Court Martial Appeals Act 1953

1: Short Title and commencement
1: This Act may be cited as the Court
2: This Act shall come into force on a day to be appointed for the commencement thereof by the Governor-General by Order in Council.
3: An order under this section is secondary legislation ( see Part 3
3: Courts-Martial (Appeals) Act 1951 s 25 (UK) The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 1(2) brought into force 1 March 1955 Courts Martial Appeals Act Commencement Order 1955 Section 1(1) amended 1 July 2009 section 4(3) Court Martial Appeals Amendment Act 2007 Section 1(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 1(3) repealed 27 May 1988 Armed Forces Discipline Amendment Act 1988
2: Interpretation
1: In this Act, unless the context otherwise requires,— appellant the Court Martial appointed Judge paragraph (b) of subsection (1) of section 3 court Court Court of Appeal Part 3 Court Martial section 8 Director of Military Prosecutions section 101E Judge Advocate General section 203 medical practitioner section 114(1)﻿(a) Minister offence Armed Forces Discipline Act 1971 prescribed Registrar rules of court section 26
2: In this Act, the expression on active service section 5
3: Courts-Martial (Appeals) Act 1951 s 24 (UK) Section 2(1) Air Board repealed 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 2(1) Air Force Act repealed 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 2(1) Air Force Court Martial repealed 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 2(1) appellant amended 1 July 2009 section 5(1) Court Martial Appeals Amendment Act 2007 Section 2(1) Army Act repealed 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 2(1) Army Board repealed 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 2(1) Army Court Martial repealed 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 2(1) court amended 1 July 2009 section 5(2) Court Martial Appeals Amendment Act 2007 Section 2(1) Court of Appeal amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 2(1) Court Martial substituted 1 July 2009 section 5(3) Court Martial Appeals Amendment Act 2007 Section 2(1) Director of Military Prosecutions inserted 1 July 2009 section 5(3) Court Martial Appeals Amendment Act 2007 Section 2(1) Judge Advocate General inserted 1 July 2009 section 5(3) Court Martial Appeals Amendment Act 2007 Section 2(1) medical practitioner inserted 18 September 2004 section 175(1) Health Practitioners Competence Assurance Act 2003 Section 2(1) Naval Board repealed 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 2(1) Naval Court Martial repealed 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 2(1) offence inserted 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 2(2) substituted 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 2(3) repealed 1 July 2009 section 5(4) Court Martial Appeals Amendment Act 2007
2A: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1 Section 2A inserted 30 November 2018 section 33 Military Justice Legislation Amendment Act 2018
2B: Act binds the Crown
This Act binds the Crown. Section 2B inserted 30 November 2018 section 33 Military Justice Legislation Amendment Act 2018 The Court Heading amended 1 July 2009 section 6 Court Martial Appeals Amendment Act 2007
3: Constitution of
Court
1: There shall be a Court Martial Appeal Court
a: the Judges of the High Court; and
b: such other persons, being barristers of the High Court of New Zealand who have held a practising certificate as such for not less than 7 years or former Judges of the High Court, as the Governor-General in Council may appoint.
2: An appointed Judge continues to hold office—
a: unless he or she sooner vacates, or ceases to hold, or is removed from office under subsection (3); and
b: until his or her successor comes into office.
3: An appointed Judge—
a: may resign from office by giving the Minister written notice to that effect and stating when the resignation takes effect:
b: ceases to hold office when he or she reaches the age of 75 years:
c: ceases to hold office if he or she is, under the Insolvency Act 2006
d: may be removed from office only by the Sovereign or the Governor-General, acting upon the address of the House of Representatives.
3A: An address under subsection (3)﻿(d) may be moved only on the ground of—
a: the appointed Judge’s misbehaviour; or
b: the appointed Judge’s incapacity to discharge the functions of his or her office.
3B: Each appointed Judge is to be paid, out of public money, without further authority than this section,—
a: a salary at the rate that the Remuneration Authority determines; and
b: any allowances that are determined by the Remuneration Authority; and
c: any additional allowances (being travelling allowances or other incidental or minor allowances) that may be determined by the Governor-General.
