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Group Title: West Indies gazette
Title: The West Indies gazette
ALL VOLUMES CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/UF00076857/00080
 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: April 17, 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: VID00080
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: ltuf - ABV7930
oclc - 01646171
alephbibnum - 000328383

Table of Contents
    Main
        Page 1
        Page 2
    Legal Supplement
        B-401
    Legal Supplement: pt. 2 Statutory Instruments (No. 11 of 1959): The Defence Rules of Procedure, 1959
        B-402
        B-403
        B-404
        B-405
        B-406
        B-407
        B-408
        B-409
        B-410
        B-411
        B-412
        B-413
        B-414
        B-415
        B-416
        B-417
        B-418
        B-419
        B-420
        B-421
        B-422
        B-423
        B-424
        B-425
        B-426
        B-427
        B-428
        B-429
        B-430
        B-431
        B-432
        B-433
        B-434
        B-435
        B-436
        B-437
        B-438
        B-439
        B-440
        B-441
        B-442
        B-443
        B-444
        B-445
        B-446
        B-447
        B-448
        B-449
        B-450
        B-451
        B-452
        B-453
        B-454
        B-455
        B-456
        B-457
        B-458
        B-459
        B-460
        B-461
        B-462
        B-463
        B-464
        B-465
        B-466
        B-467
        B-468
        B-469
        B-470
        B-471
        B-472
        B-473
        B-474
        B-475
        B-476
        B-477
        B-478
        B-479
        B-480
        B-481
        B-482
        B-483
        B-484
        B-485
        B-486
        B-487
        B-488
        B-489
        B-490
        B-491
        B-492
        B-493
        B-494
        B-495
        B-496
        B-497
        B-498
    Legal Supplement: pt. 2 Statutory Instruments (No. 12 of 1959): The Defence (Imprisonment and Detention) Rules, 1959
        B-499
        B-500
        B-501
        B-502
        B-503
        B-504
        B-505
        B-506
        B-507
        B-508
        B-509
        B-510
        B-511
        B-512
        B-513
        B-514
        B-515
        B-516
        B-517
        B-518
        B-519
        B-520
        B-521
        B-522
        B-523
        B-524
        B-525
        B-526
        B-527
        B-528
        B-529
        B-530
        B-531
        B-532
        B-533
        B-534
        B-535
        B-536
        B-537
        B-538
        B-539
        B-540
        B-541
        B-542
        B-543
        B-544
        B-545
        B-546
        B-547
        B-548
        B-549
        B-550
        B-551
        B-552
Full Text











The West Indies Gazette


VOL. 2 FRIDAY, 17TH APRIL, 1959 No. 1I

TABLE OF CONTENTS
LEGAL SUPPLEMENT
PART II-STATUTORY INSTRUMENTS
No. PAGE NO. PAGI
11 of 1959 The Defence Rules of Procedure, 12 of 1959 The Defence (Imprisonment and
1959 ... ... ... 402 Detention) Rules, 1959 ... 49f


GovEERMENT PRINTING OwcE. TRINIwA, W.I.-1959





























THE WEST INDIES GAZETTE


Vol. 2 FRIDAY, 17th APRIL, 1959 No. 19


LEGAL SUPPLEMENT


PART II-STATUTORY INSTRUMENTS

TABLE OF CONTENTS

No. Page

11 of 1959 The Defence Rules of Procedure, 1959 402

12 of 1959 The Defence (Imprisonment and Detention)
Rules, 1959 499







The Defence Rules of Procedure, 1959.


THE WEST INDIES


STATUTORY INSTRUMENT No. 11 of 1959.

THE DEFENCE RULES OF PROCEDURE, 1959.

Made by the Governor-General under section 131 of the Defence Act,
1958.

ARRANGEMENT OF RULES

Citation and commencement
Rule
1. Citation and commencement.

Definitions and interpretations
2. Definitions.

Arrest and avoidance of delay
3. Avoidance of delay by commanding officers in investigating
charges.
4. Eight day delay reports.
5. Arrest not to exceed 72 days without permission from higher
authority.

Investigation. of charges by connnanding officer
6. Methods of investigating charges.
7. Hearing of evidence by commanding officer.
8. Summary of evidence.
9. Abstract of evidence.
10. Investigation before summary dealing by commanding officer.
11. Dismissal of charge by commanding officer.
12. Reference of charges to higher authority.

Preparation of charge-sheets and framing of charges
13. Charge-sheets.
14. Charges.
15. Joint charges.
16. Construction of charge-sheets and charges.

Action by higher authority on receipt of a charge
17. Action by higher authority on receipt of a charge.

Investigation of, and summary dealing with, charges by
an appropriate superior authority
18. Documents to be given to officers, warrant officers and civilians
dealt with summarily.








The Defence Rules of Procedure, 1959. 403

19. Investigations of and summary dealing with charges against
officers, warrant officers and civilians.
20. Alternative courses open to an appropriate superior authority.

Convening of courts-martial
21. Duties of convening officer when convening court-martial.
22. Appointment of president and members.
23. Officers under instruction.
24. Preparation of defence.

Assembly and swearing of court
25. Preliminary matters to be considered by court and beginning of
trial.
26. Objections to the court.
27. Swearing of court.
28. Swearing of judge advocate.
29. Swearing of officers under instruction.
30. Appointment and swearing of, and objections to, interpreters and
shorthand writers.
31. No right of objection to judge advocate, prosecutor and officer
under instruction.
32. Order of trials.
33. Oaths and solemn affirmations.

Arraignment of accused
34. Arraignment of accused.
35. Plea to the jurisdiction of the court.
36. Objection to charge.
37. Plea in bar of trial.
38. Application by an accused at a joint trial to be tried separately.
39. Application by an accused at a trial to have a charge tried
separately.
40. Pleas to the charge.
41. Acceptance of pleas of guilty.
42. Pleas on alternative charges.

Procedure after recording a finding of guilty
43. Order of trial where pleas of guilty and not guilty.
44. Procedure on finding of guilty after plea of guilty.

Changes of plea
45. Changes of plea.

Procedure on pleas of not guilty
46. Application for adjournment of trial.
47. Case for the prosecution.
48. Calling of witnesses whose evidence is not contained in summary
or abstract of evidence.
49. Notice to an accused that a witness will not be called by the
prosecutor.








404 The Defence Rules of Procedure, 1959.

Calling and examination of witnesses
50. Swearing of witnesses.
51. Exclusion of witnesses from court.
52. Examination of witnesses.
53. Examination of witnesses by court.
54. Reading back of evidence to witnesses.
55. Calling of witnesses by court and recalling of witnesses.
56. Statutory declarations.

Submission of no case to answer and stopping of cases
57. Submission of no case to answer and power of court to stop a case.

Case for the defence
58. Explanation to accused of his rights when making his defence.
59. Evidence for the defence.
60. Evidence in rebuttal.
61. Closing addresses.
62. Handing in of a statutory declaration by accused.

Summing up by judge advocate
63. Summing up by judge advocate.

Deliberation on, and announcement of, finding on the charge
64. Deliberation on finding on the charge.
65. Expression of opinions on, and form of, finding.
66. Announcement of finding.

Procedure after announcement of finding
67. Completion of procedure on plea of guilty before deliberation on
sentence.
68. Trial of charges in other charge-sheets before deliberation on
sentence.
69. Release of accused.
70. Accused's record and plea in mitigation.
71. Request by accused for other offences to be taken into considera-
tion.

Deliberation on sentence
72. Persons entitled to be present during deliberation on sentence.
73. Sentence and recommendation to mercy.
74. Postponement of deliberation on sentence.

Announcement of sentence and conclusion of trial
75. Announcement of sentence and conclusion of trial.

General duties of the president, prosecutor and the
defending officer or counsel
76. General duties of the president.
77. General duties of prosecutor and defending officer or counsel.
78. Counsel.








The Defence Rules of Procedure, 1959. 405


Powers and duties of the judge advocate
79. General duties of the judge advocate.
80. Judge advocate sitting alone.

Withdrawal and amendment of charge-sheets and charges
81. Withdrawal of charge-sheets and charges.
82. Amendment of charge-sheets and charges by the court.
83. Amendment of charges by convening officer.

Sittings and adjournment of the court
84. Sittings of the court.
85. Adjournment.
86. View by court.
87. Absence of president, members or judge advocate.

Insanity
88. Insanity.

Interviewing and attendance of witnesses
89. Interviewing of witnesses.
90. Procuring attendance of witnesses.

Record of proceedings
91. Record of proceedings.
92. Exhibits.
93. Custody and inspection of record of proceedings during trial.

Confirmation, revision and promulgation
94. Confirmation and promulgation.
95. Revision.

Loss of proceedings
96. Loss of original record of proceedings before confirmation.
97. Loss of original record of proceedings after confirmation.

Custody of the record after confirmation and cost of copies thereof
98. Custody and preservation of record of proceedings after confirma-
tion.
99. Cost of copies of record of proceedings.

Petitions
100. Petitions

Miscellaneous provisions
101. Notice requiring oral evidence in place of statutory declaration.
102. Exceptions from Rules on account of the exigencies of the
service.
103. Exceptions from Rules in the interests of security.
104. Deviations from the forms in the Schedules.
105. Cases not covered by Rules.








The Defence Rules of Procedure, 1959.


FIRST SCHEDULE
Forms for commanding officers
1. Delay report.
2. Summary of evidence.
3. Abstract of evidence.
4. Certificate to be attached to abstract of evidence after it has been
handed to the accused.
5. Summons to a witness to attend the taking of a summary of
evidence.
SECOND SCHEDULE
Charge-sheets
1. Commencement of charge-sheets.
2. Statements of offences.
3. Illustrations of charge-sheets.
THIRD SCHEDULE
Record of proceedings before an appropriate superior authority.
FOURTH SCHEDULE
Court-martial forms
1. Convening orders.
2. Declarations under rules 102 and 103.
3. Summons to a witness to attend a court-martial.
4. Notices requiring oral evidence to be given in lieu of a statutory
declaration.
5. Record of proceedings of a court-martial.
6. Findings.
7. Record of reconsideration of finding under rule 79 (5).
8. Service record of accused.
9. Record of proceedings on revision under section 104 of the Act,
10. Confirmation.
11. Direction under section 117 (3) of the Act.
12. Restitution order.
13. Promulgation.
FIFTH SCHEDULE
Sentences
1. Sentences.
2. Recommendation under section 117 (3) of the Act.
3. Restitution order.
SIXTH SCHEDULE
Oaths and affirmations
1. Oaths at investigations by commanding officers and appropriate
superior authorities.
2. Oaths at courts-martial.
3. Manner of administering oaths.
4. Solemn affirmations.
SEVENTH SCHEDULE
Petitions
1. Petitions.
2. List of persons to whom petitions may be presented under rule 100.








The Defence Rules of Procedure, 1959.


His Excellency the .Governor-General in exercise of the
powers conferred upon him by section 131 of the Defence Act, 1958,
and of all other powers enabling him in that behalf, hereby makes the
following Rules:-

CITATION AND COMMENCEMENT
1. These Rules may be cited as the Defence Rules of Procedure Citation
1959, and shall come into operation on the first day of April, 1959. and com-
mencement.
DEFINITIONS AND INTERPRETATION
2. (1) In these Rules:- Definitions.
"convening a fresh court" includes dissolving the existing court;
"member" when used in relation to a court-martial does not
include the president;
"special finding" means when used in relation to:-
(a) Section 97 of the Act, any finding which a court-martial
may make in accordance with that section;
(b) Section 111 of the Act, a finding in accordance with sub-
section (2) of that section that the accused is guilty but
insane;
(c) Rule 65 (3), a finding that the accused is guilty of the
charge subject to the exeception of variation specified
in the finding.
"the Act" means the Defence Act, 1958.

12) Other expressions in these Rules have the same meanings as
if these Rules formed part of the Act.

ARREST AND AVOIDANCE OF DELAY
3. (1) When a person is detained by military authority in arrest, Avoidance
his commanding officer shall, unless it is impracticable, within forty- of delayby
command-
eight hours of becoming aware that he is so detained have such person ing officers
brought before him, inform him of the charge against him and beginin investi-
to investigate it. gating
charges.
(2) Every case of such a person being detained in arrest beyond
the period of forty-eight hours referred to in this rule without such
investigation having begun and the reason therefore shall be reported
by his commanding officer to higher authority.

4. The report required by subsection (2) of section 76 of the Act Eight day
with regard to the necessity for further delay in bringing an accused to delay
trial shall be in the form set out in the First Schedule to these Rules reports.
and shall be signed by his commanding officer. The report shall be
sent to the officer who would be responsible for convening a court-
martial for the trial of the accused.








The Defence Rules of Procedure, 1959.


Arrest not 5. An accused shall not be held in arrest for more than seventy-
to exceed two consecutive days without a court-martial being convened for his
72 days trial, unless the officer who would be responsible for convening the
without
permission court-martial directs in writing that he shall not be released from
from arrest. When giving such a direction such officer shall state his reasons
higher for giving it.
authority.
INVESTIGATION OF CHARGES BY COMMANDING OFFICER
Methods 6. (1) Subject to paragraph (3) of this rule, when a commanding
of investi- officer investigates a charge he shall first read and, if necessary, explain
gating, the charge to the accused and shall then:-
charges
(a) hear the evidence himself in accordance with rule 7; or
(b) cause the evidence to be reduced to writing, in accord-
ance with paragraph (2) of this rule, and read and
consider it:

Provided that:-
(a) notwithstanding that he has heard all or part of the
evidence himself, he may cause the evidence to be
reduced to writing;
(b) after the evidence has been reduced to writing and he
has considered it, he may himself hear evidence in
accordance with rule 7; and
(c) before he submits to higher authority a charge against
an officer or warrant officer, soldier or civilian to whom
Part IV of the Act is applied by section 218 of the Act or
remands a non-commissioned officer or soldier for trial
by court-martial he shall cause the evidence to be reduced
to writing.

(2) Evidence may be reduced to writing in the form of a summary
of evidence taken in accordance with rule 8 or an abstract of evidence
made in accordance with rule 9:

Provided that a summary of evidence must be taken if:-
(a) the maximum punishment for the offence with which the
accused is charged is death; or
(b) the accused, at any time before the charge against him
is referred to higher authority in accordance with rule
12 requires in writing that a summary of evidence be
taken; or
(c) the commanding officer is of the opinion that the interests
of justice require that a summary of evidence be taken.

(3) Where the evidence taken in accordance with paragraph
(1) of this rule discloses an offence other than the offence which is the
subject of the investigation, a new charge alleging that offence may
be preferred against the accused in addition to, or in substitution for,









The Defence Rules of Procedure, 1959. 405


the original charge and the investigation of the original charge may be
treated, for the purposes of these Rules, as the investigation of the
added or substituted charge.

7. When a commanding officer investigates a charge by hearing hearing of
the evidence himself:- idence y
(a) each prosecution witness shall give his evidence orallying officer.
in the presence of the accused, or the commanding officer
shall read to the accused a written statement made by
the witness:
Provided that a written statement of a prosecution
witness shall not be used if the accused requires that the
witness shall give his evidence orally;
(b) the accused shall be allowed to cross-examine any
prosecution witness;
(c) the accused may, on his own behalf, give evidence on
oath or may make a statement without being sworn;
(d) the accused may call witnesses in his defence, who shall
give their evidence orally and in his presence;
(e) the evidence shall not be given on oath unless the com-
manding officer so directs or the accused so demands;
(f) if the evidence is given on oath, the commanding officer
shall, subject to the accused's right to make a statement
without being sworn, administer the oath to each witness
and to any interpreter in accordance with rule 33.

8. A summary of evidence shall be taken in the following Summary
manner and shall be in accordance with the form set out in the First of evidence.
Schedule to these Rules:-
(a) it shall be taken in the presence of the accused by the
commanding officer or by another officer on the direction
of the commanding officer;
(b) the prosecution witnesses shall give their evidence orally
and the accused shall be allowed to cross-examine any
prosecution witness:
Provided that, if a person cannot be compelled to
attend as a prosecution witness or if, owing to the
exigencies of the service or on other grounds (including
the expense and loss of time involved), the attendance
of any prosecution witness cannot, in the opinion of the
officer taking the summary (to be certified by him in
writing), be readily procured, a written statement of
his evidence, purporting to be signed by him, may be
read to the accused and included in the summary of
evidence; but, if such witness can be compelled to attend,
the accused may insist that he shall attend for cross-
examination;








The Defence Rules of Procedure, 1959.


