Gooch v Chief of Air Force [2007] ADFDAT 2

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Gooch v Chief of Air Force [2007] ADFDAT 2 DEFENCE – applicant convicted by a Defence Force Magistrate on charge referred to DFM at request of Acting Director of Military Prosecutions Held: 1. Referral did not have to state it was made pursuant to request of Acting DMP. 2. Appointment of Acting DMP, although made before DefenceLegislation Amendment Act (No 2) 2005(Cth) came into operation, was valid because of operation of s 4 of Acts Interpretation Act 1901 (Cth). 3. By virtue of s 33A of Acts Interpretation Act, Acting DFM could exercise powers of DFM. Acts Interpretation Act 1901 (Cth) ss 4, 33A Defence Force Discipline Act 1982 (Cth) ss 103, 188GP GOOCH v CHIEF OF AIR FORCE DFDAT NO 2 OF 2006

heerey j (President), underwood Cj (deputy president) AND DUGGAN j (member)

7 MARCH 2007

SYDNEY DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 2 OF 2006

BETWEEN: BRIAN GOOCH

APPLICANT AND: CHIEF OF AIR FORCE

RESPONDENT

TRIBUNAL: heerey j (President), underwood cj (deputy president) AND DUGGAN j (member)

DATE OF ORDER: 7 MARCH 2007

WHERE MADE: sydney

THE TRIBUNAL ORDERS THAT:

The application for leave to appeal is dismissed.

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 2 OF 2006

BETWEEN: BRIAN gOOch

APPLICANT

AND: chief of air force

RESPONDENT

TRIBUNAL: heerey j (president), underwood cJ (deputy president) and DUGGAN J (member)

DATE: 7 MARCH 2007

PLACE: sydney

REASONS FOR JUDGMENT

Introduction 1 The applicant pleaded guilty to four counts of causing a loss contrary to s 61(3) of the Defence Force Discipline Act 1982 (Cth) ("DFD Act"), and ss 61(3) and 135.1(3) of the Criminal Code Act 1995 (Cth). Upon the applicant's request, the Defence Force Magistrate ("DFM") took into account 14 other like offences. The applicant was convicted and sentenced to three months imprisonment on each count, all the sentences to be served concurrently. The DFM also made a conditional recognizance release order after one month of the prison sentence had been served and ordered dismissal from the Defence Force. The applicant now wants to challenge those orders upon the basis that the DFM had no jurisdiction to make them. 2 The Defence Force Discipline Appeals Act 1955 (Cth), s 21, prescribes the time within which appeals are to be brought. In this case, the time for appealing expired on 2 September 2006. The applicant did not lodge an application for leave to appeal until 30 November 2006. Accordingly, the applicant applies for an order extending the time within which to bring an appeal. As the merits of a proposed appeal are relevant to the grant of an extension of time, it is convenient in this case to deal with that issue at the outset.