused refrains from giving evidence. If, however, the prosecution does produce a prima facie case requiring an answer, the court is entitled to ask itself whether there is a valid reason, consistent with his innocence, for the refusal of the accused to give evidence. Circumstantial and Direct Evidence 9.11 The evidence which a witness gives must be either direct or circumstantial, and both these kinds of evidence may be given at a trial. The relative weight and reliability of direct and circumstantial evidence is often discussed. There is a theory that the former is superior because the latter is only a substitute for it, but these two forms of evidence ought not to be considered in contrast because they are not mutually opposed. Each has its chance of error. In giving direct evidence the witness may be mistaken or untruthful, while from circumstantial evidence the court may draw a fallacious inference. But small unimportant facts which may constitute circumstantial evidence are more difficult of fabrication and less likely to be thought of beforehand than single important facts more clearly related to the issue. As a person who commits an offence usually wishes to escape detection, there is often little direct evidence available to the prosecutor, who must supplement his case with circumstantial evidence. The court must therefore assess all the evidence of both kinds which may be brought before them, remembering the advantages and disadvantages of each. Onus and Standard of Proof 9.12 Although at every trial the judge advocate must and will advise the court on the following point, it cannot be over emphasised. It is the duty of the prosecution to satisfy the majority of the court that the accused is guilty beyond reasonable doubt before there can be conviction. If, after carefully considering all the evidence, a member of the court is not satisfied that the prosecution has proved beyond reasonable doubt the guilt of the accused, then he is left in a state of doubt and must vote Not Guilty.

ADFP 201 VOLUME 1 93 FUNCTIONS OF THE PRESIDENT, MEMBERS AND JUDGE ADVOCATE AT A COURT MARTIAL General 9.13 The Defence Force Discipline Act 1982 (DFDA) and the Defence Force Discipline (DFD) Rules confer specific powers and duties on the President, members and the judge advocate of a court martial. These provisions of the Act and the Rules are sufficiently comprehensive to cover most matters which arise in connection with a court martial. Where a case arises which is not covered by the Act or Rules, the court is required to follow: a. the established course that would, in the particular case, have applied in a trial by jury in a civil court in the Jervis Bay Territory in its criminal jurisdiction; or if there is no such established course, such course as the interests of justice require.
2

b.

9.14 In exercising powers under the DFDA or DFD Rules, the President, whether acting on his own behalf or on behalf of the court, should always be willing to seek the advice of the judge advocate because of the greater experience which the latter will usually have had in courts martial. Conversely, the judge advocate should be prepared to offer advice to the President or to the court on any matter at any stage during a court martial when, in his opinion, it is appropriate to do so. Where the advice given by the judge advocate amounts to a ruling on a question of law, the court is bound to follow it. The court is not bound to follow any advice given by the judge advocate on matters other than questions of law. FUNCTIONS OF THE PRESIDENT General 9.15 Subject to any ruling given by the judge advocate on a question of law, the President 3 presides at a court martial. When presiding at a court martial the President is required: a. to ensure that the trial is conducted in accordance with the Act and the Rules and in a manner befitting a court of justice; to speak on behalf of the court martial in announcing a finding or sentence or any other decision taken by the court; and to speak on behalf of the members of the court in conferring with, or requesting advice 4 from, the judge advocate on any question of law or procedure.

b.

c.

9.16 The general functions listed above are additional to the functions of the President as a member of the court martial and to any other specific duties and powers conferred on him by the DFDA or DFD Rules. The functions of the President as a member of the court are discussed in paragraphs 9.23 to 9.31. Other specific duties and powers are discussed in paragraphs 9.17 to 9.22. Orders or Summonses to an Accused Person 9.17 The President may order or summon an accused person to appear before the court martial 5 for any purpose relating to the charge against him. Usually it will be necessary for the President to order or summon an accused person to appear at a court martial only in a case where the accused

DFD Rule 4. DFDA s.133(1)(a). DFD Rule 31. DFDA s.87(4); also See Chapter 3 in relation to orders and summonses.

ADFP 201 VOLUME 1 94 has failed to appear as required by the Court Martial Administrative Order or after an adjournment. Where an accused person has failed to appear or reappear at a court martial as required, the 7 President may also issue a warrant for the arrest of the person. Orders or Summonses to Witnesses 9.18 The President may summon or order a person to appear before a court martial to give evidence and to produce such documents (if any) as are referred to in the summons or order (as the 8 case may be). Public Hearings 9.19 The President may order that some or all of the members of the public be excluded during the whole or a specified part of a court martial and that no report of the whole or a specified part of the proceedings be published. Before exercising this power, the President should be satisfied that it is necessary to do so in the interests of the security or defence of Australia, the proper administration of justice or public morals. The President may not restrict access to or reporting of the proceedings 9 unless he has first consulted the judge advocate. Oath or Affirmation by Witnesses 9.20 The President may require a person appearing as a witness before a court martial to give 10 evidence on oath or affirmation. Unless there is some legal reason for a witness not taking an oath or affirmation the President should require that the oath or affirmation be administered in every case. A witness is free to choose whether to give evidence on oath or on affirmation. When the person chooses to give evidence on oath the President may permit the person to take the oath in such 11 manner as the person declares to be binding on his conscience. The form of affirmation to be made 12 and the usual form of oath to be taken are set out in the Procedure at a Trial by Court Martial. Recorders and Interpreters 9.21 The President may arrange for a person to act as a recorder or interpreter at a court 13 martial. In most cases, however, the President will not be required to act in this regard because the appointment of recorders or interpreters will be made by the convening authority. In April 1986 the Standing Committee of Attorneys-General agreed that each jurisdiction should consider the adoption of a set of guidelines governing the use of interpreters in the Australian legal system. A copy of the national guidelines which were prepared is at Annex E. Removal of an Accused Person from the Court 9.22 The President may, after consultation with the judge advocate, order the accused person to be removed from the court and held in custody elsewhere. Such an order may be made only where
6

See paragraphs 8.31 to 8.33. See DFDA s.88(1) and Chapter 3. DFDA s.138(2), (3). A summons will usually be issued only where the person is not a Defence member. DFDA s.140. DFDA s.138(4). DFD Rule 38. See Annex B Item 26. DFD Rule 37(1).

10

11

12

13

ADFP 201 VOLUME 1 95 the President considers that by reason of the disorderly behaviour of the accused person it is 14 impossible to continue the hearing in his presence. FUNCTIONS OF THE COURT General 9.23 The members of a court martial, which includes the person appointed as President, are 15 required to determine any question arising in a court martial other than a question of law. In determining whether an accused person is guilty or not guilty of a Service offence or whether the accused was suffering such unsoundness of mind at the time of the alleged offence as not to be legally responsible for his act or omission, or in determining punishment, the court must sit without any 16 other person present. The particular powers and duties of a court martial are discussed in succeeding paragraphs. Determination of Questions 9.24 As a general rule, any question to be determined by a court martial is to be decided by a majority vote of the members of the court. However, where there is an equality of votes on certain questions, the President has a casting vote. In respect of any questions to be determined by the court, the requirements of DFD Rule of Procedure 33 must be complied with. Specifically, Rule 33 stipulates that questions to be decided by the court must be voted on orally and be determined by the members voting in order of seniority commencing with the most junior in rank. Failure to vote in such order constitutes a material irregularity, a substantial miscarriage of justice and provides grounds for 17 successful appeal . The President does not have a casting vote on the question whether an accused is guilty or not guilty of a Service offence; where there is an equality of votes on this question, the court must find the accused not guilty. Similarly, where there is an equality of votes on the question of the unsoundness of mind of an accused person at the time of the alleged offence, the court must find 18 that the person was suffering from unsoundness of mind. Amendment of Charge Sheet 9.25 A court martial may amend a charge sheet so as to correct a mistake in the name or 19 description of the accused person or a mistake which is attributable to clerical error or omission. Withdrawal of Charge 9.26 A court martial may allow the prosecution to withdraw a charge (or charge sheet) before an 20 accused person is arraigned on it. Adjournments 9.27 Court martial proceedings may be adjourned from time to time and from place to place as appears to the court to be necessary or expedient having regard to the administration of justice or the

14

DFDA s.139(2), (3). DFDA s.133; questions of law must be determined by the judge advocate. DFDA s.133(6). Hembury v Chief of the General Staff [1998] HCA 47 923 Jul 1998. DFDA s.133(2), (3), (4). DFD Rule 12. DFD Rule 13.

15

16

17

18

19

20

ADFP 201 VOLUME 1 96 exigencies of service. Normally a court martial should not sit for a total period exceeding six hours on any one day unless the prosecution and defence agree to sit for a longer period unless there are exceptional circumstances. In such cases the judge advocate should advise the court of the problems inherent in lengthy sittings. Powers in Relation to Pleading 9.28 Powers in relation to pleading are as follows: a. Where an accused person refuses to plead or does not plead intelligibly the court 22 must record a plea of not guilty and proceed to try the charge. If a convening authority notifies a court martial that it does not object to the acceptance of a plea of guilty to an alternative charge the court should accept the plea 23 and proceed to determine an appropriate punishment. In any other case the court 24 should record a plea of not guilty and proceed to try the primary charge.
21

b.

Powers in Relation to Witnesses 9.29 Members of a court martial may not ask questions of any witness. A judge advocate may put questions to a witness, however, and should do so for the benefit of the court where some aspect of the evidence is in need of clarification. In relation to witnesses, a court has the following powers: a. b. to allow a witness who is not undergoing examination to remain in court;
25

to exclude a witness who is undergoing examination where discussion arises as to the allowance of a question or any other matter pertaining to the evidence given or about 26 to be given by the witness; at any time before the judge advocate begins to sum up, to allow the prosecutor or 27 defence to recall a witness; to allow the prosecution to call a witness to give evidence in rebuttal of evidence given by defence witnesses on any matter which could not properly have been adduced or could not reasonably have been foreseen by the prosecution before the accused 28 person presented his defence; and to call a witness or recall a witness if, in the opinion of the judge advocate, it is in the 29 interests of justice to do so.

c.

d.

e.

21

DFDA s.138(1)(b). DFDA s.132(2). DFDA s.132(3). DFDA s.132(3) DFD Rule 17; eg certain expert witnesses such as psychologists or handwriting specialists. DFD Rule 17(2)(b). DFD Rule 19(1). DFD Rule 19(2). DFD Rule 19(3).

22

23

24

25

26

27

28

29

ADFP 201 VOLUME 1 97 Powers in Relation to Evidence 9.30 During a trial, the court may allow the prosecution or the accused to have part of the record of proceedings read or played over to him. If proper precautions are taken for the safety of an exhibit 30 the court may allow the prosecution or accused to inspect the exhibit. 9.31 The court may allow a copy of an extract from a document or book admitted in evidence to be an exhibit in place of the document or book, provided it is satisfied that the copy or extract is 31 correct. Manner of Voting of Court Martial 9.32 On any question to be determined by a court martial, the members must vote orally, in order 32 of seniority commencing with the junior in rank. Where there is an equality of votes on certain 33 questions the President has a casting vote. The judge advocate may not be present while the court deliberates on questions of the guilt or innocence of the accused, whether the accused was of unsound mind at the time of the alleged offence or the punishment to be imposed on a convicted 34 person. FUNCTIONS OF THE JUDGE ADVOCATE General 9.33 The judge advocate of a court martial is empowered to give any ruling and exercise any discretion which would be given or exercised by a judge in a trial by jury, in accordance with the law in 35 force in the Jervis Bay Territory. When the judge advocate sits with the court, he is to be seated apart from the members of the court. All communications between the judge advocate and the court are to be oral, and incorporated in the record. When out of court, the judge advocate should not associate with members of the court. The judge advocate may sit without the members of the court in the same circumstances as a judge in a criminal trial in the Jervis Bay Territory would sit in the 36 absence of the jury. Where the judge advocate sits in the absence of the court he may exercise such 37 powers of the President or the court martial as are necessary for the performance of his duties. Notwithstanding any of these powers of the judge advocate, it is the court who must determine any punishment (or other action under Part IV of the DFDA) to be imposed on a convicted person, although the judge advocate must give a ruling on any question of law arising in connection 38 therewith. 9.34 The judge advocate may not sit with members of the court when the court is determining whether an accused person: a. is guilty or not guilty of a Service offence; or

30

DFD Rule 56. DFD Rule 58. DFD Rule 33. See paragraph 9.24 DFDA s.133(6). DFDA s.134(1); See also paragraph 9.13 and DFD Rule 4. DFDA s.134(2). DFDA s.134(5). DFDA s.134(3).

31

32

33

34

35

36

37

38

ADFP 201 VOLUME 1 98 b. was, at the time of the alleged offence, suffering from such unsoundness of mind as 39 not to be legally responsible for his act or omission.

9.35 When a court martial has convicted a person of a Service offence, it must also determine the punishment to be imposed on the person without the judge advocate being present. 9.36 A ruling given by a judge advocate in the course of the trial or in relation to punishment of a convicted person is binding on the court. Similarly, where a judge advocate upholds an application or 40 objection made by an accused person under sections 141(1), (2), (3) or (4) of the DFDA , his decision is binding on the court. 9.37 In addition to the powers discussed in paragraphs 9.33 to 9.36 a judge advocate may exercise other specific powers which are conferred on him by the DFDA, the Regulations or the Rules of Procedure. Some of these specific powers are discussed in succeeding paragraphs. Replacement of Member of the Court 9.38 After a court martial has assembled, but before it is sworn or affirmed, the judge advocate may appoint a reserve member in the place of a member of the court. He would do so where the member has not appeared and is unlikely to be available, where he upholds an objection to the member on the ground that the member is ineligible or biased or where he finds that for some other reason the member should be excused further attendance. Where the member concerned is the President, the judge advocate may appoint the next senior member to be President provided that the next senior member is not more than one rank junior to the person originally appointed as President. Where the next senior member is more than one rank junior to the person originally appointed as President the judge advocate must report the situation to the convening authority and request that 41 authority to appoint a new President in the place of the person concerned. 9.39 Where there are insufficient members or reserve members properly to constitute a court, the judge advocate must report the situation to the convening authority and request the authority to 42 appoint an appropriate number of new members. 9.40 In any case where a judge advocate upholds an objection to himself on the ground of ineligibility or bias, he must report the situation to the convening authority and request that authority to 43 appoint another judge advocate in his place. Swearing or Affirming of the Court 9.41 After all objections by the accused person to members of the court martial have been dealt with, the judge advocate must administer an oath or affirmation to the President and each other 44 member of the court in the presence of the accused person. The judge advocate may permit a member to take an oath in such a manner as the person taking the oath declares to be binding on his 45 conscience. As to the content of the oath or affirmationsee Item 8 of Annex B.

39

DFDA s.133(6). The applications and objections which may be made by an accused are discussed at paragraphs 8.40 to 8.42. DFDA s.124(1). DFDA s.124(2); this rule applies after a court martial has assembled but before it has been sworn. DFDA s.124(3). DFD Rule 35. DFD Rule 38.

40

41

42

43

44

45

ADFP 201 VOLUME 1 99 Objections to Recorders or Interpreters 9.42 A judge advocate must allow an objection to a recorder or interpreter when he is satisfied that the person concerned is not sufficiently impartial or competent to perform the duty required of 46 him. When such an objection is upheld, the President may arrange for another person to act as 47 interpreter or recorder (as the case may be). Substitution of Plea 9.43 Where at any time during a trial it appears to the judge advocate that an accused person who has pleaded guilty does not understand the effect of the plea, the judge advocate should advise the court that a plea of not guilty should be substituted. The court will then substitute a plea of not 48 guilty and proceed accordingly. Questioning of Witnesses 9.44 During a trial by court martial, a judge advocate may ask questions of a witness when, in his 49 opinion, it is necessary to do so. Such questions should be asked only when there is a need to clarify evidence which has been given by a witness. After asking questions of a witness, the prosecution and 50 defence are entitled to ask questions arising from answers given by the witness. Members of the court may not question witnesses. Summing up 9.45 After the closing addresses (if any) at a trial by court martial, the judge advocate is required 51 to sum up the evidence and direct the court on the law relating to the case. As to the content of a summing up, see the comments by Lord Hailsham L.C. which are extracted in Note 2 to Item 51 of Annex B. Record of Proceedings 9.46 The written record of the proceedings must be certified as true and correct, in writing, by the 52 recorder and the judge advocate as soon as practicable after the conclusion of the trial. In the event that the whole or any part of the original record of proceedings of a court martial is lost, a valid and sufficient record of the proceeding may be made by the signature of the judge advocate being affixed 53 to a copy of the record of proceedings. Evidence of Alibi A judge advocate may grant leave to an accused person to adduce evidence of an alibi 9.47 54 although the accused has not given 14 days notice of the particulars of the alibi.

46

DFD Rule 37(2), (3). See paragraph 9.21. DFD Rule 43. See DFD Rule 18(3). DFD Rule 18(4). DFD Rule 48. DFD Rule 54(4). DFD Rule 57(1). See DFDA s.145A.

47

48

49

50

51

52

53

54

ADFP 201 VOLUME 1 910 Exclusion of Evidence Illegally Obtained 9.48 Where evidence is obtained in contravention of Part VI of the DFDA, the judge advocate may not admit the evidence unless he is of the opinion that: a. admission of the evidence would substantially benefit the public interest in the administration of justice; and this benefit would outweigh any prejudice to the rights and freedoms of any person, including the accused person, that has occurred, or is likely to occur, as a result of the 55 contravention or the admission of the evidence.

b.

No Case Submission 9.49 At the close of the prosecution case, the accused person may submit that there is insufficient 56 evidence to support the charge. A submission of no case is to be determined by the judge advocate. If the judge advocate is of the opinion that there is insufficient evidence to support the charge, he should direct the court to dismiss the charge. The judge advocate may, of his own motion, give a ruling that there is insufficient evidence to support the charge, but he is not obliged to give such a 57 ruling. FUNCTIONS OF THE PROSECUTOR Appointment 9.50 The prosecutor is nominated by the authority convening a court martial or referring a matter to a DFM, and undertakes a serious and difficult task. The prosecutor is not an independent authority as is the case in civil courts but is required to exercise independence of thought, integrity, and judgement in discharging a duty of impartiality and fairness in advising the convening authority and in presenting the prosecution case to the tribunal. 9.51 The duties of a prosecutor at summary proceedings are set out at paragraph 7.45 to 7.51 of Chapter 7 and the following materials relate to the duties of prosecutors before courts martial and Defence Force Magistrates. It is appropriate for prosecutors at summary proceedings to refer to the following materials in relation to their general conduct before Service tribunals. 9.52 The prosecutor should consider the matters set out at paragraphs 8.45 to 8.56 of Chapter 8 in preparation of the case against an accused member. Prosecution Opening Address - Plea of Not Guilty 9.53 Before the first prosecution witness is called to give evidence at a trial by court martial or Defence Force magistrate, the prosecutor is required to make an opening address to the court. This 58 address must be carefully prepared before the trial and in it the prosecutor must state briefly: a. the elements of the offence charged which have to be proved before the accused can be convicted; the alleged facts relied upon to support the charge;

b.

55

DFDA s.101ZB. DFD Rule 44. DFDA s.132(1); 132(4A). DFD Rule 42.

56

57

58

ADFP 201 VOLUME 1 911 c. the nature of the evidence which he proposes to adduce to prove the alleged facts; and any statutory alternative charge the prosecutor may seek to rely upon if the primary charge is not made out.

d.

9.54 The prosecutor has a general duty to present the prosecution case moderately and objectively, not pressing for a conviction nor emphasizing the iniquity of the accused. Within these limits the prosecutor has a discretion in the manner and length of his or her opening address. Reference should not be made to any evidence which is likely to be inadmissible because the court should not be alerted to the existence of evidence which it may not be entitled to hear. The defending officer should inform the prosecutor in advance, if practicable, if he intends to object to any part of the evidence so that the prosecutor can determine whether or not to make reference to that evidence in the course of his opening address. Outline of Material facts by Prosecution after Conviction on Guilty Plea 9.55 Where an accused has entered a plea of guilty which has been accepted by the tribunal, and a conviction is recorded, then the prosecutor is required to inform the tribunal of the material facts 59 which show the nature and gravity of the offence . Again the prosecutor should outline the facts of the case objectively and moderately, with due regard to matters reflecting the gravity of the offence. It must be borne in mind that while the elements of an offence have been established, the convicted person may dispute facts which are raised by the prosecutor in support of the case and that the prosecution may be called upon to adduce evidence in the normal manner to substantiate those disputed facts. In presenting the material facts the prosecutor should not refer to any evidence likely to 60 be inadmissible. General Responsibility in the Presentation of the Prosecution Case 9.56 It is not the duty of the prosecutor to obtain a conviction by all means at his or her command. The prosecutor's responsibility to the tribunal in presenting the case referred by the Convening Authority to that tribunal is to ensure that all the relevant facts are put to the tribunal competently, in an intelligible form, and in a fair and impartial manner. In appearing before a Defence Force magistrate the prosecutor should raise any relevant matters of law which would assist the Defence Force magistrate in application of the law to the facts. In appearing before a court martial or Defence Force magistrate, the prosecutor shall assist the tribunal at all times by drawing attention to any apparent errors or omissions of fact or law, or procedural irregularities which ought to be corrected. In particular the prosecutor is to pay careful attention to the summing up by a judge advocate to a court martial and is to be prepared to assist the judge advocate in drawing attention to the matters recited above. 9.57 A prosecutor shall not press for a conviction beyond putting the case for the prosecution fully and firmly and particularly shall not, by language or conduct, endeavour to inflame or prejudice the tribunal against an accused. 9.58 A prosecutor is not to urge any argument of law that he does not believe to be of substance or any argument of fact that does not, in the professional view of the prosecutor, carry weight. Responsibility of the Prosecutor in the Sentencing Process 9.59 A prosecutor has an active role in assisting the tribunal in arriving at an appropriate sentence although the prosecutor must not, by advocacy, attempt to persuade the court to impose a particular or a harsh sentence. 9.60 The prosecutor is to adduce evidence of the particulars of service of a member in the Defence Force, particulars of any previous convictions of a Service or civil nature, fairly test any

59

DFD Rule 49. See paragraph 9.54.

60

ADFP 201 VOLUME 1 912 evidence put forward by a convicted person so far as that evidence appears to require it, and adduce 61 such other evidence as the tribunal requires . When adducing evidence of any previous convictions, the prosecutor is to have regard to instructions issued by the convening authority as to whether or not 62 spent convictions should be disclosed to the tribunal . 9.61 The responsibility to assist the tribunal in this process is a positive duty and should be undertaken as a matter of course unless the tribunal indicates that particular matters need not be addressed. Where a tribunal invites the further assistance of the prosecution on the question of sentencing, again, the prosecutor is under a positive duty to provide that assistance subject only to the professional judgement of the prosecutor as to his responsibility to remain fair and impartial. 9.62 In addition to the matters mentioned in paragraph 9.60 above, and depending upon the circumstances of the case and any stated requirements for assistance on the part of the tribunal, a prosecutor's address on sentence may cover any or all of the following matters: a. a presentation of the material facts, including any circumstances of aggravation or mitigation, and to the extent that such facts have not already been fully canvassed such presentation will be particularly relevant where a person has been convicted by a summary authority and has elected to be punished before a court martial or Defence Force magistrate; whether the convicted person has spent any time in custody awaiting trial; whether the convicted person has made, or has offered to make, restitution or reparation; whether the convicted person has co-operated or is co-operating in any investigation or prosecution of alleged co-offenders; an outline of the range of sentencing options and the relevant laws governing sentencing of the convicted person (including the DFD (Consequences of Punishment) Rules); a reference to any authorities that may indicate the appropriate sentencing principles that should be applied by the tribunal; a reference to any recent sentences imposed in similar cases, including the extent to which the cases are comparable factually, and the nature of the plea; a reference to any sentence imposed in respect of a co-accused who was convicted and punished separately, and the relative involvement of the convicted person presently before the tribunal; the prevalence of the relevant offence, its effect upon the military community and, if appropriate, the need for possible future offenders to be deterred (in this regard if the prosecutor wishes to address on 'prevalence' he must call evidence that the offence is a prevalent one); where a defending officer or the tribunal suggests a possible manner of disposition which in the professional experience and judgement of the prosecutor would be outside the range normally applied in the exercise of a sound sentencing discretion, a reference to possible alternative options.

b. c.

d.

e.

f.

g.

h.

i.

j.

9.63 Where a convicted person is unrepresented or where for reasons of justice it is appropriate (as where a convicted person is represented by a non-legal officer and the prosecutor is a legal

61

DFD Rule 50(2). See paragraph 8.46

62

ADFP 201 VOLUME 1 913 officer) the prosecutor shall assist the tribunal in raising any mitigating circumstances of which he may have knowledge relevant to consideration of the sentence of the convicted person. 9.64 In cases involving dishonesty, the Prosecutor should consider, and obtain instructions from the Convening Authority, on whether an order for restitution under s.83 of the DFDA or reparation under s.84 (as appropriate) should be sought from the court. FUNCTIONS OF OTHER OFFICIALS AT A COURT MARTIAL Functions of the Clerk
63

9.65 The role of the clerk at a court martial is similar to the combined functions of the sheriff's officer and the judge's associate in a civil court. Apart from specific duties which are set out in the 64 Order of Procedure the clerk carries out such duties as the President and judge advocate may require. His duties include the following: a. b. c. d. reporting to the President when the proceedings are ready to commence; calling all persons in the courtroom to attention when the court enters and withdraws; reading the convening order; asking, in open court, whether the prosecutor or accused object to the composition of the court, or to the recorder or the interpreter; administering the oath or affirmation to the recorder; distributing copies of the charge sheet to the President and members of the court; administering the oath or affirmation to witnesses; marking documents or objects for identification or as exhibits and keeping a current list 65 of MFIs and exhibits for the judge advocate; and producing and showing exhibits to a witness when requested to do so by the prosecutor, the defending officer or judge advocate.

e. f. g. h.

i.

Functions of the Orderly 9.66 The role of the orderly at a court martial is to attend to any administrative matters which may arise in connection with the trial. He is available to co-ordinate travel and meal arrangements of the President and members of the court or the judge advocate. The orderly should remain outside the court until summoned by the President and is to maintain order in the vicinity of the court. He may also be required to assist in removing any person who creates a disturbance in the court. When the court is closed for any reason the orderly is to ensure that no-one is allowed to remain in the immediate vicinity; when the court adjourns, he is to ensure that the courtroom is adequately secured. In relation to witnesses, the orderly has the following duties: a. to ensure that no witness enters the court until called to give evidence, except with the permission of the President;

63

See paragraphs 8.76 to 8.81 re the pre-trial duties of the clerk. See Annexes A and B of this Chapter. An MFI is a document or object which is 'marked for identification'. An MFI is not evidence and should be retained by the party who produced it.

64

65

ADFP 201 VOLUME 1 914 b. to ensure that no witness leaves the vicinity of the courtroom without the permission of the President; and to ensure that a witness who has been examined does not communicate with those witnesses who have not yet given evidence.

c.

9.67 In relation to the procedure for calling witnesses, see Note (6) to Item 38 in the Order of Procedure. 9.68 The orderly has no specific pre-trial duties. However, whenever it is practicable to do so, he should report to the President and determine whether any matters require attention before the trial. Functions of the Escort 9.69 The escort must ensure that the accused is seated in the court by time at which the trial is due to commence. During the proceedings, when the accused is seated, the escort should be seated, and when the accused is required to stand the escort should stand. If the accused gives evidence, the escort must accompany him to the witness box and stand behind him. If the President allows the accused to be seated, whilst giving evidence, the escort may sit in close proximity to him. While the accused is in court, the escort must remain near enough to him to enable the escort to exercise effective physical control. 9.70 The escort is personally responsible for restraining the accused, should he make any attempt to evade trial or to interrupt the proceedings at the trial, and for keeping the accused in safe custody while the court is adjourned. The responsibility of the escort does not end until the accused has been told that he is free to leave the court, or, if sentenced to imprisonment or detention, has been delivered to the officer in charge (or his delegate) of the prison or detention centre. FUNCTIONS OF THE RECORDER Requirement to Keep a Record 9.71 A court martial is required to keep a record of its proceedings and to include in that record 66 such particulars as are provided for by the Rules of Procedure. The particular requirements of the Rules of Procedure are discussed in succeeding paragraphs. Method of Recording 9.72 The proceeding of a trial by court martial shall, if practicable, be recorded verbatim. For this purpose the Defence Legal Office has a standing offer in place for the recording and transcription of the proceedings of courts martial. Arrangements for the use of the contractors services should be made by the convening authority. The advice of an ADF legal officer should be sought. 9.73 In some cases it may not be practicable for the proceedings to be recorded verbatim. In this situation the proceedings must be recorded in sufficient detail to enable the course of the proceedings to be followed and the merits of the case to be judged, from the record. In particular: a. subject to subparagraph b., evidence should be taken down in narrative form as nearly as possible in the words used; if the judge advocate so directs, a particular question and the answer to it shall be taken down verbatim; a record shall be made of the proceedings relating to each objection, submission or application;
67

b.

c.

66

DFDA s.148. DFD Rule 54.

67

ADFP 201 VOLUME 1 915 d. subject to subparagraph e., addresses by the prosecution and defence and the summing up by the judge advocate shall be recorded to such extent as the judge advocate sees fit; and if the prosecution or defence so requires, a record shall be made of any particular point in the address by the prosecution or defence or summing up by the judge 68 advocate.

e.

Preparing a Transcript 9.74 Where the proceedings are recorded verbatim the recorder is required to prepare or cause to 69 be prepared a transcript in writing. The transcript is to be authenticated by the person who made it. As to certification of the record of proceedingssee paragraph 9.46.

Annex: A. B. C. D. E.

Order of Procedure at a Trial by Court Martial (Diagram) Order of Procedure at a Trial by Court Martial Courts Martial - Recording the Proceedings Court Layout National Guidelines Governing the Use of Interpreters in the Australian Legal System

68

DFD Rule 54. DFD Rule 54(3).

69

ADFP 201 VOLUME 1 ANNEX A TO CHAPTER 9

ORDER OF PROCEDURE AT A TRIAL BY COURT MARTIAL (DIAGRAM)

To be issued with AL1

ADFP 201 VOLUME 1 ANNEX B TO CHAPTER 9

ORDER OF PROCEDURE AT A TRIAL BY COURT MARTIAL

1. The judge advocate, clerk, recorder, defending officer, prosecutor, accused, escort and audience take their places in the court. Notes (1) All are to be seated in the court before the time at which proceedings are due to commence. The arrangement of the court-room is shown at Annex D. The dress for the judge advocate is the appropriate Service dress (without headdress) and a plain black undergraduate gown. Judge advocates who are practising barristers may wear their normal silk or stuff gown in lieu of an undergraduate gown. Barristers who are not legal officers but who are appearing as counsel should wear full robes. All members of the Defence Force, including Reserve legal officers appearing as counsel should wear the uniform prescribed in the Court Martial Administrative Order (see Chapter 8, paragraphs 8.31- 8.33). All witnesses are to remain outside the court. A court martial is a public trial and the public must normally be admitted to the extent of the accommodation available (see Chapter 8, paragraph 8.35).

(2)

(3) (4)

2. The clerk reports to the President, outside the court, that the proceedings are ready to commence. Note (1) Before reporting, the clerk should ensure that all witnesses are present.

3. The President and members of the court assemble and take their seats. Reserve members remain standing at one end of the court table. Notes (1) (2) On entry of the President and members, all persons in the court are to stand. Before the President and members take their seats, all uniformed persons in attendance salute. All persons not in uniform bow. Members of the court sit in order of seniority, the officer next senior to the President sits on his right, the next senior on his left and so on. The President declares the court open and directs the clerk to read the convening order.

(3)

4. Note (1)

The clerk stands and reads aloud as follows: The following convening order was made by .................................................................... (name and rank of convening authority) on ........................(date). He then reads the whole convening order. On completion, he announces the names of the prosecutor and the defending officer.

5. The clerk asks the prosecutor whether he objects to the President or any members of the court or to the judge advocate.

ADFP 201 VOLUME 1 9B2 Note (1) Although Defence Force discipline legislation makes no specific provision for the prosecutor to make objections in relation to the composition of the court, where he is aware of some fact that is likely to vitiate the trial or, at least, raise a doubt as to whether justice could be seen to be done, he has a duty to raise the matter before the court is sworn. For example, where he is aware of the existence of a serious conflict of interest between the accused and one of the members of the court, he should make this matter known. As to what may constitute a conflict of interest see Chapter 8, paragraph 8.49.

