(1) There shall be a Courts Martial Appeal Court, of which the Judges shall be—

• (a) The Judges of the High Court; and

• (b) Such other persons, being barristers of the High Court of New Zealand who have held a practising certificate as such for not less than 7 years or former Judges of the High Court, as the Governor-General in Council may appoint.

(2) The appointment of a person under paragraph (b) of subsection (1) of this section to be a Judge of the Court shall be for such term and subject to such conditions as the Governor-General in Council may determine; and a person appointed as aforesaid who ceases to hold office as a Judge of the Court shall be eligible for reappointment.

(3) There shall be paid to each appointed Judge, out of money appropriated by Parliament, such remuneration by way of fees or salary and such travelling and other allowances as may be fixed or determined by or in accordance with regulations made under this Act.

(4) Every person appointed under subsection (1)(b) has all the immunities of a Judge of the High Court for the purposes of carrying out his or her tasks and functions as a Judge of the Courts Martial Appeal Court.

(1) For the purpose of hearing and determining appeals under this Act, or any matter preliminary or incidental to an appeal, the Court shall be summoned in accordance with directions given by the Chief Justice, and shall be deemed to be duly constituted if—

• (a) It consists of an uneven number of Judges, not being less than 3; and

• (b) Subject to subsection (4) of this section, at least one of the Judges of whom it consists is a Judge of the High Court and at least one is an appointed Judge.

(2) If the Chief Justice so directs, the Court may sit in 2 or more divisions.

(3) The Court shall sit in such place as the Chief Justice directs, whether within or outside New Zealand.

(4) Where the Court is directed to sit at a place outside New Zealand, the Chief Justice may, if he thinks it expedient so to do, direct that the Court shall consist exclusively of appointed Judges.

(5) The determination of any question before the Court shall be according to the opinion of the majority of the Judges of the Court hearing the case.

(6) The Court shall be a superior Court of record and shall, for the purposes of and subject to the provisions of this Act, have full power to determine, in accordance with this Act, any question necessary to be determined for the purpose of doing justice in any case before the Court.

(1) There may from time to time be appointed under the State Sector Act 1988 a Registrar of the Court and such other officers of the Court as may be required. Any such office may be held either separately or in conjunction with any other office in the Public Service.

(2) Unless any other person is appointed under subsection (1) of this section to hold office as the Registrar of the Court, the person who for the time being holds office as the Registrar of the High Court at Wellington shall, without further appointment, be deemed to have been appointed under this section to be also the Registrar of the Courts Martial Appeal Court.

(1) A person convicted by a court martial may, with the leave of the Court, appeal to the Court against his conviction:

Provided that the leave of the Court shall not be required in any case where the person convicted was sentenced by the court martial to imprisonment for 90 days or more or to detention for 90 days or more.

(1) Leave to appeal to the Court shall not be given except in pursuance of an application in that behalf made by or on behalf of the appellant, and lodged, within the prescribed period, with the Registrar, being an application in the prescribed form and specifying the grounds on which leave to appeal is sought and such other particulars, if any, as may be prescribed.

(2) Rules of Court may provide that, in such circumstances as may be specified in the rules, any such application as aforesaid which is lodged with such person (other than the Registrar) as is specified in the rules shall be treated, for the purposes of subsection (1) of this section, as having been lodged with the Registrar.

(3) Where an application for leave to appeal to the Court is lodged with a person other than the Registrar in accordance with rules of Court having effect by virtue of subsection (2) of this section, it shall be the duty of that person—

• (a) To forward the application to the Registrar with as much expedition as possible; and

• (b) If it appears to that person that it is practicable to furnish the Registrar, before the receipt by him of the application, with such particulars of the application as will enable him to prepare a copy of it, and that in all the circumstances it is expedient so to do, forthwith to furnish him with those particulars.

(4) The Court may extend the period within which an application for leave to appeal must be lodged, whether that period has expired or not.

(5) Where the Court dismisses an application for leave to appeal it may, if it considers the application to have been frivolous or vexatious, order that any sentence passed upon the applicant in the proceedings from which it was sought to bring the appeal shall begin to run from the day on which the Court dismisses the application.

