ADFP 201 - Discipline Law Manual Volume 1

AUSTRALIAN DEFENCE FORCEPUBLICATION

ADMINISTRATION SERIES

ADFP 201

DISCIPLINE LAW MANUALVOLUME 1

� Commonwealth of Australia 2001

This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may bereproduced 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 theCrimes Act 1914. Defence information may only be released in accordance with the DefenceProtective Security Manual (SECMAN 4) and/or Defence Instruction (General) OPS 13–4—Releaseof Classified Defence Information to Other Countries, as appropriate.

Requests and inquiries should be addressed to Director Defence Publishing Service,CP3-1-102, Department of Defence, CANBERRA ACT 2600.

JSP(AS) 201

First Edition 1985

ADFP 201

Second Edition 2001

Sponsor:

Director-General Defence Legal Office

Developer:

Director Discipline LawDefence Legal Office

Publisher:

Defence Publishing ServiceDepartment of DefenceCANBERRA ACT 2600

ADFP 201 VOLUME 1iii

AUSTRALIAN DEFENCE FORCEPUBLICATION

ADMINISTRATION SERIES

DISCIPLINE LAW MANUAL

Australian Defence Force Publication 201 (ADFP 201) – Discipline Law Manual , is issued for use bythe Australian Defence Force and is effective forthwith. This publication supersedes JSP(AS) 201Volume 1 (including AL’s 1 to 10), all copies of which should be destroyed in accordance with currentsecurity instructions.

C.A. BARRIEAdmiral, RANChief of the Defence Force

Australian Defence HeadquartersCANBERRA ACT 2600

April 2001

ADFP 201 VOLUME 1iv

AMENDMENT CERTIFICATE

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

EditorDefence Legal OfficeR8-1-017Department of DefenceCANBERRA ACT 2600

Amendment Effected

No Date Signature Date

Chapter 4 24 Jan 02

Chapter 5 24 Jan 02

as per Web site

as per Web site

24 Jan 02

24 Jan 02

ADFP 201 VOLUME 1v

CONTENTSPage

Authorisation -Amendment Certificate iv

Paragraph

CHAPTER 1 INTRODUCTION

ADF DISCIPLINE AND THE ROLE OF THE DEFENCE FORCEDISCIPLINE ACT 1.1

HISTORICAL BACKGROUND 1.3

OUTLINE OF THE DEFENCE FORCE DISCIPLINE ACT 1.9

OBJECT OF THE DISCIPLINE LAW MANUAL 1.14

Annex:A. Disciplinary Legislation In Effect In The Defence Force

Before Implementation Of The Defence Force DisciplineAct, 1982

CHAPTER 2 JURISDICTION GENERALLY OF SERVICE TRIBUNALS

SERVICE TRIBUNALS 2.1

SERVICE OFFENCESGeneral 2.3Limitations as to Place where Offence Committed 2.6Limitations as to Time 2.7

PERSONS WHO MAY COMMIT SERVICE OFFENCES 2.10Defence Members 2.13Members Attached to Other Forces or Organisations 2.17Members as Prisoners of War 2.19Members of Armed Forces of Other Countries 2.20Prisoners of War 2.23Members of Cadet Forces 2.25Defence Civilians 2.26

PLACES WHERE A SERVICE TRIBUNAL MAY SIT 2.27

OFFENCES THAT MAY ALSO BE TRIED BY CIVILAUTHORITIES 2.30

Notification Procedures for cases where military jurisdiction isexercised 2.33

CHAPTER 3 INVESTIGATION OF SERVICE OFFENCES

INTRODUCTION 3.1

QUESTIONING OF PERSONSGeneral Rule 3.3Person in Custody to be Given Caution before Questioning 3.6Person to be Charged or Summonsed to be Given Caution

before Questioning 3.7Confessions 3.11Identification Parades 3.18Person Charged to be Cautioned 3.22Questioning of Person Charged with an Offence 3.23Persons Charged with Same Offence 3.26

SUSPENSION FROM DUTYOn Suspicion of Offence 3.28After Conviction 3.32

ADFP 201 VOLUME 1vi

Effecting Suspension from Duty 3.33Effect of Suspension fron Duty 3.34

SUMMONSIntroduction 3.39Summons Originating Proceedings 3.40Summons Requiring Further Attendance of Accused Person 3.43Summons or Arrest Following Non-attendance of Accused

Person 3.45

ARRESTIntroduction 3.51Arrest without Warrant 3.52Arrest under Warrant 3.57Effecting an Arrest 3.64

PRE-CONVICTION CUSTODYGeneral 3.71Person in Custody to be Cautioned and Informed of Rights 3.80Access to Friend, Relative and Legal Practitioner 3.83Exceptions to Access to Friend, Relative and Legal Practitioner

Provisions 3.89Treatment of Person in Custody 3.93Fingerprints, Voice Recordings, Handwriting, Photographs 3.97Identification by Photographs 3.103Medical Examination 3.108Effect on Pre-conviction Custody 3.117

SEARCHESIntroduction 3.118Search of Private Premises, Vehciles, Etc 3.120Search with Consent 3.121Search on Being Taken into Custody 3.122Search in Emergency 3.125Search under Warrant 3.131

CHAPTER 4 OFFENCES, CHARGES AND THEIR PROSECUTION

PROSECUTION OF OFFENCES 4.1

OFFENCES GENERALLY 4.3Statutory Alternative Offences 4.6

CHARGING SERVICE OFFENCESGeneral 4.10Vetting of Charges 4.12Limitations on Charging 4.13The Content of Charges 4.18Procedure for Charging 4.22Amendment of Charges 4.27Alternative Charges 4.29Charges Not Proceeded with at a Summary Hearing 4.30Charges in Trials by Court Martial or Defence Force Magistrate 4.32

OFFENCES RELATING TO OPERATIONS AGAINST THEENEMY

Aiding Enemy 4.34Communication with the Enemy 4.35Leaving Post etc 4.36Endangering Morale 4.37Behaviour after Capture by the Enemy 4.38

OFFENCES RELATING TO MUTINY, DESERTION ANDUNAUTHORISED ABSENCES

Mutiny 4.39

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Failure to Suppress Mutiny 4.40Desertion 4.41Absence from Duty 4.42Absence without Leave 4.43

OFFENCES RELATING TO INSUBORDINATION ANDVIOLENCE

Assault on a Superior Officer 4.44Insubordinate Behaviour with Respect to Superior Officer 4.45Disobedience of Command 4.46Failure to Comply with Direction of Person in Command 4.47Failure to Comply with General Order 4.48Assault on a Guard 4.49Obstruction of Police Member 4.50Person on Guard or on Watch 4.51Assault, Insulting or Provocative Words 4.52Assault on Inferior 4.53

OFFENCES RELATING TO PERFORMANCE OF DUTYNegligent Performance of Duty 4.54Dangerous Behaviour 4.55Unauthorised or negligent discharge of weapon 4.56Drunkenness on Duty etc 4.57Malingering 4.58

OFFENCES RELATING TO SHIPS, VEHICLES, AIRCRAFT,WEAPONS OR PROPERTY

Loss of or Hazard to Service Ship 4.59Use of Vehicles etc 4.60Low Flying 4.61Inaccurate Certification in Relation to Ships etc. 4.62Destruction of or Damage to Service Property 4.63Loss of Service Property 4.64Unlawful Possession of Service Property 4.65Possession of Property Suspected of Having Been Unlawfully

Obtained 4.66Stealing and Receiving 4.67Looting 4.68

OFFENCES RELATING TO ARREST, CUSTODY ANDPROCEEDINGS BEFORE SERVICE TRIBUNALS

Resisting Arrest 4.69Delay or Denial of Justice 4.70Escape from Custody 4.71False Evidence 4.72Contempt etc of Service Tribunal 4.73Unlawful Release, etc, of person in custody 4.74Custodial Offences 4.75

MISCELLANEOUS OFFENCESFalsification of Service Documents 4.76False Statement in relation to application for benefit 4.77False statement in relation to appointment or enlistment 4.78Unauthorised disclosure of information 4.79Dealing in or possessing narcotic goods 4.80Prejudicial Behaviour 4.81

OTHER OFFENCESTerritory Offences 4.82Commanding or Ordering Commission of Service Offence 4.83Refusing to submit to medical examination etc 4.84Offence in relation to radar devices 4.85Ancillary Offences 4.86Aiders and Abettors 4.87

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Annexes:A. Corresponding Ranks in the Australian Defence ForceB. Ancillary Offences - Jurisdiction of Service Tribunals

CHAPTER 5 CRIMINAL RESPONSIBILITY

SECTION 1 – INTRODUCTION

NATURE OF PROCEEDINGS UNDER THE DEFENCEFORCE DISCIPLINE ACT 5.1

The Common Law 5.4

FUNDAMENTAL CONCEPTS OF CRIMINAL LAW 5.5Mens rea 5.7Motive 5.8Constituents of a Crime 5.9Onus of Proof 5.14

ANALYSIS OF "MENS REA" 5.16Conscious or Voluntary Act 5.17Unconscious or Involuntary Act and Insanity 5.21Loss of Memory 5.23Accident/Duress 5.24Irresistible Impulse 5.25Intention to Commit the Act 5.26Proof of Intent 5.29Intent and Premeditation 5.30Ignorance of the Law 5.32

OTHER PROBLEMS IN RELATION TO INTENT,RECKLESSNESS AND NEGLIGENCE 5.33

Recklessness 5.34Negligence 5.40Death Caused by Negligence 5.47Death Caused by Negligent Omission 5.48Death Caused by Negligence (under the DFDA) 5.52Distinction Between Recklessness and Negligence 5.53

SECTION 2 - EXEMPTIONS FROM LIABILITY

MISTAKE AND ACCIDENT 5.57Mistake Under the DFDA 5.61Accident 5.64

INFANCY 5.67

INSANITYInsanity as a Defence 5.70Unfitness to Plead by Reason of Insanity 5.71Onus of Proof of Insanity 5.75The Legal Meaning of Insanity 5.76Irresistible Impulse 5.79Diminished Responsibility 5.81The Difference between Insanity and Diminished Responsibility 5.84Absence of Motive 5.87

AUTOMATISM 5.88Automatism and Insanity Contrasted 5.91

INTOXICATION 5.92Intoxication as a Constituent of an Offence 5.95Intoxication as a Defence 5.97Insanity Caused by Intoxication 5.98Intoxication as an Issue 5.99

DURESS 5.100Present Law in Relation to Duress 5.101

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Constituents of Duress 5.102Brainwashing 5.103Onus of Proof 5.105

SUPERIOR ORDERS 5.106

NECESSITY 5.110Necessity in a Service Context 5.115

SECTION 3 - DEFENCES TO CHARGES OF ASSAULT ETC:

JUSTIFIABLE USE OF FORCE

CONSENT 5.116

JUSTIFIABLE USE OF FORCE 5.118Execution of a Legal Sentence 5.120Arrest and Search 5.121Use of Force in Prevention of Crime 5.122Lawful Correction 5.123

SELF-DEFENCE 5.125Self-defence in Homicide Cases 5.130Self-defence in Offences Other than Homicide 5.131

PROVOCATION 5.132Drunkenness and Provocation 5.134Onus and Standard of Proof of Provocation 5.135

SECTION 4 - MISCELLANEOUS ASPECTS OF CRIMINALRESPONSIBILITY

STRICT LIABILITY 5.136Defence to Offences of Strict Liability 5.138

VICARIOUS LIABILITY 5.140The Vicarious Liability of Servicemen 5.143

AIDING AND ABETTING 5.145Acting in Concert 5.153Acts Done in Furtherance of a Common Purpose 5.155

ANCILLARY OFFENCES 5.160

ACCESSORY AFTER THE FACT 5.161

ATTEMPTS 5.166

INCITING TO OR URGING THE COMMISSION OFOFFENCES 5.176

CONSPIRACY 5.179The Nature of Conspiracy 5.180Parties to Conspiracy 5.185Evidence in Conspiracy Trials 5.186

CHAPTER 6 THE LAW OF EVIDENCE

SECTION 1 - INTRODUCTIONThe Nature of Evidence 6.1Evidence before Service Tribunals 6.4Scope of Evidence 6.11

SECTION 2 - PROVING AN OFFENCEWhat must be Proved 6.12Proof of Commission of the Offence 6.17Proof of Identity 6.18

BURDEN OF PROOF—BY WHICH SIDE MUST PROOF BEGIVEN

The Legal Burden of Proof 6.21

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Burden of Proof in Relation to Unsoundness of Mind andDiminished Responsibility and other Defences 6.25

Justification, Excuse, Proof or Alibi 6.28

STANDARD OF PROOF 6.30Proof Beyond Reasonable Doubt 6.32Proof on Balance of Probabilities 6.35Standard of Proof for Evidentiary Determinations 6.38

WHO MAY GIVE EVIDENCE - COMPETENCE ANDCOMPELLABILITY OF WITNESSES

General 6.42Psychological Incompetence (Children, Persons with an

Intellectual Disability) 6.44Physical Incompetence (Persons with a Physical Disability) 6.49The Accused 6.50Associated Defendants (Accomplices, Co-Accused) 6.52The Accused's Spouse and Family 6.53Other Persons 6.57

THE FORM IN WHICH EVIDENCE MAY BE GIVEN 6.59Direct Evidence 6.60Circumstantial Evidence 6.61Oral Evidence 6.65Documentary Evidence 6.66The ways in which documentary evidence may be adduced 6.71Real Evidence 6.76

MATTERS ON WHICH EVIDENCE IS NOT REQUIRED 6.80Formal Admissions 6.84Fact agreements 6.88Judicial Notice 6.91Presumptions 6.99

PRIVILEGE OF WITNESSESPrivilege Against Self-incrimination or Self-Exposure to a

Penalty 6.106Family Privilege 6.112Legal Professional Privilege 6.113Religious Confessions 6.120Physician and Patient 6.124Exclusion of Evidence in the Public Interest 6.125

SECTION 3 - THE PRINCIPAL RULE CONCERNING THEADMISSIBILITY OF EVIDENCE: THE RELEVANCE RULE

The Relevance Rule 6.133Provisional Relevance 6.140

SECTION 4 - THE HEARSAY RULE 6.143

SECTION 5 - EXCEPTIONS TO THE HEARSAY RULEGeneral 6.159

EVIDENCE RELEVANT FOR A NON-HEARSAY PURPOSE 6.163

ADMISSIONS 6.169What is an Admission? 6.170'First-hand' Evidence of an Admission 6.173Vicarious Admissions 6.174Use of an Admission in Respect of the Case of a Co-accused 6.178Requirements to be Satisfied before Evidence of an Admission

is Admissible 6.179Requirements under the DFDA 6.180Admissions Influenced by Violence etc 6.181Reliability of Admissions etc 6.183Two further rules: evidence in relation to questioning 6.186

ADFP 201 VOLUME 1xi

Unsigned records of interview 6.187Unfavourable Inferences from Silence during Questioning 6.188

'FIRST-HAND' HEARSAY REPRESENTATIONSGeneral 6.190Evidence of a 'First-hand' Hearsay Representation where the

Maker is not Available to give Evidence 6.195Evidence of a 'First-hand' Hearsay Representation when the

Maker is Available to Give Evidence 6.208

MORE REMOTE HEARSAY 6.211

SECTION 6 - OPINION EVIDENCEGeneral: The Opinion Rule 6.218

EXCEPTIONS TO THE OPINION RULELay Opinion 6.223Opinion Based on Specialised Knowledge ('Expert Opinion

Evidence') 6.226Evidence of Expert Opinion Evidence by Certificate 6.234Operation of the Exception for Expert Opinion Evidence in

Cases of Intoxication 6.236Evidence Relevant Otherwise than as Opinion Evidence 6.238Opinion Evidence on a Matter of Common Knowledge 6.240Opinion Evidence on an Ultimate Issue in a Proceeding 6.241Opinion Evidence in Certain Official Documents 6.242

SECTION 7 - CHARACTER EVIDENCEGeneral 6.243

EVIDENCE OF AN ACCUSED'S CHARACTER, REPUTATIONOR PAST CONDUCT THAT IS RELEVANT TO A FACT INISSUE

General 6.251Tendency Reasoning 6.253Coincidence Reasoning 6.264Character Evidence to Rebut Evidence of Good Character

Adduced by an Accused 6.273

EVIDENCE OF THE CHARACTER, REPUTATION OR PASTCONDUCT OF OTHER PERSONS (EG OTHERWITNESSES, THE VICTIM OF AN ALLEGED OFFENCE)THAT IS RELEVANT TO A FACT IN ISSUE

General 6.277Evidence (Including Tendency Evidence) of Sexual Reputation

of a Complainant in Sexual Assault Cases 6.279

SECTION 8 - IDENTIFICATION EVIDENCEGeneral 6.280Visual identification evidence adduced by the prosecution 6.281Picture Identification Evidence Adduced by the Prosecution 6.284

SECTION 9 - IMPROPERLY OR ILLEGALLY OBTAINEDEVIDENCE

General 6.290Evidence Obtained Improperly or Unlawfully (Except in

Contravention of a Provision of DFDA Part VI) 6.293Evidence obtained in contravention of a provision of DFDA Part

VI 6.299

SECTION 10 - DISCRETIONARY EXCLUSION OF EVIDENCEGeneral 6.303General Discretion: Section 135 of the Evidence Act 6.307Discretion to Exclude Prosecution Evidence of an Admission:

Section 90 of the Evidence Act 6.314

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Exclusion of Prejudicial Evidence Adduced by the Prosecution:Section 137 of the Evidence Act 6.317

SECTION 11 - EXAMINATION OF WITNESSESPreliminary Matters 6.318Witness to be Sworn 6.319Order of Witnesses 6.320Reviving Memory 6.322

EXAMINATION-IN-CHIEF 6.331Leading Questions 6.333Cross-examining One's Own Witness 6.336

CROSS-EXAMINATIONThe Object of Cross-examination 6.339Leading Questions 6.345Improper Questions 6.350Other Statutory and Ethical Restraints upon Cross-examination 6.352Cross-examination as to Credit 6.355When an Accused may be Cross-examined on a Matter

Relevant only to Credit 6.359Admissibility Rules Relating to Evidence that is Relevant only to

Credit 6.370Evidence Adduced in Cross-examination of a Witness 6.372Evidence Adduced in Rebuttal 6.374S.106(a) - the Witness is 'Biased or has a Motive to be

Untruthful' 6.375S.106(b) - Prior Convictions of the Witness 6.376S.106(c) - Prior Inconsistent Statements of the Witness 6.377S.106(d) - the Witness's Inability to be Aware of Matters to

which his or her Evidence Relates 6.378S.106(e) - the Witness 'has Knowingly or Recklessly made a

False Representation while under an Obligation Imposed byan Australian Law or a Law of a Foreign Country to tell theTruth' 6.379

The Effect of Cross-examination as to Credit 6.380

RE-EXAMINATION 6.381

RE-OPENING A CASE AND EVIDENCE IN REBUTTAL 6.384

SECTION 12 - CORROBORATIONGeneral: Abolition of Most Corroboration and Corroboration

Warning Requirements 6.388Corroboration with Respect to Perjury or a Similar or Related

Offence 6.391Functions of Judge Advocate and Members of a Court Martial 6.394Direction by Judge Advocate 6.395

CHAPTER 7 SUMMARY PROCEEDINGS

SECTION 1 - GENERAL

INTRODUCTION 7.1

DISTINCTION BETWEEN DEALING WITH AND TRYING ACHARGE 7.3

SUBORDINATE SUMMARY AUTHORITIESJurisdiction 7.4Appointment 7.8Revocation of Appointment 7.9Punishments Available to a Subordinate Summary Authority 7.10Deciding Whether to Try a Charge 7.12Directing that a Charge not be Proceeded With 7.13

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Referring a Charge to a Commanding Officer or AnotherSubordinate Summary Authority 7.14

COMMANDING OFFICERSJurisdiction 7.16Appointment 7.17Revocation of Appointment 7.18Punishments Available to a Commanding Officer 7.19Deciding Whether to Try a Charge 7.27Directing that a Charge Not be Proceeded With 7.32Referring a Charge to Another Commanding Officer 7.33Referring a Charge to a Superior Summary Authority 7.34Referring a Charge to a Convening Authority 7.35

SUPERIOR SUMMARY AUTHORITIESJurisdiction 7.37Appointment 7.38Punishments Available to a Superior Summary Authority 7.39

SECTION 2 - SUMMARY HEARINGS

PRELIMINARY MATTERS 7.42Documents Furnished to the Accused 7.44

THE ACCUSED'S DEFENCEDefending Officer 7.45Duties of a Defending Officer before a Summary Hearing 7.48Duties of a Defending Officer during a Summary Hearing 7.49

THE PROSECUTION CASEThe Requirement for a Prosecutor 7.50The Appointment of a Prosecutor 7.51Duties of a Prosecutor before a Summary Hearing 7.54Duties of a Prosecutor at a Summary Hearing 7.56

CONDUCT OF SUMMARY PROCEEDINGSGeneral 7.57Procedures Generally 7.61Hearings Other than Trials 7.62Officials at a Summary Hearing 7.63Public Access to a Summary Hearing 7.64Legal Officers as defending officers 7.65

RECORDING OF SUMMARY PROCEEDINGS 7.66Prior Written Statements by Witnesses 7.67Method of Recording Evidence 7.69Certification of the Record of Proceedings 7.71The Form in Which Proceedings are to be Recorded 7.72Summary Proceedings Report (Form PD105) 7.73Record of Evidence (Form PD 104) 7.74Filing and Transmission of Documents Relating to Summary

Proceedings 7.75Summary Punishment Statistics 7.76Reporting of Not Guilty Verdicts 7.77

SECTION 3—EXAMINING OFFICERSFunctions and Powers of Examining Officers 7.78Purpose of Directing an Examining Officer to Hear Evidence 7.79When an Examining Officer should be Directed to Hear

Evidence 7.80

PROCEDURE AT A HEARING BY AN EXAMINING OFFICER 7.83Before the Hearing 7.84Administrative Arrangements at the Hearing 7.86Conduct of the Hearing 7.87Recording the Proceedings 7.88

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After the hearing 7.89

OFFICER CADETSGeneral 7.90Jurisdiction of Subordinate Summary Authorities in Relation to

Officer Cadets 7.91Punishment of Officer Cadets by Subordinate Summary

Authorities 7.92Jurisdiction of Commanding Officers in Relation to Officer

Cadets 7.95Punishment of Officer Cadets by Commanding Officers 7.96Powers of Other Service Tribunals in Relation to Officer Cadets 7.98

Annexes:A. Procedure ALPHA - Hearing (Other than a Trial)

Conducted by a Subordinate Summary AuthorityB. Procedure ALPHA - Hearing (Other than a Trial)

Conducted by a Subordinate Summary Authority(Diagram)

C. Procedure BRAVO - Trial Conducted by a SubordinateSummary Authority

D. Procedure BRAVO - Trial Conducted by a SubordinateSummary 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 CommandingOfficer

H. Procedure DELTA - Trial Conducted by a CommandingOfficer (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 SuperiorSummary Authority

L. Procedure FOXTROT - Trial Conducted by a SuperiorSummary Authority (Diagram)

M. Summary Proceedings - Court LayoutN. Procedure GOLF - Procedure Before an Examining

Officer (Other than where a Person is Dangerously Ill)O. Notes on Summary ProceedingsP. Rights of an Accused Person at Summary ProceedingsQ. Notes on BiasR. 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

SpreadsheetsX. Punishment Statistics Spreadsheets

CHAPTER 8 COURTS MARTIAL—BEFORE THE TRIAL

SECTION 1 - GENERALIntroduction 8.1Types of Court Martial 8.2Jurisdiction of Court Martial 8.3Power of Punishment Held by Courts Martial 8.4Conduct of Courts Martial 8.6

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SECTION 2 - CONVENING A COURT MARTIAL

CONVENING AUTHORITIESAppointment of Convening Authorities 8.7Power of a Convening Authority to Convene a Court Martial 8.8

COURSES OPEN TO A CONVENING AUTHORITYGeneral 8.10Where a New Trial has been Ordered 8.11Where Accused has Elected to be Tried by Court Martial or

Defence Force Magistrate 8.12Where an Accused has Elected to be Punished by a Court

Martial or Defence Force Magistrate 8.14Directing that a Charge be not Proceeded With 8.15Referring a Charge to a Summary Authority 8.16Referring a Charge to a Defence Force Magistrate 8.18Deciding Whether to Convene a Restricted or General Court

Martial 8.22

CONVENING A COURT MARTIALEligibility to be a Member of a Court Martial 8.24Eligibility to be a Judge Advocate 8.25Convening Order 8.26Other Documentation to be Provided by a Convening Authority 8.29Notification of Accused Person's Rights 8.30Court Martial Administrative Order 8.31Attendance of Witnesses 8.34Public Access to Courts Martial 8.35

PRELIMINARY HEARINGSGeneral 8.37Notification of Applications or Objections 8.38Applications or Objections which may be Heard at a Preliminary

Hearing 8.40Who Should Attend a Preliminary Hearing 8.43Procedure at a Preliminary Hearing 8.44

THE PROSECUTION CASENomination of a Prosecutor 8.45Documents to be Supplied to a Prosecutor 8.46Duties of a Prosecutor on Receipt of Documents from a

Convening Authority 8.47Disqualification of the Prosecutor 8.49Preparing the Prosecution Case 8.51Keeping the Accused Informed of the Case Against Him 8.52Pre-trial Conferences with Witnesses 8.53Obtaining Additional Evidence 8.54Documentary and Other Evidence 8.55

SECTION 3 - THE ACCUSED'S DEFENCELegal Representation 8.57

DUTIES OF A DEFENDING OFFICERGeneral 8.58Pre-trial Duties of a Defending Officer 8.59Interview with the Accused 8.60Applications and Objections before Trial 8.61Deciding the Plea 8.62Evidence for the Defence 8.63Giving of Evidence by the Accused—Implications 8.64Other Defence Witnesses 8.66Character Witnesses 8.68Alibi Evidence 8.70Defence Opening Address 8.71Plea in Mitigation 8.72

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Pre-sentence Report 8.75

SECTION 4 - DUTIES OF OTHER OFFICIALS

CLERK OF THE COURTIntroduction 8.76Duties in Relation to Documents 8.78Ordering or Summonsing of Persons to Attend 8.79Other Duties of the Clerk 8.80

THE ESCORT 8.82

CHAPTER 9 COURTS MARTIAL—AT THE TRIALGeneral 9.1

GENERAL DUTIES OF A COURT MARTIAL IN RELATION TOEVIDENCE

Issues of Fact 9.5Issues of Fact to be Decided on the Evidence 9.6The Demeanour and Credibility of Witnesses 9.7Inferences to be Drawn when Accused Does Not Give Evidence 9.10Circumstantial and Direct Evidence 9.11Onus and Standard of Proof 9.12

FUNCTIONS OF THE PRESIDENT, MEMBERS AND JUDGEADVOCATE AT A COURT MARTIAL

General 9.13

FUNCTIONS OF THE PRESIDENTGeneral 9.15Orders or Summonses to an Accused Person 9.17Orders or Summonses to Witnesses 9.18Public Hearings 9.19Oath or Affirmation by Witnesses 9.20Recorders and Interpreters 9.21Removal of an Accused Person from the Court 9.22

FUNCTIONS OF THE COURTGeneral 9.23Determination of Questions 9.24Amendment of Charge Sheet 9.25Withdrawal of Charge 9.26Adjournments 9.27Powers in Relation to Pleading 9.28Powers in Relation to Witnesses 9.29Powers in Relation to Evidence 9.30Manner of Voting of Court Martial 9.32

FUNCTIONS OF THE JUDGE ADVOCATEGeneral 9.33Replacement of Member of the Court 9.38Swearing or Affirming of the Court 9.41Objections to Recorders or Interpreters 9.42Substitution of Plea 9.43Questioning of Witnesses 9.44Summing up 9.45Record of Proceedings 9.46Evidence of Alibi 9.47Exclusion of Evidence Illegally Obtained 9.48‘No Case’ Submission 9.49

FUNCTIONS OF THE PROSECUTORAppointment 9.50Prosecution Opening Address - Plea of Not Guilty 9.53

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Outline of Material facts by Prosecution after Conviction onGuilty Plea 9.55

General Responsibility in the Presentation of the ProsecutionCase 9.56

Responsibility of the Prosecutor in the Sentencing Process 9.59

FUNCTIONS OF OTHER OFFICIALS AT A COURT MARTIALFunctions of the Clerk 9.65Functions of the Orderly 9.66Functions of the Escort 9.69

FUNCTIONS OF THE RECORDERRequirement to Keep a Record 9.71Method of Recording 9.72Preparing a Transcript 9.74

Annexes:A. Order of Procedure at a Trial by Court Martial (Diagram)B. Order of Procedure at a Trial by Court MartialC. Courts Martial - Recording the ProceedingsD. Court LayoutE. National Guidelines Governing the Use of Interpreters in

the Australian Legal System

CHAPTER 10 DEFENCE FORCE MAGISTRATESAppointment of Defence Force Magistrates 10.1Jurisdiction and Powers of a Defence Force Magistrate 10.2Engaging the Jurisdiction and Powers of a Defence Force

Magistrate 10.3Referring a Charge to a Defence Force Magistrate 10.4Administrative Order for Hearing by Defence Force Magistrate 10.6Participants at a Hearing Before a Defence Force Magistrate 10.7Functions of a Defence Force Magistrate at a Hearing 10.8Procedure at a Trial by a Defence Force Magistrate 10.9Public Access to a Hearing by a Defence Force Magistrate 10.10

Annexes:A. Order of Procedure at a Trial by a Defence Force

MagistrateB. Order of Procedure at a Trial for Sentence by a Defence

Force Magistrate

CHAPTER 11 PUNISHMENTS AND ORDERS

SECTION 1—INTRODUCTION 11.1

SECTION 2—PUNISHMENTS GENERALLY

SENTENCING PRINCIPLESGeneral 11.2Principles of Sentencing Applied by Civil Courts 11.3The Need to Maintain Discipline in the Defence Force 11.4

SCALE OF PUNISHMENTS 11.5

LIMITATIONS ON PUNISHMENTS 11.7

COMMENCEMENT OF PUNISHMENTS 11.11

SECTION 3—NOTES ON PUNISHMENTS

IMPRISONMENTGeneral 11.13Life Imprisonment 11.14Imprisonment for a Specific Period 11.16Miscellaneous Aspects of Punishment of Imprisonment 11.18

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DISMISSAL FROM THE DEFENCE FORCE 11.19

DETENTIONGeneral 11.22Periods of Detention 11.26Suspension of Detention 11.27Revocation/Remission of Suspended Detention 11.28Forfeiture of Salary and Allowances in Detention 11.29

REDUCTION IN RANKGeneral 11.30Reduction in Rank of Officers 11.32Reduction in Rank of Members Other than Officers 11.34

FORFEITURE OF SERVICE FOR THE PURPOSES OFPROMOTION 11.36

FORFEITURE OF SENIORITY 11.38

FINESGeneral 11.40Suspension and Remission of Fines 11.42Advantages and Limitations 11.43Recovery of Fines etc 11.44

SEVERE REPRIMAND/REPRIMAND 11.45

RESTRICTION OF PRIVILEGES, STOPPAGE OF LEAVE,EXTRA DUTIES AND EXTRA DRILL (MINORPUNISHMENTS)

General 11.46Restriction of Privileges 11.47Stoppage of Leave 11.48Extra Duties 11.49Extra Drill 11.50Miscellaneous Aspects of ‘Minor’ Punishments 11.51

PUNISHMENT OF DETAINEESCustodial Punishments 11.53Offences which Attract Custodial Punishments 11.55Miscellaneous 11.58

ACTION, OTHER THAN PUNISHMENT, UNDER PART IV OFTHE DFDA

CONVICTION WITHOUT PUNISHMENTGeneral 11.60Matters to be Considered 11.61First Offenders 11.62Breach of Undertaking to be of Good Behaviour 11.63

RESTITUTION AND REPARATION ORDERSRestitution 11.66Circumstances in which Restitution Orders may be Made 11.67Reparations 11.68Maximum Amounts Payable by Way of Reparation 11.71Execution and Enforcement of Restitution and Reparation

Orders 11.72

CHAPTER 12 REVIEWS AND APPEALS

SECTION 1— REVIEWS

GENERAL 12.1

REVIEWING AUTHORITIES 12.4

ADFP 201 VOLUME 1xix

AVENUES OF REVIEWPreliminary Automatic Review by Commanding Officer 12.8Automatic Review by Reviewing Authority 12.11Review on Petition to a Reviewing Authority 12.15Review by Service Chief 12.19

REVIEW OF CONVICTIONSGeneral 12.21Grounds for Quashing Convictions 12.22Quashing Conviction on the Ground of Unsoundness of Mind 12.23Receiving Other Evidence 12.26Ordering a New Trial 12.27Substitution of Conviction of Alternative Offence 12.29

POST REVIEW NOTIFICATION 12.31

REVIEW OF PUNISHMENTS OR ORDERSGeneral 12.32Punishments etc which are Wrong in Law 12.33Punishments etc which are Excessive 12.34Taking Other Offences into Consideration 12.36Elective Punishments 12.38Substitution of Punishment or Order 12.40Fixing a Non-parole Period 12.42Suspending the Punishment of Detention 12.43

OTHER MATTERS RELATING TO REVIEW OFPUNISHMENTS AND ORDERS

Punishments and Orders which are Subject to Approval 12.44When Approved Punishments Take Effect 12.47Substitution of Punishments or Orders where the Original

Punishment or Order is not approved 12.48Custody of Convicted Persons Pending Approval of Certain

Punishments 12.49Stay of Execution of Punishment 12.52

ACTION ON REVIEW OF PROCEEDINGS THAT HAVERESULTED IN AN ACQUITTAL ON THE GROUND OFUNSOUNDNESS OF MIND

General 12.53Quashing of a Prescribed Acquittal 12.54Receiving Other Evidence 12.55Finding of "Unfit to Plead" 12.56Ordering a New Trial 12.57

SECTION II - APPEALS

GENERAL 12.59

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNALComposition of Tribunal 12.61Sittings of the Tribunal 12.62Sittings before a Single Member 12.64

BRINGING OF APPEALSWho May Appeal 12.66Grounds of Appeal 12.67With whom Appeals etc may be Lodged 12.69Time Limits on Lodging Appeals etc 12.70

DETERMINATION OF APPEALSReceiving Other Evidence 12.72Quashing of Conviction etc. 12.73Substitution of Conviction for Alternative Offence 12.74Quashing Conviction on the Ground of Unsoundness of Mind 12.77Ordering a New Trial 12.80

ADFP 201 VOLUME 1xx

Person Deemed to have been Acquitted 12.81

INCIDENTAL POWERS OF THE TRIBUNALPowers in Relation to Witnesses and Evidence 12.82Power to Obtain Report 12.83Warrants 12.84Costs 12.85Restitution Order and Reparation Orders 12.86

REPRESENTATION AND ATTENDANCE OF APPELLANT ATHEARINGS

Attendance of Appellant 12.87Representation of Appellant 12.88Defence of Appeals 12.89

OFFENCES IN RELATION TO THE TRIBUNALOffences 12.90Contempt 12.91

REFERENCES AND APPEALS FROM THE TRIBUNAL TOTHE FEDERAL COURT

References During Hearings Before the Tribunal 12.92Appeals from Decisions of the Tribunal 12.93Powers of the Federal Court in Relation to Appeals 12.94Custody Orders and Sending of Documents to the Federal

Court 12.95

Annexes:A. Petitions for Review of Convictions, Punishments and

OrdersB. Format of Petition for Review of Conviction, Punishment

or OrderC. Format of Signal for Report of Receipt of a Petition

CHAPTER 13 DISCIPLINE OFFICERS

INTRODUCTION 13.1

DISCIPLINE OFFICERAppointment 13.4Role 13.6

JURISDICTION 13.10

DISCIPLINARY INFRINGEMENTS 13.13

RELEVANT OFFICERAuthorisation 13.15Role 13.16

INFRINGEMENT NOTICEGeneral 13.20Part 1 - Infringement Details 13.23Part 2 - Election 13.25Part 3 - Hearing by Discipline Officer 13.27Part 4 - Information for Defence Members 13.29

PUNISHMENTS 13.33

INFRINGEMENT REGISTER 13.36

APPEALS AND REVIEWS 13.39

Annexes:A. Guide to Procedure for Relevant OfficerB. Infringement NoticeC. Guide to Procedure for Hearing by Discipline OfficerD. Discipline Officer - Statistics

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 isnecessary for it to conduct successful operations. As the ADF may be required to transition at shortnotice from peace to conflict, a common and high standard of discipline must be maintained at alltimes. Discipline is achieved and maintained by many means including leadership, training and theuse of administrative sanctions. The Defence Force Disipline Act 1982 (DFDA) is a particularlyimportant means of maintaining discipline in the ADF. Indeed, the primary purpose of the DFDA is toestablish and maintain a high level of Service disicpline.

1.2 In some circumstances, maintenance of discipline will best be achieved by takingadministration action against members in accordance with single-Service Instructions. In othersituations, notably those involving minor breaches of discipline, resort to proceedings before aDiscipline Officer may be appropriate. However, Discipline Officer action or administrative actionalone is inappropriate to deal with situations in which a serious beach of discipline is alleged or wherethe conduct involved is otherwishe deemed to be sufficiently serious as to require the preferment ofcharges under the DFDA. In short, alternative disposal methods should not be used as a means toavoid 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 lawapplicable to the armed forces, usually taking the form of a curtailment or abolition of such rights asthe soldier would have had as a citizen. In Roman times the foundation of military law was completesubjection of the soldier to the will of the commander. The harshness of this system is apparent fromthe 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 thestaff officer as well as the common soldier; nor were such punishments inflicted merely on accountof common crimes, but also when an officer had allowed himself to deviate from the orders whichhe had received or when a division had allowed itself to be surprised or had fled from field ofbattle”1

1.4 The harshness of military discipline in the Middle Ages is illustrated by reference to theOrdonnances of King Richard I of England. For example, "whoever shall commit murder aboard shipshall be tied to the corpse and thrown into the sea: if ..... on land ..... tied to the corpse and buried aliveor ..... if a robber be convicted, boiling pitch shall be poured over his head and a shower of feathers beshaken over to mark him, and he shall be cast ashore”.2

1.5 As late as the 18th Century the eminent English legal writer Blackstone charged that themilitary system of justice was not built upon any settled principles, but was entirely arbitrary in itsdecisions 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 theRoyal Navy was radically reformed with the implementation in 1847 of the Naval Discipline Act and, in1879, of the Army Discipline and Regulation Act. These Acts brought the code of disciplinary laws intoline with the more humane standards of the day and conferred upon naval and military personnel abroader 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 theprevious system of disciplinary law in each of the three arms of the Australian Defence Force andcame in for well merited criticism over many years on various grounds. At the end of its period of

1 See Bishop, J.W. Justice Under Fire New York: Charterhouse, 1974.

2 Exton, Maritime Dicacologie, London: 1664

ADFP 201 VOLUME 11–2

operation the legislation governing discipline in the Australian Defence Force was contained in thefollowing: three United Kingdom Acts, two of which had ceased to operate in the UK; four sets ofUnited Kingdom rules or regulations, all of which had ceased to operate in the UK; three AustralianActs; 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. TheDFDA contains for the first time in one Act, the disciplinary law applicable to the three arms of theDefence Force. Detailed notes on the disciplinary legislation which preceded implementation of theDFDA 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 oncharges of service offences against the Act.

1.10 The Act also provides these tribunals with power to try civilians accompanying the DefenceForce outside Australia or on operations against the enemy for some of these offences in certaincircumstances. Civilians are not otherwise liable to be tried by service tribunals, nor are any offencescreated by the Act triable by civil courts.

1.11 The Act creates a system of internal appeals against and review of convictions andpunishments, complementary to the system of external appeal to a tribunal (comprising not less thanthree judges) against, and review of, convictions provided by the Defence Force Discipline AppealsAct.

1.12 The DFDA also provides for related matters such as investigation of offences, suspensionfrom duty, powers of arrest, power to order restitution of stolen property or payment of reparation fordamage or loss caused, conviction without punishment, approval of certain punishments by higherauthority, suspension and remission of punishments, execution and enforcement of punishments andparole.

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 minordisciplinary infringements. The discipline officer is not a service tribunal and does not deal with serviceoffences thus avoiding the complexity associated with trials by service tribunals. The discipline officerregime 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 thelaw relating to the investigation, hearing and trial of service offences, the review of proceedings ofservice tribunals, and petitions and appeals against decisions of service tribunals.

1.15 The principal laws directly applicable are the DFDA and the Defence Force DisciplineAppeals Act 1955, the regulations made under each of those Acts, and the rules of procedure andother 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 referenceother 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 BayTerritory, offences against the Crimes Act 1900 (New South Wales) in its application to the Jervis BayTerritory and offences against the ACT Police Offences Act 1930 in its application to the Jervis BayTerritory3. Additionally, the principles of common law with respect to criminal liability apply in relation to

3 DFDA s.3, s.61


service offences4 and the rules of evidence in force in the Australian Capital Territory apply toproceedings before service tribunals.5

1.17 Volume 2 of this Manual contains relevant parts of other legislation necessary to theoperation of the DFDA. This legislation includes:

a. The Evidence Act 1995 (Commonwealth).

b. Selected parts of the Crimes Act 1900 (NSW) in its application to the Jervis BayTerritory and the Crimes Act 1914 (Commonwealth). (The provisions omitted either donot apply to trials by service tribunals or create offences that a service tribunal is notlikely to be called upon to try.)

c. Provisions of the Customs Act 1901 (Commonwealth) and the Customs (NarcoticSubstances) Regulations relating to drug offences under s 59 of the DFDA.

d. Miscellaneous legislation including Part XIII of the Defence Force Regulations(suspension and forfeiture of salary and allowances) and the High Court Rules relatingto the payment of witness

1.18 Chapters 2 to 12 are a layman's guide to this law. Any person required to act in accordancewith any of the laws referred to may need to acquaint himself with the precise terms of the particularlaw. For this purpose, the notes to these chapters refer to the relevant provisions of the Act ofParliament, 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

4 DFDA s.10; see also Chapter 5 paragraph 5.4

5 DFDA s.146; these rules are subject to modification by DFD Regulation 20

ADFP 201 VOLUME 1ANNEX A TOCHAPTER 1

DISCIPLINARY LEGISLATION IN EFFECT IN THE DEFENCE FORCEBEFORE IMPLEMENTATION OF THE DEFENCE FORCE DISCIPLINE

ACT, 1982

PREVIOUS LEGISLATION

1. The Defence Force Discipline Act (DFDA) replaced the separate disciplinary legislation ofthe Navy, the Army and the Air Force. The previous legislation consisted in each case of a compoundof 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. Inthe strict legal sense, a code means a compilation of laws intended to regulate completely the subjector subjects to which it relates. Neither the previous legislation nor the DFDA comprise a code in thissense.

3. The following abbreviations have been used throughout this annex:

a. for Defence Act 1903 - DA; for Australian Military Regulations - AMR; and for Air ForceRegulations - AFR.

The Army

4. Before implementation of the DFDA, there were two codes of discipline for the Army. Whenmembers of the Army were on war service they were subject to the British code. The expression "warservice" was something of a misnomer because for this purpose it not only included service in time ofwar, but also active service (see definitions of "active service" and "war service" in DA 4(1)) and allservice 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 AustralianMilitary Regulations. Certain provisions of the Defence Act and the Australian Military Regulations alsoformed part of the code; for example, the provisions relating to the convening of courts martial, theconfirmation and review of findings and sentences, arrest and custody and the serving of sentences ofimprisonment and detention.

6. When members of the Army were not on war service (ie when serving in Australia in peacetime), they were subject to what may be termed the Australian code. This, in fact, incorporated part ofthe British code in that DA s 88 applied those provisions of the British code that related to theprocedures to be followed at trials by courts martial and the confirmation and review of findings andsentences of courts martial.

7. The remainder of the Australian code was prescribed in the Defence Act and the AustralianMilitary Regulations. As the offences prescribed in the Australian Military Regulations were mostlytaken verbatim from the British code, the principal difference from the code that was applicable tomembers on war service were:

a. there were no service offences of treason or treachery;

b. offences against the ordinary law (other than the Defence Act) were not triable;

c. punishments imposable by officers dealing with offences summarily were restricted(DA s 108); and

d. all offences, regardless of their relative seriousness, carried the same maximumpunishment of imprisonment for three months (AMR reg 215).

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

ADFP 201 VOLUME 11A–2

9. In their application to the Australian Army, the (UK) Army Act and the (UK) Rules ofProcedures 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) AirForce Act and the (UK) Rules of Procedure (Air Force) 1933 made thereunder and the King'sRegulations and Air Council Instructions for the Royal Air Force. There was no distinction in thisregard between war service and other service.

11. The (UK) Air Force Act was originally the (UK) Army Act (1881) as in force in 1917, appliedto the Royal Air Force by the (UK) Air Force (Constitution) Act 1917, and appropriately retitled andamended by the latter Act. In its application to members of the Australian Air Force, the (UK) Air ForceAct applied as in force on 15 December 1939 (see s 5(1) of the Air Force Act 1923) and as modifiedand 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 AirForce by AFR reg 13(1). Although the definition of "the Rules of Procedure" in AFR reg 4(1) referred tothe Rules of Procedure as being the (UK) Rules of Procedure (Air Force) 1933 "as amended from timeto time", the effect of the repeal of the (UK) Air Force Act with effect from 1 January 1957 was that theRules of Procedure applied in force on 31 December 1956. They applied as modified and adapted bythe 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 AirForce by AFR reg 13B(1). Only selected paragraphs relating to discipline, courts martial and forfeiturewere applied. The KR and ACI applied as in force on 18 July 1940 (ie the 1939 edition) and asmodified 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 theAir Force, in some cases in parallel with provisions of the (UK) Air Force Act, in other cases in place ofsuch provisions.

The Navy

15. Members of the Navy were subject to the disciplinary code prescribed in the (UK) NavalDiscipline Act 1957 and the Queen's Regulations and Admiralty Instructions, in both cases as in forceon 6 November 1964 (see s 3 (definition of "the Naval Discipline Act") and 34 of the Naval DefenceAct 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 1957and the QR and AI (1953 edition) were modified and adapted by the Naval Forces Regulations (seeNFR reg 9 and Schedules 1 and 2). An effect of the modifications and adaptations was that onlyselected 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 theNavy, in some cases in parallel with provisions of the (UK) Naval Discipline Act 1957, in other cases inplace of such provisions.

18. Legislative Basis for the DFDA. The DFDA was based on the (UK) Army Act 1955, AirForce Act 1955 and Naval Discipline Act 1957. These Acts were chosen as the basis because theywere the result of a thorough review of the AA, the AFA and the (UK) Naval Discipline Act of 1866 by aselect committee of the House of Commons. The following House of Commons reports refer:

a. Report from the Select Committee on the Army Act and Air Force Act (No. 289, 1953)

b. the same (No. 223, 1954); and

c. 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) general courts martial, and

(2) restricted courts martial;

b. Defence Force magistrates; and

c. summary authorities comprising:

(1) superior summary authorities,

(2) commanding officers, and

(3) subordinate summary authorities.

2.2 This chapter describes the jurisdiction of service tribunals generally. The specific jurisdictionand powers of particular service tribunals are set out in Chapter 7 in relation to summary authoritiesand 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 isconferred in relation to charges.1 A charge is defined as a charge of a Service offence and a serviceoffence is defined as:

a. an offence against the Defence Force Discipline Act 1982 (DFDA) (ie s.15 to s.62inclusive, and s.101QA) or the regulations; or

b. an ancillary offence in relation to an offence referred to in subparagraph a.2

2.4 Offences against the DFDA or the regulations include aiding and abetting the commission ofany of the offences referred to in paragraph 2.3a.3

2.5 An ancillary offence is defined as an offence against s.6 (Accessory after the fact), s.7(Attempts), s.7A (Inciting to or urging the commission of an offence) or s.86(1)(a) (Conspiracy4) of theCrimes Act 1914.5

1 DFDA s.106, s.107, s.108, s.115 and s.129.

2 DFDA s.3(1) (definition of ‘charge’ and ‘service offence’); as to the meaning of ‘ancillary offence’ seeparagraph 2.5 and Annex C to Chapter 4.

3 Crimes Act 1914, s.5.

4 Note Crimes Amendment Act 1995 (No. 11 of 1995) with respect to restrictions on offence ofconspiracy.

5 DFDA s.3(13).


Limitations as to Place where Offence Committed

2.6 The only limitation imposed on Service tribunals in relation to the place where a serviceoffence was committed is that certain Service offences when committed in Australia cannot be triedexcept with the consent of the Director of Public Prosecutions. These offences are:

a. treason, murder, manslaughter or bigamy;

b. an offence against s.92A to s.92NB (inclusive) of the Crimes Act 1900 of the State ofNew South Wales, in its application to the Jervis Bay Territory;

c. an offence in respect of which proceedings could not be brought in the Jervis BayTerritory without the consent of the Minister, the Director of Public Prosecutions or aperson authorised by the Director of Public Prosecutions to give consent; or

d. an ancillary offence in relation to an offence in sub-paragraphs a., b. or c.6

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 insubparagraph 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 asentence of imprisonment.7

b. in the case of an offence against s.15 (aiding enemy), s.16 (communication withenemy), s.20 (mutiny) or s.22 (desertion) of the DFDA or an ancillary offence relatingto such an offence - no time limitation;8 and

c. in the case of an offence that is a Territory offence (including an ancillary offence inrelation to a Territory offence) - whatever period applies in a civil court in the JervisBay Territory (see below).9

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 firstconviction exceeds six months - no time limitation;

b. where the maximum term of imprisonment for the offence for a first conviction doesnot exceed six months or the punishment for the offence is a pecuniary penalty (noterm of imprisonment being mentioned) - one year after the date of commission of thealleged offence; and

c. in any case where a longer time limitation than one year is provided - that longerperiod.10

6 DFDA s.63(1).

7 DFDA s.96(1), (3)

8 DFDA s.96(2)

9 DFDA s.96(4); see also paragraph 2.8 re Territory offences.

10 Crimes Act 1914 s.21 in relation to offences against laws of the Commonwealth.


2.9 A person who has ceased to be a member of the Defence Force or a defence civilian, cannotbe charged with a service offence unless the maximum punishment for the offence is imprisonment fortwo years or a more severe punishment and the person is charged not later than six months after heor she ceased to be a member or a defence civilian, as the case may be.11

PERSONS WHO MAY COMMIT SERVICE OFFENCES

2.10 With one exception12 service offences (ie offences against the DFDA or the DFDRegulations) may be committed only by defence members or defence civilians. Many service offencesmay be committed only by defence members.13

2.11 The exception is that of a person making a false statement etc in relation to his or herapplication for appointment to, or enlistment in, the Defence Force. However, this offence ispunishable under the Act only if the person's application is successful and the person becomes amember of the Defence Force.14

2.12 The effect of the foregoing is that only a person who is or has been a defence member or adefence 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 RegularArmy Supplement or the Permanent Air Force; or

b. a member of the Emergency Forces or the Reserve Forces who:

(1) is rendering continuous full time service, or

(2) is on duty or in uniform.15

2.14 The Emergency Forces comprise the Naval Emergency Reserve Forces, the Regular ArmyEmergency Reserve and the Air Force Emergency Force.16 The Reserve Forces comprise theAustralian Naval Reserve, the Australian Army Reserve and the Australian Air Force Reserve.17

2.15 A member of the Emergency Forces or the Reserve Forces is rendering continuous full timeservice 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 ReserveForces is clearly on duty, a member is deemed to be on duty for the purposes of the DFDA:

11 DFDA s.96(6).

12 DFDA s.57(1).

13 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 ands.62.

14 DFDA s.57(1).

15 DFDA s.3(1) (definition of ‘defence member’).

16 DFDA s.3(1) (definition of ‘Emergency Forces’).

17 DFDA s.3(1) (definition of ‘Reserve Forces’).


a. from the time appointed for the member to report to, or to attend at, a specified placefor any naval, military or air force service that the member is required to render by orunder the Defence Act, the Naval Defence Act or the Air Force Act until duly releasedor discharged from that service; or

b. while acting or purporting to act in his or her capacity as a member of the EmergencyForces or the Reserve Forces.18

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, thearmed forces of another country, a force raised or organized by the United Nations or anotherinternational body, or a peacekeeping force does not, in itself, affect the member’s membership of theDefence Force.19

2.18 A peacekeeping force is a force raised or organized for the purpose of peacekeeping in anarea outside Australia or observing or monitoring any activities of persons in an area outside Australiathat may lead to an outbreak of hostilities, being a force designated as a peacekeeping force for thepurposes of Division 10 of Part III of the Repatriation Act 1920.20

Members as Prisoners of War

2.19 Where a member of the Defence Force is captured by the enemy the member becomes aprisoner of war. The member remains a defence member but the Detaining Power would not ordinarilyallow 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 foracts or omissions committed by him or her before, or while, the member was a prisoner of war, thatconstitute service offences. Any period during which a member is a prisoner of war is to be disregarded inassessing whether the time during which a charge of a service offence may be brought has expired.21

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 theDefence Force under the Defence Act 1903, s.116B(1) is, while so attached, regarded as a member ofthat part of the Defence Force, as holding the appropriate rank therein and as having appropriatestatus and powers for the purposes of command and discipline.22

2.21 Such a person is accordingly, for disciplinary purposes, both a member of the Defence Forceand a defence member while the person continues to be so attached. The operation of the lawgoverning the Australian Defence Force (including the DFDA), in its application to such a person, issubject to any exceptions, etc, specified by the Minister. By Order dated 3 June 1988 the Ministermodified the DFDA by omitting subsection 3(9) and substituting the following subsection for membersof armed forces of other countries:

'(9) A reference in this Act to the amount of a convicted person's pay for a specified numberof 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 personwas so convicted; and

18 DFDA s.3(4).

19 DFDA s.3(7).

20 Repatriation Act 1920 s.107J(1).

21 DFDA s.96(3).

22 Defence Act 1903 s.116B(2).


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 offencescommitted while the person was a defence member; the person may also be given any appointmentunder 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 ifthe person were a member of the Defence Force and a defence member. This position continueswhile Australia remains responsible for the person.23 The operation of the DFDA, in its application tosuch a person, is subject to any exceptions etc provided for by the regulations under the DFDA.24

2.24 This application of the DFDA is necessary to meet the requirements of article 82 of theGeneva 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 notpart of the Defence Force and an officer, instructor or cadet belonging to one of these bodies does notbecome a member of the Defence Force merely by reason of his or her membership of that body or by hisor her rendering of service under the Cadet Forces Regulations.25

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 enemyand (in either case) has consented in writing to subject himself or herself to Defence Force disciplinewhile so accompanying that part of the Defence Force.26

PLACES WHERE A SERVICE TRIBUNAL MAY SIT

2.27 A service tribunal may sit at any place inside or outside Australia.27 It may sit inside Australiato 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 anothercountry when the forces of the first country are passing through, stationed in, or in occupation of, theother country. The position may be regulated by agreement between the two countries and may be thesubject of legislation.28 For example, Australian service tribunals may exercise jurisdiction overAustralian Servicemen in Malaysia and Singapore subject to the 'status of forces' provisions containedin the Five Power Defence Arrangements. Similar arrangements exist in respect of AustralianServicemen in Papua New Guinea - under the Status of Forces Agreement between Australia andPNG. Before an Australian service tribunal exercises jurisdiction under the DFDA in another country, itis necessary to consult with the appropriate Australian authorities29 to ascertain whether or not theservice tribunal has jurisdiction and the existence or otherwise of any agreements with that country.

23 DFDA s.7(1).

24 DFDA s.7(2).

25 Defence Act 1903 s.62(3), (4); Naval Defence Act 1910 s.38(3), (4); Air Force Act 1923 s.8(3), (4).

26 DFDA s.3(1) (definition of ‘defence civilian’).

27 DFDA s.9.

28 O’Connell, D.P. International Law Vol II. London: Stevens & Sons Limited 1965, at p 954.

29 Refer to Director of Agreements, Defence Legal Office, Department of Defence Canberra


2.29 A warship has some degree of immunity from the jurisdiction of a foreign government andthe local authorities of a foreign country have no authority with respect to crimes committed on boardin the territorial waters of that country unless the commanding officer surrenders the alleged offenderto them.30 A service tribunal of the armed forces of a country may exercise its jurisdiction in a warshipof that country in the territorial waters of a foreign country.31

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 thedisciplinary system provided for in the DFDA. Since the commencement of the DFDA in 1985, doubtshave existed about the appropriateness of taking disciplinary action under the DFDA in cases where acivil criminal prosecution would also be possible.

2.31 The High Court of Australia has now on several occasions considered the question of thejurisdiction of the ADF to deal with matters which are also offences under the ordinary criminal law32.In effect, the High Court has decided that the ADF may only deal with matters, “where proceedingsunder the DFDA can reasonably be regarded as substantially serving the purpose of maintaining orenforcing service discipline.” With respect to some matters, there is little doubt that they are directlyrelated to the maintenance and enforcement of service discipline. For example, Absence withoutLeave; Absence from Duty; Insubordination; and Disobedience of a Lawful Command are clearlymatters which fall within military jurisdiction. Other matters, such as theft, assault and fraud or fraudrelated offences, may fall within either military jurisdiction or within the jurisdiction of the civilauthorities. Others again, such a serious sexual harassment; sexual assault; serious fraud; andserious 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 withinmilitary jurisdiction, advice must be sought from a legal officer 33 before proceeding with theinvestigation and or preferring a charge34.

Notification Procedures for cases where military jurisdiction is exercised

2.33 Whenever a service tribunal exercises jurisdiction over an alleged offence of a type whichoverlaps with the ordinary criminal law as described in paragraph 2.31, results of any subsequentService prosecution are to be notified to the relevant civil prosecuting authority, either the State orCommonwealth DPP as soon as possible. Notifications are to be in the form at Annex D to DI(G)PERS45-1 and for offences against Commonwealth laws, are to be sent to the Head Office of theCommonwealth Director of Public Prosecutions. For offences against State or Territory laws, the

30 O’Connell, D.P. International Law Vol II. London: Stevens & Sons Limited 1965, at p 939.

31 Oppenheim, L. International Law 8th Edition, (H. Lauterpacht ed.) Vol I. London: Longmans, Greenand Co., 1958, at p 854.

32 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.

33 Legal officers need to be aware of the difficulties associated with the determination of jurisdiction asbetween civil and military authorities. In the very serious cases, the course to be followed will bestraight forward: the matter will be handed to State or federal police (as appropriate) who will completethe 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 notprepared to deal with it and may prefer to refer it back for prosecution under the DFDA. Where such amatter is one which might properly be charged under the civil law, if it is a State offence, the State DPPshould be approached, made aware of the circumstances and asked if they are prepared to consent tothe matter being dealt with under the DFDA. If it is a federal offence, the Commonwealth DPP shouldbe similarly approached. To avoid embarrassment for the Commonwealth DPP that office is not to beapproached with respect to matters which may properly be charged under State law.

34 See generally DI(G)PERS 45-1 - Jurisdiction under Defence Force Discipline Act—Guidance forMilitary Commanders


notifications are to be made to the relevant State or Territory DPP prosecuting authorities. A copy ofthe completed form is to be attached to the Summary Proceedings Report (Form PD105) before it isdispatched 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 andsuspension from duty of persons suspected of having committed Service offences. The chapter isintended to assist Service police, and other persons, who may be required to investigate or take otheraction in relation to a possible Service offence but does not give detailed advice on all administrativematters in connection with such investigations or other action, as these may vary according to thecircumstances of each case and are more properly dealt with in Service police manuals or by otheradministrative 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 officer1 may ask a person questions about an offence where theinvestigating officer believes that the person (whether a suspect or not) may be able to furnishinformation that may assist him in his investigation of the offence. The right of an investigating officerto do this is subject to requirements of Part VI of the Act2.

3.4 A person who is asked a question by an investigating officer is not obliged to answer3.

3.5 Whenever a caution is required, the caution at Form 1 of the Schedule to the Defence ForceDiscipline 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 (seeparagraph 3.80 for further details), but there is no requirement to caution merely because a personhas 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 toseek a summons against a person for a service offence or to recommend that a person be charged ora summons be sought, the investigating officer must not ask the person any questions or request thatthe person do anything in connection with the service offence unless the investigating officer oranother investigating officer cautions the person.4

3.8 A caution must be given in or translated into a language in which the person being cautionedis able to communicate with reasonable fluency and must tell the person that he or she does not haveto say or do anything but that anything that the person does say or do may be used in evidence.

1 Defined by DFDA s.101(1)

2 DFDA s.101B(1)

3 DFDA s.101B(2)

4 DFDA s.101D–compare s.101S and para. 3.22 which deals with cautioning after a person has beencharged


3.9 A caution need not be given in writing. However, if practicable, the investigating officer is totape record the giving of the caution and the person's response to the caution (if any). If aninvestigating 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 wasnot 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. Seeparagraphs 3.18 to 3.21.

Confessions

3.11 The admissibility of a confession on the trial of a person is governed by the rules ofevidence, which are dealt with in Chapter 6 and by sections 101J, 101JA and 101K of the DFDA. Therules of evidence affect the manner in which an accused person may be questioned by aninvestigating officer because a confession is not admissible if not made voluntarily. A confessionobtained by the use or threat of physical violence or by the making of a promise, threat or otherinducement (not being physical violence or a threat of physical violence) likely to cause the person tomake a confession that is untrue, is deemed not to be made voluntarily5.

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 asevidence against the person in proceedings for a service offence unless the following procedure isfollowed6:

a. the questioning of the person and anything said during that questioning was taperecorded7, if the circumstances are such that it was reasonably practicable to taperecord the confession or admission; or

b. 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 ofthe interview or as soon as practicable afterwards either in English or in anotherlanguage used by the person;

(2) the record was read to the person in the language used by him or her as soonas practicable after the record was made and a copy of the record was madeavailable to the person;

(3) the person was given the opportunity to interrupt the reading to draw attentionto any errors or omissions in the record and was also given the opportunity atthe end of the reading to draw attention to any errors in or omissions from therecord;

(4) the reading of the record and anything said by the person during that readingare tape recorded;

(5) before the record was read to the person, the following explanation was given tothe person:

“When you were interviewed by ........................... (name of police member), a written recordwas made of what you said, and what was said to you, in the interview. The record wasmade *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.

5 DFDA s.101J

6 DFDA s.101A

7 The definition of ‘tape recording’ is in DFDA s.101(1) and includes sound recording and video recording


I am now going to read it to you in ....................... (language), the language you used in theinterview.

You have the right to interrupt the reading at any time if you think there is something wrongwith the record. At the end of the reading, you have the right to tell me about anything elseyou 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, andeverything said to you, during the reading and at the end. You will be given a copy of thattape 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, isentitled, without charge, to a copy of the recording of that confession or admission in accordance withthe following:

a. if the recording is a sound recording only or a video recording only, the police memberconcerned must make the recording or a copy of it available to the person or his or herlegal representative within 7 days after the making of the recording; and

b. if both a sound recording and a video recording were made, the police memberconcerned must make the sound recording or a copy of it available to the person orhis or her legal representative within 7 days after the making of the recording, andnotify the person or his or her legal representative that an opportunity will be provided,on request, for viewing the video recording; and

c. if a transcript of the tape recording is prepared, the police member concerned mustmake a copy of the transcript available to the person or his or her legal representativewithin 7 days after the preparation of the transcript.

3.14 However, a failure to provide the person or his or her legal representative with a copy of thetape recording, will not prevent the admissibility of the relevant confession or admission if the servicetribunal or judge advocate is satisfied that it was not practicable to comply with the requirements. Ajudge advocate who permits the evidence to be given in such circumstances must inform the courtmartial of the non-compliance with the requirements and give the members such warnings about theevidence as he or she thinks appropriate.

3.15 In proceedings for a service offence, evidence of a confession or admission may still beadmissible notwithstanding that the tape recording requirements have not been complied with, if theservice 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 caseswhere there is insufficient evidence of compliance with the requirements. A judge advocate whopermits 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 orshe thinks appropriate.

3.16 A strict procedure is also laid down for the recording and witnessing of oral confessions byan investigating officer who is not a police member, in the case of a serious Service offence, which isa Service offence punishable by imprisonment for more than 6 months8. In brief, the requirement is forone of the following procedures to be observed:

a. The interview during which the confession is made is contemporaneously taperecorded by a multiple tape sound recorder.

b. If such an apparatus is not available, one sound recording is made and a copy madeas soon as possible thereafter.

8 DFDA s.101(1)


c. The interview is recorded in writing contemporaneously or as soon as practicablethereafter, and the record is acknowledged in the prescribed manner by the accusedperson and a copy given to the accused person.

d. The interview is recorded in writing contemporaneously or as soon as practicablethereafter. The record is then read back to the accused person, a copy given to theaccused person and the accused person is given an opportunity to deny or commenton the record. This whole process is recorded on a multiple tape sound recorder orconducted before an appropriate witness9.

3.17 Where sound recordings are made, the investigating officer is to hand one of the recordingsto the accused person, inform the accused person that the other recording will be retained and may beused in evidence and advise the accused person to make arrangements for the safe custody of his orher recording. If the accused person so requests, the investigating officer is to afford the accusedperson an opportunity of making such arrangements and to provide reasonable facilities for the personor his or her legal practitioner to listen to the recording10.

Identification Parades

3.18 An identification parade for the purpose of identifying a possible suspect is not to be heldunless the suspect has agreed to the holding of the parade and has been informed by an investigatingofficer in writing and also, if practicable, orally, in a language in which the suspect is reasonably fluent:

a. that he or she is not obliged to take part in the parade;

b. that, if he or she does not take part, evidence may be given in proceedings for theoffence being investigated of any identification of him or her by a witness fromphotographs or otherwise than as a result of an identification parade;

c. that, if he or she does take part, evidence may be given of any identification of him orher made by the witness, of any doubts experienced by the witness during orimmediately after the parade and of any unfairness in conducting the parade; and

d. that he or she may have a legal practitioner or other person present during the paradeif his or her presence can be obtained within a reasonable time11.

The investigating officer is then to ask the suspect to acknowledge, on the prescribed form, that thesuspect has been so informed12.

3.19 The investigating officer is to:

a. ensure that the identification parade is conducted fairly and, as far as practicable, soas not to suggest to the witness which of the persons is the suspect;

b. cause at least one photograph (in colour if practicable) of the parade to be taken,unless a videotape recording is taken; and

c. cause particulars of what happens during the parade, and (with their consent) thenames, addresses and occupations of the persons (other than the suspect) takingpart, to be recorded13.

9 DFDA s.101K(2) to (4). As to the prescribed manner of acknowledgment see DFD Regs 39 and 40.

10 DFDA s.101K(5), (6)

11 DFDA s.101N(1)

12 DFDA s.101N(2), DFD Reg 42


3.20 If the suspect so requests, the suspect is to be provided with:

a. if a photograph has been taken—a copy;

b. if a videotape recording has been taken-reasonable facilities to enable it to bereproduced visually and, if practicable, in sound; and

c. a copy of the record of particulars of what happened (other than the names, etc ofpersons included in the parade).14

3.21 A person who has been asked to take part in an identification parade need not becautioned15.

Person Charged to be Cautioned

3.22 Immediately after a person in custody is charged with a Service offence the investigatingofficer in charge is required to caution the accused person, in a language in which the person isreasonably fluent, in writing and also, if practicable, orally, that the accused person is not obliged toanswer any questions, or to do anything asked of him or her by an investigating officer and thatanything said or done by him or her may be used in evidence.16

Questioning of Person Charged with an Offence

3.23 After a person has been charged with, or summoned for, an offence, an investigating officeris not permitted to ask the person any question relating to the offence, except for the purpose ofclearing up an ambiguity in an answer to a question asked before the person was charged orsummoned, or in a statement made by the person, whether made before or after the person wascharged or summoned, or where it is necessary to assist the investigating officer in dealing with anemergency17.

3.24 Where however, fresh evidence becomes available, an investigating officer may ask theperson whether he or she wishes to make a statement with respect to it, but the investigating officermay not ask any further questions other than questions to clear up any ambiguities in any statementmade by the person. Before the investigator asks any question the investigator is required either tocaution the person or to remind the person of the caution given when the person was charged18.

3.25 If a person who has been charged with, or summoned for, an offence voluntarily makes astatement to an investigating officer in relation to the offence, the investigating officer is required tocaution the person before the person makes the statement, if practicable, otherwise as soon aspracticable after the person begins to make the statement, that the person is not obliged to make anystatement. The caution must be given in writing and also orally, if practicable19.

13 DFDA s.101N(4), (5)

14 DFDA s.101N(6)

15 DFDA ss.101C(3) and101D(5)

16 DFDA s.101S

17 DFDA s.101T

18 DFDA s.101T(2), (3)

19 DFDA s.101T(4)


Persons Charged with Same Offence

3.26 Where two or more persons have been charged with the same offence and one of theaccused persons furnishes to an investigating officer a written statement relating to the offence, theinvestigating officer may furnish each of the other accused persons with a copy of the statement butthe investigating officer is not to read the statement to them (unless they cannot read it or request thatit be read) or invite them to comment on it20.

3.27 If an accused person who has been furnished with a statement made by another accusedperson voluntarily makes a statement to an investigating officer by way of comment on the otheraccused person's statement, the investigating officer is required to caution the person before theperson makes the statement, if practicable, otherwise as soon as practicable after the person beginsto make the statement, that the person is not obliged to make any statement21.

SUSPENSION FROM DUTY

On Suspicion of Offence

3.28 Where a member of the Defence Force is charged with an offence triable by a Servicetribunal or a civil court, in Australia or overseas, or an authorised officer suspects, on reasonablegrounds, that the member has committed a Service offence, and orders an investigation, theauthorised officer may suspend the member from duty22.

3.29 This power is appropriate for use in circumstances where, because of the nature of theoffence that the person is suspected of having committed (eg fraudulent misappropriation of money), itis desirable that the person should cease to attend at his or her unit until the matter has been enquiredinto 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 adefence member; for example, it permits the suspension of a reservist who is not for the time beingrendering service in respect of an offence that the reservist is suspected of having committed during aperiod when the reservist was rendering service.

3.31 A suspension from duty ceases on completion of the investigation (unless the person is thencharged with an offence) or on the person being notified that the charge will not be proceeded with orthat the prosecution of the charge is abandoned or on the termination of the proceedings before theService tribunal or civil court23.

After Conviction

3.32 Where a member of the Defence Force is convicted, the member may be suspended fromduty:

a. in a case where the punishment imposed requires approval—by the Service tribunal ora reviewing authority, pending approval of the punishment; or

b. where the member was convicted by a service tribunal or by a civil court in Australia oroverseas—by an authorised officer, pending a decision as to the termination of theservice of the member24.

20 DFDA s.101U(1), (2)

21 DFDA s.101U(3)

22 DFDA s.98(1), (2); s 86

23 DFDA s.98(3), (4), (5)

24 DFDA s.99(1), (2)


Effecting Suspension from Duty

3.33 Suspension from duty is required to be effected by notice in writing served on the person25.Forms 15 or 16 may be used for this purpose26.

Effect of Suspension from Duty

3.34 While a member of the Defence Force is suspended from duty, the member is not requiredto perform any duties of his or her office (other than those such duties which may be necessary torelieve the member of that office)27. In addition, except in the case of a member suspended during theinvestigation of an offence, a member who is suspended from duty is not entitled to receive anyremuneration (pay or allowances) during the period of suspension28. However, a member who issuspended from duties may engage in employment outside the Defence Force during the period whenthe 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 toa ‘relevant authority’ on the grounds of hardship and the relevant authority may direct that themember is to receive pay and allowances during the whole or a part of the suspension period. Such adirection may only relate to the whole of member's remuneration; there is no provision for a relevantauthority to direct that a member receive part of his or her pay and allowances; though the directionmay 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 therelevant authority (see paragraph 3.38) and must set out the reasons why the member is suffering orhas suffered hardship as a result of the suspension, for example hardship may result from the inabilityto meet legal financial obligations.

3.37 The loss of accommodation allowances as a result of suspension from duty, will prima facieamount to hardship for the purpose of s.100(4) and will result in the member being entitled to pay andallowances during part of the suspension period sufficient to meet the payment of the accommodationexpenses.29

3.38 The relevant authority for each case depends on the grounds for suspension and is asfollows:

a. in the case of a member who has been suspended from duty after being charged withan offence—an authorised officer (this includes the commanding officer of thatmember)30;

b. in the case of a member who has been convicted of an offence and a decision is beingmade as to termination of the member's service—an authorised officer (this includesthe commanding officer of the member); and

c. in the case of a member who has had a punishment imposed which is subject toapproval—the Service tribunal which imposed the punishment or the reviewingauthority.

25 DFDA s.98(1), (2), (6); s.99(1), (2), (3)

26 See Volume 2 Part 12

27 DFDA s.100(1)

28 DFDA s.100(2)

29 Ministerial Policy Direction of 15 June 1995

30 DFDA s.86


SUMMONS

Introduction

3.39 Because a defence member may be ordered to appear before a Service tribunal, the issue ofa summons with regard to an accused person will be uncommon because it will, in practice, berestricted to cases involving a defence civilian or former defence civilian, a reservist not renderingservice (and hence not a defence member) or a former member of the Defence Force. There are threetypes of summons which may be issued with regard to an accused person and care should be takenthat the correct summons is used. The types of summons which are available are discussed inparagraphs 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 anauthorised member of the Defence Force to appear before a summary authority for the hearing of thecharge. In such a case, the defence member is, preferably at the same time, to be given a copy of thecharge or charges against him or her31.

3.41 Any person who is alleged to have committed a Service offence may initially be proceededagainst 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 commandingofficer. It is to be signed by an authorised member and served in the manner specified in the DFDRegs and, when it is served, the person is deemed to have been charged with the offence32.

Summons Requiring Further Attendance of Accused Person

3.43 A defence member who appears as an accused person before a Service tribunal may beordered by a superior officer to attend again before the same or another Service tribunal33.

3.44 Any person who appears as an accused person before a Service tribunal may be required bysummons to attend again before the same or another Service tribunal34. It is to be signed by theappropriate authority and served in the manner specified in the Defence Force Discipline Rules (DFDRules).35 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 Servicetribunal for the hearing of the charge may be ordered by an authorised officer to appear before theService tribunal36.

3.46 A person charged with a Service offence who fails to appear before a Service tribunal for thehearing of the charge may be required by summons to appear before the Service tribunal or a warrantmay be issued for his arrest37.

31 DFDA s.87(1), (6)

32 DFDA s.87(2), (3); DFD Reg 34

33 DFDA s.87(4)

34 DFDA s.87(5)

35 DFD Rule 6

36 DFDA s.88(1)

37 DFDA s.88(1)


3.47 Where action by way of summons or warrant is contemplated in a particular case, thedecision will depend upon the circumstances of the case; in particular, upon the reason for theperson's non-attendance. A warrant should not be issued unless there are reasonable grounds forbelieving 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 inthe DFD Regs38.

3.49 A warrant is to specify the name of the accused person, and the charge and should statethat it is issued because the accused was not present at a hearing before the Service tribunalspecified in the warrant. The warrant must specify the date on which it ceases to have effect39.

3.50 A warrant may be executed by a constable or a member of the Defence Force (but not by aconstable of a country other than Australia)40.

ARREST

Introduction

3.51 The following paragraphs deal with the apprehension of persons under the DFDA inconnection with trial by Service tribunal. They do not deal with custody after conviction nor do theydeal 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 arrestwithout warrant over defence members and defence civilians.

3.53 The exercise of this power is strictly limited to circumstances where the person making thearrest believes on reasonable grounds:

a. that the other person has committed, or is committing a Service offence;

b. that the arrest of the other person is necessary for the purpose of ensuring his or herappearance before a Service tribunal, or preventing a continuation or repetition of theoffence 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 ofpreserving the safety or welfare of the other person; and

c. that proceedings by way of ordering or summoning the other person under s.87 of theDFDA would not be effective for the purpose41.

3.54 This power may be exercised as follows:

a. An officer may be arrested by:

(1) an officer who is his or her superior officer;

(2) any officer (whether his or her superior officer or not) if the alleged offence ismutiny or a Service offence involving disorderly or violent behaviour; or

38 DFDA s.88(2); DFD Reg 34

39 DFDA s.88(3), (5)

40 DFDA s.88(4) and definition of ‘constable’ in s.3(1)

41 DFDA s.89(1)


(3) subject to the regulations, a police member or a person lawfully exercisingauthority under or on behalf of a Service police officer.42

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 hersuperior officer;

(2) any warrant officer or non-commissioned officer (whether his or her superiorofficer or not) if the alleged offence is mutiny or a service offence involvingdisorderly or violent behaviour;

(3) a police member or a person lawfully exercising authority under or on behalf ofa police member; or

(4) in the case of a sailor only—a member of the regulating staff or the staff of theofficer of the watch or officer of the day, of a naval ship or establishment.

c. A defence civilian may be arrested by:

(1) an officer; or

(2) subject to the regulations, a police member who is an officer, warrant officer ornon-commissioned officer or a person lawfully exercising authority under or onbehalf of a Service police officer.43

3.55 This power may be exercised personally or by ordering the alleged offender into arrest or bygiving an order to a third person to arrest the alleged offender44.

3.56 A person who is reasonably believed to be escaping from, or to have escaped from, custodyunder the DFDA may be arrested, without warrant, by a constable45.

Arrest under Warrant

3.57 Section 90 of the DFDA confers on an authorised officer power to issue a warrant for thearrest of a person who is reasonably suspected of having committed a Service offence46.

3.58 The exercise of this power is subject to strict criteria to be applied by an authorised officerwhen considering whether to issue a warrant.

3.59 First, the authorised officer has to be satisfied by sworn or affirmed information that there arereasonable grounds for suspecting that the person has committed a Service offence, and to believe onreasonable grounds that proceedings by way of ordering or summoning the person under s.87 of theDFDA would not be effective47.

3.60 Secondly, the authorised officer has to be provided with an affidavit by the informant settingout the reasons for which the issue of the warrant is sought (including the reasons why it is believed

42 DFD Reg 35(1)

43 DFDA s.89(2); DFD Reg 35(2)

44 DFDA s.89(3)

45 DFDA s.89(5)

46 DFDA s.3(1); s 86

47 DFDA s.90(1)


that the person committed the offence and the reasons why it is claimed that proceedings under s.87of the DFDA would not be effective). Thirdly, the authorised officer has to be provided with suchfurther sworn or affirmed information as the authorised officer requires regarding the reasons for whichthe warrant is sought. Furthermore, the authorised officer has to be satisfied after considering theaffidavit and other information, that there are reasonable grounds for issuing the warrant48.

3.61 Finally, if the authorised officer issues the warrant, the authorised officer is required tospecify on the affidavit which of the reasons specified in the affidavit, and any other reasons, theauthorised officer has relied upon as justifying the issue of the warrant49.

3.62 A warrant is to specify the name of the person concerned and the Service offence that theperson is alleged to have committed50.

3.63 A warrant may be executed by a constable or a member of the Defence Force (but not by aconstable of a country other than Australia)51.

Effecting an Arrest

3.64 Arrest normally consists of the actual seizure or touching of a person's body with a view tothe person’s detention, but there may be an arrest without imposition of hands provided there isconstraint of a person's will. The mere pronouncing of the words of arrest is not an arrest, unless theperson sought to be arrested submits and goes with the arresting officer52. If the person making the arrestdoes so under the authority of a warrant, the person making the arrest should show it to the person beingarrested if the person making the arrest has it in his or her possession. Otherwise the person making thearrest should tell the person of the reason for the arrest and ensure that the warrant is shown to him or heras soon as practicable.

3.65 A person who makes an arrest is required to inform the person being arrested of the serviceoffence for which he or she is arrested unless, because of the circumstances in which the arrestoccurs, the arrested person ought to know the substance of the offence for which he or she is arrestedor he or she makes it impracticable, because of his or her actions, for the person making the arrest toinform him or her of the offence53.

3.66 It is sufficient compliance if the person making the arrest informs the arrested person of thesubstance of the offence; language of a precise or technical nature is not necessary54.

3.67 A person making an arrest under the DFDA is not to use more force or subject the personbeing arrested to greater indignity than is necessary to make the arrest or to prevent the otherperson's escape after arrest55.

3.68 The use of force likely to cause the death of the person being arrested or grievous bodilyharm to the person is specifically prohibited unless the person making the arrest believes onreasonable grounds that the use of such force is necessary to protect life or to prevent serious injury

48 DFDA s.90(2)

49 DFDA s.90(3)

50 DFDA s.90(4)

51 DFDA s.90(5)

52 Watson, Blackmore, Hosking: Criminal Law in New South Wales, Sydney: LBC, 1996 at 2.33450.

53 DFDA s.93(1), (3)

54 DFDA s.93(2)

55 DFDA s.92(1)


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 arrestbelieves on reasonable grounds that the person cannot be apprehended in any other manner56.

3.69 In executing a warrant for arrest, a member of the Defence Force has no right of entry toprivate property although the member may enter the property with the consent of the owner oroccupier.

3.70 A constable may, in executing a warrant for arrest under the DFDA or for the purpose ofarresting a person who is escaping or has escaped from lawful custody, enter premises (by force ifnecessary) at any time and search the premises provided the constable believes on reasonablegrounds that the person is on the premises57. The constable is not entitled to enter premises between9 pm and 6 am if the constable believes on reasonable grounds that it will be practicable to arrest theperson at any other time.58

PRE-CONVICTION CUSTODY

General

3.71 A person arrested under the Act by a constable may be detained in a police station or similarpremises for such time as is reasonably necessary to enable the arrested person to be delivered intothe custody of a police member or an authorised officer59.

3.72 Where a person is arrested under the Act by a member of the Defence Force or having beenarrested under the Act comes into the custody of a member, the member is required, as soon aspracticable, to take all reasonable steps to ensure that the arrested person is delivered into thecustody of a commanding officer60. This does not mean the custody of the commanding officerpersonally but the arrested person is to be brought to the unit and handed over to the officer in the unitwho 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 Forceand no suitable Defence premises for the person’s custody are available (eg where the arrestedperson is being escorted from one locality to another), the person may be detained in a civil detentionfacility for a period not exceeding 7 days61.

3.74 A person arrested under the Act must be released from custody if the person is not chargedwith 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(because such a person has already been charged).62 Where a person is charged the person is to begiven a copy of the charge forthwith63.

3.75 Where a person is arrested under the DFDA and held in custody, the commanding officer isrequired to cause proceedings to be commenced as soon as practicable for dealing with the charge. If

56 DFDA s.92(2)

57 DFDA s.91(1),(2)

58 DFDA s.91(3)

59 DFDA s.94(1)

60 DFDA s.95(1)

61 DFDA s.94(2)

62 DFDA s.95(2)

63 DFDA s.95(3)


proceedings are not commenced within 48 hours after the person comes into the custody of thecommanding officer, the latter is required to report to a convening authority, in writing, stating his orher reasons for the delay. Similar reports are to be made after each subsequent 8 day period for whichthe person remains in custody without the charge having been dealt with, commencing from the timewhen the person was first placed in custody64.

3.76 If the person remains in custody for 30 days without the charge having been dealt with, theconvening authority is required to notify a Service chief (or an authorised officer) who is to order therelease of the person unless the Service chief is satisfied that it is proper for the person to remain incustody65.

3.77 The release from custody of a person charged with a Service offence may be effected at anytime by a commanding officer (or an officer authorised in writing by the commanding officer). Theofficer releasing the person may impose on that person such conditions and restrictions pertaining tothe release as the officer considers necessary (being conditions or restrictions of a kind authorised bya Service chief), and may vary or revoke any condition or restriction so imposed66.

3.78 A condition or restriction imposed on a person ceases to have effect if a summary authorityor a convening authority directs that the charge be not proceeded with, if the person is acquitted orconvicted of the charge or if the charge is dismissed67.

3.79 Where a person charged with an offence is released from custody, the person may not beagain taken into custody unless the person breaches a condition or restriction imposed on him or heror the person is arrested for another Service offence68.

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 isrequired, before the investigating officer asks the person any question or to do anything in relation tothe offence:

a. to tell the person the investigating officer’s name and rank;

b. to caution the person that the person is not obliged to answer any questions or to doanything asked of the person, and that anything said by the person may be used inevidence; and

c. to inform the person that the person may consult a legal practitioner, or communicatewith a relative or friend, if the person wishes to do so69.

3.81 An investigating officer is not obliged to caution the person or to inform the person of theperson’s right to consult a legal practitioner, etc:

a. if the person has already been cautioned, etc, at or since the beginning of theinterview, under s.101D(2) of the DFDA (which deals with the caution, etc, to be givento a person when an investigating officer has decided to charge a person with aService offence or to seek the issue of a summons against that person); or

64 DFDA s.95(4), (5)

65 DFDA s.95(8), (9)

66 DFDA s.97(1), (2)

67 DFDA s.97(5)

68 DFDA s.97(4)

69 DFDA s.101C(1), (2)


b. when asking a person to take part in an identification parade70.

3.82 An investigating officer should take reasonable steps to ensure that other investigatingofficers comply with these requirements.71

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 inthe investigation of the offence must, before starting to question the person, inform the person that heor she may72:

a. communicate, or attempt to communicate, with a friend or relative to inform thatperson of his or her whereabouts; and

b. communicate, or attempt to communicate, with a legal practitioner of the person’schoice and arrange, or attempt to arrange, for a legal practitioner of the person’schoice to be present during questioning.

3.84 The list of legal officers who are able to assist person’s in custody is held by police membersand legal officers73.

3.85 After the investigating officer has informed the person of this right, the investigating officermust defer the questioning for a reasonable time to allow the person to make, or attempt to make, thecommunication and if the person has arranged for a legal practitioner to be present, to allow the legalpractitioner 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 todo so; and

b. in the case of communication with a legal practitioner, the investigating officer mustallow the legal practitioner or the clerk of the legal practitioner to communicate with theperson in circumstances in which, as far as practicable, the communication will not beoverheard74.

3.87 Where a person in custody in respect of a Service offence arranges for a legal practitioner tobe 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 reasonablefacilities for that consultation; and

b. allow the legal practitioner to be present during the questioning and to give advice tothe person, but only while the legal practitioner does not unreasonably interfere withthe questioning75.

70 DFDA s.101C(2), (3)

71 DFDA s.101D(1)(b)

72 DFDA s.101E(1)

73 DFDA s.101F(2)

74 DFDA s.101E(2)

75 DFDA s.101E(3)


3.88 Where a person is in custody in respect of a Service offence, the investigating officer is tocomply with the provisions of DFDA s.101F(3) (which requires an investigating officer to provide theperson 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 solong as, the investigating officer has reasonable grounds for believing that:

a. compliance with the requirements is likely to result in an accomplice of the persontaking steps to avoid apprehension; or

b. compliance with the requirements is likely to result in the concealment, fabrication ordestruction of evidence or the intimidation of a witness; or

c. 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 bycompliance with the requirement76.

3.90 In exceptional circumstances77, the requirements relating to allowing the person to haveaccess to a legal practitioner, will also be avoidable if, and so long as, the investigating officer hasreasonable 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 ofthe investigating officer’s grounds for belief78; and

b. exceptional circumstances exist for not complying with the requirements and theinvestigating officer reverts to complying as soon as the circumstances allow.

3.91 If the need to continue with the investigation results in preventing or delaying the personcommunicating with a legal practitioner of his or her choice; or preventing or delaying a legalpractitioner of the person’s choice attending at any questioning, the investigating officer must offer theservices of another legal practitioner and if the person accepts the offer, make the necessaryarrangements79.

3.92 An appropriate officer for the purpose of authorising the investigating officer to proceedwithout complying with the requirements relating to access to legal practitioner is:

a. if the person in custody is a member of the Australian Navy—a member of theAustralian Navy holding the rank of commander or a higher rank;

b. if the person in custody is a member of the Australian Army—a member of theAustralian Army holding the rank of lieutenant colonel or a higher rank; or

c. if the person in custody is a member of the Australian Air Force—a member of theAustralian Air Force holding the rank of wing commander or a higher rank80.

76 DFDA s.101G(1)

77 DFDA s.101G(3)

78 DFDA s.101G(4)

79 DFDA s.101G(2)

80 DFDA s.101G(5)


Treatment of Person in Custody

3.93 A person in custody in respect of a Service offence is to be treated with humanity and withrespect for human dignity; cruel, inhuman or degrading treatment is prohibited.81

3.94 Where a person in custody asks for medical treatment for an illness or injury or theinvestigating officer reasonably believes that the person requires such treatment, the investigatingofficer is required to take reasonable action to have the medical treatment provided.82

3.95 If the person in custody is a member of the Defence Force and the terms of the governingDefence legislation and Defence Instructions are complied with, the cost of such treatment will beborne by the Commonwealth.83 If the person is a defence civilian, the person may be entitled to freemedical treatment:

a. if the person is a dependant of a member of the Defence Force84; or

b. by reason of the terms and conditions of his or her employment.85

3.96 A person in custody is to be provided with reasonable refreshments and reasonable accessto toilet facilities and, before being brought before a Service tribunal, is to be provided with facilities towash or shower and the opportunity to obtain, and change into, other clothes.86

Fingerprints, Voice Recordings, Handwriting, Photographs

3.97 Where a person is in custody in respect of a Service offence, prints of the person’s hands,fingers, feet or toes, recordings of the person’s voice, samples of the person’s handwriting orphotographs of the person may be taken in the following circumstances:

a. if an investigating officer reasonably believes that it is necessary for the purpose ofestablishing who the person is, or of identifying the person as the offender or ofproviding evidence relating to the offence;

b. if the investigating officer reasonably believes that the person has committed anotherService offence and the prints, etc are to be taken for the purpose of identifying theperson as the offender or of providing evidence relating to that offence;

c. if an authorised officer has given approval for the investigating officer to take the printsetc; or

d. if the person consents in writing.87

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

81 DFDA s.101H(1), (2)

82 DFDA s.101H(3)

83 DFR 58F.

84 Determination made under s.58B of the Defence Act 1903

85 See, for example, in the case of public servants of the Commonwealth and their dependants,determinations relating to overseas service.

86 DFDA s.101H(4), (5)

87 DFDA s.101L(1), (3), (4)


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 theauthorised 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 investigatingofficer.89

3.100 An investigating officer may use such reasonable force as is necessary in taking the prints,etc.90

3.101 The foregoing powers are not exercisable by an investigating officer who is a member of theDefence Force unless the investigating officer is an officer or warrant officer.91

3.102 An investigating officer is prohibited from taking prints, etc of a person in custody inconnection with a Service offence except in accordance with the DFDA.92

Identification by Photographs

3.103 Where a suspect is in custody in respect of a Service offence, an investigating officer isprohibited from showing photographs to a witness for the purpose of identifying the offender unlessthe suspect has refused to take part in an identification parade or the holding of an identificationparade would be unfair to the suspect or impracticable.93

3.104 When an investigating officer shows photographs to a witness for the purpose of identifyingan offender, the investigating officer is required to do so with fairness to the suspect, to keep a recordof the photographs shown and, upon application by the suspect, to provide a copy of the record andpermit the suspect to inspect the photographs shown to the witness.94

3.105 Where a suspect is in custody in respect of a Service offence, ‘identikit’ pictures are not to beshown to a witness and if the suspect comes into custody after such a picture has been shown to awitness, the investigating officer is to arrange an identification parade unless it is impracticable.95

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, toprovide the person with particulars of any pictures shown and any comments made by the witnesswith regard to the pictures.96

3.107 Where there is more than one suspect but not all are in custody, an investigating officer isnot debarred from showing photographs or ‘identikit’ pictures to a witness for the purpose of identifyingthe suspects not in custody.97

88 DFDA s.101L(3)(d), (4)

89 DFDA s.101L(3)(a), (b), (4), (5)

90 DFDA s.101L(6)

91 DFDA s.101L(1), (3)

92 DFDA s.101L(2)

93 DFDA s.101M(1)

94 DFDA s.101M(2)

95 DFDA s.101M(3), (5)

96 DFDA s.101M(6)

97 DFDA s.101M(7)


Medical Examination

3.108 Where a person is in lawful custody in respect of a Service offence, an investigating officermay arrange for a medical practitioner to examine the person for the purpose of securing evidencerelating to the offence if the investigating officer reasonably believes that the examination is likely toprovide such evidence and the person has consented in writing or, in relation to drug offences, anauthorised officer has approved in writing98.

3.109 Arrangements may similarly be made for a specimen to be taken from such a person for thepurpose of having the specimen analysed or otherwise examined99.

3.110 Application to an authorised officer seeking approval may be made by an investigating officerin person or, if impracticable, by telephone. Any resulting approval must be by instrument in writingwhich must be forwarded to the investigating officer100.

3.111 An authorised officer may give his or her approval to the medical examination or taking of aspecimen, if the authorised officer is satisfied that the investigating officer has reasonable grounds forbelieving that the medical examination or the specimen analysis is likely to provide evidence relatingto a service offence and the authorised officer believes that the medical examination or specimenanalysis is reasonably necessary for the purpose of obtaining evidence relating to the presence orabsence of a narcotic substance101 in the blood or urine of the person102.

3.112 In considering whether to give approval to the medical examination or taking of thespecimen, 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 submitto a medical examination or the taking of the specimen or refuses or fails to do an act reasonablynecessary to enable the specimen to be taken, is guilty of an offence103.

3.114 The investigating officer may use such reasonable force as is necessary to take the personto the medical practitioner.104

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 theperson is acquitted, the person having the report of the examination and any investigating officerhaving a copy of it is required to destroy it.106

98 DFDA ss.101Q(1), 101(4) and 101(4A)

99 DFDA s.101Q(2)

100 DFDA ss.101(3) and 101(5)

101 ‘Narcotic substance’ has the same meaning as in the Customs Act 1901

102 DFDA ss.101Q(4) and 101Q(4A)

103 See Chapter 4 para. 4.67

104 DFDA s.101Q(8)

105 DFDA s.101Q(11)

106 DFDA s.101Q(9)


Effect of Pre-conviction Custody

3.117 A member of the Defence Force while held in custody under the DFDA before conviction isreleased from any requirement to perform the duties of his or her office but being in custody does notaffect the member’s pay.107

SEARCHES

Introduction

3.118 The circumstances in which an investigating officer may search a person, the clothing theperson is wearing and property in the person’s immediate control and may seize anything that theinvestigating officer believes on reasonable grounds to be connected with an offence are briefly asfollows:

a. with the consent of the person;108

b. upon taking the person into custody;109

c. in emergencies;110 or

d. under a warrant.111

3.119 In the circumstances outlined above, an investigating officer may enter and search Serviceland or premises on Service land or any Service ship, aircraft or vehicle. The investigating officer mayalso enter and search any non-Service ship, aircraft or vehicle on Service land. A reference to Serviceland or premises on Service land does not include land or premises used as married quarters inAustralia.112 Generally, the powers of search of investigating officers are restricted to the search ofpersons 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, ifand 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 onService land if and only if the investigating officer first obtains the consent in writing of the person incharge 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 andsearch, the investigating officer is to inform the person that the person may refuse to give his or herconsent. 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 issuspended from duty. See paragraphs 3.34-3.38

108 DFDA s.101ZA

109 DFDA s.101P

110 DFDA s.101Z

111 DFDA s.101X

112 DFDA s.101W(2); 101V(2), (3)


acknowledge, on the prescribed form, that he or she has been so informed, that he or she voluntarilyconsented and the date and time of consent.113

Search on Being Taken into Custody

3.122 An investigating officer, on taking a person into lawful custody, may search the person, theclothing that the person is wearing and property in the person’s immediate control if the investigatingofficer 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 ofbeing used to inflict bodily injury or to escape from custody; or

b. to prevent the concealment, loss or destruction of evidence of the offence.114

3.123 An investigating officer may seize any article of the kind described, or anything theinvestigating officer believes on reasonable grounds to be connected with the commission of anoffence, found as a result of the search.115

3.124 An investigating officer exercising such a power of search is not authorised to require theperson to remove any clothing that the person is wearing.116

Search in Emergency

3.125 The powers of an investigating officer (who is not a constable) in the emergencycircumstances described below are restricted to the search of persons who are defence members anddefence civilians and property which is on Service land, premises on Service land (other than marriedquarters in Australia), Service ships, aircraft or vehicles; or ships, aircraft or vehicles on Serviceland.117

3.126 An investigating officer may search a person, the clothing that the person is wearing andproperty in the person’s immediate control if the investigating officer suspects the person to becarrying anything connected with an offence and may seize anything found in the course of the searchif:

a. the investigating officer believes on reasonable grounds that it is necessary to do so toprevent the concealment, loss or destruction of anything connected with the offence;and

b. the circumstances are of such seriousness and urgency as to require and justifyimmediate search without warrant.118

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

113 DFDA s.101ZA(1), (2); DFD reg 43

114 DFDA s.101P(1)

115 DFDA s.101P(3)

116 DFDA s.101P(2)

117 DFDA ss.101Z(1); 101V(2), (3)

118 DFDA s.101Z(1)(a), (c), (d)

119 DFDA s.101Z(1)(b), (c), (d)


3.128 Where an investigating officer believes on reasonable grounds that a person is, withoutlawful authority or reasonable excuse, carrying an offensive weapon or anything connected with aserious Service offence, the investigating officer may stop and search the person and seize any suchweapon or thing found on the person.120

3.129 A vehicle or vessel may be stopped, entered and searched and property seized in the samecircumstances.121

3.130 In a search in an emergency an investigating officer of the same sex as the suspect mayrequire the suspect to remove any clothing that he or she is wearing.122

Search under Warrant

3.131 In certain circumstances, search warrants may be issued authorising investigating officers tosearch persons, property, vehicles, etc for things connected with a Service offence. The power toissue a warrant is vested in an authorised officer.123

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 allegingthat there are reasonable grounds for suspecting that a thing of a particular kindconnected with a particular Service offence may be found on a defence member ordefence civilian, or in clothing being worn by, or property under the immediate controlof, a defence member or defence civilian, and the information must set out thosegrounds;

b. Such further information as the authorised officer may require concerning the groundson which the issue of the warrant is being sought must be provided to the authorisedofficer either orally or by affidavit; and

c. The authorised officer must be satisfied that there are reasonable grounds for issuingthe warrant.124

3.133 A search warrant is required to state:

a. the purpose of the warrant and the nature of the offence;

b. the kinds of things authorised to be seized;

c. the date of expiry of the warrant;

d. in the case of a warrant for the search of land, premises, ships, aircraft or vehicles—atwhat times entry is authorised.

