This Part applies to appeals to the Summary Appeal Court.

The Summary Appeal Court may direct, authorise, or accept a departure from these rules for reasons of urgency or for any other reason.

If, in any proceedings before the Summary Appeal Court, a question arises about the application of these rules, the court may determine the question and give any directions that the court thinks fit.

Subclauses (1) and (2) apply on the application of any party or on the court’s own initiative.

The forms to be used in proceedings in the Summary Appeal Court are set out in the Schedule of these rules.

An appeal under section 124 of the 1971 Act must be made by notice of appeal in form 1 of the Schedule of these rules.

The appellant must sign a notice of appeal unless—

An appellant who is unable to write must affix his or her mark on the notice in the presence of a witness who must also sign the notice.

A notice, required to be signed by an appellant who contends that the appellant was not responsible for his or her actions on the ground that he or she was insane at the relevant time, may be signed by the appellant’s solicitor or counsel or by any other person authorised to act on the appellant’s behalf.

An appellant who seeks an extension of time within which to appeal may include an application for an extension of time within his or her notice of appeal by completing the relevant part of the form.

A notice in form 1 that is given out of time must be treated as if it contains an application for extension of time.

If a ground of appeal is that the punishment imposed on the appellant was too severe because of disparity with a punishment imposed on a co-offender, that ground of appeal must be stated in the notice of appeal.

A special reference by the Judge Advocate General must be lodged with the Registrar in form 2 of the Schedule of these rules.

For the purposes of section 129 of the 1971 Act, in addition to the matters referred to in section 129(3)(b) and (c), the reference must specify whether the Judge Advocate General intends to appoint counsel as amicus curiae.

The notice required under section 130(1)(b) of the 1971 Act to be given by the Registrar, after receiving a special reference from the Judge Advocate General, to the person found guilty of the offence must be in form 3 of the Schedule of these rules.

A petition to the Judge Advocate General under section 129(4) of the 1971 Act to make a special reference must be in form 4 of the Schedule of these rules.

The form must be sent to the Judge Advocate General at the Office of the Judge Advocate General, c/o Headquarters, New Zealand Defence Force, Wellington.

The petition is brought when the Judge Advocate General receives the form duly completed.

The disciplinary officer must, on receiving a copy of a notice of appeal from the Registrar under section 126(1) of the 1971 Act,—

For the purposes of section 126(2) of the 1971 Act, the documents that the disciplinary officer must send to the Registrar within 14 days of receiving a copy of the notice of appeal are—

If the Summary Appeal Court obtains a report from a disciplinary officer under section 135(a) of the 1971 Act, the Registrar must disclose the report—

In this rule, authorities bundle means a bundle of authorities and legislation on which a party relies.

This rule applies whenever written submissions are filed, whether for the purpose of an appeal on the papers or of an oral appeal.

At the time a party provides his or her submissions to the Summary Appeal Court (see rules 36 and 38), he or she must also provide to the court 2 copies of an authorities bundle for court use.

An authorities bundle must contain—

This rule applies to oral appeals.

The Registrar must allocate a fixture for every oral appeal.

Notice of the time and place fixed for the hearing must be given by the Registrar to—

This rule applies to oral appeals.

The appellant must provide full written submissions on the appeal.

The appellant must provide his or her written submissions to the Summary Appeal Court and to the Director of Military Prosecutions no less than 15 working days before the hearing date.

The Director of Military Prosecutions must provide his or her written submissions to the Summary Appeal Court and to the appellant no less than 10 working days before the hearing date.

Two copies of the submissions must be provided for Court use.

A party who wishes to exercise the right of reply in an appeal under section 124 of the 1971 Act that is to be heard as an oral appeal must exercise that right orally at the hearing.

This rule and rule 39 apply to appeals on the papers.

For the purposes of this rule and rule 39,—

The Registrar must appoint a period of no less than 20 working days within which submissions may be made by the appellant in support of the appeal.

