Carmichael v Chief of Navy [2009] ADFDAT 3

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