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


Defence Amendment Act (No 2) 2007

1: Title
This Act is the Defence Amendment Act (No 2) 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. Section 2 brought into force 1 July 2009 Defence Amendment Act (No 2) 2007 Commencement Order 2008
3: Principal Act amended
This Act amends the Defence Act 1990 OIC SR 2008/235 2009-07-01 Defence Act 1990
4: Redress of complaints
1: Section 49(1) Courts Martial Appeals Act 1953 section 162 Court Martial Appeals Act 1953
2: All complaints under section 49 of the principal Act
3: Every authority referred to in section 49 of the principal Act subsection (2)


Court Martial Act 2007

1: Title
This Act is the Court Martial 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. Section 2 brought into force 1 July 2009 clause 2 Court Martial Act Commencement Order 2008
1: Preliminary provisions relating to Court Martial
1: Preliminary
3: Purpose of this Act
The purpose of this Act is—
a: to establish a permanent court of record, called the Court Martial of New Zealand, as a replacement for the ad hoc courts-martial provided for under Part 6
b: to provide for the Court Martial's jurisdiction and related matters; and
c: to repeal Part 6
4: Overview of this Act
1: Part 1
2: Part 2
3: Part 3 Part 6
4: This section is only a guide to the general scheme and effect of this Act.
5: Interpretation
1: In this Act, unless the context otherwise requires,— 1971 Act Armed Forces Discipline Act 1971 Chief Judge section 12 Court Martial section 8 defender Deputy Chief Judge section 13 Director of Military Prosecutions section 101E Discipline Committee section 160 Judge
a: means a Judge of the Court Martial; and
b: includes the Chief Judge and a Deputy Chief Judge member of the Court Martial military member Registrar rules of procedure section 150 sentencing guidelines serious offence section 21(1)(b)(i) substitute military member section 27
2: Any term or expression that is defined in the 1971 Act and used, but not defined, in this Act has the same meaning as in the 1971 Act.
6: This Act to be read with 1971 Act
1: This Act is to be read in conjunction with the 1971 Act.
2: Unless the context otherwise requires, the provisions of the 1971 Act and any regulations made under that Act apply to the extent that they are applicable and with any necessary modifications.
3: However, if there is any inconsistency between the provisions of this Act and any provisions of the 1971 Act or any regulations made under that Act, this Act prevails.
4: This section applies in addition to, and does not limit, section 5(2)
6A: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA Section 6A inserted 30 November 2018 section 25 Military Justice Legislation Amendment Act 2018
7: This Act binds the Crown
This Act binds the Crown.
2: Establishment of Court Martial
Court Martial established
8: Court Martial of New Zealand established
1: A court of record called the Court Martial of New Zealand is established.
2: In addition to the jurisdiction and powers specially conferred on the Court Martial by this or any other Act, the court has all the powers inherent in a court of record.
9: Court Martial must sit in divisions
1: For the purposes of any proceedings in the Court Martial, the court must sit in divisions each comprising 1 Judge.
2: Each division of the Court Martial may exercise all the powers of the court.
3: A division of the Court Martial may exercise any powers of the court even though 1 or more divisions of the court are exercising any powers of the court at the same time. Judges of Court Martial
10: Judges of Court Martial
1: The Court Martial comprises—
a: 1 Judge who is to be the Chief Judge of the Court Martial; and
b: at least 6 other Judges.
2: The Court Martial's jurisdiction is not affected by a vacancy in the number of its Judges.
11: Eligibility for appointment as Judge
1: A person must not be appointed as a Judge unless he or she—
a: has held a practising certificate as a barrister or solicitor of the High Court for at least 7 years; or
b: is a District Court Judge.
2: A District Court Judge who is appointed as a Judge of the Court Martial may sit as, or exercise any of the powers of, a District Court Judge.
12: Appointment of Chief Judge
1: The Governor-General may, by warrant, appoint a person as the Chief Judge.
2: A person must not be appointed as the Chief Judge unless he or she—
a: is appointed to, or holds, the office of Judge Advocate General; or
b: if the office of Judge Advocate General is vacant, is eligible for appointment as a Judge under section 11
13: Appointment of Deputy Chief Judges
1: The Governor-General may, by warrant, appoint 1 or more Deputy Chief Judges.
2: A person must not be appointed as a Deputy Chief Judge unless he or she—
a: is appointed to, or holds, the office of Deputy Judge Advocate General; or
b: if the office of Deputy Judge Advocate General is vacant, is eligible for appointment as a Judge under section 11
3: A Deputy Chief Judge may act in place of the Chief Judge if,—
a: because of illness or absence from New Zealand, or for any other reason, the Chief Judge is unable to exercise the duties of that office; or
b: the office of Chief Judge is vacant.
4: While acting in place of the Chief Judge, a Deputy Chief Judge—
a: may perform the functions and duties of the Chief Judge; and
b: may for that purpose exercise all the powers of the Chief Judge.
14: Appointment of other Judges
1: The Governor-General may, by warrant, appoint a person as a Judge.
2: Judges who are appointed under this section have seniority among themselves according to the dates of their appointment.
15: Notice requirement for appointment of Chief Judge, Deputy Chief Judges, or other Judges
Section 15 repealed 30 November 2018 section 26 Military Justice Legislation Amendment Act 2018
16: Protection of Judges against removal from office
1: A Judge may not be removed from office except by the Sovereign or the Governor-General, acting upon the address of the House of Representatives.
2: An address under subsection (1) may be moved only on the ground of—
a: the Judge's misbehaviour; or
b: the Judge's incapacity to discharge the functions of the Judge's office.
17: Judges must not hold other offices
1: A Judge must not undertake any other paid employment or hold any other office (whether paid or not) unless the Governor-General is satisfied that the employment or other office is compatible with judicial office.
2: Subsection (1) is subject to section 11(2)
18: Judges to have immunities of High Court Judges
A Judge has all the immunities of a Judge of the High Court.
19: Age of retirement
1: Each Judge, except the Chief Judge, must retire from office on attaining the age of 70 years.
2: The Chief Judge must retire from office on attaining the age of 75 years.
20: Salaries and allowances of Judges
1: Each 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.
2: In the case of the Chief Judge or a Deputy Chief Judge, the rate of salary and the allowances determined may be higher than those for the other Judges.
3: The salary of a Judge is not to be reduced while the Judge holds office.
4: The salary and allowances payable for a period during which a Judge acts on a part-time basis must be calculated and paid on a pro rata basis as a proportion of the salary and allowances for a full-time equivalent position.
