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Court Martial and Defence Force Magistrate Rules

Authoritative Version
  • - F2009L04030
  • In force - Superseded Version
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SLI 2009 No. 296 Rules/Other as made
These Rules replace the Australian Military Court Rules 2007 for all matters initiated after 23 October 2009 to reflect the amendments to the Defence Force Discipline Act 1982 (the Act) by the Military Justice (Interim Measures) Act No. 1 2009 and the Military Justice (Interim Measures) Act No. 2 2009. The Rules reflect the changes to the Act with regard to terminology and the consequential changes due to the re-introduction of the system of courts martial and trials by Defence Force magistrate.
Administered by: Defence
Made 23 Oct 2009
Registered 28 Oct 2009
Tabled HR 29 Oct 2009
Tabled Senate 29 Oct 2009

Court Martial and Defence Force Magistrate Rules1

Select Legislative Instrument 2009 No. 296

I, RICHARD ROSS SINCLAIR TRACEY RFD, Acting Judge Advocate General, make the following Rules under section 149A of the Defence Force Discipline Act 1982.

Dated 23 October 2009

RICHARD ROSS SINCLAIR TRACEY


Contents

Part 1                    Preliminary

                        1     Name of Rules                                                                 5

                        2     Commencement                                                              5

                        3     Interpretation                                                                   5

                        4     Cases not covered by the Act, these Rules or the regulations 6

                        5     Summons to accused person                                           6

                        6     Service of summons                                                         6

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

Part 2                    Charge sheets and charges

                        8     Charge sheets                                                                 8

                        9     Charges                                                                          9

                       10     How charges to be construed                                            9

                       11     Amendment of charge sheets by judge advocate or Defence Force magistrate  9

                       12     Withdrawal of charge                                                      10

Part 3                    Witnesses

                       13     Securing appearance of witness on behalf of accused person  11

                       14     Director of Military Prosecutions to notify accused person of evidence or intention not to call witness at trial by court martial or Defence Force magistrate          11

                       15     Exclusion of witness from court                                       12

                       16     Examination of witness                                                   13

                       17     Calling and recalling witnesses                                        14

                       18     Witness to reply forthwith                                               15

                       19     Expenses for witnesses                                                  15

Part 4                    Registrar

                       20     Registrar may liaise with certain persons                         16

                       21     Registrar may consult with services about conduct of proceedings       16

                       22     Registrar may consult with services about administrative support for trial proceedings   17

                       23     Order referring charge or case to Defence Force magistrate 17

                       24     Registrar to provide certain documents                             18

                       25     Inspection of exhibits before trial                                      18

Part 5                    Courts martial

                       26     Functions of President                                                    19

                       27     Functions of judge advocate                                            19

                       28     Manner of voting of court martial                                      20

                       29     Objections to members of court martial                            20

                       30     Swearing of court martial                                                20

Part 6                    Defence Force magistrate

                       31     Functions of Defence Force magistrate                            21

Part 7                    Trial provisions

                       32     Employment of, objections to, and swearing of recorders and interpreters         22

                       33     Administration of oaths and affirmations                           23

                       34     Application by accused person or prosecuting officer for adjournment of proceedings     23

                       35     Right of accused person and prosecuting officer to argue and adduce evidence on matter to be decided                                                                         23

                       36     Pleading to charges and arraignment                               23

                       37     Opening address by prosecution                                     24

                       38     Judge advocate or Defence Force magistrate may direct substitution of plea of not guilty           24

                       39     Submission of no case to answer                                    25

                       40     Opening address by defence                                           25

                       41     Closing addresses                                                         25

                       42     Summing up                                                                  25

                       43     Evidence as to material facts after conviction on plea of guilty 26

                       44     Convicted person’s record etc and plea in mitigation          26

Part 8                    Procedure for imposing punishment in case of breach of undertaking to be of good behaviour

                       45     Application                                                                    27

                       46     Evidence as to material facts, convicted person’s record etc and plea in mitigation        27

Part 9                    Record of proceedings and exhibits

                       47     Record of proceedings before court martial or Defence Force magistrate          28

                       48     Inspection of record of proceedings etc during trial            29

                       49     Loss of original record of proceedings                              29

                       50     Exhibits                                                                        29

                       51     Relief from Rules                                                            30

Schedule 1             Statement of offences                                                  31

Part 1                      Offences against Defence Force Discipline Act 1982         31

Part 2                      Offences against Defence Force Discipline Regulations 1985  38

Part 3                      Offences against Criminal Code                                       38

Schedule 2             Form of charge sheet                                                  39

 

 


 

 

Part 1                 Preliminary

  

1              Name of Rules

                These Rules are the Court Martial and Defence Force Magistrate Rules.