6. If the prosecutor makes no objection, or after his objections have been dealt with, the clerk asks the accused if he objects to the President or any member of the court or the judge advocate (Rule 34). Notes (1) (2) As to eligibility see DFDA sections 116 and 117. An accused may object on grounds of ineligibility or bias (DFDA s.141(2), (3)). Any evidence adduced in support of the objection is to be unsworn. If more than one member is objected to, the objection to the junior member is to be dealt with first. The decision on any objection is to be made by the judge advocate, including where an objection is made to himself (DFDA s.141(6)). An objection should be upheld where the judge advocate is satisfied that it has been substantiated by the accused. In determining whether an objection should be upheld, the judge advocate should also have regard to whether a similar objection had been lodged with the convening authority before the court had assembled. As to replacement of members or the judge advocate or dissolution of court martial - see DFDA sections 124 and 125.

(3)

7. After objections to the composition of the court have been dealt with, the President directs any remaining reserve members to withdraw. 8. The judge advocate administers the oath/affirmation separately to the President and members of the court. Notes (1) The judge advocate may permit a member to take an oath in such a manner as the person taking the oath declares to be binding on his conscience (Rule 38(1)). The wording of the oath is as follows: (Rule 35(2)) I ................................... swear by Almighty God that I will duly administer justice according to law without fear or favour, affection or ill-will, that I will well and truly try the accused person(s) before the court according to the evidence and that I will not disclose the vote or opinion of any member of the court martial unless required to do so in due course of law. (3) Where a person does not wish to take an oath he may make an affirmation in the following form: I ................................... solemnly sincerely and truly declare and affirm that I will duly administer justice according to law without fear or favour affection or ill-will, that I will well and truly try the accused person(s) before the court according to the evidence and that I will not disclose the vote or opinion of any member of the court martial unless required to do so in due course of law. 9. The clerk informs the court of the name of the recorder and asks the prosecutor and the defending officer whether they object to this person being employed to record the proceedings. (The same procedure is followed in respect of an interpreter if one is required.)

(2)

ADFP 201 VOLUME 1 9B3 Notes (1) (2) For definition of recorder see Rule 3. The accused may enter an objection to a recorder or interpreter on the ground of partiality or incompetence or both (Rule 37(2)).

10. If there is no objection to the recorder the judge advocate directs the clerk to administer the oath to the recorder (and interpreter). On completion, the accused stands. Notes (1) The oath or affirmation to be taken or made by a recorder is as follows: I ................................. swear by Almighty God (solemnly, sincerely and truly declare and affirm, if affirmation is being made), that I will, to the best of my ability, truly record or transcribe (or both) the evidence to be given before this court and such other matters as may be required and will deliver to the court a true transcript of the same. (Rule 37(5)(a)). (2) The oath or affirmation to be taken by an interpreter is as follows: I ................................. swear by Almighty God (solemnly, sincerely and truly declare and affirm, if affirmation is being made), that I will, to the best of my ability truly interpret and translate as I will be required to do. (Rule 37(5)(b)). 11. The judge advocate reads the heading of the charge sheet and asks the accused whether he admits to being the person named therein and whether he is now, or was at the time stated in charges, subject to the DFDA. Notes (1) The purpose of seeking admissions as to identity and jurisdiction is to expedite the proceedings by removing the necessity for the prosecutor to adduce evidence of matters that generally should not be in issue. However, an accused is under no obligation to make any admissions whatsoever in relation to the charge against him. Where the accused does not admit to being the person named in the charge sheet or to being subject to the DFDA at the relevant time, the prosecution must adduce formal evidence of these matters. As to the time limitation on charges and the jurisdiction of a court martial, see DFDA sections 96 and 115.

(2)

12. The accused may admit that he is the person named in the charge sheet and that he is, or was at the relevant time, subject to the DFDA. Note (1) The accused, himself, should answer that he admits or does not admit either or both of matters.

13. The judge advocate informs the accused of his right to make applications or objections in connection with the trial before being asked to plead to the charges. Notes (1) At any time before an accused person is asked to plead at a trial by a Service tribunal, he may do any of the following (DFDA s.141): a. apply for an adjournment on the ground that he has not had an adequate opportunity to prepare his defence or to choose a person to represent or advise him;

ADFP 201 VOLUME 1 9B4 b. c. apply to secure the attendance of witnesses or additional witnesses on his behalf; if he is charged with more than one Service offence, apply for each charge to be heard separately; if he is charged with one or more other persons, apply to be dealt with separately on the ground that he would otherwise be prejudiced in his defence; make such other applications as he considers relevant in connection with the trial; enter an objection that he is not liable to be tried for the Service offence with which he has been charged, by virtue of previous acquittal or conviction; enter an objection that the charge was made outside the time limitations provided in DFDA s.96; object that he has, in the exercise of the royal prerogative of mercy, been pardoned for the Service offence with which he has been charged or for a civil court offence that is substantially the same; object that the charge does not disclose a Service offence or is otherwise wrong in law; object that the court martial does not have jurisdiction.

d.

e. f.

g.

h.

i.

j. (2)

An accused may, at any time, apply to the court on any reasonable grounds for an adjournment of proceedings (Rule 39). The court may allow the prosecution to withdraw a charge (or charge sheet) before the accused is asked to plead on it (Rule 13). If the accused wishes to make an application or objection, this matter is then heard by the

(3)

14. court. Notes (1) (2)

DFDA s.134. When an application or objection has been made by the accused, the judge advocate may decide that the matter should be heard in the absence of the court. If he does so decide, he may request that the President and members of the court withdraw. The President should always comply with such a request. All uniformed persons replace their caps; all persons in court stand; salutes are exchanged and the court withdraws. The judge advocate then takes for the time being the powers and duties of the court or the President (DFDA s.134(5)). The hearing by the judge advocate forms part of the proceedings of the court and takes place and is recorded in the normal manner (DFDA s.134(4)). The procedure to be followed at the hearing in the absence of the court is as follows: a. The judge advocate asks the defending officer to make submissions in relation to the application or objection. The defending officer outlines the matter in issue, calling witnesses, as may be necessary. The prosecutor may also call witnesses in reply; the procedure for calling witnesses is explained in Note 6 to Item 39. The form of oath or affirmation to be taken by a witness is as at Item 26. All witnesses called in this way are sworn, examined, cross-examined and re-examined in the usual way.

(3)

(4)

(5)

b.

ADFP 201 VOLUME 1 9B5 c. d. e. f. The defending officer sums up the case in support of the application or objection. The prosecutor may make submissions opposing the application or objection. The judge advocate gives his decision. The judge advocate informs the court, through the clerk, that the court is ready to resume. The President and members of the court then return to court room and the usual formalities are followed. When all persons are seated, the trial resumes.

g.

15. If there are no applications or objections made by the accused, or after these matters have been dealt with, the clerk gives copies of the charge sheet to the President and members of the court. Note (1) If the charge sheet has been amended as a consequence of an application or objection by the accused, the clerk must ensure that a fresh charge sheet is produced before copies are given to the members of the court. It may be necessary for the judge advocate to seek an adjournment until a fresh charge sheet can be produced.

16. The judge advocate reads each charge separately and asks the accused whether he pleads guilty or not guilty to the charge. Notes (1) The judge advocate should address the accused as follows: On the first charge, how say you, are you guilty or not guilty?reading each charge in turn and asking the question after each charge. (2) If two or more accused are named in the same charge, the judge advocate, after reading the charge in question, should put the above question to each such accused in turn, starting with the one named first in the charge. The accused may plead guilty to an alternative offence, ie an offence not shown on the charge sheet but one of which the court could convict (DFDA s.142 and Schedule 6). If there is nothing contained in the record or summaries of evidence which could be said to reduce the charge to some lesser offence for which a verdict may be returned, the prosecutor ought not to accept the plea of guilty of that lesser offence. The accused, himself, must plead; it is not sufficient for the defending officer to do so on his behalf, or to indicate that the accused wishes to plead guilty. If the accused refuses to plead, the trial proceeds as if he had pleaded not guilty. Where there is more than one charge against an accused person and the charges are contained in more than one charge sheet, the accused should be arraigned and tried on one charge before being arraigned and tried on a charge in another charge sheet; (Rule 41(2)). A plea of not guilty may be substituted by the court at any time during a trial, where it appears to the judge advocate that an accused person does not understand the effect of his plea of guilty (Rule 43).

(3)

(4)

(5) (6)

(7)

17. If the accused pleads guilty to any charge, the judge advocate ensures that the accused understands the charge and the difference of procedure which will result from the plea of guilty. Court withdraws, if so requested by the judge advocate.

ADFP 201 VOLUME 1 9B6 Notes (1) The judge advocate must ensure that an accused person who is unrepresented does not suffer any undue disadvantage as a consequence of that fact (Rule 32(c)). Care must be taken to ensure that the accused fully understands the elements of the offence to which he is pleading guilty, and this is particularly the case where a possible defence is disclosed in the record or summaries of evidence. If during the course of the trial, it appears to the judge advocate that a plea of guilty has been entered in error or that the accused did not understand the effect of the plea, the judge advocate is to substitute a plea of not guilty and proceed accordingly (Rule 43). The accused should also be informed that the facts of the case, as the prosecution believes them to exist, will be outlined to the court to assist the court to determine punishment. Court returns (if it has withdrawn).

(2)

(3)

(4)

18.

19. Accused may inform the court that he wishes to withdraw his plea of guilty. (If he does this proceed as at Item 37.) or The judge advocate may advise the court to proceed as if the accused had pleaded not guilty. (If he does this, proceed as at item 37.) 20. When the accused has pleaded not guilty to any of the charges, or to an alternative offence of which he might be convicted, the judge advocate should proceed as at Item 37. The prosecutor then makes his opening address. Notes (1) Where an accused pleads guilty to an alternative charge, the court is required to accept the plea provided the convening authority notifies the court that he does not object to acceptance of the plea (DFDA s.132(3)). Where, in the view of the defending officer, it would be unfair to the accused that the court, having heard the prosecutor's opening address and accepted a plea of guilty on some charges should try other charges to which the accused has pleaded not guilty, he should apply to sever those charges. The fact of having pleaded guilty to a charge or charges could, in certain circumstances, render it impossible for the court to approach the remaining charges with an open mind. If such a procedure is followed and the defence submission upheld, the court should proceed as at Item 22 on those charges to which the accused has pleaded guilty and leave the other charges to be tried by a new court.

(2)

21. The court re-opens. If there is no charge to be tried, the President announces that the plea(s) of guilty is recorded and that the prosecutor is not required to proceed on any charges to which the accused has pleaded not guilty. The trial then proceeds as at Item 22. 22. Where accused has pleaded guilty to all charges. The judge advocate should ask the court to record a plea of guilty. 23. The judge advocate then makes the following statement: The accused does not, by pleading guilty to the charges, admit the truth of all of the facts alleged by the prosecution. He may dispute some of them in his statement in mitigation of punishment, but by his plea of guilty to the charges, he has admitted the truth of sufficient facts to substantiate the charges. The facts of the case, as the prosecution believes them to exist, will now be outlined to you to assist in your consideration of punishment.

ADFP 201 VOLUME 1 9B7 24. The prosecutor informs the court of the material facts relating to the commission of the offences. Note (1) The prosecutor should outline the facts of the case objectively and moderately in order that the court will be aware of the gravity and circumstances of the offences. He should not make any reference to evidence which is inadmissible. Should the defending officer believe that some of the evidence which the prosecutor will mention is not admissible he may object and the question of admissibility will then be determined by the judge advocate, in the absence of the court if need be.

25. The prosecutor adduces evidence of prior convictions of the accused, relevant particulars of his service in the Defence Force (if the accused is a member of the Defence Force or was so at the time of commission of the offence) and other matters relevant to punishment as the court requires. Notes (1) (2) See DFDA s.70 and Rule 50. The clerk should, before the trial, provide the prosecutor with the Form PD103 Conduct Record of the accused. This record should contain relevant particulars of the accused's service in the Defence Force and particulars of any previous convictions for Service offences, civil court offences and overseas offences. When adducing evidence of any previous convictions, the prosecutor is to have regard to instructions issued by the convening authority as to whether or not spent convictions should be disclosed to the tribunal (see paragraph 8.46). A copy of this record should also be given to the defending officer before commencement of the trial. The record should be tendered as evidence by the prosecutor without comment on the matters contained therein, unless there is a need to clarify any of them. The prosecutor is also required to cause evidence to be adduced of any other matters relevant to punishment etc as may be required by the court. The nature of this evidence will vary according to the circumstances of the case. For example, where the state of health of the accused may be relevant to the consideration of punishment, the prosecutor may be required to produce the accused's medical records. Unless the requirement is obvious, the prosecutor should await the court's instructions in relation to evidence of other matters.

(3)

(4)

(5)

26. The defending officer may call witnesses as to the accused's character or adduce any other evidence relevant to punishment. After being sworn or affirmed, witnesses may be cross-examined by the prosecutor, re-examined by the defending officer and, if necessary, asked questions by the court and the judge advocate. Notes (1) (2) (3) Rule 50(2). The procedure for calling witnesses is explained in Note 6 to Item 39. The President may require a witness to give evidence on oath or affirmation (DFDA s.138(4)). Other than in exceptional circumstances, eg a child of tender years, the President should always require that the witness give evidence on oath or affirmation. He should also invite the witness to choose whether to give evidence on oath or on affirmation. The President may permit a person to take an oath in such a manner as the person taking the oath declares to be binding on his conscience (Rule 38).

(4)

ADFP 201 VOLUME 1 9B8 (5) Subject to Note (4) the oath to be taken by a witness may be in the following form: I ..................., swear by Almighty God that the evidence I shall give shall be the truth, the whole truth and nothing but the truth. (6) If an affirmation is to be made, the words solemnly, sincerely and truly declare are substituted for the words in the oath swear by Almighty God. The usual evidentiary constraints do not apply with the same stringency to the plea in mitigationsee paragraph 8.75. However, where an accused or his defending officer put forward matters in mitigation which involve serious imputations on the character of a person who is not in a position, at that time, to challenge their accuracy, he should avoid mentioning any details which would enable the identity of the person impugned to be ascertained provided that this course is not contrary to the accused's interests. Where evidence by non-legal specialists is considered necessary in the interests of justice, the court may be adjourned until such time as the evidence can be obtained. The accused may request that the court take into consideration, in determining punishment, any other Service offence which is similar to the offence of which he has been convicted, which he admits having committed and which the court has jurisdiction to try. The court may, with the consent of the prosecutor take these offences into consideration in determining punishment. However, the court may not impose a separate punishment in respect of these offences. These admissions by an accused are not admissible as evidence against the accused in other proceedings. See DFDA s.77. Cross-examination by the prosecutor should usually be limited to clarifying matters which have been raised in examination-in-chief. The prosecutor should not attack the credit of a witness or impugn his character unless he believes that the evidence the witness has given is false and unless he intends to call affirmative evidence to support or justify the imputation.

(7)

(8)

(9)

(10)

27. The prosecutor may call witnesses or adduce other evidence on matters arising from the evidence adduced on behalf of the accused. Notes (1) In most cases there should be no need for the prosecutor to call evidence in response to the defence plea in mitigation. Where he believes that a defence witness has given false evidence or that, for other reasons, the court is likely to be misled in relation to punishment he should call appropriate evidence. If the accused in his evidence disputes any of the facts alleged by the prosecution in its opening address or raises any other fresh matter, the court may direct that evidence shall be called in the normal manner on the points in dispute. This course should be adopted only where the matter in issue may influence the punishment to be imposed. The defending officer may make a submission in mitigation of punishment.

(2)

28. Notes (1)

In his submission on punishment the defending officer should direct the court to the sentencing principles contained in DFDA s.70 and indicate how those principles apply to the facts of the case. In particular he should address the question of any consequential effects of the accused's conviction or proposed punishment (see DFDA s.70(2)(a)). For example, if there is a likelihood that the accused might be dismissed from the Defence Force, the court should be told how this punishment will affect an entitlement to pension or other financial benefits. Also, if reduction in rank is likely, the court should be aware of the total financial penalty involved in that punishment and be given an estimate of the period of time which will probably elapse before the accused is likely to be reinstated in his present rank.

ADFP 201 VOLUME 1 9B9 (2) The defending officer should also tender a pre-sentence report, in the format shown in Form PD 108 at the end of the plea in mitigation. See paragraph 8.77. The prosecutor may make submission on punishment; see Note.

29. Note (1)

See paragraphs 9.50 to 9.64.

30. The Court may require the prosecutor to adduce evidence of any other matters relevant to determining punishment. Note (1) Medical or other evidence should be called where knowledge of the state of health or background of the accused or other circumstances connected with him might aid the court to arrive at a just conclusion as to the appropriate punishment. See Note (5) to Item 25 and Rule 50(1)(c).

31. The prosecutor raises the question of restitution or reparation. In a relevant case, defending officer says whether or not the accused disputes title to property in question. Notes (1) A person who is convicted by court martial of an offence involving theft may be ordered to restore property, which is in the custody and control of the prosecution, to its rightful owner. The court may also make an order restoring property to its rightful owner and protecting an innocent third party who received the property in exchange from the convicted person. See DFDA s.83. A person convicted by court martial may also be ordered to pay reparation to a person who has suffered loss or damage by reason of the offence. The maximum amount of reparation which the court may order is five times the maximum fine which may be imposed on the convicted person (DFDA s.84).

(2)

32. The judge advocate asks the prosecutor or the defending officer to state any time which the accused has spent in custody awaiting trial, if the fact has not already been mentioned. 33. Notes (1) The judge advocate should direct the court on the sentencing principles which must be applied by the court in determining punishment. These principles are laid down in DFDA s.70 and are the principles of sentencing applied by the civil courts ... and the need to maintain discipline in the Defence Force. Some of the matters which should be addressed by the judge advocate in relation to these principles are set out below. Principles of Sentencing Applied by Civil Courts. The court must impose a sentence or make an order that is of a severity appropriate to the circumstances of the case. In addition to any other matters, the court must take into account such of the following matters that are relevant and known to the court: a. b. c. the nature and circumstances of the offence; other offences (if any) that are required or permitted to be taken into account; if the offence forms part of a course or conduct consisting of a series of criminal acts of the same or similar characterthat course of conduct; The judge advocate directs the court on the law relevant to sentencing.

(2)

ADFP 201 VOLUME 1 9B10 d. e. f. the personal circumstances of any victim of the offence; any injury, loss or damage resulting from the offence; the degree to which the person has shown contrition for the offence: (1) by taking action to make reparation for any injury, loss or damage resulting from the offence; in any other manner;

(2) g. h.

if the person has pleaded guilty to the charge in respect of the offencethat fact; the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or other offences; the deterrent effect that any sentence or order under consideration may have on the person; the need to ensure that the person is punished adequately for the offence; the character, antecedent, age, means and physical or mental condition of the person; the prospect of rehabilitation of the person; and the probable effect that any order under consideration would have on any of the persons family or dependants.

i.

j. k. l. m.

In addition the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order. Before imposing a fine, the court must take into account the financial circumstances of the person, in addition to any other matters that the court is required or permitted to take into account. (3) The Need to Maintain Discipline in the Defence Force. The second principle to be applied by courts martial in sentencing offenders is the need to maintain discipline in the Defence Force. The officers comprising the Service tribunal are entitled to apply their own experience and common sense in this connection. Other Matters. The judge advocate should direct the court as to the maximum punishment provided for the offence and should advise the court that each punishment imposed or order made must be in respect of a particular conviction and no other conviction. The court should also be informed that it is entitled to refer to Chapter 11 of this manual in the course of determining punishment but that if a question of law arises in relation to punishment the advice of the judge advocate must be sought. In such a situation, the court martial must reassemble and the President may then ask the relevant question of the judge advocate in open court. When the matter has been clarified the court will be cleared until such time as the punishment has been determined. Court is closed to consider punishment.

(4)

34. Notes (1)

The President is to declare the court closed. All persons present, with the exception of the President and members of the court, are to stand, salute the President (or bow) and withdraw.

ADFP 201 VOLUME 1 9B11 (2) Where any question of law arises in the course of determining punishment, the court must reconvene so that the judge advocate may give a ruling. The question must be asked by the President, and the ruling given by the judge advocate, in open court (DFDA s.133(3)). In relation to punishment, the court should refer to Chapter 11 of the Manual. The method of determining punishment is to be by majority of votes of the members of the court. In the case of an equality of votes, the President has the casting vote (DFDA s.133(3)). Members are required to vote orally, in order of seniority commencing with the most junior in rank (Rule 33). In an appropriate case, consideration should be given to whether the interests of justice would be served by recording a conviction without punishment and requiring the convicted person to give an undertaking to be of good behaviour for 12 months. Where it is proposed to impose a punishment of detention or a fine, consideration should be given to whether such punishment should be suspended. Where an accused requests that other offences be taken into consideration in determining punishment, and the prosecutor consents to this course, the court may in certain circumstances take these offences into consideration. See DFDA s.77. Each punishment imposed and each order made by the court must be imposed or made in respect of a particular conviction (DFDA s.66); also see section 74 of the Act re concurrent or cumulative punishments. In an appropriate case, the court must determine whether restitution or reparation orders should be made, and, in the latter case, determine the amount to be paid in reparation. See Note (2) to Item 31. Form of Finding and Punishment or Order. Where an accused has pleaded guilty to all charges, the finding and punishment (or order), which is known as a combined finding, should be made in writing. An example of how this may be done is shown below: COMBINED FINDING The accused having pleaded guilty to the first and second charges, the court accepts the plea and finds him guilty of the offences charged in the first and second charges and imposes the following punishments and/or makes the following orders: In respect of the first charge: fined $........... to be paid by instalments of $........... over ..... consecutive pays. In respect of the second charge: detention for a period of 30 days such sentence being suspended. (Signature of members of the court) ........................... .......................... ........................... ........................... ........................... (President) ................................... (Judge Advocate) ...................... (date) Note: As to the forms of finding and punishment (or order) where the accused has pleaded not guilty to any charges, see Items 53 and 56. (11) The combined finding by the court may be hand-written.

(3) (4)

(5)

(6)

(7)

(8)

(9)

(10)

ADFP 201 VOLUME 1 9B12 (12) The combined finding is signed by every member of the court, notwithstanding any difference of opinion there may have been among the members.

35. Court re-opened. Witnesses may also be admitted. The President reads the combined finding after it has been signed by the judge advocate. Notes (1) All participants return to the court and after the usual marks of respect have been made, resume their seats. The accused stands at his place. Before the combined finding is announced, it is to be scrutinised by the judge advocate. If he is satisfied that the punishment (or order) has been made according to law he countersigns the finding. If, in his opinion, the punishment or order has not been made according to law he is to inform the court and return the combined finding, unsigned, for further consideration. The court may be closed for this purpose. After reading the punishment or order the President may, if he sees fit, address the accused in explanation of the punishment or order.

(2)

(3)

36. The President orders the accused to be removed or informs him that he is free to leavesee Note (1) below. The President then declares that the court is dissolved and he and the other members of the court withdraw. Notes (1) Where the court has imposed a punishment of detention or imprisonment or the accused is already in custody for any other reason, the accused is to be given into the custody of the escort until delivered into custody of the officer in charge of the detention centre or prison, as the case may be. Otherwise, the accused is free to leave the court unattended. In either case, the accused is to salute the President and withdraw. When the President declares that the court is dissolved, all persons stand and pay the appropriate marks of respect. The President and members of the court then withdraw. WHERE THERE IS A CHARGE TO BE TRIED BY THE COURT 37. Judge advocate reports to the President whether witnesses are present and the trial ready to proceed. 38. Note (1) A prosecutor's duty is to present his case objectively and moderately, not pressing for a conviction nor emphasising the iniquity of the accused. Within these limits he has a discretion in the manner and length of his opening address, but he must outline the elements of the offence charged, the alleged facts upon which he will rely to support the charge and the nature of the evidence which he proposes to adduce to prove the alleged facts (Rule 42). The prosecutor should also address any statutory alternative charge upon which he or she might seek to rely if the primary charge is not made out. The prosecutor should not make reference to any evidence that is likely to be inadmissible. Prosecutor's opening address.

(2)

39. Prosecution witnesses called in turn, sworn, examined by the prosecutor, cross-examined by the defending officer, re-examined by the prosecutor and, if necessary, questioned by the judge advocate.

ADFP 201 VOLUME 1 9B13 Notes (1) The swearing of an oath or making of an affirmation is explained in Item 26. As to the procedure for calling witnesses, see note (6) below. Examination-in-Chief. see Chapter 6 paragraphs 6.331 et seq. Apart from non contentious matters such as the name and employment of the witness, leading questions, ie those questions which lead to or promote a particular response, may not be asked during examination-in-chief. A prosecutor must also ensure that his examination-in-chief does not extend to matters of which the accused has not been given notice. Cross-Examination. see Chapter 6 paragraphs 6.339 et seq. During cross-examination, a witness may be asked leading questions and may be questioned on any matters relevant to the issues before the court or relating to his credit. Questions suggesting fraud, misconduct or criminality should not be put where the defending officer does not intend to call affirmative evidence to support or justify the imputation unless he is satisfied that they are part of the accused's case and are not put solely for the purpose of impugning the witness' character. Scandalous or indecent questions should not be asked unless they are necessary to the matters in issue. Also the judge advocate may disallow questions designed to insult or annoy or which are needlessly offensive in form (Evidence Act 1995 s.41(1)). Where it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention should be drawn to what is going to be suggested about it so that he may have an opportunity of explanation. Re-examination. See paragraphs 6.381 to 6.383 of this manual. A party who has called a witness may re-examine that witness only on matters which have arisen out of crossexamination or where a particular question or line of questioning has been allowed by the judge advocate in the exercise of his discretionary powers. Questioning of Witness by the Judge Advocate. A judge advocate may ask questions of a witness (Rule 18(3)) where, in his opinion, it is necessary to do so. Such questions should be asked only when there is a need to clarify evidence which has been given by the witness. The judge advocate should keep his questions to a minimum so that he will not be seen to be conducting an independent inquiry into the case or adopting the mantle of the prosecutor. Procedure for Calling Witnesses. Witnesses may be called by either of two methods. First, if the court is equipped with a 'buzzer', the President may use it to summon the orderly and direct him to call the witness. Alternatively, the President may direct the clerk to go outside the court and call the witness. The witness is to enter the court wearing headdress (if he is in uniform) and approach the court table. He is to salute the President (or bow) and proceed into the witness box where he removes his cap. The clerk then administers the oath or affirmation after which the witness may be invited by the President to be seated. (Unless the evidence which the witness is to give is likely to be short, he should normally be allowed to sit.) After he has finished his evidence the witness is to replace his cap, salute the President and withdraw. Unless told by the court that he is no longer required, a witness is to remain within the vicinity of the court.

(2)

(3)

(4)

(5)

(6)

40. The Court may require any other person to be called as a witness where in the opinion of the judge advocate it is in the interests of justice to do so. Note (1) When a witness is called or recalled by the court, the prosecution or the defence may put such questions to the witness as seem proper to the judge advocate (Rule 19(3), (4)). The defending officer may submit that there is insufficient evidence to support the charge.

41.

ADFP 201 VOLUME 1 9B14 Notes (1) At the close of the case for the prosecution the accused may submit that there is insufficient evidence to support the charge (Rule 44). This submission may be properly made and upheld: a. when there has been insufficient evidence to prove an essential element of the charge; or when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that the court could not safely convict on it.

b.

(2)

A 'no-case' submission is to be determined by the judge advocate, usually in the absence of the court. If he decides that there is insufficient evidence to support any particular charge, the court must dismiss the charge. If the decision of the judge advocate results in there being no charge to be tried, the finding is prepared by the judge advocate, signed by the court, read in open court and the court is dissolved. See Notes to Item 36. Where the interests of justice require it, the judge advocate may, of his own motion, give a ruling that there is insufficient evidence to support the charge (DFDA s.132(4A)). The wording of the finding will vary according to the circumstances of the case.

(3)

(4)

(5)

42. The judge advocate asks the accused whether he requires an adjournment to prepare his defence. Notes (1) A court may adjourn from time to time and from place to place as appears to the court to be necessary or expedient having regard to the administration of justice or the exigencies of service (DFDA s.138(1)). The accused person or the prosecutor may at any time apply to the court, on reasonable grounds, for an adjournment (Rule 39). The most likely circumstances in which an accused would seek an adjournment would be for the attendance of witnesses or the production of other evidence. The court should consider any application for an adjournment on its merits. During adjournments, the members of the court may separate at any time before they consider their verdict. On the first occasion when they separate, the judge advocate should warn them not to talk about the case to anyone other than another member of the court. The judge advocate asks the accused whether he wishes: a. to give evidence as a witness on his own behalf (reminding him that if he does he will be liable to be cross-examined); or to remain silent.

(2)

(3)

43.

b. Note (1) 44. 45.

The accused is not bound by his election at this stage of the trial. See Note (4) to Item 46. The judge advocate asks accused whether he intends to call witnesses for the defence. The defending officer may make an opening address outlining the defence case.

ADFP 201 VOLUME 1 9B15 Note (1) Where the accused person intends to call a witness to give evidence as to the facts of the case (other than himself), he may, before he calls the first such witness, make an opening address to the Service tribunal stating the nature and general effect of the evidence which he proposes to adduce in his defence (Rule 45).

46. The accused, if he has applied to give evidence, goes into the witness box, is sworn or affirmed, gives evidence, may be cross-examined by the prosecutor, re-examined by the defending officer and, if necessary, may be asked questions by the judge advocate. Notes (1) Once the accused has elected to give evidence on oath or affirmation, he may be asked and is bound to answer, a question which may tend to incriminate him in the offence with which he is charged. Furthermore, if the accused has asked questions or adduced evidence which has tended to show that he is a person of good character or he has impugned the character of prosecution witnesses or a co-accused, he may be asked and is bound to answer questions which show that he has been convicted or tried of other offences or that he is a person of bad character (ACT Evidence Act sections 69, 70). The form of oath or affirmation for the accused is the same as for other witnesses; see Item 26. Should the defence suggest that the accused's character is good when it is not, the proper course is for the prosecutor to suggest in his cross-examination of the accused that the accused has been previously convicted (or whatever the facts may be). If this is not admitted under cross-examination, the prosecutor may call witnesses to establish the allegation of bad character. The accused is entitled to give evidence at any time during the hearing of the defence case, even if he has not previously applied to do so. However, if he indicates his intention to postpone giving evidence until after hearing other defence witnesses, he should be warned that the value of his evidence may be considerably discounted, as he will have been present in court listening to their evidence.

(2)

(3)

(4)

47. Witnesses for the defence called in turn, sworn, examined by the accused or his defending officer, cross-examined by the prosecutor, re-examined by defence and, if necessary, asked questions by the judge advocate. 48. Note (1) After the witnesses for the defence have given their evidence, the prosecutor may, by leave of the Service tribunal, call a witness or recall a witness to give evidence on any matter raised by the accused person in his defence in respect of which evidence could not properly have been adduced, or which could not reasonably have been foreseen, by the prosecution before the accused person presented his defence (Rule 44). The prosecutor makes closing address. The prosecutor may adduce evidence in rebuttal.

49. Notes (1)

In all cases, the prosecutor must make his closing address before the closing address by the accused or the defending officer (Rule 47(2)). In making his closing address, the prosecutor may comment on the evidence of the accused if he has given evidence. However, he may not comment on the failure of the accused, or of the wife or husband of the accused, to give evidence (ACT Evidence Act s.74) nor should he

(2)

ADFP 201 VOLUME 1 9B16 comment on the failure of the accused to call witnesses unless the circumstances are such that it might be fairly expected that those witnesses should and could be called. 50. Notes (1) Closing addresses by or on behalf of two or more accused persons who are charged on the same charge sheet must be made in the order in which their names are listed on the charge sheet. Where two or more accused persons are represented by the same person the person may make one closing address only (Rule 47(3), (4)). In his closing speech, a defending officer is not restricted merely to observations on the evidence of his witnesses; whatever occurs to him as desirable to mention on the whole case, he is at liberty to say. The judge advocate sums up. The defending officer makes closing address.

