KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
PRIVATE R PLAINTIFF
AND
BRIGADIER MICHAEL COWEN & ANOR DEFENDANTS
Private R v Cowen
[2020] HCA 31
Date of Hearing: 30 June 2020 Date of Judgment: 9 September 2020
S272/2019
ORDER
1.Application dismissed.
2. The plaintiff pay the second defendant's costs of the application.
Representation
T A Game SC and B L Jones with J Nottle for the plaintiff (instructed by Wyatts Lawyers)
Submitting appearance for the first defendant
S P Donaghue QC, Solicitor-General of the Commonwealth, with J E Davidson and D J Ryan for the second defendant (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Private R v Cowen
Constitutional law (Cth) – Defence – Military discipline – Where plaintiff charged with assault occasioning actual bodily harm – Where plaintiff and complainant members of Australian Defence Force at time of alleged conduct – Where neither plaintiff nor complainant on duty or in uniform – Where plaintiff charged under s 61(3) of Defence Force Discipline Act 1982 (Cth) – Where s 61(3) provided defence member guilty of offence if engaged in conduct outside Jervis Bay Territory and that conduct would constitute Territory offence if it took place in Jervis Bay Territory – Where plaintiff's conduct also constituted offence under ordinary criminal law and civil courts available – Where plaintiff challenged jurisdiction of Defence Force magistrate to hear charge – Whether s 51(vi) of Constitution supported conferral of jurisdiction by Defence Force Discipline Act upon service tribunal to hear charge.
Words and phrases – "Ch III court", "Ch III protections", "concurrent jurisdiction", "conferral of jurisdiction", "courts martial", "defence force discipline", "defence force magistrate", "defence power", "judicial power of the Commonwealth", "maintaining or enforcing service discipline", "military discipline", "military jurisdiction", "naval and military defence", "pre-ordinate jurisdiction of the civil courts", "service connection test", "service offence", "service status test", "service tribunal", "sufficient connection".
KIEFEL CJ, BELL AND KEANE JJ. The plaintiff, a member of the Australian Defence Force ("the ADF"), has been charged by the Director of Military Prosecutions ("the DMP") with one count of assault occasioning actual bodily harm. The offence is alleged to have occurred in Brisbane. The charge against the plaintiff is brought pursuant to s 61(3) of the Defence Force Discipline Act 1982 (Cth) ("the Act").
Section 61(3) of the Act provides:
"A person who is a defence member or a defence civilian[[1]] is guilty of an offence if:
(a)the person engages in conduct outside the Jervis Bay Territory (whether or not in a public place); and
(b)engaging in that conduct would be a Territory offence, if it took place in the Jervis Bay Territory (whether or not in a public place)."
[1]The expression "defence civilian" is…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Private R v Cowen [2020] HCA 31
Case
[2020] HCA 31
Decision Date
CaseChat Overview and Summary
In *Private R v Cowen*, the plaintiff, a member of the Australian Defence Force (ADF), challenged the jurisdiction of a Defence Force magistrate to hear a charge of assault occasioning actual bodily harm. The alleged assault occurred off-duty and off-base, and the complainant was also a member of the ADF. The plaintiff argued that because his conduct also constituted an offence under ordinary criminal law and civil courts were available, the Defence Force magistrate lacked jurisdiction. The proceedings were brought before the High Court of Australia.
The central legal issue before the High Court was whether section 61(3) of the *Defence Force Discipline Act 1982* (Cth), which allows for the prosecution of ADF members for conduct outside the Jervis Bay Territory that would constitute a Territory offence if it occurred there, was a valid exercise of the defence power under section 51(vi) of the Constitution. Specifically, the court had to determine if the conferral of jurisdiction on a service tribunal to hear such charges was constitutionally permissible, even when civil courts could also deal with the matter.
The High Court reasoned that section 61(3) of the Act conduces to the discipline and morale of the ADF by requiring its members to abide by the standards of behaviour expected of all citizens. This requirement is sufficiently connected to the efficiency of the defence forces and, consequently, to the defence of the nation, thereby falling within the scope of the defence power. The court rejected the argument that the availability of civil courts negated the service connection, stating that the validity of the law does not depend on the immediate need in a specific case but on whether the rule prescribed is sufficiently connected with the regulation of the forces and the good order and discipline of defence members. The court affirmed that a rule requiring defence force personnel to abide by the law of the land everywhere is a basic requirement for a disciplined force organised for national defence.
The High Court dismissed the plaintiff's application and ordered that the plaintiff pay the second defendant's costs of the application.
