Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Defence Legislation Amendment Bill 2007

Schedule 2 Appeals to the Australian Military Court

Part 1 Main amendments

Defence Force Discipline Act 1982

1  Subsection 67(1)

Omit “The”, substitute “Subject to sections 166, 167 and 167A, the”.

2  Subsections 115(3) and (4)

Repeal the subsections, substitute:

             (3)  The Australian Military Court has jurisdiction to hear and determine appeals from decisions of summary authorities (including a decision relating to a charge of a custodial offence).

Note:          Part IX deals with appeals to the Australian Military Court.

3  Subsection 116(1)

After “Australian Military Court”, insert “(including the Court’s jurisdiction to hear and determine appeals from decisions of summary authorities)”.

4  Subsection 118(2)

Repeal the subsection, substitute:

Nomination of Military Judge to try charge or hear appeal

             (2)  The Chief Military Judge must nominate the Military Judge who is:

                     (a)  to try a charge referred to the Australian Military Court; or

                     (b)  to hear and determine an appeal to the Australian Military Court.

5  Before section 132A

Insert:

132   Application of Division

                   This Division does not apply to an appeal to the Australian Military Court from a decision of a summary authority.

Note:          Part IX deals with appeals to the Australian Military Court.

6  Subdivision A of Division 3 of Part VIII (heading)

Repeal the heading, substitute:

Subdivision A General provisions relating to trials

7  Before section 138

Insert:

137A   Application of Subdivision

                   This Subdivision does not apply to an appeal to the Australian Military Court from a decision of a summary authority.

Note:          Part IX deals with appeals to the Australian Military Court.

8  After subparagraph 149A(a)(x)

Insert:

                           (xa)  matters relating to appeals to the Court; and

9  Part IX

Repeal the Part, substitute:

Part IX Appeals to the Australian Military Court

Division 1 Definitions

160   Definitions

                   In this Part:

appeal means an appeal to the Australian Military Court under this Part.

appellant means a person who has lodged an appeal.

Part IV order means a restitution order, a reparation order or an order made under subsection 75(1).

Division 2 Bringing of appeals

161   Appeals to the Australian Military Court

             (1)  A person who has been convicted of a service offence by a summary authority may appeal to the Australian Military Court against:

                     (a)  his or her conviction; or

                     (b)  a punishment imposed, or a Part IV order made, by the summary authority in respect of his or her conviction.

             (2)  An appeal to the Australian Military Court:

                     (a)  must specify the grounds on which the appeal is brought; and

                     (b)  must be lodged with the Registrar or with such other person as is prescribed:

                              (i)  within the appropriate period; or

                             (ii)  within such longer period as the Court, either before or after the expiration of the appropriate period, allows.

             (3)  For the purposes of subparagraph (2)(b)(i) and subject to subsections (4) and (5), the appropriate period is:

                     (a)  if the appeal is against a conviction—the period of 14 days beginning on the day of the conviction; or

                     (b)  if the appeal is against a punishment or a Part IV order—the period of 14 days beginning on the day on which the punishment or the Part IV order takes effect.

Note:          Some punishments and orders under Part IV do not take effect unless they are approved by a reviewing authority: see subsections 172(2) and (3).

             (4)  If a summary authority has reopened proceedings in response to a request by a reviewing authority under section 153:

                     (a)  the convicted person may not appeal to the Australian Military Court in relation to the proceedings until after the summary authority has completed dealing with the reopened proceedings; and

                     (b)  for the purposes of subparagraph (2)(b)(i), the appropriate period is:

                              (i)  if the appeal is against the person’s conviction—the period of 14 days beginning on the day on which, under Part VIIIA, the person is given notice of the results of the review of the proceedings (including the reopening of the proceedings); or

                             (ii)  if the appeal is against a punishment imposed on the person or a Part IV order made in relation to the person—the period of 14 days beginning on the day on which the punishment or the Part IV order takes effect.

             (5)  If a reviewing authority gives a convicted person a notice under subsection 155(2) recommending that the person consider appealing to the Australian Military Court against the conviction, or any punishment imposed or order made under Part IV in respect of the conviction, then, for the purposes of subparagraph (2)(b)(i), the appropriate period is the period of 14 days beginning on the date on which the notice is given.

Division 3 Determination of appeals

162   Quashing of conviction—conviction unreasonable etc.

                   If, in an appeal against a conviction by a summary authority, it appears to the Australian Military Court:

                     (a)  that, having regard to the evidence, the conviction is unreasonable or cannot be supported; or

                     (b)  that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction was wrong in law and that a substantial miscarriage of justice has occurred; or

                     (c)  that there was a material irregularity in the course of the proceedings before the summary authority and that a substantial miscarriage of justice has occurred; or

                     (d)  that, in all the circumstances of the case, the conviction is unsafe or unsatisfactory;

the Court must allow the appeal and quash the conviction.

163   Quashing of conviction—new evidence available

             (1)  If, in an appeal against a conviction by a summary authority, it appears to the Australian Military Court that there is evidence that:

                     (a)  was not reasonably available during the proceedings before the summary authority; and

                     (b)  is likely to be credible; and

                     (c)  would have been admissible in the proceedings before the summary authority;

the Court must receive and consider that evidence.

