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SLI 2008 No. 100 Rules/Court & Tribunal Rules as made
These Rules amend the Australian Military Court Rules 2007 (the Rules) to provide the mechanism for the selection and appointment of military jurors and reserve military jurors and the procedures for military trials before the Australian Military Court. They also expand the definitions applied in the Rules and the manner in which a person may make or change an election in relation to the mode of their trial and when an election will be automaticallly revoked.
Administered by: Defence
Registered 05 Jun 2008
Tabling HistoryDate
Tabled HR16-Jun-2008
Tabled Senate16-Jun-2008
Date of repeal 19 Mar 2014
Repealed by Defence (Spent and Redundant Instruments) Repeal Regulation 2014

Australian Military Court Amendment Rules 2008 (No. 1)1

Select Legislative Instrument 2008 No. 100

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

Dated 30 May 2008

 

 

I. D. WESTWOOD


1              Name of Rules

                These Rules are the Australian Military Court Amendment Rules 2008 (No. 1).

2              Commencement

                These Rules commence on the day after they are registered.

3              Amendment of Australian Military Court Rules 2007

                Schedule 1 amends the Australian Military Court Rules 2007.


Schedule 1        Amendments

(regulation 3)

  

[1]           Rule 4, after definition of defending officer

insert

PMKeyS database means the database maintained by the Department of Defence:

                (a)    containing names and service particulars of members of the Defence Force; and

               (b)    used by the Registrar for the purpose of selecting potential military jurors and reserve military jurors.

[2]           Rule 4, first note

omit

Note

substitute

Note 1

[3]           Rule 4, second note

substitute

Note 2   The following terms are defined in the Act:

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

(b)   Australian Military Court — section 114;

(c)   legal officer — subsection 3 (1);

(d)   Military Judge — subsection 3 (1);

(e)   Reserves — subsection 3 (1);

(f)    service police officer — subsection 3 (1).

[4]           Paragraph 10 (2) (j)

omit

proceedings.

insert

proceedings;

[5]           After paragraph 10 (2) (j)

insert

               (k)    the process for the appointment and administration of military juries.

[6]           After subrule 12 (1)

insert

      (1A)   The Registrar must set a date for, and conduct, a case management conference in accordance with any practice notes made for this purpose.

[7]           Rule 24

substitute

24            Election by accused person

         (1)   An election in relation to the mode of trial may be made only:

                (a)    in writing by the accused person; or

               (b)    with the leave of a Military Judge, orally by the accused person.

         (2)   An election under subrule (1) must be made:

                (a)    within the time fixed by paragraph 23 (2) (a); and

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

         (3)   A Military Judge must not grant leave to the accused person to make an election under paragraph (1) (b) unless satisfied that the accused person understands the nature and effect of the election.

         (4)   An election under paragraph (1) (b) must form part of the record of proceedings.

Note   Proceedings are recorded in accordance with rule 64.

24A         Withdrawal, change or making of election by accused person

         (1)   An accused person may, with the leave of a Military Judge:

                (a)    withdraw an election made under rule 24; or

               (b)    change an election made under rule 24; or

                (c)    if the accused person did not make an election in accordance with rule 24 — make an election.

         (2)   In deciding whether to grant leave to the accused person to withdraw an election, change an election or make an election in accordance with rule 24, a Military Judge must have regard to the following:

                (a)    whether the withdrawal of election, change of election, or election is likely to result in a delay in the conduct of the trial;

               (b)    whether the accused person has previously withdrawn or changed an election;

                (c)    whether the accused person received legal advice prior to making an election or prior to deciding not to make an election;

               (d)    any other matter the Military Judge considers relevant.

24B         Revocation of election by accused person — multiple trials

         (1)   An election by an accused person in relation to the mode of trial is taken to be revoked if:

                (a)    an order is made for charges against the accused person to be tried separately; or

               (b)    an order is made for jointly charged accused persons to be tried separately.

         (2)   If an election is taken to be revoked under subrule (1), an accused person may, as soon as practicable:

                (a)    make a fresh election in relation to any charge or charges the subject of the order; or

               (b)    decide to make no election in relation to any charge or charges the subject of the order.

         (3)   If an accused person does not make an election or decision mentioned in subrule (2), the Registrar must issue a fresh notice to the accused person in accordance with rule 23, in relation to any charge or charges the subject of the order.

[8]           Paragraph 25 (1) (d)

omit

, and after a case management conference has been held

[9]           Subrule 25 (1)

omit

subrule (2).

insert

subrule (3).

