Armed Forces Discipline Rules of Procedure 2008

Reprint
as at 5 December 2013

Coat of Arms of New Zealand

Armed Forces Discipline Rules of Procedure 2008

(SR 2008/237)

Anand Satyanand, Governor-General

Order in Council

At Wellington this 4th day of August 2008

Present:
His Excellency the Governor-General in Council


Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

These rules are administered by the New Zealand Defence Force.


Pursuant to section 150 of the Armed Forces Discipline Act 1971, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following rules.

Contents

1 Title

2 Commencement

Part 1
Preliminary provisions

3 Interpretation

4 Calculating periods of time

5 Application of rules

6 Forms

7 Drawing of charge

Part 2
Matters incidental to proceedings before disciplinary officer

Certification of charges

8 Form of specified certificate

Disclosure of information to accused

9 Information to be disclosed to accused

10 Form of disclosure

11 Timing of disclosure

12 Additional disclosure

13 Record of disclosure

Pleas and findings on alternative charges

14 Pleas and findings on alternative charges

Election of trial by Court Martial or summary trial by disciplinary officer

15 Explanation of implications of election and recording of election

16 Withdrawal of election of trial by Court Martial

Summary trial: Advice to be given to accused

17 Advice to be given by disciplinary officer about procedure to be followed in summary trial

Recording of proceedings before disciplinary officer

18 Audio recording must be made of proceedings

19 Record to be kept if audio recording cannot be made

Referral of charges to Director of Military Prosecutions

20 Procedure to be followed by disciplinary officer after decision to refer charge

Part 3
Appeals to Summary Appeal Court

Subpart 1Preliminary provisions

21 Application of this Part

22 Powers to authorise departure from rules, etc

23 Forms

Subpart 2Procedure

Institution of appeal or lodging of special reference

24 Form of notice of appeal

25 Persons required or authorised to sign notices and other documents

26 Application for extension of time

27 Form must be treated as application for extension of time if notice given out of time

28 Disparity of sentences

29 Form of special reference by Judge Advocate General

30 Form of petition to Judge Advocate General for special reference

Procedure following receipt of notice of appeal

31 Steps to be taken by disciplinary officer on receiving copy of notice of appeal

32 Documents required to be sent to Registrar

Preparation for hearing

33 Disclosure of report from disciplinary officer

34 Authorities bundles

Oral appeals

35 Registrar to give parties notice of fixture for oral appeals

36 Timing of submissions on merits

37 Right of reply at oral hearing

Appeals on papers

38 Period allowed for making written submissions on merits: submissions by appellant

39 Period allowed for making submissions on merits: respondent’s submissions and submissions in reply

40 Timing of appeal on papers

Decisions

41 Delivery of judgments

42 Judges to be identified

Subpart 3Miscellaneous provisions

43 Abandonment of appeal

44 Persons to be heard by Summary Appeal Court before restitution order annulled or varied

45 Successful appellant entitled to return of amount paid towards fine

46 Register must be kept

47 Mode of giving notice to Summary Appeal Court

48 Mode of giving notice to parties

49 Summary Appeal Court order may enforce rules

50 Effect of non-compliance with rules

51 Cases not provided for in rules

52 Power to extend or shorten time appointed by rules or fixed by order

53 Correction of accidental slip or omission

54 Security of documents, etc

Part 4
Court Martial

Subpart 1Preliminary provisions

55 Application of this Part

56 Interpretation

Subpart 2Matters preliminary or incidental to trial in Court Martial

Charge sheet and charge

57 Form of charge sheet

58 Error in heading to charge sheet

59 Charge sheet may contain more than 1 charge

60 Drawing of charge

61 Charges against more than 1 person

Disclosure

62 Additional disclosure

Objection to assignment of military members

63 Notice of objection against assignment of person as military member

Rights and obligations of accused

64 Accused to be allowed sufficient opportunity to prepare defence

65 Appointment of defender or counsel

66 Information to be given to accused following remand

67 Conditions under which evidence of alibi may be given

68 Time when evidence as to alibi to be given

Rights and duties of counsel

69 Rights of counsel

70 Duties of prosecutor and counsel

Opening of Court Martial and administration of oaths

71 Judge to declare Court Martial in session

72 Administration of oaths

Miscellaneous provisions

73 Officers under instruction

74 Rulings by Judge on question of law or procedure

75 Order of trial when 2 or more accused

Subpart 3Conduct of trial by Court Martial

Arraignment of accused and pleading

76 Accused to be arraigned

77 Accused may plead to jurisdiction of Court Martial

78 Accused may plead in bar of trial

79 Application for separation of trials

80 Application for severance of charge sheets

81 Application for severance of charges

82 Accused may object to charges

83 Plea to charge

84 Acceptance of plea of guilty

85 Recording of plea

86 Procedure after recording plea of guilty

87 Pleas on alternative charges

88 Mixed pleas of guilty and not guilty

89 Accused may enter guilty plea before trial at hearing before Judge sitting alone

90 Guilty plea before trial: procedure at hearing before Judge sitting alone

91 Guilty plea before trial: procedure following hearing before Judge sitting alone

92 Change of plea

Application for adjournment

93 Application for adjournment following plea of not guilty

Case for prosecution

94 Admission by agreement

95 Opening and presentation of case

96 Obligation to give notice of evidence not contained in documents or information disclosed

97 Notice to accused that prosecution witness not to be called

Calling and examination of witnesses

98 Witness to be sworn

99 Exclusion of witness from courtroom

100 Questions by members of Court Martial

101 Accused may submit no case to answer

102 Rulings on submission of no case to answer

Case for defence

103 Judge must advise accused of accused’s rights

104 Evidence in rebuttal

Closing addresses and summing up

105 Closing addresses by prosecution and defence

106 Calling and recalling of witnesses before summing up

107 Judge to sum up

Finding of Court Martial

108 Deliberation on finding

109 Form of finding

110 Recording and announcement of finding

Procedure subsequent to finding

111 Finding of guilty after plea of guilty

112 Proof of facts

113 Evidence on accused’s record, etc, to be considered: prosecution evidence relevant to sentence

114 Evidence on accused’s record, etc: accused’s rights and evidence relevant to sentence

115 Judge may call evidence relevant to sentence

116 Addresses on sentence

117 Request by accused for other offences to be taken into account

118 Sentence and recommendation of mercy

119 Announcement at conclusion of trial

Procedure subsequent to finding: Particular cases

120 Trial of charge in other charge sheet

121 Finding of guilty where mixed pleas of guilty and not guilty

Subpart 4Further rules relating to trial by Court Martial

Withdrawal, amendment, division of charges

122 Withdrawal of charge

123 Amendment or division of charges

Fitness of accused to stand trial

124 Determination before trial of fitness of accused to stand trial

125 Procedure at special hearing before trial

126 Determining if accused unfit to stand trial

127 Determination during trial of fitness of accused to stand trial

Exhibits

128 Exhibits

Subpart 5New trials in Court Martial

129 Referral of order for new trial to Director of Military Prosecutions

130 Record of evidence may be read as evidence at new trial

Subpart 6General provisions

131 Preparation of record of proceedings

132 Custody and inspection of record of proceedings

133 Transmission of record of proceedings to Registrar

134 Sitting of Court Martial

135 Powers to authorise departure from rules, etc

136 Mode of giving notice to Court Martial

137 Mode of giving notice to parties

138 Cases not provided for in rules

139 Power to extend or shorten time appointed by rules or fixed by order

140 Correction of accidental slip or omission

Part 5
Reconsidering Authority

141 Petition for reconsideration

142 Promulgation of decision

Part 6
Courts of inquiry

143 Procedure where person affected by inquiry wishes to call witness

144 Person adversely affected entitled to copy of record of proceedings

Part 7
Miscellaneous provisions

Bail

145 Applications for bail

146 Warrant to arrest person absconding or breaching bail condition

Witness summons

147 Witness summons

Orders for compensation, restitution, and revesting of stolen property

148 Order for compensation

149 Suspension of order for compensation

150 Order for restitution

151 Suspension of order for restitution

152 Revesting of stolen property

153 Suspension of revesting of stolen property

Witnesses' expenses

154 Witnesses' expenses

Administration of oaths

155 Application of rules

156 Who may administer oaths and affirmations

157 Manner of taking oath: Christian and Jewish forms

158 Manner of making solemn affirmation

159 Manner of swearing member of Court Martial

160 Manner of swearing officer under instruction in Court Martial

161 Manner of swearing persons responsible for recording and transcribing proceedings of Court Martial

162 Manner of swearing interpreter

163 Manner of swearing witness

Revocation

164 Revocation

Schedule
Forms


Rules

1 Title
  • These rules are the Armed Forces Discipline Rules of Procedure 2008.

2 Commencement
  • These rules come into force on 1 July 2009.

Part 1
Preliminary provisions

3 Interpretation
  • (1) In these rules, unless the context otherwise requires,—

    1971 Act means the Armed Forces Discipline Act 1971

    2007 Act means the Court Martial Act 2007

    allegation means an allegation that a person who is subject to the 1971 Act has committed an offence against that Act

    appeal on the papers means an appeal to be disposed of by way of a hearing on the papers under section 140 of the 1971 Act

    charge means an allegation that is recorded in writing in the form of a charge in accordance with these rules

    civil offence has the same meaning as in section 74 of the 1971 Act

    court of inquiry means a court of inquiry assembled under section 200A of the 1971 Act

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

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

    oral appeal means an appeal to be disposed of by way of a hearing involving oral submissions

    special reference means the referral of a matter to the Summary Appeal Court by the Judge Advocate General under section 129 of the 1971 Act

    Summary Appeal Court means the Summary Appeal Court of New Zealand established under section 118 of the 1971 Act.

    (2) In these rules, a reference to counsel for an accused includes, unless the context otherwise requires, a reference to a defender.

4 Calculating periods of time
  • (1) A period of time stipulated in these rules in relation to a matter must be calculated—

    • (a) in New Zealand, exclusive of any Sunday, Good Friday, Christmas Day, Waitangi Day, and Anzac Day; and

    • (b) outside New Zealand, exclusive of any Sunday, Good Friday, Christmas Day, and, in Australia, Anzac Day.

    (2) Subclause (3) does not apply for the purpose of a sentence that must be or is imposed under the Act.

    (3) For the purpose of a sentence, every period of time must be calculated including the days referred to in subclause (1)(a) and (b).

5 Application of rules
  • (1) These rules apply, so far as they relate to charges,—

    • (a) when it is alleged that a person subject to the 1971 Act has committed an offence against that Act:

    • (b) whether the alleged offence is said to have been committed in New Zealand or overseas:

    • (c) whether the charge is to be investigated and disposed of in New Zealand or overseas.

    (2) These rules apply, so far as they relate to courts of inquiry,—

    • (a) whether the subject matter of the inquiry is in New Zealand or overseas:

    • (b) whether the court is to conduct its inquiry in New Zealand or overseas.

    (3) These rules apply, so far as they relate to the Summary Appeal Court, to all appeals to the Summary Appeal Court, including all steps that are incidental to those appeals.

    (4) These rules apply, so far as they relate to the Court Martial, to all proceedings before the Court Martial.

6 Forms
  • (1) The Chief of Defence Force may prescribe forms for the purposes of these rules.

    (2) However, subclause (1) only applies if no form for a purpose is prescribed by these rules.

    (3) If a form is prescribed for a purpose (whether by these rules or by the Chief of Defence Force), that form must be used in every case to which it is applicable.

    (4) Despite subclause (3), use of a form is not invalid just because it contains minor differences from a prescribed form as long as the form has the same effect and is not misleading.

7 Drawing of charge
  • (1) A commanding officer who is required by section 102 of the 1971 Act to cause an allegation to be recorded in the form of a charge must ensure that the charge is drawn in accordance with the following provisions:

    • (a) each charge must state 1 offence only:

    • (b) offences may be charged in the alternative:

    • (c) if offences are charged in the alternative, each offence must be stated in a separate charge, and the charges must be set out in descending order of seriousness:

    • (d) each charge must be set out in 2 parts, namely,—

      • (i) a statement of the offence; and

      • (ii) a statement of the particulars of every act or omission constituting the offence:

    • (e) if the offence is a civil one, the statement of the offence must be in words sufficient to give the accused notice of the offence:

    • (f) if the offence is not a civil one, the statement of the offence must be in a form prescribed by the Chief of Defence Force:

    • (g) the statement of the particulars must set out—

      • (i) sufficient details of the alleged offence to give the accused reasonable information concerning every act or omission to be proved against the accused as constituting the offence:

      • (ii) if the alleged offence is one that renders the accused, if convicted, liable to a greater or lesser penalty according to the particular circumstances in which the offence was committed, the particular circumstances (if any) that it is alleged render the accused liable to the higher penalty:

      • (iii) if it is intended to seek an order for compensation or restitution (or both) if the accused is found guilty or is convicted, sufficient matters that, if proved, would justify the making of the order.

    (2) Subclause (1)(b) and (c) are subject to section 73(3) of the 1971 Act.

Part 2
Matters incidental to proceedings before disciplinary officer

Certification of charges

8 Form of specified certificate
  • A specified certificate (as defined in section 112(5) of the 1971 Act) must be given in the form prescribed by the Chief of Defence Force.

Disclosure of information to accused

9 Information to be disclosed to accused
  • (1) When an accused is brought before a disciplinary officer under Part 5 of the 1971 Act, the disciplinary officer must ensure that the accused is provided with a copy of the charge report and given access to any information that—

    • (a) may be relied on as evidence against the accused; or

    • (b) tends to show that the accused did not commit the offence charged.

    (2) The information referred to in subclause (1) includes—

    • (a) a statement by the accused; and

    • (b) documentary evidence; and

    • (c) a written statement made by a witness; and

    • (d) a unit or service police file that relates to the charge or, if applicable, the relevant portions of the file.

10 Form of disclosure
  • (1) The accused must be given a copy of the information required to be disclosed under rule 9 unless—

    • (a) the information is in the form of physical evidence (such as clothing or other property); or

    • (b) disclosure of the information would be likely to—

      • (i) seriously prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or

      • (ii) seriously prejudice the security or defence relationship between New Zealand and another State or international organisation; or

      • (iii) seriously prejudice the maintenance of law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or

      • (iv) endanger the safety of any person.

    (2) If subclause (1)(a) applies, the accused must be given—

    • (a) access to the evidence; and

    • (b) a copy of any image of the evidence that may be made.

    (3) If clause (1)(b) applies, the accused must be provided with access to the information to the extent reasonable in all the circumstances.

11 Timing of disclosure
  • The information required to be disclosed under rule 9 must be made available to the accused in reasonably sufficient time to permit the accused to consider it in properly preparing his or her case before arraignment under section 116 of the 1971 Act.

12 Additional disclosure
  • (1) If proceedings follow the investigation of a charge, the disciplinary officer must ensure that the accused is given access to any additional information that comes within rule 9 and that has not been disclosed.

    (2) Rules 10, 11, and 13 apply to any additional disclosure.

13 Record of disclosure
  • (1) The disciplinary officer must ensure that a written record is made, in the form prescribed by the Chief of Defence Force, identifying all information disclosed to the accused under rule 9.

