Part 1 Preliminary
1 Name of Rules
These Rules are the Summary Authority Rules.
2 Commencement
These Rules commence on 5 October 2007.
3 Transitional
The Defence Force Discipline Rules 1985 continue to apply to proceedings commenced before a service tribunal, before the commencement of these Rules.
4 Interpretation
(1) In these Rules, unless the contrary intention appears:
Act means the Defence Force Discipline Act 1982.
appropriate authority has the same meaning as in subsection 3 (1) of the Act.
authorized member of the Defence Force has the same meaning as in section 87 of the Act.
examining officer in relation to a charge, means the officer directed under subsection 130A (1) of the Act to hear evidence in relation to that charge.
recorder means a person who records the spoken word, whether by longhand, shorthand, mechanical or other means and includes a person who operates or transcribes mechanical or other recordings of the spoken word.
serious service offence has the same meaning as in Part VI of the Act.
(2) A reference in these Rules to referring a charge to a higher authority is a reference to referring a charge to a summary authority or to the Director of Military Prosecutions under section 105A, paragraph 109 (b), 110 (1) (c) or (d) or 111 (2) (c) or section 131A of the Act.
5 Matters arising out of proceedings not covered by the Act, these Rules or the regulations
If, in the course of or in relation to proceedings before a summary authority, a matter arises which is not adequately covered by the Act, these Rules or any regulations made under subsection 146 (2) of the Act:
(a) the matter must be dealt with as if it had arisen in a trial by jury in a civil court in the Jervis Bay Territory in its criminal jurisdiction; or
(b) if it is not possible to deal with the matter under paragraph (a), the matter must be dealt with as the interests of justice require.
6 Summons to accused person
A summons under subsection 87 (5) of the Act must specify:
(a) the name of the accused person; and
(b) the purpose for which the person must appear before the summary authority; and
(c) the time and place where the person must appear.
7 Service of summons
(1) A summons that must be served on a person under subsection 87 (5) or 138 (2) of the Act, must be served:
(a) by giving the summons to that person; or
(b) by posting the summons by prepaid post to that person at:
(i) the place where the person was last known to live; or
(ii) the place where the person carries on business; or
(iii) if the person is carrying on business at 2 or more places — 1 of those places; or
(c) by leaving the summons at the place where the person was last known to live, with another person who appears to live at that place and appears to be at least 16 years old; or
(d) by leaving the summons at the place where the person was last known to carry on business or, if the person is carrying on business at 2 or more places, at 1 of those places, with a person who appears to be in the service of the person and appears to be at least 16 years old.
(2) At the time of the service of a summons under subsection 138 (2) of the Act on a person who is not a defence member, the person serving the summons must give to the person named in the summons sufficient money to enable that person to travel between the person’s place of residence or employment (whichever is appropriate) and the place of sitting of the summary authority or the examining officer.
Part 2 Charge sheets and charges
8 Charge sheets
(1) A charge against an accused person must be entered on a charge sheet.
(2) A charge sheet may contain more than 1 charge.
(3) Only 1 person may be charged in the 1 charge sheet.
(4) Nothing in subrule (3) prevents a summary authority, at the hearing of a proceeding, from directing that 2 or more accused persons be dealt with or tried jointly in those proceedings in respect of:
(a) an offence alleged to have been committed by them jointly; or
(b) offences alleged to have been committed by them separately if the acts or omissions on which the charges are founded are so connected that it is in the interests of justice that they be dealt with or tried together.
9 Charges
(1) A charge may state 1 offence only.
(2) A charge must consist of 2 parts, namely:
(a) a statement of the offence which the accused person is alleged to have committed; and
(b) particulars of the act or omission constituting the offence.
(3) A statement of an offence must contain:
(a) a sufficient statement of the offence; and
(b) in the case of an offence other than an offence against the common law — a reference to the provision of the law creating the offence.
(4) Without limiting the form of a sufficient statement of the offence, a statement of the offence is sufficient if it is set out in the appropriate form in Schedule 1.
(5) Particulars of an offence must contain a sufficient statement of the circumstances of the offence to enable the accused person to know what it is intended to prove against that person as constituting the offence.
10 How charges to be interpreted
The statement of an offence and particulars of that offence, in a charge, must be read and interpreted together.