2              Commencement

                These Rules commence on 23 October 2009.

3              Interpretation

                In these Rules, unless the contrary intention appears:

arraign, in relation to an accused person at a trial by a court martial or Defence Force magistrate, means reading a charge to the person, calling upon the person to plead to the charge and recording the person’s plea to the charge.

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

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

serious service offence has the same meaning as in Part VI of the Act.

4              Cases not covered by the Act, these Rules or the regulations

                Where, in the course of or in relation to proceedings before a court martial, a judge advocate of a court martial or Defence Force magistrate, a case arises for which no provision or insufficient provision is made by the Act, these Rules or any regulations made under 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 shall be adopted; or

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

5              Summons to accused person

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

                (a)    the name of the accused person; and

               (b)    the purpose for which the person is required to appear before the court martial or Defence Force magistrate; and

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

6              Service of summons

         (1)   A summons that is required by subsection 87 (5) or 138 (2) of the Act to be served on a person shall be served:

                (a)    by delivering the original summons or a copy of the original summons to the person personally; or

               (b)    by prepaying and posting the summons as a letter addressed to the 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 the person with some person apparently a resident of that place and apparently not less than 16 years of age; or

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

                (e)    if the person (other than the accused) 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)   At the time of the service of a summons under subsection 138 (2) of the Act on a person who is not a defence member, the person serving the summons shall tender to the person named in the summons sufficient money to enable that person to travel between the person’s place of residence or employment (whichever is appropriate) and the place of sitting of the court martial or Defence Force magistrate, as the case may be.

7              Instrument for purposes of section 194A of the Act

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

                (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.

Part 2                 Charge sheets and charges

  

8              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)   A charge sheet for the trial of an accused person by a court martial or Defence Force magistrate 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)   At a trial before a court martial or Defence Force magistrate, 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 Schedule 2.

         (5)   If charges against an accused are contained in more than 1 charge sheet, the Director of Military Prosecutions may direct the Registrar to:

                (a)    convene 1 court martial for the trial of the charges on all charge sheets; or

               (b)    refer all of the charges for trial before a single Defence Force magistrate; or 

                (c)    do some combination of paragraph (a) and (b).

9              Charges

         (1)   A charge shall state 1 offence only.

         (2)   A charge shall consist of 2 parts, namely:

                (a)    a statement of the offence that 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 shall contain:

                (a)    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; and

               (b)    in any case — a sufficient statement of the offence.

         (4)   Without prejudice to any other sufficient manner of setting out the statement of an offence, the statement of an offence shall be sufficient if it is set out in the appropriate form in Schedule 1.

         (5)   Particulars of an offence shall contain a sufficient statement of the circumstances of the offence to enable the accused person to know what it is intended to prove against that person as constituting the offence.

         (6)   At a trial by a court martial or Defence Force magistrate, 2 or more accused persons may be charged jointly in 1 charge of an offence alleged to have been committed by them jointly.

10            How charges to be construed

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

11            Amendment of charge sheets by judge advocate or Defence Force magistrate

                Where it appears to a judge advocate or Defence Force magistrate 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 that is attributable to clerical error or omission;

the judge advocate or Defence Force magistrate may amend the charge sheet so as to correct the mistake.

12            Withdrawal of charge

                A court martial or Defence Force magistrate may allow the prosecuting officer to withdraw:

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

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

Part 3                 Witnesses

  

13            Securing appearance of witness 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 a court martial or Defence Force magistrate 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).

14            Director of Military Prosecutions to notify accused person of evidence or intention not to call witness at trial by court martial or Defence Force magistrate

         (1)   If the Director of Military Prosecutions requests the Registrar to refer a matter for trial, the Director of Military Prosecutions must ensure that:

               (a)     the accused person; and

               (b)     if a trial by a court martial is requested — the Registrar;

are provided with, or have already been provided with, the information or copies of the documents mentioned in subrule (3).

