Re Colonel Aird; Ex parte Alpert

209 Austl. L. Rep. 311, [2004] HCA 44 (2004)

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Re Colonel Aird; Ex parte Alpert

Australia High Court
209 Austl. L. Rep. 311, [2004] HCA 44 (2004)

Facts

Private Alpert (defendant) was a soldier in the Australian Regular Army and stationed in Malaysia. Alpert was allowed to take leave near his station and went to Thailand on personal leave. While in Thailand, Alpert was required to keep the army notified of his whereabouts in case the army needed to recall him. However, Alpert dressed like a civilian and used only his personal funds for his vacation. Alpert was accused of raping a woman while he was in Thailand. The military (plaintiff) investigated the allegations and charged Alpert with having nonconsensual sex. The military intended to pursue the charges in a general court-martial. Alpert filed a writ with the Australia High Court, contesting the military court’s subject-matter jurisdiction over the offense because it had occurred while Alpert was on personal leave. The writ judge certified a question to the entire court, asking whether exercising military jurisdiction over the charge against Alpert was unconstitutional.

Rule of Law

Issue

Holding and Reasoning (McHugh, J.)

Dissent (Callinan, Heydon, J.J.)

Dissent (Kirby, J.)

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