Wethling v Chief of Army

[2007] ADFDAT 1

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Wethling v Chief of Army [2007] ADFDAT 1

DEFENCE – leave to appeal – extension of time for appeal

BRIAN DAVID WETHLING v CHIEF OF ARMY
DFDAT 3 OF 2006

HEEREY J (PRESIDENT)
2 MARCH 2007
MELBOURNE

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 3 OF 2006

BETWEEN:	BRIAN DAVID WETHLING APPLICANT
AND:	CHIEF OF ARMY RESPONDENT

JUDGES:	HEEREY J (PRESIDENT)
DATE OF ORDER:	2 MARCH 2007
WHERE MADE:	MELBOURNE

THE TRIBUNAL ORDERS AND DIRECTS THAT:

1.The applicant have leave to appeal against his conviction on 22 April 2006.

2.The applicant’s proposed notice of appeal dated 12 December 2006 stand as his notice of appeal.

3.Pursuant to the Tribunal’s Practice Direction No 1, par 8, the Registrar of the Tribunal fix an appointment for the settling of the appeal book.

4.The appeal be fixed for hearing at a time and place to be fixed by the Deputy President.

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 3 OF 2006

BETWEEN:	BRIAN DAVID WETHLING APPLICANT
AND:	CHIEF OF ARMY RESPONDENT

JUDGES:	HEEREY J (PRESIDENT)
DATE:	2 MARCH 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 22 April 2006 the applicant was convicted by a Defence Force Magistrate on two counts of using a forged document contrary to ss 144.1 and 145 of the Criminal Code.  The DFM ordered that the applicant be reduced in rank from WO2 to SGT.

2. On 12 December 2006 the applicant by his solicitor lodged an application for leave to appeal and an extension of time to appeal.

3. The application set out three grounds of appeal and a further six grounds in respect of which leave to appeal is sought, presumably because, arguably at least, they do not raise questions of law: see Defence Force Discipline Appeals Act 1955 (Cth) s 20(1).

4. The first three grounds include an assertion that evidence of a lie should not have been admitted as the requirements of Edwards v The Queen (1993) 178 CLR 193 were not satisfied. The latter six ground include specific criticisms of certain evidence relied on by the DFM and also a general assertion that the convictions were against the evidence and the weight of evidence.

5. In an affidavit sworn 1 December 2006 the applicant says that he petitioned the Reviewing Authority but was advised by Minute dated 1 August 2006 that the conviction and punishment were to be upheld.

6. The applicant received legal advice and decided to appeal.  A Reserve Legal Officer was appointed on 25 August 2006.  The review and consideration of the potential appeal was delayed due to that officer’s civilian commitments and obligations to assist the Reserve Legal Panel.

7. The applicant says he has been advised that the grounds in his notice have a reasonable prospect of success.

8. I am not in a position to make any findings as to the prospects of success since neither the transcript nor the reasons for judgement of the DFM have been supplied to me.  However, I rely on the applicant’s evidence that he has received advice to that effect.  I also take into account the fact that the grounds are obviously the result of professional preparation and are carefully drawn.  They raise on their face rational and specific arguments.  Insofar as they raise questions of fact, such questions seem to be inextricably bound up with what are undoubtedly questions of law, eg the application of Edwards.  The respondent does not oppose leave.  Leave to appeal will be granted.

9. As to the extension of time, there has been further delay as a result of the respondent seeking time to consider his position.  Ultimately the respondent did not seek to oppose the application.  Time will be extended and the notice dated 12 December 2006 will be treated as the applicant’s notice of appeal.

10. I will make directions for the further progress of this matter.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey (President).

Associate:

Dated:       

Solicitor for the Applicant	Anthony S Biondo
Solicitor for the Respondent:	Director of Military Prosecutions
Date of Judgment:	2 March 2007