(c) after all the evidence against the accused has been given,
the accused shall be asked:-
"Do you wish to say anything? You are not obliged'
to do so, but, if you wish, you may give evidence on oath,.
or you may make a statement without being sworn. Any
evidence you give or statement you make will be taken
down in writing and may be given in evidence."
Any evidence given or statement made by the accused'
shall be recorded in writing and, immediately thereafter,
the record of his evidence or statement shall be read
over to him and corrected where necessary, and he-
shall sign it unless he declines to do so;
(d) the accused may call witnesses in his defence, who shall'
give their evidence orally;
(e) neither the accused nor the witnesses for the defence
shall be subject to cross-examination;
(f) the evidence of each witness (other than the accused)
who gives evidence orally shall be recorded in writing-
and, immediately thereafter, the record of his evidence
shall be read over to him, corrected where necessary andy
signed by him;
(g) the record of the evidence may be in narrative form,
save that any question put to a witness in cross-
examination by the accused, and the answer thereto, shall
be recorded verbatim if the accused so requires;
(h) the oath shall be administered in accordance with rule
33 by the officer taking the summary of evidence to each
witness, before he gives his evidence, and to any
interpreter;
Provided that, where any child of tender years, called
as a witness, does not, in the opinion of the officer taking-
the summary, understand the nature of an oath, his
evidence may be received, though not given upon oath,
if, in the opinion of the officer taking the summary, he
is possessed of sufficient intelligence to justify the
reception of the evidence and understands the duty of
speaking the truth; and
(i) at the conclusion of the taking of the summary of
evidence, the officer taking it shall certify thereon that
he has complied with the provisions of this rule.

Abstract 9. (1) An abstract of evidence shall be made in the following way
of evidence, and shall be in accordance with the form set out in the First Schedule-
to these Rules:-
(a) it shall be made by the commanding officer or by another
officer on the direction of the commanding officer:
(b) the accused should not be present while the abstract of
evidence is being made;








The Defence Rules of Procedure, 1959. 411


(c) it shall consist of signed statements by such witnesses as
are necessary to prove the charge:
Provided that if, in the case of any witness, a signed
statement is not readily procurable, a pricis of the
evidence to be given by that witness may be included
instead of a signed statement; and
(d) an oath shall not be administered to a witness making
a statement for inclusion in an abstract of evidence, but
use may be made, where necessary, of sworn statements
which are already in existence.

(2) When an abstract of evidence has been made in accordance
-with paragraph (1) of this rule, a copy of it shall be handed to the
:accused and he shall then be cautioned in the following terms:-
"This is a copy of the abstract of evidence in your case; you are not
obliged to say anything with regard to it unless you wish to do
so, but you should read it, and, when you have read it, if you
wish to say anything, what you say will be taken down in writing
and may be given in evidence."
Any statement made by the accused after he has read the abstract
of evidence shall be taken down in writing and he shall be asked to
sign it. This statement, and a certificate by the person who recorded
the statement stating that the accused was duly cautioned in accordance
with this rule, shall be attached to the abstract of evidence and shall
thereafter form part of it. This certificate shall be in the form set out
-in the First Schedule to these Rules.

10. Before a commanding officer deals summarily with a charge Investiga-
after the evidence has been reduced to writing:- tion before
summary
(a) any prosecution witness who has not given his evidence dealing by
orally shall do so if the accused requires it; and command-
ing officer.
(b) the commanding officer shall give the accused a further
opportunity to give evidence on oath or to make a state-
ment without being sworn and to call witnesses in his
defence.

11. (1) A commanding officer may dismiss a charge at any time Dismissal
.during his investigation if he is of the opinion that it ought not to be of charge
proceeded with further. by com-
manding
officer.
(2) After a commanding officer has referred a charge to higher
.authority in accordance with rule 12, he shall not dismiss it unless it
-has been referred back to him with a direction that it shall be dismissed
in accordance with the provisions of section 81 of the Act.

12. When a commanding officer submits to higher authority a Reference
-charge against an officer or warrant officer, soldier or civilian to whom of charges
Part IV of the Act is applied by section 218 of the Act or has remanded to higher
.a non-commissioned officer or soldier for trial by court-martial, he shallthority.
.send to higher authority:-








The Defence Rules of Procedure, 1959.


(a) a copy of the charge on which the accused is held;
(b) a draft charge-sheet containing the charges upon which
the commanding officer considers that the accused should
be dealt with summarily or tried by court-martial;
(c) the summary or abstract of evidence;
(d) a statement of the character and service record of the
accused; and
(e) a recommendation as to how the charge should be
proceeded with.

Charge- 13. (1) A charge-sheet shall contain the whole of the issue or issues
sheets. to be tried at one time and may contain more than one charge if the
charges are founded on the same facts or form or are part of a series of
offences of the same or similar character:

Provided that charges under paragraph (a) of subsection (1) of
section 39, paragraph (a) of section 40, paragraph (a) of
section 47 (where the charge is connected with a charge under either
of the before-mentioned paragraphs) or section 57 of the Act may be
included in any charge-sheet, notwithstanding that other charges in
that charge-sheet are not founded on the same facts and do not form
or are not part of a series of offences of the same or similar
character.

(2) Every charge-sheet shall in its layout follow the appropriate
illustration given in the Second Schedule to these Rules.

(3) The commencement of each charge-sheet shall be in the
appropriate form set out in the Second Schedule to these Rules and
shall state the number, rank, name and unit of the accused and show
by the description of the accused or directly by an express averment
that he is subject to military law under the Act or otherwise liable to
trial by court-martial.

Charges. 14. (1)Each charge shall state one offence only.
(2) Offences may be charged in the alternative in separate
charges but in no case shall they be charged in the alternative in the
same charge. When charges are laid in the alternative they should be
set out in order of gravity commencing with the most serious.

(3) Each charge shall consist of two parts, namely:-
(a) the statement of the offence; and
(b) the particulars of the act, neglect or omission constitu-
ting the offence.

(4) The statement of an offence, if it is not a civil offence, shall
be in the appropriate form set out in the Second Schedule to these Rules,
if it is a civil offence in such words as sufficiently described that offence.








The Defence Rules of Procedure, 1959.


(5) The particulars shall state:-

(a) such circumstances respecting the alleged offence as will
enable the accused to know every act, neglect or omission
which it is intended to prove against him as constituting
the offence;

(b) when the offence charged is one which can be committed
either in circumstances involving a higher degree of
punishment or in circumstances involving a less degree
of punishment, facts which it is intended to prove as
rendering the accused liable to the higher degree of
punishment if convicted; and

(c) any additional facts which it is intended to prove as
rendering the accused liable to the punishment of stop-
pages if convicted.

15. (1) Any number of accused may be charged jointly in one charge Joint
for an offence committed by them jointly, charges

(2) Where so charged any one or more of such accused may at
-the same time be charged in the same. charge-sheet with any other
-offence alleged to have been committed by him or them individually or
jointly.

Provided that such charges could, if the accused to whom they
relate had been tried separately, have been included under rule 13 (1)
in the same charge-sheet as the other charges against him.

16. In the construction of a charge-sheet or charge there shallConstrue-
be presumed in favour of supporting it every proposition which may tion of
charges-
reasonably be presumed to be impliedly included, though not expressed sheets nd
therein, and the statement of the offence and the particulars of theeharges.
.offence shall be read and construed together.

ACTION BY HIGHER AUTHORITY ON RECEIPT OF A CHARGE
17. When a higher authority receives a charge against an Aetion by
accused, he shall, if he does not refer it back to the commanding officerhigher
authority
or deal summarily with it himself or himself convene a court-martial toon receipt
try the accused, refer the charge either to an appropriate superior of a charge.
.authority in order that that authority may deal summarily with it or to
the officer who would be responsible for convening the appropriate
*court-martial to try the accused, and shall, when he so refers the
,charge, send to the appropriate superior authority or other officer
,concerned the documents mentioned in rule 12 together with his own
recommendation as to how the case should be proceeded with.








The Defence Rules of Procedure, 1959.


INVESTIGATION OF, AND SUMMARY DEALINGS WITH, CHARGES BY
AN APPROPRIATE SUPERIOR AUTHORITY
Documents 18. An appropriate superior authority shall ensure before inves-
to be given
to officers, tigating and dealing summarily with a charge that the accused is
warrant given, not less than twenty-four hours before the charge is so investi-
civiliand gated and dealt with a copy of the charge-sheet containing the charge
dealt with upon which he will be so dealt with and a copy of the summary or
summarily, abstract of evidence.

Investiga- 19. When an appropriate superior authority investigates and
tion of and deals summarily with a charge:-
summary
itng (a) he shall first read the charge to the accused;
charges
against (b) the witnesses against the accused need not give their
officers, evidence orally if the accused has so agreed in writing
warrant
officers and but if the accused has not so agreed they shall give
civilians, their evidence orally in his presence and he shall be
allowed to cross-examine them. If the witnesses against
the accused do not give their evidence orally the appro-
priate superior authority shall read the summary or
abstract of evidence to the accused if he so requires;

(c) the accused in his defence may adduce evidence as to the
facts of the case and as to his character and in mitigation
of punishment;
(d) the accused himself may give evidence on oath, make a
statement without being sworn or hand in a written
statement;

(e) each witness who gives evidence shall give it on oath
and the oath shall be administered by the appropriate
superior authority to each witness and to any interpreter
in accordance with rule 33;
(f) when an appropriate superior authority awards the
punishment of forfeiture of seniority of rank the award
shall be in the appropriate form set out in the Fifth
Schedule to these Rules;

(g) a record shall be made of the proceedings in accordance
with the form set out in the Third Schedule to these
Rules.

Alternative 20. An appropriate superior authority shall, if an accused
courses elects to be tried by court-martial or the appropriate superior authority
open to an in the course of investigating a charge determines that it is desirable
appropriate
superior that the charge should be tried by court-martial, either himself convene
authority. the court-martial or refer the charge to higher authority in accordance
with rule 17.








The Defence Rules of Procedure, 1959. 415


CONVENING OF COURTS-MARTIAL

21. (1) When an officer convenes a court-martial he shall:- Duties of
convening
officer
(a) issue a convening order in the appropriate form set out when
in the Fourth Schedule to these Rules; convening
courts-
amartial.
(b) direct upon what charges the accused is to be tried and
ensure that the accused has been remanded for trial by
court-martial upon those charges either by his command-
ing officer or by the appropriate superior authority who
has investigated them;

(c) if he is of the opinion that charges should be put in
separate charge-sheets, so direct and direct the order in
which they are to be tried;

(d) direct, if there is more than one accused, whether the
accused are to be tried jointly or separately;

(e) appoint the president and members of the court and any
waiting members in accordance with rule 22;

(f) if convening:-

(i) an ordinary court-martial where the maximum or
only punishment for the offence is death; or

(ii) any other court-martial at which he considers there
should be a judge advocate

appoint a suitable person to act as judge advocate.

(g) appoint an officer subject to service law or counsel
assisted by such an officer to prosecute or detail a com-
manding officer to appoint an officer subject to service
law to prosecute;

Provided that the convening officer may appoint two
such officers to prosecute if he thinks fit;

(h) appoint the date, time and place for the trial;

(i) send to the president the charge-sheet, the convening
order and a copy of the summary or abstract of evidence
from which any evidence which in his opinion would be
inadmissible under the Act at the court-martial has been
expurgated;

(j) send to each member of the court and to each waiting
member a copy of the charge-sheet;








416 The Defence Rules of Procedure, 1959.

(k) send to the prosecutor copies of the charge-sheet and
convening order and the original summary or abstract
of evidence together with an unexpurgated copy thereof
showing the passages (if any) which have been expur-
gated in the copy sent to the president;
(1) send to the judge advocate (if any) copies of the charge-
sheet and convening order and an unexpurgated copy of
the summary or abstract of evidence showing the
passages (if any) which have been expurgated in the
copy sent to the president;
(m) ensure that the accused is given a proper opportunity
to prepart his defence in accordance with rule 24; and
(n) take steps in accordance with rule 90 to procure the
attendance at the court-martial of all witnesses to be
called for the prosecution and all witnesses whose attend-
ance the accused has reasonably requested in accordance
with rule 24:

Provided that the convening officer may require the
accused to defray or to undertake to defray, as the
convening officer thinks fit, the cost of the attendance of
a witness whose attendance he has requested and if the
accused refuses to defray or to undertake to defray, as.
the case may be, such cost, the convening officer shall not
be obliged to take any further steps to procure the
attendance of that witness.

(2) When an officer convenes a field court -martial he shall not
be obliged to comply with paragraphs (g), (i) (in so far as it relates to
the copy of the summary or abstract of evidence sent to the president
being expurgated), (j), (k) and (1) of paragraph (1) of this rule, if, in'
his opinion, it is impracticable to do so.
Appoint- 22. The convening officer shall:-
ment of
president (a) appoint the president of a court-martial by name and
and appoint the members either by name or by detailing
members. a commanding officer to appoint an officer of a specified
rank; and
(b) appoint such waiting members as he thinks expedient
either by name or by detailing a commanding officer to-
appoint an officer of a specified rank.

Officers 23. (1) Subject to rule 80, any officer subject to service law may,.
under by direction of the convening officer or at the discretion of the president
instruction. remain with a court-martial throughout the proceedings as an officer
under instruction.

(2) An officer under instruction, although allowed to be present
in closed court, shall take no part in any of the deliberations or decisions-
of the court.








The Defence Rules of Procedure, 1959. 417

24. (1) Subject to paragraph (2) of this rule:- Prepara-
tion of
(a) an accused who has been remanded for trial by court-defence.
martial shall be afforded a proper opportunity for pre-
paring his defence and shall be allowed proper communi-
cation with his defending officer or counsel and with his
witnesses;
(b) a defending officer or counsel shall be appointed to defend
an accused who has been remanded for trial by court-
martial unless the accused states in writing that he does
not wish such an appointment to be made;
(c) if the prosecution is to be undertaken by a legally
qualified officer or by counsel, the accused shall be
notified of this fact in sufficient time to enable him, if he
so desires and it is practicable, to make arrangements
for a legally qualified officer or counsel to defend him;
(d) as soon as practicable after an accused has been
remanded for trial by court-martial and in any case not
less than twenty-four hours before his trial he shall be
given :-
(i) a copy of the charge sheet;
(ii) an unexpurgated copy of the summary or abstract
of evidence showing the passages (if any) which
have been expurgated in the copy sent to the
president;
(iii) notice of any additional evidence which the
prosecution intends to adduce; and
(iv) if the accused so requires, a list of the ranks,
names, and units of the president and members
who are to form the court and of any waiting
members;
(e) when an accused is given a copy of the charge-sheet and
of the summary or abstract of evidence in accordance
with this rule, he shall:-
(i) if necessary, have the charge explained to him; and
(ii) be informed that, upon his making a written
request to his commanding officer not less than
twenty-four hours before his trial requiring the
attendance at his trial of any witness (other than
a witness for the prosecution) whom he desires
to call in his defence (such witness to be named
by him), reasonable steps will be taken in
accordance with these Rules to procure the
attendance of any such witness at his trial;
(f) when an accused is served with a copy of a statutory
declaration which the prosecutor proposes to hand to the
court in accordance with subsection (2) of section 98 of
the Act and rule 56 he shall be informed of his right
under the said subsection to require that oral evidence
shall be given in lieu of such statutory declaration;








418 The Defence Rules of Procedure, 1959.


(g) when it is intended to try two or more accused jointly
notice of this fact shall be given to each such accused when
he is given a copy of the charge-sheet. Any such accused
may, before trial, by written notice to the convening
officer claim to be tried separately on the ground that
he would be prejudiced in his defence if he were not tried
separately. In such case the convening officer shall, if he
is of the opinion that the interests of justice so require,
direct that the accused who has so claimed shall be tried
separately;
(h) when a charge-sheet contains more than one charge, the
accused may, before trial, by written notice to the con-
vening officer claim to be tried separately on any charge
in that charge-sheet on the ground that he would be
prejudiced in his defence if he were not tried separately
on that charge, and in such case the convening officer
shall, if he is of the opinion that the interests of justice
so require, direct that the accused shall be tried
separately on that charge.
(2) In the case of a field court-martial the provisions of
paragraph (1) of this rule need only be complied with so far as it is
practicable to do so.
ASSEMBLY AND SWEARING OF COURT
Prelimin- 25. (1) Upon a court-martial assembling, the court shall, before
Ary matters beginning the trial, satisfy themselves in closed court:-
to be con-
sidered by (a) that the court has been convened in accordance with the
court and Act and these Rules;
beginning
-cf trial. (b) that the court consists of not less than the legal minimum
of officers;
(c) that the president and members are of the required rank;
(d) that the president and members have been duly appointed
and are not disqualified under the Act;
(e) if there is a judge advocate, that he has been duly
appointed;
(f) that the accused appears from the charge-sheet to be
subject to military law under the Act or otherwise liable
to trial by court-martial and to be subject to the juris-
diction of the court; and
(g) that each charge is on its face correct in law and framed
in accordance with these Rules.

(2) (a) Where a vacancy occurs through a member of the court
being disqualified under the Act or being absent when
the court assembles, the president may appoint a duly
qualified waiting member to fill that vacancy.
(b) The president may, if the interests of justice so require,
substitute a duly qualified waiting member for a member
appointed by the convening officer.








The Defence Rules of Procedure, 1959. 419

(3) If the court is not satisfied on any of the matters mentioned
in paragraph (1) above, and is not competent to rectify such matter
itself under the Act or these Rules, it shall, before commencing the trial,
report to the convening officer thereon.

(4) When the court has complied with this rule and is ready to
proceed with the trial, the president shall open the court and the
trial shall begin.