11 Amendment of charge sheet by summary authority
If it appears to a summary authority at any time during a hearing of proceedings that there is, in the charge sheet:
(a) a mistake in the name or description of the accused person; or
(b) a mistake which is attributable to clerical error or omission;
the summary authority may amend the charge sheet to correct the mistake.
Part 3 Witnesses
12 Securing appearance of witness for accused person
(1) The relevant authority must take the necessary steps to secure the appearance at the hearing of a proceeding before a summary authority of persons reasonably required by the accused person to appear to give evidence, and (if so required) to produce documents, on the accused person’s behalf.
(2) In this rule, relevant authority means a commanding officer.
13 Accused person to be given copies of statements by witnesses
If an authorized member of the Defence Force or a commanding officer causes a person to be given a copy of a charge under subsection 87 (1) or 95 (3) of the Act or to be served with a summons under subsection 87 (3) of the Act, that member or officer must cause the person to be given, before the person appears before a summary authority for a purpose relating to the charge, a copy of each statement in writing obtained by the prosecution from material witnesses to the alleged offence.
14 Exclusion of witness from the hearing room
(1) During proceedings before a summary authority, a witness must not, except by leave of the summary authority, be in the hearing room while not under examination.
(2) The summary authority may direct a witness to withdraw from the hearing room until the summary authority makes a decision on an objection that relates to:
(a) the allowing of a question; or
(b) the evidence given, or about to be given, by the witness.
(3) In the application of this rule to proceedings before a summary authority that are held otherwise than in a room, a reference to a person being in the hearing room or withdrawing from the hearing room must be read as a reference to the person being in, or withdrawing from, the immediate vicinity of the place of hearing.
(4) Nothing in this rule requires the accused person, a person representing the accused person in the proceedings, or the prosecutor, to be absent, or withdraw, from the proceedings.
15 Examination of witness
(1) A witness appearing before a summary authority:
(a) may be:
(i) examined by the person who called the witness; and
(ii) cross‑examined by the opposite party to the proceedings or by a co‑accused; and
(b) on conclusion of any cross‑examination, may be re‑examined, on matters arising out of the cross‑examination, by the person who called the witness.
(2) The summary authority may allow the cross‑examination or re‑examination of a witness to be postponed if, in the opinion of the summary authority, it is in the interests of justice to do so.
(3) A summary authority may put questions to a witness.
(4) When a question put under subrule (3) is answered, the accused person and the prosecutor may put to the witness any questions arising from the answer which the witness has given as the summary authority allows.
16 Recalling of witness and calling of further witnesses
(1) The prosecutor or the accused person may recall a witness, by leave of the summary authority, at any time before the summary authority makes a finding on the charge.
(2) After the witnesses for the defence have given their evidence, the prosecutor may, by leave of the summary authority, call a witness to give evidence on any matter raised by the accused person in his or her defence in respect of which evidence could not properly have been given, or which could not reasonably have been foreseen, by the prosecution before the accused person presented his or her defence.
(3) The summary authority may, at any time before making a finding on the charge, call a witness or recall a witness if, in the opinion of the summary authority, it is in the interests of justice to do so.
(4) When a witness is called or recalled in accordance with this rule, the accused person and the prosecutor may put any questions to the witness as the summary authority allows.
17 Witness to reply immediately
(1) Subject to subrule (2), a witness appearing before a summary authority must reply immediately to each question put to the witness.
(2) If a question is objected to or a witness claims privilege, the witness must not answer the question unless the objection or claim is overruled by the summary authority.
18 Expenses for witnesses
(1) A person (other than a defence member) summoned to appear as a witness before a summary authority must be paid the fees, and allowances for expenses, in respect of the witness’s attendance as the appropriate authority thinks fit to allow in accordance with the scale in Schedule 2 to the Public Works Committee Regulations 1969 as in force from time to time under the Public Works Committee Act 1969.
(2) At the request of the appropriate authority the functions in subrule (1) are to be carried out by a commanding officer.