5: For the purpose of subsection (3), the payment of salary and allowances on a pro rata basis under subsection (4) is not a reduction of salary.
6: Any determination made under subsection (1), and any provision of the determination, may be made so as to come into force on a date specified in the determination, being the date of the making of the determination or any other date, whether before or after the date of the making of the determination or the date of the commencement of this section.
7: Every determination made under subsection (1), and every provision of the determination, for which no date is specified under subsection (6) comes into force on the date of the making of the determination.
3: Constitution of Court Martial for proceedings
Composition of Court Martial
21: Composition of Court Martial
1: For the purpose of any trial in the Court Martial and of any proceedings under section 63
a: 1 Judge; and
b: either of the following:
i: 5 military members if the proceedings relate to an offence for which the maximum penalty is life imprisonment or a term of imprisonment of 20 years or more (a serious offence
ii: 3 military members in any other case.
2: For the purpose of any other proceedings in the Court Martial, the court may consist of 1 Judge.
3: The Chief Judge must assign the Judge for the proceedings.
4: The Registrar must assign the military members in accordance with sections 22 to 26 section 28 Assignment of military members of Court Martial
22: Qualifications for membership
A person is qualified to sit as a military member only if he or she—
a: is a member of the Armed Forces; and
b: has served in the Armed Forces for a period of more than 3 years (whether continuously or in aggregate); and
c: is not disqualified under section 23
23: Disqualifications for membership
A person is disqualified to sit as a military member if he or she—
a: has been the commanding officer of the accused at any time between the date on which the accused was charged and the date of the trial; or
b: is the prosecutor or a witness for the prosecution; or
c: has investigated the charge against the accused or was the officer who made the preliminary inquiry into the case; or
d: was the disciplinary officer who acted under Part 5
e: was a member or judge advocate of a previous court that tried the accused in respect of the same offence; or
f: has held, or was one of the persons holding, an inquiry under the 1971 Act into matters relating to the subject matter of the charge against the accused; or
g: has a personal interest in the case.
24: Registrar must consider other factors in assigning military members
1: In any proceedings in the Court Martial where the accused is an officer, the Registrar must assign—
a: 5 officers to be military members if the proceedings relate to a serious offence; or
b: 3 officers to be military members in any other case.
2: In any proceedings in the Court Martial where the accused is a rating, soldier, or airman, the Registrar may assign—
a: any of the following to be military members if the proceedings relate to a serious offence:
i: 5 officers; or
ii: 4 officers and 1 warrant officer; or
iii: 3 officers and 2 warrant officers; or
b: either of the following to be military members in any other case:
i: 3 officers; or
ii: 2 officers and 1 warrant officer.
3: Unless the Registrar is of the opinion that it is not reasonably practicable to do so, the Registrar—
a: must assign military members whose ranks reflect—
i: the seniority of the accused; and
ii: the seriousness of the charge against the accused; and
b: must assign at least 1 military member who belongs to the same component of the Navy, Army, or Air Force, as the case may be, as the accused; and
c: must not assign officers or warrant officers who are all—
i: from the same ship or unit as the accused; or
ii: from 1 ship or unit.
25: Officers of other forces may be assigned as military members in certain circumstances
1: This section applies if—
a: it is necessary to try an accused at a particular place or under particular circumstances; and
b: because of that place or those circumstances, the Registrar considers that the minimum number of officers required by section 24(1) or (2)
2: The Registrar may assign an officer of a force of another State to be a military member if that State has been declared to be serving together with a New Zealand force under section 23B
3: However, only 1 officer may be assigned as a military member under subsection (2), and that person may not be assigned unless he or she has served as an officer for a period of more than 3 years (whether continuously or in aggregate).
26: Procedure for assigning military members
1: The Registrar must give written notice to—
a: each person who is assigned as a military member; and
b: the accused in the proceedings ; and
c: the Director of Military Prosecutions.
2: The notice under subsection (1)(a) must state that—
a: the person has been assigned as a military member; but
b: the assignment is to be confirmed pending any objections made by the accused or the Director of Military Prosecutions section 27
3: The notices under subsection (1)(b) and (c)
a: set out the names and particulars of the persons who have been assigned as military members; and
b: state that the accused and the Director of Military Prosecutions have section 27 Section 26(1)(b) amended 30 November 2018 section 27(1) Military Justice Legislation Amendment Act 2018 Section 26(1)(c) inserted 30 November 2018 section 27(2) Military Justice Legislation Amendment Act 2018 Section 26(2)(b) amended 30 November 2018 section 27(3) Military Justice Legislation Amendment Act 2018 Section 26(3) amended 30 November 2018 section 27(4) Military Justice Legislation Amendment Act 2018 Section 26(3)(b) amended 30 November 2018 section 27(5) Military Justice Legislation Amendment Act 2018
27: Objections against
1: The accused or the Director of Military Prosecutions
a: might not act, or is not in a position to act, impartially; or
b: is not qualified to sit as a military member under section 22
2: An objection under subsection (1) must—
a: be in writing; and
b: specify the ground of the objection; and
c: be made within the time prescribed in the rules of procedure; and
d: be served on the Registrar.
3: On receiving an objection made in accordance with subsection (2), the Registrar must—
a: consider the objection; and
b: decide whether to accept or reject the objection.
4: If the Registrar accepts the objection, the Registrar must—
a: assign another person (a substitute military member sections 22 to 26 28
b: give written notice of that assignment to—
i: the substitute military member; and
ii: the person whose assignment was objected to impugned person
iii: the accused ; and
iv: the Director of Military Prosecutions.
5: To avoid doubt, the impugned person must be treated as if that person had retired from the Court Martial on the date on which the notice under subsection (4)(b)(ii) is given.
6: If the Registrar rejects the objection,—
a: the impugned person is confirmed as a military member; and
b: the Registrar must give written notice of that fact to the impugned person , the accused, and the Director of Military Prosecutions Section 27 heading amended 30 November 2018 section 28(1) Military Justice Legislation Amendment Act 2018 Section 27(1) amended 30 November 2018 section 28(2) Military Justice Legislation Amendment Act 2018 Section 27(4)(b)(ii) amended 30 November 2018 section 28(3) Military Justice Legislation Amendment Act 2018 Section 27(4)(b)(iii) amended 30 November 2018 section 28(4) Military Justice Legislation Amendment Act 2018 Section 27(4)(b)(iv) inserted 30 November 2018 section 28(5) Military Justice Legislation Amendment Act 2018 Section 27(6)(b) amended 30 November 2018 section 28(6) Military Justice Legislation Amendment Act 2018
28: Substitute military members
1: The Registrar may , before the accused has entered a plea to the charge at the trial,
a: an officer to act as a substitute military member for another officer; or
b: a warrant officer to act as a substitute military member for another warrant officer.