26. (1) The order convening the court and the names of the officers Objections
appointed to try the accused shall be read in the hearing of the accusedto the
who shall be given an opportunity to object to any of those officers in court.
accordance with section 91 of the Act.
(2) When a court is convened to try more than one accused
whether separately or jointly, each accused shall be given an opportunity
to object to any officer on the court in accordance with the preceding
paragraph and shall be asked separately whether he has any such
objection.
(3) An accused shall state the names of all the officers to whom
he objects before any objection is disposed of.
(4) If more than one officer is objected to, the objection to each
officer shall be disposed of separately and the objection to the lowest
in rank shall be disposed of first, except where the president is objected
to, in which case the objection to him shall be disposed of before the
objection to any other officer.

(5) An accused may make a statement and call any person to
make a statement in support of his objection.

(6) An officer to whom the accused has objected may state in
open court anything relevant to the accused's objection whether in
support or in rebuttal thereof.

(7) An objection to an officer shall be considered in closed court
by all the other officers on the court including any officer who has been
appointed by the president in accordance with paragraph (9) of this
rule in place of an officer who has retired.

(8) When an objection to an officer is allowed that officer shall
forthwith retire and take no further part in the proceedings.

(9) When an officer objected to (other than the president) retires
and there is a duly qualified waiting member in attendance, the president
should immediately appoint him to take the place of the officer who has
retired.

(10) The court shall satisfy themselves that a waiting member who
takes the place of a member of the court is of the required rank and
not disqualified under the Act and shall give the accused an opportunity
to object to him and shall deal with any such objection in accordance
with this rule.








420 The Defence Rules of Procedure, 1959.


(11) If an objection to the president is allowed the court shall
report to the convening officer without proceeding further with the trial.

(12) If as the result of the allowance of an objection to a member
there are insufficient officers available to form a court in compliance
with the Act the court shall report to the convening officer without
proceeding further with the trial and the convening officer may either
appoint an officer as a member to fill the vacancy or convene a fresh
court to try the accused.

Swearing 27. (1) Immediately after rule 26 has been complied with, an oath
of court. shall be administered to the president and each member of the court in
accordance with rule 33 and in the presence of the accused.

(2) If there is a judge advocate, the oath shall be administered by
him to the president first and afterwards to each member of the court.
If there is no judge advocate, the oath shall be first administered by the
president to the members of the court and then to the president by any
member of the court already sworn.

(3) A court may be sworn at one time to try any number of
accused then present before it, whether they are to be tried jointly or
separately.

(4) When a court is convened to try two or more accused
separately and one accused objects to the president or to any member
of the court, the court may, if they think fit, proceed to determine that
objection in accordance with rule 26 or postpone the trial of that accused
and swear the court for the trial of the other accused only.

Swearing 28. After the court have been sworn, an oath shall be adminis-
of judge tered to the judge advocate (if any) in accordance with rule 33 and in
advocate. the presence of the accused.


Swearing 29. After the court and judge advocate (if any) have been
of officers sworn, an oath shall be administered to any officer under instruction in
under accordance with rule 33 and in the presence of the accused.
instruction.
Appoint- 30. (1) A competent and impartial person may be appointed at any
ment and time to act as an interpreter or shorthand writer at a trial by court-
swearing martial and before he so acts an oath shall be administered to him in
of, and
objections accordance with rule 33 and in the presence of the accused.
to, inter-
reters and (2) Before a person is sworn as an interpreter or as a shorthand
writers, writer, the accused shall be given an opportunity to object to him in
the same manner as an objection may be taken to a member of the
court and, if the court think that the objection is reasonable, that person
shall not act as interpreter or shorthand writer.








The Defence Rules of Procedure, 1959. 421


31. The accused shall have no right to object to a judge advo-Norightof
objection
cate, prosecutor or any officer under instruction.o jude
advocate,
prosecutor
and officer
under
instruction.
32. (1) When a court has been convened to try two or more accused Order of
trials.
separately and have been sworn in accordance with rule 27 (3), the
court shall try them in the order indicated by the convening officer or,
where he has given no such indication, then in such order as the court
think fit.

(2) When a court has been convened to try an accused on charges
which are included in more than one charge-sheet, the court shall take
the charge-sheets in the order indicated by the convening officer or,
where he has given no such indication, in such order as they think fit.

33. (1) An oath which is required to be administered under these Oathsand
Rules shall be administered in the appropriate form and in the mannersolemn
affirma-
set out in the Sixth Schedule to these Rules: tions
Provided that the opening words of the oath may be varied
to such words and the oath may be administered in such manner as
the person taking the oath declares to be binding on his conscience in
accordance with his religious benefits.

(2) Subject to rule 27 (2) every oath shall be administered at a
court-martial by the president, a member of the court or the judge
advocate.

(3) Where a person is permitted to make a solemn affirmation
instead of swearing an oath, the affirmation shall be in the appropriate
form set out in the Sixth Schedule to these Rules.

(4) The provisions of section 101 of the Act shall apply to pro-
ceedings before a commanding officer, the taking of summaries of
evidence and proceedings before an appropriate superior authority as
they apply to proceedings before a court-martial.

ARRAIGNMENT OF ACCUSED
34. (1) When the court and judge advocate (if any) have been Arraign-
sworn the accused shall be arraigned, ment of
accused.
(2) If there is more than one charge against the accused before
the court he shall be required to plead separately to each charge.

(3) If there is more than one charge-sheet against the accused
before the court the court shall arraign and try the accused upon the
charge in the first of such charge-sheets and shall announce their find-







The Defence Rules of Procedure, 1959.


ing thereon and if the accused has pleaded guilty comply with para-
graphs (1) and (2) of rule 44 before they arraign him upon the charge
in any subsequent charge-sheet
Plea to the 35. (1) The accused, before pleading to the charge, may offer a
jurisdic-
tion of the plea to the jurisdiction of the court. If he does so:-
court.
(a) the accused may adduce evidence in support of the plea
and the prosecutor may adduce evidence in answer
thereto; and
(b) the prosecutor may address the court in answer to the
plea and the accused may reply to the prosecutor's
address.

(2) If the court allow the plea they shall adjourn and report to
the convening officer.

(3) When a court report to the convening officer under this rule,
the convening officer shall:-

(a) if he approves the decision of the court to allow the plea,
dissolve the court;
(b) if he disapproves the decision of the court:-
(i) refer the matter back to the court and direct them
to proceed with the trial; or
(ii) convene a fresh court to try the accused.

Objection 36. (1) An accused before pleading to a charge may object to it on
to charge. the grounds that it is not correct in law or is not framed in accordance
with these Rules, and if he does so, the prosecutor may address the
court in answer to the objection and the accused may reply to the
prosecutor's address.

(2) If the court uphold the objection, they shall either amend
the charge, if permissible under rule 82, or adjourn and report to the
convening officer:
Provided that if there is another charge or another charge-
sheet before the court the court may, before adjourning under this rule,
proceed with the trial of such other charge or other charge-sheet.

(3) When a court report to the convening officer under this rule,
the convening officer shall:-

(a) if he approves the decision of the court to allow the
objection:-
(i) dissolve the court; or
(ii) where there is another charge or another charge-
sheet before the court to which the objection does









The Defence Rules of Procedure, 1959.


not relate and which the court has not tried,
direct the court to proceed with the trial' of such
other charge or charge-sheet only; or
(iii) amend the charge to which the objection relates
if permissible under rule 83, and direct the court
to try it as amended;

(b) if he disapproves the decision of the court to allow the
objection:-
(i) direct the court to try the charge; or
(ii) where there is another charge or another charge-
sheet before the court to which the objection
does not relate and which the court has not tried,
direct the court to proceed with the trial of such
other charge or charge-sheet only; or
(iii) convene a fresh court to try the accused.
Plea in bar
37. (1) An accused before pleading to a charge, may offer a plea of trial.
in bar of trial in reliance upon section 120 or section 122 of the Act.
If he does so:-
(a) the accused may adduce evidence in support of the plea
and the prosecutor may adduce evidence in answer
thereto; and
(b) the prosecutor may address the court in answer to the
plea and the accused may reply to the prosecutor's
address.

(2) If the court allow the plea they shall adjourn and report
to the convening officer:
Provided that if there is another charge or another charge-sheet
before the court, the court may, before adjourning under this rule,
proceed with the trial of such other charge or other charge-sheet.

(3) When a court report to the convening officer under this rule,
the convening officer shall:-
(a) if he approves the decision of the court to allow the
plea:-
(i) dissolve the court; or
(ii) where there is another charge or another charge-
sheet before the court to which the plea does not
relate and which the court has not tried, direct the
court to proceed with the trial of such other charge
or charge-sheet only;

(b) if he disapproves the decision of the court to allow the
plea:-
(i) direct the court to try the charge; or


* 423








424 The Defence Rules of Procedure, 1959.

(ii) where there is another charge or another charge-
sheet before the court to which the plea does not
relate and which the court has not tried, direct the
court to proceed with the trial of such other
charge or charge-sheet only; or
(iii) convene a fresh court to try the accused.

Applica- 38. Where two or more accused are charged jointly, any one
tion by an of the accused may, before pleading to the charge, apply to the court
accused at
a joint to be tried separately on the ground that he would be prejudiced in his
trial to be defence if he were not tried separately. If the accused makes such an
separately. application the prosecutor may address the court in answer thereto and
the accused may reply to the prosecutor's address. If the court are
of the opinion that the interests of justice so require they shall allow
the application and try separately the accused who made it.

Applica- 39. Where a charge-sheet contains more than one charge the
tion by an accused may, before pleading to the charges, apply to the court to be
accused tried separately on any charge in that charge-sheet on the ground that
at a trial
to have a he would be prejudiced in his defence if he were not tried separately
charge on that charge. If the accused makes such an application the prosecu-
tried tor may address the court in answer thereto and the accused may reply
separately. to the prosecutor's address. If the court are of the opinion that the
interests of justice so require they shall allow the application and try
the accused separately on the charge to which it relates as if that
charge had been inserted in a separate charge-sheet.

Pleas to 40. (1) After any pleas under rules 35 and 37, any objection under
the charge. rule 37, and any application under rules 38 and 39, have been dealt with,
the accused shall be required (subject to paragraph (2) of this rule) to
plead either guilty or not guilty to each charge on which he is arraigned.

(2) Where a court is empowered by section 97 of the Act to
find an accused guilty of an offence other than that charged or guilty
of committing the offence in circumstances involving a less degree of
punishment or where they could, after hearing the evidence, make a
special finding of guilty subject to exceptions or variations in accordance
with rule 65, the accused may plead guilty to such other offence or
to the offence charged as having been committed in circumstances
involving a less degree of punishment or to the offence charged subject
to such exceptions or variations.

Acceptance 41. (1) If an accused pleads guilty to a charge under either para-
of pleas graph (1) or paragraph (2) of rule 40, the president or judge advocate
of guilty. shall, before the court decide to accept the plea, explain to the accused
the nature of the charge and the general effect of his plea and in parti-
cular the difference in procedure when an accused pleads guilty and
when an accused pleads not guilty.

(2) A court shall not accept a plea of guilty under either para-
graph (1) or paragraph (2) of rule 40 if:-








The Defence Rules of Procedure, 1959. 425

(a) the court are not satisfied that the accused understands
the nature of the charge or the effect of his plea; or
(b) the president having regard to all the circumstances, con-
siders that the accused should plead not guilty; or
(c) the accused is liable if convicted to be sentenced to death.

(3) In the case of a plea of guilty under rule 40 (2), a court shall
also not accept the plea unless the convening officer concurs and they
are satisfied of the justice of such course. The concurrence of the
convening officer may be signified by the prosecutor.

(4) When a plea of guilty under either paragraph (1) or para-
graph (2) of rule 40 is not accepted by the court or the accused either
refuses to plead to the charge or does not plead to it intelligibly, the
court shall enter a plea of not guilty.

(5) When a court are satisfied that they can properly accept a
plea of guilty under either paragraph (1) or paragraph (2) of rule
40 they shall record a finding of guilty in respect thereof.

42. (1) When an accused pleads guilty to the first of two or more Pleas on
alternative charges, the court, if they accept the accused's plea of guilty, alternative
shall record a finding of guilty in respect of the first charge and the
prosecutor shall withdraw any alternative charge before the accused
is arraigned on it.

(2) When an accused pleads guilty to one of two or more
charges which are laid in the alternative other than the first of such
charges, the court may:-
(a) proceed as if the accused had pleaded not guilty to all
the charges; or
(b) with the concurrence of the convening officer (which
may be signified by the prosecutor) record a finding of
guilty on the charge to which the accused has pleaded
guilty and a finding of not guilty on any alternative
charge which is placed before it in the charge-sheet.
Where the court record such findings, the prosecutor
shall before the accused is arraigned on it withdraw any
charge which is alternative to the charge of which the
court have found the accused guilty and which is placed
after it in the charge-sheet.

PROCEDURE AFTER RECORDING A FINDING OF GUILTY
43. After the court have recorded a finding of guilty, if there is Order of
no other charge in the same charge-sheet to which the accused has trial where
pleas of
pleaded not guilty and no other accused who has pleaded not guilty to guilty and
a charge in that charge-sheet, they shall proceed with the trial as not guilty.
directed by rule 44. If there is another charge in the charge-sheet to
which the accused has pleaded not guilty or there is another accused








The Defewne Rules of Procedure, 1959.


who has pleaded not guilty to a charge in that charge-sheet, the court
shall not comply with rule 44 until after they have dealt with such other
charge or tried such other accused and have announced and recorded
their finding in respect thereof.

Procedure 44. (1) After the court have recorded a finding of guilty in respect
on finding of a charge to which an accused pleaded guilty, the prosecutor shall, sub-
of guilty
after plea ject to rule 43, read the summary or abstract of evidence to the court
of guilty, or inform the court of the facts contained therein:
Provided that if an expurgated copy of the summary or abstract
was sent to the president, the prosecutor shall not read to the court
those parts of the summary or abstract which have been expurgated or
inform the court of the facts contained in those parts, and shall not
hand the original summary or abstract to the court until the trial is
concluded.

(2) If there is no summary or abstract of evidence or the sum-
mary or abstract is, in the opinion of the court, inadequate or incom-
plete, the court shall hear and record in accordance with these Rules
sufficient evidence to enable them to determine the sentence.

(3) After paragraphs (1) and (2) of this rule have been complied
with, the accused may:-
(a) adduce evidence of character and in mitigation of punish-
ment; and
(b) address the court in mitigation of punishment.

(4) After paragraph (3) of this rule has been complied with, the
court shall proceed as directed in paragraphs (1), (2), (3) and (4) of
rule 70.

CHANGES OF PLEA
Changes of 45. (1) An accused who has pleaded not guilty may at any time
plea. before the court close to deliberate on their finding withdraw his plea
of not guilty and substitute a plea of guilty (including a plea of guilty
under rule 40 (2)) and in such case the court shall, if they are satisfied
that they can accept the accused's changed plea under these Rules,
record a finding in accordance with the accused's change plea and so far
as is necessary proceed as directed by rule 44.

(2) If at any time during the trial it appears to the court that
an accused who has pleaded guilty does not understand the effect of
his plea or the nature of the charge, the court shall enter a plea of not
guilty and proceed with the trial accordingly.

(3) When a court enter a plea of not guilty in respect of any
charge under paragraph (2) of this rule, they shall, if there was a charge
laid in the alternative thereto which the prosecutor withdrew under
rule 42, reinstate such alternative charge, arraign the accused thereon
and proceed with the trial as if it had never been withdrawn.








The Defence Rules of Procedure, 1959. 427


PROCEDURE ON PLEAS OF NOT GUILTY
46. After a plea of not guilty to any charge has been entered:- Applica-
tion for
(a) the court shall ask the accused whether he wishes to adjourn-
apply for an adjournment on the ground that any of "t of
these Rules relating to procedure before trial have not
been complied with and that he has been prejudiced there-
by or on the ground that he has not had sufficient oppor-
tunity for preparing his defence:

(b) if the accused applies for an adjournment:-
(i) the accused may adduce evidence in support of his
application and the prosecutor may adduce evidence
in answer thereto; and
(ii) the prosecutor may address the court in answer to
the application and the accused may reply to the
prosecutor's address;

(c) the court may grant an adjournment if they think the
interests of justice so require.

47. (1) The prosecutor may, if he desires, and shall, if required by Case for
the court, make an opening address explaining the charge, where the prosecu-
necessary and the nature and general effect of the evidence which heon
proposes to adduce.

(2) The witnesses for the prosecution shall then be called and
give their evidence.

48. If the prosecutor intends to adduce evidence which is not Calling of
contained in any summary or abstract of evidence given to the accused, witnesses
notice of such intention together with the particulars of the evidence whose
shall, when practicable, be given) to the accused a reasonable time before is not
the evidence is adduced. If such evidence is adduced without such notice contained
or particulars having been given, the court may, if the accused soin summary
desires, either adjourn after receiving the evidence or allow any cross- or abstract
examination arising out of that evidence to be postponed, and the court of evidence.
shall inform the accused of his right to apply for such an adjournment
or postponement.