Notice of the period appointed by the Registrar under subclause (3) must be given by the Registrar to—

The Registrar must send to the Director of Military Prosecutions a copy of all written submissions received by the Summary Appeal Court, within the appointed period, from the appellant.

The Director of Military Prosecutions may make written submissions within 10 working days.

A copy of all written submissions received by the Summary Appeal Court from the Director of Military Prosecutions, within the 10-working-day period referred to in subclause (2), must be sent by the Registrar to the appellant.

The appellant may make written submissions in reply within a period of no less than 10 working days appointed by the Registrar.

The Registrar must send the Director of Military Prosecutions a copy of the appellant’s submissions in reply.

Each party must file in the Summary Appeal Court—

The Summary Appeal Court must not begin hearing an appeal on the papers until all the periods prescribed or appointed under rules 38 and 39 have expired.

The Summary Appeal Court may—

A judgment that is delivered orally is given when the Judge delivers it in open court.

A judgment that is reserved may be delivered—

If subclause (3)(a) applies,—

If subclause (3)(b) applies,—

The Registrar must, if requested to do so by a party,—

The Registrar must immediately after the delivery time, or in the case of a judgment delivered orally as soon as practicable after the judgment is transcribed, post a copy of the judgment to—

A failure by the Registrar to comply with subclause 4(b), 5(b), (6), or (7) does not affect the validity of the judgment or its delivery time.

A copy of the judgment signed by the Judge who heard the appeal must be retained by the registry.

This rule does not apply to minutes or procedural orders.

Every judgment, minute, or direction must identify on the face of it the Judge who made the decision or minute or gave the direction.

An appellant may, at any time, abandon an appeal by filing with the Registrar a notice advising that he or she—

The notice must be signed by—

If the notice is signed by the appellant personally, the appellant’s signature must be witnessed and the witness must add the witness’s address and description after the witness’s signature.

A notice under this rule must be in form 5 of the Schedule.

This rule applies if, on the trial of a person entitled to appeal under the 1971 Act, an order has been made by the disciplinary officer under section 117ZA of the 1971 Act.

Before an order is made by the Summary Appeal Court under section 134(1) of the 1971 Act, the following persons are entitled to be heard before the court:

An appellant who has paid a fine in accordance with a punishment and is successful on appeal is entitled, subject to the order of the Summary Appeal Court, to the return of the amount paid or a part of the amount paid, as the case may be.

The Registrar must keep a register, in any form he or she thinks fit, of all—

The register must be open for public inspection during the Summary Appeal Court’s ordinary office hours.

Notices may be given to the Summary Appeal Court by serving them by hand or by sending them to the Registrar, at his or her office, by post, fax, or any other written or printed means.

A notice may be given to a party—

The performance of any duty imposed on any person under Part 5A of the 1971 Act or these rules may be enforced by order of the Summary Appeal Court.

Non-compliance by a party with these rules does not prevent that party from continuing to take part in an appeal if the Summary Appeal Court considers that the non-compliance was of a trifling character or not wilful and that it may be waived or remedied by amendment or otherwise.

The Summary Appeal Court may, in any manner that it thinks fit,—

In any matter not expressly provided for by these rules, the Summary Appeal Court may give any direction that it thinks best calculated to carry out the purposes of Part 5A of the 1971 Act.

The Summary Appeal Court may extend or shorten the time appointed by these rules, or fixed by any order, for doing any act or taking any proceeding or any step in a proceeding on any terms that the court thinks just.

The Summary Appeal Court may exercise a power conferred by subclause (1)—

This rule applies if—

The Summary Appeal Court may correct the judgment or order or the reasons for the judgment or order on—

Subclause (2) applies if the Minister of Defence, or any person authorised to act on the Minister’s behalf, certifies that, for reasons of security, the whole or part of the proceedings or other document, exhibit, or other thing—

If this subclause applies, despite any other provision in these rules to the contrary, the Registrar must not permit inspection or supply a copy of the material to which the certificate relates without seeking a direction from the Summary Appeal Court.

Nothing in these rules affects any rule of law that authorises or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest.

This Part applies to proceedings in the Court Martial.

