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S.I. No. 243/1954 - Defence Act, 1954. Rules of Procedure (Defence Forces), 1954.

S.I. No. 243/1954 - Defence Act, 1954. Rules of Procedure (Defence Forces), 1954. Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.

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  3. s)or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile Statutory InstrumentsIonstraimí Reachtúla 1954 S.I. No. 243/1954 - Defence Act, 1954. Rules of Procedure (Defence Forces), 1954. S.I. No. 243/1954 - Defence Act, 1954. Rules of Procedure (Defence Forces), 1954. AmendmentsLeasuithe S.I. No. 243 of 1954. DEFENCE ACT, 1954. RULES OF PROCEDURE (DEFENCE FORCES), 1954. ARRANGEMENT OF RULES. PART I.—PRELIMINARY AND GENERAL. 1. Short title and commencement. 2. Interpretation—Abstract of Evidence. the Act. Authorised Officer. Commanding Officer. Oath and Swear. Proper Military Authority. Subordinate Officer. Summary of Evidence. 3. Application of Rules. 4. Revocation. PART II.—ARREST AND TRIAL. 5. Delay Report. INVESTIGATION OF CHARGES. 6. Investigation by Commanding Officer. 7. Reference to and Trial by Authorised Officer of charges against Officers of rank lower than Commandant or Lieutenant-Commander. 8. Consideration by accused of his right to trial by court-martial. 9. Summary awards may not be increased ; but may be mitigated or reduced, etc. ORDER FOR TRIAL PURSUANT TO section 181 of the act. 10. Trial under section 181—copy of order for, and of proceedings of court of inquiry to be served upon accused. 11. Abstract of Evidence. TAKING OF SUMMARY OF EVIDENCE. 12. Summary of Evidence. FRAMING CHARGES. 13. Charge-Sheet and Charge. 14. Commencement of Charge-Sheet. 15. Contents of Charge. 16. Validity of Charge-Sheet. APPLICATION FOR COURT-MARTIAL. 17. Application for Court-martial. CONVENING COURTS-MARTIAL. 18. Procedure for Convening. 19. Appointment of Judge-Advocate. PREPARATION OF DEFENCE. 20. Preparation of Defence by accused person. 21. Joint trial of several accused persons. PROCEDURE AT TRIAL—CONSTITUTION OF COURT. 22. Assembly of Court. 23. Procedure on assembly of Court. 24. Inability of officer named as member of Court to attend. 25. Adjournment for insufficient number of Officers. 26. Court to satisfy itself as to its legal constitution and fitness of accused to stand trial. 27. Court to satisfy itself as to amenability of accused, validity of charge. PROCEDURE AT TRIAL—CHALLENGE AND SWEARING. 28. Appearance of Prosecutor, Counsel, etc. 29. Proceedings for challenge of members of Court. 30. Swearing of Members. 31. Swearing of Judge-Advocate and other persons. 32. Substitution of Solemn Declaration for Oath. PROCEDURE AT TRIAL—PROSECUTION. 33. Arraignment of accused. 34. Objection by accused to Charge. 35. Amendment of Charge. 36. Special plea to the jurisdiction. 37. General plea of " Guilty " or " Not Guilty ". 38. Plea in Bar. 39. Procedure after plea of " Guilty ". 40. Withdrawal of plea of " Not Guilty ". 41. Plea of " Not Guilty ". Application for adjournment and case for prosecution. 42. Submission as to case for prosecution. PROCEDURE AT TRIAL—DEFENCE. 43. At close of prosecution accused to be informed of his rights. 44. Procedure where no evidence as to facts given for defence. 45. Procedure where evidence as to facts given for defence by accused only. 46. Procedure where evidence as to facts given for defence by accused and other witnesses. 47. Procedure where evidence as to facts given for defence by witnesses (other than accused) but not by the accused. PROCEDURE AT TRIAL—SUMMING-UP. 48. Summing-up by Judge-Advocate. PROCEDURE AT TRIAL—FINDING AND SENTENCE. 49. Consideration of finding. 50. Form and record of finding. 51. Procedure on finding. 52. Procedure on conviction. 53. Forfeiture of seniority of rank and service for purpose of promotion. 54. Recommendation to mercy. 55. Pronouncement of sentence and signing and transmission of proceedings. CONFIRMATION AND REVISION. 56. Procedure on revision. 57. Promulgation of confirmation or non-confirmation of finding and sentence and direction for re-trial. 58. Mitigation, remission or substitution. 59. Confirmation notwithstanding technical or other deviation. 60. Petition against finding and sentence (other than sentence of death). 61. Petition against sentence of death. 62. Provisions as to finding of insanity and custody of insane person. 63. Effective date of certain sentences. GENERAL PROVISIONS AS TO PROCEEDINGS OF COURT. 64. Seating of members. 65. Responsibility of President and Judge-Advocate. 66. Power of court over address of Prosecutor and accused. 67. Procedure on trial of accused persons together. 68. Separate charge-sheets. 69. Sitting in open Court. 70. Time for trial. 71. Continuity of trial and adjournment of Court. 72. Suspension of Trial. 73. Proceedings on death or illness of accused. 74. Presence throughout of all members of Court. 75. Taking opinions of members of Court. 76. Procedure on incidental question. 77. Swearing of Court to try several persons. 78. Swearing of interpreter and shorthand writer. GENERAL PROVISIONS AS TO WITNESSES AND EVIDENCE. 79. Evidence to be relevant and according to rules in civil courts. 80. Judicial notice. 81. Calling of all Prosecutor's witnesses. 82. Calling of witness whose evidence is not contained in the Summary or Abstract. 83. List of witnesses of accused. 84. Procuring attendance of witnesses. 85. Adjournment of Court for non-attendance of witnesses. 86. Withdrawal of witnesses from Court. 87. Swearing of witnesses. 88. Examination and cross-examination. 89. Mode of questioning witnesses and recording of evidence. 90. Questions to witness by members of Court or Judge-Advocate. 91. Recalling witnesses and calling of witnesses in reply. COUNSEL AND DEFENDING OFFICER. 92. Counsel—Rights of. 93. Counsel for Prosecutor. 94. Counsel for accused. 95. General Rules as to Counsel. 96. Defending Officer. PROCEEDINGS. 97. Record in proceedings of transactions of Court-martial. 98. Custody and inspection of proceedings. 99. Transmission of proceedings after findings. 100. Preservation of proceedings. 101. Rate of payment for copies of proceedings. 102. Loss or destruction of proceedings. JUDGE-ADVOCATE. 103. Death, illness or absence of Judge-Advocate. 104. Powers and duties of Judge-Advocate. EXCEPTION FROM RULES. 105. Suspension of Rules on the ground of service exigencies or the necessities of discipline. PART III.—COURTS OF INQUIRY. 106. Definition. 107. Convening Authorities. 108. Composition. 109. Assessors—Appointment and functions of. 110. Convening of. 111. Witness subject to military law—attendance of, and production of documents. 112. Witness not subject to military law—attendance of. 113. Further witnesses. 114. Appointment of new members. 115. Court to continue unless reduced below legal minimum. 116. Procedure at. 117. Procedure where military reputation or character is adversely affected. 118. Proceedings or findings—signature of. 119. Proceedings, transmission of. 120. Re-assembly of. 121. Proceedings of—when admissible in evidence. 122. Findings not admissible in evidence. 123. Copy of proceedings and findings, when furnished. 124. Illegal Absence, Additional matters. PART IV.—BOARDS. 125. Definition. 126. Convening Authorities. 127. Composition. 128. Procedure. PART V.—DECLARATION AND PRESCRIPTION OF PRESCRIBED OFFICERS, PRESCRIBED AUTHORITIES, AND PRESCRIBED PERSONS FOR THE PURPOSES OF PART V (EXCEPT CHAPTERS IV AND X) OF the Act. 129. Prescribed Officer. 130. Prescribed Authority. 131. Prescribed Person. PART VI.—MISCELLANEOUS. 132. Exercise of powers vested in holder of military office. 133. Cases unprovided for. 134. Orders for commitment, transfer and release, etc. 135. Forms in Appendices. 136. Reports and applications to superior authority. APPENDICES. APPENDIX I. Form of Order for trial by Court-martial without previous investigation. APPENDIX II. Form of Summons to a Civilian Witness in the case of a Summary of Evidence. APPENDIX III. Form of Application for a Court-martial. APPENDIX IV. Form of Order for the assembly of a General or Limited Court-martial. APPENDIX V. Form of certificate of conformity with Rule 20. APPENDIX VI. Forms of Oaths and Declarations. APPENDIX VII. Form of Promulgation of Findings and Sentence and particulars as to confirmation thereof. APPENDIX VIII. Form of Petition. APPENDIX IX. Form of Notice of Intention to call a witness whose evidence is not contained in the Summary or Abstract of Evidence. APPENDIX X. Form of summons to a civilian witness in the case of a Court-martial. APPENDIX XI. Court-martial Forms. APPENDIX XII. Form of Medical Certificate. APPENDIX XIII. Form of Ten day Delay Report. APPENDIX XIV. Form of Declaration of Military exigencies or the Necessities of Discipline. APPENDIX XV. Form of Notice of Assembly of a Court of Inquiry. APPENDIX XVI. Form of Declaration to be entered in the service books pursuant to subsection 3 (
  4. b)(
  5. ii)of section 174 of the act. APPENDIX XVII. Forms of Orders for Commitment, Transfer and Release. I, SEAN MacEOIN, Minister for Defence, in exercise of the powers conferred on me by section 240 of the Defence Act, 1954 (No. 18 of 1954), and of every and any other power me in this behalf enabling, do hereby make the following Rules :— PART I. —PRELIMINARY AND GENERAL. 1 Short title and commencement. 1.—

(1)These Rules may be cited as the Rules of Procedure (Defence Forces), 1954.
(2)These Rules shall come into operation on the 1st day of January, 1955. 2 Interpretation. 2.—
(1)In these Rules :— abstract of evidence. " abstract of evidence " means— (
  1. a)except for the purposes of Rule 7, the statement in writing, prepared in accordance with Rule 11 of these Rules, of the evidence of witnesses proposed to be called at the trial by Court-martial of an accused person, (
  2. b)for the purposes of Rule 7, a statement in writing of the evidence of the witnesses (including the evidence or statement, if any, of the accused) heard by a commanding officer in accordance with that Rule ; The act. " the Act " means the Defence Act, 1954 (No. 18 of 1954) as amended or extended by any subsequent enactment ; authorised officer. " authorised officer " means an officer in whom the powers and duties of an authorised officer are vested by virtue of the provisions of Part XV of Defence Force Regulation A.7 ; commanding officer. " commanding officer " means, in relation to any person, the Officer declared by subparagraph 3
(1)of Defence Force Regulations A.1 and by subparagraph 67
(2)of Defence Force Regulations A.7 to be his commanding officer ; oath and swear. " oath " and " swear " and other expressions relating thereto, include affirmation or declaration, affirm or declare, and expressions relating thereto, in cases where an affirmation or declaration is by law allowed instead of an oath ; proper military authority. " proper military authority " when used in relation to any jurisdiction, power, duty, act or other matter, means such military authority as, in pursuance of Regulations made under the Act, or the custom of the service, exercises or performs that jurisdiction, power or duty or is concerned with that act or matter ; subordinate officer. " subordinate officer " means an officer to whom power is delegated under subsection
(1)of section 179 of the act to dispose of charges against privates or seamen ; summary of evidence. " summary of evidence " means the evidence in relation to a charge against an accused, taken down in writing in accordance with Rule 12 of these Rules, and includes any statement made by the accused and taken down in accordance with paragraph
(4)of the said Rule 12 and any further statement of evidence included in the summary of evidence in accordance with paragraph
(7)of the said Rule 12.
