Courts-Martial Appeals in Australia
| DOI | 10.1177/0067205X6400100104 |
| Published date | 01 March 1964 |
| Date | 01 March 1964 |
| Subject Matter | Article |
COURTS-MARTIAL APPEALS IN AUSTRALIA
By
K. E. ENDERBY *
Some background material
In 1955 the Commonwealth Government passed the Courts-Martial
Appeals Act 1955 setting up in Australia aTribunal to be known as the
Courts-Martial Appeal Tribunal. This gave the ultimate review
of
courts-martial (save that
of
'pardon')
to civilian lawyers, whereas
previously it had been exercised by the Service concerned itself. The
principles to be applied in determining appeals were set out in the Actf
and are similar to those set out in the Criminal Appeal Act 1912 (N.S.W.).2
Since the creation
of
the Tribunal, the position
of
courts-martial in
Australia has changed and the Tribunal's decisions are imposing on
courts-martial the standards
of
justice required by acourt
of
criminal
appeal in aproper criminal trial. The Australian Act was part
of
a
world-wide series
of
reforms. The United States had created its Court
of
Military Appeals and Uniform Code
of
Military Justice in 1950.
Canada introduced reforms and created an Appeal Tribunal in 1950.
That Tribunal
is
now aCourt. The United Kingdom followed suit in
1951, and New Zealand in 1953. In England the problem
of
justice in
the Armed Forces had been considered by the Darling Committee in
1919, an interdepartmental committee in 1925, the Oliver Committee
in 1938, the Lewis Committee in 1948 and the Pilcher Committee in
1950, all
of
whom made recommendations and published detailed reports.
When the western world began to maintain large numbers
of
young
ex-civilians in the services for long periods, the distinction between the
hit-or-miss procedures in courts-martial and the procedure in an ordinary
criminal trial became
so
marked that reform was inevitable, and the
imposition over the military system
of
acivilian appellate tribunal is
only one
of
many reforms that have been made and have yet to be made
in military law.
In
New Zealand, Canada and the United Kingdom the
appellate body
is
acourt
of
judges drawn from the respective superior
courts
of
those countries. In the United Kingdom the judges are members
of
the Court
of
Criminal Appeal.
In
Australia the Tribunal
is
not a
*LL.B. (Syd.), LL.M.
(Lond.);
Barrister-at-Law; Senior Lecturer in Law, School
of
General Studies, Australian National University.
The author acknowledges the assistance he has received from Wing Commander
D.
B.
Nichols, Director
of
Legal Services, Royal Australian Air Force. This assistance
does
not
relieve the author
of
sole responsibility for any opinions expressed
or
errors
committed.
References
to
'the
Act'
are to the Courts-Martial Appeals Act
1955
(Cth),
and
references to 'regulation 'to regulations made under
that
Act.
1S.
23.
2
S.
6.
95
96
Federal
Law
Review [VOLUME 1
court and its members are selected when needed from apanel
of
eminent
lawyers.3To date, the Tribunal has heard ten appeals. Compared with
the large number
of
appeals heard elsewhere,4this number
is
small indeed ;
however, already the influence
of
the Tribunal on the justice being
administered in Army, Navy and Air Force courts-martial
is
very notice-
able.
To understand fully the effect
of
the Tribunal decisions
it
is
necessary
to
glance
at
how military law operated at the court-martial level in
Australia before
1955.
The illustrations that follow are typical
of
the
problems that can arise.
No
attempt is made to evaluate the procedures
in the large and increasing number
of
cases which are tried summarily
by commanding officers and from whose decision there
is
no appeal
to
the Tribunal. The only protections in these cases are the Service
procedures
of
confirmation, review and consideration
of
the accused's
petition by superior officers and, perhaps, ultimately by the Judge Advocate
General. The generalisations refer to Army and R.A.A.F. procedures.
The R.A.N. procedures are often different.
Courts-martial are an anomaly from ajudicial point
of
view.
They
developed under
'leveller'
influences in the Cromwellian army. They
consist, usually,
of
five
officers, one
of
whom acts as President. There
is also ajudge advocate and aprosecuting officer and the accused may be
represented by afriend or qualified counsel
of
his own choice. The
procedure followed is contained in the respective Manuals
of
Military
Law and Air Force Law for the Army and Air Force, and in the
B.R.ll
in the Navy. These are the 'bibles'
of
military and naval lawyers. The
relevant Australian statutes are the Defence Act
1903-1956
(Cth),the
Air Force Act
1923-1956
(Cth) and the Naval Defence Act 1910-1952
(Cth). Regulations made thereunder also apply. Laws, statute and
otherwise,
of
the United Kingdom are often made applicable by these
statutes to the Australian serviceman.5This has the result that repealed
English laws are often applied to Australian servicemen but not applied
to English servicemen on service in Australia.
In
the Manuals there are
statements
of
the law to be applied but no authority
is
given and there
is uncertainty whether they are the law or merely expressions
of
some
unknown author's opinion on the law. Both the substantive and adjec-
tive laws are peculiar to the Service in which the accused serves. There
is no uniform code for the three Services. Some Service offences are
common to the ordinary criminal law to which aserviceman is also
subject.
In
acourt-martial, aplea
of
autrefois acquit or autrefois con-
3
S.
8.
4
By
1962
the United States Court
of
Military Appeals had considered some 15,000
petitions, the United Kingdom Courts-Martial Appeal Court
305
applications for
leave to appeal, Canada
63
and
New Zealand
9.
Some
of
these figures, being based
on
judgments given, may
not
be accurate.
5Defence Act 1903-1956,
s.
88
(Cth).
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