(2)

51. Notes (1)

Rule 48 provides that after the closing addresses (if any) at a trial by court martial, the judge advocate shall sum up the evidence and advise the court on the law relating to the case. Where the DFDA provides an alternative offence to the offence with which the accused has been charged, the judge advocate should direct the court in relation thereto. He should explain that where the accused is found not guilty of the offence with which he is charged, the court may convict him of a lesser alternative offence even though it has not been specifically charged. He should also point out the alternative offences provided in the Act in relation to the offence with which the accused is charged. In R v Lawrence Lord Hailsham L.C. made the following comments on the question of a judge's summing up:
The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case. The search for universally applicable definitions is often productive of more obscurity than light. A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge's notebook. A direction to a jury should be custom-built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.
1

(2)

(3)

(4)

In giving his or her direction to the Court, the Judge Advocate must provide specific guidance to ensure that the requirements of DFD Rule of Procedure 33 are complied with by the members of the Court. Rule 33 stipulates that, in respect of any question to be determined by the Court, the members must vote in order of seniority commencing with the most junior in rank. Failure to vote in such order (or to give a direction to that effect) constitutes a material irregularity, a substantial miscarriage of justice and provides grounds for successful appeal: Hembury v Chief of the General Staff [1998] HCA 47 923 Jul 1998.

52. The defending officer or the prosecutor may make submissions in relation to the judge advocate's summing up.

(1981) 73 Cr App R 1, 5

ADFP 201 VOLUME 1 9B17 Notes (1) Where a defending officer or prosecutor considers that the summing up by a judge advocate is defective in a material way, he should raise the matter before the court is closed. The judge advocate should hear argument in relation to this matter in the absence of the court. When the judge advocate has made a decision on the objection, the court is recalled. If the original direction was in error, the judge advocate should correct the error and give an accurate direction. When a judge advocate mistakenly misdirects a jury upon burden of proof the mistake must be corrected in the plainest possible terms (Archbold Criminal Pleading Evidence and Practice 1998 at 4-374). Court closed to consider finding.

(2)

53. Notes (1)

The only persons who may remain in the court are the President and members of the court (DFDA s.133(6)(b)). The guilt or innocence of the accused is to be determined by a majority of votes of the members (DFDA s.133(2)). In the case of an equality of votes on the question of whether the accused is guilty or not guilty as charged, the court is to find the accused not guilty (DFDA s.133(4)). The members of the court are to vote orally, in order of seniority commencing with the junior in rank (Rule 33). Where the court wishes to have any evidence or question of law clarified, the President should direct that the court be re-opened. He should then put the question orally to the judge advocate in open court. After the judge advocate has answered the question, the court should be closed again. Whilst the court is closed, the President may communicate with the clerk in order to cause the court to be opened. No other communication may take place between any member of the court and any other person. When the court has reached its finding on each charge, the findings are to be recorded and signed by each member. The court is then re-opened and the finding handed to the judge advocate. If he is satisfied that the finding has been made according to law the judge advocate is to countersign it. The President then reads the finding aloud. If the judge advocate considers that the finding has not been made according to law he is to inform the court of the particular deficiency and direct what course should be followed. If necessary, the court should then be closed whilst the court reconsiders its verdict or amends the finding, as the case may be. The court is then re-opened and the above procedure is repeated. Form of Findings. The following specimen findings cover most likely contingencies: a. Where there is only one charge. The court finds the accused guilty/not guilty. b. Where there is only one charge and it has been amended. The court finds the accused guilty (not guilty) on the charge as amended.

(2)

(3)

(4)

(5)

(6)

(7)

ADFP 201 VOLUME 1 9B18 c. Where there is more than one charge. The court finds as follows: First Charge Second Charge Third Charge Fourth Charge (as amended) d. Guilty Not Guilty Guilty Guilty

Where there is more than one accused. The court finds as follows: First Charge Second Charge A B A B Guilty Guilty Guilty Not Guilty

e.

Where part of a charge is proved. The court finds as follows: First Charge Second Charge Guilty of stealing $20 and a pair of binoculars. Not Guilty

f.

Where the court exercises its powers under s.142 of the DFDA and convicts a person of an alternative offence which is not specifically charged. The court finds the accused not guilty of intentionally destroying Service property, but guilty of negligently destroying Service property. or The court finds as follows: First Charge Not guilty but guilty of negligently destroying one pair of binoculars.

g.

Findings on alternative charges (where the alternative is specifically charged). If the accused is found guilty of a more serious offence, having pleaded not guilty to the lesser alternative offence, the court should not proceed further with the alternative, the finding being recorded as follows: The court finds as follows: First Charge Alternative to First Charge Guilty The court having found the accused guilty on the first charge, did not proceed with the alternative.

h.

Where the accused has pleaded guilty to one or more charges but not guilty to other charges and the plea of guilty has been accepted. The court finds as follows: First Charge Second Charge The accused having pleaded guilty, the court accepts the plea and finds him guilty. The prosecution having offered no evidence in support of this charge, the court did not proceed further with it.

ADFP 201 VOLUME 1 9B19 Example of Finding: FINDING The court finds as follows: First Charge Second Charge (as amended) Third Charge Alternative to third charge Not Guilty Guilty Guilty The court having found the accused guilty on the third charge did not proceed with the alternative. (Signature of members of the court) ................................. ................................. ................................. ................................. ................................. (President) .............................. Judge Advocate) .............................. (Date) Note: The finding of the court may be handwritten. 54. Court re-opened. Witnesses may be admitted. President hands record of court's finding to judge advocate. If the judge advocate is satisfied that the decision appears to have been made according to law, he countersigns the finding and inserts the date. 55. President reads the finding. a. If the finding is not guilty of all charges tried and there are no charges to which the accused has pleaded guilty: The President orders the accused to be removed or informs him that he is free to leave; see Note (3) to Item 56. The President then declares that the court is dissolved. He and the other members of the court then withdraw; see Note (4) to Item 56. b. If the finding is guilty of any of the charges or if there are any charges to which the accused has pleaded guilty: The procedure in relation to punishment as set out in Items 25 to 34 then Item 56 is to be followed. 56. Court re-opened. Witnesses may be admitted. The President reads the punishment(s) imposed or order(s) made by the court. The President then orders the accused to be removed or informs him that he is free to leave; see Note (3). The President then declares that the court is dissolved and he and other members of the court withdraw; see Note (4). Notes (1) The form in which a punishment or order should be recorded is along the following lines: The court having found the accused guilty of the second charge (as amended) and the third charge imposes the following punishments and/or makes the following orders: In respect of the second charge: To be fined ....... dollars to be paid in one sum.

ADFP 201 VOLUME 1 9B20 In respect of the third charge: To forfeit ........ months' seniority as a ............................... (rank) in the ........................... (Service) and to pay .................. dollars by way of reparation to ...................... (Signatures of members of the court) ................................... ................................... ................................... ................................... ................................... ................................ (Judge Advocate) ................................ (Date) (2) (3) The record of punishment (or order) may be handwritten. Where the court has imposed a punishment of detention or imprisonment or the accused is already in custody for any other reason, the accused is to be given into custody of the escort until delivered into the custody of the officer in charge of the detention centre or prison, as the case may be. Otherwise, the accused is free to leave the court unattended. In either case, the accused is to salute the President and withdraw. Then the President declares that the court is dissolved, all persons present stand and pay the appropriate marks of respect. The President and members of the court then withdraw.

(4)

ADFP 201 VOLUME 1 ANNEX C TO CHAPTER 9

COURTS MARTIAL - RECORDING THE PROCEEDINGS

1. The following is intended as an administrative checklist for members checking transcripts prior to review. The following general layout should be followed in each case: a. Each page of evidence should bear the surname of the witness and the word 'Examined', Cross-Examined' or 'Re-examined' in the top left hand corner. Where speeches have been made an indication of author should be given, eg 'ProsecutorSumming Up' or 'JARuling'. This notation should appear in a similar position on each page as appropriate. Each page should be numbered. Where a trial extends over more than one day, the page numbers should carry on from the previous day's record. The closing speeches for the prosecution and defence and the judge advocate's summing up should be divided into numbered paragraphs during transcription to facilitate reference on review. The front of the record should contain the following information: (1) names of members of the court, judge advocate, prosecutor, defending officer, recorder and other court officials; certificate (in accordance with Defence Force Discipline Rule 54(3),(4)); list of witnesses; list of exhibits; charges; finding by the court; and action under Part IV of the Defence Force Discipline Act (punishment or orders).

b.

c.

d.

e.

(2) (3) (4) (5) (6) (7)

ADFP 201 VOLUME 1 ANNEX D TO CHAPTER 9

COURT LAYOUT

JUDGE ADVOCATE

[SPACE]

MEMBER

PRESIDENT

MEMBER

RECORDER

CLERK

WITNESS BOX

PROSECUTOR

DEFENDING OFFICER

ACCUSED

ESCORT

AUDIENCE ________ ________ ________ _________ _________ _________ ________ ________ ________ ________ ________ ________ ________ ________ ________ ________ ________ ________

ADFP 201 VOLUME 1 ANNEX E TO CHAPTER 9

NATIONAL GUIDELINES GOVERNING THE USE OF INTERPRETERS IN THE AUSTRALIAN LEGAL SYSTEM
Each jurisdiction should ensure that: a. qualified independent interpreters are reasonable available in both metropolitan and rural areas and are available to the accused in criminal proceedings free of charge; such interpreters: (1) (2) possess linguistic competence; possess sufficient understanding of ethnic community cultures and social customs; possess an understanding of court procedures and legal terminology in the Australian context and, desirably, in that of the culture of the language in which they are interpreting; understand the proper role of the interpreter in legal interpreting including the need for impartiality and confidentiality; and are independent of litigants;

b.

(3)

(4)

(5) c.

persons involved in the legal system, and in particular legal practitioners, possess an adequate knowledge of legal interpreting services with a view to: (1) ensuring that legal interpreting services are provided when needed and, if there is any doubt about the need for an interpreter, ensuring that one is available; avoiding any reluctance to utilise such services where they are necessary; ensuring legal interpreting of an adequate standard; reducing any unnecessary use of interpreters; and increasing understanding of the technical difficulties which may be associated with interpretation and the difficulties which a non-English speaking person who is unfamiliar with the Australian legal system may encounter;

(2) (3) (4) (5)

d.

the existence of legal interpreting services is widely publicised, particularly in publications which circulate widely in ethnic communities; the services of a qualified interpreter are used wherever practicable in preference to other non-qualified interpreters; and undertakings regarding confidentiality are obtained from interpreters.

e.

f.

ADFP 201 VOLUME 1 CHAPTER 10

DEFENCE FORCE MAGISTRATES

Appointment of Defence Force Magistrates 10.1 Defence Force magistrates are appointed by the Judge Advocate General (JAG), by 1 instrument in writing, from the members of the judge advocate's panel. Before undertaking any duties in connection with his office, a Defence Force magistrate is required to make and subscribe an oath or 2 affirmation before the JAG or any officer authorised by the JAG for the purpose. Usually the oath or affirmation should be administered when the officer is first appointed as a Defence Force magistrate. The JAG, or an officer authorised by the JAG for the purpose, should retain the subscribed oath or 3 affirmation. The form of the oath or affirmation is set out below: a. Oath. l, A.B., do swear that l will well and truly serve Her Majesty in the office of Defence Force magistrate and that l will do right to all manner of people according to law, without fear or favour, affection or ill-will: So help me God! Affirmation. l, A.B., do solemnly and sincerely promise and declare that l will well and truly serve Her Majesty in the office of Defence Force magistrate and that will do right to all manner of people according to law, without fear or favour, affection or ill-will.

b.

Jurisdiction and Powers of a Defence Force Magistrate 10.2 A Defence Force magistrate has the same jurisdiction and powers as a restricted court 4 martial (including the powers of a judge advocate of a restricted court martial). In effect, this means 5 that a Defence Force magistrate may try any Service offence, other than a custodial offence, subject to the requirement to obtain the consent of the Attorney-General before proceedings are instituted under the Defence Force Discipline Act (DFDA) in respect of certain offences such as murder, rape or 6 manslaughter when committed in Australia. Where a charge or case is heard by a Defence Force magistrate he may give any ruling or exercise any discretion in connection with it that in accordance with the law in force in the Jervis Bay Territory, would be given or exercised by a judge in a trial by 7 jury. A Defence Force magistrate has the same power to impose punishments or make orders under Part IV of the DFDA as a restricted court martialsee paragraphs 8.4 and 8.5. Engaging the Jurisdiction and Powers of a Defence Force Magistrate 10.3 The jurisdiction and powers of a Defence Force magistrate are engaged only when a charge or case has been referred to him by a convening authority. The circumstances in which a charge or case may be referred to a Defence Force magistrate are:

DFDA s.127. As to appointments to the JA's panel see Part 4 of Vol 2. DFDA s.128. As per schedule of the DFDA. DFDA s.129 (1). Ie offences committed by a person whilst undergoing the punishment of detention. DFDA s.115(1), (1A); also note paragraph 2.3 as to limitations of jurisdiction of Service tribunals. DFDA ss 129, 134.

ADFP 201 VOLUME 1 102 a. where a convening authority of his own initiative decides that a charge which has been referred to him by a summary authority should be tried by a Defence Force 8 magistrate; where, in the course of a summary trial, an accused person has elected to be tried by a Defence Force magistrate, and a convening authority considers that it is not more 9 appropriate for the charge to be tried by court martial; where an accused person who is in breach of an undertaking to be of good behaviour for 12 months elects to be punished by a Defence Force magistrate and a convening authority considers that it is not more appropriate for the punishment to be imposed by 10 a court martial; where earlier proceedings before a Defence Force magistrate were discontinued and the convening authority considers that it is not more appropriate for the matter to be 11 dealt with by a court martial; and where a reviewing authority, the Defence Force Discipline Appeals Tribunal or the 12 Federal Court of Australia orders a new trial.

b.

c.

d.

e.

Referring a Charge to a Defence Force Magistrate 10.4 The factors to be taken into account by a convening authority before he decides to refer a charge to a Defence Force magistrate for trial are discussed in paragraphs 8.18 to 8.21 in the context of trial by court martial. As a general rule, a charge will be dealt with by a Defence Force magistrate where the offence to which it relates has substantial issues of law and does not require a court martial. 10.5 When a convening authority refers a charge to a Defence Force magistrate for trial, the convening authority is required in the order referring the charge to specify the Defence Force 13 magistrate who is to deal with it and to fix or provide for fixing of the time and place for the hearing. The convening authority is then required to send: a. to the Defence Force magistrate: (1) (2) b. the order referring the charge (see Forms 37, 38 in Part 12 of Volume 2); and the charge sheet;
14

and

to the accused person: (1) a copy of the order referring the charge (see Forms 37 and 38 in Part 12 of Volume 2); a copy of the charge sheet;

(2)

DFDA s.103(1). DFDA s.103(4). DFDA s.103(6). DFDA s.129A. DFDA s.103(2). DFD Rule 28. DFD Rule 29(2); see Rule 29(4) for the list of documents to be sent to a convicted person and DFM where a case is referred to a Defence Force magistrate for action under Part IV of the DFDA.

10

11

12

13

14

ADFP 201 VOLUME 1 103 (3) a copy of the record of evidence taken at proceedings in relation to the charge before a commanding officer, a superior summary authority or an examining officer; a copy of any other statement taken from a witness to be called for the prosecution; a list of the names of witnesses to be called for the prosecution; a list of exhibits to be given in evidence for the and prosecution; notification of the accused's rights.
16 15

(4)

(5) (6) (7)

and

Administrative Order for Hearing by Defence Force Magistrate 10.6 In addition to the documents discussed in paragraph 10.5, a convening authority is responsible for making the necessary administrative arrangements for the conduct of a hearing by a Defence Force magistrate. These arrangements involve giving notice of the date and place of the hearing to relevant authorities, nominating other participants (see paragraph 10.7) and giving directions on matters such as dress or ceremonial requirements. The arrangements may be promulgated by means of the message format shown in Form 36. Participants at a Hearing Before a Defence Force Magistrate 10.7 The usual participants at a hearing before a Defence Force magistrate, apart from the magistrate himself and the accused (or convicted person, if the hearing is for the purpose of punishment only) will be a prosecutor, defending officer, clerk, orderly and recorder. In some cases an escort may also be required to attend. The functions and duties of each of these persons at a hearing before a Defence Force magistrate are the same for all practical purposes as those at a court martial and reference should be made to the following paragraphs in Chapters 8 or 9: a. b. Prosecutor: See paragraphs 8.45 to 8.56. Defending officer: See paragraphs 8.57 to 8.75. Note: Paragraph 8.61 is not applicable because a Defence Force magistrate has no power to conduct a pre trial' hearing of the kind contemplated by DFDA s.141(7) in relation to courts martial. Clerk: See paragraphs 8.76 to 8.81. Note: In lieu of the documents specified in paragraph 8.80, the documents to be prepared and dispatched before commencement of a hearing by a Defence Force magistrate are as set out in paragraph 10.5. Orderly: See paragraphs 9.66 to 9.68. Escort: See paragraphs 8.82 to 8.83 and 9.69 to 9.70. Recorder: See paragraph 9.71 to 9.74.

c.

d. e. f.

Functions of a Defence Force Magistrate at a Hearing 10.8 When hearing a charge or a case, a Defence Force magistrate combines the functions of the President and the judge advocate at a trial by court martial. In particular he is required to ensure: a. that the proceedings are conducted in accordance with the DFDA and the Defence Force Discipline Rules (DFD Rules) and in a manner befitting a court of justice;

15

DFD Rule 29(2). See Form 25 in Part l2 of Volume 2.

16

ADFP 201 VOLUME 1 104 b. that an accused person who is not represented does not in consequence of that fact suffer any undue disadvantage; and that a proper record of the proceedings is made and that the record of proceedings 17 and the exhibits (if any) are properly safeguarded.

c.

Procedure at a Trial by a Defence Force Magistrate 10.9 In essence, the procedure to be followed at a trial by a Defence Force magistrate is similar to the procedure followed in criminal trials before civil magistrates and is set out in DFDA s.l35. The full trial procedure, together with appropriate notes, is contained in Annex A. Public Access to a Hearing by a Defence Force Magistrate 10.10 A hearing before a Defence Force magistrate is open to the public. Where the hearing is held in a secure place, that is a place to which entry is controlled by guards who are constables or 19 members of the Defence Force, the public must be granted reasonable access. A Defence Force magistrate may restrict access and reporting of proceedings where he considers it necessary in the interests of the security or defence of Australia, the proper administration of justice or public morals.
18

Annex: A. Order of Procedure at a Trial by a Defence Force Magistrate B. Order of Procedure at a Trial for Sentence by a Defence Force Magistrate

17

DFD Rule 36. DFDA s.140(1). DFDA s.140(4).

18

19

ADFP 201 VOLUME 1 ANNEX A TO CHAPTER 10

ORDER OF PROCEDURE AT A TRIAL BY A DEFENCE FORCE MAGISTRATE

1. The clerk, recorder, defending officer, prosecutor, accused, escort and audience take their places in the court. Notes (1) All are to be seated in the in the court before the time at which proceedings are due to commence. The arrangement of the court room is the same as for a trial by court; see Annex D to Chapter 9. The Defence Force magistrate is to wear the appropriate Service uniform (without headdress) and a plain black undergraduate gown. Defence Force magistrates who are practising barristers may wear their normal silk or stuff gown in lieu of an undergraduate gown. Barristers who are not legal officers but who are appearing as counsel should wear full robes. All members of the Defence Force , including Reserve Legal officers appearing as counsel should wear the uniform prescribed in the Administrative Order (see Chapter 10, paragraph 10.6 and Form 36). All witnesses are to remain outside the court, A trial by a Defence Force magistrate is a public trial and the public must normally be admitted to the extent of the accommodation available (see paragraph 10.10).

(2)

(3) (4)

2. The clerk reports to the Defence Force magistrate, outside the court, that the proceedings are ready to commence. Note (1) 3. Notes (1) (2) On entry of the Defence Force magistrate, all persons in the court must stand. Before the Defence Force magistrate takes his seat, all uniformed persons in attendance salute. All persons not in uniform bow. Before reporting, the clerk should ensure that all witnesses are present. The Defence Force magistrate takes his place in court.

4. The Defence Force magistrate declares the court open and reads the order by the convening authority referring the charge. 5. The clerk informs the name of the recorder and asks the prosecutor and the defending officer whether they object to this person being employed to record the proceedings. (The same procedure is followed in respect of an interpreter if one is required.) Notes (1) (2) For definition of recorder see Rule 3. The accused may enter an objection to a recorder or interpreter on the ground of partiality or incompetence or both (Rule 37(2)).

6. If there is no objection, the clerk administers the oath in the prescribed form. On completion, the accused stands.

ADFP 201 VOLUME 1 10A2 Notes (1) The oath or affirmation to be taken or made by a recorder is as follows (Rule 37(5)): I............................swear by Almighty God ("solemnly, sincerely and truly declare and affirm", if affirmation is being made), that I will, to the best of my ability, truly record or transcribe (or both) the evidence to be given before this court and such other matters as may be required and will deliver to the court a true transcript of the same. (2) The oath or affirmation to be taken by an interpreter is as follows (Rule 37(5)): I..............................swear by Almighty God (solemnly, sincerely and truly declare and affirm, if affirmation is being made), that I will, to the best of my ability, truly interpret and translate as I will be required to do." 7. The Defence Force magistrate reads the heading of the charge sheet and asks the accused whether he admits to being the person named therein and whether he is now, or was at the time stated in charges, subject to the DFDA. Notes (1) The purpose of seeking admissions as to identity and jurisdiction is to expedite the proceedings by removing the necessity for the prosecutor to adduce evidence of matters which generally should not be in issue. However, an accused is under no obligation to make any admissions whatsoever in relation to the charge against him. Where the accused does not admit to being the person named in the charge sheet or to being subject to the DFDA at the relevant time, the prosecution must adduce formal evidence of these matters. As to the time limitation on charges and the jurisdiction of a Defence Force magistrate, see Chapter 2 and paragraph 10.2, respectively, of this volume.

(2)

8. The accused may admit that he is the person named in the charge sheet and that he is, or was at the relevant time, subject to the DFDA. Note (1) The accused, himself, should answer that he admits or does not admit either or both of matters.

9. The Defence Force magistrate informs the accused of his right to make applications or objections in connection with the trial before being asked to plead to the charges. Notes (1) At any time before an accused person is asked to plead at a trial by a Service tribunal, he may do any of the following (DFDA s.141): a. apply for adjournment on the ground that he has not had an adequate opportunity to prepare his defence or choose a person to represent or advise him; apply to secure the attendance of witnesses or additional witnesses on his behalf; if he is charged with more than one Service offence, apply for each charge to be heard separately; if he is charged with one or more other persons, apply to be dealt with separately on the ground that that he would otherwise be prejudiced in his defence; make such other application as he considers relevant in connection with the trial;

b. c.

d.

e.

ADFP 201 VOLUME 1 10A3 f. enter an objection that he is not liable to be tried for the Service offence for which he has been charged, by virtue of previous acquittal or conviction; enter an objection that the charge was made outside the time limitations provided in DFDA s.96; object that he has, in the exercise of the royal prerogative of mercy, been pardoned for the Service offence with which he has been charged or for a civil court offence that is substantially the same; object that the charge does not disclose a Service offence or is otherwise wrong in law; object that the court martial does not have jurisdiction.

g.

h.

i.

j. (2)

An accused may, at any time, apply to the court on any reasonable grounds for an adjournment of proceedings (Rule 39). A Defence Force magistrate may allow the prosecutor to withdraw a charge (or charge sheet) before the accused is asked to plead on it (Rule 13).

(3)

10. If the accused wishes to make an application or objection, this matter is then heard by a Defence Force magistrate. Notes (1) The procedure to be followed for the hearing of applications or objections is as follows: a. the Defence Force magistrate asks the defending officer to make submissions in relation to the applications or objections; the defending officer outlines the matter in issue, calling witnesses as may be necessary; the prosecutor may also call witnesses in reply. The procedure for calling witnesses is explained in note 6 to Item 30. The form of oath or affirmation to be taken is as at Item 19. All witnesses called in this way are sworn, examined, cross examined and re-examined in the usual way; the defending officer sums up the case in support of the application or objection; the prosecutor may make submissions opposing the application or objection; the Defence Force magistrate gives his decision; the trial then continues or is adjourned (as the case may be).

b.

c. d. e. f.

11. The Defence Force magistrate reads each charge separately and asks the accused whether he pleads guilty or not guilty to that charge. Notes (1) The Defence Force magistrate should address the accused as follows: On the first charge, how say you, are you guilty or not guilty?reading each charge in turn and asking the question after each charge. (2) If two or more accused are named in the same charge, the Defence Force magistrate, after reading the charge in question, should put the above question to each such accused in turn, starting with the one named first in the charge.

ADFP 201 VOLUME 1 10A4 (3) The accused may plead guilty to an alternative offence, ie, an offence not shown on the charge sheet but one of which the court could convict (DFDA s.142 and Schedule 6). If there is nothing contained in the statements or record of evidence which could be said to reduce the charge to some lesser offence for which a verdict may be returned, the prosecutor ought not to accept the plea of guilty of that lesser offence. The accused, himself, must plead; it is not sufficient for the defending officer to do so on his behalf, or to indicate that the accused wishes to plead guilty. If the accused refuses to plead, the trial proceeds as if he had pleaded not guilty. See Rule 41(2) for the procedure where the charges against an accused are contained in more than one charge sheet.

(4)

(5) (6)

12. If the accused pleads guilty to any charge, the Defence Force magistrate ensures that the accused understands the charge and the difference of procedure which will result from the plea of guilty. Notes (1) The Defence Force magistrate must ensure that an accused person who is unrepresented does not suffer any undue disadvantage as a consequence of that fact (Rule 36). Care must be taken to ensure that the accused fully understands the elements of the offence to which he is pleading guilty. If during the course of the trial, it appears to the Defence Force magistrate that a plea of guilty has been entered in error or that the accused did not understand the effect of the plea, the Magistrate is to substitute a plea of not guilty and proceed accordingly (Rule 43). The accused should also be informed that the facts of the case, as the prosecution believes them to exist, will be outlined to the Defence Force magistrate to assist him to determine punishment.

(2)

(3)

(4)

13. The accused may inform the Defence Force magistrate that he wishes to withdraw his plea of guilty. (If he does this, proceed as at Item 29.) 14. When the accused has not pleaded guilty to any of the charges or to an alternative offence of which he might be convicted, the trial should proceed as at Item 29. Notes (1) Where an accused pleads guilty to an alternative charge, the Defence Force magistrate is required to accept the plea provided the convening authority notifies the Defence Force magistrate that he does not object to its acceptance (DFDA s.l35(3)). Where, in the view of the defending officer, it would be unfair to the accused that the Defence Force magistrate, having heard the prosecutors opening address and accepted a plea of guilty on some charges should try other charges to which the accused has pleaded not guilty, he should apply to sever those charges. The fact of having pleaded guilty to a charge or charges could, in certain circumstances, render it impossible for the Defence Force magistrate to approach the remaining charges with an open mind. If such a procedure is followed and the defence submission upheld, the Defence Force magistrate should proceed as at Item 16 on those charges to which the accused has pleaded guilty and leave the other charges to be tried on a later occasion.

(2)

15. If there is no charge to be tried, the Defence Force magistrate announces that the plea(s) of guilty is recorded and that the prosecutor is not required to proceed on any charges to which the accused has pleaded not guilty. The trial then proceeds as at Item 16.

ADFP 201 VOLUME 1 10A5 16. Where the accused has pleaded guilty to all charges, the Defence Force magistrate records the plea and Informs the accused as follows: You do not, by pleading guilty to the charges, admit the truth of all of the facts alleged by the prosecution. You may dispute some of them in your statement in mitigation of punishment, but by your plea of guilty to the charges, you have admitted the truth of sufficient facts to substantiate the charges. The facts of the case, as the prosecution believes them to exist, will now be outlined to you to assist me in considering what punishment or other action may be appropriate. 17. The prosecutor informs the Defence Force magistrate of the material facts relating to the commission of the offences. Note (1) The prosecutor should outline the facts of the case objectively and moderately in order that the Defence Force magistrate will be aware of the gravity and circumstances of the offences. The convicted person may dispute any such facts and he and the prosecutor may adduce evidence in relation to any fact so disputed (Rule 49).

18. The prosecutor adduces evidence of prior convictions of the accused, relevant particulars of his service in the Defence Force (if the accused is a member of the Defence Force or was so at the time of commission of the offence) and other matters relevant to punishment. Notes (1) The clerk should provide the prosecutor, before the trial, with a Form PD 103 Conduct Record of the accused. This record should contain relevant particulars of the accuseds service in the Defence Force and particulars of all previous convictions, for Service offences, civil court offences and overseas offences. When adducing evidence of any previous convictions, the prosecutor is to have regard to instructions issued by the convening authority as to whether or not spent convictions should be disclosed to the tribunal (see paragraph 8.46). A copy of this record should also be given to the defending officer before commencement of the trial. The record should be tendered as evidence by the prosecutor without comment on the matters contained therein, unless there is a need to clarify any of them. The prosecutor is also required to cause evidence to be adduced of any other matters relevant to punishment etc. as may be required by the Defence Force magistrate (Rule 50). The nature of this evidence will vary according to the circumstances of the case. For example, where the state of health of the accused may be relevant to the consideration of punishment, the prosecutor may be required to produce the accuseds medical records. Unless the requirement is obvious, the prosecutor should await the courts instructions in relation to evidence of other matters.

(2)

(3)

(4)

19. The defending officer may call witnesses as to the accuseds character or adduce any other evidence relevant to punishment. Witnesses may be cross examined by the prosecutor, re-examined by the defending officer and, if necessary, questioned by the Defence Force magistrate. Notes (1) (2) (3) Rule 50(2). The procedure for calling witnesses is explained in Note 6 to Item 30. The Defence Force magistrate may require a witness to give evidence on oath or affirmation (DFDA s.138 (4)). Other than in exceptional circumstances, eg a child of tender years, the Defence Force magistrate should always require that the witness give evidence on oath or

ADFP 201 VOLUME 1 10A6 affirmation. He should also invite the witness to choose whether to give evidence on oath or on affirmation. (4) The Defence Force magistrate may permit a person to take an oath in such a manner as the person taking the oath declares to be binding on his conscience (Rule 38). Subject to Note (4) the oath to be taken by a witness may be in the following form: I swear by Almighty God that the evidence l shall give shall be the truth, the whole truth and nothing but the truth. (6) if an affirmation is to be made, the words solemnly, sincerely and truly declare are substituted for the words in the oath swear by Almighty God. The usual evidentiary constraints do not apply with the same stringency to the plea in mitigation; see paragraph 8.74. However, where an accused or his defending officer put forward matters in mitigation which involve serious imputations on the character of a person who is not in a position, at that time, to challenge their accuracy, he should avoid mentioning any details which would enable the identity of the person impugned to be ascertained provided that this course is not contrary to the accuseds interests. Where evidence by non-legal specialists is considered necessary in the interests of justice, the proceedings may be adjourned until such time as the evidence can be obtained. The accused may request that the Defence Force magistrate take into consideration, in determining punishment, any other Service offence which is similar to the offence of which he has been convicted, which he admits having committed and which the Defence Force magistrate has jurisdiction to try. The Defence Force magistrate may, with the consent of the prosecutor, take these offences into consideration in determining punishment. However the Defence Force magistrate may not impose a separate punishment in respect of these offences. These admissions by an accused are not admissible as evidence against the accused in other proceedingssee DFDA s.77. Cross-examination by the prosecutor should usually be limited to clarifying matters which have been raised in examination-in-chief. The prosecutor should not attack the credit of a witness or impugn his character unless he believes that the evidence the witness has given is false and unless he intends to call affirmative evidence to support or justify the imputation.

(5)

(7)

(8)

(9)

(10)

20. The prosecutor may call witnesses or adduce other evidence on matters arising from the evidence adduced on behalf of the accused. Notes (1) In most cases there should be no need for the prosecutor to call evidence in response to the defence plea in mitigation. Where the prosecutor believes that a defence witness has given false evidence or that, for other reasons, the Defence Force magistrate is likely to be misled in relation to punishment he should call appropriate evidence. If the accused in his evidence disputes any of the facts alleged by the prosecution in its opening address or raises any other fresh matter, the Defence Force magistrate may direct that evidence shall be called in the normal manner on the points in dispute. This course should be adopted only where the matter in issue may influence the punishment to be imposed. The defending officer may make a submission in mitigation of punishment.

(2)

21. Notes (1)

In his submission on punishment the defending officer should direct the court to the sentencing principles contained in DFDA s.70 and indicate how those principles apply to the facts of the case. In particular he should address the question of any consequential effects of

ADFP 201 VOLUME 1 10A7 the accuseds conviction or proposed punishment (see DFDA sub section 70(2)(a)). For example, if there is a likelihood that the accused might be dismissed from the Defence Force, the Defence Force magistrate should be told how this punishment will affect an entitlement to pension or other financial benefits. Also, if reduction in rank is likely, the Defence Force magistrate should be aware of the total financial penalty involved in that punishment and be given an estimate of the period of time which will probably elapse before the accused is likely to be reinstated in his present rank. (2) At the end of the plea in mitigation, the defending officer should tender a pre-sentence report in the format shown in Form PD 108. Prosecutor may make submission on punishment; see Note.