49. The prosecutor shall not be bound to call all the witnesses Notice to
against the accused whose evidence is contained in the summary or an accused
abstract of evidence nor a witness whom he has notified the accused witness will
that he intends to call under rule 48, but if the prosecutor does not not be
intend to call such a witness to give evidence he shall either tender him e 'led by
the pro-
for cross-examination by the accused, or give the accused reasonable seeutor.
notice that he does not intend to call the witness and that the accused
will be allowed to communicate with him and to call him as a witness
for the defence, if he so desires and if the witness is available.








428 The Defence Rules of Procedure, 1959.

CALLING AND EXAMINATION OF WITNESSES
Swearing 50. Save as is otherwise provided by the Act an oath shall be
of witnesses. administered to each witness in accordance with rule 33 before he gives
evidence and in the presence of the accused.

Exclusion 51. During a trial a witness other than the prosecutor or accused
of witnesses shall not, except by leave of the court, be in court while not under
from
court. examination, and if while he is under examination a discussion arises
as to the allowance of a question or otherwise with regard to the
evidence the court may direct the witness to withdraw during such
discussion.

Examina- 52. (1) A witness may be examined by the person calling him and
tion of may be cross-examined by the opposite party to the proceedings and
on the conclusion of any such cross-examination may be re-examined
by the person who called him on matters arising out of the cross-
examination.

(2) The person examining a witness shall put his questions to the
witness orally and unless an objection is made by the witness, court,
judge advocate, prosecutor or by the accused, the witness shall reply
forthwith. If such an objection is made, the witness shall not reply
until the objection has been disposed of.

(3) The court may allow the cross-examination or re-examina-
tion of a witness to be postponed.

Examina- 53. (1) The president, the judge advocate and, with permission of
tion of the president, any member of the court may put questions to a witness.
witnesses
by court.
(2) Upon any such question being answered, the prosecutor and
the accused may put to the witness such questions arising from the
answer which he has given as seem proper to the court.

Reading 54. (1) The record which has been made of the evidence given by a
back of witness shall be read back to him before he leaves the court and when
evidence to this is done he may ask for the record to be corrected or explain the
witnessesevidence which he has given. If any such correction is made or explana-
tion given, the prosecutor and the accused may put such questions to the
witness respecting the correction or explanation as seem proper to
the court.

(2) When a shorthand writer is employed it shall not be neces-
sary to comply with paragraph (1) of this rule, if, in the opinion of the
court and the judge advocate (if any), it is unnecessary to do so:
Provided that if any witness so demands paragraph (1) of this
rule shall be complied with.








The Defence Rules of Procedure, 1959. 429


55. (1) The court may, at any time before they close to deliberate Calling of
witnesses
on their finding or if there is a judge advocate before he begins to sum by court
up, call a witness or recall a witness, if in the opinion of the court it and recall-
is in the interests of justice to do so. If the court call a witness or i ses.
recall a witness under this rule, the prosecutor and the accused may put
such questions to the witness as seem proper to the court.

(2) The prosecutor and the accused may, at any time before the
court close to deliberate on their finding or if there is a judge advocate
before he begins to sum up, recall a witness by leave of the court and
the prosecutor and the accused may put such questions to the witness
as seem proper to the court.

56. A statutory declaration which is admissible in accordance Statutory
with the provisions of section 98 of the Act shall be handed to the court tions.la
by the prosecutor or the accused, as the case may be, without being
produced by a witness.

SUBMISSION OF NO CASE TO ANSWER AND STOPPING OF CASES
57. (1) At the close of the case for the prosecution the accused may Submission
submit to the court in respect of any charge that the prosecution has tof answer
failed to establish a prima facie case for him to answer and that he and power
should not be called upon to make his defence to that charge. If the of court to
stop a case.
accused makes such a submission, the prosecutor may address the
court in answer thereto and the accused may reply to the prosecutor's
address.

(2) The court shall not allow the submission unless they are
satisfied that:-

(a) the prosecution has not established a prima facie case
on the charge as laid; and

(b) it is not open to them on the evidence adduced to make
a special finding under either section 97 of the Act or
rule 65 (3).

(3) If the court allow the submission they shall find the accused
not guilty of the charge to which it relates and announce this finding in
open court forthwith; if the court disallow the submission they shall
proceed with the trial of the offence as charged.

(4) Irrespective of whether there has been a submission under
this rule or not, the court may at any time after the close of the hearing
of the case for the prosecution, and after hearing the prosecutor find the
accused not guilty of a charge, and if they do so they shall also announce
such finding in open court forthwith.








The Defence Rules of Procedure, 1959.


CASE FOR THE DEFENCE
Explana- 58. (1) After the close of the case for the prosecution, the president
tion to
accused of or judge advocate (if any) should explain to the accused that:-
his rights
whn mak- (a) if he wishes, he may give evidence on oath as a witness
ing his or make a statement without being sworn, but that he is
defence. not obliged to do either;
(b) if he gives evidence on oath, he will be liable to be
cross-examined by the prosecutor and to be questioned
by the court and the judge advocate (if any), but that,
if he makes a statement without being sworn, no one
will be entitled to ask him any questions; and
(c) whether he gives evidence or makes a statement or
remains silent, he may call witness on his behalf both to
the facts of the case and to his character.

(2) After the president or judge advocate has complied with
paragraph (1) of this rule, he shall ask the accused if he intends to give
evidence on oath or to make a statement without being sworn and if
he intends to call any witness on his behalf and, if so, whether he is a
witness to fact or to character only.

(3) If the accused intends to call a witness to the facts of the
case other than himself he may make an opening address outlining the
case for the defence before the evidence for the defence is given.
Evidence 59. (1) After rule 58 has been complied with the witnesses for the
for the
defence defence (if any) shall be called and give their evidence.
(2) Rules 50, 51, 52, 53, 54, 55, and 56 shall apply to the witnesses
and the evidence for the defence as they apply to the witnesses and the
evidence for the prosecution.
Evidence 60. After the witnesses for the defence have given their evidence
in rebuttal. the prosecutor may, by leave of the court, call a witness or recall a wit-
ness to give evidence on any matter raised by the accused in his defence
which the prosecution could not properly have mentioned to the court
before the accused disclosed his defence or which the prosecution could
not reasonably have foreseen.

Closing 61. (1) After all the evidence has been given the prosecutor and the
addresses. accused may each make a closing address to the court.

(2) The accused shall be entitled to make his closing address
after the closing address by the prosecutor unless the accused has called
a witness to fact other than himself, in which case the prosecutor shall
be entitled, subject to paragraphs (3) and (4) of this rule, to make his
closing address after the closing address by the accused.

(3) Where two or more accused are tried jointly, any one of
them who has called a witness to fact other than himself shall make his
closing address before the closing address by the prosecutor, and any








The Defence Rules of Procedure, 1959.


one of them who has called no such witness shall be entitled to make
his closing address after the closing address by the prosecutor.

(4) Where two or more accused are represented by the same
defending officer or counsel he may make one closing address only. If
any one of the accused for whom he appears has called no witness to
fact other than himself such defending officer or counsel shall be
entitled to make his closing address after the closing address by the
prosecutor.

62. For the purposes of rules 58 and 61, the handing in by theHanding
accused of a statutory declaration shall be treated as the calling of a tatutory
witness by him. declara-
tion by
SUMMING UP BY JUDGE ADVOCATE accused.
63. After the closing addresses, if there is a judge advocate, he Summing
shall sum up the evidence and advise the court on the law relating to UP by
the case in open court. ueate.

DELIBERATION ON, AND ANNOUNCEMENT OF, FINDING ON THE CHARGE

64. (1) After the closing addresses, or if there is a judge advocate
after his summing up, the court shall close to deliberate on their find-Delibera-
tion on
ing on the charge. finding on
the charge.
(2) While the court are deliberating on their finding on the
charge no person shall be present except the president and members
of the court and any officer under instruction.

(3) If there is a judge advocate and the court, while deliberating
on their finding on the charge require further advice from him, the
court shall suspend their deliberation and ask and be given such advice
in open court.

65. (1) The opinion of the president and each member as to the
finding shall be given in closed court, orally, and on each charge Expression
separately and their opinions shall be given in order of seniority com-of n aions
mencing with the junior in rank. form of,
finding.
(2) Save as is otherwise provided in paragraph (4) of this rule the
court shall record on every charge on which a plea of not guilty has
been recorded:-

(a) a finding of guilty or a special finding in accordance with
section 97 or subsection (2) of section 111 of the Act or
paragraph (3) of this rule; or
(b) a finding of not guilty or of not guilty and honourably
acquitted of the charge.
(3) Where the court are of the opinion as regards any charge
that the facts which they find to be proved in evidence differ from the
facts alleged in the particulars of the charge, but are nevertheless suffi-








432 The Defence Rules of Procedure, 1959.


cient to prove the offence stated in the charge and that the difference is
not so material as to have prejudiced the accused in his defence, the
court may, instead of recording a finding of not guilty, record a finding
that the accused is guilty of the charge subject to any exception or
variation which they shall specify in the finding.

(4) Where the court have recorded a finding of guilty on a
charge which is laid in the alternative they shall find the accused not
guilty of any charge alternative thereto which is placed before it in.
the charge-sheet and record no finding on any charge alternative
thereto which is placed after it in the charge-sheet.

Announce- 66. (1) The finding on each charge shall be announced in open court
ment of
finding, forthwith.
(2) Every finding which requires confirmation shall be announced
as being subject to confirmation.

(3) The finding shall be in the appropriate form set out in the
Fourth Schedule to these Rules.

PROCEDURE AFTER ANNOUNCEMENT OF FINDING

Comple- 67. After the court have announced their finding on any charge
tion of on which the court have entered a plea of not guilty, if there is another
procedure
on plea charge in the same charge-sheet on which the court have accepted a
of guilty plea of guilty, the court shall comply with paragraphs (1) and (2) of
before rule 44 in respect of that charge before proceeding further with the
delibera- trial.
tion on
sentence.

Trial of 68. Where there is another charge-sheet against the accused
charges in before the court, the court shall not comply with rules 69, 70 and 71 until
other they have arraigned and tried the accused and have complied with rule
charge-
sheets 66 and, if necessary, with rule 67, in respect of each charge in such
before other charge-sheet unless that charge-sheet is withdrawn under rule 81.
delibera-
tion on
sentence.

Release of 69. If the findings on all charges against the accused are not
accused. guilty the court shall order the accused to be released and the president
and judge advocate (if any) shall date and sign the record of the pro-
ceedings. The president or the judge advocate shall then forward it as
directed in the convening order.

Accused's 70. (1) If the finding on a charge against the accused is guilty, or
record and the court makes a special finding in accordance with section 97 of the
plea in Act or rule 65 (3) the court before deliberating on their sentence shall
mitigation. whenever possible take evidence of his age, rank and service record.
Such service record shall include:-







The Defence Rules of Procedure, 1959. 433

(a) any recognized acts of gallantry or distinguished coriduct '
onr the part of the accused and any decoration to which
he is entitled; and
(b.) particulars of any offence of which the accused has been
found guilty during his service and of the length of time
he has been under arrest awaiting trial or in confinement
under a current sentence.

(2) Evidence of the matters referred to in paragraph (1) of this
rule may be given by a witness producing to the court a written state-
ment containing a summary of the entries in the service booksrelating
to the accused, after the witness has in court verified such statement
and identified the accused as the person to whom it relates. Such state-
ment shall be in the form set out in the Fourth Schedule to these Rules.

(3) In addition to the evidence contained in the statement
referred to in paragraph (2) of this rule, it shall be the duty of.the
prosecutor whenever possible to call as a witness an officer t6 give to
the court any information in the possession of the military authorities
regarding:-
(a) the accused's family background and responsibilities and
any other circumstances which may have made him more
susceptible to the commission of the offence charged;
(b) his general conduct in the service; and ':
(c) particulars of offences which do not appear in the
statement above referred to of which the accused has
been found guilty by a civil court .and.whichare of the
same general nature as that of which the accused, has
been found guilty by the court-martial: : .
Provided that the court shall not be informed of any such
civil offence unless the finding is proved in accordance with
section 204 of the Act, or the accused has admitted, after the
purpose for which such admission is required has been ex-
plained to him, that he has been found guilty of-the offence.

(4) The accused may cross-examine any witness who, gives
evidence in accordance with paragraphs (2) and (3) of this rule and if
the accused so requires the service books, or a duly certified copy of the
material entries therein, shall be produced, and if the dotents:of the
form are in any respect not in accordance with th'e: service books or
such certified copy, the court shall cause the form to be, corrected
accordingly.

(5) After paragraphs (1), (2), (3) and (4) of this rule have been
complied with the accused may:- .
(a) give evidence on oath and call witnesses in mitigafioil of
punishment and to his character; and
(b) address the court in mitigation of punishment;.,







434 The Defence Rules of Procedure, 1959.

Request by 71. (1) Before the court close to deliberate on their sentence, the
accused accused may request the court to take into consideration any other
offences to offence against the Act committed by him of a similar nature to that
be taken of which he has been found guilty, and, upon such a request being made,
into con- the court may agree to take into consideration any of such other offences
sideration. as to the court seems proper.

(2) A list of the offences which the court agree to take into con-
sideration shall be read to the accused by the president or judge advocate
who shall ask the accused if he admits having committed them. The
accused shall sign a list of the offences which he admits having com-
mitted and the court shall take the offences in this list into consideration.
This list shall be signed by the president and be attached to the record
of the proceedings as an exhibit.

DELIBERATION ON SENTENCE
Persons 72. While the court are deliberating on their sentence no person
entitled shall be present except the president, members, judge advocate (if any)
to be
present and any officer under instruction.
during
delibera-
tion on
sentence.
Sentence 73. (1) The court shall award one sentence in respect of all the
and offences of which the accused is found guilty. The sentence shall be in
recommen-
dation to the appropriate form set out in the Fifth Schedule to these Rules.
mercy.

(2) The opinion of the president and each member as to the
sentence shall be given orally and in closed court and their opinions
shall be given in order of seniority commencing with the junior in rank.
(3) When the court have agreed to take into consideration an
offence which is not included in the charge-sheet, the court shall award
a sentence appropriate both to the offence of which the accused has
been found guilty and to the other offence which they are taking into
consideration, but not greater than the maximum sentence which may
be awarded under the Act for the offence of which the accused has been
found guilty, save that they may include in their sentence a direction
that such deductions shall be made from the pay of the accused as they
would have had the power to direct to be made if the accused had been
found guilty of the offence taken into consideration as well as of the
offence of which he has been found guilty.
(4) The court may make a recommendation to mercy and if they
do so shall record in the proceedings their reasons for making it.

Postpone- 74. Where two or more accused are tried separately by the
ment of same court upon charges arising out of the same transaction, the court
delibera-
tion on may, if they think that the interests of justice so require, postpone their
sentence. deliberation upon the sentence to be awarded to any one or more of
such accused until they have recorded and announced their findings in
respect of all of such accused.









The Defence Rules of Procedure, 1959.


ANNOUNCEMENT OF SENTENCE AND CONCLUSION OF TRIAL Announce-
ment of
75. (1) The sentence, and any recommendation to mercy together sentence
with the reasons for making it, shall be announced in open court. The and con-
clusion of
sentence shall also be announced as being subject to confirmation. trio o.

(2) When paragraph (1) of this rule has been complied with the
president shall announce in open court that the trial is concluded.

(3) Immediately after the conclusion of the trial the president
and judge advocate (if any) shall date and sign the record of the pro-
ceedings. The president or the judge advocate shall then forward it as
directed in the convening order.

GENERAL DUTIES OF THE PRESIDENT, PROSECUTOR AND THE
DEFENDING OFFICER OR COUNSEL

76. It shall be the duty of the president to ensure that the trial General
is conducted in accordance with the Act and these Rules and in a man- duties of
ner befitting a court of justice and in particular:- the presi-
dent.
(a) to ensure that the prosecutor and the defending officer
or counsel conduct themselves in accordance with these
Rules;
(b) to ensure that the accused does not suffer any disadvan-
tage in consequence of his position as such or of his
ignorance or of his incapacity to examine or cross-
examine witnesses or to make his own evidence clear and
intelligible, or otherwise;
(c) to ensure that an officer under instruction does not ex-
press an opinion to the court on any matter relating to
the trial before the court have come to their finding, nor
on sentence before the court have decided upon the
sentence;
(d) when there is no judge advocate present, to ensure that
a proper record of the proceedings is made in accordance
with rule 91 and that the record of the proceedings and
exhibits are properly safeguarded in accordance with
rule 93.

77. (1) It shall be the duty of the prosecutor and of the defending General
officer or counsel to assist the court in the administration of justice, to duties of
treat the court and judge advocate with due respect and to present prosecutor
and defend-
their cases fairly and in particular:- ing officer
(a) to conform with these Rules and the practice of the civil or counsel.
courts in England relating to the examination, cross-
examination and re-examination of witnesses;
(b) not to refer to any matter not relevant to the charge
before the court; and
(c) not to state as a matter of fact any matter which is not
proved or which they do not intend to prove by evidence.









