EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 360

 

Issued by the authority of the Chief Military Judge

 

Defence Force Discipline Act 1982

 

Australian Military Court Rules 2007

 

Section 149A of the Defence Force Discipline Act 1982 (the Act) provides that the Chief Military Judge 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 the Australian Military Court exercising power under the Act.

 

The Australian Military Court Rules (the Rules) replace the Defence Force Discipline Rules 1985 for all matters initiated after 1 October 2007 to reflect the amendments to the Act by the Defence Legislative Amendment Act 2006. The Defence Force Discipline Rules 1985 will continue to apply, in the transition period, to all matters commencing prior to 1 October 2007.

 

The Rules reflect the changes to the Act with regard to terminology and the consequential changes due to the introduction of the Australian Military Court.

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 18 October 2007.

 

 

ATTACHMENT

 

Details of the Australian Military Court Rules 2007

 

Part 1

 

Rule 1 identifies these rules as the Australian Military Court Rules.

 

Rule 2 sets the commencement date of these rules at 18 October 2007.

 

Rule 3 repeals the operation of the Defence Force Discipline Rules 1985.

 

Rule 4 provides for the interpretation of certain terms and words within the Rules.

 

Rule 5 provides for the appropriate form of the Australian Military Court seal, its custody and the manner in which it is to be utilised.

 

Rule 6 provides the relevant course of procedure to follow in proceedings before the Australian Military Court 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 the Australian Military Court and will allow the Australian Military Court to import procedures not otherwise provided for.

 

Rule 7 provides for the appropriate form of an instrument for the purposes of section 194A of the Act, which relates to a circumstance where a prisoner is required to appear as a witness before the Australian Military Court.

 

Part 2

 

Rule 8 sets out the functions of a Military Judge that are in addition to the functions already conferred on a Military Judge by the Act, the Regulations and other rules made under the Act. Such additional functions include ensuring that the proceedings are conducted in accordance with the Act, the Regulations and these Rules, that an accused who is not represented does not suffer disadvantage and to ensure that a proper record is kept of the proceedings and the exhibits are properly secured.

 

Part 3

 

Rule 9 lists the people with whom the Registrar may liaise or consult with in order to fulfil the Registrar’s functions or duties under the Act. Consultation with such people, including the prosecuting officers, defending officers and service authorities is imperative to the efficient operation of the Office of the Registrar.

 

Rule 10 provides for the basis upon which the Registrar may consult with the services in relation to any matter concerning the administration of proceedings in the Australian Military Court. The matters in relation to which the Registrar may consult include service details of the accused, the posting location and chain of command for the accused, the administrative matters concerning the trial, and whether the trial is to be conducted by a Military Judge sitting alone or sitting with a jury.

 

Rule 11 provides for the consultation that the Registrar may have with the services concerning the administrative support for trial proceedings. This includes the nomination and appointment of staff to perform the administrative duties and functions of the Australian Military Court.

 

Rule 12 deals with the conduct of case management conferences by the Registrar, for the purpose of facilitating the efficient functioning and administration of Australian Military Court proceedings in respect of any charge referred to trial by the Australian Military Court, subject the exigencies of service. The case management conference may be conducted in person or by audio or video link, the Registrar must act as the chairperson and invite the Director of Military Prosecutions, Director of Defence Counsel Services or their representatives, the appointed defending officer, or any other person who, in the opinion of the Registrar, is appropriate to participate in the conference. The accused person is not required to participate in a case management conference and any matter that requires judicial determination must be referred to a Military Judge.

 

Part 4

 

Rules 13 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. It makes specific reference to section 122 of the Act which provides for the different constitution of the jury for class one, two and three offences. It also refers to section 132A which provides for the trial requirements for class one, two and three offences.

 

Rule 14 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 15 provides that the statement of an offence and the particulars of that offence, in a charge, must be read and construed together.

 

Rule 16 provides for the amendment of charge sheets by a Military Judge where a mistake appears on the face of the charge. The Military Judge is able to correct the mistake only.