2: A substitute military member may be assigned to fill a vacancy in the military membership of the Court Martial if a military member—
a: dies or becomes seriously ill
b: is absent or is found to be disqualified to sit as a military member; or
c: retires from the court as a result of an objection under section 27
d: is found guilty of contempt of the Court Martial under section 32
3: The accused or the Director of Military Prosecutions section 27
4: If, after the accused has entered a plea to the charge at the trial, a military member is unable to continue for one of the reasons specified in subsection (2), the Judge must discharge all of the military members and refer the charge back to the Director of Military Prosecutions.
5: The Director of Military Prosecutions may—
a: decide not to proceed with the charge; or
b: lay the charge sheet again, or an amended version of the charge sheet, before the Registrar.
6: If subsection (5)(b) applies, the Registrar must assign new military members in accordance with sections 22 to 26 section 28 Section 28(1) amended 30 November 2018 section 29(1) Military Justice Legislation Amendment Act 2018 Section 28(2)(a) amended 30 November 2018 section 29(2) Military Justice Legislation Amendment Act 2018 Section 28(3) amended 30 November 2018 section 29(3) Military Justice Legislation Amendment Act 2018 Section 28(4) inserted 30 November 2018 section 29(4) Military Justice Legislation Amendment Act 2018 Section 28(5) inserted 30 November 2018 section 29(4) Military Justice Legislation Amendment Act 2018 Section 28(6) inserted 30 November 2018 section 29(4) Military Justice Legislation Amendment Act 2018
4: Duties of members of Court Martial
Duties of Judge
29: Duties of Judge: general
1: A Judge must act impartially at all times.
2: A Judge must be present whenever the Court Martial is sitting, whether in open or closed court, except when the court is deliberating on its findings at a trial or on a reconsideration of its findings.
3: A Judge must (without prejudice to the Judge's duty under the rules of procedure) take all necessary steps to ensure that the defence of the accused is not prejudiced by the ignorance of the accused, or by any incapacity of the accused to state his or her case intelligibly or to question witnesses, or in any other way.
4: A Judge may call or recall any witness that he or she considers should be questioned on any matter that the Judge considers requires clarification.
5: A Judge must ensure that a proper record of any proceeding is made and is kept in safe custody in accordance with the rules of procedure.
30: Duties of Judge at trial
1: A Judge must ensure that a trial is conducted—
a: in accordance with this Act, the 1971 Act, and the rules of procedure; and
b: in a manner that is appropriate for a court of justice.
2: In particular, a Judge must act as follows:
a: rule on any informality or defect in—
i: the charge sheet; or
ii: the constitution of the Court Martial; or
iii: any other matter relating to the proceeding:
b: ensure that the prosecutor and the defender or counsel conduct themselves in accordance with the rules of procedure:
c: ensure that justice is administered and that the accused has a fair trial:
d: afford the accused every reasonable opportunity to make his or her defence:
e: ensure that the accused refrains from making remarks contemptuous of, or disrespectful towards, the Court Martial and from using insulting language:
f: ensure that no officer under instruction who is present expresses an opinion to a member of the Court Martial on any matter relating to the trial before the court has announced its findings, nor on sentence before the court has passed sentence:
g: after the final addresses on behalf of the prosecution and the accused, sum up the evidence and advise the military members on the application of the law to the case before they retire to deliberate on their findings:
h: if the military members declare a finding of guilty (including any finding authorised by sections 56 to 59
3: For the purposes of subsection (2)(d), a Judge—
a: must not unnecessarily restrict the accused in the manner in which the accused makes the defence; and
b: must not stop the presentation of the defence on the ground of irrelevance except in extreme cases (although the Judge may caution the accused to avoid the defence becoming irrelevant).
4: Despite subsection (2)(e), a Judge must not prevent the accused from impeaching the evidence or motive of any witness, or charging any other person with any blame or criminality, if to do so is a part of the case for the defence (although the Judge may caution the accused of his or her liability to cross-examination if he or she follows that course). Duties of military members
31: Duties of military members
1: A military member must at all times—
a: act in a manner that is consistent with achieving a fair trial for the accused; and
b: behave in a manner that is appropriate for a member of a court of justice.
2: In particular, a military member—
a: must consider all the evidence admitted by the Judge at the trial; and
b: must vote impartially on the finding and, if necessary, on the sentence; and
c: must not disclose any opinion of a member of the Court Martial or how that member voted on the finding or sentence, or both.
3: A military member may ask questions to clarify any matters at the trial.
32: Failure to attend Court Martial is contempt of court
1: A military member commits a contempt of the Court Martial if that person fails, without reasonable excuse, to—
a: attend all the sittings of the court in respect of the proceedings for which the military member was assigned; and
b: perform the functions or duties of a military member of the court during the period of that person's membership of the court.
2: For the purposes of subsection (1), the period of a person's membership of the Court Martial—
a: begins on the date on which the person receives the written notice referred to in section 26(1)(a) 27(4)(b)(i)
b: ends on the date on which the person—
i: retires from the court as a result of an objection under section 27
ii: is released from the court on the discharge of the military members under section 48
iii: is discharged by the Judge from his or her functions and duties as a military member on the completion of the proceedings concerned.
3: If a military member is alleged to have committed a contempt of the Court Martial under subsection (1), the Judge—
a: must inquire into the alleged contempt; and
b: may find the military member guilty of the contempt after hearing—
i: any witness against or on behalf of the military member; and
ii: any statement that may be offered in defence.
4: The penalty for contempt of the Court Martial under this section is imprisonment for a term not exceeding 21 days or a fine not exceeding $1,000.
5: To avoid doubt, a military member found guilty of contempt of the Court Martial under this section must be treated as if that person had retired from his or her membership of the court on the date of that finding. Other provisions relating to role of military members
33: Seniority of military members
1: The most senior officer assigned by the Registrar as a military member is to be the senior military member of the Court Martial.
2: The other persons assigned by the Registrar as military members have seniority among themselves according to their rank and according to their seniority within that rank.
34: Senior military member must submit report on command issues
1: The senior military member must submit a written report on any command issues that arise in the course of any proceedings before the Court Martial to the superior commander who referred the charges that are the subject of those proceedings to the Director of Military Prosecutions.
2: The superior commander must forward a copy of a report under subsection (1) to—
a: the Chief of the relevant service; and
b: in the case of units under joint command, the commander of any joint force; and
c: the Discipline Committee.