         (2)   The Registrar must disclose to the judge advocate all information and documents provided to the Registrar under subrule (1).

         (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) (e); 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.

15            Exclusion of witness from court

         (1)   During proceedings before a court martial or Defence Force magistrate, a witness shall not, except by leave of the judge advocate or Defence Force magistrate, be in court while not under examination.

         (2)   The judge advocate or Defence Force magistrate may direct a witness to withdraw from the court until the judge advocate or Defence Force magistrate 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 person representing the accused person in the proceedings, or the prosecuting officer, to be absent, or withdraw, from the proceedings.

16            Examination of witness

         (1)   A witness appearing before a court martial or Defence Force magistrate:

                (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 court martial or Defence Force magistrate may allow the cross-examination or re-examination of a witness to be postponed if, in the opinion of the judge advocate or Defence Force magistrate, it is in the interests of justice to do so.

         (3)   A judge advocate or Defence Force magistrate may put questions to a witness.

      (3A)   During a trial by court martial, members of the court martial are entitled to question a witness, if:

                (a)    in the opinion of the judge advocate, the question is relevant and admissible; and

               (b)    the question is put to the witness by the judge advocate.

         (4)   Upon a question put under subrule (3) or (3A) being 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 judge advocate or Defence Force magistrate.

17            Calling and recalling witnesses

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

                (a)    at a trial by court martial — the judge advocate begins to sum up; or

               (b)    at a trial by Defence Force magistrate — the Defence Force magistrate makes a finding on the charge;

recall a witness by leave of the judge advocate or Defence Force magistrate.

         (2)   After the witnesses for the defence have given their evidence, the prosecuting officer may, by leave of the judge advocate or Defence Force magistrate, call a witness to give evidence on any matter raised by the accused person in the accused person’s 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)   The service tribunal may, at any time before:

                (a)    at a trial by court martial — the judge advocate begins to sum up; or

               (b)    at a trial by Defence Force magistrate — the Defence Force magistrate makes a finding on the charge;

call or recall a witness if, in the opinion of the  judge advocate or Defence Force magistrate, it is in the interests of justice to do so.

         (4)   When a witness is called or recalled under this rule, the accused person and the prosecuting officer may put such questions to the witness as seem proper to the judge advocate or Defence Force magistrate.

18            Witness to reply forthwith

         (1)   Subject to subrule (2), a witness appearing before a court martial or Defence Force magistrate shall reply forthwith to each question put to the witness.

         (2)   Where a question is objected to or a witness claims privilege, the witness shall not answer the question unless the objection or claim is overruled by the judge advocate or Defence Force magistrate.

19            Expenses for witnesses

         (1)   A person (other than a defence member) summoned to appear as a witness before a court martial or Defence Force magistrate shall be paid such fees, and allowances for expenses, in respect of the witness’s attendance as the appropriate authority thinks fit to allow in accordance with the scale in Schedule 2 to the Public Works Committee Regulations as in force from time to time under the Public Works Committee Act 1969.

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

                (a)    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 4                 Registrar

  

20            Registrar may liaise with certain persons

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

                (a)    a judge advocate;

               (b)    a prosecuting officer;

                (c)    a defending officer;

               (d)    the Director of Defence Counsel Services;

                (e)    service authorities;

                (f)    personnel who may be appointed as the President, member or reserve member of a court martial;

                (g)    civilian agencies and authorities.

21            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 before a court martial or Defence Force magistrate.

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

                (e)    the appointment of an administrative officer, clerk, orderly or escort officer, as appropriate;

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

                (g)    customs of the services;

                (h)    information technology support requirements for the proceedings;

                 (i)    financial arrangements in relation to the proceedings;

                (j)    the process for the appointment and administration of a court martial President, the members and the reserve members.

22            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 a proceeding before a court martial or Defence Force magistrate.

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

                (a)    administrative officer;

               (b)    clerk;

                (c)    orderly;

               (d)    escort officer;

                (e)    other administrative support personnel as necessary.

23            Order referring charge or case to Defence Force magistrate

                When the Registrar refers a charge or a case to a Defence Force magistrate, the Registrar must, in the order referring the charge or the case:

                (a)    specify the Defence Force magistrate to whom the charge or case is referred; and

               (b)    fix, or provide for the fixing of, the time and place for the hearing of the charge or case.

