KINGSLEY FERDINANDS: STATE PERSECUTION & SUSTAINED MALICE

IN THE HIGH COURT OF AUSTRALIA

ADELAIDE REGISTRY No. A22 of 2012

BETWEEN: TREVOR KINGSLEY FERDINANDS

Plaintiff

and

MINISTER FOR DEFENCE

Defendant

OUTLINE OF SUBMISSIONS

In accordance with High Court Rules 2004:

25.03.2 The plaintiff shall file and serve with the summons referred to in rule 25.03.1 an outline of the submissions which the plaintiff wishes to make on the hearing of the summons:

(a) stating why the matter should not be remitted to another court or, if the plaintiff submits that it should be remitted, identifying the Court to which it should be remitted;

(b) stating what further steps, if any, should be taken in the Court, whether by way of reference of a question of law to a Full Court or otherwise;

(d) setting out the precise terms of the orders which the plaintiff submits should be made on the hearing of the summons.

(a) The application for order to how cause is regulated by High Court rule 25.06 Certiorari and 25.07 Mandamus and the original jurisdiction of the High Court under s.75 (v) of the Constitution is required for intervention.

The matter deals with 6 substantial issues, namely passing off, the right of an accused person to a fair trial in the military justice system, the power of the Ministerial direction, the public interest in conjunction with Freedom of Information Act 1982 (Cth) s. 3, s.11, s.15 and s.15 AC, and question of law.

(b) The matter has cross over to Reg v The District Court; ex parte White (1966) 116 CLR 644 and the reasoning and logic in this judgment must be set aside and it seeks to thwart justice by allowing unsound evidence, knowledge and information put to the court by the Crown as lawful when in fact it is unlawful, fictitious and has no sound basis in fact or law to be put to the court, thus a Full Court is required to consider this judgment and write a new judgment within Ferdinands v Minister for Defence (2012) stating new criteria for logic and reason.

(c) This Honourable Court should ask itself: where are we going? Because with judgments that are inherently old style and old-hat it makes no sense to keep them alive and rely upon them when their words are not based on sound reasoning. This court house did stand up in Mabo’s case and turned around the concept of terra nullis, but this concept of the unsound argument within law with unsound evidence must likewise be struck out.

(d) the precise of the terms of the orders:

1. An order to show cause and the relief claimed is that the Minister for Defence, Hon. Stephen Smith present the Captain Callaghan RAN Board of Inquiry report and findings in its full and entirely for inspection, consideration and assessment based on a failure to comply with a request on 11th May 2012 and this failure is a jurisdictional error of the Minister based upon denial of natural justice.

2. The second relief sought is that this is a test case against s.75 (v) of the Constitution as to the duties and responsibilities of all Ministers of the Crown to lawfully and properly attend to the administration of their Commonwealth portfolios and offices. This means that Ministers of the Crown must be responsible and not force plaintiffs to activate s.75 (v) of the Constitution based on the failure of a Minister to action a correspondence.

3. An order that the question of law be referred to the Full Court for determination of the issues raised in this application. The Question of Law is lawfully and properly answered by this Honourable Court to give guidance to all soldiers in the Australian Army and the Australian Army Reserve, namely:

1. Can the Chief of Army appoint a legal defense counsel to a soldier in the Australian Army who has been accused and charged with service offences if that soldier has refused any Australian Army legal assistance and wishes to appoint his own legal advisors and team to defend charges against him?

4. Finally, pursuant to section 75 (v) of the Constitution the Minister for Defence is an officer of the Commonwealth, and for the Minister of the Crown to ignore a request or decline to perform an overt statutory duty in the face of the Judiciary to amend the face of the public with all enabling is an injustice; thus, a denial of natural justice has occurred. The Minister for Defence had a duty to prevent a denial of natural justice and a responsibility to perform these administrative acts in a quasi-judicial function as Minister for Defence within jurisdiction as a Minister of the Crown and declined to do produce the necessary materials evidence, namely:

(a) That this Honourable Court issues constitutional writs of certiorari and mandamus in respect of the Minister’s decision not to comply with the requests of 11 May 2012 in which he made decision to refuse permission to release the Board of Inquiry report conducted by Captain Callaghan RAN that was a denial of natural justice.

OUTLINE OF SUBMISSIONS

A succinct argument:

There are five (5) extremely serious issues to be considered by this Honourable Court in its original jurisdiction:

1. Passing off

1. The High Court of Australia is suffering from an identity crisis: it does not know whether to be friends with the federal government, or friends with the legal fraternity or friends of truth and justice.

