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Australian Military Court Rules 2007

Authoritative Version
SLI 2007 No. 360 Rules/Court & Tribunal Rules as made
These Rules replace the Defence Force Discipline Rules 1985 for all matters initiated after 1 October 2007 to reflect the amendments to the Act by the Defence Legislative Amendment Act 2006. The Defence Force Discipline Rules 1985 will continue to apply, in the transition period, to all matters commencing prior to 1 October 2007.
Administered by: Defence
Registered 17 Oct 2007
Tabling HistoryDate
Tabled HR12-Feb-2008
Tabled Senate12-Feb-2008
Date of repeal 19 Mar 2014
Repealed by Defence (Spent and Redundant Instruments) Repeal Regulation 2014

Australian Military Court Rules 20071

Select Legislative Instrument 2007 No. 360

I, IAN DENIS WESTWOOD, AM, Chief Military Judge, make the following Rules under section 149A of the Defence Force Discipline Act 1982.

Dated 17 October 2007

I. D. WESTWOOD


Contents

Part 1                    Preliminary

                        1     Name of Rules                                                                 5

                        2     Commencement                                                              5

                        3     Repeal of Defence Force Discipline Rules 1985                  5

                        4     Definitions                                                                       6

                        5     Seal of Australian Military Court                                        6

                        6     Cases not covered by the Act, the Rules or the Regulations 7

                        7     Instrument for purposes of section 194A of the Act             7

Part 2                    Australian Military Court

                        8     Functions of Military Judge                                               8

Part 3                    Functions of Registrar, and administration

                        9     Registrar may liaise with certain persons                           9

                       10     Registrar may consult with services about conduct of proceedings       9

                       11     Registrar may consult with services about administrative support for trial proceedings   10

                       12     Registrar to conduct case management conferences         10

Part 4                    Charge sheets and charges

                       13     Charge sheets                                                               12

                       14     Charges                                                                        12

                       15     How charges to be construed                                          13

                       16     Amendment of charge sheets by Military Judge                13

                       17     Withdrawal of charge                                                      14

Part 5                    Summonses

                       18     Summons to accused person                                          15

                       19     Service of summons — accused member of Defence Force 15

                       20     Service of summons to witness                                       15

                       21     Personal service of summons — accused person or witness 16

                       22     Time for service of summons                                           16

Part 6                    Mode of trial — jury or non‑jury

                       23     Accused person to be advised of right of election              17

                       24     Election by accused person                                            17

Part 7                    Disclosure of prosecution case and supplementary information

                       25     Disclosure of prosecution case against accused person — witness statements            18

                       26     Disclosure of prosecution case against accused person — time for providing statements, documents and information                                             20

Part 8                    Witnesses

                       27     Securing appearance of witnesses on behalf of accused person          22

                       28     Exclusion of witness from court                                       22

                       29     Examination of witness                                                   23

                       30     Recalling of witness and calling of further witnesses          23

                       31     Witness to reply forthwith                                               24

                       32     Expenses for witnesses                                                  25

Part 9                    Military juries

                       33     Registrar to appoint military jurors etc                              26

                       34     Service of summons to military juror etc                           26

                       35     Biased persons not to be appointed to military jury           27

                       36     Director of Military Prosecution to disclose information to Registrar      27

                       37     Objection by accused person on grounds of ineligibility etc 27

                       38     Objection by accused person on ground of bias                27

                       39     Military juror etc must notify belief of own bias                  28

                       40     Replacement of military jurors etc by Registrar                 28

                       41     Replacement of military jurors etc by Military Judge          28

Part 10                  Listing of hearing

                       42     Listing a hearing                                                            29

Part 11                  Trial provisions

                       43     Employment of recorders etc                                          31

                       44     Administration of oaths and affirmations                           32

                       45     Application by accused person or prosecuting officer for adjournment of proceedings     32

                       46     Objection by accused person to military juror                   33

                       47     Swearing of military jury                                                  34

                       48     Military jury to elect spokesperson                                  34

                       49     Manner of voting of military jury                                       34

                       50     Right of accused person and prosecuting officer to argue and adduce evidence on matter to be decided by the Australian Military Court                           34

                       51     Pleading to charges and arraignment                               35

                       52     Pleading — previous acquittal or conviction                      35

                       53     Opening address by prosecution                                     35

                       54     Australian Military Court may direct substitution of plea of not guilty    36

                       55     Submission of no case to answer                                    36

                       56     Opening address by defence                                           36

                       57     Closing addresses                                                         36

                       58     Summing up and military jury deliberation                        37

                       59     Discharge of military jury                                                37

                       60     Evidence as to material facts after conviction on plea of guilty 38

                       61     Convicted person’s record etc and plea in mitigation          38

Part 12                  Documents and exhibits

                       62     Exhibits                                                                        40

                       63     Inspection of exhibits before trial                                      40

Part 13                  Record of proceedings

                       64     Record of proceedings before the Australian Military Court 41

                       65     Inspection of record of proceedings etc during trial            42

                       66     Loss of original record of proceedings                              42

Part 14                  Procedure for imposing punishment in case of breach of undertaking to be of good behaviour

                       67     Application of Part 14                                                     43

                       68     Evidence as to material facts, convicted person’s record etc and plea in mitigation        43

Part 15                  Miscellaneous

                       69     Practice notes                                                               44

                       70     Adjournments                                                                44

Schedule 1             Statement of offences                                                  45

Part 1                      Offences against Defence Force Discipline Act 1982         45

Part 2                      Offences against Defence Force Discipline Regulations 1985  52

Part 3                      Offences against Criminal Code                                       52

Schedule 2             Forms                                                                          53

Form 1                     Seal of the Australian Military Court                                 53

Form 2                     Charge sheet                                                                 54

 

 


 

Part 1                 Preliminary

  

1              Name of Rules

                These Rules are the Australian Military Court Rules 2007.

2              Commencement

                These Rules commence on 18 October 2007.

3              Repeal of Defence Force Discipline Rules 1985

                The Defence Force Discipline Rules 1985 are repealed.

4              Definitions

                In these Rules, unless the contrary intention appears:

Act means the Defence Force Discipline Act 1982.

arraign, in relation to an accused person at a trial, means reading a charge to the accused person, calling upon the accused person to plead to the charge, and recording the accused person’s plea to the charge.

assembled, in relation to a military jury, means the assembly of military jurors at the date, time and place mentioned in a summons issued under rule 33.

authorized member of the Defence Force has the same meaning as in section 87 of the Act.

defending officer means:

                (a)    an officer or legal practitioner authorised by the Chief of the Defence Force as a defending officer in accordance with section 137 of the Act; or

               (b)    another person retained or instructed by an accused person as the accused person’s defending officer.

prosecuting officer means an officer authorised as a prosecuting officer by the Director of Military Prosecutions.

recorder means a person who records the spoken word, by longhand, shorthand, mechanical or other means, and includes a person who operates or transcribes mechanical or other recordings of the spoken word.

Registrar has the meaning given by section 188FB of the Act.

Note   Section 188FM of the Act provides that the Registrar may delegate any or all of his or her functions.

