Hembury v Chief of the General Staff

The High Court of Australia heard an appeal by Wayne Ronald Hembury against the Chief of the General Staff concerning the procedure of a court martial. The dispute arose from a misdirection given by the Judge Advocate regarding the order in which members of the court martial were to vote, specifically concerning the requirement that voting occur in ascending order of seniority. This misdirection was alleged to constitute a "material irregularity" and a "substantial miscarriage of justice."

The central legal issues before the High Court were whether the misdirection regarding the voting order amounted to a "material irregularity" and, crucially, whether this irregularity resulted in a "substantial miscarriage of justice" within the meaning of the relevant military law provisions. The court also considered whether the jurisprudence developed in the general criminal law concerning "substantial miscarriage of justice" was applicable to military courts martial, and the nature of the review jurisdiction exercised by the Defence Force Discipline Appeal Tribunal and the Federal Court of Australia.

The High Court reasoned that courts martial, unlike courts of law, are not typically comprised of legally trained individuals and do not exercise the judicial power of the Commonwealth. Consequently, a high degree of accuracy in procedural instructions is required to safeguard against unreasonable convictions and to maintain confidence in the military justice system. The court held that the misdirection on voting order was a departure from statutory rules and thus a "material irregularity." However, it found that the phrase "substantial miscarriage of justice" has a specific, technical meaning in legislation governing retrials, implying that proceedings must be conducted in accordance with the law. Given that the actual impact of the misdirection on the court martial's deliberations could not be known without impermissibly intruding on their privacy, and that the facts were undisputed, the court concluded that the misdirection did indeed occasion a substantial miscarriage of justice.

The High Court allowed the appeal, setting aside the order of the Federal Court. It ordered that the appeal to the Federal Court be allowed, the convictions be quashed, and the matter be returned to the Defence Force Discipline Appeal Tribunal for appropriate orders to be made in conformity with the High Court's decision.