22. Note (1)

It is not the function of a prosecutor to attempt to influence the Defence Force magistrate in relation to the punishment which should be imposed on the accused. Accordingly, he should usually make no submissions in respect of punishment. However, in an exceptional case, where he considers it necessary in the interests of justice to do so, he may address the Defence Force magistrate on matters which have been contested during the plea in mitigation. He should not go beyond those matters nor should he offer an opinion to the court as to the appropriate punishment for the accused.

23. The Defence Force magistrate may direct the prosecutor to call medical or other evidence which he considers essential in order that justice can be done. Note (1) Medical or other evidence should be called where knowledge of the state of health or background of the accused or other circumstances connected with him might aid the Defence Force magistrate to arrive at a just conclusion as to the appropriate punishment. see Note (4) to Item 18 and Rule 50(l)(c).

24. The prosecutor may raise the question of restitution or reparation. In a relevant case, the defending officer says whether or not the accused disputes title to property in question. Notes (1) A person who is convicted by a Defence Force magistrate of an offence involving theft may be ordered to restore property, which is in the custody and control of the prosecution, to its rightful owner. The Defence Force magistrate may also make an order restoring property to its rightful owner and protecting an innocent third party who received the property in exchange from the convicted person. See DFDA s.83. A person convicted by a Defence Force magistrate may also be ordered to pay reparation to a person who has suffered loss or damage by reason of the offence. The maximum amount of reparation which the Defence Force magistrate may order is five times the maximum fine which may be imposed on the convicted person. See DFDA s.84.

(2)

25. The Defence Force magistrate asks the prosecutor or the defending officer to state any time which the accused has spent in custody awaiting trial, if the fact has not already been mentioned. 26. The Defence Force magistrate may adjourn proceedings in order to consider punishment or other action under Part IV of the DFDA. Notes (1) In relation to punishment etc, the Defence Force magistrate should refer to Chapter 11 of this volume.

ADFP 201 VOLUME 1 10A8 (2) In an appropriate case, consideration should be given to whether the interests of justice would be served by recording a conviction without punishment and requiring the convicted person to give an undertaking to be of good behaviour for 12 months. Where it is proposed to impose a punishment of detention or a fine, consideration should be given to whether such punishment should be suspended. Where an accused requests that other offences be taken into consideration in determining punishment, and the prosecutor consents to this course, the Defence Force magistrate may in certain circumstances take these offences into consideration; see DFDA s.77. Each punishment imposed and each order made by the Defence Force magistrate must be imposed or made in respect of a particular conviction; DFDA s.66; also see section 74 of the Act re concurrent or cumulative punishments. In an appropriate case, the Defence Force magistrate must determine whether restitution or reparation orders should be made, and, in the latter case determine the amount to be paid in reparation. see Note (2) to Item 24. Form of Finding and Punishment (or Order). Where an accused has pleaded guilty to all charges, the finding and punishment (or order), which is known as a combined finding, should be made in writing. An example is shown below: COMBINED FINDING The accused having pleaded guilty to the first and second charges, I accept the plea and find him guilty of the offences charged in the first and second charges and impose the following punishments and/or make the following orders: In respect of the first charge: fined $...... to be paid by instalments of $...... over......consecutive pays. In respect of the second charge: detention for a period of 30 days such sentence being suspended.

(3)

(4)

(5)

(6)

(7)

........................ (Date) Note

..................................................... (Defence Force Magistrate)

(1) As to the forms of finding and punishment (or order) where the accused has pleaded not guilty to any charges, see Items 42 and 43. 27. Proceedings resume. Witnesses also admitted. The Defence Force magistrate reads the combined finding . Notes (1) The Defence Force magistrate is to inform the clerk when the proceedings are to be resumed. All participants then return to the court and after the usual marks of respect have been made, resume their seats. The accused stands at his place. The Defence Force magistrate then reads the finding. After reading the punishment or order, the Defence Force magistrate may, if he thinks fit, address the accused in explanation of it.

(2)

28. The Defence Force magistrate orders the accused to be removed or informs him that he is free to leave; see Note (1) below. The Defence Force magistrate then declares the proceedings completed and withdraws.

ADFP 201 VOLUME 1 10A9 Notes (1) Where the court has imposed a punishment of detention or imprisonment, or the convicted person is already in custody for any other reason, the convicted person is to be given into the custody of the escort until delivered into custody of the officer in charge of the detention centre or prison, as the case may be. Otherwise, the convicted person is free to leave the court unattended. When the Defence Force magistrate declares that the proceedings are completed, all persons stand and pay the appropriate marks of respect.

(2)

Where There Is A Charge To Be Tried By The Court 29. Note (1) A prosecutors duty is to present his case objectively and moderately, not pressing for a conviction nor emphasising the iniquity of the accused. Within these limits he has a discretion in the manner and length of his opening address, but he must outline the elements of the offence charged, the alleged facts upon which he will rely to support the charge and the nature of the evidence which he proposes to adduce to prove the alleged facts (Rule 42). He should not make reference to any evidence which the defending officer has told him will be contested as being inadmissible. Prosecutors opening address.

30. Prosecution witnesses called in turn, sworn, examined by the prosecutor, cross-examined by the defending officer, re-examined by the prosecutor and, if necessary, questioned by the Defence Force magistrate. Notes (1) The form of the oath or affirmation to be taken by a witness is explained at Item 19. See Note (6), below, re procedure for calling witnesses. Examination in Chief. See paragraph 6.331 et seq of this volume. Apart from non contentious matters such as the name and employment of the witness, leading questions, ie those questions which lead to or promote a particular response, may not be asked during examination-in-chief. A prosecutor must also ensure that his examination-in-chief does not extend to matters of which the accused has not been given notice. Cross-Examination. See paragraph 6.339 et seq of this volume. During cross-examination, a witness may be asked leading questions and may be questioned on any matters relevant to the issues before the court or relating to his credit. Questions suggesting fraud, misconduct or criminality should not be put where the defending officer does not intend to call affirmative evidence to support or justify the imputation unless he is satisfied that they are part of the accuseds case and are not put solely for the purpose of impugning the witness character. Scandalous or indecent questions should not be asked unless they are necessary to the matters in issue. Also the Defence Force magistrate may disallow questions designed to insult or annoy or which are needlessly offensive in form (Evidence Act 1995 s.41(1)). Where it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention should be drawn to what is going to be suggested about it so that he may have an opportunity of explanation. Re-examination. See paragraph 6.381 to 6.383 of this volume. A party who has called a witness may re-examine that witness only on matters which have arisen out of crossexamination or where a particular question or line of questioning has been allowed by the Defence Force magistrate in the exercise of his discretionary powers. Questioning of witnesses by Defence Force magistrate. A Defence Force magistrate may ask questions of a witness (Rule 18(3)) where, in his opinion, it is necessary to do so. Particular care must be taken to ensure that these questions are kept to an absolute

(2)

(3)

(4)

(5)

ADFP 201 VOLUME 1 10A10 minimum so that the Defence Force magistrate could not be seen to be conducting an independent inquiry into the facts of the case or to be adopting the mantle of the prosecutor. (6) Procedure for calling witnesses. Witnesses may be called by either of two methods. If the court is equipped with a buzzer, the Defence Force magistrate may use it to summon the orderly and direct him to call the witness. Alternatively, the Defence Force magistrate may direct the clerk to go outside the court and call the witness. The witness is to enter the court wearing headdress (if he is in uniform) and approach the court table. He is to salute the Defence Force magistrate (or bow) and proceed into the witness box where he removes his headdress. The clerk then administers the oath or affirmation after which the witness may be invited by the Defence Force magistrate to be seated. (Unless the evidence which the witness is to give is likely to be short, he should normally be allowed to sit.) After he has finished his evidence the witness is to replace his headdress, salute the Defence Force magistrate and withdraw. Unless told by the Defence Force magistrate that he is no longer required, a witness is to remain within the vicinity of the court.

31. The Defence Force magistrate may call any other person whose evidence he considers may be necessary in the interests of justice. Note (1) When a witness is called or recalled by the Defence Force magistrate, the prosecutor or the defence may put such questions to the witness as seem proper to the Defence Force magistrate (Rule 19(3), (4)).

32. Defending officer may make submission that there is insufficient evidence to support the charge (no-case). Notes (1) (2) DFDA sections 135(1)(c)(d) and l35(4A); Rule 44. At the close of the case for the prosecution the accused may submit that there is insufficient evidence to support the charge (Rule 44). This submission may be properly made and upheld: a. when there has been insufficient evidence to prove an essential element of the charge or when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that the court could not safely convict on it.

b.

(3)

Whether or not a no case submission is made, the Defence Force magistrate may consider whether the evidence adduced by the prosecution is sufficient to support the charge (DFDA s.135 (4A)). If, in the opinion of the Defence Force magistrate, the evidence is sufficient to support the charge he must proceed with the trial as at Item 33. If, in the opinion of the Defence Force magistrate the evidence is insufficient to support the charge he must dismiss the charge and declare the proceedings completed.

(4)

(5)

Where there is Sufficient Evidence to Support the Charge 33. Defence Force magistrate asks accused whether he requires adjournment to prepare defence.

ADFP 201 VOLUME 1 10A11 Notes (1) A Service tribunal may adjourn from time to time and from place to place as appears to the tribunal to be necessary or expedient having regard to the administration of justice or the exigencies of service (DFDA s.138 (1)). The most likely circumstances in which an accused would seek an adjournment would be for the attendance of witnesses or the production of evidence. The accused person or the prosecutor may at any time apply to the Defence Force magistrate, on reasonable grounds, for an adjournment (Rule 39). The Defence Force magistrate asks the accused whether he wishes: a. to give evidence as a witness on his own behalf (reminding him that if he does he will be liable to be cross-examined); or to remain silent.

(2)

34.

b. Note (1)

The accused is not bound by his election at this stage of the trial. see Note (4) to Item 37.

35. The Defence Force magistrate asks accused whether he intends to call witnesses for the defence. 36. Note (1) Where the accused person intends to call a witness (other than himself) to give evidence as to the facts of the case, he may, before he calls the first such witness, make an opening address to the Service tribunal stating the nature and general effect of the evidence which he proposes to adduce in his defence (Rule 45). The defending officer may make an opening address outlining the defence case.

37. The accused, if he has applied to give evidence, goes into the witness box, is sworn, gives evidence, may be cross-examined by the prosecutor, re-examined by the defending officer and, if necessary may be questioned by the Defence Force magistrate. Notes (1) Once the accused has elected to give evidence on oath, he may be asked and is bound to answer, a question which may tend to incriminate him in the offence with which he is charged. Furthermore, if the accused has asked questions or adduced evidence which has tended to show that he is a person of good character or he has impugned the character of prosecution witnesses or a co-accused, he may be asked and is bound to answer questions which show that he has been convicted or tried of other offences or that he is a person of bad charactersee ACT Evidence Act sections 69 and 70. The form of oath for the accused is the same as for other witnesses; see Item 19. Should the defence suggest that the accuseds character is good when it is not, the proper course is for the prosecutor to suggest in his cross-examination of the accused that the accused has been previously convicted (or whatever the facts may be). Unless this is admitted under cross-examination, the prosecutor may call witnesses to establish the allegation of bad character. The accused is entitled to give evidence at any time during the hearing of the defence case, even if he has not previously applied to do so. However, if he indicates his intention to postpone giving evidence until after hearing other defence witnesses, he should be warned

(2) (3)

(4)

ADFP 201 VOLUME 1 10A12 that the value of his evidence may be considerably discounted, as he will have been present in court listening to their evidence. 38. Witnesses for the defence called in turn, sworn, examined by the accused or his defending officer, cross-examined by the prosecutor, re-examined by defence and, if necessary, questioned by the Defence Force magistrate. (See Notes to Item 30.) 39. Note (1) After the witnesses for the defence have given their evidence, the prosecutor may, by leave of the Service tribunal, call a witness or recall a witness to give evidence on any matter raised by the accused person in his defence in respect of which evidence could not properly have been adduced, or which could not reasonably have been foreseen, by the prosecution before the accused person presented his defence (Rule 44). Prosecutor and defending officer may make closing addresses. Prosecutor adduces evidence in rebuttal.

40. Notes (1)

After all the evidence has been given, the accused person and the prosecutor may each make a closing address to the Service tribunal. The prosecutor shall make his closing address before the closing address or closing addresses (if any) by the accused person or accused persons (Rule 47(2)). Subject to note (4), where two or more accused persons are charged in the same charge sheet, their closing addresses shall be made in the order in which their names are listed on the charge sheet (Rule 47(3)). When two or more accused persons are represented by the same person, he may make one closing address only (Rule 47(4)). Prosecution closing address. In his closing address, the prosecutor may comment on the evidence of the accused if he has given evidence. However, he may not comment on the failure of the accused, or of the wife or husband of the accused, to give evidence (ACT Evidence Ordinance section 74) nor should he comment on the failure of the accused to call witnesses unless the circumstances are such that it might be fairly expected that those witnesses should and could be called. Defence closing address. In his closing address, a defending officer is not restricted merely to observations on the evidence of his witnesses; whatever occurs to him as desirable to mention on the whole case, he is at liberty to say, provided it is relevant and within the bounds of fairness and decency. The Defence Force magistrate may adjourn proceedings to consider finding.

(2)

(3)

(4)

(5)

(6)

41. Notes (1)

Before he may convict an accused, a Defence Force magistrate must be satisfied beyond reasonable doubt that the accused is guilty of the offence alleged by the charge. The verdict must be reached on the evidence which has been adduced before him. As to evidence and assessment of the weight to be attached to it, see paragraphs 9.5 to 9.12. Form of Findings. The following specimen findings cover most likely contingencies: a. Where there is only one charge. I find the accused guilty/not guilty.

(2)

ADFP 201 VOLUME 1 10A13 b. Where there is only one charge and it has been amended. I find the accused guilty/not guilty on the charge as amended. c. Where there is more than one charge. I find as follows: First Charge Second Charge Third Charge Fourth Charge (as amended) d. Guilty Not Guilty Guilty Guilty

Where there is more than one accused. I find as follows: First Charge Second Charge A...... B...... A...... B...... Guilty Not Guilty Guilty Not Guilty

e.

Where part of a charge is proved. I find as follows: First Charge Second Charge Guilty of stealing $20 and a pair of binoculars. Not Guilty

f.

Where the Defence Force magistrate exercises his powers under s l42 of the Defence Force Discipline Act and convicts a person of an alternative offence which is not specifically charged. I find the accused not guilty of intentionally destroying Service property, but guilty of negligently destroying Service property. or I find as follows: First Charge Not guilty but guilty of negligently destroying one pair of binoculars.

g.

Findings on alternative charges (where the alternative is specifically charged). If the accused is found guilty of a more serious offence, having pleaded not guilty to the lesser alternative offence, the Defence Force magistrate should not proceed further with the alternative, the finding being recorded as follows: I find as follows: First Charge Alternative to first charge Guilty Having found the accused guilty on the first charge, I did not proceed with the alternative.

h.

Where the accused has pleaded guilty to one or more charges but not guilty to other charges and the plea of guilty has been accepted. I find as follows:

ADFP 201 VOLUME 1 10A14 First Charge Second Charge The accused having pleaded guilty, I accept the plea and find him guilty. The prosecution having offered no evidence in support of this charge, I did not proceed further with it.

(3)

Example of Finding Sheet for inclusion in Record of Proceedings FINDING I find as follows: First Charge Second Charge (as amended) Third Charge Alternative to Third Charge Not Guilty Guilty Guilty Having found the accused guilty on the third charge, I did not proceed with the alternative.

............. (Date)

................................................... (Defence Force Magistrate)

42. Proceedings re-commence. Witnesses may be readmitted. The Defence Force magistrate announces his finding. Notes (1) If the finding is not guilty of all charges, the Defence Force magistrate announces the finding and then declares that the proceedings are completed. All persons present stand and pay the appropriate marks of respect as the Defence Force magistrate withdraws. Unless the accused is in custody in connection with a charge or offence other than one which was dealt with by the Defence Force magistrate, he is free to leave the court unattended. If the finding is guilty of any of the charges, the procedure is as set out in Items 18 to 26. An example of the form in which the punishment or order may be recorded is as follows: Having found the accused guilty of the second charge (as amended) and the third charge, I impose the following punishments and/or make the following orders: In respect of the second charge: In respect of the third charge: To be fined ...... dollars to be paid in one sum.

(2)

(3) (4)

To forfeit ......... months seniority as a ................. (rank) in the (Service) and to pay ..................... dollars by way of reparation to ............................

.......... (Date)

.................................................... (Defence Force Magistrate)

ADFP 201 VOLUME 1 ANNEX B TO CHAPTER 10

ORDER OF PROCEDURE AT A TRIAL FOR SENTENCE BY A DEFENCE FORCE MAGISTRATE

1. The clerk, recorder, defending officer, prosecutor, accused, escort and audience take their places in the court. Notes (1) All are to be seated in the court before the time at which proceedings are due to commence. The arrangement of the court-room is the same as for a trial by court martialsee Annex D to Chapter 9. The Defence Force magistrate is to wear the appropriate Service uniform (without headdress) and a plain black undergraduate gown. Defence Force Magistrates who are practising barristers may wear their normal silk or stuff gown in lieu of an undergraduate gown. Barristers who are not legal officers but who are appearing as counsel should wear full robes. All members of the Defence Force, including Reserve legal officers appearing as counsel should wear the uniform prescribed in the Administrative Ordersee Chapter 10, paragraph 10.6 and Form 36. All witnesses are to remain outside the court. A trial for sentence by Defence Force magistrate is a public trial and the public must normally be admitted to the extent of the accommodation availablesee paragraph 10.10).

(2)

(3) (4)

2. The clerk reports to the Defence Force magistrate, outside the court, that the proceedings are ready to commence. Note (1) 3. Notes (1) (2) On entry of the Defence Force magistrate, all persons in the court are to stand. Before the Defence Force magistrate takes his seat, all uniformed persons in attendance salute. All persons not in uniform bow. Before reporting, the clerk should ensure that all witnesses are present. The Defence Force magistrate takes his place in court.

4. The Defence Force magistrate declares the court open and reads the order by the convening authority referring the matter for sentencing. 5. The clerk informs the court of the name of the recorder and asks the prosecutor and the defending officer whether they object to this person being employed to record the proceedings. (The same procedure is followed in respect of an interpreter if one is required.) Notes (1) (2) For definition of recordersee Rule 3. The accused may enter an objection to a recorder or interpreter on the ground of partiality or incompetence or both (Rule 37(2)).

6. If there is no objection, the clerk administers the oath in the prescribed form. On completion, the convicted person stands.

ADFP 201 VOLUME 1 10B2 Notes (1) The oath or affirmation to be taken or made by a recorder is as follows (Rule 37(5)): I ............... swear by Almighty God (solemnly, sincerely and truly declare and affirm, if affirmation is being made), that l will, to the best of my ability, truly record or transcribe (or both) the evidence to be given before this court and such other matters as may be required and will deliver to the court a true transcript of the same. (2) The oath or affirmation to be taken by an interpreter is as follows: (Rule 37(5)) I ............... swear by Almighty God (solemnly, sincerely and truly declare and affirm, if affirmation is being made), that l will, to the best of my ability truly interpret and translate as l will be required to do. 7. The Defence Force magistrate reads the charge tried by the Summary Authority and the finding of the Summary Authority. 8. The Defence Force magistrate informs the accused of his right to make applications or objections in connection with the trial for sentence. Notes (1) At any time before a convicted person is sentenced at a trial for sentence by a Defence Force magistrate, he may make any application which a Judge, exercising jurisdiction in the Jervis Bay Territory, could hear and determine in accordance with the law in force in that Territory from time to time (DFDA sections 134(1) and 129(1)). An accused may, at any time, apply to the court on any reasonable grounds for an adjournment of proceedings (Rule 39).

(2)

9. If the accused wishes to make an application or objection, this matter is then heard by the Defence Force magistrate. Note (1) The procedure to be followed for the hearing of applications or objections is as follows: a. the Defence Force magistrate asks the defending officer to make submissions in relation to the application or objection; the defending officer outlines the matter in issue, calling witnesses, as may be necessary. The prosecutor may also call witnesses in reply; the procedure for calling witnesses is explained in Annex A, Note 6 to Item 30. The form of oath or affirmation to be taken by witnesses is as at Annex A Item 19. All witnesses called in this way are sworn, examined, cross-examined and re-examined in the usual way; the defending officer sums up the case in support of the application or objection; the prosecutor may make submissions opposing the application or objection; the Defence Force magistrate gives his decision; the trial then continues, ceases or is adjourned (as the case may be).

b.

c. d. e. f.

10. The prosecutor informs the Defence Force magistrate of the material facts relating to the commission of the offences.

ADFP 201 VOLUME 1 10B3 Note (1) The prosecutor should outline the facts of the case objectively and moderately in order that the Defence Force magistrate will be aware of the gravity and circumstances of the offences. The convicted person may dispute any such facts and he and the prosecutor may adduce evidence in relation to any fact so disputed (Rule 49).

11. The prosecutor adduces evidence of prior convictions of the accused, relevant particulars of his service in the Defence Force (if the accused Is a member of the Defence Force or was so at the time of commission of the offence) and other matters relevant to punishment. Notes (1) The clerk should provide the prosecutor, before the trial, with a Form PD 103 Conduct Record of the accused. This record should contain relevant particulars of the accused s service in the Defence Force and particulars of all previous convictions, for Service offences, civil court offences and overseas offences. A copy of this record should also be given to the defending officer before commencement of the trial. The record should be tendered as evidence by the prosecutor without comment on the matters contained therein, unless there is a need to clarify any of them. The prosecutor is also required to cause evidence to be adduced of any other matters relevant to punishment etc as may be required by the Defence Force magistrate (Rule 50.). The nature of this evidence will vary according to the circumstances of the case. For example, where the state of health of the accused may be relevant to the consideration of punishment, the prosecutor may be required to produce the accuseds medical records. Unless the requirement is obvious, the prosecutor should await the courts instructions in relation to evidence of other matters.

(2)

(3)

(4)

12. The defending officer may call witnesses as to the accuseds character or adduce any other evidence relevant to punishment. Witnesses may be cross-examined by the prosecutor, re-examined by the defending officer and, if necessary, questioned by the Defence Force magistrate. Notes (1) (2) (3) Rule 50(2). The procedure for calling witnesses is explained in Annex A, Note 6 to Item 30. The Defence Force magistrate may require a witness to give evidence on oath or affirmation (DFDA s.138(4)). Other than in exceptional circumstances, eg a child of tender years, the Defence Force magistrate should always require that the witness give evidence on oath or affirmation. He should also invite the witness to choose whether to give evidence on oath or on affirmation. The Defence Force magistrate may permit a person to take an oath in such a manner as the person taking the oath declares to be binding on his conscience (Rule 38). Subject to Note (4) the oath to be taken by a witness may be in the following form: I ............... swear by Almighty God that the evidence shall give shall be the truth, the whole truth and nothing but the truth. (6) If an affirmation is to be made, the words solemnly, sincerely and truly declare are substituted for the words in the oath swear by Almighty God.

(4)

(5)

ADFP 201 VOLUME 1 10B4 (7) The usual evidentiary constraints do not apply with the same stringency to the plea in mitigationsee paragraph 8.74. However, where an accused or his defending officer put forward matters in mitigation which involve serious imputations on the character of a person who is not in a position, at that time, to challenge their accuracy, he should avoid mentioning any details which would enable the identity of the person impugned to be ascertained provided that this course is not contrary to the accuseds interests. Where evidence by non-legal specialists is considered necessary in the interests of justice, the proceedings may be adjourned until such time as the evidence can be obtained. The accused may request that the Defence Force magistrate take into consideration, in determining punishment, any other Service offence which is similar to the offence of which he has been convicted, which he admits having committed and which the Defence Force magistrate has jurisdiction to try. The Defence Force magistrate may, with the consent of the prosecutor, take these offences into consideration in determining the punishment. However the Defence Force magistrate may not impose a separate punishment in respect of these offences. These admissions by an accused are not admissible as evidence against the accused in other proceedings. See DFDA s.77. Cross examination by the prosecutor should usually be limited to clarifying matters which have been raised in examination-in-chief. The prosecutor should not attack the credit of a witness or impugn his character unless he believes that the evidence the witness has given is false and unless he intends to call affirmative evidence to support or justify the imputation.

(8)

(9)

(10)

13. The prosecutor may call witnesses or adduce other evidence on matters arising from the evidence adduced on behalf of the accused. Notes (1) In most cases there should be no need for the prosecutor to call evidence in response to the defence plea in mitigation. Where the prosecutor believes that a defence witness has given false evidence or that, for other reasons, the Defence Force magistrate is likely to be misled in relation to punishment he should call appropriate evidence. If the accused in his evidence disputes any of the facts alleged by the prosecution in its opening address or raises any other fresh matter, the Defence Force magistrate may direct that evidence shall be called in the normal manner on the points in dispute. This course should be adopted only where the matter in issue may influence the punishment to be imposed. The defending officer may make a submission in mitigation of punishment.

(2)

14. Notes (1)

In his submission on punishment the defending officer should direct the court to the sentencing principles contained in DFDA s.70 and indicate how those principles apply to the facts of the case. In particular he should address the question of any consequential effects of the accuseds conviction or proposed punishment (see DFDA s.70(2)(a)). For example, if there is a likelihood that the accused might be dismissed from the Defence Force, the Defence Force magistrate should be told how this punishment will affect an entitlement to pension or other financial benefits. Also, if reduction in rank is likely, the Defence Force magistrate should be aware of the total financial penalty involved in that punishment and be given an estimate of the period of time which will probably elapse before the accused is likely to be reinstated in his present rank. At the end of the plea in mitigation, the defending officer should tender a pre-sentence report in the form shown in Form PD 108 Pre-Sentence Report. The prosecutor may make submission on punishment.

(2)

15.

ADFP 201 VOLUME 1 10B5 Note (1) It is not the function of a prosecutor to attempt to influence the Defence Force magistrate in relation to the particular punishment which should be imposed on the accused. Nevertheless, the prosecutor does have an active role to play in the sentencing procedure see paragraphs 9.59 to 9.62. The defending officer may make submission on punishment.

16.

17. The Defence Force magistrate may direct the prosecutor to call medical or other evidence which he considers essential in order that justice can be done. Note (1) Medical or other evidence should be called where knowledge of the state of health or background of the accused or other circumstances connected with him might aid the Defence Force magistrate to arrive at a just conclusion as to the appropriate punishment. See Note (4) to Item 18 and Rule 50(1)(c).

18. The prosecutor may raise the question of restitution or reparation. In a relevant case, the defending officer says whether or not the accused disputes title to property in question. Notes (1) A person who is convicted by a Defence Force magistrate of an offence involving theft may be ordered to restore property, which is in the custody and control of the prosecution, to its rightful owner. The Defence Force magistrate may also make an order restoring property to its rightful owner and protecting an innocent third party who received the property in exchange from the convicted person. See DFDA s.83. A person convicted by a Defence Force magistrate may also be ordered to pay reparation to a person who has suffered loss or damage by reason of the offence. The maximum amount of reparation which the Defence Force magistrate may order is five times the maximum fine which may be imposed on the convicted person. See DFDA s.84.

(2)

19. The Defence Force magistrate asks the prosecutor or the defending officer to state any time which the accused has spent in custody awaiting trial, if the fact has not already been mentioned. 20. The Defence Force magistrate may adjourn proceedings in order to consider punishment or other action under Part VI of the DFDA. Notes (1) In relation to punishment etc, the Defence Force magistrate should refer to Chapter 11 of this manual. In an appropriate case, consideration should be given to whether the interests of justice would be served by recording a conviction without punishment and requiring the convicted person to give an undertaking to be of good behaviour for 12 months. Where it is proposed to impose a punishment of detention or a fine, consideration should be given to whether such punishment should be suspended. Where an accused requests that other offences be taken into consideration in determining punishment, and the prosecutor consents to this course, the Defence Force magistrate may in certain circumstances take these offences into consideration. See DFDA s.77. Each punishment imposed and each order made by the Defence Force magistrate must be imposed or made in respect of a particular conviction; DFDA s.66also see section 74 of the Act re concurrent or cumulative punishments.

(2)

(3)

(4)

(5)

ADFP 201 VOLUME 1 10B6 (6) In an appropriate case, the Defence Force magistrate must determine whether restitution or reparation orders should be made, and, in the latter case determine the amount to be paid in reparation. See Note (2) to Item 18. Form of Punishment (or Order). Where a convicted person is being tried for sentence by a Defence Force magistrate, the punishment (or order), which is know as a finding, should be made in writing. An example, suitable for use in a trail for sentence, is set out below: FINDING The accused having been found guilty by a Summary Authority of the first and second charges, I impose the following punishments and/or make the following orders: In respect of the first charge: fined $....... to be paid by instalments of $........ over........consecutive pays. In respect of the second charge: detention for a period of 30 days such sentence being suspended.

(7)

.............. (Date) 21. finding. Notes (1)

............................................................. (Defence Force Magistrate)

Proceedings resume. Witnesses also admitted. The Defence force magistrate reads the

The Defence Force magistrate is to inform the clerk when the proceedings are to be resumed. All participants then return to the court and after the usual marks of respect have been made, resume their seats. The accused stands at his place. The Defence Force magistrate then reads the finding. After reading the punishment or order, the Defence Force magistrate may, if he thinks fit, address the accused in explanation of it.

(2)

22. The Defence Force magistrate order the accused to be removed or informs him that he is free to leave. See Note (1) below. The Defence Force magistrate then declares the proceedings completed and withdraws. Notes (1) Where the court has imposed a punishment of detention or imprisonment, or the convicted person is already in custody for any other reason, the convicted person is to be given into the custody of the escort until delivered into custody of the officer in charge of the detention centre or prison, as the case may be. Otherwise, the convicted person is free to leave the court unattended. When the Defence Force magistrate declares that the proceedings are completed, all persons stand and pay the appropriate marks of respect.

(2)

ADFP 201 VOLUME 1 CHAPTER 11

PUNISHMENTS AND ORDERS

SECTION 1INTRODUCTION 11.1 This chapter provides guidance on the punishments which may be imposed or orders which may be made when a person is convicted of a Service offence. These matters are dealt with, largely, in Part IV of the Defence Force Discipline Act (DFDA). SECTION 2PUNISHMENTS GENERALLY SENTENCING PRINCIPLES General 11.2 In determining punishment or other action under Part IV of the DFDA, a Service tribunal should consider both the principles of sentencing applied by the civil courts, from time to time, and the need to maintain Service discipline. Principles of Sentencing Applied by Civil Courts 11.3 The principles of sentencing applied by civil courts to which Service tribunals must have regard are summarised below: a. The court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the case. In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (1) (2) (3) the nature and circumstances of the offence; other offences (if any) that are required or permitted to be taken into account; if the offence forms part of a course of conduct consisting of a series of Criminal acts of the same or a similar characterthat course of conduct; the personal circumstances of any victim of the offence; any injury, loss or damage resulting from the offence; the degree to which the person has shown contrition for the offence; (a) by taking action to make reparation for any injury, loss or damage resulting from the offence; or in any other manner;
1

b.

(4) (5) (6)

(b) (7)

if the person has pleaded guilty to the charge in respect of the offencethat fact; the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;

(8)

DFDA s. 70.

ADFP 201 VOLUME 1 112 (9) the deterrent effect that any sentence or order under consideration may have on the person; the need to ensure that the person is adequately punished for the offence; the character, antecedents, age, means and physical or mental condition of the person; the prospect of rehabilitation of the person; the probable effect that any sentence or order under consideration would have on any of the person's family or dependents.

(10) (11)

(12) (13)

c.

In addition, the court must have regard to the nature and severity of the condition that may be imposed on, or may apply to, the offender, under that sentence or order. Before imposing a fine, the court must take into account the financial circumstances of the person, in addition to any other matters that the court is required or permitted to take into account.

d.

