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Courts-Martial Appeals Regulations

SR 1957 No. 20 Regulations as amended, taking into account amendments up to SR 1977 No. 122
Registered 25 Mar 2010
Start Date 28 Jul 1977
End Date 13 Apr 1997
Date of repeal 20 Sep 2016
Repealed by Defence Force Discipline Appeals Regulation 2016

COURTS-MARTIAL APPEALS REGULATIONS
(#DATE 28:02:1981)

- Incorporating all amendments by legislation made to 28 February 1981
- Reprinted as at 28 February 1981 *1* The Courts-Martial Appeals Regulations (in force under the Courts-Martial
Appeals Act 1955) as shown in this reprint comprise Statutory Rules 1957 No. 20
as amended by the other Statutory Rules specified in the following table:
----------------------------------------------------------------------------
Date of Application, saving Year and notification Date of or transitional
number in Gazette commencement provisions
---------------------------------------------------------------------------- 1957 No. 20 23 May 1957 23 May 1957
1967 No. 48 20 Apr 1967 20 Apr 1967 -
1969 No. 214 30 Dec 1969 30 Dec 1969 -
1974 No. 187 15 Oct 1974 15 Oct 1974 -
1977 No. 122 28 July 1977 28 July 1977 -
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COURTS-MARTIAL APPEALS REGULATIONS - TABLE OF PROVISIONS

TABLE

TABLE OF PROVISIONS


Regulation

1. Citation

2. Interpretation

3. Period for appeal from a decision of a single member of the
Tribunal

4. Period for lodging petition

5. Person or authority with whom a petition may be lodged

6. Petition to refer to Act

7. Period for consideration of petition

8. Period within which application for leave to appeal may be lodged

9. Person with whom an application for leave to appeal may be lodged

10. Records of court-martial proceedings, &c., to be furnished to
Registrar

11. Legal aid

12. Discontinuance of appeals, &c.

13. Manner of enforcing order for payment of costs

14. Orders for restitution of property, &c.

15. Period for request to refer question of law

16. Appellant in custody

17. Registry

18. Notification of hearing

19. Copy of Regulations to be supplied

20. (Repealed)

21. Assistant Registrar

22. Fees to witnesses

23. Fee for supplying copies


COURTS-MARTIAL APPEALS REGULATIONS - REG 1.
Citation

1. These Regulations may be cited as the Courts-Martial Appeals Regulations.*1*


See notes to first article of this Chapter.

COURTS-MARTIAL APPEALS REGULATIONS - REG 2.
Interpretation

Amended by 1967 No. 48 r. 1; 1977 No. 122 r. 2
2. In these Regulations, unless the contrary intention appears-

"deputy Registrar" means a deputy of the Registrar appointed under
sub-section 19 (2) of the Act;

"legal practitioner" has the same meaning as in section 39 of the Act;

"petition" means a petition under paragraph 20 (2) (a) of the Act;

"the Act" means the Courts-Martial Appeals Act 1955;

"the Chief of Staff " means- (a) in relation to a member of the
Navy-the Chief of Naval Staff;

(b) in relation to a member of the Army-the Chief of the General Staff;
and

(c) in relation to a member of the Air Force-the Chief of the Air Staff;

"the Registrar" does not include a deputy Registrar.


COURTS-MARTIAL APPEALS REGULATIONS - REG 3.
Period for appeal from a decision of a single member of the Tribunal

Amended by 1977 No. 122 r. 2
3. For the purposes of sub-section 17 (2) of the Act, the prescribed period within which a person affected by a decision given by a single member of the Tribunal may appeal to the Tribunal from the decision is a period of 10 days from the day on which he is notified of the decision.


COURTS-MARTIAL APPEALS REGULATIONS - REG 4.
Period for lodging petition

Amended by 1977 No. 122 r. 2
4. For the purposes of paragraph 20 (2) (a) of the Act, the prescribed period within which a petition shall be lodged is-

(a) where the conviction to which the petition relates is a conviction by a court-martial held in Australia-a period of 40 days from the day on which, in the case of a naval court-martial, the conviction was pronounced and, in any other case, the finding of the court-martial was promulgated; and

(b) in any other case-a period of 60 days from that day.