(1) Subject to the provisions of section 9 of this Act, on an appeal under this Act the Court shall allow the appeal if it thinks that the finding of the court martial is unreasonable or cannot be supported having regard to the evidence or involves a wrong decision on a question of law or that, on any other ground, there was a miscarriage of justice, and in any other case shall dismiss the appeal:

Provided that the Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2) If the Court allows an appeal under this Act, it shall quash the conviction and in its discretion either direct a judgment and finding of acquittal to be entered or direct a new trial.

Where—

• (a) It appears to the Court that an appellant, thought not properly convicted on some charge preferred against him before the court martial by which he was tried, was properly convicted on some other charge so preferred; and

• (b) The sentence passed by the court martial on the appellant was not warranted by the Armed Forces Discipline Act 1971 for the offence of which he was convicted on the other charge—

the Court shall pass on the appellant, in substitution for the sentence passed on him by the court martial, such sentence so warranted as it thinks proper.

(1) This section applies where an appellant has been convicted of an offence and the court martial by which he was tried could lawfully have convicted him of some other offence, and it appears to the Court that the court martial must have been satisfied of facts which proved him guilty of that other offence.

(2) The Court may, instead of allowing or dismissing the appeal, substitute for the conviction recorded by the court martial a conviction for the other offence, and may pass on the appellant, in substitution for the sentence passed on him by the court martial, such sentence as it thinks proper, being a sentence warranted by the Armed Forces Discipline Act 1971 for that other offence, but not a sentence of greater severity.

(1) Where an appellant has been convicted of an offence committed under circumstances involving the higher of 2 degrees of punishment, and it appears to the Court that the court martial by which he was tried ought to have convicted him of the offence under circumstances involving the lower degree of punishment, the Court may, instead of allowing or dismissing the appeal, substitute for the conviction recorded by the court martial a conviction for the offence as being committed under circumstances involving the lower degree of punishment.

(2) Where the Court exercises the power conferred by subsection (1) of this section, it may pass on the appellant, in substitution for the sentence passed on him by the court martial, such sentence as it thinks proper being a sentence warranted by the Armed Forces Discipline Act 1971 for the offence specified or involved in the substituted conviction, but not being a sentence of greater severity than that actually passed by the court martial.

Where, on appeal against conviction by court martial, the Court is satisfied that—

• (a) The facts which were proved in evidence differed from the facts alleged in the particulars of the charge but were sufficient to prove the commission of the offence of which the appellant was convicted; and

• (b) The difference was not so material as to have prejudiced the appellant in his defence—

the Court may nevertheless confirm the conviction, but substitute for the sentence passed on the appellant such sentence as it thinks just, being a sentence warranted by the Armed Forces Discipline Act 1971 for the offence, but not being a sentence of greater severity than that actually imposed by the court martial.

(1) The term of any sentence passed by the Court under section 9, section 9A, section 9B, or section 9C of this Act shall, unless the Court otherwise directs, begin to run from the time from which it would have begun to run if it had been passed in the proceedings from which the appeal was brought.

(2) A sentence passed by the Court under any of the sections referred to in subsection (1) of this section shall, if passed on an appeal against conviction by a court martial, be deemed for the purposes of the Armed Forces Discipline Act 1971 to be a sentence passed by the court martial which convicted the appellant.

(3) Except in a case to which subsection (4) of this section applies, where the Court substitutes a sentence of imprisonment or of detention for the sentence of imprisonment or of detention passed by a court martial, the term of the substituted sentence shall be deemed to have commenced or shall commence on the date when the term of the original sentence commenced or would have commenced.

(4) Where—

• (a) A sentence of imprisonment or of detention passed by a court martial was directed to be cumulative on any earlier sentence; and

• (b) The Court substitutes a sentence of imprisonment or of detention for the sentence of imprisonment or of detention passed by the court martial, but does not direct the sentence to be cumulative on the earlier sentence referred to in paragraph (a) of this subsection,—

the term of the substituted sentence shall be deemed to have commenced or shall commence on the date when the sentence passed by the court martial would have commenced had that sentence not been directed to be cumulative on the earlier sentence.

