Ferdinands v Chief of Army

FINDINGS OF THE DFM 7 It is convenient to make some mention of the findings of the DFM which resulted in the acquittal of the applicant on one charge of assault and his conviction on the other, noting that the applicant disputes those findings. 8 The complainant was a private in the Army Reserve. She worked as a driver during a training camp. She alleged that, on 15 January 1999, the applicant followed her into the Quartermaster's store at about 2200 hours, grabbed her and tried to kiss her. After being rejected he grabbed her and tried again. She pushed him away. This "second" contact constituted the first charge. For reasons it is unnecessary to rehearse, while the DFM accepted that the incident was largely as related by the complainant, he was not satisfied that there was a second grabbing and found the applicant not guilty of that charge. 9 The complainant had an infected ear and had covered it with a plaster. The following day, 16 January 1999, she was loading vehicles to return to Adelaide from the training camp when the applicant approached her from behind and squeezed her ear causing her to scream in pain. There were two witnesses to this assault. The DFM found that charge proved. He accepted the prosecution witnesses and found the applicant unreliable. 10 The applicant alleges that the complainant had reason to fabricate the complaint against him as she herself had been AWOL during the training camp and faced her own disciplinary proceedings. BRIG McDade, counsel for the respondent, informed the Tribunal that, contrary to the applicant's allegation, the complainant was absent and on authorised short leave. 11 The applicant alleges in his written submissions, and maintained in his oral submissions, that his Notice of Alibi had never been investigated and a miscarriage of justice had occurred. This, as the Tribunal understands the applicant, is a reference to the unit records which, if thoroughly examined, could place the applicant elsewhere than the location of the assaults. BRIG McDade informed the Tribunal that, so far as the available records revealed, there had been no Notice of Alibi given to the prosecution in compliance with s 145A of the DFD Act or at all.

CHRONOLOGY 12 Before considering the several applications a chronology needs to be set out. 13 On 30 November 1999 a legal officer provided the reviewing authority with his report pursuant to s 154 of the DFD Act about the conviction and penalty on 4 November 1999 by the DFM. The conviction and punishment were upheld by the reviewing authority. 14 A petition for a further review was sought. The report dated 16 June 2000, provided by a Reviewing Judge Advocate, supported the conviction but concluded that error had entered into the sentencing process. On 31 August 2000, the applicant was informed by the Deputy Chief of Army of the outcome of the review, of the resultant new sentence and that an investigation was being conducted into his allegation of misconduct by the legal officers in respect of his prosecution. Subsequently, on 15 February 2001, he was informed that no evidence of misconduct had been found. 15 On 27 February 2001 the applicant was convicted in the Adelaide Magistrates Court of common assault on a person in police custody and discharged from the police service in November that year. The applicant contends he was wrongly convicted. 16 On 27 March 2001 the applicant forwarded an unsigned copy of a proposed notice of appeal to the Defence Legal Centre in Adelaide. This was forwarded to the Tribunal and received in the registry on 17 April 2001. The time for lodging an appeal or application for leave to appeal is set out in s 21(2) of the Defence Force Discipline Appeals Act 1955 (Cth) ("the DFDA Act"). It is the earlier of two nominated dates, namely: "(2) … the period of 30 days commencing immediately after: (a) the day on which the results of a review under section 152 of [the DFD Act] of the proceedings are notified to the convicted person …; or (b) the last day of the period of 30 days after the conviction …" 17 Whichever date was employed, the applicant was well out of time for filing an appeal and required an extension of time. The application for the extension of time was heard by Heerey J, the then President of the Tribunal. 18 His Honour summarised the proposed grounds of appeal as follows: "The proposed notice of appeal alleges, amongst other things, that there was a miscarriage of justice or conspiracy to pervert the course of justice by senior Army Legal Corps officers. It is said that the DFM 'erred in law by not understanding the appellant's changed mental state', that he did not 'alert his mind to joint criminal enterprise' (this being an alleged conspiracy by prosecution witnesses), that he 'did not alert his mind to the admissions of the hard evidence against the applicant' and the fact that there 'may have been collusion/misconduct between the prosecution and defence teams to process corruption, namely fabrication of evidence and suppression of evidence' and that he erred in law by 'not alerting his mind to or allowing a sham DFM trial to take place': see Ferdinands v Chief of the Army [2001] ADFDAT 2 at 3 [12]. 19 His Honour had directed the Registrar of the Tribunal to advise the applicant that the respondent opposed the granting of an extension of time on the grounds of excessive delay in filing the notice of appeal, the lack of any reasonable explanation for that delay and want of merit. Any further affidavits or written material upon which the applicant wished to rely were directed to be filed within a particular time. 20 Justice Heerey noted that the applicant's document headed "Extension of Time" generally repeated the allegations of conspiracy, but did not provide an explanation for the delay. His Honour concluded that the appeal was without merit, noting that the original hearing involved a straight forward factual dispute and that questions of credit were central to the case. He concluded that the careful findings of the DFM did not disclose any arguable defect. 