STATUTORY
RULES.
1945. No. 164.
REGULATIONS
UNDER THE WAR CRIMES ACT 1945.*
I, THE
GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the
advice of the Federal Executive Council, hereby make the following Regulations
under the War Crimes Act 1945.
Dated this twenty-fifth
day of October, 1945.
HENRY
Governor-General.
By
His Royal Highness’s Command,
ARTHUR
S. DRAKEFORD
for
Minister of State for the Army.
Regulations
for the Trial of War Criminals.
Definitions.
1. In these Regulations if
not inconsistent with the context and subject to any express provision to the
contrary the following expressions have the following meanings, namely:—
“Act” means the War Crimes Act 1945.
“Accused” means any
person charged with a war crime.
“Army Act” means the
Imperial Act known as the Army Act so far as made applicable by the War Crimes Act
1945.
“Military Court” mains a
military court constituted and held under the War Crimes Act 1945.
“Rules of Procedure”
means the rules of procedure made under the Army Act.
“War Crime” has the same
meaning as in the War Crimes Act 1945.
Other
expressions used in these Regulations have the same meaning as in the Army Act
or the Rules of Procedure made pursuant thereto.
Form
for assembly and proceedings.
2. The form for assembly
and proceedings of a military court set out in the Schedule to these
Regulations should be followed in all cases and shall be valid in law, but any
deviation or omission therefrom will not by reason only of such deviation or
omission render any charge, order, proceedings, act, or thing invalid.
Reservation
of Confirmation of finding and sentence.
3. An officer having
authority to confirm the finding and sentence of a Military Court may reserve
confirmation if the finding and sentence or of the sentence to any superior
authority competent to confirm the findings and sentence of any superior
authority competent to confirm the findings and sentences of the like kind of
military court convened under the War
Crimes Act 1945.
*
Notified in the Commonwealth Gazette on
26th October, 1945.
6395.—Price 5d.
Certain
sections of Army Act and certain Rules of Procedure not to apply.
4. Sections 49, 51, 54 (1)
(d), 54 (7), 57 (2), 57 (4) of the
Army Act and Rules of Procedure 5, 8, 14, 15 (c), 32, 34, 36, 56, 87, 98, 99, 106, 107, 110, 113, 118, 119 (B),
120 (C) (D) (E) shall not apply to a military court or any matters preliminary
or incidental thereto.
Appointment
of Judge-Advocate.
5. The authority by whom a
military court is convened or any authority by whom the Court could have been
convened may appoint a Judge-Advocate to the Court.
Mode
of appointment of Judge-Advocate.
6. The appointment of a
Judge-Advocate may be made in the order convening the court or by any writing
signed by the authority making the appointment.
Summary
of evidence and abstract of evidence.
7. The commanding officer
of the accused within the meaning of section 8 (2) of the Act shall without any
preliminary hearing as is referred to in Rule of Procedure 3, either cause a
summary of evidence to be taken in accordance with Rule of Procedure 4, so far
as it is applicable, or an abstract of evidence to be prepared as the Convening
Officer may direct. The accused shall not have the right of having a Summary
taken or of demanding that the evidence at the Summary shall be taken on oath
or that any witness shall attend for cross-examination at the taking of the
Summary.
Composition
of Military Court.
8. A Military Court shall
consist of not less than two officers in addition to the President, all of whom
shall be appointed by name, but no officer, whether sitting as President or as
a member, need have held his commission for any special length of time. If the
accused is an officer of the naval, military or air force of an enemy or
ex-enemy Power the Convening Officer should, so far as practicable, but shall
be under no obligation so to do, appoint as many officers as possible of equal
or superior relative rank to the accused. If the accused belongs to the naval
or air force of an enemy or ex-enemy Power the Convening Officer should
appoint, if available, at least one naval officer or one air force officer as a
member of the Court, as the case may be.
Accused
may not object to members or jurisdiction of Court.
9. The accused shall not
be entitled to object to the President or any member of the Court or the
Judge-Advocate or to offer any plea in bar or any special plea to the
jurisdiction of the Court.
Counsel.
10. Counsel may appear on
behalf of the Prosecutor and accused in like manner as if the Military Court
were a General Courts-Martial, and Rules of Procedure 88-93 shall in such cases
apply accordingly.
In
addition to the persons deemed to be properly qualified as Counsel under Rule
of Procedure 98 any person qualified to appear before the Courts of the Country
of the accused and any person approved by the Convening Officer of the Court
shall be deemed to be properly qualified as Counsel for the Defence.
Weight
of certain evidence.
11. It shall be the duty of
the Court to judge of the weight to be attached to any evidence given in pursuance
of section 9 (1) of the Act which would not otherwise be admissible.
Evidence
in respect of war crime committed by group of men.
12. Where there is evidence that a war crime has been the result of
concerted action upon the part of a unit or group of men, then evidence
given
upon any charge relating to that crime against any member of such unit or group
may be received as prima facie evidence
of the responsibility of each member of that unit or group for that crime.
In
any such case all or any members of any such unit or group may be charged and
tried jointly in respect of any such war crime and no application by any of
them to be tried separately shall be allowed by the Court.
Announcement
of finding of Court.
13. Unless the Convening
Officer otherwise directs a finding of guilty and the sentence shall be
announced in Open Court by the President, who shall at the same time state that
such finding and sentence are subject to confirmation. A finding of acquittal,
whether on all or some of the offences with which the accused is charged, shall
not require confirmation or be subject to be revised and shall be pronounced at
once in Open Court, but the Court shall not thereupon release the accused,
unless otherwise entitled to be released.