 

Rule 17 provides for a Military Judge to allow a prosecuting officer to withdraw a charge or charge sheet before the accused person is arraigned.

 

Part 5

 

Rule 18 outlines the summons specifications for an accused person in accordance with subsections 87(5) of the Act. The summons must include the purpose for which the accused person is required to appear before the Australian Military Court and the time and place for appearance.

 

Rule 19 outlines the specifications for service of a summons on an accused member of the Defence Force. There is an obligation imposed on the chain of command to endeavour to personally serve the accused person.

 

Rule 20 outlines the method of service of a summons to witness, required by subsection 138(2), on a witness who is not a member of the Defence Force. It may be personally served, served by pre-paid post to the last known business or residential address of the witness or by leaving the summons with a person apparently not less than 16 years, at the last known residential or business address of the witness. There is special provision for service by email and facsimile

 

Rule 21 outlines the method of personal service of a summons on an accused person or a witness. It can be done by leaving an original or copy of the summons. If the accused person or witness refuses to accept the personal service, it may be effected by leaving the summons in the presence of the accused person or witness.

 

Rule 22 provides for the time for service of a summons. It must be not later than 5 days before the return date of the summons or at such later time as ordered by the court.

 

Part 6

 

Rule 23 provides that once a charge has been referred to the Registrar, the Registrar must inform the accused person, by a specified notice, of his or her right to elect a particular mode of trial and the time in which such an election must be made.

 

Rule 24 provides that an election in relation to the presence of a military jury must be by the accused person in writing. The rule also sets out the manner in which the election must be made and the relevant time frame.

 

Part 7

 

Rule 25 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 where a military jury is required, and after the case management conference, the same material must be provided to the Registrar, who must also provide it to the relevant Military Judge. 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 26 sets out the time parameters for the provision of the prosecution case to the accused person. Sub-rule 2 compels the Director of Military Prosecutions to certify by notice in writing to the Registrar, when requesting the Registrar to refer a matter for trial or for action by the Australian Military Court under Part IV of the Act, that all statements, documents and information have been provided to the accused person in compliance with the Australian Military Court Rules. In circumstances where the Director of Military Prosecutions requests that the Registrar refer a matter to the Australian Military Court under Part IV of the Act, the Director of Military Prosecutions must provide the Registrar with any relevant proceedings held before a summary authority and make a certification in accordance with both Rules 25 and 26. This obligation on the Director of Military Prosecutions is continuing until the accused is convicted, acquitted, the charge is dismissed or withdrawn or the Director of Military Prosecutions directs that the charge not be proceeded with.

 

Part 8

 

Rule 27 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 the Australian Military Court, of persons reasonably required by the accused persons to appear.

 

Rule 28 provides that a witness must be excluded from the court, except by leave of the Military Judge, during proceedings before the court, except when giving evidence or if the witness is the accused or person representing the accused. The Military Judge may direct a witness to withdraw from the court if the Military Judge 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 29 outlines the power of examining, cross-examining or re-examining witnesses in proceedings before the Australian Military Court. It also provides for the Military Judge to allow the cross-examination or re-examination of a witness, if in the opinion of the Military Judge, it is in the interests of justice to do so. Sub-rule 3 allows a Military Judge to question a witness and sub-rule 4 sets out the parameters that entitle members of a military jury to question a witness and such question to be put by the Military Judge.

 

Rule 30 allows for the recalling of a witness by leave of the Military Judge. In relation to a trial by the Australian Military Court with a military jury this may be done any time before beginning to sum up as long as it is considered to be in the interests of justice and in a trial by a Military Judge alone 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 31 compels witnesses to reply promptly to questions, unless privilege is claimed by the witness or the question is objected to, at which time the Military Judge will rule on admissibility.