    (2) The record must be attached to the original charge report.

Pleas and findings on alternative charges

14 Pleas and findings on alternative charges
  • (1) If the accused pleads guilty to the first of 2 or more alternative charges and the disciplinary officer is satisfied of the matters referred to in section 117(1)(a) to (c) of the 1971 Act, the disciplinary officer must—

    • (a) enter the plea on the record of proceedings; and

    • (b) record no plea in respect of each subsequent alternative charge.

    (2) If the accused pleads guilty to the second or any subsequent alternative charge of 2 or more alternative charges, the disciplinary officer may—

    • (a) if he or she is satisfied of the matters referred to in section 117(1)(a) to (c) of the 1971 Act, accept the plea; or

    • (b) not accept the plea (whether because he or she is not satisfied of the matters referred to in section 117(1)(a) to (c) of the 1971 Act or otherwise).

    (3) If the disciplinary officer accepts the plea,—

    • (a) the disciplinary officer must—

      • (i) enter the plea on the record of proceedings; and

      • (ii) dismiss any charge that precedes that charge in the charge report; and

    • (b) that charge must be proceeded with in accordance with sections 117A to 117E of the 1971 Act; and

    • (c) the disciplinary officer must record no plea in respect of all subsequent charges, unless section 117A(2) or 117E(2) of the 1971 Act applies, in which case the disciplinary officer must record no finding on any subsequent alternative charges.

    (4) If the disciplinary officer does not accept the plea, he or she must proceed as if the accused had pleaded not guilty to that charge and all subsequent alternative charges.

Election of trial by Court Martial or summary trial by disciplinary officer

15 Explanation of implications of election and recording of election
  • (1) For the purposes of section 117ZC(2) of the 1971 Act, a defending officer or a person described in section 117ZC(1)(b) of the 1971 Act must, in explaining to the accused the implications of an election under section 117D or 117M of the 1971 Act, explain that—

    • (a) a summary trial by a disciplinary officer is not a trial by an independent court:

    • (b) if the accused elects summary trial, he or she irrevocably waives his or her right under section 25(a) of the New Zealand Bill of Rights Act 1990 to be tried by an independent court:

    • (c) a person tried by a disciplinary officer is not represented by a lawyer at that trial:

    • (d) if the accused elects summary trial, he or she irrevocably waives his or her right under section 24(c) of the New Zealand Bill of Rights Act 1990 to legal representation:

    • (e) if the accused elects trial by the Court Martial, he or she will be entitled to legal aid under the Armed Forces Legal Aid Scheme:

    • (f) if the accused is found guilty by a disciplinary officer, the punishments that may be imposed are limited to those provided for in Schedule 4 of the 1971 Act or, as the case may be, Schedule 5 of that Act:

    • (g) if the accused is found guilty by the Court Martial, the Court Martial may impose any lawful sentence up to the maximum sentence for the offence:

    • (h) the Court Martial is presided over by a Judge and applies the ordinary rules of evidence that are used in criminal courts:

    • (i) summary trials are conducted by disciplinary officers who are not Judges or lawyers and who do not apply the ordinary rules of evidence:

    • (j) a summary trial can be commenced and completed more expeditiously than a trial by the Court Martial.

    (2) An accused's election under section 117D or 117M of the 1971 Act must be recorded in the form prescribed by the Chief of Defence Force.

16 Withdrawal of election of trial by Court Martial
  • (1) This rule applies if an accused is given a right of election under section 117D or 117M of the 1971 Act and he or she elects trial by the Court Martial.

    (2) The accused may withdraw his or her election, as of right, at any time within 24 hours of making it.

    (3) If the accused does not withdraw his or her election within 24 hours of making it, he or she may withdraw it, with the consent of the disciplinary officer, at any time until the disciplinary officer has referred the charge to the Director of Military Prosecutions.

    (4) If the charge has been referred by the disciplinary officer to the Director of Military Prosecutions, the election may only be withdrawn with the consent of the Director of Military Prosecutions.

Summary trial: Advice to be given to accused

17 Advice to be given by disciplinary officer about procedure to be followed in summary trial
  • If the disciplinary officer is to try the accused summarily, the disciplinary officer must advise the accused of the procedure to be followed in the summary trial by reading the following statement:

    I have now heard the evidence in support of the charge. I have determined that there is a case to answer and that you should be tried summarily on the charge. You are not required to put forward any evidence but if you wish to do so now is the time. If you give evidence yourself, you may be questioned by the presenting officer and by me. Whether or not you give evidence, you may call witnesses and ask that evidence be admitted in the form of a written statement. You may question any witness you call, and that witness may also be questioned by the presenting officer and by me. Once I have received all the evidence I will decide whether you are guilty of the charge or not guilty of the charge.

Recording of proceedings before disciplinary officer

18 Audio recording must be made of proceedings
  • (1) This rule and rule 19 apply to all proceedings before a disciplinary officer.

    (2) The disciplinary officer must ensure that an audio recording is made of the proceedings wherever it is reasonably practicable to do so.

19 Record to be kept if audio recording cannot be made
  • If it is not reasonably practicable to make an audio recording of the proceedings, or the audio recording fails, the disciplinary officer must make a detailed written summary of the proceedings.

Referral of charges to Director of Military Prosecutions

20 Procedure to be followed by disciplinary officer after decision to refer charge
  • (1) A disciplinary officer must, within 7 days of making a decision to refer a charge to the Director of Military Prosecutions,—

    • (a) ensure that the audio recording of any proceedings before the disciplinary officer is transcribed:

    • (b) certify the transcript as being true and correct:

    • (c) provide the accused with—

      • (i) a certified copy of the transcript or, if there was no audio recording, a certified copy of the written summary of the proceedings:

      • (ii) a copy of a guide to accused persons in the form prescribed by the Chief of Defence Force:

      • (iii) a copy of an application for legal aid in the form prescribed by the Chief of Defence Force:

    • (d) inform the accused that if he or she elects to present a defence, then he or she has 7 days from the date of being informed in which to provide to the disciplinary officer any signed written statements in his or her defence for referral to the Director of Military Prosecutions.

    (2) If the disciplinary officer is not a superior commander, he or she must, after following the procedure in subclause (1) and not later than 14 days after making the decision to refer a charge to the Director of Military Prosecutions, send the following documents to his or her superior commander:

    • (a) the charge report:

    • (b) the certified transcript of any proceedings before the disciplinary officer or, if there was no audio recording, a certified copy of the written summary of the proceedings:

    • (c) any signed written statements provided by the accused under section 117ZG(1)(b) of the 1971 Act:

    • (d) any service police or other investigation report, including the report of any court of inquiry, that is relevant to the charge:

    • (e) any relevant exhibits:

    • (f) a statement of particulars of the accused’s service in the form prescribed by the Chief of Defence Force:

    • (g) a medical certificate in the prescribed form.

    (3) If the disciplinary officer is a superior commander, he or she must, after following the procedure in subclause (1) and not later than 14 days after making the decision to refer the charge to the Director of Military Prosecutions, send the following documents to the Director of Military Prosecutions:

    • (a) the documents referred to in subclause (2)(a) to (g); and

    • (b) a statement containing his or her opinion as to whether the prosecution or charge is in the interests of the service.

Part 3
Appeals to Summary Appeal Court

Subpart 1Preliminary provisions

21 Application of this Part
  • This Part applies to appeals to the Summary Appeal Court.

22 Powers to authorise departure from rules, etc
  • (1) The Summary Appeal Court may direct, authorise, or accept a departure from these rules for reasons of urgency or for any other reason.

    (2) If, in any proceedings before the Summary Appeal Court, a question arises about the application of these rules, the court may determine the question and give any directions that the court thinks fit.

    (3) Subclauses (1) and (2) apply on the application of any party or on the court’s own initiative.

23 Forms
  • The forms to be used in proceedings in the Summary Appeal Court are set out in the Schedule of these rules.

Subpart 2Procedure

Institution of appeal or lodging of special reference

24 Form of notice of appeal
  • An appeal under section 124 of the 1971 Act must be made by notice of appeal in form 1 of the Schedule of these rules.

25 Persons required or authorised to sign notices and other documents
  • (1) The appellant must sign a notice of appeal unless—

    • (a) the notice is marked and signed in accordance with subclause (2); or

    • (b) another person signs the notice under subclause (3).

    (2) An appellant who is unable to write must affix his or her mark on the notice in the presence of a witness who must also sign the notice.

    (3) A notice, required to be signed by an appellant who contends that the appellant was not responsible for his or her actions on the ground that he or she was insane at the relevant time, may be signed by the appellant’s solicitor or counsel or by any other person authorised to act on the appellant’s behalf.

26 Application for extension of time
  • An appellant who seeks an extension of time within which to appeal may include an application for an extension of time within his or her notice of appeal by completing the relevant part of the form.

27 Form must be treated as application for extension of time if notice given out of time
  • A notice in form 1 that is given out of time must be treated as if it contains an application for extension of time.

28 Disparity of sentences
  • If a ground of appeal is that the punishment imposed on the appellant was too severe because of disparity with a punishment imposed on a co-offender, that ground of appeal must be stated in the notice of appeal.

29 Form of special reference by Judge Advocate General
  • (1) A special reference by the Judge Advocate General must be lodged with the Registrar in form 2 of the Schedule of these rules.

    (2) For the purposes of section 129 of the 1971 Act, in addition to the matters referred to in section 129(3)(b) and (c), the reference must specify whether the Judge Advocate General intends to appoint counsel as amicus curiae.

    (3) The notice required under section 130(1)(b) of the 1971 Act to be given by the Registrar, after receiving a special reference from the Judge Advocate General, to the person found guilty of the offence must be in form 3 of the Schedule of these rules.

30 Form of petition to Judge Advocate General for special reference
  • (1) A petition to the Judge Advocate General under section 129(4) of the 1971 Act to make a special reference must be in form 4 of the Schedule of these rules.

    (2) The form must be sent to the Judge Advocate General at the Office of the Judge Advocate General, c/o Headquarters, New Zealand Defence Force, Wellington.

    (3) The petition is brought when the Judge Advocate General receives the form duly completed.

Procedure following receipt of notice of appeal

31 Steps to be taken by disciplinary officer on receiving copy of notice of appeal
  • The disciplinary officer must, on receiving a copy of a notice of appeal from the Registrar under section 126(1) of the 1971 Act,—

    • (a) ensure that the audio recording of any proceedings before the disciplinary officer (if any) is transcribed; and

    • (b) certify the transcript as being true and correct.

32 Documents required to be sent to Registrar
  • For the purposes of section 126(2) of the 1971 Act, the documents that the disciplinary officer must send to the Registrar within 14 days of receiving a copy of the notice of appeal are—

    • (a) the charge report; and

    • (b) the certified transcript of any proceedings before the disciplinary officer or, if there was no audio recording, a certified copy of the written summary of the proceedings; and

    • (c) a statement of particulars of the accused’s evidence in the form prescribed by the Chief of Defence Force.

Preparation for hearing

33 Disclosure of report from disciplinary officer
  • If the Summary Appeal Court obtains a report from a disciplinary officer under section 135(a) of the 1971 Act, the Registrar must disclose the report—

    • (a) to any party who requests a copy of it, unless the court otherwise directs; and

    • (b) to any other person the court directs.

34 Authorities bundles
  • (1) In this rule, authorities bundle means a bundle of authorities and legislation on which a party relies.

    (2) This rule applies whenever written submissions are filed, whether for the purpose of an appeal on the papers or of an oral appeal.

    (3) At the time a party provides his or her submissions to the Summary Appeal Court (see rules 36 and 38), he or she must also provide to the court 2 copies of an authorities bundle for court use.

    (4) An authorities bundle must contain—

    • (a) only cases that counsel intends to refer to in the Summary Appeal Court and to rely on for more than a general principle; and

    • (b) as its first page, a list of the authorities, including their citations.

Oral appeals

35 Registrar to give parties notice of fixture for oral appeals
  • (1) This rule applies to oral appeals.

    (2) The Registrar must allocate a fixture for every oral appeal.

    (3) Notice of the time and place fixed for the hearing must be given by the Registrar to—

    • (a) the Director of Military Prosecutions; and

    • (b) the appellant; and

    • (c) if the appellant is in custody and the Summary Appeal Court has granted the appellant leave to be present at the hearing, the person in charge of the place where the appellant is being held in custody.

36 Timing of submissions on merits
  • (1) This rule applies to oral appeals.

    (2) The appellant must provide full written submissions on the appeal.

    (3) The appellant must provide his or her written submissions to the Summary Appeal Court and to the Director of Military Prosecutions no less than 15 working days before the hearing date.

    (4) The Director of Military Prosecutions must provide his or her written submissions to the Summary Appeal Court and to the appellant no less than 10 working days before the hearing date.

    (5) Two copies of the submissions must be provided for Court use.

37 Right of reply at oral hearing
  • A party who wishes to exercise the right of reply in an appeal under section 124 of the 1971 Act that is to be heard as an oral appeal must exercise that right orally at the hearing.

Appeals on papers

38 Period allowed for making written submissions on merits: submissions by appellant
  • (1) This rule and rule 39 apply to appeals on the papers.

    (2) For the purposes of this rule and rule 39,—

    • (a) the time allowed for making submissions begins to run on the date on which the appellant or the Director of Military Prosecutions receives the relevant notice or material:

    • (b) if sent by post or fax, the notice or material must be treated as having been received 3 days after the date on which it is sent to the relevant party’s last known postal address or fax number.

    (3) The Registrar must appoint a period of no less than 20 working days within which submissions may be made by the appellant in support of the appeal.

    (4) Notice of the period appointed by the Registrar under subclause (3) must be given by the Registrar to—

    • (a) the appellant; and

    • (b) the Director of Military Prosecutions.

39 Period allowed for making submissions on merits: respondent’s submissions and submissions in reply
  • (1) The Registrar must send to the Director of Military Prosecutions a copy of all written submissions received by the Summary Appeal Court, within the appointed period, from the appellant.

    (2) The Director of Military Prosecutions may make written submissions within 10 working days.

    (3) A copy of all written submissions received by the Summary Appeal Court from the Director of Military Prosecutions, within the 10-working-day period referred to in subclause (2), must be sent by the Registrar to the appellant.

    (4) The appellant may make written submissions in reply within a period of no less than 10 working days appointed by the Registrar.

    (5) The Registrar must send the Director of Military Prosecutions a copy of the appellant’s submissions in reply.

    (6) Each party must file in the Summary Appeal Court—

    • (a) 2 copies of that party’s submissions for court use; and

    • (b) sufficient additional copies so that the Registrar can provide 1 copy for each other party.

40 Timing of appeal on papers
  • The Summary Appeal Court must not begin hearing an appeal on the papers until all the periods prescribed or appointed under rules 38 and 39 have expired.

Decisions

41 Delivery of judgments
  • (1) The Summary Appeal Court may—

    • (a) deliver its judgment orally; or

    • (b) reserve its judgment.

    (2) A judgment that is delivered orally is given when the Judge delivers it in open court.