24            Registrar to provide certain documents

         (1)   When the Registrar convenes a court martial for the trial of a charge, the Registrar must cause to be sent:

                (a)    to the President and each member or reserve member of the court martial — a copy of the convening order; and

               (b)    to the judge advocate:

                          (i)    the convening order; and

                         (ii)    the charge sheet; and

                         (iii)    the record of evidence taken at proceedings (if held) in relation to the charge before a commanding officer or a superior summary authority; and

                        (iv)    any other statement taken from a witness to be called for the prosecution; and

                (c)    to the accused person — copies of the documents referred to in subparagraphs (b) (i) and (ii); and

               (d)    to the prosecuting officer — a copy of the document referred to in subparagraph (b) (i).

         (2)   When the Registrar refers a charge to a Defence Force magistrate for trial, the Registrar must cause to be sent:

                (a)    to the Defence Force magistrate:

                          (i)    the order referring the charge; and

                         (ii)    the charge sheet; and

               (b)    to the accused person — copies of the documents referred to in paragraph (a); and

                (c)    to the prosecuting officer — a copy of the order referring the charge.

25            Inspection of exhibits before trial

         (1)   An accused person who has been sent a list of exhibits in accordance with rule 14 must, on application by the person to the Director of Military Prosecutions, 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 5                 Courts martial

  

26            Functions of President

                In addition to the functions that the President of a court martial has in his or her capacity as a member of the court martial and any functions conferred on the President by the Act or any other rule, the functions of the President are:

                (a)    when presiding over a sitting of the court martial — to ensure that the proceedings are conducted in accordance with the Act and these Rules and in a manner befitting a court of justice; and

               (b)    to speak on behalf of the court martial in announcing a finding or sentence or any other decision taken by the court martial; and

                (c)    to speak on behalf of the members of the court martial in conferring with, or requesting advice from, the judge advocate on any question of law or procedure.

27            Functions of judge advocate

                In addition to any functions conferred on the judge advocate by the Act, the regulations or any other rule, the functions of the judge advocate are:

                (a)    subject to subsection 133 (6) of the Act, to be present at all sittings of a court martial; and

               (b)    to preside over all hearings conducted in pursuance of subsection 134 (2) or 141 (7) of the Act and to ensure, at all such hearings, that the proceedings are conducted in accordance with the Act and these Rules and in a manner befitting a court of justice; and

                (c)    to ensure that an accused person who is not represented does not in consequence of that fact suffer any undue disadvantage; and

               (d)    to ensure that a proper record of the proceedings is made and that the record of proceedings and the exhibits (if any) are properly safeguarded.

28            Manner of voting of court martial

                On any question to be determined by a court martial, the members of the court martial shall vote orally, in order of seniority, commencing with the junior in rank.

29            Objections to members of court martial

         (1)   Before the members of a court martial are sworn, their names shall be read to the accused person and that person shall be asked whether he or she objects to be tried by any of them.

         (2)   This rule applies in relation to a reserve member or new member who is appointed to a court martial in place of another member in the same way that it applies to an original member of the court martial.

30            Swearing of court martial

         (1)   After all objections by the accused person to members of the court martial have been dealt with and before the arraignment of the accused person begins, the judge advocate shall, in the presence of the accused person, administer, or cause to be administered, an oath or affirmation to the President and each other member of the court martial.

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

                (a)    the person will duly administer justice according to law, without fear or favour, affection or ill will; and

               (b)    the person will well and truly try the accused person or persons before the court martial, according to the evidence; and

                (c)    the person will not disclose the vote or opinion of any member of the court martial unless required to do so in due course of law.

Part 6                 Defence Force magistrate

  

31            Functions of Defence Force magistrate

                In addition to any functions conferred on the Defence Force magistrate by the Act, the regulations or any other rule, the functions of the magistrate at any proceedings before the magistrate are to ensure:

                (a)    that the proceedings are conducted in accordance with the Act and these Rules and in a manner befitting a court of justice; and

               (b)    that an accused person who is not represented does not in consequence of that fact suffer any undue disadvantage; and

                (c)    that a proper record of the proceedings is made and that the record of proceedings and the exhibits (if any) are properly safeguarded.

Part 7                 Trial provisions

  

32            Employment of, objections to, and swearing of recorders and interpreters

         (1)   An appropriate authority may arrange for a person to act as a recorder or as an interpreter at proceedings before a court martial or Defence Force magistrate.

