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Role
The Directorate of Defence Counsel Services (DDCS) performs the following roles:
- Under the Defence Force Discipline Act 1982 (Cth ) (DFDA)
- Coordinates and manages the provision of legal representation for persons who are facing trial under the DFDA by the Australian Military Court (AMC).
- Takes steps to secure witnesses on behalf of accused persons
- Maintains a list of legal officers who are willing to assist ADF personnel who are in custody in respect of a service offence in accordance with s.101F of the DFDA.
- Under the Defence (Inquiry) Regulations:
- Co-ordinates and manages the provision of legal representation for entitled personnel appearing before Boards of Inquiry and CDF Commissions of Inquiry.
- Coordinates and manages the Defence Counsel Services Panel (DCS Panel) through which the legal representation by ADF Legal Officers is provided.
Responsibilities
Legal representation for accused persons and other services
DDCS is responsible for providing legal representation to persons accused of offences under the DFDA facing trial in the AMC. DDCS is required to ensure that these services are provided in an effective, efficient, transparent, objective and economical manner. More specific information than is on this website is provided to an accused person when they are charged.
DDCS is also able to approve, where appropriate, expenditure on pre-trial matters including specialist reports, expert witness expenses and travel for counsel to have pre-trial meetings with their clients in relation to upcoming trials. Such matters would be discussed between DDCS and the respective legal counsel.
DDCS is responsible for securing the appearance of witnesses on behalf of accused persons. The scope of this responsibility may vary from case-to-case. For example, DDCS is available to assist accused persons, usually through their legal counsel, identify the correct recipients of summonses and orders to attend as witnesses at trial. DDCS may also assist with arranging the service of summonses or arranging travel and accommodation where normal Departmental procedures for such arrangements are not available.
Legal assistance for ADF personnel in custody in relation to a service offence
DDCS is responsible, so far as it is practicable to do so, for the maintenance and updating of a list of legal officers who are willing to assist ADF personnel who are in custody in respect of a service offence in accordance with s.101F of the DFDA.
Legal representation to personnel appearing before a Board of Inquiry
DDCS is responsible for providing legal representation by ADF Legal Officers to eligible personnel appearing before Boards of Inquiry and CDF Commissions of Inquiry conducted under the Defence (Inquiry) Regulations.
Defence Counsel Services Panel
DDCS maintains a panel of ADF Legal Officers, both Permanent and Reserve, who volunteer to undertake advocacy roles. This list is referred to as the Defence Counsel Services Panel (DCS Panel). DDCS utilises the DCS Panel to identify potential counsel. A very careful selection process is adopted when selecting counsel to ensure that the eligible person is provided with appropriate representation.
When appointing counsel from the DCS Panel to an accused member DDCS takes a range of factors into consideration including:
- the interests of the legally assisted person,
- any preference expressed by the legally assisted person for a particular panel member,
- the location of the trial or inquiry and that of the legally assisted person,
- the experience of the recommended Counsel, and
- the availability of any given DCS Panel member.
With a view to maintaining and enhancing the strength of the DCS Panel, DDCS will take into consideration the fair and reasonable distribution of work among DCS Panel members.
DDCS is responsible for ensuring that, except where otherwise provided or required by law, nothing is done by the ADF, the Department of Defence or ADO members which may interfere with the relationship between an assigned member of the DCS Panel acting in that legal officer's professional capacity and the legal officer's client.
Contact Details
Directorate of Defence Counsel Services
Defence Legal
Department of Defence
F-TS-1L-DDCS
CANBERRA ACT 2600
email: ddcs@defence.gov.au
Ph : 02 6127 4266
Fax: 02 6127 4102
Useful Links
The following sites may be useful for Defending Officers and the accused person:
Legislation
Other Sites
Policy Documents
Select to view the Director of Military Prosecutions Directive 01/2008 Prosecution and Disclosure Policy Document
Military Juries Procedures for Identification, Screening and Appointment (PDF)
Australian Military Court - Guide for Military Jurors (PDF)
Australian Military Court Practice Notes
The text of the AMC practice notes is reproduced below. This is an interim measure until the AMC's website is online, it is not intended to maintain these notes on this site after they have been made available on the AMC website. The nature of the means of reproduction of the notes is such that they should not be relied on as the authoritative versions but can provide general guidance for Defending Officers and accused personnel
AUSTRALIAN MILITARY COURT PRACTICE NOTE 1
MILITARY ETIQUETTE AND PROCEEDINGS OF 'THE
AUSTRALIAN MILITARY COURT
1. The purpose of this Practice Note is to set out the etiquette to be observed by defence members and civilians in proceedings before the Australian Military Court.