             (2)  If:

                     (a)  the Australian Military Court receives and considers evidence under subsection (1); and

                     (b)  it appears to the Court that the conviction cannot be supported having regard to that evidence;

the Court must allow the appeal and quash the conviction.

164   Quashing of conviction—person suffering from mental impairment

             (1)  Subject to subsection (3), if, in an appeal against a conviction by a summary authority, it appears to the Australian Military Court that the summary authority should have found that the appellant, by reason of mental impairment, was not able to understand the proceedings against him or her and, accordingly, was unfit to stand trial, the Court must:

                     (a)  allow the appeal; and

                     (b)  quash the conviction; and

                     (c)  direct that the appellant be kept in strict custody until the pleasure of the Governor-General is known.

             (2)  Subject to subsection (3), if, in an appeal against a conviction by a summary authority, it appears to the Australian Military Court that, at the time of the act or omission to which the conviction relates, the appellant was suffering from such mental impairment as not to be responsible, in accordance with law, for that act or omission, the Court must:

                     (a)  allow the appeal and quash the conviction; and

                     (b)  substitute for the conviction an acquittal on the ground of mental impairment; and

                     (c)  direct that the appellant be kept in strict custody until the pleasure of the Governor-General is known.

             (3)  The Australian Military Court must not quash a conviction under this section if there are grounds for quashing the conviction under section 162 or 163.

165   Australian Military Court may order new trial

             (1)  If, in an appeal, the Australian Military Court quashes a conviction of a person of a service offence, the Court may, if it considers that in the interests of justice the person should be tried again, order a new trial of the person for the service offence.

             (2)  If the Australian Military Court orders a new trial of a person under subsection (1), the trial must be by the Australian Military Court.

Note:          Division 2 of Part VIII deals with trials by the Australian Military Court.

             (3)  If the Australian Military Court orders a new trial of a person under subsection (1), the Court must make such further orders for the custody of the person pending the new trial as the Court considers are appropriate.

165A   Person taken to have been acquitted

                   For the purposes of this Act, if the Australian Military Court quashes a conviction of a person of a service offence and does not order a new trial of the person for the offence, the person is taken to have been acquitted of the offence.

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.

167   Powers of Court in an appeal against a punishment

             (1)  In an appeal by a convicted person against a punishment imposed on the person by a summary authority, the Australian Military Court, in its discretion, may confirm, quash or vary the punishment.

             (2)  If the Australian Military Court quashes the punishment:

                     (a)  the punishment does not take effect; and

                     (b)  the Court may take such action under Part IV (including imposing a punishment or making an order or both) in relation to the convicted person as the summary authority could have taken under that Part in relation to the person.

             (3)  If the Australian Military Court varies the punishment, the punishment takes effect as varied.

             (4)  The Australian Military Court must not vary a punishment imposed on a convicted person by a summary authority in such a way that the varied punishment would not be a punishment that the summary authority could have imposed on the person under Part IV.

167A   Powers of Court in an appeal against a Part IV order

             (1)  In an appeal by a convicted person against a Part IV order made in relation to the person by a summary authority, the Australian Military Court, in its discretion, may confirm, revoke or vary the order.

             (2)  If the Australian Military Court revokes the Part IV order:

                     (a)  the order does not take effect; and

                     (b)  the Court may take such action under Part IV (including imposing a punishment or making an order or both) in relation to the convicted person as the summary authority could have taken under that Part in relation to the person.

             (3)  If the Australian Military Court varies the Part IV order, the order takes effect as varied.

             (4)  The Australian Military Court must not vary a Part IV order made in relation to a convicted person by a summary authority in such a way that the varied order would not be an order that the summary authority could have made in relation to the person under Part IV.

167B   Frivolous or vexatious appeals

                   If the Australian Military Court dismisses an appeal on the grounds that the appeal was frivolous or vexatious, the Court may order that any punishment of detention imposed on the appellant in the proceedings in relation to which the appeal was brought must be taken to commence on the day the appeal is dismissed.

Division 4 General provisions relating to appeals

168   Representation of parties in an appeal

             (1)  Subject to subsection (2), sections 136 and 137 apply in relation to an appeal as if:

                     (a)  references to a trial were references to an appeal; and

                     (b)  references to an accused person were references to an appellant.

Note:          Section 188GB deals with appearances by or on behalf of the Director of Military Prosecutions in proceedings before the Australian Military Court.

             (2)  Subsection 137(1) applies in relation to an appeal as if the reference to an accused person awaiting trial by the Australian Military Court were a reference to an appellant in an appeal before the Australian Military Court.

168A   Hearings

             (1)  The Australian Military Court may determine an appeal:

                     (a)  by holding a hearing; or

                     (b)  by considering, without holding a hearing, the documents or other material provided to the Court in relation to the appeal.

However, the Court must hold a hearing if it appears to the Court that the issues for determination cannot be adequately determined in the absence of the parties.

