EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 296

 

Issued by the authority of the Acting Judge Advocate General

 

Defence Force Discipline Act 1982

 

Court Martial and Defence Force Magistrate Rules 2009

 

Section 149A of the Defence Force Discipline Act 1982 (the Act) provides that the Judge Advocate General may make rules of procedure, not inconsistent with the Act (including the regulations), providing for or in relation to the practice and procedure to be followed by a court martial or Defence Force magistrate exercising power under the Act.

 

The Court Martial and Defence Force Magistrate Rules (the Rules) replace the Australian Military Court Rules 2007 for all matters initiated after 23 October 2009 to reflect the amendments to the Act by the Military Justice (Interim Measures) Act
No. 1 2009 and the Military Justice (Interim Measures) Act No. 2 2009.

 

The Rules reflect the changes to the Act with regard to terminology and the consequential changes due to the re-introduction of the system of courts martial and trials by Defence Force magistrate.

 

Details of the rules are outlined in the Attachment.

 

The Rules are a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA).

 

Consultation was considered inappropriate and unnecessary pursuant to section 18 of the LIA because the Rules relate to the service of members of the ADF.

 

The Rules commence on 23 October 2009.

 

 

ATTACHMENT

 

Details of the Court Martial and Defence Force Magistrate Rules

 

Part 1

 

Rule 1 identifies these rules as the Court Martial and Defence Force Magistrate Rules (the Rules).

 

Rule 2 sets the commencement date of these rules at 23 October 2009.

 

Rule 3 provides for the interpretation of certain terms and words within the Rules.

 

Rule 4 provides the relevant course of procedure to follow in proceedings before a court martial or a Defence Force magistrate when a case arises for which no provision or insufficient provision is made in the Act, the Rules or the Defence Force Discipline Regulations 1985 (the Regulations). The procedure to be followed is the established course that would have applied in a criminal trial by jury in the Jervis Bay Territory, or if there is no such course, one that the interests of justice would require. This will ensure that there is an appropriate procedure for all matters that arise before a court martial or Defence Force magistrate and will allow the importation of procedures not otherwise provided for.

 

Rule 5 provides for the matters that must be included in a summons under subsection 87(5) of the Act (which deals with a summons requiring a person who is charged with a service offence to appear before a service tribunal).

 

Rule 6 specifies the manner of service of a summons under subsection 87(5) of the Act (attendance of the accused person) or subsection 138(2) of the Act (attendance of a witness).

 

Rule 7 provides that where a prisoner serving a sentence in a State or Territory is summonsed to appear before a service tribunal in another State or Territory, section 194A of the Act has the power of ensuring that there is adequate power to detain that prisoner. In accordance with that section, Rule 7 specifies who may issue the instrument required by that section and the contents of that instrument (which is to be directed to the person in charge of the prison in which the prisoner is serving their sentence).

 

Part II - Charge Sheets and charges

 

Rule 8 sets out the form and manner in which a charge sheet for the trial of an accused person should be prepared, and the circumstances in which more than one charge can appear on the charge sheet, confined however by the parameters of the Act. The Rule also refers to a draft charge sheet in accordance with Form 1 of Schedule 2 to the Rules.

 

Rule 9 provides that charges must consist of a statement of particulars, refer to only one offence, and should be articulated sufficiently to enable the accused to know what is to be proven against him or her.

 

Rule 10 provides that the statement of an offence and the particulars of that offence, in a charge, must be read and construed together.

 

Rule 11 provides for the amendment of charge sheets by a judge advocate or Defence Force magistrate where a mistake appears on the face of the charge. The judge advocate or Defence Force magistrate is able to correct the mistake only.

 

Rule 12 provides for a court martial or Defence Force magistrate to allow a prosecuting officer to withdraw a charge or charge sheet before the accused person is arraigned.

 

Part III - Witnesses

 

Rule 13 provides that the relevant authority, namely the Chief of the Defence Force or his delegate, must take the necessary steps to secure the appearance at the hearing of a proceeding before a court martial or Defence Force magistrate, of persons reasonably required by the accused persons to appear.

 

Rule 14 deals with disclosure of the prosecution case against the accused person including the charge sheet, the record of evidence taken at any relevant summary proceeding, the list of the names of prosecution witnesses and exhibits, copies of each witness statement, a copy of any material relevant to the credibility of prosecution witnesses or the accused person. In a trial by court martial, the same material must be provided to the Registrar of Military Justice, who must also provide it to the relevant judge advocate. The provision also sets out the procedures that must be followed by the prosecuting officer if he or she decides not to call a witness that has already been notified to the accused person.