2. Unless varied by a military judge in the circumstances pertaining to a particular trial, the following practice and procedure is to apply to proceedings before the Australian Military
Court (AMC).
3. While the AMC is sitting, the Chief Military Judge or a military judge ("a military judge") is to be addressed by those appearing before the AMC as "Your Honour."
4. When appearing before the AMC the Prosecutor is to be addressed as "Mister Prosecutor" or "Madam Prosecutor" as the case may be.
5. While sitting with the AMC, a military judge is to be attired in the service winter or summer ceremonial dress appropriate to the time and location of the hearing, or such other form of dress, as determined by that judge, together with a gown of the AMC.
6. The form of the gown of the AMC is to be determined by the Chief Military Judge.
7. Any member of a military jury ("a military juror") is to be attired in the appropriate service winter or summer ceremonial dress, or such other form of dress, as determined by the military judge hearing the particular matter and promulgated by the Superior Authority in the trial Administrative Instruction.
8. Any member of the Australian Defence Force, either of the permanent and regular forces, or of the reserve forces, ("service member"), who is to appear before the AMC in whatever capacity, is to be attired in the appropriate service winter or summer ceremonial dress, or other form of dress, as determined by the judge hearing the matter and
promulgated by the Superior Authority in the trial Administrative Instruction.
9. Any service member who is to appear before the AMC in whatever capacity, and is unable to appear in the correct form of dress, is to request leave to appear in an alternative form of dress from the relevant judge before the commencement of proceedings through the
Clerk of the Court or the Registrar. If this is not possible they are to request leave from the judge hearing the matter as soon as they appear before the AMC.
10. Those who are not service members and who are appearing before the AMC are to be attired in neat and tidy civilian clothing. Those who are entitled to wear particular formal dress in connection with their profession or occupation may wear that dress when appearing before the AMC. Civilian barristers are to appear before the AMC in the wig and gown appropriate to the jurisdiction of their practice.
11. When the AMC sits and rises all present are to pay compliments to the AMC by standing. Additionally, service members present are to pay appropriate military compliments to the AMC, and the inherent authority vested in it by the Sovereign, by donning headdress and saluting. Any civilians present are to bow. The Order of Procedure for trials with a
military jury may designate a member of the military jury to pay compliments on behalf of all members of the military jury. The Clerk of the Court will direct all to stand and salute the Court as appropriate.
12. The accused or convicted person is to be seated at the bar table with his or her defending officer for all proceedings of the AMC.
13. Any witness appearing before the AMC is to be allowed to be seated while they are giving evidence.
14. Any witness appearing before the AMC who is a service member is to pay appropriate compliments under the direction of the clerk of the AMC before moving to the witness stand. Any person entering or leaving the presence of the AMC while it is sitting is to pay the appropriate complimentsto the AMC.
I.D. WESTWOOD, AM
Brigadier
Chief Military Judge
Australian Military Court
5 November 2007
AUSTRALIAN MILITARY COURT PRACTICE NOTE 2
'THE MANNER AND TIMING OF ELECTIONS
WITH RESPECT TO MODE OF TRIAL
1. After a charge sheet has been referred to the Registrar from the Director of Military Prosecutions, the Registrar is to inform the accused person or persons of their right, if applicable, to elect mode of trial for each charge in accordance with DFDA sl32A. This is to be done through the issue of a Notice to the Accused.
2. An election, if made, must be made by the accused person in writing.
Time for Election
3. The time within which an accused person must make any election referred to in Australian Military Court Rule 23(2)(a) is the date specified by the Registrar in the Notice to the Accused which must not be less than 30 days from the issue of the Notice. The date may be varied from the date specified in the Notice to an earlier date with the consent of the accused person.
Exercise of Election
4. The exercise of any election is to be endorsed in writing by the accused person on the form of Election for mode of Trial before the Australian Military Court attached by the Registrar to the Notice to the Accused issued to the accused person. The election is validly
made on receipt at the Registrar's office.
Extension of Time for Election
5. Australian Military Court Rule 24(2)(b) provides for a military judge to extend the period during which an election may be made. Written notice of any application under that Rule is to be given to the Registrar and the Director of Military Prosecutions.