4: Every person appointed under subsection (1)﻿(b) has all the immunities of a Judge of the High Court for the purposes of carrying out his or her tasks and functions as a Judge of the Court Martial Appeal Court Courts-Martial (Appeals) Act 1951 s 1(1)–(3) (UK) Section 3 heading amended 1 July 2009 section 7(1) Court Martial Appeals Amendment Act 2007 Section 3(1) amended 1 July 2009 section 7(2) Court Martial Appeals Amendment Act 2007 Section 3(1)﻿(a) substituted 1 December 1983 Courts Martial Appeals Amendment Act 1980 Section 3(1)﻿(b) substituted 1 December 1983 Courts Martial Appeals Amendment Act 1980 Section 3(2) substituted 1 July 2009 section 7(3) Court Martial Appeals Amendment Act 2007 Section 3(3) substituted 1 July 2009 section 7(3) Court Martial Appeals Amendment Act 2007 Section 3(3A) inserted 1 July 2009 section 7(3) Court Martial Appeals Amendment Act 2007 Section 3(3B) inserted 1 July 2009 section 7(3) Court Martial Appeals Amendment Act 2007 Section 3(4) added 20 May 2004 section 3 Courts Martial Appeals Amendment Act 2004 Section 3(4) amended 1 July 2009 section 7(2) Court Martial Appeals Amendment Act 2007
4: Supplementary provisions as to court
1: For the purpose of hearing and determining appeals under this Act, or any matter preliminary or incidental to an appeal, the court shall be summoned in accordance with directions given by the Chief High Court Judge
a: it consists of an uneven number of Judges, not being less than 3; and
b: subject to subsection (4), at least 1 of the Judges of whom it consists is a Judge of the High Court
2: If the Chief High Court Judge
3: The court shall sit in such place as the Chief High Court Judge
4: Where the court is directed to sit at a place outside New Zealand, the Chief High Court Judge
5: The determination of any question before the court shall be according to the opinion of the majority of the Judges of the court hearing the case.
6: The court shall be a senior Courts-Martial (Appeals) Act 1951 s 2 (UK) Section 4(1) amended 1 July 2009 section 8 Court Martial Appeals Amendment Act 2007 Section 4(1)﻿(b) amended 1 April 1980 section 12 Judicature Amendment Act 1979 Section 4(2) amended 1 July 2009 section 8 Court Martial Appeals Amendment Act 2007 Section 4(3) amended 1 July 2009 section 8 Court Martial Appeals Amendment Act 2007 Section 4(4) amended 1 July 2009 section 8 Court Martial Appeals Amendment Act 2007 Section 4(6) amended 1 March 2017 section 183(b) Senior Courts Act 2016
5: Registrar and officers of court
1: There may from time to time be appointed under the Public Service Act 2020 public service
2: Unless any other person is appointed under subsection (1) to hold office as the Registrar of the court, the person who for the time being holds office as the Registrar of the High Court at Wellington Court Courts-Martial (Appeals) Act 1951 s 1(4) (UK) Section 5(1) amended 7 August 2020 section 135 Public Service Act 2020 Section 5(2) amended 1 July 2009 section 9 Court Martial Appeals Amendment Act 2007 Section 5(2) amended 28 July 1997 section 3 Courts Martial Appeals Amendment Act 1997 Appeals to the court
6: Appeal against decision of Court Martial relating to bail
1: This section applies to a decision made by a Judge of the Court Martial to—
a: grant or refuse bail to a person in custody under the Armed Forces Discipline Act 1971
b: impose or substitute or revoke or vary any condition of bail; or
c: refuse to impose any condition of bail or any particular condition of bail; or
d: refuse to vary or revoke any condition of bail.
2: Either the Director of Military Prosecutions or the accused may appeal to the court against a decision to which this section applies—
a: within 21 days after the date of the decision; or
b: within any further time that the court may allow.
3: For the purposes of an appeal under this section, the failure of a Judge of the Court Martial to impose any condition of bail, or any particular condition of bail, on any occasion on which the condition could lawfully have been imposed is deemed to be a refusal to impose the condition.
4: On an appeal under this section, the court may—
a: confirm the decision; or
b: vary the decision; or
c: set the decision aside.
5: If subsection (4)﻿(c) applies, the court may make any other decision that—
a: could have been made in the first place; and
b: the court thinks appropriate. Section 6 substituted 1 July 2009 section 10 Court Martial Appeals Amendment Act 2007 Section 6(4) added 7 July 2010 section 4 Court Martial Appeals Amendment Act 2010 Section 6(5) added 7 July 2010 section 4 Court Martial Appeals Amendment Act 2010
7: Appeal against ruling
1: This section applies to a ruling given by a Judge of the Court Martial on a question of law or procedure that arises during proceedings in that court.
2: Either the Director of Military Prosecutions or the accused may, with the leave of the court obtained in accordance with section 8
3: On an appeal under this section, the court may—
a: confirm the ruling; or
b: vary the ruling; or
c: set the ruling aside.
4: If subsection (3)﻿(c) applies, the court may make any other ruling that—
a: could have been made in the first place; and
b: the court thinks appropriate.
5: In this section, question of law
a: a plea to the general jurisdiction of the Court Martial:
b: a plea in bar of trial:
c: an application for the separation of trials:
d: an application for the severance of charge sheets:
e: an application for the severance of charges:
f: a submission that there is no case to answer:
g: the admissibility of evidence:
h: an application for a ruling referred to in section 30(2)﻿(a)
i: an application for an order specified in section 39(2)
j: an order under subpart 3 Criminal Procedure Act 2011 Armed Forces Discipline Act 1971 section 145
k: an application for discovery. Section 7 substituted 1 July 2009 section 10 Court Martial Appeals Amendment Act 2007 Section 7(5)﻿(j) amended 5 March 2012 (applying in relation to a proceeding for an offence that was commenced before that date) section 393 Criminal Procedure Act 2011
8: Procedure for obtaining leave of court to appeal against ruling
1: If a person wishes to obtain the leave of the court to appeal under section 7
a: must, within 10 days after the ruling is given, give notice of the application for leave to appeal in any manner that may be directed by rules of the court; and
b: may do so—
i: whether or not reasons for the ruling are given at a later date; and
ii: whether or not any formal steps to sign, enter, or otherwise perfect the ruling are necessary or are taken later.
