DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

 

 

Carmichael v Chief of Navy [2009] ADFDAT 3



PRACTICE AND PROCEDURE – application for an extension of time within which to appeal against conviction – consideration of matters relevant to the exercise of the discretion to grant an extension of time within which to appeal – consideration of how the discretion granted by s 21(b) of the Defence Force Discipline Appeals Act 1955 (Cth) should be exercised



CRIMINAL LAW – whether convictions unreasonable or could not be supported on the evidence – whether convictions were unsafe and unsatisfactory – alleged discrepancies and inconsistencies in victim’s evidence – whether Defence Force Magistrate should have harboured a reasonable doubt as to the accuracy of the victim’s account of the assaults



Defence Force Discipline Act 1982 (Cth) ss 34, 152, 154

Defence Force Discipline Appeals Act 1955 (Cth) ss 21, 21(1)(b)

Defence Legislation Amendment Act 2008 (Cth) Item 4(3) of Schedule 8



Ferdinands v Chief of Army [2002] ADFDAT 3 followed

Gallo v Dawson (1990) 93 ALR 479 applied

M v The Queen (1994) 181 CLR 487 applied

Jones v The Queen (1997) 191 CLR 439 applied


CARMICHAEL v CHIEF OF NAVY

DFDAT 2 of 2009

 

TRACEY, MILDREN AND DUGGAN JJ

18 MAY 2009

MELBOURNE (HEARD IN SYDNEY)



DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 2 OF 2009

 

BETWEEN:

SCOTT CARMICHAEL

Applicant

AND:

CHIEF OF NAVY

Respondent

 

 

TRIBUNAL:

TRACEY J (President), MILDREN and DUGGAN JJ (Members)

DATE OF ORDER:

18 MAY 2009

WHERE MADE:

MELBOURNE (HEARD IN SYDNEY)

 

THE TRIBUNAL ORDERS THAT:

 

1.         The time within which the applicant may lodge an appeal from his convictions by a Defence Force Magistrate on 5 July 2007 be extended to 5 March 2009.


2.         The appeal be dismissed.



DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 2 OF 2009

 

 

BETWEEN:

SCOTT CARMICHAEL

Applicant

AND:

CHIEF OF NAVY

Respondent

 

 

TRIBUNAL:

TRACEY J (President), MILDREN and DUGGAN JJ (Members)

DATE:

18 MAY 2009

PLACE:

MELBOURNE (HEARD IN SYDNEY)


REASONS FOR JUDGMENT


1.         On 5 July 2007 LEUT Carmichael was convicted by a Defence Force Magistrate on two counts of assault on a subordinate under s 34 of the Defence Force Discipline Act 1982 (Cth) (“the DFDA”).  On 5 March 2009 he lodged an application for leave to file an appeal against these convictions.  Leave is necessary because the time limit prescribed by the Defence Force Discipline Appeals Act 1955 (Cth) (“the DFDAT Act”) for the filing of an appeal has long since expired.  The application was opposed by the respondent.


2.         At relevant times s 21 of the DFDAT provided, in part: 

“(1)    An appeal, or an application for leave to appeal, to the Tribunal under this Act:

 

(a)    …

 

(b)    shall be lodged with the Registrar … within the appropriate period, or within such further period as the Tribunal, either before or after the expiration of the appropriate period, allows.

 

(2)     In subsection (1), appropriate period, in relation to proceedings before a service tribunal that have resulted in a conviction or a prescribed acquittal, means the period of 30 days commencing immediately after:

        

(a)    the day on which the results of a review under section 152 of the Defence Force Discipline Act 1982 of the proceedings are notified to the convicted person or the prescribed aquitted person; or

 

(b)    the last day of the period of 30 days after the conviction or prescribed acquittal;

whichever is the earlier.”

 

Section 152 of the DFDA provided for what became known as “an automatic review” by a reviewing authority of the proceedings before a court martial or Defence Force Magistrate.  The reviewing authority was bound, by s 154 of the DFDA, to obtain legal advice before commencing the review.