2. This dilemma has caused a paralysis and during the paralysis dubious cases brought by treacherous legal practitioners with an insatiable appetite to be in the good books of the executive using their cunning minds have sought to pass off bad evidence and bad cases as good evidence and good cases and be treated as legitimate cases in the Australian law courts.

3. Passing off is now the number one problem in the Australian law courts and sweeping across the High Court of Australia; and the court simply does not know what to do or how to handle such situations: there seems to be no alternative but allow the wrongly convicted persons across Australia to endure great hardships, humiliations, suffer misery and pains.

4. Passing off means running a sham trial with bad materials and evidence and seeking to pass it off as a good trial and the High Court judges are none the wiser because of the hundreds, if not thousands of cases across Australia they are unable to detect corrupt evidence and bad due process from good evidence.

5. The protection of the High Court of Australia is based on the principle that it must be informed correctly with accurate knowledge and facts at all times and be alerted to the fact that passing off is a problem in Australian law courts.

6. Treacherous lawyers are not loyal to justice: they are loyal only to themselves using cunning minds that can trick the innocent and the naïve.

7. Treacherous legal practitioners are not loyal to their clients, or their country or the courts: they are loyal only to their own selfish needs and desires of money, authority, vices and more power.

8. Human life is human life: it is invaluable, precious and instrumental to the growth of law as it brings to law a myriad of circumstances and facts that need to be accurately recorded and dealt with using the established law, and no person or government can pass laws, policies, practices or procedures that demeans, devalues or denigrates human behaviour or tarnishes the purity of the law.

9. Human rights for an accused person are protection in the United Nations convention.

10. A man must live free with stability and safety and not be tormented and harassed to the grave by the federal government.

11. At all times a man must be courteous to the court and respect the court’s etiquette regardless of the temptations to lash out at his worst and curse the courts for their wrongness, immaturity, lack of wisdom or bad judgment.

12. Articles of the United Nations conventions that guaranteed a right to an accused person for a fair trial must be upheld in the military jurisdiction.

13. What is a fair trial can never be defined, but what is not a fair trial is defined as abuse of court’s processes, bad due process and process corruption, namely the suppression of documents and the withholding of crucial witnesses and other materials and evidence on which the final result of the trial so depends.

14. Thus, this Honourable Court is ask to look at laws and legal practice involving the Minister for Defence under Part II Administration – s. 8 Powers of the Minister in relation to the Defence Force of the Defence Act 1903 and determine for themselves what exactly can the Minister do in terms of assisting the courts in accessing documents and other material held within the Department of Defence, and the Defence Force magistrates military justice system and secure their full release.

15. The Minister must determine for himself has the Minister for Defence actually created an environment of openness, transparency, responsibility and accountability under s.8 of the Defence Act 1903 (Cth), or has the Minister for Defence created a toxic legal environment where the Defence Force magistrate military justice trial system is being used as an employment tool of defence senior executive and management to eradicate and remove (get rid of) soldiers on fictitious, exaggerated, spurious and erroneous grounds merely because they are not liked, or unwanted or different in race, colour, ethnic origin or sex.

16. The appeal’s process constitutes a fair trial.

17. It is not a separate process or the revisiting of the process but the continuation of the process in law that does include the conduct of the judge, the Crown, the jury and the evidence of witnesses.

18. The Australian law courts have major difficulty understanding this very basic concept of the abuse of powers of the legal process and parliament by the cunning minds of corrupt legal practitioners and the concept of the fair trial.

19. If there are any irregularities or illegal practices or errors of law at the trial stage the superior appellate court on appeal can either set aside the judgment and quash penalty or order a fresh trial, thus ensuring that the United Nations charter is not breached.

20. The Minister for Defence sought to pass off the unlawful prosecution and wrongful conviction and conceal legal practitioner misconduct.

21. It is possible that the federal government may create civil unrest and disturbances by its animosity and hostility directed towards certain individuals, groups and organisations unless racism and fraud within the Australian Government Solicitor’s office, Solicitor General’s office, Army Legal Service, Army Legal Corp and Department of Defence are not reigned in and offending legal practitioners expelled from law or banned for long periods up to 10 or 20 years for serious professional misconduct.

22. If the federal government seeks a showdown, quarrel, fight or confrontation resulting in violence with individuals, groups or organisations then it only has itself to blame for its sustained and relentless persecution, harassment, intimidation, denigration and humiliations of those individuals, groups and organisations.

23. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR Mason J was inclined to believe that the ground of failure to take account of relevant considerations, can only, but not inevitably, be made out when a decision maker is bound to take it into account, thus a Board of Inquiry investigation properly investigating legal practitioner misconduct must make damning findings against all legal practitioners when evidence, materials and witnesses are supressed from a criminal trial and if it has not made such findings or recommendations then that Board of Inquiry is inept and its findings have no factual basis in law.

2. The Defence Force Discipline Act 1982 that does not state whether in fact an accused is entitled to a right to a fair trial.

1. The Act however does state that the judge advocates and the defence force magistrates will be appointed and that the prosecutor shall be of the crown.

2. The Act does not state that defence counsel must be from the Department of Defence or that accused persons must accept defence counsel appointed to them by Chief of Army.

3. The Minister had a lawful duty to ensure fairness in the system and that defence counsel was some other party not associated with Army Legal Corp or the Department of Defence.

4. Why, is this little point so important because simply an accused person is a lamb to the slaughter who must sit through the false allegations raised against him including being verballed as to alleged conversations that the accused was involved in but in reality never took place, and have his name slandered and libel by persons who have acted for self-preservation ad perhaps greed or animosity against the accused.

5. Defence counsel is paid to put the Notice of Alibi and all materials associated with the Notice of Alibi, thus when lawful and proper defence counsel are not appointed what takes places is a trial that is hollow or biased towards Chief of Army.

6. It is my belief that Commanding Officers at Unit level need great owners to hear and determine cases and allegations and not have court’s time used and abused by actions that can be lawfully and properly dealt with by a Commanding Officer.

7. Military law reform is inefficient in the past that is why I base this new proposal on change in law and legal practice to stop the court’s being used in a scandalous or vexatious manner.

8. The Commanding Officer can act like race day stewards at Australia’s major thoroughbred race meetings and when there is a protest as to the result of a race all parties including owners, trainers and jockeys are brought into the stewards room to discuss the grounds of protest, likewise all persons involved in any service offences including accused, his sergeant, his officer commanding can be presented before the Commanding Officer of the Unit and the Commanding Officer an state their cases then and there and the Commanding officer will decide the issue: his judgment is final.

9. Clearly, the Commanding Officer must hear the matter first with all evidence and must rule on the matter and not be blind-sided by inadequate military processes.

10. If the matter is a serious crime then the matter is referred to the courts.

11. In Australian Gas Light Co v Valuer-General (940) 40 SR (NSW), Jordan CJ said (at 137-138):

i. “In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities:

1. The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law: ...

2. The question whether a particular set of facts comes within the description of such a word or phrase is one of fact: ...

3. A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences ...

4. Such a finding can be disturbed only if there is no evidence to support its inferences, or if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences: ... Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law: ... If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law.

12. The relevance of evidence at the time of the trial being in existence but not put before the Defence Force magistrate that fact constitutes fresh evidence, and if the Defence Force magistrate had viewed the admissible evidence then a different verdict would have been formed and reached, namely a verdict of not guilty.

13. Thus, a decent High Court judge can say that it is both relevant and admissible that fresh evidence exists and this evidence is not post-trial evidence gathered at some later date but pre-trial evidence available at the time and lawfully should have been put to the Defence Force magistrate.

3. The powers of the Ministerial direction as defined by law

1. Defence Force Act 1903 s.8

Part II—Administration

Powers of Minister in relation to Defence Force. The Minister shall have the general control and administration of the Defence Force, and the powers vested in the Chief of the Defence Force, the Chief of Navy, the Chief of Army and the Chief of Air Force by virtue of section 9, and the powers vested jointly in the Secretary and the Chief of the Defence Force by virtue of section 9A, shall be exercised subject to and in accordance with any directions of the Minister. Defence Force Discipline Act 1982.

4. The Public Interest & Freedom of Information Act 1982 (Cth)

1. The public interest is derived from English history and English law.

2. To deny English history and English law in the Commonwealth of Australia would be madness.

3. This is clearly a matter in the public interest.

4. The public interest is a Christian principle always defined solely within two express terms, namely the Catholic sentiments of Lord Jesus Christ, ‘what you do to the least of my brothers you do unto me (Lord Jesus Christ himself)’ and the ordinary man in the street would strongly identify with these words and say, why should someone who has created an elaborate plot, or a scheme or scam and seek to get away with it using established principles of law and legal professional privilege when the documents of such fraud and scheme should be in the public arena for all to view, and secondly, the taxpayer sentiments that the average person is paying far too much tax for nonsense programs, policies, schemes and projects of the federal government and the people have the right to know how much is being spent by the government and its Ministers and Secretary’s and on what matters and issues.

