18 May 2009

Australian military appeals tribunal rules in favour of extending deadline to file appeal

The Defence Force Discipline Appeals Tribunal, or DFDAT, ruled today in Carmichael v. Chief of Navy that in the interests of justice it could accept the filing of a very late appeal. Royal Australian Navy Lieutenant Scott Carmichael was convicted on 5 July 2007 of two counts of assault on a subordinate during an incident occurring in 2006. But did not file his appeal for more than a year with DFDAT.

Carmichael's conviction was had under the old military justice system of courts-martial and trial before a Defence Force Magistrate. Since October 2007 the Australian Military Court has been in use and troops are no longer tried by courts-martial or before a Defence Force Magistrate. Carmichael, under the previous military justice system, had 30 days immediately following his conviction to lodge an appeal. However, he did not lodge his appeal until 5 March 2009, approximately one year and seven months after the deadline to do so.

In permitting Carmichael to file a late appeal the DFDAT took into account, among other things, that he had been instructed to wait for an automatic review of his trial. But he wasn't advised of the outcome of that review for 450 days. Ultimately DFDAT, after extending Carmichael's time in which to lodge, dismissed the appeal. DFDAT's ruling can be found here.

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