3: This section is subject to section 35
35: Prohibition on taking into account information about conduct of military members
1: This section applies to information about the way in which a military member, in the course of any proceedings before the Court Martial,—
a: conducted himself or herself as a member of the court; or
b: performed his or her functions or duties in that capacity.
2: Any information to which this section applies must not be taken into account in any decision that affects, or is likely to affect, the conditions of service within the Armed Forces of the military member to whom that information relates.
3: Conditions of service
2: Jurisdiction, procedures, and powers
1: Jurisdiction and sittings of Court Martial
General jurisdiction
36: Jurisdiction of Court Martial
1: The Court Martial has the jurisdiction conferred by section 78
2: In addition, the Court Martial must sit to hear and determine—
a: every charge laid before the Registrar by the Director of Military Prosecutions:
b: every application made by the Director of Military Prosecutions under section 63(2)
c: every other application made to the court under this Act (for example, an application for bail) or the 1971 Act. Sittings of Court Martial
37: Requirements for sittings of Court Martial
1: The Court Martial—
a: must sit in open court unless section 38 39
b: must sit in the presence of the accused; and
c: may sit in any place, whether in New Zealand or elsewhere; and
d: may conduct its proceedings by teleconference or by any means of communication that allows individuals a reasonable opportunity to participate in the proceedings.
2: Despite subsection (1)(b), the Court Martial may sit in the absence of the accused if the accused misconducts himself or herself by so interrupting the proceedings as to render the continuation of those proceedings in his or her presence impracticable.
3: Subsection (1)(b) and (d) are subject to the rules of procedure.
4: A sitting of the Court Martial may be adjourned from time to time and from place to place.
38: When Court Martial must hold proceedings in closed court
1: The Court Martial must hold its proceedings in closed court while—
a: the Judge sits alone to rule on any question of law or procedure in accordance with section 44
b: the military members deliberate on the finding in accordance with section 55
c: the Judge and the military members deliberate on the sentence in accordance with section 61
2: The Court Martial may hold its proceedings in closed court on any other deliberation.
3: When the Court Martial holds its proceedings in closed court, only the following persons may be present:
a: the members of the court referred to in subsection (1)(a), (b), or (c) (as the case requires):
b: in the case of proceedings referred to in subsection (1)(a), the persons referred to in section 39(2)(c)(iii) to (vii)
c: any other persons authorised by the Judge.
39: Judge may limit scope of open court
1: In any proceedings in the Court Martial, the Judge may make any of the orders specified in subsection (2) limiting the scope of open court if the Judge considers that—
a: a statement may be made or evidence given in the course of those proceedings that might lead to the disclosure of information that would or might—
i: be directly or indirectly useful to the enemy or any foreign country; or
ii: be otherwise harmful to New Zealand; or
b: the making of the order—
i: is necessary in the interests of justice; or
ii: is desirable in the interests of public morality; or
iii: is necessary for the protection of the reputation of a victim of an alleged sexual offence or offence of extortion.
2: The orders referred to in subsection (1) are as follows:
a: an order forbidding publication of any report or account of the whole or any part of the proceedings, including any evidence adduced or submissions made:
b: an order forbidding the publication of the name of any person connected, whether as a witness or otherwise, with the proceedings or of any name or particulars likely to lead to the identification of that person:
c: an order excluding all or any persons, except the following:
i: a military member:
ii: an officer under instruction:
iii: the Director of Military Prosecutions or any person acting on behalf of the Director:
iv: the accused and any escort of the accused:
v: the accused's counsel or defender:
vi: the Registrar or any other officer of the Court Martial:
vii: an interpreter required in the proceedings:
viii: a person expressly permitted by the Judge to be present.
3: However, the Judge may make an order specified in subsection (2)(c) that has the effect of excluding any accredited news media reporter from the proceedings only on the grounds specified in subsection (1)(a), but not on any of the grounds specified in subsection (1)(b).
40: Duration of order limiting scope of open court
An order specified in section 39(2)
a: may be made for a limited period or permanently; and
b: if made for a limited period, may be renewed for a further period or periods or made permanent by the Court Martial at any time; and
c: if made permanently, may be reviewed by the Court Martial at any time.
41: Application of section 42
Section 42 a case involving sexual violation
a: section 74
i: sexual violation:
ii: attempted sexual violation:
iii: assault with intent to commit sexual violation:
iv: an offence against section 129A
v: an offence against section 142A
b: section 75
42: Special provisions in cases involving sexual violation
1: While the complainant in a case involving sexual violation is giving oral evidence (whether in chief or under cross-examination or on re-examination), no person may be present except the following:
a: the Judge for the proceeding:
b: a military member:
c: an officer under instruction:
d: the Director of Military Prosecutions or any person acting on behalf of the Director:
e: the accused and any escort of the accused:
f: the accused's counsel or defender:
g: the Registrar or any other officer of the Court Martial:
h: an interpreter required in the proceedings:
i: an accredited news media reporter:
j: a person whose presence is requested by the complainant:
k: a person expressly permitted by the Judge to be present.
2: Before the complainant in a case involving sexual violation commences to give evidence, the Judge must—
a: ensure that no person other than one referred to in subsection (1) is present; and
b: advise the complainant of the complainant's right to request the presence of any person under subsection (1)(j).
3: If, in a case involving sexual violation, the Judge is of the opinion that the interests of the complainant so require, he or she may make an order forbidding publication of any report or account giving details of the criminal acts alleged to have been performed on the complainant or of any acts that the complainant is alleged to have been compelled or induced to perform or consent to or acquiesce in.
4: This section does not limit or affect the powers of the Judge to make an order specified in section 39(2)
2: Procedures
43: Preliminary procedure
1: The Registrar must—
a: fix the time and place for each sitting of the Court Martial; and
b: give written notice of the time and place fixed to—
i: the accused; and
ii: the Director of Military Prosecutions; and
iii: the Judge for the proceedings; and
iv: the military members for the proceedings.
2: At the beginning of the trial, the notice under subsection (1)(b) must—
a: be accompanied by a copy of the charge sheet certified by the Director of Military Prosecutions in accordance with section 101F(c)
b: in the case of a notice to the accused, be accompanied by a copy of all documents submitted to the Judge by the Director of Military Prosecutions in relation to the charge; and
c: in the case of a notice to the military members, be accompanied by an information sheet that—
i: describes the functions and duties of military members; and
ii: is in the prescribed form.
44: Judge may sit alone to rule on question of law or procedure
1: The Judge for the proceedings must—
a: rule on every question of law or procedure that arises during any trial in the Court Martial; and
b: sit in the absence of the military members to determine the question of law or procedure if the Judge considers it would be desirable in the interests of justice to do so.