Note   The following terms are defined in the Act:

(a)   accused person — subsection 3 (1);

(b)   Australian Military Court — section 114;

(c)   Military Judge — subsection 3 (1).

5              Seal of Australian Military Court

         (1)   The seal of the Australian Military Court must be in accordance with Form 1 of Schedule 2.

         (2)   The seal must be kept in the custody of the Chief Military Judge.

         (3)   A duplicate seal may be kept in the custody of the Registrar.

         (4)   The seal, or the duplicate of the seal, must be affixed in a timely manner to all documents received or issued by the Australian Military Court or the Registrar, as directed by the Chief Military Judge or the Registrar.

         (5)   If a document is required to have the seal affixed:

                (a)    by these Rules; or

               (b)    as directed by the Chief Military Judge or the Registrar;

the requirement is satisfied if a facsimile of the seal is affixed on the document by electronic means by, or at the direction of, the person affixing the seal.

6              Cases not covered by the Act, the Rules or the Regulations

                If, in the course of or in relation to proceedings before the Australian Military Court, a case arises for which no provision or insufficient provision is made by the Act, these Rules or any regulations made pursuant to subsection 146 (2) of the Act:

                (a)    the established course that would, in the particular case, have applied in a trial by jury in a civil court in the Jervis Bay Territory in its criminal jurisdiction must be adopted; or

               (b)    if there is no such established course, such course must be adopted as the interests of justice require.

7              Instrument for purposes of section 194A of the Act

                An instrument for section 194A of the Act may be issued by an appropriate authority and must:

                (a)    be directed to the person in charge of the prison where the prisoner is undergoing the sentence of imprisonment; and

               (b)    require the person to produce the prisoner at the time and place specified in the instrument; and

                (c)    specify the purpose for which the prisoner is required to be produced.

Note   Section 194A of the Act relates to the circumstance where a prisoner is required to appear as a witness before the Australian Military Court.

Part 2                 Australian Military Court

  

8              Functions of Military Judge

                In addition to the functions conferred on a Military Judge by the Act, and Regulations and other Rules made under the Act, the functions of a Military Judge are:

                (a)    to preside over the hearings of the Australian Military Court; and

               (b)    to ensure that proceedings are conducted:

                          (i)    in accordance with the Act, the Regulations and these Rules; and

                         (ii)    in a manner befitting a court of justice; and

                (c)    to ensure that an accused person who is not represented does not suffer a disadvantage as a result of not being represented; and

               (d)    to ensure that a proper record of proceedings is made and that the records of proceedings and exhibits are properly secured during the conduct of the trial.

Part 3                 Functions of Registrar, and administration

  

9              Registrar may liaise with certain persons

                In order to fulfil a function or a duty under the Act, the Regulations or these Rules, the Registrar may liaise or consult with any of the following:

                (a)    a Military Judge;

               (b)    a prosecuting officer;

                (c)    a defending officer;

               (d)    the Director of Defence Counsel Services;

                (e)    service authorities;

                (f)    civilian agencies and authorities.

10            Registrar may consult with services about conduct of proceedings

  

         (1)   The Registrar may consult with the services in relation to any matter concerning the administration of proceedings in the Australian Military Court.

         (2)   The matters in relation to which the Registrar may consult and liaise under subrule (1) include, but are not limited to, the following:

                (a)    the service details of the accused person;

               (b)    notification to the accused person;

                (c)    current posting location and chain of command for the accused person;

               (d)    whether the trial is to be by a Military Judge alone or sitting with a military jury;

                (e)    the date, time and location of the proceedings;

                (f)    the appointment of an administrative officer, clerk of the court, military jury court officer, court orderly or escort officer, as appropriate;

                (g)    service dress requirements for military and other personnel in attendance at the proceedings;

                (h)    customs of the services;

                 (i)    information technology support requirements for the proceedings;

                (j)    financial arrangements in relation to the proceedings.

         (3)   The persons in relation to which the Registrar may consult under subrule (1) include, but are not limited to, authorities responsible for the movement and administration of the accused, witnesses, counsel and military jurors, as appropriate.

11            Registrar may consult with services about administrative support for trial proceedings

         (1)   The Registrar may consult with the services concerning the nomination and appointment of staff from the services to perform the administrative duties and functions of the Australian Military Court.

         (2)   Without limiting subrule (1), the Registrar may consult in relation to staff to be appointed from the services to the following positions:

                (a)    administrative officer;

               (b)    clerk of the court;

                (c)    military jury court officer;

               (d)    court orderly;

                (e)    escort officer;

                (f)    other administrative support personnel as necessary.

12            Registrar to conduct case management conferences

         (1)   The Registrar may conduct a case management conference in order to facilitate the efficient functioning and administration of proceedings in respect of any charge referred for trial by Australian Military Court.

         (2)   A case management conference mentioned in subrule (1) may be conducted:

                (a)    in person; or

               (b)    by audio or video link.

         (3)   The Registrar must attend a case management conference as chairperson, and may invite the following persons to participate:

                (a)    the Director of Military Prosecutions, or a representative;

               (b)    the Director of Defence Counsel Services, or a representative;

                (c)    the appointed defending officer or counsel of the accused person;

               (d)    any other person who, in the opinion of the Registrar, is appropriate to participate in the conference.

         (4)   An accused person is not required to participate in a case management conference, but may choose to do so through his or her appointed defending officer or counsel.

         (5)   If a matter that requires judicial determination arises at a case management conference, the Registrar must refer the matter to a Military Judge.

         (6)   The costs of a case management conference will be borne by the Commonwealth.

Part 4                 Charge sheets and charges

  

13            Charge sheets

         (1)   A charge against an accused person must be entered in a charge sheet that is signed and dated by the Director of Military Prosecutions.

         (2)   Subject to sections 122 and 132A of the Act, a charge sheet for the trial of an accused person by the Australian Military Court may contain more than 1 charge if the offences charged:

                (a)    form, or are part of, a series of offences of the same or a similar character; or

               (b)    are founded on the same or closely related acts or omissions; or

                (c)    are founded on a series of acts done or omitted to be done in the prosecution of a single purpose; or

               (d)    are alternative to other charges in the charge sheet.

         (3)   Subject to sections 122 and 132A of the Act, at a trial before the Australian Military Court, 2 or more accused persons may be charged in the same charge sheet with 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 tried together.

         (4)   A charge sheet must be in accordance with Form 2 of Schedule 2.

Note for subrules (2) and (3)   Sections 122 and 132A may affect the operation of these provisions as follows:

(a)   section 122 of the Act provides that the number of members on a military jury may differ according to the class of offence;

(b)   section 132A provides for a trial by a Military Judge alone, or a Military Judge and military jury, according to the class of offence.

14            Charges

         (1)   A charge must state 1 offence only.

         (2)   A charge must consist of:

                (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 prejudice to any other sufficient manner of setting out the statement of an offence, the statement of an offence is sufficient if it is in accordance with 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 him or her as constituting the offence.

         (6)   At a trial by the Australian Military Court, 2 or more accused persons may be charged jointly in 1 charge of an offence alleged to have been committed by them jointly.

