Sargeson v Chief of Army

i. that he failed to take into account the undisputed medical evidence that SIG Sargeson was suffering from depression and anxiety at the time of the offences and that detention would pose a significant risk to his health;

ii. that he failed to take into account the applicant's remorse by reason of his plea of guilty.

iii. that he took into account an irrelevant consideration, namely the fact that the charges were being heard by a Commanding Officer indicating that they were serious charges.

iv. that he failed to take into account and reduce the applicant's term of detention by the time he had spent in custody prior to his conviction; there was evidence that SIG Sargeson was in detention for a period of three days prior to sentencing on 3 November 2005.

9. I will set out the background before turning to the reasons given by the Commanding Officer for his decision.

Background 10. The offences in question were committed on 23 October 2005. SIG Sargeson was charged under ss 24(1) and 29 of the DFDA on 25 October 2005. He was apprehended and placed in custody on 30 October 2005. 11. As I have said, he was tried and convicted on 3 November 2005. On that date there was a purported exercise of the sentencing power by the Commanding Officer. The Commanding Officer had before him an opening statement filed on behalf of SIG Sargeson. The opening statement included the following: "On Sunday 22nd of October, 8213913 SIG C.J. Sargeson left the LMA without any authorised leave. SIG Sargeson made this decision at a time when he was overwhelmed with feelings of anxiety and depression. At the time SIG Sargeson was also under a degree of pressure due to considerable financial obligations and personal difficulties. Prior to leaving, SIG Sargeson firmly believed he needed to remove himself from the current source of his anxiety and depression. SIG Sargeson felt that if he did not leave that he was likely to break down or take action likely to be detrimental to his well being. During this time of stress and confusion, SIG Sargeson felt that the best way to relieve himself of these feelings was to leave the Liverpool Military Area. It should be noted that before leaving the area, SIG Sargeson attempted to seek medical assistance in relation to his feelings at the time. The duty doctor told SIG Sargeson that there was no reason for any anti-depressants to be issued nor was there a need for admission for observation. SIG Sargeson planned to return to the unit the week following as he felt that this would be sufficient time for him to address any problems within himself. SIG Sargeson voluntarily returned to the unit in order to seek help but only found himself in what he described as 'a more stressful situation'." 12. The pre-sentence report which was before the Commanding Officer included the document entitled Action Memo, of Dr Lakos. The Action Memo included the following:- "It is my opinion that he is suffering from reactive depression/anxiety, that has slowly been building over 5 months. … After a detailed interview with the member, I believe that detaining this member will pose a significant risk to this member's health, that there is also a significant risk of self harm." 13. There was also a statement tendered at the trial, the statement being of Lieutenant Batten which demonstrated that SIG Sargeson's absence without leave was due to his psychological problems. Lieutenant Batten had communicated with SIG Sargeson while he was absent from the base and was told that: "Hey boss. Im not ok that's why I left. I really need this time away. The Dr didn't help me so I had to do this. I didn't want to but I was about to explode." 14. On 4 November 2005 there was an automatic review of the conviction and punishment pursuant to s 152 of the DFDA. The conviction and punishment were upheld. 15. On 13 November 2005, SIG Sargeson petitioned for a review of his punishment pursuant to s 153 of the DFDA. There were four bases of his petition which reflect the grounds referred to in the application in this court. In particular, they include the ground that the summary authority failed to take into account or give sufficient weight to the undisputed medical evidence that he was suffering from depression and anxiety at the time of the offences and that detention would pose a significant risk to his health. The reviewing authority dealt with the petition on 16 November 2005 under s 162 of the DFDA. 16. The decision of the reviewing authority was to dismiss the petition so that the punishments which were imposed remain. 17. The salient parts of the reasons of the Commanding Officer of 3 November 2005 should be referred to briefly. The Commanding Officer referred to mitigating circumstances in the following paragraph: "The defence's mitigation presented a number of issues, including: SIG Sargeson's financial situation The fact that he admitted being AWOL and returned voluntarily That he had already spent 36 hours DFCE, since he was detained there as a 'flight risk' " 18. The Commanding Officer noted that SIG Sargeson had admitted to being AWOL and that he had returned by his own means, that is to say voluntarily. The Commanding Officer also noted that SIG Sargeson had already been detained as a "flight risk" but the Commanding Officer assessed this to be of lesser weight in his consideration of the punishment. Detention was imposed to ensure that he would be present for the hearing and subsequent trial if warranted. 19. The Commanding Officer went on to say: "I noted that SIG Sargeson had sought the assistance of appropriate health care personnel at 1 HSB in relation to his feelings of stress and anxiety. However, the statements and evidence provided indicate that when SIG Sargeson did not receive the diagnosis he was hoping for, he absented himself without any authority or attempt to conduct discharge from the hospital." 20. The Commanding Officer said that in examining SIG Sargeson's conduct record he noted that this was his fourth AWOL charge, the most recent being five months ago. He then said: "SIG Sargeson is apparently a good soldier when he chooses to apply himself. His willingness to disregard punishments awarded and become an illegal absentee is a disturbing pattern. Additionally, I am concerned that the remainder of his conduct record refers to instances of disobeying command and orders. When I questioned SIG Sargeson about his motivation for initially being AWOL, and then his subsequent return, his response was vague and flippant. He apparently had no remorse for his actions and indicated no desire to 'clear the air and take it on the chin'." 21. The Commanding Officer then said that SIG Sargeson's charges were being heard and tried by him in his capacity as Commanding Officer and that this indicated the seriousness of the most recent charges. 22. The conclusion which the Commanding Officer reached was that he found SIG Sargeson guilty and he awarded 21 days detention on the AWOL charge and six days detention on the charge of failure to comply with a general order. The sentences purportedly imposed were to be served concurrently.