2: The time within which notice of an application for leave to appeal to the court under this section must be given may be extended at any time by the court.
3: Despite the making of an application for leave to appeal under this section, the Court Martial may, if it is satisfied that it is in the interests of justice to do so, proceed with the trial without awaiting the determination of the application. Section 8 substituted 1 July 2009 section 10 Court Martial Appeals Amendment Act 2007
9: Right of appeal against conviction or sentence
1: A person convicted by the Court Martial may appeal to the court against—
a: the conviction; or
b: the sentence imposed for the conviction (unless the sentence is one fixed by law); or
c: both.
2: The Director of Military Prosecutions may appeal to the court against the sentence imposed by the Court Martial, unless the sentence is one fixed by law.
3: An appeal under this section must be brought—
a: within 21 days after the date of the decision appealed against; or
b: within any further time that the court may allow.
4: If an appeal under subsection (2) against a sentence of imprisonment or detention is not heard before the date on which the convicted person has completed serving that sentence, the appeal—
a: lapses on that date; and
b: is deemed to have been dismissed by the court for non-prosecution.
5: For the purposes of this section, sentence Section 9 substituted 1 July 2009 section 10 Court Martial Appeals Amendment Act 2007
9A: Determination of appeals against conviction
1: On an appeal to the court against conviction, the court must—
a: allow the appeal if it considers that—
i: the finding of the Court Martial should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
ii: the finding of the Court Martial involves a wrong decision on a question of law; or
iii: there was, on any ground, a miscarriage of justice; or
iv: the trial was a nullity; or
b: dismiss the appeal in any other case.
2: However, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred even though it considers that the point raised in the appeal might be decided in favour of the appellant.
3: If the court allows an appeal, the court—
a: may quash the conviction; and
b: may do any of the following:
i: direct a judgment and finding of acquittal to be entered; or
ii: direct a new trial; or
iii: make any other order that justice requires. Section 9A substituted 1 July 2009 section 10 Court Martial Appeals Amendment Act 2007
9AB: Determination of appeals against sentence
On an appeal to the court against sentence, the court must—
a: do either of the following if it thinks that a different sentence should have been imposed:
i: quash the sentence imposed and impose any other sentence warranted in law (whether more or less severe) in substitution for the sentence that was quashed; or
ii: vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; or
b: dismiss the appeal in any other case. Section 9AB inserted 1 July 2009 section 10 Court Martial Appeals Amendment Act 2007
9AC: Substitution of conviction on different charge
1: This section applies if—
a: an appellant has been convicted of an offence; and
b: the Court Martial could have found the appellant guilty of some other offence (being an included offence or an offence that was recorded as an alternative charge in the charge sheet); and
c: on the finding of the Court Martial it appears to the court that the Court Martial must have been satisfied of facts that proved the appellant guilty of that other offence.
2: The court may, instead of allowing or dismissing the appeal,—
a: substitute for the finding of the Court Martial a finding of guilty of that other offence; and
b: impose a sentence in substitution for the sentence imposed that may be warranted in law for that other offence (which must not be a sentence of greater severity). Section 9AC inserted 1 July 2009 section 10 Court Martial Appeals Amendment Act 2007
9B: Variation of conviction so as to attract different sentence
1: Where an appellant has been convicted of an offence committed under circumstances involving the higher of 2 degrees of punishment, and it appears to the court that the Court Martial Court Martial
2: Where the court exercises the power conferred by subsection (1), it may pass on the appellant, in substitution for the sentence passed on him by the Court Martial Armed Forces Discipline Act 1971 Court Martial Section 9B inserted 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 9B(1) amended 1 July 2009 section 11(1) Court Martial Appeals Amendment Act 2007 Section 9B(1) amended 1 July 2009 section 11(2) Court Martial Appeals Amendment Act 2007 Section 9B(2) amended 1 July 2009 section 11(1) Court Martial Appeals Amendment Act 2007
9C: Court may vary sentence in certain cases
Section 9C repealed 1 July 2009 section 12 Court Martial Appeals Amendment Act 2007
9D: Term of sentence passed under
sections 9AB, 9AC, and 9B
1: The term of any sentence passed by the court under section 9AB 9AC 9B
2: A sentence passed by the court under section 9AB 9AC 9B Armed Forces Discipline Act 1971
3: Except in a case to which subsection (4) applies, where the court substitutes a sentence of imprisonment or of detention for the sentence of imprisonment or of detention passed by the Court Martial
4: Where—
a: a sentence of imprisonment or of detention passed by the Court Martial
