09 September 2020

Defence Magistrates

In Private R v Brigadier Michael Cowen and Anor [2020] HCA 31 the High Court has today unanimously dismissed an application challenging a Defence Force magistrate's  jurisdiction to try a charge against an Australian Defence Force (ADF) member. 

The application concerned the extent to which the defence power conferred by s 51(vi) of the Constitution on the Australian Parliament supports the conferral of jurisdiction by the Defence Force Discipline Act 1982 (Cth) on military service tribunals to hear and determine charges relating to conduct that also constitutes an offence under ordinary criminal law and that is committed in a time of peace when civil courts are reasonably available. 

Private R was charged by the Director of Military Prosecutions on 2 June last year with one count of assault occasioning actual bodily harm against a woman with whom he had previously been in an intimate relationship. The alleged offending occurred after a birthday party in Fortitude Valley, Brisbane. Allegedly he  made unwanted advances towards the complainant throughout the night before throwing her phone across the room, grabbing her by the throat, pushing her against the wall, shaking her and yelling at her. After she broke free he allegedly tackled her to the ground, placed his knees on her chest and choked her until security guards entered the room. 

At the time of the alleged assault he was angry and intoxicated. Saliently he was (and currently is) a member of the ADF. The complainant was a member. Neither was on duty at the time of the alleged offending. Neither was in uniform. 

In August 2019 he appeared before a Defence Force magistrate (Brigadier Michael Cowen) on a charge under s 61(3) of the Act, which provides that a defence member is guilty of an offence if
  • the person engages in conduct outside the Jervis Bay Territory [inc outside Australia]
  • and that conduct would be an offence if it took place in the Territory [under ACT law]. 
Assault occasioning actual bodily harm is an offence under s 61(3) by reason of s 24 of the Crimes Act 1900 (ACT). 

Private R objected to the Defence Force magistrate's jurisdiction, with the magistrate dismissing that objection on the basis that it is sufficient to confer jurisdiction on a service tribunal that the accused was a member of the armed forces when the charged offence was allegedly committed. The Private then commenced proceedings in the original jurisdiction of the High Court seeking prohibition to prevent the Defence Force magistrate hearing the charge. 

The Court has now held that the magistrate had jurisdiction to hear the charge. Five Justices of the Court held that s 61(3)  in obliging defence members to obey the law of the land is, in all its applications, a valid exercise of the defence power. 

Two Justices held that s 61(3) is valid only in its application to offences that, because of their nature or circumstances of commission, have a proven connection with defence force discipline, with that threshold being satisfied in this instance.