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Group Title: West Indies gazette
Title: The West Indies gazette
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Permanent Link: http://ufdc.ufl.edu/UF00076857/00064
 Material Information
Title: The West Indies gazette
Physical Description: : ; 34 cm.
Language: English
Creator: West Indies (Federation)
Publisher: Govt. Print. Off.
Place of Publication: Port of Spain Trinidad
Publication Date: January 9, 1959
 Subjects
Subject: Politics and government -- Periodicals -- West Indies (Federation)   ( lcsh )
Spatial Coverage: Trinidad and Tobago -- Trinidad
 Notes
Dates or Sequential Designation: v.1- Jan. 3, 1958-
General Note: Includes supplements consisting of bills, ordinances, statutory rules & orders, etc.
 Record Information
Bibliographic ID: UF00076857
Volume ID: VID00064
Source Institution: University of Florida
Holding Location: University of Florida
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Resource Identifier: ltuf - ABV7930
oclc - 01646171
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Table of Contents
    Main
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    Legal Supplement
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    Legal Supplement: pt. 1 Acts of the Federal Legislature (Act No. 11 of 1958): Defence Act, 1958
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    Legal Supplement: pt. 1 Acts of the Federal Legislature (Act No. 12 of 1958): Supplementary Appropriation (No. 2) Act, 1958
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    Legal Supplement: pt. 1 Acts of the Federal Legislature (Act No. 13 of 1958): Travel (Exemption from Formalities) Act, 1958
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Full Text














The West Indies Gazette



VOL. 2 FRIDAY, 9TH JANUARY, 1959 No. 3


TABLE OF CONTENTS
GAZETTE NOTICES


10 Assent to Bills

11 Assent to Bills


SUBJECT MATTER PAGE No. SUBJECT MATTER

...... ... 5 12 Appointments to the Federal Public Service

. ... ... 5 13 Appointment to the Federal Public Service


LEGAL SUPPLEMENT

PART I-ACTS OF THE FEDERAL LEGISLATURE
(Including Regulations made under section 2 of The West Indies (Federation) Order in Council, 1957).


The Defence Act, 1958 ... .
The Supplementary Appropriation
(No. 2) Act, 1958 ... .


PAGE No.

152 13 of 1958 The Travel (Exemption from
Formalities) Act, 1958
323


10
ASSENT TO BILLS
IT is hereby notified that on 30th December, 1958, His Excellency the Governor-General assented to the Bills
passed by the Senate and the House of Representatives for the following Acts :-
The Appropriation (1959) Act, 1958.
The Commissions of Enquiry Act, 1958.

11
ASSENT TO BILLS
IT is hereby notified that on 31st December, 1958, His Excellency the Governor-General assented to the Bills
passed by the Senate and the House of Representatives for the following Acts :-
The Pensions Act, 1958.
The Audit and Civil Contingencies Act, 1958.
The Federal Legislature (Privileges, Immunities and Powers) Act, 1958.
The Income Tax (Federal Emoluments) Act, 1958.

12
APPOINTMENTS TO THE FEDERAL PUBLIC SERVICE
THE FEDERAL SECRETARY, acting under the powers conferred on him by the Appointments in the Public Service
(Delegation) Regulations, 1958, has, after consultation with the temporary Federal Public Service Commission
appointed the following persons to the offices, and with effect from the dates indicated hereunder :-
Effective date
Officer's Name Office of Appointment


Murray, Mr. Ellsworth ...
Cumberbatch, Miss Kathleen
Maycock, Mr. Ernest ...


. ... Clerical Officer, Grade II
... ... Clerical Officer, Grade II
... Administrative Cadet ...


APPOINTMENT TO THE FEDERAL PUBLIC SERVICE
His EXCELLENCY THE GOVERNOR-GENERAL has, after consultation with the temporary Federal Public Service
Commission, appointed Mr. FRANK DOWDY as Economist with effect from the 2nd January, 1959.
GOVERNMENT PRDMNG OmcE, TRINAD, T.W.I.-1959


PAGE

5

5


11 of 1958
12 of 1958


PAGE


... 326


... 17.11.58
... 22.12.58
... 31.12.58



























THE WEST INDIES GAZETTE


Vol. 2 FRIDAY, 9th JANUARY, 1959 No. 3


LEGAL SUPPLEMENT


PART I--ACTS OF THE FEDERAL LEGISLATURE

(including regulations made under section 2 of the West Indies
(Federation) Order in Council, 1957).

TABLE OF CONTENTS
No. Page
11 of 1958 The Defence Act, 1958 152
12 of 1958 The Supplementary Appropriation (No. 2) Act, 1958 323
13 of 1958 The Travel (Exemption from Formalities) Act, 1958 326








The Defence Act, 1958


THE WEST INDIES


ACT No. 11 of 1958.

THE DEFENCE ACT, 1958.

ARRANGEMENT OF SECTIONS

PART I
PRELIMINARY
Section
1. Short title and commencement.
2. Application.
3. Interpretation.
4. Definition of stealing.
5. Provisions as to active service.
6. Establishment and employment.

PART II
OFFICERS
7. Conditions of appointing officers.
8. Commissioning of officers.
9. Promotion, etc. of officers to be Gazetted.
10. Reserve of officers.

PART III
ENLISTMENT AND TERMS OF SERVICE
11. Recruiting officers.










The Defence Act, 1958


Enlistment
12. Enlistment.
Terms and conditions of service
13. Terms of enlistment.


Re-engagement and extension of service
14. Re-engagement and continuance in service.
Discharge and transfer to the reserve
15. Prolongation of service.
16. Discharge.
17. Transfer to the reserve.
18. Postponement of discharge or transfer pending proceedings for
offences, etc.
19. Restrictions on reduction in rank of warrant officers and non-
commissioned officers.
20. Right of warrant officer to discharge on reduction to ranks.
21. Discharge upon prescribed grounds.
22. Right of soldier to purchase discharge.

Miscellaneous and supplementary provisions
23. Rules for reckoning service.
24. Validity of attestation and enlistment.
25. False answers in attestation paper.

PART IV
DISCIPLINE AND TRIAL AND PUNISHMENT OF
MILITARY OFFENCES
Treachery, cowardice and offences arising out of military service
26. Aiding the enemy.
27. Communication with the enemy.
28. Cowardly behaviour.
29. Offences against morale.
30. Becoming a prisoner of war through disobedience or wilful neglect;
and failure to rejoin forces.
31. Offences by or in relation to sentries, etc.
32. Looting.
Mutiny and insubordination
33. Mutiny.
34. Failure to suppress mutiny.
35. Insurbordinate behaviour.
36. Disobedience to particular orders.
37. Obstruction of provost officers.
38. Disobedience to standing orders.









154 The Defence Art, 1958


Desertion, absence without leave, etc.
39. Desertion.
40. Absence without leave.
41. Assisting and concealing desertion and absence without leave.
42. Failure to perform military duties.
Malingering and drunkenness
43. Malingering.
44. Drunkenness.
Offences relating to property
45. Offences in relation to public and service property.
46. Offences in relation to property of members of forces.
47. Miscellaneous offences relating to property.
Offences relating to billeting and requisitioning of vehicles
48. Billeting offences.
49. Offences in relation to requisitioning vehicles.
Flying, etc., offences
50. Dangerous flying etc.
51. Inaccurate certification of aircraft, etc.
52. Low flying.
53. Annoyance by flying.
Offences relating to, and by, persons in custody
54. Irregular arrest and confinement.
55. Permitting escape, and unlawful release of prisoners.
56. Resistance to arrest.
57. Escape from confinement.
Offences in relation to courts-martial and civil authorities
58. Offences in relation to courts-martial.
59. False evidence.
60. Obstruction of police officers arresting officer or soldier.
Miscellaneous offences
61. Injurious disclosures.
62. Making of false statements on enlistment.
63. Making of false documents.
64. Scandalous conduct of officer.
65. Ill-treatment of officers or men of inferior rank.
66. Disgraceful conduct.
67. False accusation.
68. Attempts to commit military offences.
69. Conduct to prejudice of military discipline.
Civil offences
70. Civil offences.









The Defence Act, 1958 155


Punishments
71. Punishment of officers.
72. Punishment of soldiers.
73. Field punishment.
74. Imprisonment.
Arrest
75. Power to arrest offenders.
76. Provisions for avoiding delay after arrest.
Investigation of, and summary dealing with, charges
77. Investigation of charges by commanding officer.
78. Charges to be dealt with summarily or by court-martial.
79. Further proceedings on charges against non-commissioned officers
and soldiers.
80. Further proceedings on charges against officers and warrant
officers.
81. Dismissal of charges referred to higher authority.
82. Officers who are to act as commanding officers and appropriate
superior authorities.
83. Limitation on powers of summary dealing with charges.

Courts-martial: general provisions
84. Trial by, and powers of, ordinary court-martial.
85. Trial by, and powers of, field court-martial.
86. Officers having powers to convene courts-martial.
87. Constitution of ordinary courts-martial.
88. Constitution of field courts-martial.
89. Supplementary provisions as to constitution of courts-martial.
90. Place for sitting of courts-martial and adjournment to other places.
Courts-martial: provisions relating to trial
91. Challenges by accused.
92. Administration of oaths.
93. Courts-martial to sit in open court.
94. Dissolution of courts-martial.
95. Decisions of courts-martial.
96. Finding and sentence.
97. Power to convict of offence other than that charged.
98. Rules of evidence.
99. Privilege of witnesses and others at courts-martial.
100. Offences by civilians in relation to courts-martial.
101. Affirmations.
Confirmation, revision and review of proceedings of courts-nmwlial
102. Confirmation of proceedings of courts-martial.
103. Petitions against finding or sentence.









The Defence Act, 1958


104. Revision of findings of courts-martial.
105. Powers of confirming authorities.
106. Confirming authorities.
107. Approval as well as confirmation required for death sentences.
108. Review of findings and sentences of courts-martial.
109. Reconsideration of sentences of imprisonment and detention.

Review of summary findings and awards
110. Review of summary findings and awards.

Findings of insanity, etc.
111. Provisions where accused found insane.

Commencement, suspension and duration of sentences
112. Commencement of sentences.
113. Duration of sentences of imprisonment or detention.
114. Restrictions on serving of sentences of detention in prisons.
115. Special provisions as to civil prisons in Federation.
116. Special provisions as to carrying out or serving of sentences outside
the Federation.
117. Country in which sentence of imprisonment to be served.
118. Duties of officers in charge of prisons and others to receive
prisoners.

Trial of persons ceasing to be subject to military law under
the Act and time limits for trials
119. Trial and punishment of offences under this Act notwithstanding
offender ceasing to be subject thereto.
120. Limitation of time for trial of offences under this Act.

Relation between military and civil courts and finality of trials
121. Powers of civil courts.
122. Persons not to be tried under this Act for offence already disposed
of.
Inquiries
123. Boards of inquiry.
124. Inquiries into absence.

Miscellaneous provisions
125. Restitution or compensation for theft, etc.
126. Appointment of judge advocates.
127. Promulgation.
128. Custody of proceedings of court-martial and right of accused to a
copy thereof.
129. Indemnity for prison officers, etc.









The Defence Act, 1958 157


Interpretation
130. Interpretation of Part IV.
131. Rules of Procedure.
132. Imprisonment and Detention Rules.
133. Board of Inquiry Rules.
134. Miscellaneous rules.

PART V
APPEALS FROM COURTS-MARTIAL

135. Right of appeal.
136. Application for leave to appeal.
137. Determination of appeals in ordinary cases.
138. Powers of the Federal Supreme Court in special cases.
139. Appeals to Privy Council.
140. Supplementary powers of the Federal Supreme Court.
141. Proceedings to be heard in absence of appellants.
142. Defence of appeals.
143. Right of appellant to present his case in writing.
144. Suspension of death sentences.
145. Person not to be tried again where conviction quashed.
146. Removal of prisoners for purposes of proceedings under Part V.
147. Furnishing, on appeal, of documents relating to trial.
148. Duties of Registrar of the Federal Supreme Court with respect
to appeals, etc.
149. Saving of Governor-General's powers.
150. Composition of Court.
151. Exercise of certain powers of the Federal Supreme Court by a
judge.
152. General provisions.

PART VI
FORFEITURES AND DEDUCTIONS

153. Forfeitures and deductions: general provisions.
154. Forfeiture of pay for absence from duty.
155. Deductions for payment of civil penalties.
156. Compensation for loss occasioned by wrongful act or negligence.
157. Deductions for barrack damage.
158. Remission of forfeitures and deductions.
159. Enforcement of maintenance and affiliation orders by deduction
from pay.









The Defence Act, 1958


160. Deductions from pay for maintenance of wife or child.
161. Limit of deductions under sections 159 and 160 and effect on
forfeiture.
162. Service of process in maintenance proceedings.

PART VII
BILLETING AND REQUISITIONING OF VEHICLES
Billeting
163. Billeting requisitions.
164. Premises in which the billets may be provided.
165. Provision of billets.
'66. Accommodation to be provided and payment therefore.
167. Appeals against billeting.
168. Compensation for damage.
169. Refusal to receive persons billeted, etc.
170. Application to civilians employed with the regiment.

Requisitioning of vehicles
171. Requisitioning orders.
172. Provision of vehicles.
173. Period for which vehicle to be furnished.
174. Payment for vehicle furnished.
175. Avoidance of hardship in requisitioning of vehicles.
176. Record and inspection of mechanically-propelled vehicles.
177. Enforcement of provisions as to requisitioning.
178. Application to cattle, food, forage and stores.
179. Liability of Crown for damage by vehicles being delivered for
requisitioning.
180. Bringing into operation of sections 163 and 171.
181. Appropriation of funds for moneys payable by the Crown.

PART VIII
GOVERNMENT AND GENERAL PROVISIONS
Co mmand
182. Command and precedence.
183. Command of the regiment.
184. Regulations as to command.
185. Powers of command of members of co-operating forces.
Redress of complaints
186. Complaints by officers.
187. Complaints by soldiers.
Exemptions for members of the regiment
188. Exemption from jury service.
189. Exemptions from tolls, etc.


158









The Defence Act, .1958


190. Exemption from taking execution of property used for military
purposes.
Provisions relating to deserters and absentees without leave
191. Arrest of deserters and absentees without leave.
192. Proceedings before a civil court where persons suspected of illegal
absence.
193. Deserters and absentees without leave surrendering to police.
194. Certificates of arrest of surrender of deserters and absentees.
195. Duties of superintendent of prisons and others to receive deserters
and absentees.

Offences relating to military matters punishable by civil courts
196. Punishment for pretending to be a deserter.
197. Punishment for procuring and assisting desertion.
198. Punishment for obstructing members of regiment in execution of
duty.
199. Punishment for aiding malingering.
200. Unlawful purchase, etc. of military stores.
201. Illegal dealings in documents relating to pay, pensions, mobilization,
etc.
202. Unauthorised use of and dealing in decorations, etc.

Provisions as to evidence
203. General provisions as to evidence.
204. Proof of outcome of civil trial.
205. Evidence of proceedings of court-martial.

Miscellaneous provisions
206. Temporary reception in civil custody of persons under escort.
207. Avoidance of assignment of, or charge on military pay, pensions,
etc.
208. Power of certain officers to take statutory declarations.

PART IX
RESERVE
209. Reservists.
210. Annual training.
211. Calling out of the reserve on temporary service.
212. Calling out of the reserve on permanent service.
213. Punishment for non-attendance.
214. Record of illegal absence.
215. Discharge during service.
216. Regulations as to the reserve.









The Defence Act, 1958


PART X
APPLICATION OF THE ACT AND SUPPLEMENTARY
Application, transfer and attachment
217. Application of the Act.
218. Application of Act to civilians.
219. Application of the Imperial Act.

Financial provisions and regulations
220. Emoluments, pensions and gratuities appropriated out of federal
funds.
221. Power to make regulations.
222. Powers exercisable in subsidiary legislation.
228. Execution of orders, instruments, etc.


SCHEDULES:
First Schedule
Second Schedule

Third Schedule

Fourth Schedule
Fifth Schedule


.. Forms of Commission.
.. Alternative offences of which accused may be
convicted by court-martial.
.. Supplementary provisions as to payment for
requisitioned vehicles.
.. Pay and allowances regulations.
.. Pension regulations.








The Defence Act, 1958 161


I ASSENT

HAILES
[L.S.]
GOVERNOR-GENERAL

15th December, 1958.





An Act to provide for the defence of the Federa-
tion by the establishment of a West India Regiment and
other units of Her Majesty's military forces, and to provide
for matters connected therewith and incidental thereto.

Be it enacted by the Queen's Most Excellent
Majesty, by and with the advice and consent of the Senate
and the House of Representatives of The West Indies, and
by the authority of the same, as follows:-

Part I-Preliminary
1. This Act may be cited as the Defence Act, 1958, Short title
and
and shall come into operation upon such day as the Governor- mene
General shall by proclamation appoint and different days may ment.
by appointed for different provisions.