b: the court substitutes a sentence of imprisonment or of detention for the sentence of imprisonment or of detention passed by the Court Martial the term of the substituted sentence shall be deemed to have commenced or shall commence on the date when the sentence passed by the Court Martial
5: Where—
a: a sentence of imprisonment or of detention passed by the Court Martial
b: the court substitutes a sentence other than one of imprisonment or of detention for that earlier sentence,— the sentence passed by the Court Martial Section 9D inserted 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 9D heading amended 1 July 2009 section 13(1) Court Martial Appeals Amendment Act 2007 Section 9D(1) amended 1 July 2009 section 13(2) Court Martial Appeals Amendment Act 2007 Section 9D(2) substituted 1 July 2009 section 13(3) Court Martial Appeals Amendment Act 2007 Section 9D(3) added 1 January 1986 Courts Martial Appeals Amendment Act 1985 Section 9D(3) amended 1 July 2009 section 13(4)﻿(a) Court Martial Appeals Amendment Act 2007 Section 9D(4) added 1 January 1986 Courts Martial Appeals Amendment Act 1985 Section 9D(4) amended 1 July 2009 section 13(4)﻿(b) Court Martial Appeals Amendment Act 2007 Section 9D(4)﻿(a) amended 1 July 2009 section 13(4)﻿(a) Court Martial Appeals Amendment Act 2007 Section 9D(4)﻿(b) amended 1 July 2009 section 13(4)﻿(b) Court Martial Appeals Amendment Act 2007 Section 9D(5) added 1 January 1986 Courts Martial Appeals Amendment Act 1985 Section 9D(5) amended 1 July 2009 section 13(4)﻿(b) Court Martial Appeals Amendment Act 2007 Section 9D(5)﻿(a) amended 1 July 2009 section 13(4)﻿(a) Court Martial Appeals Amendment Act 2007
9E: Appeal against acquittal on account of insanity
1: A person who is acquitted by the Court Martial the Court Martial
2: If on any such appeal the finding of insanity is challenged by the appellant, and the court is of the opinion that the finding ought not to stand, and is satisfied that in the absence of such a finding the proper finding would have been that the appellant was guilty of an offence (whether that with which he was charged or any offence of which he could have been convicted at the trial), the court shall substitute for the acquittal a conviction for the offence. Thereupon the court shall have the same powers of sentencing or otherwise dealing with the appellant, and such other powers, as the Court Martial
3: Except as provided in subsection (2), on any such appeal the court may—
a: allow the appeal, and direct that the appellant be acquitted:
b: dismiss the appeal:
c: exercise any power, whether to direct a new trial or otherwise, that it could exercise if the appeal were an appeal against conviction.
4: No such appeal shall be allowed by reason only of the fact that the appellant ought to have been acquitted of the offence charged, if the court is of the opinion that, but for the insanity, the proper finding would have been that he was guilty of some other offence; but the court may direct that the other offence be substituted, in the record of the finding, for the offence charged.
5: Unless the court otherwise directs, the term of any sentence passed by it pursuant to subsection (2) shall begin to run from the time when it would have begun to run if passed on the date on which the finding appealed against was made. Section 9E inserted 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 9E(1) amended 1 July 2009 section 14(1) Court Martial Appeals Amendment Act 2007 Section 9E(1) amended 1 July 2009 section 14(2) Court Martial Appeals Amendment Act 2007 Section 9E(2) amended 1 July 2009 section 14(2) Court Martial Appeals Amendment Act 2007
9EA: Appeal by accused against finding relating to fitness to stand trial
1: A person in relation to whom the Court Martial has made a finding as to fitness to stand trial may appeal against 1 or both of the following findings:
a: that the evidence against the person is sufficient to establish that the person caused the act or omission that forms the basis of the offence with which the person is charged:
b: that the person is, according to the finding, fit or unfit to stand trial.
2: For the purposes of an appeal under this section,—
a: the finding appealed against is to be regarded as a conviction; and
b: the provisions of this Act relating to appeals, so far as they are applicable and with any necessary modifications, apply to the appeal.
3: If the court is satisfied that the evidence presented against the appellant is not sufficient to establish that the appellant caused the act or omission that forms the basis of the offence with which the appellant is charged, the court must quash the finding appealed against and direct that the appellant be discharged.
4: A discharge under subsection (3) does not amount to an acquittal.
5: In the case of an appeal against a finding relating to the appellant’s fitness to stand trial, the court must (except where the appellant has been discharged under subsection (3)) consider the evidence of 2 health assessors section 187(1)
6: If the court is satisfied that the appellant is mentally impaired, the court must—
a: give the appellant and the respondent an opportunity to be heard and to present evidence as to whether the appellant is unfit to stand trial; and
b: confirm or quash the finding relating to the appellant’s fitness to stand trial.
