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

“Director of Military Prosecutions means the Director of Military Prosecutions appointed under section 101E of the Armed Forces Discipline Act 1971

“Judge Advocate General means the Judge Advocate General of the Armed Forces appointed under section 203 of the Armed Forces Discipline Act 1971.”

• “(2) An appointed Judge continues to hold office—

  • “(a) unless he or she sooner vacates, or ceases to hold, or is removed from office under subsection (3); and

  • “(b) until his or her successor comes into office.

• “(3) An appointed Judge—

  • “(a) may resign from office by giving the Minister written notice to that effect and stating when the resignation takes effect:

  • “(b) ceases to hold office when he or she reaches the age of 75 years:

  • “(c) ceases to hold office if he or she is, under the Insolvency Act 2006, adjudged bankrupt:

  • “(d) may be removed from office only by the Sovereign or the Governor-General, acting upon the address of the House of Representatives.

• “(3A) An address under subsection (3)(d) may be moved only on the ground of—

  • “(a) the appointed Judge's misbehaviour; or

  • “(b) the appointed Judge's incapacity to discharge the functions of his or her office.

• “(3B) Each appointed Judge is to be paid, out of public money, without further authority than this section,—

  • “(a) a salary at the rate that the Remuneration Authority determines; and

  • “(b) any allowances that are determined by the Remuneration Authority; and

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

“6 Appeal against decision of Court Martial relating to bail

• “(1) This section applies to a decision made by a Judge of the Court Martial to—

  • “(a) grant or refuse bail to a person in custody under the Armed Forces Discipline Act 1971; or

  • “(b) impose or substitute or revoke or vary any condition of bail; or

  • “(c) refuse to impose any condition of bail or any particular condition of bail; or

  • “(d) refuse to vary or revoke any condition of bail.

  “(2) Either the Director of Military Prosecutions or the accused may appeal to the Court against a decision to which this section applies—

  • “(a) within 21 days after the date of the decision; or

  • “(b) within any further time that the Court may allow.

  “(3) For the purposes of an appeal under this section, the failure of a Judge of the Court Martial to impose any condition of bail, or any particular condition of bail, on any occasion on which the condition could lawfully have been imposed is deemed to be a refusal to impose the condition.

“7 Appeal against ruling

• “(1) This section applies to a ruling given by a Judge of the Court Martial on a question of law or procedure that arises during proceedings in that court.

  “(2) Either the Director of Military Prosecutions or the accused may, with the leave of the Court obtained in accordance with section 8, appeal to the Court against a ruling to which this section applies.

  “(3) On an appeal under this section, the Court may—

  • “(a) confirm the ruling; or

  • “(b) vary the ruling; or

  • “(c) set the ruling aside.

  “(4) If subsection (3)(c) applies, the Court may make any other ruling that—

  • “(a) could have been made in the first place; and

  • “(b) the Court thinks appropriate.

  “(5) In this section, question of law includes any question arising in respect of—

  • “(a) a plea to the general jurisdiction of the Court Martial:

  • “(b) a plea in bar of trial:

  • “(c) an application for the separation of trials:

  • “(d) an application for the severance of charge sheets:

  • “(e) an application for the severance of charges:

  • “(f) a submission that there is no case to answer:

  • “(g) the admissibility of evidence:

  • “(h) an application for a ruling referred to in section 30(2)(a) of the Court Martial Act 2007:

  • “(i) an application for an order specified in section 39(2) of the Court Martial Act 2007:

  • “(j) an order under any of sections 139 to 141 of the Criminal Justice Act 1985 (as applied to proceedings under the Armed Forces Discipline Act 1971 by section 145 of that Act):

  • “(k) an application for discovery.

“8 Procedure for obtaining leave of Court to appeal against ruling

• “(1) If a person wishes to obtain the leave of the Court to appeal under section 7, he or she—

  • “(a) must, within 10 days after the ruling is given, give notice of the application for leave to appeal in any manner that may be directed by rules of the Court; and

  • “(b) may do so—

    • “(i) whether or not reasons for the ruling are given at a later date; and

    • “(ii) whether or not any formal steps to sign, enter, or otherwise perfect the ruling are necessary or are taken later.

  “(2) The time within which notice of an application for leave to appeal to the Court under this section must be given may be extended at any time by the Court.

  “(3) Despite the making of an application for leave to appeal under this section, the Court Martial may, if it is satisfied that it is in the interests of justice to do so, proceed with the trial without awaiting the determination of the application.

“9 Right of appeal against conviction or sentence

• “(1) A person convicted by the Court Martial may appeal to the Court against—

  • “(a) the conviction; or

  • “(b) the sentence imposed for the conviction (unless the sentence is one fixed by law); or

  • “(c) both.

  “(2) The Director of Military Prosecutions may appeal to the Court against the sentence imposed by the Court Martial, unless the sentence is one fixed by law.

  “(3) An appeal under this section must be brought—

  • “(a) within 21 days after the date of the decision appealed against; or

  • “(b) within any further time that the Court may allow.

