Court Martial Act 2007

Reprint as at 5 March 2012

Coat of Arms of New Zealand

Court Martial Act 2007

Public Act
 
2007 No 101
Date of assent
 
13 November 2007
Commencement
 
see section 2
Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.

This Act is administered by the New Zealand Defence Force.

Contents

1Title
2Commencement
3Purpose of this Act
4Overview of this Act
5Interpretation
6This Act to be read with 1971 Act
7This Act binds the Crown
8Court Martial of New Zealand established
9Court Martial must sit in divisions
10Judges of Court Martial
11Eligibility for appointment as Judge
12Appointment of Chief Judge
13Appointment of Deputy Chief Judges
14Appointment of other Judges
15Notice requirement for appointment of Chief Judge, Deputy Chief Judges, or other Judges
16Protection of Judges against removal from office
17Judges must not hold other offices
18Judges to have immunities of High Court Judges
19Age of retirement
20Salaries and allowances of Judges
21Composition of Court Martial
22Qualifications for membership
23Disqualifications for membership
24Registrar must consider other factors in assigning military members
25Officers of other forces may be assigned as military members in certain circumstances
26Procedure for assigning military members
27Accused may object against assignment of person as military member
28Substitute military members
29Duties of Judge: general
30Duties of Judge at trial
31Duties of military members
32Failure to attend Court Martial is contempt of court
33Seniority of military members
34Senior military member must submit report on command issues
35Prohibition on taking into account information about conduct of military members
36Jurisdiction of Court Martial
37Requirements for sittings of Court Martial
38When Court Martial must hold proceedings in closed court
39Judge may limit scope of open court
40Duration of order limiting scope of open court
41Application of section 42
42Special provisions in cases involving sexual violation
43Preliminary procedure
44Judge may sit alone to rule on question of law or procedure
45Power to summon witnesses
46Service of summons
47Administration of oaths
48Discharge of military members
49Judge may grant bail pending trial
50Judge may grant bail pending appeal
51Time on bail pending appeal does not count as time served
52Procedure for bail generally
53Issue of warrant to arrest person absconding or breaching bail condition
54Person arrested under warrant for absconding or breaching bail condition must be brought before Judge
55Finding of Court Martial
56Power to convict of offence other than that charged
57Accused may be convicted of attempting to commit offence
58Accused may be convicted of corresponding offence
59Accused may be convicted of offence even though facts proved in evidence differ from those alleged in particulars of charge
60Recording of finding on alternative charges
61Sentence of Court Martial
62Order to come up for sentence if called on
63Offender to come up for sentence
64Other offences may be taken into account in passing sentence
65Court Martial must adhere to sentencing guidelines
66Announcement of finding and sentence
67Court must take judicial notice of certain matters
68Defence of accused
69Proceedings not invalid for want of form, etc
70Application of provisions of Evidence Act 2006 relating to jury trials to proceedings under this Act or 1971 Act
71Evidence in proceedings under this Act or 1971 Act
72Limits on application of section 71: evidence of general matters
73Limits on application of section 71: evidence of custody at police station
74Limits on application of section 71: evidence of surrender, arrest, or delivery to service custody in relation to charge of desertion or absence without leave
75Records of Court Martial proceedings
76Evidence of proceedings of Court Martial
77Seal of Court Martial
78Chief Judge may delegate functions, duties, or powers to Deputy Chief Judge or Registrar
79Appointment of Registrar, clerks, and other officers of Court Martial
80Registrar to be Inspector of Service Penal Establishments
81Attendance of clerk, etc, at sitting of Court Martial
82Registrar may delegate functions, duties, or powers to clerk or other officer of Court Martial
83Transitional provision relating to Chief Judge
84What happens if court-martial has not yet been convened on commencement of this Act
85What happens if court-martial has been convened on commencement of this Act
86Part 6 of 1971 Act repealed
87Consequential amendments to other enactments
Reprint notes
 
1 Title

This Act is the Court Martial Act 2007.

2 Commencement

This Act comes into force on a date to be appointed by the Governor-General by Order in Council, and 1 or more orders may be made appointing different dates for different provisions.

Section 2: Court Martial Act 2007 brought into force, on 1 July 2009, by the Court Martial Act Commencement Order 2008 (SR 2008/233).

Part 1 Preliminary provisions relating to Court Martial

Subpart 1—Preliminary

3 Purpose of this Act

The purpose of this Act is—

(a)

to establish a permanent court of record, called the Court Martial of New Zealand, as a replacement for the ad hoc courts-martial provided for under Part 6 of the Armed Forces Discipline Act 1971; and

(b)

to provide for the Court Martial’s jurisdiction and related matters; and

(c)

to repeal Part 6 of the Armed Forces Discipline Act 1971.

4 Overview of this Act

(1)

Part 1 deals with preliminary matters, establishes the Court Martial, provides for the appointment of Judges of the Court Martial, sets out the composition of the Court Martial for proceedings (including the procedure for the assignment of military members), and states the duties of members of the court.

(2)

Part 2 relates to the jurisdiction of the Court Martial, the procedural requirements for the court, and the court’s powers in relation to proceedings (for example, the power to grant bail).

(3)

Part 3 sets out various miscellaneous and administrative provisions (including provisions for transitional matters, the repeal of Part 6 of the Armed Forces Discipline Act 1971, and consequential amendments to other enactments).

(4)

This section is only a guide to the general scheme and effect of this Act.

5 Interpretation

(1)

In this Act, unless the context otherwise requires,—

Chief Judge means the Chief Judge of the Court Martial appointed under section 12

Court Martial means the Court Martial of New Zealand established under section 8

defender means a member of the Armed Forces who undertakes the defence of the accused at the Court Martial

Deputy Chief Judge means a Deputy Chief Judge of the Court Martial appointed under section 13

Director of Military Prosecutions means the person appointed under section 101E of the 1971 Act

Discipline Committee means the Armed Forces Discipline Committee established under section 160 of the 1971 Act

Judge

(a)

means a Judge of the Court Martial; and

(b)

includes the Chief Judge and a Deputy Chief Judge

member of the Court Martial means a Judge or a military member

military member, in relation to the Court Martial, means an officer or a warrant officer who is assigned by the Registrar to be a member of that court

Registrar means the Registrar of the Court Martial

rules of procedure means rules of procedure made under section 150 of the 1971 Act

sentencing guidelines means sentencing guidelines produced by the Discipline Committee and published by the Chief of Defence Force as Defence Force Orders

serious offence has the meaning given by section 21(1)(b)(i)

substitute military member has the meaning given by section 27.

(2)

Any term or expression that is defined in the 1971 Act and used, but not defined, in this Act has the same meaning as in the 1971 Act.

6 This Act to be read with 1971 Act

(1)

This Act is to be read in conjunction with the 1971 Act.

(2)

Unless the context otherwise requires, the provisions of the 1971 Act and any regulations made under that Act apply to the extent that they are applicable and with any necessary modifications.

(3)

However, if there is any inconsistency between the provisions of this Act and any provisions of the 1971 Act or any regulations made under that Act, this Act prevails.

(4)

This section applies in addition to, and does not limit, section 5(2).

7 This Act binds the Crown

This Act binds the Crown.

Subpart 2—Establishment of Court Martial

Court Martial established

8 Court Martial of New Zealand established

(1)

A court of record called the Court Martial of New Zealand is established.

(2)

In addition to the jurisdiction and powers specially conferred on the Court Martial by this or any other Act, the court has all the powers inherent in a court of record.

9 Court Martial must sit in divisions

(1)

For the purposes of any proceedings in the Court Martial, the court must sit in divisions each comprising 1 Judge.

(2)

Each division of the Court Martial may exercise all the powers of the court.

(3)

A division of the Court Martial may exercise any powers of the court even though 1 or more divisions of the court are exercising any powers of the court at the same time.

Judges of Court Martial

10 Judges of Court Martial

(1)

The Court Martial comprises—

(a)

1 Judge who is to be the Chief Judge of the Court Martial; and

(b)

at least 6 other Judges.

(2)

The Court Martial’s jurisdiction is not affected by a vacancy in the number of its Judges.

11 Eligibility for appointment as Judge

(1)

A person must not be appointed as a Judge unless he or she—

(a)

has held a practising certificate as a barrister or solicitor of the High Court for at least 7 years; or

(b)

is a District Court Judge.

(2)

A District Court Judge who is appointed as a Judge of the Court Martial may sit as, or exercise any of the powers of, a District Court Judge.

12 Appointment of Chief Judge

(1)

The Governor-General may, by warrant, appoint a person as the Chief Judge.

(2)

A person must not be appointed as the Chief Judge unless he or she—

(a)

is appointed to, or holds, the office of Judge Advocate General; or

(b)

if the office of Judge Advocate General is vacant, is eligible for appointment as a Judge under section 11.

13 Appointment of Deputy Chief Judges

(1)

The Governor-General may, by warrant, appoint 1 or more Deputy Chief Judges.