2: To avoid doubt, the Judge may sit alone under subsection (1)(b) before or after the appointment of the military members.
3: A ruling under subsection (1) must be followed by the military members.
4: 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)
i: an application for an order specified in section 39(2)
j: an order under subpart 3 Criminal Procedure Act 2011 section 145
k: an application for discovery:
l: the fitness of the accused to stand trial. Section 44(4)(j) amended 5 March 2012 (applying in relation to a proceeding for an offence that was commenced before that date) section 393 Criminal Procedure Act 2011
45: Power to summon witnesses
1: The Judge for the proceedings or the Registrar may issue a summons requiring any person to—
a: attend at the time and place specified in the summons; and
b: give evidence; and
c: produce any papers, documents, records, or things in that person's possession or under that person's control that are relevant to the subject of the relevant proceedings.
2: A summons—
a: must be in the prescribed form; and
b: may be issued—
i: on the initiative of the Judge or Registrar; or
ii: on the application of the Director of Military Prosecutions or the accused.
46: Service of summons
1: A summons to a witness may be served—
a: by delivering it to the person summoned; or
b: by posting it by registered letter addressed to the person summoned at that person's usual place of residence.
2: The summons must,—
a: if it is served under subsection (1)(a), be served at least 24 hours before the attendance of the witness is required:
b: if it is served under subsection (1)(b), be served at least 10 days before the date on which the attendance of the witness is required.
3: If the summons is posted by registered letter, it is deemed for the purposes of subsection (2)(b) to be served at the time when the letter would be delivered in the ordinary course of post.
47: Administration of oaths
1: An oath in the prescribed form must be administered to—
a: every military member:
b: every officer under instruction in the Court Martial:
c: every person responsible for recording or transcribing the proceedings in the court:
d: every interpreter attending the court.
2: Every witness before the court must be examined on oath administered in the prescribed form.
3: If the court considers that a child who is called as a witness does not understand the nature of an oath, the child's evidence may be received even though it is not given on oath, so long as the court is of the opinion that the child—
a: has sufficient intelligence to justify the reception of the evidence; and
b: understands the duty of speaking the truth.
4: If any person referred to in subsection (1) or (2) objects to being sworn, or it is not reasonably practicable to administer an oath to that person in a manner appropriate to his or her religious belief, the person may be permitted to make a solemn affirmation instead of swearing an oath.
5: The making of an affirmation under subsection (4) has the same force and effect and has the same consequences as the taking of an oath.
6: Every oath or affirmation required to be administered under this Act must be administered in accordance with the rules of procedure. Discharge of military members
48: Discharge of military members
1: The Judge—
a: must discharge the military members if they are unable to reach a unanimous decision on the charge; or
b: may discharge the military members if, before or after the beginning of a trial, the Judge considers it to be necessary or expedient in the interests of the administration of justice.
2: Section 55(2)
3: If, after the beginning of a trial, the Judge dies or is otherwise unable to attend,—
a: the Chief Judge must assign another Judge to be the Judge of the Court Martial; and
b: that Judge must discharge the military members.
4: If the military members are discharged under this section, they are released from their functions and duties to the court.
3: Bail
General
49: Judge may grant bail pending trial
1: This section applies to a person who—
a: is accused of committing an offence against the 1971 Act; and
b: is being held in custody under that Act.
2: The accused is not entitled to bail as of right.
3: A Judge may, on application by the accused,—
a: grant bail to the accused:
b: impose any conditions of bail that the Judge thinks fit.
4: In determining whether to grant bail under this section, the Judge—
a: must take into account the considerations set out in section 8(1) and (4)
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
aa: must take into account any views of a victim to which Part 10A section 198D
b: may take into account the considerations set out in section 8(2)
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.
5: The onus is on the accused to show cause why bail should be granted. Section 49(4)(a) amended 24 October 2019 section 28 Statutes Amendment Act 2019 Section 49(4)(aa) inserted 30 November 2018 section 30 Military Justice Legislation Amendment Act 2018
50: Judge may grant bail pending appeal
1: This section applies to a person (the appellant
a: has been convicted of an offence against the 1971 Act; and
b: is serving a sentence of imprisonment or detention under that Act in respect of the conviction pending the determination of his or her appeal against conviction or sentence, or both, to—
i: the Summary Appeal Court; or
ii: the Court Martial Appeal Court.
2: The appellant—
a: is not entitled to bail as of right; and
b: may not go at large without bail.
3: A Judge may, on application by the appellant,—
a: grant bail to the appellant:
b: impose any conditions of bail that the Judge thinks fit.
4: 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)
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.
5: The onus is on the appellant to show cause why bail should be granted.
51: Time on bail pending appeal does not count as time served
Any time during which an appellant is released from imprisonment or detention on bail pending an appeal against conviction or sentence, or both, does not count as time served under any sentence. Other provisions relating to bail
52: Procedure for bail generally
1: If an application for bail is made under section 49(3) 50(3)
2: The Director of Military Prosecutions—
a: must be the respondent to the application; and
b: may make recommendations to the Judge who is considering the application.
3: Before making a decision, the Judge must consider any recommendations that the Director of Military Prosecutions has made, including any recommendations on measures to prevent the escape of the person concerned should bail be granted.
53: Issue of warrant to arrest person absconding or breaching bail condition
1: A Judge may issue a warrant in the prescribed form for the arrest of a person who has been released on bail under section 49 50
a: the Judge is satisfied by evidence on oath that—
i: the person has absconded or is about to abscond for the purpose of evading justice; or
ii: the person has contravened or failed to comply with any condition of bail; or
b: the person—
i: does not attend personally at the time and place specified in the grant of bail; or
ii: does not attend personally at any time and place to which during the course of the proceedings the hearing has been adjourned.
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) may, at any time, enter on to any premises, by force if necessary, if he or she has reasonable grounds to believe that the person against whom the warrant is issued is on those premises.
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).
54: Person arrested under warrant for absconding or breaching bail condition must be brought before Judge
1: A person who is arrested under a warrant issued under section 53
2: The Judge must reconsider the question of bail if satisfied that the person—
a: had absconded or was about to abscond; or
b: had contravened or failed to comply with any condition of bail.
4: Findings of Court Martial
Finding on charge
55: Finding of Court Martial
1: The finding of the Court Martial on a charge must be determined by the unanimous vote of the military members.