Part 4 Summary hearings
19 General responsibilities of summary authority
A summary authority must administer justice according to law without fear or favour, affection or ill‑will and, in particular:
(a) must ensure that any hearing of a charge before the authority is conducted in accordance with the Act and these Rules and in a manner befitting a court of justice; and
(b) must ensure that, at any hearing of a charge before the authority, the accused person does not suffer any disadvantage as a consequence of the person’s:
(i) position; or
(ii) ignorance; or
(iii) inability to adequately examine or cross‑examine witnesses; or
(iv) inability to make the person’s own evidence clear and intelligible; and
(c) at the trial of a charge by the authority — must try the accused person according to the evidence; and
(d) must ensure that an adequate record of the proceedings before the authority is made.
20 Hearing (other than a trial) by summary authority
(1) This rule applies to the hearing of a proceeding (other than a trial) by a summary authority.
(2) The accused person is entitled to be represented at the hearing.
(3) The prosecutor must commence the proceedings by reading the charge to the accused person.
(4) If, at any time after the charge is read, the summary authority requires further information before the authority decides:
(a) if the charge is within the authority’s jurisdiction to try — whether the authority should try the charge; or
(b) if the charge is not within the authority’s jurisdiction to try and the authority is of the opinion that there is insufficient evidence to support the charge — to direct that the charge not be further proceeded with; or
(c) in any case — whether the authority should refer the charge to another summary authority or to the Director of Military Prosecutions;
then:
(d) the authority must call upon the prosecutor to outline the case for the prosecution and the prosecutor must state briefly:
(i) the elements of the offence charged that, on a trial of the charge, would have to be proved in order to obtain a conviction; and
(ii) the alleged facts that, on a trial of the charge, the prosecutor would rely on to support the charge; and
(iii) the nature of the evidence that, on a trial of the charge, the prosecutor would propose to present to prove the alleged facts; and
(e) if, after paragraph (d) is complied with, the authority considers that it should hear evidence in support of the charge before it makes a decision, the authority may hear as much of that evidence as it thinks fit.
21 Defence of accused person at summary hearing
(1) An accused person may request the services of a specified member of the Defence Force to defend the accused person at the hearing of a proceeding before a summary authority.
(2) If an accused person makes a request under subrule (1), the person whose services are requested must be permitted to defend the accused person unless:
(a) the services of the person are not reasonably available; or
(b) the hearing is before a subordinate summary authority and the person requested is a legal officer.
(3) If an accused person makes a request under subrule (1) for representation by a legal officer at a hearing before a commanding officer or superior summary authority, the legal officer whose services are requested must be permitted to defend the accused if:
(a) leave is given by that commanding officer or superior summary authority; and
(b) the services of the legal officer are reasonably available.
(4) If the services of a person which have been requested by an accused person under subrule (1) are not reasonably available, the summary authority must, with the consent of the accused person, direct a defence member to defend the accused person.
Part 5 Hearing before examining officer
22 Hearing by examining officer of evidence of a dangerously ill person
(1) This rule applies to the hearing of the evidence of a person, by an examining officer under section 130A of the Act, if the commanding officer is satisfied that:
(a) the person is able, or may be able, to give evidence relating to a serious service offence or on behalf of another person charged with such an offence; and
(b) the person is dangerously ill and is not likely to recover from his or her illness; and
(c) because of his or her illness, the person is unable, or may be unable, to give evidence at the trial of another person who has been charged with a serious service offence.
(2) Before hearing the evidence of a person under this rule, the examining officer must give notice to the accused person of the following:
(a) the officer has been directed to hear the evidence of a person under section 130A of the Act;
(b) the time and place at which the officer proposes to hear that evidence;
(c) the rights conferred by subrule (3).
(3) A legal practitioner representing the accused person to whom notice is given under subrule (2) is entitled, and if the evidence is evidence on behalf of the accused person a legal practitioner representing the prosecution is entitled, to be present while the evidence is being heard and to cross‑examine the person giving the evidence.
(4) The examining officer:
(a) must cause the evidence (including evidence given under cross‑examination) to be recorded; and
(b) must, if the person whose evidence is heard is able to write, cause that person to sign the evidence; and
(c) must endorse on or annex to that evidence a statement setting out the reasons for hearing the evidence, the date and time and the place where it was heard and the names of the persons present at the hearing of the evidence.