(2)

A person must not be appointed as a Deputy Chief Judge unless he or she—

(a)

is appointed to, or holds, the office of Deputy Judge Advocate General; or

(b)

if the office of Deputy Judge Advocate General is vacant, is eligible for appointment as a Judge under section 11.

(3)

A Deputy Chief Judge may act in place of the Chief Judge if,—

(a)

because of illness or absence from New Zealand, or for any other reason, the Chief Judge is unable to exercise the duties of that office; or

(b)

the office of Chief Judge is vacant.

(4)

While acting in place of the Chief Judge, a Deputy Chief Judge—

(a)

may perform the functions and duties of the Chief Judge; and

(b)

may for that purpose exercise all the powers of the Chief Judge.

14 Appointment of other Judges

(1)

The Governor-General may, by warrant, appoint a person as a Judge.

(2)

Judges who are appointed under this section have seniority among themselves according to the dates of their appointment.

15 Notice requirement for appointment of Chief Judge, Deputy Chief Judges, or other Judges

The Chief of Defence Force must arrange for notice of an appointment under any of sections 12 to 14 to be published in the Gazette as soon as practicable after the appointment.

16 Protection of Judges against removal from office

(1)

A Judge may not be removed from office except by the Sovereign or the Governor-General, acting upon the address of the House of Representatives.

(2)

An address under subsection (1) may be moved only on the ground of—

(a)

the Judge’s misbehaviour; or

(b)

the Judge’s incapacity to discharge the functions of the Judge’s office.

17 Judges must not hold other offices

(1)

A Judge must not undertake any other paid employment or hold any other office (whether paid or not) unless the Governor-General is satisfied that the employment or other office is compatible with judicial office.

(2)

Subsection (1) is subject to section 11(2).

18 Judges to have immunities of High Court Judges

A Judge has all the immunities of a Judge of the High Court.

19 Age of retirement

(1)

Each Judge, except the Chief Judge, must retire from office on attaining the age of 70 years.

(2)

The Chief Judge must retire from office on attaining the age of 75 years.

20 Salaries and allowances of Judges

(1)

Each Judge is to be paid, out of public money, without further authority than this section,—

(a)

a salary at the rate that the Remuneration Authority determines; and

(b)

any allowances that are determined by the Remuneration Authority; and

(c)

any additional allowances (being travelling allowances or other incidental or minor allowances) that may be determined by the Governor-General.

(2)

In the case of the Chief Judge or a Deputy Chief Judge, the rate of salary and the allowances determined may be higher than those for the other Judges.

(3)

The salary of a Judge is not to be reduced while the Judge holds office.

(4)

The salary and allowances payable for a period during which a Judge acts on a part-time basis must be calculated and paid on a pro rata basis as a proportion of the salary and allowances for a full-time equivalent position.

(5)

For the purpose of subsection (3), the payment of salary and allowances on a pro rata basis under subsection (4) is not a reduction of salary.

(6)

Any determination made under subsection (1), and any provision of the determination, may be made so as to come into force on a date specified in the determination, being the date of the making of the determination or any other date, whether before or after the date of the making of the determination or the date of the commencement of this section.

(7)

Every determination made under subsection (1), and every provision of the determination, for which no date is specified under subsection (6) comes into force on the date of the making of the determination.

Subpart 3—Constitution of Court Martial for proceedings

Composition of Court Martial

21 Composition of Court Martial

(1)

For the purpose of any trial in the Court Martial and of any proceedings under section 63, the court must consist of—

(a)

1 Judge; and

(b)

either of the following:

(i)

5 military members if the proceedings relate to an offence for which the maximum penalty is life imprisonment or a term of imprisonment of 20 years or more (a serious offence); or

(ii)

3 military members in any other case.

(2)

For the purpose of any other proceedings in the Court Martial, the court may consist of 1 Judge.

(3)

The Chief Judge must assign the Judge for the proceedings.

(4)

The Registrar must assign the military members in accordance with sections 22 to 26 and, as the case may be, section 28.

Assignment of military members of Court Martial

22 Qualifications for membership

A person is qualified to sit as a military member only if he or she—

(a)

is a member of the Armed Forces; and

(b)

has served in the Armed Forces for a period of more than 3 years (whether continuously or in aggregate); and

(c)

is not disqualified under section 23.

23 Disqualifications for membership

A person is disqualified to sit as a military member if he or she—

(a)

has been the commanding officer of the accused at any time between the date on which the accused was charged and the date of the trial; or

(b)

is the prosecutor or a witness for the prosecution; or

(c)

has investigated the charge against the accused or was the officer who made the preliminary inquiry into the case; or

(d)

was the disciplinary officer who acted under Part 5 of the 1971 Act in respect of the charge against the accused; or

(e)

was a member or judge advocate of a previous court that tried the accused in respect of the same offence; or

(f)

has held, or was one of the persons holding, an inquiry under the 1971 Act into matters relating to the subject matter of the charge against the accused; or

(g)

has a personal interest in the case.

24 Registrar must consider other factors in assigning military members

(1)

In any proceedings in the Court Martial where the accused is an officer, the Registrar must assign—

(a)

5 officers to be military members if the proceedings relate to a serious offence; or

(b)

3 officers to be military members in any other case.

(2)

In any proceedings in the Court Martial where the accused is a rating, soldier, or airman, the Registrar may assign—

(a)

any of the following to be military members if the proceedings relate to a serious offence:

(i)

5 officers; or

(ii)

4 officers and 1 warrant officer; or

(iii)

3 officers and 2 warrant officers; or

(b)

either of the following to be military members in any other case:

(i)

3 officers; or

(ii)

2 officers and 1 warrant officer.

(3)

Unless the Registrar is of the opinion that it is not reasonably practicable to do so, the Registrar—

(a)

must assign military members whose ranks reflect—

(i)

the seniority of the accused; and

(ii)

the seriousness of the charge against the accused; and

(b)

must assign at least 1 military member who belongs to the same component of the Navy, Army, or Air Force, as the case may be, as the accused; and

(c)

must not assign officers or warrant officers who are all—

(i)

from the same ship or unit as the accused; or

(ii)

from 1 ship or unit.

25 Officers of other forces may be assigned as military members in certain circumstances

(1)

This section applies if—

(a)

it is necessary to try an accused at a particular place or under particular circumstances; and

(b)

because of that place or those circumstances, the Registrar considers that the minimum number of officers required by section 24(1) or (2) cannot, having regard to the operational requirements of the Armed Forces, be assigned as military members.

(2)

The Registrar may assign an officer of a force of another State to be a military member if that State has been declared to be serving together with a New Zealand force under section 23B of the Defence Act 1990.

(3)

However, only 1 officer may be assigned as a military member under subsection (2), and that person may not be assigned unless he or she has served as an officer for a period of more than 3 years (whether continuously or in aggregate).

26 Procedure for assigning military members

(1)

The Registrar must give written notice to—

(a)

each person who is assigned as a military member; and

(b)

the accused in the proceedings.

(2)

The notice under subsection (1)(a) must state that—

(a)

the person has been assigned as a military member; but

(b)

the assignment is to be confirmed pending any objections made by the accused in accordance with section 27.

(3)

The notice under subsection (1)(b) must—

(a)

set out the names and particulars of the persons who have been assigned as military members; and

(b)

state that the accused has the right to object to the Registrar in accordance with section 27.

27 Accused may object against assignment of person as military member

(1)

The accused may object to the Registrar about the assignment of any person as a military member on the ground that the person—

(a)

might not act, or is not in a position to act, impartially; or

(b)

is not qualified to sit as a military member under section 22.

(2)

An objection under subsection (1) must—

(a)

be in writing; and

(b)

specify the ground of the objection; and

(c)

be made within the time prescribed in the rules of procedure; and

(d)

be served on the Registrar.

(3)

On receiving an objection made in accordance with subsection (2), the Registrar must—

(a)

consider the objection; and

(b)

decide whether to accept or reject the objection.

(4)

If the Registrar accepts the objection, the Registrar must—

(a)

assign another person (a substitute military member) in accordance with sections 22 to 26 and 28; and

(b)

give written notice of that assignment to—

(i)

the substitute military member; and

(ii)

the person whose assignment was objected to by the accused (the impugned person); and

(iii)

the accused.

(5)

To avoid doubt, the impugned person must be treated as if that person had retired from the Court Martial on the date on which the notice under subsection (4)(b)(ii) is given.

(6)

If the Registrar rejects the objection,—

(a)

the impugned person is confirmed as a military member; and

(b)

the Registrar must give written notice of that fact to the impugned person and the accused.

28 Substitute military members

(1)

The Registrar may assign—

(a)

an officer to act as a substitute military member for another officer; or

(b)

a warrant officer to act as a substitute military member for another warrant officer.

(2)

A substitute military member may be assigned to fill a vacancy in the military membership of the Court Martial if a military member—

(a)

dies or becomes seriously ill before the beginning, or in the course, of the trial; or

(b)

is absent or is found to be disqualified to sit as a military member; or

(c)

retires from the court as a result of an objection under section 27; or

(d)

is found guilty of contempt of the Court Martial under section 32.

(3)

The accused may object to the Registrar about the assignment of any person as a substitute military member and the provisions of section 27 apply, with all necessary modifications, to that substitute military member.