 

Rule 32 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 9

 

Rule 33 provides for that the Registrar must appoint military jurors and reserve military jurors by summons. A summons appointing a military juror or reserve military juror must include the service number, rank and name together with the date, time and location for attendance of the military juror at the Australian Military Court. Sub-rule 4 provides that the Registrar must ensure that a juror is of the appropriate rank having regard to the rank of the accused person.

 

Rule 34 sets out the means by which the Registrar must cause a summons to be served on a military juror. It can be effected by personal service, prepaid post, fax or email.

 

Rule 35 mandates that the Registrar must not appoint a person as a juror if the Registrar believes, on reasonable grounds, that the person is biased, is likely to be biased, or likely to be thought, on reasonable grounds, to be biased.

 

Rule 36 mandates that the Director of Military Prosecutions disclose sufficient information to the Registrar to enable the Registrar to appoint members of the military jury in accordance with the rules. This includes the name, rank and service details of each prosecution witness. This obligation is in addition to the obligation imposed on the Director of Military Prosecutions in Rule 25.

 

Rule 37 allows for an objection by the accused and the Director of Military Prosecutions to the Registrar in relation to a military juror’s ineligibility or bias, at any time before the military jury is assembled at the date, time and place mentioned in the summons referred to in rule 33. This rule is framed in this way because the time of assembly is when the control of the military jurors shifts from the Registrar to the Military Judge.

 

Rule 38 directs that the Registrar, if he or she upholds or overrules the objection by the accused person on the ground of bias, advise the Military Judge before the commencement of the hearing.

 

Rule 39 directs a military juror, who believes or becomes aware that he or she may have an issue relating to bias or potential bias during the course of the trial, to notify the Military Judge. Once such a notification is made, the Military Judge must question the juror on oath or affirmation, concerning the bias or potential bias. The prosecuting officer and defending officer may by leave of the Military Judge question the military juror. The questioning of a military juror must be done in the absence of the other members of he military jury.

 

Rule 40 allows the Registrar to revoke the appointment of a military juror or reserve military juror and appoint a replacement, at any time before that juror is assembled at the date, time and place mentioned in the summons referred to in rule 33. This rule is framed in this way because the time of assembly is when the control of the military jurors shifts from the Registrar to the Military Judge.

 

Rule 41 allows the Military Judge to revoke the appointment of a military juror or reserve military juror, at any time after that juror is assembled at the date, time and place mentioned in the summons referred to in rule 33 but before the military jury is sworn or affirmed. This rule is framed in this way because the time of assembly is when the control of the military jurors shifts from the Registrar to the Military Judge. Once the appointment is revoked the Military Judge must appoint a replacement juror from any available reserve member jurors.

 

 

Part 10

Rule 42 provides for the administrative arrangements for the listing of a hearing before the Australian Military Court. The Registrar must issue the notice once a reference of a charge has been made to the Australian Military Court and the Chief Military Judge has appointed a Military Judge to try the charge and any case management hearing has concluded. The rule also provides for the details required on the listing notice, and the ability of the Registrar or the Military Judge to amend, vary or replace a listing notice. The Registrar must also provide a copy of the listing notice to the nominated Military Judge, accused, accused chain of command, Director of Military Prosecutions and accused’s appointed defending officer.

 

Part 11

 

Rule 43 relates to the employment of, the objections to and the swearing or affirming of recorders, interpreters and military jury court officers at proceedings before the Australian Military Court. The rule specifically states that the military jury court officer must keep the military jury in his or her charge subject to any directions from the Military Judge, must not allow any person to speak to a military juror and must not speak to any military juror concerning the issues before the Australian Military Court.

 

Rule 44 provides for the oath or affirmation to be binding on the person taking the oath.

 

Rule 45 allows for applications for the adjournment of proceedings before the Australian Military Court, by the accused person or prosecuting officer on reasonable grounds, at any time.

 

Rule 46 sets out the circumstances in which an accused may make an objection to a member of the military jury after the military jury is assembled but before the military jury is sworn or affirmed, and the role of the Military Judge in dealing with the objection.