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

120 DFDA s.101Z(2)

121 DFDA s.101Z(3)

122 DFDA s.101Z(4), (5)

123 DFDA s.101X(1), (2)

124 DFDA s.101X(1), (2), (3)

125 DFDA s.101X(4)


3.135 In cases of urgency, application for the issue of a search warrant may be made by telephoneafter an information is made out (although it may not have yet been sworn). The issuing officer mayissue the search warrant on the basis of the information (and any further information the issuing officermay require) being given to the issuing officer over the telephone. If the issuing officer decides toissue the warrant, the issuing officer must make out and sign a search warrant and read out theparticulars to the investigating officer, who is to complete a warrant in similar terms endorsing on it thename of the issuing officer and the date and time when the warrant was signed.126

3.136 Within one day of the expiry date of the warrant, the investigating officer is to send theinvestigating officer’s copy of the search warrant and the information (duly sworn or affirmed) to theissuing officer for attachment to the issuing officer’s copy of the warrant.127

3.137 An investigating officer, in executing a warrant to search a person, their clothing or propertyunder their control may require that person to remove clothing that he or she is wearing but a personmay only be searched by a person of the same sex.128

3.138 If an investigating officer, in executing a search warrant, finds something not specified in thewarrant but that the investigating officer reasonably believes to be connected with the Service offencein question or another Service offence and that it should be seized to prevent its concealment, loss ordestruction or its use for the commission of a further Service offence, the investigating officer mayseize it.129

126 DFDA s.101Y(1), (2), (3), (4)

127 DFDA s.101Y(5), (6)

128 DFDA s.101X(6), (7)

129 DFDA s.101X(5)

INTRODUCTION TO REVISED DISCIPLINE LAW MANUAL VOLUME 1CHAPTER 4

AS AT 18 JAN 02

Introduction

1. This document introduces the revised Discipline Law Manual (DLM) Volume 1

Chapter 4 (THE REVISED CHAPTER COMMENCES ON PAGE 9 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 Responsibility3. 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 accused’s acts or omissions);

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

2


b. a circumstance in which conduct occurs (ie, the circumstances

surrounding the accused’s acts or omissions); or

c. a result of conduct (ie, the results of the accused’s acts or omissions).

6. 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. the existence of the relevant physical elements of the offence; and

b. 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 havethe 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 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 thatit exists or will exist.


3


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

10. 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 KnowledgeA person has knowledge of a circumstance or a result if he or she is aware that itexists 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

1 See Criminal Code, s.5.6(1).


4


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 Recklessness(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists orwill exist; and

(b) having regard to the circumstances known to him or her, it isunjustifiable to take the risk.

(2) 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) having regard to the circumstances known to him or her, it is

unjustifiable to take the risk.(3) The question whether taking a risk is unjustifiable is one of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof ofintention, knowledge or recklessness will satisfy that fault element.”

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

currently, used in many different ways in different legal contexts. For offences

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

recklessness unless they refer to section 5.4 of the Criminal Code.

19. “Substantial” means “of substance”, but does not require that the risk be

exceptional or unusual.


5


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

person with the accused’s 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 NegligenceA person is negligent with respect to a physical element of an offence if his or herconduct involves:

(a) such a great falling short of the standard of care that a reasonable person wouldexercise 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.”

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

accused’s 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.


6


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 member’s 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 accused’s 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 accused’s 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


7


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.

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.

34. These defences 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.

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


8


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.


9


CHAPTER 4

OFFENCES, CHARGES AND THEIR PROSECUTIONPROSECUTION 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 eachelement of the offence;

• Whether or not there is a reasonable prospect of conviction by a Service tribunalproperly instructed by the law; and

• Whether or not discretionary factors nevertheless dictate that charges should notbe 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.


10


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 whichare 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.


11


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 cases—see 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

2 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.

3 DFDA s 142(1) and Schedule 6.

4 DFDA s 142(1)(b).


12


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.

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


13


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 placefor 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;

6 DFDA s.87(1).

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


14


• 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

8 DFDA s.95(2).

9 See paras. 2.7 to 2.9 and DFDA s 96.


15


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).

11 DFD Rule 8(1).


16


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 accused’s 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 6December 20xx dishonestly appropriated property, being the sum of $495belonging to Sergeant Alan Steven Jones A135791 with the intention ofpermanently depriving SGT Jones of that property.

12 DFD Rule 9(5).


17


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 preparedby witnesses;

• advise the accused that he or she has certain rights and may make certainapplications 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 ofthe ADF and that he or she should make the necessary arrangements; if theaccused is unable to make such arrangements and requires assistance, he or sheshould report his or her difficulties to the person or persons responsible for arrangingthe conduct of summary proceedings, eg the Coxswain, RSM or WOD; and

• order the accused to appear before a designated summary authority at a specifiedtime and place.

13 DFD Rule 15.

14 DFD Rule 8(4).

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


18


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 theconvening authority;

• the judge advocate of a court martial before the court martial tries a charge or at anystage of the trial of a charge; or,

16 DFDA s 141A(2).


19


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

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.


20


DEFENCE FORCE DISCIPLINE ACT 1982Part III—Offences

Division 1—Offences relating to operations against the enemySection 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) the person has a duty to defend or destroy a place, post, service ship,service aircraft or service armoured vehicle; and

(b) the person knows of that duty; and

(c) the person abandons or surrenders to the enemy the place or thingmentioned 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 forthe relevant conduct.

Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section13.4 of the Criminal Code.

SPECIMEN CHARGE:

s.15(1) Abandoning or surrendering a (place) (post) (service ship) (serviceaircraft) (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 that the accused was a defence member or a defence civilian (physical element);

b 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);


21


c 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 that the accused knew of the specified duty in (c) (fault element);

e 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);

f that the accused’s 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 orvehicle

(1) A person who is a defence member or a defence civilian is guilty of an offenceif:

(a) the person engages in conduct; and

(b) the conduct causes the capture or destruction by the enemy of a serviceship, service aircraft or service armoured vehicle; and

(c) by engaging in the conduct, the person intends to bring about that result.



22




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:




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

(physical element);

d that the accused’s act or omission in (c) was intentional (fault element);

e that the accused’s 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



23




Section 15B Aiding the enemy while captured


(a) the person is captured by the enemy; and

(b) the person serves with the enemy, aids the enemy in prosecutinghostilities or measures likely to influence morale or aids the enemy in anyother manner that is not authorised by international law.

Maximum punishment: Imprisonment for life.



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:




c that the accused was captured by the enemy (physical element);

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


24


e 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);


DEFENCE PROOFS:

a the accused may raise the statutory defence under s.15B(2) that he or she had a





COMMENTARY:

‘Serves with or ... aids’. The accused should be charged with serving with the enemywhere 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 enemyon radio or television. It seems that it is immaterial whether the act was likely toinfluence the morale of Australian, allied or enemy forces or the civilian population, butthat the act must be likely to influence morale to the enemy’s advantage.

‘Not authorised by international law’. The kinds of activities upon which prisoners of warmay lawfully be employed by the Detaining Power are set out in Part III, Section Ill ofthe 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 ifthe person provides the enemy with, or permits or enables the enemy to have accessto, arms, ammunition, vehicles, supplies of any description or any other thing likely toassist the enemy.




25



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:




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);


e that the accused’s act or omission in (c) assisted the enemy (physical element);

f 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






26


Section 15D Harbouring enemies


(a) the person harbours or protects another person; and

(b) that other person is an enemy person; and

(c) that other person is not a prisoner of war; and

(d) the first-mentioned person knows that the other person is an enemyperson.




SPECIMEN CHARGE:

s.15D(1) Harbouring enemiesBeing a defence member at …………. on …………. protected XYZ, an enemy person

who was not a prisoner of war.

PROSECUTION PROOFS:




c that the accused harboured or protected another person in a specified manner

(physical element);

d that the accused’s act in (c) was intentional (fault element);

e that the person harboured or protected in (c) was an enemy person (physical

element);


27


f that the accused knew the other person was an enemy person (fault element);

g that the person harboured or protected in (c) was not a prisoner of war (physical

element);

h 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





COMMENTARY:

‘Enemy person’. This has a restricted meaning, see the definition in subsection 3(1).

Section 15E Offences relating to signals and messages


(a) the person is engaged on service in connection with operations againstthe enemy; and

(b) the person:

(i) gives a signal, message or other communication that the personknows to be false; or

(ii) alters or interferes with a signal, message or other communication; or

(iii) alters or interferes with apparatus for giving or receiving a signal,message or other communication.




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Note: The defendant bears a legal burden in relation to the matter in subsection (2). See section13.4 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:




c that the accused was engaged on service in connection with operations against

the enemy (physical element);


e 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




29




SPECIMEN CHARGE:

s.15E(1)(b)(ii) Altering or interfering with communication



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:







e that the accused altered or interfered with a signal, message or other

communication (physical element);


DEFENCE PROOFS:





30




SPECIMEN CHARGE:

s.15E(1)(b)(iii) Altering or interfering with apparatus for giving or receivingcommunication



Signals Office of HMAS BALDRIC interfered with apparatus for receiving a signal,

naely, by disconnecting the power cable for the receiving unit.

PROSECUTION PROOFS:







e that the accused altered or interfered with an apparatus for giving or receiving a

signal, message or other communication (physical element);


DEFENCE PROOFS:





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COMMENTARY:

These offences are unlikely to be committed by a defence civilian because such aperson will normally not be engaged on service in connection with operations againstthe enemy.

Section 15F Failing to carry out orders


(a) the person:

(i) is ordered by his or her superior officer to prepare for, or to carry out,operations against the enemy; or

(ii) is otherwise under orders to prepare for, or to carry out, operationsagainst the enemy; and

(b) the person does not use his or her utmost exertions to carry those ordersinto effect.




SPECIMEN CHARGE:

s.15F(1) Failing to carry out ordersBeing 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.


32


PROSECUTION PROOFS:




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);


DEFENCE PROOFS:

a the accused may raise the statutory defence under s.15F(2) that he or she had a





COMMENTARY:

It is highly unlikely that these offences can be committed by a defence civilian becausesuch a person does not have a superior officer (see definition of that expression insubsection 3(1)) and cannot be under orders to carry out operations against the enemy.


33


Section 15G Imperilling the success of operations


(a) the person engages in any conduct; and

(b) the conduct imperils the success of operations against the enemy.




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:





(physical element);


e that the accused’s act or omission in (c) imperilled the success of operations

against the enemy (physical element);


element).


34


DEFENCE PROOFS:

a the accused may raise the statutory defence under s.15G(2) that he or she had a





Section 16 Communicating with the enemy

(1) A person who is a defence member or a defence civilian is guilty of an offence ifthe person communicates with, or gives intelligence to, the enemy.




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:




c that the accused communicated with or gave intelligence to the enemy in a

specified manner (physical element);


35


d that the accused’s act or omission in (c) was intentional (physical element).

DEFENCE PROOFS:






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’ (sees.3(1)), the subject matter must be such as would or might be directly or indirectly usefulto the enemy in the conduct of operations of war against Australia or an allied force or inthe 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 accusedto the enemy can properly be regarded as being intelligence, the accused should becharged 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 informationconstituted intelligence but there is insufficient proof that the accused gave theintelligence 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


(a) the person receives information from the enemy; and

(b) the person does not make the information known to proper authority; and

(c) the information is likely to be directly or indirectly useful in operationsagainst the enemy; and


36


(d) the person knows or could reasonably be expected to know that theinformation is likely to be directly or indirectly useful in operations againstthe enemy.




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:




c that the accused received specified information from the enemy (physical

element);


e that the accused did not make the information received known to the proper

authority (physical element);

f that the accused’s 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);


37


h that the person knew that the information was likely to be directly or indirectly

useful in operations against the enemy (fault element).

DEFENCE PROOFS:






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, anysuperior officer, or where the accused is a defence civilian, any officer) to whom, havingregard to the status of the accused and the circumstances in which the accused wasplaced, the accused could reasonably have been expected to have reported theinformation.

Section 16B Offence committed with intent to assist the enemy


(a) the person engages in conduct that constitutes an offence against any ofsections 15 to 16A (other than section 15B or 15C); and

(b) the person engages in that conduct with intent to assist the enemy.


(2) In paragraph (1)(a), strict liability applies to the physical element ofcircumstance, that the conduct constitutes an offence against the section concerned.

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


38


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:





(physical element);

d that the accused’s act or omission in (c) was intended to assist the enemy (fault

element);

e that the accused’s 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).



Section 17 Leaving a post, abandoning equipment or otherwise failing to performduty

(1) A defence member is guilty of an offence if the member is engaged on servicein connection with operations against the enemy and:


39


(a) the member:

(i) has a duty to be at a post, position or other place; and

(ii) leaves the post, position or place; or

(b) the member abandons his or her weapons or other equipment; or

(c) the member does not properly perform his or her duty in any other mannerin attacking or defending against the enemy.


(2) It is a defence if the member proves that he or she had a reasonable excuse forthe relevant conduct.


(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


connection with operations against the enemy left her post at the main gate of RAAF

Base Wirraway Ammunition Depot.

PROSECUTION PROOFS:

a that the accused was a defence member (physical element);


defence member (fault element);




40


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 specified duty to be at post, position or other place

(physical element);

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

g that the accused left the post, position or place (physical element);

h that the accused’s act or omission in (g) was intentional (fault element).

DEFENCE PROOFS:


reasonable excuse for the conduct in (g); and




COMMENTARY:

A post is not bounded by an imaginary line but includes, according to orders orcircumstances, such surrounding area as may be necessary for the proper performanceof the duties for which the person was posted. The offence of leaving post is committedwhen the person goes such a distance from his or her post that the person would beunable fully to perform the duty for which the person was posted. Similar reasoningapplies in relation to a position or place.

The fact that the accused had not been formally ordered to take up his or her post isimmaterial provided evidence is given to prove that the accused knew or was recklessas 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 itsgeneral Service knowledge.


41


A person who has not taken up the person’s post cannot leave it; failure to take up theperson’s post is not an offence against this section but may be charged under section32.

SPECIMEN CHARGE:

s.17(1)(b) Abandoning (weapons) (other equipment) in connection with operations


connection with operations against the enemy abandoned his weapons namely a F88

Steyr rifle, a bayonet and ammunition.

PROSECUTION PROOFS:








element);

e that the accused abandoned his or her weapons or other equipment (physical

element);


DEFENCE PROOFS:





42




COMMENTARY:

This offence is principally directed at a person who, when retreating, leaves theperson’s weapons or other equipment behind or throws them or it away. The expression‘equipment ‘ is defined to include vehicles, ammunition, instruments and tools. In thecircumstances, it seems that the reference to ‘the member’s’ weapons etc means theweapons etc which the accused had for the time being in his or her possession or underhis or her immediate control.

SPECIMEN CHARGE:

s.17(1)(c) Failing to properly perform duty in attacking or defending against theenemy


connection with operations against the enemy failed to transmit a message to Air

Command that RAAF Base Northland was under missile attack.

PROSECUTION PROOFS:








element);

e that the accused had a duty to perform attacking or defending against the enemy

(physical element);


43



g 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);


DEFENCE PROOFS:


reasonable excuse for the conduct in (g); and




Section 18 Endangering morale


(a) the person spreads a report; and

(b) the report relates to operations against the enemy; and

(c) by spreading the report the person intends to create despondency orunnecessary alarm.




(b) the person spreads a report; and

(c) the report relates to operations against the enemy; and

(d) by spreading the report the person intends to create despondency orunnecessary alarm.


44



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:



defence member or defence civilian (fault element);

c that the accused spreads a report as specified (physical element);

d that the accused’s act or omission in (c) was intended to create despondency or

unnecessary alarm (fault element);

e that the report relates to operations against the enemy (physical element);

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



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


45


his unit “We haven’t got a hope in hell. We don’t have enough ammo. We’ll all be wiped

out.” or words to that effect.

PROSECUTION PROOFS:







e that the accused spread a report as specified (physical element);

f that the accused’s act or omission in (e) was intended to create despondency or

unnecessary alarm (fault element);

g that the report in (e) related to operations against the enemy (physical element);

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



COMMENTARY:

The particulars of the charge must detail the reports alleged to have been spread. It isnot necessary that the reports be false; despondency or unnecessary alarm may alsobe caused by the spreading of true reports of unfavourable information. It is notnecessary 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 shownto have had some effect.

Section 19 Conduct after capture by the enemy

(1) A defence member is guilty of an offence if:


46


(a) the member is captured by the enemy; and

(b) any reasonable steps are available to the member to rejoin his or herforce; and

(c) the member does not take those steps.



(a) the member and another person are captured by the enemy; and

(b) any reasonable steps are available to the other person to rejoin his or herforce; and

(c) the member prevents or discourages the other person from taking thosesteps.




(b) the member engages in conduct with the intention of securing favourabletreatment for himself or herself; and

(c) the conduct is detrimental to other persons also captured by the enemy.




(b) the member is in a position of authority over other persons also capturedby the enemy; and

(c) the member ill-treats those other persons.



47


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:




c that the accused was captured by the enemy (physical element);


e that reasonable steps were available to the accused to rejoin his or her force

(physical element);


g that the accused did not take the steps in (e) (physical element);

h that the accused intended not to take the steps referred to in (e) (fault element).



COMMENTARY:

Escape from the enemy is regarded as authorised by custom. A member of the DefenceForce who is captured by the enemy has a duty to escape and return to his or her ownforces. This duty is not absolute and it is an offence only if the member does not takereasonable steps that are available to the member to escape.


48


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:




c that the accused and another specified person were captured by the enemy

(physical element);


e that reasonable steps were available to the other specified person to rejoin his or

her force (physical element);


g 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).



COMMENTARY:

The law relating to the requirement for a captured person to rejoin his or her own forceis as stated above.


49


The ‘other person’ need not be a member of the Defence Force; he or she may be amember 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:




c that the accused is captured by the enemy (physical element);


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

(physical element);

f that the accused’s act or omission in (e) was intended to secure favourable

treatment for himself or herself (fault element);

g that the accused’s act or omission in (e) was detrimental to other persons also

captured by the enemy (physical element);





50


COMMENTARY:

This offence relates to behaviour by a prisoner of war which seeks amelioration of themember’s 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 offood, equipment or arms. The behaviour must be detrimental to the accused’s fellowprisoners 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 bemembers 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:




c that the accused is captured by the enemy (physical element);


e that the accused is in a position of authority over other persons also captured by



g that the accused ill-treats the other persons mentioned in (e) (physical element);



51




COMMENTARY:

The source of the authority is not material. It may arise from the military rank or status ofthe accused, through designation by the captor authorities or from voluntary election orselection by other prisoners of war for their self-government.

The ill-treatment must be real although not necessarily physical. Abuse of an inferior byinflammatory and derogatory words may, through mental anguish, amount to ill-treatment. To subject to improper punishment or to deprive of benefits would alsoamount to ill-treatment.

The ‘other persons’ need not be members of the Defence Force; they may be otherarmed forces or be civilians who are prisoners of war.

Division 2—Mutiny, desertion and unauthorised absenceSection 20 Mutiny

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



(a) the member takes part in a mutiny; and

(b) the mutiny's object, or one of its objects, is the refusal or avoidance of dutyor service in connection with operations against the enemy or theimpeding of the performance of such a duty or service.


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.


52


PROSECUTION PROOFS:




c that the accused combined with one or more other members of the Defence

Force (physical element);


e 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);




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.


53


PROSECUTION PROOFS:




c that a mutiny was taking place (physical element);

d that the accused knew of the matter in (c) (fault element);

e 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) the impeding of the performance of such duty or service (physical element);

f that the accused either knew or could reasonably have been expected to know of

(e) (fault element);

g that the accused did not take reasonable steps either:

(i) to suppress or prevent the mutiny (physical element); or

(ii) to report to proper authority without delay that the mutiny is taking place or

is intended (physical element)




COMMENTARY:

‘Mutiny’. Subsection 3(1) defines 2 types of mutiny. One consists of a combinationbetween 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


54


Defence Force or in an allied force in such a manner as to prejudice substantially theoperational efficiency of the Defence Force or of, or a part of, an allied force. In eithercase, the combination is between at least 2 persons who are members of the DefenceForce.

The definition of mutiny is intended to exclude those forms of collective insubordinationwhich, while amounting to a resistance to lawful authority, are not formed to overthrowthe authority or to substantially prejudice operational efficiency but are directed at suchmatters as poor food or living conditions, or at delays in repatriation or demobilisationafter the conclusion of hostilities.

It is not necessary that the mutiny be successful (ie that lawful authority be overthrownor that operational efficiency of the force be substantially prejudiced).

There must be the intention to act in the manner described and some action infurtherance of that intention. The action may be any step towards the mutiny (eg themaking out or preparation of those who may be persuaded to join in, or the approachingof 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 fromsurrounding circumstances.

The combination may be preconceived or it may be formed on the spot.

Section 21 Failing to suppress mutiny


(a) a mutiny is taking place or is intended; and

(b) the member knows that fact; and

(c) the member does not take reasonable steps:

(i) to suppress or prevent the mutiny; or

(ii) to report to proper authority without delay that the mutiny is takingplace or is intended.



(a) a mutiny is taking place or is intended; and

(b) the member knows that fact; and


55


(c) the member knows, or could reasonably be expected to know, that themutiny's object, or one of its objects, is:

(i) the refusal or avoidance of duty or service in connection withoperations against the enemy; or

(ii) the impeding of the performance of such duty or service; and

(d) the member does not take reasonable steps:

(i) to suppress or prevent the mutiny; or

(ii) to report to proper authority without delay that the mutiny is takingplace or is intended.


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:




c that a mutiny was taking place or was intended either:




56






e that the accused did not take reasonable steps to either:

(i) suppress or prevent the mutiny (physical element); or

(ii) to report to the proper authority without delay that the mutiny was taking

place or was intended (physical element);

f that the accused’s act in (e) was intentional (fault element).



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 thecircumstances. Mutiny is the most serious of all disciplinary offences and any memberswho 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 thecircumstances, 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


57


reporting without delay to a proper authority namely the Commanding Officer No 100

Squadron that the mutiny was taking place.

PROSECUTION PROOFS:




c that a mutiny was taking place or was intended either:







e 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) the impeding of the performance of such duty or service (physical element);

f that the accused either knew or could reasonably have been expected to know of

(d) (fault element);

g that the accused failed to take reasonable steps to either:

(i) suppress or prevent the mutiny (physical element); or

(ii) report to the proper authority without delay that the mutiny was taking place

or was intended (physical element);


58


h that the accused’s act in (g) was intentional (fault element).



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 thecircumstances. Mutiny is the most serious of all disciplinary offences and any memberswho 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 thecircumstances, 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) is on active service or has been warned for active service; and

(b) without leave, and with the intention of avoiding that service, departs from,or does not attend at, his or her place of duty.



(a) the member is absent without leave; and

(b) the member engages in conduct; and

(c) the conduct manifests an intention to avoid active service.



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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:




c that the accused was on active service or was warned for active service (physical

element);


e that the accused did not have leave (physical element);

f that the accused knew or was reckless as to (e) (fault element);

g that the accused departed from, or did not attend at, his or her place of duty as

specified (physical element);

h that the accused’s act or omission in (g) was intended to avoid active service

(fault element).



COMMENTARY:

The necessary intention for an offence against this section can be provided by someadmission by the accused or by inference from the accused’s conduct (which includes


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any statements made by the accused). For example, the state of the accused’s kit,change of name, circumstances in which the accused has been living, his or herengagement in civil employment or joining other armed forces, possession of a passportwith a recent visa and length of absence are matters which may well support aninference that the accused intended to desert.

No particular length of time can be specified as being sufficient to justify an inferencethat 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 todesert. 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:




c that the accused was required to be at his or her unit (or ship etc) (physical

element);


e that the accused was absent from his or her unit (or ship etc) as specified

(physical element);


g that the absence was without authority of anyone competent to give the accused

leave (physical element);


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

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

(physical element);

j that the accused’s act or omission in (g) was intentional (fault element);

k that the accused’s act or omission in (g) manifested an intention to avoid active

service (physical element);

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



COMMENTARY:

The necessary intention for an offence against this section can be provided by someadmission by the accused or by inference from the accused’s conduct (which includesany statements made by the accused). For example, the state of the accused’s kit,change of name, circumstances in which the accused has been living, his or herengagement in civil employment or joining other armed forces, possession of a passportwith a recent visa and length of absence are matters which may well support aninference that the accused intended to desert.

No particular length of time can be specified as being sufficient to justify an inferencethat 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 todesert. Each case must be judged in the light of surrounding circumstances.

Section 23 Absence from duty


(a) is required to attend for duty; and

(b) does not attend for the duty.

Maximum punishment: Imprisonment for 12 months.



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(a) is required to perform a duty; and

(b) ceases to perform the duty before he or she is permitted to do so.


(3) An offence under this section is an offence of strict liability.


(4) It is a defence to a charge under this section if the person proves that he or shehad a reasonable excuse for engaging in the relevant conduct.


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:


b that the accused was required to attend for specified duty at a specified time (or

during specified hours) (physical element);

c that the accused did not attend for that duty (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).


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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



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 issomething the accused may raise by way of defence under s.23(4). However, if the prosecution is readilyable to establish that the accused did not have a reasonable excuse, then it is prudent to lead thatevidence during the prosecution case, for it may not be permissible for the prosecution to call furtherevidence 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:


b that the accused was required to perform a specified duty (physical element);

c that the accused ceased to perform that duty before he or she was permitted to

do so (physical element); and


accused in relation to any of the physical elements in (a), (b) and (c) as this is an


DEFENCE PROOFS:

a the accused may raise the statutory defence under s.23(4)18 that he or she had a




See discussion above.

COMMENTARY:

The section is intended to apply to the circumstances where a member is absent fromduty without necessarily being absent from his or her unit. This section is usually usedwhere 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 orunit etc at the time he or she was required to attend for the later, particular duty, thecharge of section 24 absence without leave is used. Likewise, where a member fails toreport 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 arenot always mutually exclusive and for that reason the sections have the same maximumpunishment (12 months imprisonment). Section 24 is an alternative offence to a chargeunder 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 themember is within the barrack, camp, etc or outside, the member should be charged withabsence without leave under s.24(1).

The above does not apply to Navy where the expiry time of short leave is promulgatedin daily orders. Whether a member should be charged with absence from duty orabsence without leave will therefore depend on whether or not the member wasonboard the ship or establishment at the relevant time.

What the accused’s place of duty was, is a question of fact to be decided by the Servicetribunal on the evidence. The Service tribunal may call upon general service knowledgeto determine the issue.

In certain circumstances, absence from duty is regarded as particularly serious andspecial offences are provided (s.17(1)(a) (leaving a post) and s.32(1)(d) (leaving post orabsenting oneself)). At other times the infringement may be purely disciplinary andtherefore may be dealt with by a Discipline Officer.

As noted above, the offence of absence from duty in this section and absence withoutleave in s.24 are not always mutually exclusive. It should be noted, however, that thestatutory defences in each section (s.23(4) and s.24(3)) are distinguishable in theiroperation. A person charged under s.23 is able to argue that he or she had areasonable excuse for not attending the duty as required. A person charged under s.24is able to argue that he or she was absent due to circumstances not reasonably withinthe member’s control. A point of distinction between the two defences is that whilst anevent that is not reasonably within a person’s control could constitute a reasonableexcuse, the reverse may not necessarily be true. An event that constitutes areasonable excuse for absence may not necessarily be an event that is not reasonablywithin the person’s control. Hence, the defence in s.24 is qualitatively different from thedefence in s.23.

Section 24 Absence without leave

(1) A defence member who is absent without leave is guilty of an offence.



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


(3) It is a defence if the member proves that he or she was absent due tocircumstances not reasonably within the member's control.


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:


b 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 member’s control; and




COMMENTARY:

The expression “absent without leave” is not statutorily defined but is interpreted asapplying when a member is absent, without authority or acceptable excuse, from his orher 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, theaccused should not be charged with absence without leave but with absence from dutyunder s.23. (However see commentary for s.23.)

The offence of being absent without leave is committed where a member’s absenceoccurs owing to circumstances within the member’s control. Circumstances within themember’s control include failure to return to the member’s place of duty in time owing toany of the following actions by the member:

a. getting drunk;

b. missing his or her transport through allowing insufficient time to reach thepoint of departure;

c. falling asleep on a train or bus and being carried past the station or stop;and

d. running out of fuel when driving a motor vehicle.

19 Strictly speaking the prosecution does not have to establish that the accused’s absence was not due to

circumstances not reasonably within the accused’s control. The accused may raise by way of defence thathis or her absence was due to circumstances not reasonably within his or her control. However, if theprosecution is able to establish that the defence is not available, then it is prudent to lead that evidenceduring the prosecution case, for it may not be permissible for the prosecution to call further evidence torebut the defence if raised during the defence case.


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Circumstances not within the member’s control may include accident or illness. Where,however, a member deliberately inflicts an injury on himself or herself with the intentionof rendering himself or herself unable to return to duty, the absence would arise fromcircumstances within the member’s control (the member may also have committed anoffence against s.38 (Malingering)).

If a member who is prevented by illness or injury from returning in time fails to report thefact, the member may have committed an offence against s.29 (Failure to comply withgeneral order).

Where a member leaves the member’s unit in the honest, though mistaken, belief thatleave has been granted and has reasonable grounds for that belief, the member is notguilty of absence without leave (see s.9.2 of the Criminal Code). The mere fact that themember has applied for leave and expects that it will be granted will be no defence ifthe member departs before being notified that leave has been granted.

See commentary on s.23 in relation to the distinction between the statutory defences fors.23 and s.24.

Under Regulation 65 of Defence Force Regulations (reprinted in Part 11 of Volume 2), amember convicted of absence without leave for 24 hours or more forfeits all salary andallowances that accrued to the member during the period that begins at the end of theday on which the member first became absent and ends at the end of the day on whichthe member ceased to be absent.

Division 3—Insubordination and violence

Section 25 Assaulting a superior officer


(a) the member assaults a person; and

(b) that person is a superior officer.


(2) Strict liability applies to paragraph (1)(b).


(3) It is a defence if the member proves that he or she neither knew, nor couldreasonably be expected to have known, that the person against whom the offence isalleged to have been committed was a superior officer.



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SPECIMEN CHARGES:

s.25(1) Assaulting a superior officer

Being a defence member at ............. on ............., assaulted Sergeant X of 1st Blanket-

Folding Battalion, his superior officer, by punching him in the face.

PROSECUTION PROOFS:

In relation to “defence member”:




In relation to “assault”:

c that the accused did a specified act to a person (physical element);


e 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 that the other person does not consent to the result in (e) (physical element);

g that the result in (e) is unlawful (physical element);

h 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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j 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




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 lawmeaning. An assault encompasses what is referred to in common law as a commonassault as well as a battery. The term “assault” is interpreted as a deliberateengendering in another person of the fear that unlawful force is about to be inflictedupon him or her, or the actual intended or reckless application of unlawful force toanother, without his or her consent, or being reckless as to his or her consent. Inrelation to application of force, mere words can never amount to an assault. There mustbe 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 anassault. However, the consent cannot extend to causing serious bodily injury orconsent obtained by fraud. Sporting contests, “pub brawls” and “invitations outside tofight” require careful scrutiny. It is not an assault if there is physical contact betweentwo 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 isalleged to have been committed was a superior officer. The lack of such knowledge is something that theaccused may raise by way of defence. However, if the prosecution is readily able to establish that theaccused was aware that the victim was a superior officer, for example because the officer was in uniformor was known by the accused, then it is prudent to lead that evidence during the prosecution case, for itmay not be permissible for the prosecution to call further evidence to rebut that defence if raised during thedefence 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 aninferior).

The expression ‘superior officer’ means any other member of the Defence Force whoholds a higher rank than the accused. The ranks of members of the Defence Force andtheir relationship are set out in Annex A.

The expression ‘superior office’ also means any other member of the Defence Forcewho by virtue of his or her office or appointment is entitled to exercise command overthe accused. Examples of appointments which confer command irrespective of rankare:

a. commanding officer of a unit: command may be exercised over anymember of the unit. (In the case of a Service ship, command may beexercised over any other member of the Defence Force in any matterrelating to the safety or navigation of, or maintenance of order in, the shipor the safety of persons on board);

b. second in command of a unit;

c. officer of the watch of a Service ship; and

d. aircrew on flying duties.

Members of the armed forces of other countries may by law be superior officers whenformally attached to the Defence Force—see s.116B of the Defence Act 1903.

The name and rank of the superior officer, and if relevant the capacity in which thesuperior officer was exercising command, must be given in any charge under thissection.

Section 26 Insubordinate conduct


(a) the member engages in conduct that is threatening, insubordinate orinsulting to a person; and

(b) the person is a superior officer.



(a) the member uses language that is threatening, insubordinate or insultingabout a person; and


72


(b) the language is used in that person's presence; and

(c) the person is a superior officer.


(3) An offence against this section is an offence of strict liability.


(4) It is a defence to a charge under this section if the person proves that he or sheneither knew, nor could reasonably be expected to have known, that the person againstwhom the offence is alleged to have been committed was a superior officer.


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 ‘I’m 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:



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

(physical element);

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

element);

d that the conduct in (b) was directed to a person (physical element);

e that the other person in (d) was a superior officer of the accused at the time

(physical element);


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:



the offence was committed was a superior officer;21 and




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 theofficer 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 conductdirected to the superior and intended to come to the superior’s notice. Ordinarily theconduct 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 superioror a letter sent to the superior and couched in insubordinate terms or otherwiseintended to be insubordinate.

The expression ‘threatening conduct’ means conduct from which a person mayreasonably infer that violence may be used. Where the threatening conduct amounts toan assault the accused should be charged with an offence under s.25.

The expression ‘insubordinate conduct’ means conduct that shows a marked disdain orindifference or insolence, impertinence, undue familiarity or other rudeness, in thepresence of the superior. If the insubordinate conduct is solely the language used andnot its manner of delivery or the circumstances in which the language is used,consideration should be given to charging the accused with using insubordinatelanguage under s.26(2).

Whether the conduct was threatening, insubordinate or insulting will ultimately bejudged 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: ‘I’m

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

don’t 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: ‘ABC’s a

bloody idiot and always has been’ or words to that effect.

PROSECUTION PROOFS:



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b that the accused used language about another person (physical element);

c that the language used was threatening, insubordinate or insulting (physical

element);

d that the use of the language took place in the presence of the person in (b)

(physical element);

e the other person in (b) and (d) was a superior officer of the accused person at the

time (physical element); and


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:



the offence was committed was a superior officer22; and




COMMENTARY:

In s.26(2) the language complained of need not be heard by the superior about whomthe language was used but the use must occur in the person’s 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 theofficer was exercising command must be given in any charge of this offence.

The expression ‘threatening language’ means language from which the person theobject of the threat may reasonably infer that violence may be used. This may beinferred either from the character of the language used or from the surroundingcircumstances.

All threatening language is insubordinate but the converse is not the case. In any casein which it is doubtful if the language used constitutes a threat, the accused should becharged 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 incircumstances which show an intent to be insubordinate, the accused should becharged with insubordinate conduct.

If the language used is not in itself insulting but is used in a manner which shows anintent to be insulting, the accused should be charged with insulting conduct.

Whether the language was threatening, insubordinate, or insulting will ultimately bejudged by the Service tribunal hearing the charge.

Section 27 Disobeying a lawful command


(a) a person gives the member a lawful command; and

(b) the person giving the command is a superior officer; and

(c) the member disobeys the command.


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


(3) It is a defence if the member proves that he or she neither knew, nor couldreasonably be expected to have known, that the person who gave the command was asuperior officer.



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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:




c that a person gave the accused a specified lawful command (physical element);

d 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 that the accused disobeyed the command (physical element); and

g 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:


knew, nor could reasonably be expected to have known, that the person who

gave the command was a superior officer; and



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COMMENTARY:

‘Lawful command’. To be lawful, a command must relate to military duty (ie be intendedto effect some military object or purpose) and be one which the superior officer hasauthority in the circumstances to give the accused. A command which has for its soleobject the attainment of some private end or which is otherwise not connected withmilitary duty would not be lawful.

A person cannot be convicted of this offence if the command was unlawful. A persongiven an order requiring the performance of military duty may infer it to be lawful anddisobeys it at the person’s peril. Where, however, a command orders the doing ofsomething that is apparently unlawful in the sense that its execution involves thecommission of a Service offence or a civil offence, the person to whom it is given isjustified 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 theorder was unlawful in this sense nevertheless executes the order and is subsequentlycharged with the commission of that offence, the person could not successfully pleadthe 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 acommand within the meaning of s.27 (see definition of ‘general order’ and ‘order’ ins.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 examinedin the light of the circumstances in which they were used and this examination mayshow clearly enough that the words used, although not otherwise supportable as acommand, were intended by the speaker to be a command and were so understood bythe person to whom they were spoken.

‘How command conveyed’. The command must be conveyed to the accusedpersonally, whether individually or in a group of members to whom the command isgiven simultaneously. The command may be given orally or in writing or be conveyedby message.

In the case of an oral message, it must be conveyed to the accused by a person whomthe accused might reasonably suppose to have been duly authorised to convey it and itmust be given to the accused as the command of the superior officer. In the case of anoral message, evidence of what the superior officer said when the officer originated thecommand 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 (inaddition 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 outimmediately but at (or by the expiration of) some later time and the person says that heor she will not obey the command, the person should not be charged with an offenceunder s.27 unless the time arrives to carry out the command (or by which the commandwas to have been carried out) and the person does not comply with it. A merestatement by the person that he or she will not carry out a command that is to be carriedout at (or by) some future time is not disobedience within the meaning of s.27 becausethe 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 personhaving stated that he or she will not obey a command, the person is arrested before thetime by which the command was to have been carried out, and is thus prevented fromcarrying it out.

Where a person says that he or she will not obey a command, the person may be liableto be charged with an offence against s.26 (Insubordinate conduct) regardless ofwhether the person subsequently obeys the command.

‘Superior Officer’. As to the meaning of the expression ‘superior officer’, see thecommentary on s.25.

The name and rank of the superior officer and, if relevant, the capacity in which theofficer 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 hencecannot give a lawful command within the meaning of s.27. However, it may be the dutyof a member of the Defence Force to comply with a proper request made by a civilianand if the member does not do so, the member may be liable under s.60 (Prejudicialconduct).

The command which is alleged to have been disobeyed should be set out in theparticulars of the charge.

Section 28 Failing to comply with a direction in relation to a ship, aircraft orvehicle


(a) the person is in or near a service ship, service aircraft or service vehicle;and


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(b) the person is given a lawful direction by, or with the authority of, theperson in command of the ship, aircraft or vehicle; and

(c) the direction:

(i) relates to the sailing or handling of the ship, the flying or handling ofthe aircraft or the handling of the vehicle; or

(ii) affects the safety of the ship, aircraft or vehicle or of the persons onboard the ship, aircraft or vehicle; and

(d) the first-mentioned person does not comply with the direction.


(2) Strict liability applies to paragraph (1)(d).




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:


a that the accused was either a defence member or a defence civilian (physical

element);


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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 that the direction was lawful (physical element);

f 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 that the accused did not comply with the direction (physical element);

i 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:


reasonable excuse for the relevant conduct;23 and




COMMENTARY:

The offences in s.28 are intended to deal with a narrow range of acts of disobedience inrelation to service ships, service aircraft and service vehicles that are not caught by theoffence in s.27 (Disobedience of command). The section is principally directed at acts ofdisobedience by defence members who are passengers or bystanders or by defencecivilians.

Under the provisions of this section a lawful direction may be given by a member to apassenger who is senior in rank to the member.

Members of the crew are under the command of the commanding officer of the ship orthe captain of the aircraft in relation to all their duties on board (not only in relation tothose matters mentioned in s.28). It will generally be found expedient to deal with allacts of disobedience of command by such persons under s.27 (Disobedience ofcommand) rather than under this section.

Even in the case of members of the Defence Force who are not members of the crew, itmay well be that the direction referred to is given by a member of the crew of the ship oraircraft who is the superior officer24 of the recipient in which case the direction mayamount to a command for the purpose of s.27 and, if so, it may be expedient to bring acharge under that section rather than under this section.

‘Service ship’, ‘Service aircraft’, ‘Service vehicle'. These expressions are given a widedefinition. 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 issomething the accused may raise by way of defence under s.28(3). However, if the prosecution is readilyable to establish that the accused did not have a reasonable excuse, then it is prudent to lead thatevidence during the prosecution case, for it may not be permissible for the prosecution to call furtherevidence to rebut that defence if raised during the prosecution case.

24 DFDA s.3(1) —definition of ‘superior officer’.


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under the control of the Defence Force, or an allied force or an institution of the DefenceForce or of an allied force.25 The expression ‘allied force’ is defined as meaning a forceof another country that is acting in co-operation with the Defence Force.26 Theexpression ‘institution’ is defined as meaning a mess, club, band, canteen or otherinstitution 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 Servicecommand relationship between the person giving the direction and the recipient. Theoffence is accordingly applicable in the case of an allied ship or aircraft manned byallied servicemen notwithstanding that there may not be in force a relevant order underthe Defence Act 1903 section 116D (which deals with corresponding ranks between apart of the Defence Force and a part of the forces of another country when servingtogether).

The offence is also applicable in the case of a civilian-manned ship, aircraft or vehicleused by, or in the possession or under the control of the Defence Force or an alliedforce.

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


(a) a lawful general order applies to the person; and

(b) the person does not comply with the order.




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

25 DFDA s.3(1) —definition of ‘service property’.

26 DFDA s.3(1) —definition of ‘allied force’.

27 DFDA s.3(1) —definition of ‘institution’.


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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 that there was a specified lawful general order (physical element);

c that the general order was applicable to the accused (physical element);

d that the accused did not comply with the order (physical element); and


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:


knew, nor could reasonably be expected to have known, of the order28; and




COMMENTARY:

‘General order’. This is defined first as meaning a Defence Instruction (General), aDefence Instruction (Navy), a Defence Instruction (Army) or a Defence Instruction (AirForce).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 9February 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 respectof equipment etc supplied by the firm or issued by authorities of other countries, beingbooks or manuals supplied for use by the Defence Force, are not general orders unlessit can be established:

a. that the book etc had been issued before 9 February 1976 by the NavalBoard, the Military Board or the Air Board;

b. that the book etc had been issued as a Defence Instruction; or

c. that the book etc had otherwise been issued by, or under the authority of aService chief (see paragraph (b) of the definition of ‘general order’).

‘General order’ is secondly defined as meaning any other order, instruction or directiveissued 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 accusedmay raise by way of defence. However, if the prosecution is readily able to establish that the accused did notknow of the general order, then it is prudent to lead that evidence during the prosecution case, for it may not bepermissible for the prosecution to call further evidence to rebut that defence if raised during the defence case.

29 DFDA s.3(1).

30 Defence Force Reorganisation Act 1975, ss.23, 65, 95.


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The use of the expression ‘issued’ (contrasted with ‘given’, as used in sections 27 and28) implies that the order etc is one made in writing. Such an order etc will ordinarilybear a facsimile of the signature of the service chief or of another officer issuing theorder ‘for’ or ‘on behalf of’ the Service chief. This will not be the case if the order etc istransmitted by signal/message or radio.

Usage has blurred whatever distinction there may once have been between orders andinstructions. A form of writing issued by a Service chief requiring subordinates to takecertain action or prohibiting certain conduct would usually be regarded as being anorder rather than an instruction or directive, whether or not the word order was actuallyused. It would not usually be regarded as being:

a. an instruction, unless it is described in the document as being such, oruses the word ‘instruct’ or ‘instructed’; or

b. a directive, unless it is described in the document as being such, or usesthe word ‘direct’ or ‘directed’.

‘General order’ is finally defined as meaning a general, standing, routine or daily orderin force with respect to a part of the Defence Force.

The expression ‘standing orders’ may be described or orders that are not transitory, iethat 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 prefixsuch as ‘ships’, ‘unit’ or ‘formation’.

The expression ‘routine orders’ essentially means orders that relate to the daily routineof a unit or other body. In practice, routine orders are of a transitory nature and arefrequently also used as a convenient vehicle for the conveyance of other information ofa transitory nature. Routine orders are usually designated as such except in the Navywhere 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 compliedwit, and whether the document is couched in mandatory or imperative language asopposed to being merely descriptive or narrative.

The mere inclusion of matter in standing orders (for example) may not in itself result innon-compliance being an offence under this section. If the matter is so drafted that therelevant members are in fact given an option whether or not to comply (for example byuse of the word ‘should’, which is merely an exhortation) then a duty to comply will nothave been imposed. Given the wide variety of documents, manuals and instructions inuse 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 unitdaily, routine or standing orders.

‘Lawful general order’. To be lawful, a general order must relate to military duty (ie beintended to achieve some military object or purpose) and be one which the officer whoissued it has authority to issue. A lawful general order is subject to the superveningrequirement of lawfulness.31

Section 30 Assaulting a guard


(a) the person assaults another person; and

(b) that other person is a member of the Defence Force or of an allied force;and

(c) that other person is on guard duty.




(b) the person assaults another person; and

(c) that other person is a member of the Defence Force or of an allied force;and

(d) that other person is on guard duty.


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:














(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 that the person in (c) was on guard duty (physical element);

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



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 “operations against the enemy”:





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e that the accused did a specified act to a person (physical element);

f that the accused’s act or omission in (e) was intentional (fault element);

g that the act either results in infliction of force on the person (or engenders fear in


h that the other person does not consent to the result in (g) (physical element);

i that the result in (g) is unlawful (physical element);

j 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 that the person in (e) was on guard duty (physical element);

m that the accused either knew or was reckless as to (k) and (l) (fault element).



COMMENTARY:

‘Person on guard duty’ includes not only a person on guard duty at a particular post, butalso a person who is posted or ordered to patrol for the purpose of protecting anyperson, 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 ofregulating traffic by land or water.32

The term ‘assault’ will continue to be interpreted in accordance with its common lawmeaning. As assault encompasses what is referred to in common law as a commonassault as well as a battery. The term ‘assault’ is is interpreted as a deliberateengendering in another person of the fear that unlawful force is about to be inflictedupon him or her, or the actual intended or reckless application of unlawful force toanother, without his or her consent, or being reckless as to his or her consent. Inrelation to application of force, mere words can never amount to an assault. There mustbe some bodily act or gesture or touching, to any extent.


Section 31 Obstructing a police member


(a) the person obstructs another person; and

(b) that other person:

(i) is a police member acting in the performance of his or her duty; or

(ii) is lawfully exercising authority under or on behalf of a service policeofficer.



(a) the member is called on to assist another person; and

(b) that other person:

(i) is a police member acting in the performance of his or her duty; or

(ii) is lawfully exercising authority under or on behalf of a service policeofficer; and

32 DFDA s.3(12).


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(c) the member refuses to assist that other person.


(3) In paragraphs (1)(b) and (2)(b), strict liability applies to the physical element ofcircumstance, that the person was a police member, or a person lawfully exercisingauthority under or on behalf of a service police officer.


(4) It is a defence to a charge under this section if the person proves that he or sheneither knew, nor could reasonably be expected to have known, that the other personwas a police member, or a person lawfully exercising authority under or on behalf of aservice police officer, as the case requires.

Note: The defendant bears a legal burden in relation to the matter in subsection (4). Seesection 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:




c that the accused obstructed another person in a specified manner (physical

element);



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e 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.

DEFENCE PROOFS:


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




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 physicalobstruction; for example, warning an offender of the approach of a police member whohas made up his or her mind to arrest the offender or of the presence of a policemember when an offence is being committed and there is some concert between theaccused 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:




c that the accused was called on to assist another person in a specified manner

(physical element);


e 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);


the physical element in (e) as this is an element of strict liability;

g that the accused refused to assist the other person (fault element);

h that the accused act in (f) was intentional (physical element).

DEFENCE PROOFS:


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





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COMMENTARY:

Any request by a police member for assistance must be reasonable having regard tothe 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 thecommission of Service offences. The duty to assist police members does not overridethe provisions of Part V and Part VI of the DFDA relating to arrest, custody andinvestigation 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 onwatch and the member:

(a) sleeps at the member's post or on watch; or

(b) is not on duty at a post but sleeps when the member's duty requires him orher to be awake; or

(c) is intoxicated (see subsection (5)); or

(d) leaves his or her post before being regularly relieved or otherwise absentshimself or herself from a place where it is the member's duty to be.


(2) Strict liability applies to paragraphs (1)(a), (b), (c) and (d).



(a) is engaged on service in connection with operations against the enemy;and

(b) is on guard duty or on watch; and

(c) engages in conduct that constitutes an offence against subsection (1).


(4) Strict liability applies to paragraph (3)(c).


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


96


directions of, a person lawfully authorised to administer the drug), so impaired that theperson is unfit to be entrusted with the person's duty or with any duty that the personmay be called on to perform.

(6) It is a defence if a person charged with an offence under this section proves thathe or she had a reasonable excuse for engaging in the relevant conduct.


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:


b that the accused was on guard duty or on watch as specified (physical element);

c that the accused slept at his or her post or his or her watch (physical element);


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


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




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COMMENTARY:

As to the nature of a post and what constitutes being posted, see the commentary onsection 17.

Care needs to be taken that the correct offence is charged. If the accused is foundasleep outside the perimeter of the area that is the accused’s post, the accused couldnot 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 DefenceForce who is placed on watch, in the sense of being a sentinel or look out. It also has aparticular nautical meaning. A ship’s company is divided into watches and the membersof a watch together attend to the working of the ship during their watch. A member ofthe ship’s company on watch is such a member on duty during his watch whatever thenature 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:



c that the accused is not on duty at a post but sleeps when the member’s duty

requires him or her to be awake (physical element);




DEFENCE PROOFS:

a the accused may raise the statutory defence under s.32(6) that he or she has a



98





COMMENTARY:

As to the nature of a post and what constitutes being posted, see the commentary onsection 17.

The expression ‘on watch’ is not defined. It can mean any member of the DefenceForce who is placed on watch, in the sense of being a sentinel or look out. It also has aparticular nautical meaning. A ship’s company is divided into watches and the membersof a watch together attend to the working of the ship during their watch. A member ofthe ship’s company on watch is such a member on duty during his watch whatever thenature of his duty may be

An offence against s.32(1)(b) is primarily directed at a person on guard duty who is amember of a guard or other party mounted or ordered to patrol; one member would beon duty at the post at a given moment and the other one would be waiting to relieve himor her and the others allowed to sleep. If the one waiting goes to sleep, he or shecommits an offence against this paragraph.

The offence is not primarily directed at a person who is a member of the duty watch inthe naval sense; if such a person were to be asleep, the person’s action would be anoffence that could more conveniently be charged and tried as an offence againsts.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:



c that the accused was intoxicated (physical element);


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DEFENCE PROOFS:






COMMENTARY:

Under s.32(5), a person shall be deemed to be intoxicated only if the person’s facultiesare so impaired, by reason of the person being under the influence of intoxicating liquoror a drug (other than a drug which has been lawfully administered), that the person isunfit to be entrusted with the person’s duty or any other duty which the person may becalled 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.


100


PROSECUTION PROOFS:



c 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);




DEFENCE PROOFS:






COMMENTARY:

As to the nature of a post see the commentary to s.17. Where a person does not havea post while on guard duty or on watch, the person may be charged, under the secondarm of s.32(1)(d), with absence from a place where it is the person’s duty to be. Thecharge should be formulated in this way, for example, where a person who, while onguard duty or on watch, has a duty to visit a number of specified places but goeselsewhere.

The question of whether or not a person has been regularly relieved must bedetermined by reference to the arrangements prescribed in the ship, unit orestablishment for the relief of persons at their posts or to the usual practice in theService.


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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:







e that the accused was on guard duty or on watch (physical element);


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

(physical element);

h that the accused’s act or omission in (h) was intentional (fault element);

i that the accused’s act or omission in (h) constituted an offence against s.32(1)

(physical element);


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:






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 theperson is on service land, in a service ship, service aircraft or service vehicle or in apublic place and the person:

(a) assaults another person; or

(b) creates a disturbance or takes part in creating or continuing a disturbance;or

(c) within the view or hearing of another person, engages in conduct that isobscene; or

(d) uses insulting or provocative words to another person.


SPECIMEN CHARGES:

s.33(a) Assaulting another person (on service land) (in service ship) (in serviceaircraft) (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 serviceaircraft) (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 Tattersall’s Hotel by kicking him in the shins.

PROSECUTION PROOFS:


c that the accused was a defence member or a defence civilian (physical element);

d that the accused knew or was reckless as to the fact that he or she was a


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);


g that the accused did a specified act to a person (physical element);

h that the accused’s act or omission in (e) was intentional (fault element);

i that the act either results in infliction of force on the person (or engenders fear in


j that the other person does not consent to the result in (g) (physical element);

k that the result in (g) is unlawful (physical element);

l 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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COMMENTARY:

‘Assault’. The term ‘assault’ will continue to be interpreted in accordance with itscommon law meaning. As assault encompasses what is referred to in common law asa common assault as well as a battery. The term ‘assault’ is interpreted as a deliberateengendering in another person of the fear that unlawful force is about to be inflictedupon him or her, or the actual intended or reckless application of unlawful force toanother, without his or her consent, or being reckless as to his or her consent. Inrelation to application of force, mere words can never amount to an assault. There mustbe some bodily act or gesture or touching, to any extent.


A charge under s.33(a) should usually be confined to an assault on a person of thesame rank as the accused. When the assault is alleged to have been committed on asuperior officer the charge should generally be made under s.25. Similarly an allegedassault against a person who is inferior in rank to the accused should generally becharged under s.34 and an alleged assault on a guard should generally be chargedunder s.30.

SPECIMEN CHARGE:

s.33(b) Creating a disturbance (on service land) (in service ship) (in serviceaircraft) (in service vehicle) (in a public place)

Being a defence member at …................. on ……............. in the Soldier’s Club at

Randwick Barracks did create a disturbance by ………………………………..

PROSECUTION PROOFS:



b that the accused knew or was reckless as to the fact that he or she was a



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c that the accused was on service land (or in a service ship, service aircraft or


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);




COMMENTARY:

‘Disturbance’. This is not defined. This offence is intended for dealing with the moreserious disturbances such as fighting or brawling or violent or disorderly disputation.Charges should not be laid indiscriminately under this paragraph for mere squabbles orother noisy conduct of minor significance.

SPECIMEN CHARGE:

s.33(c) Engaging in obscene conduct (on service land) (in service ship) (in serviceaircraft) (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




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In relation to “obscene conduct”:

e that the accused did a specified act or omission (physical element);


g that the accused’s act or omission in (e) was obscene (physical element);

h that the accused’s 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).



COMMENTARY:

The word ‘obscene’, as an ordinary English word, ‘... is used to describe things whichare offensive to current standards of decency...’. It can mean something that is‘indecent’ or ‘disgusting’, and can encompass conduct that is grossly vulgar orrepugnant to common propriety. Obscenity must be judged objectively, based on theviews of the average person in the community as opposed to the views of the mostprudish 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).


107


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 acertain member of his body his conduct would certainly be obscene. The same conductwhich in certain circumstances may merit only the milder description, may in othercircumstances deserve a harder one.

SPECIMEN CHARGE:

s.33(d) Using (insulting) (provocative) words (on service land) (in service ship) (inservice 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 “insulting or provocative words”:

e that the accused used insulting or provocative words to another person (physical

element);



108




COMMENTARY:

‘Provocative’. This is not defined and should be given its ordinary meaning havingregard to the context in which it is used. In general, provocative words for the purposesof 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 particularoccasion will be insulting to another person will depend not only on the words used buton the circumstances and the context in which they are used. Insulting words do notnecessarily have to lead to a disturbance in the same way that ‘provocative’ words areinterpreted.35

In a disciplined service the use of insulting and provocative words by a member to asubordinate should not be tolerated. In these situations, particularly where asubordinate is unnecessarily humiliated by the insulting or provocative words of asuperior officer, charges should be brought under s.33(d). Consideration should also begiven to laying charges under this section against members who use insulting orprovocative words against other members, irrespective of their relative ranks, whenthose words are offensively racist or sexist or are otherwise likely to cause anotherperson to be unnecessarily embarrassed, angered or humiliated.

Section 34 Assaulting an inferior


(a) the member assaults or ill-treats a person; and

(b) the person is a member of the Defence Force who is of inferior rank to themember.




34 See Defence Force Discipline Tribunal (DFDAT) Anning (unreported 11 May 1990). See also JAG Report

in the matter of Duggan (Vol 7).

35 See discussion on whether the DFDAT decision in Anning applies to ‘insulting’ words in s.33(d) in JAGReport in the matter of Duggan (Vol 7).


109


(3) It is a defence if the member proves that he or she neither knew, nor couldreasonably be expected to have known, that the other person was a member of theDefence Force of inferior rank to the member.


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:














(fault element);


110


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


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




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 prosecutiondoes not have to establish that the accused knew, or could reasonably be expected to have known, thatthe alleged victim was of inferior rank. The lack of such knowledge is something that the accused mayraise by way of a defence. However, if the prosecution is readily able to establish that the accused wasaware 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.


111


PROSECUTION PROOFS FOR A CHARGE OF ILL-TREATMENT OF AN INFERIOR:





In relation to “ill-treatment”:


to a person (physical element);


e that the act amounted to ill-treatment of the person (physical 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.


112





COMMENTARY:

‘Assault’. The term ‘assault’ will continue to be interpreted in accordance with itscommon law meaning. As assault encompasses what is referred to in common law asa common assault as well as a battery. The term ‘assault’ is interpreted as a deliberateengendering in another person of the fear that unlawful force is about to be inflictedupon him or her, or the actual intended or reckless application of unlawful force toanother, without his or her consent, or being reckless as to his or her consent. Inrelation to application of force, mere words can never amount to an assault. There mustbe some bodily act or gesture or touching, to any extent.


‘Ill-treat’. There is no legal definition of “ill-treat”. The term must be interpreted in amilitary context and, in general, can be considered to encompass all forms of neglectnot constituting an assault, for example, the unlawful imposition of a punishment or thedeliberate and improper withholding of benefits. The following considerations would berelevant:

a. Was the conduct likely to result in the person holding inferior rank sufferingphysical or mental ill-effects of more than a transient nature?

b. Did the conduct have a purpose related to the proper functioning of theADF?

c. Was the conduct cruel, vindictive, discriminatory or humiliating?

As to the ranks of members of the Defence Force, and their relationships, see Annex Ato this Chapter.

Members of the armed forces of other countries may, by law, be regarded as beingmembers of the Defence Force when formally attached to the Defence Force under theDefence Act 1903, section 116B.

The name and rank of the alleged victim must be given in any charge under this section.


113


Division 4—Offences relating to performance of duty

Section 35 Negligent performance of duty

A defence member is guilty of an offence if the member:

(a) is required by the member's office or appointment to perform a duty; and

(b) by act or omission, performs that duty negligently.


s.35 Negligent performance of duty

Reserved. Seek legal advice in relation to use of this charge.

Section 36 Dangerous conduct



(b) the conduct is in or in connection with:

(i) the operation, handling, servicing or storage; or

(ii) 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 dangerousthing or equipment; and

(c) the conduct causes, or is likely to cause, the death of or grievous bodilyharm to another person; and

(d) the first-mentioned person knows of the matter mentioned in paragraph(c); and

(e) where the person mentioned in paragraph (c) is an enemy person—theconduct is not in the execution of the first-mentioned person's duty.




114








(d) the first-mentioned person is reckless as to the matter mentioned inparagraph (c); and










(d) the first-mentioned person is negligent as to the matter mentioned inparagraph (c); and




115


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:





(physical element);


e that the act in (d) is in or in connection with:


(ii) the giving of directions with respect to the operation, handling, servicing orstorage;

of a ship, aircraft or vehicle or a weapon, missile, explosive or other dangerous

thing or equipment (physical element);


g that the accused’s 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);


116


i where the person who has died or caused grievous bodily harm is an enemy

person, that the accused’s act or omission in (d) is not in the execution of the

accused’s duty (physical element);

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



SPECIMEN CHARGE:

s.36(2) Dangerous conduct with recklessness as to consequences

Being a defence member at .................... on ……............ as the non-commissioned



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:





(physical element);






117







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


accused’s duty (physical element);

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



SPECIMEN CHARGE:

s.36(3) Dangerous conduct with negligence as to consequences

Being a defence member at .................... on ……............., as the non-commissioned



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:





118



(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


accused’s duty (physical element;

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




119


COMMENTARY:

‘Likely’. This is not defined and has its ordinary meaning in the context. It has themeaning in relation to a possible outcome, of seeming as if it would happen38 or thatthere is a reasonable probability that it will happen. On a charge that the accused’sbehaviour is likely to cause death or grievous bodily harm it is not necessary thatanother person has actually suffered death or grievous bodily harm.

‘Grievous bodily harm’. This is to be given its ordinary and natural meaning of seriousbodily harm.

Where the person intentionally causes death, a charge of murder should ordinarily belaid against the person instead of a charge under this subsection.

Where the person intentionally causes grievous bodily harm, consideration should begiven to laying a charge under DFDA s.61 and the Crimes Act, 1900 (ACT) in itsapplication to the Jervis Bay Territory, section 19,39 against the person instead of acharge under this subsection.

Section 36A Unauthorised or negligent discharge of weapon

(1) A person who is a defence member or a defence civilian is guilty of anoffence if:

(a) the person discharges a weapon; and

(b) the person is not authorised to discharge the weapon in the circumstancesin which the discharge takes place.


(2) A person who is a defence member or a defence civilian is guilty of an offenceif, by act or omission, the person negligently causes or contributes to the discharge of aweapon.


38 The Shorter Oxford English Dictionary (C.T. Onions, Ed) 3rd Ed., Oxford: The Clarendon Press, 1968.

39 See Part 7 of Vol. 2. See generally the offences in the Crimes Act 1900 (ACT) Part III.


120


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:




c that the accused discharged a weapon (physical element);


e that the accused was not authorised to discharge the weapon in the

circumstances in which the discharge occurred (physical element);




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:



121





(physical element);

d that the accused’s act or omission in (c) was negligent (fault element);

e that the accused’s act or omission causes (or contributes) to the discharge of a

weapon (physical element); and

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



COMMENTARY:

‘Act or omission’. An offence under s.36A(2) may be committed by performing anegligent act which contributes to or causes a weapon to discharge or by negligentlyfailing 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 Servicetribunal as to whether the discharge of the weapon was or was not authorised in thecircumstances.

If the circumstances of the unauthorised discharge are such that it is likely to cause thedeath of or grievous bodily harm to another person, the member is to be charged unders.36 Dangerous Conduct.

An offence under this section is only committed when the accused acts intentionally andthis results in an unauthorised discharge or the accused is negligent and thiscontributes to or causes a weapon to discharge. No offence is committed under thissection if a weapon accidentally discharges in circumstances in which no blame can beattached to the accused, eg a member faints on parade resulting in a weapondischarging or a weapon which has been made safe, nonetheless discharges whenaccidentally dropped or is otherwise bumped. However, if the weapon discharges inthese circumstances because the member has failed to make safe the weapon, themember has committed an offence under this section.


122


In addition, a member may be charged under another section if the circumstances of thedischarge so warrant, eg s.27 (Disobedience of a Lawful Command), s.29 (Failure toComply with a Lawful General Order) or s.60 (Prejudicial conduct).

Section 37 Intoxicated while on duty etc.


(a) the member is on duty, or reports or should report for duty; and

(b) the member is intoxicated (see subsection (3)).




(3) For the purposes of this section, a person is intoxicated if, and only if, theperson's faculties are, because of the person being under the influence of intoxicatingliquor or a drug (other than a drug administered by, or taken in accordance with thedirections of, a person lawfully authorised to administer the drug), so impaired that theperson is unfit to be entrusted with the person's duty or with any duty that the personmay be called on to perform.

SPECIMEN CHARGE:

s.37 Being intoxicated (while on duty) (when reporting for duty) (when required toreport 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 toreport for duty)

Being a defence member at .....…........ on .......…......, was intoxicated when he reported

for duty as a steward at the Officer’s Mess at the School of Artillery.

PROSECUTION PROOFS:



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b that the accused was on duty (or reported for duty or was supposed to have

reported for duty) (physical element);

c the accused was intoxicated as defined in s.37(3) (physical element); and


accused in relation to any of the physical elements in (a), (b) or (c) as this is an




COMMENTARY:

Any person may give his or her opinion whether or not the accused was intoxicated butthe opinion will have little weight unless the witness describes the symptoms on whichthe 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 wasrequired to report for or perform a duty is not necessarily an impediment to framing acharge under this section. For example, a member may present to work after havingdrunk heavily the previous evening and still retain a quantity of alcohol in his/her systemthat continues to act thereupon. Accordingly, it could transpire that the accused couldbe regarded as being under the influence of intoxicating liquor (within the deemingprovision of section 37(3)) notwithstanding that the accused last consumed alcohol anumber of hours previously.

Section 38 Malingering

(1) A defence member is guilty of an offence if, with intent to make or keep himselfor herself unfit for duty or service, the member:

(a) injures himself or herself or causes or permits himself or herself to beinjured; or

40 See discussion on opinion evidence in Chapter 6.


124


(b) by act or omission, causes himself or herself to suffer from a sickness ordisability or prolongs or aggravates a sickness or disability from which heor she is suffering.



(a) the member represents himself or herself to be suffering from a physical ormental condition; and

(b) the member makes the representation with intent to avoid duty or service;and

(c) the representation is false; and

(d) the member knows that the representation is false.


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:




c that the accused injured himself or herself or caused or permitted himself or

herself to be injured (physical element);

d that the accused’s act or omission in (c) was intended to make or keep himself or

herself unfit for duty or service (fault element).




125


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:





(physical element);

d that the accused’s act or omission in (c) was intended to make or keep himself or

herself unfit for duty or service (fault element);

e that the accused’s 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);


element).




126


SPECIMEN CHARGE:

s.38(2) Malingering – falsely representing oneself as suffering from physical ormental 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:




c that the accused represented himself or herself to be suffering from a physical or

mental condition as specified (physical element);

d that the accused’s representation in (c) was intended to avoid duty or service

(fault element);

e that the accused’s representation was false (physical element);

f that the accused knew the representation was false (fault element).



COMMENTARY:

‘Unfit’. The unfitness may be temporary or permanent.

‘Duty or service’. Where the charge refers to duty, the nature of the duty should bespecified. Where the charge relates to service, the nature of the service may or may notneed to be specified according to the circumstances.


127


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

Section 39 Loss of, or hazard to, service ship


(a) the member engages in conduct; and

(b) the conduct causes or allows a service ship to be lost, stranded orhazarded; and

(c) the member intends that the conduct will have that result.





(c) the member is reckless as to whether the conduct will have that result.





(c) the member is negligent as to whether the conduct will have that result.


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.


128


PROSECUTION PROOFS:





(physical element);


e that the accused’s 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).



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:





129



(physical element);




f that the accused was reckless as to whether his or her act or omission in (c)

would have the result in (e) (fault element).



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:





(physical element);





130


f that the accused was negligent as to whether his or her act or omission in (c)

would have the result in (e) (fault element).



COMMENTARY:

The particulars should allege only those matters which can be proved to have broughtabout the loss, stranding or hazarding in circumstances constituting negligence. Mattersshould not be alleged which of themselves, or in combination with other matters, wereincapable of having caused the loss etc even though, in the given circumstances, theymay have been capable of constituting negligence. In this regard it is thereforeimportant to distinguish between the conduct which is likely to have brought about theincident and the conduct which, although constituting breaches of established orrecommended navigational practice are not causally connected with the loss, strandingor hazarding.

For example, in a case arising from a collision between two ships, the failure by eithercommanding officer to sound his ship’s siren, after it had become apparent that collisionwas inevitable, should not be alleged as a particular of negligence. Similarly, in a casewhere a ship runs aground on an unknown or uncharted object in waters which werehitherto regarded as being well-charted, the particulars should not allege any conductagainst the accused which relies on knowledge by the accused of the existence of theuncharted danger unless, in all the circumstances of the case, the accused should havebeen aware of the probable existence of the danger. Even in these circumstances,consideration must be given to whether the conduct alleged did in fact contributedirectly to the grounding or was merely incidental to it.

The particular conduct by the accused which is alleged to constitute the offence shouldbe set out concisely on the charge sheet. These particulars should not attempt toprovide an outline of the evidence intended to be adduced by the prosecution, norshould they allege failure to comply with a general order—as this may amount toallegation 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 ofsomething done by the accused or may consist of a failure by the accused to act. It isonly permissible to plead either ‘causes’ or ‘allows’ in a particular charge. A chargepleading both will be bad for duplicity.

‘Loss’. This is not defined. It means total loss. A surface ship can be lost withoutnecessarily being lost to view as, for example, when salvage operations for her recoveryare abandoned. Salvage operations undertaken for the purpose merely of savinganything of value that may be in the hull, but not the hull itself, will not prevent a ship


131


from being regarded as lost. A vessel which is wholly submerged and incapable ofcoming 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 theground, such as a groyne, and remained fast for a time, rather than momentarily. A shipis 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 notendanger 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 grievousbodily harm to another person, consideration should be given to charging the accusedwith 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 issatisfied beyond reasonable doubt that the person is guilty of an offence under sections39(2) or 39(3) it may convict on either of these offences. Similarly, a Service tribunalmay convict of an offence under section 39(3) where it has acquitted the accused undersection 39(2). Where, however, a person is charged under section 39(3) no statutoryalternative is provided by the DFDA. In this situation it may be appropriate to include aspecific alternative charge on the charge sheet. For example, where an offence againsts.39(3) for negligently stranding is alleged, and some doubt exists as to whether theship remained fast for a time, it may be appropriate to charge in the alternative theoffence of s.39(3) for negligently hazarding. Similarly, where the principal chargealleges that the accused negligently caused the stranding or hazarding it may beappropriate to include an alternative charge of negligently allowing the stranding orhazarding (as the case may be). In fairness to the accused, however, if an essentialingredient of the principal charge is unlikely to be able to be proved beyond reasonabledoubt, the charge should not be alleged against the accused and then ‘backed-up’ byan alternative charge.

Section 40 Driving while intoxicated


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).

42 See footnote 52

43 See footnote 52.


132


(a) the person drives a service vehicle in any place, whether a public place ornot; and

(b) the person is under the influence of intoxicating liquor or a drug to such anextent as to be incapable of having proper control of the vehicle.



(a) the person drives a vehicle on service land; and

(b) the person is under the influence of intoxicating liquor or a drug to such anextent as to be incapable of having proper control of the vehicle.


(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:


b that the accused drove a service vehicle in a specified place (physical element);

c 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);


133



accused in relation to the physical elements in (a), (b) or (c) as this is an offence

of absolute liability under s.40(3).


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:


b that the accused drove a vehicle on service land (physical element);

c 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);


134




of absolute liability under s.40(3).





under s.9.2 is not available to an accused who has been charged with an offence

against this section.



COMMENTARY:

‘Absolute Liability’. Absolute liability in relation to an offence applies as specified ins.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 ofabsolute liability:

(a) there are no fault elements for any of the physical elements of theoffence; and

(b) the defence of mistake of fact under section 9.2 is unavailable.’

‘Civilian Jurisdiction’. Although s.40 may literally enable Service tribunals to deal withsome driving offences which occur in places other than on service land the section isnot intended to oust the jurisdiction of the civil courts in relation to such offences. On thecontrary, most offences which occur ‘off base’ will continue to be prosecuted by the civilpolice in the civil courts. However, cases may arise from time to time where it is moreappropriate to deal with driving offences under the DFDA. For example in remotelocalities and in some overseas countries there may be a shortage of police or alikelihood of an unreasonable delay in having a matter dealt with. As a general rule theconsent of the local civil authorities should be obtained before a Service tribunal hears acharge 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


135


well served by having the case dealt with by the civil authorities. In such a case adviceshould be sought from the appropriate Service administrative authority as to whichcourse to follow.

‘Drive’. This includes ‘ride’, eg riding a motorcycle. This section does not refer to aperson ‘being in charge of’ a vehicle and decisions based on the use of those or similarwords 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 heropinion whether or not the accused was under the influence of intoxicating liquor or adrug but the opinion will have little weight unless the witness describes the symptomson which the opinion is based is based ie. slurred speech, unable to maintain balance,unsteady on feet, dishevelled appearance, breath smelling of alcohol, bloodshot eyesetc.44

See Chapter 3, paragraph 3.106 as to the medical examination of persons suspected ofbeing under the influence of intoxicating liquor or a drug.

Section 40A Dangerous driving



(b) the person does so at a speed, or in a manner, dangerous to anotherperson in that place.




(b) the person does so at a speed, or in a manner, dangerous to anotherperson on that land.


(3) Absolute liability applies to paragraphs (1)(a) and (2)(a).

44 See discussion on opinion evidence in Chapter 6.


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


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:




c that the accused drove a vehicle in a specified place (physical element);


accused in relation to the physical element in (c) as this is an element of absolute

liability under s.40A(3);

e that accused’s driving was at a speed or in a manner dangerous to another

person in the specified place (physical element);


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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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


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:




c that the accused drove a vehicle on service land (physical element);



liability under s.40A(3);


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e that accused’s driving was at a speed or in a manner dangerous to another

person in the specified place (physical element);



liability under s.40A(4).


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


to rely on it in relation to the physical elements in s.40A(1)(a) and s.40A(1)(b).



COMMENTARY:

‘Absolute Liability’. Absolute liability where applied to a physical element in an offence isdefined in s.6.2(2) of the Criminal Code as follows:


(2) If a law that creates an offence provides that absolute liability applies to aparticular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 is unavailable inrelation to that physical element.’




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‘Driving at a speed, or in a manner, dangerous’. The meaning of this phrase was set outby 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 createdanger, real or potential, to the public. Advertence to the danger on the part ofthe driver is not essential; all that is essential is proof that the acts of the driverconstitute danger, real or potential, to the public. But whether such danger existsdepends upon all the circumstances of the case, eg, the character and conditionof the roadway, the amount and nature of the traffic that might be expected, thespeed of the motor vehicle, the observance of traffic signals, the condition of thedriver’s car, especially if he knew, for instance, that his brakes were out of orderand so forth.’

If the driver is adversely affected by drink, this fact is a circumstance relevant to theissue whether he or she was driving dangerously.

‘Speed’. To drive a motor car on a highway at a speed dangerous to another person isnot 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, constitutedangerous driving, and where the speed at which a vehicle is driven is in itself adangerous speed no other circumstances need be taken into consideration.

‘Manner’. ‘Manner of driving’ includes all matters connected with the management andcontrol 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, aswell as other matters affecting the speed at which, and the course in which, the car isdriven’.

Section 40B Negligent conduct in driving



(b) in doing so, the person engages in negligent conduct.




45 (1938) 59 CLR 633.


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(b) in doing so, the person engages in negligent conduct.


(3) Absolute liability applies to paragraphs (1)(a) and (2)(a).


Reserved. Seek legal advice in relation to use of this charge.

Section 40C Driving a service vehicle for unauthorised purpose


(a) the person:

(i) drives a service vehicle in any place, whether a public place or not;and

(ii) is not authorised to drive that vehicle; or

(b) the person uses a service vehicle for an unauthorised purpose.




(3) It is a defence to a charge under subsection (1) if the person proves that he orshe had a reasonable excuse for the relevant conduct.


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:



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c that the accused was not authorised to drive the service vehicle in (b) (physical

element);


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:


reasonable excuse for the relevant conduct; and




COMMENTARY:



‘Civilian Jurisdiction’. Although s.40 may literally enable Service tribunals to deal withsome driving offences which occur in places other than on service land the section isnot intended to oust the jurisdiction of the civil courts in relation to such offences. On thecontrary, most offences which occur ‘off base’ will continue to be prosecuted by the civilpolice in the civil courts. However, cases may arise from time to time where it is moreappropriate to deal with driving offences under the DFDA. For example in remotelocalities and in some overseas countries there may be a shortage of police or alikelihood of an unreasonable delay in having a matter dealt with. As a general rule theconsent of the local civil authorities should be obtained before a Service tribunal hears acharge 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 bewell served by having the case dealt with by the civil authorities. In such a case adviceshould be sought from the appropriate Service administrative authority as to whichcourse to follow.


142


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:


b that the accused used a service vehicle (physical element);

c that the purpose for which the vehicle was used was unauthorised (physical

element);



offence of strict liability under s.40C(2);

DEFENCE PROOFS:






COMMENTARY:

‘Use’. This is not defined. It has its ordinary meaning which is wider in scope that ‘drive’.



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Section 40D Driving without due care or attention etc.



(b) the person does so without due care and attention or without reasonableconsideration for another person in that place.

Maximum punishment:

(c) if the person is a member of the Defence Force—a fine of the amount ofthe member's pay for 7 days; or

(d) in any other case—a fine of $100.



(b) the person does so without due care and attention or without reasonableconsideration for another person on that land.

Maximum punishment:

(c) if the person is a member of the Defence Force—a fine of the amount ofthe member's pay for 7 days; or


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(d) in any other case—a fine of $100.

(3) An offence under this section is an offence of absolute liability.


SPECIMEN CHARGE:

s.40D(1) Driving a service vehicle without due care and attention or withoutreasonable consideration

Being a defence member at ....................... on ................... drove Service vehicle ZOO-

114 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:



c that the accused drove without due care and attention or without reasonable

consideration for another person in that place (physical element);



offence of absolute liability under s.40D(3).


e This section creates offences of absolute liability to which s.6.2(1) of the Criminal


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



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SPECIMEN CHARGE:

s.40D(2) Driving a vehicle on service land without due care and attention orwithout 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:


b that the accused drove a vehicle on service land (physical element);

c that the accused drove without due care and attention or without reasonable

consideration for another person in that place (physical element);



offence of absolute liability under s.40D(3).





under s.9.2 of the Criminal Code is not available to an accused who has been

charged with an offence against this section.




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COMMENTARY:

‘Absolute Liability’. Absolute liability is defined in s.6.2(1) of the Criminal Code asfollows:


(1) If a law that creates an offence provides that the offence is an offence ofabsolute liability:

(a) there are no fault elements for any of the physical elements of the offence;and

(b) 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 duecare and attention the court had the following to say:

‘That standard is an objective standard, improved and universal, fixed in relation to thesafety of other users of the highway. It is in no way related to the degree of proficiencyor degree of experience attained by the individual driver. The question is not a questiondependent upon inexperience or lack of skill. It is a question dependent upon lack ofcare and attention. I think that it is not without significance that the statute uses boththe 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 thething he is doing, and, perceiving that which he is doing or entering upon, he must dohis best, and he must show proper care in the doing of that thing upon which he isintent . . . ‘Due care and attention’ is something not related to the proficiency of thedriver, but governed by the essential needs of the public on the highway.’46


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


147


Section 41 Low flying


(a) the member flies a service aircraft; and

(b) by or in accordance with a lawful general order, there is a minimum heightat which the member is authorised to fly; and

(c) the height at which the member flies is less than that minimum height; and

(d the member is reckless or negligent as to the matter in paragraph (c).




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


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:




c that the accused flew a service aircraft (physical element);


148


d that the accused’s conduct in (c) was intentional (fault element);

e that a lawful general order specified a minimum height at which the accused was

authorised to fly the aircraft (physical element);




g that the height the accused flew the aircraft at in (c) was less that the specified

minimum height (physical element);

a. that the accused was reckless or negligent as to (g) (fault element);

DEFENCE PROOFS:


knew nor could reasonably be expected to have known of the general order; and




COMMENTARY:

‘General order’, ‘Lawful general order’. See the commentary on section 29 (Failure tocomply with general order).

‘By or in accordance with a lawful general order’. Minimum flying heights may be laiddown in a general order or a general order may authorise a particular officer to setminimum 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 anentry in a document; and


149


(b) the certificate, document or entry relates to any matter affecting the safetyor efficiency of a service ship, service aircraft, service vehicle, servicemissile or service weapon; and

(c) the person does not take reasonable care to ensure the accuracy of thecertificate, document or entry.


SPECIMEN CHARGE:

s.42 Giving inaccurate certification to a matter affecting a (service ship) (serviceaircraft) (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:




c that the accused gave a certificate or made or signed a document or made an

entry in a document (physical element);


e 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);


g that the accused did not reasonable care to ensure the accuracy of the

certificate, document or entry (physical element);


150





COMMENTARY:

‘Certificate’. This is not defined. It has its ordinary meaning of a document wherein afact 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) any paper or other material on which there is writing,

(b) any paper or other material on which there are marks, figures, symbols orperforations having a meaning for persons qualified to interpret them; and

(c) any article or material from which sounds, images or writings are capableof 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 orsymbols in a visible form.’

Division 5A—Property offences

Subdivision A—Service property offences

Section 43 Destroying or damaging service property



(b) the conduct results in the destruction of, or damage to, service property;and


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(c) the person intends that result.





(c) the person is reckless as to that result.





(c) the person is negligent as to that result.


(4) It is a defence to a charge under subsection (1) if the person proves that he orshe had a reasonable excuse for engaging in the relevant conduct.


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:



152





(physical element);


e that the act or omission resulted in the destruction of, or damage to, property

(physical element);

f that the accused intended the result in (e) (fault element).

g that the property was service property (physical element);

h that the accused knew or was reckless as to (g) (fault element); and

DEFENCE PROOFS:


reasonable excuse for the relevant act or omission; and




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:



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(physical element);

d that the accused’s conduct in (c) was intentional (fault element);

e that the conduct resulted in the destruction of, or damage to, property (physical

element);

f that the accused was reckless as to the result in (f) (fault element).



DEFENCE PROOFS:






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.


154


PROSECUTION PROOFS:





(physical element);


e that the act or omission resulted in the destruction of, or damage to, property

(physical element);

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



DEFENCE PROOFS:






COMMENTARY:

‘Service property’. Service property means property used by, or in the possession orunder the control of:

(a) the Defence force;

(b) an allied force; or


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(c) an institution of the Defence Force or of an allied force.

‘Property’ includes:

(a) real property; and

(b) personal property; and

(c) money; and

(d) a thing in action or other intangible property; and

(e) electricity; and

(f) a wild creature that is:

(i) tamed; or

(ii) ordinarily kept in captivity; or

(iii) reduced (or in the course of being reduced) into the possession of aperson.

Section 44 Losing service property


(a) the person loses any property; and

(b) the property is, or forms part of, service property issued for the person'suse, or entrusted to the person's care, in connection with the person'sduties.


(2) Absolute liability applies to paragraph (1)(a).


(3) It is a defence if the person proves that he or she took reasonable steps for thesafe-keeping of the lost property.



156


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 that the accused was a defence member or defence civilian (physical element);



c that the accused lost specified property (physical element);




e that the property in (c) was or formed part of service property issued for the

accused’s use, or entrusted to the accused’s care, in connection with the

accused’s 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



157



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


to rely on it in relation to the physical element in s.44(1)(a).



COMMENTARY:








(c) money; and




(i) tamed; or




158


‘Loss’. Absolute Liability applies to this element. Loss of an item does not prove theoffence; the other elements do not attract absolute liability and the prosecution mustprove them beyond reasonable doubt.

‘Entrusted to the accused’s care, in connection with the accused’s duties’. It is notintended that a member should be liable under s.44 for stores in a storeroom of whichthe 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 astools, instruments, equipment and weapons.47

Section 45 Unlawful possession of service property


(a) the person is in possession of service property; and

(b) the person has no lawful authority for being in possession of the property.




(3) It is a defence if the person proves that he or she:

(a) was not aware that he or she was in possession of the property; or

(b) was not aware that the property was service property; or

(c) had a reasonable excuse for his or her possession of the property withoutauthority.


47 Defence Force Discipline Bill 1982 Explanatory Memorandum para 430.


159


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:


b that the accused was in possession of specified property (physical element);

c that the property was service property (physical element);

d that the accused had no lawful authority for being in possession of the property

(physical element); and


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) was not aware that he or she was in possession of the property; or

(ii) was not aware that the property was service property; or

(iii) had a reasonable excuse for his or her possession of the property without

authority; and





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COMMENTARY:

This offence differs materially from offences in State and Territory law relating to theunlawful possession of property and consequently the decisions on the latter offencesmust be very carefully considered before being quoted or accepted as authority for theinterpretation of s.45.

‘Possession’. This is not defined. It is likely in the context to mean actual rather thanlegal or constructive possession. The comments made by Pollock and Wright havereceived judicial approval in a case regarding actual possession, however, thesecomments must only be considered in the context of this offence where no fault elementattaches to the physical element that the accused was in possession of specifiedproperty. The authors said:

‘The word ‘possession’ is used in relation to movable things in three differentsenses. Firstly, it is used to signify mere physical possession … which is rather astate of facts than a legal notion. The law does not define modes or events in whichit may commence or cease. It may perhaps be generally described by stating that aperson is in such a relation to a thing that, so far as regards the thing, he canassume, exercise or resume manual control of it at pleasure, and, so far as regardsother persons, the thing is under the protection of his personal presence, or in ahouse or land occupied by him, or in some receptacle belonging to him and underhis control, he is in physical possession of the thing.’48








(c) money; 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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(i) tamed; or



Subdivision B—Possession of property suspected of having beenunlawfully obtained

Section 46 Possession of property suspected of having been unlawfully obtained


(a) the person is in possession of property; and

(b) the property may reasonably be suspected of having been unlawfullyobtained.




(3) It is a defence if the person proves that he or she:

(a) was not aware that he or she was in possession of the property; or

(b) was not aware of the circumstances by reason of which that property mayreasonably be suspected of having been unlawfully obtained; or

(c) had a reasonable excuse for his or her possession of the property.


(4) It is a defence if the person proves that the property was not unlawfullyobtained.



162


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:


b that the accused was in possession of specified property (physical element);

c that the property may reasonably be suspected of having been unlawfully

obtained (physical element);



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) was not aware that he or she was in possession of the property; or

(ii) was not aware of the circumstances by reason of which that property may

reasonably be suspected of having been unlawfully obtained; or

(iii) had a reasonable excuse for his or her possession of the property without

authority; or

(iv) the property was not unlawfully obtained; and





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COMMENTARY:

This offence differs materially from the corresponding offences in State and TerritoryActs and consequently the decisions on the latter offences must be very carefullyconsidered 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 suspicionmust attach to the property, and not merely to the person in possession of it; and thefact that the person in possession of the property has given a false account as to howhe came by the property does not, of itself, justify a reasonable suspicion that theproperty was stolen or unlawfully obtained. It is not necessary, however, before areasonable suspicion can be formed, that the person suspecting should know or believethat the property answers to the description of property reported as stolen. Othercircumstances including the nature of the property, the circumstances in which it hasbeen found, and the behaviour of the possessor with respect to it may reasonablyattract 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, orcould be, reasonably held at the time that the accused was charged in the light of theknown facts at that time but what suspicion can be reasonably held in the light of all theevidence 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 unlawfullyobtained.

Subdivision C—Fraudulent conduct

Section 47C Theft

(1) A person who is a defence member or a defence civilian is guilty of an offence ifthe person dishonestly appropriates property belonging to another with the intention ofpermanently depriving the other of the property.


(2) For the purposes of this Act, an offence against subsection (1) is to be knownas the offence of theft.

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


164


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:




c that the accused appropriated specified property (physical element);

d 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 that the property belonged to another person (physical element); and




COMMENTARY:

As noted above, this offence is closely modelled on the theft provisions contained inChapter 7 of the Criminal Code especially section 131.1 (theft). New interpretative


165


provisions for the s.47C offence have replaced the interpretative provisions insubsection (3) of the previous s.47.

‘Appropriate’: This word ordinarily means to take for one’s own, or to oneself but for thepurposes of charges for theft, the definition in s.47E of ‘appropriation of property’ shouldbe applied.

‘Property’: This is not limited to Service property. Subsection 3(1) defines property toinclude money and everything animate or inanimate, capable of being the subject ofownership.

‘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 personwho commits a theft that they only assisted the accused after he/she had already takenthe property. The act of stealing can extend from a simple movement of the goods tohiding the goods in a place for a lengthy period until it was safe to convert them. In thelatter case, an accused who knowingly assists before the complete act of conversion isalso guilty of theft, rather than of being an accessory after the fact.

Statutory Criminal Code Defences: See s.23 discussion. A person charged unders.47C with an offence of theft may raise the defence of ‘claim of right’ under s.9.5 of theCriminal Code. A ‘claim of right’ is a claim by the person that they have some bona fideproprietary ‘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 physicalelement relating to property if:

(a) at the time of the conduct constituting the offence, the person isunder a mistaken belief about a proprietary or possessory right; and

(b) the existence of that right would negate a fault element for anyphysical element of the offence.

(2) A person is not criminally responsible for any other offence arisingnecessarily out of the exercise of the proprietary or possessory right thathe or she mistakenly believes to exist.

(3) This section does not negate criminal responsibility for an offence relatingto the use of force against a person.’


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An accused has an evidential burden of proof if he or she raises this defence in answerto a charge of theft. An evidential burden in relation to a matter means the burden ofadducing or pointing to evidence that suggests a reasonable possibility that the matterexists or does not exist: Criminal Code s.13.3(6). For example, an accused personmight contend that he/she thought that the allegedly stolen property was his/hers. Theaccused would therefore have to adduce or point to evidence that suggests this honestbelief. This evidence usually comes from statements made by the accused toinvestigating authorities. If this evidential burden is discharged the prosecution then hasthe burden of proving beyond reasonable doubt that the accused did not have therelevant belief. This is often referred to as the ‘persuasive’ burden and the necessarystandard is ‘beyond reasonable doubt’.

Section 47P Receiving

(1) A person who is a defence member or a defence civilian is guilty of an offence ifthe person dishonestly receives stolen property, knowing or believing the property to bestolen.


(2) For the purposes of this Act, an offence against subsection (1) is to be knownas the offence of receiving.

Stolen property

(3) For the purposes of this section, property is stolen property if, and only if:

(a) it is original stolen property (as defined by subsection (5)); or

(b) it is previously received property (as defined by subsection (6)); or

(c) 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 obtainedin the course of an offence against a law of the Commonwealth, a State or a Territorythat 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 soappropriated); and


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(ii) is in the possession or custody of the person who so appropriatedthe property; or

(b) property, or a part of property, that:

(i) was otherwise unlawfully obtained (whether or not the property, orthe part of the property, is in the state it was in when it was soobtained); and

(ii) is in the possession or custody of the person who so obtained theproperty or the person for whom the property was so obtained.

Previously received property

(6) For the purposes of this section, previously received property is property that:

(a) was received in the course of an offence against subsection (1); and

(b) is in the possession or custody of the person who received the property inthe course of that offence.

(7) For the purposes of this section, property ceases to be original stolen propertyor previously received property:

(a) after the property is restored:

(i) to the person from whom it was appropriated or obtained; or

(ii) to other lawful possession or custody; or

(b) after:

(i) the person from whom the property was appropriated or obtainedceases to have any right to restitution in respect of the property; or

(ii) a person claiming through the person from whom the property wasappropriated or obtained ceases to have any right to restitution inrespect of the property.

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) original stolen property; or

(ii) previously received property; and


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(b) if subparagraph (a)(i) applies—is 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 personwho so appropriated the original stolen property; or

(ii) if the original stolen property was otherwise unlawfully obtained—theperson who so obtained the property or the person for whom theproperty was so obtained; and

(c) if subparagraph (a)(ii) applies—is in the possession or custody of theperson who received the previously received property in the course of anoffence against subsection (1).

Money transfers

(9) For the purposes of this section, if, as a result of the application of subsection134.1(9) or (10) of the Criminal Code, an amount credited to an account held by aperson is property obtained in the course of an offence against section 134.1 of theCriminal Code:

(a) 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

(b) if the person fails to take such steps as are reasonable in thecircumstances to secure that the credit is cancelled—the person is takento have received the property; and

(c) subsection (7) of this section does not apply to the property.

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) it is to be assumed that section 47C of this Act had been in force at alltimes before the commencement of this section; and

(b) property that was appropriated or obtained at a time before thecommencement of this section does not become original stolen propertyunless the property was appropriated or obtained in circumstances that(apart from paragraph (a)) amounted to an offence against a law of theCommonwealth, a State or a Territory in force at that time.

Definition



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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:




c that the accused received specified property (physical element);

d that the accused’s act in (c) was intentional (fault element);

e that the specified property in (c) was stolen property (physical element);

f that the accused either knew or believed the property to be stolen (fault element);

g 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).




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COMMENTARY:

‘Receive.’ 50 This is defined in subsection 3(1) as ‘in relation to property, includeshandle, retain, remove, dispose of or realise the property’. The doctrine of recentpossession (ie that possession of recently stolen property is evidence of stealing orreceiving) 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 evidenceof the theft, for example evidence by the owner that the goods disappeared without theowner’s authority. It is not necessary to prove who stole the property. However, thecircumstances in which the accused received the property may of themselves besufficient proof that it had been stolen. It is not a rule of law that there must be otherevidence of the theft.

The fact that the accused told lies as to when the property came into the accused’spossession is not necessarily evidence that the goods were stolen. The fact that theaccused was willing to sell the property at greatly below its value provides evidence thatit is stolen property.

‘Otherwise been unlawfully obtained’. Other circumstances in which property may beunlawfully obtained include obtaining the property by way of robbery, burglary ordeception (false pretences).

‘Knowledge that the property had been stolen’ 52. This means knowledge at the time ofreceipt of the property. The circumstances in which a defendant receives property mayof themselves prove that the property was stolen and, further, may prove that theaccused knew it at the time when the accused received it. It is not a rule of law thatthere 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 offenceif, 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.

51 B. Fisse: Howard’s Criminal Law 5th ed. LBC at p. 285

52 B. Fisse: Howard’s Criminal Law 5th ed. LBC at paragraph 275


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undertaken by the Defence Force for the preservation of law and order or otherwise inaid of the civil authorities, the person:

(a) takes any property that has been left exposed or unprotected; or

(b) takes any property from the body of a person who has been killed or froma person who has been wounded, injured or captured; or

(c) takes any vehicle, equipment or stores captured from or abandoned bythe enemy.



(a) the person receives property; and

(b) the property has been taken in circumstances constituting an offenceagainst subsection (1); and

(c) the person knows of those circumstances.


(3) It is a defence to a charge under this section if the person proves that he or shetook or received the property for the service of the Commonwealth or had otherreasonable excuse for the relevant conduct.


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:



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c 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);


e that the accused either:

(i) took property that was left exposed or unprotected (physical element);

(ii) 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);


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






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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:




c that the accused received specified property (physical element);


e 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






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Division 6 — Arrest, custody and proceedings before servicetribunals

Section 49 Refusing to submit to arrest


(a) the person is ordered into arrest; and

(b) the order is lawful; and

(c) the person disobeys the order.


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


(3) It is a defence if the person proves that he or she neither knew, nor couldreasonably be expected to have known, that the other person was acting lawfully.


