141Applications and objections

141  Applications and objections  (1) At any time before an accused person is asked to plead at a trial by a service tribunal, the accused person:  (a) may do any one or more of the following:  (i) apply for an adjournment on the ground that he or she has not had an adequate opportunity to prepare his or her defence or to choose a person to represent or advise the accused person;  (ii) apply to secure the attendance of witnesses or additional witnesses on his or her behalf;  (iii) if he or she is charged with more than one service offence, apply for each charge to be heard separately;  (iv) if he or she is charged with one or more other persons, apply to be dealt with separately on the ground that he or she would otherwise be prejudiced in his or her defence;  (v) make such other applications as he or she considers relevant in connection with the trial; and  (b) may enter an objection to the charge on any ground, including any of the following grounds:  (i) that, by virtue of subsection 9C(2) or section 144, he or she is not liable to be tried by the service tribunal for the service offence with which he or she has been charged;  (ii) that the charge was made in contravention of section 96;  (iii) that he or she has, in the exercise of the royal prerogative of mercy, been pardoned for the service offence with which he or she has been charged or for a civil court offence that is substantially the same offence;  (iv) that the charge does not disclose a service offence or is otherwise wrong in law;  (v) that the service tribunal does not have jurisdiction;  (vi) in the case of a trial by a summary authority—that the summary authority is not permitted to try the charge because of subsection 108A(1).  (2) At any time before a court martial is sworn or affirmed, the accused person may enter an objection to any member or reserve member of the court martial on the ground that the member:  (a) is ineligible; or  (3) At any time before an accused person is asked to plead at a trial by a court martial, the accused person may enter an objection to the judge advocate on the ground that the judge advocate:  (a) is ineligible; or  (4) At any time before an accused person is asked to plead at a trial by a service tribunal, other than a court martial, the accused person may:  (a) enter an objection to the service tribunal on the ground that the service tribunal is ineligible; or  (b) except in the case of a trial by a summary authority, enter an objection to the service tribunal on the ground that the service tribunal:  (i) is, or is likely to be, biased; or  (ii) is likely to be thought, on reasonable grounds, to be biased; but nothing in this subsection shall be taken, by implication, to authorize trial by a summary authority who:  (c) is, or is likely to be, biased; or  (d) is likely to be thought, on reasonable grounds, to be biased.  (4A) For the purposes of this section, a summary authority is not to be regarded:  (a) as biased; or  (b) as likely to be biased; in relation to the trial of an accused person merely because the summary authority is the commanding officer of the accused person.  (4B) For the purposes of this section, the circumstance that a summary authority is the commanding officer of an accused person is not, without more, a reasonable ground for thinking that, in relation to the trial of the accused person, the summary authority is biased.  (5) Where:  (a) an accused person makes an application under paragraph (1)(a); and  (b) in the case of a court martial, the judge advocate of the court martial, or in any other case, the service tribunal is satisfied that the interests of justice require that the application be granted; the service tribunal or the judge advocate must grant the application.  (6) Where:  (a) an accused person enters an objection under paragraph (1)(b) or subsection (2), (3) or (4); and  (b) in the case of a court martial, the judge advocate of the court martial, or in any other case, the service tribunal is satisfied that the accused person has substantiated his or her objection; the service tribunal or the judge advocate must allow the objection.  (7) An application or objection under subsection (1), (2) or (3) with respect to a trial by a court martial may be notified to the judge advocate of the court martial at any time after the making of the order convening the court martial and, on the notification of such an application or objection, the judge advocate shall sit without the members of the court martial for a hearing of that application or objection.  (8) Where a Defence Force magistrate or a judge advocate grants an application, or allows an objection, under this section, the Defence Force magistrate or the judge advocate may refer the charge against the accused person to the Director of Military Prosecutions.  (9) Where a summary authority grants an application, or allows an objection, under this section, the summary authority may refer the charge against the accused person to another summary authority.