Hi Neal
Thanks for your time on the phone and thanks
again for so generously offering to assist us. I do hope that we can find a way to assist you too.
I am intrigued by the way the prosecutors have
pleaded the charges in SSGT Wuterich's case. Australian law in relation to manslaughter is pretty much the same as the law under art 119 of the UCMJ. That is to say, there are 2 types of manslaughter:
1. voluntary manslaughter - where a person kills
another in circumstances that would satisfy all of the elements of murder, but under provocation;
2. involuntary manslaughter - where a person
kills another by criminal negligence; or, where a person kills another by an unlawful and dangerous act.
The specifications to charge 2 seem a little
odd to me, because the alleged fault elements are 'wrongfully and recklessly'. The wrongful part seems to be an allegation of unlawfulness, or to use the language of art 119(b)(2): while perpetrating or attempting to perpetrate an offense. If that is correct
what offence does the prosecution say SSGT Wuterich was perpetrating or attempting to perpetrate?
The reckless part of the specification seems
to be an allegation of culpable negligence within the language of art 119(b)(1). I note from the 2008 edition of the Manual for Courts Martial at page IV-65 that there is a legal duty to act. As we discussed on the phone, I am interested in the question
whether a soldier actually does owe a legal duty to others on the battlefield. Assume that SSGT Wuterich is in command of a squad of men about to make entry to a room containing an enemy combatant and some non-combatants. Assume that he posts a grenade into
the room before ordering his men to make entry. If it is correct to say that SSGT Wuterich owed a duty of care to the non-combatants, is it also correct to say that he owed a duty of care to the enemy combatant? And what about his men? Did he owe a duty
of care to them? If he owed a duty of care to the non combatants, he must surely have owed a duty to his own men. How can those duties possibly be reconciled? I would contend that it is impossible for such duties to be reconciled, which points in favour
of the conclusion that the duties do not exist. Of course, I am limiting these contentions to circumstances of actual combat.
The leading Australian case on the issue of
the duty of care owed by the armed forces is Shaw Savill and Albion Co Ltd v Commonwealth
(1940) 66 CLR 344 at 361–2, in which Justice Dixon said:
It could hardly be maintained that during
an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a King's ship of war was under a common-law duty of care to avoid harm to such non-combatant ships as might appear in the theatre of operations. It cannot be enough
to say that the conflict or pursuit is a circumstance affecting the reasonableness of the officer's conduct as a discharge of the duty of care, though the duty itself persists. To adopt such a view would mean that whether the combat be by sea, land or air
our men go into action accompanied by the law of civil negligence, warning them to be mindful of the person and property of civilians. It would mean that the Courts could be called upon to say whether the soldier on the field of battle or the sailor fighting
on his ship might reasonably have been more careful to avoid causing civil loss or damage. No-one can imagine a court undertaking the trial of such an issue, either during or after a war. To concede that any civil liability can rest upon a member of the armed
forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy.
…
But, when, in an action of negligence against
the Crown or a member of the armed forces of the Crown, it is made to appear to the court that the matters complained of formed part of, or an incident in, active naval or military operations against the enemy, then in my opinion the action must fail on the
ground that, while in the course of actually operating against the enemy, the forces of the Crown are under no duty of care to avoid causing loss or damage to private individuals.
There is no authority dealing with civil
liability for negligence on the part of the King's forces when in action, but the law has always recognized that rights of property and of person must give way to the necessities of the defence of the realm. A good statement will be found by Sir Erle Richards,
Law Quarterly Review, vol. 18, at p. 135. To justify interference with person or property, it must, according to some, be shown that the measures were reasonably considered necessary to meet an appearance of imminent danger. But this seems a strict test: See
Pollockon Torts, 14th ed. (1939), p. 132, note t, and p. 134; Law Quarterly Review, vol. 18, at pp. 139-141 and 158, and cp. R. v. Allen.
The uniform tendency of the law has been
to concede to the armed forces complete legal freedom of action in the field, that is to say in the course of active operations against the enemy, so that the application of private law by the ordinary courts may end where the active use of arms begins. Consistently
with this tendency the civil law of negligence cannot attach to active naval operations against the enemy.
[Copy attached].
This reasoning was followed in the United Kingdom
in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75 per Lord Reid at 99–101, Lord Pearce at 145–146 and
Mulcahy v Ministry of Defence [1996] QB 732.
It was recently referred to by the UK Supreme Court in
Regina (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29 at [189].
Bici
v Ministry of Defence [2004] EWHC 786 was a claim for personal
injury bought by two civilians arising out of UN peacekeeping operations in Pristina, Kosovo during 1999. Having liberated Pristina, the UN were supervising the transfer of power from the Serbians back to the Kosovar Albanians. It was the first Kosovar Independence
day for eight years. British troops were overseeing a large crowd who were firing guns in celebration. Misinterpreting the situation, they fired on a car of civilians. Two passengers were killed and the survivors, the applicants, claimed for damages relating
to gunshot wounds to the head and for psychiatric injury. The soldiers’ defence was that they had believed they were under attack from a passenger sat on the roof of the car who they had thought was about to fire on them. They stated that they discharged their
weapons in self defence. The court held:
“Even focusing on the soldier’s activities on the night in question, it is plain that they were carrying out essentially
a policing and peacekeeping function. I accept that this labelling of their role does not of itself determine matters since even when carrying out those activities they could still be engaged in an attack or threat of attack … But any such threat must in my
view be imminent and serious. Indeed, even where they are under some sort of attack, such as where there is a civilian riot that, would not mean that the doctrine of combat immunity would necessarily apply.”
Admittedly, these are all civil tort cases,
but I do not see how it can be said that a soldier does not owe a legally enforceable duty of care for the purposes of a civil tort, but does owe a duty for the purposes of criminal negligence.
I wonder if it would be open to you to contend
that charges 2 and 4 against SSGT Wuterich should fail because the prosecution cannot establish that as a matter of law, he owed a legally enforceable duty of care to the non-combatants?
I will be very happy to share with you my client's
name, however, I am not able to do so on an unclassified means. As he is an operational member of the Special Operations Command, his identity is classified secret. In all unclassified correspondence, we have been directed to refer to him as 'SGT J'. Please
forgive what probably seems like excessive formality, however, I am conscious of the fact that this case is being closely scutinized by our Defence Security Authority and so, I'm doing everything by the book.
I'm glad you and your wife enjoyed Canberra
so much. Leaving aside the public buildings, it must surely be Australia's least flattering city. As a capital, it pales in comparison to Washington. I do hope that we can get you back out here next year to spend some time in Sydney which, although I'm unashamedly
biased, I think is one of the loveliest cities in the world.
Look forward to discussing this with you further.
David