COURTS-MARTIAL APPEALS REGULATIONS - REG 5.
Person or authority with whom a petition may be lodged

Sub-reg. (1) amended by 1977 No. 122 r. 2
5. (1) A petition may be lodged with the authority which, for the purposes of section 20 of the Act, is the prescribed authority in relation to the conviction to which the petition relates or-

(a) where the petitioner is serving in, or is in custody on board, a ship of the Navy-with the commanding officer of the ship;

(b) where the petitioner is in custody on board a ship, other than a ship referred to in paragraph (a), being a ship on board which is a body, contingent or detachment of the Defence Force-with the officer commanding the body, contingent or detachment;

(c) where the petitioner is serving with a unit of the Army or of the Air Force-with the officer commanding the unit;

(d) where the petitioner is confined in detention quarters of the Navy-with the officer in charge of the quarters;

(e) where the petitioner is confined in a prison, detention barrack or corrective establishment of the Army or of the Air Force-with the commandant of the prison, barrack or establishment;

(f) where the petitioner is confined in a civil prison in Australia-with the governor of the prison; or

(g) where the petitioner is a civilian and is outside Australia-with the officer commanding any unit of the Defence Force stationed outside Australia.


Amended by 1977 No. 122 r. 2
(2) Where a petition is lodged with a person referred to in a paragraph of sub-regulation (1), that person shall forward the petition without delay to the authority which, for the purposes of section 20 of the Act, is the prescribed authority in relation to the conviction to which the petition relates.


COURTS-MARTIAL APPEALS REGULATIONS - REG 6.
Petition to refer to Act

6. A petition shall include a statement to the effect that it is lodged for the purposes of the Act.


COURTS-MARTIAL APPEALS REGULATIONS - REG 7.
Period for consideration of petition

Amended by 1977 No. 122 r. 2
7. For the purposes of sub-paragraph 20 (2) (b) (ii) of the Act, the prescribed period after the day on which a petition is lodged is-

(a) where the conviction to which the petition relates is a conviction by a court-martial held in Australia-a period of 40 days; and

(b) in any other case-a period of 60 days.


COURTS-MARTIAL APPEALS REGULATIONS - REG 8.
Period within which application for leave to appeal may be lodged

Amended by 1977 No. 122 r. 2
8. For the purposes of paragraph 21 (1) (b) of the Act, the prescribed period within which application for leave to appeal shall be lodged is a period of 10 days commencing on the day on which the appellant becomes entitled to make the application.


COURTS-MARTIAL APPEALS REGULATIONS - REG 9.
Person with whom an application for leave to appeal may be lodged

Sub-reg. (1) amended by 1977 No. 122 r. 2
9. (1) For the purposes of paragraph 21 (1) (b) of the Act, the person with whom, in lieu of the Registrar or a deputy Registrar, an application for leave to appeal may be lodged is-

(a) where the appellant is serving in, or is in custody on board, a ship of the Navy-the commanding officer of the ship;

(b) where the appellant is in custody on board a ship, other than a ship referred to in paragraph (a), being a ship on board which is a body, contingent or detachment of the Defence Force-the officer commanding the body, contingent or detachment;

(c) where the appellant is serving with a unit of the Army or of the Air Force-the officer commanding the unit;

(d) where the appellant is confined in detention quarters of the Navy-the officer in charge of the quarters;

(e) where the appellant is confined in a prison, detention barrack or corrective establishment of the Army or of the Air Force-the commandant of the prison, barrack or establishment;

(f) where the appellant is confined in a civil prison in Australia-the governor of the prison; or

(g) where the appellant is a civilian and is outside Australia-the officer commanding any unit of the Defence Force stationed outside Australia.


Amended by 1977 No. 122 r. 2
(2) Where an application for leave to appeal is lodged with a person referred to in sub-regulation (1), not being an application presented to that person in pursuance of sub-section 21 (2) of the Act, that person shall forward the application to the Registrar without delay.


