LOGAN J:
1 In Burdett v Abbot [1812] 128 ER 384; 4 Taunt 401, at p 403, pp 449-450 (Burdett v Abbot), Lord Mansfield CJ stated:
I will correct a strange mistaken notion which has got abroad, that because men are soldiers they cease to be citizens; a soldier is gifted with all the rights of other citizens … It is therefore highly important that the mistake should he corrected which supposed that an Englishman, by taking upon him the additional character of a soldier, puts off any of the right and duties of an Englishman.
Referring to Burdett v Abbot and to constitutional developments in the aftermath of, successively, the English Civil War, the experience of the Cromwellian Protectorate backed by the New Model Army, the Restoration and the Glorious Revolution, Mr C M Clode, Legal Adviser at the War Office, in his enduringly authoritative work, The Military Forces of the Crown: Their Administration and Government, 1869, Vol 1, p 144, makes the point that the political class in what became the United Kingdom were then and have remained astute to ensure that the military never developed as a separate caste, isolated from the people. This astuteness was at once protective of society from the threat of military dictatorship of the kind into which the republican ideal of the Protectorate descended but also premised on the principle that members of the military remained in the first instance members of the society they served, giving up no more of the rights of an ordinary citizen than was necessary in order to render that service.
2 It is elementary that this same understanding is applicable to members of the Australian Defence Force (ADF). Reflecting this understanding, Lord Mansfield's statement in Burdett v Abbot was expressly approved by Stephen, Mason, Aickin and Wilson JJ in their joint judgement in Groves v Commonwealth of Australia (1982) 150 CLR 113 at 126 (Groves). The emphatic rejection in Groves of a contention by the Commonwealth that it was immune from suit for damages in respect of a tortious wrong inflicted on a member of the ADF merely because that had occurred in the course of military service is a manifestation of this understanding. Members of the ADF enjoy both the protection of the common law and are subject to responsibilities at common law in the same way as are others in Australia, subject only to those which, by statute or by necessary implication from particular circumstances of service, are removed.
3 Recent High Court authority, Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 93 ALJR 1, (Strickland), serves to remind that especially important common law rights are found in what is compendiously termed the "right to silence". Strickland also serves to remind that, in certain circumstances, the continuance of a prosecution where an accused has been denied a right to silence can amount to an abuse of the criminal justice process such that further proceedings against that accused should be stayed.
4 The appellant, Justin Peter McCleave, holds the rank of Lieutenant (LEUT McCleave) in the Royal Australian Navy. He is also a legal practitioner. He holds an appointment as a legal officer in the Royal Australian Navy Reserve (RANR).
5 LEUT McCleave contends that on the basis of a representation made to him, via his legal representative, within his chain of command, by the Executive Officer of the commissioned shore establishment, HMAS Cerberus, that administrative action, rather than proceedings under the Defence Force Discipline Act 1982 (Cth) (DFDA), would be taken against him, he acknowledged in writing a wrongful claim by him for RANR training pay. He claims that DFDA proceedings before a Defence Force Magistrate (DFM) subsequently commenced against him by the Director of Military Prosecutions (DMP) were an abuse of process. An application by him to the DFM permanently to stay the proceedings failed. Thereafter, LEUT McCleave pleaded guilty to and was convicted of the service offence of recklessly making a false or misleading statement in relation to an application for a benefit contrary to s 56(4) of the DFDA. In respect of this offence, the DFM sentenced LEUT McCleave to be severely reprimanded.
6 LEUT McCleave's further contention is that his being called upon to enter a plea, his conviction consequential upon his entry of his plea of guilty and his sentence were each features of proceedings which were an abuse of process. For these reasons, he seeks an order that his conviction be quashed and that there be no order for a new trial.
7 In some respects (taking of fingerprints and identification photographs, participation in identification parades), the DFDA modifies or abrogates the privilege against self-incrimination. That privilege forms part of the "right to silence": Lee v New South Wales Crime Commission (2013) 251 CLR 196 at 313 [318] (Lee No 1) per Gageler and Keane JJ. No such abrogation or modification is applicable in the present case. Therefore, the effect of Burdett v Abbot and Groves is that LEUT McCleave did not, by his membership of the ADF, lose his common law "right to silence".