    (3) A judgment that is reserved may be delivered—

    • (a) in open court; or

    • (b) through the Registrar.

    (4) If subclause (3)(a) applies,—

    • (a) the Judge who heard the appeal must nominate and record on the judgment a date and time when the judgment will be delivered (delivery time):

    • (b) as soon as the Registrar is informed of the delivery time, the Registrar must attempt to notify the parties, by telephone or otherwise, of the fact that the Summary Appeal Court intends to deliver the judgment in open court and of the delivery time:

    • (c) the parties do not need to appear or be represented when the judgment is delivered:

    • (d) the judgment is given when it is delivered in open court.

    (5) If subclause (3)(b) applies,—

    • (a) the Judge who heard the appeal must nominate and record on the judgment a date and time when the judgment will be delivered (delivery time):

    • (b) as soon as the Registrar is informed of the delivery time, the Registrar must attempt to notify the parties, by telephone or otherwise, of the fact that the Summary Appeal Court intends to deliver the judgment through the Registrar and of the delivery time:

    • (c) the judgment must for all purposes be treated as having been given at the delivery time.

    (6) The Registrar must, if requested to do so by a party,—

    • (a) send to the party immediately after the delivery time or, in the case of a judgment delivered orally, as soon as practicable after the judgment is transcribed, a copy of the judgment by email or fax or post; or

    • (b) make a copy of the judgment available for collecting from the registry of the Summary Appeal Court immediately after the delivery time or, in the case of a judgment delivered orally, as soon as practicable after the judgment is transcribed.

    (7) The Registrar must immediately after the delivery time, or in the case of a judgment delivered orally as soon as practicable after the judgment is transcribed, post a copy of the judgment to—

    • (a) any party who has given an address for service but who has not made a request under subclause (6); and

    • (b) the disciplinary officer; and

    • (c) if appropriate and if the party is in custody, the person in charge of the place where the party is being held in custody.

    (8) A failure by the Registrar to comply with subclause 4(b), 5(b), (6), or (7) does not affect the validity of the judgment or its delivery time.

    (9) A copy of the judgment signed by the Judge who heard the appeal must be retained by the registry.

    (10) This rule does not apply to minutes or procedural orders.

42 Judges to be identified
  • Every judgment, minute, or direction must identify on the face of it the Judge who made the decision or minute or gave the direction.

Subpart 3Miscellaneous provisions

43 Abandonment of appeal
  • (1) An appellant may, at any time, abandon an appeal by filing with the Registrar a notice advising that he or she—

    • (a) does not further intend to prosecute the appeal; and

    • (b) abandons all further proceedings concerning that appeal.

    (2) The notice must be signed by—

    • (a) the appellant personally; or

    • (b) the appellant’s solicitor or counsel.

    (3) If the notice is signed by the appellant personally, the appellant’s signature must be witnessed and the witness must add the witness’s address and description after the witness’s signature.

    (4) A notice under this rule must be in form 5 of the Schedule.

44 Persons to be heard by Summary Appeal Court before restitution order annulled or varied
  • (1) This rule applies if, on the trial of a person entitled to appeal under the 1971 Act, an order has been made by the disciplinary officer under section 117ZA of the 1971 Act.

    (2) Before an order is made by the Summary Appeal Court under section 134(1) of the 1971 Act, the following persons are entitled to be heard before the court:

    • (a) the person in whose favour or against whom the order for compensation or restitution has been made:

    • (b) with the leave of the court, any other person.

45 Successful appellant entitled to return of amount paid towards fine
  • An appellant who has paid a fine in accordance with a punishment and is successful on appeal is entitled, subject to the order of the Summary Appeal Court, to the return of the amount paid or a part of the amount paid, as the case may be.

46 Register must be kept
  • (1) The Registrar must keep a register, in any form he or she thinks fit, of all—

    • (a) notices of appeal received by the Registrar; and

    • (b) decisions of the Summary Appeal Court given in the appeals referred to in those notices.

    (2) The register must be open for public inspection during the Summary Appeal Court’s ordinary office hours.

47 Mode of giving notice to Summary Appeal Court
  • Notices may be given to the Summary Appeal Court by serving them by hand or by sending them to the Registrar, at his or her office, by post, fax, or any other written or printed means.

48 Mode of giving notice to parties
  • A notice may be given to a party—

    • (a) at his or her postal address by post or by any other written or printed means; or

    • (b) by faxing it to a fax number supplied by the party; or

    • (c) by using any other means of communication that is customary in the Armed Forces.

49 Summary Appeal Court order may enforce rules
  • The performance of any duty imposed on any person under Part 5A of the 1971 Act or these rules may be enforced by order of the Summary Appeal Court.

50 Effect of non-compliance with rules
  • (1) Non-compliance by a party with these rules does not prevent that party from continuing to take part in an appeal if the Summary Appeal Court considers that the non-compliance was of a trifling character or not wilful and that it may be waived or remedied by amendment or otherwise.

    (2) The Summary Appeal Court may, in any manner that it thinks fit,—

    • (a) direct the party to remedy the non-compliance; and

    • (b) if the party was not present in court when the direction was given, direct the Registrar to transmit its direction to the party.

51 Cases not provided for in rules
  • In any matter not expressly provided for by these rules, the Summary Appeal Court may give any direction that it thinks best calculated to carry out the purposes of Part 5A of the 1971 Act.

52 Power to extend or shorten time appointed by rules or fixed by order
  • (1) The Summary Appeal Court may extend or shorten the time appointed by these rules, or fixed by any order, for doing any act or taking any proceeding or any step in a proceeding on any terms that the court thinks just.

    (2) The Summary Appeal Court may exercise a power conferred by subclause (1)—

    • (a) whether on application by a party or on the court’s own initiative; and

    • (b) whether for reasons of urgency or for any other reason; and

    • (c) in the case of an extension of the time referred to in that subclause, whether before or after that time has expired.

53 Correction of accidental slip or omission
  • (1) This rule applies if—

    • (a) any judgment or order or the reasons for any judgment or order contain a clerical mistake or an error arising from any accidental slip or omission (whether the mistake, error, slip, or omission was made by an officer of the Summary Appeal Court or not); or

    • (b) any judgment or order is so drawn up as not to express what was actually decided and intended.

    (2) The Summary Appeal Court may correct the judgment or order or the reasons for the judgment or order on—

    • (a) the court’s own initiative; or

    • (b) an interlocutory application made for that purpose.

54 Security of documents, etc
  • (1) Subclause (2) applies if the Minister of Defence, or any person authorised to act on the Minister’s behalf, certifies that, for reasons of security, the whole or part of the proceedings or other document, exhibit, or other thing—

    • (a) should not to be disclosed except to the Summary Appeal Court; or

    • (b) should only be disclosed subject to certain conditions specified by the person certifying.

    (2) If this subclause applies, despite any other provision in these rules to the contrary, the Registrar must not permit inspection or supply a copy of the material to which the certificate relates without seeking a direction from the Summary Appeal Court.

    (3) Nothing in these rules affects any rule of law that authorises or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest.

Part 4
Court Martial

Subpart 1Preliminary provisions

55 Application of this Part
  • This Part applies to proceedings in the Court Martial.

56 Interpretation
  • Any term or expression that is defined in the 2007 Act and used, but not defined, in this Part has the same meaning as in the 2007 Act.

Subpart 2Matters preliminary or incidental to trial in Court Martial

Charge sheet and charge

57 Form of charge sheet
  • (1) The layout of every charge sheet must follow the appropriate form prescribed by the Chief of Defence Force.

    (2) The heading to every charge sheet must be in the appropriate form prescribed by the Chief of Defence Force and must—

    • (a) state the full name of the accused, and his or her number, rank, and unit or other description; and

    • (b) show that the accused is subject to the 1971 Act or is otherwise liable to be tried by the Court Martial.

58 Error in heading to charge sheet
  • (1) A charge sheet is not invalid only because of an error in the heading, whether or not that error is corrected.

    (2) If the Court Martial discovers an error in the heading, it may correct it.

59 Charge sheet may contain more than 1 charge
  • (1) A charge sheet must contain the whole of the issue or issues to be tried at one time.

    (2) A charge sheet may contain 1 charge or several charges.

60 Drawing of charge
  • (1) The Director of Military Prosecutions must ensure that every charge is drawn in accordance with the following provisions:

    • (a) each charge must state 1 offence only:

    • (b) offences may be charged in the alternative:

    • (c) if offences are charged in the alternative, each offence must be stated in a separate charge, and the charges must be set out in descending order of seriousness:

    • (d) each charge must be set out in 2 parts, namely,—

      • (i) a statement of the offence; and

      • (ii) a statement of the particulars of every act or omission constituting the offence:

    • (e) if the offence is a civil one, the statement of the offence must be in words sufficient to give the accused notice of the offence:

    • (f) if the offence is not a civil one, the statement of the offence must be in a form prescribed by the Chief of Defence Force:

    • (g) the statement of the particulars must set out—

      • (i) sufficient details of the alleged offence to give the accused reasonable information concerning every act or omission to be proved against the accused as constituting the offence:

      • (ii) if the alleged offence is one that renders the accused, if convicted, liable to a greater or lesser penalty according to the particular circumstances in which the offence was committed, the particular circumstances (if any) that it is alleged render the accused liable to the higher penalty:

      • (iii) if it is intended to seek an order for compensation or restitution (or both) if the accused is found guilty or is convicted, sufficient matters that, if proved, would justify the making of the order.

    (2) Subclause (1)(b) and (c) are subject to section 73(3) of the 1971 Act.

61 Charges against more than 1 person
  • (1) Any number of accused may be charged in the same charge sheet with offences alleged to have been committed by them separately if the facts on which the charges are founded are so connected that it is in the interests of justice that the accused be tried together.

    (2) Any number of accused may be charged in the same charge sheet with an offence alleged to have been committed by them jointly.

    (3) If subclause (2) applies, any 1 or more of the accused may be charged in the same charge sheet with any other offence alleged to have been committed by the accused, either jointly or separately, if the facts on which the charges are founded are so connected that it is in the interests of justice that the charges be included in the same charge sheet.

Disclosure

62 Additional disclosure
  • (1) The Director of Military Prosecutions must, at the time a charge is drawn,—

    • (a) determine whether or not all information that comes within rule 9 has been disclosed to the accused; and

    • (b) ensure that the accused is given access, as soon as practicable, to any information that comes within rule 9 and that has not already been disclosed.

    (2) Rule 10 applies to any additional disclosure.

    (3) Nothing in this rule limits the duties of the prosecutor under rule 70(3).

Objection to assignment of military members

63 Notice of objection against assignment of person as military member
  • (1) The notice to be given by the Registrar to the accused under section 26(1)(b) of the 2007 Act, relating to the assignment of military members to the Court Martial, must be given by personal service effected in the following way:

    • (a) the Registrar must send the notice to the commanding officer of the accused, by email, fax, post, or any other means of communication customary in the Armed Forces; and

    • (b) the commanding officer must cause the notice to be personally delivered to the accused.

    (2) If the accused wishes to object under section 27 of the 2007 Act about the assignment of a person as a military member, the accused must, within 14 days after the notice of assignment is delivered to him or her,—

    • (a) make the objection in writing; and

    • (b) specify in the objection the ground of the objection; and

    • (c) serve the objection on the Registrar by—

      • (i) personally delivering it to the Registrar; or

      • (ii) emailing, faxing, or posting it by registered letter to the Registrar.

    (3) For the purposes of subclause (2), an objection is deemed to be served on the Registrar,—

    • (a) if it is sent by email or fax, at the time when it is received; and

    • (b) if it is sent by registered letter, at the time when the letter would be delivered in the ordinary course of post.

Rights and obligations of accused

64 Accused to be allowed sufficient opportunity to prepare defence
  • (1) After the accused is remanded for trial by the Court Martial, the accused must be given adequate time and facilities to prepare his or her defence.

    (2) So far as practicable, the accused must be allowed free communication with his or her defending officer (if one has been assigned), defender or counsel, and witnesses.

65 Appointment of defender or counsel
  • (1) The Court Martial must ensure that a defender or counsel is appointed to—

    • (a) assist the accused in the preparation or presentation of his or her case; and

    • (b) to act on behalf of the accused.

    (2) Subclause (1) does not apply if the accused states in writing that he or she does not wish such an appointment to be made.

    (3) If a defender is appointed, the defender has the same rights and is subject to the same obligations under these rules as counsel.

66 Information to be given to accused following remand
  • (1) As soon as practicable after the accused has been remanded for trial by the Court Martial, and in no case less than 72 hours before the trial, the Registrar must give the accused—

    • (a) the name of the Judge who has been assigned under section 21(3) of the 2007 Act; and

    • (b) a copy of all charge sheets against the accused laid before the Registrar by the Director of Military Prosecutions.

    (2) At the same time, the Registrar must inform the accused—

    • (a) that the accused has the right to submit to the Registrar, not later than 48 hours before the commencement of the trial, a list of persons the accused wishes to call in his or her defence (not being prosecution witnesses); and

    • (b) that all reasonable steps will be taken to secure the attendance of those persons at the trial.

67 Conditions under which evidence of alibi may be given
  • (1) In this rule, evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time, the accused was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.

    (2) The accused must not adduce evidence in support of an alibi unless,—

    • (a) not later than 14 days before the commencement of the trial, the accused has given written notice of the particulars of the alibi to the Director of Military Prosecutions; or

    • (b) the Court Martial grants leave.

    (3) A written notice of the particulars of an alibi given to the Director of Military Prosecutions must include—

    • (a) the name and address of each witness the accused intends to call in support of the alibi; or

    • (b) if the accused does not know the name or address of a witness when the accused gives the notice, all the information in his or her possession that might be of material assistance in finding the witness.

    (4) The Court Martial must not grant leave under subclause (2)(b) unless it is satisfied that the accused has complied with the following requirements:

    • (a) if the name and address of a witness is not included in the written notice of the particulars of an alibi,—

      • (i) before giving the notice, the accused must take all reasonable steps to ascertain the name and address; and

      • (ii) after giving the notice, the accused must continue to take all reasonable steps to ascertain the name and address; and

      • (iii) if the accused subsequently discovers the name or the address or receives other information that might be of material assistance in finding the witness, he or she must give notice of the name, address, or other information to the Director of Military Prosecutions; and

    • (b) if the accused is notified by or on behalf of the Director of Military Prosecutions that the witness has not been traced by the name or at the address given,—

      • (i) the accused must immediately give notice to the Director of Military Prosecutions of all the information in his or her possession that might be of material assistance in finding the witness; and

      • (ii) on subsequently receiving any information of the nature referred to in subparagraph (i), the accused must immediately give notice of it to the Director of Military Prosecutions.

    (5) A notice of alibi purporting to be given under this rule on behalf of the accused by the accused’s counsel is deemed to be given with the authority of the accused, unless the contrary is proved.

68 Time when evidence as to alibi to be given
  • (1) Evidence tendered to disprove an alibi may be given before or after evidence is given in support of the alibi.

    (2) Subclause (1) is subject to any direction of the Court Martial as to the time at which evidence tendered to disprove an alibi may be given.