[10]         Paragraph 25 (4) (a)

omit

paragraph (3) (c); or

insert

paragraph (3) (e); or

[11]         Rule 33

substitute

33            Registrar to select, screen and appoint military jurors and reserve military jurors

         (1)   Subject to subrule (2), the Registrar must cause the random selection, screening and appointment of military jurors and reserve military jurors in accordance with this Part.

         (2)   If the Registrar believes that due to the particular circumstances of a military trial it is not reasonably practicable to select and appoint a military jury in accordance with this Part, the Registrar must:

                (a)    notify the Military Judge appointed to try the matter; and

               (b)    if the Military Judge makes a determination under subrule 33C (1) — select and appoint a military jury from the classes of persons determined by the Military Judge.

[12]         After rule 33

insert

33A         Validity of constitution of military jury

         (1)   Non‑compliance with a requirement of this Part about:

                (a)    the liability of persons to serve as members of a military jury; or

               (b)    the selection, screening and appointment of persons to serve as military jurors or reserve military jurors; or

                (c)    the disqualification, exemption or excusal of persons from serving as members of a military jury;

does not make the constitution of a military jury invalid.

         (2)   Subrule (1) does not apply if the accused person made an objection to the non‑compliance prior to the commencement of the trial.

33B         Liability to serve as member of military jury

                A person is liable to serve as a member of a military jury if that person:

                (a)    unless special circumstances as mentioned in rule 33C exist, is:

                          (i)    a member of the Permanent Navy, the Regular Army or the Permanent Air Force; or

                         (ii)    a member of the Reserves who is rendering continuous full‑time service; and

               (b)    meets the eligibility requirements in the Act; and

                (c)    is not disqualified from serving as a member of a military jury; and

               (d)    is not exempt from serving as a member of a military jury.

33C         Liability to serve as member of military jury — special circumstances

         (1)   In special circumstances, a Military Judge may determine that:

                (a)    in addition to the persons mentioned in paragraph 33B (a) — members of the Naval Reserve, the Army Reserve and the Air Force Reserve are liable to serve as members of a military jury; or

               (b)    only certain persons mentioned in rule 33B are liable to serve as members of a military jury; or

                (c)    only certain persons mentioned in rule 33B and paragraph (1) (a) are liable to serve as members of a military jury.

Note   The Military Judge may, for instance, determine that only persons serving in a particular geographic area outside Australia are liable to serve on a particular military jury.

         (2)   For the purpose of this rule, special circumstances exist if the Military Judge is satisfied that due to the particular circumstances of a military trial, it is not reasonably practicable to select a military jury from the persons mentioned in paragraph 33B (a) for the trial.

         (3)   Before making a decision mentioned in subrule (2), the Military Judge must consider submissions from the accused person and the Director of Military Prosecutions.

33D         Persons disqualified from serving on military jury

                A member of the Defence Force is disqualified from serving as a member of a military jury if:

                (a)    the member has been convicted of a service offence by a court martial, Defence Force magistrate or the Australian Military Court; and

               (b)    the sentence imposed for that conviction included a punishment more severe than the imposition of a fine.

33E         Persons exempt from serving on military jury

         (1)   The following persons are exempt from serving as a member of a military jury:

                (a)    the Chief of the Defence Force;

               (b)    legal officers;

                (c)    chaplains;

               (d)    service police officers;

                (e)    warrant officers who are members of a police corps or service.

Note 1   A legal officer means an officer who is a legal practitioner — see subsection 3 (1) of the Act.

Note 2   A service police officer means an officer who is a member of a police corps or service, and includes a provost marshal and a deputy provost marshal — see subsection 3 (1) of the Act.

         (2)   A person is exempt from serving as a member of a military jury if the military trial is to be held in Australia, and at the time that the military jury is selected the Registrar is satisfied that:

                (a)    the person will be posted or deployed in a country other than Australia during the anticipated period of the military trial; or

               (b)    the person will be serving on a ship that will be away from its home port during the anticipated period of the military trial.

         (3)   Subrule (2) applies only if, and to the extent that, the exigencies of service permit.

33F         Director of Military Prosecutions to disclose information to Registrar to assist in random selection, screening and appointment of military jurors and reserve military jurors

         (1)   The Director of Military Prosecutions must disclose sufficient information to the Registrar to enable the Registrar to randomly select, screen and appoint members of a military jury in accordance with the requirements of the Act and these Rules.