436 The Defence Rules of Procedure, 1959.

(2) Without prejudice to the generality of any of the provisions
of paragraph (1) of this rule, it shall be the duty of the prosecutor to
bring the whole of the transaction before the court and not to take
any unfair advantage of, or to withhold any evidence in favour of, the
accused.

Counsel. 78. (1) Subject to these Rules the following persons shall beallowed
to appear as counsel at a court-martial:-
(a) every barrister-at-law who has a right of audience
before, and every solicitor who is entitled to practice in,
a superior court of a Territory;
(b) every person who is qualified as a barrister-at-law or a
solicitor according to the law of England or Northern
Ireland;
(c) every person who is qualified as an advocate or as a
solicitor according to the law of Scotland; and
(d) with the consent of the convening officer, any person who
is recognized by him as having in any Commonwealth
country or territory outside the Federation rights and
duties similar to those of a barrister-at-law or solicitor
in England, and as being subject to punishment or dis-
ability for a breach of professional rules.

(2) Any right granted by these Rules to the accused at a court-
martial to call or examine witnesses or to address the court, any right
of the accused to object to the admissibility of evidence at a court-
martial and any right granted to the accused by rules 24 (1) (e), (g)
and (h), 26, 30, 35, 36, 37, 38, 39, 46, 57, 71, 79 (2), 91 and 93 (2)
may be exercised by his defending officer or his counsel on his behalf,
and any reference in these Rules to any address, request, application,
claim, submission, objection or plea to the jurisdiction or in bar of trial
made, taken or offered at a court-martial by the accused shall be con-
strued as including any address, request, application, claim, submission,
objection or plea to the jurisdiction or in bar of trial made, taken or
offered at a court-martial by his defending officer or counsel on his
behalf.
(3) If the accused is to be defended at his court-martial by counsel
not nominated by the convening officer the accused shall give the
convening officer notice of this fact not less than twenty-four hours
before his trial.

POWERS AND DUTIES OF THE JUDGE ADVOCATE

General 79. (1) The prosecutor and the accused respectively are at all times
duties of after the judge advocate is named to act at the trial entitled to his
judge opinion on any question of law or procedure relative to the charge or
advocate. trial whether he is in or out of court, subject when he is in court to the
permission of the court.
(2) On the assembly of the court the judge advocate shall advise
the court of any defect in the constitution of the court or in the charge-
sheet, and during the trial he shall advise the court upon all questions








The Defence Rules of Procedure, 1959. 437

of law or procedure which may arise. The court shall accept his advice
on all such matters unless they have weighty reasons for not doing so,
and if the court do riot accept it their reasons for not doing so shall be
recorded in the proceedings.

(3) After the closing addresses, the judge advocate shall sum up
the evidence and advise the court upon the law relating to the case
before the court close to deliberate on their finding. If in the course of
deliberating on their finding the court require further advice from the
judge advocate, they shall suspend their deliberation and ask and be
given such advice in open court.

(4) If when the court announce a finding of guilty or a special
finding under either section 97 of the Act or rule 65 (3) the judge
advocate is of the opinion that such finding or special finding is con-
trary to the law relating to the case, he shall once more, but not more
than once more, advise the court what findings are, in his opinion, open
to them. The court shall then reconsider their finding in closed court.
The record of the proceedings relating to such reconsideration shall be
in the form set out in the Fourth Schedule to these Rules.
(5) The judge advocate shall be present whenever the court is
sitting whether in open or closed court, except when the court is
deliberating on the finding on the charge or on a revision thereof.
(6) The judge advocate has equally with the president the duty
of ensuring that the accused does not suffer any disadvantage in con-
sequence of his position as such or of his ignorance or of his incapacity
to examine or cross-examine witnesses, or to make his own evidence
clear and intelligible, or otherwise.
(7) The judge advocate shall be responsible for seeing that a
proper record of the proceedings is made in accordance with rule 91 and
responsible for the safe custody of the record of the proceedings under
rule 93.

80. (1) Where there is a judge advocate and:- Judge
advocate
(a) during the course of a trial any question as to the admis-. sitting
sibility of evidence arises; or alone.
(b) during a joint trial an application is made by any of the
accused for a separate trial; or
(c) an application is made by an accused that a charge should
be tried separately;
the president may direct that the point at issue shall be determined by
the judge advocate in the absence of the president and the members of
the court and of any officer under instruction. Where the president so
directs he, the members of the court and any officer under instruction
shall withdraw from the court.
(2) The judge advocate shall, when the president and members
of the court and any officer under instruction have withdrawn in accord-
ance with paragraph (1) of this rule, hear the arguments and evidence








The Defence Rules of Procedure, 1959.


relevant to the point at issue and shall give his ruling upon this point
and such reasons therefore as he may consider necessary. After the judge
advocate has given his ruling, the president and members of the court
and any officer under instruction shall return to the court room and the
judge advocate shall announce his ruling to them and the court shall
follow his ruling.

(3) When a judge advocate sits alone in accordance with this
rule the proceedings before him shall form part of the proceedings of
the court, and subsection (1) of section 58, sections 59 and 92, sub-
sections (1) and (2) of section 93, and sections 94, 98, 99, 100, and 101
of the Act and rules 33, 50, 51, 52, 53, 54, 55, 56, 77, 78, 84, 85, 86,
90, 91, 92, 93, 96, 97 and 105 shall apply to proceedings before the
judge advocate sitting alone as they apply to proceedings before the
president and members of the court, and anything which is authorised
by those sections and those rules to be done by the court or by the
president may be done by the judge advocate when sitting alone.

(4) When a judge advocate is sitting alone in accordance with
this rule and a person subject to military law under the Act commits an
offence against subsection (1) of section 58 of the Act, the judge
advocate shall report the occurrence to the president who shall take
such action as he considers appropriate.

(5) The judge advocate shall be responsible for ensuring that
the president and members do not see the record of the proceedings
before the judge advocate when sitting alone until after the court has
announced its finding.

WITHDRAWAL AND AMENDMENT OF CHARGE-SHEETS AND CHARGES

With- 81. A court may with the concurrence of the convening officer
drawal of (which may be signified by the prosecutor) allow the prosecutor to
charge-
sheets and withdraw a charge before the accused is arraigned thereon or a charge-
charges. sheet before the accused is arraigned on any charge therein.

Amend- 82. (1) At any time during a trial if it appears to the court that
meant of there is in the charge-sheet:-
charge-
sheets (a) a mistake in the name or description of the accused;
find
charges (b) a mistake which is attributable to a clerical error or
by the
court, omission;
the court may amend the charge-sheet so as to correct the mistake.

(2) If at any time during a trial at which there is a judge advocate
it appears to the court, before they close to deliberate on their finding,
that it is desirable in the interests of justice to make any addition to,
omission from or alteration in, a charge which cannot be made under
paragraph (1) of this rule they may, if such addition, omission, or
alteration can be made without unfairness to the accused, so amend the
charge if the judge advocate concurs.








The Defence Rules of Procedurc, 1959. 439

(3) If at any time during a trial at which there is no judge
advocate it appears to the court, before they close to deliberate on
their finding, that in the interests of justice it is desirable to make any
addition to. omission from or alteration in a charge which cannot be
made under paragraph (1) of this rule, they may adjourn and report
their opinion to the convening officer, who may:-
(a) amend the charge if permissible under rule 83 and direct
the court to try it as amended after due notice of the
amendment has been given to the accused; or
(b) direct the court to proceed with the trial of the charge
without amending it; or
(c) convene a fresh court to try the accused.

83. When a court report to the convening officer under either Amend-
rule 36 (2) or rule 82 (3), he may amend the charge in respect of which ment of
they have reported to him by making any addition to, omission from charges by
or alteration in the charge which, in his opinion, is desirable in the opening
interests of justice and which he is satisfied can be made without
unfairness to the accused.

SITTINGS AND ADJOURNMENT OF THE COURT

84. Subject to the provisions of the Act and of these Rules Sittings
relating to adjournment, a trial shall be continued from day to day of the
and the court shall sit for such time each day as may be reasonable court.
in the circumstances:
Provided that the court shall not sit on Sunday, Christmas Day, or
Good Friday, unless in the opinion of the court or of the convening
officer the exigencies of the service make it necessary to do so.

85. (1) During a trial the court may adjourn from time to time Adjourn-
and from place to place as the interests of justice require. ment.

(2) A court may adjourn at any time to consult the convening
officer on a point of law.
(3) If during a trial any reason emerges which makes it advis-
able that the court should not continue to hear the case, the court
shall adjourn and report thereon to the convening officer.
(4) If at any time during a trial the accused becomes ill and it
appears to the court that the illness is such that it will be impracticable
to continue the trial, the court shall ascertain the facts of the illness
and shall then adjourn and report to the convening officer.

86. If at any time during a trial before the court close to View by
deliberate on their finding it appears to the court that they should, in court.
the interests of justice, view any place or thing, they may adjourn for
this purpose. When the court view any place or thing the president,
members of the court, judge advocate (if any), prosecutor, accused
and defending officer or counsel (if any) shall be present.








440 The Defence Rules of Procedure, 1959.

Absence of 87. (1) If after the commencement of a trial the president dies or
president, is otherwise unable to attend, the court shall adjourn and the senior,
members or
judge member shall report to the convening officer.
advocate
(2) If after the commencement of a trial any member of the!
court dies or is otherwise unable to attend, the court, if not thereby
reduced below the legal minimum, shall continue with the trial, but
if reduced below the legal minimum the court shall adjourn and the
president shall report to the convening officer.

(3) If a judge advocate who has been appointed to act at a trial
dies or is otherwise unable to attend, the court shall adjourn and report
to the convening officer.

(4) If the president or a member of the court is absent during
any part of a trial, he shall take no further part in it and the like
steps shall be taken as if the president or member, as the case may be,
had died.

(5) An officer cannot be added to the court after the accused.
has been arraigned.

INSANITY

Insanity 88. (1) If at any time during a trial it appears to the court that the
accused may be unfit to stand his trial by reason of insanity, they shall
take evidence as to his mental condition. If the court after considering
the evidence are of the opinion that the accused is fit to stand his trial
they shall proceed with the trial; but if they are of the opinion that the
accused is unfit to stand his tiial by reason of insanity they shall so
find and their finding shall be announced in open court forthwith and as
being subject to confirmation.

(2) If a court, in the course of their deliberation on their finding
on a charge find pursuant to subsection (2) of section 111 of the Act
that the accused was guilty of the offence but was insane at the time
of the act or omission which constituted it, their finding shall be
announced in open court forthwith and as being subject to confirmation.

(3) Immediately after a finding has been announced under either
paragraph (1) or paragraph (2) of this rule the president: shall announce
in open court that the proceedings are terminated and thereupon the
president and the judge advocate (if any) shall date and sign the record
of the proceedings. The president or judge advocate shall then forward it
as directed in the convening order.

INTERVIEWING AND ATTENDANCE OF WITNESSES

Interview- 89. (1) The prosecution shall not without the consent of the con-
ing of evening officer, or, after the trial has begun, without the consent of the
witnesses. president, interview any witness who was called for the defence at the
taking of the summary of evidence or whose attendance at the trial







The Defence Rules of Procedure, 1959.


the accused has requested in accordance with rule 24 (1) (e), or who has
made a statutory declaration, a copy of which the accused has served
on the prosecution in accordance with section 98 of the Act.

(2) Except as provided in rule 49, neither the accused nor any
person on his behalf shall without the consent of the convening officer,
or, after the trial has begun, without the consent of the president,
interview any witness who was called for the prosecution at the taking
of the summary of evidence or whose evidence is included in the abstract
of evidence, or in respect of whom the prosecution have given the
accused notice under rule 48 that they intend to call him as a witness
at the trial or who has made a statutory declaration a copy of which
the prosecution have served on the accused in accordance with section
98 of the Act.

90. (1) A witness who is subject to military law under the Act Procuring
may be ordered by the proper military authority to attend at the taking attendance
of a summary of evidence or a trial by court-martial, of witnesses.

(2) A witness who is not subject to military law under the Act
may be summoned to attend:-
(a) the taking of a summary of evidence by an order under
the hand of the commanding officer of the accused; or
(b) a trial by court-martial by an order under the hand of
an officer authorised to convene a court-martial or of a
staff officer on his behalf, or, after the assembly of the
court, of the president.

(3) The summons referred to in paragraph (2) of this rule shall,
when it relates to the taking of a summary of evidence be in the appro-
priate form set out in the First Schedule to these Rules, and, when it
relates to a trial by court-martial be in the appropriate form set out in
the Fourth Schedule to these Rules, and shall be served on the witness
either personally or by leaving it with some person at the witness's
normal place of abode, and at the time of such service there shall be
paid or tendered any sum of money necessary to enable such witness
to attend the taking of the summary of evidence or the trial, as the
case may be, and to return.

(4) The provisions of section 100 of the Act shall apply in rela-
tion to proceedings at the taking of a summary of evidence as they
apply in relation to proceedings at a court-martial, and when so applied
they shall be construed as though the words "officer taking the summary
of evidence" were substituted for the words "president of the court-
martial".

RECORD OF PROCEEDINGS

91. (1) The proceedings of general and district courts-martial shall Record of
be recorded in accordance with the following provisions:- proeeed-
ings.
(a) the proceedings of a court-martial shall be recorded in
writing in accordance with the appropriate form set out








The Defence Rules of Procedure, 1959.


in the Fourth Schedule to these Rules and in sufficient
detail to enable the confirming officer to follow the course
of the proceedings and to judge of the merits of the case;
(b) when there is no shorthand writer present the evidence
should be taken down in narrative form as nearly as
possible in the words used:
Provided that if the court, judge advocate, prosecutor
or accused consider it necessary, any particular question
and answer shall be taken down verbatim;
(c) when an objection, submission or application is made
during a trial at which there is no shorthand writer, a
record shall be made of the proceedings relating to such
objection, submission or application if and in such detail
as the court or judge advocate thinks fit:
Provided that if the prosecutor or accused so requests
a note shall be made of the objection, submission or appli-
cation, the grounds therefore, the advice of the judge
advocate (if any) thereon and the decision of the court;
(d) when any address by the prosecutor or the accused or
summing up of the judge advocate is not in writing and
there is no shorthand writer present, it shall only be
necessary to record so much of such address or summing
up as the court or judge advocate thinks proper:
Provided that if the prosecutor or accused so requests
a note shall be made of any particular point in such
address or summing up;
(e) there shall not be recorded in the record of the proceed-
ings any matter not forming part of the trial: but if
any comment or report seems to the court to be neces-
sary, the president may forward it to the proper military
authority in a separate document.

(2) The proceedings of a field general court-martial shall so far
as is practicable be recorded in accordance with the provisions of para-
graph (1) of this rule and the record must in any event contain the
names of the president and members constituting the court and the
judge advocate (if any), the name and description of the accused, the
charge-sheet, all pleas, a brief summary of the evidence and the finding
and sentence.

Exhibits. 92. (1) Subject to paragraph (2) of this rule, any document or
thing admitted in evidence shall be made an exhibit.

(2) When an original document or book is produced to the court
by a witness, the court may at the request of the witness compare a
copy of it or an extract of the relevant parts therefrom with the
original, and after they have satisfied themselves that such copy or
extract is correct and the president or the judge advocate has certified








The Defence Rules of Procedure, 1959. 443

thereon that the court has compared it with the original and found it
correct, the court may return the document or book to the witness and
attach the copy or extract to the record of the proceedings as an exhibit.

(3) Every exhibit shall:-
(a) be marked with a number or letter and be signed by
the president or have a label bearing a number or letter
and the signature of the president affixed to it;
(b) be attached to or kept with the record of the proceedings,
unless in the opinion of the court having regard to the
nature of the exhibit or for other good reason it is not
expedient to attach it to or keep it with the record.
(4) When an exhibit is not attached to or kept with the record
of the proceedings under paragraph (3) (b) of this rule, the president
shall ensure that proper steps are taken for its safe custody.

93. (1) During a trial at which there is no judge advocate, the custodyy
record of the proceedings and the exhibits shall be deemed to be in the and inspee-
custody of the president. During a trial at which there is a judge tion of
record of
advocate the record and the exhibits shall be deemed to be in the custody proceed-
of the judge advocate, save when he is not present in closed court ings during
when they shall be deemed to be in the custody of the president. trial.

(2) With the permission of the court, the prosecutor or the
accused may at any reasonable time before the trial is concluded have
a particular part of the record of the proceedings read to him, and, if
proper precautions are taken for its safety, inspect any exhibit.

CONFIRMATION, REVISION AND PROMULGATION
94. (1) When a confirming authority receives the record of the Confirma-
proceedings of a court-martial and the finding of the court requires tion and
promulga-
confirmation, he shall record his decision thereon and on any sentence tion.
and any order which the court may have made under section 125 of
the Act, on the record of the proceedings in the appropriate form set
out in the Fourth Schedule to these Rules, and such record of his
decision shall form part of the record of the proceedings.
(2) When a court have accepted a plea of guilty made under
rule 40 (2), the confirming authority may confirm their finding notwith-
standing that the court have accepted the plea without the concurrence
of the convening officer if, in the opinion of the confirming authority,
it is in the interests of justice to do so.
(3) When a court have rejected a plea to the jurisdiction of the
court or a plea in bar of trial or have overruled an objection to a charge,
it shall not be necessary for the confirming authority to approve specifi-
cally the decision of the court, but his approval shall be implied
from his confirming the finding on the charge to which the plea or
objection relates. If he disapproves the decision of the court to reject
the plea or to overrule the objection, he shall withhold confirmation of
the finding on the charge to which the plea or objection relates.








