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SLI 2008 No. 197 Rules/Court & Tribunal Rules as made
These Rules amend the Australian Military Court Rules 2007 (the Rules) to provide the practice and procedures for appeals and applications for an extension of time to appeal to the Australian Military Court. These Rules also reflect amendments to the Defence Force Discipline Act 1982, which commence on 20 September 2008 and also expand the definitions applied in the Rules, provide scope for the court to provide relief from the Rules and amend Schedule 1.
Administered by: Defence
Registered 19 Sep 2008
Tabling HistoryDate
Tabled HR22-Sep-2008
Tabled Senate22-Sep-2008
Date of repeal 19 Mar 2014
Repealed by Defence (Spent and Redundant Instruments) Repeal Regulation 2014

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Australian Military Court Amendment Rules 2008 (No. 3)1

Select Legislative Instrument 2008 No. 197

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

Dated 17 September 2008

 

 

IAN DENIS WESTWOOD


1              Name of Rules

                These Rules are the Australian Military Court Amendment Rules 2008 (No. 3).

2              Commencement

                These Rules commence on the commencement of Schedules 1 to 6 of the Defence Legislation Amendment Act 2008.

Note   Schedules 1 to 6 of the Defence Legislation Amendment Act 2008 commence on 20 September 2008.

3              Amendment of Australian Military Court Rules 2007

                Schedule 1 amends the Australian Military Court Rules 2007.


Schedule 1        Amendments

(rule 3)

  

[1]           Rule 4, definition of defending officer

substitute

defending officer means a person who is instructed by an accused person or a convicted person to represent the accused person or convicted person before the Australian Military Court and is entitled to do so under section 136 of the Act.

[2]           Rule 4, note 2, after paragraph (b)

insert

(ba)    commanding officer — section 5;

[3]           Rule 4, note 2, paragraph (f)

substitute

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

(g)   summary authority — subsection 3 (1).

[4]           Subrule 12 (1)

omit

Australian Military Court

insert

the Australian Military Court, an application for an extension of time to appeal to the Australian Military Court, or an appeal to the Australian Military Court

[5]           Paragraph 30 (1) (b)

substitute

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

                (c)    in the hearing of an appeal to the Australian Military Court, if the Court considers that it must receive and consider new evidence under section 163 of the Act — the Military Judge determines the appeal;

[6]           After subrule 30 (4)

insert

      (4A)   In the hearing of an appeal to the Australian Military Court, if the Court has decided under subsection 163 (1) of the Act that new evidence must be received and considered, the Military Judge:

                (a)    may call a witness or recall a witness at any time before determining the appeal; and

               (b)    may recall a witness already heard in the appeal if, in the opinion of the Military Judge, it is in the interests of justice to do so.

[7]           Rule 42, heading

substitute

42            Listing a hearing — trials

[8]           Paragraph 42 (1) (a)

substitute

                (a)    the Registrar refers a charge to the Australian Military Court under subsection 118 (1) of the Act; and

[9]           After rule 42

insert in Part 10

42A         Listing a hearing — appeals from summary authorities

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

                (a)    either:

                          (i)    an application for an extension of time to appeal has been lodged under paragraph 161 (2) (b) of the Act; or

                         (ii)    an appeal has been lodged under subsection 161 (1) of the Act; and

               (b)    the Australian Military Court has decided that the application for an extension of time to appeal, or the appeal, is to be determined by the holding of a hearing; and

                (c)    the Chief Military Judge has nominated a Military Judge to hear the application or appeal.

         (2)   A listing notice must fix, or provide for the fixing of, the date, time and place for the hearing of the application or appeal.

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

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

                (a)    the Military Judge nominated to hear the application or appeal; and

               (b)    the person who made the application or lodged the appeal; and

                (c)    the person’s superior authority (if any); and

               (d)    the person’s defending officer; and

                (e)    the Director of Military Prosecutions; and

                (f)    the Director of Defence Counsel Services.

[10]         After subrule 43 (2)

insert

      (2A)   If a recorder or an interpreter is required during the hearing of an appeal, or an application for an extension of time to appeal, the provisions of subrule 43 (2) apply in relation to those hearings.

[11]         Subrule 62 (1)

after

trial

insert

, a hearing of an appeal, or a hearing of an application for an extension of time to appeal,

[12]         Rule 64, heading

substitute

64            Record of proceedings before Australian Military Court — trials

[13]         Subrule 64 (1)

after

Australian Military Court

insert

in a trial

[14]         After rule 64

insert

64A         Record of proceedings before Australian Military Court — appeals from summary authorities

         (1)   The proceedings before the Australian Military Court in:

                (a)    an application for an extension of time to appeal; or

               (b)    an appeal;

must, if practicable, be recorded verbatim.