  “(4) If an appeal under subsection (2) against a sentence of imprisonment or detention is not heard before the date on which the convicted person has completed serving that sentence, the appeal—

  • “(a) lapses on that date; and

  • “(b) is deemed to have been dismissed by the Court for non-prosecution.

  “(5) For the purposes of this section, sentence includes any method of disposing of a case following conviction.

“9A Determination of appeals against conviction

• “(1) On an appeal to the Court against conviction, the Court must—

  • “(a) allow the appeal if it considers that—

    • “(i) the finding of the Court Martial should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

    • “(ii) the finding of the Court Martial involves a wrong decision on a question of law; or

    • “(iii) there was, on any ground, a miscarriage of justice; or

    • “(iv) the trial was a nullity; or

  • “(b) dismiss the appeal in any other case.

  “(2) However, the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred even though it considers that the point raised in the appeal might be decided in favour of the appellant.

  “(3) If the Court allows an appeal, the Court—

  • “(a) may squash the conviction; and

  • “(b) may do any of the following:

    • “(i) direct a judgment and finding of acquittal to be entered; or

    • “(ii) direct a new trial; or

    • “(iii) make any other order that justice requires.

“9AB Determination of appeals against sentence

• On an appeal to the Court against sentence, the Court must—

  • “(a) do either of the following if it thinks that a different sentence should have been imposed:

    • “(i) quash the sentence imposed and impose any other sentence warranted in law (whether more or less severe) in substitution for the sentence that was quashed; or

    • “(ii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; or

  • “(b) dismiss the appeal in any other case.

“9AC Substitution of conviction on different charge

• “(1) This section applies if—

  • “(a) an appellant has been convicted of an offence; and

  • “(b) the Court Martial could have found the appellant guilty of some other offence (being an included offence or an offence that was recorded as an alternative charge in the charge sheet); and

  • “(c) on the finding of the Court Martial it appears to the Court that the Court Martial must have been satisfied of facts that proved the appellant guilty of that other offence.

  “(2) The Court may, instead of allowing or dismissing the appeal,—

  • “(a) substitute for the finding of the Court Martial a finding of guilty of that other offence; and

  • “(b) impose a sentence in substitution for the sentence imposed that may be warranted in law for that other offence (which must not be a sentence of greater severity).”

• “(2) A sentence passed by the Court under section 9AB, 9AC, or 9B is deemed to be a sentence passed by the Court Martial for the purposes of the Armed Forces Discipline Act 1971.”

• “(7) If the result of the appeal is that the appellant is fit to stand trial, the Court must give written notice of that fact to the Director of Military Prosecutions, who may then lay before the Registrar the charge sheet that, in accordance with section 101E(c) of the Armed Forces Discipline Act 1971, he or she has previously certified in respect of the appellant.”

“10 Appeals to Court of Appeal or Supreme Court

• “(1) With the leave of the court appealed to, a party to an appeal under any of sections 6, 7, or 9 may appeal to the Court of Appeal or the Supreme Court against any decision of the Court in the appeal.

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

  “(3) An application for leave to appeal under this section must be made—

  • “(a) within 28 days after the date of the issue of the decision or within any further time that the court appealed to may allow; and

  • “(b) in the manner that may be directed by rules of the court appealed to for leave to appeal to that court.”

“10B Effect of appeal

• Neither an application for leave to appeal, nor an appeal, under section 10 or 10A operates as a stay of proceedings on the decision to which the application or the appeal relates unless the court appealed to orders otherwise.”

• “(b) order that all necessary steps be taken to obtain from any military member who sat in the Court Martial at the trial of the appellant, or from the Judge at that trial, a report that—

  • “(i) sets out that person's opinion on the case or on any point arising in the case; or

  • “(ii) contains a statement of any facts that the Court considers to be in need of clarification because they appear to the Court to be material for the purpose of the determination of the case:”.

• “(2) The Court must not make an order under subsection (1)(b) for the purpose of obtaining a report from a military member of the Court Martial unless—

  • “(a) it also makes an order for the purpose of obtaining a report from the Judge at the trial; or

  • “(b) it is satisfied that obtaining a report from the Judge at the trial is impracticable or would involve undue delay.”

“12 Right of appellant to present case in writing

• “(1) An appellant may, instead of having his or her case presented orally, have it presented in writing.

  “(2) If subsection (1) applies, the Court may deal with the appellant's case by way of a hearing on the papers.”

“20 Person not to be tried again if conviction quashed

• “(1) A person whose conviction by the Court Martial for an offence has been quashed under this Act is not liable to be tried again for that offence by the Court Martial or by any other court.

  “(2) Subsection (1) is subject to section 9A(3).”

“20A Judge may grant bail pending appeal

• “(1) On an appeal under section 9(1), the appellant—

  • “(a) is not entitled to bail as of right; and

  • “(b) may not go at large without bail.

  “(2) A Judge of the Court may, on an application for bail by the appellant,—

  • “(a) grant bail to the appellant:

  • “(b) impose any conditions of bail that the Judge thinks fit.