7: If the result of the appeal is that the appellant is fit to stand trial, the court must give written notice of that fact to the Director of Military Prosecutions, who may then lay before the Registrar the charge sheet that, in accordance with section 101F(c) Section 9EA substituted 1 September 2004 section 49(1) Criminal Procedure (Mentally Impaired Persons) Act 2003 Section 9EA(1) replaced 30 November 2018 section 34(1) Military Justice Legislation Amendment Act 2018 Section 9EA(5) amended 30 November 2018 section 34(2) Military Justice Legislation Amendment Act 2018 Section 9EA(7) substituted 1 July 2009 section 15(2) Court Martial Appeals Amendment Act 2007 Section 9EA(7) amended 7 July 2010 section 5 Court Martial Appeals Amendment Act 2010
9EB: Appeal against order for detention, release, etc
1: This section applies to the following orders and decisions made under section 191
a: an order for the person’s detention under section 191(1) or (2)﻿(a)
b: an order for the person’s release under section 191(2)﻿(b)
c: a decision, made under section 191(2)﻿(c)
2: The person and the Director of Military Prosecutions have the same right of appeal against the order or decision as they would have if the order or decision were a sentence.
3: The provisions of this Act, to the extent that they are applicable and with any necessary modifications, apply to the appeal.
4: The court may—
a: dismiss the appeal:
b: if the appeal is against an order, vary the order:
c: cancel the order or decision and substitute another order or decision under section 191(1) or (2) Section 9EB inserted 30 November 2018 section 35 Military Justice Legislation Amendment Act 2018
9F: Powers of court to acquit on account of insanity on appeal against conviction
1: If in the case of an appeal against conviction it appears to the court that the appellant did or omitted the act constituting the offence for which he was convicted, but was at the time at which he did or omitted the act insane, the court shall—
a: substitute for the conviction an acquittal on account of his insanity; and
b: quash the sentence passed in respect of the conviction.
2: When, pursuant to subsection (1), the court substitutes for a conviction an acquittal on account of insanity, sections 191 and 193 the Court Martial the Court Martial
3: When an appellant is ordered under the provisions of this section to be detained as a special patient, or as a Mental Health (Compulsory Assessment and Treatment) Act 1992 Section 9F inserted 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 9F(2) amended 1 July 2009 section 16(a) Court Martial Appeals Amendment Act 2007 Section 9F(2) amended 1 July 2009 section 16(b) Court Martial Appeals Amendment Act 2007 Section 9F(2) amended 28 July 1997 section 4(a) Courts Martial Appeals Amendment Act 1997 Section 9F(3) amended 28 July 1997 section 4(b) Courts Martial Appeals Amendment Act 1997 Section 9F(3) amended 28 July 1997 section 4(c) Courts Martial Appeals Amendment Act 1997
10: Appeals to Court of Appeal or Supreme Court
1: With the leave of the court appealed to, a party to an appeal under any of sections 6 7 9
2: Subsection (1) is subject to section 75
3: An application for leave to appeal under this section must be made—
a: within 28 days after the date of the issue of the decision or within any further time that the court appealed to may allow; and
b: in the manner that may be directed by rules of the court appealed to for leave to appeal to that court. Section 10 substituted 1 July 2009 section 17 Court Martial Appeals Amendment Act 2007 Section 10(2) amended 1 March 2017 section 183(b) Senior Courts Act 2016
10A: Appeals to Supreme Court from Court of Appeal
With the leave of the Supreme Court, a party to an appeal to the Court of Appeal under section 10 Section 10A inserted 1 January 2004 section 47 Supreme Court Act 2003 Section 10A amended 1 July 2009 section 18 Court Martial Appeals Amendment Act 2007
10B: Effect of appeal
Neither an application for leave to appeal, nor an appeal, under section 10 10A Section 10B substituted 1 July 2009 section 19 Court Martial Appeals Amendment Act 2007
10C: Powers and procedure of Court of Appeal and Supreme Court
In an appeal to the Court of Appeal or the Supreme Court under section 10 10A
a: the court appealed to has the same powers as the court
b: this Act, as far as it is applicable and with any necessary modifications, applies to the appeal as it applies to an appeal to the court Section 10C inserted 1 January 2004 section 47 Supreme Court Act 2003 Section 10C amended 1 July 2009 section 20(a) Court Martial Appeals Amendment Act 2007 Section 10C(a) amended 1 July 2009 section 20(b) Court Martial Appeals Amendment Act 2007 Section 10C(b) amended 1 July 2009 section 20(b) Court Martial Appeals Amendment Act 2007
11: Supplementary powers of the court
1: For the purposes of this Act the court may, if it thinks it necessary or expedient in the interests of justice,—
a: order the production of any document, exhibit, or other thing connected with the proceedings the production of which appears to the court to be necessary for the determination of the case:
b: order that all necessary steps be taken to obtain from any military member who sat in the Court Martial at the trial of the appellant, or from the Judge at that trial, a report that—
i: sets out that person’s opinion on the case or on any point arising in the case; or
ii: contains a statement of any facts that the court considers to be in need of clarification because they appear to the court to be material for the purpose of the determination of the case:
c: order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in the prescribed manner before any Judge of the court or before any other person appointed by the court for that purpose, and allow the admission of any depositions so taken as evidence before the court:
d: receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness and, if the appellant makes an application for the purpose, of the spouse or civil union partner spouse or civil union partner
e: where any question arising on the appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in the opinion of the court conveniently be conducted before the court, order the reference of the question in the prescribed manner for inquiry and report to a special commissioner appointed by the court, and act upon the report of any such commissioner so far as the court thinks fit to adopt it:
f: appoint any person with special expert knowledge to act as an assessor to the court in any case where it appears to the court that such special knowledge is required for the proper determination of the case,— and may issue any warrants necessary for enforcing the orders or sentences of the court.