         (2)   If the proceedings 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.

         (3)   If the proceedings are recorded verbatim, the recorder must ensure that a transcript is prepared 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 determination of the application or appeal.

[15]         After Part 14

insert

Part 14A             Appeals from conviction by summary authority

Division 1              Notices etc relating to appeals

68A         Lodgment of notice of appeal etc

         (1)   For paragraph 161 (2) (b) of the Act, the following persons are prescribed:

                (a)    the commanding officer of the convicted person;

               (b)    if a convicted person is serving a period of detention — the Commandant of the Defence Force Corrective Establishment.

         (2)   An application to the Australian Military Court for an extension of time to appeal must be:

                (a)    signed by the convicted person; and

               (b)    lodged with the Court in a form required by any practice notes made for this purpose.

         (3)   An application to the Australian Military Court for an extension of time to appeal must be accompanied by a notice of appeal signed by the convicted person.

         (4)   A notice of appeal to the Australian Military Court must be lodged with the Court in a form required by any practice notes made for this purpose.

68B         Notification of appeal or application for extension of time to appeal

         (1)   If a person lodges an application to the Australian Military Court for an extension of time to appeal, the Registrar must give a copy of the application to:

                (a)    the Chief Military Judge; and

               (b)    the Director of Military Prosecutions; and

                (c)    the summary authority who convicted the person; and

               (d)    the Director of Defence Counsel Services.

         (2)   If a person lodges a notice of appeal to the Australian Military Court, the Registrar must give a copy of the notice to:

                (a)    the Chief Military Judge; and

               (b)    the Director of Military Prosecutions; and

                (c)    the summary authority who convicted the person; and

               (d)    the Director of Defence Counsel Services.

68C         Discontinuance of appeal

         (1)   A person may discontinue an application for an extension of time to appeal or an appeal.

         (2)   The person must lodge a notice of discontinuance with the Registrar.

         (3)   The notice of discontinuance must be lodged with the Court in a form required by any practice notes made for this purpose.

         (4)   If the convicted person lodges a notice of discontinuance, the appeal is taken to have been determined against the convicted person.

68D         Decision on application for extension of time to appeal

         (1)   For subparagraph 161 (2) (b) (ii) of the Act, a Military Judge must have regard to the following matters in deciding whether to allow a person an extension of time to appeal to the Australian Military Court:

                (a)    whether the person received legal advice in connection with the person’s right of appeal to the Court;

               (b)    if the person received legal advice of that kind — when the person received the legal advice;

                (c)    any other matter the Military Judge considers relevant to the application.

         (2)   The Military Judge may give directions about how the application is to be determined.

         (3)   After the Military Judge makes a decision on the application:

                (a)    the Military Judge must give the Registrar a copy of the decision and the reasons for the decision; and

               (b)    the Registrar must give a copy of the decision, and the reasons for the decision, to:

                          (i)    the convicted person; and

                         (ii)    the convicted person’s defending officer; and

                         (iii)    the summary authority who convicted the person; and

                        (iv)    the Director of Military Prosecutions; and

                         (v)    the Director of Defence Counsel Services.

         (4)   If the Military Judge grants the application, then, for section 176 of the Act, the convicted person is taken to have lodged an appeal with the Australian Military Court on the date the application is granted.

68E         Information relating to appeal

         (1)   The commanding officer of the convicted person who has lodged the appeal or application for an extension of time to appeal must give the Registrar a certified copy of the following:

                (a)    the record of the proceedings of the summary authority who convicted the person, including the record of evidence received by the summary authority;

               (b)    the conduct record of the convicted person;

                (c)    the evidence, including any object or thing received by the summary authority as real evidence for the purposes of the matter;

               (d)    any documents received from a reviewing authority, including any notice recommending or relating to an appeal;

                (e)    any other documents relating to the proceedings.

         (2)   The commanding officer must give the information within 14 days of a request by the Registrar to provide the information.

Division 2              Conduct of appeal

68F         How appeal is conducted

         (1)   The Military Judge nominated to determine an appeal may give directions about how the appeal is to be conducted.

Examples

1   Conducting the appeal on the papers.

2   The acceptance of submissions by audio or video means.

         (2)   The Military Judge must have regard to any practice notes made for this purpose before giving a direction.

68G         Amended grounds of appeal

         (1)   In the determination of an appeal the convicted person is not limited to the grounds set out in the notice of appeal but, if a new ground of appeal is raised, the Military Judge may:

                (a)    adjourn the determination of the appeal; and

               (b)    give directions relating to the new ground of appeal, including directions relating to submissions about the new ground of appeal.