2. This Act shall apply to the Cayman Islands and Appica-
the Turks and Caicos Islands.


3. (1) In this Act, unless the context otherwise Interpre-
requirestation.
requires-








The Defence Act, 1958


"acting rank" means rank of any description
(however called) such that under regulations a
commanding officer has power to order the holder
to revert from that rank; "acting warrant officer"
and "acting non-commissioned officer", shall be
construed accordingly;

"aircraft" means any machine for flying, whether
propelled by mechanical means or not, and includes
any description of balloon;

"aircraft material" includes-

(a) parts of, and components of or accessories
for, aircraft, whether for the time being in air-
craft or not;
(b) engines, armaments, ammunition and bombs
and other missiles of any description in, or
for use in, aircraft;
(c) any other gear, apparatus or instruments in,
or for use in, aircraft;
(d) any apparatus used in connection with the
taking-off or landing of aircraft or for detect-
ing the movement of aircraft; and
(e) any fuel used for the propulsion of aircraft
and any material used as a lubricant for air-
craft or aircraft material;

"appropriate superior authority" has the mean-
ing assigned to it by subsection (1) of section 78
and subsection (2) of section 82 of this Act;

"arrest" includes open arrest;

"before the enemy" in relation to a person, means
that he is in action against the enemy or about
to go into action against the enemy or is under
attack or threat of imminent attack by the enemy;








The Defence Act, 1958 163

"Board of Inquiry Rules" means rules with re-
spect to the convening, constitution and procedure
of boards of inquiry made by. the Governor-
General under section 133 of this Act;

"civil court" means a court of ordinary criminal
jurisdiction, but does not, except where otherwise
expressly provided, include any such court out-
side the Commonwealth;

"civil offence" has the meaning assigned to it in
subsection (2) of section 70 of this Act;

"colour service" means service under the pro-
visions of this Act otherwise than service in the
reserve;

"the Commander" means the officer appointed by
the Governor-General under section 183 of this
Act to have command, direction and general
superintendence of the units of the regiment
raised under this Act;

commandingg officer" has the meaning assigned
to it by subsection (1) of section 82 of this Act;

"Connmonwealth force" means any of the military
forces of Canada, the Conunonwealth of Australia,
New Zealand, the Union of South Africa, India
Pakistan, Ceylon, Federation of Malaya or Ghana;

"competent military authority" means such officer
as may be prescribed;

"corresponding civil offence" has the meaning
assigned to it by subsection (2) of section 70 of
this Act;

"corresponding rank" in relation to any rank or
rating in Her Majesty's naval, military or air
forces, means such rank or rating in any other of
those forces as may be declared by regulations to
correspond therewith;








164 The Defence Act, 1958

"court-martial" except where it is expressed to
be under service law, means a court-martial under
this Act;
"damage" includes destruction and references to
damaging shall be construed accordingly;
"date of attestation" in relation to any person
means the da e on which he is attested in accor-
dance with the provisions of regulations;
"decoration" includes medal, medal ribbon, clasp
and good conduct badge;
"desertion" shall be construed in accordance with
subsection (2) of section 39 of this Act;
"enemy" includes all persons engaged in armed
operations against any of Her Majesty's forces and
also includes all armed mutineers, armed rebels,
armed rioters and pirates;
"Governor" means, ii relation to a Territory. the
officer, however styled, who is for the time being
administering the government of the Territory;
"Her Majesty's military forces" except where
otherwise expressly provided, does not include any
Commonwealth force;
3 & 4 Eliz. "the Imperial Act" means the Army Act, 1955, of
2 18. the United Kingdom as amended from time to
time and any Imperial enactment substituted
therefore;
"Imprisonment and Detention Rules" means rules
regulating imprisonment and detention made by
the Governor-General under section 132 of this
Act;
"property" includes real property in the Federa-
tion, and property outside the Federation of the
nature of real property;
"provost officer" means a provost marshal or officer
subject to service law appointed to exercise the
functions conferred by or under service law on
provost officers;









The Defence Act, 1958 165

"public property" means any property belonging
to the Crown in right of its government of the
United Kingdom or of the Federation or of any
Territory, or to any department of Her Majesty's
Government in the United Kingdom or to the
Federal Government or to any department there-
of, or to any Territorial Government or department
thereof, and includes any property held for the
purposes of the Crown as aforesaid or of any such
Government or department;
"recruiting officer" means a person authorised as
such under the provisions of section 11 of this Act;
"the reserve" means the body comprised of those
persons who are subject to reserve service or
liability under Part IX of this Act;
"reservist" means a member of the reserve;
"Rules of Procedure" means the Rules of Proce-
dure, made by the Governor-General under section
131 of this Act;
"service" when used adjectivally, means belong-
ing to or connected with Her Majesty's military
forces or any part of Her Majesty's military
forces;
"service law" includes this Act, the Imperial Act, 2 & Eliz.
the Air Force Act, 1955, of the United Kingdom 3 & 4 Eliz.
a:nd the Naval Discipline Act, 1957, of the United 5 &6 Eliz.
Kingdom as amended from time to time and any 2 c. 53
Imperial enactment substituted therefore;
"ship" includes any description of vessel;
"soldier" does not include an officer but, with the
modifications contained in this Act in relation to
warrant officers and non-commissioned officers, in-
cludes a warrant officer and a non-commissioned
officer and every person subject to military law
under this Act during the time that he is so sub-
ject;
"stoppages" means the recovery by deductions
from the pay of the offender, of a specified sum
by way of compensation for any expense, loss or
damage occasioned by the offence;








166 The Defence Act, 1958

"unit" includes a battalion or other body of Her
Majesty's military forces established and main-
tained in the Federation under section 6 of this
Act corresponding in strength to a battalion or
any headquarters or other body of such forces
declared by the Commander to be a unit.

(2) In this Act, unless the context otherwise requires,
references to regulations shall be construed as references to
regulations made under section 221 of this Act.

(3) In this Act, unless the context otherwise
requires-
(a) "the regiment" means the West India
Regiment;
(b) references to the regiment include references
to any units formed under paragraph (b) of
subsection (1) of section (6) of this Act.

Definition 4. For the purposes of this Act-
of stealing.
(1) a person steals who, without the consent of
the owner, fraudulently and without a claim of
right made in good faith, takes and carries away
anything capable of being stolen with intent, at
the time of such taking, permanently to deprive
the owner thereof:
Provided that a person may be guilty of stealing
any such thing notwithstanding that he has
lawful possession thereof, if, being a bailee or
part owner thereof, he fraudulently converts
the same to his own use or the use of any person
other than the owner:
(2) the expression "takes" includes obtaining
the possession-
(a) by any trick;
(b) by intimidation;
(c) under a mistake on the part of the owner
with knowledge on the part of the taker
that possession has been so obtained;








The Defence Act, 1958


(d) by finding, where at the time of the find-
ing the finder believes that the owner can
be discovered by taking reasonable steps;

(3) the expression "carries away" includes any
removal of anything from the place which it
occupies, but in the case of a thing attached, only
if it has been completely detached;

(4) the expression "owner" includes any part
owner, or person having possession or control of,
or a special property in, anything capable of being
stolen;

(5) everything which has value and is the pro-
perty of any person, and if adhering to the realty
then after severance therefrom, shall be capable
of being stolen:
Provided that-
(a) save as hereinafter expressly provided
with respect to fixtures, growing
things, and ore from mines, anything
attached to or forming part of the realty
shall not be capable of being stolen by
the person who severs the same from
the realty, unless after severance he
has abandoned possession thereof; and
(b) the carcase of a creature wild by nature
and not reduced into possession while
living shall not be capable of being
stolen by the person who has killed
such creature, unless after killing it he
has abandoned possession of the car-
case;

(6) every person who-
(a) with intent to steal, rips, cuts, severs or
breaks-
(i) any glass or woodwork belonging to any
building; or
(ii) any metal or utensil or fixture, fixed in or
to any building; or








168 the Defence Act, 1958

(iii) anything made of metal fixed in any land
being private property, or as a fence to
any dwelling-house, garden or area, or in
any square or street, or in any place de-
dicated to public use or ornament, or in
any burial-ground;
(b) with intent to steal, cuts, breaks, roots up or
otherwise destroys or damages the whole or
any part of any tree, sapling, shrub, or under-
wood growing-
(i) in any place whatsoever, the value of the
article stolen or the injury done being to
the amount of one dollar at the least; or
(ii) in any park, pleasure ground, garden,
orchard, or avenue, or in any ground ad-
joining or belonging to any dwelling-
house, the value of the article stolen or the
injury done exceeding the amount of five
dollars; or
(iii) in any place whatsoever, the value of the
article stolen or the injury done exceeding
the amount of twenty-five dollars;
(c) with intent to steal, destroys or damages any
plant, root, fruit, or vegetable production
growing in any garden, orchard, pleasure
ground, nursery-ground, hothouse, green-
house or conservatory;
shall be guilty of stealing;
(7) every person who severs with intent to seal,
the ore of any metal, or any lapis calaminaris,
manganese, mundick, wad, black cawkc, black
lead, coal, or cannel coal from any mine bed or
vein thereof, shall be guilty of stealing.

Provisions 5. (1) In this Act the expression "on active service", in
as to
active relation to any unit, means that it is engaged in operations
service, against an enemy, and in relation to a person means that he
is serving in or with such a unit which is on active service.
(2) Where it appears to the (lovernor-(leneral that,
by reason of the inmminence of active service or of the recent
existence of active service, it is necessary for the public ser-









Thc Defence Act, 1948


vice that a unit should be deemed to be on active service, he
may declare that for such period, not exceeding three months,
beginning with the coming into force of the declaration as
may be specified therein that unit shall be deemed to be on
active service.
(3) Where it appears to the Governor-General that
it is necessary for the public service that the period specified
in a declaration under subsection (2) of this section should
be prolonged or, if previously prolonged under this section,
should be further prolonged, he may declare that the said
period shall be prolonged by such time, not exceeding three
months, as may be specified in the declaration under this
subsection.
(4) If at any time while any unit is deemed to be on
active service by virtue of the foregoing provisions of this
section, it appears to the Governor-General that there is no
necessity for the unit to continue to be treated as being on
active service, he may declare that as from the coming into
operation of the declaration the unit shall cease to be deemed
to be on active service.
6. (1) There shall be established and maintained in the Establish-
Federation a body of Her Majesty's military forces nenlt and
.nemploy-
consisting of- ment.
(a) such units as the Governor-(General may from
time to time think fit to be comprised therein
and styled "The West India Regiment";
(b) such other units as the Governor-General may
from time to time think fit to be formed and
styled by such designation as the Governor-
General shall by notice in the Gazette
declare,
(2) Every unit shall be charged with the defence of
the Federation and with such other duties as may from time
to time be defined by the Governor-General.
(3) The Governor-General may at any time order that
any unit shall be employed out of or beyond the Federation.
(4) The Governor-General may order that any officer
or soldier shall proceed to any place outside the Federation
for the purpose of undergoing instruction or training or for
duty or employment.









lhe Defence Act, 1958


Part II--Officers
Conditions 7. No person shall be appointed to a commission in
io appoin the regiment unless he has been recommended by a board set
up for that purpose by the Governor-General acting in his
discretion.

Coinmis- 8. (1) The power of appointment to commissions in the
signing of regiment shall be vested in:--
officers.
(a) Her Majesty, and exercised on Her Majesty's
behalf by the Governor-General, acting in his
discretion, in the case of persons who are to
be granted a commission for an indefinite
period; and
(b) the Governor-General in the case of persons
who are to be commissioned for a specified
time, and shall be exercised by him in his
discretion.

(2) Every officer on appointment to a commission shall
be issued with a commission in the form set out in the First
Schedule to this Act which commission shall be signed by the
G overnor-G general.
(3) The appointment of a person to a conlnission shall
be notified in the Gazette.

Promotion, 9. (1) The promotion of officers whether permanent or
etc. of acting, shall be notified in the Gazette.
officers
to be
Gazetted. (2) Any retirement or resignation of an officer shall
be notified in the Gazette.

Reserve of 10. A reserve of officers may be maintained consisting
officers of those officers of the regiment who have been permitted to
retire from the active list.

Part III-Enlistment and Terms of Service
Recruiting 11. Any person authorized in that behalf by the
officers. Governor-General may enlist recruits in the regiment in the
prescribed manner.
IEnlisltcunt
Enlistment. 12. (1) A person offering to enlist in the regiment shall
be given a notice in the prescribed form setting out the








The Defence Act, 1958


questions to be answered on attestation and stating the
general conditions of the engagement to be entered into by
him, and a recruiting officer shall not enlist any person in the
regiment unless satisfied by that person that he has been
given such a notice, understands it, and wishes to be enlisted.

(2) A recruiting officer shall not enlist a person under
the age of eighteen years unless consent to the enlistment has
been given in writing-
(a) if the person offering to enlist is living with
both or one of his parents, by the parents or
parent;
(b) if he is not living with both or one of his
parents, but any person (whether a parent or
not) whose whereabouts are known or can
after reasonable enquiry be ascertained has
parental rights and powers in respect of him,
by that person;
(c) if there is no such person as is mentioned in
paragraph (b) of this subsection or if after
reasonable enquiry it cannot be ascertained
whether there is any such person, by any
person in whose care (whether in law or in
fact) the person offering to enlist may be.

(3) Where the recruiting officer is satisfied by the
production of a certified copy of an entry in the register of
births or by any other evidence appearing to him to be
sufficient, that a person offering to enlist has or has not
attained the age of eighteen years, that person shall be
deemed for the purposes of this Act to have attained, or as
the case may be, not to have attained, that age.
A document purporting to be a certificate signed
by the recruiting officer, stating that he is satisfied as afore-
said, shall be sufficient evidence, until the contrary is proved,
that he is so satisfied.

Terms and conditions of service.
13. (1) The term for which a person enlisting in the 1Tems of
enlistment.
regiment may be enlisted shall be such a term beginning
with the date of his attestation as is mentioned in the follow-
ing provisions of this section.







172 The Defence Act, 1958

(2) Where the person enlisting has attained the age
of eighteen years the said term shall be-
(a) such term not exceeding six years as may be
prescribed, being a term of colour service; or
(b) such term not exceeding twelve years as may
be prescribed, being as to such part thereof
as may be prescribed a term of colour service
and as to the remainder a term of service in
the reserve.

(3) Where the person enlisting has not attained the
age of eighteen years the said term shall be-
(a) a term ending with the expiration of such
period, not exceeding six years, as may be
prescribed, beginning with the date on which
he attains such age, being a term of colour
service; or
(b) a term ending with the expiration of such
period, not exceeding twelve years, as may be
prescribed, beginning with the date on which
he attains such age, being as to such part
thereof as may be prescribed a term of colour
service and as to the remainder a term in the
reserve.

Re-encgagfeient and ertension of service
Re-engage- 14. (1) Any soldier of good character who at any time
onti-d has completed or is within two years before completing the
nuance in term of his colour service may with the approval of the
service competent military authority re-engage for such further
period or periods of colour service and service in the reserve
as may be prescribed:
Provided that such further period or periods of
colour service together with the original period of colour
service, shall not, except as provided by subsection (2) of
this section, exceed a total continuous period of twenty-two
years' colour service from the date of the soldier's original
attestation or the date upon which he attained the age of
eighteen years, whichever shall be the later;







The Defence Act, 1958


(2) Any soldier who shall have completed a period of
twenty-two years' colour service may, if he shall so desire
and with the approval of the competent military authority,
continue to serve from year to year in all respects as if his
term of colour service was still unexpired except that it shall
be lawful for him to claim his discharge at the expiration of
any period of three months after he has given notice to the
officer under whose command he is serving of his wish to be
discharged.

15. Any soldier whose term of colour service expires Prolonga-
during a state of war, insurrection, hostilities or public service.
emergency may be retained in the regiment and his service
prolonged for such further period as the competent military
authority with the approval of the Governor-General may
direct.
Discharge and transfer to the reserve
16. (1) Save as in this Act provided, every soldier upon Discharge.
becoming entitled to be discharged shall be discharged with
all convenient speed but until discharged shall remains subject
to military law under this Act.

(2) When a soldier who is discharged is serving out
of the Territory in which he was enlisted, then he shall be
sent free of cost-
(a) either to that Territory, or
(1) to the Territory in which he intends to reside
provided that the cost to the Federation of
conveying him to the Territory of intended
residence is no greater than the cost of con-
veying him to the Territory in which lie was
enlisted,

with all convenient speed and shall be discharged on his
arrival there or, if he consents to his discharge being delayed,
within six months from his arrival.

(3) Except in pursuance of the sentence of a court-
martial under service law, a soldier shall not be discharged
unless his discharge has been authorised by order of the
competent military authority,







174 The Defence Act, 1958

(4) Every soldier shall be given on his discharge a
certificate of discharge containing such particulars as may be
prescribed.
Transfer 17. (1) Save as in this Act provided, every soldier upon
to the
reserve. falling to be transferred to the reserve shall be transferred
to the reserve but until so transferred shall remain subject
to military law under this Act.

(2) When a soldier who falls to be transferred to the
reserve is serving out of the Territory in which he was
enlisted, he shall be sent free of cost-
(a) either to that Territory, or
(b) to the Territory in which he intends to reside
provided that the cost to the Federation of
conveying him to the Territory of intended
residence is no greater than the cost of con-
veying him to the Territory in which he was
enlisted,

with all convenient speed and shall be transferred to the
reserve on his arrival there or, if he consents to his transfer
being delayed, within six months from his arrival.

(3) Notwithstanding anything in this section herein-
before contained, the competent military authority may,
when a soldier falls to be transferred to the reserve as afore-
said, discharge him forthwith without giving any reason and
in any such case the provisions of section 16 of this Act shall
apply.

Postpone- 18. (1) Notwithstanding anything in this Part of this Act,
discharge a soldier shall not be entitled to be discharged or transferred
or transfer to the reserve at a time when he has become liable, as a person
pending
proceed- subject to military law under this Act, to be proceeded
ings for against for an offence against any of the provisions of service
offences,
etc. law:
Provided that if it is determined that the offence
shall not be tried by court-martial this subsection shall cease
to apply.

(2) Notwithstanding anything in this Part of this Act,
a soldier who is serving a sentence of imprisonment or deten-








The Defence Act, 1958 175

tion awarded by a court-martial under service law or his
commanding officer shall not be entitled to be discharged or
transferred to the reserve during the currency of the sen-
tence.

19. (1) A warrant officer or a non-commissioned officerRestric-
shall not be reduced in rank except by sentence of a court- reduction
martial under service law or by order of the Governor- i rank of
warrant
General acting in his discretion, or the Commander, or an officers
officer not below the rank of brigadier or corresponding rank and non-
authorised by the Governor-General to act for the purposes sioned
of this subsection. officers.