2: The court must not make an order under subsection (1)﻿(b) for the purpose of obtaining a report from a military member of the Court Martial unless—
a: it also makes an order for the purpose of obtaining a report from the Judge at the trial; or
b: it is satisfied that obtaining a report from the Judge at the trial is impracticable or would involve undue delay. Courts-Martial (Appeals) Act 1951 s 8(1) (UK) Section 11(1)﻿(b) substituted 1 July 2009 section 21(1) Court Martial Appeals Amendment Act 2007 Section 11(1)﻿(d) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 11(2) added 1 July 2009 section 21(2) Court Martial Appeals Amendment Act 2007
12: Right of appellant to present case in writing
1: An appellant may, instead of having his or her case presented orally, have it presented in writing.
2: If subsection (1) applies, the court may deal with the appellant’s case by way of a hearing on the papers. Section 12 substituted 1 July 2009 section 22 Court Martial Appeals Amendment Act 2007
13: Legal aid to appellants
Section 13 repealed 1 July 2009 section 23 Court Martial Appeals Amendment Act 2007
14: Right of appellant to be present
An appellant shall not be entitled to be present at the hearing of an appeal under this Act to the court or at any proceedings preliminary or incidental to such an appeal except where rules of court provide that he shall have the right to be present or the court gives him leave to be present, and accordingly any power of the court under this Act to pass a sentence may be exercised notwithstanding the absence of the appellant. Courts-Martial (Appeals) Act 1951 s 11 (UK)
15: Defence of appeals
On an appeal under this Act to the court against a conviction by the Court Martial Armed Forces Discipline Act 1971 Director of Military Prosecutions Section 15 substituted 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 15 amended 1 July 2009 section 24(a) Court Martial Appeals Amendment Act 2007 Section 15 amended 1 July 2009 section 24(b) Court Martial Appeals Amendment Act 2007
16: Costs of appeal
1: On the hearing and determination of an appeal or any proceedings preliminary or incidental thereto under this Act no costs shall be allowed on either side.
2: The expenses of any solicitor or counsel assigned to an appellant under this Act, and the expenses of any witnesses attending on the order of the court or examined in any proceedings incidental to the appeal, and of the appearance of an appellant on the hearing of his appeal or on any proceedings preliminary or incidental to the appeal, and all expenses of and incidental to any examination of witnesses conducted by any person appointed by the court for the purpose, or any reference of a question to a special commissioner appointed by the court, and the expenses of any person appointed as assessor to the court shall be defrayed in the same manner as the expenses of a trial of a criminal case in the High Court
3: 1945 No 23 s 13; 1948 No 77 s 9(2), (3) Section 16(2) amended 1 April 1980 section 12 Judicature Amendment Act 1979 Section 16(3) repealed 28 July 1997 section 5 Courts Martial Appeals Amendment Act 1997
17: Proceedings to be in open court, unless it is necessary to clear the court
The proceedings of the court shall be conducted in open court, except when the court is dealing with matters of procedure or is deliberating: provided that the presiding Judge may cause the court to be cleared of all persons or of any persons or classes of persons if he considers it necessary in the interests of national safety or for the due administration of justice or proper in the interests of public morals. 1950 No 39 s 111; 1950 No 40 s 111 Supplementary provisions as to appeals
18: Suspension of death sentence
Section 18 repealed 28 July 1997 section 6 Courts Martial Appeals Amendment Act 1997
19: Court may make an order for the payment of compensation or restitution of property
1: On hearing an appeal under this Act, the court may in the appropriate case order the appellant to pay compensation under section 86 , or to make restitution of property under section 87 the Court Martial the Court Martial
2: Where the Court Martial section 86 section 87
a: confirm the order; or
b: quash the order; or
c: in the case of an order requiring the payment of compensation, vary the order by requiring a reduced amount of compensation to be paid, or by requiring an increased amount of compensation to be paid (not exceeding the limit imposed by the said section 86
d: in the case of an order requiring restitution of property to be made, vary the order by requiring property additional to or different from that specified in the order to be restored to the person who appears
3: Section 19 substituted 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 19(1) amended 1 July 2009 section 25(1) Court Martial Appeals Amendment Act 2007 Section 19(1) amended 1 July 2009 section 25(2) Court Martial Appeals Amendment Act 2007 Section 19(1) amended 1 December 1983 Courts Martial Appeals Amendment Act 1980 Section 19(2) amended 1 July 2009 section 25(1) Court Martial Appeals Amendment Act 2007 Section 19(2) amended 1 July 2009 section 25(3) Court Martial Appeals Amendment Act 2007 Section 19(2)﻿(d) amended 1 July 2009 section 25(4) Court Martial Appeals Amendment Act 2007 Section 19(3) repealed 1 December 1983 Courts Martial Appeals Amendment Act 1980
19A: Suspension of compensation and restitution orders, etc
1: Where the court makes an order for compensation under section 86 section 87
a: the completion of such proceedings; or
b: the expiration of such period; or
c: the giving of such consent; or
d: the occurrence of such event or circumstance— as may be so prescribed.