Subpart 4—Duties of members of Court Martial

Duties of Judge

29 Duties of Judge: general

(1)

A Judge must act impartially at all times.

(2)

A Judge must be present whenever the Court Martial is sitting, whether in open or closed court, except when the court is deliberating on its findings at a trial or on a reconsideration of its findings.

(3)

A Judge must (without prejudice to the Judge’s duty under the rules of procedure) take all necessary steps to ensure that the defence of the accused is not prejudiced by the ignorance of the accused, or by any incapacity of the accused to state his or her case intelligibly or to question witnesses, or in any other way.

(4)

A Judge may call or recall any witness that he or she considers should be questioned on any matter that the Judge considers requires clarification.

(5)

A Judge must ensure that a proper record of any proceeding is made and is kept in safe custody in accordance with the rules of procedure.

30 Duties of Judge at trial

(1)

A Judge must ensure that a trial is conducted—

(a)

in accordance with this Act, the 1971 Act, and the rules of procedure; and

(b)

in a manner that is appropriate for a court of justice.

(2)

In particular, a Judge must act as follows:

(a)

rule on any informality or defect in—

(i)

the charge sheet; or

(ii)

the constitution of the Court Martial; or

(iii)

any other matter relating to the proceeding:

(b)

ensure that the prosecutor and the defender or counsel conduct themselves in accordance with the rules of procedure:

(c)

ensure that justice is administered and that the accused has a fair trial:

(d)

afford the accused every reasonable opportunity to make his or her defence:

(e)

ensure that the accused refrains from making remarks contemptuous of, or disrespectful towards, the Court Martial and from using insulting language:

(f)

ensure that no officer under instruction who is present expresses an opinion to a member of the Court Martial on any matter relating to the trial before the court has announced its findings, nor on sentence before the court has passed sentence:

(g)

after the final addresses on behalf of the prosecution and the accused, sum up the evidence and advise the military members on the application of the law to the case before they retire to deliberate on their findings:

(h)

if the military members declare a finding of guilty (including any finding authorised by sections 56 to 59) and the Judge is of the opinion that the finding is contrary to law, advise the military members once (but only once) more of the findings that are, in the Judge’s opinion, open to them in law.

(3)

For the purposes of subsection (2)(d), a Judge—

(a)

must not unnecessarily restrict the accused in the manner in which the accused makes the defence; and

(b)

must not stop the presentation of the defence on the ground of irrelevance except in extreme cases (although the Judge may caution the accused to avoid the defence becoming irrelevant).

(4)

Despite subsection (2)(e), a Judge must not prevent the accused from impeaching the evidence or motive of any witness, or charging any other person with any blame or criminality, if to do so is a part of the case for the defence (although the Judge may caution the accused of his or her liability to cross-examination if he or she follows that course).

Duties of military members

31 Duties of military members

(1)

A military member must at all times—

(a)

act in a manner that is consistent with achieving a fair trial for the accused; and

(b)

behave in a manner that is appropriate for a member of a court of justice.

(2)

In particular, a military member—

(a)

must consider all the evidence admitted by the Judge at the trial; and

(b)

must vote impartially on the finding and, if necessary, on the sentence; and

(c)

must not disclose any opinion of a member of the Court Martial or how that member voted on the finding or sentence, or both.

(3)

A military member may ask questions to clarify any matters at the trial.

32 Failure to attend Court Martial is contempt of court

(1)

A military member commits a contempt of the Court Martial if that person fails, without reasonable excuse, to—

(a)

attend all the sittings of the court in respect of the proceedings for which the military member was assigned; and

(b)

perform the functions or duties of a military member of the court during the period of that person’s membership of the court.

(2)

For the purposes of subsection (1), the period of a person’s membership of the Court Martial—

(a)

begins on the date on which the person receives the written notice referred to in section 26(1)(a) or 27(4)(b)(i), as the case may be; and

(b)

ends on the date on which the person—

(i)

retires from the court as a result of an objection under section 27; or

(ii)

is released from the court on the discharge of the military members under section 48; or

(iii)

is discharged by the Judge from his or her functions and duties as a military member on the completion of the proceedings concerned.

(3)

If a military member is alleged to have committed a contempt of the Court Martial under subsection (1), the Judge—

(a)

must inquire into the alleged contempt; and

(b)

may find the military member guilty of the contempt after hearing—

(i)

any witness against or on behalf of the military member; and

(ii)

any statement that may be offered in defence.

(4)

The penalty for contempt of the Court Martial under this section is imprisonment for a term not exceeding 21 days or a fine not exceeding $1,000.

(5)

To avoid doubt, a military member found guilty of contempt of the Court Martial under this section must be treated as if that person had retired from his or her membership of the court on the date of that finding.

Other provisions relating to role of military members

33 Seniority of military members

(1)

The most senior officer assigned by the Registrar as a military member is to be the senior military member of the Court Martial.

(2)

The other persons assigned by the Registrar as military members have seniority among themselves according to their rank and according to their seniority within that rank.

34 Senior military member must submit report on command issues

(1)

The senior military member must submit a written report on any command issues that arise in the course of any proceedings before the Court Martial to the superior commander who referred the charges that are the subject of those proceedings to the Director of Military Prosecutions.

(2)

The superior commander must forward a copy of a report under subsection (1) to—

(a)

the Chief of the relevant service; and

(b)

in the case of units under joint command, the commander of any joint force; and

(c)

the Discipline Committee.

(3)

This section is subject to section 35.

35 Prohibition on taking into account information about conduct of military members

(1)

This section applies to information about the way in which a military member, in the course of any proceedings before the Court Martial,—

(a)

conducted himself or herself as a member of the court; or

(b)

performed his or her functions or duties in that capacity.

(2)

Any information to which this section applies must not be taken into account in any decision that affects, or is likely to affect, the conditions of service within the Armed Forces of the military member to whom that information relates.

(3)

Conditions of service includes prospects of promotion, postings, or career enhancements.

Part 2 Jurisdiction, procedures, and powers

Subpart 1—Jurisdiction and sittings of Court Martial

General jurisdiction

36 Jurisdiction of Court Martial

(1)

The Court Martial has the jurisdiction conferred by section 78 of the 1971 Act.

(2)

In addition, the Court Martial must sit to hear and determine—

(a)

every charge laid before the Registrar by the Director of Military Prosecutions:

(b)

every application made by the Director of Military Prosecutions under section 63(2):

(c)

every other application made to the court under this Act (for example, an application for bail) or the 1971 Act.

Sittings of Court Martial

37 Requirements for sittings of Court Martial

(1)

The Court Martial—

(a)

must sit in open court unless section 38 or 39 applies; and

(b)

must sit in the presence of the accused; and

(c)

may sit in any place, whether in New Zealand or elsewhere; and

(d)

may conduct its proceedings by teleconference or by any means of communication that allows individuals a reasonable opportunity to participate in the proceedings.

(2)

Despite subsection (1)(b), the Court Martial may sit in the absence of the accused if the accused misconducts himself or herself by so interrupting the proceedings as to render the continuation of those proceedings in his or her presence impracticable.

(3)

Subsection (1)(b) and (d) are subject to the rules of procedure.

(4)

A sitting of the Court Martial may be adjourned from time to time and from place to place.

38 When Court Martial must hold proceedings in closed court

(1)

The Court Martial must hold its proceedings in closed court while—

(a)

the Judge sits alone to rule on any question of law or procedure in accordance with section 44:

(b)

the military members deliberate on the finding in accordance with section 55:

(c)

the Judge and the military members deliberate on the sentence in accordance with section 61.

(2)

The Court Martial may hold its proceedings in closed court on any other deliberation.

(3)

When the Court Martial holds its proceedings in closed court, only the following persons may be present:

(a)

the members of the court referred to in subsection (1)(a), (b), or (c) (as the case requires):

(b)

in the case of proceedings referred to in subsection (1)(a), the persons referred to in section 39(2)(c)(iii) to (vii):

(c)

any other persons authorised by the Judge.

39 Judge may limit scope of open court

(1)

In any proceedings in the Court Martial, the Judge may make any of the orders specified in subsection (2) limiting the scope of open court if the Judge considers that—

(a)

a statement may be made or evidence given in the course of those proceedings that might lead to the disclosure of information that would or might—

(i)

be directly or indirectly useful to the enemy or any foreign country; or

(ii)

be otherwise harmful to New Zealand; or

(b)

the making of the order—

(i)

is necessary in the interests of justice; or

(ii)

is desirable in the interests of public morality; or

(iii)

is necessary for the protection of the reputation of a victim of an alleged sexual offence or offence of extortion.

(2)

The orders referred to in subsection (1) are as follows:

(a)

an order forbidding publication of any report or account of the whole or any part of the proceedings, including any evidence adduced or submissions made:

(b)

an order forbidding the publication of the name of any person connected, whether as a witness or otherwise, with the proceedings or of any name or particulars likely to lead to the identification of that person:

(c)

an order excluding all or any persons, except the following:

(i)

a military member:

(ii)

an officer under instruction:

(iii)

the Director of Military Prosecutions or any person acting on behalf of the Director:

(iv)

the accused and any escort of the accused:

(v)

the accused’s counsel or defender:

(vi)

the Registrar or any other officer of the Court Martial:

(vii)

an interpreter required in the proceedings:

(viii)

a person expressly permitted by the Judge to be present.