 

Rule 15 provides that a witness must be excluded from the court, except by leave of the judge advocate or Defence Force magistrate, during proceedings before the court, except when giving evidence or if the witness is the accused or person representing the accused. The judge advocate or Defence Force magistrate may direct a witness to withdraw from the court if the judge advocate or Defence Force magistrate is making a decision on an objection that relates to the allowing of a question or evidence given or about to be given by the witness.

 

Rule 16 outlines the power of examining, cross-examining or re-examining witnesses in proceedings before a court martial or Defence Force magistrate. It also provides for the judge advocate or Defence Force magistrate to allow the cross-examination or re-examination of a witness, if in the opinion of the judge advocate or Defence Force magistrate, it is in the interests of justice to do so. Sub-rule 3 allows a judge advocate or Defence Force magistrate to question a witness and sub-rule 3A sets out the parameters that entitle members of a court martial to question a witness and such question to be put by the judge advocate. Sub-rule 4 entitles the accused or prosecuting officer to ask relevant questions of a witness if questions have been asked pursuant to sub-rules 3 and 3A.

 

Rule 17 allows for the recalling of a witness by leave of the judge advocate or Defence Force magistrate. In relation to a trial by court martial this may be done any time before the judge advocate begins to sum up as long as it is considered to be in the interests of justice and in a trial by a Defence Force magistrate this may be done at any time before making a finding on the charge as long as it is considered to be in the interests of justice. The rule allows the prosecuting officer to call a witness in reply in relation to evidence that could not properly have been adduced or reasonably foreseen by the prosecution before the accused’s defence was presented.

 

Rule 18 compels witnesses to reply promptly to questions, unless privilege is claimed by the witness or the question is objected to, at which time the judge advocate or Defence Force magistrate will rule on admissibility.

 

Rule 19 provides for fees and allowances to be paid to witnesses other than members of the Defence Force, to be compensated for expenses in respect of their attendance, in accordance with the Public Works Committee Act 1969.

 

Part IV – Registrar of Military Justice

 

Rule 20 provides that the Registrar may liaise with a number of personnel and authorities in order to fulfil a function or duty under the Act, the Regulations or the Rules.

 

Rule 21 provides that the Registrar may consult with the Services in relation to any matter concerning the administration of proceedings before a court martial or Defence Force magistrate. Such consultation may include the service details of the accused person, the current posting location and chain of command of the accused person, the date time and location of the proceedings, the relevant dress requirements, and the process for the appointment of and administration of a court martial President, members and reserve members.

 

Rule 22 provides that the Registrar may consult with the Services concerning administrative support for trial proceedings.

 

Rule 23 states that when the Registrar refers a charge or a case to a Defence Force magistrate, the Registrar must, in the order referring the charge or the case, specify the Defence Force magistrate to whom the charge or case is referred, and fix or provide for the fixing of, the time and place for the hearing of the charge or case.

 

Rule 24 provides for the administrative arrangements for the convening of a trial by court martial. The Registrar must provide a copy of the convening order to the President and each member of the court martial and must provide to the judge advocate, a copy of the convening order, the charge sheet, the record of evidence taken in the proceedings before the summary authority and any other statement from a prosecution witness. The accused is to be provided with the convening order and the charge sheet and the prosecuting officer is to be provided with the convening order. Sub-rule 2 sets out the details for the provision of documents in a trial by Defence Force magistrate.

 

Rule 25 provides the accused with the right to inspect and copy exhibits before trial on application to the Registrar.

 

 

 

 

Part V – Courts Martial

 

Rule 26 describes certain functions of the President of a court martial in addition to those set out elsewhere in the Rules or in the Act. The President is required to ensure that the hearing is conducted in a manner befitting a court of justice, to speak on behalf of the court martial in announcing any decision taken by the court martial and to speak on behalf of the members of the court martial in conferring with the judge advocate.

 

Rule 27 describes certain functions of the judge advocate additional to those set out elsewhere in the Rules, Regulations or in the Act. The judge advocate is required to be present at all sittings, to preside over all sittings required to be held in the absence of the court martial and to ensure that such sittings are conducted in a manner befitting a court of justice, to ensure that an unrepresented accused does not suffer disadvantage as a result of being unrepresented, that a proper record of the proceedings is made and the exhibits are properly safeguarded.

 

Rule 28 requires a court martial to vote orally in order of seniority (commencing with the most junior officer) when voting on a question.

 

Rule 29 relates to objections to members or reserve members of a court martial, by the accused person, prior to them being sworn in.

 

Rule 30 sets out the procedure for swearing members of a court martial. The judge advocate is responsible for the administration of the oath or affirmation which is to take place after objections have been disposed of and before the accused is arraigned. The rule also describes the form of the oath or affirmation.