  “(3) In determining whether to grant bail under this section, the Judge—

  • “(a) must take into account all of the following considerations:

    • “(i) the seriousness of the offence:

    • “(ii) whether there are urgent and exceptional circumstances that favour the granting of bail:

    • “(iii) the effect on service discipline of releasing the person on bail; and

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

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

  “(4) The onus is on the appellant to show cause why bail should be granted.

“20B Issue of warrant to arrest appellant absconding or breaching bail condition

• “(1) A Judge may issue a warrant in the prescribed form for the arrest of an appellant who has been released on bail under section 20A if—

  • “(a) the Judge is satisfied by evidence on oath that—

    • “(i) the appellant has absconded or is about to abscond for the purpose of evading justice; or

    • “(ii) the appellant has contravened or failed to comply with any condition of bail; or

  • “(b) the appellant does not attend personally at the time and place specified in the grant of bail.

  “(2) The warrant—

  • “(a) must be directed to every provost officer and every member of the police; and

  • “(b) may be executed by—

    • “(i) a provost officer:

    • “(ii) a person lawfully exercising authority under or on behalf of a provost officer:

    • “(iii) a member of the police.

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

  “(4) The person executing the warrant—

  • “(a) must have the warrant with him or her; and

  • “(b) must produce it on initial entry and, if requested, at any subsequent time; and

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

“20C Appellant arrested under warrant for absconding or breaching bail condition must be brought before Judge

• “(1) An appellant who is arrested under a warrant issued under section 20B must be brought before a Judge as soon as possible.

  “(2) The Judge must reconsider the question of bail if satisfied that the appellant—

  • “(a) had absconded or was about to abscond; or

  • “(b) has contravened or failed to comply with any condition of bail.”

“22 Furnishing, on appeal, documents relating to trial

• In every appeal under section 7 or 9, it is the duty of the Judge Advocate General to supply to the Registrar, in accordance with the rules of the Court, the record of the proceedings of the Court Martial.”

“24 Special references to Court

• “(1) The Judge Advocate General may refer to the Court a finding made, a conviction entered, or a sentence passed in any proceedings in the Court Martial if the Judge Advocate General thinks that it is in the interests of justice or discipline to do so.

  “(2) The Minister may refer to the Court a finding made in any proceedings in the Court Martial if the Minister thinks that the Court should consider or reconsider that finding because of matters that the Minister considers have not been brought to the notice of the Court Martial.

  “(3) A referral under this section must, for the purposes of this Act, be treated as an appeal against conviction by the person convicted.

  “(4) In this section, finding includes a judgment, decree, order, direction, or determination.

“24A Person concerned must be informed of reference and may comment

• “(1) The Registrar must, as soon as practicable after receiving a reference from the Judge Advocate General or the Minister under section 24, send to the person who is the subject of the reference—

  • “(a) a copy of the reference; and

  • “(b) a notice, in the prescribed form, that—

    • “(i) asks for the person's written views on the finding, conviction, or sentence concerned to be sent to the. Registrar within the prescribed period; and

    • “(ii) asks for the person's written advice as to whether he or she wants to be legally represented at an oral hearing of the matter to be sent to the Registrar within the prescribed period; and

    • “(iii) advises him or her of the effect of subsection (2).

  “(2) The Court may deal with a reference from the Judge Advocate General or the Minister by way of a hearing on the papers if the person who is sent a notice under subsection (1)—

  • “(a) indicates that he or she does not want to be legally represented at an oral hearing of the matter; or

  • “(b) otherwise indicates that he or she does not require an oral hearing of the matter; or

  • “(c) does not provide written advice under subsection (1)(b)(ii) within the prescribed period.

  “(3) In this section, prescribed period means a period of 21 days commencing on the day after the day that the notice under subsection (1)(b) is sent.”

“25 Exercise of certain Court powers by 1 Judge

• “(1) A Judge of the Court may exercise any of the following powers of the Court under this Act in the same manner, and subject to the same provisions, as they may be exercised by the Court:

  • “(a) to give leave to appeal against a ruling under section 7:

  • “(b) to extend the period within which an application for leave to appeal against a ruling under section 7 must be lodged:

  • “(c) to allow an appellant to be present at any proceedings under this Act.

  “(2) However, if the Judge refuses an application for the exercise of any of the powers specified in subsection (1), the appellant or the Director of Military Prosecutions, on making a request to the Court, is entitled to have the application determined by the Court as duly constituted for the hearing and determination of appeals under this Act.

  “(3) A request under subsection (2) must be made—

  • “(a) within the prescribed period; and

  • “(b) in the prescribed form and manner.”

• “(ii) a person appointed by the Court under section 11(1)(c) to conduct the examination of a witness:

• “(iii) a person appointed by the Court under section 11(1)(e) to inquire into, and report on, a question arising on an appeal:

• “(iv) a person appointed by the Court under section 11(1)(f) to be an assessor:”.