5. Clearly, there are many people who have all sorts of weird and wonderful concepts and ideas of the public interest but the two express terms mentioned constitute the genuine public interest and I am sure 99.9999% per cent of the people when told of individual cases in criteria one or two would say, “Yes, I want to know”.

3. Freedom of Information Act

Section 3 Objects of the Act;

(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:

(a) requiring agencies to publish the information; and

(b) providing for a right of access to documents.

(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:

(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;

(b) increasing scrutiny, discussion, comment and review of the Government’s activities.

(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.

(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

Part III—Access to documents

Section 11 Right of access

(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

(2) Subject to this Act, a person’s right of access is not affected by:

(a) any reasons the person gives for seeking access; or

(b) the agency’s or Minister’s belief as to what are his or her reasons for seeking access.

Deemed refusal

(3) Subject to this section:

(a) the principal officer of the agency or the Minister is taken to have made a decision personally refusing to give access to the document on the last day of the initial decision period; and

(b) notice of the decision is taken to have been given under section 26 to the applicant on the same day.

5. Question of law

“Can the Chief of Army appoint a legal defense counsel to a soldier in the Australian Army who has been accused and charged with service offences if that soldier has refused any Australian Army legal assistance and wishes to appoint his own legal advisors and team to defend charges against him?”

It is well recognized that in appeals the question of law is limited to the subject matter of the appeals and no grounds of appeal can form the basis of a question of law, however, in the original jurisdiction of the High Court a question of law takes on a significantly different set of criteria and that issues, not grounds of appeal because there is no appeal, but issues can be brought to the foreground rather than be limited to the back ground of a case.
Thus, one must be careful to identify the very existence of a question of law in the original jurisdiction of the High Court embracing its enabling judicial powers to do things and physically move things rather than dwell in the past of an appeal or the morbid grounds of an appeal.
The question itself determines the power and the authority to act and the answer determines the lawfulness or the unlawfulness of the act. If something is null and void, then ipsofacto it is voidable in law and must be cancelled because it has no meaning in the world of fact and reality but is a hypothetical and an illusion: inter alia a play on words, so to speak.
The principle of fair trial cannot exist if there is a closed shop or star-chamber within the Army legal process.
What is a closed work shop?
What is star-chamber?
What are a nod and a wink to a blind man?
Is it not a fact that if one has total control, management and direction of a court process and proceeding then one wins that case regardless of all other circumstances and whether or not the evidence is damning against the accused or presented in open court for all to see.
A conviction by fraud is no conviction at all and will be over turned by a decent High Court judge.
These are the terms and phrases well known and commonly used across the Australian law courts by a select group of legal practitioners to secure objectives of the Crown against innocent persons who are Australian citizens.
The problem with Chief of Army controlling the whole legal process causes some anxiety in the pure legal mind because one really does not know what evidence is being withheld and what witnesses have not appeared as Army is a big operation and organization and Chief of Army does not make time for Defence Force magistrates trials nor allocates proper resources for such trials.
Thus, in a simple trial of Chief of Army v TK Ferdinands (1999) at Keswick barracks, South Australia at least eleven key (11) witnesses relied upon for the accused (defense) were not called, and more than four crucial (4) sets of major documents relied upon for the accused (defense) were not tendered.
Furthermore, approximately four and a half (4-1/2) days evidence from the criminal trial was missing: this is unfair and prejudicial.
This was supposedly a criminal trial alleging beyond reasonable doubt: beyond a shadow of a doubt the accused is guilty.
Is this legal practice acceptable to a modern High Court of Australia?
Clearly where materials and evidence those are admissible at trial and have been withheld from trial there has to be some reasons for this sort of conduct.
The conduct can be placed in six categories, namely racism, fraud, dishonesty, corruption, incompetence or negligence.
This can only mean to distort the view of innocence of the accused person and channel the magistrate’s mind to guilt.
This is unacceptable conduct for any modern court house.
This is nothing more than gross professional misconduct by the treacherous lawyer and it affects all including the courts and the judges.
If Chief of Army has engaged in indirect discrimination, bullying, threats, harassment and unlawful termination by discharge of a soldier then he must be held accountable by a responsible Minister.
But if the Minister for Defence is not a responsible person and more that he is in fact a scatter-brain then that power to ensure there is no denial of natural justice or a serious miscarriage of justice taking place falls upon the shoulders of the decent men of the High Court of Australia.
But to do what?
The superior appellate court judges simply have to repair the face of the public record: no more and no less; and fight racism, fraud, dishonesty, corruption, incompetence or negligence.