(5) Where—

• (a) A sentence of imprisonment or of detention passed by a court martial is directed to be cumulative on any earlier sentence of imprisonment or of detention; and

• (b) The Court substitutes a sentence other than one of imprisonment or of detention for that earlier sentence,—

the sentence passed by the court martial shall commence when the earlier sentence would have commenced.

(1) A person who is acquitted by a court martial on account of his insanity shall have the same right of appeal against the finding of the court martial as he would if the finding had been a conviction.

(2) If on any such appeal the finding of insanity is challenged by the appellant, and the Court is of the opinion that the finding ought not to stand, and is satisfied that in the absence of such a finding the proper finding would have been that the appellant was guilty of an offence (whether that with which he was charged or any offence of which he could have been convicted at the trial), the Court shall substitute for the acquittal a conviction for the offence. Thereupon the Court shall have the same powers of sentencing or otherwise dealing with the appellant, and such other powers, as the court martial would have had if the substituted conviction had been recorded at the trial.

(3) Except as provided in subsection (2) of this section, on any such appeal the Court may—

• (a) Allow the appeal, and direct that the appellant be acquitted:

• (b) Dismiss the appeal:

• (c) Exercise any power, whether to direct a new trial or otherwise, that it could exercise if the appeal were an appeal against conviction.

(4) No such appeal shall be allowed by reason only of the fact that the appellant ought to have been acquitted of the offence charged, if the Court is of the opinion that, but for the insanity, the proper finding would have been that he was guilty of some other offence; but the Court may direct that the other offence be substituted, in the record of the finding, for the offence charged.

(5) Unless the Court otherwise directs, the term of any sentence passed by it pursuant to subsection (2) of this section shall begin to run from the time when it would have begun to run if passed on the date on which the finding appealed against was made.

(1) A person who has been found unfit to stand trial by a court martial may appeal against 1 or both of the following findings:

• (a) that the evidence against the appellant is sufficient to establish that the appellant caused the act or omission that forms the basis of the offence with which the appellant is charged:

• (b) that the appellant is unfit to stand trial.

(2) For the purposes of an appeal under this section,—

• (a) the finding appealed against is to be regarded as a conviction; and

• (b) the provisions of this Act relating to appeals, so far as they are applicable and with any necessary modifications, apply to the appeal.

(3) If the Court is satisfied that the evidence presented against the appellant is not sufficient to establish that the appellant caused the act or omission that forms the basis of the offence with which the appellant is charged, the Court must quash the finding appealed against and direct that the appellant be discharged.

(4) A discharge under subsection (3) does not amount to an acquittal.

(5) In the case of an appeal against a finding relating to the appellant's fitness to stand trial, the Court must (except where the appellant has been discharged under subsection (3)) consider the evidence of 2 qualified medical practitioners (within the meaning of section 187(1) of the Armed Forces Discipline Act 1971), and confirm or quash the finding relating to the appellant's mental impairment.

(6) If the Court is satisfied that the appellant is mentally impaired, the Court must—

• (a) give the appellant and the respondent an opportunity to be heard and to present evidence as to whether the appellant is unfit to stand trial; and

• (b) confirm or quash the finding relating to the appellant's fitness to stand trial.

(7) If the result of the appeal is that the appellant is fit to stand trial, the Court must give a written direction to the appropriate convening officer to convene a court martial to try the charge on which the appellant was previously remanded for trial by court martial.

(1) If in the case of an appeal against conviction it appears to the Court that the appellant did or omitted the act constituting the offence for which he was convicted, but was at the time at which he did or omitted the act insane, the Court shall—

• (a) Substitute for the conviction an acquittal on account of his insanity; and

• (b) Quash the sentence passed in respect of the conviction.

(2) When, pursuant to subsection (1) of this section, the Court substitutes for a conviction an acquittal on account of insanity, sections 191 and 193 of the Armed Forces Discipline Act 1971 shall apply to the appellant in the same manner and to the same extent as if the substituted finding were a finding of a court martial, and as if references in those sections to courts martial were references to the Court.

(3) When an appellant is ordered under the provisions of this section to be detained as a special patient, or as a patient, the provisions of the Mental Health (Compulsory Assessment and Treatment) Act 1992 shall apply to him as if he were a special patient or a patient, as the case may be, within the meaning of that Act.