         (2)   The information must 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.

33G         Registrar to randomly select potential military jurors

         (1)   The Registrar must cause the names of potential military jurors to be randomly selected from the PMKeyS database.

         (2)   The selection may be made:

                (a)    by a computer programmed to make a random selection of names from the PMKeyS database; or

               (b)    by another method capable of producing a random selection of names from the PMKeyS database.

Note   In making the selection mentioned in subrule (1), the Registrar must comply with the requirements relating to the composition of a military jury in sections 122 and 123 of the Act.

33H         Registrar to randomly select potential reserve military jurors

         (1)   The Registrar must, by the same method mentioned in rule 33G, cause the random selection of an adequate number of potential reserve military jurors for a military trial.

         (2)   In determining an adequate number of reserve military jurors required for a military trial, the Registrar must have regard to the circumstances of the trial for which the military jury will be appointed.

         (3)   The Registrar must ensure that at least one person randomly selected as a potential reserve military juror meets the requirement in subsection 122 (2) of the Act.

Note   Subsection 122 (2) of the Act requires that at least one member of a military jury must hold a rank that is not lower than the naval rank of commander or the rank of lieutenant‑colonel or wing commander.

         (4)   Subrule (3) does not apply if:

                (a)    more than one person selected under subrule 33G (1) meets the requirement in subsection 122 (2) of the Act and are liable to serve as members of a military jury; or

               (b)    the requirements of subsection 122 (2) of the Act do not apply.

Note   Subsection 122 (3) of the Act provides that the requirements of subsection 122 (2) apply only if, and to the extent that, the exigencies of service permit.

33I           Registrar to screen potential military jurors and reserve military jurors

         (1)   Before appointing a person as a military juror or a reserve military juror under subrule 35 (2), the Registrar must screen, or cause another person (the other person) to screen, each potential military juror and reserve military juror.

         (2)   In screening a person as a potential military juror or reserve military juror:

                (a)    the Registrar or other person may:

                          (i)    contact the person to be screened; and

                         (ii)    question that person; and

               (b)    the Registrar may:

                          (i)    determine whether the person meets the eligibility requirements in the Act; and

                         (ii)    determine whether the person is disqualified from serving on a military jury; and

                         (iii)    determine whether the person is exempt from serving on a military jury; and

                        (iv)    deal with any applications from the person to be excused from serving as a member of a military jury; and

                         (v)    determine if the person is biased, likely to be biased, or likely to be thought on reasonable grounds to be biased.

         (4)   The screening process must be conducted in accordance with any procedures made by the Registrar for the purpose of this rule.

         (5)   The Registrar may make procedures for the purpose of these Rules, and must make any procedures available to the public.

33J         Biased persons not to be appointed to military jury

                Under subrule 35 (2), 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 is biased, likely to be biased, or likely to be thought on reasonable grounds to be biased.

33K         Registrar to decide whether to excuse a potential military juror or reserve military juror — before summons

         (1)   The Registrar may excuse a person from serving on a military jury or from acting as a reserve military juror:

                (a)    upon consideration of an application from that person; or

               (b)    at the Registrar’s discretion.

         (2)   In deciding whether to excuse a person from serving on a military jury or from acting as a reserve military juror, the Registrar must have regard to the following:

                (a)    whether, at the anticipated commencement of the military trial, the person is likely to have separated from the service or to have ceased continuous full-time service;

               (b)    whether the military jury service would result in substantial financial hardship to the person;

                (c)    whether the military jury service would result in substantial hardship to the person or a member of the person’s family;

               (d)    the person’s state of health;

                (e)    whether the military jury service would:

                          (i)    materially affect the operational effectiveness of the person’s unit, ship or base; or

                         (ii)    materially affect the operational deployment or proposed operational deployment of the person; or

                         (iii)    materially affect a substantial training commitment of the person; or

                        (iv)    affect the ability of the person to take recreational or other leave that has already been approved;

                (f)    whether the person has served as a member of another military jury in the 12-month period prior to the anticipated commencement of the military trial;

                (g)    any other matters stated in a practice note issued for the purposes of this rule.

[13]         Rule 35

substitute

35            Registrar to appoint military jurors and reserve military jurors by summons

         (1)   The Registrar may appoint military jurors and reserve military jurors to a military jury only after undertaking the screening process mentioned in rule 33I.

         (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 military jury duty.