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:




c that the accused was ordered into arrest (physical element);


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

element);

e that the order specified in (c) was lawful (physical element);

f 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 that the accused disobeyed the order specified in (c) (physical element);

h 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:


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.


See s.23 discussion.

Section 49A Assault against arresting person


(a) the person assaults another person; and

(b) the other person:

(i) has a power of arrest over him or her under section 89 and isarresting, or attempting to arrest, him or her in the exercise of thatpower; or

(ii) is carrying out, or attempting to carry out, an order for his or herarrest under section 89; or


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(iii) is arresting, or attempting to arrest, him or her under a warrant undersection 88 or 90; or

(iv) has him or her in custody.


(2 In paragraph (1)(b), strict liability applies to the physical element ofcircumstance, that the conduct mentioned in that paragraph is lawful.


(3) It is a defence if the person proves that he or she neither knew, nor couldreasonably be expected to have known, that the other person was acting lawfully.


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:









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(fault element);

In relation to “power of arrest under DFDA s.89”:

i that:

(i) the other person had a power of arrest over the accused under DFDA s.89

and was arresting the accused under that power; or

(ii) 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




Section 50 Delaying or denying justice



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(a) a person is in custody on a charge; and

(b) the member is required by or under this Act to take action to have thecharge dealt with in accordance with this Act; and

(c) the member does not take the action.



(a) a person in custody is entitled to be released; and

(b) the member is required by or under this Act to take action to release, or toorder the release of, the person; and

(c) the member does not take the action.


(3) It is a defence to a charge under this section if the member proves that he orshe had a reasonable excuse for not taking the required action.


SPECIMEN CHARGE:

s.50(1) Delaying or denying justice by failing to take action to have charge dealtwith

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:



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c that a person was in custody on a charge (physical element);

d that the accused was required by (or under) the DFDA to have the charge dealt

with in accordance with the DFDA (physical element);

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

(fault element);

f that the accused did not take the action required in (d) (physical element);

g that the accused’s act or omission in (f) was intentional (fault element).

DEFENCE PROOFS:


reasonable excuse for not taking the required action; and




SPECIMEN CHARGE:

s.50(2) Delaying or denying justice by failing to take action to (release) (orderrelease) 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.


180


PROSECUTION PROOFS:




c that a person was in custody (physical element)

d that a person was entitled to be released from custody (physical element);

e 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 that the accused did not take the action required in (e) (physical element);


DEFENCE PROOFS:


reasonable excuse for not taking the required action; and




Section 51 Escaping from custody

A person who is a defence member or a defence civilian is guilty of an offence if theperson escapes from custody.



181


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:




c that the accused was in custody (physical element);

d that the accused either knew or was reckless as to the matter specified in (c)

(fault element);

e that the accused escaped from custody (physical element);




Section 52 Giving false evidence


(a) the person has been sworn or affirmed as a witness in proceedings beforea service tribunal; and

(b) the person makes a false statement in those proceedings; and

(c) the person knows the statement to be false or does not believe it to betrue; and

(d) the statement is material in those proceedings.


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(2) A person is not liable to be convicted of an offence under this section only onthe 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:




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);


g that the statement was false (physical element);

h that the accused knew that the statement was false (or did not believe it to be

true) (fault element);


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i that the statement was material to those proceedings (physical element);

j that the accused knew or was reckless as to the circumstance that the statement

was material to the proceedings (fault element).



Section 53 Contempt of service tribunal


(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 witnessbefore a service tribunal; and

(b) the person:

(i) fails to appear as required by the summons or order; or

(ii) fails to appear and report himself or herself from day to day and hasnot been excused or released by the tribunal from further attendance.


(2) A person who is a defence member or a defence civilian is guilty of an offence ifthe person is appearing as a witness before a service tribunal and the person:

(a) refuses or fails to take an oath or make an affirmation when lawfullyrequired to do so; or

(b) refuses or fails to answer a question that the person is lawfully required toanswer by the tribunal; or

(c) refuses or fails to produce a document that the person was required toproduce by a summons served on the person, as provided for by the rulesof procedure, or by an order.


(3) It is a defence to a charge under subsection (1) or (2) if the person proves thathe or she had a reasonable excuse for the relevant conduct.


184



(4) A person who is a defence member or a defence civilian is guilty of an offence ifthe person:

(a) insults a member of a court martial, a judge advocate, a Defence Forcemagistrate or a summary authority in or in relation to the exercise of his orher powers or functions as such a member, judge advocate, magistrate orauthority; or

(b) interrupts the proceedings of a service tribunal; or

(c) creates a disturbance or takes part in creating or continuing a disturbancein or near a place where a service tribunal is sitting; or

(d) engages in any other conduct that would, if a service tribunal were a courtof record, constitute a contempt of that court.


(5) If an offence under subsection (4) is committed by a person in relation to aservice tribunal that is a court martial or a Defence Force magistrate, duringproceedings before the tribunal, the tribunal, if it considers it expedient to do so, maythen and there order that the person be taken into custody and call on the person toshow cause why the person should not be convicted of the offence.

(6) If a service tribunal convicts a person under subsection (5), the maximumpunishment for the offence is detention for 21 days.



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:



185


b 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);

c that the accused failed to appear as required by the summons or order (physical

element);


accused in relation to any of the physical elements (a), (b) or (c) as this is an


DEFENCE PROOFS:






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:


b 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);


186


c 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);




DEFENCE PROOFS:






SPECIMEN CHARGE:

s.53(2)(a) Refusing to take an oath or make an affirmation before a servicetribunal

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:


b 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);


187


d that the accused refused or failed to take an oath or make an affirmation

(physical element);


accused in relation to any of the physical elements (a), (b), (c) or (d) as this is an


DEFENCE PROOFS:


reasonable excuse for the relevant refusal or failure; and




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:



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);


188





DEFENCE PROOFS:






SPECIMEN CHARGE:

s.53(2)(c) Refusal to produce a document required by (summons) (order) before aservice 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:



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);


189





DEFENCE PROOFS:






SPECIMEN CHARGE:

s.53(4)(a) Insulting a (member of a court martial) (judge advocate) (Defence Forcemagistrate) (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:


b that the accused insulted a person (physical element);

c that the person insulted in (c) was a member of a court martial, a judge advocate,

a Defence Force Magistrate or a summary authority;


190


d 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);






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:


b that a specified service tribunal was sitting (physical element);

c that the accused interrupted the service tribunal’s proceedings (physical

element);





191




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:



c that the accused

(i) created a disturbance; or

(ii) took part in creating; or

(iii) took part in continuing

a disturbance in or near a place where the service tribunal was sitting as

specified in (b) (physical element);


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).




192


SPECIMEN CHARGE:

s.53(4)(d) Engaging in conduct that would constitute contempt of a servicetribunal

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:




(physical element);

d that the accused’s 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);






Section 54 Unlawful release etc. of person in custody


(a) a person has been delivered into a member's custody or the member hasa duty to guard a person; and

(b) by act or omission, the member intentionally allows the person to escape.



193



(a) a person has been delivered into a member's custody or the member hasa duty to guard a person; and

(b) the member releases the person; and

(c) the member has no authority to release the person.


(3) A person who is a defence member or a defence civilian is guilty of an offence ifthe person intentionally facilitates the escape of a person from custody or a place ofconfinement.


(4) A person who is a defence member or a defence civilian is guilty of an offenceif, with intent to facilitate an escape from a place of confinement of another person, thefirst-mentioned person conveys anything into that place.


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:




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);


(fault element);


194



(physical element);

f that the accused’s act or omission in (c) was intentional (fault element);

g that the accused’s act or omission in (e) resulted in the escape of the specified

person in (c) (physical element); and

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

element).



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:




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);


(fault element);

e that the accused released the specified person in (c) (physical element);



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g that the accused had no authority to release the person (physical element); and

h that the accused either knew or was reckless as to (g) that he or she has not

authority to release the person (fault element).



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:




c that a specified person is in custody or a place of confinement as specified

(physical element);


(fault element);

e that the accused facilitated the escape of the specified person in (c) (physical

element);





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SPECIMEN CHARGE:

s.54(4) Conveying a thing into place of confinement with intent to facilitate escapeof 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:




c that a specified person was in a specified place of confinement (physical

element)


e that the accused conveyed a specified item into the place of confinement

(physical element);

f that the accused’s act or omission in (e) was intended to facilitate the escape of

the person (fault element).



Division 6A — Custodial offences

Section 54A Custodial offences

(1) A detainee who:

(a) makes any unnecessary noise;

(b) commits a nuisance;


197


(c) is idle, careless or negligent at work;

(d) without lawful authority, converses or otherwise communicates withanother person (whether or not a detainee);

(e) without lawful authority, gives any thing to, or receives any thing from,another person (whether or not a detainee);

(f) without lawful authority, has in his or her possession any thing; or

(g) 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 orfails to comply with a condition of the grant of the leave of absence is guilty of anoffence.

(2A) An offence under this section is an offence of strict liability.


(3) It is a defence if a person charged with a custodial offence proves that he or shehad a reasonable excuse for engaging in the behaviour to which the charge relates.


(4) The maximum punishment for a custodial offence is segregated confinement for10 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 effectas if the maximum punishment for an offence against subsection (1) or (2) of thissection 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.


198


PROSECUTION PROOFS:


b that the accused was a detainee (physical element);

c that the accused made a noise (physical element);

d that the noise was unnecessary (physical element);



offence of strict liability under s.54A(2A).

DEFENCE PROOFS:


reasonable excuse for engaging in the conduct; and




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:




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(physical element);

d that the accused’s act or omission in (c) was a nuisance (physical element);




DEFENCE PROOFS:






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:




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c that the accused conversed with or otherwise communicated with another person

(whether or not the other person was a detainee) (physical element);

d that the accused’s act or omission in (c) was without lawful authority (physical

element);


accused in relation to any of the physical elements (a), (b),(c) or (d) as this is an


DEFENCE PROOFS:






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:



c 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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d that the accused’s act or omission in (c) was without lawful authority (physical

element);




DEFENCE PROOFS:






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:



c that the accused had in his or her possession a specified item (physical element);

d that the accused’s possession of the specified item in (c) was without lawful

authority (physical element);


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DEFENCE PROOFS:






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:



c that the accused entered or left his or her cell as specified (physical element);

d that the accused’s act or omission (c) was without lawful authority (physical

element);





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DEFENCE PROOFS:






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:



c 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);


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:






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 offenceif, 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) the person makes or signs a service document that is false in a materialparticular; or

(b) the person makes in a service document an entry that is false in a materialparticular; or

(c) the person alters a service document so that the document is false in amaterial particular; or

(d) the person engages in conduct that results in the suppression of, thedefacing of, the making away with or the destruction of a servicedocument, or a part of a service document, that it is the person's duty topreserve or produce; or

(e) the person does not make an entry in a service document that it is theperson's duty to make so that the document is rendered false in a materialparticular.


(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:




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 that the document was false in a material particular (physical element);




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


206


figure of $150 in the Sergeant’s Mess Book as the cost of flowers for the Christmas

Cocktail Party instead of the true amount of $50.

PROSECUTION PROOFS:




c that the accused made an entry in a service document as specified (physical

element);

d that the accused’s 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 that the entry was false in a material particular (physical element);




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 Airmen’s Mess as the cost of meat

supplied by the XYZ Company to the Mess.

PROSECUTION PROOFS:



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c that the accused altered a service document as specified (physical element);

d that the accused’s act or omission in (c) was intended to make a gain for the


e that the alteration made the service document false in a material particular

(physical element);




SPECIMEN CHARGE:

s.55(1)(d) (Suppressing) (defacing) (making away with) (destroying) a servicedocument

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

Ship’s Communications Officer.

PROSECUTION PROOFS:




c the accused had a duty to preserve or produce a specified service document

(physical element);



208



(physical element);

f that the accused’s act or omission in (e) was intended to make a gain for the


g that the accused’s 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);

h that the accused either knew or was reckless as to whether the act or omission

would result in (g) (fault element).



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 Penfold’s Club Port from

ABC Wine Merchants.

PROSECUTION PROOFS:




c the accused had a duty to make an entry in a specified service document

(physical element);



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e that the accused omitted to make an entry in the specified service document

(physical element);

f that the accused’s act or omission in (e) was intended to make a gain for the


g that the accused’s act or omission in (e) resulted in the document being rendered

false in a material particular (physical element);




Section 56 False statement in relation to application for a benefit


(a) the person makes a statement, (whether orally, in a document or in anyother way); and

(b) the statement:

(i) is false or misleading; or

(ii) omits any matter or thing without which the statement is misleading;and

(c) the person knows of the matter mentioned in paragraph (b); and

(d) the statement is made in, in connection with, or in support of, anapplication for:

(i) a grant, payment or allotment of money or an allowance; or

(ii) leave of absence; or

(iii) 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 inor in connection with, the Defence Force.


(2) Subsection (1) does not apply as a result of subparagraph (1)(b)(i) if thestatement is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2). Seesubsection 13.3(3) of the Criminal Code.

(3) Subsection (1) does not apply as a result of subparagraph (1)(b)(ii) if thestatement did not omit any matter or thing without which the statement is misleading ina material particular.



(a) the person makes a statement (whether orally, in a document or in anyother way); and

(b) the statement:

(i) is false or misleading; or

(ii) omits any matter or thing without which the statement is misleading;and

(c) the person is reckless as to the matter mentioned in paragraph (b); and

(d) the statement is made in, in connection with, or in support of, anapplication for:

(i) a grant, payment or allotment of money or an allowance; or

(ii) leave of absence; or

(iii) 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 inor in connection with, the Defence Force.



211


(5) Subsection (4) does not apply as a result of subparagraph (4)(b)(i) if thestatement is not false or misleading in a material particular.


(6) Subsection (4) does not apply as a result of subparagraph (4)(b)(ii) if thestatement did not omit any matter or thing without which the statement is misleading ina material particular.



benefit includes any advantage and is not limited to property.

SPECIMEN CHARGE:

s.56(1) Knowingly making false or misleading statement in relation to applicationfor 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:




c that the accused made a statement (physical element);


e 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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f 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);

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);


i 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;

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 applicationfor 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.


213


PROSECUTION PROOFS:




c that the accused made an oral or written statement (physical element);


e 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);


i 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;


214


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.



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 theperson's appointment to or enlistment in the Defence Force:

(a) the person:

(i) is required to answer a question set out in a document required to becompleted in relation to the person's appointment or enlistment; and

(ii) with intent to deceive, makes a false answer to the question; or

(b) with intent to deceive, the person gives any false information or documentin relation to the person's appointment or enlistment; or

(c) with intent to deceive, the person does not disclose, if and when lawfullyrequired 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 DefenceForce.



(a) the member:

(i) is required to answer a question set out in a document required to becompleted in relation to the person's appointment or enlistment; and

(ii) with intent to deceive, makes a false answer to the question; or

(b) with intent to deceive, the member gives any false information ordocument in relation to the person's appointment or enlistment; or

(c) with intent to deceive, the member does not disclose, if and when lawfullyrequired to do so, particulars of any prior service in the Defence Force.


215



SPECIMEN CHARGE:

s.57(1)(a) Person giving false answer to a question in a document relating toappointment 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 that the accused either knew or was reckless as to (a) (fault element);

c that the accused was required to answer a question set out in a specified

document required to be completed in relation to the accused’s appointment (or

enlistment in) the Defence Force (physical element);


e that the accused made a false answer to the question (physical element);

f that the accused’s act or omission in (e) was intended to deceive (fault element);

g 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).


216




SPECIMEN CHARGE:

s.57(1)(b) Person giving false information or document in relation to appointmentor 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:




c that the accused gave information (or a document) in relation to the accused’s


d that the accused’s act or omission in (c) was intended to deceive (fault element);

e that the information (or document) was false (physical element);





element).


217




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:




c that the accused was lawfully required to disclose particulars of any prior service

in the Defence Force (physical element);


e that the accused did not disclose particulars of prior service in the Defence Force

(physical element);





element).


218




SPECIMEN CHARGE:

s.57(2)(a) Member giving false answer to question in a document relating toappointment 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:




c that the accused was acting in or in connection with an application for


d that the accused either knew or was reckless as to (a) (fault element);

e that the accused was required to answer a question set out in a specified

document required to be completed in relation to the accused’s appointment (or

enlistment in) the Defence Force (physical element);


g that the accused made a false answer to the question (physical element);

h that the accused’s act or omission in (g) was intended to deceive (fault element);

i that as a result of the application the accused was appointed (or enlisted) in the



219


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



SPECIMEN CHARGE:

s.57(2)(b) Member giving false information or document in relation to appointmentor enlistment

Being a defence member at .............. on ................ with intent to deceive furnished a

false certificate of birth in relation to his enlistment.

PROSECUTION PROOFS:







e that the accused gave information (or a document) in relation to the accused’s



g that the information (or document) was false (physical element);





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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:







e that the accused was lawfully required to disclose particulars of any prior service

in the Defence Force (physical element);


g that the accused did not disclose particulars of prior service in the Defence Force

(physical element);

h that the accused’s act or omission in (g) was intended to deceive (fault element);




221





Section 58 Unauthorised disclosure of information


(a) the person discloses information; and

(b) there is no lawful authority for the disclosure; and

(c) the disclosure is likely to be prejudicial to the security or defence ofAustralia.


(2) Strict liability applies to paragraph (1)(c).


(3) It is a defence if the person proves that he or she neither knew, nor couldreasonably be expected to have known, that the disclosure of the information was likelyto be prejudicial to the security or defence of Australia.


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:



222




c that the accused disclosed specified information (physical element);


e that there was no lawful authority for the disclosure in (c) (physical element);

f that the accused knew or was reckless as to (e) (fault element);

g that the disclosure was likely to be prejudicial to the security or defence of

Australia (physical element);

h 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:


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




Section 59 Dealing in or possession of narcotic goods


(a) is outside Australia; and

(b) sells, or deals or traffics in, narcotic goods; and

(c) knows the nature of the goods.


223



(2) It is a defence to a charge under subsection (1) if the person proves that he orshe had lawful authority for the conduct mentioned in paragraph (1)(b).




(b) is in possession of narcotic goods; and

(c) knows that he or she possesses those goods and knows their nature.

Maximum punishment:

(d) if the offence is committed in relation to:

(i) a substance other than cannabis; or

(ii) 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 offenceis committed in relation to a quantity of cannabis not exceeding 25 gramsin mass:

(i) in the case of a first offence—a fine of the amount of the member'spay for 14 days; or

(ii) in the case of a second or later offence—dismissal from the DefenceForce; or

(f) in any other case—a fine of $100.

(4) It is a defence to a charge under subsection (3) if the person proves that he orshe had lawful authority for possessing the narcotic goods.





224


(b) administers to himself or herself narcotic goods other than cannabis.


(6) A person who is a defence member or a defence civilian is guilty of an offence ifthe person uses cannabis, whether within or outside Australia.

Maximum punishment:

(a) if the convicted person is a member of the Defence Force:

(i) in the case of a first offence—a fine of the amount of the member'spay for 14 days; or

(ii) in the case of a second or later offence—dismissal from the DefenceForce; or

(b) in any other case—a fine of $100.


(a) is in Australia; and

(b) is in possession of a quantity of cannabis not exceeding 25 grams inmass; and

(c) knows that he or she possesses the cannabis and knows its nature.

Maximum punishment:

(d) in the case of a first offence—a fine of the amount of the member's pay for14 days; or

(e) in the case of a second or later offence—dismissal from the DefenceForce.

(8) It is a defence to a charge under subsection (7) if the member proves that he orshe had lawful authority for possessing the cannabis.



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 orcannabis plants and any mixture of parts of a cannabis plant or cannabis plants, butdoes not include cannabis resin or cannabis fibre.


225


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:




c that the accused is outside Australia (physical element);


e that the accused sold or dealt in or trafficked in goods as specified (physical

element);


g that the specified goods were narcotic goods (physical element);

h 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





226


COMMENTARY:

‘Narcotic goods’. A list of substances that comprise narcotic goods is set out in theCustoms 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 ofthis Manual. The quantity of narcotic goods that is alleged to have been sold etc is notrelevant 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:






e that the accused was in possession of goods as specified (physical element);

f that the accused knows that he or she possessed the goods specified (fault

element);

g that the specified goods were narcotic goods (physical element);

h that the accused knew the goods were narcotic goods (fault element);

DEFENCE PROOFS:




227





COMMENTARY:

‘Narcotic goods’. A list of substances that comprise narcotic goods is set out in theCustoms 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 ofthis Manual. The quantity of narcotic goods that is alleged to have been sold etc is notrelevant 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:






e that the accused administered himself or herself goods (physical element);


g that the goods were narcotic goods other than cannabis (physical element);



228




COMMENTARY:

‘Narcotic goods’. A list of substances that comprise narcotic goods is set out in theCustoms 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 ofthis Manual. The quantity of narcotic goods that is alleged to have been sold etc is notrelevant to a charge under this subsection .

SPECIMEN CHARGE:

s.59(6) Using cannabis

Being a defence member at Kapooka on ....…….... used cannabis.

PROSECUTION PROOFS:




c that the accused was either within or outside Australia (physical element);


e that the accused used a substance (physical element);


g that the substance was cannabis (physical element);

h that the accused either knew or was reckless as to the substance in (g) being

cannabis (fault element);




229


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:




c that the accused was in Australia (physical element);


e that the accused was in possession of a specified substance (physical element);

f 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:




230





COMMENTARY:

Where the quantity of cannabis in the possession of a defence member in Australiaexceeds 25 grams in mass the case must be referred to the civil authorities with a viewto prosecution in the civil courts.

Section 60 Prejudicial conduct

(1) A defence member is guilty of an offence if the member engages in conduct thatis likely to prejudice the discipline of, or bring discredit on, the Defence Force.




(3) It is a defence if the member proves that he or she had a reasonable excuse forthe relevant conduct.


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.


231


PROSECUTION PROOFS:


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

(physical element);

c that the accused’s 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


accused in relation to any of the physical elements in (a), (b) or (c) as this is an


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.



COMMENTARY:

The specific offences provided by ss.15 to 59, s.61,s. 62 and s.101QA of the Act areintended to cover most forms of misconduct by members of the Defence Force. It is notpracticable to proliferate offence provisions to provide specifically for all forms ofmisconduct that should be regarded as culpable. The intent is that the offence ofprejudicial conduct is available for other forms of misconduct that merit punishment thatare 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 theaccused may raise by way of defence under s.60(3). However, if the prosecution is readily able toestablish that the accused did not have a reasonable excuse, then it is prudent to lead that evidenceduring the prosecution case, for it may not be permissible for the prosecution to call further evidence torebut that defence if raised during the prosecution case.


232


It was the intention of the framers of the DFDA that charges should not be laid unders.60 if they could properly be laid under some other section of the Act. To encouragethis approach and to restrict the application of s.60, in practice, to minor infractions ofdiscipline, a low maximum punishment was provided. There is no specific prohibition inthe Act against laying a charge under s.60 in respect of conduct that could properly bethe subject of a charge under another section and a charge under s.60 will notnecessarily fail on that account. Charges under s.60 should not be brought againstaiders and abettors, inciters and accessories after the fact in respect of offences underthe other section.

‘Likely'. This is not defined and has its ordinary meaning in the context, in relation to apossible outcome of seeming as if it would happen or that there is a reasonableprobability that it will happen. It is not necessary for the discipline of the Defence Forceto have actually been prejudiced or for discredit to have actually been brought upon theDefence Force.

‘Defence Force'. It is sufficient if the discipline of a part of the Defence Force is likely tobe prejudiced or if discredit is likely to be brought upon a part of the Defence Force.54 Aspecified part of the Defence Force could mean the Army, Navy or Air Force or aspecified unit or ship.

‘Prejudice discipline of, or bring discredit upon’. Whether conduct is likely to prejudicethe discipline of, or bring discredit upon, the Defence Force is a matter that willultimately be judged by the Service tribunal hearing the charge.

Division 8 — Offences based on Territory offences

Section 61 Offences based on Territory offences


(a) the person engages in conduct in the Jervis Bay Territory; and

(b) engaging in that conduct is a Territory offence.


(a) the person engages in conduct in a public place outside the Jervis BayTerritory; and

54 See DFDA s.3(2).


233


(b) engaging in that conduct would be a Territory offence, if it took place in apublic place in the Jervis Bay Territory.

(3 A person who is a defence member or a defence civilian is guilty of an offenceif:

(a) the person engages in conduct outside the Jervis Bay Territory (whetheror not in a public place); and

(b) engaging in that conduct would be a Territory offence, if it took place inthe Jervis Bay Territory (whether or not in a public place).

(4) The maximum punishment for an offence against this section is:

(a) if the relevant Territory offence is punishable by a fixed punishment—thatfixed punishment; or

(b) otherwise—a punishment that is not more severe than the maximumpunishment for the relevant Territory offence.

(5) Strict liability applies to paragraphs (1)(b), (2)(b) and (3)(b).


(6) To avoid doubt, section 10 of this Act does not have the effect that Chapter 2 ofthe Criminal Code applies to the law in force in Jervis Bay, for the purpose ofdetermining 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 thissection, but not to the content of the law in force in Jervis Bay. To determine, for the purposesof this section, whether Chapter 2 of the Code applies to Jervis Bay law, it is necessary toconsult Jervis Bay law.

SPECIMEN CHARGE (1):

DFDA section 61(1) Engaging in conduct in the Jervis Bay Territory that is aTerritory offence, being the offence of act of indecency without consent, CrimesAct 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).


234


SPECIMEN CHARGE (2):

DFDA section 61(1) Engaging in conduct in the Jervis Bay Territory that is aTerritory 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 …………….. on

............................. assaulted (name of victim), thereby occasioning to him actual bodily

harm.

PROSECUTION PROOFS:


b that the accused either knew or was reckless as to as to whether he or she was a


c that the accused engaged in conduct (by doing or omitting to do an act) in the

Jervis Bay Territory (physical element);


e that the accused’s act or omission in (c) constitutes a Territory offence (physical

element);


accused in relation to (e) as this is an element of strict liability under s.61(5).



DFDA section 61(2) Engaging in conduct in a public place outside the Jervis BayTerritory that is a Territory offence being the offence of assault occasioningactual 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.


235


PROSECUTION PROOFS:




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);


e that the accused’s 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);





DFDA section 61(3) Engaging in conduct outside the Jervis Bay Territory that is aTerritory 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:




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);



236


e that the accused’s 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);





COMMENTARY:

Section 61 makes certain civil offences (ie offences under the ordinary law) triable by aService tribunal. These offences are known as ‘Territory offences’. Subsection 3(1)defines ‘Territory offence’ as:

a. an offence against a law of the Commonwealth in force in the Jervis BayTerritory other than the DFDA or DFD Regulations; or

b. an offence against the Crimes Act 1900 of the Australian Capital Territoryin its application to the Jervis Bay Territory as amended or affected byOrdinances in force in that Territory; or

c. an offence against the Police Offences Act 1930 of the Australian CapitalTerritory, in its application to the Jervis Bay Territory as amended oraffected by Ordinances in force in that Territory.

A Territory offence is triable by a Service tribunal (subject in certain cases to theconsent of the Director of Public Prosecution 55) whether or not it was committed in theJervis Bay Territory.

Framing of charges under section 61. Where it is intended to charge a person with aTerritory offence under s.61 of the DFDA, the assistance of a legal officer must beobtained.

Moreover, proceedings under the DFDA are not to be taken for the following offenceswhen committed in Australia except with the consent of the Director of PublicProsecutions:

a. treason, murder, manslaughter, bigamy or a related ancillary offence;

55 DFDA s.63.


237


b. an offence triable in the Jervis Bay Territory only with the consent of theMinister or the Director of Public Prosecutions;

c. an offence against sections 92A to 92NB (inclusive) of the Crimes Act1900 (ACT) in its application to the Jervis Bay Territory; and

d. an offence prescribed in the DFD Regulations56.

Pending the giving of consent for proceedings under the DFDA, and in accordance withPart 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 personmay be charged with the offence.57

In view of the comprehensive range of specific service offences created by the DFDA, itis probable that the need to charge offences under s.61 will be infrequent and willgenerally be restricted to certain serious offences. Some other offences of a lessserious nature may aslo be charged under this section, for example, an offence againstthe Defence Act 1903 for wearing a Service decoration or a Service uniform when notentitled to do so.

Specimen charges are set out for some of the offences which may be charged unders.61. Detailed comments on questions of proof or other matters relating to the elementsof these offences have not been included. Legal advice must be sought for s.61charges. Where it is intended to charge a person under s.61, reference should bemade to relevant criminal law publications dealing with the offence the subject of thecharge58.

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


56 DFDA s.63.

57 DFDA s.63(2).

58 The DFDA applies the Crimes Act 1900 (ACT) as it applies in the Jervis BayTerritory. Therefore, texton the NSW Crimes Act such as Watson, Blackman, Hosking: Criminal Law in New South Wales have littlerelevance to the DFDA offences and should not be used to frame charges. Michael Ward: Criminal Lawand Practice (ACT) Vols I and II may be of assistance.


238


(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 punishment—that fixed

punishment; or

(d) otherwise—a punishment that is not more severe than the maximum

punishment for the last-mentioned offence.



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:




c that the accused gave a specified command or order to a person to engage in

specified conduct (physical element);


239



e that compliance with the accused’s command or order in (c) would constitute the

commission of a service offence (physical element);


the physical element (e) as this is an element of strict liability under s.62(2).



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.


240


(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:


241


(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.


242


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);


c 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);


e that the accused has consented in writing to the examination or an authorised

officer has approved the examination under s.101QA(4) (physical element);


g that the accused has been informed by the investigating officer that refusal or

failure to submit to the examination constitutes an offence (physical element);


i that after having been informed of the matter in (g), the accused refused or failed

to submit to the examination (physical element);


243


j that the accused’s 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


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.



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.


244


PROSECUTION PROOFS:

a that the accused was in lawful custody in respect of a service offence (physical

element);


c that an investigating officer had arranged for a medical practitioner to take a

specimen from the accused (physical element);


e 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);


g that the accused has consented in writing to the examination or an authorised

officer has approved the examination (physical element);


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

k 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 accused’s refusal or failure in (k) was intentional (fault element)


245


DEFENCE PROOFS:

a the accused may raise the statutory defence under s.101QA(2A); and

b 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.



REVISED DISCIPLINE LAW MANUAL VOLUME 1 CHAPTER 5 AS AT 8 JAN 02CRIMINAL 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

Revised Discipline Law Manual Volume 1 Chapter 5 As At 8 Jan 02


2

• Justifiable risk

• Negligence

• Criminal Code definition

• Pre-Criminal Code definition

• Issues concerning Criminal Code definition of negligence

• Construction problems for certain offences involving negligence

SECTION 2: CIRCUMSTANCES IN WHICH THERE IS NO CRIMINALRESPONSIBILITY

• 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



3

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



4

• 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.



5

SECTION 1 – INTRODUCTION

Nature of DFDA proceedingsProceedings 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 lawAt 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 1995The 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 offence-

creating provisions in Commonwealth legislation. It contains all the general principles of



6

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. In

addition, DFDA s.10 adopts the Criminal Code criminal responsibility provisions and

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. Physical elements may be conduct, or a

circumstance in which conduct occurs or a result of conduct as indicated in s.4.1 of

the Criminal Code.

“4.1 Physical elements(1) A physical element of an offence may be:

(a) conduct; or

(b) a result of conduct; or

(c) a circumstance in which conduct, or a result of conduct, occurs.

(2) In this Code:

conduct means an act, an omission to perform an act or a state of affairs.

engage in conduct means:



7

(a) do an act; or

(b) 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) A fault element for a particular physical element may be intention,

knowledge, recklessness or negligence.

(2) 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 proofProsecution. 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.



8

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 offencesIn the Criminal Code’s 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. 3 There

1 See Criminal Code, s.4.1.2 See Criminal Code, s.4.1(2).3 These terms are defined in Criminal Code Part 2.2, Division 6, ss. 6.1 – 6.2.



9

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 conductConduct 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 defendant’s 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 D’s pulling of the trigger

was voluntary; that it was a product of D’s 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 “Intention” is defined in Criminal Code, s.5.2.5 “Knowledge” is defined in Criminal Code, s.5.3.6 “Recklessness” is defined in Criminal Code, s.5.4.7 “Negligence” is defined in Criminal Code, s.5.5.8 See Criminal Code, s.4.2.9 See Criminal Code, s.4.3.10 See Criminal Code, s.4.2(5).



10

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 memoryThe defendant’s 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.



11

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: intentionThere 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. Hence, the

prosecution must prove that D intended to give the certificate etc.

12 See Criminal Code, s.5.6(1).



12

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 D’s 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 defendant’s 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 defendant’s mind at the time of the

13 See Criminal Code, s.5.6(2).14 The “presumption” that a person “intends the natural consequences of his or her acts” was firmlyrejected by the High Court of Australia in Parker v R (1963) 111 CLR 610, and it is extremely improbablethat Parliament intended to alter the law as declared in that case.



13

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: knowledgeSection 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 Code’s requirements for

criminal guilt. For example, if D suspects property was stolen, but does not know or



14

believe that circumstance, D cannot be convicted of receiving that property contrary to

DFDA s. 47P.

Fault elements: recklessnessSection 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) 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.

(2) 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) having regard to the circumstances known to him or her, it is

unjustifiable to take the risk.

(3) The question whether taking a risk is unjustifiable is one of fact.

(4) 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-à-vis recklessness, it may make this

term’s 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 aphysical element that consists of a circumstance or a result, recklessness is the fault element for thatphysical element.”



15

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

Code’s 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

16 Criminal Code, s.5.6(1) provides – “If the law creating the offence does not specify a fault element for aphysical element that consists only of conduct, intention is the fault element for that physical element.”17 R v Coleman (1990) 19 NSWLR 467, 474.18 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 aperson who, without lawful justification or excuse, does an act knowing that it is probable that death orgrievous bodily harm will result, is guilty of murder if death in fact results. It is not enough that he does theact knowing that it is possible but not likely that death or grievous bodily harm might result.”



16

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 member’s 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

19 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 See e.g. DPP v Losurdo, (1998) 44 NSWLR 618.21 See Criminal Code, s.5.4(3).22 When referring to DFDA s.11 “Note 2” applies in relation to s.11(3) with the effect that the subsectionrefers to Chapter 2 of the Criminal Code and not the principles of common law as is stated in s.11(3).23 DFDA s.11(3A) provides – “In particular, subsections (1) and (2) merely provide for matters to which aservice tribunal must have regard in deciding whether a member was reckless, or negligent. They do notalter the definitions of recklessness and negligence in sections 5.4 and 5.5 of the Criminal Code.”24 DFDA s.11(3B) provides – “Subsections (1) and (2) do not limit the matters to which a service tribunalmay have regard.”



17

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 well-

grounded 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 today’s 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 Howard’s Criminal Law (5th Ed), at page 63, under the heading “Recklessness and justification”26 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 relationto that matter. The exception, exemption, excuse, qualification or justification need not accompany thedescription of the offence.



18

“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 fact’s decision on the question will be next to impossible to challenge on appeal.

27 See, for example, Howard, Criminal Law, 4th ed. (1982), at pp.54-55 and 357-359.28 Prof Glanville Williams, “Criminal Law: The General Part”, p 58 (Stevens & Sons, 1961).



19

Fault elements: negligenceCriminal 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

defendant’s 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



20

member’s 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 defendant’s 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

defendant’s 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.

29 When referrring to DFDA s.11 “Note 2” applies in relation to s.11(3) with the effect that the subsectionrefers to Chapter 2 of the Criminal Code and not the principles of common law as is stated in s.11(3).30 Criminal Code s.9.1 provides – “A person is not criminally responsible for an offence that has a physicalelement 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 beliefabout, or is ignorant of, facts; and

b. the existence of that mistaken belief or ignorance negates any fault element applying to thatphysical element.”



21

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

language which must be applied in all cases. Past court decisions on negligence

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) Has there been a great departure from the requisite standard of care; and

(2) 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



22

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 defendant’s 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 country’s 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



23

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 dutyA defence member is guilty of an offence if the member:

(a) is required by the member’s office or appointment to perform a duty; and

(b) 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

offence if:

(a) the person drives a service vehicle in any place, whether a public

place or not; and

(b) in doing so, the person engages in negligent conduct.Maximum punishment: Imprisonment for 3 months.

(2) A person who is a defence member or a defence civilian is guilty of an

offence if:


(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.”

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



24

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 Code’s 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 defendant’s 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



25

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 CRIMINALRESPONSIBILITY

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. The defence

known as “defence of superior orders’, provided for in DFDA s.14 is retained and is also

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 impairmentSection 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:



26

(a) the person did not know the nature and quality of the conduct; or

(b) 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.

IntoxicationA 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 O’Connor.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 O’Connor. 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.



27

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. The Criminal Code distinguishes between two types of

intoxication. 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 self-

induced.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 O’Connor 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 indetermining whether conduct is voluntary.”35 See Criminal Code, s.8.1.36 See Criminal Code, s.8.5.37 See Criminal Code, s.8.2(1).



28

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. Differentiating between basic intent and 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 McSherry’s 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 Crimes of Specific Intent

Manslaughter Murder

Assault and unlawful wounding Wounding with intent to prevent arrest

Unlawfully causing grevious bodily harm Rape

Unlawful use of a motor vehicle Stealing and larceny

As any particular offence may have a number of fault elements, the Criminal Code is

38 Reference to be advised.39 Reference to be advised.



29

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 Reference to be advised.41 See Criminal Code, s.8.2(3).42 See Criminal Code, s.8.2(4).43 See Criminal Code, s.8.2(5)(a).44 See Criminal Code, s.8.2(5)(b).



30

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. If intoxication is not self-induced

reference may then be had to the standard of the reasonable person intoxicated to the

same extent as the person charged with the offence.

Fault elements of specific intent. While the Criminal Code does not explicitly state

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 See Criminal Code, s.8.3.46 Reference to be advised.47 Reference to be advised.



31

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 person’s 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 See Criminal Code, s.8.4(1).49 See Criminal Code, s.8.4(2).50 See Criminal Code, s.8.4(2).51 See Criminal Code, s.8.4(3).52 See Criminal Code, s.8.4(4).



32

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

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.”

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.

DuressSection 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) A person is not criminally responsible for an offence if he or she carries

out the conduct constituting the offence under duress.

(2) A person carries out conduct under duress if and only if he or she

reasonably believes that:

(a) a threat has been made that will be carried out unless an offence is

committed; and

(b) there is no reasonable way that the threat can be rendered

ineffective; and



33

(c) the conduct is a reasonable response to the threat.

(3) 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. The explanatory

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 Yeo, “Private Defences, Duress and Necessity” (1991) 15 Crim LJ 139 at 143



34

confronting the defendant. Policy reasons would, however, insist on a

requirement that the defendant’s 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

reasonable means of rendering the threat ineffective. These two limitations are

recognised at common law and are collectively referred to in the texts as “self-induced

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 OrdersDFDA 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) was in execution of the law; or

(b) was in obedience to:

(i) a lawful order; or

(ii) 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 Citation to be advised.



35

and codifies the principles outlined in the case of Smith.55 Smith’s case was a South

African case that was followed in the later South African case of Cellier.56 The principles

in Smith’s 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 Citation to be advised.56 Citation to be advised.



36

(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.



37

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 Citation to be advised.59 Reference to be advised.60 Citation to be advised.61 Citation to be advised.



38

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 LawThe 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 See Criminal Code, s.9.3(1).63 See Criminal Code, s.9.3(2)(b).



39

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 CHARGESConsentThe 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 charactermade directly or indirectly under an Act, or in force directly or indirectly under an Act: Criminal Code,s.9.4(3).65 See Criminal Code, s.9.4(2)(c).66 Assault has not been defined in the Criminal Code, so the common law still applies to the various

assault-based offences in the DFDA.67 Consent is irrelevant in some sexual offences such as incest, indecent assault of a child etc.68 Such as theft: DFDA s.47E(1)69 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.70 Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331; Williams v Wills (1977) 74 LSJS 450



40

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 victim’s 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. O’Connor and P. Fairhall, Criminal Defences (3rd ed., Sydney:Butterworths 1996) at p. 87.72 Zecevic v Director of Public Prosecutions (Vic) (1987) 25 A Crim R 163; (1987) 61 ALJR 375; (1987) 71ALR 641; (1987) 162 CLR 64573 162 CLR at p. 66174 R v Dziduch (1990) 47 A Crim R 378 at 381, R v Kurtic (1996) 86 A Crim R 57 at p. 63



41

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) A person is not criminally responsible for an offence if he or she carries

out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if and only if he or she

believes the conduct is necessary:

(a) to defend himself or herself or another person; or

(b) to prevent or terminate the unlawful imprisonment of himself or

herself or another person; or

(c) to protect property from unlawful appropriation, destruction,

damage or interference; or

(d) to prevent criminal trespass to any land or premises; or

(e) 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

intentional infliction of death or really serious injury:

(a) to protect property; or

(b) to prevent criminal trespass; or

(c) to remove a person who is committing criminal trespass.

(4) This section does not apply if:

(a) the person is responding to lawful conduct; and

(b) he or she knew that the conduct was lawful.



42

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". This is the objective element

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.

75 D. O’Connor and P. Fairhall, Criminal Defences (3rd ed., Sydney: Butterworths 1996) at p. 181



43

"Really serious injury" was deliberately not defined. It is intended for it to be interpreted

as equivalent to grievous bodily harm. Note that serious harm is defined in the

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 R v Kurtic (1996) 85 A Crim R 57 at p. 62



44

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

77 Which is evidence that suggests as a reasonable possibility that the defendant was acting in self-defence: s.13.4(6).78 See R v Conlon (1993) 69 A Crim R 92. But the service tribunal must consider the wholecircumstances: R v Lean (1993) 66 A Crim R 396.



45

Proportionality. Proportionality is primarily determined by applying the objective

element. A great disproportion between the conduct and the threat is evidence that the

conduct was not a reasonable response. Disproportion may also cast doubt upon

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 self-

defence 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.

79 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 See R v Conlon (1993) 69 A Crim R 92.81Such as what the defendant had been told about the physical prowess or aggressive disposition of thevictim: R v Masters (1986) 24 A Crim R 6582 A delusion was held to be relevant to self-defence in R v Walsh (1991) 60 A Crim R 419 in respect of aprovision in similar terms to s.10.483 Cf. R v Kurtic (1996) 85 A Crim R 57 at p. 6484 Criminal Code, s.8.2(1) provides – “Evidence of self-induced intoxication cannot be considered indetermining whether a fault element of basic intent existed.”



46

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 defendant’s (mistaken) belief, even in

respect of offences of basic intent. The scope of s.8.4(4) is made more uncertain having

85 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 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 orbelief existed.87 [1977] AC 44388 Criminal Code, s.8.2(4) provides – “This section does not prevent evidence of self-induced intoxicationbeing taken into consideration in determining whether a person had a mistaken belief about facts if theperson had considered whether or not the facts existed.”



47

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. 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

excluded.90 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 self-

defence.

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.

89 Criminal Code, s.8.2(3) provides – “This section does not prevent evidence of self-induced intoxicationbeing taken into consideration in determining whether conduct was accidental.”90 Criminal Code, s.7.3(7) provides – “If the tribunal of fact is satisfied that a person carried out conduct asa result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as adefence.”



48

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 See Zecevic (1987) 162 CLR 64592 See R v Conlon (1993) 69 A Crim R 92 at p. 9793 Note that s.10.4(2) states "if and only if". These words were not in the original draft. This raises thequestion of whether the words “if and only if” mean that if a defendant has mixed motives self-defence isinapplicable. See the dictionary definition of “only”. Another interpretation is that the words “and only if”reinforce “if” to make it abundantly clear that para’s (2) (a) – (e) are the only circumstances in which self-defence may apply.94 Palmer [1971] AC 814 at 831-832, Zecevic at 662-663



49

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 liabilityStrict liability is defined at section 6.1 of the Criminal Code, which provides:

“6.1 Strict liability(1) If a law that creates an offence provides that the offence is an offence of

strict liability:

(a) there are no fault elements for any of the physical elements of the

offence; and

(b) the defence of mistake of fact under section 9.2 is available.

95 He Kaw Teh v The Queen (1985) 157 CLR 523; EPA v N (1992) 26 NSWLR 352 (Per Hunt CJ at CLat 354).



50

(2) If a law that creates an offence provides that strict liability applies to a

particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 is available in

relation to that physical element.

(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 leave”98 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 See Criminal Code, s. 9.2.97 See Criminal Code, s.6.2(3).98 See DFDA s.24(1).99 See DFDA s.24(2).



51

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 defendant’s 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 member’s control. For example, acts of God, road accidents and injuries not

contributed to by the member are matters not reasonably within the member’s 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. These defences have been

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

100 See DFDA s.25(2).



52

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

absolute liability:

(a) there are no fault elements for any of the physical elements of the

offence; and

(b) the defence of mistake of fact under section 9.2 is unavailable.

(2) If a law that creates an offence provides that absolute liability applies to

a particular physical element of the offence:

(a) there are no fault elements for that physical element: and

(b) the defence of mistake of fact under section 9.2 is unavailable in

relation to that physical element.

(3) 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 member’s care, in

connection with the member’s 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

101 See DFDA s.25(1)(a).



53

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 offencesChapter 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

AttemptsSection 11.1(1) of the Criminal Code provides, in part, that:

“11.1 Attempt(1) 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 See DFDA s.44(3).103 Criminal Code, s.6.2(3) continues to allow the existence of other defences even for absolute liabilityoffences104 See definitions in DFDA s.3(13) and the dictionary definition of “ancillary offences” in the CriminalCode.



54

“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 Acts must be more than preparatory, this is discussed later.106 [1970] NZLR 980



55

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) committing the offence is impossible; or

(b) the person actually committed the offence attempted.”

107 [1973] 3 All E.R 1109 at p.1115108 Haughton v Smith [1973] 3 All E.R 1109, at p. 1115



56

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 person’s 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 (1976) 16 SASR 117110 See Criminal Code, s.11.1 (6A)111 See Criminal Code, Dictionary



57

of different tests postulated to ascertain if a person’s 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 [1954] 1 WLR 250; 1 All ER 330 (CCA)113 [1965] Qd R 86114 Approving a statement by Salmond J in R v Baker115 [1965] Qd R 86 at 102.



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Complicity and common purposeSection 11.2 of the Criminal Code provides that:

“11.2 Complicity and common purposeA 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 principle’s 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 R v Giorgi and Romeo 7 A Crim R 305.117 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 R v Baker (1909) 28 NZLR 536.119 R v Calhaem [1985] QB 808.120 A-G’s Reference No 1 of 1975 [1975] QB 773 at 779.121 See Criminal Code, s.11.2(2).



60

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 See Criminal Code, s.11.2(4)123 Criminal Law Officers Committee of the Standing Committee of Attorneys-General Final ReportDecember 1992 “Chapter 2 General Principles of Criminal Responsibility.”124 Other than in cases where the defendant is instigating the commission of a crime.



61

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 See Criminal Code, s.11.1(4)(b)126 See Criminal Code, s.11.1(3A).127 See Criminal Code, s.11.2(6)128 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 AgencySection 11.3 of the Criminal Code provides:

“11.3 Innocent agencyA person who:

(a) has, in relation to each physical element of an offence, a fault element

applicable to that physical element; and

(b) 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 procurer’s 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 See the definition of “procure” under the heading Complicity and Common Purpose130 Because he or she lacks the relevant knowledge or intention to commit he crime.131 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.

IncitementSub-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 In many cases urging and counselling in s.11.2(1) overlap.133 See Criminal Code, s.11.4(2)134 See Criminal Code, s.11.4(4A)



64

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 factDFDA 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 See The Dictionary in the Criminal Code definition of “special liability provision”.136 See Criminal Code, s.11.4(5)(a)137 See Criminal Code, s.11.4(5)(d)138 See Criminal Code, s.11.4(5)(e)



65

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 principal’s 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 R v Levy [1972] 1 KB 158; 7 Cr App R 61140 R v Williamson [1972] 2 NSWLR 281141 R v Phelan [1964] Crim LR 468142 R v Tevendale [1955] VR 95143 Note also section 358AG of the Crimes Act 1900, creating an offence of harbouring, maintaining oremploying another person, knowing the latter to have escaped from lawful custody or detention in respectof a law of the Territory, a State or another Territory.144 R v Kirkby (1988) 105 A Crim R. A certificate of conviction will be prima facie evidence that the offencewas committed.145 R v Welsh [1999] 2 VR 62; 105 A Crim R 448



66

Accordingly, the prosecution must call the service police member who investigated the

principal’s 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.

ConspiracyConspiracy 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 R v White (1977) 16 SASR 571 at 573147 See Criminal Code, s.11.5(2)148 See Criminal Code, s.11.5(3)149 See Criminal Code, s.11.5(4)



67

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 at7.151 Woss v Jackson (1983) 11 FCR 243 (FCA) per Toohey J at 250152 See Criminal Code, s.11.5(5)153 See Criminal Code, s.11.5(7A)



68

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] VR299.155 Criminal Code, s.11.5 (8)156 R v Mok (1987) 27 A Crim R 438, per Hunt J at 441

ADFP 201 VOLUME 1

CHAPTER 6

THE LAW OF EVIDENCE

SECTION 1 - INTRODUCTION

The Nature of Evidence1

6.1 The law of evidence consists of the rules and principles which govern proof of the facts inissue at a trial. The `facts in issue' are those which the prosecutor or accused must prove in order tobe successful. What the facts in issue are in a given case is determined first by substantive rules oflaw, secondly by the charge and plea and, thirdly, by the manner in which the case is conducted. Thepurpose of evidence led by the prosecution is to establish to the required standard of proof theelements of the offence.

6.2 The first part of the rules of evidence is concerned with relevance, namely, whether theevidentiary material could rationally affect the assessment of the probability of the existence a fact inissue. 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 theadmissibility of evidence, for not every piece of relevant evidence is necessarily admissible. Underthese rules, evidence may be excluded because it is untrustworthy (eg. hearsay), or might operateunfairly 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 casesthere are rules as to the quantity of evidence required (eg. corroboration in perjury and similarprosecutions). Evidence may also be excluded for reasons of public policy (eg. improperly or illegallyobtained evidence).

Evidence before Service Tribunals

6.4 Under the Defence Force Discipline Act 1985 (DFDA) s.146(1), the rules of evidence in forcein the Jervis Bay Territory apply in relation to proceedings before a Service tribunal as if the tribunalwere a court of the Jervis Bay Territory and the proceedings were criminal proceedings in theTerritory.

6.5 Those rules of evidence are the rules of evidence that apply in proceedings before a court ofthe Australian Capital Territory2.

6.6 Since 18 April 1995, the Evidence Act 1995 (Evidence Act) has applied in relation to allproceedings in a court of the Australian Capital Territory3.

6.7 The Evidence Act is not the only source of evidence law which applies in ACT courtproceedings and, hence, in proceedings before a Service tribunal. The Act is stated not to affect theoperation of particular laws4. Also, while, subject to those other laws, the Act is a comprehensive

1 See Waight and Williams, Evidence Commentary and Materials, 4th edition, p1.

2 See Jervis Bay Territory Acceptance Act 1975, ss. 4A and 4D.

3 Evidence Act s.4(1).

4 See Evidence Act ss. 8 and 9, and paragraph 6.8 below.


statement of the law on the admissibility of evidence5, it does not deal with every matter that may beregarded as a matter of evidence law6.

6.8 The Evidence Act provides for a hierarchy of laws that apply in ACT court proceedings, andwhich 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 theEvidence Regulations (Cth), other Commonwealth Acts (except sections 68, 79 80and 80A of the Judiciary Act 1903), the Corporations Law and the ASC Law, otherACT Acts, ACT Ordinances and any Imperial Act or State Act in force in the ACT andACT or Commonwealth regulations in force on 18 April 1995 (but only for so longthereafter as they are not amended)

PREVAIL OVER

b. the Evidence Act

PREVAILS OVER

c. to the extent of any inconsistency, provisions of the ACT Evidence Act that are not soprescribed, sections 68, 79 80 and 80A of the Judiciary Act 1903 (including thecommon law applied by those provisions), ACT or Commonwealth regulation made oramended since 18 April 1995, rules and any other instruments of a legislativecharacter.

6.9 Thus, for example, in the event of any inconsistency between a provision of Part XA of theACT Evidence Act7, prescribed by r.4 of the Evidence Regulations, and the Evidence Act, theprovisions of Part XA of the ACT Evidence Act prevail. Further, nearly all Commonwealth Acts (forexample, any provision of the DFDA) prevails, in the event of any inconsistency, over the EvidenceAct.

6.10 In a trial by court martial, the judge advocate must determine any question of admissibility ofevidence. Any such ruling is binding on the court martial8. In a summary trial of a Service offence, theofficer trying the offence must determine any question of admissibility of evidence. Where he isuncertain whether the evidence should be admitted, he should adjourn the case and seek the adviceof 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 asfollows:

a. what must be proved;

b. by which side proof must be given (burden of proof);

c. to what standard proof must be given (standard of proof);

d. who may give evidence (competence and compellability of witnesses);

5 And on some other areas, eg. the competence and compellability of persons as witnesses inproceedings: see Evidence Act s.12.

6 In the absence of any applicable statutory provision, the common law will apply in relation to thosematters.

7 Other than ss. 76F(1), (3) and 76G(4) of that Act: see r.4(c) of the Evidence Regulations.

8 DFDA s.134(1) and (5).


e. the form in which evidence may be given;

f. matters on which evidence is not required: formal admissions, judicial notice andpresumptions;

g. what questions need not be answered and what documents need not be produced(privilege of witnesses);

h. the principal rule concerning the admissibility of evidence – the relevance rule;

i. the hearsay rule and exceptions;

j. the admissibility of opinions as evidence;

k. character of the accused, character of other witnesses and the character of the victim;

l. identification evidence;

m. improperly or illegally obtained evidence;

n. discretionary exclusion of evidence;

o. the examination of witnesses; and

p. 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 uponthe issue of his guilt must be proved by the prosecution. Allegations which are not essential toconstitute the offence and which may be omitted without affecting the validity of the charge do notrequire 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 theyare not denied by a plea of not guilty or are not formally admitted under statutoryprovisions);9 and

b. 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.

6.14 Except where the burden of proof is on the accused10 or the accused makes a special plea11

he or she is not bound to adduce any evidence12. He may seek simply to repudiate the prosecutioncase, by cross-examination of prosecution witnesses, by criticism of the weight of evidence and bysubmissions of law as to its validity.

9 eg. a formal admission under s.67 of the ACT Evidence Act as substituted by Schedule 1 of the DFDRegulations. Also see paragraph 6.84.

10 See under burden of proof at paragraph 6.25.

11 eg. a previous acquittal or conviction; see DFDA s.144.

12 See Noor Mohammed v R [1949] A.C. 182 at 191.


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 'notguilty' in the proceeding13

.

6.16 In proving its case, the prosecution must prove the commission of the offence, including anyrequisite 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 accusedperson. Where a particular intent is of the essence of the offence that intent must be proved, and proofof a different intent will not suffice.14

Proof of Identity

6.18 After having proved the commission of the offence, the prosecution must prove that theaccused is the person who committed it. It may choose to do so by direct evidence (eg. oral testimonyby someone who saw the accused commit the offence) or by the drawing of inferences from otherevidence (eg. oral testimony by a person or persons linking the accused in some way with the place atwhich the offence was committed at the relevant time, from which it is possible, in some cases withother 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 expertopinion evidence (eg. opinion evidence may be given by a person who is an expert in identification bymeans of fingerprints comparing the characteristics of fingerprints observed at the place at which theoffence was committed with the fingerprints of the accused).

6.20 Special rules, however, exist relating to the admissibility of visual identification evidencerelating to an accused adduced by the prosecution (see paragraphs 6.280-6.289).

BURDEN OF PROOF—BY 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 mustprove the accused's guilt beyond reasonable doubt.15

6.22 If, when a Service tribunal has heard and considered the totality of the evidence, it is notsatisfied beyond reasonable doubt as to the guilt of the accused he is entitled to be acquitted, for theprosecution 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 theverdict 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 whichthe Service tribunal could find beyond reasonable doubt the accused guilty of the offence with whichhe or she has been charged, the charge should be withdrawn from the tribunal which should bedirected to return a verdict of not guilty.

13 The relevance rule, the principal rule concerning the admissibility of evidence, is discussed atparagraphs 6.133 et seq.

14 See R v Hildebrandt [1963] 81 WN (Pt 1) (NSW) 143.

15 DFDA s.12(1); see also Evidence Act s.141(1). The meaning of ‘beyond reasonable doubt’ isdiscussed at paragraph 6.32.


Burden of Proof in Relation to Unsoundness of Mind and Diminished Responsibility and otherDefences

6.25 Under DFDA s.12(3), the burden of proving unsoundness of mind or diminishedresponsibility is on the defence where it raises either issues. Under that provision, the defence alsohas the burden of proving any defences which are set out in the relevant statutory provision relating tothe 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 theprosecution and is discharged by proof on the balance of probabilities16 .

6.27 In trials by court martial the question of insanity is determined by majority vote. In the eventof equality of votes on the question whether the accused was suffering from such unsoundness ofmind as not to be responsible for his criminal acts, the court martial must find that the accused wassuffering 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 affordingjustification or excuse such as consent, accident, self-defence,17 duress, insanity, automatism ordrunkenness. So also if provocation is raised as an issue in a trial for murder18 or if an accused putsforward an alibi as an answer to a charge.19

6.29 Where these issues are raised, the burden remains on the prosecution to prove beyondreasonable 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 guiltof the accused beyond reasonable doubt. However, where the accused raises an affirmative defencesuch 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 greaterparticularity 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 ‘proofbeyond reasonable doubt’, but the High Court of Australia has expressed strong disapproval of theirefforts and of the efforts of Australian courts who have made similar attempts. In Green v R20 BarwickC.J. said:

‘A reasonable doubt is a doubt which the particular jury entertained in the circumstances. Jurymenthemselves set the standard of what is reasonable in the circumstances. It is that ability which isattributed to them which is one of the virtues of our mode of trial: to their task of deciding facts theybring to bear their experience and judgement.’

16 DFDA s.12(2); see also Evidence Act s.141(2).

17 See Plomp v R [1963] 110 CLR 234.

18 R v Ryan [1974] 2 NSWLR; Johnson v R (1976) 136 CLR 619.

19 R v Wood [1967) 52 Cr. App. Rep. 74 C.A.

20 (1974) 126 CLR 28.


6.33 Because attempts to explain the term to juries (and to courts martial) have met with judicialdisapproval, it is probably safe to say only that the words must be given their plain English meaning inthe circumstances of the particular case.

6.34 It is also true to say that this standard of proof imposes a heavy onus on the prosecutionwhich if not discharged will result in the acquittal of the accused. The presumption that an accused isinnocent of a charge applies in every case and can be rebutted only where the prosecution has provedits 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 accusedwhen he bears the burden of proof.

6.36 However, the phrase ‘balance of probabilities’ does have its dangers. It may suggest that tosatisfy the standard one need only introduce enough evidence to disturb a balanced set of scales. Butin fact party A gives a little evidence and party B none, the balance may not necessarily be tipped inA's favour. Party A's evidence may be considered, in the light of other evidence, improbable; andfailure 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 evidencebut the probabilities arising from that evidence and all the circumstances of the case’.21

Standard of Proof for Evidentiary Determinations

6.38 The standard of proof for findings of fact necessary for deciding whether evidence should beadmitted or not admitted in a proceeding, and for deciding any other question arising under theEvidence 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 findthat the facts necessary for deciding:

(a) a question whether evidence should be admitted or not admitted, whether in theexercise of a discretion or not; or

(b) 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 accountinclude:

(a) the importance of the evidence in the proceeding; and

(b) 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 hasbeen proved on the balance of probabilities. In determining whether it is so satisfied, the tribunal musttake into account 'the importance of the evidence in the proceeding' and 'the gravity of the mattersalleged' in relation to the evidentiary determination.

21 See Heydon, Evidence Cases and Materials, 2nd edition, p 34.


6.40 This 'variable' standard of proof enables a flexible standard of proof to apply so that in anappropriate case - for example, when it is alleged that the making of an admission has beeninfluenced by a threat of violence - a higher standard of proof might apply than in relation to anevidentiary determination on some other issue in the proceeding.

6.41 The evidentiary standard, however, in Evidence Act s.142 applies 'except as otherwiseprovided by the Act'. Some provisions in the Act provide their own evidentiary standard in relation to afinding of fact necessary for determining the admissibility of evidence.22

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 orshe can be obliged to give evidence. Under Evidence Act s.12, the general rule is that, except asotherwise provided by the Act, every person is a competent and compellable witness. The exceptionsto the general rule are discussed at paragraphs 6.44 to 6.58. Further, in a strictly limited number ofsituations, a witness who is both competent and compellable may refuse to answer certain questionsrelying 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 awitness before a Service tribunal may be charged with an offence under s.53(1) of the DFDA or s.86of 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 psychologicallyunable to give evidence, to the general rule that every person is a competent and compellablewitness. The exceptions is ss.13(1) and (3) may apply to some children and persons with anintellectual disability.

6.45 Under the Evidence Act s.13(1), a person is not competent to give sworn evidence if he orshe is incapable of understanding that, in giving evidence, he or she is under an obligation to givetruthful evidence. Such a person may, however, be competent to give unsworn evidence (seeparagraph 6.25 to 6.26).

6.46 Under the Evidence Act s.13(3), a person is not competent to give either sworn or unswornevidence about a fact if he or she is incapable of giving a rational reply to a question about the fact. Ayoung child may, for example, be not competent to give evidence about a fact about which he or shecan 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 factualquestion.23

6.47 A person who is not competent to give sworn evidence under the Evidence Act s.13(1) maybe competent to give unsworn evidence in certain situations. Under the Evidence Act s.13(2) such a

22Examples include:

Evidence Act s.57, which enables a court to, among other things, find evidence relevant if itsrelevanceepends upon the court making a finding and it is reasonably open to make that finding (seeparagraph 6.141); and

Evidence Act s.87, which enables a court to admit a representation of a person as an admission ofa party if it is reasonably open to find that the representation was made in one of a number of statedcircumstances. (see paragraphs 6.176-6.177).

In the case of each of these provisions, the Service tribunal must nevertheless determine in the courseof the proceeding whether or not to accept evidence admitted under the lower 'reasonably open to find'standard.

23 See paras [13.4] to [13.6] of the extract from Evidence Act 1995 (with commentary) reproduced at page9 of Volume 2 Part 5 of the Discipline Law Manual.


person may be competent to give unsworn evidence if the Service tribunal is satisfied the personunderstands the difference between the truth and a lie, the tribunal tells the person it is important totell the truth and the person indicates, by responding appropriately when asked, that he or she will nottell lies in proceedings.

6.48 Competence to give either sworn or unsworn evidence is presumed, until the contrary isproved.24

Physical Incompetence (Persons with a Physical Disability)

6.49 Evidence Act ss.13(4) and 14 provide exceptions, for a person who is physicallyincompetent, to the general rule that every person is a competent and compellable witness. Unders.13(4) a person is not competent to give evidence about a fact if he or she is incapable of hearing orunderstanding, or of communicating a reply to, a question about the fact and the incapacity cannot beovercome. Under s.14 if the incapacity can be overcome, but only with substantial cost or delay, theperson is not compellable to give evidence on a particular matter where adequate evidence has beenor 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 aService 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 inproceedings before a Service tribunal unless he or she is being tried separately from the accused26.An 'associated defendant' is a person who is being prosecuted for an offence that arose in relation tothe same events as those in relation to which the offence for which the accused in the proceedingbefore the Service tribunal is being prosecuted arose, or relates to, or is connected with, thatoffence.27 The Service tribunal must satisfy itself that an 'associated defendant', who is called as awitness in his or her joint trial with the accused before a Service tribunal, is aware that he or she is notcompellable to give evidence for or against the accused.28

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 forthe prosecution, the spouse, de facto spouse, a parent or child of the accused to object to givingevidence 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 accusedhas been charged under the DFDA with certain offences relating to children and domestic evidenceoffences: an offence against a provision of Part III or IIIA of the (ACT) Crimes Act 1900 (being anoffence against a child under the age of 16 years), an offence against sections 133, 134, 135, 139 or140 of the (ACT) Children Services Act 1986 or an offence that is either a domestic violence offence



26 Evidence Act s.13(3)

27 A co-accused in a joint trial, or an accomplice being tried separately from the accused, is each an'associated defendant'.



within the meaning of the (ACT) Domestic Violence Act 1986 or an offence under section 27 of thatAct.29

6.55 A Service tribunal must uphold an objection by a person who is a spouse etc of the accusedto 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 herrelationship with the accused if the person gives evidence; and

b. the nature and extent of the harm outweighs the desirability of the evidence beinggiven.

6.56 A person who is a spouse etc of the accused can only object before giving evidence or assoon as practicable after he or she becomes aware of his or her right to object.30 The Service tribunalmust satisfy itself that a person who appears to have a right to object under s.18 is aware of the effectof s.18 as it may apply to him or her.31

Other Persons

6.57 None of the person or persons constituting a Service tribunal is competent to give evidencein a proceeding before the tribunal.32

6.58 In the unlikely event that a member of a House of an Australian Parliament is called as awitness before a Service tribunal, the member is not compellable if attending to give evidence wouldprevent his or her attendance at a sitting of that House, a joint sitting of that Parliament or a meeting ofa committee of that House or that Parliament of which he or she is a member.33 Also, none of theSovereign, the Governor-General, a State Governor, an Administrator of a Territory or a foreignsovereign or Head of State of a foreign country is compellable to give evidence before a Servicetribunal34, nor is a person who is or was a judge in an earlier proceeding to give evidence about thatproceeding, unless the tribunal gives leave35.

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 directevidence or circumstantial evidence. The means by which such evidence is given may be one or moreof the following: oral evidence, documentary evidence or real evidence. Each of these terms isexplained below.

Direct Evidence

6.60 Direct evidence is an assertion made by a witness in court offered as proof of the truth of anyfact asserted by him, including his own mental or physical state at a given time. For example, if in thehearing 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.




33 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).




because it is an attestation of two facts in issue, perceived by the witness, ie that the accused was thedriver 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, andit is not often that every fact in issue was perceived, either by a witness, or else by the maker of astatement 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’. Suchevidence 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 (sometimescalled the ‘principal fact’). A typical instance is afforded by the statement of a witness at a trial formurder that he saw the accused carrying a bloodstained knife at the door of the house in which thedeceased was found mortally wounded.36

6.64 Circumstantial evidence is receivable in criminal as well as in civil cases. Indeed, thenecessity of admitting such evidence is more obvious in criminal case, where the possibility of provingthe matter charged by direct and positive testimony of eye-witnesses or by conclusive documents ismuch more rare than in civil cases. Where such evidence is not available, the Service tribunal ispermitted to infer from the facts proved other facts necessary to complete the elements of guilt or toestablish innocence.

Oral Evidence

6.65 Oral evidence is that given by word of mouth in the witness box. It is evidence of a matterperceived by the witness with one of his five senses. Oral evidence may be divided into assertions offact or of hearsay and may be given as direct evidence or circumstantial evidence. Direct evidencehas 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 Servicetribunal, a document is any record of information, and includes:37

a. anything on which there is writing;

b. anything on which there are marks, figures, symbols or perforations having a meaningfor persons qualified to interpret them;

c. anything from which sounds, images or writings can be reproduced with or without theaid of anything else; or

d. a map, plan, drawing or photograph.

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 etseq.); and

b. it must be shown to be relevant because it has been duly executed or adopted orotherwise connected with a particular person.

36 Cross on Evidence, 4th Australian edition, paragraph 1100.

37 Evidence Act Dictionary Part 1, definition of 'document'.


Additionally, like all other evidence, the contents of the document must be otherwise relevant andmust 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 formallyadmitted. The normal procedure is for an appropriate witness to be called and for either theprosecution or the defence to seek to have the documents admitted into evidence through thetestimony of that witness.

6.69 When the prosecution wishes to tender a Service police record of interview containing anadmission made by an accused to the Service police then the record of interview must have beensigned by the accused.38 The normal procedure to formally admit the record of interview into evidenceis to call one of the Service police officers who conducted the interview as a prosecution witness totestify as to how the record of interview was compiled, that he or she saw the accused sign the recordof interview (if that is the case) and, subject to any objections as to admissibility by the defence, thedocument can then be admitted into evidence. In the absence of an order by the tribunal made withthe consent of the defence dispensing with application of any one or more relevant provisions of theEvidence Act to evidence of the record of interview39, it is not acceptable for the prosecution to simplytender 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 bea copy of a general order is evidence of that order unless the contrary is proved.40 The term 'generalorder' includes Defence Instructions, and formation, standing and routine orders.41

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 bytendering:

a. the original document42;

b. a purported copy of the document purportedly produced by a device (for example, aphotocopier, fax machine or a word processor) that reproduces the contents ofdocuments43;

c. if the contents of the document is a record of words capable of being reproduced assound (for example, a tape-recording) or in a code (for example, shorthand notes), apurported transcript of the words44;

d. if the document is an article or thing on or in which information is stored in such a waythat it cannot be used by the tribunal unless a device is used to retrieve, produce orcollate it, a document purportedly produced by the device (for example, computer


39 The consent of the accused is ineffective unless the accused has been advised to consent by his orher lawyer or the tribunal is satisfied that the accused understands the consequences of giving theconsent: see Evidence Act s.190(2).

40 Reg. 27 of the DFD Regulations.

41 DFDA s.3(1).

42 Evidence Act s.48(1) (introductory words).

43 Evidence Act s.48(1)(b).

44 Evidence Act s.48(1)(c).


output of information on a computer disk or tape, a document produced by an opticaldisk reader of information recorded on an optical disk)45;

e. a business record that is a purported copy of, extract from or summary of thedocument, or a purported copy of such an extract or summary46;

f. if the document is a public document within the meaning of the Evidence Act47, apurported copy of the document purportedly printed by the Government Printer or therelevant government or official printer, by authority of the relevant government oradministration concerned or by authority of an Australian Parliament or a House or acommittee of such a Parliament48;

g. if the document is not available to the party49 or the existence or contents of thedocument are not in issue in the proceeding before the tribunal, a copy, extract from orsummary of the document or by adducing oral evidence of its contents50.

6.72 A party may also adduce evidence of the contents of a document by adducing evidence ofan admission about the contents of the document, although that evidence may only be used in respectof the case of the adducing party and the party who made the admission51.

6.73 A notice requirement applies where the party intends to adduce evidence of the contents of adocument that is overseas by tendering a copy document, transcript, a document produced by adevice, a business record or an officially printed document: a party can only do so if it serves on eachother party to the tribunal proceeding a copy of the document it intends to tender in the proceeding notless than 28 days beforehand52.

6.74 A party against whom documentary evidence has been adduced may make certain requeststo the tendering party to produce documents, be permitted to examine and test documents and torequire persons involved in the production, maintenance or control of documents to be called aswitnesses where its authenticity, identity or admissibility is at issue53.

6.75 A party may apply to a Service tribunal for a direction that it be permitted to adduce evidenceof the contents of 2 or more documents in the form of a summary54. A tribunal may only make such adirection if it is satisfied it would not be possible to conveniently examine the evidence because of thevolume or complexity of the documents and the party has served on each other party a copy of thesummary disclosing the name and address of the person who prepared it and given each other party areasonable opportunity to examine or copy the documents in question.

45 Evidence s.48(1)(d).

46 Evidence Act s.48(1)(e).

47 Evidence Act Dictionary Part 1, definition of 'public document'.

48 Evidence Act s.48(1)(f).

49 Evidence Act Dictionary Part 2, clause 5.


51 Evidence Act ss. 48(1)(a) and 48(3).


53 See Evidence Act Part 4.6 Division 1 (sections 166 to 169) and paragraphs [166.1] to [169.3] of theEvidence Act 1995 (plus commentary) reproduced at pages 89 to 92 of Volume 2 Part 5 of theDiscipline Law Manual.



Real Evidence

6.76 Real evidence is the evidence afforded by the production of physical objects (eg. the murderweapon) for inspection or other examination by the court.

6.77 The connection between such objects and facts in issue in a proceeding has to beestablished by other evidence (eg. a witness testifying where and when the murder weapon wasfound55).

6.78 A document is not usually classified as real evidence. Usually it is the contents of adocument that is relevant. However, in certain circumstances it may be regarded as real evidence. Forexample, in a charge of stealing a document, the document is the material object stolen and wouldtherefore be ‘real evidence’.

6.79 Real evidence may involve the question of ‘views’. The purpose of a view is to enable thecourt to examine an object which could not conveniently be brought into a court room. For example, ina case involving the alleged hazarding of a ship, it may be desirable that the tribunal have a view ofthe bridge of the ship of a similar class. The tribunal may draw any reasonable inference from what itobserves on the view56.

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,the nature of the act and the existence of any necessary knowledge or intent’.57

6.81 In the light of this statement it might be thought that everything which is relevant to a fact inissue in a criminal trial must be proved by evidence and that the court cannot be assumed to haveknowledge 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 whichevidence is not required.

6.83 These categories include ‘formal admissions’, ‘fact agreements’ and ‘judicial notice’, whichwill be briefly discussed in the succeeding paragraphs. It is also appropriate to discuss presumptionsin 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 Regulationsprovides:

‘Admission by accused person

67. In proceedings before a service tribunal, if the person charged with an offence makes anadmission of a fact or other matter the service tribunal may accept the admission as sufficientevidence of that fact or other matter without further proof unless the tribunal is satisfied that it wouldbe unfair to the person to accept the admission.’

6.85 This provision, which will mainly concern uncontroversial matters, is designed to expediteproceedings, thus enabling the tribunal to decide a case on limited issues of fact and saving time andexpense.

55 Ligertwood, Australian Evidence, 2nd edition, paragraph 7.13.

56 Evidence Act s.54

57 Per Lord Goddard C.J. in R v Sims (1946) K.B. 531, 539.


6.86 At a court martial it is desirable that the content of the proposed admission be discussed withthe judge advocate in the absence of the members of the court. The judge advocate should thendecide whether or not it would be unfair to the accused person to accept the admission. To ensureaccuracy in complicated matters the proposed admission may be reduced to writing and signed by theprosecutor, defending officer and the accused.

6.87 As to the effect of making formal admissions in relation to a comparable provision (s.404 ofthe 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 thepurposes of the proceeding, to be disputed.

(2) In a proceeding:

(a) evidence is not required to prove the existence of an agreed fact; and

(b) 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) is stated in an agreement in writing signed by the parties or by lawyersrepresenting the parties and adduced in evidence in the proceeding; or

(b) with the leave of the court, is stated by a party before the court with theagreement of all the other parties.’

6.89 Section 191 is also designed to expedite a proceeding, by limiting issues of fact and savingtime and expense. It enables a party to agree not to dispute a fact in a proceeding without making anadmission 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 thetribunal gives leave.

Judicial Notice

6.91 Judicial notice means the acceptance by a fact-finding tribunal (eg. a court martial) of thetruth of a fact without requiring proof of that fact.

6.92 Judicial notice is taken of Commonwealth, State and Territory law, including somesubordinate 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 cominginto operation of Commonwealth, State and Territory Acts; Territory Ordinances; Imperial Acts in forcein Australia; Commonwealth, State or Territory regulations, rules or by-laws; Proclamations or ordersof 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 governmentgazette.


6.94 Evidence Act s.144 provides that proof is not required about knowledge that is notreasonably open to question and is either:

a. common knowledge generally or in the locality in which the proceeding is being held;or

b. capable of verification by reference to a document the authority of which cannotreasonably be questioned.

6.95 Examples of knowledge that is not reasonably open to question that is common knowledgegenerally would be the current Prime Minister of Australia, that hostilities in World War I ended uponthe 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 heldwill include prominent landmarks in the locality (eg. the locality of the Opera House, the HarbourBridge, 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 verificationby reference to a document the authority of which cannot reasonably be questioned will includeknowledge about times of sunset or sunrise or weather conditions at a particular place at a particulartime (capable of verification from meteorological documents), or knowledge about the location of aparticular landmark (capable of verification from certain topographic or oceanographic maps).

6.97 The person or persons constituting the Service tribunal may require knowledge about whichproof is not required in any way they think fit, but must give each party to the proceeding before thetribunal such opportunity to make submissions and to refer to relevant information about the acquiringand taking into account of such knowledge as is necessary to ensure that the party is not unfairlyprejudiced58.

6.98 There are, also, occasions when statutes require courts to take judicial notice of facts. Forexample, by virtue of DFDA s.147, a Service tribunal may take judicial notice of ‘all matters within thegeneral Service knowledge of the tribunal or of its members’. Thus, evidence need not be given as tothe relative ranks of officers, as to the general duties, authorities and obligations of different membersof the Defence Force or generally as to any matter which an officer may reasonably be expected toknow.

Presumptions

6.99 Evidence may not be required where on proof of one fact the existence of another fact canbe presumed.

6.100 ‘Conclusive presumptions’, most commonly created by statute59, are irrefutable.

6.101 A rebuttable presumption of law is one which requires a court to find that the presumed factexists unless sufficient evidence to the contrary is adduced. For example, an accused is presumed tobe sane unless he adduces evidence and satisfies the court by proof on the balance of probabilitiesthat 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 factA the court must find fact B to be proved unless evidence to the contrary is adduced. For example, inrelation to a charge of stealing, the common law presumes that recent possession of property isevidence 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).

59 eg. s.27 of the (ACT) Children's Services Act 1986 presumes a child who has not attained the age of 8years for all purposes to be incapable of committing an offence (on proof that a child is, say, 7 yearsold, it is presumed the child is incapable of committing an offence).


stolen60. If an accused fails to give an explanation as to how he came by the goods the court mayconvict him of stealing or receiving.61

6.103 Presumptions of fact arising under statute may also facilitate the proof of particular facts byparties in proceedings. So, Evidence Act s.150(3) presumes, unless the contrary is proved, that adocument purportedly signed by the holder of an office under an Australian or foreign law in his or herofficial capacity was signed in that capacity by the office holder holding the relevant office when thedocument was signed.

6.104 Most presumptions apply 'unless the contrary is proved'. In other words, they must berebutted by proof to the contrary (eg. the presumption under Evidence Act s.150(3) would be rebuttedby 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 berebutted but may be displaced quite easily: an example of such a presumption is one that is able to bedisplaced 'unless evidence sufficient to raise doubt about the presumption is adduced'62. Such apresumption does need to be rebutted, but can be displaced by credible evidence that is notconsistent with the matter that would (otherwise) be presumed. If the presumption is displaced, theService tribunal will make findings of fact relevant to the matter solely on the basis of the probativevalue 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 awitness, 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 inissue, must not be required to give particular evidence if he or she objects that the evidence may tendto 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 penaltyarising under foreign law, the Service tribunal may require the witness to give the particular evidence ifthe interests of justice require that he or she do so. In such a case, the tribunal must cause thewitness 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 arereasonable grounds for the objection, the tribunal must give the witness the option not to give theparticular evidence, or to give the evidence and to receive a certificate. If the witness chooses to givethe evidence, the tribunal must cause the witness to be given such a certificate in respect of theevidence (see paragraph 6.111).

6.110 The tribunal must also cause the witness to be given such a certificate where the witnessgives the particular evidence after his or her objection has been overridden and, after the evidencehas 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 thecertificate has been given, and evidence of any information or document or thing obtained as a director indirect consequence of the witness having given evidence, cannot be used against the witness in

60 Trainer v The King (1906) 4 CLR 126.

61 R v Bellamy (1981) 3 A. Crim R. 432.

62 An example of such a presumption includes Evidence Act s.160(1) which presumes, unless evidencesufficient to raise doubt about the presumption is adduced, a postal article sent by prepaid postaddressed to a person at a specified address in Australia or an external Territory was received at thataddress on the fourth working day after having been posted.


any proceeding before an Australian court (including a person or body authorised by Australian law tohear, receive and examine evidence), except in a criminal proceeding in respect of the falsity of theevidence.

Family Privilege

6.112 Apart from certain offences relating to children and domestic evidence offences63, a Servicetribunal may uphold an objection by a person who is the spouse, de facto spouse, a parent or a childof the accused to giving evidence as a witness for the prosecution in proceedings under the DFDA64.

Legal Professional Privilege

6.113 On objection by a person, evidence must not be given that would result in the disclosure ofcertain confidential communications made, or the contents of certain confidential documents prepared,for the dominant purpose of either (a) the provision to the person by a lawyer of legal advice65 or (b)the provision to the person of professional legal services relating to litigation66.

6.114 The categories of protected confidential communications and documents is narrower insituation (a) than situation (b).

6.115 A confidential communication in situation (a) must have been made between the person andthe lawyer, or 2 or more lawyers for the person. In situation (b), the confidential communication canhave been between the person and someone else, or a lawyer acting for the person and someoneelse (that is, the category of projected communications in situation (b) extends to client/lawyercommunications with a third party).

6.116 A confidential document in situation (a) must have been prepared by the person or thelawyer. In situation (b) the confidential document can have been prepared by some other person (thatis, the category of protected documents in situation (b) extends to documents prepared by a thirdparty).

6.117 From the defending officer's point of view, it is essential to remember that it is not his or herprivilege but the accused person's. The privilege cannot be waived except with the authority of theaccused67.

6.118 If a party to a proceeding before a Service tribunal is not represented in the proceeding by alawyer, evidence must not be given on objection by the party that would result in the disclosure of aconfidential communication made between the party and someone else, or the contents of aconfidential document prepared by or for the party, for the dominant purpose of preparing for orconducting the proceeding68.

6.119 The privileges set out at paragraphs 6.113 to 6.116 and 6.118 do not apply in certainsituations and may on occasions be lost69. An exception to the privileges which might occasionally

63 Evidence Act s.19. See paragraph 6.54.

64 See under ‘Who may give evidence – Competence and Compellability of witnesses’ at paragraphs 6.53to 6.56.



67 See Tuckiar v R [1934] 52 CLR 335.


69 See Evidence Act sections. 121 to 126 and paras [121.1] to [126.1] of the Evidence Act 1995 (pluscommentary) reproduced at pages 63 to 67 of Volume 2 Part 5 of the Discipline Law Manual.


apply in a proceeding before a Service tribunal is the exception in Evidence Act s.123 in favour of anaccused in a criminal proceeding. In a criminal proceeding, which will include a proceeding before aService tribunal70, s.123 enables an accused to adduce evidence of most communications ordocuments otherwise protected by the privileges. Section 123 does not enable an accused person toadduce evidence that would result in the disclosure of a confidential communication made between anassociated defendant71 and a lawyer acting for that person in connection with the prosecution of thatperson or the contents of a confidential document prepared by an associated defendant or a lawyeracting for that person in connection with the prosecution of that person. The exception in s.123 mayenable an accused to adduce evidence of a communication or a document contained in a prosecutor'sbrief.

Religious Confessions

6.120 Evidence Act s.127 entitles a member or former member of the clergy to refuse to divulge areligious 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'sprofessional 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, immaterialwhether the person who made the confession wants it divulged.

6.123 The privilege does not, however, extend to a communication involved in a religiousconfession that was made for a criminal purpose (eg. where the member of the clergy and person areconspiring to commit a criminal offence and are using the ritual of the church or religious denominationconcerned to attract privilege to the communication).

Physician and Patient

6.124 No privilege exists in respect of confidential communications between a doctor and hispatient (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 ofevidence being adduced in proceedings. The rules, in sections 129, 130 and 131 of the Act, applywhether 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 particularkinds 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 jurorin 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 inproceedings before a Service tribunal.

6.128 Evidence Act s.130(1) enables a Service tribunal to direct that information or a documentthat relates to matters of state not be adduced as evidence if the public interest in admitting theinformation or document into evidence is outweighed by the public interest in preserving secrecy orconfidentiality in relation to the information or document.

70 DFDA s.146(1)(b).

71 A term 'associated defendant' bears the same meaning as it does in Evidence Act s.13(3): seeparagraph 6.52. A co-accused in a joint trial, or an accomplice being tried separately from theaccused, is each an 'associated defendant'.


6.129 Information or a document that relates to matters of state includes information or a documentwhich 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 inpreserving secrecy or confidentiality (that is, the public interest that harm should not be done toAustralia by adducing the information or document as evidence) against the public interest in admittingthe information or document into evidence (that is, the public interest in the administration of justicenot being frustrated by the withholding of relevant evidence). If the public interest in preservingsecrecy or confidentiality in relation to the information or document outweighs the public interest inadmitting the information or document in evidence, the Service tribunal may direct that the informationor document not be adduced as evidence.

6.131 In deciding whether to make a direction, the Service tribunal must take into account:

a. the importance of the information or document in the proceedings;

b. whether the party seeking to adduce evidence of the information or document is anaccused 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 bestayed;

c. the nature of the Service offence or defence to that offence to which the information ordocument relates, and the nature of the subject matter of the proceedings;

d. the likely effect of adducing evidence of the information or the document and themeans available to limit its publications (see paragraph 6.90);

e. whether the substance of the information or document has already been published.

6.132 In taking into account the means available to limit publication of evidence of the informationor document, a President of a court martial or a Defence Force magistrate would have regard to his orher powers under DFDA s.140(2) to order members of the public to be excluded from the proceedingsor 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: THERELEVANCE RULE

The Relevance Rule

6.133 Evidence adduced by the prosecution or an accused in a proceeding before a Servicetribunal must be relevant.

6.134 Subsection 56(1) of the Evidence Act sets out the relevance rule, which is the principal ruleconcerning the admissibility of evidence in proceedings. It provides that:

‘56 (1) Except as otherwise provided by this Act, evidence that is relevant in aproceeding 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 provisionof the Evidence Act excludes it: if evidence is irrelevant it is not admissible in the proceeding.

6.137 Whether or not evidence is relevant is determined by section 55 of the Act. Section 55 statesthat:


’55 (1) The evidence that is relevant in a proceeding is evidence that, if accepted, couldrationally affect (directly or indirectly) the assessment of the probability of the existence of afact in issue in the proceeding.’

6.138 The test in s.55 requires only a minimal logical connection between particular evidence anda 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 ofs.56(1), admissible in the proceeding unless another provision of the Act excludes it. The effect maybe direct (eg. because it is an assertion by a person who saw the occurrence of a fact in issue in theproceeding72) or indirect (eg. where the Service tribunal is asked to infer the existence of a fact inissue from circumstantial evidence adduced in the proceeding73).

6.139 While only a minimal logical connection between particular evidence and a fact in issue isrequired, marginally probative evidence may be excluded under s.135 of the Act where its probativevalue 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. Forexample, the relevance of evidence of the contents of a document will usually depend on proof of theauthenticity of the document. Also, the relevance of much circumstantial evidence may depend uponother evidence in the proceeding.

6.141 If the determination of whether evidence is relevant depends upon the tribunal makinganother finding, Evidence Act s.57(1) enables the tribunal to find the evidence is relevant if it isreasonably open to make that other finding, or it may find the evidence is relevant subject to theadmission of further evidence at a later stage of the proceeding that will make it reasonably open tomake that other finding.

6.142 In the example given of evidence of the contents of a document, if the relevance of theevidence depends upon the tribunal making a finding that the document is authentic, the tribunal mayfind 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 makeit reasonably open to find that the document is authentic (eg. in the case of a document that has beensigned, evidence connecting the making of the document with the person who has apparently signedit).

SECTION 4 - THE HEARSAY RULE

6.143 As explained at paragraphs 6.134 to 6.138, logically relevant evidence is admissible in aproceeding 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 ruleagainst hearsay.

6.145 Under Evidence Act s.59(1), the rule against hearsay (described throughout the Act as 'thehearsay rule') is in the following terms:

‘59. (1) Evidence of a previous representation made by a person is not admissible toprove 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.

73 See the discussion of circumstantial evidence at paragraphs 6.61-6.64.


6.147 The hearsay rule applies to evidence of a representation that is a previous representationmade by a person.

6.148 The term 'representation' is given an extended meaning in the Evidence Act74 and includesan express or implied representation (whether oral or in writing), a representation inferred fromconduct (eg. a person can make a representation by pointing, or by nodding assent to what someoneelse 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 Act75. It isdefined to mean-

‘a representation made otherwise than in the course of giving evidence in the proceeding in whichevidence of the representation is sought to be adduced’.

6.150 Thus, every statement made by a person, except when actually giving oral testimony beforethe 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 willnot be excluded by the hearsay rule. Examples of a representation made by a machine would includesome statements contained in an activity sheet generated by a fax machine76.

6.152 The hearsay rule only applies to evidence of a previous representation made by a person toprove the existence of a particular fact (the fact that the person intended to assert). So the rule doesnot apply where evidence of the representation is admissible to prove some other fact than theexistence of the fact the person intended to assert (eg. where it is admissible to prove, simply, that therepresentation 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 isNapoleon: A's evidence of B's assertion is not admissible on that question. On the other hand, the ruledoes not apply to A's evidence about B's assertion on the question whether or not B made theassertion 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 isadduced for a hearsay purpose (ie. to prove the existence of the particular fact asserted by therepresentation). Where the evidence is adduced for some other purpose (eg. to prove therepresentation was made), it is sometimes said that evidence of the representation is adduced for anon-hearsay purpose.

6.154 A useful common law example of the distinction between use of evidence of representationfor a (impermissible) hearsay purpose and (permissible) use of evidence for a non-hearsay purpose isthe well-known case of Subramaniam v The Public Prosecutor77.

6.155 In Subramaniam, the accused was charged with the unlawful possession of ammunition andhis defence was that he was acting under duress from terrorists who had captured him. At firstinstance the trial judge rejected as hearsay his evidence of conversations with the terrorists relevant toestablish the duress. The Privy Council reversed that decision on the basis that the evidence was notadduced as to the truth of what was actually alleged or asserted by the terrorists but to showSubramaniam's state of mind. The Privy Council said:

74 Evidence Act Dictionary Part 1, definition 'representation'.

75 Evidence Act Dictionary Part 1, definition of 'previous representation'.

76 A question may (often) arise whether the machine is generating the representation, or merelyreproducing a representation entered into the machine by a person.

77 (1956) 1 W.L.R. 965.


‘Evidence of a statement made to a witness by a person who is not himself called as a witness mayor may not be hearsay. It is hearsay and inadmissible when the object of the evidence is toestablish the truth of what is contained in the statement. It is not hearsay and is admissible when itis proposed to establish by the evidence, not the truth of the statement, but the fact that it wasmade. The fact that the statement was made, quite apart from its truth, is frequently relevant inconsidering the mental state and conduct thereafter of the witness or of some other person inwhose presence the statement was made. In the case before their Lordships statements couldhave been made to the appellant by the terrorists, which, whether true or not, if they had beenbelieved by the appellant, might reasonably have induced in him an apprehension of instant death ifhe failed to conform to their wishes.’...

6.156 This evidence, if believed, could have satisfied the court that duress was brought to bearupon the appellant. His evidence of his conversations with the terrorists was adduced for a non-hearsay purpose: that is, not to prove the existence of a fact asserted by the terrorists (that they wouldcarry out their threats), but to prove that the threats were made, that question being relevant to theissue of the appellant's state of mind.

6.157 Finally, the hearsay rule only applies to evidence of a previous representation made by aperson 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 isadduced to prove, does not infringe the hearsay rule. An unintended assertion can be one that is anoral (or written) representation, or one that is an unintended assertion by conduct. An example of anunintended assertion that is an oral representation would be a case in which efforts were made toestablish 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 wasof poor quality by calling a witness to testify that patrons of the hotel had left glasses of beer undrunkafter tasting it. In neither case is the assertion being used to prove the existence of a fact intended tobe asserted by the representation by the person who made the representation. In the first examplecited, Y's representation is an unintended assertion about the identity of the person to whom Y isspeaking. In the second example, each patron's assertion by conduct is an unintended assertion thatthe beer is bad.

6.158 Unintended assertions can, in some circumstances, be reliable as evidence. People do notgenerally say ‘Hello X’ in order to deceive passers-by that X is there and patrons of hotels do notnormally 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) willnevertheless be admissible in a proceeding before a Service tribunal of it falls within an exception tothe hearsay rule set out in the Evidence Act.

6.160 The exceptions to the hearsay rule in the Evidence Act fall into four categories: evidencerelevant for a non-hearsay purpose;

a. evidence relevant for a non-hearsay purpose;

b. admissions;

c. 'first-hand' hearsay representations78

d. more remote hearsay79.

78 The concept of 'first-hand' hearsay is discussed at paragraphs 6.191-6.192.

79 Unlike the exceptions for a 'first-hand' hearsay representation, the exceptions in this category applywhether or not the representation was made by a person who had personal knowledge of the fact theperson intended to assert by the representation (see paragraphs 6.211-6.217).


6.161 Under the Evidence Act s.61, none of the exceptions in Part 3.2 of the Act permit use of aprevious representation to prove the existence of a fact intentionally asserted by the representation ifthe person who made the representation was not, at the time it was made, incapable of giving arational reply to a question about the fact. So if, at the time a person makes a representation, he orshe is psychologically incompetent to give evidence (for example, because he or she is a young childor a person with an intellectual disability: see paragraphs 6.44-6.46), evidence of the person'srepresentations cannot (with one exception) be used under one of the exceptions to the hearsay ruleset 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 forevidence 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 youngchild, 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 thattime even though the child or person was at that time psychologically incompetent to give evidence.

EVIDENCE RELEVANT FOR A NON-HEARSAY PURPOSE

6.163 Section 60 of the Evidence Act provides an exception to the hearsay rule in the followingterms:

‘60. The hearsay rule does not apply to evidence of a previous representation that isadmitted because it is relevant for a purpose other than proof of the fact intended to beasserted by the representation.’

6.164 The exception in s.60 permits hearsay use of evidence that has been admitted because it isrelevant for a non-hearsay purpose. Thus, if a party can get a representation admitted into evidencefor 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-hearsaypurpose is set out at paragraph 6.152.

6.166 Another example is where a witness has made a prior statement that is inconsistent with hisor her testimony. If his or her testimony was about a fact in issue in the proceeding, the priorstatement is relevant both for a hearsay and non-hearsay purpose. The prior statement is relevant fora hearsay purpose because it can (clearly) be used to prove the existence of a fact in issue in theproceeding. The statement is also relevant for a non-hearsay purpose because its relevance does notonly relate to its truth, but also to the fact that the witness has given two inconsistent accounts of thesame event or events. The fact that the witness has previously given a different account of the eventor events from what he or she has said in the witness box reflects on the believability of the testimonyhe or she has given.

6.167 The effect of the exception in s.60 is that if the prior statement is admitted because it isrelevant for a non-hearsay purpose (eg. because it is relevant to the credibility of the witness), it canalso be used for a hearsay purpose (ie. to prove the existence of a fact in issue that the witnessintentionally asserted by the statement).

6.168 Yet another example of evidence admitted for a non-hearsay purpose is evidence of a priorconsistent statement of a witness admitted as being relevant to the credibility of evidence the witnesshas given. Where, for example, a prior inconsistent statement of a witness has been admitted, thetribunal may give leave under Evidence Act s.108(3) to adduce evidence of a prior consistentstatement of the witness80. If the witness's prior consistent statement has been admitted as beingrelevant to credibility (a non-hearsay purpose) it can also be used to prove the existence of a fact inissue 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 priorconsistent statement where it is or will be suggested that evidence given by the witness has beenfabricated, reconstructed or is the result of a suggestion: see Evidence Act s.108(3)(b).


ADMISSIONS

6.169 The hearsay does not apply to evidence of an admission81 if it is 'first-hand' (see paragraph6.173). There are other requirements which also must be satisfied before evidence of an admission isadmissible in a Service tribunal proceeding (see paragraph 6.179-6.185), and evidentiary rules inrelation to questioning (paragraphs 6.186-6.189).

What is an Admission?

6.170 An admission is defined in the Evidence Act82 to mean:

‘... a previous representation that is:

a. made by a person who is or becomes a party to a proceeding (including a defendantin a criminal proceeding); and

b. adverse to the person's interest in the outcome of the proceeding.’

6.171 So 'first-hand' evidence of a single previous representation83 made by a person that turns outto be adverse to the person's interest in a Service tribunal proceeding to which the person is orbecomes a party is admissible as an exception to the hearsay rule84.

6.172 Not only is evidence of the single previous representation that is an admission admissible asan exception to the hearsay rule, but also evidence of some other previous representation85 made ator about the time the admission was made to which it is reasonably necessary to refer to understandthe admission86.

'First-hand' Evidence of an Admission

6.173 As mentioned at paragraph 6.169, the hearsay rule does not apply to evidence of anadmission 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 theadmission is made87. An admission is not made in a document unless the representation that is theadmission was written, made or otherwise produced by the person who made the admission, or theperson recognised the representation as his or her own representation by signing, initially or otherwisemarking the documents88.