(3)

However, the Judge may make an order specified in subsection (2)(c) that has the effect of excluding any accredited news media reporter from the proceedings only on the grounds specified in subsection (1)(a), but not on any of the grounds specified in subsection (1)(b).

40 Duration of order limiting scope of open court

An order specified in section 39(2) limiting the scope of open court—

(a)

may be made for a limited period or permanently; and

(b)

if made for a limited period, may be renewed for a further period or periods or made permanent by the Court Martial at any time; and

(c)

if made permanently, may be reviewed by the Court Martial at any time.

41 Application of section 42

Section 42 applies to any proceedings under the 1971 Act (a case involving sexual violation) in which a person is charged with, or is to be sentenced for, an offence against—

(a)

section 74 of that Act, where the corresponding civil offence is—

(i)

sexual violation:

(ii)

attempted sexual violation:

(iii)

assault with intent to commit sexual violation:

(iv)

an offence against section 129A of the Crimes Act 1961 (sexual conduct with consent induced by certain threats):

(v)

an offence against section 142A of the Crimes Act 1961 (compelling indecent act with an animal):

(b)

section 75 of that Act, where the offence is one of aiding, abetting, inciting, counselling, procuring, or conspiring with any person to commit any offence referred to in paragraph (a)(i) to (v).

42 Special provisions in cases involving sexual violation

(1)

While the complainant in a case involving sexual violation is giving oral evidence (whether in chief or under cross-examination or on re-examination), no person may be present except the following:

(a)

the Judge for the proceeding:

(b)

a military member:

(c)

an officer under instruction:

(d)

the Director of Military Prosecutions or any person acting on behalf of the Director:

(e)

the accused and any escort of the accused:

(f)

the accused’s counsel or defender:

(g)

the Registrar or any other officer of the Court Martial:

(h)

an interpreter required in the proceedings:

(i)

an accredited news media reporter:

(j)

a person whose presence is requested by the complainant:

(k)

a person expressly permitted by the Judge to be present.

(2)

Before the complainant in a case involving sexual violation commences to give evidence, the Judge must—

(a)

ensure that no person other than one referred to in subsection (1) is present; and

(b)

advise the complainant of the complainant’s right to request the presence of any person under subsection (1)(j).

(3)

If, in a case involving sexual violation, the Judge is of the opinion that the interests of the complainant so require, he or she may make an order forbidding publication of any report or account giving details of the criminal acts alleged to have been performed on the complainant or of any acts that the complainant is alleged to have been compelled or induced to perform or consent to or acquiesce in.

(4)

This section does not limit or affect the powers of the Judge to make an order specified in section 39(2) that excludes any person from, or forbids the publication of any report or account of, the proceedings.

Subpart 2—Procedures

43 Preliminary procedure

(1)

The Registrar must—

(a)

fix the time and place for each sitting of the Court Martial; and

(b)

give written notice of the time and place fixed to—

(i)

the accused; and

(ii)

the Director of Military Prosecutions; and

(iii)

the Judge for the proceedings; and

(iv)

the military members for the proceedings.

(2)

At the beginning of the trial, the notice under subsection (1)(b) must—

(a)

be accompanied by a copy of the charge sheet certified by the Director of Military Prosecutions in accordance with section 101F(c) of the 1971 Act and laid before the Registrar in accordance with section 101F(e) of that Act; and

(b)

in the case of a notice to the accused, be accompanied by a copy of all documents submitted to the Judge by the Director of Military Prosecutions in relation to the charge; and

(c)

in the case of a notice to the military members, be accompanied by an information sheet that—

(i)

describes the functions and duties of military members; and

(ii)

is in the prescribed form.

44 Judge may sit alone to rule on question of law or procedure

(1)

The Judge for the proceedings must—

(a)

rule on every question of law or procedure that arises during any trial in the Court Martial; and

(b)

sit in the absence of the military members to determine the question of law or procedure if the Judge considers it would be desirable in the interests of justice to do so.

(2)

To avoid doubt, the Judge may sit alone under subsection (1)(b) before or after the appointment of the military members.

(3)

A ruling under subsection (1) must be followed by the military members.

(4)

In this section, question of law includes any question arising in respect of—

(a)

a plea to the general jurisdiction of the Court Martial:

(b)

a plea in bar of trial:

(c)

an application for the separation of trials:

(d)

an application for the severance of charge sheets:

(e)

an application for the severance of charges:

(f)

a submission that there is no case to answer:

(g)

the admissibility of evidence:

(h)

an application for a ruling referred to in section 30(2)(a):

(i)

an application for an order specified in section 39(2):

(j)

an order under subpart 3 of Part 5 of the Criminal Procedure Act 2011 (as applied to proceedings under the 1971 Act by section 145 of the 1971 Act):

(k)

an application for discovery:

(l)

the fitness of the accused to stand trial.

Section 44(4)(j): amended, on 5 March 2012 (applying in relation to a proceeding for an offence that was commenced before that date), by section 393 of the Criminal Procedure Act 2011 (2011 No 81).

45 Power to summon witnesses

(1)

The Judge for the proceedings or the Registrar may issue a summons requiring any person to—

(a)

attend at the time and place specified in the summons; and

(b)

give evidence; and

(c)

produce any papers, documents, records, or things in that person’s possession or under that person’s control that are relevant to the subject of the relevant proceedings.

(2)

A summons—

(a)

must be in the prescribed form; and

(b)

may be issued—

(i)

on the initiative of the Judge or Registrar; or

(ii)

on the application of the Director of Military Prosecutions or the accused.

46 Service of summons

(1)

A summons to a witness may be served—

(a)

by delivering it to the person summoned; or

(b)

by posting it by registered letter addressed to the person summoned at that person’s usual place of residence.

(2)

The summons must,—

(a)

if it is served under subsection (1)(a), be served at least 24 hours before the attendance of the witness is required:

(b)

if it is served under subsection (1)(b), be served at least 10 days before the date on which the attendance of the witness is required.

(3)

If the summons is posted by registered letter, it is deemed for the purposes of subsection (2)(b) to be served at the time when the letter would be delivered in the ordinary course of post.

47 Administration of oaths

(1)

An oath in the prescribed form must be administered to—

(a)

every military member:

(b)

every officer under instruction in the Court Martial:

(c)

every person responsible for recording or transcribing the proceedings in the court:

(d)

every interpreter attending the court.

(2)

Every witness before the court must be examined on oath administered in the prescribed form.

(3)

If the court considers that a child who is called as a witness does not understand the nature of an oath, the child’s evidence may be received even though it is not given on oath, so long as the court is of the opinion that the child—

(a)

has sufficient intelligence to justify the reception of the evidence; and

(b)

understands the duty of speaking the truth.

(4)

If any person referred to in subsection (1) or (2) objects to being sworn, or it is not reasonably practicable to administer an oath to that person in a manner appropriate to his or her religious belief, the person may be permitted to make a solemn affirmation instead of swearing an oath.

(5)

The making of an affirmation under subsection (4) has the same force and effect and has the same consequences as the taking of an oath.

(6)

Every oath or affirmation required to be administered under this Act must be administered in accordance with the rules of procedure.

Discharge of military members

48 Discharge of military members

(1)

The Judge—

(a)

must discharge the military members if they are unable to reach a unanimous decision on the charge; or

(b)

may discharge the military members if, before or after the beginning of a trial, the Judge considers it to be necessary or expedient in the interests of the administration of justice.

(2)

Section 55(2) applies if subsection (1)(a) applies.

(3)

If, after the beginning of a trial, the Judge dies or is otherwise unable to attend,—

(a)

the Chief Judge must assign another Judge to be the Judge of the Court Martial; and

(b)

that Judge must discharge the military members.

(4)

If the military members are discharged under this section, they are released from their functions and duties to the court.

Subpart 3—Bail

General

49 Judge may grant bail pending trial

(1)

This section applies to a person who—

(a)

is accused of committing an offence against the 1971 Act; and

(b)

is being held in custody under that Act.

(2)

The accused is not entitled to bail as of right.

(3)

A Judge may, on application by the accused,—

(a)

grant bail to the accused:

(b)

impose any conditions of bail that the Judge thinks fit.

(4)

In determining whether to grant bail under this section, the Judge—

(a)

must take into account the considerations set out in section 8(1) and (3) of the Bail Act 2000 and all of the following considerations:

(i)

the seriousness of the offence:

(ii)

whether there are urgent and exceptional circumstances that favour the granting of bail:

(iii)

the effect on service discipline of releasing the person on bail; and

(b)

may take into account the considerations set out in section 8(2) of the Bail Act 2000; and

(c)

must not grant bail unless satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.

(5)

The onus is on the accused to show cause why bail should be granted.