Serious Question 23. Although the matter has been dealt with urgently today and without any substantial time for the respondent's legal advisers to consider the matter, I have come to the view that there are compelling reasons for finding a serious question to be tried that the Commanding Officer acted in excess of his jurisdiction in one of the four ways submitted by Mr Street; this is that the Commanding Officer failed to take into account the medical evidence of Dr Lakos as he was required to do under s 70 of the DFDA. I do not need to consider for present purposes the three other ways in which the case has been put. 24. In Re Bolton and Another; Ex Parte Bean (1987) 162 CLR 514 at 523, Brennan J said that the law of this country is very jealous of any infringement of personal liberty and that a statute or statutory instrument which purports to impair a right to personal liberty is to be interpreted, if possible, so as to respect that right. 25. In Re Tracey; Ex Parte Ryan (1989) 166 CLR 518 at 540-541, the High Court said that the exercise of the powers under the DFDA, being enacted pursuant to the defence power, are not an exercise of the judicial power of the Commonwealth. The court said that the power to make laws with respect to the defence of the Commonwealth contains within it the power to enact a disciplinary code standing outside Chapter III but that it imposes upon those administering the code the duty to act judicially. 26. Detention pursuant to the DFDA, that is to say without judicial mandate, can only be ordered to the extent that it is justified by a valid statutory power: see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 19. 27. It seems to me that the authorities to which I have referred indicate that the proper approach to the construction of the powers purportedly exercised by the Commanding Officer are that the matters referred to in s 70(1)(a) and 70(2)(b) and (c) were not merely matters that the Commanding Officer was entitled to take into account. The mandatory language of ss 130(1)(g) and 70(1) and 70(2) of the DFDA strongly suggest that they are matters of jurisdiction. 28. In my opinion the Commanding Officer's statement of reasons demonstrates that he did not take into account SIG Sargeson's mental condition or personal history, as he was required to do under s 70(2)(b) and (c) of the DFDA. 29. I note the submissions of Mr Daley for the respondents that on a fair reading of the reasons, in accordance with the principles referred to in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481, the Commanding Officer took into account all of the matters he was required to consider under s 70. Although this is only an interlocutory hearing I must, for present purposes, reject that submission. 30. In my view, what is striking about the reasons is the absence of any reference to the uncontradicted evidence of Dr Lakos. Whilst it is true that a decision-maker is not obliged to refer to every piece of evidence, it seems to me that the absence of any reference to Dr Lakos' report on the question of mitigating circumstances entitles me to infer, at least on a preliminary basis, that the Commanding Officer did not consider the report to be material: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69]. 31. Mr Daley submitted that the dismissal of the petition for review on 16 November 2005 had the effect of curing any defect in the decision of the Commanding Officer. I do not accept that submission because s 162 of the DFDA provides that where it appears to the reviewing authority that the action taken by a service tribunal inter alia in the imposition of punishment is wrong in law, the reviewing authority shall quash the punishment. 32. In my opinion on the evidence before me it is strongly arguable that the reviewing authority was required under s 162 to quash the sentence because it was wrong in law for the reasons I have given. 33. Mr Daley also submitted that I could take into account the possibility of a right of appeal to the Defence Force Discipline Appeal Tribunal under the Defence Force Discipline Appeals Act 1955 (Cth). However, it seems to me that the effect of s 20 of that Act is that an appeal lies only against a conviction. That is to say, there is no appeal against the punishment per se. The approach taken in Rogers v Chief of Navy [2002] ADFDAT 1 appears to me to confirm that view of the proper construction of the Act.