82 Evidence Act Dictionary Part 1, definition of 'admission'.

83 The meaning of the term 'previous representation' is discussed at paragraphs 6.149-6.150.

84 If the previous representation is not adverse to the person's interest in a proceeding (eg. if it isexculpatory), it may be admissible under other exceptions to the hearsay rule: see paragraphs 6.190-6.210, particularly paras 6.208-6.210. See also paragraph 6.174 et seq. in relation to vicariousadmissions.

85 The meaning of the term 'previous representation' is discussed at paragraphs 6.149-6.150.



88 Evidence Act Dictionary Part 2, clause 6.


Vicarious Admissions

6.174 The definition of 'admission' in the Evidence Act (see paragraphs 6.170-6.171) requires thatan 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 aperson may be a vicarious admission of another person who is a party to a proceeding89.

6.176 A Service tribunal can admit evidence of a representation made by a person as anadmission 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 tothe matter concerned;

b. the representation was made by an employee or agent about a matter within thescope of his or her employment or authority; or

c. the representation was made in furtherance of a common purpose with the party.

6.177 Once the evidence is admitted, the Service tribunal must nevertheless determine in thecourse of the proceeding whether the representation of the person is an admission of the party to theproceeding (that is, it must decide whether or not to accept that the representation was made by aperson 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 anadmission of one accused in respect of the case of another co-accused90. The co-accused may,however, consent to use of the other accused's admission in respect of its case, but consent cannotbe given in respect of part only (eg. only the favourable part) of that accused's admission91.

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 satisfiedbefore evidence of an admission is admissible in a Service tribunal proceeding. This is in addition tothe requirement that evidence of an admission, to be an exception to the hearsay rule, must be 'first-hand' (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 discussionof DFDA ss. 101J, 101JA and 101K at paragraphs 3.9-3.15 of Chapter 3). See also, in relation toDFDA 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 hasbeen 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 itsmaking were not so influenced92.






6.182 Once the issue is raised by the accused, the onus lies with the prosecution to satisfy thetribunal that the admission and its making was not influenced by violent etc. conduct or a threat ofsuch conduct.

Reliability of Admissions etc

6.183 Evidence of an admission made by an accused in the course of official questioning by aninvestigating official, or as a result of an act of another person (eg. a commanding officer) who wasable 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 thetruth of the admission was adversely affected93. The onus of showing that the evidence is admissiblelies upon the party adducing it.

6.184 The matters that a Service tribunal must take into account in deciding whether the truth of anadmission 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 besubject). A condition or characteristic of the accused would include one to which he or she was subjecttemporarily at the time of questioning (eg. intoxication, fatigue).

6.185 If the admission was made in response to questioning, the Service tribunal must also takeinto account the nature of the questions, the manner in which they were put, and the nature of anythreat, 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 inaddition 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 arecord in writing of an interview with the accused that was prepared by or on behalf of an investigatingofficial, the record is not admissible unless the accused has acknowledged it as a true record bysigning, initialling or otherwise marking it94. Oral evidence of the admission can, however, be given bya person (including the investigating official) who heard the admission being made (see paragraph6.173).

Unfavourable Inferences from Silence during Questioning

6.188 Second, an inference unfavourable to a party must not be drawn in a Service tribunalproceeding from a failure or refusal by the party or another person to answer a question or respond toa representation95 during official questioning96. For example, an inference must not be drawn that aparty did not answer one or more questions put to him or her during an interview by an officerinvestigating a Service offence because he or she believed he or she was guilty of the Service offenceconcerned. The obligation not to draw unfavourable inferences extends to partial silence in the courseof an interview.

6.189 Evidence of the failure or refusal is inadmissible in the Service tribunal proceeding if the onlyuse that could be made of the evidence is to draw an inference that is unfavourable to the party.



95 See paragraph 6.148 for the extended meaning given by the Evidence Act to the word 'representation'.

96 Evidence Act s.89(1). The prohibition does not apply where the failure or refusal to answer or respondis a fact in issue in the proceeding: see Evidence Act s.89(3).


'FIRST-HAND' HEARSAY REPRESENTATIONS

General

6.190 Part 3.2 Division 2 of the Evidence Act provides for exceptions to the hearsay rule forevidence of a 'first-hand' hearsay representation.

6.191 A 'first-hand' hearsay representation is a representation97 made by a person who hadpersonal knowledge of the fact he or she intended to assert by the representation: that is, his or herknowledge of that fact was based (or might reasonably be supposed to have been based) on his orher own perception, and not on a representation made by some other person about that fact98.

6.192 In the situation where a representation concerns an event, a 'first-hand' hearsayrepresentation is a representation made by a person who witnessed the event. For example, if X sawY 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 personabout that fact.

6.193 In a Service tribunal proceeding, the exceptions to the hearsay rule for evidence of a 'first-hand' hearsay representation vary depending upon whether or not the person who made therepresentation is available to give evidence in the proceeding about the fact he or she intended toassert by the representation99 and, if the person is not available, whether evidence of therepresentation 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 2of the Dictionary at the end of the Evidence Act A person is not available to give evidence about a factif he or she has died, is not competent to give evidence or cannot lawfully give evidence about the factor, despite all reasonable steps having been taken, cannot be found or cannot be compelled to giveevidence. A person is also not available to give evidence about a fact if the Evidence Act prohibits theevidence being given.

Evidence of a 'First-hand' Hearsay Representation where the Maker is not Available to giveEvidence

6.195 If the person who made the 'first-hand' hearsay representation is not available to giveevidence of the fact he or she intended to assert by the representation, there are exceptions to thehearsay rule100 for evidence of the representation that is given by a person who saw, heard orotherwise perceived the representation being made if the representation was:

a. made under a duty to make that representation or to make representations of thatkind101;

b. made when or shortly after the fact the person intended to assert by therepresentation occurred and in circumstances that make it unlikely that therepresentation is a fabrication102;

97 See paragraph 6.148 for the extended meaning given by the Evidence Act to the word 'representation'.


99 See paragraph 6.194 for when a person is available to give evidence about a fact.

100 The exceptions do not apply unless reasonable notice in writing to adduce the evidence has beengiven to each other party to the Service tribunal proceeding (see paragraphs 6.199-6.207).

101 Evidence Act s.65(2)(a).



c. made in circumstances that make it highly probable that the representation isreliable103; or

d. against the interests of the person who made it at the time it was made104.

6.196 In addition to the exceptions set out at paragraph 6.195, there is also an exception105 forevidence of a 'first-hand' hearsay representation made by a person who is not available to giveevidence of the fact he or she intended to assert by the representation where the representation wasmade in the course of giving evidence in an earlier proceeding and the accused in the Service tribunalproceeding cross-examined the person who made the representation in the earlier proceeding, or hada reasonable opportunity to do so106. Evidence of the representation need not be given by a personwas 'saw, heard or otherwise perceived' the representation being made: it can be given by producing atranscript or recording of the representation authenticated by the person, court or other body to whichit was made, (if applicable) the registrar or other proper officer of such a court or body or the person orbody responsible for producing the transcript or recording107. In a joint trial before a Service tribunal,evidence of the representation made in the earlier proceeding cannot be used against a co-accusedwho did not cross-examine or have a reasonable opportunity to cross-examine the person who madethe representation in the proceeding108.

6.197 In addition to the exceptions set out at paragraphs 6.194 and 6.195, there is a furtherexception where evidence of a 'first-hand' hearsay representation is adduced by an accused109. Thehearsay rule does not apply to oral evidence of a 'first-hand' hearsay representation adduced by anaccused that is given by a person who saw, heard or otherwise perceived the representation beingmade, or to a document so far as it contains the 'first-hand' hearsay representation or some otherrepresentation to which it is reasonably necessary to refer to understand the 'first-hand' hearsayrepresentation.

6.198 If an accused adduces evidence of a 'first-hand' hearsay representation about a matter, thehearsay rule also does not apply to evidence of another representation about the matter adduced byanother party that is given by a person who saw, heard or otherwise perceived the representationbeing made110.

6.199 The exceptions to the hearsay rule set out at paragraphs 6.195, 6.196 and 6.197 do notapply to evidence adduced by a party unless that party has given reasonable notice in writingcomplying with Evidence Act s.67(3) and regulation 5 of the Evidence Regulations (see paragraphs6.203-6.204) to each other party to the proceeding of his or her intention to do so.

103 Evidence Act s.65(2)(c).

104 Evidence Act s.65(2)(d). A representation is taken to be against the interests of the person who madeit if it tends to damage his or her reputation, incriminate him or her or show he or she is liable in anaction for damages (see Evidence Act s.65(7).

105 This exception also does not apply unless reasonable notice in writing to adduce evidence that hasbeen given to each other party to the Service tribunal proceeding (see paragraphs 6.199-6.207).

106 Evidence Act s.65(3). An accused is taken to have had a reasonable opportunity to cross-examine theperson who made the representation in the earlier proceeding if he or she could reasonably have beenpresent at a time when cross-examination might have been conducted and, if present, could havecross-examined that person (see Evidence Act s.65(5)).



109 Evidence Act s.65(8). This exception also does not apply unless reasonable notice in writing to adduceevidence that has been given to each other party to the Service tribunal proceeding (see paragraphs6.199-6.207).



6.200 The requirement that notice in writing of an intention to adduce the evidence should bereasonable 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 orrules 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 requirementsin 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 thenotifying party intends to rely in arguing that the hearsay rule does not apply to theevidence, and particulars of the facts on the basis of which it is alleged that the personwho made the 'first-hand' hearsay representation referred to in the notice is notavailable to testify concerning the fact to be proved the representation;

b. the substance of evidence of the 'first-hand' hearsay representation the notifying partyintends to adduce and, so far as they are known to the party, the substance of allother relevant representations made by the person who made the 'first-hand' hearsayrepresentation; and

c. so far as they are known to the notifying party, particulars of the date, time, placeand circumstances at or in which the 'first-hand' hearsay representation or otherrelevant representations were made and the names and address of the person bywhom and to whom they were made.

6.204 If the notice refers to a 'first-hand' hearsay representation that is in writing, a copy of thedocument, or a relevant portion of the document, containing the representation must be attached tothe notice and the notice must identify the document unless the identity of the document is apparenton 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 ofthe 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 tothe hearsay rule apply to evidence adduced by a party despite a party's failure to give reasonablenotice 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, thelength of the hearing;

b. the extent to which to give the direction would be unfair or to a witness;

c. the importance of evidence of the 'first-hand' hearsay representation;

d. the nature of the proceeding; and

e. the power of the tribunal (if any) to adjourn the hearing or to make another order orgive a direction in relation to the evidence111.



Evidence of a 'First-hand' Hearsay Representation when the Maker is Available to GiveEvidence

6.208 If the person who made the 'first-hand' hearsay representation is available to give evidenceof the fact intended to be asserted by the representation, the hearsay rule, with one exception, doesnot apply to evidence of the representation given by the person (or by someone who saw, heard orotherwise perceived it being made) if, when the representation was made, the occurrence of the factintended to be asserted by the representation was fresh in the memory of the person who made it112. Ifevidence of the representation is given by a person other than the person who made it, the personwho 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 ina proceeding, unless the representation concerns the identity of a person, place or thing113. Thus, thehearsay rule continues to apply to a witness's proof of evidence, but does not apply to evidence of anidentification made by a witness (eg. a statement made by the witness identifying a person during theconduct of an identification parade).

6.210 A document containing a 'first-hand' hearsay representation of a person must not betendered before the conclusion of the evidence in chief of the person who made the representation,unless the Service tribunal gives leave114.

MORE REMOTE HEARSAY

6.211 Other exceptions to the hearsay rule apply whether or not the representation was made by aperson 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 businessrecords115 and in documents recording messages transmitted by fax, e-mail, telegram, lettergram ortelex116. There is also an exception for certificates or other documents given evidentiary effect byregulations made under an Act.117

6.213 The hearsay rule does not apply to evidence of a representation made by a person about hisor her health, feelings, sensations, intention, knowledge or state of mind at the time he or she madethe representation118. For example, if a person experiencing pain in his or her chest says 'my chesthurts', his or her statement can be used to prove the existence of pain he or she was experiencing atthat time.

6.214 The hearsay rule also does not apply to some evidence of reputation concerning certainrelationships and a person's age (see paragraphs 6.215-6.216), and to some evidence of reputationconcerning 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] ofthe Evidence Act 1995 (plus commentary) reproduced at page 36 of Volume 2 Part 5 of the DisciplineLaw Manual concerning its application to evidence of statements made by a witness identifying aperson (eg. during the holding of an identification parade) and evidence of complaint where relevant toa fact in issue in a sexual assault trial.



115 Evidence Act ss. 69 and 70. See, in relation to the terms of Evidence Act s.69, paras [69.1] to [69.9] ofthe commentary reproduced at pages 38 to 39 of Volume 2 Part 5 of the Discipline Law Manual.





6.215 The hearsay rule does not apply to evidence of reputation that is adduced by an accusedconcerning -

a. whether a person was married (either at a particular time or any time);

b. whether a man and a woman cohabiting at a particular time were married to eachother at that time;

c. a person's age; or

d. family history or family relationship,

if the accused has given reasonable notice in writing to each other party of his or her intention toadduce the evidence or it tends to contradict evidence of that kind that has been admitted119.

6.216 The hearsay rule also does not apply to evidence of reputation concerning a matterdescribed in paragraph 6.215 that is adduced by the prosecutor if it tends to contradict evidence ofthat kind that has been admitted120.

6.217 The hearsay rule also does not apply to evidence of reputation adduced by an accusedconcerning the existence, nature or extent of a public right (ie. a right that affects the entire public, forexample, whether a road is a public road) or a general right (ie. a right that affects a class of persons,for example, the inhabitants of a particular district)121. The hearsay rule also does not apply toevidence of reputation of that kind adduced by the prosecutor if it tends to contradict evidence of thatkind that has been admitted122.

SECTION 6 - OPINION EVIDENCE

General: The Opinion Rule

6.218 Another frequently arising exclusionary rule in the law of evidence is the rule relating toopinion evidence.

6.219 Evidence Act s.67 sets out the general exclusionary rule for opinion evidence (describedthroughout the Act as 'the opinion rule'). Evidence of an opinion is not admissible to prove theexistence 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 actualperception of his physical senses, devoid of inference, evaluation, interpretation or belief. In general awitness 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. lay opinion (paragraphs 6.223-6.225);

b. opinion based on specialised knowledge ('expert opinion evidence')(paragraphs6.226-6.233).

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).





6.222 Since the commencement of the Evidence Act, opinion evidence is admissible, if it fallswithin an exception to the opinion rule, on a matter of common knowledge (see paragraph 6.249) oron 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 isbased upon what the person saw, heard or otherwise perceived about a matter or event if evidence ofthe opinion is necessary to obtain an adequate account or understanding of the person's perception ofthe matter or event123.

6.224 This exception for lay opinion recognises that a strict application of the opinion rule ‘candisturb ordinary speech patterns by demanding testimony as to 'fact' rather than 'opinion' when veryoften the difference between the two is of little moment ... [when] ... [i]f a witness is constantlyinterrupted by objections and requests for reformulations of his testimony in terms of less inferentiallanguage, he may well lose his group on what precisely he is saying’124.

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 thestance 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 variousmental 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 specialisedknowledge based on his or her training, study or experience if the opinion is wholly or substantiallybased on that knowledge125. 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 theappropriate 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 areunnecessary, relevant training or experience will suffice.

6.229 The specialised knowledge need only be 'based on the person's training, study orexperience'. There is no requirement that the knowledge must also relate to a recognised field ofexpertise, nor to a particular subject matter.

6.230 There is also no requirement under the exception for expert opinion evidence that theopinion be about a matter outside the range of knowledge of the members of the tribunal (seeparagraph 6.240).

6.231 The facts on which an opinion of an expert is based will ordinarily concern a matter or eventthat is admitted or is in issue in the tribunal proceeding. For example, in a court-martial arising out ofthe grounding of a naval vessel, an expert may give opinion evidence concerning navigationalprocedures appropriate to the weather conditions that existed when the vessel was grounded. If the


124 Australian Law Reform Commission, Evidence (Interim Report, No. 26 of 1985), volume 1, p.193 atparagraph 351.



expert's opinion was based on weather conditions different to those that existed at that time, evidenceof the expert's opinion will be irrelevant and, therefore, not admissible in the proceeding126.

6.232 Occasionally, the expert's knowledge (such as data published by other experts) that he orshe uses to draw an inference from facts concerning a matter or event at issue in a proceeding maybe challenged. Thus that knowledge may itself be raised as an issue in the proceeding. Ordinarilyevidence is not required of such knowledge. However, if it becomes an issue in a proceeding (forexample, if the published data which the expert has used to draw an inference is challenged, say, as amatter of debate within the relevant scientific or academic community), evidence of the expert'sopinion that is based on that knowledge runs the risk of exclusion under Evidence Act s.135 ifevidence of the knowledge is not given in the proceeding, or is only given by the expert whose opinionevidence has been adduced (rather than by, in the example given, the other experts whose publisheddata has been challenged)127.

6.233 A Service tribunal is not bound to accept the evidence of an expert even if it isuncontradicted128. However, because such evidence may have some probative value, the tribunalmust not disregard it totally in determining questions of fact129. Where there is conflicting evidencegiven by such persons who have been called on behalf of the prosecution and the defence, the courtmust decide the weight to be attached to each version of the evidence whilst bearing in mind that suchwitnesses 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 expertwhich sets out his or her opinion.

6.235 The procedure, set out in Evidence Act s.177, provides a means by which unchallengedexpert opinion may be adduced without the need to call the expert as a witness in the proceeding. Theparty tendering the certificate must have first served on each other party written notice and a copy ofthe certificate130: a party so served may by written notice require the party intending to tender thecertificate to call the expert to give evidence in the proceeding131. The certificate is not admissible asevidence if such a requirement is made132.

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 enableopinion evidence about a person's sobriety to be given by a person with experience of observing


127 Section 135 enables a service tribunal to exclude evidence 'if its probative value is substantiallyoutweighed by the danger that the evidence might ... be unfairly prejudicial to a party ... or cause orresult in undue waste of time'. The evidence may be unfairly prejudicial to a party, or may cause orresult in undue waste of time, if it is necessary for the tribunal to determine the probability of theexistence of a fact upon which the opinion evidence is based in circumstances where either noevidence of the fact is called or such evidence as there is before the tribunal cannot be tested uponcross-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 otherrelevant matters, the reasonableness of requiring a party to call further evidence in the proceeding.

128 Minister v Ryan (1963) 9 LGRA 112.

129 Anderson v The Queen [1972] A.C. 100.

130 Evidence Act s.177(2). A 21 day time period, capable of being abridged by the tribunal, applies:Evidence Act s.177(3).




others under the influence of intoxicating liquor. However, the evidence of such a person would onlyextend to the fact of intoxication, not to whether the person was 'under the influence ... to such anextent as to be incapable of having proper control of [a] vehicle'133 or his or her 'faculties [were] ... soimpaired that [he or she was] unfit to be entrusted with [his or her] duty'134.

6.237 In relation to the issue of intoxication, blood tests and breathalyser readings are not ofthemselves evidence of drunkenness or intoxication but may be given in evidence in cases ofprosecutions for the particular statutory offences in respect of which such tests or readings areaccorded the evidentiary effect of a statutory presumption, eg. driving a vehicle whilst having apercentage 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 andrelevance of the evidence so obtained to the issue of the intoxication, evidence of those tests orreadings may become admissible on the issue of intoxication.135

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 provethe existence of a fact about the existence of which the opinion was expressed136.

6.239 Under this exception evidence of the opinion may be used to prove a fact asserted by theopinion if evidence of the opinion is admitted because it is relevant for another purpose. If, forexample, the expression of an opinion is a fact in issue because it is relevant to an accused's state ofknowledge (where, for example, in a prosecution for an offence against DFDA s.34(3) for negligentoperation of a weapon, evidence is given by a weapons technician that he or she had informed theaccused that the weapon would perform as predicted under stated conditions), evidence of the opinionmay be used to prove a fact asserted by the opinion (eg. that the weapon would perform as predictedunder 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 abouta matter of common knowledge. Thus, it is not necessary that the topic upon which an expert witnessproposes 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 becauseit is about a fact in issue or an ultimate issue. Thus, an expert may be asked a question about an issuethat the tribunal itself must decide (eg. in a prosecution for an offence against DFDA s.32 for beingdrunk on watch, in which the person charged is 'deemed to be drunk if ... [his or her] faculties are soimpaired that [he or she] is unfit to be entrusted with [his or her] duty or with any duty [he or she] maybe called upon to perform', an expert may give an opinion about the accused's fitness for duty, asdefined, 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 certificateor other document given evidentiary effect by regulations made under an Act.137

133 DFDA s.40.

134 DFDA s.37. See also paragraph 6.241 in relation to expert opinion evidence on an ultimate issue in aproceeding.

135 See Smith v Maddison (1967) V.R. 309, 310, Heywood v Robinson (1975) V.R. 562 and Wright vBastin (No. 2) [1979] V.R. 329.



SECTION 7 - CHARACTER EVIDENCE

General

6.243 For convenience, character evidence is first discussed in relation to evidence concerning thecharacter 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 characterof 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 issought to be put in the proceeding.

6.246 This Section of the Chapter discusses the rules that apply when evidence of the character ofa 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 givenin the proceeding, then the rules in Evidence Act Part 3.7 apply. Those rules are discussed in thecontext of rules that apply in relation to the cross-examination of witnesses in Section 11 of thisChapter (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 ofParts 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 inissue because the evidence is to be used for a tendency reasoning138 or a coincidence reasoningpurpose139

. 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 adducesevidence 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 ISRELEVANT TO A FACT IN ISSUE

General

6.251 Except where an accused puts his or her own good character in issue (see paragraphs6.272 - 6.275), it is not permissible for evidence to be adduced that tends to show the accused is aperson of bad character or reputation for the purpose of leading to the conclusion that he or she is aperson 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 theaccused's character140 to seek to establish a fact an issue in a proceeding by either a process of


138 Tendency reasoning is a process of inferring that a person did a particular act or had a particular stateof mind from evidence that he or she has or had a tendency to act in a particular way. Evidence ofsuch a tendency will vary from case to case, but may be in the form of evidence of past conduct of theperson, or of his or her character or reputation.

139 Coincidence reasoning is a process of inferring that a person did a particular act or had a particularstate of mind from the improbability that 2 or more events of a similar kind occurred coincidentally.

140 The evidence may be direct evidence of the accused's character or reputation, evidence of his or herpast conduct (including the accused's past criminal acts or convictions) or evidence of a tendency theaccused has or had to act in a particular way or to have a particular state of mind.


tendency reasoning (see paragraphs 6.253-6.263) or coincidence reasoning (see paragraphs 6.264-6.272).

Tendency Reasoning

6.253 Tendency reasoning is the process of inferring that a person did a particular act or had aparticular state of mind from evidence that he or she has or had a tendency to act in a particular wayor to have a particular state of mind. The tendency of a person to act in a particular way or to have aparticular state of mind may be established either by the past conduct of the person (eg. a tendency tocarry out threats of violence may be proved by evidence of past occasions on which the person hasoccasioned threatened violence) or by evidence of character or reputation (that the person is a violentperson, or has a reputation for violence).

6.254 Tendency may not necessarily relate to a tendency to act in some criminal or morallyreprehensible way. Habit, and standard business or work practices, are also instances of a tendencyto act in a particular way. One example of tendency reasoning is inferring that a person went to workby a particular route on a particular occasion from evidence that he or she regularly went to work bythat 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 atendency that a person has or had, that a party seeks to have adduced to prove that the person has orhad 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 ofa person is a fact in issue in the proceeding141. If, however, the evidence is admissible for some otherpurpose (for example, if the evidence of conduct etc. is both a fact in issue and a fact from which otherfacts may be inferred by tendency reasoning) it cannot be used for a tendency reasoning purposeunless the special rules in Part 3.6 have been satisfied142.

6.258 The special rules in Part 3.6 do not apply to expert opinion evidence about an accusedadduced by a co-accused in a proceeding143, or to evidence adduced to prove that such evidenceshould not be accepted144.

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 EvidenceRegulations (see paragraph 6.263) must be given by the party intending to adduce theevidence to each other party to the proceeding of his or her intention to do so (but seeparagraphs 6.260-6.262)145;

141 Evidence Act s.94(3). For example, in a civil context, the rules in Part 3.6 do not apply to evidence ofthe reputation of the plaintiff in defamation proceedings.


143 Evidence Act s.111(1). An example, in a common law context, of evidence to which s.111(1) applies isthe evidence of the psychologist adduced by the co-accused King about the character of co-accusedLowery in Lowery v. R [1974] AC 85.


145 Evidence Act ss. 97(1)(a) and 99.


b. the evidence must have significant probative value146, either by itself or having regardto other evidence adduced or to be adduced by the party seeking to adduce theevidence; and

c. if the evidence is about an accused and is adduced by the prosecution other than toexplain or contradict tendency evidence adduced by the accused, the probative valueof the evidence must substantially outweigh any prejudicial effect it may have on theaccused147.

6.260 The Service tribunal may, on the application of a party, direct that particular evidence isadmissible despite a party's failure to give reasonable notice in writing148. The direction may be subjectto conditions and may be given at or before the hearing of the proceeding. The application may bemade by a party either before or after the time by which the party would be required to give, or havegiven, 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;

b. to extent to which to give the direction would be unfair to a party or to a witness;

c. the importance of the tendency evidence;

d. the nature of the proceeding;

e. any power of the tribunal to adjourn the hearing or to make another order or give adirection in relation to the evidence149.

6.262 Reasonable notice in writing is not required if the tendency evidence is adduced to explain orcontradict tendency evidence adduced by another party150.

6.263 The requirement that notice in writing of an intention to adduce tendency evidence should bereasonable applies both to the timing of the notice and the content of the notice. Under Evidence Acts.99, notice must be given in accordance with any regulations or rules of court made for the purposesof that section. Subregulation 6(1) of the Evidence Regulations sets out requirements in relation to thecontent of notices151. While no requirements relating to the period of notice which must be given areset out, timeliness of the notice would be relevant to determine whether reasonable notice in writinghas been given.

Coincidence Reasoning

6.264 Coincidence reasoning is the process of inferring that a person did a particular act or had aparticular state of mind from the improbability that certain events occurred coincidentally.



148 Evidence Act ss. 97(2)(a) and 100(1).



151 A notice must state the substance of the evidence the notifying party intends to adduce and, if theevidence 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 andaddresses of persons who witnessed it) so far as they are known to the party.


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 coincidencereasoning purpose. The Act does not impose special requirements in relation to evidence other thansimilar 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 acoincidence reasoning purpose is the famous 'baby-farming' case: Makin v Attorney-General for NewSouth Wales152. In Makin, the accused husband and wife were charged with the murder of a childgiven to them for adoption for a fee. The child's body had been found buried in the garden of a housewhich the accused occupied. The defence was that the child had died from natural causes. Evidencewas admitted that 12 other children had been given to the accused on like terms for adoption and thattheir corpses had been found in the gardens of other houses they occupied. The finding of the 13corpses in the grounds of houses occupied by the accused gave rise to an inference that theirconnection with the corpses was not coincidental.

6.267 Special rules for admission of coincidence evidence adduced for a coincidence reasoningpurpose 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 EvidenceRegulations (see paragraph 6.272) must be given by the party intending to adduce theevidence to each other party to the proceeding of his or her intention to do so (but seeparagraphs 6.269-6.271)153;

b. the evidence must have, either by itself or having regard to other evidence adduced orto be adduced by the party seeking to adduce the evidence, significant probativevalue154; and

c. if the evidence is about an accused and is adduced by the prosecution other than toexplain or contradict coincidence evidence adduced by the accused, the probativevalue of the evidence must substantially outweigh any prejudicial effect it may have onthe accused155.

6.269 The Service tribunal may, on the application of a party, direct that particular coincidenceevidence is admissible despite a party's failure to give reasonable notice in writing156. The directionmay be subject to conditions and may be given at or before the hearing of the proceedings. Theapplication may be made by a party either before or after the time by which the party would berequired 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;

b. to extent to which to give the direction would be unfair to a party or to a witness;

c. the importance of the coincidence evidence;

152 [1894] AC 56.

153 Evidence Act ss. 98(1)(a) and 99.

154 Evidence Act ss.98(1)(b).


156 Evidence Act ss.98(3)(a) and 100(2).




6.271 Reasonable notice in writing is not required if the coincidence evidence is adduced to explainor contradict coincidence evidence adduced by another party158.

6.272 The requirement that notice in writing of an intention to adduce coincidence evidence shouldbe reasonable applies both to the timing of the notice and the content of the notice. Under EvidenceAct s.99 notice must be given in accordance with any regulations or rules of court made for thepurpose of that section. Subregulation 6(2) of the Evidence Regulations sets out requirements inrelation to the content of notices159. While no requirements relating to the period of notice which mustbe given are set out, timeliness of the notice would be relevant to determine whether reasonablenotice 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 evidenceof his or her own good character.

6.274 Other exclusionary rules set out in the Evidence Act (including the hearsay rule and theopinion rule) do no apply to evidence adduced by an accused to prove, either generally or in aparticular respect, that he or she is a person of good character160. An accused may adduce evidenceof this kind with a view to persuading the tribunal that as a person of good character, he or she isunlikely 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,evidence to rebut such evidence is admissible161. Rebuttal evidence is only admissible to the extentthat the accused has adduced evidence of his or her own good character: if the accused has adducedevidence of his or her character only in a particular respect then only evidence limited to that respectis admissible in rebuttal162.

6.276 Evidence Act Part 3.8, therefore, allows an accused to put part only of his or her character inissue. For example, an accused who may have a reputation for dishonesty may put his good characterin issue in relation to 'never having acted indecently to a woman' without putting his charactergenerally in issue163

.


158 Evidence Act ss.98(3)(b).

159 A notice must state the substance of the evidence of the occurrence of the events the notifying partyintends to adduce and particulars of other information (the date, time, place and circumstances at or inwhich each event occurred and the names and addresses of persons who witnessed each event) sofar as they are known to the party.




163 In this respect, Part 3.8 reverses the rule in R v Winfield (1939) 27 Cr App Rep 139 that a personcannot 'put half of his or her character in issue'.


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 inissue in a proceeding because it is to be used for a tendency reasoning or a coincidence reasoningpurpose164. For example, the issue of self-defence may be raised by the accused, who may wish toadduce evidence of the past conduct of the victim, or someone else, to prove a tendency of the victimor that other person to act in a violent way.

6.278 The rules in relation to the admission of tendency evidence and also coincidence evidenceabout a person other than the accused are the same as for an accused (that is, as set out inparagraphs 6.253-6.272) except that the requirements set out at paragraph 6.259(c) for tendencyevidence and at paragraph 6.268(c) for coincidence evidence will not apply to evidence about aperson other than an accused.

Evidence (Including Tendency Evidence) of Sexual Reputation of a Complainant in SexualAssault Cases

6.279 In ACT courts (and, hence, before Service tribunals) in proceedings relating to sexualoffences, evidence (including tendency evidence) concerning the sexual reputation of the complainantis inadmissible. No evidence may be adduced without the leave of the judge (or judge advocate) of thesexual experience of the complainant with a person other than the accused. Moreover, the judge (orjudge advocate) may not grant leave for any evidence to be adduced or any question to be asked ofthe complainant in connection with his or her sexual experience with persons other than the accusedunless: an application for leave is made to the judge advocate in the absence of the court; and, thejudge advocate is satisfied that a refusal to allow the evidence to be adduced or the question to beasked would prejudice the fair trial of the accused person165.

SECTION 8 - IDENTIFICATION EVIDENCE

General

6.280 Evidence Act Part 3.9 contains special rules about the admissibility of visual identificationevidence 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 aperson that:

a. the accused was, or resembles a person who was, present at or near a place wherethe offence was committed or an act connected with the offence was done at or aboutthe time that the offence was committed or the act was done; and

b. is based wholly or partly on what the person saw at that place and time; and

c. is not 'picture identification evidence' (see paragraph 6.284),

is not admissible unless:

164 See paragraphs 6.253-6.254 and 6.264-6.266 for what is meant, respectively, by a tendency reasoningprocess or a coincidence reasoning process.

165 s.76G(1), G(2), G(3) of the (ACT) Evidence Act 1971.


d. an identification parade that included the accused was made before the assertion wasmade; or

e. it would not have been reasonable to have held such a parade; or

f. the accused refused to take part in such a parade;

and the assertion was made without the person having been intentionally influenced to identify theaccused.

6.282 In deciding whether it was reasonable to hold an identification parade, the Service tribunalmust take into account:

a. the kind and gravity of the offence;

b. the importance of the evidence;

c. 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 theconduct of the parade, and to whether the assertion was made at or about the time ofthe commission of the offence (eg. if the witness happened to encounter andrecognise the accused soon after the offence was committed); and

d. the appropriateness of holding an identification parade having regard, among otherthings, to any relationship between the accused and the person who made theassertion (eg. it would be inappropriate to hold an identification parade if the accusedwas well-known to the witness);

but must not take into account the availability of pictures or photographs that could be used in makingidentifications166.

6.283 It is presumed that it would not have been reasonable to have held an identification paradeif:

a. it would have been unfair to the accused to have held such a parade167;

b. if the accused refused to take part in a parade unless a lawyer acting for him or her orsome other person was present and there were reasonable grounds to believe it wasnot reasonably practicable for such a lawyer or person to be present168.

Picture Identification Evidence Adduced by the Prosecution

6.284 Evidence Act s.115 provides three exclusionary rules for evidence adduced by theprosecution of an assertion made by a person that:

a. the accused was, or resembles a person who was, present at or near a place wherethe offence was committed or an act connected with the offence was done at or aboutthe time that the offence was committed or the act was done; and

b. is based wholly or partly on what the person saw at that time and place;

c. was made wholly or partly by the person examining pictures or photographs kept forthe use of police officers169.


167 Evidence Act ss.114(4).



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 tocontradict or qualify picture identification evidence adduced by the accused.

6.286 The first exclusionary rule is that picture identification evidence adduced by the prosecutionis not admissible unless the pictures or photographs examined did not suggest that they were picturesor photographs of persons in police custody170.

6.287 The second exclusionary rule is that picture identification evidence adduced by theprosecution is not admissible if the accused was in the custody of an officer of the police forceinvestigating the commission of the offence with which the accused has been charged and the pictureof the accused was made or the photographs of the accused was taken before the accused was takeninto that custody171. The rule does not apply if the accused's appearance had changed significantlybetween the time the offence was committed and the time the accused was taken into that custody orif it was not reasonably practicable to make a picture or take a photograph of the accused after he orshe was taken into that custody172.

6.288 The third exclusionary rule is that picture identification evidence adduced by the prosecutionis not admissible if the accused was in the custody of an officer of the police force investigating thecommission of the offence with which the accused has been charged when the pictures orphotographs were examined unless -

a. the accused refused to take part in an identification parade; or

b. the accused's appearance had changed significantly between the time the offencewas committed and the time the accused was taken into that custody; or

c. it would not have been reasonable to have held an identification parade that includedthe accused173.

6.289 This rule ensures that where an accused is in custody at the time pictures or photographsare examined, an identification parade (rather than examination of pictures or photographs) should bethe 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 orunlawfully obtained evidence, and evidence obtained in consequence of an impropriety or a breach ofthe law.

6.291 The prohibition in respect of improperly obtained evidence, and evidence obtained inconsequence 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 FederalPolice or a member of the police force of a State or Territory, it does not include Service police officers.




173 Evidence Act s.115(5). See paragraphs 6.282-6.283 in relation to whether it would have beenreasonable to have held an identification parade that included the accused.


6.292 The prohibition in respect of unlawfully obtained evidence, and evidence obtained inconsequence of a breach of the law, arises both under Evidence Act s.138 and, in cases where aprovision of Part VI of the DFDA has been contravened, DFDA s.101ZB. While not completely freefrom doubt, it is likely that, in the case of evidence obtained in (or in consequence of) a contraventionof a provision of DFDA Part VI, both Evidence Act s.138 and DFDA s.101ZB will apply to theevidence.

Evidence Obtained Improperly or Unlawfully (Except in Contravention of a Provision of DFDAPart VI)

6.293 Evidence Act s.138(1) provides that evidence obtained improperly or in contravention of anAustralian law, or in consequence of an impropriety or in contravention of an Australian law, is not tobe admitted unless the desirability of admitting it outweighs the undesirability of admitting evidenceobtained in the particular way it was obtained.

6.294 Once evidence is shown to have been obtained improperly or unlawfully, or in consequenceof an impropriety or breach of the law, the onus is on the party seeking to have the evidence admittedto 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 purposeof 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 ifthe person conducting the questioning -

a. did or failed to do an act in the course of questioning which he or she knew, or oughtto have known, was likely to impair substantially the ability of the person beingquestioned to respond rationally to the questioning; or

b. made a false statement in the course of questioning which he or she knew, or ought tohave known, was false and likely to cause the person being questioned to make anadmission174.

6.297 Under Evidence Act s.139, evidence of a statement made or act done by a person duringquestioning by an investigating official is in certain circumstances taken to have been obtainedimproperly if the person was not cautioned. Section 139 may on occasions apply in a Service tribunalproceeding if evidence is adduced of a statement made or act done by a Service member (or someother person) during questioning by a member of the Australian Federal Police or a State or Territorypolice force, or an officer of a government agency, in connection with the investigation of anoffence175.

6.298 In determining, for the purpose of the Evidence Act s.138(1), whether the desirability ofadmitting improperly or unlawfully obtained evidence outweighs the undesirability of admitting suchevidence, the Service tribunal must take into account the probative value of the evidence, itsimportance in the proceeding, the nature of the Service offence with which the accused has beencharged, the gravity of the impropriety or contravention of law, whether it was deliberate or reckless orcontrary to or inconsistent with a right of a person recognised by the International Covenant on Civiland Political Rights, whether any other proceeding is likely to be taken in relation to it and the difficulty(if any) of obtaining the evidence without the impropriety or contravention176.


175 See paragraphs [139.1] to [139.7] of the Evidence Act 1995 (plus commentary) reproduced at page 77of Volume 2 Part 5 of the Discipline Law Manual.



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 DFDAs.101ZB will apply to evidence obtained in contravention of a provision of DFDA Part VI or inconsequence 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 wasobtained in contravention of, or in consequence of a contravention of, a provision of [Part VIof the DFDA], the service tribunal or, in the case of a court martial, the judge advocate of thecourt-martial, is satisfied, on the balance of probabilities, but having regard to any provisionof this Act or the regulations relating to proof of particular matters, that the evidence was soobtained, the service tribunal or judge advocate shall not admit the evidence unless theservice tribunal or judge advocate, as the case may be, is of the opinion that:

(a) admission of the evidence would substantially benefit the public interest in theadministration of justice; and

(b) this benefit would outweigh any prejudice to the rights and freedoms of anyperson, including the accused person, that has occurred, or is likely to occur, asa 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 ofDFDA Part VI (eg. if the accused made an admission during questioning by a Service police officerwhen the accused had not been cautioned in circumstances in which the Service police officer wasobliged to have done so under DFDA s.101D), the Service tribunal must consider whether either ofEvidence 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 Acts.138. Under s.101ZB(1) the tribunal must be satisfied that the admission of the evidence 'wouldsubstantially benefit the public interest in the administration of justice': under s.138 the tribunal mustconsider the admission of the evidence to be desirable, albeit to such an extent that it outweighs 'theundesirability of admitting [the] evidence'. The former provision also specifically requires the tribunal toconsider any prejudice resulting from admission of the unlawfully obtained evidence in the proceedingon persons other than the accused.

6.302 At a procedural level, DFDA s.101ZB, but not Evidence Act s.138(1), requires an objection tobe taken to the admission of the evidence. If it becomes apparent during the course of a proceedingthat evidence has been obtained in or in contravention of a provision of DFDA Part VI, the tribunalmust consider whether Evidence Act s.138(1) requires it not to admit the evidence, whether or not aparty has formally objected to the evidence. In practice, it is likely in most cases that once a tribunalhas drawn to attention its obligation to consider whether particular evidence is required not to beadmitted 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 paragraphs6.133-6.302 and 6.359-6.379) have been satisfied in relation to a particular item of evidence, theService 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 thatadduced the evidence in the proceeding.


6.306 The second and third provisions are sections 90 and 137 of the Evidence Act. They apply toevidence adduced by the prosecution. Section 90 applies to evidence of an admission177 adduced bythe prosecution in a proceeding, while section 137 applies to any evidence adduced by theprosecution.

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 ofevidence if its probative value is substantially outweighed by the danger that the evidence might beunfairly 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 relevance178. The effect ofthe relevance rule, and more particularly the test of relevance in section 55 of the Act179, is to providethat 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 tothe fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish or triggers othermainsprings of human action'180, may cause the tribunal to make its decision on a basis unconnectedto the issues in a case. This power would seldom arise in relation to evidence adduced by theprosecution, because Evidence Act s.137 requires a tribunal to exclude such evidence if its probativevalue 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 thatmight 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 theprosecution of a member under DFDA s.35 for negligently performing a duty, of remedial measurestaken 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 timeenables a tribunal to refuse to admit marginally relevant evidence181.

6.312 The onus is on the party seeking exclusion of the evidence under Evidence Act s.135 toshow that the danger the evidence might be unfairly prejudicial to a party etc. substantially outweighsthe 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 aparticular use may be unfairly prejudicial to a party, or misleading or confusing182.

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 admissionadduced by the prosecution, or refuse to admit it to prove a particular fact, if having regard to thecircumstances in which it was made it would be unfair to an accused to use the evidence.

177 See paragraphs 6.171-6.172 in relation to the meaning given to the term 'admission' for the purposesof the Evidence Act.

178 See paragraphs [135.1] to [135.9] of the Evidence Act 1995 (plus commentary) reproduced at page 74of Volume 2 Part 5 of the Discipline Law Manual.

179 For discussion of the relevance rule, see paragraphs 6.133-6.139.

180 Australian Law Reform Commission, Evidence (Interim Report, No. 26 of 1985), volume 1, page 352 atparagraph 644.

181 See paragraphs 6.138-6.139.



6.315 Unlike the situation when the tribunal is looking at an admission which has been improperlyobtained (see paragraphs 6.293-6.298), exclusion on this ground focuses upon the effect of use of theevidence upon a particular accused, rather than upon the desirability (or otherwise) of admitting theevidence.

6.316 The particular circumstances in which an admission was made may be, of course, bothimproper and result in unfairness to an accused: evidence of an admission may be at risk of exclusionon 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, cross-examination going beyond clarification of information voluntarily given, or detaining a suspect orkeeping him in isolation without lawful justification' as examples of conduct that might justify exclusionof evidence under the common-law equivalents of either ground.

Exclusion of Prejudicial Evidence Adduced by the Prosecution: Section 137 of the EvidenceAct

6.317 Under Evidence Act s.137, a Service tribunal must refuse to admit evidence adduced by theprosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. Thisrequirement, which reflects a trial judge's discretion under the common law to reject prosecutionevidence that is more prejudicial than probative, protects an accused from evidence that is logicallyrelevant and otherwise admissible: evidence which may be misused by a jury or may give rise to biasagainst an accused (eg. prosecution evidence of particularly graphic photographs of the deceased in amurder trial, which might influence the jury against an accused). The requirement applies not only toprosecution evidence of an admission, but to all evidence adduced by the prosecutor in a Servicetribunal 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 putby parties or their representatives to witnesses summoned to give evidence. In general outline, theprocedure for receiving evidence is that each witness is subjected to examination-in-chief by the partywho has called that witness and then to cross-examination by the opposing party. The witness maythen be re-examined by the first party about matters arising out of evidence the witness gave in cross-examination and, by leave of the Service tribunal, other questions may be put to the witness on re-examination.

Witness to be Sworn

6.319 Every witness must be sworn or affirmed, except a person who is incapable of understandingthat in giving evidence he or she is under an obligation to give truthful evidence. Such a person maygive unsworn evidence in some situations183. Also, a person who has been summoned to producedocuments may be permitted to hand over the documents to the court without being sworn - unless aparty wishes to place evidence on the court record in relation to those documents, in which case he orshe 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 orshe should be called before any other defence witness.184 In practice, witnesses remain out of courtuntil called to give evidence, so that each witness may be examined out of the hearing of the otherwitnesses 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.

184 R v Smith (Joan) [1968] 1 W.L.R. 636; also see Item 45 of Appendix 2 to Chapter 9.


court before giving evidence185, especially if they are required to comment on matters already given inevidence.

6.321 Before discussing in detail the examination of witnesses, it is necessary to consider theimportant 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 otherwisethan while giving evidence, the Service tribunal may, at the request of a party, direct that thedocument (or thing) be produced to the party186. If the direction is not complied with (withoutreasonable excuse), the tribunal may refuse to admit evidence given by the witness about a factconcerning which the witness so tried to revive his or her memory187.

6.324 Once a witness is in the witness box, he or she must not use a document to try to revive hisor her memory about a fact or opinion unless the Service tribunal gives leave188.

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 thedocument;

b. whether so much of the document as the witness proposes to use is (or is a copy of) adocument that was written by the witness, or was found by him or her to be accurate,at a time when the events recorded in it were fresh in his or her memory189.

6.326 A document need not have been written or checked contemporaneously or soon after therelevant event occurred, although it is more likely that events will be fresh in a person's memory soonafter 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 thedocument as relates to the fact or opinion190.

6.328 In deciding whether to give leave to read the document aloud, the Service tribunal must takeinto account:

a. the extent to which to give leave would be likely to add unduly to, or to shorten, thelength of the hearing;

b. the extent to which to give leave would be unfair to a party or to a witness;

c. the importance of the evidence the witness will give;

185 R v Tait [1963] V.R. 520; R v Bicanin (1976) 15 S.A.S.R. 20.







d. the nature of the proceeding; and

e. any power of the tribunal to adjourn the hearing or to make another order or to give adirection in relation to the evidence191.

6.329 There may be occasions when a matter is not controversial (eg. a doctor reading from his orher patient records) or factual accuracy is important (eg. a police officer giving measurements taken atthe scene of an accident192) when it is desirable that a witness should be able to give his or herevidence by reading notes.

6.330 If a witness has used a document to try to revive his or her memory in the course of givingevidence, the Service tribunal may, at the request of a party, direct that so much of the document asrelates to the Service tribunal proceeding is produced to that party193. Calling for production of thedocument or inspection of the document when produced does not require the party to tender thedocument, nor entitle the producing party to tender it194. If the party to whom the document isproduced cross-examines the witness about a prior inconsistent statement in the document, theService tribunal can give directions about its use and admit it, unless the document is inadmissible195.

EXAMINATION-IN-CHIEF

6.331 The object of examination-in-chief is to obtain testimony in support of the version of the factsin issue or relevant to the issue for which the party calling the witness contends196.

6.332 In this section we will be concerned with the putting of leading questions in examination inchief and the cross-examination of one's own witness. Other rules that will apply during examination inchief, relating to use of documents to revive memory before or in the course of giving evidence, aredealt 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 orassumes the existence of a disputed fact concerning which the witness has not yet testified. Anexample of the first type would be: ‘Did you see the electrician lay the cables the wrong way?’ Anexample of the second type of question would be: ‘After the accused fired the gun what did he thendo?’ (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 re-examination)197 unless:

a. the Service tribunal gives leave;

b. the question relates to an introductory matter or a matter not in dispute;


192 A member of the Australian Federal Police or a police force of a State or Territory may in somesituations give evidence in chief for the prosecution by reading or being led through a written statementthe officer previously made: see Evidence Act s.33.





197 See paragraph 6.382.


c. where all the parties to the proceeding other than the party examining the witness arerepresented by a lawyer and no objection to the question is made;

d. in the case of a question put to a person with specialised knowledge based on his orher study, training or experience (see paragraphs 6.226-6.230), the question is put forthe purpose of obtaining the person's opinion on a hypothetical statement of facts,being facts in respect of which evidence has been or is intended to be given198.

6.335 Leading questions are inadmissible because of the danger that they allow collusion betweenthe person asking them and the witness or because they assume the existence of facts which are notin evidence. Frequently, leading questions are put in such a form that the witness has to answermerely '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 thoughthe party were cross-examining the witness about:

a. evidence the witness has given that is unfavourable to the party;

b. a matter of which the witness may reasonably be supposed to have knowledge aboutwhich it appears to the tribunal that the witness is not in examination in chief making agenuine attempt to give evidence; or

c. whether the witness has at any time made a prior inconsistent statement199.

With the leave of the tribunal, the party so questioning such a witness may question him or her aboutmatters relevant to his or her credibility200.

6.337 Questioning a witness with that leave is to take place before other parties cross-examine thewitness, although the tribunal may give directions about the order in which the parties may questionthe witness201.

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 seekleave; and

b. the matters on which and the extent to which the witness has been, or is likely to be,questioned by another party202.


199 Evidence Act s.38(1). See also paragraphs [38.2] to [38.5] of the commentary reproduced at page 19of Volume 2 Part 5 of the Discipline Law Manual.





CROSS-EXAMINATION

The Object of Cross-examination

6.339 ‘The object of cross-examination is two-fold, first to elicit information concerning facts inissue or relevant to the issue that is favourable to the party on whose behalf the cross-examination isconducted, and, secondly, to cast doubt upon the accuracy of the evidence-in-chief given against sucha party’.203 Anything which is relevant to the issues or the witness's credit is permissible whether it beto 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 inaccurateobservation, unreliable memory, bias and general credit. Furthermore, as a general rule, a cross-examiner 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 awitness for an opponent, the witness should be challenged when in the witness-box, or, at least itshould be made plain while the witness is in the box that his or her evidence is not accepted.204 Forexample, in a case where identification of the accused is in issue and a witness has asserted that heor she saw the accused at a certain relevant time, the cross-examiner must make it clear to thewitness, either by putting it directly to the witness that he or she is mistaken or lying, or by the natureof the cross-examination, that the evidence is not accepted. Failure by the cross-examiner to do thismay allow the cross-examiner's opponent to recall the witness, so that the opponent has a full chanceto put the witness's evidence on the matter before the court.205 In determining the weight to beattached to the witness's evidence, the court may take the failure to cross-examine into account.206

6.342 Usually abstention from cross-examination indicates that the evidence-in-chief is acceptedor, at all events, not controverted. On the other hand, it may indicate that the evidence-in-chief isregarded 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 questionsin cross-examination (paragraphs 6.345-6.349), the power of a Service tribunal to disallow improperquestions (paragraphs 6.350-6.351) and some other statutory and ethical restraints upon cross-examination (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 thecredibility of evidence he or she has given in a Service tribunal proceeding(paragraphs 6.359-6.369); and

b. admissibility rules relating to evidence that is relevant only to the credibility ofevidence a witness has given in such a proceeding (paragraphs 6.370-6.379).

Leading Questions

6.345 A leading question is one which either directly or indirectly suggests a particular answer orassumes the existence of a disputed fact concerning which the witness has not yet testified207.


204 The Rule in Browne v Dunn (1893) 6 R 67; Seymour v Australian Broadcasting Commission [1977]ACLD 511.

205 Evidence Act s.46. Also see r 19 of the DFD Rules.

206 Bulstrode v Trimble [1970] V.R. 840, 848.

207 See, in relation to examples of leading questions, paragraph 6.332.


6.346 A leading question may be asked in cross-examination, subject to a power in the Servicetribunal to disallow it or direct the witness not to answer it208.

6.347 If the tribunal is satisfied that the facts would be better ascertained if leading questions werenot used, it must disallow a leading question or direct the witness not to answer it209.

6.348 In deciding whether to disallow a question or give a direction, the tribunal must take intoaccount the extent to which:

a. evidence given by the witness in examination in chief is unfavourable to the party whocalled him or her;

b. the witness has an interest consistent with an interest of the cross-examining party;

c. the witness is sympathetic to the party conducting the cross-examination (eithergenerally or about a particular matter);

d. the witness's age, or any mental or physical disability to which he or she is subject,may affect his or her answers210.

6.349 One situation when a Service tribunal may consider exercising its power to disallow etc aleading question put in cross-examination is when a co-accused in a joint trial before the tribunal isseeking to lead evidence from a witness called by another co-accused. If, for example, the witnesshas given evidence that is favourable to the cross-examining co-accused, the fact-finding process ofthe tribunal might be assisted by a departure from the general rule that leading questions may beasked in cross-examination.

Improper Questions

6.350 A Service tribunal may disallow, or inform the witness that he or she need not answer, aquestion put to a witness in cross-examination, that is misleading or unduly annoying, harassing,intimidating, offensive, oppressive or repetitive211.

6.351 In deciding whether to disallow a question or give a direction, the tribunal must take intoaccount any relevant condition or characteristic of the witness (such as age or education) and anymental or physical disability to which the witness appears to be subject212.

Other Statutory and Ethical Restraints upon Cross-examination

6.352 The operation of Evidence Act s.128, which provides protection to witnesses against self-incrimination or self-exposure to a penalty, may arise in the context of the cross-examination of awitness (see paragraphs 6.106-6.111).

6.353 Other statutory restraints upon cross-examination of a witness may arise in the context of thecross-examination of a witness that is relevant only to the credibility of evidence he or she has given ina proceeding (see paragraphs 6.359-6.379).

6.354 For ethical reasons a defending officer should not impugn a witness's character unless it isnecessary to do so as part of the accused's case and the imputations are well founded, or the officer







intends to call evidence in support of the imputations.213 Judicial discretion will not permit ‘trap’questions, double-barrelled or vague ones, or questions such as ‘Have you stopped beating yourwife?’ 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 issueare permitted if they go to his credit. That is ... because if what is insinuated is admitted by (thewitness) that may suggest that he is not to be believed on his oath. It is not that he is said to be adiscreditable person: it is that, because of this, his testimony may be incredible. When lawyersspeak of conduct or character as going to the credit of a witness, they use the word 'credit' inrelation to credibility, his veracity, not in the sense of his worthiness.’214

6.356 Matters which go to the credit of a witness include prior statements which are inconsistentwith 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 toevidence he or she has given;

b. admissibility rules relating to evidence that is relevant only to the credibility ofevidence a witness has given.

6.358 The rules in Part 3.7 apply only to evidence that is relevant only to credit. Evidence isrelevant only to the credibility of evidence a witness has given in a proceeding if the only use to whichit can be put in the proceeding is to discredit evidence the witness has given. Such evidence must notbe relevant to the existence of a fact in issue in the proceeding (other than because of the veracity of awitness 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 isrelevant only to determine the credibility of evidence he or she has given215.

6.360 Evidence Act s.104 contains rules about when an accused can be cross-examined uponsuch a matter, whether by the prosecutor (see paragraphs 6.361-6.366) or another accused in theproceeding (see paragraphs 6.367-6.369).

6.361 Unless the evidence is about whether the accused:

a. is biased or has a motive to be untruthful;

b. is or was unable to be aware of or recall matters to which his or her evidence relates;or

c. has made a prior inconsistent statement,

213 Based on Rules 36, 37 and 38 of the ACT Barristers Rules.

214 Wren v Emmett Contractors (1969) 43 ALJR 213 per Windeyer J.

215 See the last two sentences of paragraph 6.358.


the prosecutor cannot cross-examine an accused about a matter relevant only to the credibility ofevidence 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 inthe proceeding that:

a. tends to prove he or she is a person of good character, either generally or in aparticular respect (see paragraphs 6.363 and 6.365); or

b. has been admitted and tends to prove a witness called by the prosecutor has atendency to be untruthful (see paragraphs 6.363-6.365).

6.363 For the purpose of the leave requirement, an accused has 'adduced' evidence in theproceeding if he or she has actually given the evidence, led it from another witness he or she hascalled 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 tothe 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 thattends to prove a witness called by the prosecutor has a tendency to be untruthful, the evidence mustbe relevant solely or mainly to the credibility of evidence the witness has given in the proceeding. Theevidence must also not be evidence of conduct relating to the events in relation to which the accusedis 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 aprosecution witness has lied in the course of giving evidence about the events that are the subject ofthe 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 givenwould arise when the evidence adduced by the accused tends to prove that the prosecution witnesslied on some occasion unconnected with the proceedings (eg. during the prosecution of some otherperson 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, thelength of the hearing;

b. the extent to which to give leave would be unfair to a party or a witness;

c. the importance of the evidence sought to be obtained by cross-examination of theaccused;



6.367 In joint trials before Service tribunals, an accused cannot cross-examine a co-accused abouta matter relevant only to the credibility of evidence that the co-accused has given in the proceedingunless the tribunal gives leave. Leave cannot be given unless the co-accused has given evidenceadverse to the accused who is seeking leave to cross-examine and the evidence has been admitted inthe proceeding.

6.368 The Service tribunal must take into account the matters stated at paragraph 6.366 above indeciding whether to give leave.



6.369 It could be expected that on most occasions leave would be given. The general principle isthat an accused should be able to put his or her defence in its entirety217.

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 relevantonly to the credibility of evidence a witness has given218.

6.371 Those rules differ depending upon whether the evidence is adduced upon cross-examinationof 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 relevantto 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 credibilityof evidence the person has given is admissible only if it has substantial probative value219.

6.373 In deciding whether the evidence has substantial probative value, the Service tribunal musttake into account:

a. whether the evidence tends to prove that the witness knowingly or recklessly made afalse representation when under an obligation to tell the truth; and

b. the period that has elapsed since the acts or events to which the evidence relateswere done or occurred220.

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 somesocial occasions (eg. during drinks in the Other Rank's Canteen celebrating a win in an inter-unitsporting fixture).

Evidence Adduced in Rebuttal

6.374 If a witness denies (for example, during cross-examination) the substance of evidence that isrelevant only to the credibility of evidence a witness has given in the proceeding, the evidence isadmissible if it is adduced otherwise than from the witness and it tends to prove he or she:

a. is biased or has a motive to be untruthful;

b. has been convicted of an offence;

c. has made a prior inconsistent statement;

d. is or was unable to be aware of matters to which his or her evidence relates; or

e. has knowingly or recklessly made a false representation while under an obligationimposed by or under an Australian law or a law of a foreign country to tell the truth221.

217 See, in relation to an occasion within a civil context when leave may be refused, paragraph [104.8] oftheEvidence Act 1995 (plus commentary) commentary reproduced at page 54 of Volume 2 Part 5 ofthe Discipline Law Manual.

218 See the last two sentences of paragraph 6.358.




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 includewhere the witness has given or received a bribe222, or where it is alleged that a witness had said topolice that, if compelled to give evidence, he or she would lie in order to avoid offending theaccused223.

S.106(b) - Prior Convictions of the Witness

6.376 Very seldom would a conviction for a traffic offence satisfy the requirement under EvidenceAct s.103 that the evidence has substantial probative value: hence the occasion for the operation ofEvidence 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 priorinconsistent statement made by a witness if, during cross-examination, the cross-examining partyinformed the witness of enough of the circumstances of the making of the statement to identify it anddrew the witness's attention to the inconsistency. If a record of the statement is contained in adocument, the document need not have been shown to the witness224.

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 physicalincapacity of the witness225.

S.106(e) - the Witness 'has Knowingly or Recklessly made a False Representation while underan 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 paragraph6.372), an obligation 'imposed by or under an Australian law or a law of a foreign country' to tell thetruth 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 givesevidence 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.60226 applies, if a cross-examiner succeeds indestroying a witness's credit that does not entitle a court to find as established the opposite of whatthat witness asserted. To quote a well-known passage:


222 eg. Attorney-General v Hitchcock (1847) 1 Exch 91, 154 ER 38.

223 eg. R v Angelis [1979] 20 S.A.S.R. 288.


225 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 hadseen at 50 yards, it must surely be possible to call the evidence of an oculist to the effect that thewitness could not possibly see anything at a greater distance than 20 yards ....’

226 See paragraphs 6.163 et seq., particularly paragraphs 6.166-6.167.


‘If by cross-examination to credit you prove a man's oath cannot be relied on, and he has swornthat he did not go to Rome on May 1, you do not, therefore, prove that he did go to Rome on May 1;there is simply no evidence on the subject’.227

RE-EXAMINATION

6.381 The purpose of re-examination is to clear up any ambiguity or uncertainty in the answersgiven in cross-examination and is permissible in every case where the answers or account given incross-examination would, if left unexplained or uncompleted, not constitute the whole truth.228 Awitness may be questioned in re-examination about matters arising out of evidence he or she gave incross-examination: other questions may not be put to the witness unless the Service tribunal givesleave.

6.382 The same rules in relation to leading questions that apply in examination in chief apply in re-examination (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 awitness. Under s.108(3) evidence of a prior inconsistent statement of a witness is admissible if thetribunal has given leave to adduce the evidence, where:

a. evidence of a prior consistent statement has been admitted; or

b. 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 tothis rule. The rule applies to an accused person, as well as to the prosecution, but few problems arisein the case of an accused.

6.385 The two most frequently occurring situations where a party may seek to lead furtherevidence after his case has closed are: ‘re-opening’ and ‘evidence in rebuttal’ 229.

6.386 A party may be permitted to re-open his case to meet an objection that some formal proof ofa matter that really does not admit of denial has been overlooked, provided that re-opening the case isnecessary in the interests of justice.230 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 aMaster's Certificate.231

6.387 ‘Evidence in rebuttal’ may be adduced by a prosecutor by leave of the Service tribunal onany matter raised by the defence where the requirement for such evidence was not reasonablyforeseeable or could not properly have been adduced before the accused presented his or herdefence.232 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.

228 per Wells Q.C. in ‘An Introduction to the Law of Evidence’ (3rd Ed 1979). R v Boland (1974) V.R. 849at 874, 5.

229 See Waight and Williams, Evidence Commentary and Materials, 4th edition, p 331

230 See r.19(3) of the DFD Rules.

231 In Re Kendrick (No. 2) (1903) 28 V.L.R. 472.

232 Rule 19(2) of the DFD Rules; in relation to alibi evidence see DFDA s 145A.


circumstances and when it is reasonably clear that the accused will not be unfairly prejudiced by theadmission of that evidence.233

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 partyrelies be corroborated'.

6.389 Subsection 164(2) provides that Evidence Act s.164(1) 'does not affect the operation of arule of law that requires corroboration with respect to the offence of perjury or a similar or relatedoffence'234. Also, Evidence Act s.164(1) will not affect a requirement by another (Commonwealth) Actthat evidence be corroborated235.

6.390 Evidence Act s.164(3) abolishes any rule of law or practice requiring corroboration warnings:subject to other provisions of the Act236, if there is a jury it is not necessary that a judge warn the jurythat it is dangerous to act on uncorroborated evidence or give a direction relating to absence ofcorroboration.

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 ... Therule is strictly confined to proof of the falsity of the statement [R v. Linehan [1921] VLR 58; R v. Allsop(1899) 24 VLR 812]...’237.

6.392 Corroboration means confirmation or support and it must take the form of a separate item ofevidence implicating the accused. It can consist of the testimony of a second witness about the falsityof the statement, but the evidence of a second witness is not essential. For example, corroborationcan consist of an admission of the accused that the statement was false238.

6.393 A person's statement in court may also be held to corroborate the case against him239.

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 thereis evidence capable of amounting to corroboration240; 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

234 An example of a 'similar or related offence' is an offence against s.35 of the Crimes Act 1914 (Cth.).

235 For example, s.94(7) of the Marriage Act 1961 (bigamy): see Evidence Act s.8(1).

236Evidence Act s.165, for example, provides that in certain circumstances a judge must warn a jury aboutthe dangers of evidence that is of a kind that may be unreliable. Where there is a jury and a party sorequests, the judge must warn the jury that such evidence may be unreliable, inform the jury of thematters that may cause the evidence to be unreliable and warn the jury about the need for caution indetermining whether to accept the evidence and what weight to give it. The judge need not give awarning if there are good reasons for not doing so.

237 Cross on Evidence, 4th Australian Edition, paragraph 15020.

238 See Cross, paragraph 15020, sixth sentence. Other examples of corroborative evidence in relation tothe offence of perjury are also discussed by Cross at paragraph 15020.

239 R v Dossi (1918) 13 Cr. App. Rep. 158.


evidence is in fact corroborative and has any weight. In a case where there is no corroboration, thejudge 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 corroborativeit should not contain a general disquisition on the law of corroboration couched in lawyer's languagebut should be tailored to the particular circumstances of the case.241

6.396 Although there is no such thing as a model summing up in these cases, the judge advocatemust tell the court what corroboration is - independent evidence of some material fact which implicatesthe accused and tends to confirm that he or she is guilty of the offence. Although it is probablyunnecessary for the judge advocate to indicate which particular items of evidence could constitutecorroboration there should be a broad indication of the sort of evidence which may be treated ascorroborative. A conviction may be quashed if the judge advocate refers to items of evidence as beingcorroborative when in fact they are not. Where the corroboration relates to some counts but not all,this fact should be made clear to the court.242

240 DFDA s.134(1).

241 per Lord Diplock in DPP v Hester [1973] A.C. 296, 328.

242 Cross on Evidence, 4th Australian edition, paragraph 15255. See also Re Pixley's Appeal, CourtMartial Appeal Tribunal 2/1980.

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 dealingwith certain matters expeditiously and without ordinary incidental formalities 1. In the context ofdisciplinary law in the Defence Force, the word summary is used to describe all proceedings under theDefence 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 ofsummary authority is to enable minor offences to be dealt with by junior officers and to ensure thatmore serious offences are dealt with by senior officers. Another purpose is to ensure that any officerwho 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 acharge and jurisdiction to try a charge. A summary authority's jurisdiction to deal with a charge isgenerally 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 authoritymay hear evidence in connection with the charge or an outline of the case. Subject to which type ofsummary authority is involved, the following options may be open in dealing with a charge:

a. to decide to try the charge,

b. to direct that the charge be not proceeded with, or

c. to refer the charge to another authority.

These options and the extent of both kinds of jurisdiction for each type of summary authority arediscussed 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 thecommanding officer who appointed him2. In dealing with a charge, a subordinate summary authoritymay:

a. decide to try a charge against a member of the Defence Force who is of or below therank of leading seaman or corporal or is an officer cadet where the charge is of a kindnotified to him in writing by the commanding officer who appointed him3;

b. where he does not have jurisdiction to try the charge and is of opinion that there isinsufficient evidence to support the charge - direct that the charge not be proceededwith4; or

1 Dowson v McGrath (1956) W.A.R. 27.

2 DFDA s.108(1); Reg 33 of the DFD Regulations.

3 DFDA s.111(2)(a).


c. whether or not he has jurisdiction to try the charge—refer the charge to thecommanding officer who appointed him, or to another subordinate summaryauthority5.

7.5 A more detailed discussion of the specific ways in which a subordinate summary authoritymay 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 anofficer must be dealt with at first instance by a subordinate summary authority6. However, acommanding officer may direct in a particular case or in relation to a particular class of cases that thecharge is not to be dealt with by a subordinate summary authority. For example he may direct that asubordinate 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 awritten instrument which specifies the kinds of Service offences with which the authority may deal7.The specific offences which it is appropriate to authorise a subordinate summary authority to deal withwill vary according to the officer's rank and, to a lesser extent, with the nature of the unit and itsparticular functions at the relevant time, but above all with the extent of his power to punish. Thepunishments 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 mustensure that these appointments are revoked when any party is posted. The subordinate summaryauthorities affected should be given notice of the revocation. Provision for such revocation may beincluded at the bottom of the instrument of appointment. Where a subordinate summary authority isappointed as an officer included in a class of officers, there is no need to revoke his appointment onposting.

Punishments Available to a Subordinate Summary Authority

7.10 The punishments available to a subordinate summary authority are set out in Table C toSchedule 3 of the DFDA and, for convenience, are reproduced below8. The punishments provided inthe Act are in two scales. The first ('Scale 1'—for the purposes of this paragraph) is applicable only tothe Navy and then only to a subordinate summary authority who is an officer of the rank ofcommander or above, or who is the Executive Officer of a ship or establishment and is of or above therank of lieutenant. The second scale ('Scale 2') applies to all other subordinate summary authoritiesand is, thus, applicable to the Army and the Air Force in all relevant cases and, in the Navy, tosubordinate 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 (indecreasing order of severity):

4 DFDA s.111(2)(b).

5 DFDA s.111(2)(c).

6 DFDA s.111

7 DFDA s.105(2), 108; also see Form 45.

8 The punishments prescribed by the DFD Regulations in relation to officer cadets are incorporated inthe reproduced table.


Convicted person Scale 1 Punishments - Navy Commanders and above andExecutive Officers of or above the rank of lieutenant

Leading seaman Fine not exceeding the amount of the convicted person's pay for7 daysSevere reprimandStoppage of leave for a period not exceeding 21 daysReprimand

Sailor below the rank of leading seaman Fine not exceeding the amount of the convicted person's pay for7 daysSevere reprimandRestriction of privileges for a period not exceeding 14 daysStoppage of leave for a period not exceeding 21 daysExtra duties for a period not exceeding 7 daysExtra drill for not more than 2 sessions of 30 minutes each perday for a period not exceeding 3 daysReprimand

Officer cadet of the rank of midshipman Fine not exceeding the amount of the convicted person’s pay for3 daysSevere reprimandRestriction of privileges for a period not exceeding 7 daysStoppage of leave for a period not exceeding 7 daysExtra duties for a period not exceeding 3 daysReprimand(See paragraphs 7.90 to 7.98)

Convicted personScale 2 Punishments - Army and RAAF subordinatesummary authorities and Navy Officers-of-the-Watch/Day

Non-commissioned officer of or below the rankof leading seaman or corporal, ie leadingseaman, corporal, lance corporal9

Fine not exceeding the amount of the convicted person's pay for3 daysSevere reprimandReprimand

Member below non- commissioned rank (ieable seaman, leading aircraftman, private,seaman, aircraftman) or officer cadet

(See paragraphs 7.90 to 7.98)

Fine not exceeding the amount of the convicted person’s pay for3 daysSevere reprimandRestriction of privileges for a period not exceeding 7 daysStoppage of leave for a period not exceeding 7 daysExtra duties for a period not exceeding 7 daysExtra drill for not more than 2 sessions of 30 minutes each perday for a period not exceeding 3 daysReprimand

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 ascertainwhether 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

9 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 ofleading seaman;

(b) a soldier holding a rank not higher than the rank of staff sergeant and not lower than the rank oflance-corporal; or

(c) an airman holding a rank not higher than the rank of flight sergeant and not lower than the rank ofcorporal.'


grounds to be biased he should not try the charge10. Also, a subordinate summary authority should nottry a charge, even though it falls within his jurisdiction, where after hearing, an outline of theprosecution case and some or all of the prosecution evidence he considers that he does not have thepower 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 tosupport the charge he should direct that the charge not be proceeded with11. The purpose of thisprocedure is to ensure that frivolous or unsubstantiated allegations are not referred to a higherauthority; however, the direction that a charge not be proceeded with does not operate as a bar tofurther proceedings against the accused in respect of the same offence12. In order that considerationcan be given to any need for further proceedings against the accused, where a subordinate summaryauthority has directed that the charge not be proceeded with, the record of the proceedings is to beforwarded 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 asubordinate summary authority to try, he may refer it to the commanding officer of the authority or toanother subordinate summary authority. The latter procedure will generally only be applicable in theNavy in respect of a charge which has been dealt with by an officer-of-the watch/day and, inaccordance with general or standing orders, is referred to the Executive Officer. However, it may alsoapply in other cases; for example, where a subordinate summary authority considers himself to bedisqualified from trying a charge by reason of bias, he may refer the charge to another subordinatesummary authority.

7.15 As discussed in paragraph 7.13, where the charge is not within the jurisdiction of asubordinate summary authority to try, he should only refer it to a commanding officer where he is ofthe opinion that there is sufficient evidence to support it.

COMMANDING OFFICERS

Jurisdiction

7.16 A commanding officer may deal with any charge against any person13. As to who may becharged 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 summaryauthority or a convening authority14. A commanding officer may try any charge except where it relates

10 DFDA ss.141(4)(b).).

11 DFDA ss.111(2)(b).

12 DFDA ss.144(4)(c).

13 DFDA s.107(1). The persons who may be charged under the DFDA are described in Chapter 2.

14 DFDA s.110.


to a prescribed offence15 or where the accused is above the rank of flight lieutenant (or equivalent) oris less than two ranks junior to him16.

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 asa commanding officer, whether this appointment is temporary or of a long-term nature. Alternatively, aService chief17 or an authorised officer18 may, by instrument in writing, appoint an officer to exercise allthe powers conferred on a commanding officer under the DFDA or such of those powers as arespecified in the instrument of appointment 19.

Revocation of Appointment

7.18 A Service chief or an authorised officer may revoke or limit a commanding officer's summarypowers whether they were conferred upon the commanding officer automatically or by instrument20.

Punishments Available to a Commanding Officer

7.19 Where a commanding officer tries a charge and convicts the accused, he may impose apunishment (or punishments) in accordance with Table B to Schedule 3 of the DFDA. Forconvenience, these punishments are set out in Table 1 overleaf. The punishments prescribed by theDFD 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 punishmentsare 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 CommandingOfficer rather than by a court martial or DFM, or

b. pleads not guilty to a charge, elects to be tried by the Commanding Officer, instead ofby a court martial or DFM and is subsequently convicted.

A commanding officer may only award an elective punishment where the accused is offered anelection as detailed above. However, notwithstanding the fact than an election has been given andthe accused (or the convicted) has elected to be tried (or punished) by the commanding officer, thecommanding officer is not compelled to award an elective punishment should a conviction berecorded. The giving of an election merely opens up the option for the commanding officer to awardone of the more potent elective punishments. Upon conviction the evidence presented in mitigation orthe circumstances surrounding the commission of the offence as detailed by the evidence or theprosecution outline may mitigate against the award of an elective punishment.

15 Section 104 of the DFDA specifies certain offences as being "prescribed offences". A prescribedoffence includes treason, rape, murder, manslaughter or bigamy and any ancillary offences to thoseoffences (eg being an accessory or inciting or a co-conspirator). Other prescribed offences arespecified in the Regulations. With a few exceptions, these are offences which carry a maximumpunishment 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.

16 DFDA s.107(2).

17 ie CDF, CN, CA, CAF.

18 ie an officer authorised for that purpose by a Service chief.

19 DFDA s.5(1).

20 DFDA s.5(3).


7.21 Where an accused pleads guilty and is convicted, the right of election is given after thecommanding officer has convicted the accused if the commanding officer considers that an electivepunishment should be imposed (section 131(2A)).

7.22 Where an accused enters a plea of not guilty the accused is given the right of electionwhere, in the course of a summary trial before the commanding officer, the commanding officer is ofthe opinion that the prosecution evidence is sufficient to support the charge and that in the event ofconvicting the accused, the commanding officer is likely to impose an elective punishment21.

7.23 If a commanding officer intends to give a member an election in respect of trial orpunishment, written notification of the consequences of the election should be provided. The memberinvolved should also record the exercise of his election in writing. The notification andacknowledgment forms provided for in Annexes U and V (Notification and Election) should be used forthis purpose. Subject to the exigencies of the Service, a member who is given an election maydiscuss the exercise of the election with a legal officer. In all cases the member being given theelection should be given the option of discussing the exercise of the election with his or her Defendingofficer (or an independent member of the ADF if the member is not represented). A short adjournmentof 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 commandingofficer is required, subject to the exigencies of the Service, to refer the charge to a ConcerningAuthority22.

7.25 ‘Other punishments’ which are referred to in Column 3, are punishments which may beimposed in any case where an accused has not been offered the right to elect trial or punishment bycourt martial or Defence Force magistrate.

Table 1

Table of Punishments

Column 1Convicted person

Column 2Elective punishment

Column 3Other punishment

Officer (other than officercadet) of or below the rank ofLieutenant in the Navy,Captain in the Army or FlightLieutenant or Warrant Officer

Fine exceeding the amount of theconvicted person's pay for 7 daysbut not exceeding the amount of theconvicted person's pay for 14 days

Fine not exceeding the amount ofthe convicted person's pay for 7daysSevere reprimandReprimand

Officer Cadet As for any other officer As for any other officer plusRestriction of privileges for a periodnot exceeding 14 daysStoppage of leave for a period notexceeding 21 daysExtra duties for a period notexceeding 3 days

Non-commissioned officer ofthe Navy23

Reduction in rank by not more thanone rankForfeiture of seniority

Fine not exceeding the amount ofthe convicted person's pay for 28daysSevere reprimandStoppage of leave for a period notexceeding 21 daysReprimand

21 DFDA s.131(1).

22 DFDA s.131(2), (4).

23 See DFDA s.3(1) (reproduced at footnote 9) for definition of ‘non-commissioned officer’.





Non-commissioned officer ofthe Army or Air Force24

Reduction in rank by not more thanone rank (or 2 ranks if a corporal inthe Army)Forfeiture of seniorityFine exceeding the amount of theconvicted person’s pay for 7 daysbut not exceeding the amount of theconvicted person’s pay for 14 days

Fine not exceeding the amount ofthe convicted person’s pay for 7daysSevere reprimandReprimand

Member below non-commissioned rank in theNavy 26

Detention for a period not exceeding42 daysReduction in rankForfeiture of seniorityFine not exceeding the amount ofthe convicted person's pay for 28daysSevere reprimandRestriction of privileges for a periodnot exceeding 14 daysStoppage of leave for a period notexceeding 21 daysExtra duties for a period notexceeding 7 daysExtra drill for not more than 2sessions of 30 minutes each perday for a period not exceeding 3daysReprimand

Member below non-commissioned rank in theArmy or the Air Force who,at the time he committed theService offence of which hehas been convicted, WAS onactive service

Detention for a period exceeding 14days but not exceeding 42 daysFine exceeding the amount of theconvicted person's pay for 14 daysbut not exceeding the amount of theconvicted person's pay for 28 days

Detention for a period not exceeding14 daysFine not exceeding the amount ofthe convicted person's pay for 14daysSevere reprimandRestriction of privileges for a periodnot exceeding 14 daysExtra duties for a period notexceeding 7 daysExtra drill for not more than 2sessions of 30 minutes each perday for a period not exceeding 3daysReprimand

24 See DFDA s.3(1) (reproduced at footnote 9) for definition of ‘non-commissioned officer’.





Member below non-commissioned rank in theArmy or the Air Force who,at the time he committed theService offence of which hehas been convicted, wasNOT on active service

Detention for a period exceeding 7days but not exceeding 28 daysFine exceeding the amount of theconvicted person's pay for 7 daysbut not exceeding the amount of theconvicted person's pay for 28 days

Detention for a period not exceeding7 daysFine not exceeding the amount ofthe convicted person's pay for 7daysSevere reprimandRestriction of privileges for a periodnot exceeding 14 daysExtra duties for a period notexceeding 7 daysExtra drill for not more than 2sessions of 30 minutes each perday for a period not exceeding 3daysReprimand

Person who is not a memberof the Defence Force

Fine exceeding $100 but notexceeding $200

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 hasjurisdiction to do so. He does not have jurisdiction if the accused is an officer who is either less thantwo ranks junior to him or is above the rank of flight lieutenant (or equivalent) or the charge relates to aprescribed offence25. In all other cases he does have jurisdiction. Where a commanding officer doesnot have jurisdiction to try a charge, he may, nevertheless, receive prosecution evidence, and, if he isof the opinion that the evidence is insufficient to support the charge, is to direct that the charge not beproceeded with26 otherwise, he is required to refer the charge to another authority. A commandingofficer may either hear evidence himself or direct an examining officer to hear evidence, which thecommanding officer will then consider, in order to determine whether to refer the charge or to directthat it not be proceeded with.

7.28 Where a commanding officer has jurisdiction to try a charge, he must then decide whetherhe should try it. First, he should consider whether there is a factor, such as bias, which might disqualifyhim, or whether it is desirable in the interests of justice or for any other reason that he should not trythe charge. Then he must assess the gravity of the alleged offence and the punishment which wouldprobably be appropriate in the event that the accused is convicted. In order to make this decision, hewill need, in all cases, to have regard to the charge and to the maximum punishment which may beimposed in the event of conviction. In some cases he may also need to hear an outline of theprosecution case27 and some or all of the prosecution evidence.

7.29 Having formed a view as to the probable seriousness of the charge, the commanding officermust then decide whether he has the power to impose an appropriate punishment in the event that thecharge is proved. If in his opinion the charge, if proved, would warrant a more severe punishment thanhe could impose (whether the punishment be an elective one or otherwise) he must refer the charge toa convening authority. On the other hand, if he considers that he has the power to impose anappropriate punishment he should proceed with the trial. Where, in the course of the trial, he considersthat the evidence adduced by the prosecution is sufficient to support the charge, and, in the event ofconvicting 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’.


27 For this purpose, evidence may be heard under s.111A of the DFDA.


required to give the accused an opportunity to elect to be tried or punished by court martial or DefenceForce magistrate28.

7.30 Where oral evidence is given at a hearing for the purpose of determining whether acommanding officer should try a charge, this evidence may form part of the evidence at thesubsequent trial of the accused before the same commanding officer. Witnesses who give evidence atthe hearing are not required to repeat that evidence at the trial unless the accused requires them to doso. Regardless of whether witnesses are required to give evidence at the trial (having given evidenceat a prior hearing) they must be made available for cross-examination by the accused29.

7.31 In the event that a commanding officer decides to try a charge and commences the trial, hemay, nevertheless, break off the trial and refer the charge to a convening authority30.

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, hearevidence against the accused. If, in his opinion, this evidence is insufficient to support the charge hemust direct that the charge not be proceeded with31. The commanding officer may hear the evidencehimself or, where the charge relates to a prescribed offence or appears to be sufficiently serious towarrant trial by court martial or Defence Force magistrate, should direct an examining officer to hearevidence.

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 officermay refer a charge to another commanding officer to deal with32.

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 withinthe jurisdiction of the superior summary authority to try33. As the jurisdiction of a superior summaryauthority in relation to a member of the Defence Force (which is restricted to offenders who areofficers or warrant officers) is only one rank different from that of a commanding officer, there willusually 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 preferablefor 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 thecommanding officer has jurisdiction to try it34. If it is not within his jurisdiction to try, he should refer it tothe convening authority only where he is satisfied that there is sufficient evidence to support it;otherwise, he should direct that the charge not be proceeded with35. Where the charge is within his


29 DFDA s.111A and Rule 6(2)(D) of the DFD Rules.

30 DFDA s.131A.

31 DFDA s.110(b); also see paragraph 7.13.

32 DFDA s.110(e); see also paragraph 7.16.

33 DFDA s.110(1)(c).

34 DFDA s.110(2).

35 See paragraphs 7.13 and 7.32.


jurisdiction to try, a commanding officer should refer it to a convening authority only when he considersthat he does not have the power to impose an appropriate punishment in the event that the accused isconvicted, or, in an appropriate case, where the accused elects to be tried by court martial or DefenceForce magistrate36.

7.36 Notwithstanding anything in paragraph 7.35, in a case where the alleged offence involvesfraud against the Commonwealth, and the amount of the loss occasioned by the alleged offenceexceeds the limit of a reparation order which may be imposed by a summary authority (see paragraph11.71) the matter is not to be tried summarily bit is to be referred to a convening authority who is ableto 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 acommanding officer or a convening authority; he may not deal with a charge of his own motion. Indealing with a charge he may try it or refer it to a convening authority37. A superior summary authoritymay try a charge in respect of a Service offence which is not a prescribed offence38 where theaccused is two or more ranks junior to him being not higher in rank than squadron leader (orequivalent), a warrant officer or a person who is not a member of the Defence Force39. A superiorsummary authority may not try a charge against a member of the Defence Force who is not an officeror a warrant officer.

Appointment

7.38 An officer may exercise the powers of a superior summary authority only when he has beenduly appointed as such by a Service chief40. In exceptional circumstances it may be desirable that acommanding officer also hold an appointment as a superior summary authority. In such a case, theofficer concerned may not deal with a charge as a superior summary authority with which he has dealtas a commanding officer, or which is related to such a charge. It should also be remembered thatunder the DFDA a summary authority may deal with a charge against a member of a Service otherthan his own. Thus, if the commanding officer of a naval air squadron, which is operating from a RAAFbase, decides to refer a charge to a superior summary authority, he may refer it to the OfficerCommanding the RAAF base (if he is appointed as a superior summary authority) rather than to asuperior 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 imposepunishments in accordance with Table A of Schedule 3 of the DFDA. These punishments are in factthe same as those which may be imposed by a commanding officer in respect of officers, warrantofficers and persons who are not members of the Defence Force and, for convenience, are set outbelow. 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 magistratearises in the same way as explained in paragraph 7.20 in connection with punishments available to acommanding officer.



38 DFDA s.109. As to prescribed offences, see footnote 16.


40 DFDA s.105(1).


7.40 The punishments available to a superior summary authority are as follows:

Convicted person Elective punishment Other punishmentOfficer of or below the rank oflieutenant commander, major orsquadron leader or warrant officer

Fine exceeding the amount of theconvicted person's pay for 7 daysbut not exceeding the amount of theconvicted person's pay for 14 days

Fine not exceeding the amount ofthe convicted person's pay for 7daysSevere reprimandReprimand

Person who is not a member of theDefence force

Fine exceeding $l00 but notexceeding $200

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, onreasonable grounds, charge a person with a Service offence. The manner in which a person may becharged is described in Chapter 4.

7.43 In order to make appropriate administrative arrangements for the conduct of summaryproceedings, a summary authority may be informed of the general nature of charges with which he willhave 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 thelikely duration of the proceedings. A summary authority should not, however, seek to obtain any of theevidence 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 hecommences the hearing. Written statements which have been made by witnesses prior to the hearingwill not be made available until after the hearing is completed. Similarly, reports by police relating tothe offence which is the subject of the charge may not be examined by a summary authority before hedeals with the charge.

Documents Furnished to the Accused

7.44 After an accused has been charged he must be given a copy of the charge41 and a copy ofeach statement in writing obtained by the prosecutor from material witnesses to the alleged offence42.If the prosecutor proposes to adduce evidence which is not contained in the statements which havebeen given to the accused, he must, as soon as practicable, furnish the accused with notice andparticulars of the evidence. Similarly, if the prosecutor decides not to call a witness who has made astatement 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 theDefence Force to defend him at a hearing before a summary authority. Where the services of theperson who has been requested are reasonably available the person must be permitted to defend theaccused. However, there is no right to be represented by a legal officer unless a commanding officeror a superior summary authority permits a legal officer to act as the defending officer. If the person is

41 DFDA s.87(1)(a)(ii); 95(3).

42 DFD Rule 15.


not reasonably available, the summary authority may, with the consent of the accused, direct anothermember of the Defence Force to defend the accused43.

7.46 In most simple cases it is suggested that an accused should be represented by an officer orwarrant officer or senior non-commissioned officer who has specific duties in relation to the accused'semployment and welfare and who knows him well. In difficult cases before a commanding officer or asuperior summary authority, the summary authority can be requested to permit a legal officer torepresent the accused. 44

7.47 Where a person has been asked or directed to represent an accused, he thereby acquires aduty to guard the accused's interests by all honourable and legitimate means known to the law. If, forpersonal or Service reasons, the person considers that he cannot defend the accused effectively heshould inform the accused and arrange for someone else to take on the case. In order to avoid conflictbetween his duty to the Service and his duty to an accused person, a defending officer should, beforeundertaking the defence of the accused, remind the accused that he is not obliged to say anythingwhich will incriminate him. If the accused admits to committing the alleged offence, and intends toplead not guilty to the charge, the defending officer should generally withdraw from the case andinform the accused that he is unable to defend him effectively. When it is not practicable to arrange foranother person to represent the accused, the defending officer should continue to act for him but maynot falsely suggest to the Service tribunal that some other person committed the offence charged orset 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 bystudying the charge sheet and the statements made by witnesses, and determine whether theaccused should call evidence contradicting any part of the prosecution case. The accused shouldconsider whether any of the rights which are printed on the back of the Summary Proceedings Reportapply to him and whether he wishes to make any appropriate applications or objections in respect ofthese rights. Consideration should also be given to calling character witnesses and to the preparationof 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, thisis likely to provide evidence favourable to the accused's defence. If the accused has a version of thefacts which differs substantially from the case being put by prosecution witnesses, the defendingofficer should put this version to the appropriate witnesses. It is not part of the defending officer's dutyto seek an acquittal at all costs but he should present the accused's case in the most favourable lightpossible. He should not make any allegations against the character of any other person that he cannotprove, nor should he attempt to deceive the summary authority. Prior to the plea in mitigation, thedefending officer may complete Form PD 10845 and submit it to the summary authority. In making hisplea in mitigation, the defending officer may call witnesses to give evidence as to the character of theaccused 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 thecharge. A summary authority may not, himself, act as prosecutor as this would be inconsistent with hisduty to act impartially in dealing with a charge. An authority may ask questions of witnesses in the

43 DFD Rule 24.

44 DFD Rule 24(2A).

45 Pre-Sentence Report, see Annex R to this Chapter.


course of a hearing but should limit such questions to clarification of evidence and should avoid thetemptation 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 madewithin his unit for the prosecution of Service offences. Normally, he should nominate persons to act asprosecutors 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 accusedwill be prosecuted by a person of appropriate rank, and that more difficult or complex cases will bedealt with by experienced personnel.

7.52 The authority may appoint prosecutors by name or from a class or group of members who bytheir rank and service duties are well suited for the task. Any officer, warrant officer or senior non-commissioned 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 memberof the Defence Force authorised to charge the member. In making his decision, the authorisedmember will have regard to the level of summary authority who will initially deal with the charge. Aperson who has been involved in the investigation of a Service offence should not usually act asprosecutor of a resulting charge. It may be necessary for an officer who holds an appointment as asubordinate summary authority, on occasions, to be used as a prosecutor, but, having acted in one ofthose capacities in relation to a charge, it would be improper for him to act in the other capacity inrelation 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 properlyframed and that there is sufficient evidence to support the charge. He should confirm the date, timeand place of the hearing and arrange for the attendance of witnesses necessary to prove eachelement of the charge. He should also arrange for the provision and safe-guarding of documentaryevidence, if any, and the accused person's conduct record. The prosecutor must ensure that theaccused is provided with a copy of the charge and a copy of each statement made by prosecutionwitnesses, if these have not already been provided by the authorised member. The prosecutor mustalso ensure that any material that might possibly assist the accused is disclosed to the defendingofficer.

7.55 Shortly before the hearing, the prosecutor should ensure that each witness is thoroughlyconversant 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 ofthe facts in issue—particularly 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 repeatsanother witness's evidence. If such a witness is not to give evidence, the defending officer should beadvised so that he or she may consider whether to call that witness or ask for the prosecution totender the witness for cross-examination. A witness should not be discarded only because he is likelyto 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 theSummary Proceedings Report before the summary authority. The prosecutor should also address anystatutory alternative charge upon which he or she might seek to rely if the primary charge is not madeout. He is required to question prosecution witnesses and cross-examine defence witnesses toprovide evidence in support of the charge. The prosecutor has a duty to present evidence in a waywhich is fair to the accused; it is not his duty to obtain a conviction at all costs. Where, at a trial, aperson has been convicted, the prosecutor is responsible for producing the person's conduct recordwhen called upon to do so. The Form PD 103—Conduct Record—will contain a note to the effect thatsome of the convictions recorded in it may be 'spent convictions' within the meaning of Part VIIC of theCrimes Act. A spent conviction is one where the punishment imposed was not more than 30 monthsimprisonment, and more than 10 years have elapsed or more than 5 years when the offender was aminor at the time of the conviction. Although the prosecutor may disclose a spent conviction to the


summary authority, the prosecutor should draw to the attention of the summary authority the fact thatthe conviction is spent, so that the authority may exercise discretion as to whether or not to consider itin 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 andthe Rules and in a manner befitting a court of justice;

b. to ensure that an accused does not suffer any undue disadvantage in consequence ofhis position as such or of his ignorance or of his incapacity to adequately examine orcross-examine witnesses or to make his own evidence clear and intelligible, orotherwise;

c. to try the accused according to the evidence;

d. to ensure that an adequate record of the proceedings before him is made46; and

e. 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 Rule43).

7.58 For most practical purposes the procedure at all summary trials is the same, regardless ofwhich level of summary authority is involved. Before discussing the procedures in detail, somecomment 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 atattention, 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 rulesgoverning all of the ceremonial aspects of summary trials. The purpose is to help ensure that thedisciplinary law system in operation in the Defence Force remains flexible so that it can meet theneeds and particular circumstances of different units within each Service. In this context, it is to benoted 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 ofhis position’47.

7.60 It may be, in some cases, that the ordinary ceremonial aspects of summary proceedings donot promote or even are inconsistent with the administration of justice and, for that reason, ought to bedispensed with. For example, in any case where there is a large amount of evidence or for otherreasons, it may be desirable that all the participants, including the accused, should remain seatedthroughout the proceedings. Similarly, every effort should be made to avoid transferring the militarystandards of the parade ground to a summary hearing, as this may tend to detract from the realpurpose of the proceedings or may put the accused at a psychological disadvantage. It should also beremembered that proceedings under the DFDA are in the nature of criminal judicial proceedings withthe special purpose of maintaining discipline in the Defence Force, and that the powers conferred byParliament on summary authorities must be exercised strictly according to law.

46 DFD Rule 22.

47 DFD Rule 22.


Procedures Generally

7.61 The procedures to be followed at summary hearings are set out in Annexes A, C, E, G, I andK. In particular cases, the steps which are followed will vary according to which type of summaryauthority conducts the hearing, whether or not the authority has jurisdiction to try the charge,whether—despite having jurisdiction to try—the authority decides he should not try it and, in the eventthat he does decide to try the charge, whether the accused pleads guilty or not guilty. As an aid toclarifying the various procedural steps involved in any summary hearing, diagrams are included atAnnexes B, D, F, H, J and L.. The numbers which are included in the blocks in each diagramcorrespond 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 ofnothing more than the formal steps up to and including the reading of the charge sheet and thedecision by the summary authority to proceed with the trial. In a small number of cases the summaryauthority may wish to hear an outline of the prosecution case and may also hear evidence of theprosecution witnesses before deciding whether or not to try the charge. The summary authority mustfollow 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 ahearing are an orderly, a recorder and, when considered necessary, an escort. The function of theorderly is to assist in the conduct of the hearing as directed by the summary authority, to control themovement of witnesses into and out of the court and to administer the oath or affirmation. Therecorder is required to take an accurate record of proceedings which may be handwritten during thecourse of proceedings or else recorded by means of sound recording apparatus and transcribed at alater time48. In either case, the recorder is not required to produce a verbatim record of proceedingsunless 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 accusedor a witness is being held in custody prior to the trial or where the accused, if convicted, is likely toreceive a custodial punishment. Also, where it is considered that an accused may interrupt theproceedings or cause a disturbance therein, an escort should be provided. The functions of an escortat 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 acourt martial or Defence Force magistrate. 49 The summary authority is therefore not obliged to allowaccess 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 toappear as a defending officer. 50 It is expected that leave should ordinarily be granted only inexceptional cases, where the interests of justice require it. The decision to grant leave should bemade 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 separateperson to record the proceedings; see paragraph 7.66.

49 DFDA s.140.

50 DFD Rule 24(2A).


RECORDING OF SUMMARY PROCEEDINGS

7.66 A summary authority is required (under section 148 of the DFDA) to keep a record ofproceedings; the record must contain a list of witnesses, the substance of the evidence of thewitnesses and such additional matter (if any) as is necessary to enable the merits of the case to bejudged51. Where an election for trial or punishment by court martial or Defence Force magistrate hasbeen offered by the summary authority, the record of proceedings should attach a copy of the writtenNotification and Election (Annex U in the case of an election to be tried by court martial or DefenceForce magistrate or Annex V in the case of an election to be punished by court martial or DefenceForce magistrate). This will be the form that was provided to and completed by the member facingtrial. The record may be handwritten or recorded by shorthand or sound recording apparatus (andlater transcribed). The summary authority himself may also fulfil the role of recorder. This method ofrecording may be impractical in complicated hearings, and the summary authority should be aware ofthe possibility that his record of proceedings may be criticised for lack of accuracy in any subsequentreview.

Prior Written Statements by Witnesses

7.67 In order to simplify the task of recording summary proceedings in the prescribed manner, it isgenerally permissible to treat a written statement made by a witness before commencement of ahearing as forming part of the record of proceedings 52. Statements may be so treated when theircontents correspond closely with the evidence given orally at the hearing by the witnesses who madethem. However, they may not be treated as forming part of the record where the oral evidence givenby 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 ofthe totality of the evidence, the statements may be amended to reflect the evidence given orally by thewitnesses and may then be included in the record of proceedings. On the other hand, where thewritten statements are not easily amended to reflect the oral evidence, they should not beincorporated in the record of proceedings; instead, the oral evidence which is recorded at the hearingmust be included.