2: If the military members are unable to reach a unanimous decision on the charge, the Judge must refer the charge back to the Director of Military Prosecutions after discharging the military members in accordance with section 48(1)(a)
3: The Director of Military Prosecutions may then—
a: decide not to proceed with the charge; or
b: lay the charge sheet again, or an amended version of the charge sheet, before the Registrar.
4: If subsection (3)(b) applies, the Registrar must assign new military members in accordance with sections 22 to 26 section 28
56: Power to convict of offence other than that charged
1: This section applies if a provision of the 1971 Act provides that—
a: an act or omission, if done or made with a certain specified intent or in certain specified circumstances, is an offence punishable by a specified punishment; and
b: the same act or omission, if done or made otherwise than with that intent or in those circumstances, is an offence punishable by a less severe punishment.
2: An accused charged with having committed an offence with the intent or in the circumstances involving the more severe punishment may be convicted of the offence that relates to the less severe punishment.
57: Accused may be convicted of attempting to commit offence
1: An accused charged with an offence may, if the circumstances warrant it, be convicted of attempting to commit that offence.
2: An accused charged with attempting to commit an offence may be convicted of the attempt even though it is proved that he or she actually committed the offence.
58: Accused may be convicted of corresponding offence
An accused charged with an offence ( offence A Schedule 1 offence B
59: Accused may be convicted of offence even though facts proved in evidence differ from those alleged in particulars of charge
An accused may be convicted of an offence even though the facts proved in evidence differ from the facts alleged in the particulars of the charge, if the Court Martial considers that—
a: the facts proved in evidence are sufficient to prove the commission of the offence to which the charge relates; and
b: the difference is not so material as to have prejudiced the accused in his or her defence.
60: Recording of finding on alternative charges
If the Court Martial records a conviction on a charge laid in the alternative, the court must—
a: find the accused not guilty of any charge laid in the alternative to it that is placed before it on the charge sheet; and
b: record no finding on any alternative to it that is placed after it on the charge sheet. Sentence of Court Martial
61: Sentence of Court Martial
1: The sentence of the Court Martial (if any) must be passed by the majority of the votes of the Judge and the military members.
2: However, if there is an equality of votes on the sentence, the Judge has a casting vote.
62: Order to come up for sentence if called on
1: If the accused is convicted of an offence, the Court Martial may, instead of passing sentence, order the accused to appear for sentence, if called on to do so within the period specified in subsection (2).
2: The period referred to in subsection (1) is a period not exceeding 1 year, commencing with the date of conviction, that the Court Martial may specify in the order.
3: If the Court Martial makes an order under subsection (1), the court must record and attach to the record of proceedings a statement of its findings of fact in relation to the charge.
4: The Court Martial may make orders under section 86 87
63: Offender to come up for sentence
1: This section applies if an offender for whom an order is made under section 62
a: is convicted or found guilty summarily of a subsequent offence against the 1971 Act or any other Act; or
b: fails to comply with any other order referred to in section 62(4)
c: fails to comply with any agreement, or fails to take any measure or action, of a kind referred to in section 10(1)(b), (d), or (e) section 62
2: The Director of Military Prosecutions may, at any time within the period specified in the order, apply to the Court Martial to have the offender brought before the Court Martial to be dealt with for the original offence.
3: On an application under subsection (2), the offender is to be placed in close arrest and brought before the Court Martial at the time and place directed by the Registrar.
4: If a person appears before the Court Martial under this section and the Court Martial is satisfied of any of the matters specified in subsection (1), the Court Martial—
a: must inquire into the circumstances of the original offence and the conduct of the offender since the order was made (including, if appropriate, the circumstances and seriousness of the subsequent offence (if any)); and
b: may sentence the offender for the original offence.
64: Other offences may be taken into account in passing sentence
1: A person who is found guilty by the Court Martial of an offence may request the court to take into account any other offence that the person admits to having committed, if the other offence—
a: is similar to that of which the person has been found guilty; and
b: is not an offence that is punishable by imprisonment for life.
2: If a request is made under subsection (1), the court may take the other offence into account in sentencing the accused.
3: If the court takes the other offence into account, it must not, in passing sentence, impose a punishment of greater severity than the maximum punishment that it may impose for the offence of which the accused was found guilty.
4: The court may exercise, in respect of any other offence taken into account under this section, any of the powers to order payment of compensation under section 86 section 87
65: Court Martial must adhere to sentencing guidelines
When sentencing an offender, the Court Martial must pass a sentence that is consistent with any sentencing guidelines that are relevant in the offender's case, unless the court is satisfied that it would be contrary to the interests of justice to do so. Announcement of finding and sentence
66: Announcement of finding and sentence
1: The Judge must announce in open court—
a: the finding of the Court Martial on each charge tried by the court; and
b: any sentence passed by the court.
2: The Judge must give reasons for the sentence (if any) passed by the court.
3: Subsection (4) applies if the Court Martial sentences a person—
a: to be dismissed from His Majesty's
b: to a term of imprisonment involving dismissal from His Majesty's
4: In delivering a sentence, the Judge must state that the dismissal does not take effect—
a: until the expiration of the period for lodging an appeal to the Court Martial Appeal Court against the conviction or sentence; or
b: if an appeal to that court, the Court of Appeal, or the Supreme Court is pending, until the appeal is determined. Section 66(3)(a) editorial change 31 October 2024 sections 86(1) 87(d) Legislation Act 2019 Section 66(3)(b) editorial change 31 October 2024 sections 86(1) 87(d) Legislation Act 2019
3: Miscellaneous and administrative provisions
1: Miscellaneous provisions
Miscellaneous
67: Court must take judicial notice of certain matters
1: The Court Martial must take judicial notice of—
a: all matters of common knowledge; and
b: all other matters of which judicial notice would be taken by the High Court.
2: The Court Martial may also take judicial notice of matters that may fairly be regarded as being within the general service knowledge of members of the court.
68: Defence of accused
Any accused to be tried by the Court Martial may be defended—
a: by a lawyer; or
b: by a defender.
69: Proceedings not invalid for want of form, etc
No proceedings before the Court Martial may—
a: be held invalid by reason only of want of form; or
b: be liable to removal into any court by means of any prerogative writ or order; or
c: be liable to review by any court under the Judicial Review Procedure Act 2016 Section 69(c) amended 1 March 2017 section 24 Judicial Review Procedure Act 2016
70: Application of provisions of Evidence Act 2006 relating to jury trials to proceedings under this Act or 1971 Act
1: The provisions of the Evidence Act 2006
2: The provisions of the Evidence Act 2006
a: include sections 32(2)(b) 45(3)(e) and (f) 76 82 83(1) 98(5)(a) 105(1)(b) 109(2) and (3) 121(2) 122 to 127
b: do not include sections 101 128
71: Evidence in proceedings under this Act or 1971 Act
1: The rules of evidence that apply in the High Court for criminal proceedings (including the rules of evidence contained in the Evidence Act 2006
2: Accordingly, a person is not required to answer any question or to produce any document in proceedings of the Court Martial that he or she could not be required to answer or produce in criminal proceedings before the High Court.