21 The applicant appealed that decision. That appeal was filed some days out of time but there was no opposition to the Tribunal extending time. The applicant was represented at that hearing. The Tribunal, constituted by the Deputy President, Underwood J, and Members Mildren and Duggan JJ, gave some attention to the wording of s 21 of the DFDA Act and the unsatisfactory nature of the time periods allowed: see Ferdinands v Chief of Army [2002] ADFDAT 3. The Tribunal noted that the notice was not filed until almost seven months after the date of notification of the result of the review and almost seventeen months after the date of conviction. The Tribunal concluded that the period of delay was lengthy and, accordingly, any explanation for it needed to be scrutinised closely. 22 The Tribunal held that the proper approach to an extension of time in circumstances like the present where a discretion is conferred to extend time beyond the statutory limit was that enunciated by Mc Hugh J in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479. His Honour said (at 480) that the discretion can only be exercised in favour of an applicant "upon proof that strict compliance … will work an injustice upon the applicant". The factors which are relevant are 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 extension of time. Where the application is for an extension of time within which to file an appeal "it is always necessary to consider the prospects of the applicant succeeding in the appeal". 23 The Tribunal concluded that the material placed before it did not disclose a satisfactory explanation as to why the notification of the appeal was so late. 24 The Tribunal then considered the prospects of success should an extension be granted. The Tribunal canvassed the evidence led before the DFM. As appears from the Tribunal's reasons at [23], the principal criticism which the applicant advanced in respect of the DFM's reasoning was that, having dismissed the first charge, the DFM should not have found that the evidence in relation to the second charge was of sufficient reliability on which to base a conviction - an argument which the applicant continues to advance. The Tribunal examined carefully whether, in effect, there were inconsistent verdicts which could not stand together. Having surveyed the evidence the Tribunal concluded, applying the principles expounded in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 494, that a court would inevitably conclude that no miscarriage of justice had occurred. 25 The Tribunal also considered an argument that had not been raised before the DFM, namely, that the DFM should have found that the incident involved in the second charge may have been the result of innocent "horse play". This had never been suggested below, particularly in light of the applicant's contention that he was not present. The Tribunal concluded that the evidence of witnesses left no room for that new construction. Other arguments were rejected. The Tribunal concluded, at [29]: "In summary, therefore, it is our view that no satisfactory reason has been advanced for the lengthy delay in lodging the appeal. This consideration, coupled with the apparent absence of merit in the proposed grounds of appeal, lead us to the conclusion that the extension of time within which to appeal was rightly rejected." 26 The applicant filed a notice of appeal on 9 September 2002 in the Federal Court from the decision of the Tribunal dismissing the appeal from Heerey J. He also filed a motion for discovery of information. The latter was heard and dismissed by von Doussa J on 18 December 2002. The Full Court of the Federal Court (Spender, Ryan, Dowsett and Selway JJ) heard the appeal in Adelaide on 11 February 2003 and gave its decision that day: see Ferdinands v Chief of Army [2003] FCAFC 9. The Full Court dismissed the appeal on the ground that there was no prospect of success, and upon the further ground that there would be no prejudice to the applicant in dismissing the appeal for want of prosecution. The Full Court noted that s 52 of the DFDA Act permitted an appeal to the Federal Court only on a question of law. The Full Court upheld von Doussa J's decision against the application for further information because that information was not before the Tribunal. 27 The Chief of Army had filed a notice of motion on 7 February 2003 seeking orders that the applicant's appeal from the decision of the Tribunal be dismissed for want of prosecution. The applicant had been directed by the Court that failure to comply with the rules of court about a draft index and the preparation of appeal books could lead to the appeal being dismissed. 28 The applicant had attempted to file a document seeking to have a question of law reserved to the Full Court of the Federal Court - something which he seeks on this application, although on a different question. While the applicant indicated that he did not have the means to prepare appeal books, the Full Court understood that he wished to have the question of law determined before his appeal. 29 The question of law which the applicant wished to have determined related to the constitutional validity of the exercise of judicial power by Defence Force Magistrates. 30 Justice Spender, with whom the other members of the Court agreed, considered whether that issue, that is, the constitutional status of DFMs, might provide an arguable ground of appeal. After reviewing the cases concluding with Re Tyler and Anor ex parte Foley [1994] HCA 25; (1994) 181 CLR 18, his Honour concluded that it did not. Finally, his Honour said at [36]: "This is a case where it has been demonstrated that Mr Ferdinands has abstained from prosecuting his appeal with due diligence, for reasons which he submits are sound. However, impecuniosity is not a basis upon which a person is relieved of the obligation to prosecute his appeal with due diligence. Realistically, there are no prospects of success in the foreshadowed appeal, nor any arguable basis for the "questions of law" which Mr Ferdinands had indicated he wanted to canvass before the Full Court. It follows then that there is no injustice in dismissing the appeal for want of prosecution." 31 The Full Court considered the applicant's prospects of success on any appeal. After detailed reference to the reasons of this Tribunal dismissing the appeal from Heerey J's refusal to grant an extension of time within which to appeal, the Court concluded that the applicant had no prospects of success: see Ferdinands v Chief of Army [2003] FCAFC 10. 