50 Judge may grant bail pending appeal

(1)

This section applies to a person (the appellant) who—

(a)

has been convicted of an offence against the 1971 Act; and

(b)

is serving a sentence of imprisonment or detention under that Act in respect of the conviction pending the determination of his or her appeal against conviction or sentence, or both, to—

(i)

the Summary Appeal Court; or

(ii)

the Court Martial Appeal Court.

(2)

The appellant—

(a)

is not entitled to bail as of right; and

(b)

may not go at large without bail.

(3)

A Judge may, on application by the appellant,—

(a)

grant bail to the appellant:

(b)

impose any conditions of bail that the Judge thinks fit.

(4)

In determining whether to grant bail under this section, the Judge—

(a)

must take into account all of the following considerations:

(i)

the seriousness of the offence:

(ii)

whether there are urgent and exceptional circumstances that favour the granting of bail:

(iii)

the effect on service discipline of releasing the person on bail; and

(b)

may take into account the considerations set out in section 14(3) of the Bail Act 2000; and

(c)

must not grant bail unless satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.

(5)

The onus is on the appellant to show cause why bail should be granted.

51 Time on bail pending appeal does not count as time served

Any time during which an appellant is released from imprisonment or detention on bail pending an appeal against conviction or sentence, or both, does not count as time served under any sentence.

Other provisions relating to bail

52 Procedure for bail generally

(1)

If an application for bail is made under section 49(3) or 50(3), the Registrar must forward a copy of the application to the Director of Military Prosecutions.

(2)

The Director of Military Prosecutions—

(a)

must be the respondent to the application; and

(b)

may make recommendations to the Judge who is considering the application.

(3)

Before making a decision, the Judge must consider any recommendations that the Director of Military Prosecutions has made, including any recommendations on measures to prevent the escape of the person concerned should bail be granted.

53 Issue of warrant to arrest person absconding or breaching bail condition

(1)

A Judge may issue a warrant in the prescribed form for the arrest of a person who has been released on bail under section 49 or 50 if—

(a)

the Judge is satisfied by evidence on oath that—

(i)

the person has absconded or is about to abscond for the purpose of evading justice; or

(ii)

the person has contravened or failed to comply with any condition of bail; or

(b)

the person—

(i)

does not attend personally at the time and place specified in the grant of bail; or

(ii)

does not attend personally at any time and place to which during the course of the proceedings the hearing has been adjourned.

(2)

The warrant—

(a)

must be directed to every provost officer and every member of the police; and

(b)

may be executed by—

(i)

a provost officer:

(ii)

a person lawfully exercising authority under or on behalf of a provost officer:

(iii)

a member of the police.

(3)

For the purpose of executing the warrant, a person referred to in subsection (2)(b) may, at any time, enter on to any premises, by force if necessary, if he or she has reasonable grounds to believe that the person against whom the warrant is issued is on those premises.

(4)

The person executing the warrant—

(a)

must have the warrant with him or her; and

(b)

must produce it on initial entry and, if requested, at any subsequent time; and

(c)

must if he or she is not in uniform, produce evidence that he or she is one of the persons referred to in subsection (2)(b).

54 Person arrested under warrant for absconding or breaching bail condition must be brought before Judge

(1)

A person who is arrested under a warrant issued under section 53 must be brought before a Judge as soon as possible.

(2)

The Judge must reconsider the question of bail if satisfied that the person—

(a)

had absconded or was about to abscond; or

(b)

had contravened or failed to comply with any condition of bail.

Subpart 4—Findings of Court Martial

Finding on charge

55 Finding of Court Martial

(1)

The finding of the Court Martial on a charge must be determined by the unanimous vote of the military members.

(2)

If the military members are unable to reach a unanimous decision on the charge, the Judge must refer the charge back to the Director of Military Prosecutions after discharging the military members in accordance with section 48(1)(a).

(3)

The Director of Military Prosecutions may then—

(a)

decide not to proceed with the charge; or

(b)

lay the charge sheet again, or an amended version of the charge sheet, before the Registrar.

(4)

If subsection (3)(b) applies, the Registrar must assign new military members in accordance with sections 22 to 26 and, as the case may be, section 28.

56 Power to convict of offence other than that charged

(1)

This section applies if a provision of the 1971 Act provides that—

(a)

an act or omission, if done or made with a certain specified intent or in certain specified circumstances, is an offence punishable by a specified punishment; and

(b)

the same act or omission, if done or made otherwise than with that intent or in those circumstances, is an offence punishable by a less severe punishment.

(2)

An accused charged with having committed an offence with the intent or in the circumstances involving the more severe punishment may be convicted of the offence that relates to the less severe punishment.

57 Accused may be convicted of attempting to commit offence

(1)

An accused charged with an offence may, if the circumstances warrant it, be convicted of attempting to commit that offence.

(2)

An accused charged with attempting to commit an offence may be convicted of the attempt even though it is proved that he or she actually committed the offence.

58 Accused may be convicted of corresponding offence

An accused charged with an offence (offence A) specified in the first column of Schedule 1 may be convicted of the corresponding offence (offence B) specified in the second column of that schedule in relation to offence A.

59 Accused may be convicted of offence even though facts proved in evidence differ from those alleged in particulars of charge

An accused may be convicted of an offence even though the facts proved in evidence differ from the facts alleged in the particulars of the charge, if the Court Martial considers that—

(a)

the facts proved in evidence are sufficient to prove the commission of the offence to which the charge relates; and

(b)

the difference is not so material as to have prejudiced the accused in his or her defence.

60 Recording of finding on alternative charges

If the Court Martial records a conviction on a charge laid in the alternative, the court must—

(a)

find the accused not guilty of any charge laid in the alternative to it that is placed before it on the charge sheet; and

(b)

record no finding on any alternative to it that is placed after it on the charge sheet.

Sentence of Court Martial

61 Sentence of Court Martial

(1)

The sentence of the Court Martial (if any) must be passed by the majority of the votes of the Judge and the military members.

(2)

However, if there is an equality of votes on the sentence, the Judge has a casting vote.

62 Order to come up for sentence if called on

(1)

If the accused is convicted of an offence, the Court Martial may, instead of passing sentence, order the accused to appear for sentence, if called on to do so within the period specified in subsection (2).

(2)

The period referred to in subsection (1) is a period not exceeding 1 year, commencing with the date of conviction, that the Court Martial may specify in the order.

(3)

If the Court Martial makes an order under subsection (1), the court must record and attach to the record of proceedings a statement of its findings of fact in relation to the charge.

(4)

The Court Martial may make orders under section 86 or 87 of the 1971 Act in combination with an order under subsection (1).

63 Offender to come up for sentence

(1)

This section applies if an offender for whom an order is made under section 62

(a)

is convicted or found guilty summarily of a subsequent offence against the 1971 Act or any other Act; or

(b)

fails to comply with any other order referred to in section 62(4); or

(c)

fails to comply with any agreement, or fails to take any measure or action, of a kind referred to in section 10(1)(b), (d), or (e) of the Sentencing Act 2002 that was brought to the attention of the Court Martial at the time the Court Martial made the order under section 62.

(2)

The Director of Military Prosecutions may, at any time within the period specified in the order, apply to the Court Martial to have the offender brought before the Court Martial to be dealt with for the original offence.

(3)

On an application under subsection (2), the offender is to be placed in close arrest and brought before the Court Martial at the time and place directed by the Registrar.

(4)

If a person appears before the Court Martial under this section and the Court Martial is satisfied of any of the matters specified in subsection (1), the Court Martial—

(a)

must inquire into the circumstances of the original offence and the conduct of the offender since the order was made (including, if appropriate, the circumstances and seriousness of the subsequent offence (if any)); and

(b)

may sentence the offender for the original offence.

64 Other offences may be taken into account in passing sentence

(1)

A person who is found guilty by the Court Martial of an offence may request the court to take into account any other offence that the person admits to having committed, if the other offence—

(a)

is similar to that of which the person has been found guilty; and

(b)

is not an offence that is punishable by imprisonment for life.

(2)

If a request is made under subsection (1), the court may take the other offence into account in sentencing the accused.

(3)

If the court takes the other offence into account, it must not, in passing sentence, impose a punishment of greater severity than the maximum punishment that it may impose for the offence of which the accused was found guilty.

(4)

The court may exercise, in respect of any other offence taken into account under this section, any of the powers to order payment of compensation under section 86 of the 1971 Act or the restitution of property under section 87 of that Act.

65 Court Martial must adhere to sentencing guidelines

When sentencing an offender, the Court Martial must pass a sentence that is consistent with any sentencing guidelines that are relevant in the offender’s case, unless the court is satisfied that it would be contrary to the interests of justice to do so.

Announcement of finding and sentence

66 Announcement of finding and sentence

(1)

The Judge must announce in open court—

(a)

the finding of the Court Martial on each charge tried by the court; and

(b)

any sentence passed by the court.

(2)

The Judge must give reasons for the sentence (if any) passed by the court.

(3)

Subsection (4) applies if the Court Martial sentences a person—

(a)

to be dismissed from Her Majesty’s service; or

(b)

to a term of imprisonment involving dismissal from Her Majesty’s service.