Any term or expression that is defined in the 2007 Act and used, but not defined, in this Part has the same meaning as in the 2007 Act.

The layout of every charge sheet must follow the appropriate form prescribed by the Chief of Defence Force.

The heading to every charge sheet must be in the appropriate form prescribed by the Chief of Defence Force and must—

A charge sheet is not invalid only because of an error in the heading, whether or not that error is corrected.

If the Court Martial discovers an error in the heading, it may correct it.

A charge sheet must contain the whole of the issue or issues to be tried at one time.

A charge sheet may contain 1 charge or several charges.

The Director of Military Prosecutions must ensure that every charge is drawn in accordance with the following provisions:

Subclause (1)(b) and (c) are subject to section 73(3) of the 1971 Act.

Any number of accused may be charged in the same charge sheet with offences alleged to have been committed by them separately if the facts on which the charges are founded are so connected that it is in the interests of justice that the accused be tried together.

Any number of accused may be charged in the same charge sheet with an offence alleged to have been committed by them jointly.

If subclause (2) applies, any 1 or more of the accused may be charged in the same charge sheet with any other offence alleged to have been committed by the accused, either jointly or separately, if the facts on which the charges are founded are so connected that it is in the interests of justice that the charges be included in the same charge sheet.

The Director of Military Prosecutions must, at the time a charge is drawn,—

Rule 10 applies to any additional disclosure.

Nothing in this rule limits the duties of the prosecutor under rule 70(3).

The notice to be given by the Registrar to the accused under section 26(1)(b) of the 2007 Act, relating to the assignment of military members to the Court Martial, must be given by personal service effected in the following way:

If the accused wishes to object under section 27 of the 2007 Act about the assignment of a person as a military member, the accused must, within 14 days after the notice of assignment is delivered to him or her,—

For the purposes of subclause (2), an objection is deemed to be served on the Registrar,—

After the accused is remanded for trial by the Court Martial, the accused must be given adequate time and facilities to prepare his or her defence.

So far as practicable, the accused must be allowed free communication with his or her defending officer (if one has been assigned), defender or counsel, and witnesses.

The Court Martial must ensure that a defender or counsel is appointed to—

Subclause (1) does not apply if the accused states in writing that he or she does not wish such an appointment to be made.

If a defender is appointed, the defender has the same rights and is subject to the same obligations under these rules as counsel.

As soon as practicable after the accused has been remanded for trial by the Court Martial, and in no case less than 72 hours before the trial, the Registrar must give the accused—

At the same time, the Registrar must inform the accused—

In this rule, evidence in support of an alibi means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time, the accused was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.

The accused must not adduce evidence in support of an alibi unless,—

A written notice of the particulars of an alibi given to the Director of Military Prosecutions must include—

The Court Martial must not grant leave under subclause (2)(b) unless it is satisfied that the accused has complied with the following requirements:

A notice of alibi purporting to be given under this rule on behalf of the accused by the accused’s counsel is deemed to be given with the authority of the accused, unless the contrary is proved.

Evidence tendered to disprove an alibi may be given before or after evidence is given in support of the alibi.

Subclause (1) is subject to any direction of the Court Martial as to the time at which evidence tendered to disprove an alibi may be given.

Every counsel appearing before the Court Martial has the same rights before the Court Martial as the Director of Military Prosecutions or the accused the counsel represents.

Nothing in subclause (1) confers on counsel for the accused any rights or powers that are conferred on the Director of Military Prosecutions by the 1971 Act, the 2007 Act, or these rules and exercisable by the Director of Military Prosecutions, or counsel on his or her behalf, exclusively in that capacity.

Counsel may—

Subclause (3) is subject to these rules and any directions by the Court Martial.

If the accused is represented by counsel, he or she is not entitled to exercise personally any powers referred to in subclause (3) (other than to plead to the charge), except with the consent of the Court Martial.