Rights and duties of counsel

69 Rights of counsel
  • (1) Every counsel appearing before the Court Martial has the same rights before the Court Martial as the Director of Military Prosecutions or the accused the counsel represents.

    (2) Nothing in subclause (1) confers on counsel for the accused any rights or powers that are conferred on the Director of Military Prosecutions by the 1971 Act, the 2007 Act, or these rules and exercisable by the Director of Military Prosecutions, or counsel on his or her behalf, exclusively in that capacity.

    (3) Counsel may—

    • (a) call and orally examine, cross-examine, and re-examine witnesses; and

    • (b) raise objections, make statements, and address the Court Martial on any matter relating to the proceeding; and

    • (c) offer any plea; and

    • (d) inspect the record of proceedings; and

    • (e) generally act on behalf of the Director of Military Prosecutions or the accused he or she represents.

    (4) Subclause (3) is subject to these rules and any directions by the Court Martial.

    (5) If the accused is represented by counsel, he or she is not entitled to exercise personally any powers referred to in subclause (3) (other than to plead to the charge), except with the consent of the Court Martial.

70 Duties of prosecutor and counsel
  • (1) Every prosecutor and counsel appearing before the Court Martial must—

    • (a) do his or her best to assist the Court Martial in the administration of justice; and

    • (b) present his or her case fairly; and

    • (c) treat the Judge and the military members with due respect; and

    • (d) comply in all respects with these rules, so far as they are applicable to the case; and

    • (e) conform with the practice of the High Court of New Zealand relating to the examination, cross-examination, and re-examination of witnesses, so far as it is applicable to the case.

    (2) A prosecutor or counsel must not—

    • (a) refer to any matter that is not relevant to the charge before the Court Martial; or

    • (b) assert as fact any matter that he or she does not intend to adduce evidence to prove or that has not been given in evidence; or

    • (c) state his or her own opinion on the evidence or on what the evidence tends to prove.

    (3) Without limiting subclause (2), the prosecutor—

    • (a) must ensure that he or she brings the whole case before the Court Martial; and

    • (b) must not take any unfair advantage of the accused; and

    • (c) must not withhold evidence from the accused.

Opening of Court Martial and administration of oaths

71 Judge to declare Court Martial in session
  • (1) If the Judge is satisfied that the Court Martial is constituted in accordance with law and has jurisdiction over the accused, the Judge must—

    • (a) call upon the military members to take their places; and

    • (b) declare that the Court Martial is in session.

    (2) After the Judge has declared that the court is in session, the Judge must—

    • (a) order that counsel take their places; and

    • (b) order that the accused be brought before the Court Martial.

72 Administration of oaths
  • After rule 71 has been complied with, the Judge must, in the presence of the accused, administer an oath or affirmation in the form prescribed in rules 159, 161, and 162 to—

    • (a) the military members; and

    • (b) every person responsible for recording or transcribing the proceedings of the Court Martial; and

    • (c) every interpreter attending the Court Martial.

Miscellaneous provisions

73 Officers under instruction
  • (1) An officer or a warrant officer who is subject to the 1971 Act may, with the leave of the Judge, attend a trial by the Court Martial as an officer or a warrant officer under instruction.

    (2) The Judge must, in the presence of the accused, administer an oath in the form prescribed in rule 160 to an officer or a warrant officer permitted to attend a trial under subclause (1).

    (3) An officer or a warrant officer under instruction must not take any part in the proceedings of the Court Martial.

74 Rulings by Judge on question of law or procedure
  • (1) This rule applies when a Judge is required to rule on a question of law or procedure in accordance with section 44 of the 2007 Act.

    (2) The Judge must hear the arguments and evidence relevant to the question of law or procedure and must give his or her ruling on the question, together with the reasons for the ruling.

    (3) If the Judge sits in the absence of the military members, the Judge must ensure that the military members do not see the record of proceedings relating to the question of law or procedure until the trial has been completed.

75 Order of trial when 2 or more accused
  • (1) If 2 or more accused are to be tried separately, the Judge must direct the order in which they are to be tried.

    (2) Subclauses (3) to (5) apply if 2 or more accused are to be tried jointly.

    (3) The accused must, in the order directed by the Judge,—

    • (a) be arraigned; and

    • (b) be required to elect whether to give evidence or call witnesses.

    (4) If more than 1 of the accused wish to do any of the following, the accused must be called on to do so in the order directed by the Judge:

    • (a) exercise the right of cross-examination:

    • (b) make a submission of no case to answer:

    • (c) make a closing address:

    • (d) make a plea in mitigation of punishment.

    (5) If the same counsel represents 2 or more accused, he or she may do the following, once only, on behalf of all the accused he or she represents:

    • (a) exercise the right of cross-examination of a witness:

    • (b) make a closing address.

Subpart 3Conduct of trial by Court Martial

Arraignment of accused and pleading

76 Accused to be arraigned
  • (1) When the persons referred to in rules 72 and 73 have been sworn, the Judge must arraign the accused.

    (2) If there is more than 1 charge against the accused before the Court Martial, the accused must be arraigned on each charge separately.

    (3) If an accused is liable to be tried on charges in more than 1 charge sheet, the following provisions apply:

    • (a) the accused must be arraigned and tried on the charge or charges in the first charge sheet to be dealt with:

    • (b) the Court Martial must announce its findings in respect of the charge or charges in that charge sheet:

    • (c) the Judge must then arraign the accused and cause the accused to be tried on the charge or charges in the second charge sheet and announce its findings in respect of the charge or charges in that charge sheet:

    • (d) the Court Martial must follow the same procedure as described in paragraphs (a) and (b) in respect of the third and any subsequent charge sheets.

77 Accused may plead to jurisdiction of Court Martial
  • (1) Before pleading to a charge, the accused may plead that the Court Martial does not have jurisdiction in respect of the charge.

    (2) The accused may adduce evidence in support of the plea and the prosecutor may adduce evidence in rebuttal.

    (3) The prosecutor may also address the Court Martial in opposition to the plea and the accused may reply to the prosecutor’s address.

    (4) If the Judge rules against the plea, the Judge must order the trial to proceed.

    (5) If the Judge rules in favour of the plea, the Judge may discharge the military members under section 48(1)(b) of the 2007 Act and adjourn the proceedings of the Court Martial.

    (6) However, if any other charge against the accused is before the Court Martial, the Court Martial may proceed with the trial of that other charge before the Judge discharges the military members and adjourns the proceedings.

    (7) The Director of Military Prosecutions may lay any other charge against the accused for an offence arising from the same incident or series of incidents.

78 Accused may plead in bar of trial
  • (1) Before pleading to a charge, the accused may plead that a trial of the charge is barred—

    • (a) under 1 or more of the provisions of sections 20 to 22 of the 1971 Act; or

    • (b) because of a pardon granted to the accused in respect of the offence with which the accused is charged.

    (2) The provisions of rule 77(2) to (6) apply in respect of a plea under this rule.

79 Application for separation of trials
  • (1) This rule applies if 2 or more persons are—

    • (a) charged jointly; or

    • (b) charged in the same charge sheet with offences alleged to have been committed by them separately.

    (2) Any of the accused may, before pleading to the charge, apply to the Court Martial to be tried separately on the ground that he or she would be unduly prejudiced in his or her defence if that course were not followed.

    (3) The Judge must hear and determine the application in the absence of the military members.

    (4) The prosecutor may address the Judge in opposition to the application and the accused may reply to the prosecutor’s address.

    (5) If the Judge rules against the application, the Judge must order the trial to proceed.

    (6) If the Judge rules in favour of the application, the Judge may make any orders and give any directions that he or she thinks necessary in the interests of justice.

80 Application for severance of charge sheets
  • (1) This rule applies if the charge sheet before the Court Martial is the second or a subsequent charge sheet.

    (2) The accused may, before pleading to the charges, apply to the Judge to have the charge sheet dealt with before a different panel of military members on the ground that he or she would be unduly prejudiced in his or her defence if the charge sheet was dealt with before the same panel.

    (3) The provisions of rule 79(3) to (6) apply in respect of an application under this rule.

81 Application for severance of charges
  • (1) This rule applies if 2 or more charges are contained in the same charge sheet.

    (2) The accused may, before pleading to a charge, apply to the Judge to have the charge tried before a different panel of military members on the ground that the accused would be unduly prejudiced in his or her defence if the charge were tried before the same panel.

    (3) The provisions of rule 79(3) to (6) apply in respect of an application under this rule.

82 Accused may object to charges
  • (1) Before pleading to a charge, the accused may object to it on 1 or more of the following grounds:

    • (a) that it does not disclose an offence against the 1971 Act:

    • (b) that it is not drawn in accordance with these rules:

    • (c) that it is not correct in law for any other reason.

    (2) The prosecutor may address the Court Martial in opposition to the objection, and the accused may reply to the prosecutor’s address.

    (3) If the Judge rules against the objection, the Judge must order the trial to proceed.

    (4) If the Judge rules in favour of the objection, the Judge may—

    • (a) order that the charge be amended or divided, if that can be done in accordance with rule 123; and

    • (b) make any other orders and give any other directions the Judge thinks necessary in the interests of justice.

83 Plea to charge
  • (1) The accused must be required to plead either guilty or not guilty to each charge on which he or she is arraigned.

    (2) Subclause (1) is subject to rules 77 to 82.

    (3) If the accused wishes to plead guilty to a charge,—

    • (a) the accused may plead guilty to the offence charged; or

    • (b) if the accused is charged with an offence to which section 56 of the 2007 Act applies, the accused may plead guilty to committing the offence charged without the specified intent or in circumstances otherwise than those involving the more severe punishment; or

    • (c) the accused may plead guilty to attempting to commit the offence charged; or

    • (d) if the accused is charged with an offence to which section 58 of the 2007 Act applies (offence A, specified in the first column of Schedule 1 of that Act), the accused may plead guilty to the corresponding offence (offence B) specified in the second column of Schedule 1 of the 2007 Act in relation to offence A.

84 Acceptance of plea of guilty
  • (1) The Court Martial must not accept a plea of guilty unless —

    • (a) the Judge has explained to the accused—

      • (i) the nature of the offence to which the plea relates; and

      • (ii) the consequence of the accused’s plea; and

      • (iii) the difference in procedure that must be followed according to whether the accused pleads guilty or not guilty; and

    • (b) the Judge is satisfied that the accused understands the nature of the offence and the consequences of the plea; and

    • (c) if rule 83(3)(b), (c), or (d) applies, the Director of Military Prosecutions agrees to the Court Martial accepting the plea.

    (2) Subclause (1)(a) does not apply if the accused is represented by a lawyer.

85 Recording of plea
  • (1) The Court Martial must record the accused's plea if—

    • (a) the accused pleads guilty and the Court Martial accepts the plea; or

    • (b) the accused pleads not guilty.

    (2) The Court Martial must record a plea of not guilty on behalf of the accused if the accused—

    • (a) refuses to plead; or

    • (b) pleads unintelligibly; or

    • (c) pleads guilty and the Court Martial does not accept the plea.

    (3) Subclause (2)(c) is subject to subclause (4).

    (4) If rule 83(3)(b), (c), or (d) applies and the Director of Military Prosecutions does not agree to the Court Martial accepting the plea,—

    • (a) the Judge must ask the accused whether the accused wishes to plead guilty to the offence charged; and

    • (b) if the accused pleads guilty to the offence charged and the Court Martial accepts the plea, the Court Martial must record the accused's plea; and

    • (c) if the accused does not plead guilty to the offence charged, the Court Martial must record a plea of not guilty.

86 Procedure after recording plea of guilty
  • (1) If the Court Martial records a plea of guilty, it must record and announce a finding of guilty in accordance with rules 109 and 110, then proceed in accordance with rule 111.

    (2) Subclause (1) is subject to rules 87, 88, 92(3), and 120.

87 Pleas on alternative charges
  • If charges in a charge sheet are laid in the alternative and the accused pleads guilty to a charge, the Court Martial must, if it accepts the plea, record the plea and defer making a finding in respect of the charge until the accused has been arraigned and tried on the other charges in the charge sheet.

88 Mixed pleas of guilty and not guilty
  • (1) This rule applies if the Court Martial records and announces a finding of guilty to a charge after recording a plea of guilty and—

    • (a) there is another charge (not being an alternative charge to that charge) in the same charge sheet to which—

      • (i) the accused pleads not guilty; or

      • (ii) any other accused who is being tried jointly with the accused pleads not guilty; or

    • (b) 2 or more persons face that charge and 1 or more of them pleads not guilty.

    (2) Before proceeding under rule 111, the Court Martial must—

    • (a) in the case of subclause (1)(a), try the accused, or the other accused, on the other charge and record and announce its finding on the other charge:

    • (b) in the case of subclause (1)(b), try the other person or persons on that charge, and record and announce its finding on that charge.

89 Accused may enter guilty plea before trial at hearing before Judge sitting alone
  • (1) An accused remanded for trial by the Court Martial who wishes to plead guilty to a charge before trial may do so at a hearing before a Judge sitting alone.

    (2) The accused must sign a request in form 6 of the Schedule to be brought before the Court Martial.

    (3) Subclause (2) does not apply if a hearing has been convened before a Judge for another purpose relating to any charge against the accused and at that hearing the accused makes his or her request to enter a plea of guilty to a charge.

    (4) The Registrar must, on receipt of the request, arrange for the accused to be brought before a Judge sitting alone as soon as practicable.

90 Guilty plea before trial: procedure at hearing before Judge sitting alone
  • (1) At a hearing before a Judge sitting alone under rule 89, the accused must be called on to plead either guilty or not guilty to the charge for which he or she has been remanded for trial.

    (2) Before the accused is called on to plead, the charge to which the accused is required to plead must be read over to the accused.

    (3) If the accused pleads guilty and the Judge is satisfied that the plea may be accepted under rule 84, the Judge must—

    • (a) record the accused’s plea; and

    • (b) adjourn the proceedings until the Court Martial is constituted in accordance with section 21(1) of the 2007 Act.

    (4) If the accused does not plead guilty, or if it is not practicable for the accused to be dealt with by a Judge before the commencement of trial,—

    • (a) the accused must be treated in all respects as if the accused had not made a request to plead guilty under rule 89; and

    • (b) no comment may be made at the accused’s trial on the fact that a request was made under that rule; and

    • (c) the request is not admissible in evidence against the accused.

91 Guilty plea before trial: procedure following hearing before Judge sitting alone
  • (1) This rules applies if a Judge has recorded a plea of guilty in respect of a charge at a hearing before trial under rule 89.

    (2) When the Court Martial is assembled the Judge must, after complying with rules 71 and 72,—

    • (a) announce the plea recorded at the hearing before trial; and

    • (b) ask the accused whether he or she wishes to change the plea.

    (3) If the accused does not wish to change the plea,—

    • (a) the Judge must direct the Court Martial to find the accused guilty on the charge; and

    • (b) the Court Martial must adjourn the proceedings for sufficient time to enable the prosecutor and the accused to comply with rule 111(1)(b) and (2), if they have not already done so; and

    • (c) the Court Martial must then proceed in accordance with rules 113 and 114.