COURTS-MARTIAL APPEALS REGULATIONS - REG 10.
Records of court-martial proceedings, &c., to be furnished to Registrar

Sub-reg. (1) amended by 1977 No. 122 r. 2
10. (1) Where application for leave to appeal against a conviction by a court-martial is lodged under the Act, the Chief of Staff shall, if so requested by the Registrar, cause-

(a) a record of the proceedings of the court-martial, including proceedings, if any, with respect to the revision of the finding or sentence of the court-martial;

(b) a record of the proceedings, if any, with respect to the confirmation of the finding and sentence of the court-martial; and

(c) any petition presented by the appellant with respect to the conviction,

to be furnished to the Registrar for the use of the Tribunal for the purposes of the appeal.


Amended by 1977 No. 122 r. 2
(2) Where a record of proceedings, or a petition, furnished to the Registrar in pursuance of sub-regulation (1) is no longer required for the purposes of the appeal in relation to which it was furnished, the Registrar shall return the record or petition to the Chief of Staff to whom the request for its furnishing was made.


COURTS-MARTIAL APPEALS REGULATIONS - REG 11.
Legal aid

Sub-reg. (1) amended by 1977 No. 122 r. 2
11. (1) An appellant may, within a period of 14 days, or such longer period as the Tribunal allows, from the day on which he lodged his application for leave to appeal, apply to the Tribunal for the approval of the Tribunal to the granting of legal aid to the appellant under this regulation.


Amended by 1977 No. 122 r. 2
(2) An application under sub-regulation (1) shall be accompanied by a statutory declaration made by the appellant setting out such information as is necessary to enable the Tribunal to determine whether his means are insufficient to enable him to prosecute his appeal.


(3) If, upon an application being made to the Tribunal under this regulation, the Tribunal is satisfied-

(a) that the appellant has insufficient means to enable him to prosecute his appeal; and

(b) that it appears desirable in the interests of justice that legal aid should be granted to the appellant under this regulation,

the Tribunal may, by order, approve the granting to the appellant of legal aid under this regulation.


(4) If the Tribunal approves the granting to an appellant of legal aid under this regulation, the Attorney-General may arrange for one or more legal practitioners to represent the appellant at the hearing of the appeal or of a matter preliminary or incidental to the appeal.


Amended by 1977 No. 122 r. 2
(5) Where, under sub-regulation (4), the Attorney-General arranges for a legal practitioner to represent an appellant, the legal practitioner shall be paid by the Commonwealth such amount for fees and disbursements as is determined by the Attorney-General.


COURTS-MARTIAL APPEALS REGULATIONS - REG 12.
Discontinuance of appeals, &c.

12. An appellant may, by notice in writing to the Registrar-

(a) withdraw his application for leave to appeal at any time before the hearing of the application is commenced; or

(b) discontinue his appeal at any time before the hearing of the appeal is commenced.


COURTS-MARTIAL APPEALS REGULATIONS - REG 13.
Manner of enforcing order for payment of costs

Amended by 1977 No. 122 r. 2
13. An order made under sub-section 37 (3) of the Act for the payment of the amount of any costs may be enforced-

(a) by the Commonwealth suing for and recovering the amount in a court of competent jurisdiction as if the amount were a debt due to the Commonwealth; or

(b) by deducting the amount from any pay and allowances earned by the appellant as a member of the Defence Force,

or partly in one way and partly in the other way.


COURTS-MARTIAL APPEALS REGULATIONS - REG 14.
Orders for restitution of property, &c.

Amended by 1977 No. 122 r. 2
14. Where, by virtue of sub-section 38 (1) of the Act, the operation of an order made in relation to property is suspended, the authority which made the order shall, at any time during the period of suspension when the property is not in the custody of the Registrar, cause the property to be kept in safe custody.


COURTS-MARTIAL APPEALS REGULATIONS - REG 15.
Period for request to refer question of law

Amended by 1977 No. 122 r. 2
15. For the purposes of section 51 of the Act, the prescribed period within which a request shall be made to the Tribunal to refer to the High Court a question of law involved in a decision given by the Tribunal in respect of an appeal is a period of 21 days from the day on which the decision is given.