7.68 It follows from the comments above that the recorder must make notes of the oral evidenceof witnesses during the hearing in order to determine whether or not their prior written statements maybe 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 describedin paragraph 7.62 will generally apply) other evidence in a record of proceedings will consist of what isrecorded at a hearing. This evidence will include cross-examination and re-examination of allwitnesses, evidence-in-chief of defence witnesses and any evidence which arises from questionsasked 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 thesubstance of the evidence be recorded accurately. Although the recorder has a responsibility fortaking 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 defendingofficer should all take notes of the evidence whenever they are able to do so and, at the end of thehearing, should make their notes available to the recorder. Additionally, in the course of a hearing, ifsome doubt arises in relation to any part of the evidence which has been heard, any participant whohas taken a note of that part may say what is recorded in his note.

51 DFD Rule 55(1).

52 Where the evidence given by the witness is relatively short it should generally be written into the bodyof the Record of Evidence.


Certification of the Record of Proceedings

7.71 The record of proceedings at a summary hearing must be certified as being true and correctby the recorder and the summary authority as soon as practicable after the conclusion of thehearing53. 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 mustarrange 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 PD104). 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 relevantdetails of the accused; secondly, it embodies the charge sheet; and thirdly, it provides a resume of theaction taken in relation to the charge from the moment it is first dealt with by a summary authority untilit has passed through all possible avenues of review. Summary authorities who deal with a charge andreviewing authorities who review the conviction and/or punishment relating to the charge areresponsible for completing the relevant parts of the Summary Proceedings Report and certifying thatthose parts are true and correct. When all action in relation to a charge is completed, copies of theReport are to be sent to all authorities shown on the distribution list for such follow-up action as maybe appropriate. In every case the original of the Report is to be returned to the parent unit of theconvicted 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 ahearing, whether it is received by a summary authority for the purpose of deciding how to deal with acharge or in the course of a trial. Where the prosecutor gives an outline of the case but does not callwitnesses, 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 defendingofficer (or accused) should also be recorded and attached to the Record of Evidence when they assistin explaining the evidence or in judging the merits of the case. After the Record of Evidence has beencompleted 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 otherdocuments relating to a charge, should be filed in the Conduct Record (Form PD 103) which is a filecover. Form PD 103 provides for the recording of all offences which have been committed by amember of the Defence Force; ‘all offences’ means Service offences, civil offences and overseasoffences. (The requirement to maintain a record of all offences committed by members of the DefenceForce arises as a consequence of section 70 of the DFDA which requires a Service tribunal to takeprevious offences into account in determining punishment.) When a summary authority refers acharge to another authority (including a reviewing authority) or directs an examining officer to hearevidence, he may send the documents relating to the charge under cover of Form PD 103. After theauthority has completed the appropriate action in relation to the charge, he should return the form tothe 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).

54 A sample Form PD 105 is at Annex M to this Chapter.

55 A sample Form PD 104 is at Annex N to this Chapter.


with the rules applicable to this caveat. Form PD 103 is to be forwarded to the parent unit of themember when he is posted56.

Summary Punishment Statistics

7.76 Summary punishment statistics are to be reported quarterly Jan-Mar, Apr-Jun, Jul-Sep andOct-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. Eachquarterly report is to be produced on a stand alone basis and will be compiled in a central database foreach of the three Services by SO2 JAG. For information, a copy of each of the three forms is atAnnex 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 atleast 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 statisticalreturn. All units are to make a note of ‘Not Guilty’ findings which have not already been conveyed tothe reviewing Legal officer and this information is to be provided to the Legal officer for inclusion in thequarterly statistics report.

SECTION 3—EXAMINING 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 relationto the charge57. The examining officer will generally be a legal officer. Where an examining officer isdirected to hear evidence, he may exercise similar powers to those which may be exercised by acommanding officer in dealing with a charge58. Persons who give false evidence or behave withcontempt in proceedings before an examining officer are liable to be convicted of an offence59. Anexamining officer has the power to summon an accused60 or witnesses to appear at a hearing beforehim, to take evidence on oath or affirmation and to adjourn proceedings61. The hearing of evidence byan examining officer may take place only in the presence of an accused62; the evidence which is takenmust be admissible under the rules of evidence applicable to Service tribunals63; and the proceedingsare to be recorded64.

56 For more detailed instructions relating to Conduct Records see the single Service Supplements in Part13 of Vol 2.

57 DFDA s.130A; Form 43, 44.

58 DFDA s.130A.

59 DFDA s.52, s.53.

60 DFDA s.87(5).

61 DFDA s.138.

62 DFDA s.139.

63 DFDA s.130A.

64 DFDA s.130A.


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 hearingevidence himself, in order to decide how to deal with a charge. Secondly, as evidence which is takenby an examining officer will generally be admissible (in the technical, legal sense), there is lesslikelihood that a commanding officer will make his decision in relation to a charge on the basis ofevidence which should not be considered. Finally, and perhaps most importantly, where a charge isreferred to a convening authority, any decision by the authority to have the charge tried by courtmartial or Defence Force magistrate will generally be made on the basis of sworn, admissibleevidence.

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 anystage of dealing with or trying a charge, he should need to do so only in a relatively small number ofcases. These cases are where a witness is dangerously ill, where the charge relates to a seriousoffence65 or where certain officers have been charged with Service offences. In some circumstances acommanding officer should direct an examining officer to hear evidence before he hears any evidencehimself. He would do so in the following circumstances:

a. where a witness is dangerously ill;

b. where the charge relates to a prescribed offence66;

c. where a charge against an officer relates to a serious offence or where any charge ismade against an officer above the rank of squadron leader (or equivalent); and

d. where, although he has jurisdiction to try the charge, it is apparent that he should notdo so (eg the theft of a large sum of money).

7.81 In other circumstances, a commanding officer should direct an examining officer to hearevidence only after the commanding officer has heard evidence for the purpose of deciding how todeal with a charge. Such a course of action should be followed in any case where the evidence heardby a commanding officer indicates that the offence alleged is more serious than he had believed it tobe 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 officerto hear evidence even where he has started to try a charge. However, he should do so only in the raresituation where he decides to break off a trial because evidence at the trial indicates that the offence ismuch 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 isdangerously ill or for other reasons. Where he is directed to take evidence from a person who isdangerously ill, an examining officer is to follow the procedure set out in DFD Rule 25. However, in allother 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 SummaryProceedings 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 fineof an amount of 7 days pay.

66 See paragraph 7.27, footnote 26.


the commanding officer and statements which may have been made by prosecution witnesses. Heshould 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 theproceedings before the commanding officer, the examining officer should decide who will be requiredto 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 courseof one hearing and should direct all witnesses and the accused to attend at a time and place which hehas nominated. Where any witness is not able to attend the hearing, the examining officer shouldmake other arrangements for taking evidence from the witness and ensure that the accused, also, ispresent. Where it is not reasonably practicable for a witness to give evidence to the examining officerhe may make a written statement to a person (usually a legal officer) who has been directed by theexamining officer to take the statement. Written statements of this nature are to be read to theaccused 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 officerto be appropriate in the circumstances. In most cases an arrangement in accordance with the Layoutin Annex G (modified to reflect the absence of the prosecutor) would probably be suitable. Apart fromthe examining officer, the only other officials who are needed at a hearing are an orderly, a recorderand, when considered necessary, an escort67. The function of the orderly is to assist in the conduct ofproceedings as directed by the examining officer, to control the movement of witnesses into and out ofthe 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 theprocedure 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 ofwitnesses and the substance of the evidence of the witnesses 68. In practice, the record of proceedingswill 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 transcribethis record. Where the attendance of a witness cannot be reasonably procured and the witness makesa written statement in connection with the charge, the examining officer is to ensure that the statementis included in the record of proceedings 69.

After the hearing

7.89 When an examining officer has heard all the evidence, he should satisfy himself that therecord reflects accurately the substance of the evidence given by witnesses and should certify that therecord is true and correct. As soon as practicable after the hearing, an examining officer shouldforward the record of evidence to the commanding officer who directed him to hear evidence andprovide 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 heshould perform.

68 DFD Rule 26(3)(c).

69 DFD Rule 26(3)(d).


OFFICER CADETS

General

7.90 An officer cadet is an officer who holds the rank of midshipman in the Navy, officer cadet inthe Army or officer cadet in the Air Force70. By virtue of his or her appointment as an officer in theDefence Force, an officer cadet is subject, generally, to the same provisions of the DFDA as apply toall other members of the Defence Force who are officers. Additionally, the Defence Force DisciplineRegulations (DFD Regulations) make special provision in relation to officer cadets, in recognition oftheir youth and the particular disciplinary requirements associated with their training71. Although thesespecial provisions have been incorporated, where appropriate, in the foregoing discussion of summaryprocedures, 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 72 enable an officer who is appointed as a subordinate summaryauthority to deal with and to try certain offences against an officer cadet. In the event of convicting anofficer cadet, a subordinate summary authority may impose a punishment from the punishmentsprescribed in the Regulations (see paragraph 7.92). A subordinate summary authority may deal withand try a charge against an officer cadet in respect of a Service offence of a kind notified in writing bythe commanding officer who appointed him. The manner in which a subordinate summary authoritymay deal with a charge against an officer cadet, and the conduct of a summary hearing involving sucha charge, is the same as if the officer cadet were any other member of the Defence Force73. Navalofficers of or above the rank of commander or who hold an appointment of Executive Officer of a shipor naval establishment may deal with and try charges against midshipmen. They may also deal withcharges 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 officercadet who has been convicted of a Service offence are as follows74:

a. fine not exceeding the amount of the convicted person's pay for 3 days;

b. severe reprimand;

c. restriction of privileges for a period not exceeding 7 days;

d. stoppage of leave for period not exceeding 7 days;

e. extra duties for a period not exceeding 7 days (for naval subordinate summaryauthorities who are the rank of or above commander, or appointed as executiveofficers – not exceeding 3 days);

f. extra drill for not more than two sessions of 30 minutes each per day for a period notexceeding three days (this punishment is not available to naval subordinate summaryauthorities who are the rank of or above commander, or appointed as executiveofficers);

70 Reg 3 of the DFD Regulations.

71 The relevant regulations are made under s.6(2) of the DFDA.

72 Reg 45 of the DFD Regulations' DFDA s.108(1A), (3), (4)(a).

73 See especially paragraphs 7.1 to 7.15 and 7.42 to 7.77.

74 Reg 33 of DFD Regulations.


g. reprimand.

7.93 In addition to punishment, a subordinate summary authority may take other action under PartIV of the DFDA, such as making an order that a conviction be recorded without punishment or makingan order for restitution of stolen property or the payment of reparations.

7.94 Certain naval officers who are appointed as subordinate summary authorities areempowered to impose more severe punishments on sailors than may be imposed by othersubordinate summary authorities 75. However, the powers of punishment in respect of midshipmen arenot more severe than those available to other subordinate summary authorities. In fact, thepunishments were originally identical to those of other subordinate summary authorities, but anamendment to Schedule 3 of the DFDA was not accompanied by an equivalent amendment to theDFD 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 andmay try any charge, other than one relating to a prescribed offence76, against an officer cadet. Wherehe tries an officer cadet and convicts him of a Service offence, a commanding officer may impose apunishment prescribed by the Regulations (see paragraph 7.96) or take any other action under Part IVof 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 cadetwho has been convicted of a Service offence77:

a. fine not exceeding the amount of the convicted person's pay for 7 days (seeparagraph 7.97);

b. severe reprimand;

c. restriction of privileges for a period not exceeding 14 days;

d. stoppage of leave for a period not exceeding 21 days;

e. extra duties for a period not exceeding 3 days;

f. reprimand.

7.97 Where an officer cadet has been offered the right to elect trial by, or be punished by, courtmartial or Defence Force magistrate78 and chooses instead to be tried or punished by a commandingofficer, a fine of an amount exceeding 7 days pay but not exceeding 14 days pay may be imposed ifthe 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 hasbeen referred to him by a commanding officer. If an officer cadet is convicted by a superior summaryauthority, he is liable to any of the punishments which may be imposed by a superior summary


76 See footnote 16.

77 Reg 33 of the DFD Regulations.

78 See DFDA s.131.


authority on any other officer79. Where an officer cadet is alleged to have committed a serious Serviceoffence it may be appropriate that he be tried by court martial or Defence Force magistrate. Where heis convicted by court martial or Defence Force magistrate, an officer cadet may be punished as if hewere any other officer of the Defence Force80.

Annexes: A. Procedure ALPHA - Hearing (Other than a Trial) Conducted by a Subordinate Summary

AuthorityB. Procedure ALPHA - Hearing (Other than a Trial) Conducted by a Subordinate Summary

Authority (Diagram)C. Procedure BRAVO - Trial Conducted by a Subordinate Summary AuthorityD. Procedure BRAVO - Trial Conducted by a Subordinate Summary Authority (Diagram)E. Procedure CHARLIE - Hearing (Other than a Trial) Conducted by a Commanding OfficerF. Procedure CHARLIE - Hearing (Other than a Trial) Conducted by a Commanding Officer

(Diagram)G. Procedure DELTA - Trial Conducted by a Commanding OfficerH. Procedure DELTA - Trial Conducted by a Commanding Officer (Diagram)I. Procedure ECHO - Hearing (Other than a Trial) Conducted by a Superior Summary AuthorityJ. Procedure ECHO - Hearing (Other than a Trial) Conducted by a Superior Summary Authority

(Diagram)K. Procedure FOXTROT - Trial Conducted by a Superior Summary AuthorityL. Procedure FOXTROT - Trial Conducted by a Superior Summary Authority (Diagram)M. Summary Proceedings - Court LayoutN. Procedure GOLF - Procedure Before an Examining Officer (Other than where a Person is

Dangerously Ill)O. Notes on Summary ProceedingsP. Rights of an Accused Person at Summary ProceedingsQ. Notes on BiasR. 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 SpreadsheetsX. Punishment Statistics Spreadsheets

79 See Table A of Schedule 3 to the DFDA and paragraph 7.40.

80 See Schedule 2 to the DFDA.


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 Authorityhas been given jurisdiction to "deal with" (by instrument in writing under DFDA s.108(1)).

Item Procedure Notes

1. COURT ASSEMBLES 1. Court to be set out as in Annex M.

2. Assembly procedure may he amended when thehearing is held in the Authority's own office.

3. The prosecutor, defending officer, and recordertake their places in court before the Authorityarrives. The accused and escort (if any) remainoutside the court until called.

4. Headdress is to be worn.

2. AUTHORITY ARRIVES Those assembled should salute the Authority.

3. PROSECUTOR ANNOUNCESCASE TO AUTHORITY

The prosecutor should announce the names of theaccused and the defending officer.

4. AUTHORITY CALLS FORACCUSED. RECORDER (IF ANY)TO BE SWORN OR AFFIRMED

1. The accused (and escort if any) enters the courtand salutes the Authority. The accused has theright to object that the recorder is not impartial oris not competent.

2. As to form of oath etc see Notes 6-8 and 12 inAnnex O.

5. PROSECUTOR READS CHARGE 1. The Authority should explain the charge ifnecessary.

2. The accused should not be asked to plead to thecharge at this stage.

3. Headdress may be removed after reading thecharge.

6. AUTHORITY CONSIDERSCHARGE AND DETERMINESWHETHER HE HASJURISDICTION 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 decidewhether the charge should not be proceededwith or whether it should be referred to anotherAuthority - proceed to Item 6A.

3. If the Authority has jurisdiction to try, threecourses 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 casein order to decide what to do - proceed to Item6C. Also see Note 1 in Annex O.

6A. AUTHORITY DECIDES TO HEAREVIDENCE (HAS NOJURISDICTION TO TRY)

The Authority should say:"I HAVE NO POWER TO TRY THE CHARGE.HOWEVER, I SHALL HEAR EVIDENCE INORDER TO DECIDE WHETHER THE CHARGESHOULD BE PROCEEDED WITH"—proceed toItem 9.



6B. AUTHORITY DECIDES TO REFERCHARGE TO ANOTHERAUTHORITY

The Authority should say:

"ALTHOUGH I HAVE THE POWER TO TRY THECHARGE, HAVING CONSIDERED THE CHARGE,I BELIEVE IT WOULD BE IN THE INTERESTS OFJUSTICE TO REFER IT TO .....................................(another Subordinate Summary Authority or a CO)TO BE DEALT WITH".

6C. AUTHORITY DECIDES TO HEAROUTLINE OF CASE IN ORDER TODETERMINE HOW CHARGE ISTO BE DEALT WITH

The Authority should say:"ALTHOUGH I HAVE THE POWER TO TRY THECHARGE, I INTEND TO CALL UPON THEPROSECUTOR TO OUTLINE THE FACTS OFTHE CASE BEFORE DECIDING WHETHER ISHOULD TRY IT. IF I AM STILL UNDECIDED IWILL HEAR EVIDENCE IN SUPPORT OF THECHARGE AND YOU WILL BE ENTITLED TOCROSS-EXAMINE PROSECUTION WITNESSESIN DUE COURSE". Proceed to Item 7.

7. AUTHORITY ASKSPROSECUTOR TO OUTLINECASE

The prosecutor should state the elements of thecharge and the facts and evidence he intends toproduce.

8. AUTHORITY DECIDES ONFURTHER ACTION

There are two courses open to the Authority at thisstage. He may decide to:

a. try the charge - proceed to Item 19; orb. hear the prosecution evidence before deciding

what to do - proceed to Item 9.

9. WITNESS TO BE SWORN ORAFFIRMED

The witness must give evidence on oath oraffirmation. See Notes 2-5 and 9-11 in Annex O.

10. PROSECUTOR EXAMINESWITNESS

The witness should be examined by the prosecutorto establish all the facts necessary to prove thecharge. Leading questions are not to be askedexcept to establish facts which are not likely to bedisputed. See Note 13 in Annex O.

11. ACCUSED OR DEFENDINGOFFICER MAY CROSS- EXAMINEWITNESS

Leading questions may be asked. See Note 14 inAnnex O.

12. PROSECUTOR MAY RE-EXAMINE WITNESS

Questions may only be asked on matters raised incross-examination. See Note 15 in Annex O.

13. AUTHORITY MAY QUESTIONWITNESS

Questions should only be asked to clarify evidencealready given. The authority should not assume therole of prosecutor. If he considers that some aspectof the case has not been adequately presented tohim he should invite the prosecutor to producefurther evidence. See Note 16 in Annex O.

14. WITNESS MAY BE RELEASED If further questioning may be necessary, thewitness should be ordered to remain in the vicinityof the court.

15. FURTHER PROSECUTIONWITNESSES MAY BE EXAMINED

Witnesses should be examined as in Items 9 to 13.



16. WITNESS MAY BE RECALLED This should be done only in exceptionalcircumstances at the discretion of the authority toclarify the evidence. The authority should remindthe witness that he is on oath or affirmation. SeeNotes 17-19 in Annex O.

17. PROSECUTOR ANNOUNCESTHAT HE HAS PRESENTED ALLHIS EVIDENCE


There are three courses open to the Authority atthis 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 evidenceto support the charge, direct that it not beproceeded with; or

c. refer the charge to another Authority - proceedto Item 20.

19. AUTHORITY DECIDES TO TRYCHARGE

The Authority should inform the accused that heintends to try the charge. If the trial commencesimmediately proceed to PROCEDURE BRAVO Item5A; if it is to be held at a later time, it commences atPROCEDURE BRAVO Item 1.

20 AUTHORITY DECIDES TO REFERCHARGE TO ANOTHERAUTHORITY

The Authority should say:"I NOW REFER THE CHARGE TO (to be named ifknown, eg the CO or in the case of Navy to theExecutive Officer if appropriate). THIS HEARING ISNOW COMPLETED".

PROCEDURE ALPHA

HEARING (OTHER THAN A TRIAL) CONDUCTED BY A SUBORDINATE SUMMARY AUTHORITY

1. COURT ASSEMBLES 2. THE AUTHORITY ARRIVES 3. PROSECUTOR ANNOUNCES CASE 4. AUTHORITY CALLS FOR ACCUSED. RECORDERSWORN OR AFFIRMED

5. PROSECUTOR READS CHARGE

6. AUTHORITY CONSIDERS THE CHARGE AND DETERMINES WHETHER HE HAS JURISDICITON TO TRY IT

No jurisdiction to tryHas 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

18b. AUTHORITY DIRECTSTHAT CHARGE NOT BEPROCEEDED WITH

20. AUTHORITY REFERS CHARGE TO ANOTHERAUTHORITY

7. PROSECUTOR OUTLINES CASE PROCEDURE “BRAVO”

19. AUTHORITY DECIDESTO TRY CHARGE

8a. AUTHORITY DECIDES ON FURTHER ACTION

8b. AUTHORITY DECIDES TOHEAR PROSECUTION EVIDENCE

PROCEDURE “BRAVO”9-17. AUTHORITY HEARS

PROSECUTION EVIDENCE

19. AUTHORITY DECIDES TO TRY CHARGE

20. AUTHORITY REFERS CHARGE TO ANOTHERAUTHORITY

PRODECURE “BRAVO”

ADFP 201 VOLUME 1 ANNEX B TOCHAPTER 7

ADFP 201 VOLUME 1ANNEX C TOCHAPTER 7

PROCEDURE BRAVO - TRIAL CONDUCTED BY A SUBORDINATESUMMARY AUTHORITY


1. COURT ASSEMBLES 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'sown office.

3. The prosecutor, defending officer and recordertake their places in court before the trying officerarrives. The accused and escort (if any) remainoutside the court until called.


2. SUBORDINATE SUMMARYAUTHORITY ARRIVES

Those assembled should salute the Authority.



4. AUTHORITY CALLS FORACCUSED. RECORDER IF ANY)TO BE SWORN OR AFFIRMED

The accused (and escort if any) enters the Courtand salutes the trying officer. The accused has theright to object that the recorder is not impartial or isnot competent. See Notes 6-8 and 12 in Annex Ofor form of oath etc.


2. The accused should not be asked to plead tothe charge at this stage.

3. The prosecutor should address any statutoryalternative charge upon which he or she mightseek to rely if the primary charge is not madeout.

5A. AUTHORITY ASKS ACCUSED IFHE/SHE IS THE PERSONNAMED IN THE CHARGE SHEETAND IF HE/SHE ADMITS TOBEING A DEFENCE MEMBER(OR DEFENCE CIVILIAN) NOWAND AT THE TIME STATED INTHE CHARGE(S)

The purpose of seeking admissions as to identityand jurisdiction is to expedite the proceedings byremoving the necessity for the prosecutor toadduce evidence of matters that generally shouldnot be in issue. However, an accused is under noobligation to make any admissions whatsoever inrelation to the charge against him. Where theaccused does not admit to being the personnamed in the charge sheet or to being a defencemember (or defence civilian) at the relevant time,the prosecution must adduce formal evidence ofthese matters.

6. AUTHORITY ASKS FORAPPLICATIONS OROBJECTIONS IN RESPECT OFCHARGE

1. The Authority should say:

DO YOU UNDERSTAND THAT YOU AREABLE TO MAKE CERTAIN APPLICATIONS OROBJECTIONS TO ME CONCERNING THETRIAL AND THE CHARGE?’

2. Some of the matters on which applications orobjections may be made are printed on thereverse of the Summary Proceedings Reportand in Annex P.

ADFP 201 VOLUME 17C–2


6 Continued 3. The Authority should grant an application wherehe is satisfied that the interests of justice requirethat it be granted. He should allow an objectionwhere it is substantiated.

4. If the charge is amended as a consequence ofan application or objection, it should be readover to the accused.

7. AUTHORITY CALLS UPONACCUSED TO PLEAD

1. The Authority should put each chargeseparately, saying after each:‘ON THIS CHARGE, HOW DO YOU PLEAD,GUILTY OR NOT GUILTY?

2. If the accused pleads ‘GUILTY the Authorityshould direct the prosecutor to outline the factsof the case then proceed to Item 28. However, ifat any time during the trial it appears to theAuthority that an accused who has pleadedguilty does not understand the effect of thatplea, the Authority shall substitute a plea of notguilty and proceed accordingly (DFD Rule 43).

3. If the accused pleads ‘NOT GUILTY proceed toItem 8 unless the Authority has already heardthe evidence and the accused does not requirethat the evidence be given again, in which caseproceed to Item 22, unless there is a submissionof no case to answer, in which case proceed toItem 19.

8. AUTHORITY INFORMSACCUSED OF TRIALPROCEDURE

The Authority should say:‘I NOW INTEND TO HEAR THE EVIDENCE INSUPPORT OF THE CHARGE. YOU WILL BEENTITLED TO CROSS-EXAMINE ANY WITNESSFOR THE PROSECUTION AND YOU MAY AT ALATER STAGE GIVE EVIDENCE YOURSELF ORCALL WITNESSES TO GIVE EVIDENCE ONYOUR BEHALF.

9. AUTHORITY ASKSPROSECUTOR TO CALLWITNESSES

The prosecutor may outline the prosecution caseto the Authority before calling his first witness.

10. PROSECUTOR CALLS HISFIRST WITNESS

If the Authority has already heard the evidence ofthe prosecution at a hearing, he may admit theevidence under DFD Reg 26(1). The evidence maybe admitted if the authority is satisfied that to do sowould not be unfair to the accused and theaccused consents to this course of action.


The witness must give evidence on oath oraffirmation. See Notes 2-5 and 9-11 in Annex O.


1. The witness should be examined by theprosecutor to establish all the facts necessary toprove the charge.

2. Leading questions are not to be asked except toestablish facts that are not likely to be disputed.

See Note 13 in Annex O.



13. ACCUSED OR DEFENDINGOFFICER MAY CROSS-EXAMINEWITNESS

1. Leading questions may be asked.

2. See Note 14 in Annex O.


1. Questions may only be asked on matters raisedin cross-examination.



Questions should only be asked to clarify evidencealready given. The authority should not assumethe role of prosecutor; if the authority considersthat some aspect of the case has not beenadequately presented to him he should invite theprosecutor to produce further evidence. See Note16 in Annex O.



Witnesses should be examined as in Items 11 to15.

18. WITNESS MAY BE RECALLED 1. This should be done only in exceptionalcircumstances to clarify the evidence.

2. See Notes 17-19 in Annex O.

19. NO CASE TO ANSWER 1. The accused or the defending officer may at thisstage submit that the prosecution evidence isinsufficient to support the charge and thereforesubmit that there is no case to answer.

2. The authority may, if the interests of justicerequire, decide that there is insufficient evidenceto support the charge without such a submissionbeing made by the accused - proceed to Item21.



There are two courses open to the Authority:a. he may, if he finds that there is insufficient

evidence to support the charges, dismiss someor all of the charges – proceed to Item 21; or

b. he may continue with the trial - proceed to Item22.

21. AUTHORITY DECIDES TODISMISS CHARGE

The Authority should say:‘I FIND THAT THERE IS INSUFFICIENTEVIDENCE TO SUPPORT THE CHARGE ANDTHEREFORE DISMISS THE CHARGE AGAINSTYOU.



22. AUTHORITY DECIDES TOPROCEED WITH TRIAL


‘I WILL NOW PROCEED WITH THE TRIAL.YOU MAY AT THIS STAGE GIVE EVIDENCEYOURSELF ON OATH OR AFFIRMATION, ONWHICH YOU MAY BE CROSS-EXAMINED 8YTHE PROSECUTOR. IF YOU WISH TO CALLOTHER WITNESSES AND ALSO INTEND TOGIVE EVIDENCE YOURSELF YOU SHOULDGIVE EVIDENCE FIRST. YOU MAY ALSOREMAIN SILENT. WHAT DO YOU WISH TODO?’

2. If the accused wishes to give or call evidenceproceed to Item 23.

3. If the accused wishes to remain silent proceedto Item 26.


23. ACCUSED OR DEFENDINGOFFICER MAY MAKE OPENINGADDRESS

This may only be done in cases where the accusedintends to call witnesses (other than himself) togive evidence as to the facts.

24. ACCUSED GIVES EVIDENCE 1. The accused is to be sworn if he elects to giveevidence on oath or affirmation. The accusedshould be examined by the defending officerand cross-examined by the prosecutor and maybe re-examined by the defending officer andasked questions by the authority (similar rulesas in Items 12 to 15 apply). See Note 26 inAnnex O.

25. DEFENCE WITNESSES GIVEEVIDENCE

1. All witnesses must give evidence on oath oraffirmation.

2. The witnesses should be examined by theaccused or the defending officer. They may becross-examined by the prosecutor and re-examined by the accused or defending officerand the authority may ask questions of them.


26. PROSECUTOR MAY MAKECLOSING ADDRESS

In most simple cases there should be no need tomake a closing address as the issues raised by theevidence should be clear.

27. ACCUSED OR DEFENDINGOFFICER MAY MAKE CLOSINGADDRESS


28. AUTHORITY DECIDES GUILT 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 aredismissed, the accused should be discharged.

29. AUTHORITY INSPECTSACCUSED’S RECORD

Discretion should be exercised as to whether spentconvictions should be considered (see paragraph7.56).



30. ACCUSED OR DEFENDINGOFFICER MAY OFFERMITIGATION

1. Witnesses as to character may be called and astatement in mitigation may be made by theaccused or the defending officer.


31. AUTHORITY CONSIDERSSENTENCE

The Authority should take into account thesentencing principles set out in Chapter 11 of theDLM. A separate punishment or order should beimposed or made in respect of each offence onwhich the accused is convicted.

32. AUTHORITY ANNOUNCESSENTENCE

1. On completion, the convicted person salutes theauthority and marches out.

2. As to follow-up action see Notes 34-37 in AnnexO.

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


5a. ADMISSIONS

6. APPLICATIONS OR OBJECTIONS BY ACCUSED

7. AUTHORITY CALLS ON ACCUSED TO PLEAD

ACCUSED PLEADS “GUILTY”

GO TO P.7D- 2

ACCUSED PLEADS “NOT GUILTY”

GO TO P.7D-3

ANNEX D TOCHAPTER 7

ADFP 201 VOLUME 1

ACCUSED PLEADS GUILTY

7. PROSECUTOR OUTLINES FACTS OF THE CASE

28. AUTHORITY DECIDES GUILT

29. AUTHORITY INSPECTS ACCUSED’S RECORD

30. PLEA IN MITIGATION

31. AUTHORITY CONSIDERS SENTENCE

32. AUTHORITY ANNOUNCES SENTENCE

ADFP 201 VOLUME 1 7D-2

ACCUSED PLEADS NOT GUILTY

7. HAS THE AUTHORITY HEARD THE EVIDENCE ? NOYES

8. AUTHORITY INFORMS ACCUSED OF TRIAL PROCEDURE

9-18. AUTHORITY HEARS PROSECUTION EVIDENCE

19-20. IS THERE A CASE TO ANSWER ?Sufficient Evidence to Support ChargeInsufficient Evidence to Support Charge

22. PROCEEDS WITH TRIAL

23-25. DEFENCE CASE

21. CHARGE DISMISSED

26-27. CLOSING ADDRESSES


28a. ACCUSED DISCHARGED29. AUTHORITY INSPECTS ACCUSED’S RECORD




GUILTY NOT GUILTY

ADFP 201 VOLUME 1 7D-3

ADFP 201 VOLUME 1ANNEX E TOCHAPTER 7

PROCEDURE CHARLIE - HEARING (OTHER THAN A TRIAL)CONDUCTED BY A COMMANDING OFFICER


1 COURT ASSEMBLES 1. Court to be set out as in Annex M.

2. Assembly procedure may be amended when thehearing is conducted in the CO's office.

3. The prosecutor, defending officer and recordertake their places in court before the CO arrives.The accused and escort (if any) remain outsidethe court until called.


2. CO ARRIVES Those assembled should salute the CO.

3. PROSECUTOR ANNOUNCESCASE TO CO

The prosecutor should announce the names of theaccused and the defending officer

4. CO CALLS FOR ACCUSED.RECORDER (IF ANY) TO BESWORN OR AFFIRMED

1. The accused (and escort, if any) enters the courtand salutes the CO. The accused has the right toobject that the recorder is not impartial or is notcompetent.

2. As to form of oath etc see Notes 6-8 and 12 ofAnnex O.

5. PROSECUTOR READS CHARGE 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.

6. CO CONSIDERS CHARGE ANDDETERMINES WHETHER HE HASJURISDICTION TO TRY

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 decidewhether the charge should not be proceededwith or whether it should be referred to anotherauthority—proceed to Item 6A; or

b. he may direct an examining officer to hearevidence before deciding whether the chargeshould not be proceeded with or whether itshould be referred to another authority—proceed to Item 6B.

2. If the CO has jurisdiction to try, the followingcourses are open to him:a. he may refer the charge to another authority—

proceed to Item 6C;b. he may try the charge—proceed to Item 22;c. he may hear an outline of the prosecution case

in order to decide whether to try the chargehimself or whether to refer it to anotherauthority—proceed to Item 6D see Note 1 inAnnex I); or

d. he may direct an examining officer to hearevidence before deciding whether to try thecharge or whether to refer it to anotherauthority —proceed to Item 6E.

ADFP 201 VOLUME 17E–2


6A. CO DECIDES TO HEAREVIDENCE (HAS NOJURISDICTION TO TRY)

The CO should say:‘I HAVE NO POWER TO TRY THE CHARGE.HOWEVER, I SHALL HEAR EVIDENCE INORDER TO DECIDE WHETHER THE CHARGESHOULD BE PROCEEDED WITH’. Proceed toItem 12.

6B. CO DECIDES TO DIRECTEXAMINING OFFICER TO HEAREVIDENCE. (CO HAS NOJURISDICTION TO TRY)

The CO should say:‘I HAVE NO POWER TO TRY THE CHARGE.HOWEVER, I HAVE DECIDED TO DIRECT ANEXAMINING OFFICER TO HEAR EVIDENCE INCONNECTION WITH THE CHARGE. ONCONSIDERATION OF THIS EVIDENCE. I SHALLDECIDE WHETHER THE CHARGE SHOULD NOTBE PROCEEDED WITH OR WHETHER ITSHOULD BE REFERRED TO ANOTHERAUTHORITY’. Proceed to Item 7.

6C. CO DECIDES TO REFERCHARGE TO ANOTHERAUTHORITY

The CO should say:

‘ALTHOUGH I HAVE THE POWER TO TRY THECHARGE, I BELIEVE IT WOULD BE IN THEINTERESTS OF JUSTICE TO REFER IT TO .......................TO BE DEALT WITH’

6D. CO DECIDES TO HEAR OUTLINEOF CASE IN ORDER TODETERMINE HOW CHARGE ISTO BE DEALT WITH

The CO should say:‘ALTHOUGH I HAVE THE POWER TO TRY THECHARGE, I INTEND TO CALL UPON THEPROSECUTOR TO OUTLINE THE FACTS OFTHE CASE BEFORE DECIDING WHETHER ISHOULD TRY IT. IF I AM STILL UNDECIDED, IWILL HEAR EVIDENCE IN SUPPORT OF THECHARGE AND YOU WILL BE ENTITLED TOCROSS-EXAMINE PROSECUTION WITNESSESIN DUE COURSE’. Proceed to Item 10.

6E. CO DECIDES TO DIRECTEXAMINING OFFICER TO HEAREVIDENCE IN ORDER TODECIDE WHETHER TO TRYCHARGE OR WHETHER TOREFER IT TO ANOTHERAUTHORITY

The CO should say:

‘ALTHOUGH I HAVE THE POWER TO TRY THECHARGE, IN VIEW OF ITS APPARENTLYSERIOUS NATURE, I HAVE DIRECTED ANEXAMINING OFFICER, (name) TO HEAREVIDENCE IN CONNECTION WITH THECHARGE. ON CONSIDERATION OF THISEVIDENCE I SHALL DECIDE WHETHER TO TRYTHE CHARGE OR WHETHER TO REFER IT TOANOTHER AUTHORITY’. Proceed to Item 7.

7. CO DIRECTS EXAMININGOFFICER TO HEAR EVIDENCE

An order directing an examining officer to takeevidence should be made on Form 44. When theexamining officer's record of evidence has beenreceived the hearing recommences at Item 8.



8. ACTION ON RECEIPT OFEVIDENCE FROM EXAMININGOFFICER

1. The authority examines the evidence.

2. The tribunal re-assembles as described in Items1 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 evidenceto support it, direct that the charge not beproceeded with;

b. refer the charge to a convening authority –proceed to Item 24;

c. refer the charge to another CO—proceed toItem 9;

d. refer the charge to a superior summaryauthority — proceed to Item 23; or

e. try the charge—proceed to Item 22. (Havingread the evidence, the CO should not normallytry the charge himself. The CO may try thecharge where the accused does not object tothis course of action or where the evidencehas been taken from a person who isdangerously ill.)

9. CO REFERS CHARGE TOANOTHER CO

The CO should say:‘I NOW REFER THE CHARGE TO .............(name)ANOTHER COMMANDING OFFICER BECAUSE......................................THIS HEARING IS NOWCOMPLETED’.

10. CO ASKS PROSECUTOR TOOUTLINE CASE

The prosecutor should state the elements of thecharges and the facts and evidence he intends toproduce.

11. CO DECIDES ON FURTHERACTION

1. There are three courses open to the CO at thisstage. 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; orc. hear the prosecution evidence before deciding

what to do - proceed to Item 12.


The witness must give evidence on oath oraffirmation. As to the forms of oath or affirmationsee Notes 2-5 and 9-11 in Annex O.


The witness should be examined by the prosecutorto establish all the facts necessary to prove thecharge. Leading questions are not to be askedexcept to establish facts which are not likely to bedisputed. See Note 13 in Annex O for furtherinformation on examination-in-chief.

14 ACCUSED OR DEFENDINGOFFICER MAY CROSS-EXAMINEWITNESS

Generally, leading questions may be asked. SeeNote 14 in Annex O for further information oncross-examination.




Questions may generally only be asked on mattersraised in cross-examination. See Note 15 in Annex O.

16. CO MAY QUESTION WITNESS Questions should only be asked to clarify evidencealready given. The CO should not assume the role ofprosecutor; if he considers that some aspect of thecase has not been adequately presented to him heshould invite the prosecutor to produce furtherevidence. See Note 16 in Annex O.

17. WITNESS MAY BE RELEASED If further questioning may be necessary, the witnessshould be ordered to remain in the vicinity of thecourt.

18. FURTHER PROSECUTIONWITNESSES MAY BEEXAMINED

Witnesses should be examined as in Items 12 to 16

19. WITNESS MAY BE RECALLED This should be done only in exceptionalcircumstances at the discretion of the CO to clarifythe evidence. The CO should remind the witness thathe is on oath or affirmation. See Notes 17-19 inAnnex O.

20. PROSECUTOR ANNOUNCESTHAT HE HAS PRESENTEDALL HIS EVIDENCE


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 heconsiders that there is insufficient evidence tosupport the charge, direct that the charge not beproceeded with;

c. direct that an examining officer hear evidence inrelation 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 aview to trial by court martial or Defence Forcemagistrate - proceed to Item 24.

22. CO DECIDES TO TRY CHARGE The CO should inform the accused that he intends totry the charge. If the trial commences immediatelyproceed to PROCEDURE DELTA Item 5A; if it is to beheld at a later time, it commences at PROCEDUREDELTA Item 1

23. CO DECIDES TO REFER THECHARGE TO A SUPERIORSUMMARY AUTHORITY

The CO should say:‘I NOW REFER THE CHARGE TO ......................ASUPERIOR SUMMARY AUTHORITY. THISHEARING IS NOW COMPLETED’.

24. CO DECIDES TO REFERCHARGE TO CONVENINGAUTHORITY

The CO should say:

‘I NOW REFER THE CHARGE TO A CONVENINGAUTHORITY, WITH A VIEW TO YOUR TRIAL BYCOURT MARTIAL OR DEFENCE FORCEMAGISTRATE. THIS HEARING IS NOWCOMPLETED’.

PROCEDURE CHARLIE

HEARING (OTHER THAN A TRIAL) CONDUCTED BY A COMMANDING OFFICER

1. COURT ASSEMBLES 2. CO ARRIVES 3. PROSECUTOR ANNOUNCES CASE 4. CO CALLS FOR ACCUSED/RECORDER SWORN OR AFFIRMED

5. PROSECUTOR READS CHARGE6. CO CONSIDERS THE CHARGE ANDDETERMINES WHETHER HE HAS JURISDICTIONTO TRY IT

6A. CO DECIDES TOHEAR EVIDENCE

21B. CO DIRECTSTHAT CHARGENOT BEPROCEEDED WITH

23-24. CO REFERSCHARGE TOANOTHERAUTHORITY

8. CO REFERSCHARGE TOANOTHERAUTHORITY

8. CO DIRECTSTHAT CHARGENOT BEPROCEEDEDWITH

12-20. CO HEARSEVIDENCE

6B. CO DECIDES TODIRECT ANEXAMININGOFFICER TO HEAREVIDENCE

7. CO DIRECTSEXAMINING OFFICERTO HEAR EVIDENCE

8. CO EXAMINESEVIDENCE

22. CO DECIDESTO TRY CHARGE

PROCEDURE‘DELTA’

6c. CO DECIDES TOREFER CHARC\GETO ANOTHERAUTHORITY

6d. CO DECIDES TOHEAR OUTLINE OFCASE

6e. CO DECIDESTO DIRECTEXAMININGOFFICER TO HEAREVIDENCE

10. PROSECUTOROUTLINES CASE

11a. CO DECIDESTO TRY CHARGE

PRODECURE‘DELTA’

11c. CO DECIDES TOHEAR PROSECUTIONEVIDENCE

11b. CO DECIDES TODIRECT EXAMININGOFFICER TO HEAREVIDENCE

12-20. CO HEARS EVIDENCE

23-24. CO REFERS CHARGE TOANOTHER AUTHORITY


PROCEDURE ‘DELTA’

7. CO DIRECTSEXAMININGOFFICER TO HEAREVIDENCE

8. CO EXAMINESEVIDENCE

PROCEDURE ‘DELTA’

8. CO REFERS CHARGE TOANOTHER AUTHORITY


ADFP 201 VOLUME 1 ANNEX F TOCHAPTER 7

Has no jurisdiction to try Has jurisdiction to try

ADFP 201 VOLUME 1ANNEX G TOCHAPTER 7

PROCEDURE DELTA - TRIAL CONDUCTED BY A COMMANDINGOFFICER (CO)

Item Procedure Procedure Notes

1. PARTICIPANTS (OTHER THANCO) ASSEMBLE

1. Venue to be set out as in Annex M.

2. Assembly procedure may be amended when thetrial is conducted in the CO's office.

3. The prosecutor, defending officer and recordertake their places before the CO arrives. Theaccused and escort (if any) remain outside thevenue until called.


2. CO ARRIVES Those assembled should salute the CO.

3. PROSECUTOR ANNOUNCESCASE TO CO


4. CO CALLS FOR ACCUSED.RECORDER (IF ANY) TO BESWORN

The accused (and escort if any) reports and salutesthe CO. The accused has the right to object that therecorder is not impartial or is not competent. SeeNotes 6-8 and 12 in Annex O for form of oath etc.

5. PROSECUTOR READS CHARGE 1. The CO should explain the charge if necessary.



5A. CO ASKS ACCUSED IF HE/SHEIS THE PERSON NAMED IN THECHARGE SHEET AND IF HE/SHEADMITS TO BEING A DEFENCEMEMBER (OR DEFENCECIVILIAN) NOW AND AT THETIME STATED IN THECHARGE(S)

The purpose of seeking admissions as to identityand jurisdiction is to expedite the proceedings byremoving the necessity for the prosecutor to adduceevidence of matters that generally should not be inissue. However, an accused is under no obligationto make any admissions whatsoever in relation tothe charge against him. Where the accused doesnot admit to being the person named in the chargesheet or to being a defence member (or defencecivilian) at the relevant time, the prosecution mustadduce formal evidence of these matters.

6. CO ASKS FOR APPLICATIONSOR OBJECTIONS IN RESPECTOF CHARGE

1. The CO should say:

‘DO YOU UNDERSTAND THAT YOU ARE ABLETO MAKE CERTAIN APPLICATIONS ANDOBJECTIONS TO ME CONCERNING THETRIAL AND THE CHARGE?’

2. Some of the matters on which applications orobjections may be made are printed on thereverse of the Summary Proceedings Report andin Annex P.

3. The CO should grant an application where he issatisfied that the interests of justice require that itbe granted. He should allow an objection where itis substantiated.

4. If the charge is amended as a consequence of anapplication or objection, it should be read over tothe accused.

ADFP 201 VOLUME 17G–2


7. CO CALLS UPON ACCUSED TOPLEAD

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 thecase and proceed to Item 31; or

b. if the CO has already heard the evidence ofthe prosecution at a hearing or has read thestatements of evidence taken by an examiningofficer, proceed to Item 31.

However, if at any time during the trial it appearsto the summary authority that an accused whohas pleaded guilty does not understand the effectof that plea, the summary authority shallsubstitute a plea of not guilty and proceedaccordingly (DFD Rule 43).

3. If the accused pleads ‘NOT GUILTY’a. the CO should proceed to Item 8; orb. if the CO has already heard the evidence of

the prosecution at a hearing and the accuseddoes not require the evidence to be givenagain, 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 ofconvicting the accused, proceed to Item 22,unless there is a submission of no case toanswer in which case proceed to Item 19.

8. CO INFORMS ACCUSED OFTRIAL PROCEDURE

The CO should say:‘I NOW INTEND TO HEAR THE EVIDENCE INSUPPORT OF THE CHARGE. YOU OR YOURDEFENDING OFFICER WILL BE ENTITLED TOCROSS-EXAMINE ANY WITNESSES FOR THEPROSECUTION AND YOU MAY AT A LATERSTAGE GIVE EVIDENCE YOURSELF AND CALLWITNESSES ON YOUR BEHALF’

9. CO ASKS PROSECUTOR TOCALL WITNESSES

The prosecutor may outline the prosecution case tothe CO before calling his first witness.

10. PROSECUTOR CALLS HIS FIRSTWITNESS

If the CO has already heard the evidence of theprosecution at a hearing, he may admit theevidence under DFD Reg 26(1). The evidence maybe admitted if the CO is satisfied that to do sowould not be unfair to the accused and the accusedconsents to this course of action.


The witness must give evidence on oath oraffirmation. (As to form of oath or affirmation seeNotes 2-5 and 9-11 in Annex O.)





2. Leading questions are not to be asked except toestablish facts that are not likely to be disputed.See Note 13 in Annex O.

13. ACCUSED OR DEFENDINGOFFICER MAY CROSS-EXAMINEWITNESS

Generally, leading questions may be asked. SeeNote 14 in Annex O on cross-examination.



15. CO MAY QUESTION WITNESS Questions should only be asked to clarify evidencealready given. The CO should not assume the roleof prosecutor; if the CO considers that some aspectof the case has not been adequately presented tohim he should invite the prosecutor to producefurther evidence. See Note 16 in Annex O.

16. WITNESS MAY BE RELEASED If further questioning may be necessary, thewitness should be ordered to remain in the vicinityof the venue.


Witnesses should be examined as in Items 11–15.

18. WITNESS MAY BE RECALLED This should be done only in exceptionalcircumstances to clarify the evidence. See Notes17-19 in Annex O.

19. NO CASE TO ANSWER 1. The accused or the defending officer may at thisstage submit that the prosecution evidence isinsufficient to support the charge.

2. The CO may, if the interests of justice so require,decide that there is insufficient evidence tosupport the charge without such a submissionbeing made by the accused.

3. See Notes 20 and 21 in Annex O.


1. There are four courses open to the CO:

a. he may, if he finds that there is insufficientevidence to support the charge, dismiss thecharge - proceed to Item 21;

b. he may, if he considers that he is likely toimpose an elective punishment,(l) give theaccused the option of electing to be tried bycourt-martial or Defence Force magistrate—proceed to Item 22;

c. he may, if he considers that his powers ofpunishment are insufficient, refer the case to aconvening authority(l)—proceed to Item 24; or

d. he may continue with the trial(l)—proceed toItem 25.

(1) See Notes 22-24 in Annex O.



21. CO DECIDES TO DISMISSCHARGE

The CO should say:

‘I FIND THAT THERE IS INSUFFICIENTEVIDENCE TO SUPPORT THE CHARGE ANDTHEREFORE DISMISS THE CHARGE AGAINSTYOU.’

22. CO GIVES ACCUSED OPTION OFELECTING TRIAL BYCOURT-MARTIAL OR DEFENCEFORCE MAGISTRATE

1. The CO should say:‘I HAVE HEARD THE PROSECUTIONEVIDENCE AND CONSIDER THAT IF ICONTINUE WITH THE TRIAL AND CONVICTYOU OF THESE CHARGES I MAY DECIDE TOAWARD AN ELECTIVE PUNISHMENT. THEELECTIVE PUNISHMENTS THAT WOULD BEAVAILABLE TO ME SHOULD YOU ELECT TOBE TRIED BY ME ARE …. (state electivepunishments that are available to the accused ifhe elects to be tried by the CO). BEFORE ICONTINUE WITH THE TRIAL WITH THEOPTION OF AWARDING ELECTIVEPUNISHMENTS, I AM REQUIRED TO OFFERYOU THE OPTION OF ELECTING TO BETRIED BY COURT MARTIAL OR DEFENCEFORCE MAGISTRATE. I WILL NOW HANDYOU A FORM THAT ADVISES YOU INGREATER DETAIL OF YOUR ELECTION. YOUARE TO CONSIDER THE INFORMATIONCONTAINED IN THE FORM AND DISCUSS ITWITH YOUR DEFENDING OFFICER (or anindependent person if you are not represented bya Defending officer). YOU ARE ALSOREQUIRED TO PROVIDE ME WITH WRITTENNOTIFICATION OF YOUR ELECTION. THIS ISTO BE DONE BY COMPLETING AND SIGNINGTHE ‘ELECTION’ SECTION OF THE FORMTHAT I AM ABOUT TO HAND YOU. DO YOUHAVE ANY QUESTIONS REGARDING THEELECTION PROCEDURE THAT I HAVE JUSTEXPLAINED?’

(CO hands the member a copy of Annex U toChapter 7 DLM – Vol 1. The CO mustcomplete/strike out relevant/irrelevant partsbefore giving it to the member.)

2. The CO should say:‘I WILL NOW ADJOURN THE PROCEEDINGSWHILE YOU CONSIDER WITH YOURDEFENDING OFFICER THE INFORMATIONCONTAINED IN THE FORM THAT I HAVEHANDED YOU AND, IF NECESSARY, OBTAINFURTHER INDEPENDENT ADVICE INRESPECT OF YOUR ELECTION. DURING THEADJOURNMENT YOU ARE REQUIRED TODECIDE YOUR ELECTION AND COMPLETETHE ‘ELECTION’ SECTION OF THE FORM.’



22 Continued (CO adjourns for such time that he considersreasonable in the circumstances to allow themember to read, consider and seek advice onthe issue of his or her election.)

23. ACCUSED MAKES ELECTION 1. The tribunal should re-assemble.2. The CO should say to the accused:

‘I HAVE PREVIOUSLY GIVEN YOU THEOPTION TO ELECT TRIAL BY COURTMARTIAL OR DEFENCE FORCE MAGISTRATEOR TO BE TRIED BY ME. WHAT DO YOUWISH TO DO? WOULD YOU PLEASEPROVIDE ME WITH WRITTENCONFIRMATION OF YOUR ELECTION.’

(CO should receive the written notice of electionfrom the accused (Annex U) and ensure that themember has properly completed it and that it isconsistent with the member’s oral election.)

3. If the accused elects trial by court martial orDefence Force magistrate proceed to Item 24; ifthe accused elects trial by the CO proceed toItem 25 if the accused has pleaded ‘NOTGUILTY’; or to Item 32 if he has pleaded‘GUILTY’ to all the charges.

24. CO REFERS CHARGE TOCONVENING AUTHORITY

The CO should say:‘I NOW REFER THE CHARGE TO A CONVENINGAUTHORITY, WITH A VIEW TO TRIAL BY COURTMARTIAL OR DEFENCE FORCE MAGISTRATE.THIS TRIAL IS NOW COMPLETED’

25. CO PROCEEDS WITH TRIAL 1. The CO should say:‘I WILL NOW PROCEED WITH THE TRIAL.YOU MAY AT THIS STAGE GIVE EVIDENCEYOURSELF ON OATH OR AFFIRMATION, ONWHICH YOU MAY BE CROSS-EXAMINED BYTHE PROSECUTOR. IF YOU WISH TO CALLOTHER WITNESSES AND ALSO INTEND TOGIVE EVIDENCE YOURSELF YOU SHOULDGIVE EVIDENCE FIRST. YOU MAY ALSOREMAIN SILENT. WHAT DO YOU WISH TODO?’


3. If the accused wishes to remain silent proceed toItem 29.



This may only be done in cases where the accusedintends to call witnesses (other than himself) to giveevidence as to the facts.



27. ACCUSED GIVES EVIDENCE 1. The accused is to be sworn or affirmed if heelects to give evidence. (See Notes 2-5 and 9-11in Annex O.) The accused should be examinedby the defending officer and cross-examined bythe prosecutor and may be re-examined by thedefending officer and asked questions by the CO(similar rules as in Items 12 to 15 apply). SeeNote 26 in Annex O.


1. All witnesses must give evidence on oath oraffirmation. (As to form of oath or affirmation seeNotes 2-5 and 9-11 in Annex O.)

2. The witnesses should be examined by theaccused or the defending officer. They may becross-examined by the prosecutor and re-examined by the accused or defending officerand the CO may ask questions of them. SeeNote 27 in Annex O.





31. COMMANDING OFFICERDECIDES GUILT

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

GUILTY—proceed to Item 32.

4. If the accused is found GUILTY on a plea of NOTGUILTY—proceed to Item 36.

5. If the verdict is ‘NOT GUILTY’, the charge mustbe recorded as ‘dismissed’. If all charges aredismissed, the accused should be discharged.

32. COMMANDING OFFICERDECIDES ON FURTHER ACTION

There are two courses open to the CO:

1. He must, if he is of the opinion that an electivepunishment should be imposed, give theaccused the option of electing to be punished byCourt Martial or Defence Force Magistrate —proceed to Item 33, or

2. He may continue with the trial - proceed to Item36.



33. COMMANDING OFFICER GIVESACCUSED OPTION OFELECTING PUNISHMENT BYCOURT MARTIAL OR DEFENCEFORCE MAGISTRATE

1. The CO should say:

‘I HAVE HEARD THE OUTLINE OF THE FACTSOF THE CASE AND AM OF THE OPINIONTHAT, IF I PROCEED WITH THE TRIAL, I MAYWISH TO IMPOSE AN ELECTIVEPUNISHMENT. THE ELECTIVEPUNISHMENTS THAT WOULD BE AVAILABLETO ME SHOULD YOU ELECT TO BEPUNISHED BY ME ARE AS FOLLOWS … (statethe elective punishments that are available if theaccused elects to be punished by the CO).BEFORE I MAY AWARD THESEPUNISHMENTS I AM REQUIRED TO OFFERYOU THE OPTION OF ELECTING TO BEPUNISHED BY COURT MARTIAL ORDEFENCE FORCE MAGISTRATE RATHERTHAN BY ME. I WILL NOW HAND YOU AFORMAL NOTIFICATION, WHICH ADVISESYOU IN GREATER DETAIL OF YOURELECTION. YOU ARE TO CONSIDER THEINFORMATION CONTAINED IN THE FORMAND DISCUSS IT WITH YOUR DEFENDINGOFFICER (or an independent person if themember is not represented). YOU ARE ALSOREQUIRED TO PROVIDE ME WITH WRITTENNOTIFICATION OF YOUR ELECTION. THISSHOULD BE DONE BY COMPLETING ANDSIGNING THE RELEVENT SECTION ON THEFORM THAT I AM ABOUT TO HAND YOU. DOYOU HAVE ANY QUESTIONS REGARDINGTHE ELECTION PROCEDURE THAT I HAVEJUST EXPLAINED?’(CO hands the member a copy of Annex V toChapter 7 DLM - Vol 1. The CO mustcomplete/strike out relevant/irrelevant partsbefore giving it to the member.)

2. ‘I WILL NOW ADJOURN THE PROCEEDINGSWHILE YOU CONSIDER WITH YOURDEFENDING OFFICER THE INFORMATIONCONTAINED IN THE FORM THAT I HAVEHANDED YOU AND, IF NECESSARY, OBTAINFURTHER INDEPENDENT ADVICE INRESPECT OF YOUR ELECTION. DURING THEADJOURNMENT YOU ARE REQUIRED TODECIDE YOUR ELECTION AND COMPLETETHE ‘ELECTION’ SECTION OF THE FORM.’

(CO adjourns for such time that he considersreasonable in the circumstances to allow themember to read, consider and seek advice onthe issue of his or her election.)



34. ACCUSED MAKES ELECTION 1. The tribunal should re-assemble.

2. The CO should say to the accused:

'I HAVE PREVIOUSLY GIVEN YOU THEOPTION TO ELECT TO BE PUNISHED BYCOURT MARTIAL OR DEFENCE FORCEMAGISTRATE OR TO BE PUNISHED BY ME.WHAT DO YOU WISH TO DO? WOULD YOUPLEASE PROVIDE ME WITH WRITTENCONFIRMATION OF YOUR ELECTION.'

(CO should receive the written notice of electionfrom the accused (Annex V) and ensure that themember has properly completed it and that it isconsistent with the member's oral election. If theaccused fails to provide an election when offeredone, the CO is able to proceed with punishmentaction under Part IV DFDA: see s.131(2B)DFDA.)

3. If the accused elects to be punished by CourtMartial or Defence Force Magistrate, proceed toItem 35. If the accused elects to be punished byCO proceed to Item 36.

35. CO REFERS CONVICTION TOCONVENING AUTHORITY

The CO should say:

'I NOW REFER THE CONVICTION TO ................ACONVENING AUTHORITY, WITH A VIEW TOPUNISHMENT BY COURT MARTIAL ORDEFENCE FORCE MAGISTRATE. THIS TRIAL ISNOW COMPLETED.'

36. CO INSPECTS ACCUSED'sRECORD

Discretion should be exercised as to whether spentconvictions should be considered (see paragraph7.56)


Witnesses as to character may be called and astatement in mitigation may be made by theaccused or the defending officer. See Notes 30-33in Annex O.

38. CO CONSIDERS SENTENCE The CO should take into account the sentencingprinciples set out in Chapter 11 of the DLM. Aseparate punishment or order should be imposed ormade in respect of each offence on which theaccused is convicted.

39. COMMANDING OFFICERANNOUNCES SENTENCE

1. On completion, the convicted person salutes theCO and marches out.


PRODECURE DELTA - TRIAL BY A COMMANDING OFFICER

1. COURT ASSEMBLES

2. CO ARRIVES


4. CO CALLS FOR ACCUSED/RECORDER SWORN


5a. ADMISSIONS


GO TO P.7H-2ACCUSED PLEADS GUILTY

7. CO CALLS ON ACCUSEDTO PLEAD

ACCUSED PLEADS NOT GUILTY

GO TO PAGE 7H-3

ADFP 201 VOLUME 1 ANNEX H TOCHAPTER 7

ADFP 201 VOLUME 1 7H-2

ACCUSED ENTERS GUILTY PLEA

7. PROSECUTOR OUTLINESFACTS OF THE CASE

31. CO DECIDES GUILT

32. CO DECIDES FURTHER ACTION

34. ACCUSED ELECTS CO’SPUNISHMENT

33. CO OFFERS ACCUSED RIGHT TOELECT TO BE PUNISHED BY COURTMARTIAL OR DEFENCE FORCEMAGISTRATE

34. ACCUSED ELECTS TO BE PUNISHEDBY COURT MARTIAL OR DEFENCEFORCE MAGISTRATE

35. CO REFERS CONVICTION TOCONVENING AUTHORITY

36. CO INSPECTS ACCUSED’SRECORD


38. CO CONSIDERS SENTENCE

39. CO ANNOUNCES SENTENCE

ADFP 201 VOLUME 1 7H-3

ACCUSED ENTERS PLEA OF NOT GUILTY

HAS CO HEARD EVIDENCE IN PRIOR HEARING ?

8. CO INFORMS ACCUSED OF TRIAL PROCEDURES

9-18. CO HEARS PROSECUTION EVIDENCE

19. CO CONSIDERS WHETHER THERE IS A CASE TO ANSWERSUFFICIENT EVIDENCE TO SUPPORT CHARGE INSUFFICIENT EVIDENCE TO SUPPORT CHARGE

21. CO DISMISSES CHARGE

20. CO DECIDES ONFURTHER ACTION

CONSIDERS ELECTIVE PUNISHMENT

23. ACCUSED ELECTS TRIAL BYCOURT MARTIAL OR DFM

24. CO REFERS CHARGE TOCONVENING AUTHORITY

22. CO OFFERS ACCUSED RIGHT TO ELECTTRIAL BY COURT MARTIAL OR DEFENCEFORCE MAGISTRATE

23. ACCUSED ELECTSTRIAL BY CO

25. CO PROCEEDSWITH TRIAL

26-28. DEFENCE CASE

29-30. CLOSING ADDRESS

31. CO DECIDES GUILT

ACCUSED DISCHARGED

36. CO INSPECTS ACCUSED’S RECORD

37-38. PLEA IN MITIGATION

39. CO ANNOUNCES SENTENCE

NOYES

GUILTYNOT GUILTY

ADFP 201 VOLUME 1ANNEX I TOCHAPTER 7

PROCEDURE ECHO - HEARING (OTHER THAN A TRIAL)CONDUCTED BY A SUPERIOR SUMMARY AUTHORITY


1. COURT ASSEMBLES 1. Court to be set out as in Annex M.2. Assembly procedure may be amended when the

hearing is conducted in the Superior SummaryAuthority's office.

3. The prosecutor, defending officer and recordertake their places in court before the authorityarrives. The accused and escort (if any) remainoutside the court until called.


2. SUPERIOR SUMMARYAUTHORITY ARRIVES

Those assembled should salute the authority.




1. The accused (and escort, if any) enters the courtand salutes the authority. The accused has theright to object that the recorder is not impartial oris not competent.

2. As to form of oath etc see Notes 6-8 and 12 inAnnex O.

5. PROSECUTOR READS CHARGE 1. The authority should explain the charge ifnecessary.


3. Headdress may be removed after reading thecharge.

6. AUTHORITY CONSIDERSCHARGE AND DETERMINESWHETHER HE HASJURISDICTION TO TRY IT

1. As to jurisdiction, see paragraph 7.37 of theDLM.

2. If the authority does not have jurisdiction to try hemust refer the charge to a convening authority.Proceed to Item 6A.

3. If the authority has jurisdiction to try, threecourses are open to him:a. he may try the charge - proceed to Item 19;

b. he may refer the charge to a conveningauthority - proceed to Item 6B; or

c. he may hear an outline of the prosecution casein order to decide whether to refer it to aconvening authority - proceed to Item 6C.

Also see Note 1 in Annex O.

6A. AUTHORITY DECIDES TO REFERCHARGE TO CONVENINGAUTHORITY. (AUTHORITY HASNO JURISDICTION TO TRY)

The authority should say:"AS I HAVE NO POWER TO TRY THE CHARGE IAM REQUIRED TO REFER IT TO A CONVENINGAUTHORITY".

ADFP 201 VOLUME 17I–2


6B. AUTHORITY DECIDES TO REFERCHARGE TO CONVENINGAUTHORITY

The authority should say:

"ALTHOUGH I HAVE THE POWER TO TRY THECHARGE, HAVING CONSIDERED THE CHARGE,I BELIEVE IT WOULD BE IN THE INTERESTS OFJUSTICE TO REFER IT TO ...................................(convening authority) TO BE DEALT WITH".

6C. AUTHORITY DECIDES TO HEAROUTLINE OF CASE IN ORDER TODECIDE HOW CHARGES TO BEDEALT WITH


"ALTHOUGH I HAVE THE POWER TO TRY THECHARGE, I INTEND TO CALL UPON THEPROSECUTOR TO OUTLINE THE PACTS OFTHE CASE BEFORE DECIDING WHETHER ISHOULD TRY IT. IF I AM STILL UNDECIDED IWILL HEAR EVIDENCE IN SUPPORT OF THECHARGE AND YOU WILL BE ENTITLED TOCROSS-EXAMINE PROSECUTION WITNESSESIN DUE COURSE". Proceed to Item 7.

7. AUTHORITY ASKSPROSECUTOR TO OUTLINECASE

The prosecutor should state the elements of thecharge and the facts and evidence he intends toproduce.


1. There are two courses open to the authority atthis stage. He may decide to:a. try the charge – proceed to Item 19; or

b. hear the prosecution evidence before decidingwhat to do - proceed to Item 9.


The witness must give evidence on oath oraffirmation. As to the forms of oath or affirmationsee Notes 2-5 and 9-11 in Annex O.


The witness should be examined by the prosecutorto establish all the facts necessary to prove thecharges. Leading questions are not to be askedexcept to establish facts which are not likely to bedisputed.See Note 13 in Annex O for further information onexamination-in-chief

11. ACCUSED OR DEFENDINGOFFICER MAY CROSS- EXAMINEWITNESS

Leading questions may be Asked. See Note 14 inAnnex O for further information on cross-examination.




Questions should only be asked to clarify evidencealready given. The authority should not assume therole of prosecutor. If he considers that some aspectof the case has not been adequately presented tohim he should invite the prosecutor to producefurther evidence. See Note 16 in Annex O.



Witnesses should be examined as in Items 9 to 14

ADFP 201 VOLUME 17I–3


16. WITNESS MAY BE RECALLED This should be done only in exceptionalcircumstances at the discretion of the authority toclarify the evidence. The authority should remindthe witness that he is on oath or affirmation. SeeNotes 17-19 in Annex O.

17. PROSECUTOR ANNOUNCESTHAT HE HAS PRESENTED ALLHIS EVIDENCE


1. There are two courses open to the authority atthis stage. He may decide to:

a. try the charge – proceed to Item 19; orb. refer the charge to a convening authority with

a view to trial by court martial or DefenceForce magistrate-proceed to Item 20.

19. AUTHORITY DECIDES TO TRYCHARGE

The authority should inform the accused that heintends to try the charge. If he has heard theprosecution evidence he may allow witnesses to herecalled for further cross-examination. If the trialcommences immediately proceed to PROCEDUREFOXTROT Item 5A; if it is to be held at a later time, itcommences at PROCEDURE FOXTROT Item 1

20. AUTHORITY DECIDES TO REFERCHARGE TO CONVENINGAUTHORITY


"I NOW REFER THE CHARGE TO A CONVENINGAUTHORITY WITH A VIEW TO YOUR TRIAL BYCOURT MARTIAL OR DEFENCE FORCEMAGISTRATE. THIS HEARING IS NOWCOMPLETED".

ADFP 201 VOLUME 1 ANNEX J TOCHAPTER 7

PROCEDURE ECHO

HEARING (OTHER THAN A TRIAL) BY A SUPERIOR SUMMARY AUTHORITY

1. COURT ASSEMBLES 2. AUTHORITY ARRIVES 3. PROSECUTOR ANNOUNCES CASE4. AUTHORITY CALLS FOR ACCUSEDRECORDER SWORN OR AFFIRMED

5. PROSECUTOR READS CHARGE6. AUTHORITY CONSIDERS THECHARGE AND DETERMINES WHETHERHE HAS JURISDICTION TO TRY IT

6a. AUTHORITY REFERS CHARGETO CONVENING AUTHORITY

19. AUTHORITY DECIDESTO TRY CASE

PROCEDURE ‘FOXTROT’

6c. AUTHORITY DECIDES TOHEAR OUTLINE OF CASE

6b. AUTHORITY DECIDES TOREFER CHARGE TO TOCONVENING AUTHORITY

7. PROSECUTOROUTLINES CASE



8b. AUTHORITY DECIDES TOHEAR PROSECUTIONEVIDENCE

9-17. AUTHORITY HEARS EVIDENCE

20. AUTHORITY DECIDES TOREFER CHARGE TO ACONVENING AUTHORITY



NO JURISDICTION TO TRY HAS JURISDICTION TO TRY

ADFP 201 VOLUME 1ANNEX K TOCHAPTER 7

PROCEDURE FOXTROT - TRIAL CONDUCTED BY A SUPERIORSUMMARY AUTHORITY


1. COURT ASSEMBLES 1. Court to be set out as in Annex M.2. Assembly procedure maybe amended when the

trial is conducted in the Superior SummaryAuthority's office.

3. The prosecutor, defending officer and recordertake their places in court before the Authorityarrives. The accused and escort (if any) remainoutside the court until called.


2. SUPERIOR SUMMARYAUTHORITY ARRIVES

Those assembled should salute the Authority.




The accused (and escort if any) enters the courtand salutes the authority. The accused has the rightto object that the recorder is not impartial or is notcompetent. See Notes 6-8 and 12 in Annex O forform of oath etc.




5A. AUTHORITY ASKS ACCUSED IFHE/SHE IS THE PERSON NAMEDIN THE CHARGE SHEET AND IFHE/SHE ADMITS TO BEING ADEFENCE MEMBER (ORDEFENCE CIVILIAN) NOW ANDAT THE TIME STATED IN THECHARGE(S)

The purpose of seeking admissions as to identityand jurisdiction is to expedite the proceedings byremoving the necessity for the prosecutor to adduceevidence of matters that generally should not be inissue. However, an accused is under no obligationto make any admissions whatsoever in relation tothe charge against him. Where the accused doesnot admit to being the person named in the chargesheet or to being a defence member (or defencecivilian) at the relevant time, the prosecution mustadduce formal evidence of these matters.

6. AUTHORITY ASKS FORAPPLICATIONS OR OBJECTIONSIN RESPECT OF CHARGE

1. The Authority should say:‘DO YOU UNDERSTAND THAT YOU ARE ABLETO MAKE CERTAIN APPLICATIONS OROBJECTIONS TO ME CONCERNING THETRIAL AND THE CHARGE?’

2. Some of the matters on which applications orobjections may be made are printed on reverseof the Summary Proceedings Report and inAnnex P.

3. The Authority should grant an application wherehe is satisfied that the interests of justice requirethat it be granted. He should allow an objectionwhere it is substantiated.

ADFP 201 VOLUME 17K–2


6 Continued 4. If the charge is amended as a consequence of anapplication or objection, it should be read over tothe accused.

7. AUTHORITY CALLS UPONACCUSED TO PLEAD

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 Authorityshould:

a. direct the prosecutor to outline the facts of thecase and proceed to Item 31; or

b. if the Authority has already heard the evidenceof the prosecution at a hearing, proceed directlyto Item 31.

However, if at any time during the trial it appearsto the Authority that an accused who haspleaded guilty does not understand the effect ofthat plea, the Authority shall substitute a plea ofnot guilty and proceed accordingly (DFD Rule43).

3. If the accused pleads ‘NOT GUILTY’:a. the Authority should proceed to Item 8; orb. if the Authority has already heard the evidence

of the prosecution at a hearing, and theaccused does not require the evidence to begiven 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 convictingthe accused, proceed to Item 22, unless thereis a submission of no case to answer, in whichcase proceed to Item 19.

8. AUTHORITY INFORMS ACCUSEDOF TRIAL PROCEDURE

The Authority should say:‘I NOW INTEND TO HEAR THE EVIDENCE INSUPPORT OF THE CHARGE. YOU OR YOURDEFENDING OFFICER WILL BE ENTITLED TOCROSS-EXAMINE ANY WITNESSES FOR THEPROSECUTION AND YOU MAY AT A LATERSTAGE GIVE EVIDENCE YOURSELF AND CALLWITNESSES ON YOUR BEHALF.’

9. AUTHORITY ASKSPROSECUTOR TO CALLWITNESSES

The prosecutor may outline the prosecution case tothe Authority before calling his first witness.

10. PROSECUTOR CALLS HIS FIRSTWITNESS

If the Authority has already heard the evidence ofthe prosecution at a hearing, he may admit theevidence under DFD Reg 26(1). The evidence maybe admitted if the Authority is satisfied that to do sowould not be unfair to the accused and the accusedconsents to this course of action.


The witness must give evidence on oath oraffirmation. (As to forms of oath or affirmation seeNotes 2-5 and 9-11 in Annex O.)





2. Leading questions are not to be asked except toestablish facts that are not likely to be disputed.See Note 13 in Annex O.

13. ACCUSED OR DEFENDINGOFFICER MAY CROSS EXAMINEWITNESS

Leading questions may be asked. See Note 14 inAnnex O on cross-examination.


Questions may only be asked on matters raised incross-examination. See note 15 in Annex O.


Questions should only be asked to clarify evidencealready given. The Authority should not assume therole of prosecutor; if the Authority considers thatsome aspect of the case has not been adequatelypresented to him he should invite the prosecutor toproduce further evidence. See Note 16 in Annex O.



Witnesses should be examined as in Items 11–15.

18. WITNESS MAY BE RECALLED This should be done only in exceptionalcircumstances to clarify the evidence. See Notes17-19 in Annex O.

19. NO CASE TO ANSWER 1. The accused or the defending officer may at thisstage submit that the prosecution evidence isinsufficient to support the charge.

2. The Authority may, if the interests of justice sorequire, decide that there is insufficient evidenceto support the charge without such a submissionbeing made by the accused.



There are four courses open to the Authority:

a. he may, if he finds that there is insufficientevidence to support the charge, dismiss thecharge —proceed to Item 21;

b. he may, if he considers that he is likely toimpose an elective punishment,(l) give theaccused the option of electing to be tried bycourt martial or Defence Force magistrate -proceed to Item 22;

c. he may, if he considers that his powers ofpunishment are insufficient, refer the case to aconvening authority(l) - proceed to Item 24; or

d. he may continue with the trial(l)—proceed toItem 25.

(1) See Notes 22-24 in Annex O



21. AUTHORITY DECIDES TODISMISS CHARGE


‘I FIND THAT THERE IS INSUFFICIENTEVIDENCE TO SUPPORT THE CHARGE ANDTHEREFORE DISMISS THE CHARGE AGAINSTYOU.’

22. AUTHORITY GIVES ACCUSEDOPTION OF ELECTING TRIAL BYCOURT-MARTIAL OR DEFENCEFORCE MAGISTRATE

1. The Superior Summary Authority should say:‘I HAVE HEARD THE PROSECUTIONEVIDENCE AND CONSIDER THAT IF ICONTINUE WITH THE TRIAL AND CONVICTYOU OF THESE CHARGES I MAY DECIDE TOAWARD AN ELECTIVE PUNISHMENT. THEELECTIVE PUNISHMENTS THAT WOULD BEAVAILABLE TO ME SHOULD YOU ELECT TOBE TRIED BY ME ARE … (state electivepunishments that are available is the accusedelects to be tried by the Superior SummaryAuthority). BEFORE I CONTINUE WITH THETRIAL WITH THE OPTION OF AWARDINGELECTIVE PUNISHMENTS, I AM REQUIREDTO OFFER YOU THE OPTION OF ELECTINGTO BE TRIED BY COURT MARTIAL ORDEFENCE FORCE MAGISTRATE. I WILL NOWHAND YOU A FORM THAT ADVISES YOU INGREATER DETAIL OF YOUR ELECTION. YOUARE TO CONSIDER THE INFORMATIONCONTAINED IN THE FORM AND DISCUSS ITWITH YOUR DEFENDING OFFICER (or anindependent person if you are not represented bya Defending officer). YOU ARE ALSOREQUIRED TO PROVIDE ME WITH WRITTENNOTIFICATION OF YOUR ELECTION. THIS ISTO BE DONE BY COMPLETING AND SIGNINGTHE ‘ELECTION’ SECTION OF THE FORMTHAT I AM ABOUT TO HAND YOU. DO YOUHAVE ANY QUESTIONS REGARDING THEELECTION PROCEDURE THAT I HAVE JUSTEXPLAINED?’

(Authority hands the member a copy of Annex Uto Chapter 7 DLM – Vol 1. The Authority mustcomplete/ strike out relevant/irrelevant partsbefore giving it to the member.)

2. ‘I WILL NOW ADJOURN THE PROCEEDINGSWHILE YOU CONSIDER WITH YOURDEFENDING OFFICER THE INFORMATIONCONTAINED IN THE FORM THAT I HAVEHANDED YOU AND, IF NECESSARY, OBTAINFURTHER INDEPENDENT ADVICE INRESPECT OF YOUR ELECTION. DURING THEADJOURNMENT YOU ARE REQUIRED TODECIDE YOUR ELECTION AND COMPLETETHE ‘ELECTION’ SECTION OF THE FORM.’



22 Continued (The Authority adjourns for such time that heconsiders reasonable in the circumstances toallow the member to read, consider and seekadvice on the issue of his or her election.)

23. ACCUSED MAKES ELECTION 1. The tribunal should re-assemble.2. The Authority should say:

‘I HAVE PREVIOUSLY GIVEN YOU THEOPTION OF TRIAL BY COURT MARTIAL ORDEFENCE FORCE MAGISTRATE OR TO BETRIED BY ME. WHAT DO YOU WISH TO DO?WOULD YOU PLEASE PROVIDE ME WITHWRITTEN CONFIRMATION OF YOURELECTION.’

(The Authority should receive the written noticeof election from the accused (Annex U) andensure that the member has properly completedit and that it is consistent with the member’s oralelection.)

3. If the accused elects trial by court martial orDefence Force magistrate proceed to Item 24; ifthe accused elects trial by the Authority proceedto Item 25 if the accused has pleaded ‘NOTGUILTY’ or to Item 32 if he has pleaded‘GUILTY’ to all the charges.

24. AUTHORITY REFERS CHARGETO CONVENING AUTHORITY


‘I NOW REFER THE CHARGE TO A CONVENINGAUTHORITY, WITH A VIEW TO TRIAL BY COURTMARTIAL OR DEFENCE FORCE MAGISTRATE.THIS TRIAL IS NOW COMPLETED’.

25. AUTHORITY PROCEEDS WITHTRIAL

1. The Authority should say:‘I WILL NOW PROCEED WITH THE TRIAL.YOU MAY AT THIS STAGE GIVE EVIDENCEYOURSELF ON OATH OR AFFIRMATION, ONWHICH YOU MAY BE CROSS-EXAMINED BYTHE PROSECUTOR. IF YOU WISH TO CALLOTHER WITNESSES AND ALSO INTEND TOGIVE EVIDENCE YOURSELF YOU SHOULDGIVE EVIDENCE FIRST. YOU MAY ALSOREMAIN SILENT. WHAT DO YOU WISH TODO?’


3. If the accused wishes to remain silent proceed toItem 29.



This may only be done in cases where the accusedintends to call witnesses (other than himself) to giveevidence as to the facts.



27. THE ACCUSED GIVES EVIDENCE 1. The accused is to be sworn or affirmed asappropriate if he elects to give evidence on oathor affirmation. (See Notes 2, 3, in Annex O). Theaccused should be examined by the defendingofficer. He may be cross-examined by theprosecutor and re-examined by the defendingofficer and the Authority may ask questions ofhim (similar rules as in Items 12 to 15 apply).See Note 26 in Annex O.


1. All witnesses must give evidence on oath oraffirmation. (As to form of oath or affirmation seeNotes 2, 3 in Annex O.)

2. The witnesses should be examined by theaccused or the defending officer. They may becross-examined by the prosecutor and re-examined by the accused or defending officerand the Authority may ask questions of them.See Note 27 in Annex O.





31. AUTHORITY DECIDES GUILT 1. See Notes 28-29 in Annex O.

2. If the accused is found GUILTY the conviction isto be recorded.

3. If the accused is found GUILTY on a plea ofGUILTY—proceed to Item 32.

4. If the accused is found GUILTY on a plea of NOTGUILTY—proceed to Item 36.

5. If the verdict is ‘NOT GUILTY’, the charge mustbe recorded as ‘dismissed’. If all charges aredismissed, the accused should be discharged.


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 theaccused the option of electing to be punished byCourt Martial or Defence Force Magistrate—proceed to Item 33, or

2. He may continue with the trial—proceed to Item36.



33. AUTHORITY GIVES ACCUSEDOPTION OF ELECTINGPUNISHMENT BY COURTMARTIAL OR DEFENCE FORCEMAGISTRATE


‘I HAVE HEARD THE OUTLINE OF THE FACTSOF THE CASE AND AM OF THE OPINIONTHAT IT MAY BE APPROPRIATE TO IMPOSEAN ELECTIVE PUNISHMENT. THE ELECTIVEPUNISHMENTS THAT WOULD BE AVAILABLETO ME SHOULD YOU ELECT TO BEPUNISHED BY ME ARE AS FOLLOWS … (statethe elective punishments that are available if theaccused elects to be punished by the Authority).BEFORE I MAY AWARD THESEPUNISHMENTS I AM REQUIRED TO OFFERYOU THE OPTION OF ELECTING TO BEPUNISHED BY COURT MARTIAL ORDEFENCE FORCE MAGISTRATE RATHERTHAN BY ME. I WILL NOW HAND YOU AFORMAL NOTIFICATION, WHICH ADVISESYOU IN GREATER DETAIL OF YOURELECTION. YOU ARE TO CONSIDER THEINFORMATION CONTAINED IN THE FORMAND DISCUSS IT WITH YOUR DEFENDINGOFFICER (or an independent person if themember is not represented). YOU ARE ALSOREQUIRED TO PROVIDE ME WITH WRITTENNOTIFICATION OF YOUR ELECTION. THIS ISTO BE DONE BY COMPLETING AND SIGNINGTHE RELEVENT SECTION ON THE FORMTHAT I AM ABOUT TO HAND YOU. DO YOUHAVE ANY QUESTIONS REGARDING THEELECTION PROCEDURE THAT I HAVE JUSTEXPLAINED?’

(Authority hands the member a copy of Annex Vto Chapter 7 DLM – Vol 1. The Authority mustcomplete/ strike out relevant/irrelevant partsbefore giving it to the member.)

2. ‘I WILL NOW ADJOURN THE PROCEEDINGSWHILE YOU CONSIDER WITH YOURDEFENDING OFFICER THE INFORMATIONCONTAINED IN THE FORM THAT I HAVEHANDED YOU AND, IF NECESSARY, OBTAINFURTHER INDEPENDENT ADVICE INRESPECT OF YOUR ELECTION. DURING THEADJOURNMENT YOU ARE REQUIRED TODECIDE YOUR ELECTION AND COMPLETETHE ‘ELECTION’ SECTION OF THE FORM’,(Authority adjourns for such time that heconsiders reasonable in the circumstances toallow the member to read, consider and seekadvice on the issue of his or her election.)



34. ACCUSED MAKES ELECTION 1. The tribunal should reassemble.

2. The Authority should say to the accused:‘I HAVE PREVIOUSLY GIVEN YOU THEOPTION TO ELECT TO BE PUNISHED BYCOURT MARTIAL OR DEFENCE FORCEMAGISTRATE OR TO BE PUNISHED BY ME.WHAT DO YOU WISH TO DO?'. WOULD YOUPLEASE PROVIDE ME WITH WRITTENCONFIRMATION OF YOUR ELECTION.(The Authority should receive the written noticeof election from the accused (Annex V) andensure that the member has properly completedit and that it is consistent with the member’s oralelection. If the accused fails to provide anelection when offered one, the Authority is ableto proceed with punishment action under Part IVDFDA: see s.131(2B) DFDA.)

3. If the accused elects to be punished by CourtMartial or Defence Force Magistrate, proceed toItem 35. If the accused elects to be punished bythe authority proceed to Item 36.

35. AUTHORITY REFERSCONVICTION TO CONVENINGAUTHORITY


'I now refer the conviction to a convening authority,with a view to punishment by Court Martial orDefence Force Magistrate. This trial is nowcompleted'.

36. AUTHORITY INSPECTSACCUSED'S RECORD

Discretion should be exercised as to whether spentconvictions should be considered (see paragraph7.56).


Witnesses as to character may be called and astatement in mitigation may be made by theaccused or the defending officer. See Notes 30-33in Annex O.

38. AUTHORITY CONSIDERSSENTENCE

The Authority should take into account thesentencing principles set out in Chapter 11 of theDLM. A separate punishment or order should beimposed or made in respect of each offence onwhich the accused is convicted.

39. AUTHORITY ANNOUNCESSENTENCE

1. On completion, the convicted person salutes theAuthority and marches out.


ADFP 201 VOLUME 1 ANNEX L TOCHAPTER 7

PROCEDURE FOXTROT - TRIAL CONDUCTED BY A SUPERIOR SUMMARY AUTHORITY

1. COURT ASSEMBLES

2. AUTHORITY ARRIVES


4. AUTHORITY CALLS FOR ACCUSED/RECORDER SWORN


5a. ADMISSIONS


GO TO PAGE 7L-2ACCUSED PLEADS GUILTY

7. AUTHORITY CALLS ON ACCUSED TO PLEADACCUSED 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


33. AUTHORITY OFFERS ACCUSEDRIGHT TO ELECT TO BE PUNISHEDBY COURT MARTIAL OR DEFENCEFORCE MAGISTRATE

34. ACCUSED ELECTS TO BE PUNISHEDBY COURT MARTIAL OR DEFENCEFORCE MAGISTRATE

35. AUTHORITY REFERSCONVICTION TO CONVENTINGAUTHORITY

34. ACCUSED ELECTS TO BEPUNISHED BY AUTHORITY

36. AUTHORITY INSPECTSACCUSED’S RECORD




32. Considers Elective Punishment 32. Powers of Punishment Adequate

ADFP 201 VOLUME 1 7L-3

ACCUSED ENTERS PLEA OF NOT GUILTY

7. HAS AUTHORITY HEARD EVIDENCE ?

8. AUTHORITY INFORMS ACCUSED OF TRIAL PROCEDURE

9-18. AUTHORITY HEARS PROSECUTION EVIDENCE

19. IS THERE A CASE TO ANSWER

21. DISMISSES CHARGE20. AUTHORITY DECIDESON FURTHER ACTION

CONSIDERS ELECTIVE PUNISHMENT

22. AUTHORITY OFFERS ACCUSED RIGHTTO ELECT TRIAL BY COURT MARTIALOR DEFENCE FORCE MAGISTRATE

ACCUSED ELECTS TRIAL BY CM OR DFM

24. AUTHORITY REFERS CHARGETO CONVENING AUTHORITY

23. ACCUSED ELECTS TRIALBY AUTHORITY

25. PROCEEDS WITH TRIAL

26-28. DEFENCE CASE

29-30. CLOSING ADDRESSES


31. ACCUSED DISCHARGED36. INSPECTS ACCUSED’S RECORD

37. DEFENCE PLEA IN MITIGATION



Sufficient Evidence to Support Charge

Continues with Trial - Sufficient Powers of Punishment

Insufficient Evidence to Support Charge

GUILTY NOT GUILTY

YES NO

ADFP 201 VOLUME 1ANNEX M TO

CHAPTER 7

SUMMARY PROCEEDINGS - COURT LAYOUT

OFFICERCONDUCTINGTHE COURT

WITNESSRECORDER

PROSECUTOR

ACCUSED ANDDEFENDINGOFFICER

ESCORT

ADFP 201 VOLUME 1ANNEX N TOCHAPTER 7

PROCEDURE GOLF - PROCEDURE BEFORE AN EXAMININGOFFICER (OTHER THAN WHERE A PERSON IS DANGEROUSLY

ILL)


1. COURT ASSEMBLES 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 examiningofficer arrives.


2. EXAMINING OFFICER ARRIVES Those assembled should salute the examining officer.Headdress may then he removed.

3. EXAMINING OFFICEREXPLAINS PURPOSE OFHEARING

He should say:‘I HAVE BEEN DIRECTED BY .................... (CO).................TO HEAR EVIDENCE IN CONNECTION WITHA CHARGE AGAINST .......................(accused) UNDERTHE DEFENCE FORCE DISCIPLINE ACT.’

4. RECORDER TO BE SWORN ORAFFIRMED

1. The accused has the right to object that the recorder isnot impartial or is not competent.

2. As to form of oath or affirmation see Notes 6-8 and 12in Annex O.

5. EXAMINING OFFICER READSCHARGE

1. After reading the charge the examining officer shouldsay:‘ARE YOU THE PERSON NAMED IN THE CHARGESHEET?’

2. The accused should acknowledge.

6. EXAMINING OFFICEREXPLAINS PROCEDURE

He should say:‘DURING THIS HEARING I SHALL HEAR EVIDENCE INSUPPORT OF THE CHARGE AGAINST YOU AND THISEVIDENCE WILL BE RECORDED. YOU ARE ENTITLEDTO CROSS-EXAMINE ANY OF THE WITNESSES WHOGIVE EVIDENCE DURING THIS HEARING (OR YOURDEFENDING OFFICER MAY DO IT FOR YOU). IF YOUDO, YOUR QUESTIONS AND THE ANSWERS GIVENBY THE WITNESSES WILL BE RECORDED. AFTER IHAVE HEARD THE EVIDENCE IN SUPPORT OF THECHARGE I SHALL GIVE YOU AN OPPORTUNITY TOGIVE EVIDENCE YOURSELF AND TO CALL OTHERWITNESSES ON YOUR BEHALF. AFTER I HAVEHEARD ALL THE EVIDENCE I SHALL SEND THERECORD OF THIS HEARING TO ............. (CO).......WHO WILL DECIDE WHAT ACTION TO TAKE INRESPECT OF THE CHARGE. YOU WILL BE GIVEN ACOPY OF THE RECORD.’

7. EXAMINING OFFICER CALLSEACH WITNESS IN TURN

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 affirmationare set out in Notes 2-5 and 9-11 in Annex O.

8. EXAMINING OFFICERQUESTIONS EACH WITNESS

1. Witnesses are to he examined on the basis of priorwritten statements which they have made in connectionwith the alleged offence.

2. The examining officer is bound by the rules of evidenceapplicable to an examination-in-chief and he shouldavoid asking leading questions on any of the facts inissue. He should also ensure that all of the evidencewhich is recorded is admissible before a service

ADFP 201 VOLUME 17N–2


8 Continued tribunal. In particular he should ensure that hearsay ,character and opinion evidence which is not admissibleunder the rules of evidence is not recorded. Where theopinion of experts is relevant to a fact in issue and isotherwise admissible their evidence may be heard andrecorded.

3. Where documents or other evidence form part of theevidence in the case they should be marked foridentification by the examining officer when firstreferred to by a witness in the course of giving oralevidence.

9. ACCUSED OR DEFENDINGOFFICER MAY CROSS-EXAMINE WITNESS

Leading questions may be asked. See Note 14 in AnnexO on cross-examination.

10. EXAMINING OFFICER READSRECORD OF EVIDENCE TOWITNESS

This need not be done where all the evidence is recordedand transcribed and is only required when the examiningofficer is summarising the evidence. When this procedureis used, the examining officer asks the witness whether itis an accurate record of his testimony. If the witness doesnot agree with the accuracy of any part of his evidence heshould be given an opportunity to give the relevantevidence again. On completion, the witness and theexamining officer should sign the record.

11. EXAMINING OFFICER ASKSACCUSED WHETHER ANYOTHER EVIDENCE ISOBJECTED TO

The examining officer considers whether any of theevidence is inadmissible before a service tribunal andmay decide to delete portions of the evidence on thisground.

12. EXAMINING OFFICERACCEPTS WRITTEN EVIDENCE

Before accepting the written evidence of witnesses whocannot attend, the examining officer must cause thedocument to be read to the accused.

13. ACCUSED MAY ELECT TOGIVE EVIDENCE OR CALLWITNESSES ON HIS BEHALF

The accused and defence witnesses may becross-examined.

14. WITNESSES MAY BE EITHERRELEASED OR RECALLED

15. HEARING ENDS 1. Once the last witness is heard the examining officerdeclares that the hearing is completed. All personspresent are to stand, put on headdress and salute theexamining officer.

2. All persons are to remain in the hearing room until theexamining officer has left the room.

16. POST HEARING PROCEDURE 1. The examining officer must satisfy himself that therecord accurately reflects the substance of theevidence and that any written statements made bywitnesses who were unable to attend the hearing areincluded in the record.

2. The record of the hearing is to be forwarded to thecommanding officer who directed the examining officerto hear evidence and a copy is to be provided to theaccused.

ADFP 201 VOLUME 1ANNEX O TOCHAPTER 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 authoritysimply by examining the charge. In such cases, although the authority may have jurisdiction to try thecharge, he should not commence the trial unless, in the event of convicting the accused, he is able toimpose an appropriate punishment. To meet this situation, the DFDA provides that a summaryauthority may hear an outline of the case or prosecution evidence in order to determine whether heshould 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, theform in which the oath is normally to be taken is as follows:

3. The orderly is to provide the witness with a Bible and is to ask the witness:

4. ‘Do you swear to tell the truth, the whole truth and nothing but the truth?’

5. 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 formusually 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 begiven 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 theorderly is to ask the witness:

10. ‘Do you solemnly, sincerely and truly declare that the evidence you shall give will be thetruth, 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, trulyrecord (and transcribe) the evidence to be given in these proceedings (and will deliver a truetranscript)’.

Examination Of Prosecution Witnesses

13. Chapter 6 paragraphs 6.170 to 6.194 should be read in relation to examination ofprosecution witnesses. Witnesses should be identified and then asked to give their version of the factsin their own words. If they have made a prior statement, the prosecutor should seek to adduce in oralform the evidence recorded therein; the statements themselves are generally not admissible asevidence (see paragraph 6.101). Leading questions should not generally be asked in examination-in-chief (see paragraph 6.186). A prosecutor must also ensure that his examination-in-chief does notextend to matters of which the accused has not been given notice.

ADFP 201 VOLUME 17O–2

Cross-Examination

14. (See paragraphs 6.195 to 6.210) A witness may be cross-examined on any relevant issuesof fact and on his credit. Where the cross-examine' attacks the witness's credit he is generally boundby the answers he receives and may not seek to adduce other evidence to contradict the witness (seeparagraph 6.200). Generally, leading questions may be asked. If in a crucial part of the case thecross-examiner intends to ask the summary authority to disbelieve the evidence of a witness, thewitness must be challenged on the issue in the course of his cross-examination (see paragraph 6.195et seq).

Re-Examination

15. A party who has called a witness may re-examine that witness only on matters which havearisen out of cross-examination or where a particular question or line of questioning is allowed by thesummary 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 questionsshould be relevant to the issues in the case. If the summary authority asks questions of a witness, theprosecutor and the accused (or his representative) may put such questions arising from the answerswhich 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 findingon the charge, recall a witness where leave to do so has been given by the authority; DFD Rule19(1)(b). Leave should normally he granted where the authority is satisfied that the accused would beput 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 theinterests 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 theaccused may put such questions to the witness as seem proper to the summary authority; DFD Rule19(4).

No Case To Answer

20. After hearing the prosecution evidence, the summary authority must decide whether theevidence is sufficient to support the charge, ie whether a prima facie case exists. If he decides thatthere is insufficient evidence he must dismiss the charge. If he decides there is sufficient evidence, hemust proceed with the trial (DFDA s.130(1))

21. In determining whether there is sufficient evidence, the authority must be satisfied on thebalance of probabilities (see paragraph 6.19) that the evidence is sufficient to prove every element ofthe charge.

Courses Open Where There Is Sufficient Evidence To Support Charge (commanding officersand superior summary authorities only)

22. Right to elect trial by court martial. Before he offers an accused the right to elect trial bycourt martial or Defence Force magistrate, the summary authority must be satisfied that if he convictsthe accused, it would be appropriate to impose an elective punishment upon him. (As to electivepunishments see paragraph 7.20.) It should also be noted that the right to elect trial by court martialarises 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 theopinion that the charge, if proved, warrants a more severe punishment than he can impose, he shouldrefer the charge to a convening authority (see paragraphs 7.16, 7.37). In most cases there should beno need for a summary authority to break off a trial because he should have been made aware of the


gravity of the alleged offence in the course of the hearing prior to the trial. Occasionally, however, asummary authority may find that the evidence which is given at the trial reveals a more serious offencethan 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, whichreveals that the offence is far more serious than the authority had realised when he decided to try thecharge. In such a case the authority may break off the trial and refer the charge to a conveningauthority 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 givingevidence until after hearing other defence witnesses, he should be warned that the value of hisevidence 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 toanswer, 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 thathe is a person of good character or he has impugned the character of prosecution witnesses orco-accused, he may be asked, and is bound to answer, questions which show that he has beenconvicted or tried of other offences or that he is a person of bad character (see paragraphs 6.125 to6.136).