8 LEUT McCleave filed his notice of appeal to the Tribunal outside the time prescribed by the Defence Force Discipline Appeals Act 1955 (Cth) (Appeals Act). In essence, that was because, not unreasonably, he was awaiting the result of the review of conviction for which the DFDA provides. It is not necessary further to detail the reasons for the delay in the filing of his notice of appeal. That is because, very fairly, the respondent Chief of Navy expressly refrained from opposing the granting of an extension at the hearing before the Tribunal. Accordingly, LEUT McCleave should be granted an extension of time to the date on which he filed his notice of appeal.
9 In their reasons, Hiley and Garde JJ set out more comprehensively the relevant facts as briefly summarised above. I gratefully adopt their account.
10 The critical facts are found in the exchange of emails on 1 December 2016 between CMDR Verho (on behalf of the Commanding Officer of HMAS Cerberus) and CMDR Welbourne (on behalf of LEUT McCleave), viewed in the wider context in which they occurred. The culmination of the exchange was the statement made by CMDR Verho to CMDR Welbourne, "No I will not be taking DFDA action." So viewed, I am quite unable to regard the latter statement as indicating only that CMDR Verho personally or even only that the naval officer commanding HMAS Cerberus and each of that officer's subordinates would not take action under the DFDA against LEUT McCleave, leaving open the prospect that the DMP may later choose to take such action. The statement was made and received and intended to be made and received on the basis that LEUT McCleave could be assured that no action under the DFDA would be taken against him.
11 On the strength of the representation made to CMDR Welbourne, LEUT McCleave waived the right to silence to which his legal representative had referred in the exchange of emails. He made comprehensive admissions in respect of his conduct in his response to the notice to show cause. He was then dealt with administratively accordingly.
12 At the heart of LEUT McCleave's submissions was the proposition that, in terms of principle and outcome, the present appeal should be regarded as a replication, in the context of the Australian military justice system, of circumstances which moved a Divisional Court in R v Croyden Justices, Ex parte Dean [1993] QB 769 (Croyden Justices Case) to quash an order made by justices committing an accused for trial. It will be necessary to consider that case and authorities to which reference is made in it in greater detail shortly. Suffice it to say, notwithstanding representations made by police officers to a person who had been assisting them with their investigations that he would not be prosecuted, on the strength of which he had made a self-incriminating statement, the Crown Prosecution Service later instituted criminal proceedings against him which resulted in the making of the committal order challenged. That order was quashed on the basis that the committal proceedings were, in the circumstances, an abuse of process. The resemblance with the present case is indeed striking. That resemblance is heightened by the fact that the submissions made by the Crown Prosecution Service in that case in relation to the independent prosecutorial discretion vested in that service bore an uncanny similarity to the submissions of the DMP as to the independent role which she undertook under the DFDA.
13 Before turning to the Croyden Justices Case in greater detail, it is desirable to make some observations in relation to the course of action adopted by LEUT McCleave after the DFM ruled against his application for a stay of the proceedings. That ruling having been made, LEUT McCleave chose to enter a plea of guilty. Before so doing, it would have been open to him to seek an adjournment so as to institute a proceeding in the original jurisdiction of the High Court of Australia under s 75(v) of the Constitution claiming the constitutional writs of prohibition and certiorari, naming the Chief of Navy, DFM and perhaps also the DMP as respondents. Alternatively, he could, under s 39B of the Judiciary Act 1903 (Cth), have sought like relief in the original jurisdiction of the Federal Court of Australia. It would not have been possible for him alternatively to seek relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth), because the effect of s 3 (definition of "decision to which this Act applies") and para (o) of Sch 1 to that Act is to exclude its application to decisions under the DFDA.