15            How charges to be construed

                The statement of an offence and particulars of that offence, in a charge, must be read and construed together.

16            Amendment of charge sheets by Military Judge

                If it appears to a Military Judge 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 Military Judge may amend the charge sheet to correct the mistake.

17            Withdrawal of charge

                A Military Judge may allow the prosecuting officer:

                (a)    to withdraw a charge, before the accused person is arraigned on it; or

               (b)    to withdraw a charge sheet, before the accused person is arraigned on any charge in it.

Part 5                 Summonses

  

18            Summons to accused person

                A summons under subsection 87 (5) of the Act must specify:

                (a)    the service number and rank (if any), and the name of the accused person;

               (b)    the purpose for which the accused person is required to appear before the Australian Military Court; and

                (c)    the time and place at which the accused person is required to appear.

19            Service of summons — accused member of Defence Force

                If a summons is to be served on an accused person who is a member of the Defence Force, the chain of command of the accused person must:

                (a)    personally serve; or

               (b)    cause to be personally served; or

                (c)    attempt to personally serve;

the summons on the accused person.

20            Service of summons to witness

         (1)   A summons that is required by subsection 138 (2) of the Act to be served on a person other than the accused person must be served:

                (a)    by personally delivering the summons to that person; or

               (b)    by prepaying and posting the summons as a letter addressed to that person at the person’s last‑known place of residence or business, or, if the person is carrying on business at 2 or more places, at 1 of those places; or

                (c)    by leaving the summons at the last‑known place of residence of that person with some person apparently resident at that place and apparently not less that 16 years of age; or

               (d)    by leaving the summons at the last‑known place of business of that person, or, if the person is carrying on business at 2 or more places, at 1 of those places with some person apparently in the service of the person and apparently not less than 16 years of age; or

                (e)    if the person consents — by fax or email.

         (2)   A summons served by fax under paragraph (1) (e) is taken to have been effected on completion of the transmission.

         (3)   A summons served by email under paragraph (1) (e) is taken to have been effected at the time of receipt of the email.

         (4)   If service is effected under paragraph (1) (e), the person effecting the service must retain a paper copy of the receipt or delivery notice of the fax or email.

         (5)   If, under this rule, service is effected on a corporation, the corporation may comply with the summons by authorising and ensuring attendance by its appropriate or proper officer.

         (6)   A summons mentioned in subrule (1) may be served on a person who is not a member of the Defence Force.

21            Personal service of summons — accused person or witness

         (1)   Personal service of a summons under this Part may be effected by serving on the accused person or witness:

                (a)    the original summons; or

               (b)    a copy of the summons.

         (2)   If an accused person or a witness refuses to accept personal service of a summons, service may be effected by leaving the summons in the presence of the accused person or witness.

22            Time for service of summons

                A summons to be served in accordance with this Part must be served:

                (a)    not later than 5 days before the return date at the Australian Military Court; or

               (b)    at such later time as the Court orders.

Part 6                 Mode of trial — jury or non‑jury

  

23            Accused person to be advised of right of election

         (1)   After a charge has been referred to the Registrar, the Registrar must issue a notice informing the accused person of his or her right to make an election for mode of trial.

         (2)   The notice by the Registrar:

                (a)    must fix a time within which the accused person must make any election; and

               (b)    must be in accordance with any practice notes made for this purpose.

24            Election by accused person

         (1)   An election in relation to the mode of trial must be made in writing by the accused person.

         (2)   An election under subrule (1) must be made in accordance with any practice notes made for this purpose, and:

                (a)    within the time fixed by paragraph 23 (1) (b); or

               (b)    within such further period as may be allowed by a Military Judge.

Part 7                 Disclosure of prosecution case and supplementary information

  

25            Disclosure of prosecution case against accused person — witness statements

         (1)   If the Director of Military Prosecutions requests the Registrar of the Australian Military Court to refer a matter:

                (a)    for trial; or

               (b)    for action by the Australian Military Court under Part IV of the Act;

the Director of Military Prosecutions must ensure that:

                (c)    the accused person; and

               (d)    if a trial with a military jury is required, and after a case management conference has been held — the Registrar;

are provided with, or have already been provided with, the information or copies of the documents mentioned in subrule (2).

         (2)   The Registrar must disclose to the Military Judge all information and documents provided to the Registrar under paragraph (1) (d).

         (3)   For subrule (1), the information and documents are as follows:

                (a)    the charge sheet signed and dated by the Director of Military Prosecutions;

               (b)    the record of evidence in relation to the charge taken at any proceedings before a summary authority, together with all documents relating to those proceedings;

                (c)    a list of the names of prosecution witnesses;

               (d)    a list of prosecution exhibits;

                (e)    each witness statement from a witness mentioned in paragraph (c);

                (f)    any information, document or thing in the possession of the prosecuting officer that is relevant to the reliability or credibility of a prosecution witness;

                (g)    any information, document or thing in the possession of the prosecuting officer that is adverse to the credit or credibility of the accused person.

         (4)   If the prosecuting officer decides not to call a witness to give evidence that:

                (a)    is contained in a written statement furnished to the accused person under paragraph (3) (c); or

               (b)    has been notified to the accused person under subrule (1);

the prosecuting officer must:

                (c)    if it is practicable to do so before the trial, inform the accused person:

                          (i)    that the prosecuting officer does not intend to call the witness to give evidence; and

                         (ii)    that the accused person may call the witness as a witness for the defence; or

               (d)    inform the accused person at the trial that the prosecuting officer does not intend to call the witness to give evidence but will tender the witness for cross‑examination by the accused person if the accused person so requests.

Registrar to disclose documents and information to Military Judge

         (5)   The Registrar must disclose to the Military Judge all documents or information provided to the Registrar:

                (a)    under subrule (1); and

               (b)    during or as a result of a case management conference conducted under rule 12.

26            Disclosure of prosecution case against accused person — time for providing statements, documents and information

         (1)   A statement, document or information required to be provided under rule 25 must be given to the accused person before the Director of Military Prosecutions requests the Registrar to refer a matter:

                (a)    for trial; or

               (b)    for action by the Australian Military Court under Part IV of the Act.

         (2)   If the Director of Military Prosecutions request the Registrar to refer a matter for trial, the Director of Military Prosecutions must certify, by notice in writing given to the Registrar accompanying the request, that all statements, documents and information have been provided to the accused person in accordance with this rule, and rule 25.

         (3)   If the Director of Military Prosecutions request the Registrar to refer a matter for action by the Australian Military Court under Part IV of the Act, the Director of Military Prosecutions must:

                (a)    in relation to any proceedings that were held before a summary authority — give to the Registrar a record of evidence in relation to the charge at the proceedings; and

               (b)    certify, by notice in writing given to the Registrar accompanying the request, that all statements, documents and information have been provided to the accused person in accordance with this rule, and rule 25.