(1) The appellant in an appeal to the Courts Martial Appeal Court under this Act or the Chief of Defence Force may, within 14 days after the decision of the Courts Martial Appeal Court was given, apply to the Attorney-General for a certificate that—

• (a) the decision involves a point of law of exceptional public importance; and

• (b) it is desirable in the public interest that a further appeal should be brought.

(2) The Courts Martial Appeal Court may extend the period within which an application for a certificate under subsection (1) must be made, whether that period has expired or not.

(3) If, and only if, given a certificate under subsection (1), the appellant in an appeal to the Courts Martial Appeal Court under this Act or the Chief of Defence Force may appeal to the Court of Appeal against the decision of the Courts Martial Appeal Court.

With the leave of the Supreme Court, the appellant in an appeal to the Court of Appeal under section 10(3) or the Chief of Defence Force may appeal to the Supreme Court against the decision of the Court of Appeal in the appeal.

(1) With the leave of the Supreme Court, the appellant in an appeal to the Courts Martial Appeal Court under this Act or the Chief of Defence Force may appeal to the Supreme Court against the decision of the Courts Martial Appeal Court.

(2) Subsection (1) is subject to section 14 of the Supreme Court Act 2003 (which provides that the Supreme Court must not give leave to appeal directly to it against a decision made in a court other than the Court of Appeal unless it is satisfied that there are exceptional circumstances that justify taking the proposed appeal directly to the Supreme Court).

In an appeal to the Court of Appeal or the Supreme Court under section 10(3) or section 10A or section 10B(1),—

• (a) the court appealed to has the same powers as the Courts Martial Appeal Court; and

• (b) this Act, as far as it is applicable and with any necessary modifications, applies to the appeal as it applies to an appeal to the Courts Martial Appeal Court.

For the purposes of this Act the Court may, if it thinks it necessary or expedient in the interests of justice,—

• (a) Order the production of any document, exhibit, or other thing connected with the proceedings the production of which appears to the Court to be necessary for the determination of the case:

• (b) Order the taking of such steps as are requisite to obtain from any member of the court martial by which the appellant was tried or the person who officiated as Judge Advocate at the trial a report giving his opinion upon the case or upon any point arising therein or containing a statement as to any facts whereof the ascertainment appears to the Court to be material for the purpose of the determination of the case:

  Provided that the Court shall not make an order under this paragraph for the purpose of obtaining a report from a member of a court martial other than the President thereof unless it also makes such an order for the purpose of obtaining a report from the President or is satisfied that the obtaining of a report from him is impracticable or would involve undue delay:

• (c) Order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in the prescribed manner before any Judge of the Court or before any other person appointed by the Court for that purpose, and allow the admission of any depositions so taken as evidence before the Court:

• (d) Receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness and, if the appellant makes an application for the purpose, of the spouse or civil union partner of the appellant in cases where the evidence of the spouse or civil union partner could not have been given at the trial except on such an application:

• (e) Where any question arising on the appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in the opinion of the Court conveniently be conducted before the Court, order the reference of the question in the prescribed manner for inquiry and report to a special commissioner appointed by the Court, and act upon the report of any such commissioner so far as the Court thinks fit to adopt it:

• (f) Appoint any person with special expert knowledge to act as an assessor to the Court in any case where it appears to the Court that such special knowledge is required for the proper determination of the case,—

and may issue any warrants necessary for enforcing the orders or sentences of the Court.

An appellant may, if he so desires, instead of presenting his case orally, present it in writing.

(1) The Court may at any time assign to an appellant a solicitor and counsel, or counsel only, in any appeal or proceedings preliminary or incidental to an appeal in which, in the opinion of the Court, it appears desirable in the interests of justice that the appellant should have legal aid and that he has not sufficient means to enable him to obtain that aid.

(2) If, on a question of granting an appellant legal aid under this section, there is a doubt whether it is desirable in the interests of justice that the appellant should have legal aid or whether he has sufficient means to enable him to obtain that aid, the doubt shall be resolved in favour of granting him legal aid.