(2) An authorisation under subsection (1) of this sec-
tion may be given generally or subject to such limitations
as may be specified by the Governor-General.

(3) For the purposes of this section reduction in rank
does not include reversion from acting rank.

20. A warrant officer who is reduced to the ranks may Right of
warrant
thereupon claim to be discharged unless a state of war, officer to
insurrection, hostilities or public emergency exists. odischar
tion to
ranks.
21. A soldier may be discharged by a competent Discharge
upon pres-
military authority at any time during the currency of any cribed
term of engagement upon such grounds as may be prescribed. grounds.

22. (1) A soldier shall be entitled to claim his discharge Rigt of
at any time within six months after the date of his first attes- purchase
station, and if he makes such a claim he shall on payment of discharge.
one hundred dollars be discharged with all convenient speed
but until discharge shall remain subject to military law under
this Act:
Provided that the provisions of this section shall
not apply to a soldier who immediately prior to the date of
his first attestation was a member of Her Majesty's military
forces:
Provided further that the provisions of section 16
of this Act shall not apply to a soldier discharged under the
provisions of this section.







The Defence Act, 1958


(2) Notwithstanding the provisions of this section,
rio soldier shall be entitled to claim his discharge at a time
when or so long as soldiers are required to continue their
colour service under the provisions of section 15 of this Act,
Miscellaneous and supplementary provisions

reconing 23. In reckoning the service of any soldier for dis-
service. charge or re-engagement or transfer to the reserve there shall
be excluded therefrom-
(a) all periods during which he has been absent
from his duty from any of the following
causes-
(i) imprisonment;
(ii) desertion;
(iii) absence without leave exceeding twenty-
eight days; and
(b) any period ordered by a court-martial to be
forfeited.
Validity of 24. (1) Where a person has made such declaration upon
attestation
and his attestation as may be prescribed and has thereafter
enlistment received pay as a soldier-
(a) the validity of his enlistment shall not be
called in question on the grounds of any error
or omission in his attestation paper;
(b) after the expiration of a period of three
months from the date on which he made the
said declaration he shall be deemed to have
been validly enlisted notwithstanding any
non-compliance with the requirements of this
Act or any regulations made as to enlistment
or attestation or any other ground whatsoever
(not being an error or omission in his attesta-
tion paper) and he shall be deemed to be a
soldier until his discharge.
(2) Where a person has received pay as a soldier with-
out having previously made such declaration as aforesaid
then-
(a) he shall be deemed to be a soldier until dis-
charged;







The Defence Act, 1958 177

(b) he may claim his discharge at any time and
if he makes such claim the claim shall be sub-
mitted as soon as may be to the competent
military authority who shall cause him to be
discharged with all convenient speed.

(3) Nothing in the foregoing provisions of this section
shall be construed as prejudicing the determination of any
question as to the term for which a person was enlisted or
as preventing the discharge of a person who has not claimed
his discharge.

25.(1) If a person appearing before a recruiting officerFalse
S allswers in
for the purpose of being attested knowingly makes a false attestation
answer to any question contained in the attestation paper paper.
and put to him by or by the direction of the recruiting officer
le shall be liable on summary conviction to imprisonment
for a term not exceeding three months or to a fine not exceed-
ing oiie hundred dollars.

(2) For the avoidance of doubt it is hereby declared
that, a person may be proceeded against under this section
notwithstanding that he has since become subject to military
law under this Act.

Part IV-Discipline and Trial and Punishment of
SMilitary Offences
Treachery, cowardice and offences arising out of
military service
26. (1) Any person subject to military law under this Aiding th
Act who with intent to assist the enemy- enemy.
(a) abandons or delivers up any place or post
which it is his duty to defend, or induces any
person to abandon or deliver up any place or
post which it is that person's duty to defend;
or
(b) does any act calculated to imperil the success
of operations of Her Majesty's forces, of any
forces co-operating therewith or of any part
of any of those forces; or
(c) having been made a. prisoner of war, serves
with or aids the enemy in the prosecution of







The Defence Act, 1958


hostilities or of measures calculated to in-
fluence morale, or in any other manner what-
soever not authorised by international usage;
or
(d) furnishes the enemy with arms or ammuni-
tion or with supplies of any description; or
(e) harbours or protects an enemy not being a
prisoner of war,

shall, on conviction by court-martial, be liable to suffer death
or any other punishment provided by this Act.

(2) Any person subject to military law under this
Act, who knowingly and without lawful excuse-
(a) abandons or delivers up any place or post
which it is his duty to defend, or induces any
person to abandon or deliver up any place or
post which it is that person's duty to defend;
or
(b) does any act calculated to imperil the success
of operations of Her Majesty's forces, of any
forces co-operating therewith or of any part
of any of those forces; or
(c) having been made a prisoner of war, serves
with or aids the enemy in the prosecution of
hostilities or of measures calculated to in-
fluence morale, or in any other manner what-
soever not authorised by international usage;
or
(d) furnishes the enemy with arms or ammuni-
tion or with supplies of any description; or
(e) harbours or protects an enemy not being a
prisoner of war,

shall, on conviction by court-martial, be liable to suffer im-
prisonment or any less punishment provided by this Act.

Commu- 27. (1) Any person subject to military law under this
nication
with the Act who with intent to assist the enemy communicates with
enemy. or gives intelligence to the enemy shall, on conviction by
court-martial, be liable to suffer death or any other punish-
ment provided by this Act.








The Defence Act, 1958 179

(2) Any person subject to military law under this Act
who without authority communicates with or gives intelli-
gence to the enemy shall, on conviction by court-martial, be
liable to imprisonment or any less punishment provided by
this Act.
(3) In this section the expression "intelligence"
means information which is or purports to be information as
to any matter such that information about it would or might
be directly or indirectly useful to an enemy, and in particular
(but without prejudice to the generality of the foregoing
provisions of this subsection) as to any matter falling within
the following paragraphs, being a matter such that infor-
mation as to it would or might be useful as aforesaid, that is
to say-
(a) the number, description, armament, equip-
ment, disposition, movement or condition of
any of Her Majesty's forces or of any forces
co-operating therewith, or any of Her
Majesty's ships or aircraft or of the ships or
of the ships or aircraft of any such
co-operating force;
(b) any operations or projected operations of any
of such forces, ships or aircraft as aforesaid;
(c) any code, cipher, call sign, password or
countersign;
(d) any measures for the defence or fortification
of any place on behalf of Her Majesty;
(e) the number, description or location of any
prisoners of war;
(f) munitions of war.

28. (1) Any person subject to military law under this Cowardly
Act who when before the enemy-
(a) leaves the post, position or other place where
it is his duty to be; or
(b) throws away his arms, ammunition or tools,
in such a manner as to show cowardice, or otherwise behaves
in such a manner as to show cowardice, shall be guilty of an
offence against this section.








The Defence Act, 1958


(2) Any person subject to military law under this
Act who when before the enemy induces any other person
subject to service law and before the enemy to commit an
offence under subsection (1) of this section shall be guilty
of an offence against this section.

(3) Any person guilty of an offence against this sec-
tion shall, on conviction by court-martial, be liable to im-
prisonment or any less punishment provided by this Act.

Ofences 29. Any person subject to military law under this
against
morale. Act who-
(a) spreads (whether orally, in writing, by
signal, or otherwise) reports relating to
operations of Her Majesty's forces, of any
forces co-operating therewith, or of any part
of any of those forces, being reports calculated
to create despondency or unnecessary alarm;
or
(b) when before the enemy, uses words calculated
to create despondency or unnecessary alarm,

shall, on conviction by court-martial, be liable to imprison-
ment or any less punishment provided by this Act.

Becoming 30. (1) Any person subject to military law under this
a psoner Act who, through disobedience to orders or wilful neglect of
through his duty, is captured by the enemy shall be guilty of an offence
disobe-
dience against this section.
or wilful
neglect;
and failure (2) Any person subject to military law under this
o reoin Act who, having been captured by the enemy, fails to take,
or prevents or discourages any other person subject to service
law who has been captured by the enemy from taking, any
reasonable steps to rejoin Her Majesty's service which are
available to him or, as the case may be, to that other person
shall be guilty of an offence against this section.

(3) Any person guilty of an offence against this sec-
tion shall, on conviction by court-martial, be liable to im-
prisonment or any less punishment provided by this Act.







The Defence Act, 1958 181

31. (1) Any person subject to military law under this Offences
by or in
Act who while on guard duty- relation to
sentries,
(a) sleeps at his post; or etc.
(b) when not on duty at a post, is asleep at a time
when he is not allowed to be asleep; or
(c) is drunk; or
(d) leaves his post without having been regularly
relieved or otherwise absents himself from
any place where it is his duty to be,

shall be guilty of an offence against this section.

(2) For the purposes of this section a person shall be
treated as being drunk if owing to the influence of alcohol
or any drugs, whether alone or in combination with any other
circumstances, he is unfit to be entrusted with his duty.

(3) Any person subject to military law under this
Act who strikes or otherwise uses force against any person
on guard duty, being a member of any of Her Majesty's
forces or of any forces co-operating therewith, or by the threat
of force compels any such person to let him or any other per-
son pass, shall be guilty of an offence against this section.

(4) Any person guilty of an offence against this sec-
tion shall, on conviction by court-martial, be liable to im-
prisonment or any less punishment provided by this Act:
Provided that if the offence was not committed
on active service he shall not he liable to be imprisoned for
more than two years.

(5) References in this section to a person on guard
duty are references to a person who-
(a) is posted or ordered to patrol or has adopted
the position of sentry at a post or has under-
taken the patrol; or
(b) is a member of a guard or other party mounted
or ordered to patrol,
for the purpose of protecting any persons, premises or place.








The Defence Act, 1958


(6) The foregoing provisions of this section shall
apply in relation to persons posted or ordered to patrol or
who have adopted the position of sentries at a post or have
undertaken the patrol, and to the members of a party
mounted or ordered to patrol, for the purpose of preventing
or controlling access to or egress from any premises or place,
or of regulating traffic by road, by rail or on any inland
navigation, as they apply to persons on guard duty.

Looting. 32. Any person subject to military law under this
Act who-
(a) steals from, or with intent to steal searches,
the person of anyone killed or wounded in
the course of warlike operations; or
(b) steals any property which has been left ex-
posed or unprotected in consequence of war-
like operations; or
(c) takes otherwise than for the public service
any vehicles, equipment or stores abandoned
by the enemy,

shall be guilty of looting and liable, on conviction by court-
martial, to imprisonment or any less punishment provided
by this Act.

Mutiny and Insubordination
Mutiny. 33. (1)Any person subject to military law under this Act
who-
(a) takes part in a mutiny involving the use of
violence or the threat of the use of violence,
or having as its object or one of its objects the
refusal or avoidance of any duty or service
against, or in connexion with operations
against the enemy, or the impeding of the
performance of any such duty or service; or
(b) incites any person subject to service law to
take part in such a mutiny, whether actual
or intended,

shall, on conviction by court-martial, be liable to suffer death
or any other punishment provided by this Act.







The Defence Act, 1958 183

(2) Any person subject to military law under this Act
who, in a case not falling within subsection (1) of this sec-
tion, takes part in a mutiny, or incites any person subject
to service law to take part in a mutiny, whether actual or
intended, shall, on conviction by court-martial, be liable to
imprisonment or any less punishment provided by this Act.

(3) In this Act the expression "mutiny" means a
combination between two or more persons subject to service
law, or between persons two at least of whom are subject to
service law-
(a) to overthrow or resist lawful authority in Her
Majesty's forces or any forces co-operating
therewith or in any part of any of the said
forces; or
(b) to disobey such authority in such circum-
stances as to make the disobedience subver-
sive of discipline, or with the object of avoid-
ing any duty or service against, or in
connection with operations against, the
enemy; or
(c) to impede the performance of any duty or
service in Her Majesty's forces or in any
forces co-operating therewith or in any part
of any of the said forces.

34. Any person subject to military law under this Act Failure to
who, knowing that a mutiny is taking place or is intended- mutiny.
(a) fails to use his utmost endeavours to suppress
or prevent it; or
(b) fails to report without delay that the mutiny
is taking place or is intended,

shall on conviction by court-martial-
(i) if his offence was committed with intent
to assist the enemy, be liable to suffer
death or any other punishment provided
by this Act; and
(ii) in any other case, be liable to imprison-
ment or any less punishment provided by
this Act.







The Defence Act, 1958


Insubor- 35. (1) Any person subject to military law under this Act
dinate
behaviour. Wh--
(a) strikes, or otherwise uses violence to, or offers
violence to, his superior officer; or
(b) uses threatening or insubordinate language to
his superior officer,

shall, on conviction by court-martial, be liable to imprison-
ment or any less punishment provided by this Act:
Provided that he shall not be liable to be
imprisoned for more than two years if the offence was not
committed on active service, and did not involve the striking
or other use of violence, or offering of violence, to a superior
officer exercising authority as such.

(2) In the foregoing provisions of this section the
expression "superior officer", in relation to any person, means
an officer, warrant officer or non-commissioned officer subject
to service law of superior rank, and includes such an officer,
warrant officer or non-commissioned officer of equal rank
but greater seniority while exercising authority as the said
person's superior.

Disobe- 36. (1) Any person subject to military law under this
paricul ar Act who, in such manner as to show a wilful defiance of
orders, authority, disobeys any lawful command given or sent to
him personally shall, on conviction by court-martial, be
liable to imprisonment or any less punishment provided by
this Act.

(2) Any person subject to military law under this
Act who, whether wilfully or through neglect, disobeys any
lawful command shall, on conviction by court-martial, be
liable to imprisonment or any less punishment provided by
this Act:
Provided that if the offence was not committed
on active service he shall not be liable to be imprisoned for
more than two years.

Obstruc- 37. Any person subject to military law under this
tion of Act who-
officers.







The Defence Act, 1958 185

(a) obstructs; or
(b) when called on, refuses to assist,

any person known to him to be a provost officer, or to be a
person (whether subject to military law under this Act or
not) lawfully exercising authority under or on behalf of a
provost. officer, shall, on conviction by court-martial, be
liable to imprisonment for a term not exceeding two years
or any less punishment provided by this Act.

38. (1) Any person subject to military law under this Dsobe-
Act who contravenes or fails to comply with any provision standing
of orders to which this section applies, being a provision orders.
known to him, or which he might reasonably be expected to
know, shall, on conviction by court-martial, be liable to
imprisonment for a term not exceeding two years or any less
punishment provided by this Act.

(2) This section applies to standing orders or other
routine orders of a continuing nature made for any formation
or unit or body of troops, or for any command or other area,
garrison or place, or for any ship, train or aircraft.

Desertion, absence without leave, etc.
39. (1) Any person subject to military law under this Desertion
Act who-
(a) deserts; or
(b) persuades or procures any person subject to
service law to desert,

shall, on conviction by court-martial, be liable to imprison-
ment or any less punishment provided by this Act:
Provided that a person shall not be liable to be
imprisoned for more than two years unless-
(i) if the offence was against paragraph
(a) of this subsection, he was on
active service or under orders for
active service at the time when it
was committed; or







186 The Defence Act, 1958


(ii) if the offence was an offence against
paragraph (b) of this subsection, the
person in relation to whom it was
committed was on active service or
under orders for active service at
that time.

(2) For the purposes of this Act a person deserts
who-
(a) leaves Her Majesty's service or, when it is
his duty to do so, fails to join or rejoin Her
Majesty's service, with (in either case) the
intention, subsisting at the time of the leaving
or failure or formed thereafter, of remaining
permanently absent from his duty; or
(b) being an officer enlists in or enters any of Her
Majesty's forces without having resigned his
commission, or being a soldier enlists in or
enters any of Her Majesty's forces without
having been discharged from his previous
enlistment; or
(c) absents himself without leave with intent to
avoid serving at any place in any of the Terri-
tories (other than the Territory in which he is
serving) or at any place out of the Federation
or to avoid service or any particular service
when before the enemy,

and references in this Act to desertion shall be construed
accordingly.

(3) In addition to or in lieu of any punishment
authorised by subsection (1) of this section, the court-martial
by whom a soldier is convicted of desertion may direct that
the whole or any part of his service previous to the period
as respect which he is convicted of having been a deserter
shall be forfeited:
Provided that this subsection shall not apply to
reservists called out on permanent service.

Absence 40. Any person subject to military law under this
awitht Act who-








The Defence Act, 1958 187

(a) absents himself without leave; or
(b) persuades or procures any person subject to
service law to absent himself without leave,

shall, on conviction by court-martial, be liable to imprison-
ment for a term not exceeding two years or any less punish-
ment provided by this Act.

41. Any person subject to military law under this Assisting
Act who- and
concealing
(a) knowingly assists any person subject to esertion
service law to desert or absent himself absence
without leave; or leave
(b) knowing that any person subject to service
law has deserted or absented himself without
leave, or is attempting to desert or absent
himself without leave, fails to report that
fact without delay, or fails to take any steps
in his power to cause that person to be
apprehended,

shall, on conviction by court-martial, be liable to imprison-
ment for a term not exceeding two years or any less punish-
ment provided by this Act.

42. Any person subject to military law under this Failure to
Act who without reasonable excuse fails to attend for any~perform
military
parade or other military duty of any description or leaves duties.
any such parade or duty as aforesaid before he is permitted
to do so shall, on conviction by court-martial, be liable to
imprisonment for a term not exceeding two years or any
less punishment provided by this Act.

Malingering and drunkenness
43. (1) Any person subject to military law under this Malin-
Act who- gearing.
(a) falsely pretends to be suffering from sickness
or disability; or
(b) injures himself with intent thereby to render
himself unfit for service, or causes himself to
be injured by any person with that intent; or









The Defence Act, 1958


(c) injures another person subject to service law,
at the instance of that person, with intent
thereby to render that person unfit for service;
or
(d) with intent to render or keep himself unfit
for service, does or fails to do anything
(whether at the time of the act or omission
he is in hospital or not) whereby he produces,
or prolongs or aggravates, any sickness or
disability,

shall be guilty of malingering and shall, on conviction by
court-martial, be liable to imprisonment for a term not
exceeding two years or any less punishment provided by this
Act.

