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Soldier accuses Defence Department of bringing ‘malicious’ prosecution
A former soldier has accused the Department of Defence of pursuing a malicious prosecution against him more than 20 years ago.
Naomi Neilson
Stewart Wayne Alpert, a former private with the Australian Defence Force, is seeking declaratory and other relief from the Commonwealth and six defence members in connection with rape charges and an acquittal before a military court martial.
On Friday (20 October), in a hearing to determine leave to amend the pleadings, the Federal Court heard it has “taken forever” for Mr Alpert to access information “related to his own circumstances”.
Counsel for Mr Alpert, David Denton AM RFD KC, said that even with the acquittal in his favour, the prosecution “has affected my client’s life”.
“Our client has been a very valuable serving member of the regular army; he served the country in very difficult circumstances under fire, he was discharged honourably, he has an unblemished record his entire service except for one absence without leave because he was late getting back from leave on time,” Dr Denton said.
“The only other thing against him is this matter.”
Referring to the act – which he said every member “from recruit through to chief of the Defence Force” was schooled in – Dr Denton said there was an extensive explanation about the military functions of bringing prosecutions and addressing disciplinary breaches.
Dr Denton alleged a charge sheet, known as the PD105 within the Defence Force, did not originally include the date Mr Alpert was charged and was only added in after an inquiry had been made. Dr Denton alleged the date that was eventually added was false.
Further to this, Dr Denton alleged the staff sergeant who had his name on the PD105 said he never served or authorised the sheet.
Dr Denton said there has been a “deliberate indifference” by the Commonwealth to determine what happened.
“Where’s the proof that he was charged? Who served him? Who was the authorised officer? It’s not like they have to turn their brain on for this, it’s in the act, it’s in the book,” Dr Denton said.
Counsel for the Commonwealth, Richard Knowles KC, said there was a problem with the pleadings, leaving the respondent’s unable to plead in response “so that the issues could be defined for the purpose of the proceedings going forward”.
Referring to the malicious prosecution argument, Mr Knowles said there “has to be something more” than just evidence of an alleged absence of reasonable and probable cause.
“We don’t deny there is some intersectionality between a lack of reasonable and probable cause and malice, and it may be that is an element of what is pleaded, but there has to be a pleading of some improper or malevolent motive or purpose (and) something that tips the balance away from just a lack of cause,” Mr Knowles submitted.
In reply, Dr Denton accused the Commonwealth of making “pleading snipes” in their submissions and insisted the respondents “understand the case, (because) we have 35 pages of it”.
“There is no error or confusion at all, no conflict, none,” he added.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