A sham trial is nothing more than a Shakespearean tragedy.
The error of laws and legal practice demonstrated is that Chief of Army has stacked the court room against the accused soldier and regardless of what that soldier says he will be found guilty and be subjected to disciplinary measures including fines, penalties and in harsh cases termination from Defence.
The issue now turns to the logic and reason of those appointed to superior appellate courts in particular the High Court and their willingness and capacity to understand one that there is a law and Defence Force discipline processes but who said Chief of Army and the Minister for Defence should control every aspect of that legal process.
Who is to check for an abuse of the court’s processes namely the issuing of false summonses and convening court rooms in fraud?
A superior mind must not stand too close to the fire otherwise he shall be blinded by the light and burnt by the heat, thus when a superior appellate court judge stands back from all the nonsense of Defence Fence magistrate trials and Army courts martial he can say to himself: why should there be a trial at all other than for theatrical purposes as if Chief of Army has all the charges, and all the evidence and all the witnesses and all the judges and all the prosecutors why should any court room be convened for any trial.
Surely, Chief of Army would not charge a soldier and then go through a lengthy process of fair trial only to have that soldier found not guilty.
That would be mismanagement, maladministration, fraud, and corruption.
Thus, a decent High Court judge can ask the Minister for Defence, why does Chief of Army bother with the trials?
Can he not just bring the soldier into a room for 5 minutes sign some forms and then discharge him as he has already made up his mind on the soldiers suitability and character to serve in the Army.
Sure if four and a half days evidence and witness cross-examination are missing from a criminal trial no sane man can return a guilty finding.
The reason being is the burden of proof in all criminal trials is beyond reasonable doubt.
What does beyond reasonable doubt actually mean?
It means without a showdown of a doubt: it means lock, stock and barrel; it means one hundred per cent guilty without the slightest hesitation or inclination to illusion or fabrication.
Every judgment must reflect accurately the face of the public record and not be guess work or an assumption; it must narrate the series of events and then identify the facts and then identify the elements of the offence and then pronounce guilt or innocence.
It cannot be a sham or a mixture of fiction and nonsense based on hysterical ravings or ranting’s of a witness.
It is unacceptable for an accused person to state merely he was not involved in any charge - he must have proofs and all my proofs were withheld by Chief of Army who controlled all documents and witnesses: not inadvertently but knowingly and deliberately, to cause me harm and detriment and shame me with a false conviction.
The Minister knows this.
How do we know that the Minister knows all of this because recently Major General Cantwell, former Deputy Chief of Army appeared on ABC’s 7.30 Report and was interviewed and he said some surprising things.
The main thing he said was that the Minister micro-manages everything and Canberra micro-manages everything.
Thus, when the Minister ignored my letters and pleas to restore my name and duties it was not that he did not know rather he hoped I would grow tired or die and forget all these matters and they would simply go away.
The importance of the judgment to be written by this Honourable Court is the role of the Minister and importantly the significance of not responding to original letters and not complying with release of information.
Was it revenge? Or was it deception?
Was it obstruction and hindrance of a legal process or was it thwarting justice itself in a contemptuous act towards Federal Court judges?
The Federal Court of Australia is entitled to judicial review but there must be discover of documents.
Documents that exist and are not privileged must be sent forward in their entirety for reasonable and honest men of the judiciary to form opinions based on fact and the law.
Without discovery there is no case but a dark cloud of ambiguity and fraud.
The Minister for Defence may be aiding and abetting a concealment of a fraud: a fraud has a broad meaning but certainly a malicious and vexatious prosecution that should have been unearthed within the first twelve or twenty four months of its transpiring is more than a harmless malicious or vexatious prosecution but entrenched dishonesty and corruption within the Department of Defence and the office of the Minister for Defence.
In Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) (1972) 2 QB 102, Lord Denning M.R. stated the view of the Court of Appeal when he said, at p.129:

“The law relating to discovery was developed by the Chancery Courts in the first half of the 19th century. At that time nearly all legal advisers were in independent practice on their own account. Nowadays it is very different. Many barristers and solicitors are employed as legal advisers, whole time, by a single employer. Sometimes the employer is a great commercial concern. At other times it is a government department or a local authority. It may even be the government itself, like the Treasury Solicitor and his staff. In every case these legal advisers do legal work for their employer and for no one else. They are paid, not by fees for each piece of work, but by a fixed annual salary. They are, no doubt, servants or agents of the employer.... They are regarded by the law as in every respect in the same position as those who practise on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and of etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidences. They and their clients have the same privileges."