(2) In this section the expression "unfit" includes
temporarily unfit.
Drunken- 44. (1) Any person subject to military law under this
Act who is guilty of drunkenness, whether on duty or not,
shall, on conviction by court-martial, be liable to imprison-
ment for a term not exceeding two years or any less punish-
ment provided by this Act:
Provided that where the offence is committed by
a soldier neither on active service nor on duty the sentence
imposed shall not exceed detention for a period of six months.

(2) For the purpose of this section a person is guilty
of drunkenness if owing to the influence of alcohol or any
drug, whether alone or in combination with any other
circumstances, he is unfit to be entrusted with his duty or
with any duty which he may be called upon to perform, or
behaves in a disorderly manner or in any manner likely to
bring discredit on Her Majesty's service.

Offnces relating to property
Offences in 45. Any pr1'.-o11 subject to military law under this
relation to
public and Act who--
service
property. (a) stealu or fraudulently misapplies ;ny public
or service property, or is concerned in or








The Defence Act. 1958 189

connives at the stealing or fraudulent mis-
application of any public or service property;
or
(b) receives any public or service property
knowing or having reason to believe it to have
been stolen or to have been fraudulently
misapplied; or
(c) wilfully damages, or is concerned in the wilful
damage of, any public or service property; or
(d) by wilful neglect causes damage by fire to
any public or service property,
shall, on conviction by court-iimartial, be liable to imprison-
ment or any less punishment provided by this Act.

46. Any person subject to military law under this Offencesin
Act wil-- relation to
property of
(a) steals or fraudulently misapplies any pro- n folres.
perty belonging to a person subject to service
law, or is concerned in or counives at the
stealing or fraudulent misapplication of any
such property; or
(b) receives any such property knowing or
having reason to believe the same to have
been stolen or to have been fraudulently mis-
applied; or
(c) wilfully damages, or is concerned in the wilful
damage of, any property belonging to a
person subject to service law,

shall, on conviction by court-inartial, be liable to imprison-
ment for a term not exceeding two years or any less punish-
ment provided by this Act.

47. Any person subject to military law under this Miscel-
Act who- oaneous
relating to
(a) loses any public or service property of which property.
he has the charge or which has been entrusted
to his care or which forms part of property
of which he has the charge or which has been
entrusted to his care:








The Defence Act, 1958


Provided that it shall be a defence for
any person charged under this paragraph
with losing any property, that he took
reasonable steps for the care and preservation
thereof; or
(b) by negligence damages any public or service
property of which he has the charge or which
has been entrusted to his care or which forms
part of property of which he has the
charge or which has been entrusted to his
care; or
(c) by negligence causes damage by fire to any
public or service property; or
(d) fails to take proper care of any animal or bird
used in the public service which is in his
charge; or
(e) makes away (whether by pawning, selling,
destruction or in any other way) with any
military, naval or airforce decoration granted
to him or any clothing, arms, ammunition or
other equipment issued to him for his use for
military purposes,

shall, on conviction by court-martial, be liable to imprison-
ment for a term not exceeding two years or any less punish-
ment provided by this Act.
Offences relating to billeting and requisitioning of
vehicles
Billeting 48. Any person subject to military law under this
offences. \ ct who-
(a) knowing that no billeting requisition is in
force under Part VII of this Act authorising
him to demand any billets or that he is
otherwise not authorised to demand them,
obtains those billets or orders or procures
another person to obtain them;
(b) takes or agrees to take, or demands, from a
person on whom he or any other person or
any vehicle is or is to be billeted in pursuance
of a billeting requisition under Part VII of








The Defence Act, 1958 191

this Act any money or thing as consideration
for not requiring, or ceasing to require.
accommodation for himself or the said other
person or standing room for the vehicle; or
(c) commits any offence against the person or
property of the occupier of premises in
which he is billeted in pursuance of a billeting
requisition under Part VII of this Act or of
any other person being in those premises, or
against any other property in those premises,
or wilfully or by wilful neglect damages those
premises or any such property as aforesaid,

shall, on conviction by court-martial, be liable to imprison-
ment for a term not exceeding two years or any less punish-
ment provided by this Act.

49. (1) Any person subject to military law under this fences in
relation to
Act who- requisition-
ing of
(a) knowing that no requisitioning order is in vehicles.
force under Part VII of this Act authorising
him to give directions for the provision of
any vehicle, or that he is otherwise not
authorised to give such directions, gives
directions for the provision of the vehicle or
orders or procures another person to give
such directions, or
(b) in purported exercise of powers conferred by
a requisitioning order under Part VII of
this Act takes, or orders or procures any other
person to take, possession of a vehicle
knowing that no requisitioning order is in
force under the said Part VII under which
the taking possession of the vehicle could be
authorised, or that the taking possession
thereof is otherwise not authorized under
such an order, or
(e) takes or agrees to take, or demands, from
any person any money or thing as considera-
tion for directions, or any particular direc-
tions, for the provision of a vehicle not being








192 The Defence Act, 1958

given, or possession of a vehicle not being
taken or not being retained, under a requisi.-
tioning order under Part VII of this Act,

shall, on conviction by court-martial, be liable to imprison-
ment for a term not exceeding two years or any less punish-
ment provided by this Act.

(2) Subsection (1) of this section shall apply in
relation to horses, mules, donkeys and oxen, food, forage
and stores (within the meaning of Part VII of this Act) as
it applies in relation to vehicles.
Flying, etc.. offences
Dangerous 50. Any person subject to military law under this
flying, etc. Act who is guilty of any act or neglect in flying, or in the
use of any aircraft, or in relation to any aircraft or aircraft
material, which causes or is likely to cause loss of life or
bodily injury to any person shall, on conviction by court-
martial, be liable to imprisonment or any less punishment
provided by this Act:
Provided that if the offender has not acted
wilfully or with wilful neglect he shall not be liable to be
imprisoned for more than two years.
Inaccurate 51. Any person subject to military law under this
certifica-
tion of Act who signs any certificate in relation to an aircraft or to
aircraft, aircraft material without ensuring the accuracy of the
etc. certificate shall, on conviction by court-martial, be liable to
imprisonment for a term not exceeding two years or any less
punishment provided by this Act.
Low flying. 52. Any person subject to military law under this
Act, who, being the pilot of one of Her Majesty's aircraft,
flies it at a height less than such height as may be provided
by regulations except-
(a) while taking off or alighting; or
(b) in such other circumstances as may be so
provided,
shall, on conviction by court-martial, be liable to imprison-
ment for a term not exceeding two years or any less punish-
ment provided by this Act,







The Defence Act, 1958


53. Any person subject to military law under this Annoy-
Act who, being the pilot of one of Her Majesty's aircraft, fligb
flies it so as to cause, or to be likely to cause, unnecessary
;mnoyance to any person shall, on conviction by court-
martial, be liable to imprisonment for a term not exceeding
two years or any less punishment provided by this Act.

Offences relating to, and by, persons in custody
54. (1) Any person subject to military law under this Irregular
arrest and
Act who, when another person subject thereto is under confine-
arrest- ment.
(a) unnecessarily delays the taking of such steps
as it is his duty to take for investigating the
allegations against that other person or for
having the allegations against that other
person investigated by his commanding
officer or an appropriate superior authority
or, as the case may be, tried by court-
martial; or
(b) fails to release, or effect the release of, that
other person when it is his duty to do so,

shall be guilty of an offence against this section.

(2) Any person subject to military law under this
Act who, having conunitted a person (hereinafter referred to
as "the prisoner") to the custody of any provost officer or
other officer, or any warrant officer or non-commissioned
officer, fails without reasonable cause to deliver-
(a) at the time of the committal; or
(b) if it is not practicable so to do at the time
of the conunittal, then within twenty-four
hours thereafter,

to the person to whose custody the prisoner was committed
a report in writing signed by himself of the offence which
the prisoner is alleged to have committed, shall be guilty of
an offence against this section.

(3) Where any person (hereinafter referred to as
"the prisoner") is committed to the charge of a person
subject to military law under this Ace who is in command







194 The Defence Act, 1958

of a guard, then if without reasonable cause that person
does not as soon as he is relieved from his guard and any
further duty, or, if he is not sooner relieved, within twenty-
four hours after the committal, give to the officer to whom
it is duty to report-
(a) a written statement containing so far as
known to him, the prisoner's name and alleged
offence and the name and rank or other
description of the officer or other person by
whom the prisoner is alleged to have com-
mitted the offence; and
(b) if he has received it, the report required by
subsection (2) of this section,

he shall be guilty of an offence against this section.

(4) Any person guilty of an offence against this
section shall, on conviction by court-martial, be liable to
imprisonment for a term not exceeding two years or any less
punishment provided by this Act.
Permitting 55. (1) Any person subject to military law under this
escape,
and Act who wilfully allows to escape any person who is com-
unlawful mitted to his charge, or whom it is his duty to guard, shall,
release of
prisoners, on conviction by court-martial be liable to imprisonment or
any less punishment provided by this Act.

(2) Any person subject to military law under this
Act who-
(a) without proper authority releases any person
who is committed to his charge; or
(b) without reasonable excuse allows to escape
any person who is committed to his charge,
or whom it is his duty to guard,

shall, on conviction by court-martial, be liable to imprison-
ment for a term not exceeding two years or any less punish-
ment provided by this Act.

Resistance 56. (1) Any person subject to military law under this
to arrest. Act who, being concerned in any quarrel or disorder, refuses
to obey any officer who orders him into arrest, or strikes or








The Defence Act, 1958


otherwise uses violence to, or offers violence to, any such
officer, shall be guilty of an offence against tLis section
whether or not the officer is his superior officer.

(2) Any person subject to military law under this
Act who strikes or otherwise uses violence to, or offe s
violence to, any person, whether: subject to this Act or not,
whose duty it is to apprehend h-m or in whose custody he is
shall be guilty of an offence against this section.

(3) Any person guilty of an offence against this
section shall, on conviction by court-martial, be liable to
imprisonment for a term not exceeding two years or any
less punishment provided by this Act.

57. Any person subject to military law under this Escape
Act who escapes from arrest, prison or other lawful custody from con-
finement.
(whether military or not) shall, on conviction by court-
martial, be liable to imprisonment for a term not exceeding
two years or any less punishment provided by this Act.

Offences in relation to courts-martial and civil
authorities
58. (1) Any person subject to military law under this offences in
Act who- relation to
courts-
(a) having been duly summoned or ordered to partial.
attend as a witness before a court-martial,
fails to comply with the summons or order; or
(b) refuses to swear an oath when duly required
by a court-martial to do so; or
(c) refuses to produce any document in his
custody or under his control which a court-
martial has lawfully required him to produce;
or
(d) when a witness, refuses to answer any ques-
tion which a court-martial has lawfully
required him to answer; or
(e) wilfully insults any person, being a member
of a court-martial or a witness or any other
person whose duty it is to attend on or before
the court, while that person is acting as a








196 The Defence Act, 1938

member thereof or is so attending, or wilfully
insults any such person as aforesaid while that
person is going to or returning from the pro-
ceedings of the court; or
(f) wilfully interrupts the proceedings of a court-
martial or otherwise misbehaves before the
court,

shall, on conviction by a court-martial, other than the court
in relation to which the offence was committed, be liable to
imprisonment for a term not exceeding two years or any less
punishment provided by this Act.

(2) Notwithstanding anything in subsection (1) of
this section, where an offence against paragraph (e) or
paragraph (f) of that subsection is committed in relation to
any court-martial held in pursuance of this Act that court,
if of opinion that it is expedient that the offender should be
dealt with summarily by the court instead of being brought
to trial before another court-martial, may by order under
the hand of the president order the offender to be imprisoned
for a period not exceeding twenty-one days, or, in the case
of a soldier, either to be imprisoned for such a period or to
undergo detention for such a period.

(3) References in paragraphs (a) to (f) of subsection
(1) of this section to a court-martial shall include references
to a court-martial held in pursuance of service law.

False 59. (1) Any person subject to military law under this
evidence. Act who, having been lawfully sworn as a witness or as an
interpreter in proceedings before a court-martial under
service law or before any board or person having power under
service law to administer oaths, makes a statement material
in those proceedings which he knows to be false or does not
believe to be true shall, on conviction by court-martial, be
liable to imprisonment for a term not exceeding two years
or any less punishment provided by this Act.

(2) A person shall not be liable to be convicted of an
offence against this section solely upon the evidence of one
witness as to the falsity of any statement alleged to be false.








The Defence Act, 1958 197

60. Any person subject to military law under this Obstruc-
Act who at any place in the Commonwealth prevents or olice
obstructs- officer
arresting
(a) the execution by a police officer of a warrant officer or
for the arrest of a person subject to servicelder.
law who has committed or is suspected of
having committed an offence punishable on
conviction by a civil court; or
(b) the arrest of a person subject to service law
by a police officer acting in the exercise of his
powers of arrest without warrant,

shall, on conviction by court-martial, be liable to imprison-
ment for a term not exceeding two years or any less punish-
ment provided by this Act.

Miscellaneous offences
61. (1) Any person subject to military law under this injurious
Act who without authority discloses, whether orally, in disclosures.
writing, by signal or by any other means whatsoever, any
information which is or purports to be information useful
to an enemy shall, on conviction by court-martial, be liable
to imprisonment for a term not exceeding two years or any
less punishment provided by this Act.

(2) In this section the expression "information useful
to an enemy" means information as to any matter such that
information as to it would or might be directly or indirectly
useful to an enemy, and in particular (but without prejudice
to the generality of the foregoing provisions of this
subsection) information as to any matter falling within the
following paragraphs, being a matter such that information
as to it would or might be useful as aforesaid, that is to say-
(a) the number, description, armament, equip-
ment, disposition, movement or condition of
any of Her Majesty's forces or of any forces
co-operating therewith, or any of Her
Majesty's ships or aircraft or of the ships or
aircraft of any such co-operating force; or
(b) any operations or projected operations of any
of such forces, ships or aircraft as aforesaid;
or








The Defence Act, 1958


(c) any code, cipher, call sign, password or
countersign; or
.(d) any measures for the defence or fortification
of any place on behalf of Her Majesty; or
(e) the number, description or location of any
prisoners of war; or
(f) munitions of war.

Making of 62. Any person who, when before a recruiting officer
ents tateon for the purpose of being attested in pursuance of Part III of
enlistment, this Act has knowingly made a false answer to any question
contained in the attestation paper and put to him by or by
the direction of the recruiting officer shall if he has since
become and remains subject to military law under this Act
be liable, on conviction by court-martial, to imprisonment for
a term not exceeding three months or to any less punishment
provided by this Act.

Making of 63. Any person subject to military law under this Act
false who-
documents.
(a) makes, signs or makes an entry in any service
report, return, pay list or certificate or other
service document, being a document or entry
which is to his knowledge false in a material
particular; or
(b) alters any service report, return, pay list or
certificate or other service document, or alters
any entry in such a document, so that the
document or entry is to his knowledge false
in a n.aterial particular, or suppresses, defaces
or makes away with any such document or
entry which it is his duty to preserve or pro-
duce; or
(c) with intent to defraud, fails to make an entry
in any such document; or
(d) aids. abets, commands, counsels, procures or
connives at the commission by another person
subject to service law of an offence against
this section or the corresponding section of
the appropriate service law, as the case may








The Defence Act, 1958 199

be (whether or not he knows the nature of the
document in relation to which that offence
will be committed),

shall, on conviction by court-martial, be liable to imprison-
ment for a term not exceeding two years or any less punish-
ment provided by this Act.

64. Every officer subject to military law under this Scandalous
conduct of
Act who behaves in a scandalous manner, unbecoming the officer.
character of an officer and a gentleman, shall, on conviction
by court-martial, be cashiered.

65. If- Ill-treat-
ment of
(a) any officer subject to military law under this men ofr
Act strikes or otherwise ill-treats any officer inferior
subject to service law of inferior rank or less
seniority or any soldier subject to service law;
or
(b) any warrant officer or non-commissioned
officer subject to military law under this Act
strikes or otherwise ill-treats any person
subject to service law, being a warrant
officer or non-commissioned officer of inferior
rank or less seniority or a soldier,

he shall, on conviction by court-martial, be liable to imprison-
ment for a term not exceeding two years or any less punish-
ment provided by this Act.

66. Any person subject to military law under this Act Disgraceful
who is guilty of disgraceful conduct of a cruel, indecent orconduct.
unnatural kind shall, on conviction by court-martial, be liable
to imprisonment for a term not exceeding two years or any
less punishment provided by this Act.

67. Any person subject to military law under this Act False
who-- accusation.
who-
(a) makes an accusation against any officer or
soldier subject to service law, which he knows
to be false or does not believe to be true; or








The Defence Act, 1958


(b) in making a complaint where he thinks him-
self wronged, makes a statement affecting the
character of an officer or soldier subject to
service law, which he knows to be false or does
not believe to be true or wilfully suppresses
any material facts.

shall, on conviction by court-martial, be liable to imprison-
ment for a term not exceeding two years or any less punish-
ment provided by this Act.

to commit 68. Any person subject to military law under this Act
military who attempts to commit an offence against any of the fore-
offences. going provisions of this Part of this Act shall, on conviction
by court-martial, be liable to the like punishment as for that
offence:
Provided that if the offence is one punishable by
death, he shall not be liable to any greater punishment than
imprisonment.

Conduct to 69. Any person subject to military law under this Act
eudiace of who is guilty of any conduct or neglect to the prejudice of
discipline, good order and military discipline shall, on conviction by
court-martial, be liable to imprisonment for a term not
exceeding two years or any less punishment provided by this
Act.

