From all the news reports the dept has decided it will not carry on with the manslaughter charges but they are giving it back to the dpp to see what else can be done to charge these troops I hope Dave Wilkins can up date us as he has been there from the start well done Dave. Dutchy

1. As Dutchy says, the Judge Advocate (JA) for the Court Martial today held that all charges against the sgt and Lcpl commandos DID NOT DISCLOSE SERVICE OFFENCES and ordered the charges be referred back to the Director of Military Prosecutions (DMP), Brig Lyn McDade. This means that the DMP will now consider the JA’s findings and will consider her options, which include:
a. Challenging the decision by referring a question of law to the Federal court (affectively an appeal); or
b. Proffering new charges against one or both defendants; or
c. Dissolving the Court Martial so that the charges no longer exist. This is not an acquittal but the two soldiers would no longer be facing any charges.

2. Initially there had been three charges, one of manslaughter and two of dangerous conduct. Since the adjourned directions hearing in March the prosecutor amended the charge sheet to increase the number of charges to seven:

a. five charges of manslaughter, each one relating to a deceased civilian non-combatant who were listed as two males and a female aged between 6 and 13 years, and a male and female of approximately 2 years of age. These charges were laid under a combination of S.61 DFDA and S. 15 of the ACT Crimes Act, which has a punishment of imprisonment for 20 years.

b1. an alternative charge against the first defendant of dangerous conduct causing death by negligence under DFDA S. 36(3). This charge against SGT J. relied upon four separate actions of his directing members of Force Element Charlie to fire a machine gun into the room, of him twice directing that a grenade be thrown into the room and the Sgt firing his own weapon into the room;

b2. an alternative charge against the second defendant, LCPL D. of dangerous conduct causing death by negligence under DFDA S. 36(3). This charge against him relied upon two separate actions of his “posting” (throwing) an F1 fragmentation grenade into the room; and

c. a separate charge against both defendants under DFDA S. 36(3) of dangerous conduct causing grievous bodily harm, by negligence, to four civilian non-combatants who were listed as two adult females and two female children aged 4 to 10 years.

3. In deciding that battlefield soldiers did NOT owe a duty of care to civilian non-combatants, the JA said that members of the ADF are in a unique position when authorized by the Australian government to fight an enemy and to apply lethal force, which is an inherently dangerous task. There is rarely time for calm reflection in life and death situations. If there existed a duty of care to persons on the battlefield any hesitation might prove fatal.
Similarly, there is no duty of care attached to the giving of orders on the battlefield, as lawful orders cannot be the subject of examination by a subordinate. Likewise, a commander’s orders placing his men in harm’s way, which if a duty of care existed, could lead to hesitation by his troops and afford an advantage to the enemy. No such duty exists.

4. I thought the JA’s decision was most thorough and comprehensive, and I would be surprised if an appeal occurs, or if it did, I consider it would fail.

5. This decision may not alter the situation (at this stage) concerning the third person charged, the LTCOL commanding officer who ordered the raid by Force Element Charlie in the first place. The charges against him are (approximately):
(1) breaching a lawful (United Nations) general order relevant to authorizing the raid when he was not authorized to do so; and
(2) in the alternative, prejudicial conduct under S. 60 DFDA for authorizing the raid when not authorized to do so (I am not sure of the particulars to this charge).

6. This is as good a result as can be expected at this stage and let’s hope it finalises things for these poor blokes and their mates.