14 The end to which such judicial review proceedings in the High Court or the Federal Court might have been directed was the quashing of the DFM's ruling and the prohibition of the continuance of the DFDA proceedings on the basis that they were an abuse of process. As against that course of challenge and by analogy with observations made in Sankey v Whitlam (1978) 142 CLR 1 at 25-26 per Gibbs ACJ and at 80 per Stephen J (with whom Aickin J agreed) and Lamb v Moss (1983) 76 FLR 296 at 308, concerning interference with the ordinary course of civilian criminal justice proceedings, it might have been put that only in exceptional circumstances would a superior court interfere with the ordinary course of military justice proceedings. Yet the Croyden Justices Case itself offers an example of such interference in the civilian criminal justice system, notwithstanding an acknowledgement that such a course was exceptional. Further, though in outcome it was ultimately unsuccessful, Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308 offers an example of a willingness on the part of the High Court to grant an order nisi for prohibition which had the effect of interrupting the ordinary course of a court martial proceeding.
15 These possible, public law courses of action acknowledged, that LEUT McCleave chose to plead guilty so as to generate the conviction which is a condition precedent to his exercising a right of appeal to the Tribunal (and to spare the public purse the cost of a trial) does not, in my view, render the point he has taken academic. That is because if, truly, the proceedings were an abuse of process, that abuse necessarily included his being requested by the DFM to enter a plea to the charges. Prior to so doing, LEUT McCleave had taken objection to the continuance of the proceedings and sought a ruling. In my view, that means that he did not waive his right of seeking the quashing of his conviction on the basis that the proceedings were an abuse of process.
16 More detailed reference should now be made to the Croyden Justices Case and the authorities referred to therein. The headnote is a convenient and accurate source for a detailing of the facts. The applicant, Dean, who was then aged 17, was arrested and interviewed by the police in the course of a murder investigation. During the interview he effectively admitted that he had assisted in the destruction of a car with intent to impede the apprehension or prosecution of others knowing or believing that they were guilty of an arrestable offence. He was released without charge on the basis that he was to be a prosecution witness. The applicant duly made a prosecution witness statement and continued to assist the police voluntarily for a period of over five weeks. The police continued to refer to him as a prosecution witness and he alleged that they made specific assurances that he would not be prosecuted in connection with the murder. Thereafter the Crown Prosecution Service decided that the applicant should be charged with doing acts with intent to impede the apprehension of another, contrary to s 4(1) of the Criminal Law Act 1967 (UK). The applicant was interviewed on two subsequent occasions, but no mention was made of that decision, nor was he offered legal advice or cautioned. The applicant was later charged. At committal proceedings the applicant submitted that the justices should not proceed as examining justices to inquire into the alleged offence on the ground that the trial would be an abuse of the process of the court. The justices rejected that submission, refused to adjourn the proceedings pending an application to the High Court for a stay, and committed the applicant for trial.
17 Materially, s 3(2)(b) of the Prosecution of Offences Act 1985 (UK) provided, in relation to the Director of Public Prosecutions, the official in charge of the Crown Prosecutions Service:
(2) It shall be the duty of the Director- …
…
(b) to institute and have the conduct of criminal proceedings in any case where it appears to him that-
(i) the importance or difficulty of the case makes it appropriate that proceedings should be instituted by him ; or
(ii) it is otherwise appropriate for proceedings to be instituted by him ;
At the time when the Croyden Justices Case was decided, constables in the United Kingdom also possessed the power at common law to arrest without warrant and charge a person suspected of committing a felony and enjoyed a somewhat broader power of arrest without warrant under the Police and Criminal Evidence Act 1984 (UK).
18 There was no suggestion in the Croyden Justices Case that, either in making the representation to Dean that no prosecution would be instituted or in later instituting such proceedings respectively, the police or the Crown Prosecutions Service had acted in bad faith.