32 On 6 March 2003 the applicant filed an application for special leave to appeal this decision to the High Court. He failed to prosecute his application and on 1 October 2003 the High Court issued a certificate of deemed abandonment. 33 Subsequently a delegate of the Chief of Army decided on 30 November 2004 to terminate the applicant's service in the Australian Army. The applicant now contends that a reason for the conspiracy to charge him in 1999 was to facilitate his discharge from the Army. However, the five years which elapsed in giving effect to any plan might militate against such an inference, if there were thought to be any basis for the applicant's contention. 34 On 17 March 2006 the applicant filed an application in the High Court seeking an extension of time within which to apply to show cause why the constitutional writs of mandamus and certiorari should not issue in relation to that decision. Those proceedings were remitted on 4 May 2007 to the South Australian Registry of the Federal Court. The respondent sought to have the application struck out as disclosing no reasonable cause of action. 35 The application by the respondent and the applicant's application for an extension of time came on before Lander J on 3 December 2008. His Honour concluded that the writs were sought because the applicant wanted orders against the Department of Defence that it answer "all correspondence sent by [Mr Ferdinands] with regards to full and complete discovery and disclosure in these legal issues of appeal" and that he be permitted to proceed "unhindered and unimpeded" to complete his appeal in respect of the conviction by the DFM in 1999: see Ferdinands v Chief of Army [2008] FCA 1865 at [6]. 36 The applicant admitted to his Honour that he wished to use the writ proceedings in the High Court to overturn the convictions in the South Australian Magistrates' Court and by the DFM. It was found, thus, to be an abuse of process. His Honour concluded that no proper explanation had been given for the delay and there were no prospects of the applicant succeeding. For these reasons, the application to extend time was refused. 37 An application for leave to appeal that decision was dismissed by Mansfield J on 20 January 2009: see Ferdinands v Chief of Army [2009] FCA 22.

ORDERS PERFECTED 38 Each of the orders of Heerey J of 15 August 2001, the Tribunal hearing the appeal from that order of 16 August 2002, and the order of the Full Court of the Federal Court of 11 February 2003 dismissing the appeal from the Tribunal have been entered and perfected.

THE PRESENT APPLICATIONS 39 With that procedural background, the applications before the Tribunal may be considered. 40 The substance of the oral applications have been set out above at paragraph 2. 41 The applicant contends that he should have an extension of time within which to appeal the order of the DFM made on 4 November 1999 because: he has tried unsuccessfully for 13 years through the courts to obtain all materials withheld from his DFM trial which would prove his innocence; that he has sought unsuccessfully during that period for the Chief of Army "to be accountable and show responsibility by presenting that an act of fraud and racism has been acted out" in the courts by making false allegations; that he has been "vigorous, diligent, industrious and meticulous" in arguing the merits of the appeal to gain access to evidence but has encountered an alliance between all branches of government to bring the courts into disrepute by "producing judgments that are fictitious as to the true facts of the case"; these matters are so serious that a serious miscarriage of justice has taken place. 42 Were an extension of time to be granted the grounds of the proposed appeal are: that the conviction cannot be supported having regard to the evidence; there was a material irregularity before the DFM and a substantial miscarriage of justice occurred; the conviction is unsatisfactory in light of all the evidence; "that the issues of compensation for loss of wages, loss of opportunity, issues of statement of claim for fraud, negligence and damages are beyond the jurisdiction of the Defence Force Discipline Appeal Tribunal and the Tribunal is asked to refer the matter directly to the Full Court of the Federal Court to hear the full merits of the appeal"; a question of law arises because the Chief of Army controls the materials, evidence and witnesses so that the question is: "Can the Chief of Army appoint an Army prosecutor to prosecute a soldier who has been accused and charged with a service offence if that soldier has produced a Notice of Alibi that conclusively has materials and witnesses which by the weight of the evidence indicates that the soldier has committed no offences and the charges against him are false?" 43 Those applications are supported by an affidavit by the applicant asserting that he has been the victim of racial vilification, and that such vilification has led to vital evidence being withheld which would exonerate him. The applicant's submissions develop his accusations of fraud and corruption against named persons involved in his prosecution. He advances arguments which have been ventilated, but in less florid language, in earlier proceedings. The central platform in his argument is in paragraph 90 of his written submissions which is in these terms: "I provide the following words to the Defence Force Discipline Appeal Tribunal for final judgment that states, where the Crown is a party to litigation and the Crown is in possession of new evidence or fresh evidence and does not release that evidence for inspection and consideration by any opposing party or to the Court, then the Crown cannot seek nor has any protection whatsoever from the Court as to the time delay it has caused, and if it seeks to continue to conceal on mask such materials then the judicial officers of the Court have the right to believe the Crown has a guilty mind and is hiding the truth, thus, the Courts will infer that the plaintiff or other party (appellant) is in fact correct and telling the truth to the Court and be entitled to judgment and orders sought with costs."