    (4) If the accused wishes to change the plea, the Court Martial must—

    • (a) record a plea of not guilty in substitution of the plea of guilty; and

    • (b) proceed on the basis of a not guilty plea.

92 Change of plea
  • (1) An accused who pleads not guilty to a charge may, at any time before the military members retire to deliberate on their finding, withdraw his or her plea of not guilty and substitute a plea of guilty to the charge.

    (2) If the Judge is satisfied, in accordance with rule 84, that the Court Martial should accept the substituted plea of guilty, the Court Martial must—

    • (a) record the plea; and

    • (b) record and announce a finding of guilty; and

    • (c) so far as is necessary, proceed in accordance with rule 111.

    (3) If, at any time during the proceeding, it appears to the Court Martial that an accused who has entered a plea of guilty to a charge did not understand the nature of the offence to which the plea related or the consequences of the plea, the Court Martial must—

    • (a) record a plea of not guilty in substitution for the plea of guilty; and

    • (b) proceed on the basis of the not guilty plea.

    (4) If, in a case to which subclause (3) applies, there was originally a charge before the court in the alternative to that to which the change of plea relates and that alternative charge was withdrawn by the prosecutor, the Court Martial must, if requested to do so by the Director of Military Prosecutions, reinstate that alternative charge, have the accused arraigned on it, and proceed as if the charge had never been withdrawn.

Application for adjournment

93 Application for adjournment following plea of not guilty
  • (1) If the accused pleads not guilty to a charge, the Judge must ask the accused whether the accused wishes to apply for an adjournment of the proceeding on either or both of the following grounds:

    • (a) that any of these rules relating to the procedure to be followed before a trial by the Court Martial has not been complied with and that the accused has been unduly prejudiced in his or her defence by that non-compliance:

    • (b) that the accused has not had adequate time or facilities to prepare his or her defence.

    (2) If the accused applies for an adjournment of the proceeding, the accused may adduce evidence in support of the application, and the prosecutor may adduce evidence in rebuttal.

    (3) The prosecutor may also address the Court Martial in opposition to the application, and the accused may reply to the prosecutor’s address.

    (4) On an application under this rule, the Court Martial may grant an adjournment if it thinks it is in the interests of justice to do so.

Case for prosecution

94 Admission by agreement
  • Any evidence or fact admitted under section 9 of the Evidence Act 2006 must be recorded in the record of proceedings.

95 Opening and presentation of case
  • (1) The prosecutor may, and must if required by the Court Martial, make an opening address stating the substance of the prosecution’s case and the nature and effect of the evidence to be adduced.

    (2) The accused may make a brief opening statement following the prosecutor’s opening address, with the leave of the Judge.

    (3) The prosecutor may then call the witnesses for the prosecution to give their evidence.

96 Obligation to give notice of evidence not contained in documents or information disclosed
  • (1) The prosecutor must, within a reasonable time before the commencement of the trial, give the accused—

    • (a) notice of his or her intention to adduce any evidence that is not contained in the documents or other information disclosed to the accused under rules 9 and 12; and

    • (b) a statement of the evidence.

    (2) If the accused did not, in the opinion of the Judge, receive the prior notice and statement required under subclause (1),—

    • (a) the Judge must, when the evidence has been heard, advise the accused that he or she may apply for an adjournment of the proceeding, or a postponement of any cross-examination arising out of the evidence, to enable the accused to consider the evidence properly; and

    • (b) the Judge may, on an application by the accused, grant the accused an adjournment or postponement if the Judge thinks it is in the interests of justice to do so.

97 Notice to accused that prosecution witness not to be called
  • (1) The prosecutor is not bound to call every witness for the prosecution whose evidence has been disclosed or of whom notice has been given to the accused under rule 96.

    (2) If the prosecutor does not intend to call a witness whose evidence has been disclosed or of whom notice has been given to the accused, the prosecutor must—

    • (a) give reasonable notice of that fact to the accused; or

    • (b) tender the witness for cross-examination at the trial.

    (3) If subclause (2)(a) applies, the prosecutor must inform the accused that the accused may do either or both of the following:

    • (a) communicate with the witness:

    • (b) call the witness to give evidence if he or she is available.

    (4) Subclause (2) does not apply if the attendance of the witness is dispensed with—

    • (a) under the provisions of any Act; or

    • (c) with the consent of the accused.

Calling and examination of witnesses

98 Witness to be sworn
  • (1) Every witness must be sworn in the presence of the accused and in the form and manner prescribed in Part 7 of these rules before the witness gives evidence.

    (2) Subclause (1) is subject to section 47 of the 2007 Act.

99 Exclusion of witness from courtroom
  • (1) The prosecutor or the accused may apply to the Judge, at any time during the trial, for an order that all or any of the witnesses, other than the accused, be excluded from the courtroom until they are called to give their evidence.

    (2) Every person to whom an order for exclusion applies must leave the courtroom but remain within call.

    (3) If a question arises about the admissibility of any evidence during the course of a witness giving evidence, the Judge may direct the witness to leave the courtroom while the question is dealt with.

100 Questions by members of Court Martial
  • If a member of the Court Martial puts a question to a witness,—

    • (a) every party, other than the party who called the witness, may cross-examine the witness on any matter raised by the member's question; and

    • (b) the party who called the witness may re-examine the witness.

101 Accused may submit no case to answer
  • (1) At the conclusion of the prosecution’s case in respect of any charge, the accused may submit that there is no case to answer and therefore that the accused should not be called on to make his or her defence to the charge.

    (2) The Judge must hear and determine the accused’s submission that there is no case to answer in the absence of the military members of the Court Martial.

    (3) The prosecutor may address the Judge in opposition to the submission, and the accused may reply to the prosecutor’s address.

102 Rulings on submission of no case to answer
  • (1) The Judge must rule in favour of the submission if the Judge is satisfied, in respect of the charge,—

    • (a) that there is no case for the accused to answer; and

    • (b) that it is not open to the Court Martial to amend the charge in order to meet the submission; and

    • (c) that it is not open to the Court Martial, on the evidence before it, to make a special finding under section 74(3) of the 1971 Act, any of sections 56 to 59 of the 2007 Act, or under rule 109(2).

    (2) If the Judge rules in favour of the submission, the Judge must direct the military members of the Court Martial to—

    • (a) find the accused not guilty; and

    • (b) announce that finding in open court.

    (3) If the Judge rules against the submission,—

    • (a) the ruling and the reasons for it must be recorded and announced in open court; and

    • (b) the Judge must order the trial to proceed.

    (4) Nothing in this rule prevents the military members, after hearing the prosecutor and the Judge, from finding the accused not guilty of the charge at any time after the conclusion of the prosecution’s case.

Case for defence

103 Judge must advise accused of accused’s rights
  • (1) Following the conclusion of the prosecution’s case, the Judge must advise the accused as follows:

    • (a) that if the accused wishes, he or she may give evidence as a witness, but is not bound to do so:

    • (b) that if the accused does give evidence, he or she will be liable to cross-examination by the prosecutor, and liable to questioning by the military members and the Judge:

    • (c) that whether or not the accused gives evidence, the accused may call witnesses on his or her behalf.

    (2) After advising the accused of the accused’s rights as provided in subclause (1), the Judge must ask the accused whether or not he or she wishes to give evidence or call any witnesses.

    (3) If the accused elects to give evidence or call witnesses, the accused may make an opening address setting out the substance of the accused’s defence, and the nature and effect of the evidence to be adduced, and must then proceed in accordance with his or her election.

104 Evidence in rebuttal
  • On the conclusion of the case for the defence, the prosecutor may, with the leave of the Judge, call or recall any witness to give evidence on any matter raised by or on behalf of the accused in his or her defence that the prosecutor—

    • (a) could not properly have put before the Court Martial before the accused disclosed his or her defence; or

    • (b) could not reasonably have foreseen.

Closing addresses and summing up

105 Closing addresses by prosecution and defence
  • (1) After all the evidence has been given, the prosecutor and the accused may make a closing address to the Court Martial.

    (2) The accused is entitled to make his or her closing address after the prosecutor’s closing address.

106 Calling and recalling of witnesses before summing up
  • (1) The Court Martial may, at any time before the Judge sums up, call or recall a witness if it thinks that it is in the interests of justice to do so.

    (2) If the Court Martial calls or recalls a witness, the prosecutor and the accused may put those questions to the witness that the Judge allows as proper.

    (3) The prosecutor or the accused may, with leave of the Judge, recall a witness at any time before the Judge sums up, and either party may put those questions to the witness that the Court Martial allows as proper.

107 Judge to sum up
  • (1) After the closing addresses by the prosecutor and the accused, the Judge must sum up the evidence and advise the military members on the law as it applies to the case.

    (2) The Judge’s summing up and advice must be given in open court.

Finding of Court Martial

108 Deliberation on finding
  • (1) After the Judge has summed up, the Judge must withdraw and the military members must assemble in closed court to deliberate on their finding.

    (2) Every military member must give his or her opinion on the finding orally, in closed court, and in order of seniority commencing with the most junior in rank.

    (3) If there is more than 1 charge, every military member must give his or her opinion on the finding on each charge separately.

    (4) If, during the course of their deliberations, the military members require further advice from the Judge, they must suspend their deliberations and ask for and receive the advice in open court.

109 Form of finding
  • (1) The Court Martial must record one of the following findings in respect of each charge before it:

    • (a) a finding of guilty—

      • (i) of the offence charged; or

    • (b) a finding of not guilty; or

    • (c) a finding in accordance with section 190 of the 1971 Act.

    (2) If section 59 of the 2007 Act applies, the Court Martial may record a finding of guilty subject to the differences between the facts proved and the facts alleged, as specified in the finding.

    (3) This rule is subject to section 60 of the 2007 Act.

110 Recording and announcement of finding
  • (1) When the military members have completed their deliberations, they must reassemble in open court and inform the Judge of their finding.

    (2) The Judge must record the finding in the prescribed form and then announce the finding in open court.

    (3) However, if the finding is one of guilty (including any finding authorised by sections 56 to 59 of the 2007 Act) and the Judge is of the opinion that the finding is contrary to law, the Judge must once (but only once) more advise the military members of the findings that are open to them in law.

    (4) When the Judge has complied with subclause (3), the military members must retire to reconsider their finding in closed court.

Procedure subsequent to finding

111 Finding of guilty after plea of guilty
  • (1) If the Court Martial records a finding of guilty after recording a plea of guilty,—

    • (a) the Court Martial must adjourn the proceedings for sufficient time to enable the prosecutor to comply with paragraph (b); and

    • (b) the prosecutor must prepare a summary of facts for the charge and give a copy of the summary to the accused in reasonable time for the accused to consider it before the hearing is resumed.

    (2) If the accused takes any issue with the summary of facts that may affect the sentence likely to be imposed,—

    • (a) the accused must advise the prosecutor at the earliest practicable opportunity; and

    • (b) the prosecutor and the accused must confer to try to resolve the dispute by amendment to, or deletion from, the summary.

    (3) After complying with subclauses (1) and (2), the Court Martial must proceed in accordance with rules 113 and 114.

    (4) This rule is subject to rules 87, 88, 91, and 120.

112 Proof of facts
  • (1) In determining a sentence or other disposition of the case, the Court Martial—

    • (a) may accept as proved any facts agreed on by the prosecutor and the accused; and

    • (b) must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.

    (2) If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by the prosecutor and disputed by the accused,—

    • (a) the Judge must indicate to the parties the weight that the Court Martial would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case; and

    • (b) if a party wishes the Court Martial to rely on that fact, the parties may adduce evidence as to its existence; and

    • (c) the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the accused (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false; and

    • (d) the accused must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the accused’s part in the offence; and

    • (e) either party may cross-examine any witness called by the other party.

    (3) For the purposes of this rule,—

    aggravating fact means any fact that—

    • (a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and

    • (b) the Judge accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case

    mitigating fact means any fact that—

    • (a) the accused asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and

    • (b) the Judge accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.

113 Evidence on accused’s record, etc, to be considered: prosecution evidence relevant to sentence
  • (1) If the Court Martial finds the accused guilty on any charge, it must take and consider evidence of the accused’s age, rank, and service record before deliberating on the sentence to be imposed.

    (2) The prosecutor must adduce evidence in relation to the matters referred to in subclause (1) and must, in particular, draw to the attention of the Court Martial—

    • (a) any recognised acts of gallantry or distinguished conduct on the part of the accused, and any decoration he or she is entitled to; and

    • (b) any offence the accused has been found guilty of during his or her service, as recorded in the service records; and

    • (c) the length of time during which the accused has been under arrest awaiting trial (including the time, if any, during which the accused was held in custody) or in confinement under a current sentence.

    (3) Evidence of the matters referred to in subclauses (1) and (2) may be given by a witness producing to the Court Martial a written statement containing a summary of the relevant entries in the accused’s service record in the form prescribed by the Chief of Defence Force.

    (4) However, before producing a written statement under subclause (3) the witness must, in open court,—

    • (a) verify the statement; and

    • (b) identify the accused as the person to whom the entries relate.

    (5) In addition to the matters referred to in subclauses (1) to (4), the prosecution may call evidence on any other matters that are relevant to the question of sentence.

    (6) This rule is subject to rule 121.

114 Evidence on accused’s record, etc: accused’s rights and evidence relevant to sentence
  • (1) The accused may cross-examine any witness called to give evidence under rule 113.

    (2) The accused may insist on the production of the accused’s actual service record.

    (3) If any discrepancies are found between the actual service record and the written statement before the Court Martial, the Court Martial must ensure that the written statement is amended to accord with the record.

    (4) When the provisions of rule 113 and subclauses (1) to (3) have been complied with, the accused may call evidence on any other matters that are relevant to sentence, and the accused may—

    • (a) give evidence; or

    • (b) call witnesses in mitigation of punishment and as to character.

115 Judge may call evidence relevant to sentence
  • (1) If the Judge considers that there is a matter relevant to sentence or other disposition of the case that requires clarification (whether arising out of evidence adduced by either party at trial, a summary of facts, or evidence adduced under rules 113 and 114), the Judge may call or recall any witness the Judge considers should be questioned on the matter.

    (2) A witness called by the Judge may be—

    • (a) cross-examined by the prosecution and the accused:

    • (b) re-examined on any matter arising out of the cross-examination.

116 Addresses on sentence
  • (1) The prosecutor and the accused may address the Court Martial on the question of sentence.

    (2) The Judge—

    • (a) must direct the order of submissions:

    • (b) may require the prosecution to address the Court Martial first.

    (3) Neither party has a right of reply, except with special leave of the Court Martial.

117 Request by accused for other offences to be taken into account
  • (1) This rule applies if an accused makes a request under section 64 of the 2007 Act that the Court Martial take into account any other offence in sentencing him or her.

    (2) Before the Court Martial withdraws to deliberate on sentence, the Judge must—

    • (a) inform the accused of which offences the Court Martial will agree to take into consideration; and

    • (b) ask the accused whether or not he or she admits having committed those offences.

    (3) The accused must inform the Court Martial of which offences he or she admits having committed.

