Case: White v Director of Military Prosecutions [2007] HCA 29
Outcome: cited
The second applicant, the Director of Military Prosecutions (' Director ') holds an office established by s 188G of the DFD Act . The Director is appointed by the Minister and holds office for a term not exceeding five years: ss 188GF(1), 188GH(1). The Minister may terminate the Director's appointment on certain grounds (s 188GN(1)) and must terminate the appointment in specified circumstances: s 188GN(2). The Director must be a full-time member of the armed forces: s 188GN(3). The functions of the Director include the following (s 188GA(1)): '(a) to carry on prosecutions for service offences in proceedings before ... a court martial, whether or not instituted by the Director of Military Prosecutions; ... (e) to do anything incidental or conducive to the performance of any of the preceding functions.' 13 The Registrar holds an office established by s 188F of the DFD Act . The functions of the Registrar include assisting the Judge Advocate General and the Chief Judge Advocate, by providing administrative and management services in connection with charges and trials under the DFD Act : s 188FA(1). 14 A court martial is either a general court martial or a restricted court martial: s 114(1). A restricted court martial consists of a President and not less than two other members: s 114(3). A restricted court martial cannot impose a term of imprisonment or detention exceeding six months: sch 2, cl 2. As has been noted, the present case involves a ruling made by the Judge Advocate in the course of a restricted court martial. 15 Subject to certain exceptions, a court martial has jurisdiction to try any charge of a service offence against any person: ss 3(1) (definition of ' charge '), 115(1). In general, the hearing of a matter before a court martial is to be in public: s 140(1). All service tribunals, including a court martial, must apply the criminal onus and standard of proof: s 10 (applying Chapter 2 of the Criminal Code to service offences). 16 Subject to the Constitution , a civil court does not have jurisdiction to try a charge of a service offence: s 190(1). The expression ' civil court ' is defined in s 3(1) to mean ' a federal court or a court of a State or Territory '. 48 Although not asking for the Commonwealth to be removed as a party, the Accused submits that the Commonwealth is not a proper party to the proceedings and that it has been joined as an applicant only in order to enliven the Court's jurisdiction. Mr Levet further contends on behalf of the Accused that the declaratory relief sought by the applicants, if granted, would have no direct legal effect upon the rights of the Commonwealth and that, insofar as the Commonwealth has an interest in the outcome of the proceedings, its interest is no different from that of the Director. According to Mr Levet, the Commonwealth is seeking to intervene in what is in substance a criminal prosecution, even though the prosecution does not involve the exercise of the judicial power of the Commonwealth for the purposes of Chapter III of the Constitution : White v Director of Military Prosecutions [2007] HCA 29. 49 Perhaps because the applicants did not advance their alternative jurisdictional argument until the oral submissions, Mr Levet said very little about it. He did not, however, concede the correctness of the alternative argument advanced by Dr Renwick.