 

Part VI – Defence Force Magistrate

 

Rule 31 describes the functions of a Defence Force magistrate additional to those set out elsewhere in the Rules, Regulations or in the Act. The Defence Force magistrate is required to ensure that proceedings are conducted in a manner befitting a court of justice, to ensure that an unrepresented accused does not suffer disadvantage as a result of being unrepresented, that a proper record of the proceedings is made and the exhibits are properly safeguarded.

 

Part VII - Trial Provisions

 

Rule 32 empowers the appropriate authority to arrange for a person to act as recorder or as an interpreter. The expression “appropriate authority” is defined in section 3 of the Act as meaning the Registrar, the president of a court martial or the Defence Force magistrate. The Rule entitles the accused to object to the recorder or interpreter and provides that the judge advocate or Defence Force magistrate is responsible for the administration of the oath or affirmation to the recorder or the interpreter. The Rule describes the form of the oath or affirmation.

 

Rule 33 permits a person taking an oath to do so in a manner that the person declares to be binding on his or her conscience.

 

Rule 34 entitles the accused person or prosecuting officer to apply on reasonable grounds for the adjournment of the proceedings.

 

Rule 35 gives the accused person and prosecuting officer the right to argue and give evidence on a matter to be decided by the court martial or Defence Force magistrate.

 

Rule 36 requires the accused person to plead separately to each charge. It also provides that if the accused person is facing more than one charge on separate charge sheets, the court martial or Defence Force magistrate must arraign the accused person in the first charge sheet before proceeding to arraignment on the second charge sheet. Sub-rule 3 provides that an accused person must not be convicted on an alternative charge when they have been convicted on the principal charge.

 

Rule 37 requires the prosecuting officer to make an opening address stating the elements of the offence, the alleged facts and the nature of evidence relied upon to prove the alleged facts.

 

Rule 38 provides that if the accused pleads guilty, and the judge advocate or Defence Force magistrate believes at any time that the accused person does not understand the effect of their guilty plea, a not guilty plea may be substituted.

 

Rule 39 permits the accused person an opportunity to submit that there is no case to answer at the completion of the prosecution case. Such a submission is to be made in the absence of the court martial if the trial is by court martial.

 

Rule 40 allows the defence to make an opening address stating the nature and general effect of the evidence to be presented if one or more witnesses are to be called.

 

Rule 41 provides that both the prosecuting officer and the accused person, respectively, may make a closing address. In circumstances where there is more than one accused person, closing addresses must be made in the order in which the names of the accused appear on the charge sheet. Where two or more persons are represented by one defending officer, only one address can be given.

 

Rule 42 requires the judge advocate in a trial by court martial to sum up the evidence and direct the court martial on the law relating to the case.

 

Rule 43 states that after conviction on a plea of guilty, the prosecuting officer must inform the court martial or Defence Force magistrate of the material facts that show the nature and gravity of the offence which may be disputed by the convicted person. The prosecution and convicted person may give evidence about any disputed facts.

 

Rule 44 sets out the role of the prosecuting officer, after the conviction of a person by court martial or Defence Force magistrate in outlining the convicted person’s conduct record, particulars of service, any civilian offences and any other matters relevant to the sentencing of the person. In response the convicted person may offer mitigation including giving evidence and calling witnesses.

 

Part VIII - Procedure for imposing punishment in a case of breach of undertaking to be of good behaviour

 

Rule 45 is the application provision relating to proceedings concerning section 75 of the Act. Section 75 provides that instead of imposing a punishment, a service tribunal may make an order that the conviction be recorded as a conviction without punishment and may impose a condition that the convicted person give an undertaking to be of good behaviour for a period of 12 months.

 

Rule 46 provides for the action required to be taken by a court martial or Defence Force magistrate in relation to a breach of undertaking to be of good behaviour.

 

Part IX – Record of proceedings and exhibits

 

Rule 47 provides the manner in which the record of proceedings before a court martial or Defence Force magistrate shall, if practicable, be taken.

 

Rule 48 allows the prosecuting officer or accused, with the leave of the judge advocate or Defence Force magistrate to have a particular part of the record of proceedings read or played over or to inspect an exhibit, subject to proper precautions being taken for the exhibit’s safety.

 

Rule 49 provides for the procedures to be followed when the original record of proceedings is lost.

 

Rule 50 provides that where an original or a copy of a document or thing is admitted in evidence at a trial by court martial or Defence Force magistrate, it shall be made an exhibit.

 

Rule 51 provides that a judge advocate or Defence Force magistrate may dispense with compliance with these Rules

 

Schedule 1 provides the appropriate form for statement of offences as required for
Sub-rule 14(4) for the Act, the Regulations and the Criminal Code.

 

Schedule 2 provides the form of charge sheet.