The Need to Maintain Discipline in the Defence Force 11.4 In addition to the principles of sentencing applied in civil courts, a Service tribunal, in determining what punishment to impose on a convicted person, must also have regard to the need to maintain discipline in the Defence Force. In this matter, the officers who constitute Service tribunals are entitled to apply their own Service knowledge, experience and common-sense to the circumstances of particular cases. SCALE OF PUNISHMENTS 11.5 The only punishments which may be imposed by a Service tribunal on a convicted person, 2 other than a person who is undergoing a sentence of detention, are those which are specified in s.68 of the DFDA. In decreasing order of severity these punishments are: a. b. c. d. e. f. g. h. imprisonment for life; imprisonment for a specific period; dismissal from the Defence Force; detention for a period not exceeding 2 years; reduction in rank; forfeiture of Service for the purposes of promotion; forfeiture of seniority; fine, being a fine not exceeding: (1) where the convicted person is a member of the Defence Force the amount of his pay for 28 days; or in any other case$500;

(2)

As to punishment of persons who are convicted of 'custodial' offences whilst undergoing detention see paragraph 11.54 et seq.

ADFP 201 VOLUME 1 113 i. j. k. l. m. severe reprimand; restriction of privileges for a period not exceeding 14 days; stoppage of leave for a period not exceeding 21 days; extra duties for a period not exceeding 7 days; extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days; and reprimand.
3

n.

11.6 A Service tribunal may impose a punishment or a combination of punishments from the above list, but each punishment which is imposed must be in respect of a particular conviction and no 4 other conviction . LIMITATIONS ON PUNISHMENTS 11.7 The punishments which may be imposed in any particular case are limited, first, by the maximum punishment which is specified in the provision creating the offence and, secondly, by the nature of the Service tribunal which convicts the accused person. 11.8 Where a person is convicted by a Service tribunal of an offence against the ordinary civil law (ie a Territory offence) the maximum punishment which may be imposed is the fixed punishment 5 provided in the legislation creating the offence. For example, where a person is convicted of the Territory offence of indecent assault on a male (under s 81 of the Crimes Act (NSW) in its application to the Jervis Bay Territory) he is liable to a maximum punishment of five years imprisonment. 11.9 Service offences other than Territory offences (ie those which are specified in sections 15 to 60 of the DFDA) may attract a maximum punishment not higher than that specified in the relevant section creating the offence. For example, where a person is convicted of a charge of assault under s.33(b) of the DFDA the maximum punishment which may be imposed is imprisonment for 6 months. 11.10 The punishments which may be imposed by Service tribunals are contained in Schedules 2 6 and 3 of the DFDA. Schedule 2 sets out the punishments which may be imposed by a court martial or Defence Force magistrate; Schedule 3 sets out the punishments which may be imposed by superior summary authorities, commanding officers and subordinate summary authorities. The punishments which may be imposed by these various kinds of Service tribunal, the convicted persons on whom they may be imposed and specific limitations in respect of a particular tribunal are shown in tabular form in Table 1 below. Additionally, the powers of punishment of each kind of summary authority are 7 shown separately in Chapter 7.

DFDA s.3(1) defines punishment as including a combination of punishments. DFDA s.66(1). DFDA s.61. The punishments which may be imposed on detainees are contained in Schedule 3A and are described in paragraph 11.54. See paragraphs 7.10 and 7.11 (subordinate summary authority) paragraphs 7.19 to 7.25 (commanding officer), and paragraphs 7.39 and 7.40 (superior summary authority).

ADFP 201 VOLUME 1 114 COMMENCEMENT OF PUNISHMENTS 11.11 As a general rule a punishment or order takes effect forthwith and a punishment for a 8 specific period begins to run from the beginning of the day on which it is imposed; punishment for a specific period means imprisonment for a specific period, detention, restriction of privileges, stoppage of leave and extra duties. This general rule is subject to other provisions of the DFDA; for example, where 2 or more punishments are to be cumulative they take effect one after the other in the order in 9 which they are recorded or where a reviewing authority determines when a punishment or order is to 10 take effect. 11.12 Where a summary authority imposes a punishment for a specific period, he or she may impose the punishment for a period beginning on a specified day no later than 14 days after the day 11 on which the punishment is imposed . TABLE 1 TABLE OF PUNISHMENTS WHICH MAY BE IMPOSED BY SERVICE TRIBUNALS
Punishments IMPRISONMENT Tribunal Which May Impose Court martial Defence Force magistrate Convicted Person on Whom Punishment May be Imposed Any member of the Defence Force A person who is not a member of the Defence Force Any member of the Defence Force Limitations on Tribunal Powers Restricted court martial or Defence Force magistrate may not impose imprisonment for life or imprisonment for a period exceeding 6 months.

DISMISSAL FROM THE DEFENCE FORCE DETENTION FOR A PERIOD NOT EXCEEDING 2 YEARS

Court martial Defence Force magistrate Court martial Defence Force magistrate

A member of the Defence Force who is not an officer

A restricted court martial or Defence Force magistrate may not impose detention for a period exceeding 6 months. Detention may not exceed 42 days Elective punishment (1) Detention for period exceeding 14 days but not exceeding 42 days. Other punishment (2) Detention for a period not exceeding 14 days.

Commanding officer Commanding officer

Sailor below rank of leading seaman Soldier below rank of lancecorporal or airman below rank of corporal on active Service

Commanding officer

Soldier below rank of lancecorporal or airman below rank of corporal not on active Service

Elective Punishment (1) Detention for a period exceeding 7 days but not exceeding 28 days. Other Punishment (2) Detention for a period not exceeding 7 days

REDUCTION IN RANK

Court martial Defence Force magistrate Commanding officer

Any member of the Defence Force Sailor, not higher in rank than chief petty officer (3) nor lower than leading seaman Soldier, not higher in rank than staff sergeant (4) nor lower than lance corporal

The rank to which member may be reduced is not specified. May be reduced in rank by not more than one rank. May be reduced in rank by not more than one rank.

Commanding officer

DFDA s.171(1). DFDA s.171(2). DFDA s.168. DFDA s.171(1A).

10

11

ADFP 201 VOLUME 1 115

Punishments REDUCTION IN RANK continued Tribunal Which May Impose Commanding officer Convicted Person on Whom Punishment May be Imposed Airman, not higher in rank than flight sergeant (5) nor lower than corporal Sailor below rank of leading seaman Member of Defence Force who is an officer Limitations on Tribunal Powers May be reduced in rank by not more than one rank. See paragraph 11.35. No statutory limitation. New commencing date of officer's Service is to be specified.

Commanding officer FORFEITURE OF SERVICE FOR PURPOSES OF PROMOTION FORFEITURE OF SENIORITY Court martial Defence Force magistrate

Court martial Defence Force magistrate Commanding officer

Any member of the Defence Force Non-commissioned officer of Navy, Army and Air Force (as for 'Reduction in Rank' above) Sailor below rank of leading seaman

No statutory limitation. New seniority date is to be specified. No statutory limitation. New seniority date is to be specified.

FINE

Court martial Defence Force magistrate Superior summary authority

Any member of the Defence Force; A person who is not a member of the Defence Force Officer of or below rank of major, lieutenant commander or squadron leader or warrant officer A person who is not a member of the Defence Force

Not in excess of amount of 28 days pay. Not in excess of $500. Elective Punishment (1) In excess of amount of pay for 7 days but not in excess of amount of pay for 14 days Other punishment (2) Not in excess of amount of pay for 7 days. Elective Punishment (1) Exceeding $100 but not exceeding $250. Other Punishment (2) Not exceeding $100.

Superior summary authority Commanding officer Commanding officer

Officer of or below rank of lieutenant in the Navy, captain in the Army or flight lieutenant or warrant officer. Sailor not higher in rank than chief petty officer nor lower than leading seaman Soldier, not higher in rank than staff sergeant nor lower than lance-corporal, or airman, not higher in rank than flight sergeant nor lower than corporal Soldier below rank of lancecorporal or airman below rank of corporal on active Service

Elective punishment (1) excess of amount of pay for 7 days but not in excess of amount of pay for 14 days Other punishment (2) Not in excess of amount of pay for 7 days. Not in excess of amount of pay for 28 days. Elective punishment (1) In excess of amount of pay for 7 days but not in excess of amount of pay for 14 days. Other punishment (2) Not in excess of amount of pay for 7 days. Elective punishment (1) In excess of amount of pay for 14 days but not in excess of amount of pay for 28 days. Other punishment (2) Not in excess of amount of pay for 14 days.

Commanding officer

Commanding officer

Commanding officer

Commanding officer

Soldier below rank of lance corporal or airman below rank of corporal not on active Service

Elective punishment (1) In excess of amount of pay for 7 days but not in excess of amount of pay for 28 days. Other punishment (2) Not in excess of amount of pay for 7 days

Commanding officer Subordinate summary authority (certain naval officers only)(6) All other subordinate summary authorities

Sailor below rank of leading seaman. Sailor of or below rank of leading seaman Officer cadet Sailor of or below rank of leading seaman Soldier or airman of or below rank of corporal

Not in excess of amount of pay for 28 days Not in excess of amount of pay for 7 days. Not in excess of amount of pay for 3 days.

ADFP 201 VOLUME 1 116

Punishments SEVERE REPRIMAND

Tribunal Which May Impose Court martial Defence Force magistrate Superior summary authority

Convicted Person on Whom Punishment May be Imposed Any member of the Defence Force Officer of or below rank of lieutenant commander, major or squadron leader or warrant officer Officer of or below rank of lieutenant in the Navy, captain in the Army or flight lieutenant or warrant officer or any other member of the Defence Force who is not an officer Sailor of or below the rank of leading seaman Officer cadet Sailor of or below rank of leading seaman Soldier or airman of or below rank of corporal

Limitations on Tribunal Powers

Commanding officer

Subordinate summary authority (certain naval officers only)(6) All other subordinate summary authorities.

RESTRICTION OF PRIVILEGES FOR PERIOD NOT EXCEEDING 14 DAYS

Commanding officer

Officer cadet Sailor below rank of leading seaman Soldier below rank of lancecorporal Airman below rank of corporal

See paragraph 11.47.

Subordinate summary authority (certain naval officers only)(6) Any other subordinate summary authority

Sailor below rank of leading seaman Officer cadet Sailor below rank of leading seaman Soldier below rank of lancecorporal Airman below rank of corporal

See paragraph 11.47.

Privileges may be restricted for a maximum period of 7 days. See paragraph 11.47.

STOPPAGE OF LEAVE FOR PERIOD NOT EXCEEDING 21 DAYS

Commanding officer

Officer cadet Sailor of or bellow rank of chief petty officer

See paragraph 11.48

Subordinate summary authority (certain naval officers only)(6) Other subordinate summary authorities

Sailor of or below rank of leading seaman Officer cadet Sailor below rank of leading seaman Soldier below rank of lancecorporal Airman below rank of corporal

See paragraph 11.48.

Leave may be stopped for maximum period of 7 days. See paragraph 11.48.

EXTRA DUTIES FOR A PERIOD NOT EXCEEDING 7 DAYS(7)

Commanding officer

Officer cadet Sailor below rank of leading seaman Soldier below rank of lancecorporal Airman below rank of corporal

See paragraph 11.49.

Subordinate summary authority (certain naval officers only) (6)

Sailor below rank of leading seaman

See paragraph 11.49.

ADFP 201 VOLUME 1 117

Punishments EXTRA DUTIES FOR A PERIOD NOT EXCEEDING 7 DAYS(7)continued EXTRA DRILL FOR A PERIOD NOT EXCEEDING 3 DAYS (8)

Tribunal Which May Impose Other subordinate summary authorities

Convicted Person on Whom Punishment May be Imposed Officer cadet Sailor below rank of leading seaman Soldier below rank of lancecorporal Airman below rank of corporal

Limitations on Tribunal Powers See paragraph 11.49.

Commanding officer

Sailor below rank of leading seaman Soldier below rank of lancecorporal Airman below rank of corporal

See paragraph 11.50

Subordinate Summary Authority

Sailor below rank of leading seaman Soldier below rank of lancecorporal Airman below rank of corporal

See paragraph 11.50

Other subordinate summary authorities

Sailor below rank of leading seaman Soldier below rank of lancecorporal Airman below rank of corporal

See paragraph 11.50

REPRIMAND

Court martial Defence Force magistrate Superior summary authority

Any member of the Defence Force Officer of or below rank of lieutenant commander, major or squadron leader or warrant officer Officer of or below rank of lieutenant in the Navy, captain in the Army or flight lieutenant or warrant officer or any other member of the Defence Force who is not an officer Sailor of or below rank of leading seaman Officer cadet Sailor of or below the rank of leading seaman Soldier or airman of or below rank of corporal

Commanding officer

Subordinate summary authority (certain naval officers only) (6) Any other subordinate summary authority (both types)

Notes
(1) 'Elective' punishments are punishments which may be imposed by a commanding officer or superior summary authority only after an accused person has been offered the right to elect trial by court martial or Defence Force magistrate but elects to be tried by a commanding officer or superior summary authority, as the case may be. The accused is to be given the right of election where, in the course of a summary trial before a commanding officer or a superior summary authority, the commanding officer or superior summary authority is of the opinion that the evidence is sufficient to support the charge and that in the event of his convicting the accused he is likely to impose an elective punishment. 'Other' punishments are punishments other than elective punishments. Other punishments may be imposed in any case before a commanding officer or superior summary authority where an accused person is not offered the right to elect trial by court martial or Defence Force magistrate and is convicted. In effect this is the definition of non commissioned officer in the Navy (see DFDA s 3(1)). In effect this is the definition of non commissioned officer in the Army (see DFDA s 3(1)). In effect this is the definition of non commissioned officer in the Air Force (see DFDA s 3(1)).

(2)

(3) (4) (5)

ADFP 201 VOLUME 1 118

(6) The DFDA provides for 2 different types of subordinate summary authority. The first is applicable to the Navy and then only to a naval officer who is of or above the rank of commander or otherwise is the Executive Officer of a naval ship or establishment and is of or above the rank of lieutenant. The second type of summary authority is applicable to the Army and the Air Force in all relevant cases and, in the Navy, is applicable to subordinate summary authorities such as officers-of-the-watch or officers-of-the-day. Officer cadets (who are midshipmen) may only be sentenced for extra duties for a period not exceeding three days. Officer cadets (who are midshipmen) may not be sentenced to the punishment of extra drill.

(7) (8)

The difference between midshipmen and officer cadets was an unintentional consequence of an amendment to the Defence Force Discipline Regulations. This will be corrected when the regulations are next raised.

SECTION 3NOTES ON PUNISHMENTS IMPRISONMENT General 11.13 To sentence a person to imprisonment is to order him to be deprived of his liberty by confinement. Imprisonment is generally to be regarded as a punishment of last resort where no other 12 sanction would achieve the objectives contemplated by law. In the case of a member of the Defence Force the punishment of imprisonment may serve two purposes: first, it may deter the commission of similar serious Service offences by members of the Defence Force and, secondly, it may punish an offender in a manner which, in the opinion of a Service tribunal, is appropriate to the crime which has been committed. A third objective of imprisonment in the context of criminal offenders in the civilian community is the rehabilitation of offenders; however, this objective is not relevant, in a direct sense, to members of the Defence Force who are sentenced to imprisonment because such punishment 13 must also be accompanied by the punishment of dismissal from the Defence Force. Where it is likely that a member of the Defence Force could be rehabilitated so as to render good Service in the future it may be appropriate to impose the punishment of detention in lieu of imprisonment (see under 'Detention' at paragraph 11.22). In all cases where a Service tribunal imposes a sentence of imprisonment, the tribunal must take into account the provisions of Part 1B of the Crimes Act 1914, which apply by virtue of s.72 of the DFDA. Life Imprisonment 11.14 The punishment of life imprisonment may be imposed only by a general court martial and then only in respect of the most serious Service offences; for example, aiding the enemy with intent to 14 15 assist the enemy, communicating with the enemy with intent to assist the enemy, mutiny in 16 17 connection with operations against the enemy or murder. 11.15 The punishment of life imprisonment imposed by a Service tribunal does not take effect 18 unless approved by a reviewing authority.

12

Parliamentary Paper No. 123/80 Law Reform Commission 'Sentencing of Federal Offenders' Part No. 15 AGPS. DFDA s.71(1). DFDA s.15(3). DFDA s.16 (3). DFDA s.20(2). DFDA s 61 and s 18 of Crimes Act (NSW) in its application to the Jervis Bay Territory. DFDA s.172(1).

13

14

15

16

17

18

ADFP 201 VOLUME 1 119 Imprisonment for a Specific Period 11.16 A general court martial may impose imprisonment for a fixed period or for any period not exceeding the maximum period provided by the legislation creating the offence. A restricted court martial or Defence Force magistrate may impose imprisonment for a period not exceeding six months. 11.17 The punishment of imprisonment for a specific period does not take effect unless approved 19 by a reviewing authority. Miscellaneous Aspects of Punishment of Imprisonment 11.18 Where a Service tribunal imposes a punishment of imprisonment for a specific period for a Service offence and also a punishment of life imprisonment for another Service offence, the 20 punishments are to be concurrent. Where a Service tribunal imposes two or more punishments of imprisonment for a period they are to be served concurrently unless the tribunal orders that the 21 punishments be served cumulatively; however, where a tribunal orders that the punishment be served cumulatively the total period of imprisonment may not exceed the maximum period allowed for 22 any offence of which the accused has been convicted. For example, if a Service tribunal imposes imprisonment for two months in respect of one Service offence and imprisonment for three months in respect of another Service offence committed by the same person, the person will serve three months in prison unless the tribunal orders that the punishments be served cumulatively, in which case he will serve five months in prison. An order that punishments be served cumulatively may be quashed or 23 revoked by a reviewing authority if he considers it to be wrong in law or excessive. Finally, where a Service tribunal imposes a punishment of imprisonment on a convicted person who is already subject to a punishment of detention (whether or not such punishment has been suspended) the punishment 24 of detention (or part of that punishment which has not been served) is remitted. DISMISSAL FROM THE DEFENCE FORCE 11.19 The punishment of dismissal is appropriate in a case where a member is convicted of a Service offence which by its nature renders him unfit to continue serving in the Defence Force. Dismissal should normally be reserved for serious offences which are in themselves dishonourable (eg theft, fraud, indecent assault, selling drugs, violent assault and desertion) and is not normally appropriate for most purely Service offences such as absence without leave. Before imposing this punishment, a Service tribunal should give careful consideration to whether the offender, if given a lesser punishment, is likely to become an effective member of the Defence Force. Where there are reasonable grounds for expecting the offender to be rehabilitated, the tribunal should impose the punishment of detention (see paragraph 11.22). A tribunal should also have regard to the fact that dismissal is a dishonourable form of discharge which may render a person ineligible for certain types of employment outside the Defence Force as well as being likely to cause immediate financial loss to 25 the offender.

19

DFDA s.171(1). DFDA s.74(3). DFDA s.74(4). DFDA s.74(5). DFDA s.162. DFDA s.82. Also note paragraph 11.13; where an offender is sentenced to imprisonment he must also be dismissed from the Defence Force.

20

21

22

23

24

25

ADFP 201 VOLUME 1 1110 11.20 The punishment of dismissal from the Defence Force does not take effect unless approved 26 by a reviewing authority. 11.21 A person on whom a punishment of dismissal has been imposed may be kept in custody 27 pending approval of the punishment by a reviewing authority. DETENTION General 11.22 The punishment of detention involves the confinement of an offender in military custody in 28 one of the places authorised for the purpose. This punishment is intended to serve three purposes: to deter members of the Defence Force from committing further offences, to punish offenders and to rehabilitate offenders so that on completion of their time in detention they will be able to render further effective Service to the Defence Force. Detention should be imposed in preference to imprisonment unless an offender has already undergone one or more sentences of detention without effect. 11.23 Detention shall not be imposed in conjunction with dismissal from the Defence Force. Where a Service tribunal imposes a punishment of imprisonment on a person who is already subject to a punishment of detention (whether or not the detention has been suspended) the punishment of 30 detention is remitted. Detention cannot be imposed on a member who at the time of conviction has 31 not attained 18 years of age. 11.24 A Service tribunal shall not impose upon a non commissioned officer whom it has convicted of a Service offence a punishment of detention unless the tribunal also imposes the punishment of 32 reduction in rank to a rank below non commissioned rank. 11.25 The punishment of detention when imposed by a summary authority does not take effect 33 unless approved by a reviewing authority. A person on whom a punishment of detention is imposed by a summary authority may be kept in custody pending approval by a reviewing officer of the punishment and, if the punishment is approved, any day on which the person was so kept in custody counts as a day of detention. Periods of Detention 11.26 Where a tribunal imposes two periods of detention in respect of separate Service offences against a convicted person, they are to be served concurrently unless the tribunal orders that the two 34 periods are to be cumulative. Where the tribunal orders that the periods of detention are to be cumulative, the total period imposed may not exceed two years when imposed by a general court
29

26

DFDA s. 172(1). DFDA s.172(4). See DFD Regulations. See DFDA s.71(3). DFDA s.82. DFDA s.71(2). DFDA s.71(1A). DFDA s.172(2). DFDA s.74(1), (2) and (3).

27

28

29

30

31

32

33

34

ADFP 201 VOLUME 1 1111 martial, or six months when imposed by a restricted court martial or Defence Force magistrate. In view of an opinion which has been provided by the Judge Advocate General, it is now established that a commanding officer's powers of punishment are limited to the maximum non-elective punishment shown in Schedule 3 of the Act where the accused is not offered a right to elect either trial or punishment by Court Martial as may be appropriate in the circumstances. This is so whether the accused faces one or a number of charges. For example, in the case of a member below non-commissioned rank in the Army who at the time that he committed two Service offences of which he has been convicted was not on active Service, it is not open to a commanding officer to impose cumulative sentences of seven days detention on each charge without offering the member a right of election. In any event the maximum cumulative sentence that may be awarded must not exceed the maximum elective punishment specified in Schedule 3 of the Act. Notwithstanding the maximum periods of detention allowed by law, as the nature of detention is extremely rigorous, it should not generally be imposed for a period longer than three months. Suspension of Detention 11.27 Where a Service tribunal imposes a punishment of detention it may order the punishment to be suspended. While the suspension remains in force the punishment does not begin and may not be 36 put into execution. In the event that a tribunal imposes two or more punishments of detention in respect of two or more Service offences, it may not make an order suspending one of the punishments 37 and not the other. A suspended punishment of detention may be a most effective way of dealing with a young offender who previously had a good record but who merits a severe punishment. In such a case the Service tribunal should, generally, also impose one or more other lesser punishments in order that justice can be seen to be done. Revocation/Remission of Suspended Detention 11.28 Where it would have had jurisdiction to have imposed detention a Service tribunal may revoke a suspension; where it is not empowered to revoke the suspension a tribunal may recommend to a reviewing authority that the suspension be revoked. The reviewing authority may revoke the 38 suspension and, in that event, the punishment will take effect as if imposed at the time of revocation. Where a suspended punishment of detention has been imposed on a member of the Defence Force and the suspension has not been revoked, the punishment is remitted (ie ceases to have effect) either when 12 months have elapsed from the date of suspension or when the person ceases to be a 39 member of the Defence Force (whichever first occurs). Forfeiture of Salary and Allowances in Detention 11.29 While a member is undergoing the punishment of detention, he or she is paid the rate of salary payable to a normal entry recruit undergoing basic recruit training, and is paid no allowances other than Detention Allowance, provided for under a determination made under the Defence Act. See Reg 68 of Defence Force Regulations (reprinted in Part 11, Volume 2 of the DLM). REDUCTION IN RANK General 11.30 The punishment of reduction in rank involves loss of status, loss of privileges (which are attached to the offenders former rank) and financial loss and should only be imposed where the
35

35

DFDA s.74(5). DFDA s.78(1) and (3). DFDA s.78(2). DFDA s.80. DFDA s.81.

36

37

38

39

ADFP 201 VOLUME 1 1112 Service tribunal is satisfied that the offender is unfit, by reason of the offence of which he has been convicted, to remain in his present rank. In considering whether to impose reduction in rank, a Service tribunal should also have regard to the financial loss which is likely to follow as a consequence of the punishment. In some cases certain elements of this future financial loss may be accurately quantified. For example, where the relevant promotion rules specify that a minimum period of time must elapse after reduction in rank before a person can be re-promoted to his original rank, it is possible to calculate with reasonable accuracy the minimum direct financial loss which will be sustained by the offender. 11.31 Other elements of the total financial cost are not so easily quantified; for example, the loss of income caused to an offender because of his non-promotion to the next higher rank, when he might reasonably have expected to have been promoted, or the loss of pension entitlements. Where the loss is able to be assessed with reasonable certainty it should be; however, a Service tribunal is not expected to put a figure on potential losses due to non-promotion etc although it may have regard to such matters in general terms. Where the financial loss to an offender is likely to be high a Service tribunal should consider whether a substantial fine together with any other lesser punishments should be imposed in preference to reduction in rank. Reduction in Rank of Officers 11.32 Officers may be reduced in rank only by a court martial or Defence Force magistrate. Normally, a Service tribunal should not reduce an officer by more than one rank. However, where a Service tribunal considers, in the circumstances of a particular case, that reduction by one rank is not sufficient (whether imposed as a single punishment or in conjunction with other punishments) it should consider imposing the punishment of dismissal. In reducing an officer in rank, the Service tribunal must specify a date of seniority in that rank which is not later than the date on which the punishment 40 was imposed. 11.33 Where an officer holds acting or temporary rank he is deemed for the purposes of the DFDA 41 to hold that rank ; thus where an officer holding acting rank is reduced by one rank he is reduced only to his substantive rank. In this situation it may, therefore, be appropriate to reduce the officer by two ranks so that in effect he will be one rank lower than his substantive rank. Additionally, where an officer holds a rank temporarily that is at least two ranks higher than his substantive rank he may be reduced to an intermediate rank as a rank to be held temporarily. Reduction in Rank of Members Other than Officers 11.34 By Courts Martial or Defence Force Magistrates. A court martial or Defence Force magistrate may reduce in rank any member of the Defence Force who is not an officer. Although there is no limit specified in the DFDA as to the rank to which such a member may be reduced, the policy of reducing by not more than one rank (as discussed in relation to officers) should generally be followed. Similarly, the guidelines for reduction in rank of members, other than officers, who hold acting or temporary rank are as discussed in paragraph 11.33 in relation to officers. Where a Service tribunal imposes reduction in rank on any member, it must specify a seniority date in that rank which is not later than the date on 42 which the punishment was imposed. 11.35 By Commanding Officers. A commanding officer of the Navy or Air Force may impose the punishment of reduction in rank by not more than one rank upon a non-commissioned officer of those Services. Additionally, a member below non-commissioned rank in the Navy (ie below the rank of

40

See DFD (Consequences of Punishment) Rules in Part 4 of Volume 2. DFDA s3(5), (6). See DFD (Consequences of Punishment) Rules in Part 4 of Volume 2.

41

42

ADFP 201 VOLUME 1 1113 leading seaman) may be reduced in rank by a commanding officer. A commanding officer of the Army 43 may reduce a non commissioned officer who is of the rank of corporal by two ranks . FORFEITURE OF SERVICE FOR THE PURPOSES OF PROMOTION 11.36 Forfeiture of Service for the purposes of promotion is intended to affect an officer's subsequent promotion where eligibility for promotion is based on Service in rank. This punishment does not affect the pay of any officer on whom it is imposed. The punishment affects the rank held at the time of conviction. Where the whole of the officer's Service in that rank is affected, and Service in the next lower rank also counts towards promotion, Service in the lower rank may also be forfeited. A Service tribunal should state the period of Service that is forfeited or specify a date that is to be deemed to be the commencing date of the officer's Service in the rank; it is preferable to specify that latter to avoid errors in calculation. 11.37 Before imposing forfeiture of Service for purposes of promotion, a Service tribunal should be satisfied that the nature of the offence on which an officer has been convicted should preclude him from being considered for promotion for the time specified. A tribunal should also have regard to the likely financial loss which will be sustained by the offender as a consequence of the punishment. In cases where the officer's promotion was almost certain to have occurred on a known date, this financial loss may be assessed accurately. In other cases, where promotion is more uncertain, best and worst cases in relation to promotion to the relevant rank may be considered in order to ascertain, in general terms, the likely extent of the financial loss. Where the financial loss suffered as a consequence of forfeiture of Service is likely to be high, a Service tribunal should consider whether justice might not be done equally well by the imposition of a substantial fine. Another factor which a Service tribunal should consider, in relation to forfeiture of Service, is whether the trial and conviction of an officer of a Service offence will not, of itself, have a significant adverse effect on his future promotion. FORFEITURE OF SENIORITY 11.38 The punishment of forfeiture of seniority is intended to affect certain members' subsequent promotion where promotion is based on seniority. This punishment does not affect the pay of any member on whom it is imposed. The punishment only affects seniority in the rank held by the member at time of conviction. In imposing forfeiture of seniority, a Service tribunal must specify the new 44 seniority date, which is to be not later than the date on which the punishment was imposed. The matters which a Service tribunal should consider before imposing this punishment are the same as those which apply to forfeiture of Service for purposes of promotion (see paragraph 11.37). 11.39 The punishment of forfeiture of seniority when imposed by a summary authority does not 45 take effect unless approved by a reviewing authority. FINES General 11.40 A Service tribunal may impose a fine in accordance with the scale set out in Table 1. The amount of the fine is to be determined by the Service tribunal after consideration of all relevant 46 aspects of the case, especially the offender's capacity to pay and the need for the fine to have a

43

See DFDA Schedule B, Table 3. Navy and Air Force do not have an equivalent rank to that of lance corporal. Prior to July 1995, a commanding officer in the Army, being able to reduce a non commissioned officer by only one rank, was unable to reduce a corporal to the ranks irrespective of the seriousness of the offence. All commanding officers may now reduce a CPL(E) to the rank of PTE(E). See DFD (Consequences of Punishment) Rules in Part 4 of Volume 2. DFDA s.172(2). DFDA s.70(3).

44

45

46

ADFP 201 VOLUME 1 1114 punitive effect. When imposing a fine a Service tribunal is required to specify the amount of money 47 48 that is the amount of the fine and whether the fine is to be payable in one sum or by instalments. Where a Service tribunal imposes two or more fines in respect of two or more offences, the sum of the fines must not exceed the amount of the most severe fine that the tribunal could impose on the 49 offender for any one of the Service offences of which he has been convicted. When imposed by a summary authority a fine that exceeds the amount of a member's pay for 14 days does not take effect 50 unless approved by a reviewing authority. 11.41 References to the amount of pay of a member are explained as the amount of salary 51 payable to the member under determinations made under section 58H of the Defence Act 1903 . This means that the amount is the gross salary payable to the member at the date of conviction, but does not include any allowances, such as Service Allowance and Uniform Maintenance Allowance. No deductions such as taxation instalments, DFRDB or Rations and Quarters payments should be taken into account. Suspension and Remission of Fines 11.42 A Service tribunal may order that a fine be suspended . A fine of an amount not less than $100 which has been imposed on a person who is not a member of the Defence Force may also be suspended. When a suspension order is in force, the fine, or such part of it as is specified by the 53 tribunal, does not take effect. Where it would have had jurisdiction to have imposed a particular fine, a Service tribunal may revoke a suspension; where it is not empowered to revoke a suspension, a tribunal may recommend to a reviewing authority that the suspension be revoked. The reviewing authority may revoke the suspension and, in the event, the punishment will take effect as if it had been 54 imposed at the time of revocation. Where a suspended fine has not been revoked, the punishment is remitted (ie ceases to have effect) either when 12 months have elapsed from the date of suspension 55 or when the person ceases to be a member of the Defence Force (whichever first occurs). Advantages and Limitations 11.43 A fine has both a deterrent and punitive effect. It also has the particular advantages of being a punishment whose effect is immediately apparent to an offender and which can be varied in amount from a token sum in minor cases to a substantial sum (ie 28 days' pay) in serious cases. A fine should not normally be imposed in conjunction with the punishments of imprisonment, dismissal, detention (unless the detention is suspended) or reduction in rank because of the severe financial effects which are involved in each of these punishments. Where a suspended fine has been imposed a lesser punishment should also be imposed in order that justice may be seen to have been done.
52

47

DFDA s.73(1). DFDA s.85. DFD A s.73(2). DFDA s.172(2). DFD Regulation 31. The 1995 amendment to the DFDA s.79 increases sentencing flexibility by ensuring that Service tribunals can suspend the payment of any fine (either in whole or in part). DFDA s. 79. DFDA s.80. DFDA s.81.

