Full Court Minute Books

Case S272/2019

Private R v. Cowen & Anor

Case No.


Case Information


Constitutional law – Where member of defence forces charged with assault occasioning bodily harm pursuant to s 24 of Crimes Act 1900 (ACT) as purportedly applied to defence members and defence civilians by s 61(3) of Defence Force Discipline Act 1982 (Cth) – Where person charged objected to jurisdiction of Defence Force Magistrate to hear and determine charge on basis that prosecution could not reasonably be regarded as substantially serving purpose of maintaining or enforcing service discipline – Where objection to jurisdiction dismissed – Whether writ of prohibition should issue to prohibit Defence Force Magistrate from hearing and determining charge – Whether certain provisions of Defence Force Discipline Act 1982 (Cth), insofar as they purport to confer jurisdiction on “service tribunal” to hear and determine charge against “defence member” for offence against Crimes Act 1900 (ACT) solely on basis of person’s status as “defence member”, are beyond Commonwealth legislative power in circumstances where alleged offence committed in Australia but not on “service land” or “service property”, where persons involved were off duty, in time of peace and civil order, and where civil courts said to be reasonably available.

Short particulars


13/09/2019 Application for constitutional or other writ

20/09/2019 Notice of constitutional matter (Plaintiff)

27/02/2020 Hearing (Single Justice, Brisbane v/link Sydney)

03/03/2020 Hearing (Single Justice, Brisbane v/linkSydney)

03/03/2020 Sealed Order (3/03/2020)

17/04/2020 Written submissions (Plaintiff)

15/05/2020 Written submissions (Second Defendant)

29/05/2020 Reply (Plaintiff)

30/06/2020 Hearing (Full Court) (Audio-visual recording)

30/06/2020 Outline of oral argument (Plaintiff)

30/06/2020 Outline of oral argument (Second Defendant)

09/09/2020 Judgment (Judgment summary)