for his employer in another capacity, with the consequence that their communications in that capacity would not be subject to the privilege. He continued, at p.129:

"Being a servant or agent too, he may be under more pressure from his client. So he must be careful to resist it. He must be as independent in the doing of right as any other legal adviser.... There is a safeguard against abuse.... If there is any doubt as to the propriety or validity of a claim for privilege, the master or the judge should without hesitation inspect the documents himself so as to see if the claim is well-founded, or not."

Was he rational in the face of the knowledge of a High Court application or was he irrational and did not care less?
If he did not care less how can he say he cares for troops overseas in war zones and conflicts and not care for troops at home who have been falsely accused and isolated by Chief of Army?
Or was he duped by Department of Defence and is utterly naïve?

56. The legal practitioners of the government are accountable to the Minister but also the Attorney General of the Commonwealth for their professional conduct in all applications and hearings and no legal practitioner has the right or power or authority to execute a fraud or run a scam in the High Court of Australia regardless of their status or legal standing.

57. In Grant v. Downs [1976] HCA; (1976) 135 CLR 674, at p 685, Stephen, Mason and Murphy JJ., in a much-cited passage, said:

"The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available."

A close study of the Defence Act 1903 and the Defence Force Discipline Act 1982 indicates clearly that the Board of Inquiry process is in fact not covered by the laws of the Acts.
The parliament has conferred powers to the Minister for Defence under Part II – Administration of the Defence Act 1903 of an executive nature but he must act judicially when he engages in decision making.
Further, the Board of Inquiry process seems to be exempt from any legal professional privilege and no documents are exempt whatsoever.
The power of a Board of Inquiry is not known.
Whether the Board of Inquiry has the power to consider a Defence Force magistrate’s judgment and set it aside due to irregularities or illegal practices is unknown.
What are the responsibilities and duties of the head of the Board of Inquiry and does that person or process have the power in law to bring an action in my name to order fresh trial and set aside the DFM judgment and quash the conviction.
It is not known whether the Board of Inquiry has independence over the military justice system and can take greater evidence: that which was not presented at trial.
It is not known whether the Board of Inquiry can declare a sham trial or witness that may have mocked the court’s processes with their evidence.
The very reasons this is gone by the federal government is so that the Board of Inquiry process can be a public process and all documents made available for the public for examination, inspection and perhaps scrutiny.
To scrutinize the Board of Inquiry is the right of every soldier in the Army and every interested party both in law and in direct contact with victims or witnesses of the Board of Inquiry.
It is not a cloak and dagger process and nor is its access a cat and mouse game. The passion of the parliament is freedom of information and full release of all documents.
Section 36 of the Freedom of Information (FOI) Act, so far as immediately relevant, provides as follows:

i. 36(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:

ii. (a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and would be contrary to the public interest.

A question of law cannot stand alone in any legal proceeding or application: the High Court cannot make speculations or assumptions and can never second guess who said what or who did whet, where and when.
In this case, the perceived power of Chief of Army to appoint defense counsel is flawed resulting in a long series of errors of law that quite rightfully should have been detected by Captain Callaghan RAN and identified as potentially catastrophic for the justice system, if and only if, the Minister accessed the report, read the report and then risked not releasing the documents to the public and the courts.
Thus, a decent high Court judge can ask of himself, if the Minister for Defence was fully aware that defense counsel did not call 11 key witnesses and 4 sets of crucial documents at the criminal trial and the Army prosecutor likewise did not call for those witnesses and tender documents then is this a coincidence or chance or has there been some secret planning to secure a conviction against the accused?
An extremely serious error of law was made in Reg v The District Court; ex parte White (1966) 116 CLR 644 and detected by the plaintiff in these proceedings:

Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law."

