Australian Military Court Rules 2007

Part 1 Preliminary

1 Name of Rules [see Note 1]

These Rules are the Australian Military Court Rules 2007.

2 Commencement

These Rules commence on 18 October 2007.

3 Repeal of Defence Force Discipline Rules 1985

The Defence Force Discipline Rules 1985 are repealed.

4 Definitions

In these Rules, unless the contrary intention appears:

Act means the Defence Force Discipline Act 1982.

arraign, in relation to an accused person at a trial, means reading a charge to the accused person, calling upon the accused person to plead to the charge, and recording the accused person’s plea to the charge.

assembled, in relation to a military jury, means the assembly of military jurors at the date, time and place mentioned in a summons issued under rule 33.

authorized member of the Defence Force has the same meaning as in section 87 of the Act.

defending officer means a person who is instructed by an accused person or a convicted person to represent the accused person or convicted person before the Australian Military Court and is entitled to do so under section 136 of the Act.

PMKeyS database means the database maintained by the Department of Defence:

(a) containing names and service particulars of members of the Defence Force; and

(b) used by the Registrar for the purpose of selecting potential military jurors and reserve military jurors.

prosecuting officer means the Director of Military Prosecutions or a person authorised to represent the Director of Military Prosecutions under section 188GB of the Act.

recorder means a person who records the spoken word, by longhand, shorthand, mechanical or other means, and includes a person who operates or transcribes mechanical or other recordings of the spoken word.

Registrar has the meaning given by section 188FB of the Act.

Note 1 Section 188FM of the Act provides that the Registrar may delegate any or all of his or her functions.

Note 2 The following terms are defined in the Act:

Note: (a) accused person — subsection 3 (1);

Note: (b) Australian Military Court — section 114;

Note: (ba) commanding officer — section 5;

Note: (c) legal officer — subsection 3 (1);

Note: (d) Military Judge — subsection 3 (1);

Note: (e) Reserves — subsection 3 (1);

Note: (f) service police officer — subsection 3 (1);

Note: (g) summary authority — subsection 3 (1).

5 Seal and stamp of Australian Military Court

Note 1 Subsection 119 (1) of the Act provides that the design of the seal of the Australian Military Court is to be determined in writing by the Minister. The Minister has determined the design of the seal, and a copy of that design is at Form 1 of Schedule 2.

Note 2 Subsection 119 (2) of the Act provides that the seal of the Australian Military Court must be kept in such custody as the Chief Military Judge directs.

(1) For subsection 119 (3) of the Act, the seal of the Australian Military Court must be affixed to the following documents:

(a) rules of the Australian Military Court;

(b) practice notes issued by the Chief Military Judge under rule 69;

(c) any other document specified in these Rules as a document to which the seal is to be affixed;

(d) any other document specified in a practice note as a document to which the seal is to be affixed;

(e) any other document that the Australian Military Court directs as a document to which the seal is to be affixed.

Note Subsection 119 (3) provides that the seal of the Australian Military Court must be affixed to documents as provided by the Act or any other Act or by the Australian Military Court Rules.

(2) For subsection 120 (3) of the Act, the stamp of the Australian Military Court must be affixed to the following documents:

(a) summons issued by the Australian Military Court;

(b) any other document specified in these Rules as a document to which the stamp is to be affixed;

(c) any other document specified in a practice note as a document to which the stamp is to be affixed;

(d) any other document that the Australian Military Court directs as a document to which the stamp is to be affixed.

Note Subsection 120 (3) provides that the stamp of the Australian Military Court must be affixed to documents as provided by the Act or any other Act or by the Australian Military Court Rules.

(3) If a document is required to have the seal or stamp affixed, the requirement is satisfied if a facsimile of the seal or stamp is affixed on the document by electronic means by, or at the direction of, the person affixing the seal or stamp.

(4) The stamp, or stamps, of the Australian Military Court must be kept in the custody of one or more of the following:

(a) a Military Judge;

(b) the Registrar;

(c) a person nominated in writing by a Military Judge or the Registrar.

6 Cases not covered by the Act, the Rules or the Regulations

If, in the course of or in relation to proceedings before the Australian Military Court, a case arises for which no provision or insufficient provision is made by the Act, these Rules or any regulations made pursuant to subsection 146 (2) of the Act:

(a) the established course that would, in the particular case, have applied in a trial by jury in a civil court in the Jervis Bay Territory in its criminal jurisdiction must be adopted; or

(b) if there is no such established course, such course must be adopted as the interests of justice require.

7 Instrument for purposes of section 194A of the Act

An instrument for section 194A of the Act may be issued by an appropriate authority and must:

(a) be directed to the person in charge of the prison where the prisoner is undergoing the sentence of imprisonment; and

(b) require the person to produce the prisoner at the time and place specified in the instrument; and

(c) specify the purpose for which the prisoner is required to be produced.

Note Section 194A of the Act relates to the circumstance where a prisoner is required to appear as a witness before the Australian Military Court.

Part 2 Australian Military Court

8 Functions of Military Judge

In addition to the functions conferred on a Military Judge by the Act, and Regulations and other Rules made under the Act, the functions of a Military Judge are:

(a) to preside over the hearings of the Australian Military Court; and

(b) to ensure that proceedings are conducted:

(i) in accordance with the Act, the Regulations and these Rules; and

(ii) in a manner befitting a court of justice; and

(c) to ensure that an accused person who is not represented does not suffer a disadvantage as a result of not being represented; and

(d) to ensure that a proper record of proceedings is made and that the records of proceedings and exhibits are properly secured during the conduct of the trial.

Part 3 Functions of Registrar, and administration

9 Registrar may liaise with certain persons

In order to fulfil a function or a duty under the Act, the Regulations or these Rules, the Registrar may liaise or consult with any of the following:

(a) a Military Judge;

(b) a prosecuting officer;

(c) a defending officer;

(d) the Director of Defence Counsel Services;

(e) service authorities;

(f) civilian agencies and authorities.

10 Registrar may consult with services about conduct of proceedings

(1) The Registrar may consult with the services in relation to any matter concerning the administration of proceedings in the Australian Military Court.

(2) The matters in relation to which the Registrar may consult and liaise under subrule (1) include, but are not limited to, the following:

(a) the service details of the accused person;

(b) notification to the accused person;

(c) current posting location and chain of command for the accused person;

(d) whether the trial is to be by a Military Judge alone or sitting with a military jury;

(e) the date, time and location of the proceedings;

(f) the appointment of an administrative officer, clerk of the court, military jury court officer, court orderly or escort officer, as appropriate;

(g) service dress requirements for military and other personnel in attendance at the proceedings;

(h) customs of the services;

(i) information technology support requirements for the proceedings;

(j) financial arrangements in relation to the proceedings;

(k) the process for the appointment and administration of military juries.

(3) The persons in relation to which the Registrar may consult under subrule (1) include, but are not limited to, authorities responsible for the movement and administration of the accused, witnesses, counsel and military jurors, as appropriate.

11 Registrar may consult with services about administrative support for trial proceedings

(1) The Registrar may consult with the services concerning the nomination and appointment of staff from the services to perform the administrative duties and functions of the Australian Military Court.

(2) Without limiting subrule (1), the Registrar may consult in relation to staff to be appointed from the services to the following positions:

(a) administrative officer;

(b) clerk of the court;

(c) military jury court officer;

(d) court orderly;

(e) escort officer;

(f) other administrative support personnel as necessary.

12 Registrar to conduct case management conferences

(1) The Registrar may conduct a case management conference in order to facilitate the efficient functioning and administration of proceedings in respect of any charge referred for trial by the Australian Military Court, an application for an extension of time to appeal to the Australian Military Court, or an appeal to the Australian Military Court.

(1A) The Registrar must set a date for, and conduct, a case management conference in accordance with any practice notes made for this purpose.

(2) A case management conference mentioned in subrule (1) may be conducted:

(a) in person; or

(b) by audio or video link.

(3) The Registrar must attend a case management conference as chairperson, and may invite the following persons to participate:

(a) the Director of Military Prosecutions, or a representative;

(b) the Director of Defence Counsel Services, or a representative;

(c) the appointed defending officer of the accused person;

(d) any other person who, in the opinion of the Registrar, is appropriate to participate in the conference.

(4) An accused person is not required to participate in a case management conference, but may choose to do so through his or her appointed defending officer.

(5) If a matter that requires judicial determination arises at a case management conference, the Registrar must refer the matter to a Military Judge.