(2)Time for the purpose of any proceedings or other matter under these Rules shall be reckoned exclusive of Sunday, Good Friday, Christmas Day and St. Patrick's Day, but any time reckoned for the purposes of Rule 5 or Rule 60 of these Rules or of any punishment or of any forfeiture or deduction of pay shall include those days.
(3)The Interpretation Act, 1937 (No. 38 of 1937), applies to these Rules. 3 Application of Rules. 3. These Rules shall apply everywhere, whether within or without the State. 4 Revocation. 4.—
(1)The Rules of Procedure (Defence Forces), 1946 ( S. R. & O. No. 35 of 1946 ), and the Rules of Procedure (Defence Forces), 1949 ( S.I. No. 112 of 1949 ), are hereby revoked.
(2)Any Court-martial, proceeding or thing held, done or commenced under the Rules revoked by paragraph
(1)of this Rule shall be as valid and may be completed and carried into effect as if such Court-martial, proceeding or thing held, done or commenced had been held, done or commenced under these Rules. PART II. —ARREST AND TRIAL. 5 Delay report. 5. Where a person subject to military law (not on active service) is detained in service custody for a period of ten days without having his case summarily disposed of or without an application being forwarded in accordance with Rule 17 of these Rules for the trial of such person, the commanding officer or other officer who should cause the summary or abstract of evidence to be taken or prepared, shall forthwith report to the person, to whom such application would be made, on the steps taken in the case and on the necessity for continued custody. A similar report shall be forwarded every ten days until a Court-martial is assembled or the person is released from custody. The reports required by this Rule shall be in the form prescribed in Appendix XIII to these Rules. INVESTIGATION OF CHARGES. 6 Investigation by commanding officer. 6.—
(1)The commanding officer shall cause the person preferring the charges, together with all available witnesses mentioned on the charge-sheet, and also the accused and any available witnesses desired by the accused, and any other available witnesses of whomhe may learn, to appear before him at a stated time (to be fixed either by Standing Orders or otherwise) at his office or headquarters or other available place, within 24 hours (where practicable) of receipt by him of the charges, with all available evidence, including the service record of the accused, and shall there informally investigate the charges. No counsel or representative shall (save in capital cases) be allowed to appear for the accused or for the prosecution. At such investigation full opportunity shall be given to the accused to cross-examine the witnesses whose statements are unfavourable to him, and to present anything he may desire on his own behalf, either in defence or mitigation, and all available witnesses requested by the accused shall be called and examined. Witnesses who are not subject to military law may be summoned in accordance with the Defence Forces (Summoning of Civilian Witnesses) Regulations, 1954.
(2)If, upon such informal investigation, the commanding officer in his discretion considers that the charge should not be proceeded with he shall dismiss the charge. If it appears to him that there is no substantial evidence tending to show that an offence has been committed or no substantial evidence tending to show that the accused is guilty of the offence charged, he shall dismiss the charge ; but if in any case he finds there is substantial evidence tending to show that the accused (whether or not probably guilty of the offence, or some of the offences, charged) is guilty of some other offence or offences, he may permit new or additional or amended charges to be preferred (or may himself prefer them) and proceed as if such new or additional or amended charges had been among the charges originally before him.
(3)In case the accused is a person subject to military law as a man, the witnesses against him shall, if he so demands, be sworn.
(4)The provisions of this Rule and of Rules 7, 12, 17 and paragraph
(5)of Rule 18 shall so far as they are applicable, apply to the investigation of a charge by an officer appointed by the Adjutant-General so to do pursuant to the provisions of subsection
(1)of section 177 of the act. 7 Reference to and trial by authorised officer of charges against officers of rank lower than Commandant or Lieutenant-Commander. 7.—
(1)Where the accused is an officer holding a commissioned rank lower than that of Commandant or Lieutenant-Commander, and the charge against him is referred for trial to an authorised officer, the commanding officer shall either (
  1. a)prepare an abstract in writing of the evidence of the witnesses who gave evidence before him, or (
  2. b)take or cause to be taken a summary of evidence in writing of the witnesses who gave evidence before him and of any other witnesses whose evidence is relevant, and the provisions of Rule 12 of these Rules shall apply to such summary of evidence. The abstract or the summary of evidence, as the case may be, shall be forwarded to the authorised officer and a copy thereof shall be supplied gratis to the accused not less than 24 hours before his trial before the said authorised officer.
(2)Where a charge is referred by a commanding officer for trial by an authorised officer, the provisions of Rule 6 of these Rules shall apply, in so far as they are applicable, to such trial, but subject to the following provisions, that is to say :— the authorised officer— (
  1. a)shall, after hearing the evidence or without hearing the evidence, dismiss the charge, if in his discretion he considers it should not be proceeded with ; (
  2. b)may, if the accused so consents, dispense with the attendance of the witnesses but, in such case, shall read the abstract or summary of evidence which has been prepared or taken in accordance with the requirements of paragraph
(1)of this Rule. 8 Consideration by accused of his right to trial by court-martial. 8.—
(1)Where a commanding officer or an authorised officer proposes to make an award or an order which will entitle the accused to elect to be tried by court-martial, he shall inform the accused of the nature of such award or order and of his right to be tried by court-martial, and shall thereupon adjourn the case for twenty-four hours, provided always that if the accused upon being so informed of the nature of such award or order and of his right to elect to be tried by court-martial desires to be dealt with summarily, the commanding officer or authorised officer may then and there proceed to deal with the case summarily.
(2)Where a case has been adjourned pursuant to the provisions of paragraph
(1)of this Rule the commanding officer or authorised officer shall, upon the accused again appearing before him, either remand him for trial by court-martial or proceed to deal with the case summarily, according as the accused may desire. 9 Summary awards may not be increased but may be mitigated or reduced, etc.
  1. When a commanding officer or an authorised officer or a subordinate officer has once awarded punishment for an offence he may not afterwards increase that punishment, but he may, at any time prior to the publication of that punishment in the appropriate routine orders, mitigate or reduce such punishment or substitute for it any less punishment which he might have awarded for that offence. ORDER FOR TRIAL PURSUANT TO section 181 of the act. 10 Trial under section 181—copy of order for, and of proceedings of court of inquiry to be served upon accused. 10.—Where a person subject to military law has been ordered to be tried by court-martial pursuant to the provisions of section 181 of the act, a true copy of the order shall be served upon the accused by an officer. The fact and date of service of such copy order shall be endorsed upon the original order by the officer effecting service and the order shall be returned to the officer who made it. The order shall be in the form prescribed in Appendix I to these Rules. At the same time as the true copy of the above mentioned order is served upon the accused, a copy of the proceedings and findings of the court of inquiry which was held in respect of matters relating to the alleged offence on which the accused is to be tried shall be delivered to the accused (gratis) by the officer serving the true copy of the said order 11 Abstract of evidence.
  2. Where a person subject to military law has been ordered to be tried by court-martial pursuant to the provisions of section 181 of the act, the officer designated in that behalf in the order shall cause to be prepared a statement in writing of the evidence of the witnesses proposed to be called for the prosecution at the trial, without such statement being taken in the presence of the person so ordered to be tried, and shall then proceed as directed by Rule 17 of these Rules. TAKING OF SUMMARY OF EVIDENCE. 12 Summary of evidence 12.—
(1)When— (
  1. a)an accused has been remanded for trial by court-martial, or (
  2. b)a charge against an accused holding a commissioned rank lower than that of Commandant or Lieutenant-Commander has been referred for trial to an authorised officer and the accused's commanding officer has directed that a summary of evidence should be taken, the evidence of all the witnesses who gave evidence against the accused, in the case of a remand for trial by court-martial before the authorised officer or the commanding officer, and in the case of the reference of a charge for trial to an authorised officer before the commanding officer, and of any other witness whose evidence is relevant shall be taken down in writing in the presence of the accused before the commanding officer or an officer acting on his behalf.
(2)The accused may put questions in cross-examination to any witness, and the questions with the answers shall be added in writing to the evidence taken down.
(3)The evidence of each witness, when taken down as provided in paragraphs
(1)and
(2)of this Rule, shall be read over to him and shall be signed by him or, if he cannot write his name, shall be attested by his mark and witnessed.
(4)After all the evidence against him has been recorded, the accused shall be asked " Do you wish to make any statement or to give evidence upon oath ? You are not obliged to say anything or give evidence unless you wish to do so, but whatever you say or any evidence you give will be taken down in writing, and may be given in evidence ". Any statement or evidence of the accused shall be taken down, but he shall not be cross examined on it. If the accused is tried by court-martial, no evidence shall be admitted at the trial of any statement or evidence he may have made or given at the taking of the summary of evidence before the above caution was given to him.
(5)The accused may call and examine witnesses in his defence and their evidence shall be taken as provided in the case of witnesses called for the prosecution.
(6)Save as provided with regard to the accused in paragraph
(4)of this Rule, the evidence of all witnesses shall be taken on oath, and the oath shall be administered by the officer taking the summary in the same form as is provided for a witness at a court-martial.
(7)If a person cannot be compelled to attend as a witness or if, owing to the exigencies of the service or on other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing) be readily procured, a written statement of such person's evidence purporting to be signed by him may be read to the accused and included in the summary of evidence ; provided that, if such person can be compelled to attend, the accused may demand that he shall attend for cross-examination.
(8)The officer taking the summary may put such questions to witnesses as he may find necessary to elicit the facts relevant to the charges, but he shall not cross-examine the accused.
(9)No counsel or representative shall (save in capital cases) be allowed to appear for the accused or for the prosecution at the taking of the summary.
(10)Any witness who is not subject to military law may be summoned to attend under the hand of the commanding officer of the accused. The summons to such witness shall be in the form prescribed in Appendix II to these Rules and shall be served on the witness either personally or by leaving it with some person at his last known or most usual place of abode.
(11)Nothing in this Rule shall be construed so as to require a summary of evidence to be taken after the remand for court-martial by an authorised officer of an accused officer holding a commissioned rank lower than that of Commandant or Lieutenant-Commander in whose case a summary of evidence has been taken before his trial by an authorised officer, unless such authorised officer so directs.
(12)An additional summary or summaries of evidence may be taken by or on behalf of the commanding officer or the authorised officer in the same manner as is herein provided for a summary of evidence. FRAMING CHARGES. 13 Charge-sheet and charge. 13.—
(1)A charge means an accusation contained in a charge-sheet that a person amenable to military law has been guilty of an offence.
(2)A charge-sheet shall contain the whole issue or issues to be tried by a court-martial at one time.
(3)A charge-sheet may contain one or more charges but each charge shall allege only one offence.
(4)A charge-sheet may contain alternative charges. 14 Commencement of charge-sheets. 14. Every charge-sheet shall begin with the name and description of the person charged and should state his number, rank, name and unit (if any) and where he does not at the time of the trial belong to the Permanent Defence Force should show by the description of him, or directly by an express averment, that he is amenable to military law in respect of the offence charged. 15 Contents of charge. 15.—
(1)Each charge should state one offence only, and in no case should an offence be described in the alternative in the same charge.
(2)Each charge should be divided into two parts :— (
  1. a)the statement of the offence ; and (
  2. b)the statement of the particulars of the Act, neglect or omission constituting the offence.
(3)The offence should be stated, if not a civil offence, in the words of the Act. If a civil offence, it should be stated in such words as sufficiently describe that offence, but not necessarily in technical words. The provisions of Rule 5 contained in the First Schedule to the Criminal Justice (Administration) Act, 1924 (No. 44 of 1924), shall apply to the charging of statutory civil offences and the provisions of Rules 6, 7, 8 and 10 of the said Rules shall apply to the charging of all offences.
(4)The particulars should state such circumstances respecting the alleged offence as will enable the accused to know what act, neglect or omission is intended to be proved against him as constituting the offence ; and it shall be sufficient to describe any place, time, thing or matter whatsoever to which it is necessary to refer in the particulars in ordinary language in such a manner as to indicate with reasonable clearness the place, time, thing or matter referred to therein.