48

49

50

51

52

53

54

55

ADFP 201 VOLUME 1 1115 Recovery of Fines etc 11.44 Where a fine has been imposed on a person under the DFDA or the Defence Force Discipline Appeals Act the amount that is due and payable may be recovered by deduction from any 56 pay, wages or salary payable to the person by the Commonwealth. The amount of a fine may also be recovered by action in a civil court as a debt due to the Commonwealth; for this purpose an authorised officer may issue a certificate stating the amount of the fine which is due and payable by a 57 specified person and that certificate is admissible as evidence in a civil court. SEVERE REPRIMAND/REPRIMAND 11.45 Severe reprimands and reprimands have historically been imposed as punishments on members of the Defence Force who were deserving of censure but did not merit higher punishment. The distinction between the two punishments is that a severe reprimand is the more severe 58 punishment, after a fine, and a reprimand is the least severe, after restriction of privilege, stoppage of leave and extra duties. In the past, severe reprimands were imposable, generally, only on officers; under the DFDA, however, a severe reprimand may be imposed on any member of the Defence Force. The effect of these punishments varies according to the Service and rank of the offender but in general it may be said that they are likely to have same adverse effect on a member's future career and may also be taken into account by a Service tribunal in determining the punishment to be imposed on a person who is convicted of a Service offence on a later occasion. Instead of imposing either of these punishments, it may be appropriate for a Service tribunal to make an order that the conviction 59 be recorded as a conviction without a punishment. RESTRICTION OF PRIVILEGES, STOPPAGE OF LEAVE, EXTRA DUTIES AND EXTRA DRILL (MINOR PUNISHMENTS) General 11.46 The punishments of restriction of privileges, stoppage of leave, extra duties and extra drill (referred to herein as minor punishments) may not be imposed by court martial or Defence Force magistrate nor may they be imposed on officers (other than officer cadets) or non-commissioned officers (except that a commanding officer may impose stoppage of leave on a non-commissioned 60 officer in the Navy). The consequences which flow on from any of these minor punishments are 61 specified in the DFD (Consequences of Punishments Rules). The relevant parts are summarised in paragraphs 11.47 to 11.52. Restriction of Privileges 11.47 The consequences that flow from the imposition of the punishment of restriction of privileges are as follows:

56

DFDA s.174(1). DFDA s.174(2) and s.175. See paragraph 11.5. Under DFDA s.75(1); see paragraph 11.60. Also a subordinate summary authority who is a naval officer of the rank of commander or who is of or above the rank of lieutenant and holds an appointment of Executive Officer of a ship or establishment may impose stoppage of leave on a leading seaman. See Part 4 of Volume 2.

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58

59

60

61

ADFP 201 VOLUME 1 1116 a. The member shall not leave his ship, unit or establishment, except in the course of 62 duty or when leave is granted to the member by his commanding officer. The member may not be present at any recreation or entertainment in the ship, unit or establishment or consume any alcohol. In accordance with an order given by an authorised member, the member is to: (1) perform additional duties: (a) for a period not exceeding four hours outside working hours in a working day; for a period not exceeding eight hours in a non-working day;
63

b.

c.

(b) (2)

when the member cannot be effectively employed on extra dutiesperform drill for a period not exceeding one hour each day; report outside working hours, between 0600 hours and 2300 hours but not more often than once in every two hours, to a person specified by the authorised member;

(3)

d.

Outside working hours, the member shall wear working dress or dress of the day (as appropriate).

A commanding officer may moderate the consequences of extra work and drill, reporting at regular intervals and wearing of dress of the day or working dress, in such manner as he considers appropriate in the particular circumstances of each case. A commanding officer may not moderate the consequences of the prohibition on attendance at recreation held on the unit etc and on consumption of alcohol. (See DFDA s.68(3) and CDF Direction in Part 4 of Volume 2). Stoppage of Leave 11.48 The consequences of the punishment of stoppage of leave are: a. The member shall not leave his ship, unit or establishment, except in the course of 64 duty or when leave is granted to the member by his commanding officer. Outside working hours the member shall, in accordance with an order given to him by an authorised member, report between 0600 hours and 2300 hours but not more frequently than once every two hours to a person specified by the authorised 65 member. Outside working hours, the member shall wear working dress or dress of the day (as appropriate).

b.

c.

62

The commanding officer may grant leave when he is satisfied that it is appropriate to do so. See CDF Direction in Part 4 of Volume 2. An authorised member means a member of the Defence Force authorised for the purpose of these rules by the standing, routine or daily orders of the unit, establishment or ship or, in writing, by a commanding officer. A commanding officer may grant the member leave of absence if he is satisfied that it is appropriate to do soDFDA s.68(4). An authorised member means a member of the Defence Force authorised for the purpose of these rules by the standing, routine or daily orders of the unit, establishment or ship or, in writing, by a commanding officer.

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ADFP 201 VOLUME 1 1117 Extra Duties 11.49 The consequences of the punishment of extra duties are that in accordance with an order given by an authorised member, the member is: a. to perform additional duties outside normal working hours for a period not exceeding 66 four hours in each day ; or when the member cannot be effectively employed on extra duties - to perform drill for a period not exceeding one hour each day; outside working hours, to wear working dress or dress of the day (as appropriate).

b.

c.

The above consequences may be moderated by the commanding officer as he thinks appropriate and 67 having regard to any directions issued in writing by a Service chief. Extra Drill 11.50 Extra drill is a traditional punishment in the Services. Whether conducted as part of training or as punishment , drill improves physical fitness as well as the skill of the member carrying it out. Because it can be both inconvenient and irksome it has a deterrent value. Conditions have been laid down for the performance of drill. These are: a. the member shall perform drill only in accordance with an order given by an authorised member; the nature and type of drill to be performed must be as specified in the standing, routine or daily orders of the unit, establishment , ship or detention centre in which the drill is performed; the member shall not be required to perform drill for a continuous period in excess of 30 minutes; and the member shall not be required to perform periods of drill more frequently than four 68 hourly intervals .

b.

c.

d.

Miscellaneous Aspects of Minor Punishments 11.51 Where an officer imposes two or more minor punishments in respect of two or more 69 offences they are to be served concurrently. However, where the minor punishments which are imposed are of the same kind an officer may order that they be served cumulatively provided the total period of the punishments does not exceed the maximum punishment which may be imposed by the 70 officer in respect of one offence. For example, if a commanding officer imposes restriction of privileges for eight days in respect of one offence and stoppage of leave for 12 days in respect of another offence, the latter punishment is served concurrently with the former; at the end of eight days of restriction of privileges the offender continues to serve the punishment of stoppage of leave for a further four days. On the other hand, if the officer imposed stoppage of leave for 12 days in respect of the first offence and stoppage of leave for 12 days in respect of the other offence, ie a punishment of the same kind, the offender would serve a punishment of 12 days stoppage of leave unless the officer

66

See DFD (Consequences of Punishment) Rules, Rule 8Volume 2 Part 4. DFDA s.68(3); no directions in this matter have been issued by a Service chief. See DFD (Consequences of Punishment) Rules, Rule 13 Volume 2 Part 4. DFDA s.74(2). DFDA s.74(5).

67

68

69

70

ADFP 201 VOLUME 1 1118 ordered that the punishments be served cumulatively. In this event the offender would serve 21 days 71 stoppage of leave, ie the maximum which may be imposed by the officer. 11.52 Where two or more minor punishments are imposed in respect of the same offence they 72 A Service tribunal may always operate concurrently, for the reason that they take effect forthwith. not order that punishments which have been imposed in respect of the same offence be served cumulatively. PUNISHMENT OF DETAINEES Custodial Punishments 11.53 Certain summary authorities may impose custodial punishments on detainees who commit certain offences (see below) whilst undergoing the punishment of detention. The custodial 73 punishments which may be imposed are: a. By a Commanding Officer. (1) (2) (3) (4) b.
74

A commanding officer may impose:

Segregated confinement for a period not exceeding 10 days Confinement to cell for a period not exceeding 10 days. Extra drill for a period not exceeding six days. Restriction of custodial privileges for a period not exceeding 14 days.
75

By a Subordinate summary authority. (1) (2) (3) (4)

A subordinate summary authority may impose:

Segregated confinement for a period not exceeding three days. Confinement to cell for a period not exceeding three days. Extra drill for a period not exceeding three days. Restriction of custodial privileges for a period not exceeding seven days.

11.54 The consequences which flow from each of these punishments are contained in the DFD 76 (Consequences of Punishments) Rules. The officer in charge of a detention centre may moderate the consequences of a custodial punishment which has been imposed on a detainee, in such manner as he thinks appropriate in the circumstances having regard to any directions in writing by a chief of 77 staff.

71

In this example the officer imposing the punishment is assumed to be commanding officer and the person on whom the punishment is imposed is assumed to be a non-commissioned officer in the RAN. DFDA s.171(1). Schedule 3A to DFDA. Schedule 3A to DFDA - Table A. Schedule 3A to DFDA - Table B. See Part 4 of Volume 2. DFDA s.68A(3).

72

73

74

75

76

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ADFP 201 VOLUME 1 1119 Offences which Attract Custodial Punishments 11.55 Custodial punishments may be imposed where a person has been convicted of a custodial offence or another specified offence. Custodial offences are created by s.54A of the DFDA, which is set out below:

54A. (1) A detainee who (a) (b) (c) (d) (e) (f) (g) makes any unnecessary noise; commits a nuisance; is idle, careless or negligent at work; without lawful authority, converses or otherwise communicates with another person(whether or not a detainee); without lawful authority, gives any thing to, or receives any thing from, another person (whether or not a detainee); without lawful authority, has in his possession any thing; or without lawful authority, enters or leaves his cell, is guilty of an offence.

11.56 Other offences which, when committed by a person undergoing detention, may attract a custodial punishment are: absence from duty (s.23); assault on a superior officer (s.25); insubordinate behaviour with respect to a superior officer (s.26); disobedience of command (s.27); failure to comply with general order (s.29); assault, insulting or provocative words etc (s.33); destruction of or damage to Service property (s.43); escape from custody (s.51); prejudicial behaviour (s.60) or any offence that 78 is an ancillary offence in relation to any of the foregoing offences. 11.57 The summary authority may impose a custodial punishment (and no other) on a detainee who is convicted of a custodial offence. However, where a detainee is convicted of any of the offences listed in paragraphs 11.55 and 11.56 the summary authority has the choice of a custodial or an ordinary punishment (ie a punishment available to a Service tribunal in respect of a person, other than a detainee, who is convicted of a Service offence). Miscellaneous 11.58 A custodial punishment imposed on a detainee may not run beyond the period during which 79 the detainee is undergoing a punishment of detention in a detention centre. Where a custodial punishment is imposed on a detainee it should not be included as part of the person's record of offences and must be disregarded by a Service tribunal when considering the punishment to impose in 80 respect of an offence committed by the person after the punishment of detention has been served.

78

An ancillary offence includes being an accessory after the fact, attempts, inciting the commission of offences and conspiracy. See Chapter 4 paragraph 4.73 and Annex C to Chapter 4. DFDA s.71(5). DFDA s.70(5).

79

80

ADFP 201 VOLUME 1 1120 ACTION, OTHER THAN PUNISHMENT, UNDER PART IV OF THE DFDA 11.59 A Service tribunal which convicts a person of a Service offence is obliged to take action 81 under Part IV of the DFDA This means, in effect, that the tribunal must either impose a punishment or make an order which is authorised by Part IV of the DFDA or, in an appropriate case, impose a punishment and make an order. Some of the orders which may be made under Part IV have already been discussed in connection with the punishments with which they are associated, eg suspension of 82 detention and suspension of fines. Other orders which may be made by a Service tribunal on a convicted person are discussed in the following paragraphs. CONVICTION WITHOUT PUNISHMENT General 11.60 Instead of imposing a punishment on a convicted person, a Service tribunal may make an 83 order that the conviction be recorded as a conviction without punishment. Such an order may be made either unconditionally or on the condition that the convicted person gives an undertaking to be of 84 good behaviour for a period of 12 months. Matters to be Considered 11.61 In deciding whether to impose a conviction without punishment, a Service tribunal should have regard to such matters as the character, previous record, age or health of the convicted person or to the trivial nature of the offence, the extenuating circumstances under which the offence was committed or to any other relevant matter. First Offenders 11.62 A conviction without punishment may be appropriate in a case where a young soldier, sailor or airman has been convicted of a first offence of a minor nature. In such a case, provided that the Service tribunal is of the belief that the offender is likely to have learned a salutary lesson as a consequence of being charged and convicted, it should normally order that a conviction be recorded without punishment. Whether such an order should be made on condition that the offender undertakes to be of good behaviour for 12 months is a question on which the tribunal must exercise its discretion according to the circumstances of the case. As a general rule, a bond should not be required except in relatively serious cases or where there is some likelihood that the offender will not be of good behaviour in the future. Breach of Undertaking to be of Good Behaviour 11.63 A person breaches an undertaking to be of good behaviour where he is convicted by a Service tribunal of a Service offence that was committed within 12 months of giving the undertaking. In this situation, the Service tribunal who convicts the person of the later offence may impose a punishment on him (or make an appropriate order under Part IV of the DFDA) in respect of the offence to which the undertaking related. However where a summary authority confiders that an elective punishment should be imposed for the offence to which the undertaking related, he must give the person an opportunity to elect to be punished by a court martial or Defence Force magistrate for that offence as well as the later offence of which the person has been convicted. 11.64 Before taking any action in relation to a breach of an undertaking to be of good behaviour, a Service tribunal must be satisfied that by reason of the commission of the later offence the person has

81

DFDA s.130(1)(g); s.132(1)(g); s.135(1)(g). See paragraphs 11.27 and 11.42. DFDA s.75(1). DFDA s.75(2).

82

83

84

ADFP 201 VOLUME 1 1121 failed to be of good behaviour. If it is not satisfied that the later offence of which the person has been convicted is sufficiently serious to constitute bad behaviour, the tribunal should take no action in respect of the offence to which the undertaking related. 11.65 Once it is satisfied that the breach of undertaking merits punishment (or other action under Part IV) the tribunal should hear evidence in relation to the offence to which the undertaking related. In effect this means that the tribunal should read the record of evidence taken at the trial of the offence, in order to ascertain the nature and circumstances of the offence, and may also hear evidence from witnesses who gave evidence at the trial. The offender may give evidence himself or call witnesses to give evidence on matters which are relevant to determination of punishment. RESTITUTION AND REPARATION ORDERS Restitution 11.66 Where a person is convicted of an offence involving theft of property, a Service tribunal may make appropriate orders, under s.83 of the DFDA, for restoration of the property to its rightful owner. Such orders, known as restitution orders, are restricted to property that is in the custody or control of the prosecution and may be made instead of or in addition to imposing a punishment or ordering that a conviction be recorded without punishment. Circumstances in which Restitution Orders may be Made 11.67 Restitution orders may be made under the following circumstances: a. If the whole or part of the stolen property is in the custody or control of the prosecution 85 a Service tribunal may order that it be repaid or restored to its rightful owner. If any property (other than money) is obtained by the conversion or exchange of any of the stolen property, and is in the custody or control of the prosecution, a Service tribunal may order that the property be delivered to the rightful owner of the stolen 86 property. For example, X steals $100 from Y and uses the money to purchase a wet suit; in due course the wet suit comes into the possession of the prosecution (probably because it forms part of the evidence in the case). Having convicted X of stealing, the Service tribunal may then make a restitution order (under DFDA s.83) directing that the wet suit be delivered to Y. This remedy is likely to be appropriate only in a small number of cases where the convicted person is unable to make monetary compensation by way of 'reparation'; see paragraph 11.68. Where the convicted person exchanged the stolen property for other property from an identified and innocent third person, a Service tribunal may order that the stolen property be restored to the original owner, and the property held by the Service tribunal be returned to the third party. For example, X steals a spear-gun from Y and gives it to Z in exchange for a wet suit; Z is unaware that the spear-gun has been stolen. In due course, the wet suit comes into the control and custody of the prosecution. In this situation a Service tribunal may, after convicting X of stealing, order that when Z has restored the spear-gun to Y the wet suit is to be delivered to Z.

b.

c.

85

DFDA s.83(1)(a) and (b). DFDA s.83(2).

86

ADFP 201 VOLUME 1 1122 Reparations 11.68 A Service tribunal is empowered under DFDA s.84 to order a convicted person to make 87 financial reparation of a just amount to a person who sustained loss or damage as a consequence of the offence. Such an order may be made instead of or in addition to imposing a punishment or ordering that a conviction be recorded without punishment. 11.69 A reparation order may be made to compensate a person for loss of or damage to property and to cover certain costs associated with personal injuries such as doctors' expenses and loss of wages. In effect, reparations are analogous to special damager in a civil court in that they are intended to compensate a person for the actual and temporary loss which has in fact occurred. 11.70 Where a Serviceman is injured as a consequence of a Service offence, the convicted person may be required to pay to the Commonwealth an amount by way of reparation to cover the cost of medical treatment given to the victim at Commonwealth expense. However, no reparation should be ordered for loss of Service in respect of any period during which a Serviceman was unable to carry out his duties as a consequence of injuries caused by the convicted person. Any order to pay reparations which is made by a Service tribunal does not affect any other right or remedy that a person may have under the ordinary law in respect of any loss or damage occasioned by the Service 88 offence. Maximum Amounts Payable by Way of Reparation 11.71 A summary authority may order that a person pay by way of reparation an amount not 89 exceeding the amount of the convicted person's pay for 14 days. A court martial or Defence Force 90 magistrate may order reparation of any amount. In any case in which it orders that reparations are to 91 be paid, a Service tribunal may order payment to be made either in one sum or by instalments. Where a person is directed to pay reparations by instalments and default is made in payment, all 92 instalments then remaining unpaid thereupon become due and payable. Execution and Enforcement of Restitution and Reparation Orders 11.72 A restitution order or a reparation order imposed by a Service tribunal does not take effect 93 unless approved by a reviewing authority. Also, even when these orders made by a court martial or Defence Force magistrate are approved by a reviewing authority, they are suspended until the expiration of the period during which an appeal or an application for leave to appeal may be made to 94 the Defence Force Discipline Appeals Tribunal. If an application for leave to appeal or an appeal is duly lodged, the orders remain suspended until the application is finally dismissed or the appeal is 95 finally determined or abandoned. However, where title to the property in relation to which a restitution order has been made is, in the opinion of a reviewing authority, not in dispute, the reviewing

87

A person includes a body politic (eg the Commonwealth) or a corporation (Acts Interpretation Act s.22). DFDA s.84(5). DFDA s.84(2). DFDA s.84(2). DFDA s.84(3). DFDA s.174(3). DFDA s.172(3). DFDA s.173(1)(a). DFDA s.173(1)(b).

88

89

90

91

92

93

94

95

ADFP 201 VOLUME 1 1123 authority may direct that the restitution order take effect immediately. In the event that an appeal against conviction is successful, a restitution order or reparation order that has been suspended 97 pending the appeal does not take effect. 11.73 An amount that is due and payable under any reparation order may be recovered by deduction from pay, wages or salary payable to the person by the Commonwealth and may be paid to 98 the person in whose favour the order was made. The amount may also be recovered by action in a 99 civil court as a debt due to the person in whose favour the order was made.
96

96

DFDA s.173(2). DFDA s.173(3). DFDA s.174(2)(a). DFDA s.174(2)(b).

97

98

99

ADFP 201 VOLUME 1 CHAPTER 12

REVIEWS AND APPEALS

SECTION 1 REVIEWS GENERAL 12.1 The Defence Force Discipline Act (DFDA) provides for automatic review of all convictions and punishments imposed by Service tribunals. The Act also provides for review on petition to a reviewing authority and review by a Service chief. These various kinds of reviews operate separately from appeals to the Defence Force Discipline Appeal Tribunal (DFDAT) under the Defence Force Discipline Appeals Act (DFDAA). 12.2 The principal differences between appeals and reviews is that reviews are available in relation to convictions and punishments imposed by all Service tribunals and are conducted by officers in the Defence Force who are appointed for the purpose; on the other hand, appeals to the DFDAT are available only in relation to convictions by courts martial or Defence Force magistrates (DFM) and are heard by a tribunal consisting, usually, of not less than three judges who are appointed by the Governor-General. 12.3 This chapter provides guidance on the avenues of review and the manner in which reviews are to be conducted. It also examines the powers of reviewing authorities in relation to a wrongful conviction or a wrongfully imposed punishment. REVIEWING AUTHORITIES 12.4 A Service chief may by instrument in writing appoint an officer, or each officer included in a class of officers, to be a reviewing authority for the purpose of reviewing the proceedings of Service tribunals. The officer may be appointed to review the proceedings of all Service tribunals or those of a 2 specified kind. For example, a GOC or AOC or Flag Officer Commanding would, in the normal course of events, hold an appointment as a reviewing authority for all Service tribunals. On the other hand an officer of the rank of colonel or equivalent would probably be appointed as a reviewing authority only of summary proceedings. 12.5 Subject to any limitations created in the instrument of appointment, an officer who has been appointed as a reviewing officer may exercise any of the powers and functions that are conferred on 3 reviewing officers by the DFDA or regulations made under the Act. The specific functions and powers of reviewing officers are described in later paragraphs. 12.6 Although a reviewing officer is required to review proceedings of Service tribunals, he is in fact required to obtain a report on the proceedings from a legal officer and is bound by any opinion of 4 law set out in the report. 12.7 Proceedings before a court martial or DFM may be reviewed by the Authority who convened the court martial or referred the charge(s) to the DFM or may be reviewed by another reviewing authority. Proceedings conducted by one Service may be reviewed by a reviewing authority of another Service.
1

ie CDF, CN, CA or CAF DFDA s.150 DFDA s.150 See paragraph 12.13

ADFP 201 VOLUME 1 122 AVENUES OF REVIEW Preliminary Automatic Review by Commanding Officer 12.8 As soon as practicable after a subordinate summary authority convicts a person of a Service offence he is required to send a record of the proceedings to his commanding officer. The commanding officer is required to review these proceedings and for that purpose is deemed to be a 5 reviewing authority, ie he may exercise the powers and functions of a reviewing officer. In the course of reviewing the proceedings a commanding officer may, but is not obliged to, obtain a report from a legal officer. In the majority of simple cases a commanding officer should not need to obtain such a report. 12.9 After completing the review of the proceedings a commanding officer is required to send the record of proceedings and a report of the results of that review to a legal officer who has been 6 authorised to receive it. In turn, the legal officer may send the record and report to a reviewing authority who is then required to review the record of proceedings as if it were a record of proceedings of any other Service tribunal (see paragraph 12.11). 12.10 For the purposes of reporting the results of a review, it is sufficient if a commanding officer completes the appropriate sections contained in Form PD 105. Automatic Review by Reviewing Authority 12.11 As soon as practicable after a Service tribunal (other than a subordinate summary authority) convicts a person of a Service offence, the tribunal is required to send the record of proceedings to a 7 reviewing authority. The record of proceedings is also to be sent to a reviewing authority as soon as practicable after a court martial or DFM acquits a person on the ground of unsoundness of mind or 8 finds that the person is unfit to stand trial by reason of unsoundness of mind. In respect of court martial and DFM convictions and punishments, the person that convened the court martial or referred the matter to the DFM should not perform reviews in respect of those convictions or punishments. That is, automatic and higher reviews should be conducted by a reviewing authority other than the convening authority. 12.12 A reviewing authority is required to review the record of these proceedings as soon as practicable after receiving it. Similarly, a reviewing authority is required to review any record of proceedings of a subordinate summary authority which has been transmitted to him after preliminary 9 review by a commanding officer. 12.13 Except in respect of subordinate summary authority convictions, a reviewing authority must obtain and consider a report from a legal officer before conducting a review. If a conviction or direction under sections 145(2) or 145(5) has been made by a court martial or DFM, the legal report must be provided by a legal officer that has been appointed by a Service chief on the recommendation of the 10 Judge Advocate General (JAG). The Judge Advocate Administrator (JAA) is responsible for nominating a legal officer to provide a report in respect of the review of courts martial and DFM convictions and directions. In all other cases, the legal report in respect of an automatic review may be provided by any ADF legal officer. There is no requirement for that legal officer to be nominated by

DFDA s.151(2). The legal officer referred to may or may not be the same legal officer who is authorised in writing to make reports to a reviewing authority on the proceedings of Service tribunals. DFDA s.152(1). DFDA s.152(1) DFDA s.152(2). DFDA s.154(1).

10

ADFP 201 VOLUME 1 123 the JAA. A reviewing authority is bound by any opinion on a question of law set out in a report obtained from a legal officer. However, he may refer the report to the JAG or, if the JAG directs, to a 11 Deputy JAG for a further opinion. The JAG or Deputy JAG may dissent from the opinion expressed by the legal officer and if he does so he must furnish to the reviewing authority his own opinion on the 12 question. This opinion is binding on the reviewing authority. 12.14 Where, at any time before or after a reviewing authority commences to review proceedings of a Service tribunal that have resulted in a conviction, the convicted person lodges an appeal or application for leave to appeal to the DFDAT, the review is suspended and the reviewing officer may not exercise any of his powers. However, if the appeal or application is dismissed, the reviewing officer may continue his review of punishment (or other action under part IV of the DFDA) but may not 13 review the conviction. Similarly, where a person appeals or applies for leave to appeal to the DFDAT against an acquittal on the grounds of unsoundness of mind, a reviewing authority may not continue to 14 exercise his powers of review in relation to the case. Review on Petition to a Reviewing Authority 12.15 In addition to automatic review by a reviewing authority, where a Service tribunal convicts a person of a Service offence, the person may lodge with the reviewing authority a petition for review of the proceedings concerned. In most cases it will be in the interests of a convicted person to await the outcome of the automatic review before lodging a petition to a reviewing authority. However, one notable exception to this ill be where the convicted person wishes to seek a stay of execution of punishment in accordance with s.176 of the DFDA (see para 12.51). The petition must be lodged within 90 days after the conviction or within such further period as a reviewing authority allows. Alternatively, where a person has appealed or applied for leave to appeal to the DFDAT and the appeal or application has been dismissed, he must lodge the petition within 60 days of the dismissal or 15 such further period as the reviewing authority allows. A reviewing authority may not exercise any of his powers of review in relation to a conviction which is the subject of an appeal or application for leave to appeal to the DFDAT. When an appeal or application is dismissed the right to petition a reviewing authority revives. However, the reviewing authority may then exercise his powers of review 16 only in relation to punishment. 12.16 A petitioner must set out the grounds on which he relies for the exercise of the powers of a 17 reviewing authority. This requirement for a convicted person to state his case is what distinguishes review by petition from automatic review. Petitioners should state their grounds clearly and unequivocally and should also be careful to avoid raising irrelevant issues or using threatening, abusive or insubordinate words, unless such words form a necessary part of the petition. In most cases it would be desirable for a person who intends to seek review by way of petition to obtain the 18 assistance of a legal officer in drafting the petition. The legal officer's assistance will be provided without expense to the petitioner. 12.17 As soon as practicable on receipt of a petition and in any event within 30 days after receipt, a reviewing authority must review the proceedings and notify the petitioner, in writing, of the result of

11

DFDA s.154(3). DFDA s.154(4). DFDA s.156. DFDA s.156 DFDA s.153. DFDA s.156. DFDA s.153(3). For further information on the lodging of petitions see Annex A.

12

13

14

15

16

17

18

ADFP 201 VOLUME 1 124 that review. In reviewing the proceedings the authority must have regard to the grounds set out in the 19 petition and must exercise his powers of review in accordance with the DFDA (see later paragraphs). 12.18 Before reviewing a petition, the reviewing authority must obtain and consider a legal report that has been prepared by a legal officer in accordance with s.154 of the DFDA. If a conviction or direction under sections 145(2) or 145(5) has been made by a court martial or DFM, the legal report must be provided by a legal officer that has been appointed by a Service chief on the recommendation of the JAG. The JAA is responsible for nominating a legal officer to provide a report in respect of the review of courts martial and DFM convictions and directions. In all other cases, the legal report in respect of an automatic review may be provided by any ADF legal officer. There is no requirement for that legal officer to be nominated by the JAA. Unless Service exigencies require otherwise, the legal report should be obtained from a different legal officer to the one that provided the legal report in connection with the automatic review. Legal reports are binding on the reviewing authority on questions of law. Review by Service Chief 12.19 A petition for further review may be made to a Service chief if it appears to a Service chief that there are sufficient grounds to justify such a petition. Normally it will be in the interests of a convicted person to initiate and await the outcome of a review by petition before petitioning a Service chief. However, before commencing a review, a Service chief must obtain a report on the proceedings from the JAG or, if the JAG so directs, from a Deputy JAG. Requests for such reports are to be made to the JAA within the Defence Legal Office. The Service chief is bound by any opinion on a question 20 of law which is set out in such a report. 12.20 An application for review by a Service chief may be made at any time after the proceedings have been reviewed on petition by a reviewing authority. The Service chief may not conduct a review of proceedings which are the subject of an appeal or application for leave to appeal to the DFDAT. However, if the appeal or application is dismissed, the right to apply for review by a Service chief 21 revives except that he may exercise his power of review only in relation to punishment. When application is made for review by a Service chief, a copy of the record of proceedings, the petition made to the reviewing authority and the notification of the result of the review by that authority must be 22 forwarded with the application. REVIEW OF CONVICTIONS General 12.21 A reviewing authority is empowered to quash any conviction by a Service tribunal which has not been made according to law. (The particular grounds for quashing convictions are set out in paragraphs 12.23 to 12.26.) Where a reviewing authority quashes a conviction, he may order a new trial or, in an appropriate case, substitute a conviction of an alternative offence. Where the authority quashes a conviction but does not order a new trial of the person for the offence, the person is 23 deemed to have been acquitted of the offence. A reviewing authority who quashes a conviction should inform the appropriate summary authority of the reasons for the quashing. Grounds for Quashing Convictions 12.22 A reviewing authority must quash a conviction where it appears to him:

19

DFDA s.153(4). DFDA s.155. DFDA s.156. For further information on applications for review by a Service chief, see Annex A. DFDA s.159.

20

21

22

23

ADFP 201 VOLUME 1 125 a. that the conviction is unreasonable or cannot be supported having regard to the evidence; that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction was wrong in law and that a substantial miscarriage of justice has occurred; that there was a material irregularity in the course of the proceedings and that a substantial miscarriage of justice has occurred; or that in all circumstances of the case the conviction is unsafe and unsatisfactory .
25 24

b.

c.

d.

Quashing Conviction on the Ground of Unsoundness of Mind

12.23 Where a reviewing authority is satisfied that at the time of the alleged offence the convicted person was suffering from such unsoundness of mind as not to be responsible in law for his actions the reviewing authority must: a. b. quash the conviction, substitute for the conviction so quashed an acquittal on the ground of unsoundness of mind, and direct that the person be kept in strict custody until the pleasure of the 26 Governor-General is known.

c.

12.24 A reviewing authority may also quash a conviction where it appears that a court martial or DFM should have found that the convicted person by reason of unsoundness of mind was not able to understand the proceedings against him and accordingly was unfit to stand trial. Where a reviewing authority quashes a conviction on this ground he must also direct that the person be kept in strict 27 custody at the pleasure of the Governor-General. 12.25 A reviewing authority may not quash a conviction on the ground of unsoundness of mind if 28 the conviction may be quashed on other grounds. Receiving Other Evidence 12.26 In the course of a review, a reviewing authority is empowered to receive and consider evidence that was not reasonably available during the proceedings, is likely to be credible and would have been admissible in the proceedings. If he considers that the conviction cannot be supported 29 having regard to that evidence he is required to quash the conviction. Ordering a New Trial 12.27 A reviewing authority may order a new trial of a person who has been convicted of a Service offence where the conviction was recorded within the preceding six months and where he considers that it is in the interests of justice for a new trial to be held. An order for a new trial lapses unless the new trial commences within a period of six months from the day on which the order was made. Where

24

DFDA s.158(1). As to insanity and unfitness to plead, see paragraphs 5.70, 5.71. DFDA s.158(3). DFDA s.158(4). DFDA s.158(5). DFDA s.158(2).

