A court martial convened for 11 July of two Australian commandos will not now proceed.
Judge Advocate Ian Westwood has thrown out the manslaughter charges brought by the Director of Military Prosecutions ( “DMP”), Brigadier Lyn McDade.
This related to civilian deaths which apparently occurred when the soldiers reacted to what they assumed was a Taliban attack on their unit.
The office of the DMP is what remains after Parliament’s failed 2007 attempt to replace courts martial with an Australian Military Court. This was declared unconstitutional by the High Court in 2009.The concentration of the prosecuting power in one office and the absence of committal proceedings has been criticised in part on constitutional grounds.
New legislation is under preparation. It is important that parliament review the role and function of the office of the DMP and the place for committal proceedings in courts martial.
…options open to DMP…
The decision by the judge advocate may not be the end of the matter.
The Director of Military Prosecutions can still launch prosecutions for other alleged breached of the law, she may seek a review in the Federal Court and she still has to decide on whether to proceed with the prosecution of the men’s Commanding Officer.
The soldiers' barrister, Major David McClure, said his clients had been vindicated, according to Brendan Nicholson and Mark Dodd in The Australian (21/5). Their report continued:
The two had not had an opportunity to cope properly with an event ''they did on behalf of all of us, and they deserve better treatment than what they got", Major McClure said.
''In combat there is no time to pause and think, 'How will I take reasonable care', because if you were going to be taking reasonable care you wouldn't be doing it at all," he said.
A University of Melbourne military law professor, Tim McCormack, an adviser to the soldiers' legal team, told The Australian that the prosecutor had made the mistake of trying to impose domestic criminal law on the battlefield.
''The error of judgment was to assume they could establish a higher standard of conduct than that required by the laws of armed conflict'', he said.
Judge Advocate Westwood said there must be a duty of care in order to determine negligence. But in considering the case, he found there was an "absence of plain words" in relation to a duty of care to non-combatants in the Defence Force Discipline Act.