Hot tips for young players: Getting lit with the boys (Absence without leave)

Defence Force Discipline Act 1984 (Cth), section 24 – Absence without leave.

Anzac day, a wonderful day to celebrate things that make Australia great, and to reflect on the sacrifices of those who came before us, being those who did so without knowledge of who we are, doing so solely for the benefit of their friends, family, and their country. It is no small thing to go to war with no guarantee of returning, and it is an even greater thing to sacrifice oneself. We will remember them.

In the spirit of Anzac Day, and the community activities which members engage in on this sacred day, it is prudent to consider the outcome of what may befall a member should they overindulge in festivities. More likely than not, a member will be unable to attend work and fall foul of the DFDA, section 24: Absence without leave. This is particularly true if a member is in the Royal Australian Corps of Military Police and has no friends to wake them up (hard times).

Members of the hierarchy may seek to charge a member for being a few minutes late to morning parade. In these circumstances, the more appropriate approach is to rely upon the DFDA’s minor disciplinary infringement provisions. However, should the member elect, they are entitled to have the matter heard as a charge.

The charge under the DFDA, section 24, is:

• Absence without leave

• A defence member who is absent without leave commits an offence.

Maximum punishment: Imprisonment for 12 months.

• An offence under subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

• It is a defence if the member proves that he or she was absent due to circumstances not reasonably within the member’s control.

Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.

[emphasis added]

The strict liability of the offence is often considered too heavily, with members not seeking to establish a defence. A strict liability offence carries with it two key distinctions:

1. There is no requirement to prove the member intended to be absent, insofar as the prosecution does not need to cross examine the defendant on their intention, nor is there an element of the charge which requires the decision-maker to consider the members intent; and

2. There is no “mistake of fact” defence available. That is to say, a member cannot say they were unaware they were meant to be on duty. This is particularly so when Unit Standing Orders, Army (or other lesser services) Standing Orders, or any applicable orders, likely direct member to attend for parade etc.

However, critically, and even more overlooked by members who have been charged, is the defence to the charge contained within the DFDA. The above underlined establishes that a member has a defence to the charge if they can establish that there were “reasonable” grounds which result in circumstances where the member could not attend duty due to matters out of their control.

In more practical terms, if a member can establish that there were matters which stopped them from driving to work, or walking from the live-in lines to the unit, or moving from the battalion to the parade ground, or any matter which impacts the member ability to attend duty, which were readily outside the members control, there is a defence to the charge.

The above proposition is one of the doorways opened by electing to progress the matter to a charge. However, in electing to progress to a charge, a Service Tribunal (being a Court Martial, a Defence Force Magistrate or a Summary Authority), incurs obligations in respect of that defence.[1] Specifically, the Service Tribunal is obliged to consider the defence.

In this regard, there are two (2) considerations which are relevant:

1. The requirement to establish the defence rests with the member; and

2. The defence is not established on the criminal burden of proof (beyond a reasonable doubt, despite the charge being heard on this standard); instead, it is heard on the civil standard (balance of probabilities).

The matter of Sargeson v Chief of Army,[2] which primarily deals with incorrect application of sentencing principles, and military detention, discusses absence without leave.

In Sargeson, the member went AWOL to you to being “overwhelmed with feelings of anxiety and depression”. Lieutenant Colonel Lawrie, the Commanding Officer’s carriage of the matter was considered in paragraph 23, which states:

I have come to the view that there are compelling reasons for finding a serious question to be tried that the Commanding Officer acted in excess of his jurisdiction in one of the four ways submitted by Mr Street; this is that the Commanding Officer failed to take into account the medical evidence of Dr Lakos as he was required to do under s 70 of the DFDA. 

[emphasis added]

Sargeson deals with the exercise of jurisdiction, where there are mandatory considerations which must be regarded when imposing a sentence. In this matter, it was determined the member was unlawfully detained. The basis of consideration was the failure to consider material provided by the member’s doctor. The member’s doctor confirmed the member was suffering anxiety and depression. In this guard, it can be argued that a mental health concern may be grounds which establish a “reasonable “defence insofar as these matters are outside the member's immediate control.

What is the key learning?

• Enjoy Anzac Day, be good to your mates, and be thankful for the freedoms which we enjoy.
• AWOL is not the end of the world, if the petition to reviewing authority is unsuccessful, the Federal Court of Australia will dish out justice biscuits.
• There is a ingrained defence to the charge of AWOL, provided there is a “reasonable” reason the member could not attend duty.
• The defence is raised on the civil standard, have a crack.
• Absence without leave, is distinctly separate from absence from duty.

[1] DFDA, section 70.

[2] [2005] FCA 1670.