Thompson v Chief of Navy

REASONS FOR JUDGMENT 1 The appellant, Able Seaman Michael Thompson, and three other Able Seamen appeared before a General Court Martial in Sydney in September 2014. The four accused faced charges arising out of incidents which occurred aboard HMAS Newcastle off the Western Australian coast in August 2011. It was alleged that the four accused had set upon another sailor in the course of some form of initiation ritual. 2 Each of the accused faced eight charges. Those charges were: Forcible confinement (Charge 1); Engaging in an act of indecency without consent (Charge 2); Engaging in sexual intercourse without consent (Charge 3); Assault in a service ship (two counts) (Charges 4 and 5); Assault occasioning actual bodily harm (two counts) (Charges 6 and 7); and Prejudicial conduct (Charge 8). 3 Each of the accused was arraigned at the commencement of the trial. Each pleaded not guilty to all charges, save for one who pleaded guilty to one charge. 4 On the sixth day of the trial Able Seaman Thompson changed his pleas. He pleaded guilty to Charges 1, 2 and 7 pursuant to an agreement with the prosecutor under which those guilty pleas were accepted "in full satisfaction of the charges in the charge sheet." 5 Two of Able Seaman Thompson's co-accused maintained their pleas and were found not guilty of all charges. 6 Able Seaman Thompson has yet to be sentenced on the three charges to which he pleaded guilty. 7 He has appealed (or, as necessary, seeks leave to appeal) to this Tribunal on the ground that a substantial miscarriage of justice occurred at the trial because his pleas of guilty were induced by incorrect legal advice given by both the prosecution and his defending officers. He also contended that it would be an abuse of process for another General Court Martial to be convened to sentence him in respect of the offences of which he stood convicted. 8 Able Seaman Thompson did not commence his appeal within the time prescribed by s 21(1)(b) of the Defence Force Discipline Appeals Act 1955 (Cth). His delay was satisfactorily explained and the respondent did not oppose the application for an enlargement of time. The necessary order was made. 9 The appeal was supported by affidavits sworn by Able Seaman Thompson and his two defending officers. The respondent did not seek to challenge any of this evidence (save for certain immaterial evidentiary objections). The following account of relevant events is based on the material contained in and exhibited to these affidavits. 10 The Court Martial assembled on 15 September 2014. On the following day Able Seaman Thompson pleaded not guilty to each of the eight charges which he faced. The trial proceeded. 11 After the Court had adjourned on 19 September 2014 the prosecutor proposed that prosecuting and defence counsel should meet. They did so shortly afterwards. The prosecutor told defence counsel that, if Able Seaman Thompson was prepared to plead guilty to Charges 1, 2 and 7 on the basis that he was knowingly concerned in the offending of another and was not a principal offender, the pleas would be accepted by the prosecution in full satisfaction of the charges appearing in the Charge sheet, the charges would be withdrawn from the General Court Martial and would proceed before a Defence Force Magistrate ("DFM") for sentencing, Charge 2 would be particularised in a way that favoured Able Seaman Thompson and the prosecution would not suggest to the DFM that imprisonment was an appropriate sentencing option. The agreement was conditional on the parties settling on a statement of agreed facts to be presented to the court. 12 Immediately after the meeting the defending officers advised Able Seaman Thompson of the prosecution's proposals. They advised him of some of the advantages and disadvantages of him proceeding in the manner suggested by the prosecutor. 13 Able Seaman Thompson said that he wished to have time to think about the matter and to consult with his family. The defending officers then prepared an email to the prosecutor in which they confirmed what they understood to be the terms of the agreement. Those terms were recorded as: "(a) That [Able Seaman Thompson] plead guilty to charges 1, 2 and 7 on the basis of being knowingly concerned in the offending of another rather than as principal offender; (b) That a guilty plea to the above charges on the above basis will be accepted in full satisfaction of the charges in the charge sheet; (c) That the proposal is conditional on the parties reaching agreement on the facts; (d) The matters will be withdrawn from the General Court Martial and proceed before a Defence Force Magistrate at the earliest opportunity for sentencing; (e) That charge 2 will particularised (sic) as only the smearing of vegemite between the bottom cheeks of the complainant to humiliate him and carried no sexual connotation; and (f) The Prosecutor will not oppose, submit or argue against a submission from the defence that the proper sentencing disposition for the matter does not include imprisonment and will concede, if asked by the DFM, that a lesser sentence than imprisonment is reasonably open in the circumstances." 14 The respondent did not seek to contend that these were not agreed terms. 15 On the following day Able Seaman Thompson advised his defending officers that he wished the matter to end as soon as possible and that he accepted the prosecution's proposal. This position was promptly conveyed to the prosecutors. 