25

26

27

28

29

ADFP 201 VOLUME 1 126 a reviewing authority makes an order for a new trial of a person he may also make any orders for the 30 custody of the person which he considers appropriate. 12.28 The provision for ordering a new trial is intended to ensure that those persons who are guilty of serious offences be brought to justice and not escape it merely because of some technical blunder by the Service tribunal in the conduct of the trial. On the other hand, a new trial ought not be ordered by a reviewing authority simply to provide the prosecution with another chance to cure evidential 31 deficiencies in the case against the accused person. Accordingly, before ordering a new trial, a reviewing authority must be satisfied that any additional evidence which is received in the course of the review was in fact not reasonably available during the trial. Where such evidence was reasonably available but was not given at the trial the interests of justice may not be served by ordering a new trial unless the offence is of a very serious nature. Substitution of Conviction of Alternative Offence 12.29 Where a reviewing authority quashes a conviction of a person for a Service offence he may substitute a conviction for another offence. The substituted conviction must be for a Service offence that is an alternative offence within the meaning of s.142 in relation to the original offence (see paragraph 4.3), or a Service offence with which the person was charged in the alternative and in respect of which the Service tribunal did not record a finding. Before substituting a conviction on another offence, a reviewing authority must be satisfied beyond reasonable doubt of facts that prove 32 that the person was guilty of the other Offence. 12.30 Where a reviewing authority has substituted a conviction for the original conviction he may impose a punishment (or take any other action under Part IV of the DFDA) on the convicted person which could have been imposed or taken by the Service tribunal who convicted the person. However, the reviewing authority may not impose a punishment or make a reparation order with respect to the substituted conviction unless a punishment had been imposed or a reparation order had been made with respect to the original conviction. Furthermore, a reviewing authority may not impose a punishment which is more severe than the punishment that was imposed for the original offence nor may he make a reparation order for an amount that exceeds the amount of the reparation order in 33 respect of the original offence. POST REVIEW NOTIFICATION 12.31 At the conclusion of a review under the DFDA, the reviewing authority should ensure that the individual whose conviction or punishment is the subject of review action is advised of the results of the review. Such notification should be provided as soon as possible after the review has been conducted. In addition, in some cases it will be appropriate for the reviewing authority to advise other affected parties of the results of a review. For example, in respect of offences against the person of another, it would normally be appropriate to advise the victim of the results of any review. Further, the reviewing authority should ensure that relevant personnel and administrative areas (such as the individuals pay office if financial punishments have been imposed) are advised of the results of the review.

30

DFDA s.160. See Reid v The Queen [1979] 2 All ER at 909. DFDA s.161(1). DFDA s.161(2).

31

32

33

ADFP 201 VOLUME 1 127 REVIEW OF PUNISHMENTS OR ORDERS General 12.32 A reviewing authority may quash a punishment or revoke an order (or both quash a punishment and revoke an order) which has been imposed or made by a Service tribunal where it 34 appears that the punishment or order is wrong in law or is excessive. Punishments etc which are Wrong in Law 12.33 A punishment may be wrong in law for a number of reasons. For example, it may exceed the powers of punishment which may lawfully be exercised by the Service tribunal concerned or may involve a wrong combination of punishments (eg the punishment of dismissal being imposed in 35 conjunction with the punishment of detention) or may involve the non-fixing of a minimum term of imprisonment, contrary to DFDA s.72. In most cases a punishment or order which is wrong in law will be readily apparent simply by reference to the relevant part of the DFDA and, where necessary, by examination of the guidance on punishments and orders contained in Chapter 11. Punishments etc which are Excessive 12.34 In many cases it may not appear that a punishment or order should be quashed or revoked on the ground that it is excessive as this involves a number of subjective considerations. Nevertheless, the test which should be applied by a reviewing authority is whether the Service tribunal erred in the application of the appropriate sentencing principles in the circumstances of the case. The appropriate sentencing principles are contained in s.70 of the DFDA and are set out briefly in paragraphs 11.2 to 11.4. 12.35 Some of the particular matters which a reviewing authority needs to consider in a review of punishments are set out in subsequent paragraphs. Taking Other Offences into Consideration 12.36 A reviewing authority may annul the taking into consideration by a court martial or DFM of a Service offence. He is required to do so where the Service offence which had been taken into consideration was similar to a conviction which had been quashed or where he considers that in purporting to take the Service offence into consideration the court martial or DFM exceeded its 36 powers. 12.37 Where a reviewing authority annuls the taking into consideration of a Service offence, the offence is then deemed not to have been taken into consideration by the court martial or DFM Accordingly, any admission which has been made by the accused in relation to that Service offence may become admissible in any other proceeding before a Service tribunal in respect of that Service offence or in any proceeding in a civil court in respect of an offence that is substantially the same as the Service offence. Elective Punishments 12.38 Where a reviewing authority is of the opinion that a summary authority has imposed an elective punishment on a convicted person otherwise than in accordance with s.131 of the DFDA he is 37 required to quash the punishment. In effect, this means that he must quash an elective punishment

34

DFDA s.162(1). See paragraph 11.9. DFDA s.162(2), 77. DFDA s.162(3).

35

36

37

ADFP 201 VOLUME 1 128 which was imposed by a commanding officer or superior summary authority where the convicted 38 person was not offered the right to elect trial or punishment by court martial or DFM. 12.39 Where an accused person has elected trial by court martial or DFM, a summary authority may nevertheless proceed with the trial of the accused if the authority considers that the exigencies of service warrant this course of action. In this situation, where the summary authority has continued the trial, convicted the accused and then imposed on him an elective punishment, the reviewing authority may quash the punishment if, in his opinion, the exigencies of service would have permitted trial by 39 court martial or DFM without undue delay. Substitution of Punishment or Order 12.40 When a reviewing authority has quashed a punishment or revoked an order he may substitute another punishment or order on the convicted person provided he does not: a. b. c. impose a punishment that is more severe than the original one; make a reparation order for an amount that exceeds the original order; or if the punishment imposed by the Service tribunal was a custodial punishment, impose 40 a non-custodial punishment (and vice versa) .

12.41 The authority may not take any further action in relation to a convicted person where he has 41 annulled the taking into consideration of a Service offence. Fixing a Non-parole Period 12.42 A reviewing authority may fix a non-parole period where this has not been done by a Service tribunal which has imposed a punishment of imprisonment on a convicted person. For this purpose, 42 the reviewing authority is deemed to be the Service tribunal concerned. . Suspending the Punishment of Detention 12.43 Where it appears to a reviewing authority that a punishment of detention which has been imposed by a Service tribunal should be suspended, he may make an order suspending the punishment or such part of it as has not been served. Such an order, while in force, prevents the 43 punishment from being put into execution or continuing (if it has already commenced). OTHER MATTERS RELATING TO REVIEW OF PUNISHMENTS AND ORDERS Punishments and Orders which are Subject to Approval 12.44 The following punishments imposed by any Service tribunal do not take effect unless approved by a reviewing authority: a. imprisonment for life,

38

The right to elect punishment by court martial or DFM is limited to a person who is in breach of an undertaking to be of good behaviour for 12 months. See paragraph 11.63 et seq. DFDA s.162(4). DFDA s.162(5). DFDA s.162(2). DFDA s.162(6), (7); see paragraph 11.16 re fixing a non-parole period DFDA s.162(8), (9).

39

40

41

42

43

ADFP 201 VOLUME 1 129 b. c. d. e. f. g. imprisonment for a specific period, dismissal from the Defence Force, segregated confinement for a period exceeding three days, confinement to cell for a period exceeding three days, extra drill for a period exceeding three days, and restriction of custodial privileges for a period exceeding seven days.
44

12.45 The following punishments, when imposed by a summary authority, do not take effect unless approved by a reviewing authority: a. b. c. d. detention, reduction in rank, forfeiture of seniority, and a fine imposed on a member of the Defence Force that exceeds the amount of his pay 45 for 14 days.

12.46 A restitution order or reparation order imposed by a Service tribunal does not take effect 46 unless approved by a reviewing authority. When Approved Punishments Take Effect 12.47 A reviewing authority who has approved a punishment or an order must determine when the 47 punishment or order is to take effect; otherwise the punishment or order takes effect forthwith. Normally, the authority should choose a date which allows sufficient time for the written notification of the results of the review to be returned to the offender's commanding officer and for the offender to be informed of these results. A reviewing authority must quash a punishment or revoke an order which he 48 does not approve. Substitution of Punishments or Orders where the Original Punishment or Order is not approved 12.48 Where a reviewing authority does not approve a punishment or order he may quash the punishment or revoke the order (as the case may be). He may then substitute another punishment or order provided he does not: a. b. impose a punishment which is more severe than the original one; make a reparation order for any amount that exceeds the original order; or

44

DFDA s.172(1). DFDA s.172(2). DFDA s.172(3). DFDA s.168, s.171. DFDA s.169(1).

45

46

47

48

ADFP 201 VOLUME 1 1210 c. if the punishment imposed by the Service tribunal was a custodial punishment, impose 49 a non-custodial punishment (and vice versa).

Custody of Convicted Persons Pending Approval of Certain Punishments 12.49 A person on whom a punishment of imprisonment is imposed may be kept in custody pending approval of the punishment by a reviewing authority. If the punishment is approved, any day 50 on which the person was so kept in custody counts as a day of that imprisonment. 12.50 A person on whom a punishment of dismissal from the Defence Force is imposed may be 51 kept in custody pending approval of the punishment by a reviewing authority. 12.51 A person on whom a punishment of detention is imposed by a summary authority may be kept in custody pending approval of the punishment by a reviewing authority. If the punishment is 52 approved, any day on which the person was so kept in custody counts as a day of that detention. Stay of Execution of Punishment 12.52 A reviewing authority may order that execution of a punishment is to be stayed when a convicted person lodges a petition with respect to conviction or punishment or notifies the reviewing authority that he has appealed or applied for leave to appeal under the DFDAA against the conviction. The execution of the punishment may be stayed in whole or in part pending the determination of the 53 appeal or petition. ACTION ON REVIEW OF PROCEEDINGS THAT HAVE RESULTED IN AN ACQUITTAL ON THE GROUND OF UNSOUNDNESS OF MIND General 12.53 As explained in paragraph 12.11, where a court martial or DFM acquits a person on the ground of unsoundness of mind or finds that by reason of unsoundness of mind a person is unfit to stand trial, the record of proceedings must be forwarded to and reviewed by a reviewing authority. On review of the record of proceedings the reviewing authority is empowered to quash an acquittal of a person on the ground of unsoundness of mind and to exercise other powers in relation to the person. These matters are explained in subsequent paragraphs. In the course of this explanation, the term 54 prescribed acquittal will be used to describe an acquittal on the ground of unsoundness of mind. Quashing of a Prescribed Acquittal 12.54 A reviewing authority may quash a prescribed acquittal where it appears to him: a. that the prescribed acquittal is unreasonable or cannot be supported having regard to the evidence; that the prescribed acquittal is wrong in law and that a substantial miscarriage of justice has occurred;

b.

49

DFDA s.169(2). DFDA s.172(3A). DFDA s.172(4). DFDA s.172(5). DFDA s.176. See definition of prescribed acquittal in s.3(1) of the DFDA.

50

51

52

53

54

ADFP 201 VOLUME 1 1211 c. that there was a material irregularity in the course of the proceedings and that a substantial miscarriage of justice has occurred; or that in all the circumstances of the case, the prescribed acquittal is unsafe or 55 unsatisfactory.

d.

Receiving Other Evidence 12.55 In the course of a review, a reviewing authority is empowered to receive and consider other evidence that was not reasonably available during the proceedings, that is likely to be credible and would not have been admissible in the proceedings. If he considers that the prescribed acquittal 56 cannot be supported having regard to the evidence, he is required to quash the conviction. Finding of "Unfit to Plead" 12.56 Where it appears to a reviewing authority that a Service tribunal should have found that a person, by reason of unsoundness of mind, was unfit to stand trial, he is required to quash the prescribed acquittal and direct that the person be kept in strict custody at the pleasure of the 57 Governor-General. In any case where the reviewing authority quashes a prescribed acquittal but does not find that the person was unfit to plead and does not order a new trial, the person is deemed 58 to have been acquitted of the offence without qualification. Ordering a New Trial 12.57 A reviewing authority who quashed a prescribed acquittal which was recorded within the preceding six months may order a new trial of the person for the offence. He should do so when he considers that it is in the interests of justice for the offence to be retried. 12.58 An order for a new trial lapses unless the trial commences within six months of the day on which the order was made. Pending the new trial, the reviewing authority may make such further 59 orders for the custody of the person as he thinks appropriate. SECTION II - APPEALS GENERAL 12.59 A person who has been convicted by a court or Defence Force magistrate may appeal against the conviction to the Defence Force Discipline Appeal Tribunal (DFDAT)under the Defence 60 Force Discipline Appeals Act 1955. (DFDAA) The Tribunal has power to quash a conviction, 61 substitute a conviction for an alternative offence or order a new trial. Additionally, in an appropriate case, a question of law may be referred by the Tribunal to the Federal Court and an appeal may be made to the Federal Court from a decision of the Tribunal to the Federal Court and an appeal may be 62 made to the Federal Court from a decision of the Tribunal involving a question of law.

55

DFDA s.164(1). DFDA s.164(2). DFDA s.164(3). DFDA s.165. DFDA s.166 The Defence Force Discipline Appeals Act is contained in Volume 2 of the DLM. See paragraphs 12.72 to 12.81. See paragraphs 12.92 to 12.95.

56

57

58

59

60

61

62

ADFP 201 VOLUME 1 1212 12.60 This Part provides guidance on the composition and power of the DFDAT, how appeals may be brought before it and other relevant matters relating to hearings by the Tribunal. References of questions of law and appeals to the Federal Court are also discussed in this Part. DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL Composition of Tribunal 12.61 The DFDAT, formerly the Court Martial Appeal Tribunal, consists of a President, Deputy 63 President and such other members as are appointed, by commission, by the Governor-General. A person is not qualified to be appointed as President or Deputy President unless he is a Justice or a 64 Judge of a Federal Court or of the Supreme Court of a State or Territory. The prerequisite for an appointment as a member of the Tribunal, other than an appointment as President or Deputy President, is that a person be a judge of a superior court (ie is qualified to be appointed as President) 65 or is a Judge of a District Court or County Court of a State. Sittings of the Tribunal 12.62 The Tribunal may sit at such times and places, including places outside Australia, as the 66 67 President determines. Sittings of the Tribunal must generally be held in public. In some cases the 68 powers of the Tribunal may be exercised by a single member; usually, however, the Tribunal must comprise an uneven number of members being not less than three in number of whom one is the 69 70 President or the Deputy President. 12.63 It is not necessary for each member of the Tribunal hearing a particular appeal to declare his opinion thereon or to be present when a reserved decision is given. Instead, the opinion of any one of the members may be reduced to writing and given by any other member at any subsequent sitting of 71 the Tribunal. Sittings before a Single Member 12.64 The powers of the Tribunal may be exercised by a single member with respect to: a.
72

the granting of leave to appeal to the Tribunal against a conviction or a prescribed acquittal; the extension of the period within which, under the DFDAA, an application for leave to appeal to the Tribunal is required to be lodged;

b.

63

DFDAA s.7(1), (2). The members are listed in the Commonwealth Government Directory DFDAA s.8(1). DFDAA s.8(2). DFDAA s.14. DFDAA s.18. See paragraph 12.64. Or a member qualified to be appointed as President. DFDAA s.15. DFDAA s.15A. DFDAA s.17.

64

65

66

67

68

69

70

71

72

ADFP 201 VOLUME 1 1213 c. d. the granting of legal aid to an appellant under the DFD Appeals Regulations;
73

the granting of leave to an appellant to be present at the hearing of an appeal or matter under the DFDAA; and other matters as provided in s.17(1) of the DFDAA.

e.

12.65 A person who is affected by a decision of a single member of the Tribunal may appeal to the Tribunal constituted by not less than three members of appropriate qualifications; see paragraph 12.62 and s.15 of the DFDAA. BRINGING OF APPEALS Who May Appeal 12.66 Subject to the DFDAA a convicted person or a prescribed acquitted person may appeal to 76 the Tribunal against his conviction or prescribed acquittal. An appeal does not lie against a prescribed acquittal if, in the proceedings before a court martial or Defence Force magistrate that resulted in the prescribed acquittal, evidence of the unsoundness of mind of the appellant was 77 adduced by the defence. Grounds of Appeal 12.67 An appeal to the Tribunal on a question of law relating to the conviction or prescribed 78 acquittal of a person lies as of right. An appeal on a ground that is not a question of law may not be 79 brought except by leave of the Tribunal. An appeal or application for leave to appeal to the Tribunal 80 must specify the grounds relied on. 12.68 Where the Tribunal dismisses an appeal or application for leave to appeal, and is of the opinion that the appeal or application was frivolous or vexatious, it may order that any punishment of detention or imprisonment which had been imposed in the proceedings to which the appeal or application relates be taken to commence on the day on which the appeal or application is 81 dismissed. With whom Appeals etc may be Lodged 12.69 An Appeal or application for leave to appeal may be lodged with the Registrar of the Tribunal 82 or a Deputy Registrar or the officer commanding a unit of the Defence Force. The Registrar of the
74 75

73

See Regulation 11 of the DFD Appeals Regulations. See, especially, paragraph 12.67. A prescribed acquitted person means a person who has been acquitted of a Service offence by court martial or DFM on the ground of unsoundness of mind. DFDAA s.20(1). DFDAA s.20(2). DFDAA s.20(1). DFDAA s.20(1). DFDAA s.23(1)(a). DFDAA s.22. DFDAA s 21(1)(b); DFD Appeals Regulations, Reg 9.

74

75

76

77

78

79

80

81

82

ADFP 201 VOLUME 1 1214 Tribunal is also the Australian Capital Territory District Registrar of the Federal Court of Australia; his address is: Childers Street, CANBERRA CITY ACT 2601. Deputy Registrars are located in Sydney, Melbourne and Brisbane at the following addresses (respectively): Law Court Building, Queens Square, SYDNEY NSW 2000 450 Little Bourke Street, MELBOURNE VIC 3000 294 Adelaide Street, BRISBANE QLD 4000 Time Limits on Lodging Appeals etc 12.70 An appeal or application for leave to appeal must be lodged within 30 days of the day on 83 which a convicted person or prescribed acquitted person has been notified of the results of an 84 automatic review by a reviewing authority. Where the results of that automatic review have not been notified to the person within 30 days of his conviction or prescribed acquittal an appeal or application for leave to appeal must be lodged within 60 days of the date of the conviction or prescribed 85 acquittal. 12.71 The Tribunal may allow an extension of the statutory time limit on lodging appeals etc, either 86 before or after the expiration of the appropriate period. DETERMINATION OF APPEALS Receiving Other Evidence 12.72 On hearing an appeal the Tribunal is empowered to receive and consider evidence that was not reasonably available at the trial, is likely to be credible and would have been admissible in the trial. If the Tribunal considers that the conviction or prescribed acquittal cannot be supported having regard 87 to that evidence, it is required to quash the conviction or prescribed acquittal. Quashing of Conviction etc. 12.73 The Tribunal must allow an appeal and quash the conviction or prescribed acquittal where it is of the opinion: a. that the conviction or prescribed acquittal is unreasonable or cannot be supported, having regard to the evidence; that as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction or prescribed acquittal was wrong in law and that a substantial miscarriage of justice has occurred; that there was a material irregularity in the course of the trial and that a substantial miscarriage of justice has occurred;

b.

c.

83

See paragraph 12.66. ie. a review under s.152 of the DFDA. DFDAA s.21(2). DFDAA s.21(1)(a). DFDAA s.23(2).

84

85

86

87

ADFP 201 VOLUME 1 1215 d. that in all the circumstances of the case, the conviction or prescribed acquittal is 88 unsafe or unsatisfactory.

Substitution of Conviction for Alternative Offence 12.74 Where the Tribunal quashes a conviction of a person of a Service offence it may substitute a conviction of another offence. The substituted conviction must be of an alternative offence (within the 89 meaning of s.142 of the DFDA ) in relation to the original offence or a Service offence with which the person was charged in the alternative and in respect of which the Service tribunal did not record a finding. Before substituting a conviction of another offence, the Tribunal must be satisfied beyond 90 reasonable doubt of facts that proved that the person was guilty of the other offence. 12.75 Where the Tribunal has substituted a conviction for the original conviction, it may impose a punishment (or take any other action under Part IV of the DFDA) on the convicted person which could have been imposed or taken by the Service tribunal which convicted the person. However, the Tribunal may not impose a punishment or make a reparation order with respect to the substituted conviction unless a punishment had been imposed or reparation order had been made with respect to the original conviction. Furthermore, the Tribunal may not impose a punishment which is more severe than the punishment that was imposed for the original offence nor may it make a reparation order for 91 an amount that exceeds the amount of the reparation order in respect of the original offence. 12.76 Where the Tribunal imposes a punishment of imprisonment or detention in respect of a substituted conviction the punishment is deemed to commence from the time from which it would have 92 commenced if it had been imposed in the original proceedings. Quashing Conviction on the Ground of Unsoundness of Mind 12.77 Where the Tribunal is satisfied that at the time of the alleged offence the convicted person was suffering from such unsoundness of mind as not to be responsible in law for his actions the reviewing authority must: a. b. quash the conviction, substitute for the conviction so quashed an acquittal on the ground of unsoundness of mind, and direct that the person be kept in strict custody) until the pleasure of the 93 Governor-General is known.

c.

12.78 The Tribunal may also quash a conviction where it appears that a court martial or Defence Force magistrate should have found that the convicted person by reason of unsoundness of mind was not able to understand the proceedings against him and accordingly was unfit to stand trial. Where the Tribunal quashes a conviction on this ground it must also direct that the person be kept in strict 94 custody at the pleasure of the Governor-General.

88

DFDAA s.23(1). See paragraph 4.5. DFDAA s.26(1). DFDAA s.26(2). DFDAA s.26(3). DFDAA s.23(3). DFDAA s.23(4).

89

90

91

92

93

94

ADFP 201 VOLUME 1 1216 12.79 A Tribunal may not quash a conviction on the ground of unsoundness of mind if the 95 conviction may be quashed on other grounds. Ordering a New Trial 12.80 Where the Tribunal quashes a conviction, or a prescribed acquittal, it may order a new trial if 96 it considers that in the interests of justice the person should be tried again. Pending the new trial, the 97 Tribunal may make such further orders for the custody of the person as it thinks fit. Person Deemed to have been Acquitted 12.81 Where the Tribunal quashes a conviction of a Service offence and does not order a new trial, 98 the person is deemed to have been acquitted of the offence. Similarly, where the Tribunal quashes a prescribed acquittal of a person of a Service offence and does not direct that the person be kept in strict custody at the pleasure of the Governor-General or order a new trial, the person is deemed to 99 have been acquitted of the offence without qualification. INCIDENTAL POWERS OF THE TRIBUNAL Powers in Relation to Witnesses and Evidence 12.82 For the purpose of hearing an appeal or application for leave to appeal, the Tribunal may take the following action: a. b. appoint a person to receive evidence on behalf of the Tribunal;
100

summon a person who would have been a compellable witness in the trial to give 101 evidence to the Tribunal or to a person appointed to receive evidence on its behalf; appoint a special commissioner to conduct an examination or investigation which cannot conveniently be conducted by the Tribunal; the tribunal may act upon the 102 opinion of the commissioner; where a special knowledge of a matter is required for the proper determination of an 103 appeal, appoint a person with special knowledge to act as assessor to the Tribunal; and examine witnesses on oath or affirmation.
104

c.

d.

e.

95

DFDAA s.23(5). DFDAA s.24. DFDAA s.25. DFDAA s.41(a). DFDAA s.41(b). DFDAA s.31(1)(a). DFDAA s.31(1)(b). DFDAA s.31(1)(d). DFDAA s.31(1)(e). DFDAA s.33.

96

97

98

99

100

101

102

103

104

ADFP 201 VOLUME 1 1217 Power to Obtain Report 12.83 On the hearing of an appeal, the Tribunal may, where it thinks it necessary or expedient in the interests of justice to do so, direct such steps to be taken as are necessary to obtain a report from the judge advocate (JA) or Defence Force Magistrate (DFM) of the proceedings from which the appeal arose. In the report, the JA or DFM may be required to give his opinion upon the case or upon a point arising in the case or to make a statement as to any facts the ascertainment of which appears to the 105 Tribunal to be material for the purpose of determining the appeal. Warrants 12.84 The Tribunal may issue any warrant necessary for the enforcement of any action taken by it 106 in relation to an appellant. Where the Tribunal issues a warrant for the commitment of a person to a 107 prison or a detention centre the warrant is deemed to be issued under s.170(1) of the DFDA. Costs 12.85 Where the Tribunal allows an appeal it may, if it thinks fit, direct that the Commonwealth pay the costs incurred by the appellant in connection with his appeal or in carrying on his defence against 108 a charge or charge out of which the appeal arose. The Tribunal may order costs against an appellant where it dismisses an appeal application for leave to appeal. These costs may include the whole or any part of the costs of the appeal or application including allowances paid to a witness and 109 the costs of copying or transcribing any documents for the use of the Tribunal. Restitution Order and Reparation Orders 12.86 The Tribunal may vary or annul a restitution or reparation order made by a court martial or Defence Force magistrate whether or not it quashes the conviction in respect of which the order was 110 made. If the order is annulled, it has no effect; if the order is varied it takes effect as varied. REPRESENTATION AND ATTENDANCE OF APPELLANT AT HEARINGS Attendance of Appellant 12.87 An appellant is entitled to be present at the hearing of his appeal or of a matter preliminary or 111 incidental to the appeal where the DFD Appeal Regulations so provide or with leave of the Tribunal. Since the Regulations currently make no provision in this regard, attendance of the appellant at a hearing is, in fact, only with leave of the Tribunal. Leave may be granted by a single member of the 112 Tribunal or by the Tribunal when fully constituted.

105

DFDAA s.36. DFDAA s.35(1). DFDAA s.35(2). DFDAA s.37(1). DFDAA s.37(3). DFDAA s.38. DFDAA s.39(3). DFDAA s.17.

106

107

108

109

110

111

112

ADFP 201 VOLUME 1 1218 Representation of Appellant 12.88 An appellant may be represented at a hearing of his appeal before the Tribunal, or a matter 113 A legal practitioner in this context preliminary or incidental to the appeal, by a legal practitioner. means a barrister or solicitor of the High Court or of the Supreme Court of a State or Territory. In relation to a hearing by the Tribunal at a place outside Australia, a person who is authorised by law to 114 practise as a legal practitioner at the place may represent an appellant. A legal officer in the Defence Force, who is a legal practitioner as defined above, may represent an appellant at a hearing before the Tribunal. Defence of Appeals 12.89 A Service chief is required to arrange the undertaking of the defence of an appeal before the 115 tribunal. OFFENCES IN RELATION TO THE TRIBUNAL Offences 12.90 A person may be tried summarily in a civil court where he commits certain offences in relation to the Tribunal. These offences include: failure to attend the Tribunal or produce documents when summoned to do so, failure by a witness to continue in attendance or refusal by a witness to be sworn or to give evidence. Other offences are: wilfully insulting or disturbing the Tribunal, interrupting proceedings, seeking to influence improperly the Tribunal or a witness or seeking to bring the Tribunal into disrepute. Where a person is convicted of any of these offences he is liable to a fine of $1,000 or 116 imprisonment for 6 months. Contempt 12.91 Where a person commits an offence of the kind described in paragraph 12.89 he is also guilty of contempt of the Tribunal. The contempt is punishable by the Supreme Court of a State or 117 Territory; however, a punishment may not be imposed twice in respect of the same offence. REFERENCES AND APPEALS FROM THE TRIBUNAL TO THE FEDERAL COURT References During Hearings Before the Tribunal 12.92 In the course of a hearing before the Tribunal, other than where it is constituted by a single member, the Tribunal of its own motion or at the request of an appellant or Service chief may refer a 118 question of law arising in the hearing to the Federal Court. The Full Court of the Federal Court may hear and determine this question of law. Pending determination of a question of law, the Tribunal may not give a decision to which the question is relevant. On receiving the opinion of the Federal Court, the 119 Tribunal may not proceed or make a decision in a manner which is inconsistent with the opinion.

113

DFDAA s.39(1). DFDAA s.39(4). DFDAA s.42. DFDAA ss 43-48. DFDAA s.50. DFDAA s.51(1). The former requirement under the Courts Martial Appeals Act 1955, to obtain a certificate from the Attorney General before a matter could be referred to the Federal Court, is abolished. DFDAA s.51(2), (3).

114

115

116

117

118

119

ADFP 201 VOLUME 1 1219 Appeals from Decisions of the Tribunal 12.93 An appellant or a Service chief may appeal to the Federal Court on a question of law involved in a decision of the Tribunal in respect of an appeal. The Full Court of the Federal Court may 120 hear and determine the appeal and may make such orders as it thinks appropriate. An appeal does not lie against the decision by a single member exercising the powers of the Tribunal. An appeal must be lodged within 28 days of the day on which the person is supplied with a copy of the decision of the 121 Tribunal; however, the Federal Court may hear an appeal which is lodged out of time. Powers of the Federal Court in Relation to Appeals 12.94 As noted in paragraph 12.93 the Federal Court is empowered to make such orders as it thinks appropriate in respect of an appeal from the Tribunal. In particular, the Federal Court may make 122 an order: a. b. affirming or setting aside the decision of the Tribunal; remitting the case to be heard and decided again by the Tribunal in accordance with directions of the Court; granting a new trial by a court martial or a DFM; and reinstating a conviction or a prescribed acquittal - where the Court has set aside a decision of the Tribunal quashing a conviction or quashing a prescribed acquittal.

c. d.

Custody Orders and Sending of Documents to the Federal Court 12.95 Where a matter is referred to the Federal Court, whether as an appeal or a reference, the Tribunal may make appropriate custody orders in relation to the appellant. The Tribunal must also 123 cause to be sent to the Court all documents and other records relating to the matter.

Annexes: A. Petitions for Review of Convictions, Punishments and Orders B. Format of Petition for Review of Conviction, Punishment or Order C. Format of Signal for Report of Receipt of a Petition

120

See paragraph 12.93. DFDAA s.52(1), (2), (3), (4). DFDAA s.52(5). DFDAA s.53.

121

122

123

ADFP 201 VOLUME 1 ANNEX A TO CHAPTER 12

PETITIONS FOR REVIEW OF CONVICTIONS, PUNISHMENTS AND ORDERS

Introduction 1. This annex amplifies paragraphs 12.15 to 12.20 of the DLM in relation to the submission by members of the Defence Force of petitions for review of convictions, punishments or orders. Right to Petition 2. All members who have been convicted, punished, or have had orders for restitution or reparation made against them have the right to petition for a review by a reviewing authority and subsequently, if unsuccessful, to petition for a further review by their respective Service chief (ie CDF, CN, CA, CAF). The Service chief may conduct a further review if it appears to him that there are sufficient grounds for so doing. A petitioner is entitled to be provided with a copy of the record of proceedings of the hearing before a summary authority against whose decision the petitioner is petitioning. Form of Petition 3. All petitions are to be made in writing and may be set out in the format shown in Annex B. In each case the member is to state the precise grounds of his or her petition and the remedy that is sought. Petitions Relating to Courts Martial 4. Petitions relating to trials by court martial or Defence Force magistrates may be forwarded to the appropriate reviewing authority by the petitioner directly or through the petitioner's commanding officer. On receipt of the petition the reviewing authority should forward it to a legal officer who is appointed to report on the proceedings and should ensure, also that the transcript of evidence of the trial and all exhibits are forwarded to the legal officer. Petitions Relating to Summary Trials 5. Forwarding of Petitions. All petitions relating to summary trials should be forwarded as soon as practicable to a reviewing authority through the petitioner's commanding officer. If the petitioner wishes the contents of the petition to remain confidential he may lodge it with his commanding officer in a sealed envelope. The petition should then be forwarded, unopened, to the reviewing authority. 6. Appropriate Reviewing Authority. Where the petition relates to a trial conducted by a commanding officer or subordinate summary authority, consideration should be given to forwarding the petition to a reviewing authority other than the reviewing authority who conducted the automatic review of the proceedings of the trial. 7. Documents to Accompany Petition. The commanding officer should ensure that all relevant documents accompany the petition; these should in every case include Form PD 104 (Record of Evidence), Form PD 105 (Summary Proceedings Report), copies of all exhibits at the trial and Form PD 103 (Conduct Record). Where a petition seeks a further review by a Service chief, the commanding officer should also ensure that the petition incudes a copy of the earlier review. Report of Dispatch 8. A report of all petitions dispatched by Navy and Air Force commanding officers is to be sent by signal in the format shown in Annex C.

ADFP 201 VOLUME 1 12A2 Action by Reviewing Authority 9. As soon as practicable and, in the event, within 30 days of receipt of the petition, the reviewing authority is to notify the petitioner formally of the outcome of the petition. The normal method of notifying the petitioner will be by letter to the petitioner. Where delays are likely to occur in the delivery of mail the reviewing officer should notify the petitioner of the outcome by signal. 10. Disposal of Documents. The reviewing authority is to return all documents forwarded for the purposes of the petition to the commanding officer after a decision has been made regarding the petition. Copies of relevant documents should also be retained by reviewing authorities.