3.         The Tribunal’s discretion to grant an extension of time to appeal against convictions is to be exercised in the interests of justice, having regard to a wide range of potentially relevant considerations.  In Ferdinands v Chief of Army [2002] ADFDAT 3 at [9] the Tribunal adopted observations, made by McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480, as having application to the exercise of its discretion to enlarge time.  McHugh J said:

“The grant of an extension of time under this rule is not automatic.  The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice.  The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties:  see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262.  This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.  In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time:  see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185.  When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal:  see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524.  It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted:  Vilenius v Heinegar (1962) 36 ALJR 200 at 201.  It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.  As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:

 

“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion”.”

 

4.         The applicant filed an affidavit, sworn on 25 March 2009, in support of his application.  In seeking to explain his reasons for the delay in lodging his appeal LEUT Carmichael deposed that:

·    After he had been convicted he was advised to await the outcome of the automatic review of the trial under s 152 of the DFDA before deciding whether he needed to take further action to challenge the convictions.

·    He was not advised of the outcome of the automatic review until 27 September 2008 - 450 days after the trial had concluded.

·    Once advised of the outcome of the automatic review (which confirmed the convictions and penalties) he had difficulty obtaining advice from a legal officer.

·    He lodged a petition for review pursuant to s 153 of the DFDA on or about 27 October 2008. 

·    On 12 December 2008 the reviewing authority had considered his petition but upheld both the convictions and punishments.  LEUT Carmichael was not informed of the result of the petition until 29 January 2009 by which time any scope for further application for redress by petition had been precluded by operation of the Defence Legislation Amendment Act 2008 (Cth):  see Item 4(3) of Schedule 8.


5.         LEUT Carmichael said that he had received legal advice that he had “reasonable prospects of success in the substantive appeal.”  He said further that the convictions would have an impact on his prospects for promotion within the Navy and his prospects of being able to return to work in a civilian police force or to obtain positions within the Public Service which require a security clearance.


6.         During oral argument counsel for LEUT Carmichael told the Tribunal that he had advised LEUT Carmichael to await the outcome of the automatic review of the proceeding before the Defence Force Magistrate before taking any other steps to challenge his convictions.  He had also advised LEUT Carmichael to lodge a petition after the automatic review had led to a confirmation of the convictions and penalties.  At no stage had he advised LEUT Carmichael about his right to appeal to this Tribunal against the convictions which had been imposed by the Defence Force Magistrate.  Neither counsel was in a position to advise the Tribunal as to the reasons for the delay of 450 days between the conclusion of the trial and LEUT Carmichael being advised of the outcome of the automatic review. 


7.         In our view all of these matters are relevant in determining how the discretion, vested in the Tribunal by s 21(1)(b) of the DFDAT Act, should be exercised.  It is notable that, whilst there was an inordinate delay in the conduct of the automatic review, LEUT Carmichael, no doubt acting on legal advice, had determined to pursue his review rights under the DFDA and only turned to the Tribunal after he had exhausted those rights.  It is also notable that there was a 159 day delay between him being notified of the outcome of the automatic review and his filing of the application for an enlargement of time within which to commence the appeal.


8.         An important consideration, on an appeal such as the present, is the prospects of the applicant succeeding in the appeal.  Counsel on both sides were ready to argue the application as on an appeal and the Tribunal invited them to do so.  The applicant was given leave to file a Notice of Appeal raising the two grounds which appeared in the Application for an Extension of Time.  They were that:


(a)    The convictions were unreasonable or cannot be supported having regard to the evidence; and

(b)   The convictions were, in all the circumstances of the case, unsafe and unsatisfactory.


9.         On 6 October 2006 officers, including LEUT Carmichael, were invited to attend a social function at the Senior NCO’s Mess at the Australian Defence Force Academy.  In the course of the evening two incidents occurred which involved LEUT Carmichael and a SGT Milne.  It was alleged that, on each occasion, LEUT Carmichael had assaulted SGT Milne.