Recalling Prosecution Witnesses At End Of Defence Case

27. After defence witnesses have given their evidence, the prosecutor may, by leave of thesummary authority, call a witness or recall a witness to give evidence on any matter raised by theaccused in his defence which could not properly have been raised or foreseen by the prosecutorbefore 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 orderto 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 thatevery element of the charge has been proved beyond reasonable doubt. (As to 'proofbeyond reasonable doubt' see paragraph 6.18.)

b. The evidence in the case. Apart from matters on which evidence is not required (seeparagraphs 6.42 to 6.53), the summary authority must consider only the evidence inthe case and must not allow himself to be influenced by his personal feelings towardsor knowledge of the accused or by any personal prejudices he may have in relation tothe offence with which the accused is charged. If he is not satisfied beyondreasonable doubt that there is sufficient reliable evidence to prove every element ofthe charge he must find the accused not guilty. In cases where the evidence againstthe accused includes evidence by accomplices, the authority must not convict on thisevidence unless it is corroborated (see paragraph 6.220).

Plea In Mitigation

30. The accused or his representative may call witnesses as to character or adduce any otherevidence relevant to punishment (or other action under Part IV) (DFD Rule 50(2)). Any witnesses whoare called are sworn or affirmed in the manner described in Notes 2-5 and 9-11.


31. Character witnesses may be cross-examined by the prosecutor but such cross-examinationshould be limited to clarifying the evidence-in-chief. The prosecutor should not attack the credit ofcharacter 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 mayaddress 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 anessential ingredient of the charge to which the accused has pleaded guilty, the summary authorityshould substitute a plea of not guilty. The charge should then be dealt with as a defended matter bythe 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 ofthe 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 paragraph759 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 commandingofficer, 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 summaryauthority, the proceedings are to be forwarded to a reviewing authority as soon as practicable aftercompletion of the trial (DFDA s.152(1)).

ADFP 201 VOLUME 1ANNEX P TOCHAPTER 7

RIGHTS OF AN ACCUSED PERSON AT SUMMARY PROCEEDINGS

General

1. An accused person has the following rights where, having been charged with a serviceoffence, 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 heis 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 DefenceForce if that person is reasonably available; otherwise another person may be appointed to representhim (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 atrial, 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 hasnot had an adequate opportunity to prepare his defence or to choose a person torepresent or advise him.

b. Securing of Witnesses. An accused may apply to secure the attendance of witnessesor additional witnesses on his behalf.

c. Separate trials:

(1) If an accused is charged with more than one service offence, he may apply foreach charge to be heard separately if he considers that the evidence in some ofthe charges would unfairly prejudice him in his defence of other charges. Thisonly applies where the charges are of a different nature or are separated in timeby a considerable period.

(2) If an accused is charged with one or more other persons, he may apply to bedealt with separately on the grounds that he would otherwise be prejudiced inhis 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 s.141(1)):

a. that he is not liable to be tried for the offence with which he has been charged, byvirtue of previous acquittal or conviction;

b. that the charge was made outside the required time limitation;

c. that the offence with which he has been charged has already been taken intoconsideration by a court martial or Defence Force magistrate;

d. that the charge does not disclose a service offence or is otherwise wrong in law; and

e. that the summary authority does not have jurisdiction or is otherwise ineligible to trythe charge (DLM, Chapter 7).

ADFP 201 VOLUME 17P–2

Rights With Regard To Pleading

6. An accused person is presumed to be innocent of any offence until proved guilty. Before asummary authority may convict an accused, the prosecution must prove his guilt ‘beyond reasonabledoubt’.

7. An accused person who pleads ‘not guilty’ is not necessarily stating that he did not committhe alleged offence. The effect of this plea is to require the prosecution to prove the charge againsthim. An accused has the right to plead ‘not guilty’ or to remain silent. If he chooses to remain silent theproceedings 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 doesnot 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 summaryauthority, 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 tocross-examine witnesses for the prosecution.

11. Right to Give Evidence etc. An accused person may give evidence on oath or affirmationor remain silent. Where he gives evidence on oath or affirmation, an accused may be cross-examinedby the prosecution..

12. Right to Call Witnesses to Fact . An accused person has a right to call witnesses to giveevidence on his behalf on the facts in issue.

13. Right to Address the Summary Authority at a Trial . An accused person may address asummary authority:

a. before presenting evidence (usually only necessary in a complicated case);

b. at the end of the prosecution case - he may submit that there is no case to answer;

c. at the end of all evidence in the case - on the question of guilt; and

d. 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 togive evidence as to his good character. Where a witness is not reasonably available to give evidenceas 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, theauthority may not impose a punishment or take action other than as authorised by the DFDA (seeDLM, Chapter 11).

16. Elective Punishments. An ‘elective punishment’ (see DLM, Chapter 11) may not beimposed by a commanding officer or superior summary authority unless the convicted person hasbeen offered the right to elect trial by court martial or Defence Force magistrate and he has chosen tohe tried by a CO or superior summary authority (as the case may be). Similarly, a CO or superiorsummary authority may not impose an elective punishment on a person who has breached anundertaking to be of good behaviour for 12 months unless the authority has offered the person theright to elect punishment by a court martial or Defence Force magistrate and the person has chosen tobe punished by the CO or superior summary authority (as the case may be).

ADFP 201 VOLUME 17P–3

17. Where an accused is offered the right to elect trial by court martial or Defence Forcemagistrate 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 automaticallyreviewed by a reviewing authority. If, in the opinion of the reviewing authority, a miscarriage of justicehas occurred he may quash the conviction and punishment or take such other action as may beappropriate (see DLM Chapter 12). In addition to automatic review, a convicted person is entitled toseek review by petition to a reviewing authority or to a Service chief.

ADFP 201 VOLUME 1ANNEX Q TOCHAPTER 7

NOTES ON BIAS

1. Summary authorities, members of Courts Martial, judge advocates and Defence Forcemagistrates have a duty to ensure that they do not try a charge in respect of which they may bebiased. This duty arises under the common law as well as under specific provisions of the DefenceForce Discipline Act (DFDA) or Rules. The common law requirement for impartiality is contained in theclassic statement 'Justice should not only be done, but should manifestly and undoubtedly be seen tobe done'.1 ‘The reason is plain enough, justice must be rooted in confidence, and confidence isdestroyed when right minded people go away thinking: The Judge was biased.’2

2. Under the Defence Force Discipline legislation, a variety of provisions relate to the questionof bias. These provisions and the tribunals to which they apply are set out in paragraphs 3, 4 and 5below.

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, oras the judge advocate, of a court martial an officer whom he believes to be :

a. biased or likely to be biased; or

b. likely to be thought, on reasonable grounds, to be biased.’

b. Objection on ground of ineligibility etc. (DFDA s.121):

‘121. At any time before a court martial is sworn or affirmed, the accused person maylodge an objection with the convening authority to any member or reserve member ofthe court martial or to the judge advocate on the ground that the member or judgeadvocate:

a. is ineligible;

b. is, or is likely to be, biased; or

c. 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 whobelieves himself:

a. to be biased, or likely to be biased; or

b. likely to be thought, on reasonable grounds, to be biased, shall notify theconvening 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 personmay enter an objection to any member or reserve member of the court martial on theground that the member:

1 R v Sussex Justices; Ex parte McCarthy [1924] 1 K.B. 256 and 259 per Lord Hewart C.J.

2 Reg v Nailsworth Licensing Justices, Ex parte Bird [1953] 1 W.L.R. 1046; [1953] 2 All E.R. 652, DC.

ADFP 201 VOLUME 17Q–2

a. is ineligible;

b. is, or is likely to be, biased; or

c. 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 courtmartial, the accused person may enter an objection to the judge advocate on theground that the judge advocate -

a. is ineligible;

b. is, or is likely to biased; or

c. 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 issatisfied 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 atrial before a Defence Force Magistrate the accused person may enter an objection on the ground thatthe Defence Force magistrate:

a. is, or is likely to be, biased; or

b. 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 hasbeen substantiated by the accused. (DFDA s.141(6)).

5. Summary Authorities. A summary authority must duly administer justice ‘according to lawwithout fear or favour affection or ill-will .............. ;3 accordingly he may not try a charge in relation towhich he is biased. At a trial before a summary authority, an accused person may not, however, enteran objection to the authority on the ground that the authority is biased or is likely to be biased or islikely to be thought, on reasonable grounds to be biased.4 Nevertheless, an allegaltion of bias inrespect of a summary conviction may be made at the prost trial, review by petition, stage. It istherefore imperative that summary authorities conduct themselves in such a way as to avoid givingrise to a perception of bias. Specifically, unless the exigencies of the Service require otherwise, asummary authority that has been involved in the investigation or preferment of a charge against anaccused 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 member’sCommanding Officer (CO) is not, by itself, enough to establish bias or a likelihood of bias on the partof the CO. As stated in ss 141(4A) and (4B):

‘141 (4A) For the purposes of this section, a summary authority is not to beregarded:

a. as biased; or

b. as likely to be biased;

in relation to the trial of an accused person merely because the summary authority isthe commanding officer of the accused person.”

3 Rule 22 of the DFD Rules.

4 DFDA s.141(4): Note that nothing in this sub-section is to be taken, by implication to authorise trial by asummary authority who may be biased.


‘141 (4B) For the purposes of this section, the circumstances that a summaryauthority is the commanding officer of an accused person is not, without more, areasonable ground for thinking that, in relation to the trial of the accused person, thesummary authority is biased.’

What Constitutes Bias

7. Bias may be categorised as ‘actual bias’, ‘likelihood of bias’ and ‘imputed bias’ - ie alikelihood 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 pecuniarynature, in the outcome of a trial. In a service context actual bias may also be substantiated where thedislike of an adjudicator for an accused person is notorious or where there is evidence that theadjudicator has pre-judged a particular case. For example a comment by a summary authority that hewas 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 biasor 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 whichsuggest bias.

a. A member of a court martial or a summary authority makes statements or passescomments on a case before it is heard. Such statements or comments may providereasonable grounds for supposing that the officer is likely to be biased.

b. Before commencement of a trial of a person by court martial on a charge relating tothe loss of certain secret documents, the President of the court was briefed on thematter by his superior officers. In the opinion of the Courts Martial Appeal Tribunal thisprior briefing raised a likelihood of bias and infringed the principle that justice must notonly be done but must be seen to be done. 5

c. A member of a court martial or a summary authority is likely to be thought to be biasedwhere he is involved in a case before it is tried. Whether or not there are reasonablegrounds for this belief will usually depend on the extent of involvement of the officerconcerned. Some guidelines in this regard in relation to summary authorities are setout in paragraph 738. The guidelines apply ‘mutatis mutandis’ to courts martial.

d. At a trial by court martial the judge advocate may ask questions of a witness when, inhis opinion, it is necessary to do so or in order to clarify evidence which has beengiven by the witness. The judge advocate should keep his questions to a minimum soas to avoid the appearance of bias. Similar care should be exercised by a summaryauthority when he asks questions of witnesses at a summary trial.6

e. A member of a court martial or a summary authority should not make known his viewsabout issues of a similar nature to the case under consideration in such a way as tosuggest prejudgment.7 But is not enough to substantiate a claim of bias merely toshow that the officer holds strong views on the general subject matter. 8

f. The fact that an accused person is known by a summary authority to have committedprior offences (including offences tried by the authority) does not, of itself, render the

5 Re Feiss Appeal [1959] 8 F.L.R. 336 especially p 351, 352.

6 Taylor v National Union of Seaman [1967] 1 All ER 767, Re Lamperd, Courts Martial Appeal Tribunal1/1981

7 R v Kent Police Authority, Ex parte Godden [1g71] 2 QB 662.

8 Ex parte Wilder [1902] 66 JP 761, DC.


authority biased and there is no requirement for him to disqualify himself from trying acharge against such a person. In order to constitute bias in such a case it would benecessary that the previous offences were of such a nature and gravity as to be likelyto 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 toavoid giving rise to a perception of bias. In particular, private discussions with theprosecutor, defending officer, witnesses, clerk and the recorder during the course of ahearing or trial (including any adjournments) must be avoided. However, nothingprevents a Service tribunal from receiving independent legal advice, during a hearingor trial. In the case of court martial proceedings, this advice will be provided by theJudge Advocate. Care must also be exercised in pre-hearing and pre-trial discussionsto 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 shouldbe confined to administrative matters relating to the hearing or trial. Thecircumstances of the incident or the evidence relating to the charges should not bediscussed. However, in respect of trials at the summary level, it is recognised that unitauthorities may become aware and have some knowledge of an incident orcircumstances giving rise to charges as a result of the performance of their normal unitduties. This in itself will not give rise to a perception of bias. Nevertheless, in suchcircumstances, summary authorities must carefully consider whether the extent oftheir prior knowledge could give rise to a perception of bias that justifies the referral ofcharges to another summary authority.

ADFP 201 VOLUME 1ANNEX R TOCHAPTER 7

FORM PD 108—PRE-SENTENCE REPORT A

Staff-in-Confidence (After first entry)PD 108Revised Jul 97

Department of Defence

Pre-Sentence Report

Staff-in-Confidence (After first entry)Stock No 7530-66-122-7780

Dependants

Do you have any dependants? (eg children, parents etc)

No

Yes

Go to Member's Income Section

Dependent Children (Insert number)

At Preschool

At School

At Tertiary Level

Employed

Unemployed

Do you have a dependent parent?

No

Yes

Mother Father

Are they wholly dependent or partially dependent?

Wholly Partially

Other Dependants

If space is insufficient, attach all necessaryadditional information.

Marital Status

Divorced Single Separated

MarriedDefacto

Is your spouse employed? YesNo

Member's Income (Spouse includes defacto)

$

$

$

$

$

Net Fortnightly Income (A-C)

Other Income per Fortnight

Spouse's Income per Fortnight

Total Family Income per Fortnight(D+E+F)

C

D

E

F

Assets Flat Land Furniture

House Vehicle Other

SavingsUnder$500

$500 to$1000

$1000 to$1500

$1500and over

Defending OfficerAre medical or social worker reports referableto sentencing attached at Annex A? Yes No

Are reports of superior officer as to behaviourattached at Annex B? Yes No

Are character references attached at Annex C? Yes No

Is report on consequential effects of convictionor punishment attached at Annex D? Yes No

Signature

Printed Name

Date

AccusedI request that the above information be placed before the ServiceTribunal in the event of my conviction

Signature Date

Summary Authority, Defence Force Magistrate or Clerkof CourtI have received this Pre-Sentence Report

SummaryAuthority

Clerk ofCourt

Defence ForceMagistrate

Signature

Printed Name

Date

Tax $

$

$$

$

$

$

$

$

DFRDB/MSBS

Rent or Mortgage

Hire Purchase

Other Loans

Food

Gas or Electricity

Other

Total

Fortnightly Military Salary (Salary + ServiceAllowance + Other Allowances)

Daily Military Salary (Fineable Daily Rate ofPay ie Military salary less all allowances)

Fortnightly Expenses (If necessary, attach additional information)

$

$

A

BPersonal ParticularsFull Name

Rank Service Number

Date of Birth Mustering, Category or ECN

Date of Enlistment or Appointment Discharge Date

Seniority in Present Rank

Education and Trade Qualifications

ADFP 201 VOLUME 1ANNEX S TOCHAPTER 7

FORM PD 105—SUMMARY PROCEEDINGS REPORT A

Rights of an Accused Person at Summary Proceedings

General

An accused person has the following rights where, having been charged with a Service offence, he or she isdirected 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 ForceDiscipline Law Manual ADFP 201).

Right to be Informed of Charge

An accused has a right to be given a copy of the charge preferred against him or her at the time he or she ischarged (DFDA s87(1)(a); DFDA s95(3); DLM para 408).

Right to be Represented

An accused person may defend him or her self or may be defended by any member of the Defence Force ifthat 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

Applications. An accused person has a right to make any application in connection with a trial, includingany of the following matters, before being asked to plead (DFDA s141):

1.

2.

3.

4.

a. Adjournment. An accused may apply for an adjournment on the grounds that he or she has not had anadequate 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 additionalwitnesses 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 chargeto be heard separately if he or she considers that the evidence in some of the charges would unfairlyprejudice him or her in defence of other charges. This only applies where the charges are of adifferent 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 withseparately on the grounds that he or she would otherwise be prejudiced in his or her defence.

Objections. An accused person has a right to enter an objection to a charge on any ground, including anyof the following, before being asked to plead at a summary trial (DFDA s141):

5.

a. that he or she is not liable to be tried for an offence with which he or she has been charged, by virtue ofprevious 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 aCourt 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

An accused person is presumed to be innocent of any offence until proved guilty. Before a summaryauthority can convict an accused, the prosecution must prove his or her guilt 'beyond reasonable doubt'(DFDA s12).

6.

An accused person who pleads 'not guilty' is not necessarily stating that he or she did not commit the allegedoffence. The effect of this plea is to require the prosecution to prove the charge against him or her. Anaccused has the right to plead 'not guilty' or to remain silent. If he or she chooses to remain silent theproceedings will proceed as though he or she had pleaded 'not guilty' (DFDA s130).

7.

An accused person who pleads 'guilty' admits the offence with which he or she is charged but does not admitthat every allegation made against him or her in connection with the offence is true.

8.

PD 105 - Page 1 of 4

PD 105Revised Jun 98


Summary Proceedings Report

ADFP 201 VOLUME 17S–2

Rights in Connection with Conduct of Summary Hearings

Right to Request an Adjournment. An accused may, at any time, apply to a summary authority, on anyreasonable grounds, for an adjournment of proceedings (Rule 39).

9.

Right to Cross-Examine. An accused person (or defending officer) has the right to cross-examinewitnesses for the prosecution (Rule 18).

10.

Right to Give Evidence. An accused person may give evidence on oath or affirmation, make an unswornstatement, or remain silent. Where he or she gives evidence on oath or affirmation, an accused may becross-examined by the prosecution. Where he or she makes an unsworn statement, an accused may not becross-examined. An unsworn statement may not carry as much weight as evidence on oath or affirmation(Rule 46).

11.

Right to Call Witnesses to Fact. An accused person has a right to call witnesses to give evidence on hisor her behalf on the facts in issue (Rule 14).

12.

Right to Address the Summary Authority at a Trial. An accused person may address a summaryauthority:

13.

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).

Right to Call Witnesses to Character. A convicted person has a right to call witnesses to give evidence asto his or her good character. Where a witness is not reasonably available to give evidence as to goodcharacter a summary authority may accept evidence in documentary form (Rule 50).

14.

Rights in Relation to Punishment

Authorised Punishments. Where a person is convicted by a summary authority, the authority may notimpose a punishment or take other action other than as authorised by Part IV of the DFDA. (See DLM,Chapter 11.)

15.

Elective Punishments. An 'elective punishment' (see DLM, Chapter 11) may not be imposed by acommanding officer or Superior Summary Authority unless the convicted person has been offered the rightto elect trial by Court Martial or Defence Force Magistrate and he or she has chosen to be tried by a CO orSuperior Summary Authority (as the case may be). Similarly, a CO or Superior Summary Authority may notimpose an elective punishment on a person who has breached an undertaking to be of good behaviour for12 months - unless the authority has offered the person the right to elect punishment by a Court Martial orDefence Force Magistrate and the person has chosen to be punished by the CO or Superior SummaryAuthority (as the case may be) (DFDA s131).

16.

Where an accused is offered the right to elect trial by Court Martial or Defence Force Magistrate he or shehas a right to be given a reasonable time in which to consider his or her decision.

17.

Right to Review of Proceedings

Where any person is convicted by a summary authority the proceedings are automatically reviewed by areviewing authority. In addition to automatic review, a convicted person is entitled to seek review by petitionto a reviewing authority and then to a service chief (DFDA Part IX).

18.



PD 105Revised Jun 98


Summary Proceedings ReportThis 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 givento the Accused. The attention of the Accused is to be drawn to the notes on pages one and two of this form.

DistributionOriginal - 1. Copy 2 - Copy 3 - Accused

Copy 4 -

Date of OffenceDFDA

Section Statement of Offence and Charges Plea FindingConvict orDismiss*

Particulars of Arrest

Particulars of AccusedPart 1 - Charge Sheet

Ship or Unit

Serial Number

Family Name (In block letters) Given Name(s) Number

Date of Arrest Time of Arrest Date of Release Time of ReleaseAuthorised by Authorised by

Conditions of Release (If any) (DFDA s97)

Stock No 7530-66-122-4996

Summary AuthorityCO (if convicted by a SUBSA) or Legal Officer (if convicted by a CO or SUPSA)

2.

Legal Officer (if convicted by a SUBSA) orReviewing Officer (if convicted by a CO orSUPSA)

3.

Unit Admin4.Conduct Record5.

1. Summary AuthorityCO (if convicted by a SUBSA) or Legal Officer (if convicted by a CO or SUPSA)

2.

Legal Officer (if convicted by a SUBSA) orReviewing Officer (if convicted by a CO orSUPSA)

3.

Unit Admin4.Personnel Office5.

Navy -Army -

Air Force -

Naval Police Central RecordsDGCM-A (for Officers)

DGCM-AFSCMA (for all other ranks)

Police Records OfficeNavy -

Army -

Air Force -

Naval PoliceCentral RecordsMilitary PoliceCentral RecordsDirectorate ofSecurity andPolicing

Rank


*It is a requirement under the DFDA to formally convict or dismiss in respect of each charge.

If acquitted of all charges, all copies of the Summary Proceedings Report must be destroyed.

Charges Preferred by Prosecutor Defending Officer

Documentary EvidenceWitnesses (Whether or not they are called to give evidence they must be listed)


Charge(s) referred to other Summary Authority (Specify below)

Summary AuthorityPart 2 - Hearing or Trial

4. Date Accused advised of right to elect trial or punishment by Court Martial or Defence Force Magistrate

1. Date directed that the charges should not proceed

5. Date Accused did or did not elect trial or punishment by Court Martial or Defence Force Management

2. Date Examining Officer appointed

6. Date Charge(s) referred to Convening Authority for trial by Court Martial or Defence Force Magistrate

3. Date Hearing recommenced

Punishment(s) Awarded or Orders Imposed (A separate punishment must be awarded for each conviction)

Review by Commanding Officer of Subordinate Summary Authority Trial (*Attach reasons)Part 3 - Post Trial

Report of Appointed Legal Officer Yes No

Conviction Upheld Quashed *

Punishment or Orders Upheld Quashed * Revoked *

Report by Legal Officer (*Attach reasons)

Correct in law in accordance with Part IX.DFDA

Review or Approval by Reviewing Officer (*Attach reasons)

Report of Appointed Legal Officer obtained on

Conviction Upheld Quashed *

Conditional Punishments,Reparation or RestitutionOrders

Approved Revoked *

Punishments Upheld Quashed *

Administrative Action

Personnel Office or Orderly RoomConduct record noted

EDP Report Pay Office

Yes

Date

Substituted as follows *



Signature Printed Name Appointment Date

Signature Date Signature Date Signature Date

Form PD M/N Form Number





Charge 1 Charge 3

Charge 5

Charge 2

Charge 4 Charge 6

Automatic Forfeiture of Pay


Printed Name Appointment Date(s) of Hearing Date(s) of Trial

Date

Printed Name Appointment Date(s) of Hearing Date(s) of Trial

Date

Date

Date

Date

Date

Date

Incorrect in law * in accordance with Part IX.DFDA

Rank

Rank

Rank

Rank

Rank

Rank


ADFP 201 VOLUME 1ANNEX T TOCHAPTER 7

FORM PD 104—RECORD OF EVIDENCE A

Department of DefencePD 104Revised Jul 96

Record of Evidence

ParticularsFamily Name Initials Number Rank Ship or Unit

Date Court Assembled Applications or Objections

Applications or Objections (State briefly the Applications or Objections and Action Taken)

Summary of Evidence

Certification

YesNo

I hereby certify that this record of evidence is true and correct.

Recorded or Transcribed by

Summary Authority

Time

Stock No 7530-66-122-4995

If 'Yes', state below

This form is to be completed in accordance with DLM and is to contain the substance of theevidence of the witness in sufficient detail to enable the merits of the case to be judged.

Signature Printed Name Date

Signature Printed Name Date

DistributionTo accompany copies 1, 2 & 4 of thePD 105 - Summary Proceedings Report

ADFP 201 VOLUME 17T–2

Family Name Initials Number Rank Ship or Unit

Applications or Objections (Continued from page 1)

Summary of Evidence

ADFP 201 VOLUME 1ANNEX U TOCHAPTER 7

NOTIFICATION AND ELECTION

RIGHT TO ELECT TO BE TRIED BY COURT MARTIAL OR DEFENCE FORCE MAGISTRATE

Summary trial of charges against …………………………………………………….…1

by ………………………………………………..2 a Commanding Officer/ Superior Summary Authority3

commencing on ……………………….4

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).

………………………………………………. Date……………………………

(Commanding Officer/Superior Summary Authority)

1 Insert rank, name, Service number and unit of accused

2 Insert name and position of summary authority

3 Delete non-applicable one

4 Insert commencement date of trial

5 Insert elective punishments that are applicable to the accused. (see schedule 3 to the DFDA).

ADFP 201 VOLUME 17U–2

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 you7

OR

I elect to be tried by Court Martial or Defence Force Magistrate and express a desireto be tried by a .………..……………………………………………………………8

(insert above either Court Martial or Defence Force Magistrate)

…………………………………………. ……………………………………..Accused Witness (Defending Officer/ or other

independent member)

Date Date

6 Name, number and unit of member being tried

7 One of the trial options to be selected by striking out the non-applicable one


ADFP 201 VOLUME 1ANNEX V TOCHAPTER 7

NOTIFICATION AND ELECTION

RIGHT TO ELECT TO BE PUNISHED BY COURT MARTIAL OR DEFENCE FORCEMAGISTRATE

Summary trial of charges against …………………………………………………….…1

by ………………………………………………..2 a Commanding Officer/ Superior SummaryAuthority3 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)

1 Insert rank, name, Service number and unit of accused

2 Insert name and position of summary authority

3 Delete non-applicable one

4 Insert commencement date of trial

ADFP 201 VOLUME 17V–2

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 desireto be punished by a .………..……………………………………………………………8

(insert either Court Martial or Defence Force Magistrate)

…………………………………………. ……………………………………..Accused Witness (Defending Officer/ or other

independent member)

Date ……………………….. Date ………………………..

5 Insert elective punishments that are applicable to the accused. These are detailed in the Schedule 3DFDA

6 Name, number and unit of member being tried



ADFP 201 VOLUME 1ANNEX W TO

CHAPTER 7

INSTRUCTIONS ON THE COMPLETION OF PUNISHMENTSTATISTICS 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 oneparticular service (eg Army) tries a member of a different service (eg Navy), this must not be includedin with the usual return, which must show only Army members tried. In these circumstances, separateSheets 1-3 must be sent indicating that the Army tried a member of the Navy. These figures will thenbe included in the Navy statistics. This is essential so that the three individual Service versions ofSheets 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 becollected on Sheets 1-3 are related to the Service of the offender, not the Service of the summaryauthority and secondly, it will indicate to the three Service chiefs the number of their respectivepersonnel being tried by other Services.

AD

FP

201 VO

LUM

E 1

AN

NE

X X

TO

CH

AP

TE

R 7

PU

NIS

HM

EN

T S

TA

TIS

TIC

S S

PR

EA

DS

HE

ET

SA

Sheet 1

NAVY

ARMY Circle one service

AIR FORCE

GUILTY N.G.

the number of offences heard.

e quarterly report has been forwarded, include

RS OF THE -

NUMBER

OF TRIALS

HELD (1)

SUBORDINATE SUMMARY AUTHORITY

QUASHED (3)

CHARGES TRIED (2)

GUILTY N.G. GUILTY N.G.

January

February

March

April

May

June

July

August

September

October

November

December

TOTAL

1. A trial is defined as each single occurrence of an accused person appearing before a summary authority, regardless of

3. Shows convictions quashed in the month that the conviction was originally recorded. (If a conviction is quashed after thseparate advice with the next quarterly report. SO2 JAG will adjust the previous report accordingly).

2. Alternate charges not proceeded with are not recorded.

STATISTICS OF TRIALS AND OUTCOMES BEFORE SUMMARY AUTHORITIES FOR MEMBE

NUMBER

OF TRIALS

HELD (1)

QUASHED (3)

QUASHED (3)

CHARGES TRIED (2)

CHARGES TRIED (2)

Period of Report:

COMMANDING OFFICERSUPERIOR SUMMARY AUTHORITY

NUMBER

OF TRIALS

HELD (1)

Command/Legal Office:

ADFP 201 VOLUME 17X–2

Sheet 2

NAVY

ARMY

Officer Officer

Cadet

WO1

WO

WOFF

WO2

CPO

FSGT

SSGT SGT

PO

CPL

LS

LCPL AB

LAC

PTE

SMN

ACSect 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

DFDA

Sect.

Rank

Note: Only the most frequently used sections of the DFDA have been included. Add a new row where necessary.

Circle one service

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.

Short summary of Offence Reason for quashing

Details of Quashed Convictions

AIR FORCE

CONVICTIONS FOR OFFENCES COMMITTED BY RANK FOR MEMBERS OF THE -

AD

FP

201 VO

LUM

E 1

7X–3

Sheet 3

CPL

LS

LCPL AB

LAC

PTE

SMN

AC

must be deleted from the

Circle one service

NAVY

ARMY

Officer Officer

Cadet

WO1

WO

WOFF

WO2

CPO

FSGT

SSGT SGT

PO

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

Note: Where a conviction has been quashed and shown as such on sheet 1, the relevant punishment

statistics on this sheet.

PUNISHMENTS IMPOSED BY RANK ON MEMBERS OF THE-

AIR FORCE

ADFP 201 VOLUME 1

CHAPTER 8

COURTS MARTIAL—BEFORE THE TRIAL

SECTION 1 - GENERAL

Introduction

8.1 A court martial is a Service tribunal which is created for the purpose of trying a defencemember or a defence civilian on a specific charge, usually of a serious nature. In certaincircumstances a court martial may also be convened solely for the purpose of determining punishment(or other action) in respect of a person who has been convicted by another Service tribunal.1 A courtmartial is created by means of a convening order which is made by a person who has been appointedas a convening authority by a chief of staff. A convening order appoints the members of the court andthe 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 generalcourt martial comprises a President, who is not below the rank of colonel or equivalent, and not lessthan four other members. A restricted court martial comprises a President, who is not below the rankof lieutenant colonel or equivalent, and not less than two other members. A judge advocate isappointed to both types of court martial. A general court martial has wider powers of punishment thana restricted court martial. 2

Jurisdiction of Court Martial

8.3 Both types of courts martial have jurisdiction to try any charge of a Service offence, otherthan a charge of a custodial offence,3 against any defence member or defence civilian. Where theoffence to which the charge relates is a ‘section 63 offence’, it may not be tried by a court martialexcept with the consent of the Attorney-General. A ‘section 63 offence’ is any of the followingoffences:

a. treason, murder, manslaughter, rape or bigamy;

b. offence in respect of which proceedings could not be brought in the Australian CapitalTerritory without the consent of a Minister;

c. an offence which has been prescribed in the Defence Force Discipline Regulations(DFD Regs) for the purpose of this section;4 or

d. an ancillary offence5 in relation to any of the offences referred to above.

1 eg where a person who is in breach of an undertaking to be of good behaviour elects to be punished bycourt martial (DFDA s.103(6), (7)) or where a previous court is dissolved or discontinued after it hasconvicted a person but before it has imposed a punishment (DFDA s.125(6), s.129A(4)).

2 See chapter 11, especially para. 11.14.

3 ie an offence committed by a person whilst undergoing punishment of detention; see para. 11.54 etseq.

4 No offences have been prescribed in the Regulations.

5 eg being an accessory, inciting, conspiracy, etc; see section 4 of Chapter 5.


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 theDefence Force Discipline Act (DFDA)6 and, for convenience, are also reproduced at Table 1.

Convicted Person Punishment

Officer ImprisonmentDismissal from the Defence ForceReduction in rankForfeiture of service for the purposes of promotionForfeiture of seniorityFine of an amount not exceeding the amount ofthe convicted person's pay for 28 daysSevere reprimandReprimand

Member of the Defence Force who isnot an officer

ImprisonmentDismissal from the Defence ForceDetention for a period not exceeding two yearsReduction in rankForfeiture of seniorityFine not exceeding the amount of the convictedperson's pay for 28 daysSevere reprimandReprimand

Person who is not a member of theDefence Force

ImprisonmentFine of an amount not exceeding $500

8.5 The punishments that may be imposed by a restricted court martial are the same as thosethat may be imposed by a general court martial except that a restricted court martial may not imposeimprisonment for life, imprisonment for a period exceeding 6 months or detention for a periodexceeding 6 months. The scale of punishments available to a restricted court martial is the same asthat 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 ofthe DFDA; the detailed procedure based on s.132 is set out in Annex B of Chapter 9. With somemodifications, the procedure at a trial by court martial is the same as that at a trial by jury in theAustralian Capital Territory. Some of the unique features of trial by court martial are that the Presidentand members determine, by majority vote, the guilt or innocence of an accused person, and, wherethe finding of guilty is made, the President and members determine punishment. The judge advocatetakes no part in the deliberations of the court on the verdict or punishment but has a duty to advise thecourt on all questions of law arising in the course of the trial. The functions and duties of the Presidentand members of the court and the judge advocate are discussed in more detail in Chapter 9.

6 Also see Chapter 12.


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 seniorofficers specially appointed for the purpose by a Service chief.7 Where a person has been appointedas a convening authority he may, in addition to convening courts martial, exercise such powers andfunctions as are conferred on convening authorities under the DFDA or the DFD Regs. In generalthese powers and functions are incidental to the convening of courts martial or to the trial orpunishment 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 beenreferred to him by another authority. The majority of charges that are referred to a convening authorityare those relating to serious offences that have been dealt with at first instance by a commandingofficer or a superior summary authority. Such charges may be referred to a convening authoritybecause the summary authority has no jurisdiction to try them or because the summary authority is notempowered to impose an appropriate punishment, in the event that the accused is convicted, orbecause the accused person elects to be tried by court martial.8

8.9 A charge may also be referred to a convening authority by another authority in the followingcircumstances:

a. by a Defence Force magistrate or judge advocate after granting an application orallowing an objection by an accused person before he has pleaded to a charge;9

b. by a summary authority, where the soundness of mind of the accused at the time ofthe offence or the trial may be in issue;10

c. by the Governor-General where the accused, having been previously mentally unfit tostand trial, is now considered to be fit for trial;11

d. by a reviewing authority who has ordered a new trial;12 or

e. by a summary authority where an accused has elected to be punished by a DefenceForce magistrate or by a court martial.13

7 DFDA s.102; GOCs, AOCs and Flag Officers Commanding generally hold appointments as conveningauthorities.

8 See Chapter 7, especially paras. 7.20 and 7.29.

9 DFDA s.141 (8)

10 DFDA s.145 (1), (3).

11 DFDA s.194 (7).

12 DFDA ss.160, 166; also see para. 12.11.

13 DFDA s.131. The right to elect punishment by Defence Force magistrate or by court martial alsoarises where a person is in breach of an undertaking to be of good behaviour; see paragraph 11.59.


COURSES OPEN TO A CONVENING AUTHORITY

General

8.10 Several possible courses of action are open to a convening authority in respect of a chargewhich has been referred to him by another authority. Except in a case where a reviewing authority orappellate tribunal has ordered a new trial,14 or where an accused person has elected to be tried orpunished by court martial or Defence Force magistrate,15 where a charge is referred to a conveningauthority the convening authority may:

a. direct that the charge be not proceeded with;16

b. if the charge is within the jurisdiction of a superior summary authority or acommanding officer to try—refer the charge to a superior summary authority orcommanding officer for trial;17

c. refer the charge to a Defence Force magistrate for trial;18 or

d. 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,19 the Defence Force DisciplineAppeal Tribunal20 or the Federal Court of Australia,21 a convening authority may refer the charge to asuperior summary authority, commanding officer or Defence Force magistrate for trial or may convenea court martial to try the charge.22 A convening authority may not direct that a charge be notproceeded with when a new trial has been ordered. On the other hand, a convening authority is notobliged to proceed with a new trial unless he is satisfied that there is sufficient cogent evidence tojustify it23.

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 personmay be offered the right to elect trial by court martial or Defence Force magistrate. An accused mustbe offered the right to elect where the summary authority considers that the charge if proved wouldwarrant the imposition of an elective punishment.24 Where the accused elects to be tried by court

14 See para. 8.11.

15 See para. 7.20.

16 DFDAs s.103(1)(a) and para. 8.15.

17 DFDA s.103(1)(b); see para. 8.17.

18 DFDA s.103(1)(c); see para. 8.18.

19 Under DFDA s.160 or s.166; see Chapter 12, para. 12.11.

20 See para. 12.80.

21 See para. 12.94.

22 DFDA s.103(2). Where the soundness of mind of an accused is in issue the charge may not bereferred to a summary authority for trial.

23 DFDA s. 103(1), (2), (3).

24 For an explanation of ‘elective punishments’ see paras. 7.20 –7.25.


martial and the charge is referred to a convening authority, the convening authority may direct that thecharge be not proceeded with25 or may convene a court martial to try the charge.26

8.13 Where the accused elects to be tried by a Defence Force Magistrate, and the charge isreferred to a convening authority, the convening authority may direct that the charge be not proceededwith, refer the charge to a Defence Force magistrate for trial or convene a court martial to try thecharge. A convening authority may convene a court martial in these circumstances only if no DefenceForce magistrate is available or if the authority considers that it would be more appropriate for thecharge to be dealt with by a court martial.27

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 orDefence Force magistrate. That circumstance arises where the person is convicted by a superiorsummary authority or commanding officer on a charge which constitutes a breach of an undertaking tobe of good behaviour for a period of 12 months28 and where the summary authority proposes toimpose 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 authorityrefers the conviction to a convening authority, the convening authority may convene a court martial todetermine punishment.29 Alternatively, where the convicted person elects to be punished by a DefenceForce magistrate and the conviction is referred to a convening authority, the convening authority mayrefer the case to a Defence Force magistrate or convene a court martial to determine punishment.30 Acourt martial should not be convened contrary to the election of the accused unless a Defence Forcemagistrate is not available or unless the authority considers that it would be more appropriate for thematter 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 acharge which has been referred to him, he should direct that the charge be not proceeded with. Theeffect of this direction is that proceedings against the accused person are stayed although theaccused is not deemed to have been acquitted of the offence charged.31 A direction that the charge benot proceeded with may also be made where it is otherwise in the interests of justice to do so.32 Forexample, the direction may be given in a case where several persons are charged with the sameoffence and it is desirable for one co-accused to give evidence for the prosecution against another co-accused. It may also be in the interests of justice to direct that a charge be not proceeded with wherethere has already been a summary trial on the same events.33

25 See para. 8.15.

26 DFDA s.103(5).

27 DFDA s.103(4).

28 See para. 11.64 et seq.

29 Or take the other appropriate action under Part IV of the DFDA.

30 Or take the other appropriate action under Part IV of the DFDA.

31 DFDA s.144(4)(c)

32 See Halsbury's Laws of England 4th Ed Vol 11 at para. 222.

33 See Re Beresford (1952) 46 Cr. App. Rep. 1 (death caused by motor accident; summary trial fordangerous driving, subsequent charge of manslaughter pursuant to coroner's inquest).


Referring a Charge to a Summary Authority

8.16 On occasions, charges will be referred to a convening authority which lie within thejurisdiction of a summary authority to try. In most cases the decision not to try a particular charge ismade by a summary authority because he is of the opinion that the charge, if proved, would warrant amore 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 authoritymay decide that a court martial is not appropriate; he may then refer the charge to a superior summaryauthority or a commanding officer for trial. Where he decides to take this course of action, a conveningauthority should usually refer the charge to a summary authority other than the authority who dealtwith 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 mustconsider before referring the charge in this way whether it would be more appropriate for the matter tobe dealt with by court martial. In making his decision, a convening authority should have regard to thefollowing factors:

a. whether the punishment which may be imposed by a Defence Force magistrate islikely to be sufficient,

b. the nature of the charge, and

c. administrative convenience.

Each of these matters is discussed briefly below.

8.19 In relation to punishment, a Defence Force magistrate is empowered to impose the samepunishments upon a convicted person as may be imposed by a restricted court martial; see paragraph8.4.

8.20 As a general rule, a Defence Force magistrate should not try a charge in which Servicecustoms, practices or procedures are a material element or a charge of an offence which is manifestlyinjurious to Service discipline. Application of this general rule may be difficult in some instancesbecause of the particular circumstances in which certain alleged offences have occurred, which maylead 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 broughtunder any of sections 15 to 60 of the DFDA other than the following: use of vehicles (s.40); unlawfulpossession of property (ss.45, 46); stealing and receiving (s.47); resisting arrest (s.49); escape fromcustody (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 theseoffences, it may be appropriate for a Defence Force magistrate to try certain ‘Territory offences’, ieoffences against the ordinary law.34

8.21 In any case, operational or administrative convenience may be an important factor indetermining 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 thenormal activities of members of the Defence Force than is a trial by court martial. Additionally, where acase involves consideration of complex issues of fact or law and is likely to take some time tocomplete, it may be more appropriate for it to be tried by a Defence Force magistrate. However, wherea Defence Force magistrate is not readily available, or for other reasons, trial by court martial may bemore appropriate.

34 See Chapter 4 para 4.82.


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 martial—notwithstandingthat a restricted court martial may impose the punishment of imprisonment or detention for a periodnot exceeding 6 months. Additionally, where the person is a senior non-commissioned officer, warrantofficer or officer, or where the trial is likely to attract media interest, it will usually be more appropriateto 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 officer35 who has heldan appointment as an officer for a continuous or aggregate period of not less than three years and isnot lower in rank than the accused.36 In order to be appointed as President of a court martial, anofficer must hold a rank not lower than the rank of colonel or equivalent,37in the case of a general courtmartial, or lieutenant-colonel or equivalent38 in the case of a restricted court martial.39

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 judgeadvocate's panel. In order to be appointed to the judge advocate's panel40 a person must be an officerwho has been enrolled as a legal practitioner for not less than five years.41

Convening Order

8.26 Having decided to convene a court martial, a convening authority must make a conveningorder appointing the President and other members, an adequate number of Service members and thejudge advocate.42 The convening order may fix or provide for the fixing of the time and place for theassembling of the court martial.43 A pro forma convening order is shown at Form 33.

35 In relation to the Navy an officer is a person who is appointed or in pay of the Australian Navy includinga person who holds the rank of midshipman or acting sub-lieutenant. In relation to the Army and theAir Force an officer is a person who is appointed or in pay as an officer of the Australian Army or theRAAF.

36 DFDA s.116(2).

37 ie captain in the Navy; group captain in the Air Force.

38 ie commander in the Navy; wing commander in the Air Force.

39 DFDA s.116(2).

40 DFDA s.117.

41 DFDA s.196.

42 DFDA s.119(a).

43 DFDA s.119(b).


8.27 As soon as practicable after he makes an order convening a court martial, a conveningauthority must cause a copy of the order to be given to the accused person.44 If an order convening acourt martial is subsequently varied, the convening authority must inform the accused accordingly.45 Acopy of the convening order should also be sent to all members (including reserve members) of thecourt martial and the original is to be sent to the judge advocate.46

8.28 The convening order should be made a reasonable time before the date fixed for the courtmartial in order to afford the accused time to prepare a defence or to lodge an objection on the groundof ineligibility or bias of the judge advocate or any member of the court.47 On receipt of a conveningorder, a member or reserve member or the judge advocate of a court martial who believes that he maybe biased or is likely to be thought to be biased is required to give notification of this belief to theconvening authority.48 A convening authority may revoke the appointment of any member of a courtmartial or the judge advocate as the case may be, at any time before a court martial is sworn oraffirmed and may then appoint another to fill any vacancy thus created.49

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 tothe accused and the judge advocate by a convening authority. The particular documents required arelisted 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 inconnection 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 8.26and 8.29, a convening authority must also make appropriate administrative arrangements for theconduct of a court martial. These arrangements include the giving of notice of the court martial torelevant authorities, nominating all of the participants and giving directions on matters such as dressor ceremonial requirements.

8.32 In relation to participants at a court martial, apart from the President, and members of thecourt and the judge advocate, who are appointed by the convening order, a convening authority mustnominate 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 to9.68); 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 otherrelevant administrative directions by means of a Court Martial Administrative Order. This order may bepromulgated by signal in the format shown in Form 31 or in any other appropriate way. As soon aspracticable on receipt of the Court Martial Administrative Order, relevant addressees should inform theconvening authority if any of the nominated personnel will be unable to attend on the date specified.

44 DFDA s.120(1).

45 DFDA s.120(2).

46 DFD Rule 27.

47 DFDA s.121.

48 DFDA s.122.

49 DFDA s.122.


Attendance of Witnesses

8.34 A convening authority must ensure that witnesses who are required to give evidence orproduce documents at a court martial are duly summoned or ordered to appear.50 Generally, it shouldbe necessary to issue a summons only to a person who is not a defence member; a person who is adefence member may be ordered by a superior officer to appear before a court martial. An order to adefence member to appear as a witness at a court martial may be included in a court martialadministrative order. However, where a defence member is required to attend a court martial and toproduce documents, a convening authority should make a separate order in writing ordering him toattend and specifying the particular documents that he is required to produce. A person (other than adefence member) summoned to appear as a witness before a Service tribunal is entitled to be paidsuch fees and allowances in respect of his appearance as are prescribed in regulations under thePublic Works Committee Act 1969.51

Public Access to Courts Martial

8.35 The hearing of proceedings before a court martial are open to the public.52 Where the courtmartial is held in a secure place, that is a place to which entry is controlled by guards who areconstables or members of the Defence Force, the public must be granted reasonable access.53 ThePresident of a court martial may, after consultation with the judge advocate, restrict access andreporting of proceedings where he considers it necessary in the interests of the security or defence ofAustralia, the proper administration of justice or public morals.54

8.36 In choosing a place for the conduct of a court martial a convening authority should haveregard to the requirement to grant reasonable access to the public. Where a court martial is likely toattract 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 pressliaison 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 conveningorder has been made but before a court martial has assembled. Such a hearing must be held by ajudge advocate when notified by an accused person, under s.141(7) of the DFDA, of any applicationor 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 acourt martial assembles, he should notify the judge advocate, through the convening authority, at theearliest opportunity. The format shown in Form 26 may be used for this purpose. An accused personmay provide a written submission in support of his application or objection but he is not obliged to doso. Nevertheless, where the matter in issue is likely to be complicated or protracted, the accusedshould provide such information as will enable the judge advocate to form a reasonable view as tohow much time should be allowed for the hearing.

50 See DFDA s.138(2), (3); and DFD Rule 6.

51 See DFD Rules 21, and 7 (2) and Part 11 of Vol 2.

52 DFDA s.140(1).

53 DFDA s.40(4).

54 DFDA s.140(2), (3).


8.39 After he has received the notification and after consultation with the convening authority, thejudge advocate should fix a date and time for the hearing. The date should usually be as soon aspracticable after receipt of the notification. However, with the consent of the accused and subject tothe nature of the application or objection, a judge advocate may fix a date or time for the hearingimmediately preceding the date or time fixed for the court martial. The date and time of the hearingshould then be promulgated, by signal, by the convening authority to all relevant authorities. The proforma 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 accusedmay do any one or more of the following:55

a. apply for an adjournment on the ground that he has not had adequate opportunity toprepare his case or choose counsel;

b. apply to secure attendance of witnesses or additional witnesses on his behalf;

c. where he is charged with more than one Service offence, apply for each charge to beheard separately;

d. where he is charged with one or more other persons, apply to be tried separately onthe ground that he would otherwise be prejudiced in his defence; and

e. make such other applications as he considers relevant in connection with his trial.

8.41 An accused person may also enter an objection to the charge on any ground, including anyof the following grounds:

a. that by virtue of previous acquittal or conviction he is not liable to be tried for theService offence with which he has been charged;

b. that the charge was made outside the time limitations provided in s.96 of the DFDA;

c. that he has, in the exercise of the royal prerogative of mercy, been pardoned for theService offence with which he has been charged or for a civil court offence which issubstantially the same;

d. that the charge does not disclose a Service offence or is otherwise wrong in law;

e. that the court martial does not have jurisdiction; and

f. that any member or reserve member or judge advocate of the court martial is ineligibleor biased.56

8.42 The judge advocate must grant an application where he is satisfied that the interests ofjustice require that it be granted and must allow any objection where he is satisfied that it has beensubstantiated by the accused.57 Where a judge advocate grants an application or allows an objectionhe may refer the charge against the accused person to a convening authority.

55 DFDA s.141(2), (3).

56 DFDA s.141(2), (3).

57 DFDA s.141(5), (6).


Who Should Attend a Preliminary Hearing

8.43 As a preliminary hearing forms part of the proceedings of a court martial, it must be attendedby all persons, other than the President, members or reserve members of the court, who are requiredby law to be present at the court martial. In effect this means that the judge advocate,58 the accused59

and a court recorder60 are required to attend. It is expected also that the hearing would be attended bythe prosecutor and the defending officer and, in most cases, by the clerk. An orderly would notnormally be required unless the matter is likely to involve complex administrative arrangements. Anescort is also not normally required unless the accused is being held in custody at the date of thehearing. Notwithstanding, a judge advocate may exercise his discretion in determining who shouldattend 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 theabsence of the court which is held in the course of the trial. The detailed procedure is set out in Item14 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 maynominate a person to act as prosecutor. The prosecutor should be a legal officer, that is, an officer ofthe Permanent Forces or the Reserve Forces who is a legal practitioner.61 Legal officers appearing asprosecutors at courts martial, or any hearings in connection with courts martial should always wearuniform.

Documents to be Supplied to a Prosecutor

8.46 When a person has been chosen to act as prosecutor but before the convening order ispromulgated, the convening authority should supply that person with the following documents:

a. a copy of the convening order in draft form;

b. a copy of the charge sheet or charge sheets;

c. a copy of the record of evidence taken in relation to the charge in prior proceedingsbefore a summary authority or an examining officer;

d. a copy of any other statements taken from prosecution witnesses;

e. a list of the prosecution exhibits which are held by the convening authority;

f. a list of witnesses for the prosecution; and

g. the accused person's Form PD103 Conduct Record.

Although the convening authority may take into account the existence of a spent conviction (as to thedefinition of which, see paragraph 7.56) in deciding whether or not to convene, the convening authority

58 DFDA s.141(7).

59 DFDA s.139.

60 DFDA s.148.

61 DFDA s.3(1): definition of ‘legal officer’.


should exercise a discretion as to whether or not to instruct the prosecutor to disclose the existence ofspent 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 satisfyhimself that the charge has been properly made, that it discloses a Service offence and that a courtmartial has jurisdiction to try the charge. If the prosecutor is of the opinion that no charge lies againstthe accused person or that the charge requires to be amended, he should inform the conveningauthority accordingly.

8.48 The prosecutor should examine the record of evidence and the exhibits in order to satisfyhimself that the evidence is sufficient to support the charge. Where a prosecutor is of the opinion thatthe evidence is not sufficient to support the charge he should inform the convening authority so thatarrangements can be made for obtaining further evidence or so that consideration may be given tosome other course of action in respect of the charge. The prosecutor should also inform the conveningauthority of the names of any persons, other than those specified in the list of witnesses, whom hemay 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 authorityat the earliest opportunity if, in his opinion, it would be improper to act as prosecutor. Somecircumstances in which it would be improper to act are:

a. where there is a serious conflict of interest;

b. where a prosecutor and the accused person share membership of or association withvarious bodies;

c. where a prosecutor has given prior advice relating to the case to the accused;

d. where a prosecutor has a personal relationship with the accused, any witness, thejudge advocate or any member of the court; and

e. where the prosecutor may be required as a witness.62

8.50 The mere fact that a prosecutor knows the accused or has served with him at some timedoes not of itself provide grounds for disqualification unless it can be shown that this relationshipwould cause bias, prejudice or hostility against the accused.63

Preparing the Prosecution Case

8.51 The prosecution has responsibility for the preparation and conduct of a case, subject to thedirections of the convening authority. In preparing the case, the prosecutor must attend to some or allof the following matters:64

a. the attendance of prosecution witnesses who may be required to give evidence at apreliminary hearing;

b. preparation of a submission in response to any applications or objections made by anaccused person;

62 See Halsbury's Laws of England 4th Ed Vol 3 para. 1138.

63 As to bias generally, see Annex K to Chapter 7.

64 Some of these matters are discussed in more detail in subsequent paragraphs.


c. pre-trial conferences with prosecution witnesses;

d. the obtaining of any additional evidence which in his opinion is necessary to supportthe charge;

e. the safeguarding of documentary or other evidence which may be in his possession;

f. ensuring that the accused is kept informed of the case which he has to meet—byforwarding notice of new evidence when it arises;

g. the attendance of prosecution witnesses at the trial;

h. preparation of an opening address.

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 theevidence in support of a charge against him. For this reason, when a convening authority convenes acourt martial, he is required to send to an accused person the record of evidence taken in priorproceedings before a summary authority or an examining officer, any other statements made byprosecution and witnesses, a list of witnesses and exhibits and to give an accused the opportunity toinspect and copy any of the exhibits.65 In any case where additional evidence becomes available aftera court martial has been convened, the prosecutor must ensure that the accused is informed of thisfact. Where the evidence is in the form of an exhibit the accused must be given the opportunity toinspect and copy the exhibit; where the evidence is in the form of a statement by a prosecutionwitness 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 isthoroughly conversant with the procedure for giving evidence at the trial as well as being familiar withthe content of his evidence. Witnesses should be told to read over their statements of evidencecarefully, to refresh their memories of the matters in which they are to testify, especially dates andactual words used, where these are relevant to facts in issue. The prosecutor is entitled not to call aparticular witness if in his opinion the witness is unlikely to be credible or will merely corroborate otherevidence. However, a material witness should not be discarded solely on the basis that not all of hisevidence supports the prosecution case.66 An accused person or his representative is entitled tocross-examine any prosecution witness who does not give evidence. For this purpose the prosecutionmust take all reasonable steps to secure their presence, but, at the discretion of the judge advocate,the trial may proceed without them.67

Obtaining Additional Evidence

8.54 Before the trial commences, a prosecutor must be satisfied that there is sufficient evidenceto 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 suchevidence is available. Where it is necessary to obtain statements from other witnesses, the prosecutorshould ask the convening authority to make appropriate arrangements for the taking of thesestatements and to ensure that the witnesses are ordered or summoned to appear at the trial.

65 DFD Rule 30.

66 R v Oliva (1965) 1 WLR 1028 at 1035.

67 R v Shaw (1972) 1 WLR 676; also R v Sterle (1972) CLR 391.


Documentary and Other Evidence

8.55 A prosecutor should give careful consideration to any documentary or other evidence onwhich he proposes to rely.68 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 begiven orally;69

b. whether the original of a document can be produced and, if not, whether its absencecan be satisfactorily explained;

c. whether the subject matter of the document is something of which a court martial maytake judicial notice;70

d. whether the document is in a form which will be of assistance to the court and whethercopies or enlargements should be made;

e. whether the accused has copies of all the documents which will be used in evidenceagainst him; and

f. when and through whom a document is to be tendered in evidence.

8.56 As to evidence which is other than oral or documentary, a prosecutor needs to satisfyhimself that any object which he seeks to tender is readily available, is of some probative value andthat proper custody and control have been exercised over it since the time of the alleged offence.71

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 DefenceForce or by any legal practitioner.72 Whilst an accused is awaiting trial, a convening authority isrequired73 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 ReserveForces who is a legal practitioner.74 Any person who represents a person at a court martial is knownas a defending officer. Subject to exigencies of service, an accused person should be given theopportunity to consult with his legal adviser and to communicate with persons whom he may wish togive evidence on his behalf.

68 See Chapter 6 .

69 See Part 2.2 of the Evidence Act 1995 (Cth).

70 DFDA ss.146, 147; also see Chapter 6.

71 Also see Chapter 6.

72 The practitioner must be qualified to practise before the civil courts of Australia or, if the trial is heldoutside Australia, in the civil courts of that place; see DFDA s.36.

73 Subject to exigencies of service; DFDA s.137(1).

74 As defined in DFDA s.3(1).


DUTIES OF A DEFENDING OFFICER

General

8.58 A defending officer has a duty to guard the interests of the accused by all honourable andlegitimate means known to the law. It is his duty to undertake the defence regardless of his personalopinion 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 personto take over the 'brief' before the trial and circumstances allow, arrange for some other qualifiedperson to act for the accused. Where circumstances do not allow another person to take over thecase, a defending officer may not falsely suggest to the court that some other person committed theoffence 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 isguilty 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 witnessesin order to gain an appreciation of the case against the accused. The defending officer should thenhave careful regard for whether there may be some technical or legal irregularity in the charge, theevidence or the convening order which would provide a proper basis for making an application orobjection under s.141(7) of the DFDA. Where, in the opinion of the defending officer, an application orobjection should be made in connection with a charge, the matter may be dealt with by the judgeadvocate at a preliminary hearing; see paragraphs 8.37 to 8.44. Some examples of general matterswhich a defending officer might consider are:

a. whether the court has jurisdiction to try the charge;

b. whether any member of the court or the judge advocate might be ineligible or biased

c. whether any charge against the accused should be severed and dealt with on someother occasion;

d. irregularities in charges which might render them void or requiring amendment, egambiguity, duplicity, failure to disclose an offence; and

e. unfitness of the accused to plead.

Interview with the Accused

8.60 When the defending officer has gained an appreciation of the case, he should interview theaccused and, if necessary, explain the contents of the prosecution documents to him. The accusedperson should then be invited to give his version of the facts of the case, if these facts are in issue, orany instructions on how he wishes his defence to be conducted. The defending officer is not obliged tosuggest to the accused that a particular defence (other than a defence on a question of law) isavailable. Instead, he should prepare a defence based on the accused's own explanation of whathappened and any other instructions given to him by the accused. As the accused may not be able toexpress himself well or to appreciate which matters are important to his case, the defending officershould try to confine the accused's ‘story’ to the facts in issue in the case in order to avoid wastingtime on irrelevant matters. In cases where the facts are complicated or where the accused personwishes his defence conducted in a manner contrary to the manner in which the defending officerconsiders it should be conducted, the accused should be asked to put the facts or instructions inwriting.

Applications and Objections before Trial

8.61 A defending officer should give early consideration to whether the accused's interests wouldbe advanced by having an application or objection heard before the court assembles. Where grounds


for such a hearing do exist75 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 theway in which the defence case is prepared and argued before the court. As to notification ofapplications 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 accusedbut, before he decides, the defending officer should ensure that the accused understands theimplications 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 mayeither constitute a legal defence to the charge or be sufficient to raise a reasonable doubt in the mindsof the court as to the guilt of the accused. On the other hand, in a hopeless case it may be better toadvise the accused to plead guilty, at least to some charges, in the hope that the prosecutor maydecide to abandon or amend one or more of the charges to which a plea of not guilty is to be enteredor in an endeavour to mitigate punishment.

Evidence for the Defence

8.63 Having considered the prosecution case and determined how the accused intends to pleadto the charges against him, the defending officer should ask the accused whether he intends to giveevidence and/or to call other witnesses to give evidence on his behalf. The accused should beinformed that if he gives evidence, he is liable to be cross-examined by the prosecution and that hemay, instead, choose to remain silent. Where the accused is likely to do significant damage to hiscase by the way in which he gives evidence it may be advisable for him to remain silent, particularly ifthere is other evidence in his favour.

Giving of Evidence by the Accused—Implications

8.64 Once the accused has elected to give evidence on oath, he may be asked, and is bound toanswer, a question notwithstanding that the answer to the question may tend to incriminate him inrelation to the offence to which the proceeding relates.76 Furthermore, if the accused has askedquestions or adduced evidence which has tended to show that he is a person of good character or hasimpugned77 the character of prosecution witnesses or co-accused, he may be asked and is bound toanswer questions which show that he has been convicted or tried of other offences or that he is aperson of bad character.78 It must be emphasised that the matter of what questions may or may not beasked in cross-examination arises only when the accused gives evidence. Although the accused mayhave attacked the character of witnesses for the prosecution, if he does not then give evidencehimself, the prosecutor cannot put any questions to him at all. Nevertheless, if the defence putsforward the accused's good character, the prosecutor may always rebut such evidence by evidence ofthe 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 theaccused himself must decide. The defending officer should do no more than advise him of theadvantages and disadvantages inherent in each course of action. He should also point out that,although it must not be made subject of comment by the prosecutor,79 the failure of the accused to

75 The grounds are set out in s.141 of the DFDA; also see paras. 8.40 and 8.41.

76 Evidence Act 1995 s.128.

77 A mere denial of prosecution evidence or suggestion that prosecution witnesses are telling lies is notsuch an imputation. An allegation that a prosecution witness committed the offence or invented hisevidence out of malice to the accused is an imputation.

78 Evidence Act 1995 s.110; Evidence Ordinance (ACT) s 70.



give evidence may produce an unfavourable effect in the minds of members of the court. He mayadvise the accused which course he thinks that the accused should take, so long as he stresses thatthe 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 officershould ascertain whether there are any persons who may be able to give evidence for the defence onany of the facts in issue. The defending officer should then interview these persons, preferably in theabsence of the accused, in order to hear their version of the facts and to decide whether they are likelyto be believed by the court. In the event that the defending officer decides to call any of these personshe should make a precis of the evidence which they are prepared to give, as a basis for hisexamination of them in court.

8.67 Whenever practicable a defending officer should inform the convening authority of thenames and addresses of any persons whom he will require to give evidence at the trial or preliminaryhearing (as the case may be). The convening authority should then direct these persons to attend aswitnesses. A direction to appear as a witness may be made by means of an order or a summons.80

Character Witnesses

8.68 A Service tribunal may take into account evidence as to the character of the accused person,in relation to whether the person is guilty of the offence with which he is charged.81 Accordingly, adefending officer should consider whether to call witnesses to attest to the good character of anaccused person in order to persuade the court that the accused is not guilty as charged. Clearly, theweight to be attached to such evidence will depend on the circumstances of each case; for example, areputation for honesty may be significant in relation to a charge of stealing but is unlikely to carry muchweight in relation to whether a person is guilty of a charge of absence from duty. Before putting anaccused'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 toadduce evidence of the accused person's bad character, which otherwise would be inadmissible.82

8.69 After a person has been convicted, it will usually be desirable for the defending officer to callwitnesses to testify to the good character of the accused. In determining punishment, the Servicetribunal is required to take into account this evidence. This matter is dealt with under ‘Plea inMitigation’ at paragraph 8.72.

Alibi Evidence

8.70 Where an accused person intends to adduce evidence of an alibi at a court martial, he isrequired to give notice to a convening authority of the particulars of the alibi within 14 days of themaking of the convening order.83 A defending officer should ensure in an appropriate case that anotice of alibi is given in writing to a convening authority within the required time limit or as soon aspossible thereafter. The notice should be given in the manner shown in Form 17.84

80 See para. 8.34.

81 Evidence Act 1971 (ACT) s.70(3).


83 DFDA s.145A.

84 See Part 12 of Vol 2 of DLM.


Defence Opening Address85

8.71 A defending officer may open the case for the accused by giving an opening address. Whenhe does so, the defending officer may indicate which of the facts in issue will be contested and thenature and effect of the evidence he will be adducing in rebuttal of the prosecution case. An openingaddress should not be necessary in a case where defence witnesses will testify only to the goodcharacter of the accused person. A defence opening address should be prepared in outline formbefore commencement of the trial and amended, as required, in the light of evidence given byprosecution witnesses.

Plea in Mitigation

8.72 In preparing a case, a defending officer should consider the punishment which is likely to beimposed on the accused in the event that he is convicted. If the accused intends to plead guilty, thedefending officer should prepare a plea of mitigation of punishment before the trial commences. If theaccused 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, whomay give hearsay evidence,86 documentary evidence of character87 and evidence of motive or he maysimply address the court himself about the accused's circumstances, character and motives. In thisaddress, the defending officer may bring to the attention of the court the sentencing principlescontained in s.70 of the DFDA and explain how these principles should be taken into account inrelation to a convicted person.

8.74 In some cases the court will be assisted in determining an appropriate punishment by reportsfrom non-legal specialists on the mental or physical condition of the accused. If such reports are likelyto be required, the defending officer should make the necessary arrangements for the accused to beinterviewed 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 adjournmentbefore 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 reportto be handed up to the court at the end of the plea in mitigation. The pre-sentence report may bemade in the format shown in Form PD 108 or in any other manner considered appropriate by thedefending officer. The defending officer should provide a copy of the pre-sentence report to theprosecution before it is given to the court. The prosecutor is entitled to object to any matter included inor annexed to the report; however, he should not do so unless he considers that the matter in questionis 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 personas the clerk of the court whose function is to perform various administrative tasks in connection withthe trial. The clerk may be an officer, warrant officer or a senior non-commissioned officer, but, in anycase, he should have a good working knowledge of Service disciplinary law and be someone who canbe relied on to carry out his duties without supervision.

85 DFD Rule 45.

86 R v Marquis (1951) 35 Cr. App R 33.

87 Eg an Army record: R v Roche (1944) 30 Cr. App. R.29.


8.77 The principal pre-trial duties of the clerk are the preparation and dispatch of documents inconnection with the trial and the issuing of orders and summonses to persons who are required toattend 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 onbehalf of the convening authority send:

a. to the President and each member or reserve member of the court—a copy of theconvening order;88

b. to the judge advocate:89

(1) the convening order;

(2) the charge sheet;

(3) the record of evidence taken at proceedings in relation to the charge before acommanding officer, a superior summary authority or an examining officer;

(4) any other statement taken from a witness to be called for the prosecution;

c. to the accused:

(1) a copy of the convening order;90

(2) a copy of the charge sheet;91

(3) a copy of the record of evidence taken in relation to the charge in priorproceedings before a summary authority or an examining officer;92

(4) copy of any other statement taken from a witness to be called for theprosecution;93

(5) a notice of the rights of an accused person (Form 24);94 and

(6) a notice of requirements in respect of alibi evidence (Form 23);95 and

d. to the prosecution—the accused person's Conduct Record (Form PD103) and a copyof the convening order.96

88 DFD Rule 29(1)(a).

89 DFD Rule 29(1)(b).

90 DFDA s.120.

91 DFD Rule 29(1)(c).

92 DFD Rule 29(1)(c).

93 DFD Rule 29(1)(c).

94 See Part 12 of Vol 2.

95 See Part 12 of Vol 2.


Ordering or Summonsing of Persons to Attend

8.79 The clerk is responsible for ensuring that persons who are required to attend a court martialor preliminary hearing whether as an accused person or a witness for the prosecution or defence areordered or summonsed to appear. Persons who are members of the Defence Force should generallybe ordered to appear by the convening authority. Inclusion of names of the accused or witnesses inthe Court Martial Administrative Order is a sufficient method of ordering them to attend.97 Where it isnecessary to issue a summons compelling a person to attend a court martial, the clerk should preparethe summons.98 A summons to a witness should be made in the manner shown in Form 49.99 Asummons to an accused person should be made as shown in Form 46. When a summons has beenmade out it should be signed by the convening authority and served in accordance with Rule 6 of theDefence Force Discipline Rules. The clerk should ensure that the person named in the summons isgiven sufficient notice to enable him to travel between his place of residence or employment(whichever is appropriate) and the place of sitting of the court martial.100

Other Duties of the Clerk

8.80 In the pre-trial period, the clerk should be available to assist the convening authority or anyof the participants with any of the administrative arrangements which must be made in connection withthe trial. Some of the specific matters in which he may be called upon to assist are:

a. preparing an order to an escort101 or an order for transfer of a detainee102—seeparagraphs 8.84-8.85;

b. liaising with the judge advocate and the accused in relation to arrangements for apreliminary hearing;103

c. making arrangements for recording of proceedings;

d. promulgating the Court Martial Administrative Orders; 104

e. supervising the arrangements at the place where the trial is to be held; and

f. providing such documents or materials as may be required at the trial by thePresident, 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 conveningorder is made.

97 See para. 8.34 ‘Attendance of witnesses’.

98 This should be necessary usually only where the person is not a member of the Defence Force.

99 See Part 12 of Vol 2 of DLM.

100 DFD Rule 6(2).

101 Per Form 42.

102 Per Form 41.

103 See para. 8.37 et seq.

104 See para. 8.31.


THE ESCORT

8.82 In an appropriate case, a convening authority may order a person, known as the escort, totake an accused or a witness into his custody for the purpose of attending a court martial. In mostcases an escort should not be required. However, where an accused or a witness is being held incustody prior to the trial or where an accused, if convicted, is likely to be sentenced to a period ofdetention or imprisonment, an escort should be provided. Also, where it is believed, on reasonablegrounds, that an accused is likely to interrupt the proceedings of a court martial or create adisturbance therein, an escort should be provided.

8.83 In a case where a convening authority considers that an escort is necessary, he should issuean order to the escort in the manner shown in Form 42. Where a person who is serving a punishmentof imprisonment or detention is required to appear at a court martial, he may be released from thedetention centre or prison (as the case may be) into the custody of an escort. A person who is indetention may be released into the custody of an escort by order of the convening authority.105 Aperson who is in detention may be released into the custody of an escort by summons. 106

105 See Form 41.

106 See Form 46.

ADFP 201 VOLUME 1

CHAPTER 9

COURTS MARTIAL—AT THE TRIAL

General

9.1 In this chapter the powers and duties of the President, members, judge advocate and otherofficials at a court martial are summarised. The need for this summary arises because courts martialare proceedings which are sui generis (of their own kind) and, for that reason, are different in severalimportant respects from trials in the civil criminal courts. For example, at a court martial, the Presidentpresides1— except when it is necessary for the judge advocate to determine certain questions of lawin the absence of the court, in which case the judge advocate will temporarily preside over theproceedings. In contrast, in criminal proceedings before a jury in the civil courts, the judge hasexclusive powers to direct proceedings in his court.

9.2 Nevertheless, a basic similarity exists between trials by court martial and trials on indictmentin civil courts in that in both forms of trial, issues of fact are determined by a group of people speciallyappointed for the purpose who are directed on the law by a ‘judge’. In the civil courts, the jurydetermines issues of fact subject to the directions on law given by the judge. In a court martial, ‘thecourt’, comprising the President and members, determines issues of fact subject to any rulings onquestions of law given by the judge advocate.

9.3 In addition to discussing the specific functions of various persons at courts martial thischapter sets out in some detail the procedure to be followed at a court martial and illustrates how theproceedings may be recorded—see Annexes A to D.

9.4 Before considering specific matters relating to the conduct of courts martial, some guidanceis offered, in paragraphs 9.5 to 9.12, on how the court should use the evidence before it in the courseof 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-sheethave been committed by the person accused of them, and, if so, to award a just punishment. If theaccused pleads guilty to all charges and as a result the court records a conviction on them, the onlyquestion for the court to decide is the appropriate punishment. If, however, the accused pleads notguilty to a charge, he raises an ‘issue of fact’ before the court and puts the burden of proving his guilton the prosecution. The accused himself need do no more than raise a doubt in the minds of the courtwhether 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 truthlies in the evidence called and ‘duly to administer justice according to law’. The truth must be reachedby legal evidence and not by any personal sense of justice or injustice, and each member of the courtmust decide the matter in issue according to his conscience, forming his judgement as he would in amatter 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 greatdifficulty. His demeanour should be very carefully observed: his manner of giving evidence, even theway he stands or his movements, will often give some indication to an experienced judge whether heis a credible witness or not. A word of caution is required, however; for a perfectly truthful witness willsometimes make an unfavourable impression because he has never been in court before, or because

1 See DFDA s.133.


he is nervous, or because he is shy of giving unpleasant details in public, or because he is overawedby having to speak in front of senior officers. Allowance must be made for the inability of manywitnesses to express themselves clearly. Many witnesses giving evidence are under a strain: forexample, the accused because of the peril in which he stands or some other witness because he hasto 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 hostilemanner 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 todisbelieve a witness because he said that certain events lasted five minutes, when it is clear fromother evidence that they cannot have lasted more than a few moments. This is an unreliable guide to awitness's credibility, because some new and perhaps terrifying experience may temporarily destroy aperson's sense of time. The court must judge for itself whether what the witness means is a long orshort 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 asto produce exactly the opposite effect to that which is produced by the written language. Those whohave seen and heard the witnesses can best form a reliable opinion of the effect of any individualstatement. In summing up a witness, the court should remember that persons may have hiddenmotives for giving evidence against someone; they should consider that possibility and, if they thinkthat it exists, they should make full allowance for it, taking special care if that factor might be presentand 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 theprosecution. Therefore, if the prosecution case is not strong enough for the court to say that it isprepared to convict on the prosecution's evidence, the court must not draw any adverse inference ifthe accused refrains from giving evidence. If, however, the prosecution does produce a prima faciecase requiring an answer, the court is entitled to ask itself whether there is a valid reason, consistentwith 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 thesekinds of evidence may be given at a trial. The relative weight and reliability of direct and circumstantialevidence is often discussed. There is a theory that the former is superior because the latter is only asubstitute for it, but these two forms of evidence ought not to be considered in contrast because theyare not mutually opposed. Each has its chance of error. In giving direct evidence the witness may bemistaken 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 offabrication and less likely to be thought of beforehand than single important facts more clearly relatedto the issue. As a person who commits an offence usually wishes to escape detection, there is oftenlittle direct evidence available to the prosecutor, who must supplement his case with circumstantialevidence. The court must therefore assess all the evidence of both kinds which may be brought beforethem, 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 followingpoint, it cannot be over emphasised. It is the duty of the prosecution to satisfy the majority of the courtthat the accused is guilty beyond reasonable doubt before there can be conviction. If, after carefullyconsidering all the evidence, a member of the court is not satisfied that the prosecution has provedbeyond reasonable doubt the guilt of the accused, then he is left in a state of doubt and must vote ‘NotGuilty’.


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 courtmartial. These provisions of the Act and the Rules are sufficiently comprehensive to cover mostmatters which arise in connection with a court martial. Where a case arises which is not covered bythe 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 juryin a civil court in the Jervis Bay Territory in its criminal jurisdiction; or

b. if there is no such established course, such course as the interests of justice require.2

9.14 In exercising powers under the DFDA or DFD Rules, the President, whether acting on hisown behalf or on behalf of the court, should always be willing to seek the advice of the judge advocatebecause 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 atany stage during a court martial when, in his opinion, it is appropriate to do so. Where the advice givenby the judge advocate amounts to a ruling on a question of law, the court is bound to follow it. Thecourt is not bound to follow any advice given by the judge advocate on matters other than questions oflaw.

FUNCTIONS OF THE PRESIDENT

General

9.15 Subject to any ruling given by the judge advocate on a question of law, the Presidentpresides at a court martial.3 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 amanner befitting a court of justice;

b. to speak on behalf of the court martial in announcing a finding or sentence or anyother decision taken by the court; and

c. to speak on behalf of the members of the court in conferring with, or requesting advicefrom, the judge advocate on any question of law or procedure.4

9.16 The general functions listed above are additional to the functions of the President as amember of the court martial and to any other specific duties and powers conferred on him by theDFDA or DFD Rules. The functions of the President as a member of the court are discussed inparagraphs 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 martialfor any purpose relating to the charge against him.5 Usually it will be necessary for the President toorder or summon an accused person to appear at a court martial only in a case where the accused

2 DFD Rule 4.

3 DFDA s.133(1)(a).

4 DFD Rule 31.

5 DFDA s.87(4); also See Chapter 3 in relation to orders and summonses.


has failed to appear as required by the Court Martial Administrative Order6 or after an adjournment.Where an accused person has failed to appear or reappear at a court martial as required, thePresident may also issue a warrant for the arrest of the person.7

Orders or Summonses to Witnesses

9.18 The President may summon or order a person to appear before a court martial to giveevidence and to produce such documents (if any) as are referred to in the summons or order (as thecase may be).8

Public Hearings

9.19 The President may order that some or all of the members of the public be excluded duringthe whole or a specified part of a court martial and that no report of the whole or a specified part of theproceedings be published. Before exercising this power, the President should be satisfied that it isnecessary to do so in the interests of the security or defence of Australia, the proper administration ofjustice or public morals. The President may not restrict access to or reporting of the proceedingsunless he has first consulted the judge advocate.9

Oath or Affirmation by Witnesses

9.20 The President may require a person appearing as a witness before a court martial to giveevidence on oath or affirmation.10 Unless there is some legal reason for a witness not taking an oathor 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 personchooses to give evidence on oath the President may permit the person to take the oath in suchmanner as the person declares to be binding on his conscience.11 The form of affirmation to be madeand the usual form of oath to be taken are set out in the Procedure at a Trial by Court Martial.12

Recorders and Interpreters

9.21 The President may arrange for a person to act as a recorder or interpreter at a courtmartial.13 In most cases, however, the President will not be required to act in this regard because theappointment of recorders or interpreters will be made by the convening authority. In April 1986 theStanding Committee of Attorneys-General agreed that each jurisdiction should consider the adoptionof a set of guidelines governing the use of interpreters in the Australian legal system. A copy of thenational 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 tobe 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.

7 See DFDA s.88(1) and Chapter 3.

8 DFDA s.138(2), (3). A summons will usually be issued only where the person is not a Defencemember.

9 DFDA s.140.

10 DFDA s.138(4).

11 DFD Rule 38.

12 See Annex B Item 26.

13 DFD Rule 37(1).


the President considers that by reason of the disorderly behaviour of the accused person it isimpossible to continue the hearing in his presence.14

FUNCTIONS OF THE COURT

General

9.23 The members of a court martial, which includes the person appointed as President, arerequired to determine any question arising in a court martial other than a question of law.15 Indetermining whether an accused person is guilty or not guilty of a Service offence or whether theaccused was suffering such unsoundness of mind at the time of the alleged offence as not to belegally responsible for his act or omission, or in determining punishment, the court must sit without anyother person present.16 The particular powers and duties of a court martial are discussed insucceeding paragraphs.

Determination of Questions

9.24 As a general rule, any question to be determined by a court martial is to be decided by amajority vote of the members of the court. However, where there is an equality of votes on certainquestions, 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 stipulatesthat questions to be decided by the court must be voted on orally and be determined by the membersvoting in order of seniority commencing with the most junior in rank. Failure to vote in such orderconstitutes a material irregularity, a substantial miscarriage of justice and provides grounds forsuccessful appeal17. The President does not have a casting vote on the question whether an accusedis guilty or not guilty of a Service offence; where there is an equality of votes on this question, thecourt must find the accused not guilty. Similarly, where there is an equality of votes on the question ofthe unsoundness of mind of an accused person at the time of the alleged offence, the court must findthat the person was suffering from unsoundness of mind.18

Amendment of Charge Sheet

9.25 A court martial may amend a charge sheet so as to correct a mistake in the name ordescription of the accused person or a mistake which is attributable to clerical error or omission.19

Withdrawal of Charge

9.26 A court martial may allow the prosecution to withdraw a charge (or charge sheet) before anaccused person is arraigned on it.20

Adjournments

9.27 Court martial proceedings may be adjourned from time to time and from place to place asappears to the court to be necessary or expedient having regard to the administration of justice or the

14 DFDA s.139(2), (3).

15 DFDA s.133; questions of law must be determined by the judge advocate.

16 DFDA s.133(6).

17 Hembury v Chief of the General Staff [1998] HCA 47 923 Jul 1998.

18 DFDA s.133(2), (3), (4).

19 DFD Rule 12.

20 DFD Rule 13.


exigencies of service.21 Normally a court martial should not sit for a total period exceeding six hours onany one day unless the prosecution and defence agree to sit for a longer period unless there areexceptional circumstances. In such cases the judge advocate should advise the court of the problemsinherent 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 courtmust record a plea of not guilty and proceed to try the charge.22

b. If a convening authority notifies a court martial that it does not object to theacceptance of a plea of guilty to an alternative charge the court should accept the pleaand proceed to determine an appropriate punishment.23 In any other case the courtshould record a plea of not guilty and proceed to try the ‘primary’ charge.24

Powers in Relation to Witnesses

9.29 Members of a court martial may not ask questions of any witness. A judge advocate may putquestions to a witness, however, and should do so for the benefit of the court where some aspect ofthe evidence is in need of clarification. In relation to witnesses, a court has the following powers:

a. to allow a witness who is not undergoing examination to remain in court;25

b. to exclude a witness who is undergoing examination where discussion arises as to theallowance of a question or any other matter pertaining to the evidence given or aboutto be given by the witness;26

c. at any time before the judge advocate begins to sum up, to allow the prosecutor ordefence to recall a witness;27

d. to allow the prosecution to call a witness to give evidence in rebuttal of evidence givenby defence witnesses on any matter which could not properly have been adduced orcould not reasonably have been foreseen by the prosecution before the accusedperson presented his defence;28 and

e. to call a witness or recall a witness if, in the opinion of the judge advocate, it is in theinterests of justice to do so.29

21 DFDA s.138(1)(b).

22 DFDA s.132(2).

23 DFDA s.132(3).

24 DFDA s.132(3)

25 DFD Rule 17; eg certain expert witnesses such as psychologists or handwriting specialists.

26 DFD Rule 17(2)(b).

27 DFD Rule 19(1).

28 DFD Rule 19(2).

29 DFD Rule 19(3).


Powers in Relation to Evidence

9.30 During a trial, the court may allow the prosecution or the accused to have part of the recordof proceedings read or played over to him. If proper precautions are taken for the safety of an exhibitthe court may allow the prosecution or accused to inspect the exhibit.30

9.31 The court may allow a copy of an extract from a document or book admitted in evidence tobe an exhibit in place of the document or book, provided it is satisfied that the copy or extract iscorrect.31

Manner of Voting of Court Martial

9.32 On any question to be determined by a court martial, the members must vote orally, in orderof seniority commencing with the junior in rank.32 Where there is an equality of votes on certainquestions the President has a casting vote.33 The judge advocate may not be present while the courtdeliberates on questions of the guilt or innocence of the accused, whether the accused was ofunsound mind at the time of the alleged offence or the punishment to be imposed on a convictedperson.34

FUNCTIONS OF THE JUDGE ADVOCATE

General

9.33 The judge advocate of a court martial is empowered to give any ruling and exercise anydiscretion which would be given or exercised by a judge in a trial by jury, in accordance with the law inforce in the Jervis Bay Territory.35 When the judge advocate sits with the court, he is to be seatedapart from the members of the court. All communications between the judge advocate and the courtare to be oral, and incorporated in the record. When out of court, the judge advocate should notassociate with members of the court. The judge advocate may sit without the members of the court inthe same circumstances as a judge in a criminal trial in the Jervis Bay Territory would sit in theabsence of the jury.36 Where the judge advocate sits in the absence of the court he may exercise suchpowers of the President or the court martial as are necessary for the performance of his duties.37

Notwithstanding any of these powers of the judge advocate, it is the court who must determine anypunishment (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 connectiontherewith.38

9.34 The judge advocate may not sit with members of the court when the court is determiningwhether an accused person:

a. is guilty or not guilty of a Service offence; or

30 DFD Rule 56.

31 DFD Rule 58.

32 DFD Rule 33.

33 See paragraph 9.24

34 DFDA s.133(6).

35 DFDA s.134(1); See also paragraph 9.13 and DFD Rule 4.

36 DFDA s.134(2).

37 DFDA s.134(5).

38 DFDA s.134(3).


b. was, at the time of the alleged offence, suffering from such unsoundness of mind asnot to be legally responsible for his act or omission.39

9.35 When a court martial has convicted a person of a Service offence, it must also determine thepunishment 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 aconvicted person is binding on the court. Similarly, where a judge advocate upholds an application orobjection made by an accused person under sections 141(1), (2), (3) or (4) of the DFDA40, his decisionis binding on the court.

9.37 In addition to the powers discussed in paragraphs 9.33 to 9.36 a judge advocate mayexercise other specific powers which are conferred on him by the DFDA, the Regulations or the Rulesof 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 advocatemay appoint a reserve member in the place of a member of the court. He would do so where themember has not appeared and is unlikely to be available, where he upholds an objection to themember on the ground that the member is ineligible or biased or where he finds that for some otherreason the member should be excused further attendance. Where the member concerned is thePresident, the judge advocate may appoint the next senior member to be President provided that thenext 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 asPresident the judge advocate must report the situation to the convening authority and request thatauthority to appoint a new President in the place of the person concerned.41

9.39 Where there are insufficient members or reserve members properly to constitute a court, thejudge advocate must report the situation to the convening authority and request the authority toappoint an appropriate number of new members.42

9.40 In any case where a judge advocate upholds an objection to himself on the ground ofineligibility or bias, he must report the situation to the convening authority and request that authority toappoint another judge advocate in his place.43

Swearing or Affirming of the Court

9.41 After all objections by the accused person to members of the court martial have been dealtwith, the judge advocate must administer an oath or affirmation to the President and each othermember of the court in the presence of the accused person.44 The judge advocate may permit amember to take an oath in such a manner as the person taking the oath declares to be binding on hisconscience.45 As to the content of the oath or affirmation—see Item 8 of Annex B.

39 DFDA s.133(6).

40 The applications and objections which may be made by an accused are discussed at paragraphs 8.40to 8.42.

41 DFDA s.124(1).

42 DFDA s.124(2); this rule applies after a court martial has assembled but before it has been sworn.

43 DFDA s.124(3).

44 DFD Rule 35.

45 DFD Rule 38.


Objections to Recorders or Interpreters

9.42 A judge advocate must allow an objection to a recorder or interpreter when he is satisfiedthat the person concerned is not sufficiently impartial or competent to perform the duty required ofhim.46 When such an objection is upheld, the President may arrange for another person to act asinterpreter or recorder (as the case may be).47

Substitution of Plea

9.43 Where at any time during a trial it appears to the judge advocate that an accused personwho has pleaded guilty does not understand the effect of the plea, the judge advocate should advisethe court that a plea of not guilty should be substituted. The court will then substitute a plea of not

guilty and proceed accordingly.48

Questioning of Witnesses

9.44 During a trial by court martial, a judge advocate may ask questions of a witness when, in hisopinion, it is necessary to do so.49 Such questions should be asked only when there is a need to clarifyevidence which has been given by a witness. After asking questions of a witness, the prosecution anddefence are entitled to ask questions arising from answers given by the witness.50 Members of thecourt may not question witnesses.

Summing up

9.45 After the closing addresses (if any) at a trial by court martial, the judge advocate is requiredto sum up the evidence and direct the court on the law relating to the case.51 As to the content of asumming up, see the comments by Lord Hailsham L.C. which are extracted in Note 2 to Item 51 ofAnnex B.

Record of Proceedings

9.46 The written record of the proceedings must be certified as true and correct, in writing, by therecorder and the judge advocate as soon as practicable after the conclusion of the trial.52 In the eventthat the whole or any part of the original record of proceedings of a court martial is lost, a valid andsufficient record of the proceeding may be made by the signature of the judge advocate being affixedto a copy of the record of proceedings.53

Evidence of Alibi

9.47 A judge advocate may grant leave to an accused person to adduce evidence of an alibialthough the accused has not given 14 days notice of the particulars of the alibi.54

46 DFD Rule 37(2), (3).


48 DFD Rule 43.

49 See DFD Rule 18(3).

50 DFD Rule 18(4).

51 DFD Rule 48.

52 DFD Rule 54(4).

53 DFD Rule 57(1).

54 See DFDA s.145A.


Exclusion of Evidence Illegally Obtained

9.48 Where evidence is obtained in contravention of Part VI of the DFDA, the judge advocate maynot admit the evidence unless he is of the opinion that:

a. admission of the evidence would substantially benefit the public interest in theadministration of justice; and

b. 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 thecontravention or the admission of the evidence.55

‘No Case’ Submission

9.49 At the close of the prosecution case, the accused person may submit that there is insufficientevidence to support the charge.56 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, heshould direct the court to dismiss the charge. The judge advocate may, of his own motion, give aruling that there is insufficient evidence to support the charge, but he is not obliged to give such aruling.57

FUNCTIONS OF THE PROSECUTOR

Appointment

9.50 The prosecutor is nominated by the authority convening a court martial or referring a matterto a DFM, and undertakes a serious and difficult task. The prosecutor is not an independent authorityas is the case in civil courts but is required to exercise independence of thought, integrity, andjudgement in discharging a duty of impartiality and fairness in advising the convening authority and inpresenting 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 ofChapter 7 and the following materials relate to the duties of prosecutors before courts martial andDefence Force Magistrates. It is appropriate for prosecutors at summary proceedings to refer to thefollowing 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 8in 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 orDefence Force magistrate, the prosecutor is required to make an opening address to the court. Thisaddress must be carefully prepared before the trial and in it the prosecutor must state briefly:58

a. the elements of the offence charged which have to be proved before the accused canbe convicted;

b. the alleged facts relied upon to support the charge;

55 DFDA s.101ZB.

56 DFD Rule 44.

57 DFDA s.132(1); 132(4A).

58 DFD Rule 42.


c. the nature of the evidence which he proposes to adduce to prove the alleged facts;and

d. any statutory alternative charge the prosecutor may seek to rely upon if the primarycharge is not made out.

9.54 The prosecutor has a general duty to present the prosecution case moderately andobjectively, not pressing for a conviction nor emphasizing the iniquity of the accused. Within theselimits 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 courtshould not be alerted to the existence of evidence which it may not be entitled to hear. The defendingofficer should inform the prosecutor in advance, if practicable, if he intends to object to any part of theevidence so that the prosecutor can determine whether or not to make reference to that evidence inthe 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, anda conviction is recorded, then the prosecutor is required to inform the tribunal of the material factswhich show the nature and gravity of the offence59. Again the prosecutor should outline the facts of thecase objectively and moderately, with due regard to matters reflecting the gravity of the offence. Itmust be borne in mind that while the elements of an offence have been established, the convictedperson may dispute facts which are raised by the prosecutor in support of the case and that theprosecution may be called upon to adduce evidence in the normal manner to substantiate thosedisputed facts. In presenting the material facts the prosecutor should not refer to any evidence likely tobe inadmissible.60

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 ConveningAuthority to that tribunal is to ensure that all the relevant facts are put to the tribunal competently, in anintelligible form, and in a fair and impartial manner. In appearing before a Defence Force magistratethe prosecutor should raise any relevant matters of law which would assist the Defence Forcemagistrate in application of the law to the facts. In appearing before a court martial or Defence Forcemagistrate, the prosecutor shall assist the tribunal at all times by drawing attention to any apparenterrors or omissions of fact or law, or procedural irregularities which ought to be corrected. In particularthe prosecutor is to pay careful attention to the summing up by a judge advocate to a court martial andis 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 fullyand firmly and particularly shall not, by language or conduct, endeavour to inflame or prejudice thetribunal against an accused.

9.58 A prosecutor is not to urge any argument of law that he does not believe to be of substanceor 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 sentencealthough the prosecutor must not, by advocacy, attempt to persuade the court to impose a particularor a harsh sentence.

9.60 The prosecutor is to adduce evidence of the particulars of service of a member in theDefence Force, particulars of any previous convictions of a Service or civil nature, fairly test any

59 DFD Rule 49.



evidence put forward by a convicted person so far as that evidence appears to require it, and adducesuch other evidence as the tribunal requires61. When adducing evidence of any previous convictions,the prosecutor is to have regard to instructions issued by the convening authority as to whether or notspent convictions should be disclosed to the tribunal 62.

9.61 The responsibility to assist the tribunal in this process is a positive duty and should beundertaken as a matter of course unless the tribunal indicates that particular matters need not beaddressed. Where a tribunal invites the further assistance of the prosecution on the question ofsentencing, again, the prosecutor is under a positive duty to provide that assistance subject only to theprofessional 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 thecircumstances of the case and any stated requirements for assistance on the part of the tribunal, aprosecutor'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 ormitigation, and to the extent that such facts have not already been fully canvassedsuch presentation will be particularly relevant where a person has been convicted by asummary authority and has elected to be punished before a court martial or DefenceForce magistrate;

b. whether the convicted person has spent any time in custody awaiting trial;

c. whether the convicted person has made, or has offered to make, restitution orreparation;

d. whether the convicted person has co-operated or is co-operating in any investigationor prosecution of alleged co-offenders;

e. an outline of the range of sentencing options and the relevant laws governingsentencing of the convicted person (including the DFD (Consequences ofPunishment) Rules);

f. a reference to any authorities that may indicate the appropriate sentencing principlesthat should be applied by the tribunal;

g. a reference to any recent sentences imposed in similar cases, including the extent towhich the cases are comparable factually, and the nature of the plea;

h. a reference to any sentence imposed in respect of a co-accused who was convictedand punished separately, and the relative involvement of the convicted personpresently before the tribunal;

i. the prevalence of the relevant offence, its effect upon the military community and, ifappropriate, the need for possible future offenders to be deterred (in this regard if theprosecutor wishes to address on 'prevalence' he must call evidence that the offence isa prevalent one);

j. where a defending officer or the tribunal suggests a possible manner of dispositionwhich in the professional experience and judgement of the prosecutor would beoutside the range normally applied in the exercise of a sound sentencing discretion, areference to possible alternative options.

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).



officer) the prosecutor shall assist the tribunal in raising any mitigating circumstances of which he mayhave knowledge relevant to consideration of the sentence of the convicted person.

9.64 In cases involving dishonesty, the Prosecutor should consider, and obtain instructions fromthe Convening Authority, on whether an order for restitution under s.83 of the DFDA or reparationunder s.84 (as appropriate) should be sought from the court.

FUNCTIONS OF OTHER OFFICIALS AT A COURT MARTIAL

Functions of the Clerk63

9.65 The role of the clerk at a court martial is similar to the combined functions of the sheriff'sofficer and the judge's associate in a civil court. Apart from specific duties which are set out in theOrder of Procedure64 the clerk carries out such duties as the President and judge advocate mayrequire. His duties include the following:

a. reporting to the President when the proceedings are ready to commence;

b. calling all persons in the courtroom to attention when the court enters and withdraws;

c. reading the convening order;

d. asking, in open court, whether the prosecutor or accused object to the composition ofthe court, or to the recorder or the interpreter;

e. administering the oath or affirmation to the recorder;

f. distributing copies of the charge sheet to the President and members of the court;

g. administering the oath or affirmation to witnesses;

h. marking documents or objects for identification or as exhibits and keeping a current listof MFIs65 and exhibits for the judge advocate; and

i. producing and showing exhibits to a witness when requested to do so by theprosecutor, the defending officer or judge advocate.

Functions of the Orderly

9.66 The role of the orderly at a court martial is to attend to any administrative matters which mayarise in connection with the trial. He is available to co-ordinate travel and meal arrangements of thePresident and members of the court or the judge advocate. The orderly should remain outside thecourt until summoned by the President and is to maintain order in the vicinity of the court. He may alsobe required to assist in removing any person who creates a disturbance in the court. When the court isclosed for any reason the orderly is to ensure that no-one is allowed to remain in the immediatevicinity; when the court adjourns, he is to ensure that the courtroom is adequately secured. In relationto witnesses, the orderly has the following duties:

a. to ensure that no witness enters the court until called to give evidence, except with thepermission of the President;

63 See paragraphs 8.76 to 8.81 re the pre-trial duties of the clerk.

64 See Annexes A and B of this Chapter.

65 An MFI is a document or object which is 'marked for identification'. An MFI is not evidence and shouldbe retained by the party who produced it.


b. to ensure that no witness leaves the vicinity of the courtroom without the permission ofthe President; and

c. to ensure that a witness who has been examined does not communicate with thosewitnesses who have not yet given evidence.

9.67 In relation to the procedure for calling witnesses, see Note (6) to Item 38 in the Order ofProcedure.

9.68 The orderly has no specific pre-trial duties. However, whenever it is practicable to do so, heshould 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 isdue 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, theescort must accompany him to the witness box and stand behind him. If the President allows theaccused to be seated, whilst giving evidence, the escort may sit in close proximity to him. While theaccused is in court, the escort must remain near enough to him to enable the escort to exerciseeffective physical control.

9.70 The escort is personally responsible for restraining the accused, should he make anyattempt to evade trial or to interrupt the proceedings at the trial, and for keeping the accused in safecustody while the court is adjourned. The responsibility of the escort does not end until the accusedhas been told that he is free to leave the court, or, if sentenced to imprisonment or detention, has beendelivered 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 recordsuch particulars as are provided for by the Rules of Procedure.66 The particular requirements of theRules 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.67 For thispurpose the Defence Legal Office has a ‘standing offer’ in place for the recording and transcription ofthe proceedings of courts martial. Arrangements for the use of the contractor’s services should bemade 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 thissituation the proceedings must be recorded in sufficient detail to enable the course of the proceedingsto 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 nearlyas possible in the words used;

b. if the judge advocate so directs, a particular question and the answer to it shall betaken down verbatim;

c. a record shall be made of the proceedings relating to each objection, submission orapplication;

66 DFDA s.148.

67 DFD Rule 54.


d. subject to subparagraph e., addresses by the prosecution and defence and thesumming up by the judge advocate shall be recorded to such extent as the judgeadvocate sees fit; and

e. if the prosecution or defence so requires, a record shall be made of any particularpoint in the address by the prosecution or defence or summing up by the judgeadvocate.68

Preparing a Transcript

9.74 Where the proceedings are recorded verbatim the recorder is required to prepare or cause tobe prepared a transcript in writing. The transcript is to be authenticated by the person who made it.69

As to certification of the record of proceedings—see paragraph 9.46.