(6) The costs of a case management conference will be borne by the Commonwealth.

Part 4 Charge sheets and charges

13 Charge sheets

(1) A charge against an accused person must be entered in a charge sheet that is signed and dated by the Director of Military Prosecutions.

(2) Subject to sections 122 and 132A of the Act, a charge sheet for the trial of an accused person by the Australian Military Court may contain more than 1 charge if the offences charged:

(a) form, or are part of, a series of offences of the same or a similar character; or

(b) are founded on the same or closely related acts or omissions; or

(c) are founded on a series of acts done or omitted to be done in the prosecution of a single purpose; or

(d) are alternative to other charges in the charge sheet.

(3) Subject to sections 122 and 132A of the Act, at a trial before the Australian Military Court, 2 or more accused persons may be charged in the same charge sheet with offences alleged to have been committed by them separately if the acts or omissions on which the charges are founded are so connected that it is in the interests of justice that they be tried together.

(4) A charge sheet must be in accordance with Form 2 of Schedule 2.

Note for subrules (2) and (3) Sections 122 and 132A may affect the operation of these provisions as follows:

Note: (a) section 122 of the Act provides that the number of members on a military jury may differ according to the class of offence;

Note: (b) section 132A provides for a trial by a Military Judge alone, or a Military Judge and military jury, according to the class of offence.

14 Charges

(1) A charge must state 1 offence only.

(2) A charge must consist of:

(a) a statement of the offence which the accused person is alleged to have committed; and

(b) particulars of the act or omission constituting the offence.

(3) A statement of an offence must contain:

(a) a sufficient statement of the offence; and

(b) in the case of an offence other than an offence against the common law — a reference to the provision of the law creating the offence.

(4) Without prejudice to any other sufficient manner of setting out the statement of an offence, the statement of an offence is sufficient if it is in accordance with Schedule 1.

(5) Particulars of an offence must contain a sufficient statement of the circumstances of the offence to enable the accused person to know what it is intended to prove against him or her as constituting the offence.

(6) At a trial by the Australian Military Court, 2 or more accused persons may be charged jointly in 1 charge of an offence alleged to have been committed by them jointly.

15 How charges to be construed

The statement of an offence and particulars of that offence, in a charge, must be read and construed together.

16 Amendment of charge sheets by Military Judge

If it appears to a Military Judge at any time during a hearing of proceedings that there is, in the charge sheet:

(a) a mistake in the name or description of the accused person; or

(b) a mistake which is attributable to clerical error or omission;

the Military Judge may amend the charge sheet to correct the mistake.

17 Withdrawal of charge

A Military Judge may allow the prosecuting officer:

(a) to withdraw a charge, before the accused person is arraigned on it; or

(b) to withdraw a charge sheet, before the accused person is arraigned on any charge in it.

Part 5 Summonses

18 Summons to accused person

A summons under subsection 87 (5) of the Act must specify:

(a) the service number and rank (if any), and the name of the accused person;

(b) the purpose for which the accused person is required to appear before the Australian Military Court; and

(c) the time and place at which the accused person is required to appear.

19 Service of summons — accused member of Defence Force

If a summons is to be served on an accused person who is a member of the Defence Force, the chain of command of the accused person must:

(a) personally serve; or

(b) cause to be personally served; or

(c) attempt to personally serve;

the summons on the accused person.

20 Service of summons to witness

(1) A summons that is required by subsection 138 (2) of the Act to be served on a person other than the accused person must be served:

(a) by personally delivering the summons to that person; or

(b) by prepaying and posting the summons as a letter addressed to that person at the person’s last‑known place of residence or business, or, if the person is carrying on business at 2 or more places, at 1 of those places; or

(c) by leaving the summons at the last‑known place of residence of that person with some person apparently resident at that place and apparently not less than 16 years of age; or

(d) by leaving the summons at the last‑known place of business of that person, or, if the person is carrying on business at 2 or more places, at 1 of those places with some person apparently in the service of the person and apparently not less than 16 years of age; or

(e) if the person consents — by fax or email.

(2) A summons served by fax under paragraph (1) (e) is taken to have been effected on completion of the transmission.

(3) A summons served by email under paragraph (1) (e) is taken to have been effected at the time of receipt of the email.

(4) If service is effected under paragraph (1) (e), the person effecting the service must retain a paper copy of the receipt or delivery notice of the fax or email.

(5) If, under this rule, service is effected on a corporation, the corporation may comply with the summons by authorising and ensuring attendance by its appropriate or proper officer.

(6) A summons mentioned in subrule (1) may be served on a person who is not a member of the Defence Force.

21 Personal service of summons — accused person or witness

(1) Personal service of a summons under this Part may be effected by serving on the accused person or witness:

(a) the original summons; or

(b) a copy of the summons.

(2) If an accused person or a witness refuses to accept personal service of a summons, service may be effected by leaving the summons in the presence of the accused person or witness.

22 Time for service of summons

A summons to be served in accordance with this Part must be served:

(a) not later than 5 days before the return date at the Australian Military Court; or

(b) at such later time as the Court orders.

Part 6 Mode of trial — jury or non‑jury

23 Accused person to be advised of right of election

(1) The Registrar must issue a notice informing the accused person of his or her right to make an election for mode of trial if:

(a) a charge is referred to the Registrar; and

(b) that charge is a charge in relation to which:

(i) the accused person may make an election for mode of trial; and

(ii) the Director of Military Prosecutions has not, up to and immediately before the issuing of the notice, informed the Registrar of a decision that the offence is to be tried by a Military Judge alone.

Note 1 An accused person may not make an election for the mode of trial in relation to a charge of a class 1 offence — see section 132A of the Act.

Note 2 An accused person may make an election for the mode of trial in relation to a charge, or charges, of class 2 and class 3 offences, unless:

Note: (a) one of the charges against the accused person is for a class 1 offence — see section 132AA of the Act; or

Note: (b) a co‑accused does not make an election for the mode of trial to be by Military Judge alone — see sections 132AA and 132AB of the Act; or

Note: (c) the charge is of a class 3 offence and the Director of Military Prosecutions has decided that the offence is to be tried by a Military Judge alone — see subsections 103A (2) and 132AB (2) of the Act.

(2) The notice by the Registrar:

(a) must fix a time within which the accused person must make any election; and

(b) must be in accordance with any practice notes made for this purpose.

24 Election by accused person

(1) An election in relation to the mode of trial may be made only:

(a) in writing by the accused person; or

(b) with the leave of a Military Judge, orally by the accused person.

(2) An election under subrule (1) must be made:

(a) within the time fixed by paragraph 23 (2) (a); and

(b) in accordance with any practice notes made for this purpose.

(3) A Military Judge must not grant leave to the accused person to make an election under paragraph (1) (b) unless satisfied that the accused person understands the nature and effect of the election.

(4) An election under paragraph (1) (b) must form part of the record of proceedings.

Note Proceedings are recorded in accordance with rule 64.

24A Withdrawal, change or making of election by accused person

(1) An accused person may, with the leave of a Military Judge:

(a) withdraw an election made under rule 24; or

(b) change an election made under rule 24; or

(c) if the accused person did not make an election in accordance with rule 24 — make an election.

(2) In deciding whether to grant leave to the accused person to withdraw an election, change an election or make an election in accordance with rule 24, a Military Judge must have regard to the following:

(a) whether the withdrawal of election, change of election, or election is likely to result in a delay in the conduct of the trial;

(b) whether the accused person has previously withdrawn or changed an election;

(c) whether the accused person received legal advice prior to making an election or prior to deciding not to make an election;

(d) any other matter the Military Judge considers relevant.

24B Revocation of election by accused person — multiple trials

(1) An election by an accused person in relation to the mode of trial is taken to be revoked if:

(a) an order is made for charges against the accused person to be tried separately; or

(b) an order is made for jointly charged accused persons to be tried separately.

(2) If an election is taken to be revoked under subrule (1), an accused person may, as soon as practicable:

(a) make a fresh election in relation to any charge or charges the subject of the order; or

(b) decide to make no election in relation to any charge or charges the subject of the order.

(3) If an accused person does not make an election or decision mentioned in subrule (2), the Registrar must issue a fresh notice to the accused person in accordance with rule 23, in relation to any charge or charges the subject of the order.

Part 7 Disclosure of prosecution case and supplementary information

25 Disclosure of prosecution case against accused person — witness statements

(1) If the Director of Military Prosecutions requests the Registrar of the Australian Military Court to refer a matter:

(a) for trial; or

(b) for action by the Australian Military Court under Part IV of the Act;

the Director of Military Prosecutions must ensure that:

(c) the accused person; and

(d) if a trial with a military jury is required — the Registrar;

are provided with, or have already been provided with, the information or copies of the documents mentioned in subrule (3).