Every prosecutor and counsel appearing before the Court Martial must—

A prosecutor or counsel must not—

Without limiting subclause (2), the prosecutor—

If the Judge is satisfied that the Court Martial is constituted in accordance with law and has jurisdiction over the accused, the Judge must—

After the Judge has declared that the court is in session, the Judge must—

After rule 71 has been complied with, the Judge must, in the presence of the accused, administer an oath or affirmation in the form prescribed in rules 159, 161, and 162 to—

An officer or a warrant officer who is subject to the 1971 Act may, with the leave of the Judge, attend a trial by the Court Martial as an officer or a warrant officer under instruction.

The Judge must, in the presence of the accused, administer an oath in the form prescribed in rule 160 to an officer or a warrant officer permitted to attend a trial under subclause (1).

An officer or a warrant officer under instruction must not take any part in the proceedings of the Court Martial.

This rule applies when a Judge is required to rule on a question of law or procedure in accordance with section 44 of the 2007 Act.

The Judge must hear the arguments and evidence relevant to the question of law or procedure and must give his or her ruling on the question, together with the reasons for the ruling.

If the Judge sits in the absence of the military members, the Judge must ensure that the military members do not see the record of proceedings relating to the question of law or procedure until the trial has been completed.

If 2 or more accused are to be tried separately, the Judge must direct the order in which they are to be tried.

Subclauses (3) to (5) apply if 2 or more accused are to be tried jointly.

The accused must, in the order directed by the Judge,—

If more than 1 of the accused wish to do any of the following, the accused must be called on to do so in the order directed by the Judge:

If the same counsel represents 2 or more accused, he or she may do the following, once only, on behalf of all the accused he or she represents:

When the persons referred to in rules 72 and 73 have been sworn, the Judge must arraign the accused.

If there is more than 1 charge against the accused before the Court Martial, the accused must be arraigned on each charge separately.

If an accused is liable to be tried on charges in more than 1 charge sheet, the following provisions apply:

Before pleading to a charge, the accused may plead that the Court Martial does not have jurisdiction in respect of the charge.

The accused may adduce evidence in support of the plea and the prosecutor may adduce evidence in rebuttal.

The prosecutor may also address the Court Martial in opposition to the plea and the accused may reply to the prosecutor’s address.

If the Judge rules against the plea, the Judge must order the trial to proceed.

If the Judge rules in favour of the plea, the Judge may discharge the military members under section 48(1)(b) of the 2007 Act and adjourn the proceedings of the Court Martial.

However, if any other charge against the accused is before the Court Martial, the Court Martial may proceed with the trial of that other charge before the Judge discharges the military members and adjourns the proceedings.

The Director of Military Prosecutions may lay any other charge against the accused for an offence arising from the same incident or series of incidents.

Before pleading to a charge, the accused may plead that a trial of the charge is barred—

The provisions of rule 77(2) to (6) apply in respect of a plea under this rule.

This rule applies if 2 or more persons are—

Any of the accused may, before pleading to the charge, apply to the Court Martial to be tried separately on the ground that he or she would be unduly prejudiced in his or her defence if that course were not followed.

The Judge must hear and determine the application in the absence of the military members.

The prosecutor may address the Judge in opposition to the application and the accused may reply to the prosecutor’s address.

If the Judge rules against the application, the Judge must order the trial to proceed.

If the Judge rules in favour of the application, the Judge may make any orders and give any directions that he or she thinks necessary in the interests of justice.

This rule applies if the charge sheet before the Court Martial is the second or a subsequent charge sheet.

The accused may, before pleading to the charges, apply to the Judge to have the charge sheet dealt with before a different panel of military members on the ground that he or she would be unduly prejudiced in his or her defence if the charge sheet was dealt with before the same panel.

The provisions of rule 79(3) to (6) apply in respect of an application under this rule.

This rule applies if 2 or more charges are contained in the same charge sheet.

The accused may, before pleading to a charge, apply to the Judge to have the charge tried before a different panel of military members on the ground that the accused would be unduly prejudiced in his or her defence if the charge were tried before the same panel.

The provisions of rule 79(3) to (6) apply in respect of an application under this rule.