Annex:A. Order of Procedure at a Trial by Court Martial (Diagram)B. Order of Procedure at a Trial by Court MartialC. Courts Martial - Recording the ProceedingsD. Court LayoutE. National Guidelines Governing the Use of Interpreters in the Australian Legal System

68 DFD Rule 54.

69 DFD Rule 54(3).


ORDER OF PROCEDURE AT A TRIAL BY COURT MARTIAL(DIAGRAM)

To be issued with AL1

ADFP 201 VOLUME 1ANNEX B TOCHAPTER 9

ORDER OF PROCEDURE AT A TRIAL BY COURT MARTIAL

1. The judge advocate, clerk, recorder, defending officer, prosecutor, accused, escort andaudience 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.

(2) The dress for the judge advocate is the appropriate Service dress (without headdress) and aplain black undergraduate gown. Judge advocates who are practising barristers may weartheir normal silk or stuff gown in lieu of an undergraduate gown. Barristers who are not legalofficers but who are appearing as counsel should wear full robes. All members of theDefence Force, including Reserve legal officers appearing as counsel should wear theuniform prescribed in the Court Martial Administrative Order (see Chapter 8, paragraphs8.31- 8.33).

(3) All witnesses are to remain outside the court.

(4) A court martial is a public trial and the public must normally be admitted to the extent of theaccommodation available (see Chapter 8, paragraph 8.35).

2. The clerk reports to the President, outside the court, that the proceedings are ready tocommence.

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 membersremain standing at one end of the court table.

Notes

(1) On entry of the President and members, all persons in the court are to stand.

(2) Before the President and members take their seats, all uniformed persons in attendancesalute. All persons not in uniform bow.

(3) Members of the court sit in order of seniority, the officer next senior to the President sits onhis right, the next senior on his left and so on.

4. The President declares the court open and directs the clerk to read the convening order.

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 theprosecutor and the defending officer.

5. The clerk asks the prosecutor whether he objects to the President or any members of thecourt or to the judge advocate.

ADFP 201 VOLUME 19B–2

Note

(1) Although Defence Force discipline legislation makes no specific provision for the prosecutorto make objections in relation to the composition of the court, where he is aware of some factthat is likely to vitiate the trial or, at least, raise a doubt as to whether justice could be seen tobe done, he has a duty to raise the matter before the court is sworn. For example, where heis aware of the existence of a serious conflict of interest between the accused and one of themembers of the court, he should make this matter known. As to what may constitute aconflict of interest see Chapter 8, paragraph 8.49.

6. If the prosecutor makes no objection, or after his objections have been dealt with, the clerkasks the accused if he objects to the President or any member of the court or the judge advocate(Rule 34).

Notes

(1) As to eligibility see DFDA sections 116 and 117.

(2) An accused may object on grounds of ineligibility or bias (DFDA s.141(2), (3)). Any evidenceadduced in support of the objection is to be unsworn. If more than one member is objectedto, the objection to the junior member is to be dealt with first. The decision on any objectionis to be made by the judge advocate, including where an objection is made to himself (DFDAs.141(6)). An objection should be upheld where the judge advocate is satisfied that it hasbeen 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 lodgedwith the convening authority before the court had assembled.

(3) As to replacement of members or the judge advocate or dissolution of court martial - seeDFDA sections 124 and 125.

7. After objections to the composition of the court have been dealt with, the President directsany remaining reserve members to withdraw.

8. The judge advocate administers the oath/affirmation separately to the President andmembers of the court.

Notes

(1) The judge advocate may permit a member to take an oath in such a manner as the persontaking the oath declares to be binding on his conscience (Rule 38(1)).

(2) The wording of the oath is as follows: (Rule 35(2))

‘I ................................... swear by Almighty God that I will duly administer justice according tolaw without fear or favour, affection or ill-will, that I will well and truly try the accusedperson(s) before the court according to the evidence and that I will not disclose the vote oropinion 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 followingform:

‘I ................................... solemnly sincerely and truly declare and affirm that I will dulyadminister justice according to law without fear or favour affection or ill-will, that I will welland truly try the accused person(s) before the court according to the evidence and that I willnot disclose the vote or opinion of any member of the court martial unless required to do soin due course of law.’

9. The clerk informs the court of the name of the recorder and asks the prosecutor and thedefending officer whether they object to this person being employed to record the proceedings. (Thesame procedure is followed in respect of an interpreter if one is required.)


Notes

(1) For definition of ‘recorder’ see Rule 3.

(2) The accused may enter an objection to a recorder or interpreter on the ground of partiality orincompetence or both (Rule 37(2)).

10. If there is no objection to the recorder the judge advocate directs the clerk to administer theoath 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 andaffirm’, if affirmation is being made), that I will, to the best of my ability, truly record ortranscribe (or both) the evidence to be given before this court and such other matters as maybe 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 andaffirm’, if affirmation is being made), that I will, to the best of my ability truly interpret andtranslate 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 headmits to being the person named therein and whether he is now, or was at the time stated incharges, subject to the DFDA.

Notes

(1) The purpose of seeking admissions as to identity and jurisdiction is to expedite theproceedings by removing the necessity for the prosecutor to adduce evidence of matters thatgenerally should not be in issue. However, an accused is under no obligation to make anyadmissions whatsoever in relation to the charge against him. Where the accused does notadmit to being the person named in the charge sheet or to being subject to the DFDA at therelevant time, the prosecution must adduce formal evidence of these matters.

(2) As to the time limitation on charges and the jurisdiction of a court martial, see DFDA sections96 and 115.

12. The accused may admit that he is the person named in the charge sheet and that he is, orwas 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 ofmatters.

13. The judge advocate informs the accused of his right to make applications or objections inconnection 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, hemay do any of the following (DFDA s.141):

a. apply for an adjournment on the ground that he has not had an adequate opportunityto prepare his defence or to choose a person to represent or advise him;


b. apply to secure the attendance of witnesses or additional witnesses on his behalf;

c. if he is charged with more than one Service offence, apply for each charge to be heardseparately;

d. if he is charged with one or more other persons, apply to be dealt with separately onthe ground that he would otherwise be prejudiced in his defence;

e. make such other applications as he considers relevant in connection with the trial;

f. enter an objection that he is not liable to be tried for the Service offence with which hehas been charged, by virtue of previous acquittal or conviction;

g. enter an objection that the charge was made outside the time limitations provided inDFDA s.96;

h. object that he has, in the exercise of the royal prerogative of mercy, been pardoned forthe Service offence with which he has been charged or for a civil court offence that issubstantially the same;

i. object that the charge does not disclose a Service offence or is otherwise wrong inlaw;

j. object that the court martial does not have jurisdiction.

(2) An accused may, at any time, apply to the court on any reasonable grounds for anadjournment of proceedings (Rule 39).

(3) The court may allow the prosecution to withdraw a charge (or charge sheet) before theaccused is asked to plead on it (Rule 13).

14. If the accused wishes to make an application or objection, this matter is then heard by thecourt.

Notes

(1) DFDA s.134.

(2) When an application or objection has been made by the accused, the judge advocate maydecide that the matter should be heard in the absence of the court. If he does so decide, hemay request that the President and members of the court withdraw. The President shouldalways comply with such a request.

(3) All uniformed persons replace their caps; all persons in court stand; salutes are exchangedand the court withdraws.

(4) The judge advocate then takes for the time being the powers and duties of the court or thePresident (DFDA s.134(5)). The hearing by the judge advocate forms part of the proceedingsof the court and takes place and is recorded in the normal manner (DFDA s.134(4)).

(5) 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 theapplication or objection.

b. The defending officer outlines the matter in issue, calling witnesses, as may benecessary. The prosecutor may also call witnesses in reply; the procedure for callingwitnesses is explained in Note 6 to Item 39. The form of oath or affirmation to be takenby 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.


c. The defending officer sums up the case in support of the application or objection.

d. The prosecutor may make submissions opposing the application or objection.

e. The judge advocate gives his decision.

f. The judge advocate informs the court, through the clerk, that the court is ready toresume.

g. The President and members of the court then return to court room and the usualformalities are followed. When all persons are seated, the trial resumes.

15. If there are no applications or objections made by the accused, or after these matters havebeen 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 bythe accused, the clerk must ensure that a fresh charge sheet is produced before copies aregiven to the members of the court. It may be necessary for the judge advocate to seek anadjournment until a fresh charge sheet can be produced.

16. The judge advocate reads each charge separately and asks the accused whether he pleadsguilty 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 turnand asking the question after each charge.

(2) If two or more accused are named in the same charge, the judge advocate, after reading thecharge in question, should put the above question to each such accused in turn, starting withthe one named first in the charge.

(3) The accused may plead guilty to an alternative offence, ie an offence not shown on thecharge sheet but one of which the court could convict (DFDA s.142 and Schedule 6). If thereis nothing contained in the record or summaries of evidence which could be said to reducethe charge to some lesser offence for which a verdict may be returned, the prosecutor oughtnot to accept the plea of guilty of that lesser offence.

(4) The accused, himself, must plead; it is not sufficient for the defending officer to do so on hisbehalf, or to indicate that the accused wishes to plead guilty.

(5) If the accused refuses to plead, the trial proceeds as if he had pleaded not guilty.

(6) Where there is more than one charge against an accused person and the charges arecontained in more than one charge sheet, the accused should be arraigned and tried on onecharge before being arraigned and tried on a charge in another charge sheet; (Rule 41(2)).

(7) A plea of not guilty may be substituted by the court at any time during a trial, where itappears to the judge advocate that an accused person does not understand the effect of hisplea of guilty (Rule 43).

17. If the accused pleads guilty to any charge, the judge advocate ensures that the accusedunderstands the charge and the difference of procedure which will result from the plea of guilty. Courtwithdraws, if so requested by the judge advocate.


Notes

(1) The judge advocate must ensure that an accused person who is unrepresented does notsuffer any undue disadvantage as a consequence of that fact (Rule 32(c)).

(2) Care must be taken to ensure that the accused fully understands the elements of the offenceto which he is pleading guilty, and this is particularly the case where a possible defence isdisclosed in the record or summaries of evidence.

(3) If during the course of the trial, it appears to the judge advocate that a plea of guilty has beenentered in error or that the accused did not understand the effect of the plea, the judgeadvocate is to substitute a plea of not guilty and proceed accordingly (Rule 43).

(4) The accused should also be informed that the facts of the case, as the prosecution believesthem to exist, will be outlined to the court to assist the court to determine punishment.

18. Court returns (if it has withdrawn).

19. Accused may inform the court that he wishes to withdraw his plea of guilty. (If he does thisproceed as at Item 37.)

or

The judge advocate may advise the court to proceed as if the accused had pleaded not guilty. (If hedoes this, proceed as at item 37.)

20. When the accused has pleaded not guilty to any of the charges, or to an alternative offenceof which he might be convicted, the judge advocate should proceed as at Item 37. The prosecutorthen makes his opening address.

Notes

(1) Where an accused pleads guilty to an alternative charge, the court is required to accept theplea provided the convening authority notifies the court that he does not object toacceptance of the plea (DFDA s.132(3)).

(2) 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 somecharges should try other charges to which the accused has pleaded not guilty, he shouldapply 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 remainingcharges with an open mind. If such a procedure is followed and the defence submissionupheld, the court should proceed as at Item 22 on those charges to which the accused haspleaded guilty and leave the other charges to be tried by a new court.

21. The court re-opens. If there is no charge to be tried, the President announces that theplea(s) of guilty is recorded and that the prosecutor is not required to proceed on any charges to whichthe 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 courtto 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 factsalleged by the prosecution. He may dispute some of them in his statement in mitigation ofpunishment, but by his plea of guilty to the charges, he has admitted the truth of sufficientfacts to substantiate the charges. The facts of the case, as the prosecution believes them toexist, will now be outlined to you to assist in your consideration of punishment.’


24. The prosecutor informs the court of the material facts relating to the commission of theoffences.

Note

(1) The prosecutor should outline the facts of the case objectively and moderately in order thatthe court will be aware of the gravity and circumstances of the offences. He should not makeany reference to evidence which is inadmissible. Should the defending officer believe thatsome of the evidence which the prosecutor will mention is not admissible he may object andthe question of admissibility will then be determined by the judge advocate, in the absence ofthe court if need be.

25. The prosecutor adduces evidence of prior convictions of the accused, relevant particulars ofhis service in the Defence Force (if the accused is a member of the Defence Force or was so at thetime of commission of the offence) and other matters relevant to punishment as the court requires.

Notes

(1) See DFDA s.70 and Rule 50.

(2) The clerk should, before the trial, provide the prosecutor with the Form PD103 ConductRecord of the accused. This record should contain relevant particulars of the accused'sservice in the Defence Force and particulars of any previous convictions for Serviceoffences, civil court offences and overseas offences. When adducing evidence of anyprevious convictions, the prosecutor is to have regard to instructions issued by theconvening authority as to whether or not spent convictions should be disclosed to thetribunal (see paragraph 8.46).

(3) A copy of this record should also be given to the defending officer before commencement ofthe trial.

(4) The record should be tendered as evidence by the prosecutor without comment on thematters contained therein, unless there is a need to clarify any of them.

(5) The prosecutor is also required to cause evidence to be adduced of any other mattersrelevant to punishment etc as may be required by the court. The nature of this evidence willvary according to the circumstances of the case. For example, where the state of health ofthe accused may be relevant to the consideration of punishment, the prosecutor may berequired to produce the accused's medical records. Unless the requirement is obvious, theprosecutor should await the court's instructions in relation to evidence of ‘other matters’.

26. The defending officer may call witnesses as to the accused's character or adduce any otherevidence relevant to punishment. After being sworn or affirmed, witnesses may be cross-examined bythe prosecutor, re-examined by the defending officer and, if necessary, asked questions by the courtand the judge advocate.

Notes

(1) Rule 50(2).

(2) The procedure for calling witnesses is explained in Note 6 to Item 39.

(3) The President may require a witness to give evidence on oath or affirmation (DFDAs.138(4)). Other than in exceptional circumstances, eg a child of tender years, the Presidentshould always require that the witness give evidence on oath or affirmation. He should alsoinvite the witness to choose whether to give evidence on oath or on affirmation.

(4) The President may permit a person to take an oath in such a manner as the person takingthe oath declares to be binding on his conscience (Rule 38).


(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, thewhole truth and nothing but the truth.’

(6) If an affirmation is to be made, the words ‘solemnly, sincerely and truly declare’ aresubstituted for the words in the oath ‘swear by Almighty God’.

(7) The usual evidentiary constraints do not apply with the same stringency to the plea inmitigation—see paragraph 8.75. However, where an accused or his defending officer putforward matters in mitigation which involve serious imputations on the character of a personwho is not in a position, at that time, to challenge their accuracy, he should avoid mentioningany 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.

(8) 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.

(9) 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 determiningpunishment. However, the court may not impose a separate punishment in respect of theseoffences. These admissions by an accused are not admissible as evidence against theaccused in other proceedings. See DFDA s.77.

(10) Cross-examination by the prosecutor should usually be limited to clarifying matters whichhave been raised in examination-in-chief. The prosecutor should not attack the credit of awitness or impugn his character unless he believes that the evidence the witness has givenis false and unless he intends to call affirmative evidence to support or justify the imputation.

27. The prosecutor may call witnesses or adduce other evidence on matters arising from theevidence 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 thedefence plea in mitigation. Where he believes that a defence witness has given falseevidence or that, for other reasons, the court is likely to be misled in relation to punishmenthe should call appropriate evidence.

(2) If the accused in his evidence disputes any of the facts alleged by the prosecution in itsopening address or raises any other fresh matter, the court may direct that evidence shall becalled in the normal manner on the points in dispute. This course should be adopted onlywhere the matter in issue may influence the punishment to be imposed.

28. The defending officer may make a submission in mitigation of punishment.

Notes

(1) In his submission on punishment the defending officer should direct the court to thesentencing principles contained in DFDA s.70 and indicate how those principles apply to thefacts of the case. In particular he should address the question of any consequential effects ofthe accused's conviction or proposed punishment (see DFDA s.70(2)(a)). For example, ifthere is a likelihood that the accused might be dismissed from the Defence Force, the courtshould be told how this punishment will affect an entitlement to pension or other financialbenefits. Also, if reduction in rank is likely, the court should be aware of the total financialpenalty involved in that punishment and be given an estimate of the period of time which willprobably elapse before the accused is likely to be reinstated in his present rank.


(2) The defending officer should also tender a pre-sentence report, in the format shown in FormPD 108 at the end of the plea in mitigation. See paragraph 8.77.

29. The prosecutor may make submission on punishment; see Note.

Note

(1) See paragraphs 9.50 to 9.64.

30. The Court may require the prosecutor to adduce evidence of any other matters relevant todetermining punishment.

Note

(1) Medical or other evidence should be called where knowledge of the state of health orbackground of the accused or other circumstances connected with him might aid the court toarrive at a just conclusion as to the appropriate punishment. See Note (5) to Item 25 andRule 50(1)(c).

31. The prosecutor raises the question of restitution or reparation. In a relevant case, defendingofficer 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 torestore 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 aninnocent third party who received the property in exchange from the convicted person. SeeDFDA s.83.

(2) A person convicted by court martial may also be ordered to pay reparation to a person whohas suffered loss or damage by reason of the offence. The maximum amount of reparationwhich the court may order is five times the maximum fine which may be imposed on theconvicted person (DFDA s.84).

32. The judge advocate asks the prosecutor or the defending officer to state any time which theaccused has spent in custody awaiting trial, if the fact has not already been mentioned.

33. The judge advocate directs the court on the law relevant to sentencing.

Notes

(1) The judge advocate should direct the court on the sentencing principles which must beapplied by the court in determining punishment. These principles are laid down in DFDA s.70and are ‘the principles of sentencing applied by the civil courts ... and the need to maintaindiscipline in the Defence Force’. Some of the matters which should be addressed by thejudge advocate in relation to these principles are set out below.

(2) Principles of Sentencing Applied by Civil Courts. The court must impose a sentence ormake an order that is of a severity appropriate to the circumstances of the case. In additionto any other matters, the court must take into account such of the following matters that arerelevant and known to the court:

a. the nature and circumstances of the offence;

b. other offences (if any) that are required or permitted to be taken into account;

c. if the offence forms part of a course or conduct consisting of a series of criminal actsof the same or similar character—that course of conduct;


d. the personal circumstances of any victim of the offence;

e. any injury, loss or damage resulting from the offence;

f. 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 fromthe offence;

(2) in any other manner;

g. if the person has pleaded guilty to the charge in respect of the offence—that fact;

h. the degree to which the person has cooperated with law enforcement agencies in theinvestigation of the offence or other offences;

i. the deterrent effect that any sentence or order under consideration may have on theperson;

j. the need to ensure that the person is punished adequately for the offence;

k. the character, antecedent, age, means and physical or mental condition of the person;

l. the prospect of rehabilitation of the person; and

m. the probable effect that any order under consideration would have on any of theperson’s family or dependants.

In addition the court must have regard to the nature and severity of the conditions that maybe 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 theperson, in addition to any other matters that the court is required or permitted to take intoaccount.

(3) The Need to Maintain Discipline in the Defence Force. The second principle to be applied bycourts martial in sentencing offenders is the need to maintain discipline in the DefenceForce. The officers comprising the Service tribunal are entitled to apply their own experienceand common sense in this connection.

(4) Other Matters. The judge advocate should direct the court as to the maximum punishmentprovided for the offence and should advise the court that each punishment imposed or ordermade must be in respect of a particular conviction and no other conviction. The court shouldalso be informed that it is entitled to refer to Chapter 11 of this manual in the course ofdetermining punishment but that if a question of law arises in relation to punishment theadvice of the judge advocate must be sought. In such a situation, the court martial mustreassemble and the President may then ask the relevant question of the judge advocate inopen court. When the matter has been clarified the court will be cleared until such time asthe punishment has been determined.

34. Court is closed to consider punishment.

Notes

(1) The President is to declare the court closed. All persons present, with the exception of thePresident and members of the court, are to stand, salute the President (or bow) andwithdraw.


(2) Where any question of law arises in the course of determining punishment, the court mustreconvene so that the judge advocate may give a ruling. The question must be asked by thePresident, and the ruling given by the judge advocate, in open court (DFDA s.133(3)).

(3) In relation to punishment, the court should refer to Chapter 11 of the Manual.

(4) The method of determining punishment is to be by majority of votes of the members of thecourt. In the case of an equality of votes, the President has the casting vote (DFDAs.133(3)). Members are required to vote orally, in order of seniority commencing with themost junior in rank (Rule 33).

(5) In an appropriate case, consideration should be given to whether the interests of justicewould be served by recording a conviction without punishment and requiring the convictedperson to give an undertaking to be of good behaviour for 12 months.

(6) Where it is proposed to impose a punishment of detention or a fine, consideration should begiven to whether such punishment should be suspended.

(7) Where an accused requests that other offences be taken into consideration in determiningpunishment, and the prosecutor consents to this course, the court may in certaincircumstances take these offences into consideration. See DFDA s.77.

(8) Each punishment imposed and each order made by the court must be imposed or made inrespect of a particular conviction (DFDA s.66); also see section 74 of the Act re concurrentor cumulative punishments.

(9) In an appropriate case, the court must determine whether restitution or reparation ordersshould be made, and, in the latter case, determine the amount to be paid in reparation. SeeNote (2) to Item 31.

(10) Form of Finding and Punishment or Order. Where an accused has pleaded guilty to allcharges, 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 theplea and finds him guilty of the offences charged in the first and second charges andimposes 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 sentencebeing 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 pleadednot guilty to any charges, see Items 53 and 56.

(11) The combined finding by the court may be hand-written.


(12) The combined finding is signed by every member of the court, notwithstanding anydifference of opinion there may have been among the members.

35. Court re-opened. Witnesses may also be admitted. The President reads the combinedfinding 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.

(2) Before the combined finding is announced, it is to be scrutinised by the judge advocate. If heis satisfied that the punishment (or order) has been made according to law he countersignsthe finding. If, in his opinion, the punishment or order has not been made according to law heis to inform the court and return the combined finding, unsigned, for further consideration.The court may be closed for this purpose.

(3) After reading the punishment or order the President may, if he sees fit, address the accusedin explanation of the punishment or order.

36. The President orders the accused to be removed or informs him that he is free to leave—seeNote (1) below. The President then declares that the court is dissolved and he and the other membersof the court withdraw.

Notes

(1) Where the court has imposed a punishment of detention or imprisonment or the accused isalready in custody for any other reason, the accused is to be given into the custody of theescort until delivered into custody of the officer in charge of the detention centre or prison, asthe case may be. Otherwise, the accused is free to leave the court unattended. In eithercase, the accused is to salute the President and withdraw.

(2) When the President declares that the court is dissolved, all persons stand and pay theappropriate 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 toproceed.

38. Prosecutor's opening address.

Note

(1) A prosecutor's duty is to present his case objectively and moderately, not pressing for aconviction nor emphasising the iniquity of the accused. Within these limits he has adiscretion in the manner and length of his opening address, but he must outline the elementsof the offence charged, the alleged facts upon which he will rely to support the charge andthe 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 shemight seek to rely if the primary charge is not made out. The prosecutor should not makereference to any evidence that is likely to be inadmissible.

39. Prosecution witnesses called in turn, sworn, examined by the prosecutor, cross-examined bythe defending officer, re-examined by the prosecutor and, if necessary, questioned by the judgeadvocate.


Notes

(1) The swearing of an oath or making of an affirmation is explained in Item 26. As to theprocedure for calling witnesses, see note (6) below.

(2) Examination-in-Chief. see Chapter 6 paragraphs 6.331 et seq. Apart from non contentiousmatters such as the name and employment of the witness, leading questions, ie thosequestions which lead to or promote a particular response, may not be asked duringexamination-in-chief. A prosecutor must also ensure that his examination-in-chief does notextend to matters of which the accused has not been given notice.

(3) Cross-Examination. see Chapter 6 paragraphs 6.339 et seq. During cross-examination, awitness may be asked leading questions and may be questioned on any matters relevant tothe issues before the court or relating to his credit. Questions suggesting fraud, misconductor criminality should not be put where the defending officer does not intend to call affirmativeevidence to support or justify the imputation unless he is satisfied that they are part of theaccused'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 thematters in issue. Also the judge advocate may disallow questions designed to insult or annoyor which are needlessly offensive in form (Evidence Act 1995 s.41(1)). Where it is intendedto suggest that a witness is not speaking the truth on a particular matter, his attention shouldbe drawn to what is going to be suggested about it so that he may have an opportunity ofexplanation.

(4) Re-examination. See paragraphs 6.381 to 6.383 of this manual. A party who has called awitness may re-examine that witness only on matters which have arisen out of cross-examination or where a particular question or line of questioning has been allowed by thejudge advocate in the exercise of his discretionary powers.

(5) Questioning of Witness by the Judge Advocate. A judge advocate may ask questions of awitness (Rule 18(3)) where, in his opinion, it is necessary to do so. Such questions should beasked 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 tobe conducting an independent inquiry into the case or adopting the mantle of the prosecutor.

(6) Procedure for Calling Witnesses. Witnesses may be called by either of two methods. First, ifthe court is equipped with a 'buzzer', the President may use it to summon the orderly anddirect him to call the witness. Alternatively, the President may direct the clerk to go outsidethe court and call the witness. The witness is to enter the court wearing headdress (if he is inuniform) and approach the court table. He is to salute the President (or bow) and proceedinto the witness box where he removes his cap. The clerk then administers the oath oraffirmation after which the witness may be invited by the President to be seated. (Unless theevidence which the witness is to give is likely to be short, he should normally be allowed tosit.) After he has finished his evidence the witness is to replace his cap, salute the Presidentand withdraw. Unless told by the court that he is no longer required, a witness is to remainwithin the vicinity of the court.

40. The Court may require any other person to be called as a witness where in the opinion of thejudge 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 putsuch questions to the witness as seem proper to the judge advocate (Rule 19(3), (4)).

41. The defending officer may submit that there is insufficient evidence to support the charge.


Notes

(1) At the close of the case for the prosecution the accused may submit that there is insufficientevidence to support the charge (Rule 44). This submission may be properly made andupheld:

a. when there has been insufficient evidence to prove an essential element of thecharge; or

b. when the evidence adduced by the prosecution has been so discredited as a result ofcross-examination or is so manifestly unreliable that the court could not safely convicton it.

(2) A 'no-case' submission is to be determined by the judge advocate, usually in the absence ofthe court. If he decides that there is insufficient evidence to support any particular charge,the court must dismiss the charge.

(3) If the decision of the judge advocate results in there being no charge to be tried, the findingis prepared by the judge advocate, signed by the court, read in open court and the court isdissolved. See Notes to Item 36.

(4) Where the interests of justice require it, the judge advocate may, of his own motion, give aruling that there is insufficient evidence to support the charge (DFDA s.132(4A)).

(5) The wording of the finding will vary according to the circumstances of the case.

42. The judge advocate asks the accused whether he requires an adjournment to prepare hisdefence.

Notes

(1) A court may adjourn from time to time and from place to place as appears to the court to benecessary or expedient having regard to the administration of justice or the exigencies ofservice (DFDA s.138(1)). The accused person or the prosecutor may at any time apply to thecourt, on reasonable grounds, for an adjournment (Rule 39).

(2) The most likely circumstances in which an accused would seek an adjournment would be forthe attendance of witnesses or the production of other evidence. The court should considerany application for an adjournment on its merits.

(3) During adjournments, the members of the court may separate at any time before theyconsider their verdict. On the first occasion when they separate, the judge advocate shouldwarn them not to talk about the case to anyone other than another member of the court.

43. 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 willbe liable to be cross-examined); or

b. to remain silent.

Note

(1) The accused is not bound by his election at this stage of the trial. See Note (4) to Item 46.

44. The judge advocate asks accused whether he intends to call witnesses for the defence.

45. The defending officer may make an opening address outlining the defence case.


Note

(1) Where the accused person intends to call a witness to give evidence as to the facts of thecase (other than himself), he may, before he calls the first such witness, make an openingaddress to the Service tribunal stating the nature and general effect of the evidence which heproposes to adduce in his defence (Rule 45).

46. The accused, if he has applied to give evidence, goes into the witness box, is sworn oraffirmed, gives evidence, may be cross-examined by the prosecutor, re-examined by the defendingofficer 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 andis bound to answer, a question which may tend to incriminate him in the offence with whichhe is charged. Furthermore, if the accused has asked questions or adduced evidence whichhas tended to show that he is a person of good character or he has impugned the characterof prosecution witnesses or a co-accused, he may be asked and is bound to answerquestions which show that he has been convicted or tried of other offences or that he is aperson of bad character (ACT Evidence Act sections 69, 70).

(2) The form of oath or affirmation for the accused is the same as for other witnesses; see Item26.

(3) Should the defence suggest that the accused's character is good when it is not, the propercourse is for the prosecutor to suggest in his cross-examination of the accused that theaccused has been previously convicted (or whatever the facts may be). If this is not admittedunder cross-examination, the prosecutor may call witnesses to establish the allegation ofbad character.

(4) 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 topostpone giving evidence until after hearing other defence witnesses, he should be warnedthat the value of his evidence may be considerably discounted, as he will have been presentin court listening to their evidence.

47. Witnesses for the defence called in turn, sworn, examined by the accused or his defendingofficer, cross-examined by the prosecutor, re-examined by defence and, if necessary, asked questionsby the judge advocate.

48. The prosecutor may adduce evidence in rebuttal.

Note

(1) After the witnesses for the defence have given their evidence, the prosecutor may, by leaveof the Service tribunal, call a witness or recall a witness to give evidence on any matterraised by the accused person in his defence in respect of which evidence could not properlyhave been adduced, or which could not reasonably have been foreseen, by the prosecutionbefore the accused person presented his defence (Rule 44).

49. The prosecutor makes closing address.

Notes

(1) In all cases, the prosecutor must make his closing address before the closing address by theaccused or the defending officer (Rule 47(2)).

(2) In making his closing address, the prosecutor may comment on the evidence of the accusedif he has given evidence. However, he may not comment on the failure of the accused, or ofthe wife or husband of the accused, to give evidence (ACT Evidence Act s.74) nor should he


comment on the failure of the accused to call witnesses unless the circumstances are suchthat it might be fairly expected that those witnesses should and could be called.

50. The defending officer makes closing address.

Notes

(1) Closing addresses by or on behalf of two or more accused persons who are charged on thesame charge sheet must be made in the order in which their names are listed on the chargesheet. Where two or more accused persons are represented by the same person the personmay make one closing address only (Rule 47(3), (4)).

(2) In his closing speech, a defending officer is not restricted merely to observations on theevidence of his witnesses; whatever occurs to him as desirable to mention on the wholecase, he is at liberty to say.

51. The judge advocate sums up.

Notes

(1) Rule 48 provides that after the closing addresses (if any) at a trial by court martial, the judgeadvocate shall sum up the evidence and advise the court on the law relating to the case.

(2) Where the DFDA provides an alternative offence to the offence with which the accused hasbeen charged, the judge advocate should direct the court in relation thereto. He shouldexplain 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 beenspecifically charged. He should also point out the alternative offences provided in the Act inrelation to the offence with which the accused is charged.

(3) In R v Lawrence1 Lord Hailsham L.C. made the following comments on the question of ajudge's summing up:

‘The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudenceor philosophy or a universally applicable circular tour round the area of law affected by thecase. The search for universally applicable definitions is often productive of more obscuritythan light. A direction is seldom improved and may be considerably damaged by copiousrecitations from the total content of a judge's notebook. A direction to a jury should becustom-built to make the jury understand their task in relation to a particular case. Of courseit 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 whicha decision is required, a correct but concise summary of the evidence and arguments onboth sides and a correct statement of the inferences which the jury are entitled to draw fromtheir particular conclusions about the primary facts.

(4) In giving his or her direction to the Court, the Judge Advocate must provide specific guidanceto ensure that the requirements of DFD Rule of Procedure 33 are complied with by themembers of the Court. Rule 33 stipulates that, in respect of any question to be determinedby the Court, the members must vote in order of seniority commencing with the mostjunior in rank. Failure to vote in such order (or to give a direction to that effect) constitutes amaterial irregularity, a substantial miscarriage of justice and provides grounds for successfulappeal: 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 judgeadvocate's summing up.

1 (1981) 73 Cr App R 1, 5


Notes

(1) Where a defending officer or prosecutor considers that the summing up by a judge advocateis defective in a material way, he should raise the matter before the court is closed. Thejudge advocate should hear argument in relation to this matter in the absence of the court.

(2) When the judge advocate has made a decision on the objection, the court is recalled. If theoriginal direction was in error, the judge advocate should correct the error and give anaccurate direction. When a judge advocate mistakenly misdirects a jury upon burden of proofthe mistake must be corrected in the plainest possible terms (Archbold Criminal PleadingEvidence and Practice 1998 at 4-374).

53. Court closed to consider finding.

Notes

(1) The only persons who may remain in the court are the President and members of the court(DFDA s.133(6)(b)).

(2) The guilt or innocence of the accused is to be determined by a majority of votes of themembers (DFDA s.133(2)). In the case of an equality of votes on the question of whether theaccused is guilty or not guilty as charged, the court is to find the accused not guilty (DFDAs.133(4)).

(3) The members of the court are to vote orally, in order of seniority commencing with the juniorin rank (Rule 33).

(4) Where the court wishes to have any evidence or question of law clarified, the Presidentshould direct that the court be re-opened. He should then put the question orally to the judgeadvocate in open court. After the judge advocate has answered the question, the courtshould be closed again.

(5) Whilst the court is closed, the President may communicate with the clerk in order to causethe court to be opened. No other communication may take place between any member of thecourt and any other person.

(6) When the court has reached its finding on each charge, the findings are to be recorded andsigned by each member. The court is then re-opened and the finding handed to the judgeadvocate. If he is satisfied that the finding has been made according to law the judgeadvocate is to countersign it. The President then reads the finding aloud. If the judgeadvocate considers that the finding has not been made according to law he is to inform thecourt of the particular deficiency and direct what course should be followed. If necessary, thecourt should then be closed whilst the court reconsiders its verdict or amends the finding, asthe case may be. The court is then re-opened and the above procedure is repeated.

(7) 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.’


c. Where there is more than one charge.

‘The court finds as follows:

First Charge GuiltySecond Charge Not GuiltyThird Charge GuiltyFourth Charge Guilty’(as amended)

d. Where there is more than one accused.


First Charge A GuiltyB Guilty

Second Charge A GuiltyB Not Guilty’

e. Where part of a charge is proved.


First Charge Guilty of stealing $20 and a pair of binoculars.Second Charge Not Guilty’

f. Where the court exercises its powers under s.142 of the DFDA and convicts a personof an alternative offence which is not specifically charged.

‘The court finds the accused not guilty of intentionally destroying Service property, butguilty of negligently destroying Service property.’

or


First Charge Not guilty but guilty of negligently destroying one pair ofbinoculars.’

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 tothe lesser alternative offence, the court should not proceed further with the alternative,the finding being recorded as follows:


First Charge GuiltyAlternative to The court having found the accused guilty on the first

First Charge charge, did not proceed with the alternative.’

h. Where the accused has pleaded guilty to one or more charges but not guilty to othercharges and the plea of guilty has been accepted.


First Charge The accused having pleaded guilty, the court accepts theplea and finds him guilty.

Second Charge The prosecution having offered no evidence in support ofthis charge, the court did not proceed further with it.’


Example of Finding:

FINDING

The court finds as follows:

First Charge Not GuiltySecond Charge Guilty(as amended)

Third Charge GuiltyAlternative to The court having found the accused guilty on the thirdthird charge 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 tojudge advocate. If the judge advocate is satisfied that the decision appears to have been madeaccording 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 theaccused has pleaded guilty:

The President orders the accused to be removed or informs him that he is free toleave; 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 theaccused has pleaded guilty:

The procedure in relation to punishment as set out in Items 25 to 34 then Item 56 is tobe 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 orinforms him that he is free to leave; see Note (3). The President then declares that the court isdissolved 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 thirdcharge 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.


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) The record of punishment (or order) may be handwritten.

(3) Where the court has imposed a punishment of detention or imprisonment or the accused isalready in custody for any other reason, the accused is to be given into custody of the escortuntil delivered into the custody of the officer in charge of the detention centre or prison, asthe case may be. Otherwise, the accused is free to leave the court unattended. In eithercase, the accused is to salute the President and withdraw.

(4) Then the President declares that the court is dissolved, all persons present stand and paythe appropriate marks of respect. The President and members of the court then withdraw.


COURTS MARTIAL - RECORDING THE PROCEEDINGS

1. The following is intended as an administrative checklist for members checking transcriptsprior 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.

b. Where speeches have been made an indication of author should be given, eg'Prosecutor—Summing Up' or 'JA—Ruling'. This notation should appear in a similarposition on each page as appropriate.

c. Each page should be numbered. Where a trial extends over more than one day, thepage numbers should carry on from the previous day's record.

d. The closing speeches for the prosecution and defence and the judge advocate'ssumming up should be divided into numbered paragraphs during transcription tofacilitate reference on review.

e. 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;

(2) certificate (in accordance with Defence Force Discipline Rule 54(3),(4));

(3) list of witnesses;

(4) list of exhibits;

(5) charges;

(6) finding by the court; and

(7) action under Part IV of the Defence Force Discipline Act (punishment or orders).

ADFP 201 VOLUME 1ANNEX D TOCHAPTER 9

COURT LAYOUT

RECORDER CLERK

WITNESSBOX

PROSECUTOR DEFENDING OFFICER

ACCUSED

ESCORT

AUDIENCE

________ _________ ________ ________ ________ ________________ _________ ________ ________ ________ ________________ _________ ________ ________ ________ ________

JUDGE [SPACE] MEMBER PRESIDENT MEMBERADVOCATE

ADFP 201 VOLUME 1ANNEX E TOCHAPTER 9

NATIONAL GUIDELINES GOVERNING THE USE OF INTERPRETERSIN THE AUSTRALIAN LEGAL SYSTEM

Each jurisdiction should ensure that:

a. qualified independent interpreters are reasonable available in both metropolitan andrural areas and are available to the accused in criminal proceedings free of charge;

b. such interpreters:

(1) possess linguistic competence;

(2) possess sufficient understanding of ethnic community cultures and socialcustoms;

(3) possess an understanding of court procedures and legal terminology in theAustralian context and, desirably, in that of the culture of the language in whichthey are interpreting;

(4) understand the proper role of the interpreter in legal interpreting including theneed for impartiality and confidentiality; and

(5) are independent of litigants;

c. persons involved in the legal system, and in particular legal practitioners, possess anadequate knowledge of legal interpreting services with a view to:

(1) ensuring that legal interpreting services are provided when needed and, if thereis any doubt about the need for an interpreter, ensuring that one is available;

(2) avoiding any reluctance to utilise such services where they are necessary;

(3) ensuring legal interpreting of an adequate standard;

(4) reducing any unnecessary use of interpreters; and

(5) increasing understanding of the technical difficulties which may be associatedwith interpretation and the difficulties which a non-English speaking person whois unfamiliar with the Australian legal system may encounter;

d. the existence of legal interpreting services is widely publicised, particularly inpublications which circulate widely in ethnic communities;

e. the services of a qualified interpreter are used wherever practicable in preference toother non-qualified interpreters; and

f. undertakings regarding confidentiality are obtained from interpreters.

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), byinstrument in writing, from the members of the judge advocate's panel.1 Before undertaking any dutiesin connection with his office, a Defence Force magistrate is required to make and subscribe an oath oraffirmation before the JAG or any officer authorised by the JAG for the purpose.2 Usually the oath oraffirmation 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 oraffirmation. The form of the oath or affirmation is set out below:3

a. Oath. l, A.B., do swear that l will well and truly serve Her Majesty in the office ofDefence Force magistrate and that l will do right to all manner of people according tolaw, without fear or favour, affection or ill-will: So help me God!

b. Affirmation. l, A.B., do solemnly and sincerely promise and declare that l will well andtruly serve Her Majesty in the office of Defence Force magistrate and that will do rightto all manner of people according to law, without fear or favour, affection or ill-will.

Jurisdiction and Powers of a Defence Force Magistrate

10.2 A Defence Force magistrate has the same jurisdiction and powers as a restricted courtmartial (including the powers of a judge advocate of a restricted court martial).4 In effect, this meansthat a Defence Force magistrate may try any Service offence, other than a custodial offence,5 subjectto the requirement to obtain the consent of the Attorney-General before proceedings are institutedunder the Defence Force Discipline Act (DFDA) in respect of certain offences such as murder, rape ormanslaughter when committed in Australia.6 Where a charge or case is heard by a Defence Forcemagistrate he may give any ruling or exercise any discretion in connection with it that in accordancewith the law in force in the Jervis Bay Territory, would be given or exercised by a judge in a trial byjury.7 A Defence Force magistrate has the same power to impose punishments or make orders underPart IV of the DFDA as a restricted court martial—see 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 chargeor case has been referred to him by a convening authority. The circumstances in which a charge orcase may be referred to a Defence Force magistrate are:

1 DFDA s.127. As to appointments to the JA's panel see Part 4 of Vol 2.

2 DFDA s.128.

3 As per schedule of the DFDA.

4 DFDA s.129 (1).

5 Ie offences committed by a person whilst undergoing the punishment of detention.

6 DFDA s.115(1), (1A); also note paragraph 2.3 as to limitations of jurisdiction of Service tribunals.

7 DFDA ss 129, 134.


a. where a convening authority of his own initiative decides that a charge which has beenreferred to him by a summary authority should be tried by a Defence Forcemagistrate;8

b. where, in the course of a summary trial, an accused person has elected to be tried bya Defence Force magistrate, and a convening authority considers that it is not moreappropriate for the charge to be tried by court martial;9

c. where an accused person who is in breach of an undertaking to be of good behaviourfor 12 months elects to be punished by a Defence Force magistrate and a conveningauthority considers that it is not more appropriate for the punishment to be imposed bya court martial;10

d. where earlier proceedings before a Defence Force magistrate were discontinued andthe convening authority considers that it is not more appropriate for the matter to bedealt with by a court martial;11 and

e. where a reviewing authority, the Defence Force Discipline Appeals Tribunal or theFederal Court of Australia orders a new trial.12

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 acharge to a Defence Force magistrate for trial are discussed in paragraphs 8.18 to 8.21 in the contextof trial by court martial. As a general rule, a charge will be dealt with by a Defence Force magistratewhere 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, theconvening authority is required in the order referring the charge to specify the Defence Forcemagistrate who is to deal with it and to fix or provide for fixing of the time and place for the hearing.13

The convening authority is then required to send:

a. to the Defence Force magistrate:

(1) the order referring the charge (see Forms 37, 38 in Part 12 of Volume 2); and

(2) the charge sheet;14 and

b. to the accused person:

(1) a copy of the order referring the charge (see Forms 37 and 38 in Part 12 ofVolume 2);

(2) a copy of the charge sheet;

8 DFDA s.103(1).

9 DFDA s.103(4).

10 DFDA s.103(6).

11 DFDA s.129A.

12 DFDA s.103(2).

13 DFD Rule 28.

14 DFD Rule 29(2); see Rule 29(4) for the list of documents to be sent to a convicted person and DFMwhere a case is referred to a Defence Force magistrate for action under Part IV of the DFDA.


(3) a copy of the record of evidence taken at proceedings in relation to the chargebefore a commanding officer, a superior summary authority or an examiningofficer;

(4) a copy of any other statement taken from a witness to be called for theprosecution;

(5) a list of the names of witnesses to be called for the prosecution;

(6) a list of exhibits to be given in evidence for the and prosecution;15 and

(7) notification of the accused's rights.16

Administrative Order for Hearing by Defence Force Magistrate

10.6 In addition to the documents discussed in paragraph 10.5, a convening authority isresponsible for making the necessary administrative arrangements for the conduct of a hearing by aDefence Force magistrate. These arrangements involve giving notice of the date and place of thehearing to relevant authorities, nominating other participants (see paragraph 10.7) and givingdirections on matters such as dress or ceremonial requirements. The arrangements may bepromulgated 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 themagistrate himself and the accused (or convicted person, if the hearing is for the purpose ofpunishment only) will be a prosecutor, defending officer, clerk, orderly and recorder. In some cases anescort may also be required to attend. The functions and duties of each of these persons at a hearingbefore a Defence Force magistrate are the same for all practical purposes as those at a court martialand reference should be made to the following paragraphs in Chapters 8 or 9:

a. Prosecutor: See paragraphs 8.45 to 8.56.

b. Defending officer: See paragraphs 8.57 to 8.75. Note: Paragraph 8.61 is notapplicable 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.

c. Clerk: See paragraphs 8.76 to 8.81. Note: In lieu of the documents specified inparagraph 8.80, the documents to be prepared and dispatched before commencementof a hearing by a Defence Force magistrate are as set out in paragraph 10.5.

d. Orderly: See paragraphs 9.66 to 9.68.

e. Escort: See paragraphs 8.82 to 8.83 and 9.69 to 9.70.

f. Recorder: See paragraph 9.71 to 9.74.

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 thePresident 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 DefenceForce Discipline Rules (DFD Rules) and in a manner befitting a court of justice;

15 DFD Rule 29(2).

16 See Form 25 in Part l2 of Volume 2.


b. that an accused person who is not represented does not in consequence of that factsuffer any undue disadvantage; and

c. that a proper record of the proceedings is made and that the record of proceedingsand the exhibits (if any) are properly safeguarded.17

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 tothe procedure followed in criminal trials before civil magistrates and is set out in DFDA s.l35. The fulltrial 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.18 Where the hearing isheld in a secure place, that is a place to which entry is controlled by guards who are constables ormembers of the Defence Force, the public must be granted reasonable access.19 A Defence Forcemagistrate may restrict access and reporting of proceedings where he considers it necessary in theinterests of the security or defence of Australia, the proper administration of justice or public morals.

Annex:A. Order of Procedure at a Trial by a Defence Force MagistrateB. Order of Procedure at a Trial for Sentence by a Defence Force Magistrate

17 DFD Rule 36.

18 DFDA s.140(1).

19 DFDA s.140(4).


ORDER OF PROCEDURE AT A TRIAL BY A DEFENCE FORCEMAGISTRATE

1. The clerk, recorder, defending officer, prosecutor, accused, escort and audience take theirplaces in the court.

Notes

(1) All are to be seated in the in the court before the time at which proceedings are due tocommence. The arrangement of the court room is the same as for a trial by court; see AnnexD to Chapter 9.

(2) The Defence Force magistrate is to wear the appropriate Service uniform (withoutheaddress) and a plain black undergraduate gown. Defence Force magistrates who arepractising barristers may wear their normal silk or stuff gown in lieu of an undergraduategown. Barristers who are not legal officers but who are appearing as counsel should wearfull robes. All members of the Defence Force , including Reserve Legal officers appearing ascounsel should wear the uniform prescribed in the Administrative Order (see Chapter 10,paragraph 10.6 and Form 36).

(3) All witnesses are to remain outside the court,

(4) A trial by a Defence Force magistrate is a public trial and the public must normally beadmitted to the extent of the accommodation available (see paragraph 10.10).

2. The clerk reports to the Defence Force magistrate, outside the court, that the proceedingsare ready to commence.

Note


3. The Defence Force magistrate takes his place in court.

Notes

(1) On entry of the Defence Force magistrate, all persons in the court must stand.

(2) Before the Defence Force magistrate takes his seat, all uniformed persons in attendancesalute. All persons not in uniform bow.

4. The Defence Force magistrate declares the court open and reads the order by the conveningauthority referring the charge.

5. The clerk informs the name of the recorder and asks the prosecutor and the defendingofficer whether they object to this person being employed to record the proceedings. (The sameprocedure is followed in respect of an interpreter if one is required.)

Notes

(1) For definition of ‘recorder’ see Rule 3.


6. If there is no objection, the clerk administers the oath in the prescribed form. On completion,the accused stands.


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 (orboth) the evidence to be given before this court and such other matters as may be requiredand 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 andaffirm’, if affirmation is being made), that I will, to the best of my ability, truly interpret andtranslate as I will be required to do."

7. The Defence Force magistrate reads the heading of the charge sheet and asks the accusedwhether he admits to being the person named therein and whether he is now, or was at the timestated in charges, subject to the DFDA.

Notes

(1) The purpose of seeking admissions as to identity and jurisdiction is to expedite theproceedings by removing the necessity for the prosecutor to adduce evidence of matterswhich generally should not be in issue. However, an accused is under no obligation to makeany admissions whatsoever in relation to the charge against him. Where the accused doesnot admit to being the person named in the charge sheet or to being subject to the DFDA atthe relevant time, the prosecution must adduce formal evidence of these matters.

(2) As to the time limitation on charges and the jurisdiction of a Defence Force magistrate, seeChapter 2 and paragraph 10.2, respectively, of this volume.

8. The accused may admit that he is the person named in the charge sheet and that he is, orwas 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 ofmatters.

9. The Defence Force magistrate informs the accused of his right to make applications orobjections 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, hemay do any of the following (DFDA s.141):

a. apply for adjournment on the ground that he has not had an adequate opportunity toprepare his defence or choose a person to represent or advise him;

b. apply to secure the attendance of witnesses or additional witnesses on his behalf;

c. if he is charged with more than one Service offence, apply for each charge to be heardseparately;

d. if he is charged with one or more other persons, apply to be dealt with separately onthe ground that that he would otherwise be prejudiced in his defence;

e. make such other application as he considers relevant in connection with the trial;


f. enter an objection that he is not liable to be tried for the Service offence for which hehas been charged, by virtue of previous acquittal or conviction;

g. enter an objection that the charge was made outside the time limitations provided inDFDA s.96;

h. object that he has, in the exercise of the royal prerogative of mercy, been pardoned forthe Service offence with which he has been charged or for a civil court offence that issubstantially the same;

i. object that the charge does not disclose a Service offence or is otherwise wrong inlaw;

j. object that the court martial does not have jurisdiction.


(3) A Defence Force magistrate may allow the prosecutor to withdraw a charge (or chargesheet) before the accused is asked to plead on it (Rule 13).

10. If the accused wishes to make an application or objection, this matter is then heard by aDefence 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 inrelation to the applications or objections;

b. the defending officer outlines the matter in issue, calling witnesses as may benecessary; the prosecutor may also call witnesses in reply. The procedure for callingwitnesses is explained in note 6 to Item 30. The form of oath or affirmation to be takenis as at Item 19. All witnesses called in this way are sworn, examined, cross examinedand re-examined in the usual way;

c. the defending officer sums up the case in support of the application or objection;

d. the prosecutor may make submissions opposing the application or objection;

e. the Defence Force magistrate gives his decision;

f. the trial then continues or is adjourned (as the case may be).

11. The Defence Force magistrate reads each charge separately and asks the accused whetherhe 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 turnand asking the question after each charge.

(2) If two or more accused are named in the same charge, the Defence Force magistrate, afterreading the charge in question, should put the above question to each such accused in turn,starting with the one named first in the charge.


(3) The accused may plead guilty to an alternative offence, ie, an offence not shown on thecharge sheet but one of which the court could convict (DFDA s.142 and Schedule 6). If thereis nothing contained in the statements or record of evidence which could be said to reducethe charge to some lesser offence for which a verdict may be returned, the prosecutor oughtnot to accept the plea of guilty of that lesser offence.

(4) The accused, himself, must plead; it is not sufficient for the defending officer to do so on hisbehalf, or to indicate that the accused wishes to plead guilty.

(5) If the accused refuses to plead, the trial proceeds as if he had pleaded not guilty.

(6) See Rule 41(2) for the procedure where the charges against an accused are contained inmore than one charge sheet.

12. If the accused pleads guilty to any charge, the Defence Force magistrate ensures that theaccused understands the charge and the difference of procedure which will result from the plea ofguilty.

Notes

(1) The Defence Force magistrate must ensure that an accused person who is unrepresenteddoes not suffer any undue disadvantage as a consequence of that fact (Rule 36).

(2) Care must be taken to ensure that the accused fully understands the elements of the offenceto which he is pleading guilty.

(3) If during the course of the trial, it appears to the Defence Force magistrate that a plea ofguilty 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).

(4) The accused should also be informed that the facts of the case, as the prosecution believesthem to exist, will be outlined to the Defence Force magistrate to assist him to determinepunishment.

13. The accused may inform the Defence Force magistrate that he wishes to withdraw his pleaof 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 offenceof 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 isrequired to accept the plea provided the convening authority notifies the Defence Forcemagistrate that he does not object to its acceptance (DFDA s.l35(3)).

(2) Where, in the view of the defending officer, it would be unfair to the accused that theDefence Force magistrate, having heard the prosecutor’s opening address and accepted aplea of guilty on some charges should try other charges to which the accused has pleadednot guilty, he should apply to sever those charges. The fact of having pleaded guilty to acharge or charges could, in certain circumstances, render it impossible for the DefenceForce magistrate to approach the remaining charges with an open mind. If such a procedureis followed and the defence submission upheld, the Defence Force magistrate shouldproceed as at Item 16 on those charges to which the accused has pleaded guilty and leavethe other charges to be tried on a later occasion.

15. If there is no charge to be tried, the Defence Force magistrate announces that the plea(s) ofguilty is recorded and that the prosecutor is not required to proceed on any charges to which theaccused has pleaded not guilty. The trial then proceeds as at Item 16.


16. Where the accused has pleaded guilty to all charges, the Defence Force magistrate recordsthe 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 theprosecution. 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 tosubstantiate 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 maybe appropriate.’

17. The prosecutor informs the Defence Force magistrate of the material facts relating to thecommission of the offences.

Note

(1) The prosecutor should outline the facts of the case objectively and moderately in order thatthe 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 adduceevidence in relation to any fact so disputed (Rule 49).

18. The prosecutor adduces evidence of prior convictions of the accused, relevant particulars ofhis service in the Defence Force (if the accused is a member of the Defence Force or was so at thetime 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 ConductRecord of the accused. This record should contain relevant particulars of the accused’sservice in the Defence Force and particulars of all previous convictions, for Service offences,civil court offences and overseas offences. When adducing evidence of any previousconvictions, the prosecutor is to have regard to instructions issued by the conveningauthority as to whether or not spent convictions should be disclosed to the tribunal (seeparagraph 8.46).



(4) The prosecutor is also required to cause evidence to be adduced of any other mattersrelevant 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. Forexample, where the state of health of the accused may be relevant to the consideration ofpunishment, 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 inrelation to evidence of ‘other matters’.

19. The defending officer may call witnesses as to the accused’s character or adduce any otherevidence relevant to punishment. Witnesses may be cross examined by the prosecutor, re-examinedby the defending officer and, if necessary, questioned by the Defence Force magistrate.

Notes

(1) Rule 50(2).

(2) The procedure for calling witnesses is explained in Note 6 to Item 30.

(3) 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, theDefence 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 oron affirmation.

(4) The Defence Force magistrate may permit a person to take an oath in such a manner as theperson taking the oath declares to be binding on his conscience (Rule 38).


‘I swear by Almighty God that the evidence l shall give shall be the truth, the whole truth andnothing but the truth’.

(6) if an affirmation is to be made, the words ‘solemnly, sincerely and truly declare’ aresubstituted for the words in the oath ‘swear by Almighty God’.

(7) The usual evidentiary constraints do not apply with the same stringency to the plea inmitigation; see paragraph 8.74. However, where an accused or his defending officer putforward matters’ in mitigation which involve serious imputations on the character of a personwho is not in a position, at that time, to challenge their accuracy, he should avoid mentioningany 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.

(8) 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.

(9) The accused may request that the Defence Force magistrate take into consideration, indetermining punishment, any other Service offence which is similar to the offence of whichhe has been convicted, which he admits having committed and which the Defence Forcemagistrate has jurisdiction to try. The Defence Force magistrate may, with the consent of theprosecutor, take these offences into consideration in determining punishment. However theDefence Force magistrate may not impose a separate punishment in respect of theseoffences. These admissions by an accused are not admissible as evidence against theaccused in other proceedings—see DFDA s.77.

(10) Cross-examination by the prosecutor should usually be limited to clarifying matters whichhave been raised in examination-in-chief. The prosecutor should not attack the credit of awitness or impugn his character unless he believes that the evidence the witness has givenis false and unless he intends to call affirmative evidence to support or justify the imputation.


Notes

(1) In most cases there should be no need for the prosecutor to call evidence in response to thedefence plea in mitigation. Where the prosecutor believes that a defence witness has givenfalse evidence or that, for other reasons, the Defence Force magistrate is likely to be misledin relation to punishment he should call appropriate evidence.

(2) If the accused in his evidence disputes any of the facts alleged by the prosecution in itsopening address or raises any other fresh matter, the Defence Force magistrate may directthat evidence shall be called in the normal manner on the points in dispute. This courseshould be adopted only where the matter in issue may influence the punishment to beimposed.


Notes

(1) In his submission on punishment the defending officer should direct the court to thesentencing principles contained in DFDA s.70 and indicate how those principles apply to thefacts of the case. In particular he should address the question of any consequential effects of


the accused’s conviction or proposed punishment (see DFDA sub section 70(2)(a)). Forexample, if there is a likelihood that the accused might be dismissed from the DefenceForce, the Defence Force magistrate should be told how this punishment will affect anentitlement to pension or other financial benefits. Also, if reduction in rank is likely, theDefence Force magistrate should be aware of the total financial penalty involved in thatpunishment and be given an estimate of the period of time which will probably elapse beforethe 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 reportin the format shown in Form PD 108.

22. Prosecutor may make submission on punishment; see Note.

Note

(1) It is not the function of a prosecutor to attempt to influence the Defence Force magistrate inrelation to the punishment which should be imposed on the accused. Accordingly, he shouldusually 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 theDefence Force magistrate on matters which have been contested during the plea inmitigation. He should not go beyond those matters nor should he offer an opinion to the courtas to the appropriate punishment for the accused.

23. The Defence Force magistrate may direct the prosecutor to call medical or other evidencewhich 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 orbackground of the accused or other circumstances connected with him might aid theDefence 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, thedefending 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 maybe ordered to restore property, which is in the custody and control of the prosecution, to itsrightful owner. The Defence Force magistrate may also make an order restoring property toits rightful owner and protecting an innocent third party who received the property inexchange from the convicted person. See DFDA s.83.

(2) A person convicted by a Defence Force magistrate may also be ordered to pay reparation toa person who has suffered loss or damage by reason of the offence. The maximum amountof reparation which the Defence Force magistrate may order is five times the maximum finewhich may be imposed on the convicted person. See DFDA s.84.

25. The Defence Force magistrate asks the prosecutor or the defending officer to state any timewhich 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 orother action under Part IV of the DFDA.

Notes

(1) In relation to punishment etc, the Defence Force magistrate should refer to Chapter 11 ofthis volume.




(4) Where an accused requests that other offences be taken into consideration in determiningpunishment, and the prosecutor consents to this course, the Defence Force magistrate mayin certain circumstances take these offences into consideration; see DFDA s.77.

(5) Each punishment imposed and each order made by the Defence Force magistrate must beimposed or made in respect of a particular conviction; DFDA s.66; also see section 74 of theAct re concurrent or cumulative punishments.

(6) In an appropriate case, the Defence Force magistrate must determine whether restitution orreparation orders should be made, and, in the latter case determine the amount to be paid inreparation. see Note (2) to Item 24.

(7) Form of Finding and Punishment (or Order). Where an accused has pleaded guilty to allcharges, 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 andfind him guilty of the offences charged in the first and second charges and impose thefollowing punishments and/or make the following orders:

In respect of the first charge: fined $...... to be paid by instalments of $......over......consecutive pays.


........................ .....................................................(Date) (Defence Force Magistrate)

Note

(1) As to the forms of finding and punishment (or order) where the accused has pleaded notguilty to any charges, see Items 42 and 43.

27. Proceedings resume. Witnesses also admitted. The Defence Force magistrate reads thecombined finding .

Notes

(1) The Defence Force magistrate is to inform the clerk when the proceedings are to beresumed. All participants then return to the court and after the usual marks of respect havebeen made, resume their seats. The accused stands at his place. The Defence Forcemagistrate then reads the finding.

(2) After reading the punishment or order, the Defence Force magistrate may, if he thinks fit,address the accused in explanation of it.

28. The Defence Force magistrate orders the accused to be removed or informs him that he isfree to leave; see Note (1) below. The Defence Force magistrate then declares the proceedingscompleted and withdraws.


Notes

(1) Where the court has imposed a punishment of detention or imprisonment, or the convictedperson is already in custody for any other reason, the convicted person is to be given intothe custody of the escort until delivered into custody of the officer in charge of the detentioncentre or prison, as the case may be. Otherwise, the convicted person is free to leave thecourt unattended.

(2) When the Defence Force magistrate declares that the proceedings are completed, allpersons stand and pay the appropriate marks of respect.

Where There Is A Charge To Be Tried By The Court

29. Prosecutor’s opening address.

Note

(1) A prosecutor’s duty is to present his case objectively and moderately, not pressing for aconviction nor emphasising the iniquity of the accused. Within these limits he has adiscretion in the manner and length of his opening address, but he must outline the elementsof the offence charged, the alleged facts upon which he will rely to support the charge andthe 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 willbe contested as being inadmissible.

30. Prosecution witnesses called in turn, sworn, examined by the prosecutor, cross-examined bythe defending officer, re-examined by the prosecutor and, if necessary, questioned by the DefenceForce magistrate.

Notes

(1) The form of the oath or affirmation to be taken by a witness is explained at Item 19. SeeNote (6), below, re procedure for calling witnesses.

(2) Examination in Chief. See paragraph 6.331 et seq of this volume. Apart from noncontentious matters such as the name and employment of the witness, leading questions, iethose questions which lead to or promote a particular response, may not be asked duringexamination-in-chief. A prosecutor must also ensure that his examination-in-chief does notextend to matters of which the accused has not been given notice.

(3) Cross-Examination. See paragraph 6.339 et seq of this volume. During cross-examination, awitness may be asked leading questions and may be questioned on any matters relevant tothe issues before the court or relating to his credit. Questions suggesting fraud, misconductor criminality should not be put where the defending officer does not intend to call affirmativeevidence to support or justify the imputation unless he is satisfied that they are part of theaccused’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 thematters in issue. Also the Defence Force magistrate may disallow questions designed toinsult or annoy or which are needlessly offensive in form (Evidence Act 1995 s.41(1)). Whereit is intended to suggest that a witness is not speaking the truth on a particular matter, hisattention should be drawn to what is going to be suggested about it so that he may have anopportunity of explanation.

(4) Re-examination. See paragraph 6.381 to 6.383 of this volume. A party who has called awitness may re-examine that witness only on matters which have arisen out of cross-examination or where a particular question or line of questioning has been allowed by theDefence Force magistrate in the exercise of his discretionary powers.

(5) Questioning of witnesses by Defence Force magistrate. A Defence Force magistrate mayask 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


minimum so that the Defence Force magistrate could not be seen to be conducting anindependent 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 thecourt is equipped with a ‘buzzer’, the Defence Force magistrate may use it to summon theorderly and direct him to call the witness. Alternatively, the Defence Force magistrate maydirect the clerk to go outside the court and call the witness. The witness is to enter the courtwearing headdress (if he is in uniform) and approach the court table. He is to salute theDefence Force magistrate (or bow) and proceed into the witness box where he removes hisheaddress. The clerk then administers the oath or affirmation after which the witness may beinvited by the Defence Force magistrate to be seated. (Unless the evidence which thewitness is to give is likely to be short, he should normally be allowed to sit.) After he hasfinished his evidence the witness is to replace his headdress, salute the Defence Forcemagistrate and withdraw. Unless told by the Defence Force magistrate that he is no longerrequired, 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 maybe necessary in the interests of justice.

Note

(1) When a witness is called or recalled by the Defence Force magistrate, the prosecutor or thedefence may put such questions to the witness as seem proper to the Defence Forcemagistrate (Rule 19(3), (4)).

32. Defending officer may make submission that there is insufficient evidence to support thecharge (‘no-case’).

Notes

(1) DFDA sections 135(1)(c)(d) and l35(4A); Rule 44.

(2) At the close of the case for the prosecution the accused may submit that there is insufficientevidence to support the charge (Rule 44). This submission may be properly made andupheld:

a. when there has been insufficient evidence to prove an essential element of the chargeor

b. when the evidence adduced by the prosecution has been so discredited as a result ofcross-examination or is so manifestly unreliable that the court could not safely convicton it.

(3) Whether or not a ‘no case’ submission is made, the Defence Force magistrate may considerwhether the evidence adduced by the prosecution is sufficient to support the charge (DFDAs.135 (4A)).

(4) If, in the opinion of the Defence Force magistrate, the evidence is sufficient to support thecharge he must proceed with the trial as at Item 33.

(5) If, in the opinion of the Defence Force magistrate the evidence is insufficient to support thecharge he must dismiss the charge and declare the proceedings completed.

Where there is Sufficient Evidence to Support the Charge

33. Defence Force magistrate asks accused whether he requires adjournment to preparedefence.


Notes

(1) A Service tribunal may adjourn from time to time and from place to place as appears to thetribunal to be necessary or expedient having regard to the administration of justice or theexigencies of service (DFDA s.138 (1)).

(2) The most likely circumstances in which an accused would seek an adjournment would be forthe attendance of witnesses or the production of evidence. The accused person or theprosecutor may at any time apply to the Defence Force magistrate, on reasonable grounds,for an adjournment (Rule 39).

34. 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 willbe liable to be cross-examined); or

b. to remain silent.

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 thedefence.

36. The defending officer may make an opening address outlining the defence case.

Note

(1) Where the accused person intends to call a witness (other than himself) to give evidence asto the facts of the case, he may, before he calls the first such witness, make an openingaddress to the Service tribunal stating the nature and general effect of the evidence which heproposes to adduce in his defence (Rule 45).

37. The accused, if he has applied to give evidence, goes into the witness box, is sworn, givesevidence, may be cross-examined by the prosecutor, re-examined by the defending officer and, ifnecessary 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 toanswer, a question which may tend to incriminate him in the offence with which he ischarged. Furthermore, if the accused has asked questions or adduced evidence which hastended to show that he is a person of good character or he has impugned the character ofprosecution witnesses or a co-accused, he may be asked and is bound to answer questionswhich show that he has been convicted or tried of other offences or that he is a person ofbad character—see ACT Evidence Act sections 69 and 70.

(2) The form of oath for the accused is the same as for other witnesses; see Item 19.

(3) Should the defence suggest that the accused’s character is good when it is not, the propercourse is for the prosecutor to suggest in his cross-examination of the accused that theaccused has been previously convicted (or whatever the facts may be). Unless this isadmitted under cross-examination, the prosecutor may call witnesses to establish theallegation of bad character.

(4) 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 topostpone 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 presentin court listening to their evidence.

38. Witnesses for the defence called in turn, sworn, examined by the accused or his defendingofficer, cross-examined by the prosecutor, re-examined by defence and, if necessary, questioned bythe Defence Force magistrate. (See Notes to Item 30.)

39. Prosecutor adduces evidence in rebuttal.

Note

(1) After the witnesses for the defence have given their evidence, the prosecutor may, by leaveof the Service tribunal, call a witness or recall a witness to give evidence on any matterraised by the accused person in his defence in respect of which evidence could not properlyhave been adduced, or which could not reasonably have been foreseen, by the prosecutionbefore the accused person presented his defence (Rule 44).

40. Prosecutor and defending officer may make closing addresses.

Notes

(1) After all the evidence has been given, the accused person and the prosecutor may eachmake a closing address to the Service tribunal.

(2) The prosecutor shall make his closing address before the closing address or closingaddresses (if any) by the accused person or accused persons (Rule 47(2)).

(3) Subject to note (4), where two or more accused persons are charged in the same chargesheet, their closing addresses shall be made in the order in which their names are listed onthe charge sheet (Rule 47(3)).

(4) When two or more accused persons are represented by the same person, he may make oneclosing address only (Rule 47(4)).

(5) Prosecution closing address. In his closing address, the prosecutor may comment on theevidence of the accused if he has given evidence. However, he may not comment on thefailure of the accused, or of the wife or husband of the accused, to give evidence (ACTEvidence Ordinance section 74) nor should he comment on the failure of the accused to callwitnesses unless the circumstances are such that it might be fairly expected that thosewitnesses should and could be called.

(6) Defence closing address. In his closing address, a defending officer is not restricted merelyto observations on the evidence of his witnesses; whatever occurs to him as desirable tomention on the whole case, he is at liberty to say, provided it is relevant and within thebounds of fairness and decency.

41. The Defence Force magistrate may adjourn proceedings to consider finding.

Notes

(1) Before he may convict an accused, a Defence Force magistrate must be satisfied beyondreasonable doubt that the accused is guilty of the offence alleged by the charge. The verdictmust be reached on the evidence which has been adduced before him. As to evidence andassessment of the weight to be attached to it, see paragraphs 9.5 to 9.12.

(2) 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’.


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 GuiltySecond Charge Not GuiltyThird Charge GuiltyFourth Charge Guilty’(as amended)

d. Where there is more than one accused.


First Charge A...... GuiltyB...... Not Guilty

Second Charge A...... GuiltyB...... Not Guilty’

e. Where part of a charge is proved.


First Charge Guilty of stealing $20 and a pair of binoculars.Second Charge Not Guilty’

f. Where the Defence Force magistrate exercises his powers under s l42 of the DefenceForce Discipline Act and convicts a person of an alternative offence which is notspecifically charged.

I find the accused not guilty of intentionally destroying Service property, but guilty ofnegligently destroying Service property.’

or ‘I find as follows:

First Charge Not guilty but guilty of negligently destroying one pair ofbinoculars.’

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 tothe lesser alternative offence, the Defence Force magistrate should not proceedfurther with the alternative, the finding being recorded as follows:


First Charge GuiltyAlternative to Having found the accused guilty on the first charge, I didfirst charge not proceed with the alternative.’

h. Where the accused has pleaded guilty to one or more charges but not guilty to othercharges and the plea of guilty has been accepted.



First Charge The accused having pleaded guilty, I accept the plea andfind him guilty.

Second Charge The prosecution having offered no evidence in support ofthis charge, I did not proceed further with it.’

(3) Example of Finding Sheet for inclusion in Record of Proceedings

FINDING


First Charge Not GuiltySecond Charge Guilty(as amended)Third Charge GuiltyAlternative to Having found the accused guilty on the third charge, I didThird Charge not proceed with the alternative.’

............. ...................................................(Date) (Defence Force Magistrate)

42. Proceedings re-commence. Witnesses may be readmitted. The Defence Force magistrateannounces his finding.

Notes

(1) If the finding is not guilty of all charges, the Defence Force magistrate announces the findingand then declares that the proceedings are completed. All persons present stand and paythe appropriate marks of respect as the Defence Force magistrate withdraws.

(2) Unless the accused is in custody in connection with a charge or offence other than onewhich was dealt with by the Defence Force magistrate, he is free to leave the courtunattended.

(3) If the finding is guilty of any of the charges, the procedure is as set out in Items 18 to 26.

(4) 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, Iimpose the following punishments and/or make the following orders:

In respect of the second charge: To be fined ...... dollars to be paid in one sum.

In respect of the third charge: To forfeit ......... months’ seniority as a .................(rank) in the (Service) and to pay ..................... dollarsby way of reparation to ............................’

.......... ....................................................(Date) (Defence Force Magistrate)


ORDER OF PROCEDURE AT A TRIAL FOR SENTENCE BY ADEFENCE FORCE MAGISTRATE

1. The clerk, recorder, defending officer, prosecutor, accused, escort and audience take theirplaces 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 martial—see Annex Dto Chapter 9.

(2) The Defence Force magistrate is to wear the appropriate Service uniform (withoutheaddress) and a plain black undergraduate gown. Defence Force Magistrates who arepractising barristers may wear their normal silk or stuff gown in lieu of an undergraduategown. Barristers who are not legal officers but who are appearing as counsel should wearfull robes. All members of the Defence Force, including Reserve legal officers appearing ascounsel should wear the uniform prescribed in the Administrative Order—see Chapter 10,paragraph 10.6 and Form 36.

(3) All witnesses are to remain outside the court.

(4) A trial for sentence by Defence Force magistrate is a public trial and the public must normallybe admitted to the extent of the accommodation available—see paragraph 10.10).

2. The clerk reports to the Defence Force magistrate, outside the court, that the proceedingsare ready to commence.

Note


3. The Defence Force magistrate takes his place in court.

Notes

(1) On entry of the Defence Force magistrate, all persons in the court are to stand.

(2) Before the Defence Force magistrate takes his seat, all uniformed persons in attendancesalute. All persons not in uniform bow.

4. The Defence Force magistrate declares the court open and reads the order by the conveningauthority referring the matter for sentencing.

5. The clerk informs the court of the name of the recorder and asks the prosecutor and thedefending officer whether they object to this person being employed to record the proceedings. (Thesame procedure is followed in respect of an interpreter if one is required.)

Notes

(1) For definition of ‘recorder’—see Rule 3.


6. If there is no objection, the clerk administers the oath in the prescribed form. On completion,the convicted person stands.


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’, ifaffirmation is being made), that l will, to the best of my ability, truly record or transcribe (orboth) the evidence to be given before this court and such other matters as may be requiredand 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’, ifaffirmation is being made), that l will, to the best of my ability truly interpret and translate as lwill be required to do.’

7. The Defence Force magistrate reads the charge tried by the Summary Authority and thefinding of the Summary Authority.

8. The Defence Force magistrate informs the accused of his right to make applications orobjections 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 DefenceForce magistrate, he may make any application which a Judge, exercising jurisdiction in theJervis Bay Territory, could hear and determine in accordance with the law in force in thatTerritory from time to time (DFDA sections 134(1) and 129(1)).


9. If the accused wishes to make an application or objection, this matter is then heard by theDefence 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 inrelation to the application or objection;

b. the defending officer outlines the matter in issue, calling witnesses, as may benecessary. The prosecutor may also call witnesses in reply; the procedure for callingwitnesses is explained in Annex A, Note 6 to Item 30. The form of oath or affirmationto be taken by witnesses is as at Annex A Item 19. All witnesses called in this way aresworn, examined, cross-examined and re-examined in the usual way;

c. the defending officer sums up the case in support of the application or objection;

d. the prosecutor may make submissions opposing the application or objection;

e. the Defence Force magistrate gives his decision;

f. the trial then continues, ceases or is adjourned (as the case may be).

10. The prosecutor informs the Defence Force magistrate of the material facts relating to thecommission of the offences.


Note

(1) The prosecutor should outline the facts of the case objectively and moderately in order thatthe 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 adduceevidence in relation to any fact so disputed (Rule 49).

11. The prosecutor adduces evidence of prior convictions of the accused, relevant particulars ofhis service in the Defence Force (if the accused Is a member of the Defence Force or was so at thetime 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 ConductRecord of the accused. This record should contain relevant particulars of the accused ‘sservice in the Defence Force and particulars of all previous convictions, for Service offences,civil court offences and overseas offences.



(4) The prosecutor is also required to cause evidence to be adduced of any other mattersrelevant 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. Forexample, where the state of health of the accused may be relevant to the consideration ofpunishment, 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 inrelation to evidence of ‘other matters’.

12. The defending officer may call witnesses as to the accused’s character or adduce any otherevidence relevant to punishment. Witnesses may be cross-examined by the prosecutor, re-examinedby the defending officer and, if necessary, questioned by the Defence Force magistrate.

Notes

(1) Rule 50(2).

(2) The procedure for calling witnesses is explained in Annex A, Note 6 to Item 30.

(3) 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, theDefence Force magistrate should always require that the witness give evidence on oath oraffirmation. He should also invite the witness to choose whether to give evidence on oath oron affirmation.

(4) The Defence Force magistrate may permit a person to take an oath in such a manner as theperson taking the oath declares to be binding on his conscience (Rule 38).


‘I ............... swear by Almighty God that the evidence shall give shall be the truth, the wholetruth and nothing but the truth.’

(6) If an affirmation is to be made, the words ‘solemnly, sincerely and truly declare’ aresubstituted for the words in the oath ‘swear by Almighty God’.


(7) The usual evidentiary constraints do not apply with the same stringency to the plea inmitigation—see paragraph 8.74. However, where an accused or his defending officer putforward matters in mitigation which involve serious imputations on the character of a personwho is not in a position, at that time, to challenge their accuracy, he should avoid mentioningany 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.

(8) 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.

(9) The accused may request that the Defence Force magistrate take into consideration, indetermining punishment, any other Service offence which is similar to the offence of whichhe has been convicted, which he admits having committed and which the Defence Forcemagistrate has jurisdiction to try. The Defence Force magistrate may, with the consent of theprosecutor, take these offences into consideration in determining the punishment. Howeverthe Defence Force magistrate may not impose a separate punishment in respect of theseoffences. These admissions by an accused are not admissible as evidence against theaccused in other proceedings. See DFDA s.77.

(10) Cross examination by the prosecutor should usually be limited to clarifying matters whichhave been raised in examination-in-chief. The prosecutor should not attack the credit of awitness or impugn his character unless he believes that the evidence the witness has givenis false and unless he intends to call affirmative evidence to support or justify the imputation.


Notes

(1) In most cases there should be no need for the prosecutor to call evidence in response to thedefence plea in mitigation. Where the prosecutor believes that a defence witness has givenfalse evidence or that, for other reasons, the Defence Force magistrate is likely to be misledin relation to punishment he should call appropriate evidence.

(2) If the accused in his evidence disputes any of the facts alleged by the prosecution in itsopening address or raises any other fresh matter, the Defence Force magistrate may directthat evidence shall be called in the normal manner on the points in dispute. This courseshould be adopted only where the matter in issue may influence the punishment to beimposed.


Notes

(1) In his submission on punishment the defending officer should direct the court to thesentencing principles contained in DFDA s.70 and indicate how those principles apply to thefacts of the case. In particular he should address the question of any consequential effects ofthe accused’s conviction or proposed punishment (see DFDA s.70(2)(a)). For example, ifthere is a likelihood that the accused might be dismissed from the Defence Force, theDefence Force magistrate should be told how this punishment will affect an entitlement topension or other financial benefits. Also, if reduction in rank is likely, the Defence Forcemagistrate should be aware of the total financial penalty involved in that punishment and begiven an estimate of the period of time which will probably elapse before the accused is likelyto be reinstated in his present rank.

(2) At the end of the plea in mitigation, the defending officer should tender a pre-sentence reportin the form shown in Form PD 108 Pre-Sentence Report.

15. The prosecutor may make submission on punishment.


Note

(1) It is not the function of a prosecutor to attempt to influence the Defence Force magistrate inrelation 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.

16. The defending officer may make submission on punishment.

17. The Defence Force magistrate may direct the prosecutor to call medical or other evidencewhich 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 orbackground of the accused or other circumstances connected with him might aid theDefence 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, thedefending 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 maybe ordered to restore property, which is in the custody and control of the prosecution, to itsrightful owner. The Defence Force magistrate may also make an order restoring property toits rightful owner and protecting an innocent third party who received the property inexchange from the convicted person. See DFDA s.83.

(2) A person convicted by a Defence Force magistrate may also be ordered to pay reparation toa person who has suffered loss or damage by reason of the offence. The maximum amountof reparation which the Defence Force magistrate may order is five times the maximum finewhich may be imposed on the convicted person. See DFDA s.84.

19. The Defence Force magistrate asks the prosecutor or the defending officer to state any timewhich 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 orother action under Part VI of the DFDA.

Notes

(1) In relation to punishment etc, the Defence Force magistrate should refer to Chapter 11 ofthis manual.



(4) Where an accused requests that other offences be taken into consideration in determiningpunishment, and the prosecutor consents to this course, the Defence Force magistrate mayin certain circumstances take these offences into consideration. See DFDA s.77.

(5) Each punishment imposed and each order made by the Defence Force magistrate must beimposed or made in respect of a particular conviction; DFDA s.66—also see section 74 ofthe Act re concurrent or cumulative punishments.


(6) In an appropriate case, the Defence Force magistrate must determine whether restitution orreparation orders should be made, and, in the latter case determine the amount to be paid inreparation. See Note (2) to Item 18.

(7) Form of Punishment (or Order). Where a convicted person is being tried for sentence by aDefence Force magistrate, the punishment (or order), which is know as a finding, should bemade 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 secondcharges, 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.


.............. .............................................................(Date) (Defence Force Magistrate)

21. Proceedings resume. Witnesses also admitted. The Defence force magistrate reads thefinding.

Notes

(1) The Defence Force magistrate is to inform the clerk when the proceedings are to beresumed. All participants then return to the court and after the usual marks of respect havebeen made, resume their seats. The accused stands at his place. The Defence Forcemagistrate then reads the finding.

(2) After reading the punishment or order, the Defence Force magistrate may, if he thinks fit,address the accused in explanation of it.

22. The Defence Force magistrate order the accused to be removed or informs him that he isfree to leave. See Note (1) below. The Defence Force magistrate then declares the proceedingscompleted and withdraws.

Notes

(1) Where the court has imposed a punishment of detention or imprisonment, or the convictedperson is already in custody for any other reason, the convicted person is to be given intothe custody of the escort until delivered into custody of the officer in charge of the detentioncentre or prison, as the case may be. Otherwise, the convicted person is free to leave thecourt unattended.

(2) When the Defence Force magistrate declares that the proceedings are completed, allpersons stand and pay the appropriate marks of respect.

ADFP 201 VOLUME 1

CHAPTER 11

PUNISHMENTS AND ORDERS

SECTION 1—INTRODUCTION

11.1 This chapter provides guidance on the punishments which may be imposed or orders whichmay 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 2—PUNISHMENTS GENERALLY

SENTENCING PRINCIPLES1

General

11.2 In determining punishment or other action under Part IV of the DFDA, a Service tribunalshould consider both the principles of sentencing applied by the civil courts, from time to time, and theneed 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 haveregard are summarised below:

a. The court must impose a sentence or make an order that is of a severity appropriate inall the circumstances of the case.

b. In addition to any other matters, the court must take into account such of the followingmatters as are relevant and known to the court:

(1) the nature and circumstances of the offence;

(2) other offences (if any) that are required or permitted to be taken into account;

(3) if the offence forms part of a course of conduct consisting of a series of Criminalacts of the same or a similar character—that course of conduct;

(4) the personal circumstances of any victim of the offence;

(5) any injury, loss or damage resulting from the offence;

(6) the degree to which the person has shown contrition for the offence;

(a) by taking action to make reparation for any injury, loss or damageresulting from the offence; or

(b) in any other manner;

(7) if the person has pleaded guilty to the charge in respect of the offence—thatfact;

(8) the degree to which the person has cooperated with law enforcement agenciesin the investigation of the offence or of other offences;

1 DFDA s. 70.


(9) the deterrent effect that any sentence or order under consideration may have onthe person;

(10) the need to ensure that the person is adequately punished for the offence;

(11) the character, antecedents, age, means and physical or mental condition of theperson;

(12) the prospect of rehabilitation of the person;

(13) the probable effect that any sentence or order under consideration would haveon any of the person's family or dependents.

c. In addition, the court must have regard to the nature and severity of the condition thatmay be imposed on, or may apply to, the offender, under that sentence or order.

d. Before imposing a fine, the court must take into account the financial circumstances ofthe person, in addition to any other matters that the court is required or permitted totake into account.

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, indetermining what punishment to impose on a convicted person, must also have regard to the need tomaintain discipline in the Defence Force. In this matter, the officers who constitute Service tribunalsare entitled to apply their own Service knowledge, experience and common-sense to thecircumstances of particular cases.

SCALE OF PUNISHMENTS

11.5 The only punishments which may be imposed by a Service tribunal on a convicted person,other than a person who is undergoing a sentence of detention,2 are those which are specified in s.68of the DFDA. In decreasing order of severity these punishments are:

a. imprisonment for life;

b. imprisonment for a specific period;

c. dismissal from the Defence Force;

d. detention for a period not exceeding 2 years;

e. reduction in rank;

f. forfeiture of Service for the purposes of promotion;

g. forfeiture of seniority;

h. fine, being a fine not exceeding:

(1) where the convicted person is a member of the Defence Force — the amount ofhis pay for 28 days; or

(2) in any other case—$500;

2 As to punishment of persons who are convicted of 'custodial' offences whilst undergoing detention seeparagraph 11.54 et seq.


i. severe reprimand;

j. restriction of privileges for a period not exceeding 14 days;

k. stoppage of leave for a period not exceeding 21 days;

l. extra duties for a period not exceeding 7 days;

m. extra drill for not more than 2 sessions of 30 minutes each per day for a period notexceeding 3 days; and

n. reprimand.

11.6 A Service tribunal may impose a punishment or a combination3 of punishments from theabove list, but each punishment which is imposed must be in respect of a particular conviction and noother conviction4.

LIMITATIONS ON PUNISHMENTS

11.7 The punishments which may be imposed in any particular case are limited, first, by themaximum punishment which is specified in the provision creating the offence and, secondly, by thenature 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 punishmentprovided in the legislation creating the offence.5 For example, where a person is convicted of theTerritory offence of indecent assault on a male (under s 81 of the Crimes Act (NSW) in its applicationto 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 to60 of the DFDA) may attract a maximum punishment not higher than that specified in the relevantsection creating the offence. For example, where a person is convicted of a charge of assault unders.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 2and 3 of the DFDA.6 Schedule 2 sets out the punishments which may be imposed by a court martial orDefence Force magistrate; Schedule 3 sets out the punishments which may be imposed by superiorsummary authorities, commanding officers and subordinate summary authorities. The punishmentswhich may be imposed by these various kinds of Service tribunal, the convicted persons on whomthey may be imposed and specific limitations in respect of a particular tribunal are shown in tabularform in Table 1 below. Additionally, the powers of punishment of each kind of summary authority areshown separately in Chapter 7.7

3 DFDA s.3(1) defines ‘punishment’ as including a combination of punishments.

4 DFDA s.66(1).

5 DFDA s.61.

6 The punishments which may be imposed on detainees are contained in Schedule 3A and aredescribed in paragraph 11.54.

7 See paragraphs 7.10 and 7.11 (subordinate summary authority) paragraphs 7.19 to 7.25 (commandingofficer), and paragraphs 7.39 and 7.40 (superior summary authority).


COMMENCEMENT OF PUNISHMENTS

11.11 As a general rule a punishment or order takes effect forthwith and a punishment for aspecific period begins to run from the beginning of the day on which it is imposed;8 punishment for aspecific period means imprisonment for a specific period, detention, restriction of privileges, stoppageof 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 inwhich they are recorded9 or where a reviewing authority determines when a punishment or order is totake effect.10

11.12 Where a summary authority imposes a punishment for a specific period, he or she mayimpose the punishment for a period beginning on a specified day no later than 14 days after the dayon which the punishment is imposed11.

TABLE 1

TABLE OF PUNISHMENTS WHICH MAY BE IMPOSED BY SERVICE TRIBUNALS

Punishments Tribunal Which MayImpose

Convicted Person on WhomPunishment May be Imposed

Limitations on Tribunal Powers

IMPRISONMENT Court martial

Defence Forcemagistrate

Any member of the DefenceForce

A person who is not a memberof the Defence Force

Restricted court martial or DefenceForce magistrate may not imposeimprisonment for life orimprisonment for a period exceeding6 months.

DISMISSALFROM THEDEFENCEFORCE

Court martial



DETENTIONFOR A PERIODNOTEXCEEDING 2YEARS

Court martial


A member of the Defence Forcewho is not an officer

A restricted court martial or DefenceForce magistrate may not imposedetention for a period exceeding 6months.

Commanding officer Sailor below rank of leadingseaman

Detention may not exceed 42 days

Commanding officer Soldier below rank of lance-corporal or airman below rank ofcorporal on active Service

Elective punishment (1) Detentionfor period exceeding 14 days but notexceeding 42 days.

Other punishment (2) Detention for aperiod not exceeding 14 days.

Commanding officer Soldier below rank of lance-corporal or airman below rank ofcorporal not on active Service

Elective Punishment (1) Detentionfor a period exceeding 7 days butnot exceeding 28 days.

Other Punishment (2) Detention fora period not exceeding 7 days

REDUCTION INRANK

Court martial



The rank to which member may bereduced is not specified.

Commanding officer Sailor, not higher in rank thanchief petty officer (3) nor lowerthan leading seaman

May be reduced in rank by not morethan one rank.

Commanding officer Soldier, not higher in rank thanstaff sergeant (4) nor lower thanlance corporal


8 DFDA s.171(1).

9 DFDA s.171(2).

10 DFDA s.168.

11 DFDA s.171(1A).





REDUCTION INRANK -continued

Commanding officer Airman, not higher in rank thanflight sergeant (5) nor lower thancorporal



See paragraph 11.35.

FORFEITUREOF SERVICEFORPURPOSES OFPROMOTION

Court martial


Member of Defence Force whois an officer

No statutory limitation. Newcommencing date of officer's Serviceis to be specified.

FORFEITUREOF SENIORITY

Court martial



No statutory limitation. New senioritydate is to be specified.

Commanding officer Non-commissioned officer ofNavy, Army and Air Force (as for'Reduction in Rank' above)

Sailor below rank of leadingseaman

No statutory limitation. New senioritydate is to be specified.

FINE Court martial


Any member of the DefenceForce;


Not in excess of amount of 28 dayspay.

Not in excess of $500.

Superior summaryauthority

Officer of or below rank of major,lieutenant commander orsquadron leader or warrantofficer

Elective Punishment (1) In excess ofamount of pay for 7 days but not inexcess of amount of pay for 14 days

Other punishment (2) Not in excessof amount of pay for 7 days.


Commanding officer


Elective Punishment (1) Exceeding$100 but not exceeding $250.

Other Punishment (2) Not exceeding$100.

Commanding officer Officer of or below rank oflieutenant in the Navy, captain inthe Army or flight lieutenant orwarrant officer.

Elective punishment (1) excess ofamount of pay for 7 days but not inexcess of amount of pay for 14 days


Commanding officer Sailor not higher in rank thanchief petty officer nor lower thanleading seaman

Not in excess of amount of pay for28 days.

Commanding officer Soldier, not higher in rank thanstaff sergeant nor lower thanlance-corporal, or airman, nothigher in rank than flightsergeant nor lower than corporal

Elective punishment (1) In excess ofamount of pay for 7 days but not inexcess of amount of pay for 14 days.


Commanding officer Soldier below rank of lance-corporal or airman below rank ofcorporal– on active Service



Commanding officer Soldier below rank of lancecorporal or airman below rank ofcorporal– not on active Service


Other punishment (2) Not in excessof amount of pay for 7 days

Commanding officer Sailor below rank of leadingseaman.

Not in excess of amount of pay for28 days

Subordinate summaryauthority (certain navalofficers only)(6)

Sailor of or below rank of leadingseaman

Not in excess of amount of pay for 7days.

All other subordinatesummary authorities

Officer cadet


Soldier or airman of or belowrank of corporal

Not in excess of amount of pay for 3days.





SEVEREREPRIMAND

Court martial




Officer of or below rank oflieutenant commander, major orsquadron leader or warrantofficer

Commanding officer Officer of or below rank oflieutenant in the Navy, captain inthe Army or flight lieutenant orwarrant officer or any othermember of the Defence Forcewho is not an officer


Sailor of or below the rank ofleading seaman

All other subordinatesummary authorities.

Officer cadet



RESTRICTIONOF PRIVILEGESFOR PERIODNOTEXCEEDING 14DAYS

Commanding officer Officer cadet


Soldier below rank of lance-corporal

Airman below rank of corporal





Any other subordinatesummary authority

Officer cadet




Privileges may be restricted for amaximum period of 7 days.


STOPPAGE OFLEAVE FORPERIOD NOTEXCEEDING 21DAYS


Sailor of or bellow rank of chiefpetty officer

See paragraph 11.48




Other subordinatesummary authorities

Officer cadet




Leave may be stopped for maximumperiod of 7 days.


EXTRA DUTIESFOR A PERIODNOTEXCEEDING 7DAYS(7)






Subordinate summaryauthority (certain navalofficers only) (6)







EXTRA DUTIESFOR A PERIODNOTEXCEEDING 7DAYS(7)-continued


Officer cadet





EXTRA DRILLFOR A PERIODNOTEXCEEDING 3DAYS (8)




See paragraph 11.50

Subordinate SummaryAuthority




See paragraph 11.50





See paragraph 11.50

REPRIMAND Court martial




Officer of or below rank oflieutenant commander, major orsquadron leader or warrantofficer

Commanding officer Officer of or below rank oflieutenant in the Navy, captain inthe Army or flight lieutenant orwarrant officer or any othermember of the Defence Forcewho is not an officer

Subordinate summaryauthority (certain navalofficers only) (6)


Any other subordinatesummary authority (bothtypes)

Officer cadet

Sailor of or below the rank ofleading seaman


Notes

(1) 'Elective' punishments are punishments which may be imposed by a commanding officer or superiorsummary authority only after an accused person has been offered the right to elect trial by court martial orDefence Force magistrate but elects to be tried by a commanding officer or superior summary authority, asthe case may be. The accused is to be given the right of election where, in the course of a summary trialbefore a commanding officer or a superior summary authority, the commanding officer or superiorsummary authority is of the opinion that the evidence is sufficient to support the charge and that in theevent of his convicting the accused he is likely to impose an elective punishment.

(2) 'Other' punishments are punishments other than elective punishments. Other punishments may beimposed in any case before a commanding officer or superior summary authority where an accusedperson is not offered the right to elect trial by court martial or Defence Force magistrate and is convicted.

(3) In effect this is the definition of non commissioned officer in the Navy (see DFDA s 3(1)).

(4) In effect this is the definition of non commissioned officer in the Army (see DFDA s 3(1)).

(5) In effect this is the definition of non commissioned officer in the Air Force (see DFDA s 3(1)).


(6) The DFDA provides for 2 different types of subordinate summary authority. The first is applicable to theNavy and then only to a naval officer who is of or above the rank of commander or otherwise is theExecutive Officer of a naval ship or establishment and is of or above the rank of lieutenant. The secondtype of summary authority is applicable to the Army and the Air Force in all relevant cases and, in theNavy, is applicable to subordinate summary authorities such as officers-of-the-watch or officers-of-the-day.

(7) Officer cadets (who are midshipmen) may only be sentenced for extra duties for a period not exceedingthree days.

(8) Officer cadets (who are midshipmen) may not be sentenced to the punishment of extra drill.

The difference between midshipmen and officer cadets was an unintentional consequence of an amendment tothe Defence Force Discipline Regulations. This will be corrected when the regulations are next raised.