(2) The Registrar must disclose to the Military Judge all information and documents provided to the Registrar under paragraph (1) (d).

(3) For subrule (1), the information and documents are as follows:

(a) the charge sheet signed and dated by the Director of Military Prosecutions;

(b) the record of evidence in relation to the charge taken at any proceedings before a summary authority, together with all documents relating to those proceedings;

(c) a list of the names of prosecution witnesses;

(d) a list of prosecution exhibits;

(e) each witness statement from a witness mentioned in paragraph (c);

(f) any information, document or thing in the possession of the prosecuting officer that is relevant to the reliability or credibility of a prosecution witness;

(g) any information, document or thing in the possession of the prosecuting officer that is adverse to the credit or credibility of the accused person.

(4) If the prosecuting officer decides not to call a witness to give evidence that:

(a) is contained in a written statement furnished to the accused person under paragraph (3) (e); or

(b) has been notified to the accused person under subrule (1);

the prosecuting officer must:

(c) if it is practicable to do so before the trial, inform the accused person:

(i) that the prosecuting officer does not intend to call the witness to give evidence; and

(ii) that the accused person may call the witness as a witness for the defence; or

(d) inform the accused person at the trial that the prosecuting officer does not intend to call the witness to give evidence but will tender the witness for cross‑examination by the accused person if the accused person so requests.

Registrar to disclose documents and information to Military Judge

(5) The Registrar must disclose to the Military Judge all documents or information provided to the Registrar:

(a) under subrule (1); and

(b) during or as a result of a case management conference conducted under rule 12.

26 Disclosure of prosecution case against accused person — time for providing statements, documents and information

(1) A statement, document or information required to be provided under rule 25 must be given to the accused person before the Director of Military Prosecutions requests the Registrar to refer a matter:

(a) for trial; or

(b) for action by the Australian Military Court under Part IV of the Act.

(2) If the Director of Military Prosecutions request the Registrar to refer a matter for trial, the Director of Military Prosecutions must certify, by notice in writing given to the Registrar accompanying the request, that all statements, documents and information have been provided to the accused person in accordance with this rule, and rule 25.

(3) If the Director of Military Prosecutions request the Registrar to refer a matter for action by the Australian Military Court under Part IV of the Act, the Director of Military Prosecutions must:

(a) in relation to any proceedings that were held before a summary authority — give to the Registrar a record of evidence in relation to the charge at the proceedings; and

(b) certify, by notice in writing given to the Registrar accompanying the request, that all statements, documents and information have been provided to the accused person in accordance with this rule, and rule 25.

(4) An obligation under this rule, or rule 25, to provide a statement, a document or information:

(a) exists whether or not the accused person has mentioned any intention as to how he or she might plead to the charge; and

(b) continues until:

(i) the accused person is convicted; or

(ii) the accused person is acquitted; or

(iii) the charge is dismissed after the prosecution offers no evidence; or

(iv) the charge is withdrawn; or

(v) the Director of Military Prosecutions directs that the charge not be proceeded with.

Part 8 Witnesses

27 Securing appearance of witnesses on behalf of accused person

(1) The relevant authority 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 person to appear to give evidence, and (if so required) to produce documents, on that person’s behalf.

(2) In this rule:

relevant authority means:

(a) the Chief of the Defence Force; or

(b) a delegate of the Chief of the Defence Force of at least the rank of Colonel (or an equivalent rank).

28 Exclusion of witness from court

(1) During proceedings before the Australian Military Court, a witness must not be in court while not under examination, except by leave of the Military Judge.

(2) The Military Judge may direct a witness to withdraw from the court until the Military Judge makes a decision on an objection that relates to:

(a) the allowing of a question; or

(b) the evidence given, or about to be given, by the witness.

(3) Nothing in this rule requires the accused person, a defending officer or the prosecuting officer to be absent, or to withdraw, from the proceedings.

29 Examination of witness

(1) A witness appearing before the Australian Military Court:

(a) may be:

(i) examined by the person who called the witness; and

(ii) cross‑examined by the opposite party to the proceedings or by a co‑accused; and

(b) on conclusion of any cross‑examination may be re‑examined, on matters arising out of the cross‑examination, by the person who called the witness.

(2) The Military Judge may allow the cross‑examination or re‑examination of a witness to be postponed if, in the opinion of the Military Judge, it is in the interests of justice to do so.

(3) A Military Judge may question a witness.

(4) During a trial before a military jury, members of the military jury are entitled to question a witness, if:

(a) in the opinion of the Military Judge, the question is relevant and admissible; and

(b) the question is put to the witness by the Military Judge.

(5) If a question put under subrule (3) or (4) is answered, the accused person and the prosecuting officer may put to the witness such questions arising from the answer that the witness has given as seem proper to the Military Judge.

30 Recalling of witness and calling of further witnesses

(1) The prosecuting officer and the accused person may, at any time before:

(a) in a trial by the Australian Military Court with a military jury — a Military Judge begins to sum up; or

(b) in a trial by the Australian Military Court before a Military Judge alone — the Military Judge makes a finding on the charge; or

(c) in the hearing of an appeal to the Australian Military Court, if the Court considers that it must receive and consider new evidence under section 163 of the Act — the Military Judge determines the appeal;

recall a witness by leave of the Military Judge.

(2) After the witnesses for the defence have given their evidence, the prosecuting officer may, by leave of the Military Judge, call a witness to give evidence on any matter raised by the accused person in his or her defence in respect of which evidence could not properly have been adduced, or which could not reasonably have been foreseen, by the prosecution before the accused person presented his or her defence.

(3) In a trial by the Australian Military Court with a military jury, a Military Judge may call a witness or recall a witness:

(a) at any time before beginning to sum up; and

(b) if, in the opinion of the Military Judge, it is in the interests of justice to do so.

(4) In a trial by the Australian Military Court before a Military Judge alone, the Military Judge may call a witness or recall a witness:

(a) at any time before making a finding on the charge; and

(b) if, in the opinion of the Military Judge, it is in the interests of justice to do so.

(4A) In the hearing of an appeal to the Australian Military Court, if the Court has decided under subsection 163 (1) of the Act that new evidence must be received and considered, the Military Judge:

(a) may call a witness or recall a witness at any time before determining the appeal; and

(b) may recall a witness already heard in the appeal if, in the opinion of the Military Judge, it is in the interests of justice to do so.

(5) If a witness is called or recalled in accordance with this rule, the accused person and the prosecuting officer may put such questions to the witness as seem proper to the Military Judge.

31 Witness to reply forthwith

(1) Subject to subrule (2), a witness appearing before the Australian Military Court must reply forthwith to each question put to the witness.

(2) If a question is objected to or a witness claims privilege, the witness must not answer the question unless the objection or claim is overruled by the Military Judge.

32 Expenses for witnesses

(1) A person (other than a member of the Defence Force) summoned or requested to appear as a witness before the Australian Military Court must be paid such fees, and allowances for expenses, in respect of the witness’s attendance as the appropriate authority determines in accordance with the scale in Schedule 2 to the Public Works Committee Regulations 1969.

(2) At the request of the appropriate authority, the functions in subrule (1) are to be carried out by:

(a) the Chief of the Defence Force; or

(b) a delegate of the Chief of the Defence Force of at least the rank of Colonel (or an equivalent rank); or

(c) the Director of Military Prosecutions.

Part 9 Military juries

33 Registrar to select, screen and appoint military jurors and reserve military jurors

(1) Subject to subrule (2), the Registrar must cause the random selection, screening and appointment of military jurors and reserve military jurors in accordance with this Part.

(2) If the Registrar believes that due to the particular circumstances of a military trial it is not reasonably practicable to select and appoint a military jury in accordance with this Part, the Registrar must:

(a) notify the Military Judge appointed to try the matter; and

(b) if the Military Judge makes a determination under subrule 33C (1) — select and appoint a military jury from the classes of persons determined by the Military Judge.

33A Validity of constitution of military jury

(1) Non‑compliance with a requirement of this Part about:

(a) the liability of persons to serve as members of a military jury; or

(b) the selection, screening and appointment of persons to serve as military jurors or reserve military jurors; or

(c) the disqualification, exemption or excusal of persons from serving as members of a military jury;

does not make the constitution of a military jury invalid.