Before pleading to a charge, the accused may object to it on 1 or more of the following grounds:

The prosecutor may address the Court Martial in opposition to the objection, and the accused may reply to the prosecutor’s address.

If the Judge rules against the objection, the Judge must order the trial to proceed.

If the Judge rules in favour of the objection, the Judge may—

The accused must be required to plead either guilty or not guilty to each charge on which he or she is arraigned.

Subclause (1) is subject to rules 77 to 82.

If the accused wishes to plead guilty to a charge,—

The Court Martial must not accept a plea of guilty unless —

Subclause (1)(a) does not apply if the accused is represented by a lawyer.

The Court Martial must record the accused’s plea if—

The Court Martial must record a plea of not guilty on behalf of the accused if the accused—

Subclause (2)(c) is subject to subclause (4).

If rule 83(3)(b), (c), or (d) applies and the Director of Military Prosecutions does not agree to the Court Martial accepting the plea,—

If the Court Martial records a plea of guilty, it must record and announce a finding of guilty in accordance with rules 109 and 110, then proceed in accordance with rule 111.

Subclause (1) is subject to rules 87, 88, 92(3), and 120.

If charges in a charge sheet are laid in the alternative and the accused pleads guilty to a charge, the Court Martial must, if it accepts the plea, record the plea and defer making a finding in respect of the charge until the accused has been arraigned and tried on the other charges in the charge sheet.

This rule applies if the Court Martial records and announces a finding of guilty to a charge after recording a plea of guilty and—

Before proceeding under rule 111, the Court Martial must—

An accused remanded for trial by the Court Martial who wishes to plead guilty to a charge before trial may do so at a hearing before a Judge sitting alone.

The accused must sign a request in form 6 of the Schedule to be brought before the Court Martial.

Subclause (2) does not apply if a hearing has been convened before a Judge for another purpose relating to any charge against the accused and at that hearing the accused makes his or her request to enter a plea of guilty to a charge.

The Registrar must, on receipt of the request, arrange for the accused to be brought before a Judge sitting alone as soon as practicable.

At a hearing before a Judge sitting alone under rule 89, the accused must be called on to plead either guilty or not guilty to the charge for which he or she has been remanded for trial.

Before the accused is called on to plead, the charge to which the accused is required to plead must be read over to the accused.

If the accused pleads guilty and the Judge is satisfied that the plea may be accepted under rule 84, the Judge must—

If the accused does not plead guilty, or if it is not practicable for the accused to be dealt with by a Judge before the commencement of trial,—

This rules applies if a Judge has recorded a plea of guilty in respect of a charge at a hearing before trial under rule 89.

When the Court Martial is assembled the Judge must, after complying with rules 71 and 72,—

If the accused does not wish to change the plea,—

If the accused wishes to change the plea, the Court Martial must—

An accused who pleads not guilty to a charge may, at any time before the military members retire to deliberate on their finding, withdraw his or her plea of not guilty and substitute a plea of guilty to the charge.

If the Judge is satisfied, in accordance with rule 84, that the Court Martial should accept the substituted plea of guilty, the Court Martial must—

If, at any time during the proceeding, it appears to the Court Martial that an accused who has entered a plea of guilty to a charge did not understand the nature of the offence to which the plea related or the consequences of the plea, the Court Martial must—

If, in a case to which subclause (3) applies, there was originally a charge before the court in the alternative to that to which the change of plea relates and that alternative charge was withdrawn by the prosecutor, the Court Martial must, if requested to do so by the Director of Military Prosecutions, reinstate that alternative charge, have the accused arraigned on it, and proceed as if the charge had never been withdrawn.

If the accused pleads not guilty to a charge, the Judge must ask the accused whether the accused wishes to apply for an adjournment of the proceeding on either or both of the following grounds:

If the accused applies for an adjournment of the proceeding, the accused may adduce evidence in support of the application, and the prosecutor may adduce evidence in rebuttal.

The prosecutor may also address the Court Martial in opposition to the application, and the accused may reply to the prosecutor’s address.