Civil ofences
Civiles. 70. (1) Any person subject to military law under this Act
who commits a civil offence, whether in the Federation or
elsewhere, shall be guilty of an offence against this section.

(2) In this Act the expression "civil offence" means-
(a) in relation to an act committed within the
Federation, any act punishable by the law of
the Territory where the person was at the
time of the alleged act; and
(b) in relation to an act committed without the
Federation any act, which if committed in
England, would be punishable by the law of
England,








The Defence Act, 1958 201

and in this Act the expression "the corresponding civil
offence" means the civil offence the commission of which
constitutes the offence against this section.
(3) A person convicted by court-martial of an offence
against this section shall-
(a) if the corresponding civil offence is treason
or murder, be liable to suffer death; and
(b) in any other case, be liable to suffer any
punishment or punishments which a civil
court in the Territory or, as the case may be,
England could award for the corresponding
civil offence, being a punishment or punish-
ments provided by this Act, or such punish-
ment, less than the maximum punishment
which a civil court could so award, as is so
provided:
Provided that where a civil court could not so
award imprisonment, a person so convicted shall be liable to
suffer such punishment, less than cashiering in the case of
an officer, or discharge with ignominy in the case of a soldier.
as is so provided.
(4) A person shall not be charged with an offence
against this section committed within the Federation if the
corresponding civil offence is treason, murder, manslaughter,
treason-felony or rape.
(5) Where the corresponding civil offence is murder
or manslaughter, an offence against this section shall be
deemed, for the purposes of subsection (4) of this section,
to have been committed at the place of the commission of the
act or occurrence of the neglect which caused the death,
irrespective of the place of the death.

Punishmlents
71. (1) The punishments which may be awarded to an Punish-
ment of
officer by sentence of a court-martial under this Act are, oers.
subject to the limitations hereinafter provided on the powers
of certain courts-martial, those set out in the following scale;
and in relation to an officer references in this Act to punish-
ments provided by this Act are references to those punish-
ments.







202 The Defence Act. 1958

(2) The said scale is-
(a) death;
(b) imprisonment;
(c) cashiering;
(d) dismissal from Her Majesty's service;
(e) fine of a sum not exceeding the equivalent of
ninety days pay;
(f) severe reprimand or reprimand;
(g) where the offence has occasioned any expense,
loss or damage, stoppages.

(3) For the purposes of this Part of this Act a punish-
ment specified in any paragraph of the said scale shall be
treated as less than the punishments specified in the preced-
ing paragraphs, and greater than those specified in the
following paragraphs, of the scale.

(4) Save as expressly provided in this Act, not more
than one punishment shall be awarded by a court-martial for
one offence.

(5) Stoppages may be awarded by a court-martial
either in addition to or without any other punishment.

(6) A severe reprimand or reprimand may be awarded
by a court-martial in addition to a fine imposed under para-
graph (e) of subsection (2) of this section.

(7) Where an officer is sentenced by a court-martial
to imprisonment, he shall also be sentenced to be cashiered;

Provided that if the court-martial fails to sentence
him to be cashiered, the sentence of imprisonment shall not
be invalid but shall be deemed to include a sentence of
cashiering.

Punish- 72. (1) The punishments which may be awarded to a
ment of soldier by sentence ('f a court-martial under this Act are,
soldiers.
subject to the limitations he:einafter provided on the powers
of courts-martial, tho, e set out in the following scale; and in
relation to a soldier .:efererces in this Act to punishments
provided by this Act are references to those punishments.







The Defence Act, 1958


(2) The said scale is-
(a) death;
(b) imprisonment;
(c) discharge with ignominy from Her Majesty's
service;
(d) in the case of a warrant officer, dismissal from
Her Majesty's service;
(e) detention for a term not exceeding two years;
(f) in the case of a warrant officer or non-com-
missioned officer, reduction to the ranks or
any less reduction in rank;
(g) fine of a sum not exceeding the equivalent of
ninety days pay;
(h) where the offence is desertion, forfeiture of
service;
(i) in the case of a warrant officer or non-com-
missioned officer, severe reprimand or repri-
mand;
(j) where the offence has occasioned any expense,
loss or damage, stoppages.

(3) For the purposes of this Part of this Act a punish-
ment specified in any paragraph of the said scale shall be
treated as less than the punishments specified in the preced-
ing paragraphs, and greater than those specified in the
following paragraphs, of the scale:
Provided that detention shall not be deemed to
be a less punishment than imprisonment if the term of deten-
tion is longer than the term of imprisonment.

(4) Save as expressly provided in this Act, not more
than one punishment shall be awarded by a court-martial for
one offence.

.(5) A soldier sentenced by a court-martial to imprison-
mnent may in addition thereto be sentenced to be discharged
with ignominy from Her Majesty's service, and a warrant







204 The Defence Act, 1958

officer sentenced by a court-martial to imprisonment may
in addition thereto be sentenced to dismissal from Her
Majesty's serivce.

(6) Where a warrant officer or non-commissioned
officer is sentenced by a court-martial to imprisonment or
detention, he shall also be sentenced to be reduced to the
ranks:
Provided that if the court-martial fail to sentence
him to be so reduced, the sentence shall not be invalid but
shall be deemed to include a sentence of reduction to the
ranks.

(7) In the case of a warrant officer or non-commis-
sioned officer a severe reprimand or reprimand may be
awarded by a court-martial in addition to a fine imposed
under paragraph (g) of subsection (2) of this section.

(8) Stoppages may be awarded by a court-martial
either in addition to or without any other punishment.

(9) Where an offender has been sentenced by a court-
martial to detention, then if he is subsequently sentenced by
a court-martial to imprisonment any part of the sentence of
the detention which has not been served shall thereupon be
remitted by virtue of this subsection.

(10) Without prejudice to the validity of any award,
an offender shall not be kept continuously in detention under
this Act for more than two years.

Field 73. (1) In relation to an offence committed by a soldier
unenth on active service, the scale set out in subsection (2) of section
72 of this Act shall have effect as if after paragraph (e)
thereof there were inserted the following paragraph-
"(ee) field punishment for a period not exceed-
ing ninety days;",
and subsection (6) of section 72 shall apply to field punish-
ment as it applies to imprisonment or detention.

(2) Field punishment shall consist of such duties or
drills, in addition to those which the offender might be
required to perform if he were not undergoing punishment,








The Defence Act, 1958 205

and such loss of privileges, as may be provided by and under
rules made under this Part of this Act, and may include
confinement in such place and manner as may be so provided
and such personal restraint as may be necessary to prevent
the escape of the offender and as may be so provided.

74. Where in this Act it is provided that any person Imprison-
subject to military law under this Act is liable on conviction
by court-martial to imprisonment and no term or maximum
term of imprisonment is specified then such person shall be
liable to imprisonment for any term.

Arrest
75. (1) Any person subject to military law under this Power to
Act found committing an offence against any provision of offenders.
this Act, or alleged to have committed or reasonably sus-
pected of having committed any such offence, may be
arrested in accordance with the following provisions of this
section.

(2) An officer may be arrested by an officer subject to
service law of superior rank, or, if engaged in a quarrel or
disorder, by such an officer of any rank.

(3) A soldier may be arrested by any officer, warrant
officer or non-commissioned officer subject to service law:
Provided that a person shall not be arrested by
virtue of this subsection except by a person of superior rank.

(4) A provost officer, or any officer, warrant officer,
non-commissioned officer or rating subject to service law
lawfully exercising authority under a provost officer or on
his behalf, may arrest any officer or soldier:
Provided that an officer shall not be arrested by
virtue of this subsection except on the order of another
officer.

(5) The power of arrest given to any person by this
section may be exercised either personally or by ordering
into arrest the person to be arrested or by giving orders for
that person's arrest.








The Defence Act, 1958


Provisions 76. (1) The allegations against any person subject to
for avoid-
ing delay military law under this Act who is under arrest shall be duly
after investigated without unnecessary delay, and as soon as may
arrest. be either proceedings shall be taken for punishing his offence
or he shall be released from arrest.
(2) Wherever any person subject to military law
under this Act, having been taken into military custody,
remains under arrest for a longer period than eight days
without a court-martial for his trial being assembled, a
special report on the necessity for further delay shall be made
by his commanding officer to the prescribed authority in the
prescribed manner, and a similar report shall be made to the
like authority and in the like manner every eight days until
a court-martial is assembled or the offence is dealt with
summarily or he is released from arrest:
Provided that in the case of a person on active
service compliance with this subsection shall be excused in
so far as it is not reasonably practicable having regard to the
exigencies of military operations.
(3) For the purposes of subsection (1) of section 54
of this Act the question whether there has been unnecessary
delay in the taking of any steps for the investigation of
allegations against a person under arrest shall be determined
without regard to the provisions of subsection (2) of this
section.

Investigation of, and summary dealing with, charges
Investiga- 77. Before an allegation against a person subject to
tion of military law under this Act (hereinafter referred to as "the
charges by
coamand- accused") that he has committed an offence against any
ing officer. provision of this Part of this Act is further proceeded with,
the allegation shall be reported, in the form of a charge, to
the accused's commanding officer and the commanding
officer shall investigate the charge in the prescribed manner.

Charges to 78.(1) After investigation, a charge against an officer
be dealt
witha m- below the rank of lieutenant-colonel or against a warrant
marily or officer may, if an authority has power under the following
by court-
martial. provisions of this Part of this Act to deal with it summarily,
be so dealt with by that authority (in this Act referred to
as "the appropriate superior authority") in accordance with
those provisions.







The Defence Act, 1958 207

(2) After investigation, a charge against a non-
commissioned officer or soldier may be dealt with summarily
by his commanding officer, subject to and in accordance with
the following provisions of this Part of this Act.

(3) Any charge not dealt with summarily as aforesaid
shall after investigation be remanded for trial by court-
martial.

(4) Notwithstanding anything in the foregoing
provisions of this section, where-
(a) the commanding officer has investigated a
charge against an officer or warrant officer;
or
(b) the commanding officer has investigated a
charge against a non-commissioned officer or
soldier, which is not one which can be dealt
with summarily,

the commanding officer may dismiss the charge if he is of
opinion that it ought not to be further proceeded with.

(5) References in this Act to dealing summarily with
a charge are references to the taking by the appropriate
superior authority or the commanding officer of the accused,
as the case may require, of the following action, that is to
say, determining whether the accused is guilty, dismissing
the charge or recording a finding of guilty accordingly, and
awarding punishment.

79. (1) The following provisions of this section shall have Further
effect where the commanding officer has investigated a charge proceed-
against a non-commissioned officer or soldier. charges
against
(2) If-- andC.O
soldiers.
(a) the charge is not one which can be dealt with
summarily and the commanding officer has not
dismissed it; or
(b) the charge is one which can be dealt with
summarily but the commanding officer is of
opinion that it should not be so dealt with,







The Defence Act, 1958


he shall take the prescribed steps with a view to the charge
being tried by court-martial.

(3) Otherwise the commanding officer shall proceed to
deal with the charge summarily; and if he records a finding of
guilty he may award one or more of the following punish-
ments, that is to say-
(a) if the accused is a non-commissioned officer-
(i) severe reprimand or reprimand;
(ii) where the offence has occasioned any
expense, loss or damage, stoppages;
(iii) admonition;
(b) if the accused is a soldier-
(i) detention for a period not exceeding
twenty-eight days or, if the accused is on
active service, field punishment for a
periodnot exceeding twenty-eight days;
(ii) a fine of a sum not exceeding the
equivalent of twenty-one days pay;
(iii) where the offence has occasioned any
expense, loss or damage, stoppages;
(iv) confinement to barracks for a period
beginning with the day of the sentence
and not exceeding twenty-eight days;
(v) extra guards or piquets;
(vi) admonition.

(4) Where the accused is an acting warrant officer or
acting non-commissioned officer, and the commanding officer
finds him guilty, the commanding officer may, if he awards
no other punishment or no other punishment except
stoppages, order the accused to revert to his permanent rank.

(5) Notwithstanding anything in subsection (3) of
this section, where the commanding officer has determined
that the accused is guilty and if the charge is dealt with
summarily will award punishment other than severe
reprimand, reprimand, admonition, confinement to barracks,
extra guards or piquets or where a finding of guilty
(whatever the punishment awarded) will involve a forfeiture
of pay, the commanding officer shall not record a finding








The Defence Act, 1958


until after affording the accused an opportunity of electing
to be tried by court-martial; and if the accused so elects and
does not subsequently in accordance with regulations
withdraw his election, the commanding officer shall not
record a finding but shall take the prescribed steps with a
view to the charge being tried by court-martial.

(6) Where a charge is one which can be dealt with
summarily, but the commanding officer has taken steps with
a view to its being tried by court-martial, any higher
authority to whom the charge is referred may refer the
charge back to the commanding officer to be dealt with
summarily; and on any such reference subsections (3), (4)
and (5) of this section shall apply as if the commanding
officer had originally been of opinion that the charge should
be dealt with summarily:
Provided that a charge shall not be referred back
where the accused has elected to be tried by court-martial and
has not withdrawn his election.

80. (1) After investigating a charge against an officer or Further
warrant officer, the commanding officer shall, unless he has ings o
dismissed the charge, or the case is one where he has power, charges
S against
and proposes, to direct trial by field court-martial, submit ffiers and
it in the prescribed manner to a higher authority and warrant
thereupon it shall be determined by such authority how theofficers.
charge is to be proceeded with in accordance with subsections
(2) and (3) of this section.

(2) If the charge is one which can be dealt with
summarily, it may be referred to the appropriate superior
authority.

(3) If the charge is not so referred, the prescribed
steps shall be taken with a view to its being tried by
court-martial.

(4) Where the charge is referred to the appropriate
superior authority, that authority shall investigate the charge
in the prescribed manner and determine whether the accused
is guilty of the charge and accordingly dismiss the charge or
record a finding of guilty:








210 The Defence Act, 1958

Provided that if in the course of investigating the
charge the authority determines that it is desirable that the
charge should be tried by court-martial, the prescribed steps
shall be taken with a view to its being so tried.

(5) If the appropriate superior authority records a
finding of guilty, the authority may award one or more of
the following punishments, that is to say-

(a) a fine of a sum not exceeding the equivalent
of twenty-one days pay;
(b) severe reprimand or reprimand;
(c) where the offence has occasioned any expense,
loss or damage, stoppages.

(6) Notwithstanding anything in subsection (4) of
this section, where the appropriate superior authority has
determined that the accused is guilty and if the charge is dealt
with summarily will award a fine under paragraph (a) of sub-
section (5) of this section or stoppages, or where a finding
of guilty will involve a forfeiture of pay, the authority shall
not record a finding until after affording the accused an
opportunity of electing to be tried by court-martial; and if
the accused so elects the authority shall not record a finding
but shall take the prescribed steps with a view to the charge
being tried by court-martial.
Dismissal 81. (1) Notwithstanding anything in sections 79 and 80
of charges
referred to of this Act, where a charge-
higher
authority. (a) has been referred to higher authority with a
view to its being tried by court-martial, or
(b) has been submitted to higher authority for
determination how it is to be proceeded with,
that authority may, subject to the provisions of this section
refer the charge back to the commanding officer of the
accused with a direction that it shall be dismissed, and in any
such case the commanding officer shall dismiss the charge.

(2) In a case falling within paragraph (a) of sub-
.section (1) of this section, a charge shall not be referred back
where the accused has elected to be tried by court-martial
and has not withdrawn his election.







The Defence Act, 1958


(3) The reference back of a charge in pursuance of
this section shall be without prejudice to the preferring of
another charge if the higher authority has so directed or
the commanding officer thinks fit.

82. (1) In this Act the expression "commanding officer", officers
who are to
in relation to a person charged with an offence, means the act as com-
officer for the time being commanding the unit to which theoffics nd
person belongs or is attached. appro-
priate
superior
(2) The following persons may act as appropriate authorities.
superior authority in relation to a person charged with an
offence, that is to say any general officer, flag officer, air
officer or brigadier having power to convene ordinary courts-
martial.

(3) Rules made for the purposes of this section may
confer on officers, or any class of officers, who by or under
the rules are authorised to exercise the functions of com-
manding officer, power to delegate those functions, in such
cases and to such extent as may be specified in the rules, to
officers of a class so specified.

83. (1) The charges which may not be dealt with sum- Limitation
marily by a commanding officer, the charges which may not o poers
be dealt with summarily by an appropriate superior authority mary
and the charges which may not be dealt with summarily by with
a commanding officer or an appropriate superior authority charges.
except with the permission of an officer authorised to con-
vene a court-martial for the trial of the accused, shall be such
as may be specified by or under rules. Any charge not so
specified, and, upon obtaining such permission as aforesaid,
any charge which may be dealt with summarily with such
permission, may be dealt with summarily by a commanding
officer or an appropriate superior authority, as the case may
be.

(2) In such cases as may be specified in that behalf
by or under such rules, the powers of a commanding officer
or appropriate superior authority to award punishment shall
be subject to such limitations as may be so specified.







212 The Defence Act, 1958

Courts-martial: general provisions

nd powers 84. Subject to the provisions of this Act, a court-
of, ordi- martial under this Act (hereinafter referred to as an
nary court-
martial. "ordinary court-martial") shall have power to try any person
subject to military law under this Act for any offence which
under this Act is triable by court-martial and to award for
any such offence any punishment authorised by this Act for
that offence.

rial byrs 85. (1) Where an officer commanding a body of troops on
of, field active service-
court-
martial. (a) being an officer (whether military, naval or
air force) to whom under subsection (1) of
section 80 of this Act a charge has been sub-
mitted for determining how it is to be dealt
with; or
(b) being the accused's commanding officer who
has investigated a charge which cannot be
dealt with summarily or which in his opinion
ought not to be so dealt with; or
(c) being the accused's commanding officer or the
appropriate superior authority who has
investigated a charge on which the accused
has elected to be tried by court-martial,

is of opinion that it is not possible without serious detriment
to the public service that the charge should be tried by an
ordinary court-martial, the officer may (whether or not he is
authorised to convene ordinary courts-martial) direct that
the charge shall be tried by a field court-martial.