(5)The particulars in one charge may be framed wholly or partly by a reference to the particulars in another charge and, in that case, so much of the latter particulars as is so referred to shall be deemed to form part of the first-mentioned charge as well as of the other charge.
(6)Where it is intended to prove any facts in respect of which any deduction from pay can be awarded or any direction can be given to pay compensation for any expense, loss, damage or destruction of property occasioned as a consequence of the offence charged, the particulars should state those facts and the amount of any such expense or the value of any property lost, damaged or destroyed. 16 Validity of charge-sheet. 16.—
(1)A charge-sheet shall not be invalid by reason only of any mistake in the name or description of the person charged if he does not object to the charge-sheet during the trial and it is not shown that injustice has been done to the person charged.
(2)In the construction of a charge-sheet or charge there shall be presumed in favour of supporting the same every proposition which may reasonably be presumed to be impliedly included, though not expressed therein. APPLICATION FOR COURT-MARTIAL. 17 Application for court-martial. 17.—
(1)As soon as the summary of evidence (other than a summary of evidence taken pursuant to Rule 7) or the abstract of evidence has been taken or prepared, the commanding officer (or the officer who caused the abstract of evidence to be prepared) shall without delay apply in writing to have the proper court-martial convened by a person having authority to so convene.
(2)Where an accused holding a commissioned rank lower than that of Commandant or Lieutenant-Commander has been remanded by an authorised officer for trial by court-martial such authorised officer shall— (
  1. a)in case a summary of evidence has been taken in accordance with the provisions of Rule 7 of these Rules and does not direct that any further or additional summaries of evidence be taken, apply in writing without delay to have the proper court-martial convened by a person having authority to do so ; or (
  2. b)in case no summary of evidence has been taken or in case a summary of evidence has been taken and he directs that a further or an additional summary of evidence be taken, apply in writing without delay after such summary of evidence or such further or additional summary of evidence, as the case may be, has been taken to have the proper court-martial convened by a person having authority so to do.
(3)Every application made pursuant to the provisions of the foregoing paragraphs of this Rule shall be in the form prescribed in Appendix III to these Rules and shall be accompanied by the charge-sheet (if any) upon which the accused was remanded for trial by court-martial and the summary or abstract of evidence. CONVENING COURTS-MARTIAL. 18 Procedure for convening. 18.—
(1)Upon receipt of the application for a court-martial the convening authority shall satisfy himself upon the following points :— (
  1. a)that the accused is charged with an offence against the Act ; (
  2. b)that the evidence is sufficient to justify a trial by court-martial ; (
  3. c)that the provisions of the Regulations made under paragraph
(2)of subsection
(4)of section 192 of the act, where applicable, have been complied with and if he is not so satisfied may refuse the application and order the release of the accused or may require an additional summary or abstract of evidence to be taken or prepared and on receipt thereof shall proceed as provided in this Rule.
(2)The convening authority should also satisfy himself that the case is a proper one to be tried by the class of court-martial he proposes to convene.
(3)If he is satisfied upon the matters specified in the preceding paragraphs the convening authority shall, without delay, settle the charge-sheet and in so doing may do all or any one or more of the following as may appear to him to be necessary having regard to the evidence:— (
  1. a)add to, alter or amend any charge ; (
  2. b)substitute for any charge any other charge or charges ; (
  3. c)add new charges. Provided, however, that where an accused has elected trial by court-martial the following provisions shall apply :— (
  4. i)the charge in respect of which the accused has so elected shall not be added to nor a charge for a graver offence substituted therefor but it may be amended so as to conform with the provisions of the Act and of these Rules ; (
  5. ii)where from the summary of evidence there appears to be disclosed a more serious offence than that in respect of which the accused has elected trial by court-martial, the convening authority may direct the commanding officer to charge the accused with the more serious offence so disclosed. On such direction being given the commanding officer shall proceed with the investigation of the charge as a matter of first instance in accordance with the provisions of the Act and of these Rules, provided, however, that if the accused is remanded for trial by court-martial the summary of evidence already taken may be deemed a compliance with Rule 12 of these Rules.
(4)As soon as practicable, having regard to the provisions of Rule 20 of these Rules, the convening authority shall detail the officers to form the court and shall appoint the president thereof. He shall at the same time detail such number of officers in waiting as he thinks expedient. He shall at the same time appoint an officer to prosecute.
(5)The convening authority shall transmit to the judge-advocate of the court, at the same time as the order convening the court, the original charge-sheet on which the accused is to be tried, which shall be signed by the convening authority or the commanding officer of the accused together with the original summary or abstract of evidence and the certificate provided for by paragraph (b) ofsubsection
(4)of section 192 of the act, where applicable. The order convening the court shall be in the form prescribed in Appendix IV to these Rules. 19 Appointment of judge-advocate. 19.—
(1)The judge-advocate at a general court-martial shall be appointed by the Judge Advocate-General or the Deputy Judge Advocate-General.
(2)A court-martial shall not be invalid by reason of any invalidity in the appointment of the judge-advocate officiating thereat, in whatever manner appointed, if a fit person has been appointed ; but this provision shall not relieve from responsibility the person who made the invalid appointment.
(3)The officer appointed as judge-advocate shall be named in the order convening the court. PREPARATION OF DEFENCE. 20 Preparation of defence by accused person. 20.—
(1)An accused person whose trial by court-martial has been ordered shall be afforded proper opportunities of preparing his defence, and shall be allowed free communication with his witnesses and with any defending officer or legal adviser whom he may wish to consult. True copies of the charge sheet and summary or abstract of evidence shall be delivered to him (gratis) by an officer not less than 24 hours before the commencement of his trial.
(2)At the same time as the accused is supplied with the documents mentioned in paragraph
(1)of this Rule he shall be informed that upon his giving the names of any witnesses whom he desires to call in his defence, reasonable steps will be taken for procuring their attendance, and such steps will be taken accordingly.
(3)The officer who delivers to the accused the documents mentioned in paragraph
(1)of this Rule shall, if necessary, read the charge-sheet and the summary or abstract of evidence to the accused and explain to him the charges and also as to his rights under these Rules as to preparing his defence and being represented at the trial, and shall ask him whether or not he wishes to have an officer assigned by the convening authority to represent him at the trial. If the accused wishes the convening authority to assign an officer to represent him at his trial, the convening authority shall use his best endeavours to ensure that the accused shall be represented at his trial by a suitable officer.
(4)The officer who delivers to the accused the documents mentioned in paragraph
(1)of this Rule shall, immediately after such delivery, furnish to the convening authority a certificate, in the form prescribed in Appendix V to these Rules, of conformity with the provisions of the preceding paragraph of this Rule. 21 Joint trial 21. Any number of accused persons may be tried together for an offence charged to have been committed by them collectively but, in any such case, notice of intention to try the accused persons togethershould be given to each of the accused at the time of his being handed the documents mentioned in paragraph
(1)of Rule 20 of these Rules, and any accused person may claim, either by notice to the convening authority, or when arraigned before the court, by notice to the court, to be tried separately, on the ground that the evidence of one or more of the other accused persons proposed to be tried together with him will be material to his defence. The convening authority or court, if satisfied that the evidence will be material, and if the nature of the charge admits of it, shall allow the claim, and the person making the claim shall be tried separately. PROCEDURE AT TRIAL—CONSTITUTION OF COURT. 22 Assembly of court.
  1. Every court-martial shall assemble at the time and place and according to the directions provided in the order convening the same. 23 Procedure on assembly of court.
  2. On the court assembling there shall be read :— (a) the order convening the court ; (b) the names and ranks of the officers appointed to serve on the court, and the names and ranks of the officers in waiting ; (c) the name and rank, and in the case of a general court-martial, the legal qualifications of the judge-advocate ; (d) the name and rank of the prosecutor appointed by the convening authority ; (e) the certificate under paragraph (b) of subsection
(4)of section 192 of the act, where applicable. 24 Inability of officer named as member of court to attend. 24. If, on the first assembly of the court, any officer (other than the president) detailed as a member of the court, is unable for any reason to attend, the president shall appoint one of the officers in waiting to take the place of such first mentioned officer as a member of the court. If there are no officers in waiting the court should ordinarily adjourn for the purpose of fresh members being appointed, but if the court are of opinion that in the interests of justice and for the good of the service, it is inexpedient so to adjourn, they may, if not reduced in number below the legal minimum, proceed, recording their reasons for so doing. 25 Adjournment for insufficient number of officers. 25.—
(1)If, before the accused is arraigned, the full number of officers detailed is not available to serve by reason of non-eligibility, disqualification or challenge, and if there are not sufficient officers in waiting to take the place of those unable to serve, the court should ordinarily adjourn for the purpose of fresh members being appointed ; but if the court are of opinion that in the interests of justice and the good of the service, it is inexpedient to adjourn, they may, if not reduced in number below the legal minimum, proceed, recording their reasons for so doing.
(2)If the court adjourns for the purpose of appointment of a new president or of fresh members, whether under these rules or otherwise, the convening authority may, if he thinks fit, convene another court. 26 Court to satisfy itself as to its legal constitution and fitness of accused to stand trial. 26. It shall be the first duty of the court to satisfy themselves— (
  1. a)that so far as the court can ascertain the court has been convened in accordance with the Act and these Rules ; (
  2. b)that the Court consists of a number of officers not less than the legal minimum, and, save as mentioned in Rule 24 of these Rules, not less than the number detailed ; (
  3. c)that each of the officers so assembled is eligible and not disqualified for serving on that court-martial and is of the required rank ; (
  4. d)that the president is duly appointed ; (
  5. e)that the judge-advocate is duly appointed and is not disqualified for acting at that court-martial ; (
  6. f)that the accused is physically fit and able to stand his trial ; and the court, if not so satisfied, shall report their opinion to the convening authority and, where necessary, may adjourn and await his instructions. 27 Court to satisfy itself as to amenability of accused, validity of charge. 27.—
(1)The court shall then satisfy themselves in respect of each charge to be tried by them :— (
  1. a)that it appears to be laid against a person subject to military law and amenable to the jurisdiction of the court ; (
  2. b)that each charge discloses an offence under the Act which the court has jurisdiction to try ; (
  3. c)that each charge is framed in accordance with these Rules, and so explicitly as to be understood by the accused ; and the court if not so satisfied shall report their opinion to the convening authority, and, where necessary, may adjourn and await his instructions.
(2)Where there are two or more charge-sheets, the first charge-sheet shall be dealt with to a finding before the second charge-sheet is laid before the court and the procedure prescribed by paragraph
(1)of this Rule shall be carried out in respect of each charge-sheet when it is laid before the court. PROCEDURE AT TRIAL—CHALLENGE AND SWEARING. 28 Appearance of prosecutor, counsel, etc. 28. When the court have satisfied themselves as to the matters specified in Rules 26 and 27 of these Rules, the prosecutor and his counsel (if any), the counsel for the accused or the defending officer shall take their respective places and the court shall cause the accused to be brought before them. 29 Proceedings for challenge of members of court. 29.—
(1)The court, upon the accused being brought before them, shall ascertain that the court is constituted of officers to whom the accused makes no reasonable objection, and for this purpose the order convening the court shall be read in open court.
(2)The accused has no right to object to the prosecutor or judge-advocate.
(3)The accused shall state the names of all officers to whom he objects before any objection is disposed of.
(4)The accused may make a statement in support of his objection and the court may question him thereon.
(5)The accused may call any person to make a statement in support of his objection and the accused and the court may question him thereon.
(6)If more than one officer is objected to, the objection to each officer shall be disposed of separately, and the objection to the lowest in rank shall be disposed of first ; except that, if the president is objected to, the objection to him shall be disposed of before the objection to any other officer. On an objection to an officer, all the other officers present shall declare their opinions on the disposal of the objection, notwithstanding that objections have been made to any of those officers.
