16 June 2010

Defence Appeal Tribunal orders Army conviction quashed

In an opinion released today, and dated 11 June 2010, the Australian Defence Force Discipline Appeal Tribunal quashed a court-martial conviction and ordered the verdict of not guilty entered into the record in the case of Private Michael Paul Flynn.

Private Flynn, who served in the Australian Army, was charged and convicted of an offence against s 32(3) of the Defence Force Discipline Act 1982, or DFDA, of being intoxicated whilst on watch at Forwarding Operating Base Union III, in Baghdad on Christmas Eve in 2008 engaged on service in connection with operations against the enemy.

A three member appeals panel consisting of Judges Tracey (President), White and Mildren issued a lengthy opinion in Flynn v. Chief of Army [2010] ADFDAT 1 (11 June 2010) holding that the evidence in the case raises the question of whether or not the Appellant’s intoxication came about as a result of a reasonable mistake as to the contents of the Gatorade bottle, and the likely effect of taking a sip or a swig from the bottle. On the whole of the evidence, the most likely inference is that the Appellant became severely intoxicated as a result of imbibing from the Gatorade bottle.

The Tribunal held that the evidence established no more than that the Appellant took a small quantity of liquid from the bottle. It that it is true that the Appellant was unable to say, when interviewed, what he thought he was drinking at the time, but on the basis of the record of interview he did not become aware that the contents contained something which he thought was alcohol until he had swallowed the first mouthful. It was submitted during trial that it is a reasonable inference that he quite possibly thought he was imbibing Gatorade, but in any event there is no evidence that he thought he was imbibing alcohol.

Turning to the Director of Public Prosecutions and Parliament's attempts to clarify the Director's powers, the Tribunal discussed the statute:
"Despite a number of attempts by Parliament to clarify the Director’s powers, under s 87, to charge a service member and to cause the charge to be placed before an appropriate service tribunal, the section remains difficult to construe. We are satisfied by reference to the language of the section and the extrinsic materials to which we have referred that it was the legislature’s intention that the Director should have the power to prefer charges, the power to make the ultimate decision as to whether charges (whether initiated by the Director or referred to the Director) should be prosecuted and if so in what tribunal and the power to conduct the prosecutions. The Director would not have all of these powers if, in order to initiate a charge herself, she must comply with s 87(1)(a) or (b) in their entirety before she can exercise any of the powers conferred on her by s 87(1)(c). Section 87(1A) in its present form was, according to paragraph 133 of the Explanatory Memorandum, designed to ensure that the Director “has the full range of options that are required by the position.” This objective could be achieved if the Director could choose to exercise the powers conferred on her by s 87(1)(a)(i) and (ii) or by s 87(1)(b) to the extent of causing to be prepared a summons which advised the service member of the offence that the person is alleged to have committed and then exercise one or more of the powers conferred on her by s 87(1)(c). Such an ability to “cherry pick” the powers conferred by s 87(1)(a) and (b) is suggested by s 87(1A)(a) which speaks of “any or all of the powers” conferred by those two paragraphs. Section 87(1A)(b), however, complicates matters by using the phrase “the power referred to in paragraph (1)(c)” when paragraph (c) plainly confers multiple powers on the Director and by saying that these powers may be exercised “in addition to, or instead of, the powers referred to in paragraphs (1)(a) and (b).” The powers conferred by s 87(1)(c) are all powers that fall to be exercised after a charge has been laid by the Director or some other authorised member of the Defence Force. It is, therefore, difficult to comprehend how the Director’s powers under s 87(1)(c) could be exercised “instead of” any of the powers conferred by s 87(1)(a) or (b)."
The Tribunal then took the view that the Director is able to charge a service member with an offence under either s 87(1)(a) or (b) and then exercise one or more of the powers conferred on her by s 87(1)(c).
"In the present case the Director exercised her power under s 87(1)(b) to cause a summons to be prepared which specified the service offence that Private Flynn was alleged to have committed and then arranged for the summons to be served on him. Once that occurred she exercised the power conferred by s 87(1)(c)(iii) to request the Registrar of Military Justice to convene a General Court Martial to try the charge. In this way we consider that Private Flynn was charged conformably with the DFDA at the time on which he was called on to plead to the charge at his trial. We note that no objection to the efficacy of the charge was taken when Private Flynn was arraigned."
In the Tribunal's opinion, it held that Private Flynn made out the principal argument that the conviction was “unsafe and unsatisfactory.” It is these circumstances, that it granted leave to appeal, allow the appeal, quashed the conviction and sentence, and entered a verdict of not guilty, despite the fact that counsel for Private Flynn, Mr T. Berkley, only sought an order for a re-trial. The Tribunal was of the opinion that there is a reasonable doubt about Private Flynn's guilt, that the remedial relief is appropriate citing M v The Queen, (1994) 181 CLR 487, 538.

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