Director of Military Prosecutions v Henderson

TRACEY J: 1 In 1985 the Defence Force Discipline Act 1982 (Cth) ("the DFDA") commenced operation. For the first time in Australia's military history a common disciplinary system was to apply to each of the three services. The Act created a series of offences which, generally speaking, lacked equivalence in the civilian criminal justice system. I will refer to such offences in these reasons as "military offences". In addition, servicemen and women were liable to conviction if they committed an offence under the criminal law of the Australian Capital Territory (later changed to the law of the Jervis Bay Territory). I will refer to this category of offences as "Territory offences". Territory offences were to be treated as service offences because "as a matter of discipline, the proper administration of a defence force requires the observance by its members of the standards of behaviour demanded of ordinary citizens and the enforcement of those standards by military tribunals": see Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 543 (Mason CJ, Wilson and Dawson JJ). Resort to the DFDA was, however, only constitutionally permissible if charges were laid for the purposes of maintaining or enforcing service discipline: White v Director of Military Prosecutions (2007) 231 CLR 570 at 586; [2007] HCA 29 at [14]. Charges were to be heard and determined by service tribunals. 2 There was scope under the DFDA for the same misconduct by servicemen or women to give rise to both military offences and offences under Territory criminal law. An assault, which takes place on service land, could, for example, constitute both a military and a Territory offence. The central question, on the present application, is whether, if the assault occurs on private premises, the Director of Military Prosecutions ("the DMP") is precluded from preferring a charge of common assault under Territory law. A subsidiary question is whether the decision of the Full Court of this Court in Hoffman v Chief of Army (2004) 137 FCR 520; [2004] FCAFC 148, compels a negative answer to the primary question.

THE LEGISLATION 3 Divisions 1 to 7 (ss 15-60) in Part III of the DFDA provide for military offences such as desertion, absence without leave, malingering, theft of military property and prejudicial conduct. One such provision is s 33(a) which provides that it is an offence for a Defence member to assault another person "on service land, in a service ship, service aircraft or service vehicle or in a public place". 4 Division 8 contains one section - s 61. Section 61(3) relevantly provides that: 61 Offences based on Territory offences … (3) A person who is a defence member … commits an offence if: (a) the person engages in conduct outside the Jervis Bay Territory (whether or not in a public place); and (b) engaging in that conduct would be a Territory offence, if it took place in the Jervis Bay Territory (whether or not in a public place). 5 A "Territory offence" is defined to include "an offence punishable under any other law in force in the Jervis Bay Territory … creating offences or imposing criminal liability for offences": see s 3(1)(b) of the DFDA. Section 4A(1) of the Jervis Bay Territory Acceptance Act 1915 (Cth) provides the laws in force from time to time in the Australian Capital Territory are in force in the Territory to the extent that they are not inconsistent with any ordinance in operation in the Jervis Bay Territory. 6 The Crimes Act 1900 (ACT) ('the Crimes Act") is a law in force in the Australian Capital Territory. There is no relevant inconsistency between that Act and any ordinance operating in the Jervis Bay Territory. 7 Section 26 of the Crimes Act creates the offence of common assault, providing that "[a] person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for 2 years." 8 For reasons which will be apparent later in these reasons s 141(8) of the DFDA is also of relevance to the present application. Section 141 provides for a range of applications and objections which may be made by an accused person prior to arraignment. Applications can be made, for example, for adjournments, the ordering of separate trials and for orders requiring the attendance of witnesses: see s 141(1)(a). Objections may be made to the efficacy of the charges, the jurisdiction of the service tribunal and other matters: see s 141(1)(b). 9 Section 141(8) provides for the consequences of the granting of such an application or the allowing of an objection. It provides that: (8) Where a Defence Force magistrate or a judge advocate grants an application, or allows an objection, under this section, the Defence Force magistrate or the judge advocate may refer the charge against the accused person to the Director of Military Prosecutions.

THE BACKGROUND CIRCUMSTANCES 10 The following account is drawn from a statement of agreed facts which was tendered at trial. The second respondent, SGT Jonathan Uren, was one of a group of military and civilian personnel which was working on a project within the Department of Defence in Canberra in May 2016. Members of the group were accommodated in the Burbury Hotel in Barton. 11 Members of the group arranged to meet for social purposes on the Saturday evening following their first week of work together. It was agreed that they would meet at the apartment of two of the civilian women at the Burbury Hotel and then proceed to another venue in Canberra city. 12 When the group first met in the ladies' room SGT Uren was intoxicated. At about 7.20 pm SGT Uren followed one of the civilian ladies into the kitchen area of the room. He leaned over her right shoulder and put his left arm around her. His hand slid around and touched the outside of her upper left thigh and her buttock. This conduct led to what became the first charge. 13 Later in the evening, whilst the group was still in the room in the Burbury Hotel, at about 9.00 pm SGT Uren sat next to another civilian lady. She stood up to move away. At this point SGT Uren touched her buttock. This conduct led to the third charge. 14 Later than evening, at about 9.45 pm, the group travelled to a bar in Canberra city. It was common ground that the bar was a "public place" for the purposes of s 33(a). Shortly after they arrived SGT Uren touched the buttock of one of the civilian women whilst she was sitting on a stool. This led to what became the sixth charge.