10.       The prosecution case was that, earlier in the year, both men played supervisory roles in a field exercise which SGT Milne had co-ordinated.  SGT Milne had made it clear that he wished the exercise to commence and conclude at particular times.  LEUT Carmichael had directed that his group should commence the exercise 10 minutes before the appointed time.  SGT Milne had subsequently criticised LEUT Carmichael for having done so.


11.       On 6 October 2006 both men had attended the mess in the late afternoon.  They had both left and returned at some time after 1930 hours.  LEUT Carmichael approached SGT Milne who was standing at the bar and said that he wanted to discuss the criticism which SGT Milne had directed to him after the exercise.  SGT Milne did not wish to discuss the matter and so informed LEUT Carmichael.  SGT Milne turned to walk away.  At this point, according to LEUT Carmichael, he touched SGT Milne above the wrist in an endeavour to attract his attention.  SGT Milne said that LEUT Carmichael had grabbed him on the wrist and twisted it causing him considerable pain.  He reacted by turning and, with his other hand, applying pressure to LEUT Carmichael’s neck in an endeavour to force him to let go of his wrist.  LEUT Carmichael agreed that SGT Milne had applied pressure to his neck.  LEUT Carmichael withdrew his hand from SGT Milne’s wrist and SGT Milne walked out of the bar area and onto an adjoining open air balcony.  He sat on the edge of the balcony and lit a cigarette.  Shortly afterwards LEUT Carmichael was observed to follow SGT Milne onto the balcony and approach him.  LEUT Carmichael said that he had followed SGT Milne in order to apologise to him about the earlier altercation.  As he approached SGT Milne had risen and, fearing some form of attack, LEUT Carmichael had raised his arm at chest height in order to fend SGT Milne off.  SGT Milne’s version, which was accepted by the Defence Force Magistrate, was that LEUT Carmichael had approached him and sought to resume the earlier conversation.  SGT Milne had made it plain that he did not wish to discuss the matter.  After a short time LEUT Carmichael had raised his arm in a threatening manner and had scratched SGT Milne on the cheek.  LEUT Carmichael’s original approach had been observed by WO2 Jones who came up to LEUT Carmichael from behind as he had his arm raised at shoulder height and attempted to pull him back from SGT Milne who had remained seated.  He failed in his attempt to pull LEUT Carmichael away.  SGT Michalowski then also intervened and WO2 Jones and SGT Michalowski were able to pull LEUT Carmichael off to the side of the balcony.  While being held by WO2 Jones and SGT Michalowski LEUT Carmichael, according to SGT Milne, said words to the effect “look, its taken two people to hold me back.  Come on, Haggis, I’ll have you any day.”  The mess secretary was summoned and escorted LEUT Carmichael out of the mess.  He said that LEUT Carmichael was co-operative as he left the mess.  Under cross-examination SGT Milne said that LEUT Carmichael had stayed outside the mess for 15 to 20 minutes after he had been evicted and yelled abuse at him and others.


12.       Counsel for LEUT Carmichael submitted that the Defence Force Magistrate had been too willing to accept SGT Milne’s evidence and had been prepared to ignore a number of discrepancies in SGT Milne’s account while accepting SGT Milne’s version of the events which immediately and directly touched on the two assault charges.  This approach was said to have been seriously injurious to LEUT Carmichael’s interests because the incident in the bar had not been witnessed by anyone else and no one else saw SGT Milne being struck when he was on the balcony.


13.       Counsel focussed attention on a number of matters which he contended should have led the Defence Force Magistrate to harbour a reasonable doubt as to the accuracy of SGT Milne’s account of the assaults.  He drew attention to alleged discrepancies and contradictions in SGT Milne’s evidence relating to:


·          When the field exercise occurred.  SGT Milne had suggested that it had taken place in February 2006 but other evidence suggested that it had taken place some three weeks before the mess function.