(4)

In delivering a sentence, the Judge must state that the dismissal does not take effect—

(a)

until the expiration of the period for lodging an appeal to the Court Martial Appeal Court against the conviction or sentence; or

(b)

if an appeal to that court, the Court of Appeal, or the Supreme Court is pending, until the appeal is determined.

Part 3 Miscellaneous and administrative provisions

Subpart 1—Miscellaneous provisions

Miscellaneous

67 Court must take judicial notice of certain matters

(1)

The Court Martial must take judicial notice of—

(a)

all matters of common knowledge; and

(b)

all other matters of which judicial notice would be taken by the High Court.

(2)

The Court Martial may also take judicial notice of matters that may fairly be regarded as being within the general service knowledge of members of the court.

68 Defence of accused

Any accused to be tried by the Court Martial may be defended—

(a)

by a lawyer; or

(b)

by a defender.

69 Proceedings not invalid for want of form, etc

No proceedings before the Court Martial may—

(a)

be held invalid by reason only of want of form; or

(b)

be liable to removal into any court by means of any prerogative writ or order; or

(c)

be liable to review by any court under the Judicature Amendment Act 1972 or otherwise.

70 Application of provisions of Evidence Act 2006 relating to jury trials to proceedings under this Act or 1971 Act

(1)

The provisions of the Evidence Act 2006 that relate to a trial before a jury apply, to the extent that they are applicable and subject to all necessary modifications, to proceedings of the Court Martial under this Act or the 1971 Act that involve military members as if those proceedings were proceedings that involve a jury.

(2)

The provisions of the Evidence Act 2006 referred to in subsection (1)—

(b)

do not include sections 101 and 128.

71 Evidence in proceedings under this Act or 1971 Act

(1)

The rules of evidence that apply in the High Court for criminal proceedings (including the rules of evidence contained in the Evidence Act 2006 and in any other enactment containing any rule of evidence) are the rules of evidence to be followed in proceedings of the Court Martial.

(2)

Accordingly, a person is not required to answer any question or to produce any document in proceedings of the Court Martial that he or she could not be required to answer or produce in criminal proceedings before the High Court.

(3)

This section is subject to sections 72 to 74.

72 Limits on application of section 71: evidence of general matters

(1)

Despite section 71, subsections (2) to (12) apply with respect to evidence in all proceedings under this Act or the 1971 Act.

(2)

The attestation paper purporting to be signed by a person on his or her being attested as a rating, soldier, or airman in the Armed Forces of New Zealand or in any Commonwealth force, and the declaration purporting to be made by any person upon his or her re-engagement in any of the Armed Forces of New Zealand or in any Commonwealth force, is evidence of that person having given the answers to questions that he or she is represented as having given in the paper or declaration.

(3)

The enlistment of a person in any of the Armed Forces of New Zealand or in a Commonwealth force may be proved by the production of a copy of his or her attestation paper purporting to be certified to be a true copy by the officer or record officer having the custody of the attestation paper without proof of the handwriting of that officer, or of his or her having the custody of the paper.

(4)

A letter, return, or other document with respect to a person, if purporting to be issued by or on behalf of the Chief of Defence Force, or by a person authorised by the Chief of Defence Force, or by the commanding officer or the officer or record officer having the custody of the records of any portion of a Commonwealth force, or of any ship of a Commonwealth naval force to which that person appears to have belonged, or alleges that he or she belongs or had belonged, is evidence of the facts stated in that letter, return, or other document of the person—

(a)

having or not having at any time or times served in, or been discharged from, any Commonwealth force; or

(b)

having or not having held any rank or appointment in, or been posted or transferred to, any Commonwealth force, or having or not having served in any particular country or place; or

(c)

being or not being authorised to use or wear any service decoration, ribbon, badge, wound stripe, or emblem, the use or wearing of which by an unauthorised person is under any other Act an offence.

(5)

Copies purporting to be printed under the authority of the New Zealand Government of regulations, rules, or orders made under this Act, the 1971 Act, the Defence Act 1990, or any other Act are evidence of those regulations, rules, or orders.

(6)

Any list of members of the Armed Forces published by or under the authority of the Chief of Defence Force, or published in the Gazette, is evidence of the status and rank of the members mentioned in the list or Gazette, and of any appointment held by any of those members, and of the ship, corps, or battalion or arm or branch of the service to which any of those members belongs.

(7)

Any warrants or orders made under this Act, the 1971 Act, or the Defence Act 1990 by any service authority are deemed to be evidence of the matters and things that are directed to be stated in those warrants or orders by or under this Act, the 1971 Act, or the Defence Act 1990, and any copies of any of those warrants or orders purporting to be certified to be true copies by the officer alleged to be authorised by the Chief of Defence Force to certify them, are admissible in evidence.

(8)

If an entry is made in, or a document is filed with, any service record pursuant to this Act, the 1971 Act, or the Defence Act 1990 or pursuant to a service duty, and that entry or document purports to be signed by the commanding officer or by the officer or record officer whose duty it is to make the entry or file the document, as the case may be, that entry or document is evidence of the facts stated in them.

(9)

A copy of any entry or document (including the signature of any person who has signed it) forming part of a service record and purporting to be certified to be a true copy by the officer or record officer stated in the certificate to have the custody of the record is evidence of that entry or document.

(10)

A certificate purporting to be signed by the commanding officer of any accused, or signed by any other officer authorised by that commanding officer to give the certificate, and stating the contents of any Defence Force Order, or any general, standing, daily, or routine order, or any part of the order, made in respect of any service, force, command, or formation, or any defence area or ship, or any unit, detachment, or other part of the Armed Forces, is, in the proceedings against the accused, evidence of the matters stated in the certificate.

(11)

A certificate purporting to be signed by the commanding officer of any accused, or signed by any other officer authorised by that commanding officer to give the certificate, and stating the contents of any part of any Defence Manual, is, in the proceedings against the accused, evidence of the matters stated in the certificate.

(12)

If the issue or one of the issues in the proceedings relates to the navigation of one of Her Majesty’s New Zealand ships, a navigation report prepared by a competent officer or officers appointed in accordance with the rules of procedure is evidence of the matters stated in the report.

73 Limits on application of section 71: evidence of custody at police station

(1)

Despite section 71, subsections (2) and (3) apply with respect to evidence in all proceedings under this Act or the 1971 Act against a member of the Armed Forces who has been arrested by, or who has surrendered to, the New Zealand Police.

(2)

If the member has been taken to a police station in any place in New Zealand or elsewhere or has on surrender been taken into custody at any police station, then, for the purposes of any proceedings against that member, a certificate purporting to be signed by the member of the police in charge of that police station, and stating the fact, date, and place of the arrest or surrender, is evidence of the matters so stated.

(3)

Any certificate given under subsection (2) may include a statement as to whether, at the time of the arrest, or surrender, the member was wearing the uniform of the service to which he or she belongs or civilian clothes; and that certificate is evidence of the matters so stated.

74 Limits on application of section 71: evidence of surrender, arrest, or delivery to service custody in relation to charge of desertion or absence without leave

(1)

Despite section 71, subsections (2) to (5) apply with respect to evidence in all proceedings under this Act or the 1971 Act against a member of the Armed Forces on a charge of being a deserter or an absentee without leave.

(2)

If the member has surrendered himself or herself into the custody of a provost officer or a person lawfully exercising authority under or on behalf of a provost officer, or of any other officer of any New Zealand or allied force, a certificate purporting to have been signed by that provost officer, or person, or other officer, and stating the fact, date, and place of the surrender, is evidence of the matters so stated.

(3)

If the member has been arrested and taken into the custody of a provost officer or a person lawfully exercising authority under or on behalf of a provost officer, or of any other officer of any New Zealand or allied force, a certificate purporting to have been signed by that provost officer, or person, or other officer, and stating the fact, date, and place of the arrest, is evidence of the matters so stated.

(4)

If the member has been delivered into service custody by a member of the police, a certificate purporting to be signed by that member of the police, and stating the fact, date, and place of the surrender of the member, is evidence of the matters so stated.

(5)

Any certificate given under subsections (2) to (4), or any 1 or more of those subsections, may include a statement as to whether, at the time of the surrender, arrest, or delivery into service custody, as the case may be, the member was wearing the uniform of the service to which he or she belongs or civilian clothes; and that certificate is evidence of the matters so stated.

75 Records of Court Martial proceedings

(1)

A person who has custody of any record of the proceedings of the Court Martial held under this Act or the 1971 Act must deliver it as soon as practicable after the trial to the Judge Advocate General.

(2)

The Judge Advocate General may give directions as to how the record must be kept (including directions as to how long it must be kept, which must be for a period of not less than 6 years from the conclusion of the trial).

(3)

A person who has been tried by the Court Martial (person A), or if person A is dead, his or her personal representative (person B), is entitled to be supplied with a copy of the record of the proceedings of the court if person A or B—

(a)

applies to the Judge Advocate General within,—

(i)

in the case of person A, 5 years after the conclusion of the trial; or

(ii)

in the case of person B, 12 months after the death of person A; and

(b)

pays the prescribed fee (if any).