(7)When an objection to an officer is allowed, that officer shall forthwith retire and take no further part in the proceedings.
(8)When an officer objected to (other than the president) retires, and there are any officers in waiting, the vacancy shall be forthwith filled by one of the officers in waiting being directed to serve in lieu of the retiring officer. If there is no officer in waiting available, the court shall proceed as directed by Rule 25 of these Rules.
(9)The eligibility, absence of disqualification, and freedom from objection of an officer filling a vacancy, including that of president, shall be ascertained by the court, as in the case of other officers appointed to serve on the court. 30 Swearing of members. 30.—
(1)As soon as the court is constituted with the proper number of officers who are not objected to, or the objections to whom have been over-ruled, an oath shall be administered to and taken in the presence of the accused by each member of the court in the form and manner prescribed in Appendix VI of these Rules.
(2)The oath shall be administered by the judge-advocate to the president first, and afterwards to the other members of the court. 31 Swearing of judge-advocate and other persons. 31.—
(1)After the members of the court are all sworn an oath shall be taken in the presence of the accused in the form and manner prescribed in Appendix VI to these Rules by the judge-advocate. The oath shall be administered by the president or by some other member of the court.
(2)After the judge-advocate is sworn an oath shall be taken in the presence of the accused in the form and manner prescribed in Appendix VI to these Rules by an officer attending for the purposes of instruction, by a shorthand writer or note-taker and by an interpreter, or by such of them as are attendant before a court-martial. The oath shall be administered by the president or by some other member of the court or by the judge-advocate. 32 Substitution of solemn declaration for oath. 32.—
(1)Where, in accordance with the provisions of sections 199 and 200 of the Act, a person is permitted to make a solemn declaration instead of taking the oath in the prescribed form and manner, the declaration shall be in the form or forms prescribed in Appendix VI to these Rules.
(2)The declaration shall be made before some person authorised by these Rules to administer the oath. PROCEDURE AT TRIAL—PROSECUTION. 33 Arraignment of accused. 33.—
(1)After the members of the court and other persons mentioned in Rule 31 of these Rules are sworn, the accused shall be arraigned on the charges against him.
(2)The charges upon which the accused is arraigned shall be read to him, and he shall be required to plead separately to each charge. 34 Objection by accused to charge. 34. The accused, when required to plead to any charge, may object to the charge on the ground that it does not disclose an offence under the Act, or is not in accordance with these Rules. The court, after hearing any submission which may be made by the prosecutor, or by or on behalf of the accused, shall consider the objection in closed court and shall either disallow it and proceed with the trial, or allow it and adjourn to report to the convening authority or, if they are in doubt, they may adjourn to consult the convening authority. 35 Amendment of charge. 35.
(1)At any time during the trial, if it appears to the court that there is in the charge-sheet— (
  1. a)a mistake in the name or description of the accused, or (
  2. b)a mistake which is attributable to a clerical error or omission, the court may amend the charge-sheet so as to correct the mistake.
(2)If on the trial of any charge it appears to the court, at any time before the court is closed for consideration of their finding on the charge, that in the interests of justice any addition to, omission from or alteration in the charge is required, they may report their opinion to the convening authority and may adjourn, and the convening authority may either direct a new trial to be commenced or amend the charge and order the trial to proceed with the amended charge after due notice to the accused. 36 Special plea to the jurisdiction. 36.—
(1)The accused, before pleading to a charge, may offer a special plea to the general jurisdiction of the court, and, if he does so and the court consider that anything stated in the plea shows that the court have not jurisdiction, they shall receive any evidence offered in support, together with any evidence offered by the prosecutor in disproof or qualification thereof, and any address by the accused and reply by the prosecutor in reference thereto. The decision of the court on the special plea shall be announced in open court.
(2)If the court over-rule the special plea they shall proceed with the trial.
(3)If the court allow the special plea they shall record their decision and the reasons for it, and report it to the convening authority and adjourn. Such a decision shall not require any confirmation, and the convening authority shall either forthwith convene another court for the trial of the accused or order the accused to be released.
(4)If the court are in doubt as to the validity of the special plea, they may refer the matter to the convening authority and may adjourn for that purpose, or may record a special decision to proceed with the trial, notwithstanding their doubt as to the validity of the plea, and proceed with the trial. 37 General plea of " Guilty " or " Not Guilty ". 37.—
(1)If no special plea to the general jurisdiction of the court is offered, or if such plea, being offered, is over-ruled or is dealt with by a special decision under paragraph
(4)of Rule 36 of these Rules, the accused person's plea—" Guilty " or " Not Guilty "—shall be recorded on each charge. If he refuses to plead or does not plead intelligibly, a plea of " Not Guilty " shall be recorded on each charge.
(2)If an accused person pleads " Guilty " that plea shall be recorded as the finding of the court but, before it is recorded, the president, on behalf of the court, should ascertain that the accused understands the nature of the charge to which he has pleaded guilty and should inform him of the general effect of that plea and in particular of the meaning of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilty, and shall advise him to withdraw that plea if it appears from the summary or abstract of evidence that the accused ought to plead not guilty.
(3)Where an accused person pleads guilty to the first of two or more charges laid in the alternative, the prosecutor may, after paragraph
(2)of this Rule has been complied with by the court and before the accused is arraigned on the alternative charge or charges exercise his right to enter a nolle prosequi in respect of such alternative charge or charges, and a record to that effect shall be made upon the proceedings of the court. 38 Plea in bar. 38.—
(1)The accused, at the time of his general plea of " Guilty " or " Not Guilty " to a charge for an offence, may offer a plea in bar of trial on the ground that— (
  1. a)he has been previously convicted or acquitted of the offence by a competent civil court or by a court-martial, or has been dealt with summarily for the offence by his commanding officer or by an authorised officer or by an officer having power to deal summarily with the case, or a charge in respect of the offence has been dismissed ; or (
  2. b)the offence has been pardoned ; or (
  3. c)the prosecution of the offence is barred by virtue of the provisions of section 123 of the act ; or (
  4. d)in the case of a civil offence in respect of which proceedings must be commenced within a shorter period than three years, such shorter period has elapsed between the commission of such offence and the commencement of such proceedings.
(2)If he offers a plea in bar the court shall record it as well as his general plea, and if they consider that any fact or facts stated by him are sufficient to support the plea in bar they shall receive any evidence offered and hear any address made by the accused and the prosecutor in reference to the plea.
(3)If the court find that the plea in bar is proved they shall record their finding and notify it to the confirming authority, and shall either adjourn or, if there is any other charge against the accused, whether in the same or in a different charge-sheet, which is not affected by the plea in bar, may proceed to the trial of the accused on that charge.
(4)If the finding that a plea in bar is proved is not confirmed, the court may be re-assembled by the confirming authority and may proceed as if the plea had been found not proved.
(5)If the court find that a plea in bar is not proved they shall proceed with the trial, but such a finding shall be subject to confirmation like any other finding of that court.
(6)The finding of the Court on a plea in bar shall be pronounced in open court and shall be pronounced as being subject to confirmation. 39 Procedure after plea of " Guilty." 39.—
(1)Upon the record of the plea of " Guilty " if there is any other charge in the same charge-sheet to which the plea is " Not Guilty " the trial shall first proceed with respect to every such other charge and, after the findings on those charges, shall proceed with the charges on which a plea of " Guilty " has been entered but, if there are alternative charges, the court may either proceed with respect to all the charges as if the accused had not pleaded " Guilty " to any charge, or may, instead of trying him, record a finding of " Guilty " upon any one of the alternative charges to which he has pleaded " Guilty " and a finding of " Not Guilty " upon all the other charges alternative to the one on which they have recorded a finding of " Guilty."
(2)After the record of the plea of " Guilty " on a charge (if the trial does not proceed on any other charges) the court shall receive any statement which the accused desires to make in reference to the charge and the judge-advocate shall read the summary or abstract of evidence and attach it to the proceedings or, if there is no such summary or abstract, the court shall take and record sufficient evidence to enable them to determine the sentence and the confirming authority to know all the circumstances connected with the offence. This evidence shall be taken in like manner as is directed by these Rules in the case of a plea of " Not Guilty ".
(3)After evidence has been so taken or the summary or abstract of evidence has been read, as the case may be, the accused may make a statement in mitigation of punishment and may call witnesses as to his character.
(4)If, from the statement of the accused or from the summary or abstract of evidence or otherwise, it appears to the court that the accused did not understand the effect of his plea of " Guilty " the court shall alter the record and enter a plea of " Not Guilty " and proceed with the trial accordingly.
(5)If a plea of " Guilty " is recorded and the trial proceeds with respect to other charges in the same charge-sheet, the proceedings under paragraphs
(2)and
(3)of this Rule shall take place when the findings on the other charges in the same charge-sheet are recorded.
(6)When the accused at any court-martial states anything in mitigation of punishment which, in the opinion of the court, requires to be proved and would, if proved, affect the amount of punishment, the court may permit the accused to call witnesses to prove the same. 40 Withdrawal of plea of " Not Guilty ". 40. The accused may, if he thinks fit, at any time during the trial, withdraw his plea of " Not Guilty " and plead " Guilty " and in such case the court shall at once, subject to a compliance with paragraph
(2)of Rule 37 of these Rules, record a plea and finding of " Guilty " and shall, so far as is necessary, proceed in manner directed by Rule 39 of these Rules. 41 Plea of " Not Guilty " application for adjournment and case for prosecution. 41. After a plea of " Not Guilty " to any charge is recorded, the trial shall proceed as follows:— (
  1. a)the court shall ask the accused whether he wishes to apply for an adjournment on the ground that any of the provisions of the Act or of these Rules relating to procedure before trial have not been complied with, and that he has been prejudiced thereby, or on the ground that he has not had sufficient opportunity of preparing his defence, and shall record his answer ; (
  2. b)if the accused makes any such application the court shall hear any statement or evidence which be may desire to adduce in support thereof, and any statement of the prosecutor or evidence in answer thereto, and if it shall appear to the court that the accused has been prejudiced by any non-compliance with any such provision or that he has not had sufficient opportunity of preparing his defence, they may grant such adjournment as may to them appear in the circumstances proper ; (
  3. c)the prosecutor may, if he so desires, and shall if required by the court, make an opening address and should state therein the substance of the charge or charges against the accused and the nature and general effect of the evidence which he proposes to adduce in support of such charge or charges, without entering into any unnecessary detail ; (
  4. d)the evidence for the prosecution shall then be taken ; (
  5. e)if it should be necessary for the prosecutor to give evidence for the prosecution, he should give it after the delivery of his address (if any) and he must be sworn and give his evidence in detail. He may be cross-examined by or on behalf of the accused, and afterwards may give any evidence which might be given by a witness on re-examination. 42 Submission to case for prosecution 42.—
(1)The accused, his counsel or defending officer may, at the close of the case for the prosecution, submit that the prosecution has not established a prima facie case against the accused and that he should not, therefore, be called upon for his defence. The submission may be in respect of any one or more charges in a charge-sheet. The prosecutor shall have a right to answer the same and the accused, his counsel or defending officer shall have the right of reply. The judge-advocate shall, unless he and the court think it unnecessary advise the court upon the submission. The court shall consider the submission in closed court.
(2)If the court is satisfied that the submission is well founded they shall acquit the accused upon the charge or charges as to which they are so satisfied and proceed with the trial of the charge or charges upon which they are not so satisfied. PROCEDURE AT TRIAL—DEFENCE. 43 At close of prosecution accused to be informed of his rights. 43.—
(1)At the close of the evidence for the prosecution the judge-advocate shall inform the accused as follows :— (
  1. a)that he may, if he wishes, give evidence on oath, but that if he does so he will be liable to be cross-examined ; (
  2. b)that he may, if he wishes, make a statement not on oath, and that if he adopts this course he will not be liable to be cross-examined ; (
  3. c)that he may call witnesses both as to the facts of the case and as to his character.