This case is atrocious logic and appalling reasoning and makes a mockery of every Australian who ever attended primary school as the word unsound obviously seems to infer flawed, i.e. an unsound mind, an unsound witness or an unsound judgment.
This case Reg v The District Court; ex parte White (1966) 116 CLR 644 must be set aside and the rationality of deriving its conclusions is set aside because they are off the highest irregularity an unbalanced view of the world of English.
If something is unsound it is unbalanced, flawed, illogical and unreliable. In law there is a connection between things that are sound and unsound. When things are unsound they are inconsistent and cannot be accepted as law.
The law compromises both the facts and the elements of the offence under the Act so charged.
Thus, reasoning must be logical or the narrative accurately and its conclusions must be based on law.
Thus, this would amount to an error in law.
I ask this Honourable Court to set aside the logic and reasons in Reg v The District Court; ex parte White (1966) 116 CLR 644, and re-establish new criteria in Ferdinands v Minister for Defence (2012).
Where evidence that has been tendered at trial or led by witnesses at trial is later proven to be false and misleading and unsound then the judgment must be set aside and conviction must be quashed.
It is un-Australian to pretend something is real when all around know it to be fake. Can non-disclosure of eye witness testimony from eleven witnesses constitute a serious miscarriage of justice?
Can non-disclosure of four sets of documents withheld from trial by the Army prosecutor constitute a serious miscarriage of justice?
If the Federal Court of Australia were to have that evidence could they be rights set aside the judgment and quash the conviction?
Non-disclosure slows down a fair trial because events and key witnesses are missing from the case and the trial; and their insight and knowledge of events and circumstances that help a judicial officer form an opinion of the evidence to the case.
Any deficiencies whatsoever in the face of the public record constitutes a serious miscarriage of justice and the Crown choose to launch the summons and convene the courts thus it cannot now state in the modern era that it did not have enough time or money to present all the evidence: this is the hallmark of a sham.
A judicial officer has no power to return a finding of guilt when he himself has been given a half-baked story from a half-baked legal practitioner: unless he is conjecturing, guessing or assuming that the Crown case is flawless.
It is paramount to understand reason and logic if one is to be an astute High Court judge; and it may be that admissible evidence once given at trial by any witness may be later retracted at Board of Inquiry or any tribunal hearing or parliamentary select committee, thus there needs to be a greater understanding to initiating enabling powers of the court to set aside judgments that are disturbing upon the face of the public record.
Not to confront reality at the first opportunity or not to do so will simply mean that the court has become a mockery and is run by a bunch of schmucks and jack-asses.
Thus when evidence is compelling and a person has exhausted their rights of appeal that compelling evidence cannot be a part of any new case unless it was known at the time and knowingly and deliberately withheld by the Crown using legal practitioner misconduct and under handed tricks to secure a conviction which on the surface seems to be a conviction by fraud.
Thus, saying someone did something when in fact they did not do something is not what the law is about otherwise the courts would become a mockery and millions of people would be in court everyday charged with offences they had no knowledge off.
The astute judge must shout down the wrongful conviction and where legal practitioners have used their powers and authority as legal practitioners to bring a case that is plainly false and wrong those legal practitioners must be held accountable and punished, and not rewarded with positions of high office as is the present status of fighting corruption in Australia.
Thus, all unskilled, bungling and incompetent legal practitioners are to be removed from law by an astute High Court judge forthwith because their incompetence is a gross embarrassment to the Australian law courts of so called professional legal practitioners.
Any Crown legal practitioner that engages in cheating or denial of due process or denial of natural justice using tools such as racism, fraud, dishonesty and corruption must be struck off from law: to be incomplete is to be more than ineffective but really is to be a cheat and a lair.
Thus, the High Court must determine can the Board of Inquiry take fresh evidence or is it restricted in its conduct to act in an executive manner rather than a judicial manner because it has military jurisdiction within the military court environment? Inter alia where does the power to intervene start and where does it finish for the Board of Inquiry?
In the example above it is plain to form opinions that the Crown has become so technically advanced, electronically innovative with cutting-edge sophistication with its evidence and presentation of that evidence that the Crown can create any scenario, any illusion, any impression, any feeling, any emotion and misapprehension thus upset the face of the public record, make lies a reality and mislead the courts into believing that something is factual and tangible when in fact it is bogus, shambolic and a scam: the ultimate distortion of the truth.
This Honourable Court must be objective and unbiased.
It must write judgments for the next 200 years, not just the next 200 days: but everlasting judgments.
