WAR CRIMES ACT 1945 - SECT 13 Jurisdiction of courts and choice of law

WAR CRIMES ACT 1945 - SECT 13

  (1)   Section   68 of the Judiciary Act 1903 applies in relation to an offence against this Act as if a reference in that section to a Territory did not include a reference to an external Territory.

  (2)   Where a person is charged with an offence against this Act, then, for the purposes of:

  (a)   determining whether a court of a State or internal Territory has jurisdiction in relation to the offence;

  (b)   an exercise of jurisdiction by such a court in relation to the offence;

  (c)   a proceeding connected with such an exercise of jurisdiction; and

  (d)   an appeal arising out of, or out of a proceeding connected with, such an exercise of jurisdiction;

this Act has effect, in relation to an act that is, or is alleged to be, the offence, as if:

  (e)   a reference in subsection   6(3) or section   18 to a part of Australia were a reference to that State or Territory; and

  (f)   without limiting subsection   6(2), all defences under the law in force in that State or Territory when the person is charged with the offence had been defences under the law in force in that State or Territory at the time of the act.

  (3)   Where:

  (a)   it is sought in a proceeding for an offence against this Act to establish for the purposes of subsection   6(2) that a particular defence could have been established in a proceeding (in this subsection called the other proceeding ) for an offence; and

  (b)   in the other proceeding, the onus of establishing the defence would have lain on the defendant;

then, in the first - mentioned proceeding, the onus of establishing that the defence could have been established in the other proceeding lies on the defendant.

  (4)   Nothing in Part   II or subsection   9(1) shall be taken to exclude, limit or otherwise prejudice:

  (a)   the application in proceedings for offences against this Act of the normal rules of evidence and procedure that apply in proceedings for offences against the laws of the Commonwealth; or

  (b)   any of the powers of a court in respect of proceedings for offences against the laws of the Commonwealth, including, but not limited to, the powers of a court to take action to prevent an abuse of process.

  (5)   Where, on the trial of a person for an offence against this Act, the person satisfies the judge, on the balance of probabilities, that:

  (a)   the person is unable to obtain evidence that he or she would, but for the lapse of time or some other reason beyond his or her control, have been able to obtain;

  (b)   the person's inability to obtain that evidence has substantially prejudiced, or will substantially prejudice, the preparation or conduct of his or her defence; and

  (c)   the interests of justice require the making of an order under this subsection;

the judge may make such order as he or she thinks appropriate for a stay of proceedings for the offence.

  (6)   Nothing in subsections   ( 4) and (5) limits the generality of anything else in those subsections.