(2)The accused shall then be asked if he wishes to give evidence on oath or to make a statement not on oath himself, and whether he intends to call any other witnesses as to the facts of the case or as to his character. In the event of the accused expressing his desire to call witnesses as to his character, the judge-advocate shall warn him that the adoption of such a course will entitle the prosecution to give evidence of his record in the Defence Forces and of any previous convictions against him. 44 Procedure where no evidence as to facts given for defence. 44. If the accused states that he does not wish to give evidence as a witness himself and does not intend to call any witnesses to the facts of the case the procedure shall be as follows :— (
  1. a)if he is not represented by counsel or by a defending officer— (
  2. i)the accused may, if he wishes, call witnesses as to his character ; (
  3. ii)the prosecutor may make a final address for the purposes of summing up the evidence for the prosecution ; (iii) the accused may then make an address in his defence giving his account of the subject of the charge against him, and such address may be made orally or in writing; (
  4. b)if he is represented by counsel or by a defending officer— (
  5. i)the accused may make a statement giving his account of the subject of the charge against him, and such statement may be made orally or in writing but the accused must not be sworn nor shall any question be put to him by the court or by any other person in respect of such statement ; (
  6. ii)the accused may, if he wishes, call witnesses as to his character ; (
  7. c)if the accused makes any such statement— (
  8. i)counsel or the defending officer (as the case may
  9. be)may then make a closing address ; (
  10. ii)the prosecutor may reply ; (
  11. d)if the accused does not make any such statement— (
  12. i)the prosecutor may make a final address for the purpose of summing up the evidence for the prosecution ; (
  13. ii)counsel or the defending officer (as the case may
  14. be)may then make a closing address. 45 Procedure where evidence as to facts given for defence by accused only. 45. If the accused states that he wishes to give evidence as a witness himself but does not intend to call any other witness to the facts of the case, the procedure, whether or not he is represented by counsel or by a defending officer, shall be as follows :— (
  15. a)the accused shall give evidence immediately after the close of the evidence for the prosecution ; (
  16. b)the accused may, if he wishes, call witnesses as to his character ; (
  17. c)the prosecutor may then make a final address for the purpose of summing up the evidence for the prosecution and commenting on the evidence of the accused ; (
  18. d)the accused or counsel or the defending officer (as the case may
  19. be)may then make a closing address. 46 Procedure where evidence as to facts given for defence by accused and other witnesses. 46. If the accused states that he wishes to give evidence himself and to call witnesses to the facts of the case, the procedure, whether or not he is represented by counsel or by a defending officer, shall be as follows :— (
  20. a)the accused or, if he is represented by counsel or by a defending officer, then such counsel or defending officer, may make an opening address for the defence ; (
  21. b)the accused shall give evidence as a witness and call his other witnesses including, if he so desires, witnesses as to character ; (
  22. c)after the evidence of all the witnesses has been taken, the accused or counsel or the defending officer (as the case may
  23. be)may make a closing address ; (
  24. d)the prosecutor may reply. 47 Procedure where evidence as to facts given for defence by witnesses (other than accused) but not by the accused. 47. If the accused states that he does not intend to give evidence himself but intends to call witnesses to the facts of the case, the procedure shall be as follows :— (
  25. a)if he is not represented by counsel or by a defending officer— (
  26. i)the accused may make an opening address giving his account of the subject of the charge against him, and such address may be made orally or in writing ; (
  27. ii)the accused shall then call his witnesses including, if he so desires, any witnesses as to character ; (iii) after the evidence of all the witnesses has been taken, the accused may make a closing address ; (
  28. iv)the prosecutor may reply. (
  29. b)if he is represented by counsel or by a defending officer— (
  30. i)the accused may make a statement giving his account of the subject of the charge against him, and such statement may be made orally or in writing but the accused must not be sworn nor shall any questions be put to him by the court or by any other person in respect of such statement ; (
  31. ii)if the accused makes no such statement, counsel or the defending officer (as the case may
  32. be)may make an opening address ; (iii) the accused shall then call his witnesses including, if he so desires, any witnesses as to character ; (
  33. iv)after the evidence of all the witnesses has been taken counsel or the defending officer (as the case may
  34. be)may make a closing address ; (
  35. v)the prosecutor may reply. PROCEDURE AT TRIAL—SUMMING UP. 48 Summing-up by judge-advocate. 48.—
(1)The judge-advocate shall, unless he and the court think a summing-up unnecessary, sum up in open court the evidence and advise the court upon the law relating to the case.
(2)After the summing-up of the judge-advocate, the prosecutor, accused, his counsel or defending officer may object forthwith to the summing-up on any legal ground and such objection shall be noted in the proceedings before finding, but no other address shall be allowed. PROCEDURE AT TRIAL—FINDING AND SENTENCE. 49 Consideration of finding. 49.—
(1)The court shall deliberate on their finding in closed court
(2)The opinion of each member of the court as to the finding shall be given orally on each charge separately. 50 Form and record of finding 50.—
(1)The finding on every charge upon which the accused is arraigned shall, except as mentioned in these Rules, be recorded simply as a finding of " Guilty " or of " Not Guilty ", or of " Not guilty and honourably acquit him of the same ".
(2)Where the court are of opinion as regards any charge that the facts proved do not disclose the offence charged or any offence of which he might under the Act legally be found guilty on the charge as laid, the court shall acquit the accused of that charge.
(3)If the court doubt as regards any charge whether the facts proved show the accused to be guilty or not of the offence charged or any offence of which he might under the Act legally be found guilty on the charge as laid, they may, before recording a finding on that charge, refer to a confirming authority for an opinion, setting out the facts which they find to be proved and may, if necessary, adjourn for that purpose. Upon receiving the opinion of that confirming authority the court shall reassemble in closed court to record their findings but shall not receive any further evidence.
(4)Where the court are of opinion as regards any charge that the facts which they find to be proved in evidence differ materially from the facts alleged in the statement of particulars in the charge, but are nevertheless sufficient to prove the offence stated in charge, and that the difference is not so material as to have prejudiced the accused in his defence, they may, instead of a finding of " Not Guilty " record a special finding.
(5)The special finding may find the accused guilty on a charge, subject to the statement of exceptions or variations specified therein.
(6)Where there are alternative charges and the facts proved appear to the court not to constitute the offence mentioned in any of these alternative charges, the court shall record a finding of " Not Guilty " on each such charge.
(7)If the court think that the facts proved constitute one of the offences stated in two or more of the alternative charges, but doubt which of those offences the facts do at law constitute, they may, before recording a finding on those charges, refer to a confirming authority for an opinion, setting out the facts which they find to be proved and stating that they doubt whether those facts constitute in law the offence stated in such one or another of the charges and may, if necessary, adjourn for that purpose. Upon receiving the opinion of the confirming authority the court shall reassemble in closed court to record their finding but shall not receive any further evidence.
(8)In any case where a court is empowered by section 205 of the act to find the accused guilty of an offence other than that charged, or guilty of committing an offence in circumstances involving a less degree of punishment, or where they could after hearing the evidence have made a special finding of guilty subject to exceptions or variations in accordance with paragraphs
(4)and
(5)of this Rule, they may, if they are satisfied of the justice of such course and if the concurrence of the convening authority is signified by the prosecutor, accept and record a plea of guilty of such other offence, or of the offence as having been committed in circumstances involving such less degree of punishment, or of the offence charged subject to such exceptions or variations. Provided always that the failure to obtain such concurrence of the convening authority as aforesaid shall not invalidate the proceedings when confirmed notwithstanding such failure. 51 Procedure on finding. 51.—
(1)The finding of the court shall be pronounced at once in open court.
(2)If it is a finding of acquittal on all the charges with which the accused is charged (whether in pursuance of Rule 42 of these Rules or otherwise), the president shall date and sign the finding, and the accused shall be released, and the proceedings shall then, upon being signed by the judge-advocate (whose signature shall authenticate the whole of the proceedings) be transmitted as soon as possible in the manner provided by Rule 99 of these Rules.
(3)A finding of " Guilty " shall be pronounced as being subject to confirmation. 52 Procedure on conviction. 52.—
(1)If the finding on any charge is " Guilty " then, for the guidance of the court in determining their sentence and of the confirming authority in considering the sentence, the court, before deliberating on their sentence, shall take evidence (if available) of and record the character, age, service, rank and any recognised act of gallantry or distinguished conduct of the accused, and whether he is married and the number (if any) in his family, and the length of time he has been in arrest or in confinement on any previous sentence, and the period (if any) he has been in civil or service custody awaiting trial, and any additional flying or deferred pay, any military decoration or military reward of which he may be in possession or to which he is entitled and which the court can sentence him to forfeit or which is liable to forfeiture as a result of the sentence of the court.
(2)Evidence on the above matters may be given by a witness verifying a statement which contains a summary of the entries in the regimental books respecting the accused and identifying the accused as the person referred to in that summary.
(3)Evidence on the part of the prosecutor upon the above matters should not be given by a member of the court.
(4)The accused may cross-examine any such witness and may call witnesses to rebut any such evidence and may himself give evidence ; and if the accused so requests, the regimental books or a duly certified copy of the material entries therein shall be produced ; and if the accused alleges that the summary is in any respect not in accordance with the regimental books or such certified copy as the case may be, the court shall compare the summary with those books or copy and, if they find it is not in accordance therewith, shall cause the summary to be corrected accordingly. The accused may then call witnesses as to character. When all the evidence on the above matters has been given the accused may address the court thereon and in mitigation of punishment. 53 Forfeiture of seniority of rank and service for purpose of promotion. 53.—
(1)Where a court desires to sentence an Officer to forfeit seniority of rank, the form of punishment may be that he takes rank and precedence either in the Defence Forces or in the portion thereof in which he is serving or in both, as if either— (
  1. a)his appointment in or promotion to the rank held by him and specified in the sentence bore the date of some day specified in the sentence and later than the actual date of his said appointment in or promotion to such rank or (
  2. b)his name appeared a specified number of places lower in the rank held by him in the Defence Forces Seniority List and a corresponding number of places lower in the Seniority List of his Corps.
(2)Where a court desires to sentence an officer whose promotion depends on the length of his service, the form of punishment may be that he shall forfeit a specified number of months' service for the purpose of promotion.
(3)Where a court desires to sentence a non-commissioned officer to forfeit seniority of rank, they shall sentence him to take rank and precedence as if his promotion to the rank held by him and specified in the sentence bore the date of some day specified in the sentence and later than the actual date of his said promotion. 54 Recommendation to mercy. 54.—
(1)A Court may make a recommendation to mercy.
(2)If a court make a recommendation to mercy they shall give their reasons for their recommendation.
(3)The number of opinions by which a recommendation mentioned in this Rule, or any question relative thereto, is adopted or rejected, may be entered in the proceedings. 55 Pronouncement of sentence and signing and transmission of proceedings. 55.—
(1)The sentence, together with any recommendation to mercy and the reason for such recommendation, shall be pronounced at once in open court.
(2)The sentence shall be pronounced as being subject to confirmation.
(3)Upon the court awarding the sentence, the president shall date and sign the sentence and the proceedings upon being signed by the judge-advocate (whose signature shall authenticate the whole of the proceedings) shall, as soon as possible, be transmitted for confirmation in the manner provided by Rule 99 of these Rules. CONFIRMATION AND REVISION. 56 Procedure on revision. 56.—
(1)Where the finding or sentence is sent back for revision in accordance with section 218 of the act, the court shall re-assemble in closed court and shall not receive any additional evidence.
(2)Where the finding is sent back for revision and the court do not adhere to their former finding, they shall revoke the finding and sentence and record a new finding and, if the new finding involves a sentence, pass sentence afresh.
(3)Where the sentence alone is sent back for revision the court shall not revise the finding.