(4)

Despite subsection (3), if the Minister certifies that it is necessary for reasons of security that the record of the proceedings of the Court Martial, or any part of them, should not be disclosed, the Judge Advocate General may direct that an applicant for a copy of the record is not to be supplied with the record, or that part of the record, to which the certificate relates.

(5)

In this section,—

personal representative, in relation to deceased person A, means—

(a)

person A’s legal personal representative; or

(b)

any other person whom the Judge Advocate General considers should, for the purposes of this section, be regarded as the personal representative of person A

record of the proceedings of the Court Martial includes the record of any reconsideration of the sentence of the court.

76 Evidence of proceedings of Court Martial

(1)

Subsection (2) applies to every original record of any proceedings of the Court Martial that—

(a)

appears to have been signed by the Judge of the court for those proceedings; and

(b)

is in the custody of—

(i)

the Judge Advocate General; or

(ii)

any person lawfully having custody of any original record.

(2)

On its being produced from the custody of a person referred to in subsection (1)(b), the original record to which this subsection applies is admissible in evidence in all proceedings under this Act or the 1971 Act and in all courts in New Zealand.

(3)

Subsection (4) applies to a document that appears—

(a)

to be a copy of the original record (including a transcript of an audio recording of the proceedings) of any proceedings of the Court Martial or of part of that record; and

(b)

to be certified by the Judge Advocate General, or by any person lawfully having custody of the original record, as being a true copy of that record or part of that record.

(4)

A document to which this subsection applies is admissible as evidence of the original record or part of the original record, as the case may be, in all proceedings under this Act or the 1971 Act and in all proceedings in civil courts in New Zealand on its being produced in those proceedings, without proof of the signature of the Judge Advocate General or other person lawfully having custody of the original record.

Subpart 2—Administrative provisions

Seal

77 Seal of Court Martial

The Court Martial is to have a seal, which is to be judicially noticed by all courts and for all purposes.

Delegation by Chief Judge

78 Chief Judge may delegate functions, duties, or powers to Deputy Chief Judge or Registrar

(1)

The Chief Judge may, either generally or particularly, delegate—

(a)

to a Deputy Chief Judge any of the Chief Judge’s functions, duties, and powers (except the power of delegation); or

(b)

to the Registrar the Chief Judge’s duty under section 21(3) to assign a Judge for any proceedings of the court.

(2)

A delegation—

(a)

must be in writing; and

(b)

may be made subject to any restrictions that the Chief Judge thinks fit; and

(c)

is revocable at any time, in writing; and

(d)

does not prevent the performance or exercise of a function, duty, or power by the Chief Judge.

(3)

A Deputy Chief Judge or the Registrar may perform any functions, duties, or powers delegated under subsection (1) in the same manner and with the same effect as if they had been conferred on him or her directly by this Act and not by delegation.

(4)

If a Deputy Chief Judge or the Registrar appears to act under subsection (1), that person is presumed to be acting in accordance with the terms of delegation in the absence of evidence to the contrary.

Appointment of Registrar, clerks, and other officers of Court Martial

79 Appointment of Registrar, clerks, and other officers of Court Martial

(1)

The Chief Judge must appoint a person to act as the Registrar.

(2)

The Registrar may appoint clerks or any other officers of the Court Martial as may be required.

(3)

An appointment under this section must be made by giving written notice to the person concerned.

(4)

A person appointed under this section must not undertake any other paid employment or hold any other office (whether paid or not) unless the Chief Judge or the Registrar (as the case may be) is satisfied that the employment or other office is compatible with that person’s appointment.

80 Registrar to be Inspector of Service Penal Establishments

(1)

The Registrar, because of his or her office, is to be the Inspector of Service Penal Establishments.

(2)

The Inspector of Service Penal Establishments performs the functions of National Preventive Mechanism under the Crimes of Torture Act 1989 in respect of service penal establishments (within the meaning of section 2(1) of the 1971 Act).

Attendance of clerk, etc, at sittings of Court Martial

81 Attendance of clerk, etc, at sitting of Court Martial

(1)

The Registrar must arrange for the attendance at every sitting of the Court Martial of—

(a)

a clerk of the Court Martial; and

(b)

a person responsible for recording or transcribing the proceedings; and

(c)

if necessary, a competent interpreter.

(2)

The clerk of the Court Martial must—

(a)

liaise with the officer in command or the person in control of the place where the court is to sit on matters regarding the provision of administrative support to the court; and

(b)

perform any other functions or duties that are conferred or imposed on him or her by or under this Act or any other enactment.

Delegation by Registrar

82 Registrar may delegate functions, duties, or powers to clerk or other officer of Court Martial

(1)

The Registrar may, in writing, either generally or particularly, delegate to a clerk or any other officer of the Court Martial appointed under section 79(2) any of the Registrar’s functions, duties, and powers, except—

(a)

any function, power, or duty delegated to the Registrar by the Chief Judge; and

(b)

this power of delegation.

(2)

A delegation—

(a)

must be in writing; and

(b)

may be made subject to any restrictions and conditions that the Chief Judge or the Registrar thinks fit; and

(c)

is revocable at any time, in writing; and

(d)

does not prevent the performance or exercise of a function, duty, or power by the Registrar.

(3)

A clerk or any other officer of the Court Martial to whom any functions, duties, or powers are delegated may perform and exercise them in the same manner and with the same effect as if they had been conferred on him or her directly by this Act and not by delegation.

(4)

A clerk or any other officer of the Court Martial who appears to act under a delegation is presumed to be acting in accordance with its terms in the absence of evidence to the contrary.

Subpart 3—Transitional provisions, repeal, and consequential amendments

Transitional provisions

83 Transitional provision relating to Chief Judge

Despite anything to the contrary in section 12, the person holding office as the Judge Advocate General immediately before the commencement of this section must be treated as if that person had been appointed as the Chief Judge in accordance with section 12.

84 What happens if court-martial has not yet been convened on commencement of this Act

(1)

This section applies if—

(a)

proceedings under the 1971 Act have been commenced before the commencement of this Act and have not been completed before that commencement; and

(b)

before that commencement, the accused elects to be tried by court-martial and does not withdraw that election in the prescribed manner or is otherwise remanded for trial by court-martial; but

(c)

the court-martial has not been convened before that commencement.

(2)

If this section applies,—

(a)

the charge must be referred to the Director of Military Prosecutions; and

(b)

the accused may be remanded for trial in the Court Martial (as established by this Act); and

(c)

the charge must then be dealt with in accordance with the 1971 Act (as amended by the Armed Forces Discipline Amendment Act (No 2) 2007) and this Act; and

(d)

sections 117ZF to 117ZI of the 1971 Act (as substituted by the Armed Forces Discipline Amendment Act (No 2) 2007) apply with all necessary modifications for the purpose of giving effect to paragraphs (a) to (c).

85 What happens if court-martial has been convened on commencement of this Act

(1)

This section applies to courts-martial under the 1971 Act—

(a)

that were convened before the commencement of this Act; and

(b)

that have not been dissolved before that commencement.

(2)

Proceedings before courts-martial to which this section applies are to be continued and completed under the 1971 Act as if this Act had not been enacted.

Repeal

86 Part 6 of 1971 Act repealed

Part 6 of the 1971 Act is repealed.

Consequential amendments

87 Consequential amendments to other enactments

The enactments specified in Schedule 2 are amended in the manner indicated in that schedule.

Schedule 1 Alternative offences under 1971 Act of which accused may be convicted by Court Martial

s 58

Offence charged under 1971 ActAlternative offence under 1971 Act
1Section 23(1) (aiding the enemy with intent to assist the enemy).Section 23(2) (aiding the enemy knowingly and without lawful excuse).
2Section 24(1) (communicating with, giving intelligence to, or failing to report information about the enemy, with intent to assist the enemy).
(a)

Section 24(2) (communicating with or giving intelligence to the enemy without authority, or failing to report information about the enemy without lawful excuse); or

(b)

Section 25 (disclosing information without authority).

3Section 24(2) (communicating with or giving intelligence to the enemy without authority, or failing to report information about the enemy without lawful excuse).Section 25 (disclosing information without authority).
4Section 29(1)(b) (when before the enemy, using words which to his or her knowledge are likely to create despondency or unnecessary alarm).Section 29(2) (the corresponding offence without knowledge).
5Section 34(5)(a) (striking a person on guard duty or on watch).Section 34(5)(b) (using force against a person on guard duty or on watch otherwise than by striking him or her).
6Section 35(1)(a) (striking his or her superior officer).
(a)

Section 35(1)(b) (using violence to his or her superior officer otherwise than by striking); or

(b)

Section 35(1)(c) (offering violence to his or her superior officer).

7Section 35(1)(b) (using violence to his or her superior officer, other than by striking).Section 35(1)(c) (offering violence to his or her superior officer).
8Section 35(1)(c) (offering violence to his or her superior officer).Section 36(1)(a) (using threatening language to his or her superior officer).
9Section 36(1)(a) (using threatening language to his or her superior officer).
(a)

Section 36(1)(b) (using insubordinate language to his or her superior officer); or

(b)

Section 36(1)(c) (using insulting language to his or her superior officer).