         (2)   The accused person may enter an objection to a recorder or interpreter on the ground of partiality or incompetence, or both.

         (3)   Where the judge advocate or Defence Force magistrate is satisfied that the accused person has substantiated an objection entered by that person under this rule, the judge advocate or Defence Force magistrate, as the case may be, shall allow the objection.

         (4)   Before a person begins to act as a recorder or an interpreter, the judge advocate or Defence Force magistrate shall administer, or cause to be administered, an oath or affirmation to the person before the person begins so to act.

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

                (a)    in the case of a person who is to act as a recorder — that the person will, to the best of the person’s ability, truly record or transcribe (or both, as the case may be) the evidence to be given before the court martial or Defence Force magistrate and such other matters as may be required and (where a transcript is required to be made) will deliver to the judge advocate or Defence Force magistrate 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 the person will be required to do.

33            Administration of oaths and affirmations

         (1)   The relevant authority may permit a person to take an oath or affirmation in such manner as the person taking the oath or affirmation declares to be binding on the person’s conscience.

         (2)   In this rule, relevant authority means:

                (a)    in relation to an officer to be sworn as a member of a court martial — the judge advocate; or

               (b)    in relation to a witness — the appropriate authority; or

                (c)    in relation to an interpreter or a recorder — the  judge advocate or Defence Force magistrate.

34            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 court martial or Defence Force magistrate on any reasonable grounds for an adjournment of the proceedings before the tribunal.

35            Right of accused person and prosecuting officer to argue and adduce evidence on matter to be decided

                The accused person and the prosecuting officer may properly argue, and adduce evidence relevant to, any question presented to the court martial or Defence Force magistrate for decision.

36            Pleading to charges and arraignment

         (1)   Where there is more than 1 charge against an accused person before a court martial or Defence Force magistrate, the person shall be required to plead separately to each charge.

         (2)   Where:

                (a)    there is more than 1 charge against an accused person before a court martial or Defence Force magistrate; and

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

the court martial or Defence Force magistrate shall arraign and try the person on the charge or charges in a charge sheet (other than taking action under paragraph 132 (1) (g) or 135 (1) (g) of the Act) before the tribunal arraigns and tries the person on a charge in another charge sheet.

         (3)   Where an accused person is convicted by a court martial or Defence Force magistrate of a charge that is 1 of 2 or more charges stated in the charge sheet in the alternative, the person shall not be convicted by the court martial or Defence Force magistrate of any charge that is alternative to the charge of which the person has been convicted and that is placed after it on the charge sheet.

37            Opening address by prosecution

                Before the first prosecution witness is called to give evidence at a trial by a court martial or Defence Force magistrate, the prosecuting officer shall make an opening address to the tribunal, 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.

38            Judge advocate or Defence Force magistrate may direct substitution of plea of not guilty

                Where, at any time during a trial, it appears to the judge advocate or Defence Force magistrate that an accused person who has pleaded guilty does not understand the effect of that plea, the judge advocate or Defence Force magistrate shall substitute the plea to one of not guilty and proceed accordingly.

39            Submission of no case to answer

                At the close of the case for the prosecution, the accused person may submit to the judge advocate or Defence Force magistrate in respect of a charge that the evidence adduced is insufficient to support the charge.

40            Opening address by defence

                Where the accused person intends to call a witness (other than himself or herself) to give evidence as to the facts of the case, the person may, before he or she calls the first such witness, make an opening address to the court martial or Defence Force magistrate stating the nature and general effect of the evidence that the person proposes to adduce in the person’s defence.

41            Closing addresses

         (1)   After all of the evidence has been given, the accused person and the prosecuting officer may each make a closing address to the court martial or Defence Force magistrate.

         (2)   Any closing address by the prosecuting officer shall be made before the closing address (if any) by the accused person.

         (3)   Subject to subrule (4), where 2 or more accused persons are charged in the same charge sheet, their closing addresses shall 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 only make 1 closing address.

42            Summing up

                After the closing addresses (if any) at a trial by court martial, the judge advocate shall sum up the evidence and direct the court martial on the law relating to the case (including Part IV of the Act).

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

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

                (a)    the prosecuting officer shall inform the court martial or Defence Force magistrate 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.