On an application under this rule, the Court Martial may grant an adjournment if it thinks it is in the interests of justice to do so.

Any evidence or fact admitted under section 9 of the Evidence Act 2006 must be recorded in the record of proceedings.

The prosecutor may, and must if required by the Court Martial, make an opening address stating the substance of the prosecution’s case and the nature and effect of the evidence to be adduced.

The accused may make a brief opening statement following the prosecutor’s opening address, with the leave of the Judge.

The prosecutor may then call the witnesses for the prosecution to give their evidence.

The prosecutor must, within a reasonable time before the commencement of the trial, give the accused—

If the accused did not, in the opinion of the Judge, receive the prior notice and statement required under subclause (1),—

The prosecutor is not bound to call every witness for the prosecution whose evidence has been disclosed or of whom notice has been given to the accused under rule 96.

If the prosecutor does not intend to call a witness whose evidence has been disclosed or of whom notice has been given to the accused, the prosecutor must—

If subclause (2)(a) applies, the prosecutor must inform the accused that the accused may do either or both of the following:

Subclause (2) does not apply if the attendance of the witness is dispensed with—

Every witness must be sworn in the presence of the accused and in the form and manner prescribed in Part 7 of these rules before the witness gives evidence.

Subclause (1) is subject to section 47 of the 2007 Act.

The prosecutor or the accused may apply to the Judge, at any time during the trial, for an order that all or any of the witnesses, other than the accused, be excluded from the courtroom until they are called to give their evidence.

Every person to whom an order for exclusion applies must leave the courtroom but remain within call.

If a question arises about the admissibility of any evidence during the course of a witness giving evidence, the Judge may direct the witness to leave the courtroom while the question is dealt with.

If a member of the Court Martial puts a question to a witness,—

At the conclusion of the prosecution’s case in respect of any charge, the accused may submit that there is no case to answer and therefore that the accused should not be called on to make his or her defence to the charge.

The Judge must hear and determine the accused’s submission that there is no case to answer in the absence of the military members of the Court Martial.

The prosecutor may address the Judge in opposition to the submission, and the accused may reply to the prosecutor’s address.

The Judge must rule in favour of the submission if the Judge is satisfied, in respect of the charge,—

If the Judge rules in favour of the submission, the Judge must direct the military members of the Court Martial to—

If the Judge rules against the submission,—

Nothing in this rule prevents the military members, after hearing the prosecutor and the Judge, from finding the accused not guilty of the charge at any time after the conclusion of the prosecution’s case.

Following the conclusion of the prosecution’s case, the Judge must advise the accused as follows:

After advising the accused of the accused’s rights as provided in subclause (1), the Judge must ask the accused whether or not he or she wishes to give evidence or call any witnesses.

If the accused elects to give evidence or call witnesses, the accused may make an opening address setting out the substance of the accused’s defence, and the nature and effect of the evidence to be adduced, and must then proceed in accordance with his or her election.

On the conclusion of the case for the defence, the prosecutor may, with the leave of the Judge, call or recall any witness to give evidence on any matter raised by or on behalf of the accused in his or her defence that the prosecutor—

After all the evidence has been given, the prosecutor and the accused may make a closing address to the Court Martial.

The accused is entitled to make his or her closing address after the prosecutor’s closing address.

The Court Martial may, at any time before the Judge sums up, call or recall a witness if it thinks that it is in the interests of justice to do so.

If the Court Martial calls or recalls a witness, the prosecutor and the accused may put those questions to the witness that the Judge allows as proper.

The prosecutor or the accused may, with leave of the Judge, recall a witness at any time before the Judge sums up, and either party may put those questions to the witness that the Court Martial allows as proper.

After the closing addresses by the prosecutor and the accused, the Judge must sum up the evidence and advise the military members on the law as it applies to the case.

The Judge’s summing up and advice must be given in open court.

After the Judge has summed up, the Judge must withdraw and the military members must assemble in closed court to deliberate on their finding.

Every military member must give his or her opinion on the finding orally, in closed court, and in order of seniority commencing with the most junior in rank.