Balance of Convenience 34. On the question of balance of convenience, Mr Daley told me that on his instructions there was evidence available which he did not have time to produce given the short notice of today's application, that SIG Sargeson was examined by another psychiatrist or psychologist who was satisfied that he was fit for detention. 35. However, the short answer to the issue of the balance of convenience is that SIG Sargeson is serving a period of military detention. It is arguable that detention is an inappropriate punishment for the applicant having regard to the circumstances of the offence and his mental condition as disclosed in the report of Dr Lakos. Success in the proceedings at a final hearing would be futile if the applicant is forced to complete the period of detention before the final hearing.

Relief 36. The relief which would be sought at the final hearing is put on a number of different bases. However, it seems to me that little turns on the form of the order which might ultimately be made. If, as the applicant submits, his detention is unlawful then it is plain that the court has power to order his release. 37. There are a number of authorities which consider the question of whether the court has power to issue a writ of habeas corpus or an order in the nature of habeas corpus. I will cite the authorities without giving any detail. They are Ruddock v Vardalis (2001) 110 FCR 491 at [101]; Minister for Immigration, Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 at [170]-[172]. The point there referred to was not argued before the High Court in Al Kateb v Godwin (2004) 208 ALR 124; see also Alsalih v Manager Baxter Immigration Detention Facility (2004) 136 FCR 291 at [41] ("Alsalih"). 38. The observations of Selway J in Alsalih make it plain that if the Commonwealth has no lawful authority to detain a person, so that if the court is satisfied that the detention is unlawful, the court can order the officer of the Commonwealth to release that person. 39. The relief sought today is a mandatory interlocutory injunction. There is authority for the proposition that quia timet interlocutory and mandatory injunctions are available to prevent or terminate unlawful imprisonment; see Minister for Immigration, Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249 at [98] to [101]; see also Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed (2004) at 825. 40. There is no reason to suggest that mandatory interlocutory injunctive relief would be an inappropriate form of relief in the present circumstances. Accordingly, I propose to make an order for such relief.

Orders 41. I will order, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) that the first respondent by his servants and agents and the second respondent immediately cause the applicant to be released from detention pending final determination of this application. 42. The proceedings are to be stood over for directions before the docket judge on a date to be fixed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate: Dated: 23 November 2005 Counsel for the Applicant: Mr AW Street SC and Mr D McLure

Solicitor for the Respondent: Australian Government Solicitor