Document ID: chunk:federal_register_of_legislation:C2008A00006:clause:2_166
Version: federal_register_of_legislation:C2008A00006
Segment Type: clause
Provision Reference: sch 2 cl 166
Character Range: 46438–48679

166  Substitution of conviction for alternative offence

 (1) If, in an appeal, the Australian Military Court quashes a conviction of a person of a service offence (the original offence) but considers:
 (a) that the summary authority that convicted the person could have found the person guilty of another offence, being:
 (i) a service offence that is an alternative offence, within the meaning of section 142, in relation to the original offence; or
 (ii) a service offence with which the person was charged in the alternative and in respect of which the summary authority did not record a finding; and
 (b) that the summary authority, because of its finding that the person was guilty of the original offence, must have been satisfied beyond reasonable doubt of facts that prove that the person was guilty of the other offence;
the Australian Military Court may substitute for the conviction of the original offence a conviction of the other offence.

 (2) If, under subsection (1), the Australian Military Court substitutes for the conviction of the original offence a conviction of another service offence, the Court may take such action under Part IV, in relation to the convicted person, as the summary authority that convicted the person could have taken under that Part if the summary authority had convicted the person of the other service offence.

 (3) However, the Australian Military Court must not do any of the following under subsection (2):
 (a) impose a punishment for the other service offence unless the summary authority had imposed a punishment for the original offence;
 (b) make a reparation order with respect to the other service offence unless the summary authority had made a reparation order with respect to the original offence;
 (c) if the summary authority had imposed a punishment (the original punishment) for the original offence—impose a punishment for the other service offence that is more severe than the original punishment;
 (d) if the summary authority had made a reparation order (the original reparation order) with respect to the original offence—make a reparation order with respect to the other service offence that is for an amount that exceeds the amount of the original reparation order.