19 The leading judgement in the Croyden Justices Case was that of Staughton LJ, with whom Buckley J agreed. His Lordship (at 777) derived from statements in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (Hunter v Chief Constable) and Connelly v Director of Public Prosecutions [1964] AC 1254 (Connelly v Director of Public Prosecutions) the principle that a court in the United Kingdom possessed a broad inherent power to stay criminal proceedings as an abuse of process. In Hunter v Chief Constable, Lord Diplock (at 536) referred to:
[The] inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; …
In Connelly v Director of Public Prosecutions Lord Devlin said:
Are the courts to rely on the executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them? To questions of this sort there is only one possible answer.
20 Having referred to these statements, Staughton LJ (at 778) surveyed a number of Commonwealth authorities, including Australian authorities, in which a like judicial disposition was evident:
Other Commonwealth cases have considered whether there should be a stay when the defendant has been promised immunity or something of that sort. In Reg. v. Milnes and Green (1983) 33 S.A.S.R. 211 the Supreme Court of South Australia held that a stay would not be granted, because an implied condition of the promise of a pardon, that the defendant would give truthful information, had been broken. But Cox J., whose judgment was approved on appeal, accepted, at pp. 225-226, that there should be a stay when the grounds for one were clearly made out. In the Supreme Court of Victoria, Ormiston J. was apparently disposed to grant a stay in Reg. v. Georgiadis [1984] V.R. 1030. In Reg. v. Betesh (1975) 30 C.C.C. (2d) 233 a stay was granted by a county court judge in Ontario. In Reg. v. Crneck, Bradley and Shelley (1980) 116 D.L.R. (3d) 675, Krever J. granted a stay to one defendant, but refused a stay to another. Most significant, to my mind, is Chu Piu-wing v. Attorney-General [1984] H.K.L.R. 411. There the Hong Kong Court of Appeal set aside a subpoena to a witness, as an abuse of process, and the consequent conviction of the witness for contempt of court. The ground was that the witness had been assured by the Independent Commission Against Corruption that he would not be required to give evidence, although the subpoena was in the event obtained by the police. Both were held to be "arms of the executive in its investigative function." McMullin V.-P. said, at pp. 417-418:
"there is a clear public interest to be observed in holding officials of the state to promises made by them in full understanding of what is entailed by the bargain."
21 His Lordship then stated (at 778), "In my judgment the prosecution of a person who has received a promise, undertaking or representation from the police that he will not be prosecuted is capable of being an abuse of process".
22 It is noteworthy that Staughton LJ did not qualify the principle which he derived by reference to the youth of the person to whom the representation was made or hold that it was rendered inapplicable because he had made certain admissions prior to the making of the representations. Nor did his Lordship regard the statutory power vested in the Director and members of the Crown Prosecutions Service to institute proceedings as inhibiting the court's ability to determine that the committal proceedings were an abuse of process and to quash the resultant committal order.
23 Why then, LEUT McCleave submitted, should the position be any different in his circumstances?
24 The starting point of answering this question should be s 87 of the DFDA, which materially provides:
Summons and order in the nature of summons
(1) Where an authorized member of the Defence Force believes, on reasonable grounds, that a person has committed a service offence, the authorized member may:
(a) if the person is a defence member:
(i) charge the defence member with the service offence;
…
(6) In this section:
"authorized member of the Defence Force" means:
(a) the Director of Military Prosecutions; or
(b) a member of the Defence Force, or a member of the Defence Force included in a class of members of the Defence Force, authorized, in writing, by a commanding officer for the purposes of this section.
25 Section 89 of the DFDA provides for the alternative of proceedings under the DFDA to be instituted by the arrest of a specified defence member or defence civilian by particular defence members in certain circumstances. It is not necessary for present purposes to consider this alternative.
26 Section 188GA of the DFDA materially provides:
Functions of the Director of Military Prosecutions
(1) The Director of Military Prosecutions has the following functions:
(a) to carry on prosecutions for service offences in proceedings before a court martial or a Defence Force magistrate, whether or not instituted by the Director of Military Prosecutions;
27 The DFDA also expressly confers on the DMP a power to give undertakings to a person on particular terms that a statement if given will not be used in evidence or that a person will not be prosecuted for a service offence, s 188GD providing:
188 GD Undertakings by the Director of Military Prosecutions
(1) The Director of Military Prosecutions may, if he or she considers it appropriate to do so, give to a person an undertaking that:
(a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in proceedings for a service offence; or
(b) the fact that the person discloses or produces a document or other thing in proceedings for a service offence; or
(c) any information, document or other thing that is obtained as a direct or indirect consequence of an answer that is given, a statement or disclosure that is made, or a document or other thing that is disclosed or produced in proceedings for a service offence;
will not be used in evidence against the person in any other proceedings for a service offence.