The Defence Rules of Procedure, 1959.


(4) A confirming authority may state his reasons for withholding
confirmation in any case, but if he withholds confirmation where a
court have rejected a plea to the jurisdiction or a plea in bar of trial
or have overruled an objection to the charge, because he disapproves
this decision of the court, he shall when recording his decision under
paragraph (1) of this rule state that he has withheld confirmation for
this reason.

(5) If the sentence of a court-martial is informally expressed, the
confirming authority may in confirming the sentence vary the form
thereof so that it shall be properly expressed.

(6) Whenever it appears that there is sufficient evidence or a
plea of guilty under either paragraph (1) or paragraph (2) of rule 40 to
justify the finding of the court, such finding and any lawful sentence
consequent thereon may be confirmed, and if confirmed shall be valid,
notwithstanding any deviation from these Rules, if the accused has not
been prejudiced by such deviation.

(7) When a confirming authority has confirmed a finding and
sentence of a court or has withheld confirmation thereof, he shall send
the record of the proceedings to the commanding officer of the accused
for promulgation to the accused of the finding and sentence, or of the
fact that confirmation has been withheld, as the case may be. The fact
of promulgation shall be recorded on the record of the proceedings in
the form set out in the Fourth Schedule to these Rules. If confirmation
has been withheld because the confirming authority disapproves the
court's decision to reject a plea to the jurisdiction or a plea in bar of
trial or to overrule an objection to the charge, the accused shall be so
informed.
Revision. 95. (1) The proceedings and decision of a court on revision shall
be recorded on the record of the proceedings in the appropriate form
set out in the Fourth Schedule to these Rules, and the president shall
date and sign such record and decision and return it to the confirming
authority, after it has been signed by the judge advocate (if any).

(2) When an accused is acquitted on revision the revised finding
shall be communicated to the accused in such manner as may be specified
by the confirming authority.

LOSS OF PROCEEDINGS
Loss of 96. (1) If before confirmation the whole or any part of the original
original
record of record of the proceedings of a court-martial is lost and a copy exists,
proceed- such copy may, if the president or the judge advocate certifies it to be
ings before correct, be accepted and used in lieu of the original.
confirma-
tion. (2) If before confirmation the whole or any part of the original
record of the proceedings of a court-martial is lost and no copy thereof
exists, but evidence of the proceedings of the court can be procured to
enable the record or part thereof which has been lost to be reconstituted
sufficiently to permit the confirming authority to follow the course of







The Defence Rules of Procedure, 1959.


the proceedings and to judge of the merits of the case, the record as so
reconstituted may, with the consent of the accused, be accepted and
used in lieu of the original:

Provided that where part only of the original record of the
proceedings of a court-martial has been lost, and the part which remains
is sufficient to enable the confirming authority to follow the course of
the proceedings and judge of the merits of the case, such remaining
part may, with the consent of the accused, be accepted and used as if
it were the complete record, and in such case it shall not be necessary
to reconstitute the part of the record which has been lost.

(3) If before confirmation the whole or any part of the original
record of the proceedings of a court-martial is lost and such loss cannot
be made good under either paragraph (1) or paragraph (2) of this rule,
the confirming authority shall withhold confirmation and shall record
his decision in the appropriate form set out in the Fourth Schedule to
these Rules.

97. If after confirmation the whole or any part of the original Loss of
record of the proceedings of a court-martial is lost and a copy thereof original
is certified by the president or the judge advocate to be correct, or a proceed-
sufficient record of the charge, finding, sentence and proceedings before ings
the court and of the confirmation of the finding and sentence remains after
or can be reconstituted to permit of the case being reviewed or the confirma-
sentence reconsidered, such copy or reconstituted record or remaining
part of the record may be accepted and used in lieu of the original.

CUSTODY OF THE RECORD AFTER CONFIRMATION AND COST OF COPIES THEREOF
98. For the purposes of subsection (1) of section 128 of the Act todser-
the prescribed period during which the record of the proceedings ofvation of
a court-martial shall be kept in the custody of the Commander shall record of
be six years from the conclusion of the trial, proceedings
after con-
firmation.

99. The rate at which copies of the record of the proceedings Cost of
of a court-martial shall be supplied in accordance with subsections (2) copies of
and (3) of section 128 of the Act shall be the estimated cost of the copy record of
required not exceeding ten cents for every folio of 72 words. wings.

PETITIONS
100. (1) If an accused who has been sentenced by a court-martial Petitions.
wishes to petition before confirmation against the finding or sentence
or both, he shall present a petition to the confirming authority in the
appropriate form set out in the Seventh Schedule to these Rules.

(2) If an accused who has been sentenced by court-martial wishes
to petition after promulgation against the finding otherwise than by
means of an appeal petition, he shall present a petition to a reviewing








446 The Defence Rules of Procedure, 1959.


authority at any time within six months of promulgation in the appro-
priate form set out in the Seventh Schedule to these Rules.

(3) If an accused who has been sentenced by a court-martial
wishes to petition after promulgation against the sentence, he shall
present a petition to a reviewing authority or an officer authorised to
reconsider a sentence of a court-martial under section 109 of the Act
at any time within six months of promulgation in the appropriate form
set out in the Seventh Schedule to these Rules.

(4) In any of the circumstances specified in the first column of
the list of persons to whom petitions may be presented under this rule
which is set out in the Seventh Schedule to these Rules, an appeal
petition or a petition under paragraph (3) or paragraph (4) of this rule
which is presented to the person specified in relation to those circum-
stances in the second column of that list shall be treated as having
been presented to the authority to whom the petition is addressed.

MISCELLANEOUS PROVISIONS
Notice 101. A notice under proviso (c) of subsection (2) of section 98
requiring of the Act requiring that oral evidence shall be given in lieu of a
oral evi-
dence in statutory declaration shall be in the appropriate form set out in the
lieu of Fourth Schedule to these Rules.
statutory
declara-
tion.
Exceptions 102. (1) Where in the opinion of the officer who is or would be
from Rules responsible for convening a court-martial to try the accused or, if he
of teount is not available, of the senior officer on the spot, the exigencies of the
exigencies service render compliance with all or any of the provisions of the Rules
of the mentioned in paragraph (4) of this rule impracticable, the officer who is
service, or would be responsible for convening a court-martial to try the accused,
or the senior officer on the spot as the case may be, may make a
declaration to that effect in the appropriate form set out in the Fourth
Schedule to these Rules.

(2) Any declaration made under paragraph (1) of this rule by
the senior officer on the spot shall be forwarded by him as soon as
possible to the officer who is or would be responsible for convening a
court-martial to try the accused.

(3) When a declaration has been made under paragraph (1) of
this rule it shall not be necessary to comply with any provision of these
Rules which is mentioned in such declaration and these Rules shall be
construed accordingly.

(4) The provisions of these Rules in respect of which a declara-
tion may be made under paragraph (1) of this rule are:-
(a) Provisos (a) and (b) to rule 6 (2);
(b) rule 8 (b) insofar as it relates to the accused's right to








The Defence Rules of Procedure, 1959. 447


insist that a witness shall be compelled to attend the
taking of a summary of evidence for cross-examination;
(c) rule 18 insofar as it provides that the documents specified
therein must be given to the accused not less than
twenty-four hours before the appropriate superior
authority investigates and deals summarily with the
charge;
(d) rule 24 (1) paragraphs (b) and (c), and paragraph (d)
insofar as it provides that the documents specified therein
shall be given to the accused not less than twenty-four
hours before his trial.

(5) If an accused is brought to trial by court-martial or is dealt
with summarily by an appropriate superior authority, any declaration
which has been made in his case under paragraph (1) of this rule shall
be attached to the record of the proceedings of the court-martial or to
the record made by the appropriate superior authority as the case may be.

103. (1) When in the opinion of the officer who is or would be respon- Exceptions
sible for convening a court-martial to try the accused, or, if he is not from Rules
available, of the senior officer on the spot a charge-sheet, summary or interests
abstract of evidence or other document which, or a copy of which, is of security
required under these Rules to be given to an accused contains informa-
tion the disclosure of which would or might be directly or indirectly
useful to an enemy, the officer who is or would be responsible for con-
vening a court-martial to try the accused, or the senior officer on the
spot, as the case may be, may make a declaration to that effect in the
appropriate form set out in the Fourth Schedule to these Rules specify-
ing the document concerned.

(2) Any declaration made under paragraph (1) of this rule by
the senior officer on the spot shall be forwarded by him as soon as
possible to the officer who is or would be responsible for convening a
court-martial to try the accused.

(3) When a declaration has been made under paragraph (1) of
this rule it shall not be necessary to give to the accused any document
mentioned in that declaration, or any copy of such a document, and it
shall be a sufficient compliance with these Rules if the accused is given
a proper opportunity to inspect such document while preparing and
making his defence.

(4) If an accused is brought to trail by court-martial or is dealt
with summarily by an appropriate superior authority, any declaration
which has been made in his case under paragraph (1) of this rule shall
be attached to the record of the proceedings of the court-martial or to
the record made by the appropriate superior authority as the case may
be.








448 The Defence Rules of Procedure, 1959.

Deviations 104. A deviation or omission from a form or form of words set
from the out in a Schedule to these Rules shall not, by reason only of such devia-
forms in the
Schedules tion or omission, render any document, act or proceeding invalid.

Cases not 105. In any case not provided for by these Rules such course
covered shall be adopted as appears best calculated to do justice.
by Rules


Made this 31st day of March, 1959.


By Command


M. S. STAVELEY,

Secretary to the Governor-General.








The Defence Rules of Procedure, 1959. 449


FIRST SCHEDULE

FORMS FOR COMMANDING OFFICERS

(1) DELAY REPORT.
(2) SUMMARY OF EVIDENCE.
(3) ABSTRACT OF EVIDENCE.
(4) CERTIFICATE TO BE ATTACHED TO ABSTRACT OF EVIDENCE AFTER IT
HAS BEEN HANDED TO THE ACCUSED.
(5) SUMMONS TO A WITNESS TO ATTEND THE TAKING OF A SUMMARY OF
EVIDENCE.


(1) DELAY REPORT

Unit Address:


T.e .... ..... ... ...............
T el.: ............................
T o : ............................
(Convening officer)

1 EIGHT DAY, DELAY REPORT
pursuant to Defence Act, 1958, section 76 (2)

Number, rank, name of accused





S Date placed in arrest ...................... 19....

Alleged Offence(s) Date of Alleged Offence(s)







close
3The accused is in arrest.
open
The reasons for his retention in arrest are ..... ..................







45.0, The Defence Rules of Procedure, 1959.


abstract was taken on ............ .....19....
3The-----of evidence has not yet been
summary taken because ..........................


was made on ................19....
3Application for trial has not yet been
m ade because ....................... .

S was received on ....................19 ....
A.L.S. advice
has not yet been received.


is being taken ......................... ..........
Action as follow s ........................
has been taken


SDate of trial has not yet been fixed
has been fixed as ......................19..

Reasons for delay since last report ........... ..
.. ... .. .. . ... .. . .. .. . .. ...





D ate ................... 19 .... ................................
Officer commanding accused's unit

(To be signed personally by the C.O.)


1 Insert "1st", "2nd", "3rd", "Final" or as the case may be.
" Strike out words not applicable.



(2) SUMMARY OF EVIDENCE

Sunmnary of evidence in the case of .............. (number.
rank, name, unit, or other description).

Taken by [the commanding officer of the accused] ...
........ (rank, name, unit) on the direction of the commanding
officer of the accused.]









The Defence Rules of Procedure, 1959.


... witness .............. (number, rank, name, unit or other description),
for the having been duly sworn' states:-
prosecution.
(Cross-examined by the accused)
2Question 1 ..................
Answer 1 ....................
or
(The accused declines to cross-examine this witness)

(Signature and rank (if any) of witness)
or
... witness .............. (number, rank, name, unit, or other description)
for the
prosecution. A written statement of this witness's evidence purporting
to be signed by him has been read to the accused and is
included in this summary at page .... Having regard to....
............ (insert grounds for non-attendance of witness-see
rule 8 (b)) the attendance of this witness cannot in my opinion
be readily procured.
[The accused does not demand the attendance of this
witness for cross-examination.] [The accused demands the
attendance of this witness for cross-examination but the
witness is not compellable and has refused to attend.]

(Signature of officer taking the summary of evidence)
The accused having been duly cautioned in accordance
with Rule of Procedure 8 (c) reserves his defence.
or
The accused having been duly cautioned in accordance
with Rule of Procedure 8 (c) elects [to give evidence on oath]
[to make a statement without being sworn] and to call a
witnessess)3
... witness The accused ................ (number, rank, nanw, unit,
for the or other description) having been duly sworn' states:-
defence.
(Signature and rank (if any) of accused if he signs)
... witness .......................... (number, rank, name, unit, or other
for the description) having been duly sworn' states:-
defence.

(Signature and rank (if any) of witness)
Certified that Rule of Procedure 8 has been complied with.
This summary of evidence was taken by me at........ in
the presence and hearing of the accused on the ........ (lay s
of .............. 19 ....

(Signature and rank of officer taking the
summary of evidence)








4$2 The Defence Rules of Procedure, 1959.

1 When a witness or the accused affirms the words "duly affirmed"
should be substituted for the words "been duly sworn" and when a
witness is a child who is too young to give evidence on oath.or.the
accused makes a statement without being sworn the words "without
being sworn" should be substituted for the words "having been duly
sworn."

2 See however rule 8 (g).
3 Omit the words "and to call a witnessess" if they are not
applicable.


(3) ABSTRACT OF EVIDENCE .
.Abstract of evidence in the case of .................. (number, rank,
name, unit or other description) consisting of the ...... (insert the number
of statements) attached statements and...... (insert the number of precis)
precis of evidence of witnesses for the prosecution and compiled by me
[the commanding officer of the accused]. [,............... on the
direction of the commanding officer of the accused].

D ate .................., 19 .... ............
(Signature and rank)



1 Strike 6ut any reference to statements or precis which are not
applicable.
2 Insert name and rank of the officer making the abstract.



:'" (4) CERTIFICATE TO BE ATTACHED TO ABSTRACT OF EVIDENCE
AFTER IT HAS BEEN HANDED TO THE ACCUSED
Certified that I.......... to-day handed to the accused2.........

the abstract of evidence relating to him dated the ......day of.....
19... .and duly cautioned him in accordance with Rule of Procedure 9 (2)
and that he [elected to make and sign the statement dated the .... .day
of ............... 19.... which is marked......... and attached.to: t'lis
certificate] [did not make a statement].

S D ated .................... 19.... .........
(Signature of certifying officer)



1 Insert rank, name and unit of officer signing the certificate.
2 Insert the number, rank, name, unit or other description of the
accused.








The Defence Rules of Procedure, 1959. 453


(5) SUMMONS TO A WITNESS TO ATTEND THE TAKING OF A SUMMARY
OF EVIDENCE

To ............................ 1
WHEREAS a charge has been preferred against ................2
AND WHEREAS I have directed a summary of the evidence to be taken at
..............3 on the.............day of ................... 19 .....

YOU ARE PURSUANT TO SECTION 131-OF THE DEFENCE ACT, 1958, AND
RULE 90 OF THE DEFENCE RULES OF PROCEDURE, 1959, MADE THEREUNDER
HEREBY SUMMONED and required to attend as a witness the taking of the
said summary of evidence at ..................3 on the................
day of .................... 19 ...... at .................. o'clock in
the .......... noon and to bring with you the documents hereinafter
mentioned, vis: 4 ..............................................



Whereof you shall fail at your peril.

Given under my hand at................ on the.................. day

of................. ......... .19....


(Signature, rank and unit)
Commanding officer of the accused.



1 Insert name and address of the person to whom the summons is to be sent.
2 Insert the number, rank, name, unit or other description of the accused.
3 Insert the place where the summary of evidence is to be taken.
4 Specify the documents (if any) which the witness is to bring. If the witness is
not required to bring any documents, strike out the words relating to documents









SECOND SCHEDULE
CHARGE-SHEETS
(1) COMMENCEMENT OF CHARGE-SHEETS.
(2) STATEMENTS OF OFFENCES.
(3) ILLUSTRATIONS OF CHARGE-SHEETS.