(4)After revision the president shall date and sign the decision of the court and the proceedings upon being signed by the judge-advocate (whose signature shall authenticate the whole of the proceedings) shall, as soon as possible, be transmitted for confirmation in the manner provided by Rule 99 of these Rules. 57 Promulgation of confirmation or non-confirmation of finding and sentence, and direction for re-trial. 57.—
(1)The confirmation or non-confirmation of finding and sentence and any directions given by the confirming authority as to re-trial shall be promulgated to the accused in writing in the form prescribed in Appendix VII to these Rules, and in any other manner that the confirming authority may direct. Where the accused has died or become insane or has absented himself, publication in the routine orders of his unit or of the Command in which his unit is then serving shall be sufficient promulgation.
(2)Confirmation shall not be complete until promulgation thereof has been effected in accordance with the provisions of this Rule. 58 Mitigation, remission and substitution. 58.—
(1)Where a sentence has been awarded by a court in respect of offences in several charges, and the confirming authority confirms the finding on some but not on all those charges, that authority shall take into consideration the fact of such non-confirmation and shall, if it seems just, mitigate or remit the punishment awarded or substitute for the sentence a sentence of any less punishment which might have been awarded by the Court-martial to the accused, according as seems just having regard to the offences in the charges, the findings on which are confirmed.
(2)Where a sentence has been awarded by a court in respect of offences in several charges and has been confirmed, and any oneof these charges or the finding thereon is found to be invalid, a superior authority, as defined in section 221 of the act, shall take into consideration the fact of such invalidity and shall, if it seems just, mitigate or remit the punishment awarded or substitute for the sentence a sentence of any less punishment, according as seems just, having regard to the offences in the charges which, with the findings thereon, are not invalid, and the punishment so modified shall be as valid as if it had been originally awarded only in respect of those offences. 59 Confirmation notwithstanding technical or other deviation. 59. Whenever it appears that a court had jurisdiction to try a person and make a finding and that there is legal evidence or a plea of guilty to justify such finding, such finding and any sentence which the court had jurisdiction to pass thereon may be confirmed, and if so confirmed shall be valid, notwithstanding any deviation from these Rules or notwithstanding that the charge-sheet has not been signed by the commanding officer or the convening authority, provided that the charges have, in fact, before trial been approved by the commanding officer or the convening authority, or notwithstanding any defect or objection, technical or otherwise, unless it appears that any injustice has been done to the accused ; but nothing in this Rule shall relieve an officer from responsibility for any wilful or negligent disregard of any of these Rules. 60 Petition against finding and sentence (other than sentence of death). 60.—
(1)When a person has been sentenced by a court to suffer any punishment (other than death) a petition may, within fourteen days next after the date of the promulgation of the confirmation of the findings and sentence of such court, be presented by or on behalf of such person— (
  1. a)in case such petition is against the findings or against both the findings and sentence, to the Minister, or (
  2. b)in case such petition is against the sentence only, to any person (other than the Minister) who is a superior authority for the purposes of either section 221 or section 223 of the act, provided that a superior authority who has confirmed such findings and sentence may not act upon any such petition.
(2)The period of fourteen days mentioned in paragraph
(1)hereof may be extended upon the application in writing of the intended petitioner by any person who is a superior authority for the purposes of either section 221 or section 223 of the act to a period of thirty days, but any such application must be made within the said period of fourteen days.
(3)A superior authority to whom a petition has been presented shall, as soon as may be, endorse thereon his decision in respect thereof and shall cause such decision to be communicated to the petitioner.
(4)The petition shall be in the form prescribed in Appendix VIII to these Rules, and shall be signed by the petitioner. Notwithstandinganything in the foregoing, time for the purpose of this Rule shall begin to run from the date on which promulgation has been effected in accordance with the provisions of Rule 57 of these Rules. 61 Petition against sentence of death. 61. A petition against sentence by or on behalf of a person who has been sentenced by a court to suffer death shall be presented to the Government, and the provisions of Rule 60 of these Rules shall, in so far as they are applicable, apply to the presentation of any such petition. 62 Provisions as to finding of insanity and custody of insane person. 62.—
(1)Where a court find either that the accused is unfit, by reason of insanity, to take his trial, or that he committed the offence with which he is charged but was insane at the time of the commission thereof, the president shall date and sign the finding, and the proceedings, upon being signed by the judge-advocate (whose signature shall authenticate the whole of the proceedings) shall be at once transmitted for confirmation.
(2)If the finding is not confirmed the accused may be tried by the same or another court for the offence with which he was originally charged.
(3)Where the finding is confirmed then, until the directions of the Minister as to the disposal of the accused are known or, in the case of an accused unfit to take his trial, until any earlier time at which the accused is fit to take his trial, the accused shall be confined in such manner as may, in the opinion of the convening authority, be best calculated to keep him securely without unnecessary harshness, as he is not to be considered as a criminal but as a person labouring under a disease. 63 Effective date of certain sentences. 63. Each of the following sentences :— (
  1. a)dismissal with ignominy from the Defence Forces ; (
  2. b)dismissal from the Defence Forces ; (
  3. c)discharge with ignominy from the Defence Forces ; (
  4. d)discharge from the Defence Forces ; (
  5. e)reduction to a lower non-commissioned army rank or to a lower non-commissioned naval rank ; shall take effect on and from such date as may be fixed by the Adjutant-General who, in fixing such date, shall act without delay and shall have due regard to the provisions of Rule 60 of these Rules. GENERAL PROVISIONS AS TO PROCEEDINGS OF COURT. 64 Seating of members. 64. The members of a court-martial shall take their seats according to their rank. 65 Responsibility of president and judge-advocate. 65.—
(1)The president and judge-advocate are responsible for the trial being conducted in proper order, and in accordance with the Act and these Rules, and shall take care that everything is conducted in a manner befitting a court of justice.
(2)It is the duty of the president and the judge-advocate to see that justice is administered and that the accused has a fair trial and that he does not suffer any disadvantage in consequence of his position as a person under trial or of his ignorance or of his incapacity to examine or cross-examine witnesses or to make his own evidence clear or intelligible or otherwise. 66 Power of court over address of prosecutor and accused. 66.—
(1)It is the duty of the prosecutor to assist the court in the administration of justice, to behave impartially, to bring the whole of the transaction before the court and not to take any unfair advantage of, or suppress any evidence in favour of the accused.
(2)The prosecutor may not refer to any matter not relevant to the charge or charges then before the court, and it is the duty of the court to stop him from so doing and also to restrain any undue violence of language or want of fairness or moderation on the part of the prosecutor and to prevent the prosecutor from commenting at any time on the failure of the accused or his wife to give evidence.
(3)The court should allow great latitude to the accused in making his defence ; he must abstain from any remarks contemptuous or disrespectful towards the court, and from coarse and insulting language towards others, but he may, for the purpose of his defence impeach the evidence and the motives of the witnesses and prosecutor, and charge other persons with blame and even criminality subject, if he does so, to any liability to further proceedings to which he would otherwise be subject. The court may caution the accused as to the irrelevance of his defence, but should not, except in special cases, stop his defence solely on the ground of irrelevance. 67 Procedure on trial of accused persons together. 67. Where two or more accused persons are tried together and any evidence other than his own is tendered by any one of them, the evidence and addresses on the part of all the accused persons shall be taken before the prosecution replies, and the prosecutor shall make one address only in reply as regards all the accused persons. 68 Separate charge-sheets. 68.—
(1)When the convening authority has settled the charges he may direct any charges against an accused to be inserted in different charge-sheets and where he so directs, the accused shall be arraigned and, until after the finding, tried upon each charge-sheet separately, and accordingly the procedure in Rules 33 to 51, of these Rules shall, until after the finding, be followed in respect of each charge-sheet as if it contained the whole of the charges against the accused.
(2)The trials upon the several charge-sheets shall be in such order as the convening authority may direct.
(3)When the court have tried the accused upon all the charge-sheets they shall, in the case of the finding being " Not Guilty " on all the charges, proceed as directed by section 204 of the act and, in the case of the finding on any one or more of the charges being " Guilty ", proceed as directed by Rules 39 and 52 to 55 of these Rules in like manner in each case as if all the charges in the different charge-sheets had been contained in one charge-sheet and the sentence passed shall be of the same effect as if all the charges had been contained in one charge-sheet.
(4)The convening authority may direct that, in the event of the conviction of an accused upon a charge in any charge-sheet, he need not be tried upon the subsequent charge-sheets and the court may, in such event, without trying the accused upon any of the subsequent charge-sheets, proceed as directed by paragraph
(3)of this Rule. The prosecutor shall notify the accused that this course is being taken pursuant to a direction of the convening authority.
(5)Where a charge-sheet contains more than one charge, the accused may, before pleading, claim to be tried separately in respect of any charge or charges in that charge-sheet on the ground that he will be embarrassed in his defence if he is not so tried separately ; and in such a case the court, unless they think his claim unreasonable, shall arraign and try the accused in like manner as if the convening authority had inserted the said charge or charges in different charge-sheets.
(6)If the accused pleads " Guilty " to a charge in a charge-sheet, and the trial does not proceed (as mentioned in paragraph
(1)of Rule 39 of these Rules) with respect to the other charges in that charge sheet, the court shall, subject to the directions of the convening authority, proceed to try the accused on the charges in the next charge-sheet before they proceed as directed by paragraphs
(2)and
(3)of the said Rule. 69 Sitting in open court. 69. Subject to the provisions of the Act all the proceedings, including the view of any place or thing, shall be in open court and in the presence and hearing of the accused. 70 Time for trial. 70.—
(1)A court may sit at such times and for such period between the hours of six in the morning and six in the afternoon, as may be directed by the convening authority ; and so far as no such direction extends, as the court from time to time may determine.
(2)If the court consider it necessary to continue a trial after the hour of six in the afternoon, they may do so but, if they do so, should record in the proceedings their reason for so doing.
(3)In cases requiring an immediate example or when the convening authority or the general or other officer commanding any body of troops certifies under his hand that it is expedient for the public service, trials may be held at any hour.
(4)If a court or the convening authority or other proper military authority think that military exigencies or the interests of discipline require the court to sit on Sunday, Christmas Day, St. Patrick's Day or Good Friday the court may sit accordingly but, otherwise, the court should not sit on any of those days. 71 Continuity of trial and adjournment of court. 71.—
(1)When a court is once assembled and the accused has been arraigned, the court should (but subject to the provisions of the Act and of these Rules as to adjournment) continue the trial from day to day and sit for a reasonable period on every day, unless it appears to the court that an adjournment is necessary for the ends of justice or that such continuance is impracticable.
(2)A court in the absence of either the president or the judge-advocate shall not proceed and, if necessary, shall adjourn.
(3)The senior officer on the spot may also, for military exigencies, adjourn or prolong any adjournment of the court.
(4)Any adjournment may be made from place to place as well as from time to time. If the time to which the adjournment is made is not specified, the adjournment shall be until further orders from the convening authority ; if the place to which the adjournment is made is not specified, the adjournment shall be to the same place or to such place as may be specified in further orders from the convening authority. 72 Suspension of trial.
  1. Where, in consequence of anything arising while the court are sitting, the court are unable for the reasons specified in section 193 of the act, or otherwise, to continue the trial, the president or, in his absence, the senior member present shall immediately report the facts to the convening authority. 73 Proceedings on death or illness of accused.
  2. In the case of the death of the accused or of such illness of the accused as renders it impossible to continue the trial, the court shall ascertain the fact of the death or illness by evidence and record the same and adjourn. The proceedings shall be signed and dated by the president and upon being signed by the judge-advocate (whose signature shall authenticate the whole of the proceedings) shall be transmitted by him to the convening authority. 74 Presence throughout of all members of court. 74.—
(1)A member of the court who has been absent while any part of the evidence on the trial of an accused is taken, can take no further part in the trial by that court of that accused, but the court shall not be affected, except as provided by section 193 of the act.
