Australian Military Regulations (Amendment) (Cth)

STATUTORY RULES.

1965. No. 61.

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REGULATION UNDER THE DEFENCE ACT 1903-1964.*

I, THE Administrator of the Government of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Defence Act 1903-1964.

Dated this twenty-first day of May, 1965

HENRY ABEL SMITH

Administrator.

By His Excellency’s Command,

Minister of State for the Army.

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Amendments of the Australian Military Regulations. 

Modification of A. A. and R.P.— A. A. 48 and 49; R. P. 17, 19, 22, 25, 39a, 40, 103, 103a and 106.

1. Regulation 299 of the Australian Military Regulations is amended—

(a) by omitting paragraphs (c), (ca) and (d) of sub-regulation (1.); and

(b) by adding at the end thereof the following sub-regulation:—

“(2.) For the purposes of their application to and in relation to the Military Forces—

(a) Rule of Procedure 17 shall be read as if for paragraph (e) there were substituted the following paragraphs:—

‘(e) The officer convening a court-martial shall send to the officer appointed president of the court-martial the original charge sheet on which the accused is to be tried and shall send to each of the other officers appointed to compose the court-martial and to the judge-advocate (if any) a copy of that charge sheet.

‘(f) The officer convening a court-martial shall send the summary or abstract of evidence—

(i) where a judge-advocate is appointed to the court-martial—to the judge-advocate; or

 

* Notified in the Commonwealth Gazette on 27 May, 1965.

  Statutory Rules 1927, No. 149, as amended by Statutory Rules 1928, Nos. 23, 28 and 126; 1929, No. 123; 1930, Nos. 26, 67 and 92; 1931, No. 13; 1932, Nos. 80, 87 and 125; 1933, Nos. 49 and 77; 1934, Nos. 26 and 80; 1935, Nos. 99 and 109; 1936, Nos. 21, 44 and 100; 1937, No. 45; 1938, Nos. 75, 90 and 93; 1939, Nos. 31, 51, 58, 115, 123, 134, 160 and 173; 1940, Nos. 2, 16, 29, 59, 150, 183, 184, 185, 186, 199, 237, 252, 272 and 273; 1941, Nos. 3, 4, 14, 43, 135, 153, 155, 205, 245, 246, 260 and 311; 1942, Nos. 35, 59, 60, 85, 114, 166 179, 211, 231, 289, 333, 334, 350, 417, 477, 506, 508, 521, 522, 555 and 556; 1943, Nos. 17, 68, 72, 126, 174, 199, 200, 219, 244, 245, 246, 249 and 258; 1944, Nos. 1, 39, 69, 71, 72, 114, 120, 122, 154 and 164; 1945, Nos. 6, 19, 38, 42, 68 , 94, 111, 141 and 195; 1946, Nos. 72, 113, 114, 116 and 150; 1947, Nos. 25 and 59; 1948, Nos. 40, 59, 65 and 79; 1948, Nos. 55 and 68; 1950, Nos. 10, 21, 29, 64 and 65; 1951; Nos. 20, 56, 125, 149 and 152; 1952, Nos. 8, 60, 68 and 69; 1953, No. 87; 1954, Nos. 113, 117 and 118; 1955, Nos. 7, 31 and 55; 1956, Nos. 52, 102 and 115; 1957, No. 56; and 1958, Nos. 31, 32 and 85, 1959, Nos. 22 and 30; 1960, No. 25; 1961, No. 42; 1962, Nos. 23, 27, 68, 69 and 171; 1963, No. 28; and 1964, Nos. 62, 83, 93 and 149.

4820/64.—Price 1s. 12/10.2.1965.

 

(ii) where a judge-advocate is not so appointed—to the officer appointed president of the court-martial.’;

(b) Rule of Procedure 19 (c) shall be read as if—

(i) for the words ‘held a commission’ there were substituted the words ‘been an officer’; and

(ii) the word ‘whole’ (wherever occurring) were omitted;

(c) Rule of Procedure 22 (a) shall be read as if the words ‘and the summary or abstract of evidence or a true copy thereof’ were omitted;

(d) Rule of Procedure 25 (a) shall be read as if at the end thereof there were added the words ‘, but, in the case of a district court-martial consisting of one officer, an objection to that officer shall be disposed of as that officer thinks fit, and the grounds of objection and the manner of its disposal shall be noted by that officer in the proceedings of the court. If that officer considers that he is not justified in proceeding with the trial, he shall adjourn the court and report to the convening officer for direction’;

(e) the Rules of Procedure shall be read as if, after Rule of Procedure 39, there were inserted the following Rule:—

‘39a.—Submission of no case to answer and power of court to stop a case.—

‘(a) At the close of the evidence for the prosecution the accused may, in respect of a charge, submit that the prosecution has failed to establish a prima facie case for him to answer and that he should not be called upon to make his defence to that charge. If the accused makes such a submission, the prosecutor may address the court in answer to that submission and the accused may reply to the prosecutor’s address.