THE CHARGES 15 Following complaints about SGT Uren's conduct the DMP laid six charges against him. Alternatives were laid in respect of some of the charges. 16 Relevantly, the charges, as amended at trial, were: First Charge Engaging in conduct outside the Jervis Bay Territory that is a Territory offence, being an act of indecency without consent Defence Force Discipline Act 1982 subsection 61(3) and Crimes Act 1900 (ACT) subsection 60(1) Being a defence member at Barton, in the Australian Capital Territory, on or about 4 June 2016, did commit an act of indecency upon [the first complainant] without her consent, and being reckless as to whether she was consenting, by touching her buttock. Defence Force Discipline Act 1982 subsection 61(3) and Crimes Act 1900 section 26 In the Alternative to the First charge Common assault Being a defence member at Barton, in the Australian Capital Territory, on or about 4 June 2016 did assault [the first complainant] by touching her buttock. … Engaging in conduct outside the Jervis Bay Territory that is a Territory offence, being an act of indecency without consent Third Charge Being a defence member at Canberra, in the Australian Capital Territory, on or about 4 June 2016 did commit an act of indecency upon [the second complainant] without her consent, and being reckless as to whether she was consenting, by touching her on the buttock. Defence Force Discipline Act 1982 subsection 61(3) and Crimes Act 1900 (ACT) subsection 60(1) Defence Force Discipline Act 1982 subsection 61(3) and Crimes Act 1900 section 26 In the alternative to the Third charge Common assault Being a defence member at Barton, in the Australian Capital Territory, on or about 4 June 2016 did assault [the second complainant] by touching her buttock. … Engaging in conduct outside the Jervis Bay Territory that is a Territory offence, being an act of indecency without consent Sixth charge Being a defence member at Canberra, in the Australian Capital Territory, on or about 4 June 2016 did commit an act of indecency upon [the first complainant] without her consent and, being reckless as to whether she was consenting, by touching her on the buttock. Defence Force Discipline Act 1982 subsection 61(3) and Crimes Act 1900 (ACT) subsection 60(1) Defence Force Discipline Act 1982 subsection 61(3) and Crimes Act 1900 section 26 In the Alternative to the Sixth charge Common assault Being a defence member at Canberra, in the Australian Capital Territory, on or about 4 June 2016 did assault [the first complainant] by touching her buttock.

THE TRIAL 17 The charges were referred for trial before the first respondent who was a Defence Force Magistrate ("the DFM") appointed under the DFDA. 18 When he was arraigned SGT Uren's defending officers advised the Tribunal that he was prepared to plead guilty to a number of charges which had been laid against him, including the alternative common assault charges which were preferred as alternatives to the first and third charges. He said that he would, in each case, plead not guilty to the principal charges. 19 The DMP advised that she would accept SGT Uren's pleas in satisfaction of all the charges on the charge sheet. 20 At the outset of the trial the DFM sought submissions from the DMP and SGT Uren as to his jurisdiction to try charges of common assault. He did so because of what he said was a "concern about the alternative charges pursuant to s 61 of the DFDA and Crimes Act section 26 common assault and whether they are available in the circumstances of this case and particularly in light of the ruling by the Full Court of the Federal Court in Hoffman's case." 21 Both the prosecutor and the defending officer submitted that the DFM had jurisdiction to hear and determine the charges preferred by the DMP and to accept SGT Uren's proposed pleas to charges of common assault. 22 The DFM said that he could "only deal with service offences and offences that are correct at law." He said that it was his view that he could not "even arraign an accused on a charge that otherwise is not available to me." He ruled that "preferring of a charge under section 61 of the DFDA and Crimes Act 26 [sic] is wrong at law and is not available" and that he did not have jurisdiction to try charges of assault contrary to these provisions. 23 In making these rulings the DFM also appears to have been influenced by some statements, in the explanatory memorandum which accompanied the Bill which became the DFDA, which he considered evinced a legislative intention to "limit jurisdiction under the DFDA when it came to … simple assault to public places or service land, vehicles, aircraft, et cetera." 24 The DFM ordered, purportedly pursuant to s 141(8) of the DFDA, that the charges of common assault be referred back to the DMP. 25 Following the ruling and the making of the order the prosecutor sought an order adjourning the trial in order to obtain advice and, if necessary, commence a proceeding in this Court to challenge the ruling. The adjournment was granted.