If there is more than 1 charge, every military member must give his or her opinion on the finding on each charge separately.

If, during the course of their deliberations, the military members require further advice from the Judge, they must suspend their deliberations and ask for and receive the advice in open court.

The Court Martial must record one of the following findings in respect of each charge before it:

If section 59 of the 2007 Act applies, the Court Martial may record a finding of guilty subject to the differences between the facts proved and the facts alleged, as specified in the finding.

This rule is subject to section 60 of the 2007 Act.

When the military members have completed their deliberations, they must reassemble in open court and inform the Judge of their finding.

The Judge must record the finding in the prescribed form and then announce the finding in open court.

However, if the finding is one of guilty (including any finding authorised by sections 56 to 59 of the 2007 Act) and the Judge is of the opinion that the finding is contrary to law, the Judge must once (but only once) more advise the military members of the findings that are open to them in law.

When the Judge has complied with subclause (3), the military members must retire to reconsider their finding in closed court.

If the Court Martial records a finding of guilty after recording a plea of guilty,—

If the accused takes any issue with the summary of facts that may affect the sentence likely to be imposed,—

After complying with subclauses (1) and (2), the Court Martial must proceed in accordance with rules 113 and 114.

This rule is subject to rules 87, 88, 91, and 120.

In determining a sentence or other disposition of the case, the Court Martial—

If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by the prosecutor and disputed by the accused,—

For the purposes of this rule,—

If the Court Martial finds the accused guilty on any charge, it must take and consider evidence of the accused’s age, rank, and service record before deliberating on the sentence to be imposed.

The prosecutor must adduce evidence in relation to the matters referred to in subclause (1) and must, in particular, draw to the attention of the Court Martial—

Evidence of the matters referred to in subclauses (1) and (2) may be given by a witness producing to the Court Martial a written statement containing a summary of the relevant entries in the accused’s service record in the form prescribed by the Chief of Defence Force.

However, before producing a written statement under subclause (3) the witness must, in open court,—

In addition to the matters referred to in subclauses (1) to (4), the prosecution may call evidence on any other matters that are relevant to the question of sentence.

This rule is subject to rule 121.

The accused may cross-examine any witness called to give evidence under rule 113.

The accused may insist on the production of the accused’s actual service record.

If any discrepancies are found between the actual service record and the written statement before the Court Martial, the Court Martial must ensure that the written statement is amended to accord with the record.

When the provisions of rule 113 and subclauses (1) to (3) have been complied with, the accused may call evidence on any other matters that are relevant to sentence, and the accused may—

If the Judge considers that there is a matter relevant to sentence or other disposition of the case that requires clarification (whether arising out of evidence adduced by either party at trial, a summary of facts, or evidence adduced under rules 113 and 114), the Judge may call or recall any witness the Judge considers should be questioned on the matter.

A witness called by the Judge may be—

The prosecutor and the accused may address the Court Martial on the question of sentence.

The Judge—

Neither party has a right of reply, except with special leave of the Court Martial.

This rule applies if an accused makes a request under section 64 of the 2007 Act that the Court Martial take into account any other offence in sentencing him or her.

Before the Court Martial withdraws to deliberate on sentence, the Judge must—

The accused must inform the Court Martial of which offences he or she admits having committed.

The Court Martial must cause a list of those offences to be drawn up, signed by the accused and the Judge, and to be attached to the record of proceedings as an exhibit.

Each member of the Court Martial must give his or her vote on sentence orally in closed court.

The military members must vote in order of seniority commencing with the most junior in rank.

Every sentence must be recorded in the form prescribed by the Chief of Defence Force.

This rule also applies to recommendations of mercy.

The Judge must announce in open court that the trial is concluded after—

If the Court Martial finds the accused guilty on a charge and there is another charge sheet before the Court Martial, the Court Martial must not proceed in accordance with rules 111 to 116 until it has arraigned and tried the accused on the charge or charges in the other charge sheet.