2: Where the operation of any such order is so suspended, it shall not take effect if the conviction is quashed on appeal.
3: Rules of court may be made—
a: specifying any matter referred to in subsection (1) in relation to the suspension of orders for compensation; and providing for the retention of deductions from pay made pursuant to any order for compensation while the order is suspended; and
b: specifying any matter referred to in subsection (1) in relation to the suspension of orders for restitution; and providing for the retention and safe custody of any property to which any order for restitution applies while the order is suspended. Section 19A inserted 1 December 1983 Courts Martial Appeals Amendment Act 1980
20: Person not to be tried again if conviction quashed
1: A person whose conviction by the Court Martial for an offence has been quashed under this Act is not liable to be tried again for that offence by the Court Martial or by any other court.
2: Subsection (1) is subject to section 9A(3) Section 20 substituted 1 July 2009 section 26 Court Martial Appeals Amendment Act 2007
20A: Judge may grant bail pending appeal
1: On an appeal under section 9(1)
a: is not entitled to bail as of right; and
b: may not go at large without bail.
2: A Judge of the court may, on an application for bail by the appellant,—
a: grant bail to the appellant:
b: impose any conditions of bail that the Judge thinks fit.
3: In determining whether to grant bail under this section, the Judge—
a: must take into account all of the following considerations:
i: the seriousness of the offence:
ii: whether there are urgent and exceptional circumstances that favour the granting of bail:
iii: the effect on service discipline of releasing the person on bail; and
b: may take into account the considerations set out in section 14(3)
c: must not grant bail unless satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.
4: The onus is on the appellant to show cause why bail should be granted. Section 20A inserted 1 July 2009 section 27 Court Martial Appeals Amendment Act 2007
20B: Issue of warrant to arrest appellant absconding or breaching bail condition
1: A Judge may issue a warrant in the prescribed form for the arrest of an appellant who has been released on bail under section 20A
a: the Judge is satisfied by evidence on oath that—
i: the appellant has absconded or is about to abscond for the purpose of evading justice; or
ii: the appellant has contravened or failed to comply with any condition of bail; or
b: the appellant does not attend personally at the time and place specified in the grant of bail.
2: The warrant—
a: must be directed to every provost officer and every constable
b: may be executed by—
i: a provost officer:
ii: a person lawfully exercising authority under or on behalf of a provost officer:
iii: a constable
3: For the purpose of executing the warrant, a person referred to in subsection (2)﻿(b) may, at any time, enter on to any premises, by force if necessary, if he or she has reasonable grounds to believe that the appellant against whom it is issued is on those premises.
4: The person executing the warrant—
a: must have the warrant with him or her; and
b: must produce it on initial entry and, if requested, at any subsequent time; and
c: must, if he or she is not in uniform, produce evidence that he or she is one of the persons referred to in subsection (2)﻿(b). Section 20B inserted 1 July 2009 section 27 Court Martial Appeals Amendment Act 2007
20C: Appellant arrested under warrant for absconding or breaching bail condition must be brought before Judge
1: An appellant who is arrested under a warrant issued under section 20B
2: The Judge must reconsider the question of bail if satisfied that the appellant—
a: had absconded or was about to abscond; or
b: has contravened or failed to comply with any condition of bail. Section 20C inserted 1 July 2009 section 27 Court Martial Appeals Amendment Act 2007
21: Removal of prisoners for purposes of proceedings under this Act
Provision may be made—
a: by orders made by the Chief of Defence Force
b: by regulations made under the Corrections Act 2004 as to the manner in which an appellant, when in custody, is to be taken to, kept in custody at, and brought back from any place at which he is entitled to be present for the purposes of this Act or to any place to which the court, or any Judge of the court, may order him to be taken for the purpose of any proceedings of the court. Section 21 substituted 1 December 1983 section 208(1) Armed Forces Discipline Act 1971 Section 21(a) amended 1 April 1990 section 105(1) Defence Act 1990 Section 21(b) amended 1 June 2005 section 206 Corrections Act 2004
22: Furnishing, on appeal, documents relating to trial
In every appeal under section 7 9 Section 22 substituted 1 July 2009 section 28 Court Martial Appeals Amendment Act 2007
23: Duties of Registrar with respect to appeals, etc
1: The Registrar shall take all necessary steps for obtaining the determination of an appeal or application under this Act, and shall obtain and lay before the court in proper form all documents, exhibits, and other things relating to the proceedings in the Court Martial
2: The Registrar shall furnish the necessary forms and instructions relating to applications for leave to appeal under this Act to any person who demands them, to persons in charge of places where persons sentenced by the Court Martial Courts-Martial (Appeals) Act 1951 s 19 (UK) Section 23(1) amended 1 July 2009 section 29(1) Court Martial Appeals Amendment Act 2007 Section 23(2) amended 1 July 2009 section 29(2) Court Martial Appeals Amendment Act 2007 Special references to the court
24: Special references to court
1: The Judge Advocate General may refer to the court a finding made, a conviction entered, or a sentence passed in any proceedings in the Court Martial if the Judge Advocate General thinks that it is in the interests of justice or discipline to do so.