Orders
Orders of the court
1. Application dismissed.
2. The plaintiff pay the second defendant's costs of the application.
Background
Background to the litigation
It is convenient to set out a brief summary of the factual and procedural background before turning to explain these conclusions by reference to the arguments of the parties.Background On 12 June 2019, the plaintiff was charged by the DMP that on 30 August 2015, in a hotel room in Fortitude Valley, Brisbane, he assaulted the complainant, a woman with whom he had previously been in an intimate relationship. The plaintiff was and is a member of the ADF in the Australian Regular Army; the complainant was, at the time of the alleged assault, a member of the ADF in the Royal Australian Air Force. Neither was on duty or in uniform at the time of the alleged offending. The DMP alleges that the offending occurred after a birthday party held for the complainant in Fortitude Valley. The plaintiff had booked a hotel room for himself and the complainant; the complainant agreed to use the room to get ready for the party. It is alleged that throughout the course of the evening, the plaintiff made unwanted advances towards the complainant, first at the hotel room and later at a nightclub in Fortitude Valley. It is alleged that at the end of the evening, the complainant returned to the hotel room to collect her belongings. The plaintiff arrived shortly thereafter. He was heavily intoxicated and angry. When the complainant sought to order an Uber, the plaintiff threw the complainant's phone across the room, grabbed the complainant by the throat and pushed her against the wall, shaking her and yelling at her. After the complainant broke free, the plaintiff tackled her to the ground, placed his knees on her chest and choked her with both his hands until two security guards entered the room and tackled the plaintiff. The complainant is said to have been treated for bruising to her throat on 1 September 2015. In October 2017, the complainant, in the course of being debriefed in relation to an unrelated traumatic event, disclosed to a superior officer within the chain of command to which she belonged details of the incident involving the plaintiff. Her superior officer then reported it to the Joint Military Police Unit ("the JMPU") and the ADF Investigative Service ("ADFIS"). As a result of that report, the complainant was interviewed by an investigating officer with the JMPU and ADFIS in relation to the incident. At this time the complainant declined to make a formal complaint, but in March or April 2018 she decided that she wished to pursue a complaint against the plaintiff. As a result, the JMPU commenced an investigation which culminated in the plaintiff being charged by the DMP. On 26 August 2019, the plaintiff appeared before the first defendant, a Defence Force magistrate, to be heard on the charge. At that time, the plaintiff objected to the Defence Force magistrate's jurisdiction to hear the charge. The Defence Force magistrate dismissed the objection. On 13 September 2019, the plaintiff commenced proceedings in the original jurisdiction of this Court pursuant to s 75(v) of the Constitution seeking a writ of prohibition against the Defence Force magistrate to prevent his hearing the charge against the plaintiff.The Defence Force magistrate
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL AND KEANE JJ
GAGELER J
Today, the speed and efficiency of communications, together with the better educated and more diverse membership of the ADF, have given rise to a different milieu in which the likely effect of such disturbances upon discipline and morale within the ADF is to be assessed, and in which the legislative power in s 51(vi) of the Constitution falls to be exercised. Such disturbances, and the ADF's response to them, could be expected to be known immediately throughout the ADF, and to be the subject of concern among servicemen and servicewomen until the controversy is resolved. And the strength and urgency of this concern would hardly be less in relation to acts of violence or dishonesty committed by members of the ADF against the civilian population.Conclusion: the defence power and s 61(3) of the Act It cannot be denied that s 61(3) of the Act conduces to the discipline and morale of the ADF by requiring members of the ADF to abide by the standards of behaviour required of all citizens. That being so, s 61(3) of the Act can reasonably be seen to conduce to the efficiency of the defence forces of the nation and so to conduce to the defence of the nation. It is a wholly valid exercise of the defence power. The plaintiff, in arguing that there is not a sufficient connection between all offences committed by members of the ADF and the discipline and morale of the ADF where the offence could be dealt with by the civil courts, provided the examples of a member of the ADF driving a motor vehicle at an excessive speed while on holiday or chopping down a protected tree in his or her own backyard. Once it is accepted that it is essential to the discipline and morale of the ADF that its members are required to abide by the law of the land, these examples are not compelling. In addition, whether the jurisdiction of a service tribunal should be exercised in cases of minor offences is a question of policy for the civil and military authorities; but such questions of policy should not be confused with the question of the validity of the conferral of jurisdiction. It may also be said in relation to the examples given by the plaintiff that they invoke the dissenting view of Deane J in Re Tracey[93] that in times of peace the Parliament may confer jurisdiction on service tribunals to deal only with "exclusively disciplinary offences". This view, which was never accepted by a plurality in any later decision, was subject to cogent criticism by Gleeson CJ in White[94] on the basis that it cannot be said of any given offence that it is "exclusively disciplinary in its nature". It is not possible to chart the metes and bounds of what is an "exclusively disciplinary offence" or an "essentially military offence" or even a "characteristically military offence". Sedition and treason are offences that may be committed by soldiers and citizens alike, in times of peace as in wartime; but it cannot sensibly be supposed that service tribunals could not be vested pursuant to s 51(vi) with jurisdiction to deal with charges of such offences against service personnel. Further, the circumstance that some offences may be trivial does not mean that their commission can have no bearing on military discipline and morale. Trivial breaches of the law of the land, if they occur frequently, may obviously have a serious bearing on discipline and morale within the defence forces. The validity of a law as enacted does not depend upon proof of and the extent of the immediate need for its enactment in proceedings for the enforcement of the law. The relevant question is whether the rule prescribed by the law is "sufficiently connected with the regulation of the forces and the good order and discipline of defence members", not whether the circumstances of a particular case have that connection[95]. It is only if the relevant question is answered in the negative that any occasion arises to ask whether there is a sufficient ad hoc connection. A rule that requires defence force personnel always and everywhere to abide by the law of the land is sufficiently connected with s 51(vi) because observance of the law of the land is readily seen to be a basic requirement of a disciplined and hierarchical force organised for the defence of the nation.[93](1989) 166 CLR 518 at 585‑586.[94](2007) 231 CLR 570 at 587-588 [18]‑[20].[95]Re Tracey (1989) 166 CLR 518 at 545.The "service connection" test
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL AND KEANE JJ,
GAGELER J