(1) COMMENCEMENT OF CHARGE-SHEETS
DEFENCE ACT, 1958
SECTION 217
() (a) The accused......... number rank, name and unit) being subject to military law under section 217 (1) (a)
(1) (b) (b) of the
(1) (C (C))
(1) (d) Defence Act, 1958, is charged with:- (d)
(1) (d),

SECTION 218
The accused .............. (name and brief description) being liable to trial by court-martial under section 218 (1)
of the Defence Act, 1958, is charged with:- \
SECTION 219
v(2 Thle accused .............. (name) formerly ........... (former military description including the manner in ich
the accused was formerly subject to military law set out in accordance with the appropriate form in this Schedule)
and now liable to trial by court-martial under the provisions of section 219{ ( }of the Defence Act, 1958, is;
charged with;-










(2) STATEMENTS OF OFFENCES


DEFENCE ACT, 1958
Treachery, cowardice and offences arising out of military scrvlice
SECTION 26
J (a) \ ((a)'
(b) (bj
(1) (c)) Aiding the enemy with intent contrary to section 26 (1) (c) of the Defence Act, 1958.
(d) (d)
(e) } (e)
(a)
(b) of the Defence
(2) Knowingly and without lawful excuse doing an act contrary to section 26 (2) (c) Act, 195 nc
(d)
(e)
SECTION 27
(1) Communicating with (1)
(21) GivCommuning with the enemy contrary to section 27 ( of the Defence Act, 1958.
(2)] (Giving intelligence to (2)
SECTION 28
(1) Cowardice before the enemy contrary to section 28 (1) of the Defence Act, 1958.
(2) Inducing cowardice before the enemy contrary to section 28 (2) of the Defence Act, 1958.
SECTION 29
(a) Spreading reports relating to operations calculated to create despondency or unnecessary alarm contrary to section
29 (a) of the Defence Act, 1958.
(b) When before the enemy using words calculated to create despondency or unnecessary alarm contrary to section
29 (b) of the Defence Act, 1958.









SECTION 30
Being captured through disobedience or wilful neglect contrary to section 30 (1) of the Defence Act, 1958.
SFailing to take
reasonable steps after capture to rejoin Her Majesty's service contrary to
Preventing a 'rson m ki section 30 (2) of the Defence Act, 1958.
Discouraging a person from takg
Discouraging "


SECTION 31
Sleeping at his post when on gua t contrary to section 31 (1) (a
Sduty controlling movement
Si oii guard duty }
Sleeping when on u tro g m eet y contrary to section 31 (1) (1,)
{duty controlling movement (
runknness n o guard duty t
Drunkenness when controlling contrary to section 31 (1) (c)
duty controlling movementJ
Leaving his post 1 on guard duty contrary to section 31
Absenting himself f duty controlling movement (1) (d)

Striking } a guard duty
Using force against a n duty controlling movement t
\ contrary to section 31
Guard duty to let a (
Compelling a person on gAardtt l *ct, 1958.
duty controlling movement person pass

SECTION 32

Looting contrary to section 32 (b) of the Defence Act, 1958.


of the Defence
Act, 1958.


(3) of the Defence










Mutiny and Insubordinatio


SECTION 33
({ with violence )
(1) (a) Mutiny ating to the enemy contrary to section 33 (1) (a) of the Defence Act, 1958.
elating t with violence
(1) (b) Incitement to mutiny t contrary to section 33 (1) (b) of the Defence Act, 1958.
.relating to the enemy

(2) Mutiny contrary to section 33 (2) of the Defence Act, 1958.
Incitement to mutiny

SECTION 34
(a) Failing to suppress or prevent mutiny contrary to section 34 (a) of the Defence Act, 1958.
(b) Failing to report mutiny contrary to section 34 (b) of the Defence Act, 1958.

SECTION 35
i Striking
(1) (a) Using violence torhis superior officer contrary to section 35 (1) (a) of the Defence Act, 1958.
Offering .
tthreatening )
(1) (b) Using tinsuorin a language to his superior officer contrary to section 35 (1) (b) of the Defence Act, 1958.

SECTION 36
(1) Disobeying a lawful command with wilful defiance of authority contrary to section 36 (1) of the Defence
Act, 1958.
(2) Disobeying a lawful command contrary to section 36 (2) of the Defence Act, 1958.








SECTION 37.
) O ting a provost officer contrary to section 37 (a) of
Person exercising authority under or on behalf of a provost officer the Defence. Act, 1958.
Ss provost officer I contrary to section
(b) R ing to a a person exercising authority under or on behalf of a provost officer c37 (b) of the
Defence Act, 1958.
SECTION 38
(1) Disobedience to standing orders contrary to section 38 (1) of the Defence Act, 1958.

Desertion, absence without leave, etc.
SECTION 39
(1) (a) Desertion contrary to section 39 (1) (a) of the Defence Act, 1958.
S Persuading a person to desert contrary to section 39 (1) (b) of the Defence
(1) (b) Procuring Act, 1958.

SECTION 40
(a) Absence without leave contrary to section 40 (a.) of the Defence Act, 1958.
Persuading
(b) Prourig a person to absent himself without leave contrary to section 40 (b) of the Defence. Act. 1958.
Procuring .o

SECTION 41
(a) Assisting a person to desert or absent himself contrary to section 41 (a) of the Defence Act, 1958.
(report without delay a deserter or absentee
r)Fiigt tksep s et hi o to contrary to section 41 (b)
(b) Failing to a person attempting to of the Defence Act, 1958.
take steps to cause the apprehension of d-desert or absent himself











Failing to attend for a military duty
Leaving a military duty without permission


SECTION 42

Contrary to section 42 of the Defence Act, 1958.


Malingering and drunkenness
SECTION 43
T(a) (a)
(b) (b)
(1) (c) Malingering contrary to section 43 (1) (c) of the Defence Act, 1958.
(d) J (d)

SECTION 44
(1) Drunkenness contrary to section 44 (1) of the Defence Act, 1958.



Offences relating to property
SECTION 45
Stealing
Fraudulently misapplying public property contrary to section 45 (a) of the
(a) Being concerned int (stealing of service f Defence Act, 1958.
Conniving at ft fraudulent misapplication of

(b) receiving service property contrary to section 45 (b) of the Defence Act, 1958.









(Wilfully damaging .public property contrary to section 45 (c)
() Being concerned in the wilful damage of (service of the Defence Act, 1958.

(d) By wilful neglect damaging ice property by fire contrary to section 45 (d) of the Defence Act, 1958.
service

SECTION 46.
Stealing
Fraudulently misapplying property contrary to section 46 (a)
( Being concerned in ) {stealing oi of the Defence Act, 1958.
SConniving at \fraudulent misapplication of
(b) Receiving property contrary to section 46 (b) of the Defence Act, 1958.
CWilfully damaging }
(c) Wilfully damaging property contrary to section 46 (c) of the Defence Act, 1958.
Being concerned in the wilful damage of


SECTION 47
(public
Losing service property contrary to section 47 (a) of the Defence Act, 1958.
service

Negligently damaging p"blic .property contrary to section 47 (b) of the Defence Act, 1958.
service,J

Negligently damaging by fire p public contrary to section 47 (c) of the Defence Act, 1958.
service

Neglect of an rnmal contrary to section 47 (d) of the Defence Act, 1958,
glc ffa bird ,,.









(a decoration granted to himcota
(e) Making away withah deip nt contrary to section 47 (e) of the Defence Act, 1958.
this equipment



Offences relating to billeting and requisitioning of vehicles

SECTION 48
Obtaining
(a) Ordering a prson to obtn billets contrary to section 48 (a) of the Defence Act, 1958.
SProcuring

(b) Corruption in relating to a billeting requisition contrary to section 48 (b) of the Defence Act, 1958.

a person in
Cmi omitting an offence against '0 in
Committing an offence against property his billets contrary to section 48 (c) of the Defence Act, 1958
(c) Damaging
Damaging property in


SECTION 49

(1){ (a Unlawful requisitioning contrary to section 49 (1) (a) of the Defence Act, 1958.
(1) ) ( I (b))

(1) (c) Corruption in relation to a requisitioning order contrary to section 49 (1) (c) of the Defence Act, 1958.









Flying ofences
SECTION 50


flying
Doing an act in the use of aircraft
Neglect aircraft
N relation to aircraft
(aircraft material,


causingloss of life
causing [bodily injury


Ito a person con-
trary to section
50 of the
or bodily injury Defence Act,
1958.


SECTION 51

Signing a certificate relating to aircraft without ensuring its accuracy contrary to
(aircraft material) section 51 of the Defence Act, 1958.


SECTION 52
Unlawful low flying contrary to section 52 of the Defence Act, 1958.

SECTION 53
Flying an aircraft in a manner causing or likely to cause unnecessary annoyance contrary to section 53 of the
Defence Act, 1958.


Offences relating to and by persons in custody

SECTION 54
San investigation)
(1) (a) Delayingaa trial contrary to section 54 (1) (a) of the Defence Act, 1958.
t trial










(1) (b) Failing to release a person in arrest contrary to section 54 (1) (b) of the Defence Act, 1958.
(2) Failing to report the offence for which a person has been placed in custody contrary to section 54 (2) of the
Defence Act, 1958.
(3) (a) Failing to give in writing information relating to a person committed to his charge as a guard commander
contrary to section 54 (3) (a) of the Defence Act, 1958.
(3) (b) Failing to hand in a report relating to a4 person in custody received by him as guard commander contrary to
section 54 (3) (b) of the Defence Act, 1958.

SECTION 55
(1) W\ilfully allowing a person to escape contrary to section 55 (1) of the Defence Act, 1958.
(2) (a) Releasing a person without authority contrary to section 55 (2) (a) of the Defence Act, 1958.
(2) (b) Allowing a person to escape contrary to section 55 (2) (b) of the Defence Act, 1958.

SECTION 56
Refusing to obey
) Striking an officer who orders him into arrest contrary to section 56 (1)
Using of the Defence Act, 1958.
Offering violence to

Striking
Staking whose duty it is to apprehend him contrary to section 56 (2) of the
(2) ( Using ( a person D A
() UsOing violence to (in whose custody he is Defence Act, 1958.
Offering

SECTION 57
Escaping from custody contrary to section 57 of the Defence Act, 1958.









Ofences in relation to courts-martial and civil authorities
SECTION 58

S(a) (a)
(b) (b)
S(C) '(c)
(1) d) Contempt of a court-martial contrary to section 58 (1) (d) of the Defence Act, 1958.
(e) (e)
(f)J (f)

SECTION 59
(1) Making a false statement contrary to section 59 (1) of the Defence Act, 1958.

SECTION 60
(a) Obstructing (a)
(b) sPre acting a arrest bya constable contrary to section 60 a) of the Defence Act. 1958.
(b) Preventing an arrest bj (b)


Miscellaneous offences
SECTION 61
(1) Disclosing information contrary to section 61 (1) of the Defence Act, 1958.

SECTION 62
Making a false answer on enlistment contrary to section 62 of the Defence Act, 1958,










SECTION 63
SMaking false
(a) Signinga false service document contrary to section 63 (a) of the Defence Act,
() \1958.
Making a false entry in a 1

Altering
Altering an entry in
t king an ery wi a service document contrary to section 63 (b) of the Defence Act,
(b) Making away with 1958.
Suppressing
Defacing


(c) Failing to make an entry in service document with intent to defraud contrary to section 63 (c) of the Defence
Act, 1958.


making}a false
signing I
making a false entry in a
altering a
service document
(d) Being party to altering an entry in a
making away with a contrary to section 63
suppressing a (d) of the Defence
Act. 1958.
defacing a
failing to make an entry in a service document with intent to defraud,









SECTION 64
Scandalous conduct unbecoming the character of an officer and a gentleman contrary to section 64 of the
Defence Act, 1958.
SECTION 65
(a) Striking | -(a)
(b) ll-treating pa person of inferior rank or less seniority contrary to section 65f (b) of the Defence Act, 1958.

SECTION 66
a cruel
Disgraceful conduct of an indecent kind contrary to section 66 of the Defence Act, 1958.
an unnatural
SECTION 67
(a) Making a false accusation contrary to section 67 (a) of the Defence Act, 1958.
Making a false statement
(b)ilfull s sing a aeial ft in a complaint contrary to section 67 (b) of the Defence Act, 1958.
lWilfully suppressing a material fact j* :
SECTION 68
Attempting to commit a military offence contrary to section 68 of the Defence Act, 1958, that is to say ..... ;
..................................... . (set out the offence)
SECTION 69
An act
Conduct to the prejudice of good order and military discipline contrary to section 69 of the Defence Act,
1958.
Neglect
Civil Offences
SECTION 70
Committing a civil offence contrary to section 70 of the Defence Act, 1958 that is to say (here describe the
cj'il offence in such words as sufficiently describe the offence),








The Defence Rules of Procedure, 1959. 467


(3) ILLUSTRATIONS OF CHARGE-SHEETS

CHARGE-SHEET
The accused No. 87654321 Private John Smith, 1st Battalion The
West India Regiment, a person subject to military Law under the
Defence Act, 1958, by virtue of section 217 (1) (a) thereof is
charged with:-
1st charge
STEALING PUBLIC PROPERTY CONTRARY TO SECTION 45 (a) OF
THE DEFENCE ACT, 1958.
in that he
at Up Park, in the Territory of Jamaica on 1st January, 1959 stole
a pair of binoculars, public property.

2nd charge
(Alterna-
tive to the
1st charge).
RECEIVING PUBLIC PROPERTY CONTRARY TO SECTION 45 (b) OF
THE DEFENCE ACT, 1958
in that he
at Up Park, in the Territory of Jamaica, on 1st January, 1959 did
receive a pair of binoculars, public property, knowing them to have
been stolen or fraudulently misapplied.
B. C. GREEN. Lieutenant-colonel.
Commanding 1st Battalion, The West India Regiment,
Commanding officer of the accused.
Up Park.
7th January, 1959.
To be tried by ordinary1 court-martial.
A. D. JONES, Brigadier.2
S Up Park. "
9th January, 1959.

'The type of court will be an ordinary or a field court-martial according
to the circumstances.
2The order for trial may be signed by a staff officer authorisedd to sign
ior" the convening officer as in the second illustration charge-sheet.

CHARGE-SHEET
The accused No. 12345678 Corporal John Tull, and No. 10000001
Private Thomas Atkins, both of the 2nd Battalion, The West India
Regiment, being persons subject to military law under the Defence
Act, 1958, by virtue of section 217 (1) (b) thereof are charged
with:-
Both accused jointly








468 The Defence Rules of Procedure, 1959.

1st charge
COMMITTING A CIVIL OFFENCE CONTRARY TO SECTION 70 OF THE
DEFENCE ACT, 1958 THAT IS TO SAY COMMON ASSAULT
in that they
Sat Kingston on 1st January, 1959 assaulted Jack Sprat.

Corporal Tull only
2nd charge
STRIKING HIS SUPERIOR OFFICER CONTRARY TO SECTION 35 (1) (a)
OF THE DEFENCE ACT, 1958
in that he
when on active service at Kingston on 1st January, 1959 struck
No. 87654321 Sergeant V. Blue, 2nd Battalion, The West India_
Regiment.
Private Atkins only

3rd charge
USING INSUBORDINATE LANGUAGE TO HIS SUPERIOR OFFICER
CONTRARY TO SECTION 35 (1) (b) OF THE DEFENCE ACT, 1958
in that he
when on active service at Kingston on 1st January 1959 said to-
No. 87654321 Sergeant V. Blue, 2nd Battalion, The West India-
Regiment when asked by him for his (the accused's) particulars-
"Don't be nosey" or words to that effect.
A. M. FIELD, Lieutenant-colonel.
Commanding 2nd Battalion, The West India Regiment,
Commanding officer of the accused.
Newcastle.
9th January, 1959.
To be tried by ordinary court-martial
P. M. DUNN, Captain.
Staff Captain "A", authorised to sigrr
for Brigadier
Newcastle.
9th January, 1959.



IThe type of court will be an ordinary or a field court-martial according-
to the circumstances.


THIRD SCHEDULE
RECORD OF PROCEEDINGS BEFORE AN APPROPRIATE SUPERIOR AUTHORITY

ACCUSED'S NUMBER, RANK AND NAME ..................... .........
U N IT .................................. ..... .... .. . 1. 1 .......-







The Defence Rules of Procedure, 1959.


1. Questions to be put to the accused by the officer dealing with the case
before the charge is read.
Q. Have you received a copy of the chatge-sheet and [summary]
[abstract]of evidence not less than 24 hours ago?
A. .........................................................
Q. Have you had sufficient time to prepare your defence?
A. ........... .. ....................................

2. The officer dealing with the case shall then read the charge (s) to the
accused and ask him the following question:-
Q. Have you agreed in writing that the witnesses against you need not
give their evidence in person?
A . .. .. .. . .. . . .. . . .. . . .. . . .. . . .. . .. . .. . .

3. If the accused has agreed in writing that the witnesses against him
need not give their evidence in person the officer dealing with the case shall
read the sumntary or abstract of evidence to the accused if the accused so
requires but, if the accused has not so agreed, the witnesses against him shall
give their evidence in person and it shall be recorded on a separate sheet and
be attached to this record.