ADFP 201 VOLUME 1 ANNEX B TO CHAPTER 12

FORMAT OF PETITION FOR REVIEW OF CONVICTION, PUNISHMENT OR ORDER

TO:....................................................................................................................................... 1. Pursuant to section 153(1) of the Defence Force Discipline Act 1985, I............................... 1 ...................................... hereby petition for review (request a further review by a Service chief) of my 2 conviction and punishment by ............................................. on ................................................. 3 ..................................................... on the charges specified hereunder: 1st Charge DFDA sec ... ........................................................................................... 2nd Charge
4 5

... ..................................................................................................

2. Petition for Review of Conviction. I hereby submit that the conviction on the ............. .......................................................................... charge(s) should be quashed on the following grounds: a. b. 3. Petition for Review of Punishment. I hereby submit that the punishment on the ............................................... charge is excessive/or wrong in law and should be quashed on the following grounds. a. b. 4. Petition for Review of Order. I hereby submit that the order for restitution (reparation) should be quashed (varied) on the following grounds: a. b. 5. The following documents in support of the petition are attached : a. b. 6. I hereby declare that I have read paragraphs 12.15 to 12.20 and Annex A to Chapter 12 of the Discipline Law Manual in relation to petitions for review of convictions, punishments and orders.

Date:......................

Signed: ................... Rank: ............ Personal Number:

1 2 3 4 5

Insert full name of petitioner. Insert court martial, commanding officer, superior summary authority, etc as appropriate. Insert date of conviction or punishment. Insert relevant section of the DFDA. Insert the statement of the offence as specified in the charge sheet.

ADFP 201 VOLUME 1 ANNEX C TO CHAPTER 12

FORMAT OF SIGNAL FOR REPORT OF RECEIPT OF A PETITION

1. The signal is to be addressed to the appropriate reviewing authority and for information to DEFNAV or DEFAIR, as appropriate (if the reviewing authority is not in Navy or Air Office), and to administrative authorities. Where a further petition is made to the Service chief, the signal should also have as an information addressee the reviewing authority who carried out the review of the previous petition. 2. The signal is to refer to DLM Annex C to Chapter 12 and is to contain: PETITION AGAINST CONVICTION (AND PUNISHMENT)* a. b. c. d. name, rank and personal number of the petitioner; date of petition; date of trials tribunal (subordinate summary authority, CO, superior summary authority, DFM, court martial); name of officer who conducted trial (not necessary in case of trial by court martial)" date and result of automatic review if known; and brief comment on the petition (where a further review by a Service chief is requested, this section should include comments on the petition made to the reviewing authority and the results of that petition).

e. f. g.

* to be completed as appropriate.

ADFP 201 VOLUME 1 CHAPTER 13

DISCIPLINE OFFICERS
INTRODUCTION 13.1 This chapter provides guidance on the provisions of the Defence Force Discipline Act (1982) (DFDA) which relate to the powers of discipline officers to deal with defence members who commit 1 disciplinary infringements . The chapter describes the appointment, role and jurisdiction of discipline officers; disciplinary infringements; the authorisation and role of relevant officers; the nature of infringement notices; the rights of defence members who are alleged to have committed disciplinary infringements; the discipline officers powers of punishment and the after hearing procedures. 13.2 As the discipline officer is not a Service tribunal , there is no requirement for the discipline officer to comply with the provisions of the DFDA relating to Service tribunals. This means that the rules of evidence are not applicable; there is no prosecuting officer and the defence member is not to be represented. In addition, there is no automatic review of the discipline officers proceedings and the infringement is not to be entered on the defence members Conduct Record nor is its occurrence to be communicated outside the members unit. 13.3 The aim of the discipline officer provisions is to provide a simplified procedure that will enable disciplinary infringements to be dealt with simply, speedily and justly. DISCIPLINE OFFICER Appointment 13.4 A commanding officer may appoint officers or warrant officers to be discipline officers . The appointment may be by specific name or specific position or class of warrant officers or officers. 13.5 To appoint a discipline officer, the appointment must be in writing using Form 70 (ADFP 201 Volume 2 Part 12). Role 13.6 The discipline officer is responsible for dealing with defence members below noncommissioned rank who have committed disciplinary infringements and who elect to be dealt with by the discipline officer. In dealing with the defence members, the discipline officer is, in effect, deciding what course of action to take in relation to an infringement. The following options are available to the 4 discipline officer : a. b. c. impose a punishment ; decide that the disciplinary infringement is trivial and not impose a punishment; or decline to deal with the matter as it is too serious to be dealt with as a disciplinary infringement.
5 3 2

Defence Force Discipline Act, 1982 (DFDA) Part IXA DFDA s.169F(4) DFDA s.169B DFDA s.169F See paragraphs 13.33-13.35

ADFP 201 VOLUME 1 132 13.7 If a defence member elects to be dealt with by a discipline officer, the defence member is taken for the purpose of being dealt with by the discipline officer but for no other purpose, to have 6 admitted the infringement . Hence there is no requirement for the facts of the matter to be proved before the discipline officer and there is no requirement or right for the defence member to be 7 represented . 13.8 In deciding what action to take, the discipline officer must consider the following: a. b. whether the discipline officer has the jurisdiction to deal with the infringement ; whether the infringement is, in all the circumstances of the case, of a minor or trivial nature; whether the facts of the infringement or circumstances surrounding it (eg., repetitiveness) are such that it warrants a more severe punishment than the discipline officer can impose; and what mitigation, if any, the defence member has to explain the infringement and lessen the punishment.
8

c.

d.

13.9 At all times the discipline officer must remember that the defence member has elected to be dealt with by the discipline officer and for that purpose the defence member has admitted that an infringement has occurred. The discipline officer does not have the power to revoke or dismiss an infringement notice but should not impose a punishment when the infringement is considered trivial. JURISDICTION 13.10 A discipline officer has jurisdiction to deal with a defence member who commits a disciplinary 9 infringement if : a. the discipline officer has been appointed by the commanding officer of the particular defence member; the defence member is below the rank of non-commissioned officer; the defence member has committed a disciplinary infringement;
10

b. c. d.

the defence member has not been charged with a Service offence for the same act or omission that is alleged to constitute the infringement; the defence member elects to be dealt with by a discipline officer; and the defence member has not withdrawn the election.

e. f.

13.11 If the defence member has been charged with a Service offence for the same act or omission that is alleged to constitute an infringement, or the defence member does not elect to be dealt with by a discipline officer or withdraws the election, then the discipline officer cannot deal with the matter.

DFDA s.169E(2) DFDA s.169G(2) See paragraph 13.10 DFDA s.169C See paragraph 13.13

10

ADFP 201 VOLUME 1 133 13.12 For the purposes of the discipline officer procedure, a defence member who is attached from one unit to another is deemed to be a member of the gaining unit and therefore under the jurisdiction of a discipline officer appointed by the commanding officer of that gaining unit. A member who is on temporary duty at another unit, remains under the jurisdiction of a discipline officer appointed by the commanding officer of his or her parent unit; this includes any discipline officer appointed by his or her commanding officer at the unit where the member is on temporary duty. A member who commits a disciplinary infringement whilst attached to, or on temporary duty at, another unit, and who is not dealt with by a discipline officer at that other unit, may be dealt with by a discipline officer on return to the parent unit. DISCIPLINARY INFRINGEMENTS 13.13 A disciplinary infringement is defined as an act or omission that constitutes a minor offence against one of the following sections of the DFDA: a. b. Section 23 - Absence from Duty Section 24 - Absence without Leave (where the absence is for a period not exceeding 3 hours) Section 27 - Disobedience of a Lawful Command Section 29 - Failure to Comply with Lawful General Order Sub-section 32(1) - Irregularities on Guard or on Watch Section 35 - Negligent Performance of Duty Section 60 - Prejudicial Behaviour
11

c. d. e. f. g.

13.14 Notwithstanding the definition of disciplinary infringement, nothing prevents an offence against one of these sections from being the subject of a charge to be dealt with by a Service tribunal, 12 even though it could also be dealt with as a disciplinary infringement . However, once a matter is the subject of a charge it cannot be dealt with as a disciplinary infringement and once a matter has been 13 dealt with as a disciplinary infringement it cannot be the subject of a charge. . RELEVANT OFFICER Authorisation 13.15 A relevant officer is a member of the Defence Force who holds a rank of non-commissioned 14 officer or above who has been authorised by a commanding officer to issue infringement notices to 15 members of that commanding officers unit . To authorise a relevant officer, the authorisation must be in writing using Form 71 (ADFP 201 Volume 2 Part 12).

11

DFDA s.169A s.169J s.144(3A) s.169A DFDA s.169D(4)

12

13

14

15

ADFP 201 VOLUME 1 134 Role 13.16 The relevant officer is responsible for completing Part 1 - Infringement Details of the infringement notice and issuing the infringement notice to the defence member who is alleged to have 17 committed an infringement . This must be done as soon as is reasonably practicable after that relevant officer first has reasonable grounds for believing that the defence member has committed the 18 infringement . If the relevant officer issues an infringement notice and then forms the view that an infringement has not occurred, the relevant officer may, before the discipline officer acts or before a charge is preferred, withdraw the infringement notice. 13.17 The relevant officer is responsible for ensuring: a. that the defence member who is alleged to have committed an infringement is below non-commissioned rank and is a member of the unit over which the relevant officer has authority; that the infringement is a disciplinary infringement ; that the details of the infringement make it appropriate for the matter to be dealt with as a disciplinary infringement; that the period of time which has elapsed between the date of the infringement and the information being passed to the relevant officer is not excessive in the circumstances, so as to make the issue of an infringement notice unreasonable; and that the defence member has not been charged for the same act or omission that is alleged to constitute the disciplinary infringement.
19 16

b. c.

d.

e.

13.18 If the infringement is not a disciplinary infringement, the relevant officer may refer the matter to a member authorised under s.87 who may issue a charge to be dealt with by a Service tribunal. The relevant officer may also decide to refer the matter to a member authorised under s.87 for the purposes of proceeding by way of a charge, when a defence member fails to make an election within 20 the period allowed . 13.19 The guide to the procedure to be followed by a relevant officer is at Annex A to this Chapter. INFRINGEMENT NOTICE General 13.20 An infringement notice is a one page document that contains the material relevant to a discipline officer dealing with a disciplinary infringement: the infringement; the rights of the defence member; the election process and the action taken by the discipline officer. A sample infringement notice is at Annex B to this Chapter. 13.21 Only one infringement may be entered on an infringement notice and only a maximum of two infringement notices may be issued in relation to the one set of circumstances or incident. If it
21

16

See paragraph 13.23 DFDA s.169D(1) s.169D(5) See paragraph 13.13 DFDA s.169E(4) DFDA s.169D(2)(a)

17

18

19

20

21

ADFP 201 VOLUME 1 135 appears that more than two infringements have occurred in the one set of circumstances or incident, the defence member is to be dealt with by a Service tribunal and not by a discipline officer. 13.22 An infringement notice is divided into four parts: a. b. c. d. Part 1 - Infringement Details Part 2 - Election Part 3 - Hearing by Discipline Officer Part 4 - Information for Defence Member.

Part 1 - Infringement Details 13.23 The Infringement Details are to be completed by the relevant officer and must contain: a. b. c. d. the details of the defence member who is alleged to have committed the infringement; the date of the infringement; the section of the DFDA which is alleged to have been infringed; and sufficient particulars or details of the infringement to allow the defence member to 22 know what is alleged .

13.24 The Infringement Details also refer the defence member to the rights printed on the reverse of the notice and inform the defence member of the right to elect to have the matter dealt with by a discipline officer and the time period in which the election must be made. As the election must be 23 made before this period ends , provision is made in the Infringement Details to direct the defence member to return to the relevant officer at a time before the election period ends, in order to state his or her election. This time must be more than 48 hours but less than seven days from the time and date of issue of the infringement notice. Part 2 - Election 13.25 The defence member has the right to elect to be dealt with by a discipline officer . If the defence member does not elect to be dealt with by a discipline officer, the Infringement Details may be referred to a member authorised under s.87 who may prefer a charge to be dealt with by a Service tribunal. If the defence member fails to make an election within the election period, the relevant officer 25 may also decide to refer the matter to a member authorised under s.87 . 13.26 The defence member must initial and date the election as an acknowledgment of the decision. It should be noted however, that an election to be dealt with by a discipline officer may be 26 withdrawn at any time before a punishment is imposed .
24

22

The specimen charge in Chapter 4 may be used as a guide. DFDA s.169E(3) DFDA s.169E(1) s.169(4) DFDA s.169E(5)

23

24

25

26

ADFP 201 VOLUME 1 136 Part 3 - Hearing by Discipline Officer 13.27 Unlike a hearing by a Service tribunal, a hearing by a discipline officer is without the formalities associated with a trial and is designed to facilitate the dispensing of punishments for disciplinary infringements in an efficient and administratively simple manner. As such, the procedure involved is relatively straight forward as set out in the Guide at Annex C to this Chapter. 13.28 A defence member who appears before a discipline officer has elected to be dealt with by a discipline officer although this election may be withdrawn at any time prior to a punishment being imposed. If a defence member has not withdrawn his or her election, a discipline officer is to have regard to the following matters prior to taking action: a. Adjournment. If a defence member requests an adjournment it should generally be granted if the discipline officer considers the grounds for it are reasonable. Reasonable grounds could include the need to seek advice as to his or her rights; or the need to secure the attendance of witnesses in mitigation or to obtain statements in mitigation. The length of any adjournment is to be determined by the discipline officer who shall have regard to the circumstances of each case. Amendment. The discipline officer may amend Part 1 - Infringement Details in order to correct any error in the description of the defence member or the particulars of the infringement. However, the discipline officer may not substitute a new infringement for the one admitted by the defence member. Mitigation. The defence member has the right to call witnesses and present evidence in relation to the discipline officer taking action. Any statement or other documentary material presented is to be returned to the defence member and not retained with the infringement notice. Questions. The discipline officer may question the defence member on any point 27 raised by either the infringement notice or the mitigation .

b.

c.

d.

Part 4 - Information for Defence Members 13.29 The defence member's rights are printed on the reverse of the infringement notice.

13.30 A defence member who receives an infringement notice has the right to elect to be dealt with by a discipline officer and for the purposes of the discipline officer's action, a defence member who does so elect is to be taken to have admitted the infringement. The defence member is to be given a certain period in which to make this election, being a period more than 48 hours, but less than seven days, from the date and time of receiving the infringement notice. 13.31 If a defence member does not elect to be dealt with by a discipline officer, the infringement details may be referred to a member authorised under s.87 who may prefer a charge to be dealt with by a Service tribunal. 13.32 If a defence member elects to be dealt with by a discipline officer, the defence member does not have the right to be represented, however the defence member does have the right to present evidence in mitigation (ie., make a statement, present written statements prepared by others, or call witnesses). PUNISHMENTS 13.33 A discipline officer has the power to impose one of the following punishments in respect of a 28 disciplinary infringement :

27

See paragraph 13.9 DFDA s.169F(1)

28

ADFP 201 VOLUME 1 137 a. b. c. d. e. a fine not exceeding the amount of the members pay for one day; restriction of privileges for a period not exceeding 2 days; stoppage of leave for a period not exceeding 3 days; extra duties for a period not exceeding 3 days; extra drill for not more than 2 sessions of 30 minutes each per day for a period not exceeding 3 days; or a reprimand.

f.

13.34 A discipline officer may only impose one punishment in respect of each infringement notice and should impose the most severe punishment only in exceptional circumstances. The discipline officer should apply the scale of punishments fairly and justly and in proportion to the infringement which has occurred. Prior infringements may be taken into account in deciding the appropriate punishment. They may also be considered when deciding whether to refer the matter to an authorised member for the purpose of proceeding by way of a charge because of the continuous and therefore serious nature of the infringement. 13.35 Notwithstanding that the discipline officer is not a Service tribunal, in deciding what punishment to impose, the discipline officer is to have regard to the Sentencing Principles outlined in DFDA s.70 and ADFP 201 Volume 1 Chapter 11. The consequences that flow from the imposition of certain punishments are set out in the Defence Force Discipline (Consequences of Punishment) 29 Rules . The discipline officer is not obliged by the DFDA to apply those Rules, but should do so to maintain consistency. The Rules are as follows: a. Restriction of Privileges. For the duration of the punishment, the consequences of the punishment of restriction of privileges are: (1) the member shall not leave the unit, establishment or ship in which the punishment is to be served except in the course of duty; the member shall not: (a) be present at any recreation or entertainment in the unit, establishment or ship; or consume any alcoholic beverage;

(2)

(b) (3)

the member shall, in accordance with an order given to the member by an authorised officer, perform: (a) additional duties: (i) for a period not exceeding 4 hours outside working hours in a working day; and for a period not exceeding 8 hours in a non-working day; or

(ii) (b)

if the member cannot be employed effectively in additional duties for all or part of a period referred to in subparagraph (a) - drill for a period not exceeding 1 hour in each day;

29

See ADFP 201 Volume 2 Part 4

ADFP 201 VOLUME 1 138 (4) outside working hours the member shall, in accordance with an order given to the member by an authorised member, report between 0600 and 2300 hours but not more frequently than once every two hours to a person specified by the authorised member; outside working hours the member shall wear: (a) if the member is required to perform a duty - the appropriate working dress; or in any other case - the dress of the day.

(5)

(b) b.

Stoppage of Leave. For the duration of the punishment, the consequences of the punishment of stoppage of leave are as follows: (1) the member shall not leave the unit, establishment or ship in which the punishment is to be served except in the course of duty; outside working hours the member shall, in accordance with an order given to the member by an authorised member, report between 0600 hours and 2300 hours but not more frequently than once every two hours to a person specified by the authorised member; outside working hours the member shall wear: (a) if the member is required to perform a duty - the appropriate working dress; or in any other case - the dress of the day;

(2)

(3)

(b) (4) c.

the member shall not consume any alcoholic beverage.

Extra duties. For the duration of the punishment, the consequences of the punishment of extra duties are: (1) the member shall, in accordance with an order given to the member by an authorised member, perform: (a) additional duties outside working hours for a period not exceeding 4 hours in each day; or if the member cannot be employed effectively in additional duties for all or part of the period referred to in subparagraph (a) - drill for a period not exceeding 1 hour in each day; outside working hours the member shall wear: (i) if the member is required to perform a duty - the appropriate working dress; or in any other case - the dress of the day.

(b)

(c)

(ii) d.

Extra drill. The conditions governing the performance of extra drill are as follows: (1) the nature and type of drill to be performed shall be as specified in the standing, routine or daily orders of the unit or establishment in which the drill is performed; the member shall perform the drill in accordance with an order given to the member by an authorised member;

(2)

ADFP 201 VOLUME 1 139 (3) the member shall not be required to perform the drill for a continuous period exceeding 30 minutes; the member shall not be required to perform periods of drill more frequently than at 4-hourly periods. INFRINGEMENT REGISTER 13.36 A record of the infringement notice or action taken by the discipline officer is not to be entered on the defence members Record of Conduct (PD 103) nor on any other personal file held by the unit. All infringement notices are to be placed in sequential order in a Unit Infringement Register for a period of 12 months from the date of the election or action by the discipline officer which ever is the latest. Following the 12 month period, the infringement notice is to be destroyed. 13.37 A commanding officer who appoints a discipline officer is to inspect the infringement register on a monthly basis in order to monitor the actions of the discipline officer. A legal officer may inspect the infringement register at any time. If either the commanding officer or a legal officer believes that a defence member is being unfairly treated, the matter is to be brought to the attention of the discipline officer. 13.38 Statistics. Units are required to report statistics to their legal office six monthly in the format at Annex D to this chapter. Legal offices are then required to consolidate individual unit returns and forward these to the SO2 JAG six monthly. All legal offices in the ADF have an excel copy of the form at Annex D. APPEALS AND REVIEWS 13.39 As the discipline officer is not a Service tribunal, Part IX of the DFDA relating to the review of proceedings of Service tribunals is not applicable to the proceedings of a discipline officer. 13.40 There is no automatic review of the discipline officers actions, nor can the defence member petition or appeal against the action taken. 13.41 However, defence members who believe that they have a grievance in relation to the discipline officers actions, may submit a Redress of Grievance under Part XV of the Defence Force Regulations to the appropriate authority.

(4)

Annex: A. B. C. D.

Guide to Procedure for Relevant Officer Infringement Notice Guide to Procedure for Hearing by Discipline Officer Discipline Officer - Statistics

ADFP 201 VOLUME 1 ANNEX A TO CHAPTER 13

GUIDE TO PROCEDURE FOR RELEVANT OFFICER

Item 1. 2. Procedure RELEVANT OFFICER BECOMES AWARE OF INFRINGEMENT AUTHORISED RELEVANT OFFICER Notes This may be from personal knowledge or from information supplied by another person. Relevant officer considers Unit of defence member and: a. if authorised as a relevant officer by the commanding officer of that Unit proceed to Item 3. b. if not authorised by the commanding officer of that Unit refer allegation to an appropriately authorised relevant officer. 1. As to jurisdiction see paragraphs 13.10(a)(d). 2. If a discipline officer does not have jurisdiction to deal with the infringement, the relevant officer may refer the allegation to an authorised member who may prefer a charge. 3. If a discipline officer does have jurisdiction proceed to Item 4. Relevant officer completes Part 1 Infringement Details see paragraph 13.23. As the relevant officer is not a service tribunal, no formalities are required. The relevant officer issues defence members copy of the infringement notice to the defence member and says: THIS IS A COPY OF AN INFRINGEMENT NOTICE ALLEGING THAT YOU HAVE COMMITTED A DISCIPLINE INFRINGEMENT. YOUR RIGHTS ARE PRINTED ON THE REVERSE OF THE FORM. YOU ARE TO REPORT BACK TO ME ON (date) AT (time) IN ORDER TO STATE YOUR ELECTION. DO YOU HAVE ANY QUESTIONS? 1. The defence member may at this time request an extension of the election period. The relevant officer will decide, based on the circumstances of the case, whether the request is reasonable. If an extension of time is granted, the relevant officer amends the infringement notice and extends the election period so that the defence member returns to state election within the extended election period. 2. When the defence member returns, the relevant officer should say: YOU HAVE THE RIGHT TO ELECT TO HAVE THIS INFRINGEMENT DEALT WITH BY A DISCIPLINE OFFICER. WHAT DO YOU ELECT? 3. If the defence member elects to be dealt with by a discipline officer proceed to Item 8.

3.

RELEVANT OFFICER CONSIDERS JURISDICTION OF DISCIPLINE OFFICER

4. 5. 6.

INFRINGEMENT NOTICE DEFENCE MEMBER APPEARS BEFORE RELEVANT OFFICER RELEVANT OFFICER ISSUES INFRINGEMENT NOTICE AND ADVISES OF RIGHTS

DEFENCE MEMBER REPORTS AS ORDERED

ADFP 201 VOLUME 1 13A2

Item

Procedure

Notes 4. If the defence member does not elect to be dealt with by a discipline officer, the relevant officer may refer the infringement notice to an authorised officer who may prefer a charge and says: THIS INFRINGEMENT WILL NOW BE REFERRED TO THE APPROPRIATE AUTHORITY TO DECIDE WHETHER TO PROCEED WITH A CHARGE. 5. Proceed to Item 9.

8.

REFERRAL TO DISCIPLINE OFFICER

1. The relevant officer should say: THIS INFRINGEMENT NOTICE WIL BE REFERRED TO A DISCIPLINE OFFICER AND: a. YOU WILL BE TOLD WHEN AND WHERE THE MATTER WILL BE DEALT WITH. or b. YOU ARE TO REPORT AT . (place) ON (date) AT . (time) TO HAVE THE MATTER DEALT WITH. 2. Proceed to Item 9. Relevant officer completes action taken and signature details.

9.

RELEVANT OFFICER COMPLETES FORM

ADFP 201 VOLUME 1

ANNEX B TO CHAPTER 13

INFRINGEMENT NOTICE

AC 576 Introduced Oct 95

Department of Defence

INFRINGEMENT NOTICE
Unit Number

Distribution Original Discipline Officer & Discipline Register Duplicate Defence Member

Part 1 Infringement Details

Family Name of Defence Member Given Name(s) Rank Number

Infringement Date Section Defence Member:

Particulars

1. You are advised that you have one week (7 days) in which to decide whether to be dealt with by a Discipline Officer or you may be charged (the 'election period'). You are ordered to return to me on

(time) being a date and time more than 48 hours (date) at from the issue of this Infringement Notice and before the end of the election period to state your election.
2. Your rights are printed on the reverse of this form.

Part 2 Election (to be dated and initialled in acknowledgement by the Defence Member)
The Defence Member elected to be dealt with by a Discipline Officer The Defence Member elected not to be dealt with by a Discipline Officer

Infringement Notice referred to Discipline Officer or Authorised Member of the Defence Force. Signature (Relevant Officer) Printed Name Rank Date

Part 3 Hearing by Discipline Officer

The Defence Member withdrew the election to be dealt with by a Discipline Officer The Defence Member requested an adjournment The Defence Member was granted an adjournment The Defence Member submitted statements / called witnesses in mitigation Punishment Imposed or Action Taken Yes Yes Yes Yes No No No No

Signature (Discipline Officer)

Printed Name

Rank

Date

Stock No

ADFP 201 VOLUME 1

13B2

Information for Defence Member

1. This is an Infringement Notice which alleges that you have committed an infringement against section 23, 24 (not exceeding three hours), 27, 29, 32(1), 35 or 60 of the Defence Force Discipline Act (see particulars in Part 1 on the front of this Notice). You have the right to elect to have this infringement dealt with by a Discipline Officer or you may be charged and dealt with by a service tribunal. If you elect to be dealt with by a Discipline Officer, you are for the purposes of the Discipline Officer's actions, admitting that you committed the infringement without the need for evidence and you may be punished accordingly. If you do not elect to be dealt with by a Discipline Officer (eg because you disagree with the allegations or you believe that you have a defence or you believe that you are being treated unfairly) or fail to make an election, the matter may be referred to an authorised member who may prefer a charge to be dealt with by a service tribunal. You would then have the right to plead guilty before that service tribunal. You have been advised that you have a certain period in which to decide whether you want to be dealt with by a Discipline Officer. Before making your election you should take the following matters into account: a. b. c. d. You may request an adjourment before making your election if you have not had sufficient time in which to make your decision. You are not entitled to be represented before a Discipline Officer. However, you have the right to submit statements or call witnesses to present evidence in mitigation of punishment. You have the right to withdraw your election to be dealt with by a Discipline Officer at any time before the Discipline Officer imposes a punishment. No record of an Infringement Notice is to be kept on your Conduct Record or any other personal file. The Infringment Notice is not to follow you to another Unit and is to be destroyed after 12 months. Once the matter has been dealt with as a disciplinary infringement, you cannot be charged for the same act or omission. Similarly, if you have been charged with a service offence, you cannot be issued with an Infringement Report for the same act or omission. If the Discipline Officer imposes a punishment, you do not have the right to appeal but you may submit a Redress of Grievance if you believe that you have grounds for complaint.

2. 3.

4.

e.

f. 5.

If you elect to be dealt with by a Discipline Officer, the Discipline Officer may: a. impose one of the following punishments: (1) a fine not exceeding one days pay; (2) restriction of privileges for a period not exceeding two days; (3) stoppage of leave for a period not exceeding three days; (4) extra duties for a period not exceeding three days; (5) extra drill for not more than two sessions of 30 minutes each per day for a period not exceeding three days; or (6) a reprimand. b. c. decide not to impose a punishment because of the trivial nature of the infringement; or refer the matter to a member authorised to prefer a charge because of the serious nature of the infringement.

ADFP 201 VOLUME 1 ANNEX C TO CHAPTER 13

GUIDE TO PROCEDURE FOR HEARING BY DISCIPLINE OFFICER

Item 1. Procedure DEFENCE MEMBER ARRIVES Notes As the discipline officer is not a service tribunal, no legal formalities are required. However, military formalities are to be observed. Discipline officer considers Unit of defence member and: a. if appointed as a discipline officer by the commanding officer of that unit - proceed to Item 3. b. if not appointed by the commanding officer of that unit refer infringement notice to an appropriately appointed discipline officer. 1. As to jurisdiction, see paragraph 13.10. 2. If no jurisdiction, the discipline officer may refer the infringement notice to an authorised member who may prefer a charge. 3. If there is jurisdiction proceed to Item 4. 1. Discipline officer should say: YOU HAVE ELECTED TO HAVE THIS INFRINGEMENT DEALT WITH BY A DISCIPLINE OFFICER AND FOR THAT PURPOSE YOU HAVE ADMITTED THAT YOU . (read infringement notice) CONTRARY TO DEFENCE FORCE DISCIPLINE ACT SECTION . (read section). DO YOU WISH TO WITHDRAW YOUR ELECTION? 2. If defence member withdraws election proceed to Item 5. 3. If defence member does not withdraw election proceed to Item 6. 1. If a defence member withdraws the election, the discipline officer does not have the jurisdiction to proceed. 2. The discipline officer should say: AS YOU HAVE WITHDRAWN YOUR ELECTION, I WILL REFER THIS INFRINGEMENT NOTICE TO AN APPROPRIATE AUTHORITY TO CONSIDER PROCEEDING WITH A CHARGE. As to when an adjournment is appropriate, see paragraph 13.28. As to when an amendment is possible, see paragraph 13.28. Discipline officer asks defence member if he/she has anything to say in mitigation of punishment; or any statements to produce or witnesses to call in mitigation of punishment.

2.

APPOINTED DISCIPLINE OFFICER

3.

DISCIPLINE OFFICER CONSIDERS JURISDICTION

4.

DISCIPLINE OFFICER READS INFRINGEMENT NOTICE AND CONFIRMS ELECTION

5.

DISCIPLINE OFFICER MAY REFER INFRINGEMENT NOTICE TO A MEMBER AUTHORISED TO PREFER A CHARGE

6. 7. 8.

ADJOUORNMENT AMENDMENT MITIGATION

ADFP 201 VOLUME 1 13C2

Item 9.

Procedure QUESTIONS

Notes Discipline officer may question the defence member on the circumstances surrounding the infringement or the evidence in mitigation of punishment. 1. Discipline officer may at this stage take an adjournment if necessary. 2. As to options, see paragraph 13.6. 3. If a punishment is considered appropriate proceed to Item 11. 4. If the infringement is considered trivial proceed to Item 12. 5. If the infringement is considered serious proceed to Item 13. 1. A discipline officer has the power to impose one of the following punishments in respect of a disciplinary infringement: a. a fine of up to one days pay; b. restriction of privileges for a maximum of two days; c. stoppage of leave for a maximum of three days; d. extra duties for a maximum of three days; e. extra drill for a maximum of two sessions of thirty minutes each per day for a maximum of three days; or f. a reprimand. 2. Discipline officer should say: I HAVE CONSIDERED THE INFRINGEMENT AND IMPOSE A PUNISHMENT OF .. . 3. Proceed to Item 14. 1. Discipline officer should say: I CONSIDER THE INFRINGEMENT TO BE TRIVIAL AND WILL NOT BE IMPOSING A PUNISHMENT. 2. Proceed to Item 14. 1. Discipline officer should say: THIS INFRINGEMENT IS TOO SERIOUS TO BE DEALT WITH BY A DISCIPLINE OFFICER. I REFER THE INFRINGEMENT DETAILS TO THE APPROPRIATE AUTHORITY TO CONSIDER PROCEEDING BY WAY OF A CHARGE. 2. Proceed to Item 14. Discipline officer is to enter punishment imposed or action taken in the appropriate space and complete the signature block. Discipline officer is to number infringement notice and file in unit infringement register.

10.

DISCIPLINE OFFICER CONSIDERS COURSE OF ACTION

11.

PUNISHMENT

12.

TRIVIAL INFRINGEMENT

13.

SERIOUS INFRINGEMENT

14.

COMPLETION OF INFRINGEMENT NOTICE INFRINGEMENT REGISTER

15.

ADFP 201 VOLUME 1 ANNEX D TO CHAPTER 13

DISCIPLINE OFFICER STATISTICS

Ship/Unit

Month of

Ship/Unit Strength

DETAILS OF INFRINGEMENTS

INFRINGEMENT
Section 23 Absence from Duty Section 24 Absence without Leave Section 27 Disobedience of a Lawful Command Section 29 Failure to Comply with a Lawful Order Subsection 32(1) Irregularities on Guard or Watch Section 35 Negligent Performance of Duty Section 60 Prejudicial Behaviour

NUMBER

DETAILS OF ACTION TAKEN

ACTION TAKEN
Punishment Imposed: Fine Restriction of Privileges Stoppage of Leave Extra Duties Extra Drill Reprimand No Punishment Imposed Referred to an Authorised Member

NUMBER

Discipline Officer Signature Printed Name Rank Date