         (2)   Subrule (1) applies whether or not the convicted person has notified the Registrar or the Director of Military Prosecutions of the proposed ground of appeal.

         (3)   The convicted person must lodge any amended grounds of appeal:

                (a)    if the Military Judge makes directions about the time allowed — within that time; or

               (b)    if the Military Judge does not make directions about the time allowed — before the appeal is determined.

68H         New evidence

                New evidence for the purposes of an appeal must be given by affidavit unless the Military Judge who will determine the appeal directs otherwise.

Note   The Court must receive and consider new evidence if the evidence satisfies the requirements of subsection 163 (1) of the Act.

68I           Report by summary authority

         (1)   If a Military Judge directs a summary authority to give the Registrar a written report about the summary authority proceedings to which the appeal relates, the summary authority must comply with the direction.

         (2)   If the Military Judge directs the summary authority to include in the report comment about a specified aspect of the summary authority proceedings, the summary authority must comply with the direction.

         (3)   The summary authority must give the report within the period directed by the Military Judge.

         (4)   The Registrar must as soon as practicable after receiving the report, give a copy of the report to:

                (a)    the convicted person; and

               (b)    the convicted person’s defending officer; and

                (c)    the Director of Military Prosecutions.

Division 3              Decision on appeal

68J         Determination of appeal

         (1)   A Military Judge may determine an appeal in favour of a convicted person on grounds that were not set out in the notice of appeal or that were not argued by the convicted person.

         (2)   If:

                (a)    the convicted person fails to comply with a direction given by the Military Judge; and

               (b)    the Military Judge is satisfied that it would not be unjust to proceed with the determination of the appeal in the absence of compliance with the direction;

the Military Judge may determine the appeal on the basis of the material then before the Court.

68K         Reasons for decision

                After a Military Judge determines an appeal:

                (a)    the Military Judge must give the Registrar a copy of the decision and the reasons for the decision; and

               (b)    the Registrar must give a copy of the decision, and the reasons for the decision, to:

                          (i)    the convicted person; and

                         (ii)    the convicted person’s defending officer; and

                         (iii)    the summary authority who convicted the person; and

                        (iv)    the Director of Military Prosecutions; and

                         (v)    the Director of Defence Counsel Services.

68L         New trial

         (1)   If:

                (a)    the Australian Military Court orders a new trial of a person under section 165 of the Act; and

               (b)    the Director of Military Prosecutions requests the Registrar, under subsection 103 (2A) of the Act, to refer the charge to the Australian Military Court for trial;

the charge is to be dealt with in accordance with the Act and these Rules.

Note   Section 118 of the Act provides for the referral of a charge to the Australian Military Court and the nomination of a Military Judge to hear the charge.

         (2)   Subrule (1) does not limit the power of the Director of Military Prosecutions to act under section 103A of the Act.

[16]         After Rule 70

insert

71            Lodging or giving documents to Australian Military Court or Registrar

         (1)   This rule applies to a document that is authorised or required by these Rules to be lodged with or otherwise given to the Australian Military Court or the Registrar.

         (2)   The document may be lodged or given:

                (a)    by personally delivering the document to the Registrar; or

               (b)    by posting the document to the address mentioned in subrule (9); or

                (c)    by fax to the fax number mentioned in subrule (9); or

               (d)    by email to the address mentioned in subrule (9).

         (3)   If the document is:

                (a)    an affidavit; and

               (b)    lodged or given by email;

it must be lodged or given by sending an image of the completed and signed affidavit as an attachment to the email.

         (4)   If the document:

                (a)    is not an affidavit; and

               (b)    is required by these Rules to be signed;

the document is taken to have been duly signed if the person’s name is printed where his or her signature would otherwise appear.

         (5)   If the document is lodged or given by personal delivery to the Registrar, the document is taken to be lodged or given at the time of delivery of the document.

         (6)   If the document is lodged or given by post, the document is taken to be lodged or given at the time when it is received at the appropriate address for these Rules.    

         (7)   If the document is lodged or given by fax:

                (a)    the document is taken to be lodged or given on successful completion of the transmission; and

               (b)    the person lodging or giving the document must:

                          (i)    retain the original of the document; and

                         (ii)    retain a paper copy of the receipt or delivery notice of the fax; and

                         (iii)    produce the original document or the receipt or delivery notice as directed by the Australian Military Court.