This rule applies if—

The Court Martial must, so far as necessary, comply with rule 111 on the charge to which a plea of guilty has been accepted, or (as the case may be) has been accepted in respect of the other accused, before proceeding in accordance with rules 113 and 114.

The Court Martial may, with the consent of the Director of Military Prosecutions, allow the prosecutor to—

The consent of the Director of Military Prosecutions for the purposes of subclause (1) may be notified to the Court Martial by the prosecutor.

The prosecutor or the accused may apply to the Court Martial for—

The Judge may order that a charge be amended or divided into 2 or more charges if the Judge is satisfied that it is necessary in the interests of justice to do so.

An order may be made—

If, in making an order, the Judge thinks it necessary in the interests of justice, the Judge may—

If the Judge discharges the military members before adjourning the proceedings, the Registrar must appoint new military members under section 21(4) of the 2007 Act before the trial may recommence.

This rule and rules 125 and 126 apply if the question of whether the accused is unfit to stand trial is to be determined before trial.

In this rule and rules 125 and 126, special hearing means a hearing fixed by the Registrar in accordance with subclause (3) for the purpose of ascertaining whether the Court Martial is satisfied of the matter specified in section 188(2) of the 1971 Act.

The Registrar must—

The notice under subclause (3)(b) must,—

At the beginning of the special hearing, the charge must be read to the accused before the prosecution calls any witnesses.

After the charge has been read to the accused, the prosecution must call its witnesses, who must be examined by the prosecution, and may be cross-examined by the accused and re-examined by the prosecution.

The Judge must, if required by the accused to do so, allow the accused to—

If subclause (3)(a) applies, the witnesses must be examined by the accused and may be cross-examined by the prosecution and re-examined by the accused.

If subclause (3)(b) applies, the accused may be cross-examined by the prosecution and, if the accused is represented, re-examined.

The following rules apply to a special hearing:

The Judge may make orders and give directions, concerning the conduct of a special hearing, that he or she thinks necessary in the interests of justice.

If, following a special hearing, the Judge records a finding under section 188(6) of the 1971 Act, the Judge may make orders and give directions that he or she thinks necessary in the interests of justice concerning the receiving of evidence in accordance with section 188A of the 1971 Act.

This rule applies if the question of whether the accused is unfit to stand trial is to be determined during the trial.

For the purpose of ascertaining whether the Court Martial is satisfied of the matter specified in section 188(2) of the 1971 Act, the Court Martial may consider any evidence presented at the hearing, including evidence heard as a result of the Judge calling or recalling any witness to be questioned on any matter the Judge considers requires clarification.

Every document or thing produced in evidence at a trial in the Court Martial must be made an exhibit.

Subclause (1) is subject to subclause (3).

When an original document or book is produced in evidence, instead of making it an exhibit, the Judge may compare a copy of or extract from the document or book with the original and, if the Judge is satisfied that the copy or extract is correct,—

Every exhibit must—

This rule applies to a new trial in the Court Martial ordered by—

The Registrar of the Court Martial must refer the order for a new trial to the Director of Military Prosecutions, together with the reasons for the order and any associated directions given under section 132(4) of the 1971 Act.

The Director of Military Prosecutions must perform the functions and the duties set out in section 101F of the 1971 Act in relation to the charge as if the charge had been referred to the Director of Military Prosecutions by a disciplinary officer under Part 5 of the 1971 Act.

Subclause (3) is subject to any directions given in making the order for a new trial.

This rule applies to a new trial in the Court Martial ordered by the Court Martial Appeal Court under section 9A(3)(b)(ii) of the Court Martial Appeals Act 1953.

The record of evidence given by a witness at the original trial may, with the leave of the Court Martial in the new trial, be read as evidence—

If subclause (2) applies, the record of evidence may be taken as read without further proof if it is admissible as evidence in proceedings under section 76 of the 2007 Act.

If the Director of Military Prosecutions intends to seek admission of any record of evidence under this rule, he or she must, as soon as possible and in any case not later than 24 hours before the commencement of the new trial, give a copy of the evidence to the accused and to the Judge.