(i) Original Jurisdiction 44 The Tribunal's jurisdiction is contained in the DFDA Act, which establishes the Tribunal and provides in Part III that a convicted person, who is defined in s 4 to be a person who has been convicted by a court martial or a Defence Force Magistrate, may appeal to the Tribunal against their conviction on a question of law and/or, with leave, on a question of fact. 45 The powers of the Tribunal in relation to appeals are set out in s 23. Section 23(2) provides, relevantly, for the Tribunal to receive new evidence on what can conveniently be described as "the usual grounds" reflecting the criteria in Langdale v Danby [1982] 3 All ER 129; [1982] 1 WLR 1123 at 1133. The provision concludes that the Tribunal: "… shall receive and consider that evidence and, if it appears to the Tribunal that the conviction … cannot be supported having regard to that evidence, it shall allow the appeal and quash the conviction …". It may well be that the applicant had this provision in mind when referring to the original jurisdiction although he made no reference to it. 46 Where the Tribunal quashes a conviction in respect to a service offence the Tribunal may "if it considers that in the interests of justice the person should be tried again", order a new trial of the person for the offence: see s 24. 47 By s 26(1) the Tribunal has the power to substitute a conviction for an available alternative offence if it quashes a conviction after an appeal. 48 The Tribunal is given incidental powers, for example, by s 31(1)(b) to summon a person who would have been a compellable witness at the trial to attend the Tribunal and to give evidence and produce documents, books or writings in the person's custody or control; by s 31(1)(c), to receive the evidence of any witness who is a competent but not compellable witness; and, by s 31(1)(d): "where a question arising on an appeal involves prolonged examination of documents or accounts, or a scientific or local investigation, being an examination or investigation which cannot, in the opinion of the Tribunal, conveniently be conducted before the Tribunal - order the reference of the question for inquiry and report to a special commissioner appointed by the Tribunal and act upon the report of the commissioner so far as the Tribunal thinks fit to adopt it." 49 The Tribunal may, pursuant to s 31(1)(e), appoint a person with special knowledge to act as an assessor to the Tribunal where special knowledge is required for the proper determination of an appeal. 50 By s 36 the Tribunal may obtain reports to assist in the determination of appeals. If the Tribunal thinks it necessary or expedient in the interests of justice to do so, it may direct such steps to be taken: " … as are necessary to obtain from the person who was the judge advocate of the court martial or from the Defence Force magistrate, a report giving his or her opinion upon the case, or upon a point arising in the case, or containing a statement as to any facts the ascertainment of which appears to the Tribunal to be material for the purpose of the determination of the appeal". 51 As is apparent, all of these provisions relate to powers which may be exercised to better facilitate the hearing and determination of an appeal brought before the Tribunal, not as an exercise in original jurisdiction. 52 The powers of the Tribunal which the applicant seeks to invoke in what he has described as its "original jurisdiction" are aspects of its appellate jurisdiction. The applicant has not identified any fact, matter or circumstance which would advance his application for an extension of time were any of these processes to be put in train, nor that could be reasonably expected to impact upon the merits of any appeal were an extension of time to be granted. 53 Accordingly, the applicant's oral applications must be refused.