10Section 36(1)(b) (using insubordinate language to his or her superior officer).Section 36(1)(c) (using insulting language to his or her superior officer).
11Section 41(a) (striking another person subject to this Act who is of inferior rank).Section 41(b) (ill-treating such a person otherwise than by striking him or her).
12Section 44(2)(a) (striking a member of the Armed Forces ordering offender into arrest).
(a)

Section 44(2)(b) (using violence to a member of the Armed Forces ordering offender into arrest otherwise than by striking); or

(b)

Section 44(2)(c) (offering violence to any such member of the Armed Forces).

13Section 44(2)(b) (using violence to a member of the Armed Forces who has ordered offender into arrest).Section 44(2)(c) (offering violence to any such member of the Armed Forces).
14Section 44(3)(a) (striking person who is apprehending an offender or who is holding him or her in custody).
(a)

Section 44(3)(b) (using violence to any such person otherwise than by striking); or

(b)

Section 44(3)(c) (offering violence to any such person).

15Section 44(3)(b) (using violence to any person who is apprehending an offender or who is holding him or her in custody).Section 44(3)(c) (offering violence to any such person).
16Section 46(1) (permitting the escape of prisoners and other persons in custody wilfully and without authority).Section 46(2) (doing certain specified acts with intent to facilitate escape).
17Section 47 (desertion).Section 48 (absence without leave).
18Sections 47 and 76 (attempting to desert).Section 48 (absence without leave).
19Section 57(1)(a) (stealing service property or property belonging, etc, to a person subject to service law).Section 57(1)(b) (fraudulently misapplying any such property).
20Section 58 (receiving service property or property belonging, etc, to a person subject to service law).Section 59 (being in possession of any such property without lawful excuse).
21Section 61(1) (wilful destruction of or damage to property).Section 61(2) (negligent destruction of or damage to property).
22Section 64(1) (losing or hazarding a ship, aircraft, or armoured fighting vehicle wilfully and without authority).Section 64(2) (losing or hazarding a ship, aircraft, or armoured fighting vehicle negligently).
23Section 67(1)(a) (reckless or dangerous driving).Section 67(2) (careless or inconsiderate driving).

Schedule 1 item 14: amended, on 7 July 2010, by section 4 of the Court Martial Amendment Act 2010 (2010 No 57).

Schedule 2 Consequential amendments to other enactments

s 87

Part 1 Amendments to other Acts

Corrections Act 2004 (2004 No 50)

Paragraph (g) of the definition of attendance for judicial purposes in section 3(1): repeal.

Paragraph (b) of the definition of legal adviser in section 3(1): omit “at a court-martial” and substitute “in the Court Martial”.

Crimes Act 1961 (1961 No 43)

Section 9(b): omit “any Court Martial” and substitute “the Court Martial”.

Crimes of Torture Act 1989 (1989 No 106)

Paragraph (d) of definition of National Preventive Mechanism in section 16: repeal and substitute:

(d)

the Registrar of the Court Martial of New Zealand appointed under section 79 of the Court Martial Act 2007:

Defamation Act 1992 (1992 No 105)

Definition of Court in Part 3 of Schedule 1: omit “a court martial” and substitute “the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007”.

Electronic Transactions Act 2002 (2002 No 35)

Item (8) in Part 4 of the Schedule: repeal and substitute:

(8)

the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007:

Geneva Conventions Act 1958 (1958 No 19)

Definition of Court in section 2(1): repeal.

Section 3(8): repeal.

Habeas Corpus Act 2001 (2001 No 31)

Section 14(2)(a): repeal and substitute:

(a)

a conviction of an offence by a court of competent jurisdiction, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or

Judicature Act 1908 (1908 No 89)

Section 58D(4)(c): omit “Courts” in each place where it appears and substitute in each case “Court”.

Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (2004 No 38)

Definition of Head of Bench in section 5: insert after paragraph (d):

(eaa)

in relation to the Court Martial, the Judge Advocate General:

Paragraph (e) of the definition of Head of Bench in section 5: omit “Courts” and substitute “Court”.

Paragraph (a) of the definition of Judge in section 5: insert the following subparagraph after subparagraph (iv):

(iva)

a Judge of the Court Martial; or

Lawyers and Conveyancers Act 2006 (2006 No 1)

Section 47(b): repeal and substitute:

(b)

section 68 of the Court Martial Act 2007; or

Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46)

Definition of Court in section 2(1): repeal and substitute:

Court means—

(a)

a District Court; or

(b)

as the case may be, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007 when acting under Part 10 of the Armed Forces Discipline Act 1971

Oaths and Declarations Act 1957 (1957 No 88)

Section 22(2): insert after paragraph (a):

(aaa)

in the case of a Judge of the Court Martial, by the Judge Advocate General or a Judge of the High Court:

Schedule 2: insert after the item relating to the Judges of the High Court:

The Judges of the Court Martial.

Prisoners’ and Victims’ Claims Act 2005 (2005 No 74)

Section 4: insert in its appropriate alphabetical order:

Court Martial means the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007

Paragraph (a) of the definition of service prisoner in section 4: omit “a court-martial” and substitute “the Court Martial”.

Section 5(1) and (2): omit “court-martial” in each place where it appears and substitute in each case “the Court Martial”.

Heading to section 25: omit court-martial and substitute Court Martial.

Section 30(5): repeal and substitute:

(5)

However, the Chief District Court Judge must consult with the Judge Advocate General before designating a Tribunal under this section if a claim to which the designation relates involves an offender convicted by the Court Martial, or found guilty by a disciplinary officer, under the Armed Forces Discipline Act 1971.

Section 35(1)(a): repeal and substitute:

(a)

relate to criminal proceedings, proceedings of a disciplinary officer under the Armed Forces Discipline Act 1971, or proceedings of the Court Martial; and

Section 35(2)(c): omit “court-martial” and substitute “Court Martial”.

Section 35(2)(c): omit “section 145 of the Armed Forces Discipline Act 1971” and substitute “section 75 of the Court Martial Act 2007”.

Heading to section 36: omit court-martial and substitute Court Martial.

Heading to section 37: omit court-martial and substitute Court Martial.

Remuneration Authority Act 1977 (1977 No 110)

Section 12B(1): insert after paragraph (b):

(ba)

the Chief Judge of the Court Martial and the other Judges of the Court Martial; and

Schedule 4: add the following item:

The Registrar of the Court Martial

Supreme Court Act 2003 (2003 No 53)

Definition of New Zealand court in section 4: omit “a court-martial constituted under Part 6 of the Armed Forces Discipline Act 1971, the Courts Martial Appeal Court constituted by the Courts Martial Appeals Act 1953” and substitute “the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, the Court Martial Appeal Court constituted by the Court Martial Appeals Act 1953”.

Part 2 Amendments to regulations

Corrections Regulations 2005 (SR 2005/53)

Regulation 191(2): omit “section 166” and substitute “Part 8”.

Electoral Regulations 1996 (SR 1996/93)

Regulation 46(5): insert “the” before “Court Martial”.

Contents
  • 1

    General

  • 2

    Status of reprints

  • 3

    How reprints are prepared

  • 4

    Changes made under section 17C of the Acts and Regulations Publication Act 1989

  • 5

    List of amendments incorporated in this reprint (most recent first)

Notes
1 General

This is a reprint of the Court Martial Act 2007. The reprint incorporates all the amendments to the Act as at 5 March 2012, as specified in the list of amendments at the end of these notes.

Relevant provisions of any amending enactments that contain transitional, savings, or application provisions that cannot be compiled in the reprint are also included, after the principal enactment, in chronological order. For more information, see http://www.pco.parliament.govt.nz/reprints/.

2 Status of reprints

Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.

This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

3 How reprints are prepared

A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/ or Part 8 of the Tables of New Zealand Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.

4 Changes made under section 17C of the Acts and Regulations Publication Act 1989

Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted.

A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also been made since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.

In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:

  • omission of unnecessary referential words (such as “of this section” and “of this Act”)

  • typeface and type size (Times Roman, generally in 11.5 point)

  • layout of provisions, including:

    • indentation

    • position of section headings (eg, the number and heading now appear above the section)

  • format of definitions (eg, the defined term now appears in bold type, without quotation marks)

  • format of dates (eg, a date formerly expressed as “the 1st day of January 1999” is now expressed as “1 January 1999”)

  • position of the date of assent (it now appears on the front page of each Act)

  • punctuation (eg, colons are not used after definitions)

  • Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly

  • case and appearance of letters and words, including:

    • format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)

    • small capital letters in section and subsection references are now capital letters

  • schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly

  • running heads (the information that appears at the top of each page)

  • format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).

5 List of amendments incorporated in this reprint (most recent first)

Criminal Procedure Act 2011 (2011 No 81): section 393

Court Martial Amendment Act 2010 (2010 No 57)

Court Martial Act Commencement Order 2008 (SR 2008/233)