HOFFMAN'S CASE 26 The DFM's ruling was founded on what he understood to be the reasoning of a Full Court of this Court in Hoffman. 27 In Hoffman the accused was charged before a DFM with the common assault of another service member on service land. The charge was laid under s 61 of the DFDA and s 26 of the Crimes Act. At the time the charge was laid the DMP was unable to lay a charge, in respect of the same conduct, under s 33(a) of the DFDA because the laying of such a charge was time barred. As remains the case, the maximum penalty for an offence under s 33(a) is six months imprisonment whilst the maximum penalty for an offence under s 26 of the Crimes Act is two years. The Court considered that the elements of the charges under the two provisions were identical. 28 The Full Court held, by majority (Black CJ, Wilcox and Gyles JJ, Lindgren J agreeing, Beaumont J dissenting), that the charge under s 61 was not open in the circumstances of that case. 29 In his ruling the DFM placed particular reliance on two passages in the joint judgment of Black CJ, Wilcox and Gyles JJ. Those passages appeared at 528 [11] and [12]). They read: Providing two different penalties for an offence with the same elements in two sections of the same statute gives rise to a question of construction that cannot be resolved otherwise than by choosing one section over the other. It is hardly likely that the legislature intended to allow the same conduct to be treated differently, where there is no relevant aggravating or distinguishing circumstance, dependent upon the whim of the prosecuting authority. … … A conventional method of resolving such an inconsistency as arises here is for the general to yield to the particular … 30 Their Honours considered that s 61 was a general or "catch-all" provision and s 33(a) a particular provision: at 529 [16]-[17]. 31 These passages appear to have led the DFM to the view that he could never have jurisdiction to hear a charge under s 61, even where (as here) the alleged conduct could not be charged under s 33(a). 32 It is implicit in the DFM's reasons that he treated Hoffman as standing for the broad proposition that a charge of common assault, preferred under s 61(3) of the DFDA and s 26 of the Crimes Act can never be available, because such an offence will always be inconsistent with the offence prescribed by s 33(a) of the DFDA.

THE DMP'S APPLICATION 33 The DMP applied to the Court for orders under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") which declared that the DFM had jurisdiction to hear the charges of common assault preferred as alternatives to the principal charges 1 and 3 on the charge sheet and which quashed the DFM's order referring those charges to the DMP, purportedly pursuant to s 141(8) of the DFDA. An order in the nature of mandamus was also sought to compel the DFM to hear and determine the charges of common assault. 34 The application was supported by SGT Uren. The DFM, properly, submitted to the jurisdiction of the Court and indicated that he proposed to play no part in the hearing of the application. 35 In the absence of a proper contradictor Ms Rowena Orr QC was briefed to appear as amicus curiae. 36 The application was heard on 5 December 2017. At the conclusion of the hearing I made a declaration that the first respondent had jurisdiction to hear the common assault charges and quashed his decision to refer those charges to the DMP pursuant to s 141(8). I did not make an order requiring the DFM to hear and determine the charges because I did not consider that a coercive order was necessary having regard to the terms of the declaration and my confidence that the DFM would act consistently with the judgment of the Court. I advised the parties that I would publish my reasons at a later date. These are those reasons.

Jurisdiction 37 The parties appearing and the amicus curiae were agreed that the Court had jurisdiction to entertain the application. The Court's jurisdiction had been engaged under s 39B(1) of the Judiciary Act because the DMP had sought the issue of a writ of mandamus against the DFM who was an officer of the Commonwealth. I accept this submission. The issue of a writ of mandamus was sought. It could have been issued had the Court been so minded. The fact that, as a matter of discretion, it was withheld, does not deprive the Court of jurisdiction. The relief sought was not colourable: see New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 at 382; [1995] FCA 672 at p 30 (Hill J). 38 I would add, for the sake of completeness, that, where relief of the kind comprehended by s 39B(1) is sought, the Court has jurisdiction, pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) to grant declaratory relief: see Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 107 at 127; [1994] FCA 31 at p 38 (French J).