44            Convicted person’s record etc and plea in mitigation

         (1)   After the conviction of a person by a court martial or Defence Force magistrate, the prosecuting officer shall cause evidence to be adduced as to:

                (a)    if the convicted person is a defence member or was a defence member at the time of the 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)    such other matters relevant to determining action under Part IV of the Act in relation to the convicted person as the court martial or Defence Force magistrate 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; and

               (b)    address the court martial or Defence Force magistrate in mitigation of punishment.

         (3)   Rule 16 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 8                 Procedure for imposing punishment in case of breach of undertaking to be of good behaviour

  

45            Application

                This Part applies in relation to proceedings before a court martial or Defence Force magistrate for the purpose of imposing punishment on a convicted person in respect of a service offence in relation to which the convicted person gave, in accordance with subsection 75 (2) of the Act, an undertaking to another court martial or Defence Force magistrate to be of good behaviour for 12 months.

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

                After the service offence in relation to which the convicted person gave an undertaking to be of good behaviour for a period of 12 months has been read to the court martial or Defence Force magistrate, action shall be taken in accordance with rules 43 and 44 as if the person had been convicted by that court martial or Defence Force magistrate and, in the case of rule 43, as if the person had pleaded guilty to a charge of that offence.

Part 9                 Record of proceedings and exhibits

  

47            Record of proceedings before court martial or Defence Force magistrate

         (1)   The proceedings before a court martial or Defence Force magistrate shall, if practicable, be recorded verbatim.

         (2)   Where the proceedings before a court martial or Defence Force magistrate are not recorded verbatim, they shall 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 shall be taken down in narrative form as nearly as possible in the words used; and

               (b)    if:

                          (i)    the prosecution or the defence so requests and the judge advocate or Defence Force magistrate so directs; or

                         (ii)    in any other case, the judge advocate or Defence Force magistrate so directs;

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

                (c)    a record shall 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 judge advocate, if not in writing, shall be recorded to such extent as the judge advocate or the Defence Force magistrate thinks fit; and

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

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

         (4)   If a conviction is recorded, the written record of the proceedings must be certified as true and correct, in writing, by the recorder and the judge advocate or Defence Force magistrate as soon as practicable after the conclusion of the trial.

48            Inspection of record of proceedings etc during trial

                During a trial by a court martial or Defence Force magistrate, the accused person or the prosecuting officer may, with the permission of the judge advocate or Defence Force magistrate:

                (a)    have a particular part of the record of proceedings read or played over to the accused person or the prosecuting officer, as the case may be; and

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

49            Loss of original record of proceedings

         (1)   If, at any time, the whole or any part of the original record of proceedings before a court martial or Defence Force magistrate is lost, a valid and sufficient record of the proceedings for all purposes may be made by the signature of a prescribed person being affixed to a copy of the record of proceedings.

         (2)   In this rule, prescribed person means:

                (a)    in relation to proceedings before a court martial or a judge advocate — the judge advocate; or

               (b)    in relation to proceedings before a Defence Force magistrate — the Defence Force magistrate.

50            Exhibits

         (1)   Subject to subrule (2), any document or thing admitted in evidence at a trial by a court martial or Defence Force magistrate shall be made an exhibit.

         (2)   Where the court martial or Defence Force magistrate is satisfied that a copy of, or an extract or relevant parts from, a document or book admitted in evidence is correct, the court martial or Defence Force magistrate may make the copy or extract an exhibit in place of the document or book.

51            Relief from Rules

                A judge advocate or Defence Force magistrate may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.


Schedule 1        Statement of offences

(subrule 9 (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 sections 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] [when reporting for duty] [when 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

69

Paragraph 40C (1) (a)

Driving a service vehicle while not authorised

70

Paragraph 40C (1) (b)

Using a service vehicle for an unauthorised purpose

71

Subsection 40D (1)

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

72

Subsection 40D (2)

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

73

Section 41

Flying a service aircraft below the minimum height

74

Section 42

Giving inaccurate certification to a matter affecting a [service ship] [service aircraft] [service vehicle] [service missile] [service weapon]

75

Subsection 43 (1)

Intentionally [destroying] [damaging] service property

76

Subsection 43 (2)

Recklessly [destroying] [damaging] service property

77

Subsection 43 (3)

