Court Martial Appeals Amendment Act 2007

1: Title
This Act is the Court Martial Appeals Amendment Act 2007.
2: Commencement
This Act comes into force on a date to be appointed by the Governor-General by Order in Council, and 1 or more orders may be made appointing different dates for different provisions. OIC SR 2008/234 2009-07-01 Courts Martial Appeals Act 1953 Section 2 brought into force 1 July 2009 Court Martial Appeals Amendment Act 2007 Commencement Order 2008
3: Principal Act amended
This Act amends the Act that was previously called the Courts Martial Appeals Act 1953
4: Name of Courts Martial Appeals Act 1953 changed
1: After the commencement of this section, the Courts Martial Appeals Act 1953 Court Martial Appeals Act 1953
2: The Title of the Courts Martial Appeals Act 1953
a: by omitting Courts Martial Appeal Court Court Martial Appeal Court
b: by omitting courts martial the Court Martial
3: Section 1(1) Courts Court
4: Every reference in any enactment or in any document to the Courts Martial Appeals Act 1953 Court Martial Appeals Act 1953
5: Interpretation
1: The definition of appellant section 2(1) a court martial the Court Martial
2: The definition of Court section 2(1) Courts Court
3: Section 2(1) court martial Court Martial section 8 of the Court Martial Act 2007 Director of Military Prosecutions section 101E of the Armed Forces Discipline Act 1971 Judge Advocate General section 203 of the Armed Forces Discipline Act 1971
4: Section 2(3)
6: Heading above section 3 amended
The heading above section 3 Courts Court
7: Constitution of Courts Martial Appeal Court
1: The heading to section 3 Courts Court
2: Section 3 Courts Martial Appeal Court Court Martial Appeal Court
3: Section 3 subsections (2) and (3)
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)
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)
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.
8: Supplementary provisions as to Court
Section 4 Chief Justice Chief High Court Judge
9: Registrar and officers of Court
Section 5(2) Courts Court
10: New sections 6 to 9AC substituted
Sections 6 to 9A
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.
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)
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) of the Court Martial Act 2007
i: an application for an order specified in section 39(2) of the Court Martial Act 2007
j: an order under any of sections 139 to 141 of the Criminal Justice Act 1985 Armed Forces Discipline Act 1971 section 145 of that Act
k: an application for discovery.
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.
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)
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
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 squash 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.
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.
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).
11: Variation of conviction so as to attract different sentence
1: Section 9B court martial Court Martial
2: Section 9B(1) by which he was tried
12: Section 9C repealed
Section 9C
13: Term of sentence passed under sections 9, 9A, 9B, and 9C
1: The heading to section 9D sections, 9, 9A, 9B, and 9C sections 9AB, 9AC, and 9B
2: Section 9D(1) section 9, section 9A, section 9B, or section 9C of this Act section 9AB, 9AC, or 9B
3: Section 9D(2)
2: A sentence passed by the Court under section 9AB, 9AC, or 9B is deemed to be a sentence passed by the Court Martial for the purposes of the Armed Forces Discipline Act 1971
4: Section 9D
a: by omitting a court martial the Court Martial
b: by omitting the court martial the Court Martial
14: Appeal against acquittal on account of insanity
1: Section 9E(1) a court martial the Court Martial
2: Section 9E the court martial the Court Martial
15: Appeal by accused against finding relating to fitness to stand trial
1: Section 9EA(1) a court martial the Court Martial
2: Section 9EA(7)
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 101E(c) of the Armed Forces Discipline Act 1971
16: Powers of Court to acquit on account of insanity on appeal against conviction
Section 9F(2)
a: by omitting a court martial the Court Martial
b: by omitting courts martial the Court Martial
17: New section 10 substituted
Section 10
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, or 9
2: Subsection (1) section 14 of the Supreme Court Act 2003
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.
18: Appeals to Supreme Court from Court of Appeal
Section 10A the appellant in an appeal to the Court of Appeal under section 10(3) a party to an appeal to the Court of Appeal under section 10
19: New section 10B substituted
Section 10B
10B: Effect of appeal
Neither an application for leave to appeal, nor an appeal, under section 10 or 10A
20: Powers and procedure of Court of Appeal and Supreme Court
Section 10C
a: omitting section 10(3) or section 10A or section 10B(1) section 10 or 10A
b: omitting Courts Martial Appeal Court Court
21: Supplementary powers of the Court
1: Section 11(b)
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: .
2: Section 11
2: The Court must not make an order under subsection (1)(b)
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.
22: New section 12 substituted
Section 12
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)
23: Section 13 repealed
Section 13
24: Defence of appeals
Section 15
a: by omitting a court martial the Court Martial
b: by omitting Chief of Defence Force Director of Military Prosecutions
25: Court may make an order for the payment of compensation or restitution of property
1: Section 19 a court martial the Court Martial
2: Section 19(1) the court martial which tried the appellant the Court Martial
3: Section 19(2) a reviewing authority has approved or varied the order or has not yet reviewed the order, or where a reviewing authority has made an order under subsection (1) of section 160 of the said Armed Forces Discipline Act 1971
4: Section 19(2)(d) to the authority
26: New section 20 substituted
Section 20
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) section 9A(3)
27: New sections 20A to 20C inserted
The following sections are inserted after section 20
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) of the Bail Act 2000
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.
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 member of the police; and
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 member of the police.
3: For the purpose of executing the warrant, a person referred to in subsection (2)(b)
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)
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.
28: New section 22 substituted
Section 22
22: Furnishing, on appeal, documents relating to trial
In every appeal under section 7 or 9
29: Duties of Registrar with respect to appeals, etc
1: Section 23(1) court martial before which the appellant or applicant was tried Court Martial
2: Section 23(2) court martial the Court Martial
30: New sections 24 and 24A substituted
Section 24
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
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)
3: In this section, prescribed period subsection (1)(b)
31: New section 25 substituted
Section 25
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)
3: A request under subsection (2)
a: within the prescribed period; and
b: in the prescribed form and manner.
32: Rules of Court
Section 26(1) Judicature Amendment Act 1930 Judicature Act 1908
33: Regulations
1: Section 26A(a)(i)
2: Section 26A(a)(ii)
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) .
3: The enactment, by subsection (2) Courts Martial Appeals Act 1953
34: Continuation of existing proceedings before Court
1: This section applies to proceedings before the Court—
a: that were commenced before the commencement of this section; and
b: that are not withdrawn or finally determined before that commencement.
2: Proceedings to which this section applies are to be continued and completed under the principal Act as if this Act had not been enacted.
35: Consequential amendments to other enactments
The enactments specified in the Schedule are amended in the manner indicated in that schedule. OIC SR 2008/234 2009-07-01 Courts Security Act 1999 Electronic Transactions Act 2002 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 Oaths and Declarations Act 1957 Remuneration Authority Act 1977 Supreme Court Act 2003 Corrections Regulations 2005