Case: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1
Outcome: followed
Whatever the precise characterisation of the powers of a court martial, the parties in the present case, in substance, agree that the observations of Brennan J in Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1, govern the applicants' claim for declaratory relief. His Honour said this (at 25-26): 'In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalities; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. Applications for declarations as to the admissibility of evidence may in some cases be made by an accused person for purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process. ... [A] court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order'. (Emphasis added.) 64 Dr Renwick relies on four matters to support the contention that the circumstances of this case fall into the ' most exceptional ' class: &#8226; the institution of the present proceedings caused no significant delay in the resolution of the court martial; &#8226; the applicants have no alternative avenue by which to test the ruling of the Judge Advocate; &#8226; the legal issue presented for resolution is of ' some wider significance '; and &#8226; the issue presented to the Court is straightforward, in the sense that the facts are not in dispute and the issue is one of law. 65 It is necessary to say something about each of the matters on which Dr Renwick relies before reaching a conclusion as to whether the principles laid down in Sankey v Whitlam are satisfied in the present case and whether, in any event, I should exercise any discretion that I have in favour of making a declaration (assuming the applicants' substantive argument is accepted). 66 In my opinion, it is not correct to say that there has been no significant delay in this case. The Judge Advocate gave his ruling on evidence on 11 April 2007. On that day, the prosecutor informed the Judge Advocate that he (the prosecutor) had instructions to seek judicial review of ' the decision ' (presumably the ruling) and to proceed expeditiously in the Federal Court. On this basis, the matter was adjourned. Despite the assurance given to the Judge Advocate, the proceedings in this Court were not commenced until 3 July 2007. When invited to give an explanation for the delay of nearly three months, Dr Renwick replied that it had taken that length of time to obtain instructions for the proceedings to be brought in the name of the Commonwealth. 67 There are, however, two difficulties with the proffered explanation. The first is that there is no evidence as to why obtaining instructions for the Commonwealth to be named as a party should take nearly three months. The second and more important difficulty is that, on the applicants' jurisdictional case (which I have accepted), the Court has jurisdiction to hear and determine the application for declaratory relief regardless of whether the Commonwealth is joined as an applicant in the proceedings. As I have explained, the Court acquired jurisdiction pursuant to s 39B(1A)(a) of the Judiciary Act , by virtue of the Director being named as an applicant for declaratory relief. 68 It seems to me that the applicants did not commence the proceedings in this Court expeditiously. In consequence the Accused, who has the benefit of a favourable ruling that would effectively entitle him to an acquittal at the court martial (as Dr Renwick accepted), has been subjected to a significant delay and (I am prepared to infer) the attendant stress and anxiety associated with the delay. Indeed, but for the Court offering a very early hearing date, the delay occasioned by the application would have been even greater. Moreover, in my view, it is undeniable that the court martial process has been fragmented, one of the evils to which Brennan J referred in Sankey v Whitlam . This is so notwithstanding that the Judge Advocate acceded to the prosecution's request to adjourn the court martial to enable the evidentiary ruling to be challenged in this Court. 69 Dr Renwick suggests that some time would have been required to conclude the court martial, even if no application had been made to the Court. But in the absence of a challenge to the Judge Advocate's ruling, there is nothing to suggest that the court martial could not have been reconvened within a very short time. Given Dr Renwick's concession that rejection of the Record of Interview was fatal to the prosecution's case, a reconvened court martial would had had no option but to dismiss the charges against the Accused. 70 It is true that the current statutory regime makes no provision for the prosecutor to appeal against unfavourable evidentiary rulings made by a judge advocate in the course of a court martial. However, during the hearing, I was informed by Dr Renwick that his understanding was that legislation had been enacted by the Parliament which would alter this situation, although his information was that the legislation would not come into force until October 2007. 86 In determining whether I should entertain the application for declaratory relief in respect of an evidentiary ruling made in the course of an incomplete court martial, there are two closely related questions. The first is whether the present application involves ' most exceptional ' circumstances, as Sankey v Whitlam suggests and the applicants accept is necessary for the grant of declaratory relief. The second is whether the Court should exercise its discretion in favour of granting the declaration sought by the applicants (assuming they make out their contentions on the question of law). 87 In my view, the applicants have not established that the circumstances of this case are most exceptional. I am prepared to accept that the issue of law that the applicants wish to ventilate is of some importance in relation to the organisational arrangements within the ADO and the Department of Defence for the investigation of alleged security breaches by defence personnel. However, the legislation before Parliament proposing to amend the DFDA Act , if passed (as seems likely), will provide a mechanism for testing the correctness of the Judge Advocate's reasoning in the present case (should that reasoning be followed by a subsequent court martial or by the Australian Military Court, once it is established). The new statutory procedure, unlike the procedure invoked by the applicants in the present case, will not deny the accused person the benefit of a favourable evidentiary ruling by reason of the presiding officer erring in law. Nor will it involve delay and fragmentation of the court martial or military court process, as do the current proceedings.