COURTS-MARTIAL APPEALS REGULATIONS - REG 16.
Appellant in custody

16. (1) Where an appellant in custody is entitled to be present at the hearing of his appeal, or of a matter preliminary or incidental to the appeal, the Registrar shall transmit to the person who has the custody of the appellant a certificate signed by the Registrar stating-

(a) that the appellant is so entitled; and

(b) particulars of the place where, and of the times at which, the appeal, or the matter preliminary or incidental to the appeal, as the case may be, will be heard.


Amended by 1977 No. 122 r. 2
(2) Where a person who has the custody of an appellant receives a certificate under sub-regulation (1), he shall, and by these Regulations is authorized to, take such steps as are necessary to ensure-

(a) that the appellant is taken to the place specified in the certificate at the times so specified; and

(b) that the appellant will continue to be present at that place during the hearing of the appeal or of the matter preliminary or incidental to the appeal, as the case may be.


(3) Where an appellant in custody is to be taken to a place at which he is entitled to be present for the purposes of the Act, the person who has the custody of the appellant shall ensure that the appellant is under guard-

(a) during the time the appellant is travelling to, and returning from, the place; and

(b) unless the Tribunal otherwise orders, during the time the appellant is present at the place.


COURTS-MARTIAL APPEALS REGULATIONS - REG 17.
Registry

17. (1) There shall be a Registry of the Tribunal, which shall be at such place as the President directs.


(2) The Registrar shall have the custody of such of the records of the Tribunal as are kept in the Registry and of the documents lodged or filed with the Registrar or a deputy Registrar.


(3) The Registrar shall keep-

(a) proper records of proceedings before the Tribunal and of documents of which he has the custody; and

(b) such indexes as will enable documents of which he has the custody to be referred to.


COURTS-MARTIAL APPEALS REGULATIONS - REG 18.
Notification of hearing

Amended by 1977 No. 122 r. 2
18. The Registrar shall, as soon as practicable before the hearing of an appeal, or of a matter preliminary or incidental to an appeal, notify-

(a) the appellant or the legal practitioner, if any, by whom the appellant is to be represented at the hearing; and

(b) the Chief of Staff whose duty it is to undertake the defence of the appeal,

of the time, date and place of the hearing.


COURTS-MARTIAL APPEALS REGULATIONS - REG 19.
Copy of Regulations to be supplied

19. The Registrar shall, as soon as practicable after he receives an application for leave to appeal, supply the appellant with a copy of these Regulations free of charge.


Regulation 20 repealed by 1974 No. 187
* * * * * * * *

COURTS-MARTIAL APPEALS REGULATIONS - REG 21.
Assistant Registrar

21. (1) In this regulation, "the assistant Registrar" means-

(a) where there is one deputy Registrar only-that deputy Registrar; or

(b) where there is more than one deputy Registrar-the deputy Registrar appointed by the President to be the assistant Registrar.


(2) In the event of the absence, through illness or otherwise, of the Registrar or of a vacancy in the office of Registrar, the assistant Registrar has all the powers and functions, and shall perform all the duties, of Registrar during the absence or vacancy.


COURTS-MARTIAL APPEALS REGULATIONS - REG 22.
Fees to witnesses

Substituted by 1969 No. 214; amended by 1977 No. 122 r. 2
22. The allowances payable under sub-section 34 (1) of the Act to a witness (other than a member of the Defence Force rendering service) are such fees and travelling expenses as the Registrar thinks fit to allow in accordance with the scale in the Second Schedule to the Public Works Committee Regulations as in force from time to time under the Public Works Committee Act 1969.


COURTS-MARTIAL APPEALS REGULATIONS - REG 23.
Fee for supplying copies

Substituted by 1977 No. 122 r. 1
23. Where a copy of a document relating to an appeal is supplied by the Registrar to the appellant, the appellant shall pay to the Registrar a fee of-

(a) where the copy consists of one page-$0.65; and (b) where the copy consists of more than one page-$0.65 in respect of the first page and $0.15 in respect of each page after the first page.


------------------------------------------------------------------------------ -- The Schedule repealed by 1967 No. 48 r. 4
* * * * * * * *