(2) Subrule (1) does not apply if the accused person made an objection to the non‑compliance prior to the commencement of the trial.

33B Liability to serve as member of military jury

A person is liable to serve as a member of a military jury if that person:

(a) unless special circumstances as mentioned in rule 33C exist, is:

(i) a member of the Permanent Navy, the Regular Army or the Permanent Air Force; or

(ii) a member of the Reserves who is rendering continuous full‑time service; and

(b) meets the eligibility requirements in the Act; and

(c) is not disqualified from serving as a member of a military jury; and

(d) is not exempt from serving as a member of a military jury.

33C Liability to serve as member of military jury — special circumstances

(1) In special circumstances, a Military Judge may determine that:

(a) in addition to the persons mentioned in paragraph 33B (a) — members of the Naval Reserve, the Army Reserve and the Air Force Reserve are liable to serve as members of a military jury; or

(b) only certain persons mentioned in rule 33B are liable to serve as members of a military jury; or

(c) only certain persons mentioned in rule 33B and paragraph (1) (a) are liable to serve as members of a military jury.

Note The Military Judge may, for instance, determine that only persons serving in a particular geographic area outside Australia are liable to serve on a particular military jury.

(2) For the purpose of this rule, special circumstances exist if the Military Judge is satisfied that due to the particular circumstances of a military trial, it is not reasonably practicable to select a military jury from the persons mentioned in paragraph 33B (a) for the trial.

(3) Before making a decision mentioned in subrule (2), the Military Judge must consider submissions from the accused person and the Director of Military Prosecutions.

33D Persons disqualified from serving on military jury

A member of the Defence Force is disqualified from serving as a member of a military jury if:

(a) the member has been convicted of a service offence by a court martial, Defence Force magistrate or the Australian Military Court; and

(b) the sentence imposed for that conviction included a punishment more severe than the imposition of a fine.

33E Persons exempt from serving on military jury

(1) The following persons are exempt from serving as a member of a military jury:

(a) the Chief of the Defence Force;

(b) legal officers;

(c) chaplains;

(d) service police officers;

(e) warrant officers who are members of a police corps or service.

Note 1 A legal officer means an officer who is a legal practitioner — see subsection 3 (1) of the Act.

Note 2 A service police officer means an officer who is a member of a police corps or service, and includes a provost marshal and a deputy provost marshal — see subsection 3 (1) of the Act.

(2) A person is exempt from serving as a member of a military jury if the military trial is to be held in Australia, and at the time that the military jury is selected the Registrar is satisfied that:

(a) the person will be posted or deployed in a country other than Australia during the anticipated period of the military trial; or

(b) the person will be serving on a ship that will be away from its home port during the anticipated period of the military trial.

(3) Subrule (2) applies only if, and to the extent that, the exigencies of service permit.

33F Director of Military Prosecutions to disclose information to Registrar to assist in random selection, screening and appointment of military jurors and reserve military jurors

(1) The Director of Military Prosecutions must disclose sufficient information to the Registrar to enable the Registrar to randomly select, screen and appoint members of a military jury in accordance with the requirements of the Act and these Rules.

(2) The information must including the following:

(a) the name of each prosecution witness;

(b) the rank (if any) of each prosecution witness;

(c) the service details of the accused person.

33G Registrar to randomly select potential military jurors

(1) The Registrar must cause the names of potential military jurors to be randomly selected from the PMKeyS database.

(2) The selection may be made:

(a) by a computer programmed to make a random selection of names from the PMKeyS database; or

(b) by another method capable of producing a random selection of names from the PMKeyS database.

Note In making the selection mentioned in subrule (1), the Registrar must comply with the requirements relating to the composition of a military jury in sections 122 and 123 of the Act.

33H Registrar to randomly select potential reserve military jurors

(1) The Registrar must, by the same method mentioned in rule 33G, cause the random selection of an adequate number of potential reserve military jurors for a military trial.

(2) In determining an adequate number of reserve military jurors required for a military trial, the Registrar must have regard to the circumstances of the trial for which the military jury will be appointed.

(3) The Registrar must ensure that at least one person randomly selected as a potential reserve military juror meets the requirement in subsection 122 (2) of the Act.

Note Subsection 122 (2) of the Act requires that at least one member of a military jury must hold a rank that is not lower than the naval rank of commander or the rank of lieutenant‑colonel or wing commander.

(4) Subrule (3) does not apply if:

(a) more than one person selected under subrule 33G (1) meets the requirement in subsection 122 (2) of the Act and are liable to serve as members of a military jury; or

(b) the requirements of subsection 122 (2) of the Act do not apply.

Note Subsection 122 (3) of the Act provides that the requirements of subsection 122 (2) apply only if, and to the extent that, the exigencies of service permit.

33I Registrar to screen potential military jurors and reserve military jurors

(1) Before appointing a person as a military juror or a reserve military juror under subrule 35 (2), the Registrar must screen, or cause another person (the other person) to screen, each potential military juror and reserve military juror.

(2) In screening a person as a potential military juror or reserve military juror:

(a) the Registrar or other person may:

(i) contact the person to be screened; and

(ii) question that person; and

(b) the Registrar may:

(i) determine whether the person meets the eligibility requirements in the Act; and

(ii) determine whether the person is disqualified from serving on a military jury; and

(iii) determine whether the person is exempt from serving on a military jury; and

(iv) deal with any applications from the person to be excused from serving as a member of a military jury; and

(v) determine if the person is biased, likely to be biased, or likely to be thought on reasonable grounds to be biased.

(4) The screening process must be conducted in accordance with any procedures made by the Registrar for the purpose of this rule.

(5) The Registrar may make procedures for the purpose of these Rules, and must make any procedures available to the public.

33J Biased persons not to be appointed to military jury

Under subrule 35 (2), the Registrar must not appoint a person as a military juror or reserve military juror if the Registrar believes, on reasonable grounds, that the person is biased, likely to be biased, or likely to be thought on reasonable grounds to be biased.

33K Registrar to decide whether to excuse a potential military juror or reserve military juror — before summons

(1) The Registrar may excuse a person from serving on a military jury or from acting as a reserve military juror:

(a) upon consideration of an application from that person; or

(b) at the Registrar’s discretion.

(2) In deciding whether to excuse a person from serving on a military jury or from acting as a reserve military juror, the Registrar must have regard to the following:

(a) whether, at the anticipated commencement of the military trial, the person is likely to have separated from the service or to have ceased continuous full‑time service;

(b) whether the military jury service would result in substantial financial hardship to the person;

(c) whether the military jury service would result in substantial hardship to the person or a member of the person’s family;

(d) the person’s state of health;

(e) whether the military jury service would:

(i) materially affect the operational effectiveness of the person’s unit, ship or base; or

(ii) materially affect the operational deployment or proposed operational deployment of the person; or

(iii) materially affect a substantial training commitment of the person; or

(iv) affect the ability of the person to take recreational or other leave that has already been approved;

(f) whether the person has served as a member of another military jury in the 12‑month period prior to the anticipated commencement of the military trial;

(g) any other matters stated in a practice note issued for the purposes of this rule.

34 Service of summons to military juror etc

(1) The Registrar is to cause a summons to be served on a military juror or reserve military juror by any of the following means:

(a) personal service;

(b) postal service, by prepaying and posting the summons to the military juror’s, or reserve military juror’s, place of duty, as the case may be place of duty;

(c) fax;

(d) email.

(2) A summons served by fax under paragraph (1) (c) is taken to have been effected on completion of the transmission.

(3) A summons served by email under paragraph (1) (d) is taken to have been effected at the time of receipt of the email.

35 Registrar to appoint military jurors and reserve military jurors by summons

(1) The Registrar may appoint military jurors and reserve military jurors to a military jury only after undertaking the screening process mentioned in rule 33I.

(2) The Registrar must appoint a military juror or a reserve military juror by issuing a summons.

(3) A summons appointing a military juror or reserve military juror must include the following information:

(a) the service number, rank and full name of the military juror or reserve military juror;

(b) the date, time and location the military juror or reserve military juror is required to attend the Australian Military Court for military jury duty.

36 Application by military juror for withdrawal of summons

(1) If a person has been served with a summons and has informed the Registrar that he or she is not liable to serve on the military jury, or ought to be excused from serving on the military jury, the Registrar may:

(a) if the Registrar is satisfied that the person is not liable to serve as a military juror or should be excused from military jury service — withdraw the summons; or

(b) refuse to withdraw the summons.