(2)An officer cannot be added to a court after the accused has been arraigned. 75 Taking opinions of members of court. 75.—
(1)Every member of a court must give his opinion orally on every question which the court has to decide, and must give his opinion as to a sentence, notwithstanding that he has given his opinion in favour of acquittal.
(2)The opinions of the members of the court shall be taken in succession, beginning with the junior in rank. 76 Procedure on incidental question. 76. If any objection on any matter of law, evidence or procedure is raised by the prosecutor or by or on behalf of the accused during the trial, the prosecutor or the accused or counsel or the defending officer (as the case may be) shall have a right to answer the same and the person raising the objection shall have a right of reply. 77 Swearing of court to try several persons. 77.—
(1)A court may be sworn at one time to try any number of accused persons then present before it, whether those persons are to be tried collectively or separately, and each accused person shall have a right to object to the members of the court and shall be asked separately whether he objects to any member.
(2)In the case of several accused persons to be tried separately, the court, upon one of those persons objecting to a member, may, according as they think fit, proceed to determine that objection or postpone the case of that person and swear the members of the court for the trial of the others alone.
(3)In the case of several accused persons to be tried separately, the court, when sworn, shall proceed with one case, postponing the other cases and taking them afterwards in succession.
(4)Where several accused persons are tried separately by the same court upon charges arising out of the same transaction, the court may, if they consider it to be desirable in the interests of justice, postpone consideration of any sentence to be awarded to any one or more of such accused persons until the trials of all such accused persons have been completed. 78 Swearing of interpreter and shorthand writer. 78.—
(1)At any time during the trial an impartial person may, if the court think it necessary, and shall, if either the prosecutor or the accused requests it on any reasonable ground, be sworn to act as an interpreter.
(2)An impartial person may, at any time of the trial, if the court think it desirable, be sworn to act as a shorthand writer or note-taker.
(3)Before a person is sworn as an interpreter or shorthand writer or note-taker, the accused should be informed of the person who is proposed to be sworn, and may object to the person as not being impartial, and the court, if they think that the objection is reasonable, shall not swear that person as an interpreter or shorthand writer or note-taker.
(4)Any oath required by this Rule to be taken shall be administered, by the judge-advocate or by the president or any other member of the court and shall be taken in the presence of the accused. GENERAL PROVISIONS AS TO WITNESSES AND EVIDENCE. 79 Evidence to be relevant and according to rules in civil courts.
  1. The rules of evidence followed in civil courts save as provided by the Act shall be followed by courts-martial, and objections to any question to a witness or to admission of any evidence may be made accordingly, and a person shall not be required to answer any question or produce any document which he could not be required to answer or produce in a like proceeding before a civil court. 80 Judicial notice.
  2. A court-martial may take judicial notice of all matters of which judicial notice is taken by the civil courts and may take judicial notice of all matters within their general service knowledge. 81 Calling of all prosecutor's witnesses.
  3. The prosecutor is not bound to call all the witnesses whose evidence is in the summary or abstract of evidence given to the accused, but he should ordinarily call such of them as the accused desires to be called in order that the accused may if he thinks fit, cross-examine them, and the prosecutor should for this reason, so far as seems to the court practicable, secure the attendance of all such witnesses. 82 Calling of witness whose evidence is not contained in the summary or abstract.
  4. If the prosecutor intends to call a witness whose evidence is not contained in any summary or abstract of evidence given to the accused, notice in writing of signed by the prosecutor, shall be given to the accused a reasonable time before the witness is called. Such notice shall indicate the nature of the evidence which such witness will give and if his evidence has been reduced to writing a copy of such evidence shall be given to the accused ; and if the witness is called without such notice or copy of evidence being given, the court shall, if the accused so desires it, either adjourn after taking the evidence of the witness or allow the cross-examination of the witness to be postponed, and the court shall inform the accused of his right to demand such an adjournment or postponement. The notice shall be in the form prescribed in Appendix IX to these Rules. 83 List of Witnesses of accused.
  5. The accused shall not be required to give to the prosecutor a list of witnesses whom he intends to call, but it shall rest with the accused alone to secure the attendance of any witness whose evidence is not contained in the summary or abstract of evidence or for whose attendance the accused has not requested steps to be taken as provided for by paragraph
(2)of Rule 20 of these Rules. 84 Procuring attendance of witnesses. 84.—
(1)The commanding officer of the accused, the convening authority or, after the assembly of the court, the president or judge-advocate shall take the proper steps to procure the attendance of the witnesses whom the prosecutor or accused desires to call and whoseattendance can reasonably be procured, but the person requiring the attendance of a witness may be required to undertake to defray the cost (if any) of his attendance.
(2)Any such witness who is not subject to military law may be summoned to attend by order under the hand of the convening authority or of a staff officer on his behalf, or of the commanding officer of the accused or, after the assembly of the court, of the president or judge-advocate. The summons shall be in the form prescribed in Appendix X to these Rules and shall be served on the witness either personally or by leaving it with some person at his last known or most usual place of abode.
(3)Any such witness who is subject to military law shall be ordered to attend by the proper military authority. 85 Adjournment of court for non-attendance of witnesses.
  1. If such proper steps as mentioned in the preceding Rule have not been taken as to any witness or if any witness whose attendance could not be reasonably procured before the assembly of the court is essential to the prosecution or defence, the court shall adjourn and report the circumstances to the convening authority. 86 Withdrawal of witnesses from court.
  2. During the trial a witness, other than the prosecutor or accused, shall not, except by specific leave of the president, be in the court while not under examination and if, while he is under examination, a discussion arises as to the allowance of a question or the sufficiency of his answers or otherwise as to his evidence, he may be directed to withdraw. 87 Swearing of witnesses. 87.—
(1)An oath shall be administered by the president, the judge-advocate or by any other member of the court and taken in the presence of the accused by every witness in the form and manner prescribed in Appendix VI to these Rules.
(2)Where, in accordance with the provisions of section 200 of the act, a witness is permitted to make a solemn declaration instead of taking the oath in the prescribed form and manner, the declaration shall be made in the form prescribed in Appendix VI to these Rules. 88 Examination and cross-examination. 88.—
(1)A witness may be examined by the person calling him and may be cross-examined by the opposite party to the proceedings and, on the conclusion of the cross-examination, may be re-examined by the person calling him on the matters raised in cross-examination.
(2)The court may, if they think fit, allow the cross-examination of a witness to be postponed. 89 Mode of questioning witnesses and recording of evidence. 89.—
(1)Every question shall be put to a witness orally by the prosecutor, by or on behalf of the accused or by the judge-advocate, without the intervention of the court, and the witness shall forthwith reply, unless an objection is made by the court, judge-advocate, prosecutor or by or on behalf of the accused, in which case he shall not reply until the objection is disposed of.
(2)The evidence of a witness as taken down should be read to him after he has given all his evidence and before he leaves the court, and such evidence may be explained or corrected by the witness at his instance. If he makes any explanation or correction, the prosecutor and accused may respectively examine or cross-examine him regarding the same.
(3)In the case of a court at which a shorthand writer or note-taker is employed, it shall not be necessary to comply with paragraph
(2)of this Rule if, in the opinion of the court and the judge-advocate (such opinion to be recorded in the proceedings), it is inexpedient to do so, but nevertheless, if any witness so desires the said paragraph
(2)shall be complied with. 90 Questions to witness by members of court or judge-advocate. 90.—
(1)The president or the judge-advocate may address any question to a witness and any other member of the court may, with the permission of the court, address, through the president or judge-advocate, any question to a witness.
(2)Upon any such question being answered, the president or judge-advocate shall also put to the witness any question relative to that answer which he may be requested to put by the prosecutor or the accused and which the court deem reasonable. 91 Recalling witnesses and calling of witnesses in reply. 91.—
(1)At the request of the prosecutor or the accused a witness may, by leave of the court, be recalled at any time before the finding for the purpose of having any question put to him through the president or judge-advocate.
(2)The court may, if they consider it expedient in the interests of justice so to do, allow a witness to be called or recalled by the prosecutor before the finding for the purpose of rebutting any material statement made by a witness for the defence or for the purpose to giving evidence on any new matter which the prosecutor could nor reasonably have foreseen.
(3)The court or judge-advocate may call or recall any witness at any time before the finding if they consider it necessary for the ends of justice. The right to call shall extend to witnesses not called for the prosecution or defence or whose evidence is not contained in the summary or abstract of evidence. The prosecutor and accused may respectively cross-examine such witness. COUNSEL AND DEFENDING OFFICER. 92 Counsel—Rights of. 92.—
(1)Counsel who appears before a court on behalf of the prosecutor or accused shall have the same right as the prosecutor or accused for whom he appears to call and orally examine, cross-examine, and re-examine witnesses, to make an objection or statement, to address the court, to offer any plea and to inspect the proceedings and shall have the right otherwise to act in the course of the trial in the place of the person on whose behalf he appears and he shall comply with these Rules as if he were that person ; and in such a case that person shall not have the right himself to do any of the abovematters except as regards the statement allowed by paragraph
(1)of Rule 43 of these Rules or except as far as the court may permit him so to do.
(2)When counsel appears on behalf of the prosecutor, the prosecutor, if called as a witness, may be examined, cross-examined and re-examined as any other witness. 93 Counsel for prosecutor. 93.—
(1)Counsel appearing on behalf of the prosecutor should always make an opening address and should state therein the substance of the charge against the accused and the nature and general effect of the evidence which he proposes to adduce in support of it without entering into unnecessary detail.
(2)Counsel appearing on behalf of the prosecutor shall have the same duty as the prosecutor and is subject to be stopped and restrained by the court in the manner provided by paragraph
(2)of Rule 66 of these Rules. 94 Counsel for accused. 94.—
(1)Counsel appearing on behalf of the accused has the like right and is under the like obligations as are specified in paragraph
(3)of Rule 66 of these Rules in the case of the accused.
(2)If the court ask counsel for the accused a question as to any witness or matter, be may decline to answer, but be must not give to the court any answer or information which is misleading. 95 General Rules as to counsel. 95.—
(1)Counsel, whether appearing on behalf of the prosecutor or of the accused, shall conform strictly to these Rules and to the rules of civil courts relating to the examination, cross-examination and re-examination of witnesses, and relating to the duties of counsel.
(2)If counsel puts to a witness, other than the accused, a question as to a matter which is not relevant except so far as it affects the credit of the witness by injuring his character and the witness objects to answering the question, the court shall consider whether the witness should be compelled to answer it ; and (
  1. a)if they are of opinion that the imputation conveyed by the question would, if true, seriously affect their opinion as to the credibility of the witness, the court should require the witness to answer the question ; but (
  2. b)if they are of opinion that the imputation, it true, would not affect or would not seriously affect the opinion of the court as to the credibility of the witness, the court should disallow the question. If the question is disallowed, counsel on both sides shall refrain from further examining or commenting on the matter.
(3)Counsel shall not state as a fact any matter which is not proved or which he does not intend to prove in evidence.
(4)Counsel shall not state what is his own opinion as to any matter of fact before the court.
(5)Counsel shall not, in a question to any witness, assume that facts have been given in evidence which have not been given in evidence or that particular answers have been given contrary to the fact.
(6)Counsel shall treat the court and judge-advocate with due respect and shall, while regarding the exigencies of his case, bear in mind the requirements of military discipline in the respectful treatment of any superior officer of the accused who may attend as a witness. 96 Defending officer. 96.—
(1)If an accused person is not represented at his trial by counsel, he may be represented by any officer subject to military law who shall be called " the defending officer ".
(2)The defending officer shall have the same rights and duties as appertain to counsel under these Rules and shall be under the like obligations. PROCEEDINGS. 97 Record in proceedings of transactions of court-martial. 97.—
(1)At a court-martial the judge-advocate shall record or cause to be recorded all transactions of that court, and shall be responsible for the accuracy of the record (in these Rules referred to as the proceedings) ; and if the judge-advocate is called as a witness by the accused, the president shall be responsible for the accuracy of the record in the proceedings of the evidence of the judge-advocate. The proceedings shall be recorded on the forms prescribed in Appendix XI to these Rules.