         (8)   If the document is lodged or given by email:

                (a)    the document must be lodged or given in Portable Document Format, or another format approved by the Chief Military Judge; and

               (b)    the document must, to the extent practicable, be in a form which complies with these Rules; and

                (c)    the document must be capable of being printed with the content and in the form in which it was created; and

               (d)    the document is taken to be lodged or given at the time of receipt of the email; and

                (e)    the person lodging or giving the document must:

                          (i)    retain a paper copy of the receipt or delivery notice of the email; and

                         (ii)    retain a paper copy of the document; and

                         (iii)    produce the copy of the document as directed by the Australian Military Court.

Note   The Chief Military Judge may approve another format in a practice note issued under rule 69.

         (9)   The Registrar must approve:

                (a)    1 or more postal addresses for the purpose of receiving documents under these Rules; and

               (b)    1 or more fax numbers for the purpose of receiving documents under these Rules; and

                (c)    1 or more email addresses for the purpose of receiving documents under these Rules.

       (10)   For paragraph (9) (a), the address of the Registrar for internal departmental mail is taken to be an approved address.

72            Lodging or giving documents to person other than Australian Military Court or Registrar

         (1)   This rule applies to a document that is authorised or required by these Rules to be lodged with or otherwise given to a person other than the Australian Military Court or the Registrar.

         (2)   The document may be lodged or given:

                (a)    by personally delivering the document to the person; or

               (b)    by posting the document to the address given by the person for the purpose of receiving the document; or

                (c)    by fax to the fax number given by the person for the purpose of receiving the document; or

               (d)    by email to the address given by the person for the purpose of receiving the document.

         (3)   A postal address, fax number or email address given by a convicted person in:

                (a)    a notice of appeal; or

               (b)    an application to extend time to appeal;

is taken to be a postal address, fax number or email address for subrule (2) unless the convicted person gives another address or number for the purpose of receiving the document.

         (4)   A postal address, fax number or email address of a member of the Defence Force who is not a convicted person that is the member’s usual address at their unit, ship, base or command is taken to be a postal address, fax number or email address for subrule (2) unless the member gives another address or number for the purpose of receiving the document.

         (5)   If the document is:

                (a)    an affidavit; and

               (b)    lodged or given by email;

it must be lodged or given by sending an image of the completed and signed affidavit as an attachment to the email.

         (6)   If the document:

                (a)    is not an affidavit; and

               (b)    is required by these Rules to be signed;

the document is taken to have been duly signed if the person’s name is printed where his or her signature would otherwise appear.

         (7)   If the document is lodged or given by personal delivery to the person, the document is taken to be lodged or given at the time of delivery of the document.

         (8)   If the document is lodged or given by post, the document is taken to be lodged or given at the time when it is received at the appropriate address for these Rules.    

         (9)   If the document is lodged or given by fax:

                (a)    the document is taken to be lodged or given on completion of the transmission; and

               (b)    the person lodging or giving the document must:

                          (i)    retain the original of the document; and

                         (ii)    retain a paper copy of the receipt or delivery notice of the fax; and

                         (iii)    produce the original document or the receipt or delivery notice as directed by the Australian Military Court.

       (10)   If the document is lodged or given by email:

                (a)    the document must be lodged or given in Portable Document Format, or another format approved by the Chief Military Judge; and

               (b)    the document must, to the extent practicable, be in a form which complies with these Rules; and

                (c)    the document must be capable of being printed with the content and in the form in which it was created; and

               (d)    the document is taken to be lodged or given at the time of receipt of the email; and

                (e)    the person lodging or giving the document must:

                          (i)    request a receipt or delivery notice for the email; and

                         (ii)    retain a paper copy of the document and the receipt or delivery notice; and

                         (iii)    produce the copy of the document or the receipt or delivery notice as directed by the Australian Military Court.

Note   The Chief Military Judge may approve another format in a practice note issued under rule 69.

73            Relief from Rules

                The Australian Military Court may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance arises.

74            Proceedings wanting or in doubt

         (1)   If a person wishes to take a step in a proceeding, and:

                (a)    the manner or form of procedure is not prescribed by the Act or these Rules; or

               (b)    the person is in doubt as to the manner or form of procedure;

the Australian Military Court may give directions.

         (2)   A step taken in accordance with the directions of the Court is taken to be regular and sufficient.

[17]         Schedule 1, Part 1, items 129 to 133

substitute

129

subsection 59 (1)

(Selling) (dealing) (trafficking) in a prohibited drug outside Australia

130

subsection 59 (3)

Possession of a prohibited drug outside Australia

131

subsection 59 (5)

Self administering a prohibited drug outside Australia

132

subsection 59 (6)

Using a prohibited drug

133

subsection 59 (7)

Possession of a prohibited drug in Australia


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.