Director of Military Prosecutions v Henderson [2017] FCA 1608

Director of Military Prosecutions v Henderson [2017] FCA 1608

The Defence Force Magistrate had jurisdiction to hear the alternative common assault charges because the alleged assaults occurred in a private hotel room, not on service land or in a public place, so s 33(a) of the Defence Force Discipline Act 1982 (Cth) was not available and the inconsistency addressed in Hoffman...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 December 2017
Procedural Posture
Application Pursuant to S 39 B(1) of the Judiciary Act 1903 (cth) for Judicial Review of a Defence Force Magistrate Decision / Application Granted; Declaration Made and Referral Order Quashed
Outcome
Application granted; declaration made that the First Respondent had jurisdiction to hear the alternative common assault charges; referral order quashed; mandamus not granted.
Legal Topics
['defence Force Discipline Act 1982 (cth)' 'service Offences' 'territory Offences' 'common Assault' 'judicial Review' 'jurisdiction of Defence Force Magistrate' 'declaratory Relief' 'mandamus' 'construction of S 61(3), S 33(a) and S 141(8)']
['defence and Military Law' 'administrative Law' 'constitutional Law' 'criminal Law'] ['defence Force Discipline Act 1982 (cth)' 'service Offences' 'territory Offences' 'common Assault' 'judicial Review' 'jurisdiction of Defence Force Magistrate' 'declaratory Relief' 'mandamus' 'construction of S 61(3), S 33(a) and S 141(8)']

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Procedural Posture

Application Pursuant to S 39 B(1) of the Judiciary Act 1903 (cth) for Judicial Review of a Defence Force Magistrate Decision / Application Granted; Declaration Made and Referral Order Quashed

Legal Issues

  1. 1 ['Whether the Defence Force Magistrate erred in ruling that he lacked jurisdiction to try alternative common assault charges under s 61(3) of the Defence Force Discipline Act 1982 (Cth) and s 26 of the Crimes Act 1900 (ACT).' 'Whether Hoffman v Chief of Army (2004) 137 FCR 520; [2004] FCAFC 148 precluded common assault charges under s 61(3) where the alleged assaults occurred in a private hotel room rather than on service land or in a public place.' 'Whether the Federal Court had jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) and power to grant declaratory relief.' 'Whether the Defence Force Magistrate had power under s 141(8) of the Defence Force Discipline Act 1982 (Cth) to refer the common assault charges back to the Director of Military Prosecutions without granting an application or allowing an objection under s 141.']

Ratio Decidendi

The Defence Force Magistrate had jurisdiction to hear the alternative common assault charges because the alleged assaults occurred in a private hotel room, not on service land or in a public place, so s 33(a) of the Defence Force Discipline Act 1982 (Cth) was not available and the inconsistency addressed in Hoffman did not arise. The elements of the charges were not identical to a s 33(a) offence in the circumstances, and Hoffman did not establish that s 61(3) can never support common assault charges. The referral under s 141(8) was invalid because no application had been granted and no objection had been allowed under s 141.

Court Disposition

Application granted; declaration made that the First Respondent had jurisdiction to hear the alternative common assault charges; referral order quashed; mandamus not granted.

Orders

  • ['The First Respondent has jurisdiction to hear the charges of common assault contrary to s 61(3) of the Defence Force Discipline Act 1982 (Cth) and s 26 of the Crimes Act 1900 (ACT) as alternatives to charges 1 and 3 on the charge sheet signed by the Applicant on 3 March 2017 containing charges against the Second...