    (4) The Court Martial must cause a list of those offences to be drawn up, signed by the accused and the Judge, and to be attached to the record of proceedings as an exhibit.

118 Sentence and recommendation of mercy
  • (1) Each member of the Court Martial must give his or her vote on sentence orally in closed court.

    (2) The military members must vote in order of seniority commencing with the most junior in rank.

    (3) Every sentence must be recorded in the form prescribed by the Chief of Defence Force.

    (4) This rule also applies to recommendations of mercy.

119 Announcement at conclusion of trial
  • The Judge must announce in open court that the trial is concluded after—

    • (a) the sentence has been announced; or

    • (b) the accused has been found unfit to stand trial; or

    • (c) the accused has been acquitted, whether on account of insanity or otherwise.

Procedure subsequent to finding: Particular cases

120 Trial of charge in other charge sheet
  • If the Court Martial finds the accused guilty on a charge and there is another charge sheet before the Court Martial, the Court Martial must not proceed in accordance with rules 111 to 116 until it has arraigned and tried the accused on the charge or charges in the other charge sheet.

121 Finding of guilty where mixed pleas of guilty and not guilty
  • (1) This rule applies if—

    • (a) the Court Martial finds the accused guilty in respect of a charge (charge A) to which the accused pleaded not guilty; and

    • (b) before the Court Martial there is—

      • (i) in the same charge sheet, another charge against the accused, or against any other accused who is being tried jointly with him or her, to which the Court Martial has accepted a plea of guilty; or

      • (ii) another accused whose plea of guilty to charge A has been accepted by the Court Martial.

    (2) The Court Martial must, so far as necessary, comply with rule 111 on the charge to which a plea of guilty has been accepted, or (as the case may be) has been accepted in respect of the other accused, before proceeding in accordance with rules 113 and 114.

Subpart 4Further rules relating to trial by Court Martial

Withdrawal, amendment, division of charges

122 Withdrawal of charge
  • (1) The Court Martial may, with the consent of the Director of Military Prosecutions, allow the prosecutor to—

    • (a) withdraw a charge at any time before the accused has been arraigned on it; or

    • (b) withdraw a charge sheet at any time before the accused has been arraigned on any charge in it.

    (2) The consent of the Director of Military Prosecutions for the purposes of subclause (1) may be notified to the Court Martial by the prosecutor.

123 Amendment or division of charges
  • (1) The prosecutor or the accused may apply to the Court Martial for—

    • (a) the amendment of any charge; or

    • (b) the division of any charge into 2 or more charges.

    (2) The Judge may order that a charge be amended or divided into 2 or more charges if the Judge is satisfied that it is necessary in the interests of justice to do so.

    (3) An order may be made—

    • (a) on an application under subclause (1); or

    • (b) on the Judge’s own initiative.

    (4) If, in making an order, the Judge thinks it necessary in the interests of justice, the Judge may—

    • (a) adjourn the proceedings of the Court Martial for the period that the Judge considers necessary; or

    • (b) discharge the military members under section 48 of the 2007 Act and then adjourn the proceedings of the Court Martial for the period that the Judge considers necessary.

    (5) If the Judge discharges the military members before adjourning the proceedings, the Registrar must appoint new military members under section 21(4) of the 2007 Act before the trial may recommence.

Fitness of accused to stand trial

124 Determination before trial of fitness of accused to stand trial
  • (1) This rule and rules 125 and 126 apply if the question of whether the accused is unfit to stand trial is to be determined before trial.

    (2) In this rule and rules 125 and 126, special hearing means a hearing fixed by the Registrar in accordance with subclause (3) for the purpose of ascertaining whether the Court Martial is satisfied of the matter specified in section 188(2) of the 1971 Act.

    (3) The Registrar must—

    • (a) fix a time and place for a special hearing; 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.

    (4) The notice under subclause (3)(b) must,—

    • (a) 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

    • (b) at the beginning of the special hearing, be accompanied by a copy of the charge sheet certified by the Director of Military Prosecutions and laid before the Registrar.

125 Procedure at special hearing before trial
  • (1) At the beginning of the special hearing, the charge must be read to the accused before the prosecution calls any witnesses.

    (2) After the charge has been read to the accused, the prosecution must call its witnesses, who must be examined by the prosecution, and may be cross-examined by the accused and re-examined by the prosecution.

    (3) The Judge must, if required by the accused to do so, allow the accused to—

    • (a) call witnesses; and

    • (b) give evidence.

    (4) If subclause (3)(a) applies, the witnesses must be examined by the accused and may be cross-examined by the prosecution and re-examined by the accused.

    (5) If subclause (3)(b) applies, the accused may be cross-examined by the prosecution and, if the accused is represented, re-examined.

    (6) The following rules apply to a special hearing:

    • (a) rule 72 (which relates to the administration of oaths):

    • (b) rule 98 (which relates to the swearing of witnesses):

    • (c) rule 99 (which relates to the exclusion of witnesses from the courtroom).

    (7) The Judge may make orders and give directions, concerning the conduct of a special hearing, that he or she thinks necessary in the interests of justice.

126 Determining if accused unfit to stand trial
  • If, following a special hearing, the Judge records a finding under section 188(6) of the 1971 Act, the Judge may make orders and give directions that he or she thinks necessary in the interests of justice concerning the receiving of evidence in accordance with section 188A of the 1971 Act.

127 Determination during trial of fitness of accused to stand trial
  • (1) This rule applies if the question of whether the accused is unfit to stand trial is to be determined during the trial.

    (2) For the purpose of ascertaining whether the Court Martial is satisfied of the matter specified in section 188(2) of the 1971 Act, the Court Martial may consider any evidence presented at the hearing, including evidence heard as a result of the Judge calling or recalling any witness to be questioned on any matter the Judge considers requires clarification.

Exhibits

128 Exhibits
  • (1) Every document or thing produced in evidence at a trial in the Court Martial must be made an exhibit.

    (2) Subclause (1) is subject to subclause (3).

    (3) When an original document or book is produced in evidence, instead of making it an exhibit, the Judge may compare a copy of or extract from the document or book with the original and, if the Judge is satisfied that the copy or extract is correct,—

    • (a) the Judge must endorse on the copy or extract a certificate to that effect in the form prescribed by the Chief of Defence Force; and

    • (b) the Judge may return the original document or book to the witness and attach the certified copy to the record of proceedings as an exhibit.

    (4) Every exhibit must—

    • (a) either be marked with a number or letter in sequence and signed by the Judge, or have a label attached to it so marked and signed; and

    • (b) be attached to or kept with the record of proceedings, unless in the opinion of the Judge it is not expedient to do so.

Subpart 5New trials in Court Martial

129 Referral of order for new trial to Director of Military Prosecutions
  • (1) This rule applies to a new trial in the Court Martial ordered by—

    • (b) the Court Martial Appeal Court under section 9A(3)(b)(ii) of the Court Martial Appeals Act 1953.

    (2) The Registrar of the Court Martial must refer the order for a new trial to the Director of Military Prosecutions, together with the reasons for the order and any associated directions given under section 132(4) of the 1971 Act.

    (3) The Director of Military Prosecutions must perform the functions and the duties set out in section 101F of the 1971 Act in relation to the charge as if the charge had been referred to the Director of Military Prosecutions by a disciplinary officer under Part 5 of the 1971 Act.

    (4) Subclause (3) is subject to any directions given in making the order for a new trial.

130 Record of evidence may be read as evidence at new trial
  • (1) This rule applies to a new trial in the Court Martial ordered by the Court Martial Appeal Court under section 9A(3)(b)(ii) of the Court Martial Appeals Act 1953.

    (2) The record of evidence given by a witness at the original trial may, with the leave of the Court Martial in the new trial, be read as evidence—

    • (a) if the prosecutor and the accused agree; or

    • (b) if the Court Martial is satisfied that the witness cannot or should not be required to attend because—

      • (i) the witness is dead; or

      • (ii) the witness is outside the country in which the new trial is to be held and it is not reasonably practicable to secure his or her attendance; or

      • (iii) the witness is unfit by reason of old age or his or her bodily or mental condition to attend; or

      • (iv) the witness cannot with reasonable diligence be found; or

      • (v) requiring the witness to attend would cause undue delay or expense.

    (3) If subclause (2) applies, the record of evidence may be taken as read without further proof if it is admissible as evidence in proceedings under section 76 of the 2007 Act.

    (4) If the Director of Military Prosecutions intends to seek admission of any record of evidence under this rule, he or she must, as soon as possible and in any case not later than 24 hours before the commencement of the new trial, give a copy of the evidence to the accused and to the Judge.

Subpart 6General provisions

131 Preparation of record of proceedings
  • (1) All proceedings of the Court Martial must be recorded verbatim, in the form prescribed by the Chief of Defence Force.

    (2) As soon as practicable after the conclusion of the proceedings, the Judge must date and sign the record of proceedings.

132 Custody and inspection of record of proceedings
  • (1) The record of proceedings of the Court Martial, together with all exhibits, is deemed to be in the custody of the Judge during those proceedings.

    (2) However, when the military members of the court are sitting in closed court to deliberate on or to reconsider their finding—

    • (a) subclause (1) does not apply; and

    • (b) the record of proceedings is deemed to be in the custody of the senior military member.

    (3) The prosecutor or the accused may, with the leave of the Judge, at any stage of the proceedings—

    • (a) have any tape of the proceedings played back to him or her:

    • (b) have any part of any shorthand notes or of the record of proceedings read to him or her:

    • (c) subject to the proper security of exhibits, inspect any exhibit.

133 Transmission of record of proceedings to Registrar
  • The Judge must forward the signed record of proceedings to the Registrar as soon as practicable after the conclusion of any proceedings in the Court Martial.

134 Sitting of Court Martial
  • (1) A trial before the Court Martial must be continued from day to day, and the Court Martial must sit for the time each day that may be reasonable in all the circumstances.

    (2) However, subclause (1) does not apply where the 2007 Act or these rules provide otherwise.

    (3) The Court Martial must not sit on Sunday, Christmas Day, Good Friday, or (in New Zealand or Australia) Anzac Day, unless in the opinion of the Court Martial the interests of justice make it necessary to do so.

135 Powers to authorise departure from rules, etc
  • (1) The Court Martial may direct, authorise, or accept a departure from these rules for reasons of urgency or for any other reason.

    (2) If, in any proceedings before the Court Martial, a question arises about the application of these rules, the court may determine the question and give any directions that the court thinks fit.

    (3) Subclauses (1) and (2) apply on the application of any party or on the initiative of the Court Martial.

136 Mode of giving notice to Court Martial
  • Notices may be given to the Court Martial by serving them by hand or by sending them to the Registrar, at his or her office, by post, fax, or any other written or printed means.

137 Mode of giving notice to parties
  • A notice may be given to a party—

    • (a) at his or her postal address by post or by any other written or printed means; or

    • (b) by faxing it to a fax number supplied by the party; or

    • (c) by using any other means of communication that is customary in the Armed Forces.

138 Cases not provided for in rules
  • In any matter not expressly provided for in these rules, the Court Martial may give any direction that it thinks best calculated to carry out the purposes of the 1971 Act or the 2007 Act.

139 Power to extend or shorten time appointed by rules or fixed by order
  • (1) The Court Martial may extend or shorten the time appointed by these rules, or fixed by any order, for doing any act or taking any proceeding or any step in a proceeding on any terms that the court thinks just.

    (2) The Court Martial may exercise a power conferred by subclause (1)—

    • (a) whether on application by a party or on the court’s own initiative; and

    • (b) whether for reasons of urgency or for any other reason; and

    • (c) in the case of an extension of the time referred to in that subclause, whether before or after that time has expired.

140 Correction of accidental slip or omission
  • (1) This rule applies if—

    • (a) any judgment or order or the reasons for any judgment or order contain a clerical mistake or an error arising from any accidental slip or omission (whether the mistake, error, slip, or omission was made by an officer of the Court Martial or not); or

    • (b) any judgment or order is so drawn up as not to express what was actually decided and intended.

    (2) The Court Martial may correct the judgment or order or the reasons for the judgment or order on—

    • (a) the court’s own initiative; or

    • (b) an interlocutory application made for that purpose.

Part 5
Reconsidering Authority

141 Petition for reconsideration
  • A petition for reconsideration under section 153 of the 1971 Act must be in form 7 of the Schedule of these rules.

142 Promulgation of decision
  • (1) For the purposes of section 158(2) of the 1971 Act, the Reconsidering Authority must record the particulars of its decision in the form prescribed by the Chief of Defence Force.

    (2) The Reconsidering Authority must send the form to—

    • (a) the accused’s commanding officer; or

    • (b) if the accused is in custody, the person in charge of the place in which the accused is confined.

    (3) The commanding officer or the person in charge of the place in which the accused is confined must—

    • (a) inform the accused of the decision; and

    • (b) note the details of that promulgation on the form; and

    • (c) return the form to the Reconsidering Authority.

    (4) The form, with the details of promulgation duly noted on it, must be attached to and form part of the record of proceedings of the relevant trial.

Part 6
Courts of inquiry

143 Procedure where person affected by inquiry wishes to call witness
  • If a person who is affected or likely to be affected by an inquiry by a court of inquiry tells the president that he or she wishes to call a witness under section 200N(2)(d) of the 1971 Act, the president must—

    • (a) direct that witness to attend under section 200I of the 1971 Act, unless it is impracticable to do so; and

    • (b) make any necessary arrangements for that witness to attend the proceedings of the court of inquiry, unless it is impracticable to secure the witness's attendance.

144 Person adversely affected entitled to copy of record of proceedings
  • (1) This rule applies to a person who—

    • (a) is subject to the 1971 Act; and

    • (b) has been charged with an offence in respect of any matter or thing that has been investigated by a court of inquiry.

    (2) A person to whom this rule applies is, on request to the relevant assembling authority, entitled to a copy of the record of proceedings in relation to that court of inquiry.

Part 7
Miscellaneous provisions

Bail

145 Applications for bail
  • (1) An application by an accused person under section 49 of the 2007 Act for bail pending trial may be made by notice of application in form 8 of the Schedule of these rules.

    (2) An application by a convicted person under section 50 of the 2007 Act for bail pending determination of his or her appeal may be made by notice of application in form 9 of the Schedule of these rules.

    (3) The Registrar must, at the earliest opportunity, —

    • (a) fix a date and time for hearing the application; and

    • (b) forward a copy of the application to the Director of Military Prosecutions.

    (4) If the Director of Military Prosecutions intends to make recommendations under section 52(2) of the 2007 Act in respect of the application, he or she must, as soon as practicable, file and serve on the accused or convicted person (as the case may be) a notice of recommendations in form 10 of the Schedule of these rules.

146 Warrant to arrest person absconding or breaching bail condition
  • (1) A warrant issued pursuant to section 53 of the 2007 Act for the arrest of a person who has been released on bail must be in form 11 of the Schedule of these rules.

    (2) A warrant issued pursuant to section 101B of the 1971 Act for the arrest of a person who has been released on bail must be in form 12 of the Schedule of these rules.

Witness summons

147 Witness summons
  • (1) A summons issued to a witness under section 150C of the 1971 Act for the purposes of proceedings before a disciplinary officer must be in form 13 of the Schedule of these rules.