(2) A field court-martial shall have the powers of an
ordinary court-martial, except that where the court consists
of less than three officers the sentence shall not exceed im-
prisonment for a term of two years.

Officers 86. (1) An ordinary court-martial may be convened by the
having
pwers to Commander or any officer authorised to convene ordinary
convene courts-martial by the Governor-General after consultation
martial, with such Minister as he may determine.








The Defence Act, 1958


(2) A field court-martial may be convened by the
officer who directed that the charge should be tried by field
court-martial.

(3) Any authorisation under this section to convene
ordinary courts-martial
(a) may he made subject to restrictions, reserva-
tions, exceptions or conditions;
(b) may be addressed to officers by name or by
designation of their offices, and may be issued
or given to a named or designated officer, to
a named or designated officer and to the person
for the time being performing the duties of
his office, to a named or designated officer and
his successors in that office or to a named or
designated officer and such person and his
successors;
(c) may be varied or may be revoked either
wholly or in part by the Governor-General
after consultation with such Minister as he
may determine.

87. (1) An ordinary court-martial shall consist of the Cnstitu-
president and not less than two other officers: ordinary
courts-
Provided that an ordinary court-martial shallmartial.
consist of five members if
(a) an officer is to be tried; or
(b) the only punishment or the maximum punish-
ment which can be awarded in respect of a
charge before the court is death.

(2) Save as hereinafter provided, an officer shall not
be appointed a member of an ordinary court-martial unless
he belongs to Her Majesty's military forces, is subject to
service law and has been an officer in any of the armed forces
of the Crown for a period of not less than two years or for
periods amounting in the aggregate to not less than two
years.

(3) Not less than two of the members of an ordinary
court-martial shall be of a rank not below that of captain.







The Defence Act, 1958


(4) The president of an ordinary court-martial shall
be appointed by order of the convening officer and shall not
be under the rank of field officer unless in the opinion of the
convening officer a field officer having suitable qualifications
is not, with due regard to the public service, available; and
in any event the president of an ordinary court-martial shall
not be under the rank of a captain.

(5) The members of an ordinary court-martial, other
than the president, shall be appointed by order of the con-
vening officer or in such other manner as may be prescribed.

(6) An officer under the rank of captain shall not be
a member of an ordinary court-martial for the trial of an
officer above that rank.

Constitu- 88. (1) A field court-martial shall consist of the president
tion of
field of and not less than two other officers, or, if the convening officer
courts- is of opinion that three officers having suitable qualifications
martial. are not available without serious detriment to the public
service, shall consist of the president and one other officer.

(2) Save as hereinafter provided, the members of a
field court-martial shall be persons belonging to Her
Majesty's military forces and subject to service law.

(3) The president of a field court-martial shall be an
officer appointed by the convening officer and shall not be
under the rank of captain.

(4) The members of a field court-martial, other than
the president, shall be appointed by order of the convening
officer or in such other manner as may be prescribed.
Supple- 89. (1) The officer who convenes a court-martial shall not
provisions be a member of that court-martial:
as to con-
stitution of Provided that if in the case of a field court-martial
-ourts- it is not practicable in the opinion of the convening officer
to appoint another officer as president, he may himself be
president of the court-martial.

(2) An officer who, at any time between the date on
which the accused was charged with the offence and the date
of the trial, has been the commanding officer of the accused,








The Defence Act, 1958


and any other officer who has investigated the charge against
the accused, or who under service law has held, or has acted
as one of the persons holding, an inquiry into matters relating
to the subject matter of the charge against the accused, shall
not sit as a member of an ordinary court-martial or act as
judge advocate at such a court-martial.

(3) If any court-martial is required to be convened
at any place where in the opinion of the convening officer
the necessary number of military officers having suitable
qualifications is not available to form the court, and cannot
be made available with due regard to the public service, the
convening officer may, with the consent of the proper naval
or air force authority, appoint any naval or air force officer
as president in lieu of a military officer or as any other mem-
ber of the court in lieu of or in addition to a military officer
or military officers:

Provided that no naval or air force officer shall be
qualified to act in relation to a court-martial unless he is of
corresponding rank to that which would have been require
in the case of a military officer and has been an officer in any
of the armed forces of the Crown for the like period or periods
as would have been so required.

(4) Where-

(a) the officer convening an ordinary court-
martial appoints a captain to be president,
being of opinion that a field officer having
suitable qualifications is not with due regard
to the public service available:

(b) an officer directs that an offender shall be tried
by a field court-martial, being of opinion that
it is not possible without serious detriment
to the public service that the offender should
be tried by an ordinary court-martial, or the
officer convening a field court-martial appoints
two officers only to be members of the court,
being of opinion that three officers having
suitable qualifications are not without serious
detriment to the public service available, or








216 The Defence Act, 1958


appoints himself to be president, being of
opinion that it is not practicable to appoint
another officer as president; or
(c) the officer convening any court-martial
appoints an officer not being a military officer
as president or any other member of the
court, being of opinion that the necessary
number of military officers having suitable
qualifications is not available to form the
court and cannot be made available with due
regard to the public service,
the order convening the court-martial shall contain a
statement of such opinion, and that statement shall be
conclusive.

(5) In this section the expression "military officer"
means any officer belonging to Her Majesty's military forces
and subject to service law.

Place for 90. (1) Subject to the provisions of this section, a court-
sitting of
courts- martial shall sit at such place (whether within or without
martial and the Federation) as may be specified in the order convening
adjourn-
ment to the court; and the convening officer may convene it to sit at
other a place outside the limits of his command.
places.
(2) A court-martial sitting at any place shall, if the
convening officer directs it to sit at some other place, and
may without any such direction if it appears to the court
requisite in the interests of justice to sit at some other place,
adjourn for the purpose of sitting at that other place.

Courts-martial: Provisions relating to trial

Challenges 91. (1) An accused about to be tried by any court-
martial shall be entitled to object, on any reasonable
grounds, to any member of the court, whether appointed
originally or in lieu of another officer.
(2) For the purpose of enabling the accused to avail
himself of the right conferred by subsection (1) of this
section the names of the members of the court shall be read
over in the presence of the accused before they are sworn,
and he shall be asked whether he objects to any of those
officers.







The Defence Act, 1958 217

(3) Every objection made by an accused to any
officer shall be considered by the other officers appointed
members of the court.

(4) If objection is made to the president and not less
than one-third of the other members of the court allow it,
the court shall adjourn and the convening officer shall
appoint another president.

(5) If objection is made to a member of the court
other than the president and not less than one-half of the
members entitled to vote allow it, the member objected to
shall retire and the vacancy may, and if otherwise the
number of members would be reduced below the legal
minimum shall, be filled in the prescribed manner by another
officer.

92. (1) An oath shall be administered to every member dinis-o
of a court-martial and to any person in attendance on a oaths.
court-martial as judge advocate, officer under instruction,
shorthand writer or interpreter.

(2) Every witness before a court-martial shall be
examined on oath:
Provided that where any child of tender years
called as a witness does not in the opinion of the court
understand the nature of an oath, his evidence may be
received, though not given upon oath, if in the opinion of
the court he is possessed of sufficient intelligence to justify
the reception of the evidence and understands the duty of
speaking the truth, so however that, where the evidence is
given on behalf of the prosecution, the accused shall not be
liable to be convicted upon such evidence alone unless it is
corroborated by some other material evidence in support
thereof implicating the accused.

(3) An oath required to be administered under this
section shall be in the prescribed form and shall be
administered at the prescribed time by the prescribed person
and in the prescribed manner.

93. (1) Subject to the provisions of this section, a court- Courts-
martial shall sit in open court and in the presence of the martial to
acusit in open
accused, court.







The Defence Act, 1958


(2) Nothing in subsection (1) of this section shall
affect the power of a court-martial to sit in camera on the
ground that it is necessary or expedient in the interests of
the administration of justice to do so; and without prejudice
to that power a cour-martial may order that, subject to any
exceptions the court may specify, the public shall be
excluded from all or any part of the proceedings of the court
if it appears to the court that any evidence to be given or
statement to be made in the course of the proceedings or
that part, as the case may be, might otherwise lead to the
disclosure of any information which would or might be
directly or indirectly useful to an enemy.

(3) A court-martial shall sit in closed court while
deliberating on their finding or sentence on any charge.

(4) A court-martial may sit in closed court on any
other deliberation amongst the members.

(5) Where a court-martial sits in closed court no
person shall be present except the members of the court and
such other persons as may be prescribed.
Dissolution 94. (1) Where, whether before or after the commence-
martial. ment .of the trial, it appears to the convening officer
necessary or expedient in the interests of the administration
of justice that a court-martial should be dissolved, the
convening officer may by order dissolve the court-martial.

(2) Without prejudice to the generality of subsection
(1) of this section, if after the commencement of the trial a
court-martial is, by reason of the death of one of the members
or for any other reason, reduced below the legal minimum,
it shall be dissolved.

(3) If after the commencement of the trial the
president dies or is otherwise unable to attend and the court
is not reduced below the legal minimum, then-
(a) if the senior member of the court is of the
rank of captain or corresponding rank or is
of higher rank. the convening officer may
appoint him president and the trial shall
proceed accordingly: but








The Defence Act, 1958


(b) if he is not, the court shall be dissolved.

(4) Without prejudice to the generality of subsection
(1) of this section, if after the commencement of the trial
it is represented to the convening officer that owing to the
sickness or other incapacity of the accused it is impracticable
having regard to all the circumstances to continue the trial
within a reasonable time, the convening officer may dissolve
the court.

(5) Where a court-martial is dissolved under the
foregoing provisions of this section the accused may be tried
by another court-martial.

95. (1) Subject to the provisions of this section, everyDecisions
of courts-
question to be determined on a trial by court-martial shall be martial.
determined by a majority of the votes of the members of the
court.

(2) In the case of an equality of votes on the finding,
the court shall acquit the accused.

(3) A finding of guilty where the only punishment
which the court can award is death shall not have effect
unless it is reached with the concurrence of all members of
the court; and where on such a finding being come to by a
majority of the members there is no such concurrence, the
court shall be dissolved and the accused may be tried by
another court.

(4) Where the accused is found guilty and the court
has power to sentence him either to death or to some less
punishment, sentence of death shall not be passed without
the concurrence of all members of the court.

(5) In the case of an equality of votes on the
sentence, or on any question arising after the commencement
of a trial, except the finding, the president shall have a
second or casting vote.

96. (1) Without prejudice to the provisions of section 93 Finding
of this Act, the finding of a court-martial on each charge sentence.
shall be announced in open court.








220 The Defence Act, 1958

(2) Any finding of guilty shall be, and be announced
as being, subject to confirmation.

(3) Any sentence of a court-martial, together with
any recommendation to mercy, shall be announced in open
court, and a sentence of a court-martial shall be, and be
announced as being, subject to confirmation.

Power to 97. (1) An accused charged before a court-martial with
convict of
offence an offence under this Act, may, on failure of proof of the
other than offence having been committed under circumstances
that
charged, involving a higher degree of punishment, be found guilty of
the offence as having been committed under circumstances
involving a less degree of punishment.

(2) An accused charged before a court-martial with
any offence may be found guilty of attempting to commit
that offence.

(3) An accused charged before a court-martial with
attempting to commit an offence may be convicted on that
charge notwithstanding that it is proved that he actually
committed the offence.

(4) Where an accused is charged before a court-
martial under section 70 of this Act in respect of attempting
to commit a civil offence, he may be convicted on that charge
notwithstanding that it is proved that he actually committed
the civil offence.

(5) Where an accused is charged before a court-
martial with an offence against section 70 of this Act, and
the corresponding civil offence is one in proceedings for
which, if he had been tried by a civil court for committing
the offence in the Territory where he was at the time of the
alleged act, or in the case of an act committed outside the
Federation, if he had been tried by a civil court in England,
he might have been found guilty of another civil offence,
then if the court finds that he has committed that other
civil offence he may be convicted of an offence against section
70 of this Act in respect of the commission of that other
civil offence.







The Defence Act, 1958 221

(6) An accused charged before a court-martial with an
offence specified in the first column of the Second Schedule
to this Act may be found guilty of an offence specified in
relation thereto in the second column of that Schedule.

98. (1) Subject to the provisions of this Act the rules of Rules of
evidence to be observed in proceedings before courts-martialevidence.
shall be the same as those observed in civil courts in England,
and no person shall be required in proceedings before a
court-martial to answer any question or to produce any
document which he could not be required to answer or
produce in similar proceedings before a civil court in
England.

(2) Notwithstanding anything in subsection (1) of
this section, a statutory declaration shall, in a trial by court-
martial, be admissible as evidence of the facts stated in the
declaration in a case where, and to the extent which, oral
evidence to the like effect would be admissible in that trial:
Provided that a statutory declaration shall not be
admitted in evidence in any such trial on behalf either of the
prosecution or of the defence-
(a) where the declaration is put forward on
behalf of the prosecution, unless a copy of
the declaration has, not less than seven days
before the commencement of the trial, been
served on the accused; or
(b) where the declaration is put forward on
behalf of the defence, unless a copy of the
declaration has, not less than seven days
before the commencement of the trial or such
shorter time as the court-martial may allow,
been served on the commanding officer of the
accused; or
(c) in any case, if, not later than three days
before the commencement of the trial or
within such further time as the court-martial
may in special circumstances allow, the
accused or, as the case may be, the
commanding officer of the accused serves a
notice in the prescribed form on the








222 The Defence Act, 1958

commanding officer or accused requiring that
oral evidence shall be given in lieu of the
declaration; or
(d) in any case, if the court-martial is of opinion
that it is desirable in the interests of justice
that oral evidence should be given in lieu of
the declaration and declares that it is of that
opinion.
(3) A court-martial shall take judicial notice of all
matters of notoriety, including all matters within the general
service knowledge of the court, and of all other matters of
which judicial notice would be taken in a civil court in
England.

Privilege 99. A witness before a court-martial or any other
oeit-and person whose duty it is to attend on or before the court shall
others at be entitled to the same immunities and privileges as a
ourtai. witness before the High Court of Justice in England.
Offences 100. (1) Where in the Federation any person other than
by civilians
in relation a person subject to military law under this Act-
to courts-
martial. (a) having been duly summoned to attend as a
witness before a court-martial, fails to comply
with the summons; or
(b) refuses to swear an oath when duly required
by a court-martial to do so; or
(c) refuses to produce any document in his
custody or under his control which a
court-martial has lawfully required him to
produce; or
(d) when a witness, refuses to answer any
question which a court-martial has lawfully
required him to answer; or
(e) wilfully insults any person, being a member
of a court-martial or a witness or any other
person whose duty it is to attend on or before
the court, while that person is acting as a
member thereof or is so attending, or
wilfully insults any such person as aforesaid
while that person is going to or returning
from the proceedings of the court; or








The Defence Act, 1958


(') wilfully interrupts the proceedings of a
court-martial or otherwise misbehaves before
the court; or
(g) does any other thing which would. if the
court-martial had been a court of law having
power to cominit for contempt, have been
contemptt of that court,
the president of the court-martial may certify the offence
of that person under his hand to any court of law in the
Federation, being a court. having power to commit for
contempt, and that court of law may thereupon inquire into
the alleged offence and after hearing any witnesses who may
be produced against or on behalf of the person charged with
the offence, and after hearing any statement that may be
offered in defence, punish or take steps for the punishment
of that person in like manner as if he had been guilty of
contempt of the court to which the offence is certified.
(2) In this section "court-martial' means a. court-
martial held under service law.
101. If- Affirma-
tions.
(a) a person required by virtue of this Act to
take an oath for the purposes of proceedings
before a court-martial objects to being
sworn, and states as the ground of his
objection either that he has no religious
belief or that the taking of an oath is
contrary to his religious belief; or
(1b) it is not reasonably practicable to administer
an oath to such a person as aforesaid in the
manner appropriate to his religious belief,
he shall be required to make a solemn affirmation in the
prescribed form instead of taking an oath.

Confirmation, revision and review of proceedings
of courts-martial
102. (1) Where a court-martial finds the accused guilty on Confirma-
any charge, the record of the proceedings of the court-martial toned
shall be transmitted( to a confirming authority for ings of
confirmation of the finding and sentence of the couri- on that corts-
charge.








224 The Defence Act, 1938

(2) A finding of guilty or sentence of a court-martial
shall not be treated as a finding or sentence of the court until
confirmed:
Provided that this subsection shall not affect the
keeping of the accused in custody pending confirmation, or
the operation of sections 103 and 104 of this Act or the
provisions of this Act as to confirmation or approval.

Petitions 103. At any time after a court-martial has sentenced
inn or the accused, but not later than the prescribed time after con-
sentence. firmation is completed, the accused may in the prescribed
manner present a petition against finding or sentence or both.

Revision 104. (1) A confirming authority may direct that a court-
of courts- martial shall revise any finding of guilty come to by the court
martial, in any case where it appears to him-
(a) that the finding was against the weight of
evidence; or
(b) that some question of law determined at the
trial and relevant to the finding was wrongly
determined.
(2) Any such direction shall be accompanied by the
necessary directions for the reassembly of the court, and
shall contain a statement of the reasons for the direction.

(3) On any revision of a finding the court shall re-
consider the finding, and (unless the court adheres thereto)
may substitute therefore either a finding of not guilty or any
other finding to which the court could originally have come
at the trial in lieu of the finding under revision.

(4) On any such revision the court shall not have
power to receive further evidence.