‘(b) The court shall not allow the submission unless it is satisfied that—

(i) it would not be open to the court to make a special finding under either section 56 of the Army Act or Rule of Procedure 44; and

(ii) there has been no evidence to prove an essential element in the alleged offence; or

(iii) the evidence adduced by the prosecution has been so discredited as the result of cross-examination, or is so manifestly unreliable, that no reasonable tribunal could safely convict on it.

 

‘(c) If the court allows the submission, it shall find the accused not guilty of the offence to which the submission relates and announce this finding in open court forthwith. If the court disallows the submission, it shall proceed with the trial of the offence as charged.

‘(d) Where, in accordance with Rule 103a, the judge-advocate hears the addresses and determines the submission in the absence of the president and members of the court, the ruling of the judge-advocate as to allowance or disallowance, of the submission shall, for the purposes of the last preceding paragraph of this Rule, be deemed to be allowance or disallowance, as the case may be, by the court.

‘(e) Notwithstanding anything in the preceding paragraphs of this Rule, the court may, at any time after the opening address by the prosecutor, find the accused not guilty of any offence covered by the charge, if the court is satisfied that—

(i) the evidence available to the prosecution does not disclose an offence; or

(ii) there is no evidence available to the prosecution to prove an essential element in the alleged offence or in any offence of which the court could make a special finding,

and, if the court so finds, it shall announce this finding in open court forthwith.’;

(f) Rule 40 (a) of the Rules of Procedure shall be read as if, after the word ‘prosecution’, there were inserted the words ‘, or, if there has been a submission of no case to answer, after the disallowance of that submission,’;

(g) Rule of Procedure 103 shall be read as if—

(i) for the words ‘and will give his advice on any matter before the court’ in paragraph (c) there were substituted the words ‘and shall give his ruling or advice thereon, as the case requires’; and

(ii) for paragraph (f) there were substituted the following paragraphs:—

‘(f) Where, during the course of a trial that he attends, any question of law or procedure arises, the judge-advocate shall give his ruling thereon and the court shall follow that ruling.

‘(fa) Without prejudice to the generality of the meaning of the expression “question of law”, that

 

expression, as used in this and the next succeeding Rule, shall be read as including a submission that there is no case to answer and any question relating to the admissibility of evidence.’;

(h) the Rules of Procedure shall be read as if, after Rule of Procedure 103, there were inserted the following Rule:—

‘103a.—Determination of question of law or procedure and judge-advocate sitting alone.—

‘(a) Where the accused raises a question of law or procedure, then, he may address the court in respect of the matter, the prosecutor may address the court in answer to that address, and the accused may reply to the prosecutor’s address.

‘(b) Where the prosecutor raises a question of law or procedure, then, he may address the court in respect of the matter, the accused may address the court in answer to that address, and the prosecutor may reply to the accused’s address.

‘(c) Where a question of law or procedure is raised during a trial, and the judge-advocate considers that the interests of justice would best be served by his hearing argument and determining the issue in the absence of the court, he shall so advise the president and, thereupon, the president shall direct all members of the court and any officer under instruction to withdraw from the court-room, and he and they shall withdraw.

‘(d) When the president and members of the court have withdrawn in accordance with the last preceding paragraph of this Rule, the judge-advocate shall hear the arguments and any evidence relevant to the point at issue and in giving his ruling thereon shall state such reasons for that ruling as he considers necessary.

‘(e) After the judge-advocate has given his ruling, the president and members of the court and any officer under instruction shall return to the court-room and the judge-advocate shall announce his ruling to the court.

‘(f) Where a judge-advocate sits alone in accordance with this Rule, the proceedings before him form part of the proceedings of the court.

‘(g) The judge-advocate is responsible for ensuring that the president and members of the court do not see the record of proceedings before him while sitting alone until after the court has announced its finding.’; and

 

(i) Rule of Procedure 106 (c) shall be read as if for the words ‘held commissions’ (wherever occurring) there were substituted the words ‘been officers’.”.

Documentary evidence.

2. Regulation 388 of the Australian Military Regulations is amended by adding at the end thereof the following paragraphs:—

“(o) Any document that would, under the law of England, be admissible in proceedings before a civil court in England shall, in the like manner and for the like purpose, be admissible.

(p) For the purposes of the last preceding paragraph, the Bankers’ Books Evidence Act, 1879, of the United Kingdom shall be deemed to apply to and in relation to the production and admissibility of documentary evidence in accordance with that Act as if any reference to a bank in that Act includes a bank as defined in the Banking Act 1959 of the Commonwealth of Australia.”.

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By Authority: A. J. Arthur, Commonwealth Government Printer, Canberra.