16 At some stage over the weekend Able Seaman Thompson told one of his defence counsel, Wing Commander Glenn Cridland, that he was not keen to enter a plea of guilty but was concerned about the prospect of imprisonment and wished to be sentenced by a tribunal with only the reduced powers of punishment conferred on a DFM. 17 On 22 September 2014 Able Seaman Thompson signed an agreed statement of facts. The final paragraph of the statement read: "By agreeing to these facts, the accused agrees to plead guilty to the stated offences even if the current proceedings are dissolved. In making the above admissions, the accused agrees that he has done so having taken legal advice from [defence] counsel …" 18 Later that day counsel appearing for Able Seaman Thompson and another accused who had also agreed to plead guilty to three charges advised the Judge Advocate (in the absence of the Court panel) of the change in their clients' positions. One issue which arose in the course of the discussion between the Judge Advocate and counsel was how sentencing on the charges would proceed. It was proposed that, after the Court had completed the trial of the other two accused, it would be dissolved and the task of sentencing Able Seaman Thompson and his co-accused would be referred to a DFM. When this suggestion was made the Judge Advocate responded to the defending officers as follows: "… [S]ection 125 of the Defence Force Discipline Act provides that, at any time after a conviction, if I'm of the view that, in the interests of justice, the court martial should be dissolved, I can ask the Registrar [of Military Justice] to dissolve the court martial, and a new court martial, not a DFM, would have to be convened for action under Part IV of the DFDA. When this trial against the others is completed, I guess that you'd withdraw but we'd keep you in the loop in relation to transcript, to enable you to make any application at the end of the trial - that I dissolve the court martial after the hearing of the other matters, depending on what the outcome is for the other accused." The Judge Advocate then asked "are you happy with that course?" The officer defending the other accused answered: "For present purposes, yes." 19 Counsel for Able Seaman Thompson did not respond. 20 The statement of agreed facts was tendered and marked for identification. 21 Shortly afterwards there was further discussion (in the absence of the Court panel) about when and by whom Able Seaman Thompson would be sentenced after he had changed his plea to guilty to three of the charges. The following exchange occurred between the Judge Advocate and one of Able Seaman Thompson's defence counsel: "DEFENDING OFFICER NASH: I do not feel I need to put this on the record though. When we make that application we are of the understanding that the matter goes back to DMP and DMP can refer it to a Defence Force magistrate. JUDGE ADVOCATE: Once it's dissolved, it has to go back to the DMP. DEFENDING OFFICER NASH: DMP, which would have the capacity to refer it to a Defence Force magistrate, if they so choose. That's our understanding. JUDGE ADVOCATE: It's a matter for the DMP, yes. DEFENDING OFFICER NASH: That's our expectation, if I can say that. I appreciate at the end of the day it's your decision whether or not to dissolve the panel. JUDGE ADVOCATE: Yes, but I can deal with that application. I understand the issues involved. DEFENDING OFFICER NASH: Thank you." 22 Following this exchange Lieutenant Commander Nash told Able Seaman Thompson, at the Bar table, that he was satisfied, given the exchange in open court, that Able Seaman Thompson could "enter pleas of guilty to Charges 1, 2 and 7 before the panel consistently with the terms of the plea bargain we had reached with the Prosecutors." 23 The panel returned to Court and Able Seaman Thompson was re-arraigned on Charges 1, 2, 3, 4 and 7. He pleaded guilty to Charges 1, 2, and 7 and not guilty to Charges 3 and 4. The prosecution advised the Court that it was not proposing to offer any evidence in relation to Charges 3 and 4. The Judge Advocate then explained to Able Seaman Thompson the elements of each of the three charges to which he had pleaded guilty and confirmed that he understood what she had said. 24 The Judge Advocate explained to the panel the implications of what had just occurred. The President then made formal findings that Able Seaman Thompson was guilty of the first, second and seventh Charges and not guilty of the third and fourth Charges. He recorded convictions on the first, second and seventh Charges. 25 On 28 October 2014, after the Court Martial had acquitted the two remaining accused on all charges, argument took place, before the Judge Advocate, as to the appropriate forum for the sentencing of Able Seaman Thompson and his co-accused. One possibility was that the Court Martial, before which they had pleaded guilty, should proceed to sentence them. Defence counsel were anxious to avoid this possibility because the panel had heard evidence, in the course of the trial of the two accused who had been acquitted, which may have impacted adversely on the panel's appreciation of the culpability of the two members who had pleaded guilty. As a result, counsel for Able Seaman Thompson and his co-accused argued that the Judge Advocate should direct the Registrar to dissolve the Court Martial under s 125(3) of the Defence Force Discipline Act 1982 (Cth) ("the DFDA") "in the interests of justice", with a view to the Registrar convening another Court Martial to deal with sentencing. For reasons published the following day the Judge Advocate acceded to the accuseds' request and foreshadowed giving a direction to the Registrar to dissolve the Court Martial. 26 Once the direction had been given, but before the Registrar had acted on it, Able Seaman Thompson's defending officer sought to persuade the Registrar to refer the sentencing task to a DFM. The Registrar advised counsel that she did not propose to adopt this course because, in her view, s 125(6) of the DFDA required her to convene another Court Martial. 27 On the hearing of this appeal counsel for Able Seaman Thompson and the Chief of Navy agreed that the Registrar's understanding of her duty was correct.