(2)The evidence shall be taken down in a narrative form in as nearly as possible the words used, or in the form of question and answer, or partly in a narrative form and partly in the form of question and answer but, in any case where the prosecution, the accused, the judge-advocate or the court considers it material, the question and answer shall be taken down verbatim.
(3)Any question which has been objected to and the tender of any evidence which has been objected to and any advice given by the judge-advocate thereon shall, if the prosecutor or accused so requests, or the court or the judge-advocate think fit, be entered with the grounds of the objection and the decision of the court thereon.
(4)Where any address by or on behalf of the prosecutor or accused, or the summing-up of the judge-advocate is not in writing, it shall not be necessary to record the address or summing-up in theproceedings further or otherwise than the court think proper or, in the case of the summing-up, than the judge-advocate requires, except that :— (
  1. a)the judge-advocate shall in every case make such record of the defence made by the accused as will enable the confirming authority to judge of the reply made by or on behalf of the accused to each charge against him, and (
  2. b)the judge-advocate shall also record any particular matters in the address by or on behalf of the prosecutor or accused person which the prosecutor or accused person as the case may be, requires.
(5)There shall not be entered in the proceedings any comment or anything not before the court or any report of any fact not forming part of the trial ; but if any such comment or report seems to the court necessary the court or the judge-advocate may forward it to the proper convening authority in a separate document, signed by the president or the judge-advocate.
(6)The following documents shall be attached to the proceedings :— (
  1. a)the original or a certified true copy of the order convening the court ; (
  2. b)the original or a certified true copy of the summary or abstract of evidence ; (
  3. c)a medical certificate in the form prescribed in Appendix XII to these Rules that the accused is physically fit and able to stand his trial ; (
  4. d)the original or a certified true copy of the charge sheet.
(7)Each of the documents mentioned in paragraph
(6)of this Rule and any other document which is attached to the proceedings shall be signed by the judge-advocate and marked with a letter by which it shall be referred to in the proceedings. Where any document or thing produced in evidence cannot be conveniently attached to the proceedings it shall be labelled or otherwise identified and forwarded with the proceedings. 98 Custody and inspection of proceedings.
  1. The proceedings shall be deemed to be in the custody of the judge-advocate but may, with proper precaution for their safety, be inspected by the president and other members of the court, the prosecutor and accused respectively, at all reasonable times before the court is closed to consider the finding. 99 Transmission of proceedings after findings.
  2. At the conclusion of the court-martial the proceedings shall be sent by the judge-advocate to the Deputy Judge-Advocate General for submission to the Judge-Advocate General. 100 Preservation of proceedings. 100.—The proceedings of a court-martial shall, after promulgation, be forwarded to the office of the Deputy Judge-Advocate General in Dublin, and there preserved by him for not less than, in the case of a general court-martial, seven years, and in the case of a limited court-martial, three years. 101 Rate of payment for copies of proceedings. 101.—The rate at which copies of the proceedings of a court-martial shall be supplied to persons entitled under the Act to receive a copy shall be fourpence for every folio of seventy words. The Minister may, in any case which to him seems just and reasonable, direct that a copy of such proceedings shall be issued free of charge. 102 Loss or destruction of proceedings. 102.—
(1)If the original proceedings of a court-martial or any part thereof are lost or destroyed, a copy thereof, if any, certified by the president of, or the judge-advocate at the court-martial, may be accepted in lieu of the original.
(2)If there is no such copy, and sufficient evidence of the charge, finding, sentence and transactions of the court can be procured, that evidence may, with the consent of the accused, be accepted in lieu of the original proceedings, or part thereof, lost.
(3)In any case above in this Rule mentioned, the finding and sentence, if requiring confirmation, may be confirmed and shall be as valid as if the original proceedings or part thereof, had not been lost.
(4)If, in a case where confirmation of a finding, or finding and sentence, is required, the proceedings or part thereof were lost or destroyed before confirmation and there is no such copy or evidence, or the accused refuses such assent, as above mentioned, the accused may be tried again and, on the issue of an order convening the court for the trial, the finding and sentence of the previous court of which the proceedings or part thereof were so lost or destroyed shall be null. JUDGE-ADVOCATE. 103 Death, illness or absence of judge-advocate. 103. If the judge-advocate dies or, from illness or from any cause whatever is unable to attend, the court shall adjourn and the president shall report the circumstances to the convening authority ; and in the case of death or, if in any other case the convening authority is of opinion that it is inexpedient to delay the continuance of the trial, the court shall be dissolved and the accused may be tried again before another court. 104 Powers and Duties of judge-advocate. 104. The powers and duties of the judge-advocate are as follows :— (
  1. a)The prosecutor and the accused respectively are at all times, after the judge-advocate is named to act on the court, entitled to his opinion on any question of law or procedure relative to the charge or trial, whether he is in or out of court, subject, when he is in court, to the permission of the court. (
  2. b)At a court-martial he represents the Judge-Advocate General. (
  3. c)He is responsible for informing the court of any informality or irregularity, in the proceedings. Whether consulted or not, he shall inform the convening authority and the court of any informality or defect in the charge or in the constitution of the court and shall give his advice on any matter before the court. (
  4. d)Any information or advice given to the court on any matter before the court shall, if he or the court desire it, be entered in the proceedings. (
  5. e)At the conclusion of the case he shall, unless both he and the court consider it unnecessary, sum up the evidence and advise the court upon the law relating to the case before the court proceed to deliberate upon their findings. (
  6. f)Upon any point of law or procedure, including any submission under Rule 42 which arises upon the trial which he attends, the court should be guided by his opinion and not disregard it, except for very weighty reasons. The court are responsible for the legality of their decisions, but they must consider the grave consequences which may result from their disregard of the advice of the judge-advocate on any legal point. The court, in following the opinion of the judge-advocate on a legal point, may record that they have decided in consequence of that opinion. (
  7. g)The judge-advocate has, equally with the president, the duty of taking care that the accused does not suffer any disadvantage in consequence of his position as such or of his ignorance or incapacity to examine or cross-examine witnesses or to make his own evidence clear or intelligible or otherwise, and may, for that purpose, call or recall witnesses pursuant to Rule 91. (
  8. h)In fulfilling his duties the judge-advocate shall be careful to maintain an impartial position. EXCEPTION FROM RULES. 105 Suspension of Rules on the ground of service exigencies or the necessities of discipline. 105. Where it appears to the convening authority or to the senior officer at the place where the accused is stationed that the exigencies of the service or the necessities of discipline render it impossible or inexpedient to observe any one or more of the provisions of the following Rules, that is to say, Rules 11, 12 and 20 of these Rules, he may, by order under his hand, make a declaration to that effect, specifying the nature of such exigencies or necessities, and thereupon the trial or other proceedings shall be as valid as if the said provision or provisions mentioned in the declaration had not been contained in these Rules and the declaration may be made with respect to any or all of the said provisions in the case of the same court. Provided, however, that the accused shall have full opportunity of making his defence, and shall be afforded every facility for preparing it which is practicable, having due regard to the said exigencies or necessities. The declaration shall be in the form prescribed in Appendix XIV to these Rules. PART III. —COURTS OF INQUIRY. 106 Definition. 106. A court of inquiry is an assembly of officers convened for the purpose of inquiring into any matter which may be referred to them by a convening authority, and to make such finding or declaration as may be required. 107 Convening authorities. 107. A court of inquiry may be convened by— (
  9. a)the Minister ; (
  10. b)the Chief of Staff ; (
  11. c)the Adjutant-General ; (
  12. d)the Quartermaster-General ; (
  13. e)the Officer Commanding a Command ; (
  14. f)the Officer Commanding the Curragh Training Camp ; (
  15. g)the Officer Commanding the Air Corps ; (
  16. h)the Officer Commanding the Naval Service ; (
  17. i)the Officer Commanding a Brigade ; (
  18. j)commanding officer holding a commissioned rank not lower than that of Commandant or Lieutenant-Commander, except in the case of a court of inquiry under section 174 of the act which may be convened by any commanding officer. 108 Composition. 108.—
(1)Subject to the provisions of paragraph
(2)of this Rule, a court of inquiry shall normally be composed of three officers but may be composed of any number of officers ; provided that no court may act when its membership has fallen below two in number.
(2)A court of inquiry into a traffic accident or illegal absence may be composed of any number of officers but in no case shall the court be composed of less than, two officers.
(3)The selection of officers shall be in accordance with the nature of the inquiry to be carried out by the court. Where the inquiry is into the death or serious injury of a member of the Defence Forces a medical officer shall be appointed to be a member of the court. 109 Assessors—appointment and functions of. 109.—
(1)A person not subject to, military law may be appointed by the convening authority to act as an assessor to a court of inquiry, provided that such person possesses professional or technical qualifications necessary to enable him to advise the court upon any professional or technical questions arising thereat.
(2)An appointment of an assessor may be made at any time before the court has closed to consider its findings or, if it is not required to make findings, before the taking of evidence has concluded.
(3)A convening authority (other than the Minister) shall not appoint an assessor without the prior sanction of the Secretary of the Department of Defence.
(4)An assessor shall not be a member of the court to which he is appointed to advise but shall be present throughout so much of the proceedings as the convening authority may direct. The assessor may not himself question witnesses but may suggest to the president questions to be put to the witnesses, and any such question and the reply thereto will be recorded in the proceedings of the court.
(5)The assessor shall give his opinion in closed court upon any professional or technical matter which may be referred to him by the convening authority or by the court and such opinion shall be recorded in the proceedings of the court.
(6)If a court of inquiry decides to disregard the opinion of the assessor appointed to advise it upon any professional or technical matter, they shall record in their proceedings such decision and their reasons therefor. 110 Convening of. 110.—
(1)A convening authority in his order convening a court of inquiry shall— (
  1. a)appoint the president and other members of the court and the assessor (if any) ; (
  2. b)appoint the place, date and hour for the first assembly of the court ; (
  3. c)state the matters into which the court is to inquire and set out such questions (if any) in respect of which he requires a finding ; provided that a court of inquiry into a traffic accident involving civilian persons or property shall not be required to make any finding fixing responsibility for the accident ; (
  4. d)state whether the evidence is to be taken on oath.
(2)A convening authority by his order convening a court of inquiry may provide for such matters as are referred to in Rules 111, 112 and
  1. 111 Witness subject to military law, attendance of and production of documents.
  2. The convening authority shall order or arrange for, as the case may be, the attendance of persons subject to military law who are required as witnesses at a court of inquiry and, where necessary, shall order or arrange for, as the case may be, the production to the court of all relevant documents and articles which are or may be in military custody or procurement. 112 Witness not subject to military law, attendance of.
  3. Where the attendance of a person not subject to military law is required as a witness at a court of inquiry a notification of the holding of the court shall be sent to such person. The notification shall be in the form prescribed in Appendix XV to these Rules. 113 Further witnesses.
  4. If the court consider that the attendance of witnesses other than those ordered or notified to attend is necessary for the purpose of their inquiry, the president shall apply to the convening authority for the attendance of such witnesses. 114 Appointment of new members.
  5. Where, after a court of inquiry has assembled but before they begin to take evidence, a member thereof is, through illness or other valid reason, unable to attend the proceedings of the court, and because of such illness or other valid reason will be unable within a reasonable time to attend at such proceedings, the convening authority may detail another officer as a member of the court to replace the member so unable to attend. Where the member so unable to attend is the president, the convening authority may appoint another member as president, or appoint a new president. 115 Court to continue, unless reduced below legal minimum.
  6. Where, after a court of inquiry has begun to take evidence, a member thereof is, through illness or other valid reason, unable to attend the proceedings of the court, and b

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