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December 08th 2010 print

David Flint

Bravest denied justice

Why do our parliaments guarantee a gold-plated justice system for hardened criminals, but weight the dice against the bravest of the brave, those who are prepared to die for their country?

An eerie silence has descended over the prosecution of three Australian soldiers announced by the Director of Military Prosecutions, Brigadier Lyn McDade on 27 September 2010.

This was over an event which occurred on 12 February, 2009 when three soldiers returned fire in an operation in Uruzgan province, Afghanistan. As a result, six Afghan civilians were killed, probably one a combatant, and another four injured.

After an investigation by the Australian Defence Force Investigative Service, the matter was referred to the Director of Military Prosecutions, Brigadier Lyn McDade, in November, 2009.

Further investigations were undertaken at her request. After obtaining representations on behalf of the Defence Force as to the service interest in relation to the charges, the DMP decided to prosecute the soldiers.

The DMP was only established comparatively recently. This was one of two two radical changes were made by Parliament to the military justice system in 2006 after a Senate report into criticisms of the system. The other change, to replace courts martial with a separate court, was ruled unconstitutional by the  High Court in 2009. The Rudd government announced that it would legislate to establish a military court that would conform to the Constitution; this has not yet occurred. For reasons which will be evident from the following, this should be abandoned.

There has been little criticism of the decision among lawyers and the media.  It is said the prosecutions demonstrate our respect for the rule of law and our commitment to international conventions. There have been suggestions that if the prosecutions were not undertaken, the International Criminal Court would act. This has been denied.

Rank and file soldiers, sailors and airmen have been warned not to condemn the prosecutions. No doubt relieved that the men will be judged by courts martial, it is said that there remains widespread unease in the forces. Such unease is justified.

It is claimed the DMP is no more than the military equivalent of the Directors of Public Prosecutions. It is not. The DMP now has the power to prosecute serious breaches of military discipline, a power which had long been vested in all commanding officers of the army, RAN and RAAF. To this have been added powers similar to those of the magistracy in committal hearings in ordinary criminal cases.

These hearings test whether a prosecution is sufficiently well based to proceed to a full trial before a judge and a jury. In the US these are still heard by that most democratic common law institution, the grand jury.

This means one person, sitting in Canberra behind closed doors, now exercises both the disciplinary powers formerly the preserve of all commanding officers in the field, together with the powers of a magistrate in a committal hearing.

In the US, the exercise of these powers is divided between at least four officers, officers  who will probably be different in each case. In addition, the accused is entitled to attend and participate in the committal-style hearing and to see and object to all advice received by his commanding officer.

The Americans have never attempted such a dangerous concentration of power as we have. If their politicians were unwise enough to follow this Canberra precedent, the constitution would fortunately stop them from committing such an error. The result is that Australian soldiers are denied three fundamental pre-trial rights. To understand the outrage which has been visited upon our soldiers, recall that all of these rights are enjoyed by the most hardened criminals charged with a serious crime.

The first is the right to examine the DMP’s witnesses before the trial. The second is the right to know what the DMP’s case is against them before the trial. The third is the right to argue and to make submissions to an impartial person that the DMP’s case is inadequate and should not proceed to trial.

Before 2005, such  prosecutions were initiated by commanding officers and heard before courts martial. This is because military justice is interrelated with line command and the discipline necessary to maintain a fighting force. The DMP cuts across and thus undermines the chain of command. It neutralises an important part of the authority commanding officers must have. This is recognised in the Constitution by the vesting of the command in chief of the naval and military forces of the Commonwealth in the Governor-General. It is also recognised in the power to make laws and the executive power with respect to the naval and military defence of the Commonwealth and of the several states. Transferring these powers to bodies outside of the chain of command is not only unfair to serving soldiers, it is militarily incoherent.

Just imagine if such a position had existed in World War II. Had prosecutions been launched whenever civilians were inadvertently and unintentionally killed, the AIF, the RAN and the RAAF would have been rendered impotent. The Menzies and Curtin governments would never have proposed such a position over the armed forces as the DMP.  United in their allegiance to King and country, acknowledging the terrible sacrifices that the soldiers, sailors, airmen and nurses were making, they also had more common sense.

For the sake of the morale of the armed forces, the government should introduce legislation immediately to abolish or significantly change its creation, the Director of Military Prosecutions. Instead, the government should consider the practice in the US where a trial by a general court martial is preceded by what is in effect a military committal hearing. There, the commanding officer consults with the command judge advocate about the proposed case. After that, if the commanding officer thinks the case justifies a court martial, he must first appoint a commissioned officer to conduct an investigation and to report back. This necessarily involves an impartial hearing in which witnesses may be examined and cross-examined.

The investigating officer must have no other role in the case. This is unlike the current Australian practice, where the DMP combines the roles of the US commanding officer, the judge advocate, the investigating officer and the prosecutor. The investigating officer’s report on the pre-trial hearing is circulated to all interested. The commanding officer must then obtain written advice on the report from the judge advocate. This is made available to the accused. It is only at this stage that the commanding officer can decide whether or not to proceed to trial by court martial. All of the members must be serving in the armed forces. The point is that an American soldier is actively involved throughout this process. In Australia, he is kept in the dark. In the US, everything takes place within the armed forces. Soldiers know that other soldiers are making the decisions whether or not to prosecute.

And finally, the chain of command is not undermined by transferring what are essentially the powers and discretion of the commanding officers to an extraneous powerful and over-centralised office. The current Australian model, which is both unjust to our soldiers and potentially damaging to the future defence of our Commonwealth, calls out for immediate reform.

See also: David Flint on “Military persecutions