(2) If the Registrar has refused to withdraw a summons under subrule (1), the military juror may apply in writing to a Military Judge for a review of the decision.

(3) If the Military Judge decides that the person is not liable to serve as a military juror or should be excused:

(a) the summons issued to the military juror is taken to be withdrawn; and

(b) the Registrar must appoint a reserve military juror to the military jury.

36A Obligation to exchange information about military jurors and reserve military jurors who may be unsuitable

If a party to a military trial obtains information about a person appointed as a military juror or reserve military juror that may indicate that the person is unsuitable to serve as a juror at the trial, that party must disclose that information to the Registrar and the other party to the proceedings as soon as practicable.

36B Registrar to make results of screening process available

If requested by a party to a military trial, the Registrar must make the results of the screening process mentioned in rule 33I available to each party.

37 Objection by accused person on grounds of ineligibility etc

At any time before a military jury is assembled the accused person or the Director of Military Prosecutions may lodge an objection with the Registrar to any military juror or reserve military juror, on the ground that the military juror or reserve military juror:

(a) is ineligible; or

(b) is, or is likely to be, biased; or

(c) is likely to be thought, on reasonable grounds, to be biased.

38 Objection by accused person on ground of bias

If the Registrar upholds or overrules an objection on the ground of bias, the Registrar must notify the Military Judge before the hearing commences.

39 Military juror etc must notify belief of own bias

(1) A military juror or reserve military juror who, during the trial, believes or becomes aware that he or she:

(a) is biased; or

(b) is likely to be biased; or

(c) is likely to be thought, on reasonable grounds, to be biased;

must immediately notify the Military Judge.

(2) If a military juror notifies a Military Judge in accordance with subrule (1), the juror must be questioned on oath or affirmation about the bias or potential bias, in the absence of the other military jurors, by:

(a) the Military Judge; and

(b) by the leave of the Military Judge — the prosecutor or the defending officer.

40 Replacement of military jurors etc by Registrar

At any time before a military jury is assembled, the Registrar may revoke the appointment of a military juror or reserve military juror and appoint a replacement.

41 Replacement of military jurors etc by Military Judge

(1) After a military jury is assembled, and before the military jury is sworn or affirmed, the Military Judge may revoke the appointment of a military juror or reserve military juror and appoint a replacement.

(2) The Military Judge must appoint a replacement juror from among any available reserve military jurors.

Part 10 Listing of hearing

42 Listing a hearing — trials

(1) The Registrar must issue a listing notice in accordance with this rule and any practice notes made for this purpose if:

(a) the Registrar refers a charge to the Australian Military Court under subsection 118 (1) of the Act; and

(b) the Chief Military Judge has nominated a Military Judge to try the charge; and

(c) the accused person:

(i) has consented to the issue of a listing notice; or

(ii) has responded to a notice given by the Registrar under rule 23 concerning the accused person’s rights of election; or

(iii) has not responded, within the time allowed under rule 23, to a notice given by the Registrar concerning the accused person’s rights of election.

(2) For a military jury trial, the listing notice must be accompanied by a list containing the name, rank and service number of the military jurors appointed.

(3) A listing notice must fix, or provide for the fixing of, the date, time and place for the hearing of the charge or case.

(4) At any time before the trial commences the Registrar may amend, vary or replace a listing notice if, in the opinion of the Registrar, it is appropriate to do so.

(5) The Registrar must give a copy of the listing notice, or a variation or replacement, to:

(a) the Military Judge nominated to try the charge; and

(b) the accused person; and

(c) the accused person’s superior authority; and

(d) the Director of Military Prosecutions; and

(e) the appointed defending officer; and

(f) the Director of Defence Counsel Services.

42A Listing a hearing — appeals from summary authorities

(1) The Registrar must issue a listing notice in accordance with this rule and any practice notes made for this purpose if:

(a) either:

(i) an application for an extension of time to appeal has been lodged under paragraph 161 (2) (b) of the Act; or

(ii) an appeal has been lodged under subsection 161 (1) of the Act; and

(b) the Australian Military Court has decided that the application for an extension of time to appeal, or the appeal, is to be determined by the holding of a hearing; and

(c) the Chief Military Judge has nominated a Military Judge to hear the application or appeal.

(2) A listing notice must fix, or provide for the fixing of, the date, time and place for the hearing of the application or appeal.

(3) At any time before the hearing commences the Registrar may amend, vary or replace a listing notice if, in the opinion of the Registrar, it is appropriate to do so.

(4) The Registrar must give a copy of the listing notice, or a variation or replacement, to:

(a) the Military Judge nominated to hear the application or appeal; and

(b) the person who made the application or lodged the appeal; and

(c) the person’s superior authority (if any); and

(d) the person’s defending officer; and

(e) the Director of Military Prosecutions; and

(f) the Director of Defence Counsel Services.

Part 11 Trial provisions

43 Employment of recorders etc

(1) The Registrar must arrange for a person to act in the position of a recorder.

(1A) If the following positions are required at proceedings before the Australian Military Court, the Registrar must arrange for persons to act in the positions:

(a) an interpreter;

(b) a military jury court officer.

Objections

(2) At any time during the trial the accused person or the prosecution may enter an objection to a recorder, an interpreter or a military jury court officer on the ground of:

(a) bias; or

(b) likelihood of bias; or

(c) competence.

Oath etc

(2A) If a recorder or an interpreter is required during the hearing of an appeal, or an application for an extension of time to appeal, the provisions of subrule 43 (2) apply in relation to those hearings.

(3) If the Military Judge is satisfied that the accused person or the prosecuting officer has substantiated an objection under this rule, the Military Judge must:

(a) allow the objection; and

(b) request the Registrar to arrange for a replacement recorder, interpreter or military jury court officer, as the case may be.

(4) Before a person begins to act as a recorder, interpreter or military jury court officer, the Military Judge must administer, or cause to be administered, an oath or affirmation to that person before the person begins so to act.

(5) The oath or affirmation to be taken or made by a person for this rule is an oath or affirmation:

(a) in the case of a person who is to act as a recorder — that the person will, to the best of the person’s ability, truly record or transcribe, or both (as the case may be), the evidence given before the Australian Military Court and such other matters as may be required, and, if a transcript is required to be made, will deliver to the Registrar a true transcript of the same; or

(b) in the case of a person who is to act as an interpreter — that the person will, to the best of the person’s ability, truly interpret and translate as required; or

(c) in the case of a person who is to act as a military jury court officer — that the person:

(i) will keep the military jury in his or her charge, subject to any directions by the Military Judge; and

(ii) will not allow any person to speak to a military juror about the issues before the Australian Military Court; and

(iii) will not speak to any military juror concerning the issues before the Australian Military Court.

44 Administration of oaths and affirmations

The Military Judge may permit a person, or direct that a person be permitted, to take an oath or affirmation in such manner as the person taking the oath declares to be binding on the person’s conscience.

45 Application by accused person or prosecuting officer for adjournment of proceedings

The accused person or the prosecuting officer may, at any time, apply to the Military Judge, on any reasonable grounds, for an adjournment of the proceedings before the Australian Military Court.

46 Objection by accused person to military juror

(1) Before the members of the military jury are sworn or affirmed, the name, rank and service number of each member must be read to the accused person and the accused person must be asked whether he or she objects to be tried by any of them.

(2) An objection to a military juror may only be made in accordance with this rule.

(3) At any time after the military jury is assembled, and before the military jury is sworn or affirmed, the accused person or prosecuting officer may object to any member or reserve member of the military jury on the ground that the military juror:

(a) is biased; or

(b) is likely to be biased; or

(c) is likely to be thought, on reasonable grounds, to be biased.

(4) If an objection is made under subrule (3) the Military Judge must:

(a) uphold the objection; or

(b) overrule the objection.

(5) This rule also applies in relation to a reserve member or new member who is appointed to a military jury in place of another member in the same manner as it applies in relation to an original member of the military jury.

(6) A Military Judge may question a military juror on oath or affirmation, in the absence of the other military jurors, to determine whether the military juror is biased, likely to be biased, or likely to be thought on reasonable grounds to be biased.

(7) With the leave of the Military Judge, the prosecuting officer and the defending officer may question a military juror on oath or affirmation, in the absence of the other military jurors, about the matters referred to in subsection (6).

47 Swearing of military jury

(1) After all objections by the accused person to members of the military jury have been dealt with and after the arraignment of the accused person, the Military Judge must administer, or cause to be administered, an oath or affirmation to each member of the military jury in the presence of the accused person.