             (2)  For the purpose of determining an appeal, the Australian Military Court may order a party to the appeal or the Director of Military Prosecutions to produce such documents or other information as the Court specifies in the order.

             (3)  If the Australian Military Court decides to hold a hearing for the purpose of determining an appeal, the hearing must, subject to subsection (4), be held in the presence of the appellant.

             (4)  If:

                     (a)  the Australian Military Court decides to hold a hearing for the purpose of determining an appeal; and

                     (b)  the Court considers that, by reason of the disorderly behaviour of the appellant, it is impossible to continue the hearing in his or her presence;

the Court may order that the appellant be removed from the place of hearing and be held in custody elsewhere.

168B   Evidence

             (1)  Section 146A applies to an appeal in the same way as it applies to proceedings before a summary authority.

             (2)  For the purposes of subsection (1):

                     (a)  references to proceedings before a summary authority are to be read as references to an appeal before the Australian Military Court; and

                     (b)  references to a summary authority are to be read as references to the Australian Military Court; and

                     (c)  in subsection 146A(1), the words “(including proceedings for the purpose referred to in subsection 111A(1))” are to be omitted.

168C   Judicial notice of service matters

                   In determining an appeal, the Australian Military Court must take judicial notice of all matters within the general service knowledge of the Court.

168D   Record of proceedings to be kept

             (1)  The Australian Military Court:

                     (a)  must keep a record of an appeal determined by the Court; and

                     (b)  must include in that record such particulars as are required by the rules of procedure.

             (2)  A record referred to in subsection (1) must not be made publicly available but may be published for service purposes in accordance with the rules of procedure.

168E   Use of video and audio links

                   Subdivision B of Division 3 of Part VIII applies to appeal proceedings before the Australian Military Court.

10  Section 188GB

Omit “a trial of a charge by”, substitute “proceedings before”.

11  Subparagraphs 188GB(b)(i) and (ii)

Omit “trial is”, substitute “proceedings are”.

12  At the end of subsection 191(1)

Add:

               ; or (e)  the determination or dismissal of an appeal under Part IX.



 

Part 2 Consequential amendments

Defence Force Discipline Act 1982

13  Subsection 3(1) (definition of prescribed acquittal )

Repeal the definition.

14  Subsections 71(1A), (2) and (3)

Omit “whom it has”, substitute “who has been”.

15  After subsection 103(2)

Insert:

          (2A)  If, under section 165, the Australian Military Court orders a new trial of a person, the Director of Military Prosecutions may request the Registrar to refer the charge that was the subject of the proceedings to which the appeal relates to the Australian Military Court for a new trial.

16  Subsection 103(3)

After “(2)”, insert “or (2A)”.

17  At the end of subsection 144(1)

Add:

Note:          If a person has been convicted of a service offence by a summary authority, the Australian Military Court may, in an appeal against the conviction, quash the conviction and order a new trial of the person for the offence: see section 165.

18  After section 172

Insert:

172A   Suspension of operation of restitution orders and reparation orders made by a summary authority

             (1)  The operation of a restitution order or a reparation order made by a summary authority is suspended:

                     (a)  until the expiration of the period in which, under Part IX, an appeal to the Australian Military Court against the order, or the conviction in relation to which the order was made, may be lodged, but not in any case beyond the time specified in paragraph (b); and

                     (b)  if such an appeal is lodged—until the appeal is finally determined or abandoned.

             (2)  If, in relation to a restitution order, the summary authority is satisfied that the title to the property in relation to which the order is made is not in dispute, the summary authority may direct that subsection (1) is not to apply to the order.

             (3)  If the operation of a restitution order or a reparation order is suspended under subsection (1), the order does not take effect if the conviction in relation to which the order is made is quashed on appeal.

Note:       The heading to section 173 is altered by adding at the end “ made by the Australian Military Court ”.

19  Subsection 176(1)

Repeal the subsection, substitute:

             (1)  If:

                     (a)  a summary authority has imposed a punishment on a convicted person; and

                     (b)  the convicted person notifies the summary authority that he or she has appealed to the Australian Military Court under Part IX against the conviction or the punishment;

the summary authority must order that the execution of the punishment be stayed, in whole or in part, pending the determination of the appeal.

20  Subsection 194(1)

Omit “or 158”, substitute “or 164”.

Defence Force Discipline Appeals Act 1955

21  Section 4 (at the end of the definition of convicted person )

Add “(other than under Part IX of the Defence Force Discipline Act 1982 )”.

22  Section 4 (at the end of the definition of conviction )

Add “(other than under Part IX of the Defence Force Discipline Act 1982 )”.

23  Section 4 (at the end of the definition of court order )

Add:

; but does not include an order made in an appeal under Part IX of the Defence Force Discipline Act 1982 .

24  Section 4 (definition of prescribed acquittal )

After “Court”, insert “(other than under Part IX of the Defence Force Discipline Act 1982 )”.

25  Section 4 (definition of prescribed acquitted person )

After “Court”, insert “(other than under Part IX of the Defence Force Discipline Act 1982 )”.

26  Section 4 (at the end of the definition of punishment )

Add “(other than under Part IX of that Act)”.