    (2) A summons issued to a witness under section 150C of the 1971 Act for the purposes of proceedings in the Summary Appeal Court must be in form 14 of the Schedule of these rules.

    (3) A summons issued to a witness under section 45 of the 2007 Act must be in form 15 of the Schedule of these rules.

Orders for compensation, restitution, and revesting of stolen property

148 Order for compensation
  • (1) This rule applies to an order for compensation under section 86 or 117ZA of the 1971 Act.

    (2) The order must be made in the form prescribed by the Chief of Defence Force.

    (3) The operation of the order is suspended under rule 149 unless the offender consents in writing to the operation of the order not being suspended.

    (4) If the order is made under section 86(2) of the 1971 Act, the money that is the subject of the order must, while the operation of the order for compensation is suspended, be held in safe custody as directed by the Court Martial.

    (5) If the order is made under section 117ZA of the 1971 Act and is to pay compensation in accordance with section 86(2) of that Act, the money that is the subject of the order must, while the operation of the order for compensation is suspended, be held in safe custody as directed by the disciplinary officer.

    (6) If the order is varied on an appeal, payment must be made in accordance with the order as finally varied.

149 Suspension of order for compensation
  • (1) If an order for compensation is made under section 117ZA of the 1971 Act and the offender does not give the consent referred to in rule 148(3), the operation of the order is suspended until the later of—

    • (a) the expiry of the period within which an appeal against the order to the Summary Appeal Court must be brought; or

    • (b) if an appeal against the order is brought within that period, the close of the day on which the appeal is determined or abandoned.

    (2) If an order for compensation is made under section 86 of the 1971 Act and the offender does not give the consent referred to in rule 148(3), the operation of the order is suspended until the latest of—

    • (a) the expiry of the period within which an appeal against the order to the Court Martial Appeal Court must be brought; or

    • (b) if an appeal against the order is brought within that period, the close of the day on which the appeal is determined or abandoned; or

    • (c) if an appeal against the order is determined by the Court Martial Appeal Court, the expiry of the period within which an application for leave to appeal to the Court of Appeal or the Supreme Court must be made; or

    • (d) if an application for leave to appeal to the Court of Appeal or the Supreme Court is made within that period,—

      • (i) the close of the day on which the application for leave to appeal is refused; or

      • (ii) if leave to appeal is granted, the close of the day on which the appeal is determined or abandoned; or

    • (e) if an appeal against the order is determined by the Court of Appeal, the expiry of the period within which an application to the Supreme Court for leave to appeal under section 10A of the Court Martial Appeals Act 1953 against the decision of the Court of Appeal must be made; or

    • (f) if an application to the Supreme Court for leave to appeal under section 10A of the Court Martial Appeals Act 1953 against the decision of the Court of Appeal is made within that period,—

      • (i) the close of the day on which the application for leave to appeal is refused; or

      • (ii) if leave to appeal is granted, the close of the day on which the appeal is determined or abandoned.

150 Order for restitution
  • (1) This rule and rule 151 apply if an order for restitution is made by the Court Martial under section 87 of the 1971 Act or by a disciplinary officer under section 117ZA of that Act.

    (2) The order must be in the form prescribed by the Chief of Defence Force.

    (3) The operation of the order is suspended in accordance with rule 151 unless the Court Martial or the disciplinary officer (as the case may be) states in writing that, in the opinion of the Court Martial or the disciplinary officer, the right to the possession of the property is not in dispute.

    (4) The property that is the subject of the order must, while the order is suspended, be held in safe custody as directed by the Court Martial or the disciplinary officer.

    (5) If the order is varied on an appeal, delivery of the property must be made in accordance with the order as finally varied.

151 Suspension of order for restitution
  • (1) Subclause (2) applies if the Court Martial or the disciplinary officer (as the case may be) does not make a statement of the kind referred to in rule 150(3).

    (2) The operation of the order is suspended in accordance with subclauses (3) and (4) unless the following persons consent in writing to the operation of the order not being suspended:

    • (a) the offender; and

    • (b) in the case of an order by the Court Martial under section 87(4) of the 1971 Act, the pawnbroker.

    (3) If the order is made by a disciplinary officer and consent as referred to in subclause (2)(a) is not given, the operation of the order is suspended until the later of—

    • (a) the expiry of the period within which an appeal against the order to the Summary Appeal Court must be brought; or

    • (b) if an appeal against the order is brought within that period, the close of the day on which the appeal is determined or abandoned.

    (4) If the order is made by the Court Martial and consent as referred to in subclause (2) is not given, the operation of the order is suspended until the latest of—

    • (a) the expiry of the period within which an appeal against the order to the Court Martial Appeal Court must be brought; or

    • (b) if an appeal against the order is brought within that period, the close of the day on which the appeal is determined or abandoned; or

    • (c) if an appeal against the order is determined by the Court Martial Appeal Court, the expiry of the period within which an application for leave to appeal to the Court of Appeal or the Supreme Court must be made; or

    • (d) if an application for leave to appeal to the Court of Appeal or the Supreme Court is made within that period,—

      • (i) the close of the day on which the application for leave to appeal is refused; or

      • (ii) if leave to appeal is granted, the close of the day on which the appeal is determined or abandoned; or

    • (e) if an appeal against the order is determined by the Court of Appeal, the expiry of the period within which an application to the Supreme Court for leave to appeal under section 10A of the Court Martial Appeals Act 1953 against the decision of the Court of Appeal must be made; or

    • (f) if an application to the Supreme Court for leave to appeal under section 10A of the Court Martial Appeals Act 1953 against the decision of the Court of Appeal is made within that period,—

      • (i) the close of the day on which the application for leave to appeal is refused; or

      • (ii) if leave to appeal is granted, the close of the day on which the appeal is determined or abandoned.

152 Revesting of stolen property
  • (1) The operation of section 26(1) of the Sale of Goods Act 1908 is suspended in accordance with rule 153 unless the disciplinary officer who records the finding of guilty or the Court Martial (as the case may be) states in writing that, in the opinion of the disciplinary officer or the Court Martial, the title to the property is not in dispute.

    (2) Property to which section 26(1) of the Sale of Goods Act 1908 applies must, while the operation of that provision is suspended, be held in safe custody as directed by the disciplinary officer or the Court Martial.

153 Suspension of revesting of stolen property
  • If a conviction to which section 26(1) of the Sale of Goods Act 1908 applies is recorded and no statement of the kind referred to in rule 152(1) is made, the operation of section 26(1) of the Sale of Goods Act 1908 is suspended—

    • (a) in a case where the finding of guilty is recorded by a disciplinary officer, until the later of—

      • (i) the expiry of the period within which an appeal against the order to the Summary Appeal Court must be brought; or

      • (ii) if an appeal against the order is brought within that period, the close of the day on which the appeal is determined or abandoned; and

    • (b) in a case where the finding of guilty is recorded by the Court Martial, until the latest of—

      • (i) the expiry of the period within which an appeal against the order to the Court Martial Appeal Court must be brought; or

      • (ii) if an appeal against the order is brought within that period, the close of the day on which the appeal is determined or abandoned; or

      • (iii) if an appeal against the order is determined by the Court Martial Appeal Court, the expiry of the period within which an application for leave to appeal to the Court of Appeal or the Supreme Court must be made; or

      • (iv) if an application for leave to appeal to the Court of Appeal or the Supreme Court is made within that period,—

        • (A) the close of the day on which the application for leave to appeal is refused; or

        • (B) if leave to appeal is granted, the close of the day on which the appeal is determined or abandoned; or

      • (v) if an appeal against the order is determined by the Court of Appeal, the expiry of the period within which an application to the Supreme Court for leave to appeal under section 10A of the Court Martial Appeals Act 1953 against the decision of the Court of Appeal must be made; or

      • (vi) if an application to the Supreme Court for leave to appeal under section 10A of the Court Martial Appeals Act 1953 against the decision of the Court of Appeal is made within that period,—

        • (A) the close of the day on which the application for leave to appeal is refused; or

        • (B) if leave to appeal is granted, the close of the day on which the appeal is determined or abandoned.

Witnesses' expenses

154 Witnesses' expenses
  • (1) This rule applies to a person who is a witness in the Court Martial, Summary Appeal Court, or a court of inquiry and who is—

    • (a) not subject to the 1971 Act; or

    • (b) subject to the 1971 Act but is not a member of the Armed Forces.

    (2) A person to whom this rule applies is entitled as against the party calling him or her, or as the Court Martial, Summary Appeal Court, or court of inquiry (as the case may be) may direct, to be paid the expenses payable to a witness according to the Witnesses and Interpreters Fees Regulations 1974.

    (3) However, the amounts payable are subject to directions relating to the disallowance of the whole or part of any amount that the Judge of the Court Martial, the Summary Appeal Court, or the assembling authority may think fit.

Administration of oaths

155 Application of rules
  • Rules 156 to 163 apply to proceedings before military tribunals and courts of inquiry.

156 Who may administer oaths and affirmations
  • Oaths and affirmations may be administered, as the case may require, by the following persons:

    • (a) the Judge:

    • (b) the clerk of the Summary Appeal Court or the Court Martial:

    • (c) the disciplinary officer:

    • (d) the president of a court of inquiry.

157 Manner of taking oath: Christian and Jewish forms
  • (1) A person taking the Christian oath must hold the Bible, or the Old Testament, or the New Testament in his or her right hand and must reply I do to the appropriate question by the person administering the oath.

    (2) A person taking the Jewish oath must hold the Old Testament in his or her right hand and must reply I do to the appropriate question by the person administering the oath.

    (3) A person taking an oath must remove any headdress, unless his or her religious belief requires that the headdress be worn.

158 Manner of making solemn affirmation
  • A person making a solemn affirmation must—

    • (a) reply I do to the appropriate question asked by the person administering the solemn affirmation; and

    • (b) have his or her right hand raised at the same time as making the reply.

159 Manner of swearing member of Court Martial
  • Every military member of the Court Martial must be sworn by answering I do to the following question:

    Do you swear by Almighty God (or, as the case may require, Do you solemnly and sincerely affirm) that you will well and truly try the accused according to the evidence, and that you will duly administer justice according to the Armed Forces Discipline Act 1971 and the Court Martial Act 2007, without partiality, favour, or affection, and do you further swear that you will not disclose the vote or opinion of any member of the Court Martial unless required to do so in due course of law?

160 Manner of swearing officer under instruction in Court Martial
  • Every officer under instruction in the Court Martial must be sworn by answering I do to the following question:

    Do you swear by Almighty God (or, as the case may require, Do you solemnly and sincerely affirm) that you will not disclose the vote or opinion of any member of the Court Martial unless required to do so in due course of law?

161 Manner of swearing persons responsible for recording and transcribing proceedings of Court Martial
  • Every person responsible for recording or transcribing the proceedings of the Court Martial must be sworn by answering I do to the following question:

    Do you swear by Almighty God (or, as the case may require, Do you solemnly and sincerely affirm) that you will to the best of your ability make a true record of the proceedings before this court?

162 Manner of swearing interpreter
  • Every interpreter before a military tribunal or court of inquiry must be sworn by answering I do to the following question:

    Do you swear by Almighty God (or, as the case may require, Do you solemnly and sincerely affirm) that you will to the best of your ability truly interpret and translate the proceedings before [me/this court/this court of inquiry]?

163 Manner of swearing witness
  • Every witness before a military tribunal or court of inquiry that is to be sworn must be sworn by answering I do to the following question:

    Do you swear by Almighty God (or, as the case may require, Do you solemnly and sincerely affirm) that the evidence you will give before [me/this court/this court of inquiry] will be the truth, the whole truth, and nothing but the truth?

Revocation


Schedule
Forms

r 23

Form 1
Notice of appeal by person found guilty by disciplinary officer

rr 24, 27

Sections 124 and 125, Armed Forces Discipline Act 1971

In the Summary Appeal Court
To the Registrar of the Summary Appeal Court of New Zealand

C/- Headquarters, New Zealand Defence Force, Wellington

Name of appellant:

Offence(s) of which found guilty:

Date of finding by disciplinary officer:

Date when punishment imposed:

Disciplinary officer:

Punishment(s)/order(s):

I, the above-named appellant, give you notice that I wish to appeal to the Summary Appeal Court against—

  • * the following finding(s) of guilty against me: [specify]

  • * the following punishment(s): [specify the punishment or combination of punishments you are appealing against]

  • * the following order(s): [specify the order(s) (for compensation, restitution, or to come up if called upon) that you are appealing against].

*Select whichever apply.

The grounds on which I am appealing are set out in paragraph 6 below, and I give answers as follows to the following questions:

1(a)Is any lawyer now acting for you?
 (b)If so, give his or her name and address and fax number:
 (c)Have you applied, or do you intend to apply, for a grant of legal aid?
2(a)Are you are currently in a penal institution?
 (b)If so, specify the name of the penal institution:
3 If you do not currently have a lawyer, what is your current postal address and fax number (if any)?
4(a)If you are in custody and are granted an oral hearing, do you wish to apply for leave to be present?
 (b)If so, what are your reasons for seeking leave to be present? [If you wish to have bail, you must apply separately in form 9 of the Schedule of the Armed Forces Discipline Rules of Procedure 2008.]
5 You have 21 days from the date on which you were found guilty by the disciplinary officer (or 35 days if you were found guilty outside New Zealand) in which to file your notice of appeal with the Summary Appeal Court. The Summary Appeal Court may extend this time. If your appeal is out of time, what are your reasons for saying that the Summary Appeal Court should nevertheless extend the time and consider your appeal?
6 What are the grounds of your appeal? [You must specify the grounds of your appeal in sufficient detail to inform the court of the issues in the appeal.]
7 Do you wish your appeal to be considered at an oral hearing or to be dealt with on the papers?
 

Date: [day/month/year]

Signature of appellant:

Form 2
Reference by Judge Advocate General

r 29(1)

Section 129, Armed Forces Discipline 1971

In the Summary Appeal Court
To the Registrar of the Summary Appeal Court of New Zealand

C/- Headquarters, New Zealand Defence Force, Wellington

Name of person found guilty:

Offence(s) of which found guilty:

Date of finding by disciplinary officer:

Date when punishment imposed:

Disciplinary officer:

Punishment(s)/order(s):

I refer to the Summary Appeal Court under section 129 of the Armed Forces Discipline Act 1971 the following finding(s) of guilty/punishment(s)/order(s)* made by the disciplinary officer in respect of the person named above:

  • * finding(s) of guilty made: [specify]

  • * punishment or combination of punishments imposed: [specify]

  • * order for compensation: [specify]

  • * order for restitution: [specify]

  • * order to come up if called upon.

I refer those finding(s)/punishment(s)/order(s)* for the following reasons: [specify in sufficient detail to fully inform the court of issues in the appeal].

*Select whichever apply.

I intend/do not intend* to appoint counsel as amicus curiae.

*Select one.