3: This section is subject to sections 72 to 74
72: Limits on application of section 71: evidence of general matters
1: Despite section 71
2: The attestation paper purporting to be signed by a person on his or her being attested as a rating, soldier, or airman in the Armed Forces of New Zealand or in any Commonwealth force, and the declaration purporting to be made by any person upon his or her re-engagement in any of the Armed Forces of New Zealand or in any Commonwealth force, is evidence of that person having given the answers to questions that he or she is represented as having given in the paper or declaration.
3: The enlistment of a person in any of the Armed Forces of New Zealand or in a Commonwealth force may be proved by the production of a copy of his or her attestation paper purporting to be certified to be a true copy by the officer or record officer having the custody of the attestation paper without proof of the handwriting of that officer, or of his or her having the custody of the paper.
4: A letter, return, or other document with respect to a person, if purporting to be issued by or on behalf of the Chief of Defence Force, or by a person authorised by the Chief of Defence Force, or by the commanding officer or the officer or record officer having the custody of the records of any portion of a Commonwealth force, or of any ship of a Commonwealth naval force to which that person appears to have belonged, or alleges that he or she belongs or had belonged, is evidence of the facts stated in that letter, return, or other document of the person—
a: having or not having at any time or times served in, or been discharged from, any Commonwealth force; or
b: having or not having held any rank or appointment in, or been posted or transferred to, any Commonwealth force, or having or not having served in any particular country or place; or
c: being or not being authorised to use or wear any service decoration, ribbon, badge, wound stripe, or emblem, the use or wearing of which by an unauthorised person is under any other Act an offence.
5: Copies purporting to be printed under the authority of the New Zealand Government of regulations, rules, or orders made under this Act, the 1971 Act, the Defence Act 1990
6: Any list of members of the Armed Forces published by or under the authority of the Chief of Defence Force, or published in the Gazette Gazette
7: Any warrants or orders made under this Act, the 1971 Act, or the Defence Act 1990
8: If an entry is made in, or a document is filed with, any service record pursuant to this Act, the 1971 Act, or the Defence Act 1990
9: A copy of any entry or document (including the signature of any person who has signed it) forming part of a service record and purporting to be certified to be a true copy by the officer or record officer stated in the certificate to have the custody of the record is evidence of that entry or document.
10: A certificate purporting to be signed by the commanding officer of any accused, or signed by any other officer authorised by that commanding officer to give the certificate, and stating the contents of any Defence Force Order, or any general, standing, daily, or routine order, or any part of the order, made in respect of any service, force, command, or formation, or any defence area or ship, or any unit, detachment, or other part of the Armed Forces, is, in the proceedings against the accused, evidence of the matters stated in the certificate.
11: A certificate purporting to be signed by the commanding officer of any accused, or signed by any other officer authorised by that commanding officer to give the certificate, and stating the contents of any part of any Defence Manual, is, in the proceedings against the accused, evidence of the matters stated in the certificate.
12: If the issue or one of the issues in the proceedings relates to the navigation of one of His Majesty's Section 72(12) editorial change 31 October 2024 sections 86(1) 87(d) Legislation Act 2019
73: Limits on application of section 71: evidence of custody at police station
1: Despite section 71
2: If the member has been taken to a police station in any place in New Zealand or elsewhere or has on surrender been taken into custody at any police station, then, for the purposes of any proceedings against that member, a certificate purporting to be signed by the member of the police in charge of that police station, and stating the fact, date, and place of the arrest or surrender, is evidence of the matters so stated.
3: Any certificate given under subsection (2) may include a statement as to whether, at the time of the arrest, or surrender, the member was wearing the uniform of the service to which he or she belongs or civilian clothes; and that certificate is evidence of the matters so stated.
74: Limits on application of section 71: evidence of surrender, arrest, or delivery to service custody in relation to charge of desertion or absence without leave
1: Despite section 71
2: If the member has surrendered himself or herself into the custody of a provost officer or a person lawfully exercising authority under or on behalf of a provost officer, or of any other officer of any New Zealand or allied force, a certificate purporting to have been signed by that provost officer, or person, or other officer, and stating the fact, date, and place of the surrender, is evidence of the matters so stated.
3: If the member has been arrested and taken into the custody of a provost officer or a person lawfully exercising authority under or on behalf of a provost officer, or of any other officer of any New Zealand or allied force, a certificate purporting to have been signed by that provost officer, or person, or other officer, and stating the fact, date, and place of the arrest, is evidence of the matters so stated.
4: If the member has been delivered into service custody by a member of the police, a certificate purporting to be signed by that member of the police, and stating the fact, date, and place of the surrender of the member, is evidence of the matters so stated.
5: Any certificate given under subsections (2) to (4), or any 1 or more of those subsections, may include a statement as to whether, at the time of the surrender, arrest, or delivery into service custody, as the case may be, the member was wearing the uniform of the service to which he or she belongs or civilian clothes; and that certificate is evidence of the matters so stated.
75: Records of Court Martial proceedings
1: A person who has custody of any record of the proceedings of the Court Martial held under this Act or the 1971 Act must deliver it as soon as practicable after the trial to the Judge Advocate General.
2: The Judge Advocate General may give directions as to how the record must be kept (including directions as to how long it must be kept, which must be for a period of not less than 6 years from the conclusion of the trial).
3: A person who has been tried by the Court Martial ( person A person B
a: applies to the Judge Advocate General within,—
i: in the case of person A, 5 years after the conclusion of the trial; or
ii: in the case of person B, 12 months after the death of person A; and
b: pays the prescribed fee (if any).
4: Despite subsection (3), if the Minister certifies that it is necessary for reasons of security that the record of the proceedings of the Court Martial, or any part of them, should not be disclosed, the Judge Advocate General may direct that an applicant for a copy of the record is not to be supplied with the record, or that part of the record, to which the certificate relates.
5: In this section,— personal representative
a: person A's legal personal representative; or
b: any other person whom the Judge Advocate General considers should, for the purposes of this section, be regarded as the personal representative of person A record of the proceedings of the Court Martial
76: Evidence of proceedings of Court Martial
1: Subsection (2) applies to every original record of any proceedings of the Court Martial that—
a: appears to have been signed by the Judge of the court for those proceedings; and
b: is in the custody of—
i: the Judge Advocate General; or
ii: any person lawfully having custody of any original record.