         (4)   An obligation under this rule, or rule 25, to provide a statement, a document or information:

                (a)    exists whether or not the accused person has mentioned any intention as to how he or she might plead to the charge; and

               (b)    continues until:

                          (i)    the accused person is convicted; or

                         (ii)    the accused person is acquitted; or

                         (iii)    the charge is dismissed after the prosecution offers no evidence; or

                        (iv)    the charge is withdrawn; or

                         (v)    the Director of Military Prosecutions directs that the charge not be proceeded with.

Part 8                 Witnesses

  

27            Securing appearance of witnesses on behalf of accused person

         (1)   The relevant authority must take the necessary steps to secure the appearance at the hearing of a proceeding before the Australian Military Court of persons reasonably required by the accused person to appear to give evidence, and (if so required) to produce documents, on that person’s behalf.

         (2)   In this rule:

relevant authority means:

                (a)    the Chief of the Defence Force; or

               (b)    a delegate of the Chief of the Defence Force of at least the rank of Colonel (or an equivalent rank).

28            Exclusion of witness from court

         (1)   During proceedings before the Australian Military Court, a witness must not be in court while not under examination, except by leave of the Military Judge.

         (2)   The Military Judge may direct a witness to withdraw from the court until the Military Judge 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)   Nothing in this rule requires the accused person, a defending officer or the prosecuting officer to be absent, or to withdraw, from the proceedings.

29            Examination of witness

         (1)   A witness appearing before the Australian Military Court:

                (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 Military Judge may allow the cross‑examination or re‑examination of a witness to be postponed if, in the opinion of the Military Judge, it is in the interests of justice to do so.

         (3)   A Military Judge may question a witness.

         (4)   During a trial before a military jury, members of the military jury are entitled to question a witness, if:

                (a)    in the opinion of the Military Judge, the question is relevant and admissible; and

               (b)    the question is put to the witness by the Military Judge.

         (5)   If a question put under subrule (3) or (4) is answered, the accused person and the prosecuting officer may put to the witness such questions arising from the answer that the witness has given as seem proper to the Military Judge.

30            Recalling of witness and calling of further witnesses

         (1)   The prosecuting officer and the accused person may, at any time before:

                (a)    in a trial by the Australian Military Court with a military jury — a Military Judge begins to sum up; or

               (b)    in a trial by the Australian Military Court before a Military Judge alone — the Military Judge makes a finding on the charge;

recall a witness by leave of the Military Judge.

         (2)   After the witnesses for the defence have given their evidence, the prosecuting officer may, by leave of the Military Judge, 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 adduced, or which could not reasonably have been foreseen, by the prosecution before the accused person presented his or her defence.

         (3)   In a trial by the Australian Military Court with a military jury, a Military Judge may call a witness or recall a witness:

                (a)    at any time before beginning to sum up; and

               (b)    if, in the opinion of the Military Judge, it is in the interests of justice to do so.

         (4)   In a trial by the Australian Military Court before a Military Judge alone, the Military Judge may call a witness or recall a witness:

                (a)    at any time before making a finding on the charge; and

               (b)    if, in the opinion of the Military Judge, it is in the interests of justice to do so.

         (5)   If a witness is called or recalled in accordance with this rule, the accused person and the prosecuting officer may put such questions to the witness as seem proper to the Military Judge.

31            Witness to reply forthwith

         (1)   Subject to subrule (2), a witness appearing before the Australian Military Court must reply forthwith 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 Military Judge.

32            Expenses for witnesses

         (1)   A person (other than a member of the Defence Force) summoned or requested to appear as a witness before the Australian Military Court must be paid such fees, and allowances for expenses, in respect of the witness’s attendance as the appropriate authority determines in accordance with the scale in Schedule 2 to the Public Works Committee Regulations 1969.

         (2)   At the request of the appropriate authority, the functions in subrule (1) are to be carried out by:

                (a)    the Chief of the Defence Force; or

               (b)    a delegate of the Chief of the Defence Force of at least the rank of Colonel (or an equivalent rank); or

                (c)    the Director of Military Prosecutions.

Part 9                 Military juries

  

33            Registrar to appoint military jurors etc

         (1)   The Registrar must appoint military jurors and reserve military jurors in accordance with this Part.

         (2)   The Registrar must appoint a military juror or a reserve military juror by issuing a summons.

         (3)   A summons appointing a military juror or reserve military juror must include the following information:

                (a)    the service number, rank and full name of the military juror or reserve military juror;

               (b)    the date, time and location the military juror or reserve military juror is required to attend the Australian Military Court for jury duty.

         (4)   The Registrar must ensure that a military juror or reserve military juror appointed under subrule (1) is of an appropriate rank, having regard to the rank of the accused person.

34            Service of summons to military juror etc

         (1)   The Registrar is to cause a summons to be served on a military juror by any of the following means:

                (a)    personal service;

               (b)    postal service, by prepaying and posting the summons to the military juror’s place of duty;

                (c)    fax;

               (d)    email.

         (2)   A summons served by fax under paragraph (1) (c) is taken to have been effected on completion of the transmission.

         (3)   A summons served by email under paragraph (1) (d) is taken to have been effected at the time of receipt of the email.

35            Biased persons not to be appointed to military jury

                The Registrar must not appoint a person as a military juror or reserve military juror if the Registrar believes, on reasonable grounds, that the person:

                (a)    is biased; or

               (b)    is likely to be biased; or

                (c)    is likely to be thought, on reasonable grounds, to be biased.

36            Director of Military Prosecution to disclose information to Registrar

                The Director of Military Prosecutions must disclose sufficient information to the Registrar to enable the Registrar to appoint members of a military jury in accordance with these Rules, including the following:

                (a)    the name of each prosecution witness;

               (b)    the rank (if any) of each prosecution witness;

                (c)    the service details of the accused person.

37            Objection by accused person on grounds of ineligibility etc

                At any time before a military jury is assembled the accused person or the Director of Military Prosecutions may lodge an objection with the Registrar to any member of the military jury on the ground that the military juror:

                (a)    is ineligible; or

               (b)    is, or is likely to be, biased; or

                (c)    is likely to be thought, on reasonable grounds, to be biased.

38            Objection by accused person on ground of bias

                If the Registrar upholds or overrules an objection on the ground of bias, the Registrar must notify the Military Judge before the hearing commences.

39            Military juror etc must notify belief of own bias

         (1)   A military juror or reserve military juror who, during the trial, believes or becomes aware that he or she:

                (a)    is biased; or

               (b)    is likely to be biased; or

                (c)    is likely to be thought, on reasonable grounds, to be biased;

must immediately notify the Military Judge.

         (2)   If a military juror notifies a Military Judge in accordance with subrule (1), the juror must be questioned on oath or affirmation about the bias or potential bias, in the absence of the other military jurors, by:

                (a)    the Military Judge; and

               (b)    by the leave of the Military Judge — the prosecutor or the defending officer.

40            Replacement of military jurors etc by Registrar

                At any time before a military jury is assembled, the Registrar may revoke the appointment of a military juror or reserve military juror and appoint a replacement.

41            Replacement of military jurors etc by Military Judge

         (1)   After a military jury is assembled, and before the military jury is sworn or affirmed, the Military Judge may revoke the appointment of a military juror or reserve military juror and appoint a replacement.