Sittings
of Courts to be open to public except in certain circumstances.
14. The sittings of
Military Courts will ordinarily be open to the Public so far as accommodation
permits. But the Court may, on the ground that if is expedient so to do in the
national interest or in the interests of justice, or for the effective
prosecution of war crimes generally, or otherwise, by order prohibit the
publication of any evidence to be given or of any statement to be made in the
course of the proceedings before it, or direct that all or any portion of the
public shall be excluded during any part of such proceedings as normally take
place in Open Court, except during the announcement of the finding and sentence
pursuant to the preceding regulation.
Record
of Proceedings.
15. A record shall be made
of the Proceedings of every Military Court.
Restitution
in certain court.
16. In a case where the war
crime consists wholly or partly of the taking, distribution or destruction of
money or other property the Court may as part of the sentence order the
restitution of such money or other property and in default of complete
restitution award a penalty equal in value to that which has been so taken,
distributed or destroyed or not restored.
Petition
against finding and sentence.
17. The accused may within
fourteen days of the termination of the Proceedings in Court submit a Petition
to the Confirming Officer against the finding or sentence or both provided that
he gives notice to the Confirming Officer within 48 hours of such termination
of his intention to submit such a petition. The accused shall have no right to
submit any Petition otherwise than as aforesaid.
Provided
that if such Petition is against the finding it shall be referred by the
Confirming Officer, together with the Proceedings of the trial, to the
Judge-Advocate-General or a Deputy Judge-Advocate-General for advice and report
thereon.
Confirmation
of finding and sentence.
18. The finding and any
sentence which the Court had jurisdiction to pass may be confirmed and, if
confirmed, shall be valid, notwithstanding any deviation from these
Regulations, or the Rules of Procedure or any defect or objection, technical or
other, unless it appears that a substantial miscarriage of justice has actually
occurred.
Regulation
and commutation of sentence.
19. When a sentence passed
by a Military Court has been confirmed the Governor-General or the Military
Board or any officer not below the rank of Major-General who for the time being
would have power to confirm the sentence of a Military Court if it had not been
confirmed, shall have power to mitigate or remit the punishment thereby awarded
or to commute such punishment for any less punishment or punishments to which
the offender might have been sentenced by the said Court: Provided that this
power shall not be exercised by an officer holding a Command or rank inferior
to that of the officer who confirmed the sentence.
Cases
not provided for in Regulations.
20. In any case not
provided for in these Regulations such course will be adopted as appears best
calculated to do justice.
SCHEDULE.
——
FORM FOR ASSEMBLY AND PROCEEDINGS
OF A MILITARY COURT.
* Not more than one name should be entered
on one form unless the war crime is the result of concerted action upon the part
of a unit or group of men. If there is insufficient space for the inclusion of
all names they should be annexed to the schedule on a separate sheet signed by
the convening officer.
This day of 194
,
Whereas
it appears to me, the undersigned, an officer authorized to convene a Military
Court under the War Crimes Act 1945
that the person (s)* named in the annexed Schedule has committed the war
crime(s)* in the said Schedule mentioned, I hereby convene a Military Court to
try the said person(s)*, and to consist of the officers hereunder named.
Rank | President Name. | Unit |
Rank | Members Name | Unit |
Rank | Judge-Advocate Name | Unit |
Signed) …......…………..
Convening
Officer………………….
Must be signed personally by the officer authorized to convene a Military Court
and all alterations in the composition of the Court to be initialled by him.
Schedule.
Number, Rank, (a) Name and Unit of accused. | Offence charged. | Plea. | Finding and if convicted,
sentence (b) | How dealt with by confirming
officer, (c) |
(Signed) …………………...............
...........................................
Convening Officer (d)
Note.—The
records of the proceedings of the Court will be attached to this form.
(a) If the accused is not a member of the naval, military or air
force of an enemy or ex-enemy Power the name occupation and residence of
accused will, be inserted
(b) Recommendation to mercy, if any to be inserted in this column,
or on a separate sheet attached to the proceedings, with the reasons for the
recommendation.
(c) It is not necessary that the Conferring Officer should sign his
name in this column. Initials are sufficient.
(d) Must be signed by the same Officer who signs on the first page,
and all alterations to the first two columns of the Schedule to be initialled
by him.
B.
Certificate of President as to proceedings.
I
certify that the above Court assembled on the day of and
duly tried the person(s) named in the Schedule, and that the plea, finding, and
sentence in the case of each such person were as stated in the third and fourth
columns of that Schedule and that the Regulations for the trial of War Criminals
have been compiled with.
*
Omit if not applicable.
I
also certify that
1.
The members of the Court
*2. The Judge-Advocate
*3.
The witnesses
*4. The interpreter were duly
sworn.
Signed this day
of , 19
.
President
of the Military Court.
C.
Confirmations.
I
have dealt with the finding (s) and sentence (s) in the manner stated in the
last column of the Schedule, and, subject to what I have stated, I hereby
confirm the above finding (s) and sentence (s).
Confirming
Officer. |
Promulgated in the case of
(a) (Dated) | (Signed) |
Promulgated in the case of (Dated)
| (Signed) |
Promulgated in the case of (Dated)
| (Signed) |
(a) When several cases are promulgated on
the same day the officer effecting promulgation need only sign once.
By Authority: L. F. Johnston, Commonwealth Government
Printer, Canberra.
6395.—2