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Defence Legislation Amendment Bill 2007

Schedule 3 Evidence in summary proceedings

   

Defence Force Discipline Act 1982

1  At the end of subsection 111A(1)

Add:

Note:          A summary authority is not bound by the rules of evidence and may hear any evidence that it considers to be of assistance and relevance in proceedings for the purpose referred to in this subsection: see section 146A.

2  Subsection 111A(2)

Omit “Without limiting the generality of subsection 146(2), regulations made by virtue of that subsection”, substitute “The regulations”.

3  Subsection 146(1)

Omit “proceedings before a service tribunal”, substitute “a trial by the Australian Military Court”.

Note:       The heading to section 146 is replaced by the heading “ Evidence in trials by the Australian Military Court ”.

4  Paragraph 146(1)(a)

Omit “the tribunal”, substitute “the Australian Military Court”.

5  Paragraph 146(1)(b)

Omit “the proceedings were criminal proceedings”, substitute “the trial were a criminal proceeding”.

6  Subsection 146(2)

Omit “proceedings before a service tribunal”, substitute “trials by the Australian Military Court”.

7  Subsection 146(2)

Omit “such proceedings”, substitute “such trials”.

8  After section 146

Insert:

146A   Evidence in proceedings before a summary authority

             (1)  In proceedings before a summary authority (including proceedings for the purpose referred to in subsection 111A(1)), the summary authority:

                     (a)  must comply with the Summary Authority Rules; and

                     (b)  consistently with those Rules:

                              (i)  must act with as little legal formality or legal technicality as possible, while ensuring fairness; and

                             (ii)  is, subject to this Act, not bound by the rules of evidence, whether statutory or common law; and

                            (iii)  may admit any documents or call any witnesses that the summary authority considers to be of assistance and relevance; and

                            (iv)  may give such weight as the summary authority considers appropriate to any evidence admitted under subparagraph (iii), having regard to the importance of the evidence in the proceedings and its probative value.

Note:          The Summary Authority Rules may make provision in relation to the giving of testimony and other evidence.

             (2)  Nothing in this section allows a person to be compelled to testify against himself or herself, or to give particular evidence, in proceedings before a summary authority, if doing so might tend to incriminate the person or expose the person to a penalty.

             (3)  This section does not affect the law relating to legal professional privilege.

9  Section 147

Repeal the section, substitute:

147   Judicial notice of service matters

             (1)  In addition to the matters of which judicial notice may be taken by a court under the rules of evidence referred to in section 146, the Australian Military Court must take judicial notice of all matters within the general service knowledge of:

                     (a)  the Court; and

                     (b)  if the proceedings are before a military jury—the jury.

             (2)  In proceedings before a summary authority, the summary authority must take judicial notice of all matters within the general service knowledge of the summary authority.

10  Section 149

Omit “Judge Advocate General”, substitute “Chief Military Judge”.

11  Paragraph 149(a)

After “attendance”, insert “and compellability”.

12  After paragraph 149(a)

Insert:

                    (aa)  the giving of testimony and other evidence; and