Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

DEFENCE FORCE DISCIPLINE AMENDMENT RULES 1998 (NO. 1) 1998 NO. 377

STATUTORY RULES 1998 NO. 377

Issued by the Authority of the Judge Advocate General

Defence Force Discipline Act 1982

Defence Force Discipline Amendment Rules 1998 (No. 1)

The Defence Force Discipline Rules ("the Rules") made under the Defence Force Discipline Act 1982 ("the Act") set out the practice and procedure to be followed by service tribunals exercising power under that Act.

This Statutory Rule amends various provisions.

Subrule 3(1) of the Rules contained a definition of Evidence Ordinance. As that expression did not appear in any substantive provision of the Rules, this Statutory Rule omits that definition.

Paragraph 4(a) of the Rules provided that where a case arises for which no provision or insufficient provision is made by the Act, the Rules or any regulations made pursuant to subsection 146(2) of the Act then, if there is an applicable procedure in the Australian Capital Territory, that procedure is to be followed. As the Act now incorporates the laws of the Jervis Bay Territory as opposed to the laws of Australian Capital Territory, this Statutory Rule amends paragraph 4(a) of the Rules by replacing the reference to the Australian Capital Territory with a reference to the Jervis Bay Territory.

Subrule 16(1) of the Rules provided that the prosecutor shall, as soon as practicable, furnish to the accused person notice and particulars of any evidence which the prosecutor intended to adduce at the trial which was not contained in the written statements furnished to the accused person under rule 15. This Statutory Rule amends subrule 16(1) to widen the nature of the prosecutor's obligation so that the prosecutor is now required to furnish to the accused person all evidence relevant to the accused's defence that has come to the notice of the prosecutor, in addition to evidence that the prosecutor intends to adduce at the trial.

Subrule 17(2) of the Rules enabled a witness to be excluded from the court when a discussion arose about the allowance of a question or any other matter pertaining to the evidence of the witness. This Statutory Rule amends subrule 17(2) to make it clear that the witness may be excluded from the court until such time as the service tribunal makes a decision on an objection to the allowance of a question, or the evidence given or about to be given by the witness.

Paragraph 18(1)(b) of the Rules provided that a witness appearing before a service tribunal may be cross-examined by the opposite party to the proceedings. This Statutory Rule amends subrule 18(1) to give a co-accused the right to cross-examine a witness called by a co-accused.

Subrule 18(3) of the Rules provided that a service tribunal, or in the case of a trial by court martial, the judge advocate, may put questions to a witness. This Statutory Rule adds a new subrule 18(3A) to provide that members of a court martial are entitled to question witnesses if the judge advocate considers the question to be relevant and admissible, and the question is put to the witness by the judge advocate.

Subrule 24(1) provides that an accused person may request the services of a specified member of the Defence Force to defend the accused person at the hearing of a proceeding before a summary authority. Subrule 24(2) provided that where an accused person makes a request under subrule 24(1), the person whose services were so requested shall be permitted to defend the accused person unless the services of the person were not reasonably available. This Statutory Rule amends subrule 24(2) to provide that the person whose services are requested under subrule 24(1) must be permitted to defend the accused person unless the services of the person are not reasonable available, or the hearing is before a subordinate summary authority and the person requested is a legal officer. The removal of access to a legal officer at this summary level is because of the limited powers of punishment available to the subordinate summary authority. (These can include reprimands, various restrictions of privileges and limited fines.)

This Statutory Rule also adds a new subrule 24(2A) which provides that if the person requested under subrule 24(1) for representation before a commanding officer or a superior summary authority is a legal officer, then that legal officer must be permitted to defend the accused if leave is given by that commanding officer or superior summary authority and the services of the legal officer are reasonably available. The right to legal representation only with the leave of the commanding officer or superior summary authority reflects the general disciplinary nature of the proceedings while at the same time recognising that there may occasionally be trials which deal with complex issues where a legally qualified defending officer would be desirable.

Rule 46 of the Rules gave an accused person the right to make an unsworn statement. As this right is no longer exercisable in courts in Australian jurisdictions (with the exception of courts in Norfolk Island), this Statutory Rule omits rule 46.

Rule 48 of the Rules stated that after closing addresses at a trial by court martial, the judge advocate shall then sum up the evidence and direct the court martial on the law relating to the case. This Statutory Rule amends rule 48 to add that the direction on the law relating to the case includes direction on the law relating to Part IV of the Act (which deals with punishments).

Paragraph 50(3)(b) of the Rules provided that the provisions of rule 18 applied in relation to witnesses (including the convicted person) who give evidence under this rule (in relation to the convicted persons prior record and mitigation) as if any reference in that rule to the summing up by the judge advocate or to the finding of the service tribunal were references to the taking by the service tribunal of action under part IV of the Act. As there are no references to those expressions in rule 18 this Statutory Rule omits paragraph 50(3)(b). (This Statutory Rule also renumbers paragraph 50(3)(a) as subrule 50(3).)

Rule 54 of the Rules deals with recording the proceedings of trials by courts martial and Defence Force magistrates. Subrule 54(1) states that the proceedings before a court martial or a Defence Force magistrate shall, if practicable, be recorded verbatim. Subrule 54(2) provided that where the proceedings before a court martial or a Defence Force magistrate were not recorded by means of shorthand or sound recording apparatus then the proceedings shall be recorded in sufficient detail to enable the course of the proceedings to be followed and the merits of the case to be judged, having regard to the specified requirements in subrule 54(2). This Statutory Rule amends subrule 54(2) so that it applies whenever any verbatim method of recording is not practicable.

Subrule 54(3) of the Rules provided that where the proceedings were recorded by means of shorthand or sound recording apparatus, then the recorder shall prepare a transcript in writing to be authenticated by the person who made the transcript. This Statutory Rule amends subrule 54(3) to provide that when the proceedings are recorded by any verbatim method of recording then a transcript is to be prepared.

Subrule 54(4) provided that the written record of the proceedings shall be certified as true and correct, in writing, by the recorder and the judge advocate or Defence Force magistrate. This Statutory Rule amends 54(4) to provide that certification is only required if a conviction is recorded.

The Schedule to the Rules lists, for the purposes of subrule 9(4), the statement of each offence. This Statutory Rule makes technical amendments to existing statements and adds three new statements consequential on amendments to the Act and the Defence Force Discipline Regulations.

This Statutory Rule also changes the name of the Rules to the Defence Force Discipline Rules 1985 and the name of the Schedule to Schedule 1.

The Statutory Rule comes into operation on the date of gazettal.