(3) Before a person is granted legal aid under this section he may be required to furnish a written statement in the prescribed form about matters relevant for determining whether his means are insufficient to enable him to obtain legal aid, and if a person in furnishing such a written statement as aforesaid (whether required so to do or not) knowingly makes any false statement or false representation he shall be liable on summary conviction to a fine not exceeding $200 or to imprisonment for a term not exceeding 4 months or to both.

(4) The Registrar shall report to the Court or a Judge thereof any case in which it appears to him that, although no application has been made for the purpose, legal aid ought to be granted under this section to an appellant.

An appellant shall not be entitled to be present at the hearing of an appeal under this Act to the Court or at any proceedings preliminary or incidental to such an appeal except where rules of Court provide that he shall have the right to be present or the Court gives him leave to be present, and accordingly any power of the Court under this Act to pass a sentence may be exercised notwithstanding the absence of the appellant.

On an appeal under this Act to the Court against a conviction by a court martial under the Armed Forces Discipline Act 1971, it shall be the duty of the Chief of Defence Force to undertake the defence of the appeal.

(1) On the hearing and determination of an appeal or any proceedings preliminary or incidental thereto under this Act no costs shall be allowed on either side.

(2) The expenses of any solicitor or counsel assigned to an appellant under this Act, and the expenses of any witnesses attending on the order of the Court or examined in any proceedings incidental to the appeal, and of the appearance of an appellant on the hearing of his appeal or on any proceedings preliminary or incidental to the appeal, and all expenses of and incidental to any examination of witnesses conducted by any person appointed by the Court for the purpose, or any reference of a question to a special commissioner appointed by the Court, and the expenses of any person appointed as assessor to the Court shall be defrayed in the same manner as the expenses of a trial of a criminal case in the High Court.

(3) [Repealed]

The proceedings of the Court shall be conducted in open Court, except when the Court is dealing with matters of procedure or is deliberating:

Provided that the presiding Judge may cause the Court to be cleared of all persons or of any persons or classes of persons if he considers it necessary in the interests of national safety, or for the due administration of justice, or proper in the interests of public morals.

(1) On hearing an appeal under this Act, the Court may in the appropriate case order the appellant to pay compensation under section 86, or to make restitution of property under section 87 (with or without compensation under subsection (3) of that section), of the Armed Forces Discipline Act 1971, or both to pay compensation and to make restitution, in the same manner and to the same extent as a court martial, notwithstanding that the court martial which tried the appellant made no such order.

(2) Where a court martial has made an order under section 86 or section 87 of the Armed Forces Discipline Act 1971 and a reviewing authority has approved or varied the order or has not yet reviewed the order, or where a reviewing authority has made an order under subsection (1) of section 160 of the said Armed Forces Discipline Act 1971, the Court may, on hearing an appeal against any such order,—

• (a) Confirm the order; or

• (b) Quash the order; or

• (c) In the case of an order requiring the payment of compensation, vary the order by requiring a reduced amount of compensation to be paid, or by requiring an increased amount of compensation to be paid (not exceeding the limit imposed by the said section 86), in which case the order as varied shall take effect accordingly; or

• (d) In the case of an order requiring restitution of property to be made, vary the order by requiring property additional to or different from that specified in the order to be restored to the person who appears to the authority to be entitled to it, or, if the Court thinks that the person to whom property is to be restored by an order is not entitled to the whole of it, vary the order by excluding the part to which he does not appear to be entitled; and the order as varied shall take effect accordingly.

(3) [Repealed]

(1) Where the Court makes an order for compensation under section 86 of the Armed Forces Discipline Act 1971, or an order for restitution under section 87 of that Act (with or without compensation under subsection (3) of that section), that order shall be suspended to such extent as may be prescribed by rules of Court pending—

• (a) The completion of such proceedings; or

• (b) The expiration of such period; or

• (c) The giving of such consent; or

• (d) The occurrence of such event or circumstance—

as may be so prescribed.

(2) Where the operation of any such order is so suspended, it shall not take effect if the conviction is quashed on appeal.