(5) Where on any such revision the court either
adheres to the original finding or substitutes therefore a
finding of guilty of another offence, or of the same offence
in different circumstances, the court may substitute a
different sentence for the original sentence:
Provided that the court shall not have power to
substitute a sentence of a punishment greater than the








The Defence Act, 195S 225

punishment or the greatest of the punislunents awarded by
the original sentence, or to substitute a sentence which in
the opinion of the court is more severe than the original
sentence.

(6) The confirming authority shall not have power
to direct the revision of any substituted finding come to by
the court on a previous direction of the confirming authority,
or the revision of the original finding if adhered to by the
court on such a previous direction; but save as aforesaid
this Act shall apply to the proceedings of the court on any
such revision as it applies to their deliberations on the
original finding or sentence, and any substituted finding or
sentence shall be treated for all purposes as an original find-
ing or sentence of the court:
Provided that the decision of the court on the
revision shall not be required to be announced in open court.

105. (1) Subject to the provisions of section 104 of this Powers of
Act and to the following provisions of this section, a con- ho1ring
firming authority shall deal with the finding or sentence of ties.
a court-martial either by withholding confirmation, if of
opinion that the finding of the court is unreasonable or cannot
be supported having regard to the evidence or involves a
wrong decision on a question of law or that, on any ground,
there was a miscarriage of justice, or by confirming the find-
ing or sentence or referring the finding or sentence, or both,
for confirmation to a higher confirming authority.

(2) In lieu of withholding confirmation of the finding
of a court-martial, a confirming authority may, if-
(a) some other finding of guilty could have been
validly made by the court-martial on the
charge before it; and
(b) he is of opinion that the court-martial must
have been satisfied of the facts necessary to
justify that other finding,

substitute that other finding, and if he does so he shall con-
sider in what manner, if at all, the powers conferred by sub-
section (4) of this section should be exercised,








The Defence Act, 1958


(3) Where it appears to a confirming authority that
a sentence of a court-martial is invalid, he may in lieu of
withholding confirmaJion of the sentence substitute therefore
a sentence of any punishment or punishments which could
have been awarded by the court, not being greater than the
punishment or the greatest of t.he p]luishnents awarded by
the court and not in his opinion more severe than that
punishment or those punishments.

(4) in confirming the sentence of a court-martial, the
confirmling authority may-
(a) remit in whole or in part any punishment
awarded by the court; or
(b) commute any such punishment for one or
more punishment or punishments provided
by this Act, being less than the punishment
commuted.

(5) A finding or sentence substituted by the confirm-
ing authority or any sentence having effect after the con-
lirming authority has remitted or conunuted punishment,
shall be treated for all purposes as a finding or sentence of
the court duly confirmed.

(6) 'The confirmation of a finding or sentence shall
not be deemed to be completed until the finding or sentence
has been promulgated; and in the event of any such substitu-
tion, remission or coinmutation as aforesaid the finding or
sentence shall be promulgated as it has effect after the sub-
stitution, remission or commutation.

(7) Where the confirming authority determines to
withhold confirmation, the determination shall be promul-
gated and shall have effect as from the promulgation thereof.

uonfirm- 106. (1) Subject to the provisions of this section, the
ties "ut following shall have power to confirm the finding and
sentence of any court-martial, that is to say-
(a) the officer who convened the court-martial or
any officer superior in command to that
officer; or








The Defence Act, 1958


(b) the successor of any such officer or superior
officer. or any person for the time being exer-
cising the functions of a;ly such officer or
superior officer; or
(e) failing; amy such officer as aforesaid-
(i) any officer appointed by the (overnor-
(leneral. after consultation with such
Minister as lie may determine, to act
as confiiming authority, whether for the
particular case or for a specified class of
cases; or
(ii) the Governor-General acting in his
discretion.

(2) T'he following shall not have power to confirm
the finding or sentence of a court-martial, that is to say-
(a) any officer who was a member of the cour:-
martial; or
(b) any person who, as commanding officer of the
accused, investigated the allegations against
him or who is for the time being the command-
ing officer of the accused; or
(c) any person who, as appropriate superior
authority investigated the allegations against;
the accused:
Provided that. a person excluded by the foregoing
provisions of this subsection may act as confirming authority
for a field court-martial, if otherwise having power to do so.
where he is of opinion that it is not practicable, having due
regard to the public service, to delay the case for the purpose
of referring it to another confirming authority.

(3) An authorization (.mpow'ering the convenini"g o ani
ordinary court-nartial may reserve for confirmation by
superior authority findings or sentences or both in such
circumstances as may be specified by or under the
authorisation, and the powers conferred by subsection (1)
,o this section shall be exercisable subject to any such
r.,s.(T vatior .







228 The Defence Act, 1958

Approval 107. A sentence of death shall not be carried into effect
as well as
confirm- unless it has been approved by the Governor-General acting
tion after consultation with such Minister as he shall determine.
required
for
death
sentences.
Review of 108. (1) A finding or sentence which has been confirmed
findings
and may at any time be reviewed by a reviewing authority, and
sentences petition duly
of couts- if after confirmation of a finding or sentence a petition is duly
martial. presented under section 103 of this Act against the finding
or sentence then, subject to the provisions of this section, the
finding or sentence shall be so reviewed as soon as may be
after the presentation of the petition and after consideration
of the matters alleged therein.

(2) (a) The reviewing authorities for the purposes of
this Act are-
(i) the Governor-General, or (so far as the
delegation extends) any officer to whom
the powers of the Governor-General as
reviewing authority, or any of those
powers, may be delegated by the
Governor-General; or
(ii) any officer superior in command to the
confirming authority.
(b) Reference in this subsection to the Governor-
General mean the Governor-General acting after consultation
with such Minister as he may determine.

(3) If an application for leave to appeal is received by
the Registrar of the Federal Supreme Court under the pro-
visions of Part V of this Act, so much of subsection (1) of
this section as requires the review of a finding or sentence
against which a petition has been presented shall thereupon
cease to apply to the finding to which the application for
leave to appeal relates and the sentence passed in consequence
of that finding.

(4) On a review under this section the reviewing
authority may-








The Defence Act, 1958 229

(a) in so far as the review is of a finding, quash
the finding and, if the sentences relates only
to the finding quashed, the sentence; or
(b) in so far as the review is of a sentence quash
the sentence; or
(c) in any case, exercise the like powers of sub-
stituting findings, substituting valid for in-
valid sentences and remitting or commuting
punishment as are conferred on a confirming
authority by subsections (2) to (4) of section
105 of this Act,

and any substituted finding or sentence, or sentence having
effect after the remission or commutation of punishment,
shall be treated for all purposes as a sentence of the court
duly confirmed.

(5) Where a reviewing authority exercises any of the
powers conferred by subsection (4) of this section, the deter-
mination of the authority shall be promulgated and shall have
effect as from the promulgation thereof.

109. (1) Sentences of imprisonment and detention may be Reconsi-
deration of
reconsidered by the Commander or by such officers (not below sentences
the rank of brigadier or corresponding naval or air force rank) f iri-
as may be from time to time appointed by the Governor- and
detention.
General acting after consultation with such Minister as he
shall determine; and if on any such reconsideration it appears
that the conduct of the offender since his conviction has been
such as to justify remission of the sentence, whether in part
or in whole, it may be remitted accordingly.

(2) The power to reconsider a sentence may be exer-
cised at any time after confirmation, and where after review,
a sentence remains effective it shall be reconsidered at
intervals of six months:

Provided that delay in complying with this sub-
section shall not invalidate the sentence,







The Defence Act, 1958


Review of summary findinqs and awards
Review of 110. (1) Where a charge has been dealt with summarily,
summary
findings otherwise than by the dismissal thereof, the authority herein-
and after mentioned may at any time review the finding or award.
awards.
(2) The said authority is -
(a) the Governor-General acting after consulta-
tion with such Minister as he may determine;
or
(b) any military, naval or air force officer
superior in command to the officer who dealt
summarily with the charge.

(3) Where on a review under this section it appears
to the said authority expedient so to do by reason of any
mistake of law in the proceedings on the summary dealing
with the charge or of anything occurring in those proceedings
which in the opinion of the authority involved substantial
injustice to the accused, the authority may quash the finding;
and if the finding is quashed the authority shall also quash
the award.

(4) Where on a review under this section it appears
to the said authority that a punishment awarded was invalid,
or too severe, or (where the award included two or more
punishments) that those punishments or some of them could
not validly have been awarded in combination or are, taken
together, too severe, the authority may vary the award by
substituting such punishment or punishments as the authority
miay think proper, being a punishment or punishments which
could have been included in the original award and not being
in the opinion of the authority more severe than the punish-
ment or punishments included in the original award.

Findings of insanity, etc.
Provisions 111. (1) Where, on the trial of a person by court-martial,
accused it appears to the court that the accused is by reason of in-
found sanity unfit to stand his trial, the court shall so find; and if
insane. the finding is confirmed in accordance with the following
provisions of this section the accused shall be kept in custody







The Defence Act, 1958


in such manner as may be provided by or under rules until
the directions of the Governor-General are known or until
any earlier time at which the accused is fit to stand his trial.

(2) Where, on the trial of a person by court-martial,
it appears to the court that the evidence is such as, apart
from any question of insanity, to support a finding that the
accused was guilty of any offence, but that at the time of the
acts constituting that offence the accused was insane, the
court shall find that the accused was guilty of that offence
but was insane at the said time, and thereupon the accused
shall be kept in custody in such manner as may be provided
by or under rules until the directions of the Governor-General
are known.

(3) In the case of any such finding as aforesaid the
Governor-General may give orders for the safe custody of the
accused during his pleasure in such place and in such manner
as the Governor-General thinks fit.

(4) A finding under subsection (1) of this section shall
not have effect unless and nmtil the finding has been
confirmed by an authority who would have had power to
confirm a finding of guilty come to by the court-martial in
question and has been promulgated.

(5) Where the court or the confirming authority comes
to or substitutes a finding of guilty but insane the confirming
authority or, as the case may be, the reviewing authority shall
not have power to substitute for that finding a finding of
guilty; but save as aforesaid the provisions of this Act as to
revision, confirmation and review (and in particular the pro-
visions of this Act which confer power to substitute for any
finding any other finding which could have been come to by
the court-martial in question) apply in relation to such find-
ings as are provided for by subsection (2) of this section as
those provisions apply in relation to other findings of guilty.

Commencement, suspension and duration of sentences
112. A military sentence of imprisonment or detention Com-
or a sentence of field punishment shall, subject to the pro- ofcee
visions of section 136 of this Act (which empowers the Federal 'enten"ce'
Supreme Court in certain cases to direct that a sentence shall


231







232 The Defence Act, 1958

begin to run from the day on which the Court dismisses an
application for leave to appeal), begin to run from the begin-
ning of the day on which sentence was originally pronounced
by the court-martial trying the offender or, as the case may
be, was originally awarded by his commanding officer.

1u rtion 113. (1) Where any person serving a military sentence of
tences of imprisonment or detention becomes unlawfully at large
imprison-
inent or during the currency of the sentence, then, in calculating the
letention. period for which he is liable to be imprisoned in pursuance
of the sentence, no account shall be taken of time elapsing
during the period beginning with the day on which he became
at large and ending with the day on which, as a person having
become unlawfully at large, he is taken into military, naval
or air force custody or the custody of a civil authority or (not
having been taken into such custody) returns to the place in
which he was imprisoned or detained before he became unlaw-
fully at large:
Provided that if he satisfies such authority as may
be specified in that behalf by or under Imprisonment and
Detention Rules that during any time during the last-men-
tioned period he was -
(a) in the custody of a civil authority; or
(b) if and in so far as Imprisonment and Deten-
tion Rules so provide, in the custody of any
military, naval or air force authority of any
country or territory outside the Federation as
respects which arrangements have been made
under section 116 of this Act,

otherwise than on account of an offence committed by him
while unlawfully at large, the last-mentioned time shall not
be disregarded in calculating the period for which he is liable
to be imprisoned or detained in pursuance of the military
sentence.

(2) In subsection (1) of this section the expression
"civil authority" means a civil authority (whether of the
Federation or any of the Territories or of any country or
territory outside the Federation), authorised by law to detain
persons, and includes a police officer.








The Defence Act, 1958


(3) Without prejudice to subsection (1) of this
section, where any person serving a military sentence of
imprisonment or detention has in accordance with Imprison-
ment and Detention Rules been temporarily released on
compassionate grounds, then, in calculating the period for
which he is liable to be imprisoned or detained in
pursuance of the sentence, no account shall be taken of time
elapsing during the period beginning with the day after that
on which he is released and ending with the day on which
he is required to return to custody.

(4) A person who for any period is released as
mentioned in subsection (3) of this section or who is other-
wise allowed, in pursuance of Imprisonment and Detention
Rules, out of military custody for any period or subject to
any condition shall, on failure to return at the expiration
of the period or to comply with the condition, be treated for
the purposes of subsection (1) of this section as being
unlawfully at large.

(5) A person serving a military sentence of imprison-
ment or detention in civil custody who, after being
temporarily released under civil law, is at large at any time
during the period for which he is liable to be detained in
civil custody in pursuance of his sentence shall be deemed
to be unlawfully at large if the period for which he was
temporarily released has expired or if an order recalling
him has been made in pursuance of civil law.

(6) References in subsection (5) of this section to
release or recall under civil law are references to release or
recall in pursuance of the law of the country or territory in
which he is serving his sentence.

114. A person shall not be required to serve any part Restric-
of a military sentence of detention in a military or civil serving of
prison: sentences
of deten-
tion in
Provided that in such cases and subject to suchbrisons
conditions as may be specified by or under Imprisonment
and Detention Rules a person serving such a sentence may
be temporarily detained in a military or civil prison for any
period not exceeding seven days.








The Defence Act, 1958


Special 115. A person sentenced to death or imprisonment and
provisions
as to civil committed or transferred to a civil prison in pursuance of
prisons in rules made under this Part of this Act or of Imprisonment
the
Federation. and Detention Rules shall while in that prison be confined
and otherwise dealt with in the same manner as a person
confined therein under a like sentence of a civil court.

Special 118. The Governor-General may from time to time
provisions
as to make arrangements with the authorities of any country or
carrying territory outside the Federation whereby sentences of death
out or
serving of passed by courts-martial may in accordance with rules made
~notsdenche under this Part of this Act be carried out in establishments
Federa- under the control of those authorities and military sentences
tion. of imprisonment or detention may in accordance with
Imprisonment and Detention Rules be served wholly or
partly in such establishments.

Country 117. (1) A person who is serving a military sentence of
which sen- .
tence of imprisonment or detention in any of the Territories may (in
impson- so far as the Colonial Prisoners Removal Act, 1884, allows and
detention as may be specified by or under Imprisonment and Detention
to be
served Rules) be removed out of that Territory-
47 & 48
vict. c. 31. (a) to the Territory in which he was -enlisted; or

(b) to any place out of the Federation where the
unit or any part thereof to which for the time
being he belongs is serving or is under orders
to serve,
but not to any other place.

(2) Subject to the following provisions of this section,
a person sentenced under this Act, by a court-martial held
out of the Federation, to imprisonment or detention for more
than twelve months shall as soon as practicable after the
confirmation of the sentence is completed be removed to one
of the Territories.

(3) Where a person has been sentenced under this Act
by a court-martial held out of the Federation, to imprisonment
or detention for more than twelve months, the confirming or
reviewing authority may, notwithstanding anything in sub-
section (2) of this section, direct that he shall not be required







The Defence Act, 1958


to be removed to the Federation until he has served such
part of his sentence, not exceeding (in the case of a sentence
of more than two years imprisonment) two years, as may be
specified in the direction; and in determining whether or not
to exercise the powers conferred by this subsection, a con-
firming or reviewing authority shall have regard to any
recommendation in that behalf made by the court-martial.

(4) Any direction of a confirming authority under
this section may at any time be revoked by the confirming
authority or by a reviewing authority, or superseded by any
direction of a confirming authority or a reviewing
authority which the authority could have given under
subsection (3) of this section; and any direction of a
reviewing authority under this section may at any time be
revoked by a reviewing authority or superseded as aforesaid.

(5) Any direction given under this section, and the
revocation of any such direction, shall be promulgated.

(6) In ascertaining at any time for the purposes of
this section the nature or length of a sentence regard shall
be had to any commutation or remission of the sentence
previously directed.

118. (1) It shall be the duty, in so far as rules made under Duties of
officers in
this Part of this Act or Imprisonment and Detention Rules charge of
so provide, of the superintendent or other person in charge n others
of a prison (not being a military prison) to receive any to receive
person duly sent to that prison in pursuance of such rules risoners-
and to confine him until execution of the sentence is
completed or the prisoner is discharged or delivered over in
due course of law.

(2) Where a person is in military custody in pur-
suance of a military sentence of imprisonment or detention,
then on receipt of a written order in that behalf purporting
to be signed by that person's commanding officer it shall be
the duty of any such superintendent or other person as
aforesaid, of the police officer in charge of a police station
or of any person in charge of any other place in which
prisoners may be lawfully confined to keep that person in







The Defence Act, 1958


custody for a period not exceeding seven days unless the said
person is earlier discharged or delivered over in due course
of law.

Trial of persons ceasing to be subject to military law under
the Act and time limited for trials
Trial and 119. (1) Subject to the provisions of section 120 of this
punish-
ment of Act, where an offence under this Act triable by court-martial
o henceis has been committed, or is reasonably suspected of having
Act not- been committed, by any person while subject to military law
withstand-
ing offen- under this Act, then in relation to that offence he shall be
de ceasing treated, for the purposes of the provisions of this Act
to be
subject relating to arrest, keeping in custody, investigations of
thereto. charges, trial and punishment by court-martial (including
confirmation, review, and reconsideration) and execution of
sentences as continuing subject to military law under this
Act notwithstanding his ceasing at any time to be subject
thereto.

