26Substitution of conviction for alternative offence

#### 26 Substitution of conviction for alternative offence (1) Where the Tribunal quashes the conviction of a person of a service offence (in this section referred to as the original offence) but considers: (a) that the court martial or the Defence Force magistrate could in the proceedings have found the person guilty of another service offence, being: (i) a service offence that is an alternative offence, within the meaning of section 142 of the Defence Force Discipline Act 1982, in relation to the original offence; or (ii) a service offence with which the person was charged in the alternative and in respect of which the court martial or the Defence Force magistrate did not record a finding; and (b) that the court martial or the Defence Force magistrate, by reason of its or his or her finding that the person was guilty of the original offence, must have been satisfied beyond reasonable doubt of facts that prove that the person was guilty of the other service offence; the Tribunal may substitute for the conviction of the original offence a conviction of the other service offence. (2) Where under subsection (1) the Tribunal substitutes for the conviction of the original offence a conviction of another service offence, the Tribunal may take such action in relation to the convicted person as could have been taken under Part IV of the Defence Force Discipline Act 1982 by court martial or the Defence Force magistrate that convicted the convicted person of the original offence if the court martial or Defence Force magistrate had convicted him or her of that other service offence, but the Tribunal: (a) shall not impose a punishment for that other service offence or make a reparation order with respect to that other service offence unless a punishment was imposed for the original offence or a reparation order was made with respect to the original offence, as the case may be; and (b) shall not impose a punishment for that other service offence that is more severe than the punishment that was imposed for the original offence and shall not make a reparation order with respect to that other service offence that is for an amount that exceeds the amount of the reparation order that was made with respect to the original offence. (3) Where, under subsection (2), the Tribunal imposes a punishment of imprisonment or detention, that punishment shall, unless the Tribunal otherwise directs, be deemed to have commenced from the time from which it would have commenced if it had been imposed in the proceedings from which the appeal was brought.