·          The time he had returned to the mess.  SGT Milne had initially put the time as 2030 hours.  When confronted with an earlier statement which he had made to the service police which put the time at about 1945 hours he changed his evidence to say that he had returned about 1945 hours and that the first incident had occurred at about 2030 hours.

·          There was no evidence to support the claim by SGT Milne to the effect that, for a period of 15 to 20 minutes after he had left the mess, LEUT Carmichael had stood outside yelling threats and abuse at SGT Milne.  SGT Milne’s evidence was inconsistent with that given by the mess secretary.


14.       The Defence Force Magistrate had accepted that there were discrepancies in SGT Milne’s evidence relating to these matters but dismissed them as going to peripheral issues.  In dealing with SGT Milne’s evidence as to the time he returned to the mess the Defence Force Magistrate said that he nonetheless accepted SGT Milne’s evidence relating to the encounter in the bar because the evidence relating to the “incident in question, the alleged assault, was substantially consistent and unshaken in cross-examination in the case of both alleged incidents, both assaults.”  In dealing with the alleged, inconsistency between the evidence of SGT Milne about LEUT Carmichael’s conduct after he had left the mess and that of the mess secretary the Defence Force Magistrate said:

“The Defending Officer states that he [SGT Milne] amplified or exaggerated certain peripheral matters.  The clearest example of this put to me occurred after the second incident.  It’s where SGT Milne suggested LEUT [Carmichael], “carried on a treat” to use a summary of the words by the Defending Officer, and was yelling abuse at him and perhaps others for 20 minutes after this event.  This is directly in opposition to what [the mess secretary] said.  He didn’t hear any words, and the Defending Officer submits that there is really no way to explain this discrepancy apart from one of [SGT Milne] exaggerating.  Again, that is the word he uses.

 

Now, even if this was so, he was exaggerating in relation to this or perhaps he believes the words were spoken and no one else has given evidence to that effect, I do not find that in any way undermines the truthfulness, accuracy and reliability of his evidence about the actual assault.  I was impressed by the way he gave evidence of the incidents, the actual assaults, itself.  In relation to the first incident, the one that occurred in the bar [SGT] Milne’s evidence is clear and his versions of events are believable or plausible despite what is said, that the act is inconsistent with a cordial evening up to that point.  Certainly, I think it’s agreed that it was a cordial evening up to that point between both the accused and the …. sergeant, at the time.”

 

15.       Counsel for LEUT Carmichael contended that the Defence Force Magistrate had been able to find SGT Milne to be a credible witness only by “paring away” inconsistencies in his evidence which should have cast doubt on his overall credibility.


16.       In our view the Defence Force Magistrate did not err in the manner alleged by the applicant.  The errors relating to the time at which the exercise took place and the time at which SGT Milne returned to the mess were not significant.  Nothing turned on the precise timing of these events.  SGT Milne’s evidence on these matters did not serve to bolster his claims in relation to the two alleged assaults.


17.       SGT Milne’s evidence as to the conduct of LEUT Carmichael in the 15 to 20 minutes immediately after his eviction from the mess is in a different category.  The allegation that LEUT Carmichael shouted threats and abuse to SGT Milne and others at this time did tend to support SGT Milne’s evidence of LEUT Carmichael’s aggressive behaviour towards him on the balcony.  The mess secretary said that he had not heard any such abuse.  No other witness was asked about the matter.  No evidence was called as to the whereabouts of the mess secretary and other potential witnesses in the 20 minute period following the eviction of SGT Milne from the mess.  It cannot, therefore be concluded that SGT Milne’s evidence on this point was contradicted by any other evidence.


18.       We do not, therefore, consider SGT Milne’s credibility had been undermined in the manner suggested by the applicant.


19.       We consider that it was open to the Defence Force Magistrate, on the evidence given by SGT Milne and others, to conclude that the two alleged assaults had occurred.