Negligently [destroying] [damaging] service property

78

Section 44

Losing service property

79

Section 45

Unlawful possession of service property

80

Section 46

Possession of property suspected of having been unlawfully obtained

81

Section 47C

Theft

82

Section 47P

Receiving stolen property

83

Subsection 48 (1)

Looting

84

Subsection 48 (2)

Receiving looted property

85

Section 49

Refusing to submit to arrest

86

Section 49A

Assault against arresting person

87

Subsection 50 (1)

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

88

Subsection 50 (2)

Delaying or denying justice by failing to take action to [release] [order release] of a person

89

Section 51

Escaping from custody

90

Section 52

Giving false evidence before a service tribunal

91

Subparagraph
53 (1) (b) (i)

Failing to appear before a service tribunal as required by [summons] [order]

92

Subparagraph
53 (1) (b) (ii)

Failing to appear and report when not excused by service tribunal

93

Paragraph 53 (2) (a)

Refusing to take an oath or make an affirmation before a service tribunal

94

Paragraph 53 (2) (b)

Refusing to answer a question before a service tribunal

95

Paragraph 53 (2) (c)

Refusal to produce a document required by [summons] [order] before a service tribunal

96

Paragraph 53 (4) (a)

Insulting a [member of a court martial] [judge advocate] [Defence Force magistrate] [summary authority]

97

Paragraph 53 (4) (b)

Interrupting proceedings of a service tribunal

98

Paragraph 53 (4) (c)

Creating a disturbance [in] [near] a service tribunal

99

Paragraph 53 (4) (d)

Engaging in conduct that would constitute contempt of a service tribunal

100

Subsection 54 (1)

Intentionally allowing a person in custody to escape

101

Subsection 54 (2)

Unlawfully releasing a person in custody

102

Subsection 54 (3)

Facilitating escape of a person in custody

103

Subsection 54 (4)

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

104

Paragraph 54A (1) (a)

Detainee making unnecessary noise

105

Paragraph 54A (1) (b)

Detainee committing a nuisance

106

Paragraph 54A (1) (c)

Detainee being [idle] [careless] [negligent] at work

107

Paragraph 54A (1) (d)

Detainee unlawfully communicating with another person

108

Paragraph 54A (1) (e)

Detainee unlawfully [giving] [receiving] any thing

109

paragraph 54A (1) (f)

Detainee unlawfully being in possession of any thing

110

Paragraph 54A (1) (g)

Detainee unlawfully [entering] [leaving] cell

111

Subsection 54A (2)

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

112

Subsection 54A (6)

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

113

Paragraph 55 (1) (a)

[Making] [signing] false service document

114

Paragraph 55 (1) (b)

Making false entry in service document

115

Paragraph 55 (1) (c)

Altering a service document

116

Paragraph 55 (1) (d)

[Suppressing] [defacing] [making away with] [destroying] a service document

117

Paragraph 55 (1) (e)

Failing to make an entry in a service document

118

Subsection 56 (1)

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

119

Subsection 56 (4)

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

120

Paragraph 57 (1) (a)

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

121

Paragraph 57 (1) (b)

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

122

Paragraph 57 (1) (c)

Person failing to disclose prior service

123

Paragraph 57 (2) (a)

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

124

Paragraph 57 (2) (b)

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

125

Paragraph 57 (2) (c)

Member failing to disclose prior service

126

Section 58

Unauthorised disclosure of information

127

Subsection 59 (1)

[Selling] [dealing] [trafficking] in narcotic goods outside Australia

128

Subsection 59 (3)

Possession of narcotic goods outside Australia

129

Subsection 59 (5)

Administering prohibited drug outside Australia

130

Subsection 59 (6)

Administering prohibited drug in Australia

131

Subsection 59 (7)

Possession of non‑trafficable quantity of prohibited drug in Australia

132

Section 60

Prejudicial conduct

133

Subsection 61 (1)

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

134

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]

135

Subsection 61 (3)

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

136

Section 62

Commanding or ordering commission of service offence

137

Subsection 101QA (1)

Failing to submit to medical examination

138

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] [interferes with] 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 the 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 the 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 or the 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 or the Defence Force Discipline Regulations 1985]

5

Section 11.5

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

Schedule 2        Form of charge sheet

(subrule 8 (4))

  

Charge sheet

[Insert Accused’s 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 http://www.frli.gov.au.