         (2)   The Military Judge must appoint a replacement juror from among any available reserve military jurors.

Part 10               Listing of hearing

  

42            Listing a hearing

         (1)   The Registrar must issue a listing notice in accordance with this rule if:

                (a)    the Registrar:

                          (i)    under subsection 118 (1) of the Act, refers a charge to the Australian Military Court; or

                         (ii)    under subsection 118 (2) of the Act, refers a conviction to the Australian Military Court; and

               (b)    the Chief Military Judge has nominated a Military Judge to try the charge; and

                (c)    the accused person:

                          (i)    has consented to the issue of a listing notice; or

                         (ii)    has responded to a notice given by the Registrar under rule 23 concerning the accused person’s rights of election; or

                         (iii)    has not responded, within the time allowed under rule 23, to a notice given by the Registrar concerning the accused person’s rights of election; and

               (d)    any case management conference under rule 12 has been completed.

         (2)   The listing notice must:

                (a)    appoint the Military Judge nominated by the Chief Military Judge; and

               (b)    for a jury trial — include the name, rank and service number of the military jurors appointed.

         (3)   A listing notice must fix, or provide for the fixing of, the date, time and place for the hearing of the charge or case.

         (4)   At any time before the trial commences the Registrar may amend, vary or replace a listing notice if, in the opinion of the Registrar, it is appropriate to do so.

         (5)   The Registrar must give a copy of the listing notice, or a variation or replacement, to:

                (a)    the Military Judge nominated to try the charge; and

               (b)    the accused person; and

                (c)    the accused person’s superior authority; and

               (d)    the Director of Military Prosecutions; and

                (e)    the appointed defending officer.

Part 11               Trial provisions

  

43            Employment of recorders etc

         (1)   An appropriate authority must arrange for persons to act in the following positions:

                (a)    a recorder;

               (b)    an interpreter;

                (c)    a military jury court officer;

at proceedings before the Australian Military Court.

Objections

         (2)   At any time during the trial the accused person or the prosecution may enter an objection to a recorder, an interpreter or a military jury court officer on the ground of:

                (a)    bias; or

               (b)    likelihood of bias; or

                (c)    competence.

Oath etc

         (3)   If the Military Judge is satisfied that the accused person or the prosecuting officer has substantiated an objection under this rule, the Military Judge must:

                (a)    allow the objection; and

               (b)    request the Registrar to arrange for a replacement recorder, interpreter or military jury court officer, as the case may be.

         (4)   Before a person begins to act as a recorder, interpreter or military jury court officer, the Military Judge must administer, or cause to be administered, an oath or affirmation to that person before the person begins so to act.

         (5)   The oath or affirmation to be taken or made by a person for 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, truly record or transcribe, or both (as the case may be), the evidence given before the Australian Military Court and such other matters as may be required, and, if a transcript is required to be made, will deliver to the Registrar a true transcript of the same; 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; or

                (c)    in the case of a person who is to act as a military jury court officer — that the person:

                          (i)    will keep the military jury in his or her charge, subject to any directions by the Military Judge; and

                         (ii)    will not allow any person to speak to a military juror about the issues before the Australian Military Court;

                         (iii)    will not speak to any military juror concerning the issues before the Australian Military Court.

44            Administration of oaths and affirmations

                The Military Judge may permit a person, or direct that a person be permitted, to take an oath or affirmation in such manner as the person taking the oath declares to be binding on the person’s conscience.

45            Application by accused person or prosecuting officer for adjournment of proceedings

                The accused person or the prosecuting officer may, at any time, apply to the Military Judge, on any reasonable grounds, for an adjournment of the proceedings before the Australian Military Court.

46            Objection by accused person to military juror

         (1)   Before the members of the military jury are sworn or affirmed, the name, rank and service number of each member must be read to the accused person and the accused person must be asked whether he or she objects to be tried by any of them.

         (2)   An objection to a military juror may only be made in accordance with this rule.

         (3)   At any time after the military jury is assembled, and before the military jury is sworn or affirmed, the accused person or prosecuting officer may object to any member or reserve member of the military jury on the ground that the military juror:

                (a)    is biased; or

               (b)    is likely to be biased; or

                (c)    is likely to be thought, on reasonable grounds, to be biased.

         (4)   If an objection is made under subrule (3) the Military Judge must:

                (a)    uphold the objection; or

               (b)    overrule the objection.

         (5)   This rule also applies in relation to a reserve member or new member who is appointed to a military jury in place of another member in the same manner as it applies in relation to an original member of the military jury.

         (6)   If a member or potential member of a military jury is to be questioned in connection with a challenge to his or her membership of a military jury, the questioning must take place on a voir dire, in the absence of other members or potential members of the military jury.

47            Swearing of military jury

         (1)   After all objections by the accused person to members of the military jury have been dealt with and after the arraignment of the accused person, the Military Judge must administer, or cause to be administered, an oath or affirmation to each member of the military jury in the presence of the accused person.

         (2)   The oath or affirmation to be taken or made by a person for this rule is an oath or affirmation that the person:

                (a)    will duly administer justice according to law without fear or favour, affection or ill‑will, that the person will well and truly try the accused person or persons before the Australian Military Court according to the evidence; and

               (b)    that the person will not disclose the vote or opinion of any member of the military jury unless required to do so in due course of law.

48            Military jury to elect spokesperson

         (1)   At the direction of a Military Judge, a military jury must elect 1 of its members as a spokesperson.

         (2)   A spokesperson must speak on behalf of the military jury:

                (a)    in announcing a finding or a decision; and

               (b)    in any other communications with the Military Judge.

49            Manner of voting of military jury

                On any question to be determined by the military jury, the members of the military jury must vote orally, in order of seniority commencing with the most junior in rank.

50            Right of accused person and prosecuting officer to argue and adduce evidence on matter to be decided by the Australian Military Court

                The accused person and the prosecuting officer may properly argue, and adduce evidence relevant to, any question presented to the Australian Military Court for decision.

51            Pleading to charges and arraignment

         (1)   If there is more than 1 charge against an accused person before the Australian Military Court, the person must be required to plead separately to each charge.

         (2)   If:

                (a)    there is more than 1 charge against an accused person before the Australian Military Court; and

               (b)    the charges are contained in more than 1 charge sheet;

the Military Judge must arraign and try the person on the charge or charges in a charge sheet (other than taking action under Part IV of the Act) before the Military Judge arraigns and tries the person on a charge in another charge sheet.

         (3)   If an accused person is convicted by the Australian Military Court of a charge which is 1 of 2 or more charges stated in the charge sheet in the alternative, that person must not be convicted by the Australian Military Court of any charge which is alternative to the charge with which that person has been convicted and which is placed after it on the charge sheet.

52            Pleading — previous acquittal or conviction

                If, at a hearing of the Australian Military Court, the accused person raises under section 144 of the Act the defence of a previous acquittal or conviction, the Military Judge must determine the issue in the absence of the military jury.

