10 September 2012

Federal Court issues decision in Jones v Chief of Navy and rejects argument of trial by jury under s 80 of Constitution in service offences

The Federal Court of Australia has issued its decision in Jones v. Chief of Navy [2012] FCAFC, dismissing the appeal and ordering former Lieutenant Commander John Alan Jones to pay costs.

In November 2011 Jones was arraigned before a General Court-Martial ("GCM") on nine counts of committing an indecent act without consent in violation of the section 61(3) of the Defence Force Discipline Act 1982. Jones pleaded not guilty, but the GCM found him guilty in December 2011 on seven of the nine counts.

One of the nine grounds for appeal was:
Whether the [Defence Force Disciplinary Appeal] Tribunal erred in failing to find that the service offences upon which the appellant was convicted are offences against the law of the Commonwealth being indictable offences, based on the provisions applicable to and the form of the charges signed by the Director of Military Prosecutions, to which the appellant was entitled to trial by jury under s 80 of the Constitution, regardless of whether the trial was an exercise of the judicial power of the Commonwealth, such that there was a material irregularity occasioning a substantial miscarriage of justice (cf s 23(1)(c) of the DFDA Act; Ground 12 of the Further Amended Notice of Appeal to the DFDAT).
The Federal Court rejected this ground noting that section 80 of the Constitution does not operate to require a trial by jury of the offences to which Jones was charged and citing Re Tracey at 545 and 570; Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460 at 480; Re Tyler; Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18 (Re Tyler) at 28-29. 

Further the Federal Court noted that "the framers of the Constitution discussed [section 80] would be defeated if a statute which creates an offence but does not say that the offence is to be prosecuted on indictment were to be interpreted as if it did and thereby attract the operation of section 80 of the Constitution."

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