(2) The oath or affirmation to be taken or made by a person for this rule is an oath or affirmation that the person:

(a) will duly administer justice according to law without fear or favour, affection or ill‑will, that the person will well and truly try the accused person or persons before the Australian Military Court according to the evidence; and

(b) that the person will not disclose the vote or opinion of any member of the military jury unless required to do so in due course of the law.

48 Military jury to elect spokesperson

(1) At the direction of a Military Judge, a military jury must elect 1 of its members as a spokesperson.

(2) A spokesperson must speak on behalf of the military jury:

(a) in announcing a finding or a decision; and

(b) in any other communications with the Military Judge.

48A Military jury permitted to separate during the trial

Unless the Military Judge orders otherwise, a military jury is permitted to separate at any time before they retire to consider their verdict.

49 Manner of voting of military jury

On any question to be determined by the military jury, the members of the military jury must vote orally, in order of seniority commencing with the most junior in rank.

50 Right of accused person and prosecuting officer to argue and adduce evidence on matter to be decided by the Australian Military Court

The accused person and the prosecuting officer may properly argue, and adduce evidence relevant to, any question presented to the Australian Military Court for decision.

51 Pleading to charges and arraignment

(1) If there is more than 1 charge against an accused person before the Australian Military Court, the person must be required to plead separately to each charge.

(2) If:

(a) there is more than 1 charge against an accused person before the Australian Military Court; and

(b) the charges are contained in more than 1 charge sheet;

the Military Judge must arraign and try the person on the charge or charges in a charge sheet (other than taking action under Part IV of the Act) before the Military Judge arraigns and tries the person on a charge in another charge sheet.

(3) If an accused person is convicted by the Australian Military Court of a charge which is 1 of 2 or more charges stated in the charge sheet in the alternative, that person must not be convicted by the Australian Military Court of any charge which is alternative to the charge with which that person has been convicted and which is placed after it on the charge sheet.

52 Pleading — previous acquittal or conviction

If, at a hearing of the Australian Military Court, the accused person raises under section 144 of the Act the defence of a previous acquittal or conviction, the Military Judge must determine the issue in the absence of the military jury.

53 Opening address by prosecution

Before the first prosecution witness is called to give evidence at a trial, the prosecuting officer must make an opening address to the Australian Military Court, stating briefly:

(a) the elements of the offence charged that have to be proved before the accused person can be convicted; and

(b) the alleged facts upon which the prosecuting officer will rely to support the charge; and

(c) the nature of the evidence that the prosecuting officer proposes to adduce to prove the alleged facts.

54 Australian Military Court may direct substitution of plea of not guilty

If at any time during a trial it appears to the Military Judge that an accused person who has pleaded guilty does not understand the effect of that plea, the Military Judge must substitute a plea of not guilty and refer the matter to the Registrar.

55 Submission of no case to answer

(1) At the close of the case for the prosecution, the accused person may submit to the Military Judge in respect of a charge that the evidence adduced is insufficient to support the charge.

(2) If the case mentioned in subrule (1) is before a military jury, the submissions of the accused person are to be made in the absence of the military jury.

56 Opening address by defence

If the accused person intends to call another person as a witness to give evidence as to the facts of the case, the accused person may, before he or she calls the first such witness, make an opening address to the Australian Military Court stating the nature and general effect of the evidence that the person proposes to adduce in the person’s defence.

57 Closing addresses

(1) After all the evidence has been given, the accused person and the prosecuting officer may each make a closing address to the Australian Military Court.

(2) Any closing address by the prosecuting officer must be made before the closing address (if any) by the accused person.

(3) Subject to subrule (4), if 2 or more accused persons are charged in the same charge sheet, their closing addresses must be made in the order in which their names are listed on the charge sheet.

(4) When 2 or more accused persons are represented by the same person, that person may make 1 closing address only.

58 Summing up and military jury deliberation

(1) After the closing addresses (if any) at a trial by the Australian Military Court sitting with a military jury, the Military Judge must sum up the evidence and direct the military jury on the law relating to the case.

(2) After the Military Judge has summed up, the military jury must retire to consider its verdict.

(3) The military jury must consider its verdict in private.

(4) The Military Judge may permit the military jury to return to the court to ask the Military Judge for further directions on matters of law or fact.

(5) All communications between the military jury and the Military Judge must be conducted in open court.

(5A) The Military Judge may permit the military jury to separate at any time after they retire to consider their verdict.

(5B) The Military Judge may refuse to allow an exhibit to be left with military jurors after they retire to consider a verdict if satisfied that the safety or security of the exhibit or the military jurors may be put at risk.

(5C) If the Military Judge considers it appropriate, the Military Judge may give a direction of law to the military jury in writing.

(5D) If the Military Judge considers it appropriate and practicable to do so, the Military Judge may, at the request of the military jury, arrange for a copy of all or any part of the transcript of evidence at the trial to be supplied to the members of the military jury.

(6) When the military jury has reached a verdict:

(a) the Military Judge must direct the clerk of the court to reassemble the court; and

(b) the spokesperson for the military jury must announce the verdict in open court.

(7) The Military Judge must discharge the military jury if:

(a) the military jury has deliberated for at least 8 hours and has not reached a verdict; and

(b) the Military Judge is satisfied that there is no prospect of the jury reaching a unanimous or majority verdict.

58A Questioning of military juror — exposure to prejudicial material

(1) A Military Judge may question a military juror on oath or affirmation, in the absence of the other military jurors, to determine:

(a) whether the military juror has read, seen or heard allegedly prejudicial material published or broadcast during the military trial; and

(b) whether the military juror has been influenced by the material.

(2) With the leave of the Military Judge, the prosecuting officer and the defending officer may question a military juror on oath or affirmation, in the absence of the other military jurors, about the matters referred to in subsection (1).

58B Questioning of military juror — improper inquiries about trial matters

(1) A Military Judge may question a military juror on oath or affirmation, in the absence of the other military jurors, to determine whether the military juror has made any inquiry for the purpose of obtaining information about the accused person, or any matters relevant to the trial, other than in the proper exercise of his or her functions as military juror.

(2) With the leave of the Military Judge, the prosecuting officer and the defending officer may question a military jury on oath or affirmation, in the absence of the other military jurors, about the matters referred to in subsection (1).

(3) For the purpose of this rule, making an inquiry includes the following:

(a) asking a question of any person;

(b) conducting any research, for example, by searching an electronic database for information (such as by using the Internet);

(c) viewing or inspecting any place or object;

(d) conducting an experiment;

(e) causing someone else to make an inquiry.

59 Discharge of military jury

(1) The Military Judge must discharge the military jury if the military jury finds the accused person:

(a) guilty; or

(b) not guilty; or

(c) was suffering from a mental impairment at the time of the act or omission that is the subject of the charge, that caused the accused person not to be responsible, in accordance with the law, for the act or omission.

(2) The Military Judge must discharge the military jury from giving a verdict in the matter if, after the matter has been given into the charge of the military jury:

(a) the accused person pleads guilty; and

(b) the Military Judge accepts the plea.

(3) The Military Judge may discharge the military jury or a military juror if he or she becomes aware of an irregularity in the behaviour or conduct of the military jury.

(4) The Military Judge may discharge the military jury if a member or members of the military jury are unavailable.

60 Evidence as to material facts after conviction on plea of guilty

If, on the trial of a charge, the accused person pleads guilty and is convicted:

(a) the prosecuting officer must inform the Military Judge of the material facts that show the nature and gravity of the offence; and

(b) the convicted person may dispute any such facts; and

(c) the convicted person and the prosecuting officer may adduce evidence in relation to any fact so disputed.

61 Convicted person’s record etc and plea in mitigation

(1) After the conviction of a person by the Australian Military Court, the prosecuting officer must cause evidence to be adduced, or must make submissions, about:

(a) if the convicted person is a member of the Defence Force or was a member of the Defence Force at the time of commission of the offence of which the person has been convicted — relevant particulars of the person’s service in the Defence Force; and

(b) particulars of any previous convictions of the convicted person for service offences, civil court offences and overseas offences; and

(c) matters relevant to punishment and orders that might be imposed under Part IV of the Act, the Crimes Act 1914 and the Criminal Code Act 1995; and

(d) such other matters relevant to determining action under Part IV of the Act in relation to the convicted person as the Australian Military Court requires.

(2) The convicted person may:

(a) give evidence, and call witnesses to give evidence, as to the convicted person’s character and in mitigation of punishment or orders; and

(b) address the Australian Military Court in mitigation of punishment or orders.