53            Opening address by prosecution

                Before the first prosecution witness is called to give evidence at a trial, the prosecuting officer must make an opening address to the Australian Military Court, stating briefly:

                (a)    the elements of the offence charged that have to be proved before the accused person can be convicted; and

               (b)    the alleged facts upon which the prosecuting officer will rely to support the charge; and

                (c)    the nature of the evidence that the prosecuting officer proposes to adduce to prove the alleged facts.

54            Australian Military Court may direct substitution of plea of not guilty

                If at any time during a trial it appears to the Military Judge that an accused person who has pleaded guilty does not understand the effect of that plea, the Military Judge must substitute a plea of not guilty and refer the matter to the Registrar.

55            Submission of no case to answer

         (1)   At the close of the case for the prosecution, the accused person may submit to the Military Judge in respect of a charge that the evidence adduced is insufficient to support the charge.

         (2)   If the case mentioned in subrule (1) is before a military jury, the submissions of the accused person are to be made in the absence of the military jury.

56            Opening address by defence

                If the accused person intends to call another person as a witness to give evidence as to the facts of the case, the accused person may, before he or she calls the first such witness, make an opening address to the Australian Military Court stating the nature and general effect of the evidence that the person proposes to adduce in the person’s defence.

57            Closing addresses

         (1)   After all the evidence has been given, the accused person and the prosecuting officer may each make a closing address to the Australian Military Court.

         (2)   Any closing address by the prosecuting officer 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.

58            Summing up and military jury deliberation

         (1)   After the closing addresses (if any) at a trial by the Australian Military Court sitting with a military jury, the Military Judge must sum up the evidence and direct the military jury on the law relating to the case.

         (2)   After the Military Judge has summed up, the military jury must retire to consider its verdict.

         (3)   The military jury must consider its verdict in private.

         (4)   The Military Judge may permit the military jury to return to the court to ask the Military Judge for further directions on matters of law or fact.

         (5)   All communications between the military jury and the Military Judge must be conducted in open court.

         (6)   When the military jury has reached a verdict:

                (a)    the Military Judge must direct the clerk of the court to reassemble the court; and

               (b)    the spokesperson for the military jury must announce the verdict in open court.

         (7)   The Military Judge must discharge the military jury if:

                (a)    the military jury has deliberated for at least 8 hours and has not reached a verdict; and

               (b)    the Military Judge is satisfied that there is no prospect of the jury reaching a unanimous or majority verdict.

59            Discharge of military jury

         (1)   The Military Judge must discharge the military jury if the military jury finds the accused person:

                (a)    guilty; or

               (b)    not guilty; or

                (c)    was suffering from a mental impairment at the time of the act or omission that is the subject of the charge, that caused the accused person not to be responsible, in accordance with the law, for the act or omission.

         (2)   The Military Judge must discharge the military jury from giving a verdict in the matter if, after the matter has been given into the charge of the military jury:

                (a)    the accused person pleads guilty; and

               (b)    the Military Judge accepts the plea.

         (3)   The Military Judge may discharge the military jury or a military juror if he or she becomes aware of an irregularity in the behaviour or conduct of the military jury.

         (4)   The Military Judge may discharge the military jury if a member or members of the military jury are unavailable.

60            Evidence as to material facts after conviction on plea of guilty

                If, on the trial of a charge, the accused person pleads guilty and is convicted:

                (a)    the prosecuting officer must inform the Military Judge of the material facts that show the nature and gravity of the offence; and

               (b)    the convicted person may dispute any such facts; and

                (c)    the convicted person and the prosecuting officer may adduce evidence in relation to any fact so disputed.

61            Convicted person’s record etc and plea in mitigation

         (1)   After the conviction of a person by the Australian Military Court, the prosecuting officer must cause evidence to be adduced, or must make submissions, about:

                (a)    if the convicted person is a member of the Defence Force or was a member of the Defence Force at the time of commission of the offence of which the person has been convicted — relevant particulars of the 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)    matters relevant to punishment and orders that might be imposed under Part IV of the Act, the Crimes Act 1914 and the Criminal Code Act 1995; and

               (d)    such other matters relevant to determining action under Part IV of the Act in relation to the convicted person as the Australian Military Court requires.

         (2)   The convicted person may:

                (a)    give evidence, and call witnesses to give evidence, as to the convicted person’s character and in mitigation of punishment or orders; and

               (b)    address the Australian Military Court in mitigation of punishment or orders.

         (3)   Rule 29 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 were a reference to the convicted person.

Part 12               Documents and exhibits

  

62            Exhibits

         (1)   Subject to subrule (3), any document or thing admitted in evidence at a trial by the Military Judge must be made an exhibit.

         (2)   An exhibit must be marked with the seal of the Court.

         (3)   If the Australian Military Court is satisfied that a copy of, or an extract or relevant parts from, a document or book admitted in evidence is correct, the Military Judge may make that copy or extract an exhibit in place of the original document or book.

63            Inspection of exhibits before trial

         (1)   An accused person who has been sent a list of exhibits in accordance with paragraph 25 (3) (d) must, on application by that person to the Registrar or Military Judge, be permitted by the custodian of the exhibit to inspect and to copy any exhibit.

         (2)   The custodian of the exhibit must ensure that proper precautions are taken for the safety of the exhibit during an inspection under subrule (1).

Part 13               Record of proceedings

  

64            Record of proceedings before the Australian Military Court

         (1)   The proceedings before the Australian Military Court must, if practicable, be recorded verbatim.

         (2)   If the proceedings before the Australian Military Court are not recorded verbatim, they must be recorded in sufficient detail to enable the course of the proceedings to be followed, and the merits of the case to be judged, from the record, and in particular:

                (a)    subject to paragraph (b), the evidence must be taken down in narrative form and as nearly as possible to the words used; and

               (b)    if:

                          (i)    the prosecution or the defence so requests and the Military Judge so directs; or

                         (ii)    in any other case, the Military Judge so directs;

                        a particular question and the answer to it must be taken down verbatim; and

                (c)    a record must be made of the proceedings relating to each objection, submission or application; and

               (d)    subject to paragraph (e), any address by the prosecution or the defence or the summing up by the Military Judge, if not in writing, must be recorded to such extent as the Military Judge directs; and

                (e)    if the prosecution or the defence so requires, a record must be made of any particular point in the address by the prosecution or the defence or summing up by the Military Judge.

         (3)   If the proceedings are recorded verbatim, the recorder must prepare or cause to be prepared a transcript in writing, which must be authenticated by the person who made the transcript.

         (4)   The written record of rulings and directions must be certified in writing as true and correct by the Military Judge as soon as practicable after the trial.

65            Inspection of record of proceedings etc during trial

                During a trial by the Australian Military Court, the accused person or the prosecuting officer may, with the leave of the Military Judge:

                (a)    have a particular part of the record of proceedings read or played to the accused person or the prosecuting officer; and

               (b)    if proper precautions are taken for its safety, inspect an exhibit.

66            Loss of original record of proceedings

                If, at any time, the whole or any part of the original record of proceedings before the Australian Military Court is lost, a valid and sufficient record of the proceedings for all purposes may be made by the signature of the Military Judge being affixed to a copy of the record of proceedings.