 

Rule 47 provides for the administration of the oath or affirmation, to a member of the military jury, by the Military Judge, after the arraignment of the accused person. The oath must include provision for non disclosure of the vote or opinion of any member of the military jury.

 

Rule 48 mandates that a military jury, at the direction of a Military Judge, elect a spokesperson who will speak on behalf of the jury in relation to a verdict and any other communication with the Military Judge. The spokesperson may be any member of the military jury, irrespective of rank.

 

Rule 49 provides that the military jury, in deciding relevant questions, must vote orally, in order of seniority commencing with the most junior in rank.

 

Rule 50 gives the accused person and prosecutor the right to argue and give evidence on a matter to be decided by the Australian Military Court.

 

Rule 51 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 Military Judge 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 52 provides that if an accused person raises the defence of a previous conviction or acquittal, the Military Judge must determine the question in the absence of the jury.

 

Rule 53 allows the prosecutor 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 54 provides that if the accused pleads guilty, and the Military Judge believes at any time that the accused person does not understand the effect of their guilty plea, a not guilty plea may be substituted and the matter referred to the Registrar.

 

Rule 55 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 a military jury if the trial is before a military jury.

 

Rule 56 allows the defence to make an opening address stating the nature and general effect of the evidence be presented if one or more witnesses are to be called.

 

Rule 57 provides that both the prosecutor 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 accuseds’ names appear on the charge sheet. Where 2 or more persons are represented by one defending officer, only one address can be given.

 

Rule 58 provides for the summing up by a Military Judge in a trial by the Australian Military Court with a jury and the manner in which the jury is to consider its verdict. All communications between the military jury and the Military Judge must be done in open court. The spokesperson for the jury must announce the verdict after deliberation has been conducted in private and must announce the verdict in open court. Sub-rule 7 provides for the circumstances in which the Military Judge must discharge the military jury where no prospect that a unanimous or majority verdict can be reached.

 

Rule 59 provides for the basis upon which the Military Judge must discharge the military jury, upon a verdict being reached, prior to a verdict on a plea of guilty, where there is an irregularity in behaviour or conduct of the jury. In the event of unavailability of a member or members of the military jury, the military jury may be discharged.

 

Rule 60 states that after conviction on a plea of guilty, the prosecutor must inform the Military Judge 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 61 sets out the role of the prosecutor 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 12

 

Rule 62 provides guidance concerning the admission of exhibits or copies of exhibits.

 

Rule 63 provides that an accused person who has been provided with a list of exhibits in accordance with Rule 28, must after an application is made to the Registrar or Military Judge be permitted to inspect or copy an exhibit. The safety of the exhibit is the responsibility of the custodian of the exhibit.

 

Part 13

 

Rule 64 provides the manner in which the record of proceedings before the Australian Military Court must be taken.

 

Rule 65 allows the prosecutor or accused, with the leave of the Military Judge 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 66 provides for the procedures to be followed when the original record of proceedings is lost.

 

Part 14

 

Rule 67 relates to the application of Part 13 in its procedure for imposing punishment for a breach of undertaking to be of good behaviour

 

Rule 68 provides for the action required to be taken by a Military Judge in relation to a breach of undertaking to be of good behaviour, in circumstances where an accused person has been convicted by the Australian Military Court.

 

Part 15

 

Rule 69 allows the Chief Military Judge to issue practice notes concerning the practice and procedure to be conducted before the Australian Military Court.

 

Rule 70 sets out the bases for a Military Judge to grant an adjournment of the proceedings before the Australian Military Court. A general adjournment must be listed or re-listed no later than 12 months after the grant of the adjournment.

 

Schedule 1 provides the appropriate form for statement of offences as required for Sub-rule 14(4) for the Act, the Defence Force Discipline Regulations 1985 and the Criminal Code.

 

Schedule 2

Form 1 provides for the Seal of the Australian Military Court.

Forms 2 provides the form of charge sheet for the Australian Military Court.