Hoffman 39 The DMP, SGT Uren and the amicus curiae all submitted that the DFM had erred in law in holding that he lacked jurisdiction to try the charges of common assault and in referring those charges to the DMP. There were common elements to the submissions made by them but each raised some novel points. 40 Each contended that the DFM had misconstrued the Full Court's reasons for judgment in Hoffman. I accept these submissions. 41 The inconsistency which gave rise to the Full Court's decision in Hoffman does not exist in the circumstances which confronted the DFM. The relevant alleged assaults occurred in a private room in a hotel. The room was not located on service land or in a public place. As a result the alternative charges could not have been laid under s 33(a) of the DFDA. There was no inconsistency in the circumstances of the present case because the "particular" provision (s 33(a)) was not available to the DMP: cf Jones v Chief of Navy (2012) 205 FCR 458 at 491-492; [2012] FCAFC 125 at [115] (Keane CJ, Emmett, Edmonds, Besanko and Robertson JJ). 42 Secondly, unlike Hoffman, the elements of the charges, in this case, were not identical. They were identical in Hoffman, on one view, because the assault had occurred on service land and the offence, provided for in s 26 of the Crimes Act, could be committed anywhere, including on service land. In the present case the DMP was not required to establish that the assault took place on service land. Indeed, she could not do so. 43 Thirdly, the Full Court, in Hoffman, did not exclude the possibility that, in some cases, charges could be laid, relying on s 61, where it was open to the DMP to lay charges of one or more military offences. The plurality held (at 534 [40]) that: Acceptance of the appellant's argument in this case does not mean that s 61 is not to be given full force and effect where it is applicable. Whilst, in circumstances such as the present, a charge cannot be preferred pursuant to s 61 with elements identical to those of a particular charge in the earlier divisions of Pt III, if the charge laid pursuant to s 61 is truly different from (particularly if more serious than) that which might be laid pursuant to a particular earlier provision, then the fact that the conduct could have been charged pursuant to the earlier provision would be no answer, in itself, to the different charge pursuant to s 61. This passage was not referred to by the DFM in his reasons. Their Honours' observations make it clear that their decision does not support the proposition that the presence of s 33(a) in the DFDA will always prevent the DMP from laying common assault charges under s 61(3) of the DFDA and s 26 of the Crimes Act. 44 There was, therefore, no legal impediment to the DMP preferring alternative charges of common assault against SGT Uren. The DFM had jurisdiction to try those charges and to accept and act on pleas by SGT Uren in relation to them.

Secondary materials 45 The statement in the explanatory memorandum which appears to have led the DFM to the view that s 33 was intended to operate to the exclusion of s 61 in cases in which common assault was alleged was that "[c]lause 33 … confines the ambit of the offences to service land, et cetera and public places": Explanatory Memorandum, Defence Force Discipline Bill 1982, page 89. 46 This statement does no more than paraphrase part of s 33 and confirms that its operation is confined by its terms to assaults which occur on service land, ships, aircraft, vehicles or in a public place. It says nothing about the interaction between ss 33 and 61. That relationship was considered elsewhere in the explanatory memorandum (at page 346), where it was expressly contemplated that an "assault" could be charged under either ss 33 or 61 "according to the circumstances". 47 The purpose of s 33 was considered by the High Court in Li v Chief of Army (2013) 250 CLR 328; [2013] HCA 49. In their unanimous judgment the Court (French CJ, Crennan, Kiefel, Bell and Gageler JJ) held (at 337 [17]) that: The legislative history suggests that the mischief to which s 33 of the DFDA is addressed is appropriately identified broadly as the maintenance of order and discipline rather than narrowly as the elimination of violence. What is "reprehensible" about the conduct prohibited by each of the paragraphs of s 33 is the likely disruptive effect of that conduct on others in or in the vicinity of the place where that conduct occurs. The confining of the service offences created by s 33 to conduct only on service land, in a service ship, aircraft or vehicle, or in a public place also tells against preferring a narrower construction of the conduct prohibited by each of those paragraphs merely because that narrower construction would least diminish the personal rights and freedoms of those defence members and defence civilians whose conduct is governed by the section. As the amicus curiae correctly contended, the fact that the operation of s 33 is confined to service property or public places is simply a reflection of its purpose. It is not indicative of any legislative intention that s 33 should comprehensively cover all common assaults committed by service men and women.

The purported referral 48 The DFM did not have power to refer the common assault charges back to the DMP under s 141(8). The exercise of power under that subsection is conditioned on the granting of an application or the allowing of an objection under the section. No such application or objection was made. Indeed, when given the opportunity to make an application under the section, SGT Uren specifically declined to do so. 49 The referral order must, therefore, be quashed.

DISPOSITION 50 It was for these reasons that the application was granted and the declaration and order made on 5 December 2017. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.