Part 14               Procedure for imposing punishment in case of breach of undertaking to be of good behaviour

  

67            Application of Part 14

                This Part applies in relation to proceedings before the Australian Military Court 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 the Australian Military Court to be of good behaviour for 12 months.

68            Evidence as to material facts, convicted person’s record etc and plea in mitigation

                After the service offence mentioned in rule 67 has been read to the Military Judge, action must be taken in accordance with rules 60 and 61.

Part 15               Miscellaneous

  

69            Practice notes

                The Chief Military Judge may issue practice notes concerning:

                (a)    the practice and procedure to be adopted in proceedings before the Australian Military Court; and

               (b)    administrative matters relating to the administration of trials.

70            Adjournments

         (1)   The Military Judge may, at any stage in the proceedings, adjourn the proceedings, if it appears to the Military Judge that it is necessary to do so.

         (2)   An adjournment under subrule (1) may be made generally, or to a day specified by the Military Judge, and on such terms as the Military Judge orders.

         (3)   A general adjournment must be listed or relisted by the Registrar no later than 12 months after the adjournment.


Schedule 1        Statement of offences

(subrule 14 (4))

Part 1          Offences against Defence Force Discipline Act 1982

Item

Provision

Offence

1

section 15

Abandoning or surrendering a (place) (post) (service ship) (service aircraft) (service armoured vehicle)

2

section 15A

Causing the capture or destruction of a (service ship) (service aircraft) (service armoured vehicle)

3

section 15B

Aiding the enemy while captured

4

section 15C

Providing the enemy with material assistance

5

section 15D

Harbouring enemies

6

subparagraph 15E (1) (b) (i)

Giving false communication

7

subparagraph 15E (1) (b) (ii)

Altering or interfering with communication

8

subparagraph 15E (1) (b) (iii)

Altering or interfering with apparatus for giving or receiving communication

9

section 15F

Failing to carry out orders

10

section 15G

Imperilling the success of operations

11

section 16

Communicating with the enemy

12

section 16A

Failing to report information received from the enemy

13

section 16B

Committing the offence of [name of offence against section 15 to 16A (other than section 15B or 15C)] with intent to assist the enemy

14

paragraph 17 (1) (a)

Leaving (post) (position) (place) in connection with operations

15

paragraph 17 (1) (b)

Abandoning (weapons) (other equipment) in connection with operations

16

paragraph 17 (1) (c)

Failing to properly perform duty in attacking or defending against the enemy

17

subsection 18 (1)

Endangering morale

18

subsection 18 (2)

Endangering morale in connection with operations

19

subsection 19 (1)

Failing to rejoin force

20

subsection 19 (2)

Preventing another rejoining (his) (her) force

21

subsection 19 (3)

Securing favourable treatment to detriment of others

22

subsection 19 (4)

Ill treating other persons over whom member has authority

23

subsection 20 (1)

Mutiny

24

subsection 20 (2)

Mutiny in connection with service against enemy

25

subsection 21 (1)

Failing to suppress mutiny

26

subsection 21 (2)

Failing to suppress mutiny in connection with service against enemy

27

subsection 22 (1)

Absence from place of duty with intention to avoid active service

28

subsection 22 (2)

Absence without leave with intention to avoid active service

29

subsection 23 (1)

Absence from duty — failure to attend

30

subsection 23 (2)

Absence from duty — ceasing to perform

31

section 24

Absence without leave

32

section 25

Assaulting a superior officer

33

subsection 26 (1)

Engaging in (threatening) (insubordinate) (insulting) conduct

34

subsection 26 (2)

Using (threatening) (insubordinate) (insulting) language

35

section 27

Disobeying lawful command

36

section 28

Failing to comply with direction of person in command of (service ship) (service aircraft) (service vehicle)

37

section 29

Failing to comply with general order

38

subsection 30 (1)

Assaulting a guard 

39

subsection 30 (2)

Assaulting a guard in connection with operations against the enemy

40

subsection 31 (1)

Obstructing a police member

41

subsection 31 (2)

Refusing to assist a police member

42

paragraph 32 (1) (a)

Sleeping (at post) (on watch) while on (guard duty) (watch)

43

paragraph 32 (1) (b)

Sleeping on duty while on (guard duty) (watch)

44

paragraph 32 (1) (c)

Being intoxicated while on (guard duty) (watch) 

45

paragraph 32 (1) (d)

(Leaving post) (absence from place of duty) while on (guard duty) (watch)

46

subsection 32 (3)

Committing the offence of [name of offence against paragraph 32 (1) (a), (b), (c) or (d)] in connection with service against enemy

47

paragraph 33 (a)

Assaulting another person (on service land) (in service ship) (in service aircraft) (in service vehicle) (in a public place)

48

paragraph 33 (b)

Creating a disturbance (on service land) (in service ship) (in service aircraft) (in service vehicle) (in a public place)

49

paragraph 33 (c)

Engaging in obscene conduct (on service land) (in service ship) (in service aircraft) (in service vehicle) (in a public place)

50

paragraph 33 (d)

Using (insulting) (provocative) words (on service land) (in service ship) (in service aircraft) (in service vehicle) (in a public place)

51

section 34

Assaulting a subordinate

52

section 35

Negligent performance of duty

53

subsection 36 (1)

Dangerous conduct with knowledge of consequences

54

subsection 36 (2)

Dangerous conduct with recklessness as to consequences

55

subsection 36 (3)

Dangerous conduct with negligence as to consequences

56

section 36A

Unauthorised discharge of weapon

57

section 36B

Negligent discharge of weapon

58

section 37

Being intoxicated (while on duty) (if reporting for duty) (if required to report for duty)

59

paragraph 38 (1) (a)

Malingering — self injury

60

paragraph 38 (1) (b)

Malingering — prolonging sickness or disability

61

subsection 38 (2)

Malingering — falsely representing oneself as suffering from physical or mental condition

62

subsection 39 (1)

Intentionally causing (loss of) (stranding of) (hazarding of) service ship 

63

subsection 39 (2)

Recklessly causing (loss of) (stranding of) (hazarding of) service ship 

64

subsection 39 (3)

Negligently causing (loss of) (stranding of) (hazarding of) service ship 

65

subsection 40 (1)

Driving a service vehicle while intoxicated

66

subsection 40 (2)

Driving a vehicle on service land while intoxicated

67

subsection 40A (1)

Dangerous driving of a service vehicle

68

subsection 40A (2)

Dangerous driving of a vehicle on service land

71

paragraph 40C (1) (a)

Driving a service vehicle while not authorised

72

paragraph 40C (1) (b)

Using a service vehicle for an unauthorised purpose

73

subsection 40D (1)

Driving a service vehicle without due care and attention or without reasonable consideration

74

subsection 40D (2)

Driving a vehicle on service land without due care and attention or without reasonable consideration

75

section 41

Flying a service aircraft below the minimum height

76

section 42

Giving inaccurate certification to a matter affecting a (service ship) (service aircraft) (service vehicle) (service missile) (service weapon)

77

subsection 43 (1)