23 Hearing by examining officer of evidence in other cases
(1) This rule applies to the hearing of evidence by an examining officer under section 130A of the Act, other than a hearing referred to in rule 22.
(2) Before hearing evidence under this rule, the examining officer must give notice to the accused person of the following:
(a) the officer has been directed to hear the evidence of a person under section 130A of the Act;
(b) the time and place at which the officer proposes to hear that evidence;
(c) the rights conferred by subrule (3).
(3) The hearing must be conducted in accordance with the following provisions:
(a) in the hearing of the evidence for the prosecution:
(i) the examining officer must call and examine witnesses for the prosecution; and
(ii) the accused person may cross‑examine any witness called under subparagraph (i); and
(iii) the officer may, on conclusion of any cross‑examination, re‑examine the witness on matters arising out of the cross‑examination;
(b) after the conclusion of the hearing of evidence for the prosecution:
(i) the accused person may give evidence or may call witnesses to give evidence on the accused person’s behalf; and
(ii) the examining officer may cross‑examine the accused person or any witnesses called under subparagraph (i); and
(iii) the accused person may give further evidence or re‑examine any of the witnesses on matters arising out of the cross‑examination;
(c) the record of proceedings of the hearing must contain the substance of the evidence of the witnesses;
(d) if the officer certifies, in writing, that the attendance of a person who is a witness for the prosecution or the defence cannot, in the officer’s opinion, reasonably be procured, a written statement of that witness’s evidence, purporting to be signed by the witness, may be read to the accused person and be included in the record of the proceedings.
24 Application of certain rules to proceedings before examining officer
Rules 21, 26, 27 and 28 apply to proceedings before an examining officer as if those proceedings were proceedings before a commanding officer.
Part 6 Registrar of Military Justice and Director of Military Prosecutions
25 Order referring charge or case to superior summary authority or commanding officer
If the Director of Military Prosecutions refers a charge or a case to a superior summary authority or a commanding officer, the Director must, in the order referring the charge or the case, specify the superior summary authority or the commanding officer to whom the charge or case is referred.
Part 7 Trial provisions
26 Employment of, objections to, and swearing of recorders and interpreters
(1) An appropriate authority may arrange for a person to act as a recorder or an interpreter at proceedings before a summary authority.
(2) The accused person may enter an objection to a recorder or interpreter on the ground of partiality or incompetence or both.
(3) If the summary authority is satisfied that the accused person has substantiated an objection entered by that person under this rule, the summary authority must allow the objection.
(4) Before a person begins to act as a recorder or an interpreter, the summary authority must administer, or cause to be administered, an oath or affirmation to that person before the person begins to act.
(5) The oath or affirmation to be taken or made by a person for the purposes of this rule is an oath or affirmation:
(a) in the case of a person who is to act as a recorder — that the person will, to the best of the person’s ability:
(i) truly record or transcribe or both, the evidence to be given before the summary authority and such other matters as may be required; and
(ii) if a transcript is required to be made — deliver the transcript to the summary authority; or
(b) in the case of a person who is to act as an interpreter — that the person will, to the best of the person’s ability, truly interpret and translate as required.
27 Administration of oaths and affirmations
(1) The relevant authority may permit a person to take an oath in any manner that the person taking the oath declares to be binding on the person.
(2) In this rule relevant authority means:
(a) in relation to a witness — the appropriate authority; or
(b) in relation to a recorder or an interpreter — the summary authority.
28 Application by accused person or prosecutor for adjournment of proceedings
The accused person or the prosecutor may, at any time, apply to the summary authority, on any reasonable grounds, for an adjournment of the proceedings before the summary authority.
29 Right of accused person and prosecutor to argue and give evidence on matter to be decided by summary authority
The accused person and the prosecutor may argue, and give evidence relevant to, any question presented to the summary authority for decision.
30 Pleading to charges
If there is more than 1 charge against an accused person before a summary authority, the accused person must plead separately to each charge.
31 Opening address by prosecution
Before the first prosecution witness is called to give evidence at a trial, the prosecutor may make an opening address to the summary authority, stating briefly:
(a) the elements of the offence charged which must be proved before the accused person can be convicted; and
(b) the alleged facts on which the prosecutor will rely to support the charge; and
(c) the nature of the evidence which the prosecutor proposes to present to prove the alleged facts.