Date: [day/month/year]

Signature:

(Judge Advocate General)

Form 3
Notice of reference by Judge Advocate General to Summary Appeal Court

r 29(3)

Section 130(1), Armed Forces Discipline Act 1971

In the Summary Appeal Court
To [name of person found guilty of offence]
Name of person found guilty of offence:

Offence(s) of which found guilty:

Date of finding by disciplinary officer:

Date when punishment imposed:

Disciplinary officer:

Punishment(s)/order(s):

  • 1 Under section 129 of the Armed Forces Discipline Act 1971 (the Act), the Judge Advocate General has referred to the Summary Appeal Court the following finding(s) of guilty/punishment(s)/order(s)* made by the disciplinary officer in respect of you:

    • * finding(s) of guilty made: [specify]

    • * punishment or combination of punishments imposed: [specify]

    • * order for compensation: [specify]

    • * order for restitution: [specify]

    • * order to come up if called upon.

    *Select whichever apply.
  • 2 A copy of the referral is attached to this notice.

  • 3 You are asked to send the following information to the Registrar of the Summary Appeal Court within 21 days of the date of this notice (shown below):

    • (a) your written views on the finding(s) of guilty/punishment(s)/order(s)* referred to above; and

    • (b) your written advice as to whether or not you wish to be legally represented at an oral hearing of the matter.

    *Select whichever apply.
Advice about how Summary Appeal Court may deal with reference

For the purposes of Part 5A of the Act (which relates to appeals to the Summary Appeal Court), the reference by the Judge Advocate General must, with all necessary modifications, be treated as an appeal by you to that court.

The Summary Appeal Court may deal with the reference by way of a hearing on the papers if—

  • (a) you indicate in writing that you do not want to be legally represented at an oral hearing of the matter; or

  • (b) you otherwise indicate that you do not require an oral hearing of the matter; or

  • (c) you do not provide the written advice requested in paragraph 3(b) above within 21 days of the date of this notice.

If you wish to apply for legal aid, you may do so in the form prescribed for that purpose, which may be obtained from the Registrar at the address given below.

Date: [day/month/year]

Signature:

(Registrar, Summary Appeal Court)

The address to respond to this notice is:

The Registrar

Summary Appeal Court of New Zealand

C/- Headquarters, New Zealand Defence Force, Wellington

Form 4
Petition to Judge Advocate General for special reference

r 30

Section 129(4), Armed Forces Discipline Act 1971

To the Judge Advocate General

C/- Headquarters, New Zealand Defence Force, Wellington

Name of person found guilty of offence:

Offence(s) of which convicted:

Date of finding by disciplinary officer:

Date when punishment imposed:

Disciplinary officer:

Punishment(s)/order(s):

I, [full name], petition you to refer to the Summary Appeal Court under section 129 of the Armed Forces Discipline Act 1971 the following finding(s) of guilty/punishment(s)/order(s)* made by the disciplinary officer in respect of the person named above:

  • * finding(s) of guilty made: [specify]

  • * punishment or combination of punishments imposed: [specify]

  • * order for compensation: [specify]

  • * order for restitution: [specify]

  • * order to come up if called upon.

I refer those finding(s)/punishment(s)/order(s)* for the following reasons: [specify in sufficient detail to fully inform the Judge Advocate General of issues relevant to appeal].

*Select whichever apply.

Date: [day/month/year]

Signature of petitioner:

Address:

Form 5
Notice of abandonment of appeal

r 43

In the Summary Appeal Court
To the Registrar of the Summary Appeal Court

C/- Headquarters, New Zealand Defence Force, Wellington

I, [full name], having sent to the Summary Appeal Court a notice of appeal or application for leave to appeal against [set out the determination of the disciplinary officer against which you are appealing], now give you notice that—

  • (a) I do not intend further to prosecute my appeal; and

  • (b) as from the date of this notice, I abandon all further proceedings concerning that appeal.

Date: [day/month/year]

Signature:

*Witness to signature of [full name]:

Signature of witness:

Address:

Description:

*Signature of the appellant must be witnessed only if the appellant signs the notice in person.

Form 6
Request to be brought before the Court Martial to enter plea of guilty

r 89(2)

In the Court Martial
R v [name]
To the Registrar of the Court Martial

C/- Headquarters, New Zealand Defence Force, Wellington

I, [full name], having been remanded for trial in the Court Martial on a charge of [specify], now wish, of my own free will, to plead guilty to that charge. I therefore request that I be brought before the Court Martial as soon as practicable so that I may plead guilty to that charge and be sentenced accordingly.

My full address (if not in custody) is: [specify]

Signature:

The above written request was signed before me, after having been read over to me by the accused person on [day/month/year].

Signature:

(counsel/defender* for accused)

*Select one.

Form 7
Petition to Reconsidering Authority

r 141

Section 153, Armed Forces Discipline Act 1971

To the Reconsidering Authority

C/- Registrar of the Court Martial

Headquarters, New Zealand Defence Force, Wellington

Name of petitioner: [full name]

Offence(s) of which convicted:

Date of conviction by Court Martial:

Date when sentence passed:

Sentence:

I, the petitioner named above, petition you against the sentence imposed on me by the Court Martial on the grounds set out below: [set out the grounds for your petition, which should be supported by relevant details].

Date: [day/month/year]

Signature of petitioner:

Form 8
Notice of application for bail pending trial

r 145(1)

Section 49, Court Martial Act 2007

To the Registrar of the Court Martial

C/- Headquarters, New Zealand Defence Force, Wellington

Name of applicant: [full name]

Respondent: Director of Military Prosecutions

I, the applicant named above, apply for bail under section 49 of the Court Martial Act 2007 on the grounds and for the reasons set out below.

  • 1 I am accused of committing the following offence(s) against the Armed Forces Discipline Act 1971: [specify].

  • 2 I am currently being held in the following prison/service penal establishment*: [specify name of prison/establishment].

  • 3 In making this application, I rely on the following: [set out the grounds for your application, which should address the issues in section 49(4) of the Court Martial Act 2007, including the considerations in section 8(1) and (4) of the Bail Act 2000 and any considerations in section 8(2) of that Act that you wish the Judge to take into account, and be supported by relevant details].

*Select one.

I give answers as follows to the following questions:

  • 1 Is any lawyer now acting for you?

  • 2 If so, give his or her name and address and telephone number/fax number: [specify]

  • 3 Have you applied, or do you intend to apply, to the Registrar of the Court Martial for a grant of legal aid?

Date: [day/month/year]

Signature of applicant:

  • Schedule form 8: amended, on 5 December 2013, by section 5 of the Armed Forces Discipline Amendment Act 2013 (2013 No 108).

Form 9
Notice of application for bail pending determination of appeal

r 145(2)

Section 50, Court Martial Act 2007

To the Registrar of the Court Martial

C/- Headquarters, New Zealand Defence Force, Wellington

Name of applicant: [full name]

Respondent: Director of Military Prosecutions

I, the applicant named above, apply for bail under section 50 of the Court Martial Act 2007 on the grounds and for the reasons set out below.

  • 1 I have been convicted of the following offence(s) against the Armed Forces Discipline Act 1971:

  • [specify

    •  offence(s) of which convicted:

    •  date of conviction:

    •  sentence]

    and I am currently being held in the following prison/service penal establishment*: [specify name of prison/establishment].

  • 2 I have appealed against my conviction/sentence/conviction and sentence* to the Summary Appeal Court/the Court Martial Appeal Court.*

  • 3 In making this application for bail pending the determination of my appeal, I rely on the following: [set out the grounds for your application, which should address the issues in section 50(4) of the Court Martial Act 2007, including any considerations in section 14(3) of the Bail Act 2000 that you wish the Judge to take into account, and be supported by relevant details].

*Select whichever apply.

I give answers as follows to the following questions:

  • 1 Is any lawyer now acting for you?

  • 2 If so, give his or her name and address and telephone number/fax number: [specify]

Date: [day/month/year]

Signature of applicant:

Form 10
Notice by Director of Military Prosecutions of recommendations in respect of application for bail

r 145(4)

Section 52(2), Court Martial Act 2007

To the Registrar of the Court Martial

C/- Headquarters, New Zealand Defence Force, Wellington

Name of applicant: [full name]

Respondent: Director of Military Prosecutions

Take notice that under section 52(2) of the Court Martial Act 2007 the Director of Military Prosecutions wishes to make the following recommendations to the Judge who considers the application for bail pending trial/bail pending determination of appeal* dated [specify] filed by the applicant named above:

*Select one.

[Specify the recommendations you wish to make and the reasons, which should address the issues in section 49(3) of the Court Martial Act 2007 (in the case of an application for bail pending trial), or the issues in section 50(3) of that Act (in the case of an application for bail pending determination of appeal) and be supported by relevant details.]

Date: [day/month/year]

Signature of Director of Military Prosecutions:

Form 11
Warrant to arrest for absconding, breaching bail condition, or failing to appear

r 146(1)

Sections 53 and 54, Court Martial Act 2007

To every constable

and

To every provost officer

On [date] a sworn complaint was made that—

*on [date] [full name], of [address] (the person released on bail), at [place] on [date], has engaged in behaviour of a kind described in section 53(1)(a) of the Court Martial Act 2007, namely that the person released on bail—

  • (a) has absconded or is about to abscond for the purpose of evading justice; or

  • (b) has contravened or failed to comply with a condition of bail.

or

*on [date][full name], of [address] (the person released on bail), engaged in behaviour of a kind described in section 53(1)(b) of the Court Martial Act 2007, namely that the person released on bail—

  • (a) did not attend personally at the time and place specified in the grant of bail; or

  • (b) did not attend personally at the time and place to which, during the course of the proceedings, the hearing was adjourned.

*Select the paragraph that applies.

I am satisfied that there are grounds for the issue of a warrant to arrest the person released on bail.

I direct you to arrest the person released on bail and bring him or her before a Judge of the Court Martial as soon as possible under section 54 of the Court Martial Act 2007.

For the purpose of executing this warrant, the member of the police, the provost officer, or a person lawfully exercising the authority under or on behalf of a provost officer, may at any time enter on to any premises, by force if necessary, if the member of the police, the provost officer, or the person lawfully exercising authority under or on behalf of a provost officer has reasonable grounds to believe that the person released on bail is on those premises.

Date: [day/month/year]

Signature:

(Judge of the Court Martial)

Form 12
Warrant to arrest for absconding, breaching bail condition, or failing to appear

r 146(2)

Sections 101B and 101C, Armed Forces Discipline Act 1971

To every constable

and

To every provost officer

On [date] a sworn complaint was made that—

*on [date] [full name], of [address] (the person released on bail) at [place] on [date], has engaged in behaviour of a kind described in section 101B(1)(a) of the Armed Forces Discipline Act 1971, namely that the person released on bail—

  • (a) has absconded or is about to abscond for the purpose of evading justice; or

  • (b) has contravened or failed to comply with a condition of bail.

or

*on [date] [full name], of [address] (the person released on bail), engaged in behaviour of a kind described in section 101B(1)(b) of the Armed Forces Discipline Act 1971, namely that the person released on bail—

  • (a) did not attend personally at the time and place specified in the grant of bail; or

  • (b) did not attend personally at the time and place to which, during the course of the proceedings, the hearing was adjourned.

*Select the paragraph that applies.

I am satisfied that there are grounds for the issue of a warrant to arrest the person released on bail.

I direct you to arrest the person released on bail and bring him or her before the Judge Advocate General as soon as possible under section 101C of the Armed Forces Discipline Act 1971.

For the purpose of executing this warrant, the member of the police, the provost officer, or a person lawfully exercising the authority under or on behalf of a provost officer, may at any time enter on to any premises, by force if necessary, if the member of the police, the provost officer, or the person lawfully exercising authority under or on behalf of a provost officer has reasonable grounds to believe that the person released on bail is on those premises.

Date: [day/month/year]

Signature:

(Judge of the Court Martial)

 

Form 13
Witness summons

r 147(1)

Section 150C, Armed Forces Discipline Act 1971

In the matter of proceedings before a disciplinary officer under the Armed Forces Discipline Act 1971

Name of accused:

To [name], of [address]

You are ordered to attend [place] on [day/month/year] at [specify] am/pm* and to give evidence for the purposes of proceedings before a disciplinary officer concerning the accused named above.

And you are ordered to bring with you and produce at the same time and place the following: [specify the papers, documents, records, or things in the person's possession or under the person's control to be produced].

*Select one.
Failure to attend

If you fail without reasonable excuse to comply with this summons, the disciplinary officer may order that you be arrested and taken before the nearest District Court, which may find you guilty of contempt of a military tribunal under the Armed Forces Discipline Act 1971. The penalty for contempt of a military tribunal under that Act is imprisonment for a term not exceeding 1 month or a fine not exceeding $1,000, or both.

Date: [day/month/year]

Signature:

(Disciplinary officer)

Form 14
Witness summons

r 147(2)

Section 150C, Armed Forces Discipline Act 1971

In the Summary Appeal Court

Name of appellant:

To [name], of [address]

You are ordered to attend at the Summary Appeal Court at [place] on [day/month/year] at [specify] am/pm* to give evidence for the purposes of proceedings concerning the appellant named above.

And you are ordered to bring with you and produce at the same time and place the following: [specify the papers, documents, records, or things in the person's possession or under the person's control to be produced].

*Select one.
Failure to attend

If you fail without reasonable excuse to comply with this summons, the Summary Appeal Court may order that you be arrested and taken before the nearest District Court, which may find you guilty of contempt of a military tribunal under the Armed Forces Discipline Act 1971. The penalty for contempt of a military tribunal under that Act is imprisonment for a term not exceeding 1 month or a fine not exceeding $1,000, or both.

Date: [day/month/year]

Signature:

(Judge of the Summary Appeal Court/Registrar of the Summary Appeal Court*)

*Select one.

Form 15
Witness summons

r 147(3)

Section 45, Court Martial Act 2007

In the Court Martial

R v [name]

To [Name, place of residence, occupation]

You are ordered to attend before the Court Martial at [place] on [day/month/year] at [specify] am/pm* and from day to day after that until you are discharged, to give evidence in the proceedings named above.

And you are ordered to bring with you and produce at the same time and place the following: [specify the papers, documents, records, or things in the person's possession or under the person's control to be produced].

*Select one.
Failure to attend

If you fail without reasonable excuse to comply with this summons, the Court Martial may order that you be arrested and brought before the nearest District Court, which may find you guilty of contempt of a military tribunal under the Armed Forces Discipline Act 1971. The penalty for contempt of a military tribunal under that Act is imprisonment for a term not exceeding 1 month or a fine not exceeding $1,000, or both.

Date: [day/month/year]

Signature:

(Judge of the Court Martial/Registrar of the Court Martial*)

*Select one.

Michael Webster,
for Clerk of the Executive Council.


Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 7 August 2008.


Reprints notes
1 General
  • This is a reprint of the Armed Forces Discipline Rules of Procedure 2008 that incorporates all the amendments to those rules as at the date of the last amendment to them.

2 Legal status
  • Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, will have the status of an official version once issued by the Chief Parliamentary Counsel under section 17(1) of that Act.

3 Editorial and format changes
4 Amendments incorporated in this reprint
  • Armed Forces Discipline Amendment Act 2013 (2013 No 108): section 5