(2) If the Director of Military Prosecutions gives an undertaking under subsection (1):
(a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in the proceedings; or
(b) the fact that the person discloses or produces a document or other thing in the proceedings; or
(c) any information, document or other thing that is obtained as mentioned in paragraph (1)(c);
as the case may be, is not admissible in evidence against the person in any other proceedings for a service offence, other than proceedings in respect of the falsity of evidence given by the person.
(3) The Director of Military Prosecutions may, if he or she considers it appropriate to do so, give to a person an undertaking that the person will not be prosecuted:
(a) for a specified service offence; or
(b) in respect of specified acts or omissions that constitute, or may constitute, a service offence.
(4) If the Director of Military Prosecutions gives an undertaking to a person under subsection (3), no prosecution may be instituted against the person in respect of the specified service offence or a service offence in respect of the specified acts or omissions.
(5) An undertaking under subsection (3) may be subject to any conditions that the Director of Military Prosecutions considers appropriate.
28 Thus, under the DFDA, the DMP shares with particular defence members the power to institute proceedings in respect of a service offence. Irrespective of who institutes such a proceeding, the DMP is expressly empowered to carry on its prosecution. There is, therefore, no material distinction to be drawn between the position of the DMP and that of the Crown Prosecution Service considered in the Croyden Justices Case. In that case, the police did not possess any exclusive power to institute criminal proceedings yet that was not regarded as having the effect of vitiating a representation by them that no prosecution would be instituted. Neither, contrary to the submission which was made on their behalf, was the express statutory authority possessed by the Director and the Crown Prosecution Service to institute proceedings regarded as having that effect.
29 As in in the Croyden Justices Case, there is no suggestion of bad faith in the conduct of the Executive Officer who made the representation or on the part of the DMP in instituting the proceedings before the DFM. Each of these officers was doing his or her duty as he or she understood it.
30 The following observations made by Staughton LJ in the Croydon Justices Case (at 776-777) are applicable in the present case by analogy:
It is submitted on behalf of the Crown Prosecution Service that they alone are entitled, and bound, to decide who shall be prosecuted, at any rate in this category of case; and that the police had no authority and no right to tell the applicant that he would not be prosecuted for any offence in connection with the murder: see section 3(2) of the Prosecution of Offences Act 1985. I can readily accept that. I also accept that the point is one of constitutional importance. But I cannot accept the submission of Mr. Collins that, in consequence, no such conduct by the police can ever give rise to an abuse of process. The effect on the applicant or for that matter on his father, of an undertaking or promise or representation by the police was likely to have been the same in this case whether it was or was not authorised by the Crown Prosecution Service. It is true that they might have asked their solicitor whether an undertaking, promise or representation by the police was binding and he might have asked the Crown Prosecution Service whether it was made with their authority. But it seems unreasonable to expect that in this case. If the Crown Prosecution Service find that their powers are being usurped by the police, the remedy must surely be a greater degree of liaison at an early stage.