I.D. WESTWOOD, AM
Brigadier
Chief Military Judge
Australian Military Court
24 October 2007
AUSTRALIAN MILITARY COURT PRACTICE NOTE 3
USE OF VIDEO AND AUDIO LINKS FOR THE RECEPTION
OF EVIDENCE BY THE AUSTRALIAN MILITARY COURT
1. Unless varied by a military judge in the interests of justice, the following practice and procedure is to be applied to the use of video and audio links by the Australian Military Court.
2. When determining in accordance with DFDA s 148A whether testimony may be given to the Australian Military Court ('the Court') by video link or audio link, or whether in accordance with DFDA s 1486 a person should be directed or allowed to appear before the Court or to make a submission to the Court by way of video link or audio link, the Court is to have regard, amongst any other relevant considerations, to the following matters:
- whether the person is an accused or a witness;
- whether the trial is by a military judge alone or with a military jury;
- whether all parties consent to the video or audio link;
- whether the evidence or submission to be given or made is likely to be contested;
- any operational or training considerations or exigencies preventing the person from appearing before the Court in person;
- the relative financial cost to the Commonwealth of utilising video or audio links compared to the cost of bringing the person directly before the Court; and
- the availability of sustainable video or audio links of suitable quality in the location ('the remote location') of the person taking into account the likely duration and nature of the testimony, submission or appearance which the person is required to give or requires to make before the Court. Some relevant considerations might include the:
- i. ability to transmit copies of documents from the Court to the remote
- location;
- ii. availability of separate lines of private communication between the Court and the remote location; or
- iii. ability of all those present in the Court to see or hear the person at the remote location.
3. Where, for any reason, a third party is present in the room from where the audio or video link is being made to the Court then that person should, at the start of the proceedings be introduced (by the prosecutor or defending officer as appropriate) and their purpose for
being present explained to the Court. No person, other than those already introduced should enter the room whilst an audio or video link is in progress.
4. No third party in the remote location is to coach, interrupt, intervene or intimidate the party communicating with the Court from the remote location. If a third party at the remote location has need to communicate with the Court during the video or audio link they are to
excuse themselves and interject only at an appropriate moment.
5. Proceedings by way of audio or video link are not to commence before the Military Judge is satisfied that the Court is able to communicate clearly with the person at the remote location, and that the person at the remote location is able in turn to communicate clearly with the Court. Proceedings by way of audio or video link are not to conclude before the military judge is satisfied that the person at the remote location clearly understands that they are about to conclude.
6. If there is a need for a person at a remote location to be sworn, this is to be in accordance with the provisions of the Evidence Act 1995 (Cth) Division 2 - Oaths and Affirmations.
7. No adverse implications are to be drawn from a person's appearance before the Court by way of video or audio link.
8. A person requesting that the Court exercise its power under DFDA s 148A or s 148B is to submit the request together with their reasons to the Registrar in writing no later than fourteen days before the matter is listed for hearing. The request is to detail the location of
the person and whether audio or video link will be required. If the request is opposed by any party it will be determined by a pre-trial directions hearing before the relevant military judge.
9. The cost of an audio or video link will be borne by the Commonwealth.
I.D. WESTWOOD, AM
Brigadier
Chief Military Judge
Australian Military Court
5 November 2007
AUSTRALIAN MILITARY COURT PRACTICE NOTE 6 STAY OF EXECUTION ON PUNISHMENT
This practice note sets out the procedures to be followed when an application is made for a stay of execution of punishment by a convicted person pursuant to subsection 176(2) of the Defence Force Discipline Act 1982.
1. Unless otherwise directed by a Military Judge, any application for a stay of execution of punishment (stay application) must be made in writing in accordance with the attached Form and given to the Registrar of the Australian Military Court, together with any supporting material. A copy of the stay application must be delivered to the Director of Military Prosecutions by the convicted person
2. The Chief Military Judge will appoint a Military Judge to determine the stay application. Where practicable, the stay application will be determined by a Military Judge other than the Military Judge who convicted the convicted person, imposed the punishment or made any relevant order.
3. The Military Judge may make directions about how the stay application is to be determined, for example by way of making oral submissions by audio link or otherwise or the delivery of written submissions, and may set time limits for any steps to be taken. Before making any such directions the Military Judge may, by email or audio link or otherwise invite submissions from the convicted person and the Director of Military Prosecutions on the directions to be made.
4. The Military Judge may consider an ex parte application for an interim stay of execution of punishment.
5. The Military Judge may order that the execution of part or all of a punishment be stayed for a fixed period, with liberty to apply for a variation or extension of that order.
I.D. WESTWOOD, AM
Brigadier
Chief Military Judge
Australian Military Court
11 February 2008
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