2: The Minister may refer to the court a finding made in any proceedings in the Court Martial if the Minister thinks that the court should consider or reconsider that finding because of matters that the Minister considers have not been brought to the notice of the Court Martial.
3: A referral under this section must, for the purposes of this Act, be treated as an appeal against conviction by the person convicted.
4: In this section, finding Section 24 substituted 1 July 2009 section 30 Court Martial Appeals Amendment Act 2007
24A: Person concerned must be informed of reference and may comment
1: The Registrar must, as soon as practicable after receiving a reference from the Judge Advocate General or the Minister under section 24
a: a copy of the reference; and
b: a notice, in the prescribed form, that—
i: asks for the person’s written views on the finding, conviction, or sentence concerned to be sent to the Registrar within the prescribed period; and
ii: asks for the person’s written advice as to whether he or she wants to be legally represented at an oral hearing of the matter to be sent to the Registrar within the prescribed period; and
iii: advises him or her of the effect of subsection (2).
2: The court may deal with a reference from the Judge Advocate General or the Minister by way of a hearing on the papers if the person who is sent a notice under subsection (1)—
a: indicates that he or she does not want to be legally represented at an oral hearing of the matter; or
b: otherwise indicates that he or she does not require an oral hearing of the matter; or
c: does not provide written advice under subsection (1)﻿(b)﻿(ii) within the prescribed period.
3: In this section, prescribed period Section 24A inserted 1 July 2009 section 30 Court Martial Appeals Amendment Act 2007 Miscellaneous
25: Exercise of certain court powers by 1 Judge
1: A Judge of the court may exercise any of the following powers of the court under this Act in the same manner, and subject to the same provisions, as they may be exercised by the court:
a: to give leave to appeal against a ruling under section 7
b: to extend the period within which an application for leave to appeal against a ruling under section 7
c: to allow an appellant to be present at any proceedings under this Act.
2: However, if the Judge refuses an application for the exercise of any of the powers specified in subsection (1), the appellant or the Director of Military Prosecutions, on making a request to the court, is entitled to have the application determined by the court as duly constituted for the hearing and determination of appeals under this Act.
3: A request under subsection (2) must be made—
a: within the prescribed period; and
b: in the prescribed form and manner. Section 25 substituted 1 July 2009 section 31 Court Martial Appeals Amendment Act 2007
26: Rules of court
1: Rules of court may be made in the manner provided by the Senior Courts Act 2016
2: Rules of court made for the purposes of any provision of this Act may make different provision in relation to different classes of cases and may provide for any incidental or supplementary matters for which it appears to be necessary or expedient for the purposes of that provision to provide.
3: Rules under this section are secondary legislation ( see Part 3 Courts-Martial (Appeals) Act 1951 s 22 (UK) The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 26(1) amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 26(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
26A: Regulations
1: The Governor-General may from time to time, by Order in Council, make regulations, not inconsistent with this Act, for all or any of the following purposes:
a: providing for the payment of such fees, allowances, and expenses as may be fixed or determined by or in accordance with the regulations to the following persons (other than members of the regular forces):
i:
ii: a person appointed by the court under section 11(1)﻿(c)
iii: a person appointed by the court under section 11(1)﻿(e)
iv: a person appointed by the court under section 11(1)﻿(f)
b: prescribing the fees, allowances, and expenses payable to witnesses, and other expenses referred to in subsection (2) of section 16
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 26A inserted 28 July 1997 section 7 Courts Martial Appeals Amendment Act 1997 Section 26A(1)﻿(a)﻿(i) repealed 1 July 2009 section 33(1) Court Martial Appeals Amendment Act 2007 Section 26A(1)﻿(a)﻿(ii) substituted 1 July 2009 section 33(2) Court Martial Appeals Amendment Act 2007 Section 26A(1)﻿(a)﻿(iii) added 1 July 2009 section 33(2) Court Martial Appeals Amendment Act 2007 Section 26A(1)﻿(a)﻿(iv) added 1 July 2009 section 33(2) Court Martial Appeals Amendment Act 2007 Section 26A(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
27: Saving for prerogative of mercy
Nothing in this Act shall affect Her Majesty’s Royal prerogative of mercy. Courts-Martial (Appeals) Act 1951 s 27 (UK)