The judgments must be life long and constitute the correct interpretation of laws and legal practice. Thus, with an application such as this which shows the Minister for Defence was not objective rather he biased is not releasing documents for the Federal Court of Australia then the honourable men of this court house must stand up and say Enough is Enough!
This Honourable Court must understand that the administration of justice is based upon the comprehensive and comprehensible understanding of English words and grammar.
A failure by this Honourable Court to understand Her Majesty’s English means the administration of justice will be a catastrophic failure and emphatically fail the citizens of Australia.
The Minister must be told that he does not from this day forward control the Board of Inquiry processes.
Thus, all legal proceedings where accused persons have pleaded not guilty to charges and been sent to trial and the accused have had Department of Defence or Army Legal Corp acting as defense counsel are null and void.
Furthermore, in all legal proceedings where a Board of Inquiry has been created that final report in its completeness is subject to judicial review and must be handed over to the party seeking such copy of such report.
Any element of process corruption or fraud in any application or legal proceeding including bribery, forgery, concealment (suppression) or theft is unenforceable by the High Court of Australia.
A declaration that this Honourable Court does not do any favours whatsoever to any party on the basis of a nod and a wink to the Crown, or to Kings or Queens, or to Prime Ministers or Presidents, or to Priests or Prostitutes and if Chief of Army has perceived that he dominates and controls the military court rooms including all judge advocates, all Defence Force magistrates, all army prosecutors and all defense counsels and extended himself in law, unlawfully, by reaching out for more power, and sought to control soldier’s service or their testimony or careers and incomes, and reached out beyond his lawful authority given to him by the will of the parliament, then he has done so wrongly, illegally and unlawfully and beyond statutory powers of the Act.
A further declaration is made that the burden of proof of beyond reasonable doubt will not be comprised because one party to legal proceedings has more power, authority, supremacy, status and affluence than another party in those proceedings.
Captain Callaghan RAN’s Board of Inquiry was given a specific duty and that was to expose the sham trail and the suppression of materials and evidence.
The plaintiff had an honest and reasonable belief that if an allegation of legal practitioner misconduct was made by me then it would be properly investigated by a responsible person who had an obligation to clear my name.
The plaintiff did not make a false claim with regards for originating a Board of Inquiry.
The plaintiff made a substantial claim based on substantial evidence of materials and evidence I knew that existed and what was kept out of the Defence Force magistrate’s trial process.
If he did not do that, then it has to be asked why he sided with the Army prosecutor, defense counsel and Chief of Army.
The Minister’s decision to refuse to release all materials must be quashed in the interest of justice both to acknowledge a denial of natural justice and serious miscarriage of justice on the face of the public record.
In the judicial review the Federal Court of Australia will be asked to determine whether the Board of Inquiry process is in fact a legal practitioner’s professional misconduct hearing or whether in fact it is a review of the Defence Force magistrate’s judgment and the anomalies, indiscretions and irregularities of the decision and the case.
This question is vital and all must understand that these are two totally different questions involving two different and separate processes.
The Federal Court of Australia will be asked to set aside the Board of Inquiry and 1999 DFM judgment and make recommendations of breach of s.35 Negligence in the performance of duty of the Defence Force Discipline Act 1982 (Cth) against defence counsel.
The Federal Court of Australia will be asked to set aside the Board of Inquiry and 1999 DFM judgment and make recommendations of breach of s.35 Negligence in the performance of duty of the Defence Force Discipline Act 1982 (Cth) against Army prosecutor.
The Federal Court of Australia will be asked to set aside the Board of Inquiry and 1999 DFM judgment and make recommendations of breach of s.35 Negligence in the performance of duty of the Defence Force Discipline Act 1982 (Cth) against Captain Callaghan RAN.
The Federal Court of Australia will be asked to set aside the Board of Inquiry and 1999 DFM judgment and make recommendations of breach of s.35 Negligence in the performance of duty of the Defence Force Discipline Act 1982 (Cth) against Officer in Charge of Military Police and Director of Military Prosecutions.
The Federal Court of Australia will be asked to set aside the Board of Inquiry and 1999 DFM judgment and make recommendations of breach of s.11 Recklessness and negligence in relation to a member of the Defence Force of the Defence Force Discipline Act 1982 (Cth) against Warrant Michael Heseltine and breach of s.35 Negligence in the performance of duty of the Defence Force Discipline Act 1982 (Cth).
The independence and impartiality of the Federal Court of Australia shall be fully tested in the judicial review because if he Federal Court judges can plainly see the fraud and illegality then why did not defense counsel, the Minister for Defence, Captain Callaghan RAN, Officer in Charge Military Police and Director of Military Prosecutions.

Dated 05 October 2012

(signed)...................................................................

TREVOR KINGSLEY FERDINANDS

To: The Defendant, MINISTER FOR DEFENCE

Hon. Stephen Smith MP, Australian Government Solicitor's office, Grenfell Street, ADELAIDE S.A. 5000.

SENATOR.KINGSLEYFERDINANDS

Friday, October 12, 2012