Intentionally (destroying) (damaging) service property 

78

subsection 43 (2)

Recklessly (destroying) (damaging) service property

79

subsection 43 (3)

Negligently (destroying) (damaging) service property 

80

section 44

Losing service property

81

section 45

Unlawful possession of service property

82

section 46

Possession of property suspected of having been unlawfully obtained

83

section 47C

Theft

84

section 47P

Receiving stolen property

85

subsection 48 (1)

Looting

86

subsection 48 (2)

Receiving looted property

87

section 49

Refusing to submit to arrest

88

section 49A

Assault against arresting person

89

subsection 50 (1)

Delaying or denying justice by failing to take action to have charge dealt with

90

subsection 50 (2)

Delaying or denying justice by failing to take action to (release) (order release) of a person

91

section 51

Escaping from custody

92

section 52

Giving false evidence before the Australian Military Court

93

subparagraph 53 (1) (b) (i)

Failing to appear before the Australian Military Court as required by (summons) (order)

94

subparagraph 53 (1) (b) (ii)

Failing to appear and report if not excused by the Australian Military Court

95

paragraph 53 (2) (a)

Refusing to take an oath or make an affirmation before the Australian Military Court

96

paragraph 53 (2) (b)

Refusing to answer a question before a the Australian Military Court

97

paragraph 53 (2) (c)

Refusal to produce a document required by (summons) (order) before the Australian Military Court

98

paragraph 53 (4) (a)

Insulting a (member of a military jury) (Military Judge) (summary authority)

99

paragraph 53 (4) (b)

Interrupting proceedings of the Australian Military Court

100

paragraph 53 (4) (c)

Creating a disturbance (in) (near) the Australian Military Court

101

paragraph 53 (4) (d)

Engaging in conduct that would constitute contempt of the Australian Military Court

102

subsection 54 (1)

Intentionally allowing a person in custody to escape

103

subsection 54 (2)

Unlawfully releasing a person in custody

104

subsection 54 (3)

Facilitating escape of a person in custody

105

subsection 54 (4)

Conveying a thing into place of confinement with intent to facilitate escape of a person

106

paragraph 54A (1) (a)

Detainee making unnecessary noise

107

paragraph 54A (1) (b)

Detainee committing a nuisance

108

paragraph 54A (1) (c)

Detainee being (idle) (careless) (negligent) at work

109

paragraph 54A (1) (d)

Detainee unlawfully communicating with another person

110

paragraph 54A (1) (e)

Detainee unlawfully (giving) (receiving) any thing

111

paragraph 54A (1) (f)

Detainee unlawfully being in possession of any thing

112

paragraph 54A (1) (g)

Detainee unlawfully (entering) (leaving) cell

113

subsection 54A (2)

Detainee failing to comply with a condition of grant of leave of absence

114

subsection 54A (6)

Aiding, abetting etc the commission of [name of offence against subsection 54A (1) or (2)]

115

paragraph 55 (1) (a)

(Making) (signing) false service document

116

paragraph 55 (1) (b)

Making false entry in service document

117

paragraph 55 (1) (c)

Altering a service document

118

paragraph 55 (1) (d)

(Suppressing) (defacing) (making away with) (destroying) a service document

119

paragraph 55 (1) (e)

Failing to make an entry in a service document

120

subsection 56 (1)

Knowingly making false or misleading statement in relation to application for benefit

121

subsection 56 (4)

Recklessly making false or misleading statement in relation to application for benefit

122

paragraph 57 (1) (a)

Person giving false answer to a question in a document relating to appointment or enlistment

123

paragraph 57 (1) (b)

Person giving false information or document in relation to appointment or enlistment

124

paragraph 57 (1) (c)

Person failing to disclose prior service

125

paragraph 57 (2) (a)

Member giving false answer to question in a document relating to appointment or enlistment

126

paragraph 57 (2) (b)

Member giving false information or document in relation to appointment or enlistment

127

paragraph 57 (2) (c)

Member failing to disclose prior service

128

section 58

Unauthorised disclosure of information

129

subsection 59 (1)

(Selling) (dealing) (trafficking) in narcotic goods outside Australia

130

subsection 59 (3)

Possession of narcotic goods outside Australia

131

subsection 59 (5)

Self administering narcotic goods other than cannabis outside Australia

132

subsection 59 (6)

Using cannabis

133

subsection 59 (7)

Possession of cannabis in Australia

134

section 60

Prejudicial conduct

135

subsection 61 (1)

Engaging in conduct in the Jervis Bay Territory that is a Territory offence [name of offence and provision of law contravened]

136

subsection 61 (2)

Engaging in conduct in a public place outside the Jervis Bay Territory that is a Territory offence [name of offence and provision of law contravened]

137

subsection 61 (3)

Engaging in conduct outside the Jervis Bay Territory that is a Territory offence [name of offence and provision of law contravened]

138

section 62

Commanding or ordering commission of service offence

139

subsection 101QA (1)

Failing to submit to medical examination

140

subsection 101QA (2)

Failing to submit to the taking of a specimen

Part 2          Offences against Defence Force Discipline Regulations 1985

Item

Provision

Offence

1

subregulation 25B (2)

(Tampering with) (causing damage to) radar device

Part 3          Offences against Criminal Code

Item

Provision

Offence

1

section 11.1

Attempt to commit [name of offence against the Defence Force Discipline Act 1982 or Defence Force Discipline Regulations 1985]

2

section 11.2

Aiding, abetting etc the commission of [name of offence against the Defence Force Discipline Act 1982 (other than subsection 54A (1) or (2)) or Defence Force Discipline Regulations 1985]

3

section 11.3

Procuring conduct of another person that would have constituted the offence of [name of offence against the Defence Force Discipline Act 1982 and Defence Force Discipline Regulations 1985] on the part of procurer

4

section 11.4

Incitement to [name of offence against the Defence Force Discipline Act 1982 and Defence Force Discipline Regulations 1985]

5

section 11.5

Conspiracy to commit [name of offence against the Defence Force Discipline Act 1982 and Defence Force Discipline Regulations 1985]

Schedule 2        Forms

Form 1        Seal of the Australian Military Court

(subrule 5 (1))

 

 

 

 

Form 2        Charge sheet

(subrule 13 (4))

 

 

 

 

 

 


CHARGE SHEET

 

Insert Accused Service Details, a member of the Royal Australian Navy / Australian Army / Royal Australian Air Force and at the time of the offence/s specified in the following charge/s a defence member under the Defence Force Discipline Act 1982, is charged as follows:

 

First charge

 

Defence Force Discipline Act 1982,
subsection 61(3) and Crimes Act 1900 (ACT), section 23

Engaging in conduct outside the Jervis Bay Territory that is a Territory offence, being the offence of inflicting actual bodily harm

 

Insert particulars of the offence

 

 

 

Second charge

 

Defence Force Discipline Act 1982, paragraph 33 (a)

 

Assaulting another person on service land etc

 

Insert particulars of the offence.

 

 

 

 

…………………………………….

Signed

Director of Military Prosecutions

 

Dated


Note

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.