(2) Where, while a person is in military custody by
virtue of this section (whether before, during or after trial)
he commits, or is reasonably suspected of having committed,
an offence which if he were subject to military law under
this Act would be an offence under this Act triable by
court-martial, then in relation to that offence or suspected
offence he shall be treated, for the purposes of the provisions
of this Act mentioned in subsection (1) of this section and
the provisions thereof as to the summary dealing with
charges, as having been subject to military law under this
Act when the offence was committed or is suspected of
having been committed and as continuing subject thereto
thereafter.

(3) Where by virtue of either of subsection (1) or
subsection (2) of this section a person is treated as being
at any time subject to military law under this Act for the
purpose of any provision of this Act, that provision shall
apply to him -

(a) if he holds any military rank, as to a person
having that rank;







The Defence Act, 1958


(b) otherwise as to a person having the rank
which he had when last actually subject to
military law under this Act:
Provided that as respects any time after he has
been sentenced for the offence in question and the sentence
has been confirmed the said provision shall apply to him
(in any case) as to a soldier.

(4) Where apart from this subsection any provision
of this Act would under subsection (3) of this section apply
to a person, in relation to different offences, as to a person
having different ranks, it shall apply to him as to a person
having the lower or lowest of those ranks.

120. (1) No person shall be tried by court-martial for any Limitation
3f time
offence, other than one against section 33 or section 34 of for trial of
this Act or desertion, unless the trial is begun within three Thonces
years after the commission of the offence, there being Act.
disregarded any time during which he was a prisoner of
war and any time during which he was illegally absent:

Provided that-

(a) in the case of an offence against section 70
of this Act, where proceedings for the corres-
ponding civil offence must, by virtue of any
written law, be brought within a limited time,
that limit of time shall apply to the trial of
the offence under the said section 70 in sub-
stitution for the foregoing provisions of this
subsection;

(b) subject to any such limit of time as is
mentioned in paragraph (a) of this proviso.
a person may be tried by court-martial for a
civil offence committed outside the Federation
notwithstanding that it was committed more
than three years before the beginning of
the trial, if the Attorney-General of the
Federation consents to the trial.








The Defence Act, 1958


(2) Where a person who has committed an offence of
desertion, other than desertion on active service, has since
the offence served as a member of Her Majesty's forces
continuously in an exemplary manner for not less than three
years, he shall not be tried for that offence.

(3) A person shall not be triable by virtue of sub-
section (1) of section 119 of this Act unless his trial is begun
within three months after he ceases to be subject to military
law under this Act or the trial is for a civil offence committed
outside the Federation and the Attorney-General of the
Federation consents to the trial:

Provided that this subsection shall not apply to
an offence against section 33 or section 34 of this Act or
desertion.

(4) A person shall not be arrested, or kept in custody
by virtue of subsection (1) of section 119 of this Act for an
offence at any time after he has ceased to be triable for the
offence.

Relations between military and civil courts and
finality of trials
Powers of 121. (1) Save as provided in section 145 of this Act, nothing
:ivil courts.
in this Act shall restrict the offences for which persons may
be tried by any civil court, or the jurisdiction of any civil
court to try a person subject to military law under this Act
for any offence.

(2) Where a person is tried by a civil court for any
offence, and he has previously been sentenced by court-
martial held under service law to punishment for any act
constituting (whether wholly or in part) that offence, or in
pursuance of this Act he has been punished for any such act
by his commanding officer or an appropriate superior
authority, the civil court shall, in awarding punishment, have
regard to his punishment in pursuance of this Act.








The Defence Act. 1958


122. (1) Where a person subject to military law underPersons
not to be
this Act- tried under
this Act
(a) has been tried for an offence by a competent fo
Dffences
civil court or a court-martial under service already
law, or has had an offence committed by him,1 "1Po
taken into consideration by any such court in
sentencing him; or
(b) has been charged with an offence under
service law, and has had the charge dismissed,
or has been found guilty on the charge, by his
commanding officer or an appropriate superior
authority; or
(c) has had an offence condoned by his com-
manding officer,

he shall not be liable in respect of that offence to be tried by
court-martial or to have the case dealt with summarily by
his commanding officer or the appropriate superior authority.

(2) For the purposes of this section-
(a) a person shall not be deemed to have been
tried by a court-martial if confirmation is
withheld of a finding by the court-martial
that he is guilty of the offence;
(b) a person shall not be deemed to have had an
offence taken into consideration by a court-
martial in sentencing him if confirmation of
the sentence of the court-martial is withheld
or the sentence is quashed;
(c) a case shall be deemed to have been dealt
with summarily by the commanding officer
or an appropriate superior authority notwith-
standing that the finding of that officer or
authority has been quashed, or the award of
that officer or authority quashed or varied,
on the review thereof;
(d) an offence shall be deemed to have been con-
doned by the commanding officer of a person
alleged to have committed the offence if, and
only if, that officer or any officer authorised







The Defence Act, 1958


by him to act in relation to the alleged offence
has with knowledge of all relevent circum-
stances informed him that lie will ndt be
charged therewith;
(e) a person ordered under subsection (2) of sec-
tion 58 of this Act or the corresponding
provisions of any service law, to be imprisoned
nor to undergo detention for an offence against
that section or provision shall be deemed to
have been tried by court-martial for the
offence.
(3) Where confirmation of a finding of guilty of an
offence is withheld the accused shall not be tried again by
court-martial for that offence unless the order convening the
later court-martial is issued not later than twenty-eight days
after the promulgation of the decision to withhold confirma-
tion.
(4) Save as provided in the foregoing provisions of
this section, proceedings for an offence against this Act
(whether before a commanding officer or appropriate superior
authority or before a court-martial) shall not be barred on the
ground of condonation.
Inquiries
Boards of 123. (1) Subject to and in accordance with the provisions
inquiry. of rules made under this Part of this Act (hereinafter referred
lo as Board of Inquiry Rules), the Governor-General or any
military, naval or air force officer empowered by or under
such rules so to do, may convene a board of inquiry to investi-
gate and report on the facts relating to -
(a) the absence of any person subject to military
law under this Act; or
(b) the capture of any such person by the enemy;
or
(c) the death of any person where an inquiry into
the death is not required to be held by any
civil authority; or
(d) any other matter of a class specified in such
rules or referred to such a board by the
Governor-General or any such officer as
aforesaid,







The Defence Act, 1958 241

and a board of inquiry shall, if directed so to do, express
their opinion on any question arising out of any matters
referred to the board.

(2) A board of inquiry shall consist of such number
,of persons as may be provided for by Board of Inquiry Rules,
who shall be persons subject to service law and the president
of a board of inquiry shall be an officer not below the rank
of lieutenant or corresponding rank.

(3) Evidence given before a board of inquiry shall
not be admissible against any person in proceedings before a
court-martial, commanding officer or appropriate superior
authority other than proceedings for an offence against sec-
tion 59 of this Act or for an offence against section 70 of this
Act when the corresponding civil offence is perjury.

124. (1) Where a board of inquiry inquiring into the Inquiries
absence of an officer or soldier reports that he has been absent absence.
without leave or other sufficient cause for a period specified
in the report, not being less than twenty-one days, a record
of the report shall in accordance with Board of Inquiry Rules
be entered in the service books.

(2) A record entered in pursuance of subsection (1) of
this section shall, unless the absentee subsequently surrenders
or is arrested, or the report of the board of inquiry is annulled
by the Governor-General acting after consultation with such
Minister as he may determine, or a subsequent board of
inquiry, have the like effect as a conviction by court-martial
for desertion.
Miscellaneous provisions
125. (1) The following provisions shall have effect where Restitution
a person has been convicted by court-martial of unlawfully n'onm
obtaining any property, whether by stealing it or receiving for theft,
it knowing or having reason to believe it to have been stolen, etc.
fraudulently misapplying it or otherwise.

(2) If any of the property unlawfully obtained has
been found in the possession of the offender, it may be ordered
to be-delivered or paid to the person appearing to be the owner
thereof.








242 The Defence Act, 1958

(3) If there has been found in the possession of the
offender any property (other than money) appearing to have
been obtained by him by the conversion or exchange of any
of the property unlawfully obtained, the property may be
ordered to be delivered to the person appearing to be the
owner of the property unlawfully obtained.

(4) Where money is found in the possession of the
offender, then whether or not it appears to have been obtained
as aforesaid an order may be made that there shall be paid
out of that money to the person appearing to be the owner
of the property unlawfully obtained such sum as may be
specified in the order as or towards compensation for the loss
caused to the said person by the offence, in so far as not other-
wise made good under this Act or by the recovery of the pro-
perty unlawfully obtained.

(5) Where any of the property unlawfully obtained
has been sold or given in pawn to some other person who did
not then know it to have been unlawfully obtained, an order
may be made that, subject to the restitution to the owner
thereof of the property sold or given as aforesaid, there shall
be paid to the said other person, out of any money found in
the possession of the offender (whether or not the money
appears to be proceeds of the sale or giving in pawn), such
sum as may be specified in the order as or towards compen-
sation for the loss caused to him in consequence of the sale
or giving in pawn.

(6) Where any of the property unlawfully obtained
has been given in exchange to some other person who did not
then know it to have been unlawfully obtained, an order may
be made that, subject to the restitution to the owner thereof
of the property given as aforesaid, there shall be restored to
the said other person the property taken in exchange for the
property unlawfully obtained.

(7) An order under this section may be made by the
court-martial by whom the offender is convicted, by the con-
firming or by any reviewing authority; and in this section
the expression "appearing" means appearing to the court,.
officer or authority making the order.








The Defence Act, 1958


(8) An order under this section made by a court-mar-
tial shall not have effect until confirmed by the confirming
authority; and the provisions of this Part of this Act as to
the confirmation and review of the proceedings of courts-
martial shall apply to an order under this section as they
apply to a sentence.

(9) The operation of any order under this section
.shall be suspended -
(a) in any case, until the expiration of the period
prescribed under Part IV of this Act as the
period within which an application for leave
to appeal to the Federal Supreme Court
against the conviction must be lodged; and
(b) if such an application is duly lodged, until
either the application is finally refused or is
withdrawn or the appeal is determined or
abandoned;

and where the operation of such an order as aforesaid is
suspended under this section-

(c) it shall not take effect if the conviction is
quashed on appeal;
(d) the Federal Supreme Court may by order
annul or vary the order although the con-
viction is not quashed;
(e) such steps shall be taken for the safe custody,
during the period during which the operation
of the order is suspended, of the property
ordered to be restored or handed over or the
money to which the order relates as may be
provided by rules of court made under Part V
of this Act.

(10) Notwithstanding anything in subsection (9) of
-this section, ani order under this section shall not, so far as it
relates to the delivery of property to the person appearing to
be the owner thereof, be suspended if the court or authority








244 The Defence Act, 1958

making the order directs to the contrary in any case in which,
in the opinion of the court or authority, the title to the
property is not in dispute.

(11) An order under this section shall not bar the right
of any person, other than the offender or a person claiming
through him, to recover any property delivered or paid in
pursuance of such an order from the person to whom it is.
delivered or paid.

Appoint- 126. The appointment of a judge advocate to act at.
ment of
judge any court-martial may be made by the Governor-General
advocates, acting in his discretion or by the convening officer.

Promul- 127. Any finding, sentence, determination or other
nation. thing required by this Act to be promulgated shall be
promulgated either by being communicated to the accused
or in such other manner as may be specified by regulations.
or as the confirming authority or reviewing authority, as the
case may be, may direct.

Custody of 128. (1) The record of the proceedings of a court-martial
proceed-
igs of shall be kept in the custody of the Commander for not less
court- than the prescribed period, being a period sufficient to ensure
martial and
right of that the rights conferred by subsection (2) and subsection (3)
accused to of this section shall be capable of being exercised.
a copy
thereof.
(2) Subject to the provisions of this section, any
person tried by a court-martial shall be entitled to obtain
from the Commander on demand at any time within the
relevant period and on payment therefore at such rate as may
be prescribed a copy of the record of the proceedings of the-
court.

(3) Where a person tried by court-martial dies within
the relevant period, his personal representatives or any
person who in the opinion of the Commander ought to be
treated for the purposes of this subsection as his personal
representative shall subject to the provisions of this section
be entitled to obtain from the Commander on demand at any
time within the period of twelve months from the death and
on payment therefore at the prescribed rate a copy of the-
record of the proceedings of the court.







The Defence Act, 1958 245

(4) If, on an application in pursuance of either sub-
section (2) or subsection (3) of this section for a copy of the
record of any proceedings, the Governor-General acting after
consultation with such Minister as he may determine certifies
that it is requisite for reasons of security that the proceedings
or any part thereof should not be disclosed, the applicant
shall not be entitled to a copy of the proceedings or part to
which the certificate relates.

(5) In this section the expression "the relevant
period," in relation to any person tried by court-martial,
means the period of five years beginning with the (late of his
acquittal or, where he was convicted, of the promulgation
of the findings and sentence or, where a finding of guilty
was not confirmed, of the promulgation of the withholding
of confirmation:

Provided that where the proceedings relate to two
or more charges and the person tried was acquitted on one or
more of the charges and convicted on another or others, the
relevant period shall be the period of five years beginning
with the date of the promulgation of the finding or findings of
guilty and the sentence thereon or of the withholding of
confirmation of that finding or those findings.

(6) Any reference in this section to the record of the
proceedings of a court-martial includes a reference to the
record of the proceedings with respect to the confirmation or
revision of the findings and sentence of the court-martial.

129. No action shall lie in respect of anything done by Indemnity
for prison
any person in pursuance of a military sentence of imprison- officers,
-ment or detention if the doing thereof would have been lawful etc.
but for a defect in any warrant or other instrument made for
the purposes of that sentence.

Interpretation
130. (1) In this Part of this Act- intcrpre-i-
tion of
'civil prison" means a prison in any of the Part TV.
Territories in which a person sentenced by a civil court to
imprisonment can for the time being be confined;







246 The Defence Act, 1958

"convening officer," in relation to a court-martial,
means the officer convening that court-martial and includes
his successor or any person for the time being exercising his-
or his successor's functions;

"military establishment" means a military prison
or any other establishment under the control of the Governor-
General where persons may be required to serve military
sentences of imprisonment or detention, or a military
establishment as defined in section 143 of the Imperial Act;:

"military prison" means separate premises
designated by the Governor-General for persons serving
military sentences of imprisonment;

"prescribed" means prescribed by Rules of
Procedure;

"prison" means a civil prison or a military prison.

(2) References in this Part of this Act to a military
sentence of imprisonment are references to a sentence of
imprisonment passed by a court-martial.

(3) References in this Part of this Act to a military
sentence of detention are references to a sentence of detention
passed by a court-martial or awarded by the offender's
commanding officer.

(4) References in this Part of this Act to warrant
officers do not include references to acting warrant officers,

(5) References in this Part of this Act to non-
commissioned officers include references to acting non-
commissioned officers and also to acting warrant officers.

Rules of 131. (1) Subject to the provisions of this section, the-
Procedure. Governor-General may make rules (in this Act referred to as
Rules of Procedure) with respect to the investigation and
trial of, and awarding of punishment for, offences cognizable
by courts-martial, commanding officers and appropriate-
superior authorities and with respect to the confirmation and
revision of findings and sentences of courts-martial.








The Defence Actl, 1958


(2) Without prejudice to the generality of subsection
(1) of this section, Rules of Procedure may make provision
-vith respect to all or any of the following matters, that is
to say-
(i) the procedure to be observed in the bringing
of charges before commanding officers and
appropriate superior authorities;
(ii) the manner in which charges so brought are
to be investigated, and the taking of
evidence (whether orally or in writing,
whether or not on oath and whether in full
or in summary or abstract form) for the
purpose of investigating or dealing sum-
marily with such charges or otherwise as a
preliminary to the trial thereof by court-
martial, so however that the Rules shall
make provision for the application of section
92 of this Act in any case where the accused
requires that evidence shall be taken on
oath;
(iii) the addition to, or substitution for, a charge
which has been investigated of a new charge
for an offence disclosed by evidence taken
on the investigation and the treating of the
investigation as the investigation of the new
charge;
(iv) the convening and constitution of courts-
martial;
(v) the sittings, adjournment and dissolution of
courts-martial;
(vi) the procedure to be observed in trials by
court-martial;
(vii) the representation of the accused at such
trials;
(viii) procuring the attendance of witnesses
before courts-martial and at the taking of
evidence in pursuance of rules made under
paragraph (ii) of this subsection;







248 The Defence Act, 1958

(ix) applying in relation to proceedings before
commanding officers and appropriate
superior authorities and otherwise in
relation to proceedings prior to trial by
court-martial all or any of the provisions
of sections 98, 99, 100 and 101 of this Act;
(x) empowering a court-martial or the con-
vening officer, in such cases and to such
extent as may be prescribed, to amend a
charge which is being tried by the court;
(xi) empowering a court-martial, where the
particulars proved or admitted at the trial
differ from those alleged in the charge, but
are sufficient to support a finding of guilty
of the like offence as that charged, to make
a finding of guilty subject to exceptions or
variations specified in the finding if it
appears to the court that the difference is
not so material as to have prejudiced the
accused in his defence;
(xii) the forms of orders and other documents to
be made for the purposes of any provision
of this Part of this Act or the rules relating
to the investigation or trial of, or award
of punishment for, offences cognizable
by courts-martial, commanding officers or
appropriate superior authorities or to the
confirmation and revision of the findings and
sentences of courts-martial.

(3) Rules made by virtue of paragraph (x) of subsec-
tion (2) of this section shall secure that the power to amend
charges shall not be exercisable in circumstances substan-
tially different from those in which indictments are amend-
able by a civil court in England, or otherwise than subject
to the like conditions, as nearly as circumstances admit, as
those subject to which indictments are so amendable, and
shall not be exercisable by a court-martial (otherwise than for
the purpose only of correcting a mistake in the name or
description of the accused or a clerical error or omission)
unless there is a judge advocate present at the trial.




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