[Mr Collins appeared on behalf of the DPP]
31 To paraphrase, I readily accept that the DFDA confers an independent discretion to institute proceedings on the DMP. That Act also expressly (s 188GD) confers on the DMP a power to give undertakings. But I cannot accept that, in consequence, no conduct within a defence member's (here, LEUT McCleave's) chain of command can ever give rise to an abuse of process by the later institution of proceedings under the DFDA for a service offence. The effect on both LEUT McCleave and, for that matter, his legal advisers of the undertaking by the Executive Officer of his unit, given apparently on the basis of legal advice to that officer, was likely to have been the same whether an undertaking, promise or representation by the Executive Officer was binding and he might have asked the DMP whether it was made with her authority. Especially given the imperatives which attended the making of a response by LEUT McCleave to the notice to show cause, it seems unreasonable to expect that in this case. If the DMP finds that her powers are being usurped in respect of particular defence members by officers within that member's chain of command, the remedy must surely be a greater degree of liaison at an early stage. It may be that this case highlights a high level failure of command within the ADF to bring home to all officers the independent role assigned by Parliament to the DMP. With its revelation of the initiation of administrative discipline-related proceedings (the notice to show cause) prior to the making of a definitive decision by the DMP as to whether to institute service offence proceedings, it may also be that the case highlights a systemic disjunct between administrative and prosecutorial disciplinary process within the ADF. This, disjunct, too, may be indicative of a high level failure of command within the ADF. Neither of these is a reason to treat the representation made to LEUT McCleave as anything less than a bargain.
32 No less than in the civilian criminal justice system, it is a fundamental feature of proceedings in respect of a service offence before either a court martial or a DFM under the DFDA entail "an accusatorial process in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt" Lee No 1, at [318] per Gageler and Keane JJ; RPS v The Queen (2000) 199 CLR 620 at 630 [22]. See also Azzopardi v The Queen (2001) 205 CLR 50 at 64 [34]; Carr v Western Australia (2007) 232 CLR 138 at 152 [36]-[37]. The comprehensive admissions made by LEUT McCleave following the representation made to him conferred on any prosecuting authority a considerable and enduring forensic advantage in the event that any such proceedings were instituted.
33 In their joint judgement in Strickland, at [99]-[100], Kiefel CJ, Bell and Nettle JJ stated:
99 … As the majority of this Court stated in Moti v The Queen, decided cases should not be read as attempting to chart the boundaries of abuse of process. Nor should they be read as attempting to define exhaustively the circumstances that warrant exercise of the power to stay criminal proceedings or as providing some "exhaustive dictionary of words" by one or more of which executive action must be capable of description before proceedings may be stayed. As Kirby J aptly summarised the position in Truong v The Queen:
"relief is not confined to cases of deliberate and knowing misconduct, although that may be sufficient to enliven the jurisdiction. It extends to serious cases where, whatever the initial motivation or purpose of the offending party, and whether deliberate, reckless or seriously negligent, the result is one which the courts, exercising the judicial power, cannot tolerate or be part of."
100 No doubt, society and therefore the law ordinarily looks more askance on instances of deliberate or advertent reckless disregard of a duty or obligation than upon the accidents of incompetence. As a rule, the former are conceived of as entailing greater moral culpability and for that reason their condonation is conceived of as more likely to bring the administration of justice into disrepute. But ultimately it is a question of degree which substantially depends upon the nature of the duty or obligation. If a duty or obligation is of no more than peripheral significance, condonation of its breach, even of an intentional breach, may appear justified in the interests of relatively more pressing considerations of justice. The power to stay proceedings is not available to cure venial irregularities. But if, as here, the duty or obligation is of a kind that goes to the very root of the administration of justice, condonation of its breach will bring the administration of justice into disrepute regardless of the culprit's mentality. Ultimately, these appeals turn on that distinction.
In my respectful view, no difference in principle is disclosed in this passage in relation to the power to stay a proceeding as an abuse of process from that derived by Staughton LJ in the Croydon Justices Case.
34 In their joint judgement in White v Director of Military Prosecutions (2007) 231 CLR 570, at [70] - [72] (White v DMP) Gummow, Hayne and Crennan JJ stated:
70. In many instances, service as a defence member involves additional responsibilities whose enforcement calls for more than the application of the general law by civilian courts. …
71. A more adequate starting point for analysis is apparent in the following passage in the title "Royal Forces" in the first edition of Halsbury's Laws of England. The passage is as follows:
"It is one of the cardinal features of the law of England that a soldier does not by enlisting in the regular forces thereby cease to be a citizen, so as to deprive him of any of his rights or to exempt him from any of his liabilities under the ordinary law of the land. He does, however, in his capacity as a soldier, incur additional responsibilities, for he becomes subject at all times and in all circumstances to a code of military law contained in the Army Act, the King's Regulations and Orders for the Army, and Army Orders."