(3) Rule 29 applies to a witness (including the convicted person) who gives evidence under this rule as if a reference in that rule to the accused person were a reference to the convicted person.

Part 12 Documents and exhibits

62 Exhibits

(1) Subject to subrule (3), any document or thing admitted in evidence at a trial, a hearing of an appeal, or a hearing of an application for an extension of time to appeal, by the Military Judge must be made an exhibit.

(3) If the Australian Military Court is satisfied that a copy of, or an extract or relevant parts from, a document or book admitted in evidence is correct, the Military Judge may make that copy or extract an exhibit in place of the original document or book.

63 Inspection of exhibits before trial

(1) An accused person who has been sent a list of exhibits in accordance with paragraph 25 (3) (d) must, on application by that person to the Registrar or Military Judge, be permitted by the custodian of the exhibit to inspect and to copy any exhibit.

(2) The custodian of the exhibit must ensure that proper precautions are taken for the safety of the exhibit during an inspection under subrule (1).

Part 13 Record of proceedings

64 Record of proceedings before Australian Military Court — trials

(1) The proceedings before the Australian Military Court in a trial must, if practicable, be recorded verbatim.

(2) If the proceedings before the Australian Military Court are not recorded verbatim, they must be recorded in sufficient detail to enable the course of the proceedings to be followed, and the merits of the case to be judged, from the record, and in particular:

(a) subject to paragraph (b), the evidence must be taken down in narrative form and as nearly as possible to the words used; and

(b) if:

(i) the prosecution or the defence so requests and the Military Judge so directs; or

(ii) in any other case, the Military Judge so directs;

a particular question and the answer to it must be taken down verbatim; and

(c) a record must be made of the proceedings relating to each objection, submission or application; and

(d) subject to paragraph (e), any address by the prosecution or the defence or the summing up by the Military Judge, if not in writing, must be recorded to such extent as the Military Judge directs; and

(e) if the prosecution or the defence so requires, a record must be made of any particular point in the address by the prosecution or the defence or summing up by the Military Judge.

(3) If the proceedings are recorded verbatim, the recorder must prepare or cause to be prepared a transcript in writing, which must be authenticated by the person who made the transcript.

(4) The written record of rulings and directions must be certified in writing as true and correct by the Military Judge as soon as practicable after the trial.

(5) The Chief Military Judge must keep a proper record of the proceedings of the Australian Military Court.

(6) The proper record must be kept in the custody of:

(a) the Chief Military Judge; or

(b) a person nominated in writing by the Chief Military Judge.

64A Record of proceedings before Australian Military Court — appeals from summary authorities

(1) The proceedings before the Australian Military Court in:

(a) an application for an extension of time to appeal; or

(b) an appeal;

must, if practicable, be recorded verbatim.

(2) If the proceedings are not recorded verbatim, they must be recorded in sufficient detail to enable the course of the proceedings to be followed, and the merits of the case to be judged, from the record.

(3) If the proceedings are recorded verbatim, the recorder must ensure that a transcript is prepared in writing, which must be authenticated by the person who made the transcript.

(4) The written record of rulings and directions must be certified in writing as true and correct by the Military Judge as soon as practicable after the determination of the application or appeal.

65 Inspection of record of proceedings etc during trial

During a trial by the Australian Military Court, the accused person or the prosecuting officer may, with the leave of the Military Judge:

(a) have a particular part of the record of proceedings read or played to the accused person or the prosecuting officer; and

(b) if proper precautions are taken for its safety, inspect an exhibit.

66 Loss of original record of proceedings

If, at any time, the whole or any part of the original record of proceedings before the Australian Military Court is lost, a valid and sufficient record of the proceedings for all purposes may be made by the signature of the Military Judge being affixed to a copy of the record of proceedings.

Part 14 Procedure for imposing punishment in case of breach of undertaking to be of good behaviour

67 Application of Part 14

This Part applies in relation to proceedings before the Australian Military Court for the purpose of imposing punishment on a convicted person in respect of a service offence in relation to which the convicted person gave, in accordance with subsection 75 (2) of the Act, an undertaking to the Australian Military Court to be of good behaviour for 12 months.

68 Evidence as to material facts, convicted person’s record etc and plea in mitigation

After the service offence mentioned in rule 67 has been read to the Military Judge, action must be taken in accordance with rules 60 and 61.

Part 14A Appeals from conviction by summary authority

Division 1 Notices etc relating to appeals

68A Lodgment of notice of appeal etc

(1) For paragraph 161 (2) (b) of the Act, the following persons are prescribed:

(a) the commanding officer of the convicted person;

(b) if a convicted person is serving a period of detention — the Commandant of the Defence Force Corrective Establishment.

(2) An application to the Australian Military Court for an extension of time to appeal must be:

(a) signed by the convicted person; and

(b) lodged with the Court in a form required by any practice notes made for this purpose.

(3) An application to the Australian Military Court for an extension of time to appeal must be accompanied by a notice of appeal signed by the convicted person.

(4) A notice of appeal to the Australian Military Court must be lodged with the Court in a form required by any practice notes made for this purpose.

68B Notification of appeal or application for extension of time to appeal

(1) If a person lodges an application to the Australian Military Court for an extension of time to appeal, the Registrar must give a copy of the application to:

(a) the Chief Military Judge; and

(b) the Director of Military Prosecutions; and

(c) the summary authority who convicted the person; and

(d) the Director of Defence Counsel Services.

(2) If a person lodges a notice of appeal to the Australian Military Court, the Registrar must give a copy of the notice to:

(a) the Chief Military Judge; and

(b) the Director of Military Prosecutions; and

(c) the summary authority who convicted the person; and

(d) the Director of Defence Counsel Services.

68C Discontinuance of appeal

(1) A person may discontinue an application for an extension of time to appeal or an appeal.

(2) The person must lodge a notice of discontinuance with the Registrar.

(3) The notice of discontinuance must be lodged with the Court in a form required by any practice notes made for this purpose.

(4) If the convicted person lodges a notice of discontinuance, the appeal is taken to have been determined against the convicted person.

68D Decision on application for extension of time to appeal

(1) For subparagraph 161 (2) (b) (ii) of the Act, a Military Judge must have regard to the following matters in deciding whether to allow a person an extension of time to appeal to the Australian Military Court:

(a) whether the person received legal advice in connection with the person’s right of appeal to the Court;

(b) if the person received legal advice of that kind — when the person received the legal advice;

(c) any other matter the Military Judge considers relevant to the application.

(2) The Military Judge may give directions about how the application is to be determined.

(3) After the Military Judge makes a decision on the application:

(a) the Military Judge must give the Registrar a copy of the decision and the reasons for the decision; and

(b) the Registrar must give a copy of the decision, and the reasons for the decision, to:

(i) the convicted person; and

(ii) the convicted person’s defending officer; and

(iii) the summary authority who convicted the person; and

(iv) the Director of Military Prosecutions; and

(v) the Director of Defence Counsel Services.

(4) If the Military Judge grants the application, then, for section 176 of the Act, the convicted person is taken to have lodged an appeal with the Australian Military Court on the date the application is granted.

68E Information relating to appeal

(1) The commanding officer of the convicted person who has lodged the appeal or application for an extension of time to appeal must give the Registrar a certified copy of the following:

(a) the record of the proceedings of the summary authority who convicted the person, including the record of evidence received by the summary authority;

(b) the conduct record of the convicted person;

(c) the evidence, including any object or thing received by the summary authority as real evidence for the purposes of the matter;

(d) any documents received from a reviewing authority, including any notice recommending or relating to an appeal;

(e) any other documents relating to the proceedings.

(2) The commanding officer must give the information within 14 days of a request by the Registrar to provide the information.

Division 2 Conduct of appeal

68F How appeal is conducted

(1) The Military Judge nominated to determine an appeal may give directions about how the appeal is to be conducted.

Examples

1 Conducting the appeal on the papers.

2 The acceptance of submissions by audio or video means.

(2) The Military Judge must have regard to any practice notes made for this purpose before giving a direction.

68G Amended grounds of appeal

(1) In the determination of an appeal the convicted person is not limited to the grounds set out in the notice of appeal but, if a new ground of appeal is raised, the Military Judge may:

(a) adjourn the determination of the appeal; and

(b) give directions relating to the new ground of appeal, including directions relating to submissions about the new ground of appeal.

(2) Subrule (1) applies whether or not the convicted person has notified the Registrar or the Director of Military Prosecutions of the proposed ground of appeal.