[14]         Rule 36

substitute

36            Application by military juror for withdrawal of summons

         (1)   If a person has been served with a summons and has informed the Registrar that he or she is not liable to serve on the military jury, or ought to be excused from serving on the military jury, the Registrar may:

                (a)    if the Registrar is satisfied that the person is not liable to serve as a military juror or should be excused from military jury service — withdraw the summons; or

               (b)    refuse to withdraw the summons.

         (2)   If the Registrar has refused to withdraw a summons under subrule (1), the military juror may apply in writing to a Military Judge for a review of the decision.

         (3)   If the Military Judge decides that the person is not liable to serve as a military juror or should be excused:

                (a)    the summons issued to the military juror is taken to be withdrawn; and

               (b)    the Registrar must appoint a reserve military juror to the military jury.

36A         Obligation to exchange information about military jurors and reserve military jurors who may be unsuitable

                If a party to a military trial obtains information about a person appointed as a military juror or reserve military juror that may indicate that the person is unsuitable to serve as a juror at the trial, that party must disclose that information to the Registrar and the other party to the proceedings as soon as practicable.

36B         Registrar to make results of screening process available

                If requested by a party to a military trial, the Registrar must make the results of the screening process mentioned in rule 33I available to each party.

[15]         Subrule 42 (1)

omit everything before paragraph (a), insert

         (1)   The Registrar must issue a listing notice in accordance with this rule and any practice notes made for this purpose if:

[16]         Subparagraph 42 (1) (c) (iii)

omit

election; and

insert

election.

[17]         Paragraph 42 (1) (d) 

omit

[18]         Subrule 42 (2)

substitute

         (2)   For a military jury trial, the listing notice must be accompanied by a list containing the name, rank and service number of the military jurors appointed.

[19]         Paragraph 42 (5) (e)

omit

officer.

insert

officer; and

[20]         After paragraph 42 (5) (e)

insert

                (f)    the Director of Defence Counsel Services.

[21]         Subrule 46 (6)

substitute

         (6)   A Military Judge may question a military juror on oath or affirmation, in the absence of the other military jurors, to determine whether the military juror is biased, likely to be biased, or likely to be thought on reasonable grounds to be biased.

         (7)   With the leave of the Military Judge, the prosecuting officer and the defending officer may question a military juror on oath or affirmation, in the absence of the other military jurors, about the matters referred to in subsection (6).

[22]         After rule 48

insert

48A         Military jury permitted to separate during the trial

                Unless the Military Judge orders otherwise, a military jury is permitted to separate at any time before they retire to consider their verdict.

[23]         After subrule 58 (5)

insert

      (5A)   The Military Judge may permit the military jury to separate at any time after they retire to consider their verdict.

      (5B)   The Military Judge may refuse to allow an exhibit to be left with military jurors after they retire to consider a verdict if satisfied that the safety or security of the exhibit or the military jurors may be put at risk.

      (5C)   If the Military Judge considers it appropriate, the Military Judge may give a direction of law to the military jury in writing.

      (5D)   If the Military Judge considers it appropriate and practicable to do so, the Military Judge may, at the request of the military jury, arrange for a copy of all or any part of the transcript of evidence at the trial to be supplied to the members of the military jury.

[24]         After rule 58

insert

58A         Questioning of military juror — exposure to prejudicial material

         (1)   A Military Judge may question a military juror on oath or affirmation, in the absence of the other military jurors, to determine:

                (a)    whether the military juror has read, seen or heard allegedly prejudicial material published or broadcast during the military trial; and

               (b)    whether the military juror has been influenced by the material.

         (2)   With the leave of the Military Judge, the prosecuting officer and the defending officer may question a military juror on oath or affirmation, in the absence of the other military jurors, about the matters referred to in subsection (1).

58B         Questioning of military juror — improper inquiries about trial matters

         (1)   A Military Judge may question a military juror on oath or affirmation, in the absence of the other military jurors, to determine whether the military juror has made any inquiry for the purpose of obtaining information about the accused person, or any matters relevant to the trial, other than in the proper exercise of his or her functions as military juror.

         (2)   With the leave of the Military Judge, the prosecuting officer and the defending officer may question a military jury on oath or affirmation, in the absence of the other military jurors, about the matters referred to in subsection (1).

         (3)   For the purpose of this rule, making an inquiry includes the following:

                (a)    asking a question of any person;

               (b)    conducting any research, for example, by searching an electronic database for information (such as by using the Internet);

                (c)    viewing or inspecting any place or object;

               (d)    conducting an experiment;

                (e)    causing someone else to make an inquiry.


Note

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