[Footnotes omitted]
72. The matter was taken up by Windeyer J in the following passage in Marks v The Commonwealth:
"The relationship of members of the armed Services to the Crown differs essentially from that of civil servants whose service is governed by the regulations of the Public Service. The members of the Forces are under a discipline that the others are not: they have duties and obligations more stern than theirs: and rights and privileges that they cannot claim."
[Footnote references omitted]
35 The service tribunal system the constitutional validity of which was emphatically vindicated in White v DMP exists to buttress the discipline of the members of the ADF, to ensure that they adhere to a code of military law found in the DFDA. Discipline ensures conformity with a chain of command at the very pinnacle of which is not a serving military officer but rather, by virtue of s 68 of the Constitution, the Governor-General, as the Queen's representative. In turn, the Governor-General exercises that command on the advice of the Federal Executive Council (usually via the Minister for Defence), comprised of Ministers responsible to Parliament. Once this is understood, nothing could be more subversive of a military justice system than to countenance its use to try a member of the ADF who has been assured within his chain of command that no proceedings under the DFDA will be taken against him and, on the strength of that, has waived a right to silence and made admissions. The proceedings instituted and continued against LEUT McCleave were, for this reason, an abuse of the service tribunal process. That they constitute an abuse of process is in complete conformity with the understanding of what, in the civilian criminal justice system may, as explained in the Croydon Justices Case and Strickland, amount to an abuse of process. The DFM's failure to appreciate this constituted an error of law.
36 The appeal and the application before the DFM proceeded on the footing that the DFM possessed power to stay the proceeding as an abuse of process. White v DMP confirms that a service tribunal such as a DFM does not exercise the judicial power of the Commonwealth under Chapter III of the Constitution but does nonetheless exercise a form of judicial power adapted to the end of trying cases in respect of alleged service offences under the military justice system. The jurisdiction of a DFM is wholly statutory. Relevantly, it is found in the obligation created by s 135(1) of the DFDA to "try a charge". As a DFM does not constitute a superior court of record, it would not, in my view, be appropriate to source the power to stay a proceeding in inherent power. Rather, the power to try a charge must, by necessary implication, carry with it a power to prevent a trial which is an abuse of process. Thus, I discern no error in the position adopted by the parties.
37 The Appeals Act by s 23(1), confers upon the Tribunal a power to quash a conviction, where it appears to the Tribunal materially:
(b) that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction or the prescribed acquittal 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 before the court martial or the Defence Force magistrate and that a substantial miscarriage of justice has occurred;
Each is apt to cover the present case. The DFM's error of law led to the continuance of a proceeding which was an abuse of process. The calling on LEUT McCleave to plead was a material irregularity, because it occurred in a proceeding which should have been halted as an abuse of process. For each reason, a substantial miscarriage of justice occurred.
38 LEUT McCleave's conviction should therefore be quashed. Given that the proceeding was an abuse of process, the interests of justice are such that the Tribunal should not exercise its power under s 24 of the Appeals Act to order a new trial. At least initially, LEUT McCleave also sought an order that there be a permanent stay of proceedings under the DFDA against him. The Tribunal is not a court but rather a body established by the Appeals Act to serve the ends of the military justice system. That being so, the absence of any express power in the Appeals Act to order a stay of proceedings tells against the Tribunal having any power to make such an order. As I understood it, this was accepted in the end by those representing LEUT McCleave. The absence of any such power is not, in my view of any moment for LEUT McCleave. That is because the Tribunal's decision will bind not just the Chief of Navy but derivatively each of those who might institute a proceeding for a service offence. The basis upon which his conviction has been quashed and no new trial ordered is such that it is axiomatic that the institution of any further proceeding would be an unlawful abuse of process.
39 I would make orders accordingly.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan (President).