32 Summary authority may direct substitution of plea of not guilty
If at any time during a trial it appears to the summary authority that an accused person who has pleaded guilty does not understand the effect of that plea, the summary authority must substitute a plea of not guilty and proceed accordingly.
33 Submission of no case to answer
At the close of the case for the prosecution, the accused person may submit to the summary authority in respect of a charge that the evidence that was given is insufficient to support the charge.
34 Opening address by defence
If the accused person intends to call 1 or more witnesses to give evidence of the facts of the case (other than the accused person), the accused person may, before calling the first witness, make an opening address to the summary authority stating the nature and general effect of the evidence which the accused person proposes to present in his or her defence.
35 Closing addresses
(1) After all the evidence has been given, the accused person and the prosecutor may each make a closing address to the summary authority.
(2) Any closing address by the prosecutor must be made before the closing address (if any) by the accused person.
(3) Subject to subrule (4), if 2 or more accused persons are charged in the same charge sheet, their closing addresses must be made in the order in which their names are listed on the charge sheet.
(4) When 2 or more accused persons are represented by the same person, that person may make 1 closing address only.
36 Evidence of material facts after conviction on plea of guilty
If, on the trial of a charge, the accused person pleads guilty and is convicted, then:
(a) the prosecutor must inform the summary authority of the material facts which show the nature and gravity of the offence; and
(b) the convicted person may dispute any of these facts; and
(c) the convicted person and the prosecutor may give evidence about any disputed fact.
37 Convicted person’s record etc and plea in mitigation
(1) After the conviction of a person by a summary authority, the prosecutor must give evidence of:
(a) if the convicted person is a defence member or was a defence member at the time of commission of the offence of which the convicted person has been convicted — relevant particulars of the convicted person’s service in the Defence Force; and
(b) particulars of any previous convictions of the convicted person for service offences, civil court offences and overseas offences; and
(c) any other matters relevant to determining action under Part IV of the Act in relation to the convicted person as the summary authority requires.
(2) The convicted person may:
(a) give evidence, and call witnesses to give evidence, about his or her character and in mitigation of punishment; and
(b) address the summary authority in mitigation of punishment.
(3) Rule 15 applies to a witness (including the convicted person) who gives evidence under this rule as if a reference in that rule to the accused person was a reference to the convicted person.
Part 8 Procedure for imposing punishment in case of breach of undertaking to be of good behaviour
38 Application
This Part applies to proceedings before a summary authority for the purpose of imposing punishment on a convicted person in respect of a service offence in relation to which the convicted person gave, in accordance with subsection 75 (2) of the Act, an undertaking to another service tribunal to be of good behaviour for 12 months.
39 Evidence of material facts, convicted person’s record etc and plea in mitigation
After the service offence in relation to which the convicted person gave an undertaking to be of good behaviour for a period of 12 months has been read to the summary authority, action must be taken in accordance with rules 36 and 37 as if the person had been convicted by that summary authority and, in the case of rule 36, as if the person had pleaded guilty to a charge of that offence.
Part 9 Record of proceedings and exhibits
40 Record of proceedings of hearing before summary authority
(1) The record of proceedings of a hearing before a summary authority must contain:
(a) the substance of the evidence of the witnesses; and
(b) such additional matter (if any) as is necessary to enable the merits of the case to be judged.
(2) If the proceedings of a hearing before a summary authority are recorded by means of shorthand or sound recording apparatus and the proceedings result in:
(a) a referral to the Director of Military Prosecutions; or
(b) a conviction on 1 or more charges on the charge sheet, including alternative charges;
the recorder must prepare, or cause to be prepared, a transcript in writing which must be authenticated by the person who made the transcript.
(3) The record of proceedings of a hearing before a summary authority must be certified as true and correct:
(a) by the summary authority; and
(b) if the matter was recorded by a person other than the summary authority — by that other person;
as soon as practicable after the conclusion of the hearing.
41 Loss of original record of proceedings
If, at any time, the whole or any part of the original record of proceedings before a summary authority or an examining officer is lost, a valid and sufficient record of the proceedings for all purposes may be made by attaching the signature of the summary authority or examining officer to a copy of the record of proceedings.