(3) The convicted person must lodge any amended grounds of appeal:

(a) if the Military Judge makes directions about the time allowed — within that time; or

(b) if the Military Judge does not make directions about the time allowed — before the appeal is determined.

68H New evidence

New evidence for the purposes of an appeal must be given by affidavit unless the Military Judge who will determine the appeal directs otherwise.

Note The Court must receive and consider new evidence if the evidence satisfies the requirements of subsection 163 (1) of the Act.

68I Report by summary authority

(1) If a Military Judge directs a summary authority to give the Registrar a written report about the summary authority proceedings to which the appeal relates, the summary authority must comply with the direction.

(2) If the Military Judge directs the summary authority to include in the report comment about a specified aspect of the summary authority proceedings, the summary authority must comply with the direction.

(3) The summary authority must give the report within the period directed by the Military Judge.

(4) The Registrar must as soon as practicable after receiving the report, give a copy of the report to:

(a) the convicted person; and

(b) the convicted person’s defending officer; and

(c) the Director of Military Prosecutions.

Division 3 Decision on appeal

68J Determination of appeal

(1) A Military Judge may determine an appeal in favour of a convicted person on grounds that were not set out in the notice of appeal or that were not argued by the convicted person.

(2) If:

(a) the convicted person fails to comply with a direction given by the Military Judge; and

(b) the Military Judge is satisfied that it would not be unjust to proceed with the determination of the appeal in the absence of compliance with the direction;

the Military Judge may determine the appeal on the basis of the material then before the Court.

68K Reasons for decision

After a Military Judge determines an appeal:

(a) the Military Judge must give the Registrar a copy of the decision and the reasons for the decision; and

(b) the Registrar must give a copy of the decision, and the reasons for the decision, to:

(i) the convicted person; and

(ii) the convicted person’s defending officer; and

(iii) the summary authority who convicted the person; and

(iv) the Director of Military Prosecutions; and

(v) the Director of Defence Counsel Services.

68L New trial

(1) If:

(a) the Australian Military Court orders a new trial of a person under section 165 of the Act; and

(b) the Director of Military Prosecutions requests the Registrar, under subsection 103 (2A) of the Act, to refer the charge to the Australian Military Court for trial;

the charge is to be dealt with in accordance with the Act and these Rules.

Note Section 118 of the Act provides for the referral of a charge to the Australian Military Court and the nomination of a Military Judge to hear the charge.

(2) Subrule (1) does not limit the power of the Director of Military Prosecutions to act under section 103A of the Act.

Part 15 Miscellaneous

69 Practice notes

The Chief Military Judge may issue practice notes concerning:

(a) the practice and procedure to be adopted in proceedings before the Australian Military Court; and

(b) administrative matters relating to the administration of trials.

70 Adjournments

(1) The Military Judge may, at any stage in the proceedings, adjourn the proceedings, if it appears to the Military Judge that it is necessary to do so.

(2) An adjournment under subrule (1) may be made generally, or to a day specified by the Military Judge, and on such terms as the Military Judge orders.

(3) A general adjournment must be listed or relisted by the Registrar no later than 12 months after the adjournment.

71 Lodging or giving documents to Australian Military Court or Registrar

(1) This rule applies to a document that is authorised or required by these Rules to be lodged with or otherwise given to the Australian Military Court or the Registrar.

(2) The document may be lodged or given:

(a) by personally delivering the document to the Registrar; or

(b) by posting the document to the address mentioned in subrule (9); or

(c) by fax to the fax number mentioned in subrule (9); or

(d) by email to the address mentioned in subrule (9).

(3) If the document is:

(a) an affidavit; and

(b) lodged or given by email;

it must be lodged or given by sending an image of the completed and signed affidavit as an attachment to the email.

(4) If the document:

(a) is not an affidavit; and

(b) is required by these Rules to be signed;

the document is taken to have been duly signed if the person’s name is printed where his or her signature would otherwise appear.

(5) If the document is lodged or given by personal delivery to the Registrar, the document is taken to be lodged or given at the time of delivery of the document.

(6) If the document is lodged or given by post, the document is taken to be lodged or given at the time when it is received at the appropriate address for these Rules.

(7) If the document is lodged or given by fax:

(a) the document is taken to be lodged or given on successful completion of the transmission; and

(b) the person lodging or giving the document must:

(i) retain the original of the document; and

(ii) retain a paper copy of the receipt or delivery notice of the fax; and

(iii) produce the original document or the receipt or delivery notice as directed by the Australian Military Court.

(8) If the document is lodged or given by email:

(a) the document must be lodged or given in Portable Document Format, or another format approved by the Chief Military Judge; and

(b) the document must, to the extent practicable, be in a form which complies with these Rules; and

(c) the document must be capable of being printed with the content and in the form in which it was created; and

(d) the document is taken to be lodged or given at the time of receipt of the email; and

(e) the person lodging or giving the document must:

(i) retain a paper copy of the receipt or delivery notice of the email; and

(ii) retain a paper copy of the document; and

(iii) produce the copy of the document as directed by the Australian Military Court.

Note The Chief Military Judge may approve another format in a practice note issued under rule 69.

(9) The Registrar must approve:

(a) 1 or more postal addresses for the purpose of receiving documents under these Rules; and

(b) 1 or more fax numbers for the purpose of receiving documents under these Rules; and

(c) 1 or more email addresses for the purpose of receiving documents under these Rules.

(10) For paragraph (9) (a), the address of the Registrar for internal departmental mail is taken to be an approved address.

72 Lodging or giving documents to person other than Australian Military Court or Registrar

(1) This rule applies to a document that is authorised or required by these Rules to be lodged with or otherwise given to a person other than the Australian Military Court or the Registrar.

(2) The document may be lodged or given:

(a) by personally delivering the document to the person; or

(b) by posting the document to the address given by the person for the purpose of receiving the document; or

(c) by fax to the fax number given by the person for the purpose of receiving the document; or

(d) by email to the address given by the person for the purpose of receiving the document.

(3) A postal address, fax number or email address given by a convicted person in:

(a) a notice of appeal; or

(b) an application to extend time to appeal;

is taken to be a postal address, fax number or email address for subrule (2) unless the convicted person gives another address or number for the purpose of receiving the document.

(4) A postal address, fax number or email address of a member of the Defence Force who is not a convicted person that is the member’s usual address at their unit, ship, base or command is taken to be a postal address, fax number or email address for subrule (2) unless the member gives another address or number for the purpose of receiving the document.

(5) If the document is:

(a) an affidavit; and

(b) lodged or given by email;

it must be lodged or given by sending an image of the completed and signed affidavit as an attachment to the email.

(6) If the document:

(a) is not an affidavit; and

(b) is required by these Rules to be signed;

the document is taken to have been duly signed if the person’s name is printed where his or her signature would otherwise appear.

(7) If the document is lodged or given by personal delivery to the person, the document is taken to be lodged or given at the time of delivery of the document.

(8) If the document is lodged or given by post, the document is taken to be lodged or given at the time when it is received at the appropriate address for these Rules.

(9) If the document is lodged or given by fax:

(a) the document is taken to be lodged or given on completion of the transmission; and

(b) the person lodging or giving the document must:

(i) retain the original of the document; and

(ii) retain a paper copy of the receipt or delivery notice of the fax; and

(iii) produce the original document or the receipt or delivery notice as directed by the Australian Military Court.

(10) If the document is lodged or given by email:

(a) the document must be lodged or given in Portable Document Format, or another format approved by the Chief Military Judge; and

(b) the document must, to the extent practicable, be in a form which complies with these Rules; and

(c) the document must be capable of being printed with the content and in the form in which it was created; and

(d) the document is taken to be lodged or given at the time of receipt of the email; and

(e) the person lodging or giving the document must:

(i) request a receipt or delivery notice for the email; and

(ii) retain a paper copy of the document and the receipt or delivery notice; and

(iii) produce the copy of the document or the receipt or delivery notice as directed by the Australian Military Court.

Note The Chief Military Judge may approve another format in a practice note issued under rule 69.

73 Relief from Rules

The Australian Military Court may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance arises.

74 Proceedings wanting or in doubt

(1) If a person wishes to take a step in a proceeding, and:

(a) the manner or form of procedure is not prescribed by the Act or these Rules; or

(b) the person is in doubt as to the manner or form of procedure;

the Australian Military Court may give directions.

(2) A step taken in accordance with the directions of the Court is taken to be regular and sufficient.