(ii) Referral of question of law to Full Court of the Federal Court 54 The applicant has also sought an order from the Tribunal that it refer a question of law to the Federal Court relating to a breach of the Racial Discrimination Act 1975 (Cth). 55 By s 51 of the DFDA Act the Tribunal may of its own motion or at the request of an appellant, Chief of the Defence Force, or a service chief: "… refer a question of law arising in a proceeding before the Tribunal, not being a proceeding before a single member exercising the powers of the Tribunal, to the Federal Court of Australia for decision." The jurisdiction of the Federal Court to hear and determine a question of law referred to it by the Tribunal is exercised by the Full Court of the Federal Court. What is important to note is that the question of law which may be referred is a question "arising in a proceeding before the Tribunal". 56 Proceedings in the Tribunal are appellate proceedings brought by a person convicted by a court martial or DFM in respect of that conviction. Sections 52 and 53 of the DFDA Act refer to the circumstances in which an appeal may be taken from a decision of the Tribunal to the Federal Court of Australia. 57 The question of law that the applicant wishes to have referred to the Full Court of the Federal Court is not a question of law that arises in these proceedings. 58 This application must be refused.

(iii) Application to extend time 59 Although the applicant tended to distance himself from this application in his oral submissions, it is proposed to consider the application based on the applicant's written materials. 60 The respondent contends that the Tribunal must be satisfied that it has jurisdiction to hear the application for an extension of time. Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 concluded that since the appellate jurisdiction of a court is statutory and where the statute provides for the grounds, the procedure and the duty of the body hearing the appeal, a second appeal or application for leave to appeal which has been dismissed on the merits may not be reopened after a final determination. Part III of the DFDA Act concerns appeals to the Tribunal. It provides in s 23 the grounds upon which a conviction may be quashed and other matters pertaining to the appeal, while s 21 relates to time limits for bringing an appeal. Those provisions are not relevantly different from those under consideration in Grierson. 61 In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 the High Court affirmed the principle in Grierson that where orders have been perfected dismissing an appeal against conviction heard on the merits, no second appeal may be brought. In that case there had been a number of procedural irregularities about the orders which allowed a second appeal to be entertained. 62 Not only does Part III of the DFDA Act on its proper construction not permit a second appeal in respect of the same subject matter, any subsequent such attempted appeal or application would be an abuse of the Tribunal's process where nothing new is raised which would give rise to a perception that there has been a miscarriage of justice. 63 Before the applicant can prosecute any appeal or leave to appeal in respect of the proceedings before the DFM in 1999 leading to his conviction he must obtain an order of this Tribunal extending the time within which to appeal. He has already brought an application to extend time which has been refused twice in this Tribunal and that refusal has been the subject of an appeal to the Full Court of the Federal Court and was the subject of a special leave application. Inherent in the applications made for extensions of time was the requirement for the Tribunal to consider whether there was any merit in the substance of the applicant's claims. On each occasion the Tribunal found that the applicant had disclosed no merit. 64 The appeals to this Tribunal and to the Full Federal Court were determined on their merits and the orders dismissing those appeals have been perfected. It is important to keep in mind that the appeal which the applicant wishes to have heard cannot be commenced without an extension of time and that has been refused, successively. Accordingly, this Tribunal has no jurisdiction to entertain a further application for an extension of time. 65 Even if there were any jurisdictional capacity to do so, the application falls within the legal description of "frivolous and vexatious"; nothing new has emerged and certainly nothing to suggest that a miscarriage of justice has occurred. Furthermore, no merit can be discerned in any appeal in respect to the DFM proceedings. 66 A further observation may be made. The applicant has made serious allegations of misconduct and corruption against the prosecutor and defence counsel and the Chief of Army in relation to the prosecution of charges against him. In his written submissions those allegations, either of corruption or foolishness in failing to detect and/or deal with corruption, have been made against this Tribunal and members of the Federal Court. They have tended to be disregarded in the course of the many hearings but such abuse ought not be permitted to continue to be received. 67 Apart from the applicant's increasingly strident assertions that he is the victim of racially inspired and corruptly fabricated charges of assault, he has offered no further evidence than that which was advanced by him at his trial, which continued over several days and in respect of which he was legally represented. He has not explained in any effective way, on any occasion on which he has sought an extension of time, his failure to abide by the statutory time limits. The applicant, as much as any other citizen, is bound to adhere to the rules or explain why he should not and to confine his assertions within reasonable bounds. He has had opportunities to obtain an extension of time, including seeking special leave from the High Court. Save for the latter which was dismissed for want of prosecution, those applications have been heard and determined on their merits and refused. 68 The application to extend time for seeking leave to appeal should be dismissed.

ORDERS 69 The applications made orally on 28 February 2013 and, to the extent that those applications are found within the written material, should also be dismissed. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, White & Cowdroy.