20.       There were no independent witnesses to the first incident.  If all that had happened was that LEUT Carmichael had touched SGT Milne lightly on the wrist to attract his attention there would have been no reason for SGT Milne to turn and grip LEUT Carmichael by the throat.  Such an action is far more consistent with an instinctive response by SGT Milne to having his wrist and hand twisted in a painful way.  It is highly improbable that a sergeant would grasp an officer by the throat in a mess unless sorely provoked.  Of course it may be said that it is equally highly unlikely that an officer would assault a sergeant in the Senior NCO’s Mess.  However, the evidence was that the applicant had had quite a lot to drink that evening which could have explained his conduct, whilst SGT Milne had not had much to drink at all.


21.       The account of the second incident given by SGT Milne was corroborated to a significant extent by the evidence of WO2 Jones and SGT Michalowski.  Although neither of them saw LEUT Carmichael’s hand make contact with SGT Milne’s face they had both been sufficiently alarmed by the actions of LEUT Carmichael to quickly intervene to restrain LEUT Carmichael and pull him away from SGT Milne.  It took two of them to do this.  WO2 Jones also confirmed that SGT Milne was sitting when approached by LEUT Carmichael.  So positioned SGT Milne’s face would have been aligned with LEUT Carmichael’s outstretched hand.  Again, it is highly unlikely that a Warrant Officer and a senior NCO would lay hands on an officer in a mess unless their observations of the officer’s conduct led them to be concerned for another member’s safety.  The significance of this evidence was adverted to by the learned Defence Force Magistrate when he said that, if the account given by the accused was a possible explanation, an inference that the applicant intended to strike SGT Milne could not be drawn.  However, the fact that WO2 Jones and SGT Michalowski both felt the need to restrain the applicant is strongly suggestive that the applicant did intend to assault SGT Milne.


22.       Having considered the evidence for ourselves in accordance with the principles enunciated in M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439, we are not satisfied that the learned Defence Force Magistrate misused his advantage in seeing or hearing the witnesses, and we ourselves do not entertain a reasonable doubt as to the applicant’s guilt.


23.       We are concerned at the unexplained delay of 450 days between the Defence Force Magistrate’s decision and the completion of the automatic review.  This does not, however, explain why LEUT Carmichael did not comply with the time limits imposed by s 21 of the DFDAT Act.  In the event the merits of the appeal were fully considered during the course of the argument for and against the enlargement of time within which to bring the appeal.  In these circumstances we consider that it is appropriate to extend the time within which LEUT Carmichael may file his Notice of Appeal to 5 March 2009, the date on which the application for an enlargement of time was filed.  The appeal itself should be dismissed.


24.       In Ferdinands at [6] the Tribunal observed:

“Section 21 [of the DFDA Act] leads to an odd result in the event of the results of the section 152 review not being notified within 30 days of conviction, as is most commonly the case.  In some cases the time for appealing will expire before the results of the section 152 review are notified.  In other cases, the period in which to consider an appeal after notification of the results will be shortened considerably.  As some appeals may be rendered otiose as a consequence of the automatic review procedure under s 152 it would seem more appropriate if the legislation allowed an appeal to be brought within 60 days of the conviction or within 30 days of the notification of the result of the s 152 review, whichever is the later.”


25.       The need for such legislative amendment has passed because the post-conviction review and petition processes were removed from the DFDA when trials before courts martial and Defence Force Magistrates were abolished and the Australian Military Court became the trial court for offences under the DFDA.  It is, nonetheless, regrettable that the problem adverted to in 2002 has arisen yet again in what may be the last appeal to the Tribunal from a decision of a Defence Force Magistrate.


I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Tribunal.



Associate:


Dated:  18 May 2009

Counsel for the Applicant:

LEUT P Walker

Solicitor for the Applicant:

Capon and Hubert

Counsel for the Respondent:

BRIG L McDade and LTCOL H Dempsey

Solicitor for the Respondent:

Office of the Director of Military Prosecutions



Date of Hearing:

11 May 2009

Date of Judgment:

18 May 2009