(3) Rules of Court may be made—

• (a) Specifying any matter referred to in subsection (1) of this section in relation to the suspension of orders for compensation; and providing for the retention of deductions from pay made pursuant to any order for compensation while the order is suspended; and

• (b) Specifying any matter referred to in subsection (1) of this section in relation to the suspension of orders for restitution; and providing for the retention and safe custody of any property to which any order for restitution applies while the order is suspended.

Except as provided in subsection (2) of section 8 of this Act where the conviction of a person by court martial for an offence has been quashed under this Act, he shall not be liable to be tried again for that offence by a court martial or by any other Court.

Provision may be made—

• (a) By orders made by the Chief of Defence Force; or

• (b) By regulations made under the Corrections Act 2004—

as to the manner in which an appellant, when in custody, is to be taken to, kept in custody at, and brought back from any place at which he is entitled to be present for the purposes of this Act or to any place to which the Court, or any Judge of the Court, may order him to be taken for the purpose of any proceedings of the Court.

In the case of every appeal, or application for leave to appeal, under this Act to the Court against a conviction by a court martial under the Armed Forces Discipline Act 1971, it shall be the duty of the Judge Advocate General of the Armed Forces to supply to the Registrar, in accordance with rules of Court, the record of the proceedings of the court martial, together with the record of the review (if any) of those proceedings by the appropriate reviewing authority.

(1) The Registrar shall take all necessary steps for obtaining the determination of an appeal or application under this Act, and shall obtain and lay before the Court in proper form all documents, exhibits, and other things relating to the proceedings in the court martial before which the appellant or applicant was tried which appear necessary for the proper determination of the appeal or application.

(2) The Registrar shall furnish the necessary forms and instructions relating to applications for leave to appeal under this Act to any person who demands them, to persons in charge of places where persons sentenced by court martial may lawfully be confined for the purpose of serving their sentences, and to such other persons as he thinks fit; and every person in charge of such a place aforesaid shall cause the forms and instructions to be placed at the disposal of persons confined in that place who desire to make application for leave to appeal under this Act.

If, in the case of the conviction of a person by a court martial,—

• (a) It appears to the Judge Advocate General of the Armed Forces that the finding of the court martial involves a point of law of exceptional importance which in his opinion should be determined by the Court; or

• (b) It appears to the Minister, upon consideration of matters appearing to him not to have been brought to the notice of the court martial at the trial, to be expedient that the finding of the court martial should be considered or reconsidered by the Court,—

the Judge Advocate General or the Minister, as the case may be, may refer the finding to the Court, and a reference under this section shall, for the purposes of the foregoing provisions of this Act, be treated as an appeal by the person convicted against his conviction.

The powers of the Court under this Act—

• (a) To give leave to appeal:

• (b) To extend the period within which an application for leave to appeal must be lodged:

• (c) To grant an appellant legal aid:

• (d) To allow an appellant to be present at any proceedings under this Act—

may be exercised by any Judge of the Court in the same manner as they may be exercised by the Court, and subject to the same provisions; but, if the Judge refuses an application on the part of an appellant to exercise in his favour any of the powers mentioned in this section, the appellant, upon making a requisition in that behalf within the prescribed period and in the prescribed form and manner, shall be entitled to have the application determined by the Court as duly constituted for the hearing and determination of appeals under this Act.

(1) Rules of Court may be made in the manner provided by the Judicature Act 1908 for regulating the procedure and practice to be followed in the Court.

(2) Rules of Court made for the purposes of any provision of this Act may make different provision in relation to different classes of cases and may provide for any incidental or supplementary matters for which it appears to be necessary or expedient for the purposes of that provision to provide.

The Governor-General may from time to time, by Order in Council, make regulations, not inconsistent with this Act, for all or any of the following purposes:

• (a) Providing for the payment of such fees, allowances, and expenses as may be fixed or determined by or in accordance with the regulations to the following persons (other than members of the regular forces):

  • (i) A person appointed under section 3(1)(b) to be a Judge of the Courts Martial Appeal Court:

  • (ii) Solicitors or counsel assigned to an appellant under this Act:

• (b) Prescribing the fees, allowances, and expenses payable to witnesses, and other expenses referred to in subsection (2) of section 16.

Nothing in this Act shall affect Her Majesty's Royal prerogative of mercy.