SECTION 3—NOTES ON PUNISHMENTS

IMPRISONMENT

General

11.13 To sentence a person to imprisonment is to order him to be deprived of his liberty byconfinement. Imprisonment is generally to be regarded as a punishment of last resort where no othersanction would achieve the objectives contemplated by law.12 In the case of a member of the DefenceForce the punishment of imprisonment may serve two purposes: first, it may deter the commission ofsimilar serious Service offences by members of the Defence Force and, secondly, it may punish anoffender in a manner which, in the opinion of a Service tribunal, is appropriate to the crime which hasbeen committed. A third objective of imprisonment in the context of criminal offenders in the civiliancommunity 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 punishmentmust also be accompanied by the punishment of dismissal from the Defence Force.13 Where it is likelythat a member of the Defence Force could be rehabilitated so as to render good Service in the future itmay 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 ofimprisonment, 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 andthen only in respect of the most serious Service offences; for example, aiding the enemy with intent toassist the enemy,14 communicating with the enemy with intent to assist the enemy,15 mutiny inconnection with operations against the enemy16 or murder.17

11.15 The punishment of life imprisonment imposed by a Service tribunal does not take effectunless approved by a reviewing authority.18

12 Parliamentary Paper No. 123/80 —Law Reform Commission 'Sentencing of Federal Offenders' PartNo. 15 AGPS.

13 DFDA s.71(1).

14 DFDA s.15(3).

15 DFDA s.16 (3).

16 DFDA s.20(2).

17 DFDA s 61 and s 18 of Crimes Act (NSW) in its application to the Jervis Bay Territory.

18 DFDA s.172(1).


Imprisonment for a Specific Period

11.16 A general court martial may impose imprisonment for a fixed period or for any period notexceeding the maximum period provided by the legislation creating the offence. A restricted courtmartial 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 approvedby a reviewing authority.19

Miscellaneous Aspects of Punishment of Imprisonment

11.18 Where a Service tribunal imposes a punishment of imprisonment for a specific period for aService offence and also a punishment of life imprisonment for another Service offence, thepunishments are to be concurrent.20 Where a Service tribunal imposes two or more punishments ofimprisonment for a period they are to be served concurrently unless the tribunal orders that thepunishments be served cumulatively;21 however, where a tribunal orders that the punishment beserved cumulatively the total period of imprisonment may not exceed the maximum period allowed forany offence of which the accused has been convicted.22 For example, if a Service tribunal imposesimprisonment for two months in respect of one Service offence and imprisonment for three months inrespect of another Service offence committed by the same person, the person will serve three monthsin prison unless the tribunal orders that the punishments be served cumulatively, in which case he willserve five months in prison. An order that punishments be served cumulatively may be quashed orrevoked by a reviewing authority if he considers it to be wrong in law or excessive.23 Finally, where aService tribunal imposes a punishment of imprisonment on a convicted person who is already subjectto a punishment of detention (whether or not such punishment has been suspended) the punishmentof detention (or part of that punishment which has not been served) is remitted.24

DISMISSAL FROM THE DEFENCE FORCE

11.19 The punishment of dismissal is appropriate in a case where a member is convicted of aService 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 (egtheft, fraud, indecent assault, selling drugs, violent assault and desertion) and is not normallyappropriate for most purely Service offences such as absence without leave. Before imposing thispunishment, a Service tribunal should give careful consideration to whether the offender, if given alesser punishment, is likely to become an effective member of the Defence Force. Where there arereasonable grounds for expecting the offender to be rehabilitated, the tribunal should impose thepunishment of detention (see paragraph 11.22). A tribunal should also have regard to the fact thatdismissal is a dishonourable form of discharge which may render a person ineligible for certain typesof employment outside the Defence Force as well as being likely to cause immediate financial loss tothe offender.25

19 DFDA s.171(1).

20 DFDA s.74(3).

21 DFDA s.74(4).

22 DFDA s.74(5).

23 DFDA s.162.

24 DFDA s.82.

25 Also note paragraph 11.13; where an offender is sentenced to imprisonment he must also bedismissed from the Defence Force.


11.20 The punishment of dismissal from the Defence Force does not take effect unless approvedby a reviewing authority.26

11.21 A person on whom a punishment of dismissal has been imposed may be kept in custodypending approval of the punishment by a reviewing authority.27

DETENTION

General

11.22 The punishment of detention involves the confinement of an offender in military custody inone of the places authorised for the purpose.28 This punishment is intended to serve three purposes:to deter members of the Defence Force from committing further offences, to punish offenders and torehabilitate offenders so that on completion of their time in detention they will be able to render furthereffective Service to the Defence Force. Detention should be imposed in preference to imprisonmentunless an offender has already undergone one or more sentences of detention without effect.

11.23 Detention shall not29 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 subjectto a punishment of detention (whether or not the detention has been suspended) the punishment ofdetention is remitted.30 Detention cannot be imposed on a member who at the time of conviction hasnot attained 18 years of age.31

11.24 A Service tribunal shall not impose upon a non commissioned officer whom it has convictedof a Service offence a punishment of detention unless the tribunal also imposes the punishment ofreduction in rank to a rank below non commissioned rank.32

11.25 The punishment of detention when imposed by a summary authority does not take effectunless approved by a reviewing authority.33 A person on whom a punishment of detention is imposedby a summary authority may be kept in custody pending approval by a reviewing officer of thepunishment and, if the punishment is approved, any day on which the person was so kept in custodycounts as a day of detention.

Periods of Detention

11.26 Where a tribunal imposes two periods of detention in respect of separate Service offencesagainst a convicted person, they are to be served concurrently unless the tribunal orders that the twoperiods are to be cumulative.34 Where the tribunal orders that the periods of detention are to becumulative, the total period imposed may not exceed two years when imposed by a general court

26 DFDA s. 172(1).

27 DFDA s.172(4).

28 See DFD Regulations.

29 See DFDA s.71(3).

30 DFDA s.82.

31 DFDA s.71(2).

32 DFDA s.71(1A).

33 DFDA s.172(2).

34 DFDA s.74(1), (2) and (3).


martial, or six months when imposed by a restricted court martial or Defence Force magistrate.35 Inview of an opinion which has been provided by the Judge Advocate General, it is now established thata commanding officer's powers of punishment are limited to the maximum non-elective punishmentshown in Schedule 3 of the Act where the accused is not offered a right to elect either trial orpunishment by Court Martial as may be appropriate in the circumstances. This is so whether theaccused faces one or a number of charges. For example, in the case of a member belownon-commissioned rank in the Army who at the time that he committed two Service offences of whichhe has been convicted was not on active Service, it is not open to a commanding officer to imposecumulative sentences of seven days detention on each charge without offering the member a right ofelection. In any event the maximum cumulative sentence that may be awarded must not exceed themaximum elective punishment specified in Schedule 3 of the Act. Notwithstanding the maximumperiods of detention allowed by law, as the nature of detention is extremely rigorous, it should notgenerally 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 tobe suspended. While the suspension remains in force the punishment does not begin and may not beput into execution.36 In the event that a tribunal imposes two or more punishments of detention inrespect of two or more Service offences, it may not make an order suspending one of the punishmentsand not the other.37 A suspended punishment of detention may be a most effective way of dealing witha young offender who previously had a good record but who merits a severe punishment. In such acase the Service tribunal should, generally, also impose one or more other lesser punishments inorder 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 mayrevoke a suspension; where it is not empowered to revoke the suspension a tribunal may recommendto a reviewing authority that the suspension be revoked. The reviewing authority may revoke thesuspension and, in that event, the punishment will take effect as if imposed at the time of revocation.38

Where a suspended punishment of detention has been imposed on a member of the Defence Forceand the suspension has not been revoked, the punishment is remitted (ie ceases to have effect) eitherwhen 12 months have elapsed from the date of suspension or when the person ceases to be amember of the Defence Force (whichever first occurs).39

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 ofsalary payable to a normal entry recruit undergoing basic recruit training, and is paid no allowancesother than Detention Allowance, provided for under a determination made under the Defence Act. SeeReg 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 areattached to the offender’s former rank) and financial loss and should only be imposed where the

35 DFDA s.74(5).

36 DFDA s.78(1) and (3).

37 DFDA s.78(2).

38 DFDA s.80.

39 DFDA s.81.


Service tribunal is satisfied that the offender is unfit, by reason of the offence of which he has beenconvicted, to remain in his present rank. In considering whether to impose reduction in rank, a Servicetribunal should also have regard to the financial loss which is likely to follow as a consequence of thepunishment. 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 elapseafter reduction in rank before a person can be re-promoted to his original rank, it is possible tocalculate with reasonable accuracy the minimum direct financial loss which will be sustained by theoffender.

11.31 Other elements of the total financial cost are not so easily quantified; for example, the loss ofincome caused to an offender because of his non-promotion to the next higher rank, when he mightreasonably have expected to have been promoted, or the loss of pension entitlements. Where the lossis able to be assessed with reasonable certainty it should be; however, a Service tribunal is notexpected to put a figure on potential losses due to non-promotion etc although it may have regard tosuch matters in general terms. Where the financial loss to an offender is likely to be high a Servicetribunal should consider whether a substantial fine together with any other lesser punishments shouldbe 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 aService tribunal considers, in the circumstances of a particular case, that reduction by one rank is notsufficient (whether imposed as a single punishment or in conjunction with other punishments) it shouldconsider imposing the punishment of dismissal. In reducing an officer in rank, the Service tribunalmust specify a date of seniority in that rank which is not later than the date on which the punishmentwas imposed.40

11.33 Where an officer holds acting or temporary rank he is deemed for the purposes of the DFDAto hold that rank41; thus where an officer holding acting rank is reduced by one rank he is reduced onlyto his substantive rank. In this situation it may, therefore, be appropriate to reduce the officer by tworanks so that in effect he will be one rank lower than his substantive rank. Additionally, where anofficer holds a rank temporarily that is at least two ranks higher than his substantive rank he may bereduced 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 magistratemay reduce in rank any member of the Defence Force who is not an officer. Although there is no limitspecified in the DFDA as to the rank to which such a member may be reduced, the policy of reducingby 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 rankare as discussed in paragraph 11.33 in relation to officers. Where a Service tribunal imposes reductionin rank on any member, it must specify a seniority date in that rank which is not later than the date onwhich the punishment was imposed.42

11.35 By Commanding Officers. A commanding officer of the Navy or Air Force may impose thepunishment of reduction in rank by not more than one rank upon a non-commissioned officer of thoseServices. 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.

41 DFDA s3(5), (6).



leading seaman) may be reduced in rank by a commanding officer. A commanding officer of the Armymay reduce a non commissioned officer who is of the rank of corporal by two ranks43.

FORFEITURE OF SERVICE FOR THE PURPOSES OF PROMOTION

11.36 Forfeiture of Service for the purposes of promotion is intended to affect an officer'ssubsequent promotion where eligibility for promotion is based on Service in rank. This punishmentdoes not affect the pay of any officer on whom it is imposed. The punishment affects the rank held atthe time of conviction. Where the whole of the officer's Service in that rank is affected, and Service inthe next lower rank also counts towards promotion, Service in the lower rank may also be forfeited. AService tribunal should state the period of Service that is forfeited or specify a date that is to bedeemed to be the commencing date of the officer's Service in the rank; it is preferable to specify thatlatter to avoid errors in calculation.

11.37 Before imposing forfeiture of Service for purposes of promotion, a Service tribunal should besatisfied that the nature of the offence on which an officer has been convicted should preclude himfrom being considered for promotion for the time specified. A tribunal should also have regard to thelikely financial loss which will be sustained by the offender as a consequence of the punishment. Incases where the officer's promotion was almost certain to have occurred on a known date, thisfinancial loss may be assessed accurately. In other cases, where promotion is more uncertain, ‘bestand 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 aconsequence of forfeiture of Service is likely to be high, a Service tribunal should consider whetherjustice might not be done equally well by the imposition of a substantial fine. Another factor which aService tribunal should consider, in relation to forfeiture of Service, is whether the trial and convictionof an officer of a Service offence will not, of itself, have a significant adverse effect on his futurepromotion.

FORFEITURE OF SENIORITY

11.38 The punishment of forfeiture of seniority is intended to affect certain members' subsequentpromotion where promotion is based on seniority. This punishment does not affect the pay of anymember on whom it is imposed. The punishment only affects seniority in the rank held by the memberat time of conviction. In imposing forfeiture of seniority, a Service tribunal must specify the newseniority date, which is to be not later than the date on which the punishment was imposed.44 Thematters which a Service tribunal should consider before imposing this punishment are the same asthose 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 nottake effect unless approved by a reviewing authority.45

FINES

General

11.40 A Service tribunal may impose a fine in accordance with the scale set out in Table 1. Theamount of the fine is to be determined by the Service tribunal after consideration of all relevantaspects of the case, especially the offender's capacity to pay46 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 lancecorporal. Prior to July 1995, a commanding officer in the Army, being able to reduce a noncommissioned officer by only one rank, was unable to reduce a corporal to the ranks irrespective of theseriousness of the offence. All commanding officers may now reduce a CPL(E) to the rank of PTE(E).


45 DFDA s.172(2).

46 DFDA s.70(3).


punitive effect. When imposing a fine a Service tribunal is required to specify the amount of moneythat is the amount of the fine47 and whether the fine is to be payable in one sum or by instalments.48

Where a Service tribunal imposes two or more fines in respect of two or more offences, the sum of thefines must not exceed the amount of the most severe fine that the tribunal could impose on theoffender for any one of the Service offences of which he has been convicted.49 When imposed by asummary authority a fine that exceeds the amount of a member's pay for 14 days does not take effectunless approved by a reviewing authority.50

11.41 References to the amount of pay of a member are explained as the amount of salarypayable to the member under determinations made under section 58H of the Defence Act 190351. Thismeans that the amount is the gross salary payable to the member at the date of conviction, but doesnot include any allowances, such as Service Allowance and Uniform Maintenance Allowance. Nodeductions such as taxation instalments, DFRDB or Rations and Quarters payments should be takeninto account.

Suspension and Remission of Fines

11.42 A Service tribunal may order that a fine be suspended52. 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 besuspended. When a suspension order is in force, the fine, or such part of it as is specified by thetribunal, does not take effect.53 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, atribunal may recommend to a reviewing authority that the suspension be revoked. The reviewingauthority may revoke the suspension and, in the event, the punishment will take effect as if it had beenimposed at the time of revocation.54 Where a suspended fine has not been revoked, the punishment isremitted (ie ceases to have effect) either when 12 months have elapsed from the date of suspensionor when the person ceases to be a member of the Defence Force (whichever first occurs).55

Advantages and Limitations

11.43 A fine has both a deterrent and punitive effect. It also has the particular advantages of beinga punishment whose effect is immediately apparent to an offender and which can be varied in amountfrom a token sum in minor cases to a substantial sum (ie 28 days' pay) in serious cases. A fine shouldnot 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 whichare involved in each of these punishments. Where a suspended fine has been imposed a lesserpunishment should also be imposed in order that justice may be seen to have been done.

47 DFDA s.73(1).

48 DFDA s.85.

49 DFD A s.73(2).

50 DFDA s.172(2).

51 DFD Regulation 31.

52 The 1995 amendment to the DFDA s.79 increases sentencing flexibility by ensuring that Servicetribunals can suspend the payment of any fine (either in whole or in part).

53 DFDA s. 79.

54 DFDA s.80.

55 DFDA s.81.


Recovery of Fines etc

11.44 Where a fine has been imposed on a person under the DFDA or the Defence ForceDiscipline Appeals Act the amount that is due and payable may be recovered by deduction from anypay, wages or salary payable to the person by the Commonwealth.56 The amount of a fine may alsobe recovered by action in a civil court as a debt due to the Commonwealth; for this purpose anauthorised officer may issue a certificate stating the amount of the fine which is due and payable by aspecified person and that certificate is admissible as evidence in a civil court.57

SEVERE REPRIMAND/REPRIMAND

11.45 Severe reprimands and reprimands have historically been imposed as punishments onmembers 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 severepunishment,58 after a fine, and a reprimand is the least severe, after restriction of privilege, stoppageof 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 DefenceForce. The effect of these punishments varies according to the Service and rank of the offender but ingeneral it may be said that they are likely to have same adverse effect on a member's future careerand may also be taken into account by a Service tribunal in determining the punishment to be imposedon a person who is convicted of a Service offence on a later occasion. Instead of imposing either ofthese punishments, it may be appropriate for a Service tribunal to make an order that the convictionbe recorded as a conviction without a punishment.59

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 Forcemagistrate nor may they be imposed on officers (other than officer cadets) or non-commissionedofficers (except that a commanding officer may impose stoppage of leave on a non-commissionedofficer in the Navy).60 The ‘consequences’ which flow on from any of these minor punishments arespecified in the DFD (Consequences of Punishments Rules).61 The relevant parts are summarised inparagraphs 11.47 to 11.52.

Restriction of Privileges

11.47 The consequences that flow from the imposition of the punishment of restriction of privilegesare as follows:

56 DFDA s.174(1).

57 DFDA s.174(2) and s.175.


59 Under DFDA s.75(1); see paragraph 11.60.

60 Also a subordinate summary authority who is a naval officer of the rank of commander or who is of orabove the rank of lieutenant and holds an appointment of Executive Officer of a ship or establishmentmay impose stoppage of leave on a leading seaman.

61 See Part 4 of Volume 2.


a. The member shall not leave his ship, unit or establishment, except in the course ofduty or when leave is granted to the member by his commanding officer.62

b. The member may not be present at any recreation or entertainment in the ship, unit orestablishment or consume any alcohol.

c. In accordance with an order given by an authorised member,63 the member is to:

(1) perform additional duties:

(a) for a period not exceeding four hours outside working hours in a workingday;

(b) for a period not exceeding eight hours in a non-working day;

(2) when the member cannot be effectively employed on extra duties—perform drillfor a period not exceeding one hour each day;

(3) report outside working hours, between 0600 hours and 2300 hours but not moreoften than once in every two hours, to a person specified by the authorisedmember;

d. Outside working hours, the member shall wear working dress or dress of the day (asappropriate).

A commanding officer may moderate the consequences of extra work and drill, reporting at regularintervals and wearing of dress of the day or working dress, in such manner as he considersappropriate in the particular circumstances of each case. A commanding officer may not moderate theconsequences of the prohibition on attendance at recreation held on the unit etc and on consumptionof 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 ofduty or when leave is granted to the member by his commanding officer.64

b. Outside working hours the member shall, in accordance with an order given to him byan authorised member, report between 0600 hours and 2300 hours but not morefrequently than once every two hours to a person specified by the authorisedmember.65

c. Outside working hours, the member shall wear working dress or dress of the day (asappropriate).

62 The commanding officer may grant leave when he is satisfied that it is appropriate to do so. See CDFDirection in Part 4 of Volume 2.

63 An authorised member means a member of the Defence Force authorised for the purpose of theserules by the standing, routine or daily orders of the unit, establishment or ship or, in writing, by acommanding officer.

64 A commanding officer may grant the member leave of absence if he is satisfied that it is appropriate todo so—DFDA s.68(4).

65 An authorised member means a member of the Defence Force authorised for the purpose of theserules by the standing, routine or daily orders of the unit, establishment or ship or, in writing, by acommanding officer.


Extra Duties

11.49 The consequences of the punishment of extra duties are that in accordance with an ordergiven by an authorised member, the member is:

a. to perform additional duties outside normal working hours for a period not exceedingfour hours in each day66; or

b. when the member cannot be effectively employed on extra duties - to perform drill fora period not exceeding one hour each day;

c. outside working hours, to wear working dress or dress of the day (as appropriate).

The above consequences may be moderated by the commanding officer as he thinks appropriate andhaving regard to any directions issued in writing by a Service chief.67

Extra Drill

11.50 Extra drill is a traditional punishment in the Services. Whether conducted as part of trainingor 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 laiddown for the performance of drill. These are:

a. the member shall perform drill only in accordance with an order given by an authorisedmember;

b. 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 thedrill is performed;

c. the member shall not be required to perform drill for a continuous period in excess of30 minutes; and

d. the member shall not be required to perform periods of drill more frequently than fourhourly intervals68.

Miscellaneous Aspects of ‘Minor’ Punishments

11.51 Where an officer imposes two or more ‘minor’ punishments in respect of two or moreoffences they are to be served concurrently.69 However, where the minor punishments which areimposed are of the ‘same kind’ an officer may order that they be served cumulatively provided the totalperiod of the punishments does not exceed the maximum punishment which may be imposed by theofficer in respect of one offence.70 For example, if a commanding officer imposes restriction ofprivileges for eight days in respect of one offence and stoppage of leave for 12 days in respect ofanother offence, the latter punishment is served concurrently with the former; at the end of eight daysof restriction of privileges the offender continues to serve the punishment of stoppage of leave for afurther four days. On the other hand, if the officer imposed stoppage of leave for 12 days in respect ofthe first offence and stoppage of leave for 12 days in respect of the other offence, ie a punishment ofthe 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 8—Volume 2 Part 4.

67 DFDA s.68(3); no directions in this matter have been issued by a Service chief.

68 See DFD (Consequences of Punishment) Rules, Rule 13— Volume 2 Part 4.

69 DFDA s.74(2).

70 DFDA s.74(5).


ordered that the punishments be served cumulatively. In this event the offender would serve 21 daysstoppage of leave, ie the maximum which may be imposed by the officer.71

11.52 Where two or more ‘minor’ punishments are imposed in respect of the same offence theyalways operate concurrently, for the reason that they take effect forthwith. 72 A Service tribunal maynot order that punishments which have been imposed in respect of the same offence be servedcumulatively.

PUNISHMENT OF DETAINEES

Custodial Punishments

11.53 Certain summary authorities may impose ‘custodial punishments’ on detainees who commitcertain offences (see below) whilst undergoing the punishment of detention. The custodialpunishments which may be imposed are:73

a. By a Commanding Officer. 74 A commanding officer may impose:

(1) Segregated confinement for a period not exceeding 10 days

(2) Confinement to cell for a period not exceeding 10 days.

(3) Extra drill for a period not exceeding six days.

(4) Restriction of custodial privileges for a period not exceeding 14 days.

b. By a Subordinate summary authority.75 A subordinate summary authority may impose:

(1) Segregated confinement for a period not exceeding three days.

(2) Confinement to cell for a period not exceeding three days.

(3) Extra drill for a period not exceeding three days.

(4) 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(Consequences of Punishments) Rules.76 The officer in charge of a detention centre may moderatethe consequences of a custodial punishment which has been imposed on a detainee, in such manneras he thinks appropriate in the circumstances having regard to any directions in writing by a chief ofstaff.77

71 In this example the officer imposing the punishment is assumed to be commanding officer and theperson on whom the punishment is imposed is assumed to be a non-commissioned officer in the RAN.

72 DFDA s.171(1).

73 Schedule 3A to DFDA.

74 Schedule 3A to DFDA - Table A.

75 Schedule 3A to DFDA - Table B.

76 See Part 4 of Volume 2.

77 DFDA s.68A(3).


Offences which Attract Custodial Punishments

11.55 Custodial punishments may be imposed where a person has been convicted of a custodialoffence or another specified offence. Custodial offences are created by s.54A of the DFDA, which isset out below:

‘54A. (1) A detainee who -

(a) makes any unnecessary noise;

(b) commits a nuisance;

(c) is idle, careless or negligent at work;

(d) without lawful authority, converses or otherwise communicates with anotherperson(whether or not a detainee);

(e) without lawful authority, gives any thing to, or receives any thing from, anotherperson (whether or not a detainee);

(f) without lawful authority, has in his possession any thing; or

(g) 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 acustodial punishment are: absence from duty (s.23); assault on a superior officer (s.25); insubordinatebehaviour with respect to a superior officer (s.26); disobedience of command (s.27); failure to complywith general order (s.29); assault, insulting or provocative words etc (s.33); destruction of or damageto Service property (s.43); escape from custody (s.51); prejudicial behaviour (s.60) or any offence thatis an ancillary offence in relation to any of the foregoing offences.78

11.57 The summary authority may impose a custodial punishment (and no other) on a detaineewho is convicted of a custodial offence. However, where a detainee is convicted of any of the offenceslisted in paragraphs 11.55 and 11.56 the summary authority has the choice of a custodial or anordinary punishment (ie a punishment available to a Service tribunal in respect of a person, other thana 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 whichthe detainee is undergoing a punishment of detention in a detention centre. 79 Where a custodialpunishment is imposed on a detainee it should not be included as part of the person's record ofoffences and must be disregarded by a Service tribunal when considering the punishment to impose inrespect of an offence committed by the person after the punishment of detention has been served.80

78 An ‘ancillary offence’ includes being an accessory after the fact, attempts, inciting the commission ofoffences and conspiracy. See Chapter 4 paragraph 4.73 and Annex C to Chapter 4.

79 DFDA s.71(5).

80 DFDA s.70(5).


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 actionunder Part IV of the DFDA81 This means, in effect, that the tribunal must either impose a punishmentor make an order which is authorised by Part IV of the DFDA or, in an appropriate case, impose apunishment and make an order. Some of the orders which may be made under Part IV have alreadybeen discussed in connection with the punishments with which they are associated, eg suspension ofdetention and suspension of fines.82 Other orders which may be made by a Service tribunal on aconvicted 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 anorder that the conviction be recorded as a conviction without punishment.83 Such an order may bemade either unconditionally or on the condition that the convicted person gives an undertaking to be ofgood behaviour for a period of 12 months.84

Matters to be Considered

11.61 In deciding whether to impose a conviction without punishment, a Service tribunal shouldhave regard to such matters as the character, previous record, age or health of the convicted personor to the trivial nature of the offence, the extenuating circumstances under which the offence wascommitted or to any other relevant matter.

First Offenders

11.62 A conviction without punishment may be appropriate in a case where a young soldier, sailoror airman has been convicted of a first offence of a minor nature. In such a case, provided that theService tribunal is of the belief that the offender is likely to have learned a salutary lesson as aconsequence of being charged and convicted, it should normally order that a conviction be recordedwithout punishment. Whether such an order should be made on condition that the offender undertakesto be of good behaviour for 12 months is a question on which the tribunal must exercise its discretionaccording to the circumstances of the case. As a general rule, a ‘bond’ should not be required exceptin relatively serious cases or where there is some likelihood that the offender will not be of goodbehaviour 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 aService tribunal of a Service offence that was committed within 12 months of giving the undertaking. Inthis situation, the Service tribunal who convicts the person of the later offence may impose apunishment on him (or make an appropriate order under Part IV of the DFDA) in respect of the offenceto which the undertaking related. However where a summary authority confiders that an electivepunishment should be imposed for the offence to which the undertaking related, he must give theperson an opportunity to elect to be punished by a court martial or Defence Force magistrate for thatoffence 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, aService 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).

82 See paragraphs 11.27 and 11.42.

83 DFDA s.75(1).

84 DFDA s.75(2).


failed to be of good behaviour. If it is not satisfied that the later offence of which the person has beenconvicted is sufficiently serious to constitute bad behaviour, the tribunal should take no action inrespect of the offence to which the undertaking related.

11.65 Once it is satisfied that the breach of undertaking merits punishment (or other action underPart IV) the tribunal should hear evidence in relation to the offence to which the undertaking related. Ineffect 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 fromwitnesses who gave evidence at the trial. The offender may give evidence himself or call witnesses togive 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 maymake 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 ofthe prosecution and may be made instead of or in addition to imposing a punishment or ordering that aconviction 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 prosecutiona Service tribunal may order that it be repaid or restored to its rightful owner.85

b. If any property (other than money) is obtained by the conversion or exchange of any ofthe stolen property, and is in the custody or control of the prosecution, a Servicetribunal may order that the property be delivered to the rightful owner of the stolenproperty.86 For example, ‘X’ steals $100 from ‘Y’ and uses the money to purchase awet 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’ ofstealing, 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 appropriateonly in a small number of cases where the convicted person is unable to makemonetary compensation by way of 'reparation'; see paragraph 11.68.

c. Where the convicted person exchanged the stolen property for other property from anidentified and innocent third person, a Service tribunal may order that the stolenproperty be restored to the original owner, and the property held by the Servicetribunal be returned to the third party. For example, ‘X’ steals a spear-gun from ‘Y’ andgives it to ‘Z’ in exchange for a wet suit; ‘Z’ is unaware that the spear-gun has beenstolen. In due course, the wet suit comes into the control and custody of theprosecution. 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’.

85 DFDA s.83(1)(a) and (b).

86 DFDA s.83(2).


Reparations

11.68 A Service tribunal is empowered under DFDA s.84 to order a convicted person to makefinancial reparation of a just amount to a person87 who sustained loss or damage as a consequence ofthe offence. Such an order may be made instead of or in addition to imposing a punishment orordering 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 propertyand to cover certain costs associated with personal injuries such as doctors' expenses and loss ofwages. In effect, reparations are analogous to ‘special damager’ in a civil court in that they areintended 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 personmay be required to pay to the Commonwealth an amount by way of reparation to cover the cost ofmedical treatment given to the victim at Commonwealth expense. However, no reparation should beordered for ‘loss of Service’ in respect of any period during which a Serviceman was unable to carryout his duties as a consequence of injuries caused by the convicted person. Any order to payreparations which is made by a Service tribunal does not affect any other right or remedy that aperson may have under the ordinary law in respect of any loss or damage occasioned by the Serviceoffence.88

Maximum Amounts Payable by Way of Reparation

11.71 A summary authority may order that a person pay by way of reparation an amount notexceeding the amount of the convicted person's pay for 14 days.89 A court martial or Defence Forcemagistrate may order reparation of any amount.90 In any case in which it orders that reparations are tobe paid, a Service tribunal may order payment to be made either in one sum or by instalments.91

Where a person is directed to pay reparations by instalments and default is made in payment, allinstalments then remaining unpaid thereupon become due and payable.92

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 effectunless approved by a reviewing authority.93 Also, even when these orders made by a court martial orDefence Force magistrate are approved by a reviewing authority, they are suspended until theexpiration of the period during which an appeal or an application for leave to appeal may be made tothe Defence Force Discipline Appeals Tribunal.94 If an application for leave to appeal or an appeal isduly lodged, the orders remain suspended until the application is finally dismissed or the appeal isfinally determined or abandoned.95 However, where title to the property in relation to which arestitution 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 Acts.22).

88 DFDA s.84(5).

89 DFDA s.84(2).

90 DFDA s.84(2).

91 DFDA s.84(3).

92 DFDA s.174(3).

93 DFDA s.172(3).

94 DFDA s.173(1)(a).

95 DFDA s.173(1)(b).


authority may direct that the restitution order take effect immediately.96 In the event that an appealagainst conviction is successful, a restitution order or reparation order that has been suspendedpending the appeal does not take effect.97

11.73 An amount that is due and payable under any reparation order may be recovered bydeduction from pay, wages or salary payable to the person by the Commonwealth and may be paid tothe person in whose favour the order was made.98 The amount may also be recovered by action in acivil court as a debt due to the person in whose favour the order was made.99

96 DFDA s.173(2).

97 DFDA s.173(3).

98 DFDA s.174(2)(a).

99 DFDA s.174(2)(b).

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 convictionsand punishments imposed by Service tribunals. The Act also provides for review on petition to areviewing authority and review by a Service chief. These various kinds of reviews operate separatelyfrom appeals to the Defence Force Discipline Appeal Tribunal (DFDAT) under the Defence ForceDiscipline Appeals Act (DFDAA).

12.2 The principal differences between appeals and reviews is that reviews are available inrelation to convictions and punishments imposed by all Service tribunals and are conducted by officersin the Defence Force who are appointed for the purpose; on the other hand, appeals to the DFDATare available only in relation to convictions by courts martial or Defence Force magistrates (DFM) andare heard by a tribunal consisting, usually, of not less than three judges who are appointed by theGovernor-General.

12.3 This chapter provides guidance on the avenues of review and the manner in which reviewsare to be conducted. It also examines the powers of reviewing authorities in relation to a wrongfulconviction or a wrongfully imposed punishment.

REVIEWING AUTHORITIES

12.4 A Service chief1 may by instrument in writing appoint an officer, or each officer included in aclass of officers, to be a reviewing authority for the purpose of reviewing the proceedings of Servicetribunals. The officer may be appointed to review the proceedings of all Service tribunals or those of aspecified kind.2 For example, a GOC or AOC or Flag Officer Commanding would, in the normal courseof events, hold an appointment as a reviewing authority for all Service tribunals. On the other hand anofficer of the rank of colonel or equivalent would probably be appointed as a reviewing authority onlyof summary proceedings.

12.5 Subject to any limitations created in the instrument of appointment, an officer who has beenappointed as a reviewing officer may exercise any of the powers and functions that are conferred onreviewing officers by the DFDA or regulations made under the Act.3 The specific functions and powersof reviewing officers are described in later paragraphs.

12.6 Although a reviewing officer is required to ‘review’ proceedings of Service tribunals, he is infact required to obtain a report on the proceedings from a legal officer and is bound by any opinion oflaw set out in the report.4

12.7 Proceedings before a court martial or DFM may be reviewed by the Authority who convenedthe court martial or referred the charge(s) to the DFM or may be reviewed by another reviewingauthority. Proceedings conducted by one Service may be reviewed by a reviewing authority of anotherService.

1 ie CDF, CN, CA or CAF

2 DFDA s.150

3 DFDA s.150



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 Serviceoffence he is required to send a record of the proceedings to his commanding officer. Thecommanding officer is required to review these proceedings and for that purpose is deemed to be areviewing authority, ie he may exercise the powers and functions of a reviewing officer.5 In the courseof reviewing the proceedings a commanding officer may, but is not obliged to, obtain a report from alegal officer. In the majority of simple cases a commanding officer should not need to obtain such areport.

12.9 After completing the review of the proceedings a commanding officer is required to send therecord of proceedings and a report of the results of that review to a legal officer who has beenauthorised to receive it.6 In turn, the legal officer may send the record and report to a reviewingauthority who is then required to review the record of proceedings as if it were a record of proceedingsof 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 officercompletes 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 areviewing authority. 7 The record of proceedings is also to be sent to a reviewing authority as soon aspracticable after a court martial or DFM acquits a person on the ground of unsoundness of mind orfinds that the person is unfit to stand trial by reason of unsoundness of mind.8 In respect of courtmartial and DFM convictions and punishments, the person that convened the court martial or referredthe 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 theconvening authority.

12.12 A reviewing authority is required to review the record of these proceedings as soon aspracticable after receiving it. Similarly, a reviewing authority is required to review any record ofproceedings of a subordinate summary authority which has been transmitted to him after preliminaryreview by a commanding officer.9

12.13 Except in respect of subordinate summary authority convictions, a reviewing authority mustobtain and consider a report from a legal officer before conducting a review. If a conviction or directionunder sections 145(2) or 145(5) has been made by a court martial or DFM, the legal report must beprovided by a legal officer that has been appointed by a Service chief on the recommendation of theJudge Advocate General (JAG).10 The Judge Advocate Administrator (JAA) is responsible fornominating a legal officer to provide a report in respect of the review of courts martial and DFMconvictions and directions. In all other cases, the legal report in respect of an automatic review maybe provided by any ADF legal officer. There is no requirement for that legal officer to be nominated by

5 DFDA s.151(2).

6 The legal officer referred to may or may not be the same legal officer who is authorised in writing tomake reports to a reviewing authority on the proceedings of Service tribunals.

7 DFDA s.152(1).

8 DFDA s.152(1)

9 DFDA s.152(2).

10 DFDA s.154(1).


the JAA. A reviewing authority is bound by any opinion on a question of law set out in a reportobtained from a legal officer. However, he may refer the report to the JAG or, if the JAG directs, to aDeputy JAG for a further opinion.11 The JAG or Deputy JAG may dissent from the opinion expressedby the legal officer and if he does so he must furnish to the reviewing authority his own opinion on thequestion. This opinion is binding on the reviewing authority.12

12.14 Where, at any time before or after a reviewing authority commences to review proceedingsof a Service tribunal that have resulted in a conviction, the convicted person lodges an appeal orapplication for leave to appeal to the DFDAT, the review is suspended and the reviewing officer maynot exercise any of his powers. However, if the appeal or application is dismissed, the reviewingofficer may continue his review of punishment (or other action under part IV of the DFDA) but may notreview the conviction.13 Similarly, where a person appeals or applies for leave to appeal to the DFDATagainst an acquittal on the grounds of unsoundness of mind, a reviewing authority may not continue toexercise his powers of review in relation to the case.14

Review on Petition to a Reviewing Authority

12.15 In addition to automatic review by a reviewing authority, where a Service tribunal convicts aperson of a Service offence, the person may lodge with the reviewing authority a petition for review ofthe proceedings concerned. In most cases it will be in the interests of a convicted person to await theoutcome of the automatic review before lodging a petition to a reviewing authority. However, onenotable exception to this ill be where the convicted person wishes to seek a stay of execution ofpunishment in accordance with s.176 of the DFDA (see para 12.51). The petition must be lodgedwithin 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 theappeal or application has been dismissed, he must lodge the petition within 60 days of the dismissal orsuch further period as the reviewing authority allows.15 A reviewing authority may not exercise any ofhis powers of review in relation to a conviction which is the subject of an appeal or application forleave to appeal to the DFDAT. When an appeal or application is dismissed the right to petition areviewing authority revives. However, the reviewing authority may then exercise his powers of reviewonly in relation to punishment.16

12.16 A petitioner must set out the grounds on which he relies for the exercise of the powers of areviewing authority.17 This requirement for a convicted person to state his case is what distinguishesreview by petition from automatic review. Petitioners should state their grounds clearly andunequivocally 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 mostcases it would be desirable for a person who intends to seek review by way of petition to obtain theassistance of a legal officer in drafting the petition.18 The legal officer's assistance will be providedwithout expense to the petitioner.

12.17 As soon as practicable on receipt of a petition and in any event within 30 days after receipt, areviewing authority must review the proceedings and notify the petitioner, in writing, of the result of

11 DFDA s.154(3).

12 DFDA s.154(4).

13 DFDA s.156.

14 DFDA s.156

15 DFDA s.153.

16 DFDA s.156.

17 DFDA s.153(3).

18 For further information on the lodging of petitions see Annex A.


that review. In reviewing the proceedings the authority must have regard to the grounds set out in thepetition and must exercise his powers of review in accordance with the DFDA19 (see later paragraphs).

12.18 Before reviewing a petition, the reviewing authority must obtain and consider a legal reportthat has been prepared by a legal officer in accordance with s.154 of the DFDA. If a conviction ordirection under sections 145(2) or 145(5) has been made by a court martial or DFM, the legal reportmust be provided by a legal officer that has been appointed by a Service chief on the recommendationof the JAG. The JAA is responsible for nominating a legal officer to provide a report in respect of thereview of courts martial and DFM convictions and directions. In all other cases, the legal report inrespect of an automatic review may be provided by any ADF legal officer. There is no requirement forthat legal officer to be nominated by the JAA. Unless Service exigencies require otherwise, the legalreport should be obtained from a different legal officer to the one that provided the legal report inconnection with the automatic review. Legal reports are binding on the reviewing authority onquestions 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 chiefthat there are sufficient grounds to justify such a petition. Normally it will be in the interests of aconvicted person to initiate and await the outcome of a review by petition before petitioning a Servicechief. However, before commencing a review, a Service chief must obtain a report on the proceedingsfrom the JAG or, if the JAG so directs, from a Deputy JAG. Requests for such reports are to be madeto the JAA within the Defence Legal Office. The Service chief is bound by any opinion on a questionof law which is set out in such a report.20

12.20 An application for review by a Service chief may be made at any time after the proceedingshave been reviewed on petition by a reviewing authority. The Service chief may not conduct a reviewof 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 chiefrevives except that he may exercise his power of review only in relation to punishment.21 Whenapplication is made for review by a Service chief, a copy of the record of proceedings, the petitionmade to the reviewing authority and the notification of the result of the review by that authority must beforwarded with the application.22

REVIEW OF CONVICTIONS

General

12.21 A reviewing authority is empowered to quash any conviction by a Service tribunal which hasnot been made according to law. (The particular grounds for quashing convictions are set out inparagraphs 12.23 to 12.26.) Where a reviewing authority quashes a conviction, he may order a newtrial or, in an appropriate case, substitute a conviction of an alternative offence. Where the authorityquashes a conviction but does not order a new trial of the person for the offence, the person isdeemed to have been acquitted of the offence.23 A reviewing authority who quashes a convictionshould 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).

20 DFDA s.155.

21 DFDA s.156.

22 For further information on applications for review by a Service chief, see Annex A.

23 DFDA s.159.


a. that the conviction is unreasonable or cannot be supported having regard to theevidence;

b. that, as a result of a wrong decision on a question of law, or of mixed law and fact, theconviction was wrong in law and that a substantial miscarriage of justice has occurred;

c. that there was a material irregularity in the course of the proceedings and that asubstantial miscarriage of justice has occurred; or

d. that in all circumstances of the case the conviction is unsafe and unsatisfactory24.

Quashing Conviction on the Ground of Unsoundness of Mind25

12.23 Where a reviewing authority is satisfied that at the time of the alleged offence the convictedperson was suffering from such unsoundness of mind as not to be responsible in law for his actionsthe reviewing authority must:

a. quash the conviction,

b. substitute for the conviction so quashed an acquittal on the ground of unsoundness ofmind, and

c. direct that the person be kept in strict custody until the pleasure of theGovernor-General is known.26

12.24 A reviewing authority may also quash a conviction where it appears that a court martial orDFM should have found that the convicted person by reason of unsoundness of mind was not able tounderstand the proceedings against him and accordingly was unfit to stand trial. Where a reviewingauthority quashes a conviction on this ground he must also direct that the person be kept in strictcustody at the pleasure of the Governor-General.27

12.25 A reviewing authority may not quash a conviction on the ground of unsoundness of mind ifthe conviction may be quashed on other grounds.28

Receiving Other Evidence

12.26 In the course of a review, a reviewing authority is empowered to receive and considerevidence that was not reasonably available during the proceedings, is likely to be credible and wouldhave been admissible in the proceedings. If he considers that the conviction cannot be supportedhaving regard to that evidence he is required to quash the conviction.29

Ordering a New Trial

12.27 A reviewing authority may order a new trial of a person who has been convicted of a Serviceoffence where the conviction was recorded within the preceding six months and where he considersthat it is in the interests of justice for a new trial to be held. An order for a new trial lapses unless thenew trial commences within a period of six months from the day on which the order was made. Where

24 DFDA s.158(1).

25 As to insanity and unfitness to plead, see paragraphs 5.70, 5.71.

26 DFDA s.158(3).

27 DFDA s.158(4).

28 DFDA s.158(5).

29 DFDA s.158(2).


a reviewing authority makes an order for a new trial of a person he may also make any orders for thecustody of the person which he considers appropriate.30

12.28 The provision for ordering a new trial is intended to ensure that those persons who are guiltyof serious offences be brought to justice and not escape it merely because of some technical blunderby the Service tribunal in the conduct of the trial. On the other hand, a new trial ought not be orderedby a reviewing authority simply to provide the prosecution with another chance to cure evidentialdeficiencies in the case against the accused person.31 Accordingly, before ordering a new trial, areviewing authority must be satisfied that any additional evidence which is received in the course ofthe review was in fact not reasonably available during the trial. Where such evidence was reasonablyavailable but was not given at the trial the interests of justice may not be served by ordering a new trialunless 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 maysubstitute a conviction for another offence. The substituted conviction must be for a Service offencethat is an alternative offence within the meaning of s.142 in relation to the original offence (seeparagraph 4.3), or a Service offence with which the person was charged in the alternative and inrespect of which the Service tribunal did not record a finding. Before substituting a conviction onanother offence, a reviewing authority must be satisfied beyond reasonable doubt of facts that provethat the person was guilty of the other Offence.32

12.30 Where a reviewing authority has substituted a conviction for the original conviction he mayimpose a punishment (or take any other action under Part IV of the DFDA) on the convicted personwhich 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 thesubstituted conviction unless a punishment had been imposed or a reparation order had been madewith respect to the original conviction. Furthermore, a reviewing authority may not impose apunishment which is more severe than the punishment that was imposed for the original offence normay he make a reparation order for an amount that exceeds the amount of the reparation order inrespect of the original offence.33

POST REVIEW NOTIFICATION

12.31 At the conclusion of a review under the DFDA, the reviewing authority should ensure that theindividual whose conviction or punishment is the subject of review action is advised of the results ofthe review. Such notification should be provided as soon as possible after the review has beenconducted. In addition, in some cases it will be appropriate for the reviewing authority to advise otheraffected parties of the results of a review. For example, in respect of offences against the person ofanother, it would normally be appropriate to advise the victim of the results of any review. Further, thereviewing authority should ensure that relevant personnel and administrative areas (such as theindividual’s pay office if financial punishments have been imposed) are advised of the results of thereview.

30 DFDA s.160.

31 See Reid v The Queen [1979] 2 All ER at 909.

32 DFDA s.161(1).

33 DFDA s.161(2).


REVIEW OF PUNISHMENTS OR ORDERS

General

12.32 A reviewing authority may quash a punishment or revoke an order (or both quash apunishment and revoke an order) which has been imposed or made by a Service tribunal where itappears that the punishment or order is wrong in law or is excessive.34

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 thepowers of punishment which may lawfully be exercised by the Service tribunal concerned or mayinvolve a wrong combination of punishments (eg the punishment of dismissal being imposed inconjunction with the punishment of detention)35 or may involve the non-fixing of a minimum term ofimprisonment, contrary to DFDA s.72. In most cases a punishment or order which is wrong in law willbe readily apparent simply by reference to the relevant part of the DFDA and, where necessary, byexamination 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 revokedon 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 tribunalerred in the application of the appropriate sentencing principles in the circumstances of the case. Theappropriate sentencing principles are contained in s.70 of the DFDA and are set out briefly inparagraphs 11.2 to 11.4.

12.35 Some of the particular matters which a reviewing authority needs to consider in a review ofpunishments 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 aService offence. He is required to do so where the Service offence which had been taken intoconsideration was similar to a conviction which had been quashed or where he considers that inpurporting to take the Service offence into consideration the court martial or DFM exceeded itspowers.36

12.37 Where a reviewing authority annuls the taking into consideration of a Service offence, theoffence is then deemed not to have been taken into consideration by the court martial or DFMAccordingly, any admission which has been made by the accused in relation to that Service offencemay become admissible in any other proceeding before a Service tribunal in respect of that Serviceoffence or in any proceeding in a civil court in respect of an offence that is substantially the same asthe Service offence.

Elective Punishments

12.38 Where a reviewing authority is of the opinion that a summary authority has imposed anelective punishment on a convicted person otherwise than in accordance with s.131 of the DFDA he isrequired to quash the punishment.37 In effect, this means that he must quash an elective punishment

34 DFDA s.162(1).


36 DFDA s.162(2), 77.

37 DFDA s.162(3).


which was imposed by a commanding officer or superior summary authority where the convictedperson was not offered the right to elect trial or punishment38 by court martial or DFM.

12.39 Where an accused person has elected trial by court martial or DFM, a summary authoritymay nevertheless proceed with the trial of the accused if the authority considers that the exigencies ofservice warrant this course of action. In this situation, where the summary authority has continued thetrial, convicted the accused and then imposed on him an elective punishment, the reviewing authoritymay quash the punishment if, in his opinion, the exigencies of service would have permitted trial bycourt martial or DFM without undue delay.39

Substitution of Punishment or Order

12.40 When a reviewing authority has quashed a punishment or revoked an order he maysubstitute another punishment or order on the convicted person provided he does not:

a. impose a punishment that is more severe than the original one;

b. make a reparation order for an amount that exceeds the original order; or

c. if the punishment imposed by the Service tribunal was a custodial punishment, imposea non-custodial punishment (and vice versa)40.

12.41 The authority may not take any further action in relation to a convicted person where he hasannulled the taking into consideration of a Service offence.41

Fixing a Non-parole Period

12.42 A reviewing authority may fix a non-parole period where this has not been done by a Servicetribunal which has imposed a punishment of imprisonment on a convicted person. For this purpose,the reviewing authority is deemed to be the Service tribunal concerned.42.

Suspending the Punishment of Detention

12.43 Where it appears to a reviewing authority that a punishment of detention which has beenimposed by a Service tribunal should be suspended, he may make an order suspending thepunishment or such part of it as has not been served. Such an order, while in force, prevents thepunishment from being put into execution or continuing (if it has already commenced).43

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 unlessapproved 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 anundertaking to be of good behaviour for 12 months. See paragraph 11.63 et seq.

39 DFDA s.162(4).

40 DFDA s.162(5).

41 DFDA s.162(2).

42 DFDA s.162(6), (7); see paragraph 11.16 re fixing a non-parole period

43 DFDA s.162(8), (9).


b. imprisonment for a specific period,

c. dismissal from the Defence Force,

d. segregated confinement for a period exceeding three days,

e. confinement to cell for a period exceeding three days,

f. extra drill for a period exceeding three days, and

g. 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 unlessapproved by a reviewing authority:

a. detention,

b. reduction in rank,

c. forfeiture of seniority, and

d. a fine imposed on a member of the Defence Force that exceeds the amount of his payfor 14 days.45

12.46 A restitution order or reparation order imposed by a Service tribunal does not take effectunless approved by a reviewing authority.46

When Approved Punishments Take Effect

12.47 A reviewing authority who has approved a punishment or an order must determine when thepunishment or order is to take effect; otherwise the punishment or order takes effect forthwith.47

Normally, the authority should choose a date which allows sufficient time for the written notification ofthe results of the review to be returned to the offender's commanding officer and for the offender to beinformed of these results. A reviewing authority must quash a punishment or revoke an order which hedoes not approve.48

Substitution of Punishments or Orders where the Original Punishment or Order is notapproved

12.48 Where a reviewing authority does not approve a punishment or order he may quash thepunishment or revoke the order (as the case may be). He may then substitute another punishment ororder provided he does not:

a. impose a punishment which is more severe than the original one;

b. make a reparation order for any amount that exceeds the original order; or

44 DFDA s.172(1).

45 DFDA s.172(2).

46 DFDA s.172(3).

47 DFDA s.168, s.171.

48 DFDA s.169(1).


c. if the punishment imposed by the Service tribunal was a custodial punishment, imposea non-custodial punishment (and vice versa).49

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 custodypending approval of the punishment by a reviewing authority. If the punishment is approved, any dayon which the person was so kept in custody counts as a day of that imprisonment.50

12.50 A person on whom a punishment of dismissal from the Defence Force is imposed may bekept in custody pending approval of the punishment by a reviewing authority.51

12.51 A person on whom a punishment of detention is imposed by a summary authority may bekept in custody pending approval of the punishment by a reviewing authority. If the punishment isapproved, any day on which the person was so kept in custody counts as a day of that detention.52

Stay of Execution of Punishment

12.52 A reviewing authority may order that execution of a punishment is to be stayed when aconvicted person lodges a petition with respect to conviction or punishment or notifies the reviewingauthority 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 theappeal or petition.53

ACTION ON REVIEW OF PROCEEDINGS THAT HAVE RESULTED IN AN ACQUITTAL ON THEGROUND OF UNSOUNDNESS OF MIND

General

12.53 As explained in paragraph 12.11, where a court martial or DFM acquits a person on theground of unsoundness of mind or finds that by reason of unsoundness of mind a person is unfit tostand trial, the record of proceedings must be forwarded to and reviewed by a reviewing authority. Onreview of the record of proceedings the reviewing authority is empowered to quash an acquittal of aperson 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‘prescribed acquittal’ will be used to describe an acquittal on the ground of unsoundness of mind.54

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 tothe evidence;

b. that the prescribed acquittal is wrong in law and that a substantial miscarriage ofjustice has occurred;

49 DFDA s.169(2).

50 DFDA s.172(3A).

51 DFDA s.172(4).

52 DFDA s.172(5).

53 DFDA s.176.

54 See definition of ‘prescribed acquittal’ in s.3(1) of the DFDA.


c. that there was a material irregularity in the course of the proceedings and that asubstantial miscarriage of justice has occurred; or

d. that in all the circumstances of the case, the prescribed acquittal is unsafe orunsatisfactory.55


12.55 In the course of a review, a reviewing authority is empowered to receive and consider otherevidence that was not reasonably available during the proceedings, that is likely to be credible andwould not have been admissible in the proceedings. If he considers that the prescribed acquittalcannot be supported having regard to the evidence, he is required to quash the conviction.56

Finding of "Unfit to Plead"

12.56 Where it appears to a reviewing authority that a Service tribunal should have found that aperson, by reason of unsoundness of mind, was unfit to stand trial, he is required to quash theprescribed acquittal and direct that the person be kept in strict custody at the pleasure of theGovernor-General.57 In any case where the reviewing authority quashes a prescribed acquittal butdoes not find that the person was unfit to plead and does not order a new trial, the person is deemedto have been acquitted of the offence without qualification.58


12.57 A reviewing authority who quashed a prescribed acquittal which was recorded within thepreceding six months may order a new trial of the person for the offence. He should do so when heconsiders 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 onwhich the order was made. Pending the new trial, the reviewing authority may make such furtherorders for the custody of the person as he thinks appropriate.59

SECTION II - APPEALS

GENERAL

12.59 A person who has been convicted by a court or Defence Force magistrate may appealagainst the conviction to the Defence Force Discipline Appeal Tribunal (DFDAT)under the DefenceForce Discipline Appeals Act 1955.60 (DFDAA) The Tribunal has power to quash a conviction,substitute a conviction for an alternative offence or order a new trial.61 Additionally, in an appropriatecase, a question of law may be referred by the Tribunal to the Federal Court and an appeal may bemade to the Federal Court from a decision of the Tribunal to the Federal Court and an appeal may bemade to the Federal Court from a decision of the Tribunal involving a question of law.62

55 DFDA s.164(1).

56 DFDA s.164(2).

57 DFDA s.164(3).

58 DFDA s.165.

59 DFDA s.166

60 The Defence Force Discipline Appeals Act is contained in Volume 2 of the DLM.




12.60 This Part provides guidance on the composition and power of the DFDAT, how appeals maybe brought before it and other relevant matters relating to hearings by the Tribunal. References ofquestions 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, DeputyPresident and such other members as are appointed, by commission, by the Governor-General.63 Aperson is not qualified to be appointed as President or Deputy President unless he is a Justice or aJudge of a Federal Court or of the Supreme Court of a State or Territory.64 The prerequisite for anappointment as a member of the Tribunal, other than an appointment as President or DeputyPresident, is that a person be a judge of a superior court (ie is qualified to be appointed as President)or is a Judge of a District Court or County Court of a State.65

Sittings of the Tribunal

12.62 The Tribunal may sit at such times and places, including places outside Australia, as thePresident determines.66 Sittings of the Tribunal must generally be held in public.67 In some cases thepowers of the Tribunal may be exercised by a single member;68 usually, however, the Tribunal mustcomprise an uneven number of members being not less than three in number of whom one is thePresident69 or the Deputy President.70

12.63 It is not necessary for each member of the Tribunal hearing a particular appeal to declare hisopinion thereon or to be present when a reserved decision is given. Instead, the opinion of any one ofthe members may be reduced to writing and given by any other member at any subsequent sitting ofthe Tribunal.71

Sittings before a Single Member

12.64 The powers of the Tribunal may be exercised by a single member with respect to:72

a. the granting of leave to appeal to the Tribunal against a conviction or a prescribedacquittal;

b. the extension of the period within which, under the DFDAA, an application for leave toappeal to the Tribunal is required to be lodged;

63 DFDAA s.7(1), (2). The members are listed in the Commonwealth Government Directory

64 DFDAA s.8(1).

65 DFDAA s.8(2).

66 DFDAA s.14.

67 DFDAA s.18.


69 Or a member qualified to be appointed as President.

70 DFDAA s.15.

71 DFDAA s.15A.

72 DFDAA s.17.


c. the granting of legal aid to an appellant under the DFD Appeals Regulations;73

d. the granting of leave to an appellant to be present at the hearing of an appeal ormatter under the DFDAA; and

e. other matters as provided in s.17(1) of the DFDAA.

12.65 A person who is affected by a decision of a single member of the Tribunal may appeal to theTribunal constituted by not less than three members of appropriate qualifications; see paragraph 12.62and s.15 of the DFDAA.

BRINGING OF APPEALS

Who May Appeal

12.66 Subject to the DFDAA74 a convicted person or a prescribed acquitted person75 may appeal tothe Tribunal against his conviction or prescribed acquittal.76 An appeal does not lie against aprescribed acquittal if, in the proceedings before a court martial or Defence Force magistrate thatresulted in the prescribed acquittal, evidence of the unsoundness of mind of the appellant wasadduced by the defence.77

Grounds of Appeal

12.67 An appeal to the Tribunal on a question of law relating to the conviction or prescribedacquittal of a person lies as of right.78 An appeal on a ground that is not a question of law may not bebrought except by leave of the Tribunal.79 An appeal or application for leave to appeal to the Tribunalmust specify the grounds relied on.80

12.68 Where the Tribunal dismisses an appeal or application for leave to appeal, and is of theopinion that the appeal or application was frivolous or vexatious, it may order that any punishment ofdetention or imprisonment which had been imposed in the proceedings to which the appeal orapplication relates be taken to commence on the day on which the appeal or application isdismissed.81

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 Tribunalor a Deputy Registrar or the officer commanding a unit of the Defence Force.82 The Registrar of the

73 See Regulation 11 of the DFD Appeals Regulations.

74 See, especially, paragraph 12.67.

75 A ‘prescribed acquitted person’ means a person who has been acquitted of a Service offence by courtmartial or DFM on the ground of unsoundness of mind.

76 DFDAA s.20(1).

77 DFDAA s.20(2).

78 DFDAA s.20(1).

79 DFDAA s.20(1).

80 DFDAA s.23(1)(a).

81 DFDAA s.22.

82 DFDAA s 21(1)(b); DFD Appeals Regulations, Reg 9.


Tribunal is also the Australian Capital Territory District Registrar of the Federal Court of Australia; hisaddress 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 onwhich a convicted person or prescribed acquitted person83 has been notified of the results of anautomatic review by a reviewing authority.84 Where the results of that automatic review have not beennotified to the person within 30 days of his conviction or prescribed acquittal an appeal or applicationfor leave to appeal must be lodged within 60 days of the date of the conviction or prescribedacquittal.85

12.71 The Tribunal may allow an extension of the statutory time limit on lodging appeals etc, eitherbefore or after the expiration of the appropriate period.86

DETERMINATION OF APPEALS


12.72 On hearing an appeal the Tribunal is empowered to receive and consider evidence that wasnot 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 regardto that evidence, it is required to quash the conviction or prescribed acquittal.87

Quashing of Conviction etc.

12.73 The Tribunal must allow an appeal and quash the conviction or prescribed acquittal where itis of the opinion:

a. that the conviction or prescribed acquittal is unreasonable or cannot be supported,having regard to the evidence;

b. that as a result of a wrong decision on a question of law, or of mixed law and fact, theconviction or prescribed acquittal was wrong in law and that a substantial miscarriageof justice has occurred;

c. that there was a material irregularity in the course of the trial and that a substantialmiscarriage of justice has occurred;


84 ie. a review under s.152 of the DFDA.

85 DFDAA s.21(2).

86 DFDAA s.21(1)(a).

87 DFDAA s.23(2).


d. that in all the circumstances of the case, the conviction or prescribed acquittal isunsafe or unsatisfactory.88

Substitution of Conviction for Alternative Offence

12.74 Where the Tribunal quashes a conviction of a person of a Service offence it may substitute aconviction of another offence. The substituted conviction must be of an alternative offence (within themeaning of s.142 of the DFDA89) in relation to the original offence or a Service offence with which theperson was charged in the alternative and in respect of which the Service tribunal did not record afinding. Before substituting a conviction of another offence, the Tribunal must be satisfied beyondreasonable doubt of facts that proved that the person was guilty of the other offence.90

12.75 Where the Tribunal has substituted a conviction for the original conviction, it may impose apunishment (or take any other action under Part IV of the DFDA) on the convicted person which couldhave been imposed or taken by the Service tribunal which convicted the person. However, theTribunal may not impose a punishment or make a reparation order with respect to the substitutedconviction unless a punishment had been imposed or reparation order had been made with respect tothe original conviction. Furthermore, the Tribunal may not impose a punishment which is more severethan the punishment that was imposed for the original offence nor may it make a reparation order foran amount that exceeds the amount of the reparation order in respect of the original offence.91

12.76 Where the Tribunal imposes a punishment of imprisonment or detention in respect of asubstituted conviction the punishment is deemed to commence from the time from which it would havecommenced if it had been imposed in the original proceedings.92

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 personwas suffering from such unsoundness of mind as not to be responsible in law for his actions thereviewing authority must:

a. quash the conviction,

b. substitute for the conviction so quashed an acquittal on the ground of unsoundness ofmind, and

c. direct that the person be kept in strict custody) until the pleasure of theGovernor-General is known.93

12.78 The Tribunal may also quash a conviction where it appears that a court martial or DefenceForce magistrate should have found that the convicted person by reason of unsoundness of mind wasnot able to understand the proceedings against him and accordingly was unfit to stand trial. Where theTribunal quashes a conviction on this ground it must also direct that the person be kept in strictcustody at the pleasure of the Governor-General.94

88 DFDAA s.23(1).


90 DFDAA s.26(1).

91 DFDAA s.26(2).

92 DFDAA s.26(3).

93 DFDAA s.23(3).

94 DFDAA s.23(4).


12.79 A Tribunal may not quash a conviction on the ground of unsoundness of mind if theconviction may be quashed on other grounds.95


12.80 Where the Tribunal quashes a conviction, or a prescribed acquittal, it may order a new trial ifit considers that in the interests of justice the person should be tried again.96 Pending the new trial, theTribunal may make such further orders for the custody of the person as it thinks fit.97

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,the person is deemed to have been acquitted of the offence.98 Similarly, where the Tribunal quashes aprescribed acquittal of a person of a Service offence and does not direct that the person be kept instrict custody at the pleasure of the Governor-General or order a new trial, the person is deemed tohave been acquitted of the offence without qualification.99

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 maytake the following action:

a. appoint a person to receive evidence on behalf of the Tribunal;100

b. summon a person who would have been a compellable witness in the trial to giveevidence to the Tribunal or to a person appointed to receive evidence on its behalf;101

c. appoint a special commissioner to conduct an examination or investigation whichcannot conveniently be conducted by the Tribunal; the tribunal may act upon theopinion of the commissioner;102

d. where a special knowledge of a matter is required for the proper determination of anappeal, appoint a person with special knowledge to act as assessor to the Tribunal;103

and

e. examine witnesses on oath or affirmation.104

95 DFDAA s.23(5).

96 DFDAA s.24.

97 DFDAA s.25.

98 DFDAA s.41(a).

99 DFDAA s.41(b).

100 DFDAA s.31(1)(a).

101 DFDAA s.31(1)(b).

102 DFDAA s.31(1)(d).

103 DFDAA s.31(1)(e).

104 DFDAA s.33.


Power to Obtain Report

12.83 On the hearing of an appeal, the Tribunal may, where it thinks it necessary or expedient inthe interests of justice to do so, direct such steps to be taken as are necessary to obtain a report fromthe judge advocate (JA) or Defence Force Magistrate (DFM) of the proceedings from which the appealarose. In the report, the JA or DFM may be required to give his opinion upon the case or upon a pointarising in the case or to make a statement as to any facts the ascertainment of which appears to theTribunal to be material for the purpose of determining the appeal.105

Warrants

12.84 The Tribunal may issue any warrant necessary for the enforcement of any action taken by itin relation to an appellant.106 Where the Tribunal issues a warrant for the commitment of a person to aprison or a detention centre the warrant is deemed to be issued under s.170(1) of the DFDA.107

Costs

12.85 Where the Tribunal allows an appeal it may, if it thinks fit, direct that the Commonwealth paythe costs incurred by the appellant in connection with his appeal or in carrying on his defence againsta charge or charge out of which the appeal arose.108 The Tribunal may order costs against anappellant where it dismisses an appeal application for leave to appeal. These costs may include thewhole or any part of the costs of the appeal or application including allowances paid to a witness andthe costs of copying or transcribing any documents for the use of the Tribunal.109

Restitution Order and Reparation Orders

12.86 The Tribunal may vary or annul a restitution or reparation order made by a court martial orDefence Force magistrate whether or not it quashes the conviction in respect of which the order wasmade. If the order is annulled, it has no effect; if the order is varied it takes effect as varied.110

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 orincidental to the appeal where the DFD Appeal Regulations so provide or with leave of the Tribunal.111

Since the Regulations currently make no provision in this regard, attendance of the appellant at ahearing is, in fact, only with leave of the Tribunal. Leave may be granted by a single member of theTribunal112 or by the Tribunal when fully constituted.

105 DFDAA s.36.

106 DFDAA s.35(1).

107 DFDAA s.35(2).

108 DFDAA s.37(1).

109 DFDAA s.37(3).

110 DFDAA s.38.

111 DFDAA s.39(3).

112 DFDAA s.17.


Representation of Appellant

12.88 An appellant may be represented at a hearing of his appeal before the Tribunal, or a matterpreliminary or incidental to the appeal, by a legal practitioner.113 A legal practitioner in this contextmeans a barrister or solicitor of the High Court or of the Supreme Court of a State or Territory. Inrelation to a hearing by the Tribunal at a place outside Australia, a person who is authorised by law topractise as a legal practitioner at the place may represent an appellant.114 A legal officer in theDefence Force, who is a legal practitioner as defined above, may represent an appellant at a hearingbefore the Tribunal.

Defence of Appeals

12.89 A Service chief is required to arrange the undertaking of the defence of an appeal before thetribunal.115

OFFENCES IN RELATION TO THE TRIBUNAL

Offences

12.90 A person may be tried summarily in a civil court where he commits certain offences inrelation to the Tribunal. These offences include: failure to attend the Tribunal or produce documentswhen summoned to do so, failure by a witness to continue in attendance or refusal by a witness to besworn or to give evidence. Other offences are: wilfully insulting or disturbing the Tribunal, interruptingproceedings, seeking to influence improperly the Tribunal or a witness or seeking to bring the Tribunalinto disrepute. Where a person is convicted of any of these offences he is liable to a fine of $1,000 orimprisonment for 6 months.116

Contempt

12.91 Where a person commits an offence of the kind described in paragraph 12.89 he is alsoguilty of contempt of the Tribunal. The contempt is punishable by the Supreme Court of a State orTerritory; however, a punishment may not be imposed twice in respect of the same offence.117

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 singlemember, the Tribunal of its own motion or at the request of an appellant or Service chief may refer aquestion of law arising in the hearing to the Federal Court.118 The Full Court of the Federal Court mayhear and determine this question of law. Pending determination of a question of law, the Tribunal maynot give a decision to which the question is relevant. On receiving the opinion of the Federal Court, theTribunal may not proceed or make a decision in a manner which is inconsistent with the opinion.119

113 DFDAA s.39(1).

114 DFDAA s.39(4).

115 DFDAA s.42.

116 DFDAA ss 43-48.

117 DFDAA s.50.

118 DFDAA s.51(1). The former requirement under the Courts Martial Appeals Act 1955, to obtain acertificate from the Attorney General before a matter could be referred to the Federal Court, isabolished.

119 DFDAA s.51(2), (3).


Appeals from Decisions of the Tribunal

12.93 An appellant or a Service chief may appeal to the Federal Court on a question of lawinvolved in a decision of the Tribunal in respect of an appeal. The Full Court of the Federal Court mayhear and determine the appeal and may make such orders as it thinks appropriate.120 An appeal doesnot lie against the decision by a single member exercising the powers of the Tribunal. An appeal mustbe lodged within 28 days of the day on which the person is supplied with a copy of the decision of theTribunal; however, the Federal Court may hear an appeal which is lodged out of time.121

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 itthinks appropriate in respect of an appeal from the Tribunal. In particular, the Federal Court may makean order:122

a. affirming or setting aside the decision of the Tribunal;

b. remitting the case to be heard and decided again by the Tribunal in accordance withdirections of the Court;

c. granting a new trial by a court martial or a DFM; and

d. reinstating a conviction or a prescribed acquittal - where the Court has set aside adecision of the Tribunal quashing a conviction or quashing a prescribed acquittal.

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, theTribunal may make appropriate custody orders in relation to the appellant. The Tribunal must alsocause to be sent to the Court all documents and other records relating to the matter.123

Annexes:A. Petitions for Review of Convictions, Punishments and OrdersB. Format of Petition for Review of Conviction, Punishment or OrderC. Format of Signal for Report of Receipt of a Petition


121 DFDAA s.52(1), (2), (3), (4).

122 DFDAA s.52(5).

123 DFDAA s.53.


PETITIONS FOR REVIEW OF CONVICTIONS, PUNISHMENTS ANDORDERS

Introduction

1. This annex amplifies paragraphs 12.15 to 12.20 of the DLM in relation to the submission bymembers 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 orreparation made against them have the right to petition for a review by a reviewing authority andsubsequently, 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 aresufficient grounds for so doing. A petitioner is entitled to be provided with a copy of the record ofproceedings of the hearing before a summary authority against whose decision the petitioner ispetitioning.

Form of Petition

3. All petitions are to be made in writing and may be set out in the format shown in Annex B. Ineach case the member is to state the precise grounds of his or her petition and the remedy that issought.

Petitions Relating to Courts Martial

4. Petitions relating to trials by court martial or Defence Force magistrates may be forwarded tothe appropriate reviewing authority by the petitioner directly or through the petitioner's commandingofficer. On receipt of the petition the reviewing authority should forward it to a legal officer who isappointed to report on the proceedings and should ensure, also that the transcript of evidence of thetrial 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 assoon as practicable to a reviewing authority through the petitioner's commanding officer. If thepetitioner wishes the contents of the petition to remain confidential he may lodge it with hiscommanding officer in a sealed envelope. The petition should then be forwarded, unopened, to thereviewing authority.

6. Appropriate Reviewing Authority. Where the petition relates to a trial conducted by acommanding officer or subordinate summary authority, consideration should be given to forwardingthe petition to a reviewing authority other than the reviewing authority who conducted the automaticreview of the proceedings of the trial.

7. Documents to Accompany Petition. The commanding officer should ensure that allrelevant documents accompany the petition; these should in every case include Form PD 104 (Recordof Evidence), Form PD 105 (Summary Proceedings Report), copies of all exhibits at the trial and FormPD 103 (Conduct Record). Where a petition seeks a further review by a Service chief, thecommanding 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 sentby signal in the format shown in Annex C.


Action by Reviewing Authority

9. As soon as practicable and, in the event, within 30 days of receipt of the petition, thereviewing authority is to notify the petitioner formally of the outcome of the petition. The normalmethod of notifying the petitioner will be by letter to the petitioner. Where delays are likely to occur inthe 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 forthe purposes of the petition to the commanding officer after a decision has been made regarding thepetition. Copies of relevant documents should also be retained by reviewing authorities.


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 myconviction and punishment by ............................................. 2 on ...................................................................................................... 3 on the charges specified hereunder:

1st Charge DFDA sec ... 4 ...........................................................................................5

2nd Charge · ... ..................................................................................................

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 thefollowing 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 ofthe Discipline Law Manual in relation to petitions for review of convictions, punishments and orders.

Signed: ...................Rank: ............

Date:...................... Personal Number:

1 Insert full name of petitioner.2 Insert “court martial”, “commanding officer”, superior summary authority”, etc as appropriate.3 Insert date of conviction or punishment.4 Insert relevant section of the DFDA.5 Insert the statement of the offence as specified in the charge sheet.


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 toDEFNAV or DEFAIR, as appropriate (if the reviewing authority is not in Navy or Air Office), and toadministrative authorities. Where a further petition is made to the Service chief, the signal should alsohave as an information addressee the reviewing authority who carried out the review of the previouspetition.

2. The signal is to refer to DLM Annex C to Chapter 12 and is to contain:

PETITION AGAINST CONVICTION (AND PUNISHMENT)*

a. name, rank and personal number of the petitioner;

b. date of petition;

c. date of trials

d. tribunal (subordinate summary authority, CO, superior summary authority, DFM, courtmartial);

e. name of officer who conducted trial (not necessary in case of trial by court martial)"

f. date and result of automatic review if known; and

g. 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 authorityand the results of that petition).

* 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 commitdisciplinary infringements1. The chapter describes the appointment, role and jurisdiction of disciplineofficers; disciplinary infringements; the authorisation and role of relevant officers; the nature ofinfringement notices; the rights of defence members who are alleged to have committed disciplinaryinfringements; the discipline officer’s powers of punishment and the after hearing procedures.

13.2 As the discipline officer is not a Service tribunal2, there is no requirement for the disciplineofficer to comply with the provisions of the DFDA relating to Service tribunals. This means that therules of evidence are not applicable; there is no prosecuting officer and the defence member is not tobe represented. In addition, there is no automatic review of the discipline officer’s proceedings and theinfringement is not to be entered on the defence member’s Conduct Record nor is its occurrence to becommunicated outside the member’s unit.

13.3 The aim of the discipline officer provisions is to provide a simplified procedure that willenable 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 officers3. Theappointment 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 201Volume 2 Part 12).

Role

13.6 The discipline officer is responsible for dealing with defence members below non-commissioned rank who have committed disciplinary infringements and who elect to be dealt with bythe discipline officer. In dealing with the defence members, the discipline officer is, in effect, decidingwhat course of action to take in relation to an infringement. The following options are available to thediscipline officer4:

a. impose a punishment5;

b. decide that the disciplinary infringement is trivial and not impose a punishment; or

c. decline to deal with the matter as it is too serious to be dealt with as a disciplinaryinfringement.

1 Defence Force Discipline Act, 1982 (DFDA) Part IXA

2 DFDA s.169F(4)

3 DFDA s.169B

4 DFDA s.169F

5 See paragraphs 13.33-13.35


13.7 If a defence member elects to be dealt with by a discipline officer, the defence member istaken for the purpose of being dealt with by the discipline officer but for no other purpose, to haveadmitted the infringement6. Hence there is no requirement for the facts of the matter to be provedbefore the discipline officer and there is no requirement or right for the defence member to berepresented7.

13.8 In deciding what action to take, the discipline officer must consider the following:

a. whether the discipline officer has the jurisdiction to deal with the infringement8;

b. whether the infringement is, in all the circumstances of the case, of a minor or trivialnature;

c. whether the facts of the infringement or circumstances surrounding it (eg.,repetitiveness) are such that it warrants a more severe punishment than the disciplineofficer can impose; and

d. what mitigation, if any, the defence member has to explain the infringement andlessen the punishment.

13.9 At all times the discipline officer must remember that the defence member has elected to bedealt with by the discipline officer and for that purpose the defence member has admitted that aninfringement has occurred. The discipline officer does not have the power to revoke or dismiss aninfringement 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 disciplinaryinfringement if9:

a. the discipline officer has been appointed by the commanding officer of the particulardefence member;

b. the defence member is below the rank of non-commissioned officer;

c. the defence member has committed a disciplinary infringement;10

d. the defence member has not been charged with a Service offence for the same act oromission that is alleged to constitute the infringement;

e. the defence member elects to be dealt with by a discipline officer; and

f. the defence member has not withdrawn the election.

13.11 If the defence member has been charged with a Service offence for the same act oromission that is alleged to constitute an infringement, or the defence member does not elect to bedealt with by a discipline officer or withdraws the election, then the discipline officer cannot deal withthe matter.

6 DFDA s.169E(2)

7 DFDA s.169G(2)


9 DFDA s.169C



13.12 For the purposes of the discipline officer procedure, a defence member who is attached fromone unit to another is deemed to be a member of the gaining unit and therefore under the jurisdictionof a discipline officer appointed by the commanding officer of that gaining unit. A member who is ontemporary duty at another unit, remains under the jurisdiction of a discipline officer appointed by thecommanding officer of his or her parent unit; this includes any discipline officer appointed by his or hercommanding officer at the unit where the member is on temporary duty. A member who commits adisciplinary infringement whilst attached to, or on temporary duty at, another unit, and who is not dealtwith by a discipline officer at that other unit, may be dealt with by a discipline officer on return to theparent unit.

DISCIPLINARY INFRINGEMENTS

13.13 A disciplinary infringement is defined11 as an act or omission that constitutes a minor offenceagainst one of the following sections of the DFDA:

a. Section 23 - Absence from Duty

b. Section 24 - Absence without Leave (where the absence is for a period not exceeding3 hours)

c. Section 27 - Disobedience of a Lawful Command

d. Section 29 - Failure to Comply with Lawful General Order

e. Sub-section 32(1) - Irregularities on Guard or on Watch

f. Section 35 - Negligent Performance of Duty

g. Section 60 - Prejudicial Behaviour

13.14 Notwithstanding the definition of disciplinary infringement, nothing prevents an offenceagainst one of these sections from being the subject of a charge to be dealt with by a Service tribunal,even though it could also be dealt with as a disciplinary infringement12. However, once a matter is thesubject of a charge it cannot be dealt with as a disciplinary infringement and once a matter has beendealt with as a disciplinary infringement it cannot be the subject of a charge.13.

RELEVANT OFFICER

Authorisation

13.15 A relevant officer is a member of the Defence Force who holds a rank of non-commissionedofficer or above14 who has been authorised by a commanding officer to issue infringement notices tomembers of that commanding officer’s unit15. To authorise a relevant officer, the authorisation must bein writing using Form 71 (ADFP 201 Volume 2 Part 12).

11 DFDA s.169A

12 s.169J

13 s.144(3A)

14 s.169A

15 DFDA s.169D(4)


Role

13.16 The relevant officer is responsible for completing Part 1 - Infringement Details16 of theinfringement notice and issuing the infringement notice to the defence member who is alleged to havecommitted an infringement17. This must be done as soon as is reasonably practicable after thatrelevant officer first has reasonable grounds for believing that the defence member has committed theinfringement18. If the relevant officer issues an infringement notice and then forms the view that aninfringement has not occurred, the relevant officer may, before the discipline officer acts or before acharge 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 belownon-commissioned rank and is a member of the unit over which the relevant officerhas authority;

b. that the infringement is a disciplinary infringement19;

c. that the details of the infringement make it appropriate for the matter to be dealt withas a disciplinary infringement;

d. that the period of time which has elapsed between the date of the infringement andthe information being passed to the relevant officer is not excessive in thecircumstances, so as to make the issue of an infringement notice unreasonable; and

e. that the defence member has not been charged for the same act or omission that isalleged to constitute the disciplinary infringement.

13.18 If the infringement is not a disciplinary infringement, the relevant officer may refer the matterto a member authorised under s.87 who may issue a charge to be dealt with by a Service tribunal. Therelevant officer may also decide to refer the matter to a member authorised under s.87 for thepurposes of proceeding by way of a charge, when a defence member fails to make an election withinthe period allowed20.

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 adiscipline officer dealing with a disciplinary infringement: the infringement; the rights of the defencemember; the election process and the action taken by the discipline officer. A sample infringementnotice is at Annex B to this Chapter.

13.21 Only one infringement may be entered on an infringement notice21 and only a maximum oftwo infringement notices may be issued in relation to the one set of circumstances or incident. If it


17 DFDA s.169D(1)

18 s.169D(5)


20 DFDA s.169E(4)

21 DFDA s.169D(2)(a)


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. Part 1 - Infringement Details

b. Part 2 - Election

c. Part 3 - Hearing by Discipline Officer

d. 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. the details of the defence member who is alleged to have committed the infringement;

b. the date of the infringement;

c. the section of the DFDA which is alleged to have been infringed; and

d. sufficient particulars or details of the infringement to allow the defence member toknow what is alleged22.

13.24 The Infringement Details also refer the defence member to the rights printed on the reverseof the notice and inform the defence member of the right to elect to have the matter dealt with by adiscipline officer and the time period in which the election must be made. As the election must bemade before this period ends23, provision is made in the Infringement Details to direct the defencemember to return to the relevant officer at a time before the election period ends, in order to state hisor her election. This time must be more than 48 hours but less than seven days from the time and dateof 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 officer24. If thedefence member does not elect to be dealt with by a discipline officer, the Infringement Details may bereferred to a member authorised under s.87 who may prefer a charge to be dealt with by a Servicetribunal. If the defence member fails to make an election within the election period, the relevant officermay also decide to refer the matter to a member authorised under s.8725.

13.26 The defence member must initial and date the election as an acknowledgment of thedecision. It should be noted however, that an election to be dealt with by a discipline officer may bewithdrawn at any time before a punishment is imposed26.

22 The specimen charge in Chapter 4 may be used as a guide.

23 DFDA s.169E(3)

24 DFDA s.169E(1)

25 s.169(4)

26 DFDA s.169E(5)


Part 3 - Hearing by Discipline Officer

13.27 Unlike a hearing by a Service tribunal, a hearing by a discipline officer is without theformalities associated with a trial and is designed to facilitate the dispensing of punishments fordisciplinary infringements in an efficient and administratively simple manner. As such, the procedureinvolved 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 adiscipline officer although this election may be withdrawn at any time prior to a punishment beingimposed. If a defence member has not withdrawn his or her election, a discipline officer is to haveregard to the following matters prior to taking action:

a. Adjournment. If a defence member requests an adjournment it should generally begranted 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; orthe need to secure the attendance of witnesses in mitigation or to obtain statements inmitigation. The length of any adjournment is to be determined by the discipline officerwho shall have regard to the circumstances of each case.

b. Amendment. The discipline officer may amend Part 1 - Infringement Details in orderto correct any error in the description of the defence member or the particulars of theinfringement. However, the discipline officer may not substitute a new infringement forthe one admitted by the defence member.

c. Mitigation. The defence member has the right to call witnesses and present evidencein relation to the discipline officer taking action. Any statement or other documentarymaterial presented is to be returned to the defence member and not retained with theinfringement notice.

d. Questions. The discipline officer may question the defence member on any pointraised by either the infringement notice or the mitigation27.

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 withby a discipline officer and for the purposes of the discipline officer's action, a defence member whodoes so elect is to be taken to have admitted the infringement. The defence member is to be given acertain period in which to make this election, being a period more than 48 hours, but less than sevendays, 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 infringementdetails may be referred to a member authorised under s.87 who may prefer a charge to be dealt withby a Service tribunal.

13.32 If a defence member elects to be dealt with by a discipline officer, the defence member doesnot have the right to be represented, however the defence member does have the right to presentevidence in mitigation (ie., make a statement, present written statements prepared by others, or callwitnesses).

PUNISHMENTS

13.33 A discipline officer has the power to impose one of the following punishments in respect of adisciplinary infringement28:


28 DFDA s.169F(1)


a. a fine not exceeding the amount of the member’s pay for one day;

b. restriction of privileges for a period not exceeding 2 days;

c. stoppage of leave for a period not exceeding 3 days;

d. extra duties for a period not exceeding 3 days;

e. extra drill for not more than 2 sessions of 30 minutes each per day for a period notexceeding 3 days; or

f. a reprimand.

13.34 A discipline officer may only impose one punishment in respect of each infringement noticeand should impose the most severe punishment only in exceptional circumstances. The disciplineofficer should apply the scale of punishments fairly and justly and in proportion to the infringementwhich has occurred. Prior infringements may be taken into account in deciding the appropriatepunishment. They may also be considered when deciding whether to refer the matter to an authorisedmember for the purpose of proceeding by way of a charge because of the continuous and thereforeserious nature of the infringement.

13.35 Notwithstanding that the discipline officer is not a Service tribunal, in deciding whatpunishment to impose, the discipline officer is to have regard to the Sentencing Principles outlined inDFDA s.70 and ADFP 201 Volume 1 Chapter 11. The consequences that flow from the imposition ofcertain punishments are set out in the Defence Force Discipline (Consequences of Punishment)Rules29. The discipline officer is not obliged by the DFDA to apply those Rules, but should do so tomaintain consistency. The Rules are as follows:

a. Restriction of Privileges. For the duration of the punishment, the consequences ofthe punishment of ‘restriction of privileges’ are:

(1) the member shall not leave the unit, establishment or ship in which thepunishment is to be served except in the course of duty;

(2) the member shall not:

(a) be present at any recreation or entertainment in the unit, establishment orship; or

(b) consume any alcoholic beverage;

(3) the member shall, in accordance with an order given to the member by anauthorised officer, perform:

(a) additional duties:

(i) for a period not exceeding 4 hours outside working hours in aworking day; and

(ii) for a period not exceeding 8 hours in a non-working day; or

(b) if the member cannot be employed effectively in additional duties for all orpart of a period referred to in subparagraph (a) - drill for a period notexceeding 1 hour in each day;

29 See ADFP 201 Volume 2 Part 4


(4) outside working hours the member shall, in accordance with an order given tothe member by an authorised member, report between 0600 and 2300 hoursbut not more frequently than once every two hours to a person specified by theauthorised member;

(5) outside working hours the member shall wear:

(a) if the member is required to perform a duty - the appropriate workingdress; or

(b) in any other case - the dress of the day.

b. Stoppage of Leave. For the duration of the punishment, the consequences of thepunishment of ‘stoppage of leave’ are as follows:

(1) the member shall not leave the unit, establishment or ship in which thepunishment is to be served except in the course of duty;

(2) outside working hours the member shall, in accordance with an order given tothe member by an authorised member, report between 0600 hours and2300 hours but not more frequently than once every two hours to a personspecified by the authorised member;

(3) outside working hours the member shall wear:

(a) if the member is required to perform a duty - the appropriate workingdress; or

(b) in any other case - the dress of the day;

(4) the member shall not consume any alcoholic beverage.

c. Extra duties. For the duration of the punishment, the consequences of thepunishment of ‘extra duties’ are:

(1) the member shall, in accordance with an order given to the member by anauthorised member, perform:

(a) additional duties outside working hours for a period not exceeding 4hours in each day; or

(b) if the member cannot be employed effectively in additional duties for all orpart of the period referred to in subparagraph (a) - drill for a period notexceeding 1 hour in each day;

(c) outside working hours the member shall wear:

(i) if the member is required to perform a duty - the appropriateworking dress; or

(ii) in any other case - the dress of the day.

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 isperformed;

(2) the member shall perform the drill in accordance with an order given to themember by an authorised member;


(3) the member shall not be required to perform the drill for a continuous periodexceeding 30 minutes;

(4) the member shall not be required to perform periods of drill more frequentlythan at 4-hourly periods.

INFRINGEMENT REGISTER

13.36 A record of the infringement notice or action taken by the discipline officer is not to beentered on the defence member’s Record of Conduct (PD 103) nor on any other personal file held bythe unit. All infringement notices are to be placed in sequential order in a Unit Infringement Registerfor a period of 12 months from the date of the election or action by the discipline officer which ever isthe 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 registeron a monthly basis in order to monitor the actions of the discipline officer. A legal officer may inspectthe infringement register at any time. If either the commanding officer or a legal officer believes that adefence member is being unfairly treated, the matter is to be brought to the attention of the disciplineofficer.

13.38 Statistics. Units are required to report statistics to their legal office six monthly in the formatat Annex D to this chapter. Legal offices are then required to consolidate individual unit returns andforward these to the SO2 JAG six monthly. All legal offices in the ADF have an excel copy of the format 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 ofproceedings of Service tribunals is not applicable to the proceedings of a discipline officer.

13.40 There is no automatic review of the discipline officer’s actions, nor can the defence memberpetition or appeal against the action taken.

13.41 However, defence members who believe that they have a grievance in relation to thediscipline officer’s actions, may submit a Redress of Grievance under Part XV of the Defence ForceRegulations to the appropriate authority.

Annex:A. Guide to Procedure for Relevant OfficerB. Infringement NoticeC. Guide to Procedure for Hearing by Discipline OfficerD. Discipline Officer - Statistics


GUIDE TO PROCEDURE FOR RELEVANT OFFICER


1. RELEVANT OFFICER BECOMESAWARE OF INFRINGEMENT

This may be from personal knowledge or frominformation supplied by another person.

2. AUTHORISED RELEVANT OFFICER Relevant officer considers Unit of defencemember and:

a. if authorised as a relevant officer by thecommanding officer of that Unit – proceed toItem 3.

b. if not authorised by the commanding officer ofthat Unit – refer allegation to an appropriatelyauthorised relevant officer.

3. RELEVANT OFFICER CONSIDERSJURISDICTION OF DISCIPLINEOFFICER

1. As to jurisdiction see paragraphs 13.10(a)-(d).

2. If a discipline officer does not havejurisdiction to deal with the infringement, therelevant officer may refer the allegation to anauthorised member who may prefer a charge.

3. If a discipline officer does have jurisdiction –proceed to Item 4.

4. INFRINGEMENT NOTICE Relevant officer completes ‘Part 1 – InfringementDetails’ – see paragraph 13.23.

5. DEFENCE MEMBER APPEARSBEFORE RELEVANT OFFICER

As the relevant officer is not a service tribunal, noformalities are required.

6. RELEVANT OFFICER ISSUESINFRINGEMENT NOTICE ANDADVISES OF RIGHTS

The relevant officer issues defence member’scopy of the infringement notice to the defencemember and says:

‘THIS IS A COPY OF AN INFRINGEMENTNOTICE ALLEGING THAT YOU HAVECOMMITTED A DISCIPLINE INFRINGEMENT.YOUR RIGHTS ARE PRINTED ON THEREVERSE OF THE FORM. YOU ARE TOREPORT BACK TO ME ON …… (date) AT ……(time) IN ORDER TO STATE YOUR ELECTION.

DO YOU HAVE ANY QUESTIONS?’

7 DEFENCE MEMBER REPORTS ASORDERED

1. The defence member may at this timerequest an extension of the election period.The relevant officer will decide, based on thecircumstances of the case, whether therequest is reasonable. If an extension of timeis granted, the relevant officer amends theinfringement notice and extends the electionperiod so that the defence member returns tostate election within the extended electionperiod.

2. When the defence member returns, therelevant officer should say:

‘YOU HAVE THE RIGHT TO ELECT TOHAVE THIS INFRINGEMENT DEALT WITHBY A DISCIPLINE OFFICER. WHAT DOYOU ELECT?’

3. If the defence member elects to be dealt withby a discipline officer – proceed to Item 8.



4. If the defence member does not elect to bedealt with by a discipline officer, the relevantofficer may refer the infringement notice to anauthorised officer who may prefer a chargeand says:

‘THIS INFRINGEMENT WILL NOW BEREFERRED TO THE APPROPRIATEAUTHORITY TO DECIDE WHETHER TOPROCEED WITH A CHARGE.’

5. Proceed to Item 9.

8. REFERRAL TO DISCIPLINEOFFICER

1. The relevant officer should say:

‘THIS INFRINGEMENT NOTICE WIL BEREFERRED TO A DISCIPLINE OFFICERAND:

a. YOU WILL BE TOLD WHEN ANDWHERE THE MATTER WILL BE DEALTWITH. or

b. YOU ARE TO REPORT AT ……. (place)ON ………(date) AT ……. (time) TOHAVE THE MATTER DEALT WITH.’


9. RELEVANT OFFICER COMPLETESFORM

Relevant officer completes action taken andsignature details.


INFRINGEMENT NOTICE A

Department of DefenceAC 576Introduced Oct 95

Stock No

INFRINGEMENT NOTICE

Family Name of Defence Member Rank Number

Signature (Discipline Officer) Printed Name Rank Date

Unit Number

Part 1 – Infringement Details

Given Name(s)

Infringement Date

Section

Particulars

Defence Member:

1. You are advised that you have one week (7 days) in which to decide whether to be dealt with bya Discipline Officer or you may be charged (the 'election period'). You are ordered to return to me on

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)

(date) at (time) being a date and time more than 48 hoursfrom the issue of this Infringement Notice and before the end of the election period to state your election.

The Defence Member elected to be dealtwith by a Discipline Officer

The Defence Member elected not to bedealt 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

Yes NoThe 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

Yes No

Yes No

Yes No

Punishment Imposed or Action Taken

DistributionOriginal

Duplicate

– Discipline Officer & Discipline Register

– Defence Member


Information for Defence Member

This is an Infringement Notice which alleges that you have committed an infringement againstsection 23, 24 (not exceeding three hours), 27, 29, 32(1), 35 or 60 of the Defence Force DisciplineAct (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 becharged and dealt with by a service tribunal.

1.

2.

If you elect to be dealt with by a Discipline Officer, you are for the purposes of the Discipline Officer'sactions, admitting that you committed the infringement without the need for evidence and you may bepunished accordingly. If you do not elect to be dealt with by a Discipline Officer (eg because youdisagree with the allegations or you believe that you have a defence or you believe that you are beingtreated unfairly) or fail to make an election, the matter may be referred to an authorised member whomay prefer a charge to be dealt with by a service tribunal. You would then have the right to pleadguilty before that service tribunal.

3.

You have been advised that you have a certain period in which to decide whether you want to bedealt with by a Discipline Officer. Before making your election you should take the following mattersinto account:

4.

You may request an adjourment before making your election if you have not had sufficient timein which to make your decision.

a.

b. You are not entitled to be represented before a Discipline Officer. However, you have the rightto submit statements or call witnesses to present evidence in mitigation of punishment.

c. You have the right to withdraw your election to be dealt with by a Discipline Officer at any timebefore the Discipline Officer imposes a punishment.

d. No record of an Infringement Notice is to be kept on your Conduct Record or any other personalfile. The Infringment Notice is not to follow you to another Unit and is to be destroyed after 12months.

e. Once the matter has been dealt with as a disciplinary infringement, you cannot be charged forthe same act or omission. Similarly, if you have been charged with a service offence, you cannotbe issued with an Infringement Report for the same act or omission.

f. If the Discipline Officer imposes a punishment, you do not have the right to appeal but you maysubmit a Redress of Grievance if you believe that you have grounds for complaint.

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;

restriction of privileges for a period not exceeding two days;

stoppage of leave for a period not exceeding three days;

extra duties for a period not exceeding three days;

extra drill for not more than two sessions of 30 minutes each per day for a period notexceeding three days; or

a reprimand.

(2)

(3)

(4)

(5)

(6)

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 theinfringement.


GUIDE TO PROCEDURE FOR HEARING BY DISCIPLINE OFFICER


1. DEFENCE MEMBER ARRIVES As the discipline officer is not a service tribunal,no legal formalities are required. However,military formalities are to be observed.

2. APPOINTED DISCIPLINE OFFICER Discipline officer considers Unit of defencemember and:

a. if appointed as a discipline officer by thecommanding officer of that unit -– proceed toItem 3.

b. if not appointed by the commanding officer ofthat unit – refer infringement notice to anappropriately appointed discipline officer.

3. DISCIPLINE OFFICER CONSIDERSJURISDICTION

1. As to jurisdiction, see paragraph 13.10.

2. If no jurisdiction, the discipline officer mayrefer the infringement notice to an authorisedmember who may prefer a charge.

3. If there is jurisdiction – proceed to Item 4.

4. DISCIPLINE OFFICER READSINFRINGEMENT NOTICE ANDCONFIRMS ELECTION

1. Discipline officer should say:

‘YOU HAVE ELECTED TO HAVE THISINFRINGEMENT DEALT WITH BY ADISCIPLINE OFFICER AND FOR THATPURPOSE YOU HAVE ADMITTED THATYOU ………. (read infringement notice)CONTRARY TO DEFENCE FORCEDISCIPLINE ACT SECTION …. (readsection).

DO YOU WISH TO WITHDRAW YOURELECTION?’

2. If defence member withdraws election –proceed to Item 5.

3. If defence member does not withdrawelection – proceed to Item 6.

5. DISCIPLINE OFFICER MAY REFERINFRINGEMENT NOTICE TO AMEMBER AUTHORISED TO PREFERA CHARGE

1. If a defence member withdraws the election,the discipline officer does not have thejurisdiction to proceed.

2. The discipline officer should say:

‘AS YOU HAVE WITHDRAWN YOURELECTION, I WILL REFER THISINFRINGEMENT NOTICE TO ANAPPROPRIATE AUTHORITY TOCONSIDER PROCEEDING WITH ACHARGE.’

6. ADJOUORNMENT As to when an adjournment is appropriate, seeparagraph 13.28.

7. AMENDMENT As to when an amendment is possible, seeparagraph 13.28.

8. MITIGATION Discipline officer asks defence member if he/shehas anything to say in mitigation of punishment;or any statements to produce or witnesses to callin mitigation of punishment.



9. QUESTIONS Discipline officer may question the defencemember on the circumstances surrounding theinfringement or the evidence in mitigation ofpunishment.

10. DISCIPLINE OFFICER CONSIDERSCOURSE OF ACTION

1. Discipline officer may at this stage take anadjournment 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.

11. PUNISHMENT 1. A discipline officer has the power to imposeone of the following punishments in respect ofa disciplinary infringement:

a. a fine of up to one days pay;

b. restriction of privileges for a maximum oftwo days;

c. stoppage of leave for a maximum of threedays;

d. extra duties for a maximum of three days;

e. extra drill for a maximum of two sessionsof thirty minutes each per day for amaximum of three days; or

f. a reprimand.

2. Discipline officer should say:

‘I HAVE CONSIDERED THEINFRINGEMENT AND IMPOSE APUNISHMENT OF ………….. .’


12. TRIVIAL INFRINGEMENT 1. Discipline officer should say:

‘I CONSIDER THE INFRINGEMENT TO BETRIVIAL AND WILL NOT BE IMPOSING APUNISHMENT.’


13. SERIOUS INFRINGEMENT 1. Discipline officer should say:

‘THIS INFRINGEMENT IS TOO SERIOUSTO BE DEALT WITH BY A DISCIPLINEOFFICER. I REFER THE INFRINGEMENTDETAILS TO THE APPROPRIATEAUTHORITY TO CONSIDER PROCEEDINGBY WAY OF A CHARGE.’


14. COMPLETION OF INFRINGEMENTNOTICE

Discipline officer is to enter ‘punishment imposedor action taken’ in the appropriate space andcomplete the signature block.

15. INFRINGEMENT REGISTER Discipline officer is to number infringement noticeand file in unit infringement register.

ADFP 201 VOLUME 1ANNEX D TOCHAPTER 13

DISCIPLINE OFFICER – STATISTICS

Ship/Unit Month of Ship/Unit Strength

DETAILS OF INFRINGEMENTS

INFRINGEMENT NUMBER

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

DETAILS OF ACTION TAKEN

ACTION TAKEN NUMBER

Punishment Imposed: Fine

Restriction of Privileges

Stoppage of Leave

Extra Duties

Extra Drill

Reprimand

No Punishment Imposed

Referred to an Authorised Member

Discipline Officer

Signature Printed Name Rank Date

ADFP 201 - Discipline Law Manual Volume 1

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Transcript of ADFP 201 - Discipline Law Manual Volume 1