2: On its being produced from the custody of a person referred to in subsection (1)(b), the original record to which this subsection applies is admissible in evidence in all proceedings under this Act or the 1971 Act and in all courts in New Zealand.
3: Subsection (4) applies to a document that appears—
a: to be a copy of the original record (including a transcript of an audio recording of the proceedings) of any proceedings of the Court Martial or of part of that record; and
b: to be certified by the Judge Advocate General, or by any person lawfully having custody of the original record, as being a true copy of that record or part of that record.
4: A document to which this subsection applies is admissible as evidence of the original record or part of the original record, as the case may be, in all proceedings under this Act or the 1971 Act and in all proceedings in civil courts in New Zealand on its being produced in those proceedings, without proof of the signature of the Judge Advocate General or other person lawfully having custody of the original record.
2: Administrative provisions
Seal
77: Seal of Court Martial
The Court Martial is to have a seal, which is to be judicially noticed by all courts and for all purposes. Delegation by Chief Judge
78: Chief Judge may delegate functions, duties, or powers to Deputy Chief Judge or Registrar
1: The Chief Judge may, either generally or particularly, delegate—
a: to a Deputy Chief Judge any of the Chief Judge's functions, duties, and powers (except the power of delegation); or
b: to the Registrar the Chief Judge's duty under section 21(3)
2: A delegation—
a: must be in writing; and
b: may be made subject to any restrictions that the Chief Judge thinks fit; and
c: is revocable at any time, in writing; and
d: does not prevent the performance or exercise of a function, duty, or power by the Chief Judge.
3: A Deputy Chief Judge or the Registrar may perform any functions, duties, or powers delegated under subsection (1) in the same manner and with the same effect as if they had been conferred on him or her directly by this Act and not by delegation.
4: If a Deputy Chief Judge or the Registrar appears to act under subsection (1), that person is presumed to be acting in accordance with the terms of delegation in the absence of evidence to the contrary. Appointment of Registrar, clerks, and other officers of Court Martial
79: Appointment of Registrar, clerks, and other officers of Court Martial
1: The Chief Judge must appoint a person to act as the Registrar.
2: The Registrar may appoint clerks or any other officers of the Court Martial as may be required.
3: An appointment under this section must be made by giving written notice to the person concerned.
4: A person appointed under this section must not undertake any other paid employment or hold any other office (whether paid or not) unless the Chief Judge or the Registrar (as the case may be) is satisfied that the employment or other office is compatible with that person's appointment.
80: Registrar to be Inspector of Service Penal Establishments
1: The Registrar, because of his or her office, is to be the Inspector of Service Penal Establishments.
2: The Inspector of Service Penal Establishments performs the functions of National Preventive Mechanism under the Crimes of Torture Act 1989 section 2(1) Attendance of clerk, etc, at sittings of Court Martial
81: Attendance of clerk, etc, at sitting of Court Martial
1: The Registrar must arrange for the attendance at every sitting of the Court Martial of—
a: a clerk of the Court Martial; and
b: a person responsible for recording or transcribing the proceedings; and
c: if necessary, a competent interpreter.
2: The clerk of the Court Martial must—
a: liaise with the officer in command or the person in control of the place where the court is to sit on matters regarding the provision of administrative support to the court; and
b: perform any other functions or duties that are conferred or imposed on him or her by or under this Act or any other enactment. Delegation by Registrar
82: Registrar may delegate functions, duties, or powers to clerk or other officer of Court Martial
1: The Registrar may, in writing, either generally or particularly, delegate to a clerk or any other officer of the Court Martial appointed under section 79(2)
a: any function, power, or duty delegated to the Registrar by the Chief Judge; and
b: this power of delegation.
2: A delegation—
a:
b: may be made subject to any restrictions and conditions that the Chief Judge or the Registrar thinks fit; and
c: is revocable at any time, in writing; and
d: does not prevent the performance or exercise of a function, duty, or power by the Registrar.
3: A clerk or any other officer of the Court Martial to whom any functions, duties, or powers are delegated may perform and exercise them in the same manner and with the same effect as if they had been conferred on him or her directly by this Act and not by delegation.
4: A clerk or any other officer of the Court Martial who appears to act under a delegation is presumed to be acting in accordance with its terms in the absence of evidence to the contrary. Section 82(2)(a) repealed 24 October 2019 section 29 Statutes Amendment Act 2019
3: Transitional provisions, repeal, and consequential amendments
Transitional provisions
83: Transitional provision relating to Chief Judge
Despite anything to the contrary in section 12
84: What happens if court-martial has not yet been convened on commencement of this Act
1: This section applies if—
a: proceedings under the 1971 Act have been commenced before the commencement of this Act and have not been completed before that commencement; and
b: before that commencement, the accused elects to be tried by court-martial and does not withdraw that election in the prescribed manner or is otherwise remanded for trial by court-martial; but
c: the court-martial has not been convened before that commencement.
2: If this section applies,—
a: the charge must be referred to the Director of Military Prosecutions; and
b: the accused may be remanded for trial in the Court Martial (as established by this Act); and
c: the charge must then be dealt with in accordance with the 1971 Act (as amended by the Armed Forces Discipline Amendment Act (No 2) 2007
d: sections 117ZF to 117ZI Armed Forces Discipline Amendment Act (No 2) 2007
85: What happens if court-martial has been convened on commencement of this Act
1: This section applies to courts-martial under the 1971 Act—
a: that were convened before the commencement of this Act; and
b: that have not been dissolved before that commencement.
2: Proceedings before courts-martial to which this section applies are to be continued and completed under the 1971 Act as if this Act had not been enacted. Repeal
86: Part 6 of 1971 Act repealed
Part 6 OIC SR 2008/233 2009-07-01 Armed Forces Discipline Act 1971 Consequential amendments
87: Consequential amendments to other enactments
The enactments specified in Schedule 2 OIC SR 2008/233 2009-07-01 Corrections Act 2004 Crimes Act 1961 Crimes of Torture Act 1989 Defamation Act 1992 Electronic Transactions Act 2002 Geneva Conventions Act 1958 Habeas Corpus Act 2001 Judicature Act 1908 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 Lawyers and Conveyancers Act 2006 Mental Health (Compulsory Assessment and Treatment) Act 1992 Oaths and Declarations Act 1957 Prisoners' and Victims' Claims Act 2005 Remuneration Authority Act 1977 Supreme Court Act 2003 Corrections Regulations 2005 Electoral Regulations 1996