4. After the summary or abstract of evidence has been read or the
witnesses against the accused have given their evidence, as the case may be,
the officer dealing with the case shall say to the accused:-
Q. Do you wish to give evidence on oath or to make or hand in a
statement without being sworn? Your evidence or statement may
deal with the facts of the case, with your character and with matters
in mitigation of punishment.
A . .. . . .. . . .. . .. .. . . .. . . . .. . .. .. . .. .. . . .
Q. Do you wish to adduce any other evidence in your defence?
A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5. If the accused elects to give evidence or to make a statement or to
call witnesses the evidence for the defence including any statement made by
the accused himself shall be recorded on a separate sheet and attached to this
record. The officer dealing with the case shall then: (i) consider all the
evidence and determine whether the accused is guilty of the offence or not;
and (ii) if he determines that the accused is guilty examine and consider-
the accused's record of service. If he intends to award the punishment of
stoppages or the finding will involve a forfeiture of pay or, in the case of a
civilian, if he intends to award any punishment, he shall not announce and
record his finding unless the accused says in answer to the following question
that he will accept his award.
Q. Will you accept my award or do you elect to be tried by court-martial?
A. ........................ .................. .................







The Defence Rules of Procedure, 1959.


6. FINDING .......... .......................................
A W ARD ..... ...............................................

D ate................ 19....

(Signature, rank and appointment of appropriate
superior authority)



FOURTH SCHEDULE
COURT-MARTIAL FORMS

(1) CONVENING ORDERS.
(2) DECLARATIONS UNDER RULES 102 AND 103.
(3) SUMMONS TO A WITNESS TO ATTEND A COURT-MARTIAL.
(4) NOTICES REQUIRING ORAL EVIDENCE TO BE GIVEN IN LIEU OF A
STATUTORY DECLARATION.
(5) RECORD OF PROCEEDINGS OF A COURT-MARTIAL.
(6) FINDINGS.
(7) RECORD OF RECONSIDERATION OF FINDING UNDER RULE 79 (5).
(8) SERVICE RECORD OF ACCUSED.
(9) RECORD OF PROCEEDINGS ON REVISION UNDER SECTION 104 OF THE ACT.
(10) CONFIRMATION.
(11) DIRECTION UNDER SECTION 117 (3) OF THE ACT.
(12) RESTITUTION ORDER.
(13) PROMULGATION.



(1), CONVENING ORDERS
CONVENING ORDERS FOR AN ORDINARY COURT-MARTIAL
O RDERS BY ........ .......... .... ....... ... ... ...................
Com m anding............... .. ... ................ ................
(Place and date)

The detail of officers as mentioned below will assemble at
............ at............ hours on the ............ day of Name, etc.,
Name, etc.,z
.............. 19 ..... for the purpose of trying by an ordinary of accused.
court-martial the accused persons) named in the margin. ............

PRESIDENT ............









The Defence Rules of Procedure, 1959.


MEMBERS3









WAITING MEMBERS3



JUDGE ADVOCATE*
............................ 4 is hereby appointed judge advocate.
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.

j A field officer having suitable qualifications is not in the opinion
Sof the convening officer available with due regard to the public service.
The record of the proceedings will be forwarded to............


Signed this ................day of................ 19......


(Signature, rank and appointment of the convening officer)
or


(Signature, rank and appointment of the appropriate staff
officer)

Authorised to sign for .....................
(appointment held by the convening officer)

*Strike out if not applicable.



1 Insert rank and name of convening officer.
2 Insert number, rank, name, unit or other description of the accused.
3 A member or a waiting member may be described either by giving his rank, name
and unit or thus: "A .............. ........ .............. (rank)
to be detailed by the officer commanding ............................(unit)",
see Rule of Procedure 22 (a).
4 Insert the judge advocate's name and any legal qualifications which he has.








The Defence Rules of Procedure, 1959.


CONVENING ORDER FOR A FIELD COURT-MARTIAL
O RDERS BY .......................................................
Commanding .................................................
(Place and date) ....................... ......................
In the opinion of the convening officer it is not possible without
serious detriment to the public service that the accused should be
tried by a general or district court-martial.
The detail of officers as mentioned below will assemble at
.......... at............hours on the............ day of

Name, etc.,2...........19 .... for the purpose of trying by a field
of accused. general court-martial the accused persons) named in the margin.
............ PRESIDENT


MEMBERS8








WAITING MEMBERSS8



JUDGE ADVOCATE*
......... ......................... is hereby appointed judge advocate.
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.
Three officers having suitable qualifications are not in the
* opinion of the convening officer available without serious detriment to
the public service.
I It is not in the opinion of the convening officer practicable to
appoint an officer other than himself as president.
The record of the proceedings will be forwarded to..............
Signed this............day of ................, 19 ...

S(Signature, rank and appointment of the convening officer)
or
.......... .......................... ....
(Signature, rank and appointment of the appropriate staff
officer)








The Defence Rules of Procedure, 1959. 473



Authorised to sign for.....................
(appointment held by the convening officer)
*Strike out if not applicable.

1 Insert rank and name of convening officer.
2 Insert number, rank, name, unit or other description of the accused.
3 A member or a waiting member may be described either by giving
his rank, name and unit or thus: "A.......... (rank) to be detailed by the
officer commanding............. (unit)". see Rule of Procedure 22 (a).
4 Insert the judge advocates name and any legal qualifications which he
has.

(2) DECLARATIONS UNDER RULES 102 AND 103
Declaration under Rule of Procedure 102
In the case of .......................... 1
I.................. 2 [the officer who [is] [would be] responsible for
convening a court-martial to try the accused] [the senior officer on the spot]
hereby declare that in my opinion the following exigencies of the service,
nam ely .... .................................... ................
render compliance with the following provisions of the Rules of Procedure
................................................. ............
.............................. ..... ..................... ..........

impracticable.

Signed at ............ this .......... day of ..........19

(Signature)


1 Insert number, rank, name, unit or other description of accused.
2 Insert rank. name and appointment of officer making the declaration.


Declaration under Rule of Procedure 103
In the case of .................... .
I............... 2 [the officer who [is] [would be] responsible for
convening a court-martial to try the accused] [the senior officer on the spot]
hereby declare that in my opinion the3.............................
contains) information the disclosure of which would or might be directly
or indirectly useful to an enemy.
Signed at ............... this ........day of......... 19....

(Signature)








474 The Defence Rules of Procedure, 1959.

2 Insert number, rank, name, unit or other description of the accused.
2 Insert rank, name and appointment of officer making the declaration..
Here indicate the documentss.



(3) SUMMONS TO A WITNESS TO ATTEND A COURT-MARTIAL

To.............. .... 1
WHEREAS a court-martial [has been ordered to assemble at...........
..............] [has assembled at.................. ]on the........day
of ................... 19.... for the trial of ........................2

YoU ARE PURSUANT TO SECTION 131 OF THE DEFENCE ACT, 1958 AND
RULE 90 OF THE DEFENCE RULES OF PROCEDURE, 1959, MADE THEREUNDER
HEREBY SUMMONED and required to attend as a witness at the sitting of the
said court at ............ on the ............ day of ..........19 .... at
..........o'clock in the........noon and to bring with you the documents.
hereinafter mentioned, viz. 3 .. . ................... ................



and so to attend from day to day until you shall be duly discharged; whereof
you shall fail at your peril.

Given under my hand at..........on the........day of........19...

(Signature, rank and appointment)
And officer authorised to convene a court-martial.*
President of the court.*
........4 Authorised to sign for................ 5
An officer authorised to convene a court-martial.*

Strike out if not applicable.



1 Insert name and address of the person to whom the sunmmons is to be-
sent.
2 Insert number, rank, name, unit or other description of the accused.
3 Specify the documents (if any) which the witness is to bring. If the-
witness is not required to bring any documents strike .out the words relating-
to documents.
4 Insert appointment of staff officer who signs.
5 Insert the appointment of the officer for whom the staff officer is,
signing.







The Defence Rules of Procedure, 1959. 475

(4) NOTICES REQUIRING ORAL EVIDENCE TO BE GIVEN IN LIEU OF A
STATUTORY DECLARATION

Notice by a commanding officer

To..... ......................... 1
I......................2 commanding .................. 3 hereby
-give notice that I require that .................... 4 shall give oral evidence
in lieu of [his] [her] statutory declaration dated ......... ........... at
your forthcoming trial by court-martial.
D ate .............. 19 ...........................
(Signature and rank)
Commanding officer of the accused.

Notice by an accused

T o ..................... .... comm ending ......................3
I ............... 1 hereby give notice that I require that ............
........4 shall give oral evidence in lieu of [his] [her] statutory declaration
dated ........................ at my forthcoming trial by court-martial.
D ate............. 19. .... .. .... ........ ..
(Signature)



1 Insert number, rank, name, unit or other description of the accused.
2 Insert rank and name of commanding officer.
3 Insert unit.
4 Insert name of witness.




(5) RECORD OF PROCEEDINGS OF A COURT-MARTIAL

A

PAGE 1

RECORD OF PROCEEDINGS OF A COURT-MARTIAL
Proceedings of a .............. 1 court-martial held at ............
on the ............day of............, 19.. .by order of ............
C om m ending .... ................................................
dated the .............. day of .............., 19....








4%6 The Defence Rules of Procedure,\ 1959.

PRESIDENT

MEMBERS


JUDGE ADVOCATE

Trial of................. ............ . ......... .. . .. .:
The court comply with Rule of Procedure 25.
..............................not being available
owing to .... .......................................... .......
the president appoints ....................a qualified waiting member to
take his place.

The accused is brought before the court.
Prosecutor ............... .... ...........................
Defending [officer] [counsel] ................
At ............ hours the trial begins.
The convening order is read in the hearing of the accused, marked......
sighed by the president and attached to the record.
The names 'of the president and members of the court are read. in the
hearing of the accused and they severally answer to their names.

Q. Do you object to being tried by me as president, or by any of the
officers whose names you have heard read?
A . .. . .. .. . .. .. ... . . .. . . .. . . ... .. . ... .
The proceedings relating to the objections) are recorded on .......



1 Insert "ordinary" or "field" as the case may be.
2 Insert the number, rank, name, unit or other description of the accused
as given in the charge-sheet.
3 Strike out if not applicable.




B

PAGE 2

SWEARING :
The president, members of the court and judge advocate are duly sw-orn.
The [following] officers under instruction [listed on page ... ] are duly
sworn. ,:.








The .Defence Rules of Procedure, 1959. .477


Q. Do you object to ........................ as shorthand writer?
A . . .. . . .. . . .. . . . .. .. . .. .. . .. .. .. .. . .. .. . .1
.... ..................................... is duly sworn as shorthand
writer.

Q. Do you object to .............................as interpreter ?
A................... .............................. 1
........... .............................. .is duly sworn as interpreter-

SPECIAL PLEAS AND OBJECTIONS

The accused offers a plea to the jurisdiction under Rule of Procedure 35.
The proceedings relating to his plea are recorded on page .... .2

The accused objects to the................ charges) under Rule of
Procedure 36. The proceedings relating to his objections) are recorded on
page......2.
The accused offers (a) plea(s) in bar of trial under Rule of Procedure 37
in respect of the.............. chargess. The proceedings relating to
his plea(s) are recorded on page... .. 2
The accused .................... applies under Rule of Procedure 38
to be, tried separately. The proceedings relating to his application are
recorded on page......2

The accused applies under Rule of Procedure 39 to have charges........
and ................ tried separately. The proceedings relating to his.
application are recorded on page ...... 2.



1 If there is an objection the proceedings relating to it should be recorded on a
separate numbered page and the fact that this has been done should be recorded&
in this space with the number of the page.
2 Strike out if not applicable.



C1
Page....
ARRAIGNMENT

The charge-sheet is read to the accused and he is arraigned on each
charge.

The charge-sheet is signed by the president and inserted in the record
immediately before this page as page(s)............







478 The Defence Rules of Procedure, 1959.

Q. Are you guilty or not guilty of the first' charge against you which you
have heard read?
A. .......................... . . ..... ........ ....... ........
Q. Are you guilty or not guilty of the second charge against you which you
have heard read?2
A................ .......................................
Q. Are you guilty or not guilty of the third charge against you which you
have heard read?2
A. ..... ....... ..... ......... ...............................
Q. Are you guilty or not guilty of the fourth charge against you which you
have heard read?2
A. .................................................. .. I .......
Q. Are you guilty or not guilty of the fifth charge against you which you
have heard read?2
A. ................. ....................... .... ...... ......
Q. Are you guilty or not guilty of the sixth charge against you which you
have heard read?2
A. .......................... ............... ............... ..
The accused having pleaded guilty to the..........................
............. charges) Rule of Procedure 41 is duly complied with in
respect of [this] [these] chargess).
The accused's pleas to the remaining charges are recorded overleaf2.



1 Strike out "first" if there is only one charge.
2 Strike out if not applicable.



C2
Page....
Q. Are you guilty or not guilty of the seventh charge against you which you
have heard read?1
A. . .................... ..... .............. ............... .
Q. Are you guilty or not guilty of the eighth charge against you which you
have heard read ?1
A. .........................................................
Q. Are you guilty or not guilty of the ninth charge against you which you
have heard read?'









The Defence Rules of Procedure, 1959. 479


Q. Are you guilty or not guilty of the tenth charge against you which you
have heard read?1
A ... ........................................................
Q. Are you guilty or not guilty of the eleventh charge against you which you
have heard read?1
A ... ................................................ ........

Q. Are you guilty or not guilty of the twelfth charge against you which you
have heard read?x
A..........................................................


Strike out if not applicable.

D1
PAGE..
PROCEEDINGS ON PLEA(S) OF NOT GUILTY1
Q. Do you wish to apply for an adjournment on the ground that any of
the rules relating to procedure before trial have not been complied
with, and that you have been prejudiced thereby, or on the ground
that you have not had sufficient opportunity for preparing your
defence?
A .2 ..... .. .. .. ....... .. .. .... .... .. ... . .. .. ..
The prosecutor [makes an opening address shortly outlining the facts]
[makes an opening address which is summarised below] [hands in a written
address which is read, signed by the president, marked .............. and
attached to the record.]


1 Remove this page if there are no pleas of not guilty.
2 If the accused asks for an adjournment, the proceedings relating to his application
should, if necessary, be recorded on a separate page and a record made here that
this has been done.


D2
PAGE..
First The witnesses for the prosecution are called.
witness fot
the prose- ....................................... ......
caution. being duly sworn1 says:
Continued on page....


1 When a witness affirms the words "having duly affirmed" should be
substituted for the words "being duly sworn" and where a witness is a child
who is too young to give evidence on oath the words "without being sworn"
should be substituted for the words "being duly sworn."








480 The Defence Rules of Procedure, 1959.

D3
PAGE..
PROCEEDINGS ON PLEA(S) OF NOT GUILTY (continued)1

The prosecution is closed.
The accused submits under Rule of Procedure 57 that there is no case
for him to answer in respect of the .......... chargess. The proceedings
relating to this submission are recorded on pages ..........

DEFENCE
Rule of Procedure 58 is complied with.
Q. Do you apply to give evidence yourself on oath or do you wish to
make a statement without being sworn?
A. .....................................................
Q. Do you intend to call any other person as a witness in your defence?
A. ............................... ................ .... .
Q. Is he a witness as to fact or to character only?
A. .......................................................

Q. Do you wish to make an opening address?
A .......... . .... ... .. . ....... ........... ..... . . .. .

3 The accused [makes an opening address which is summarised below]
[hands in a written address which is read, signed by the president, marked
.............. and attached to the record].



1 Remove this page if there are no pleas of guilty.
2 Strike out this paragraph if not applicable.
3 Strike out if the accused does not intend to call witnesses as to fact, other than
himself.



PAGE..
D4

(Where the accused makes a statement without being sworn)1
The accused [makes a statement, which is recorded on page..........]
'Ihands in a written statement which is read, marked............ signed by
the president, and attached to the record].

(Where evidence on oath is given for the defence)1
The witnesses for the defence (including the accused if sworn) are called.








The Defence Rules of Procedure, 1959.


First
witness
for the being duly sworn2 says:-
defence. Continued on page......


1 Strike out this paragraph if not applicable.
2 When a witness or the accused affirms the words "having duly affirmed" should
be substituted for the words "being duly sworn" and when a. witness is a child
who is too young to give evidence on oath the words "without being sworn"
should be substituted for the words "being duly sworn".


D5
Page..
PROCEEDINGS ON PLEA(S) OF NOT GUILTY (continued)1

The .................... [makes a closing address which is summarised
on page.. ..... ] [hands in a closing address which is read, marked. ......
signed by the president and attached to the record].
The .................... [makes a closing address which is summarised
on page......] [hands in a closing address which is read, marked..........
signed by the president and attached to the record].
The note of the summing-up of the judge advocate is recorded ork
page........

FINDINGS)
The court close to deliberate on their findingss.
The court find that the accused3 .................................
. . . . . . .................. . . . is :4

ANNOUNCEMENT OF FINDINGS)
The court being re-opened the accused is again brought before it.
The findings) [is] [are] read and (with the exception of the findings)
of "not guilty")2 [is] [are] announced as being subject to confirmation.

PROCEEDINGS ON ACQUITTAL ON ALL CHARGES2
The accused is released.
Signed at........... ....... this.............. day of............ 19.....

Judge Advocate. President.

1 Strike out this page if not applicable.
2 Strike out if not applicable.
3 Insert the number, rank, name, unit or other description of the accused as given
on the charge-sheet.
4 Set out the finding on each charge in the appropriate form set out in the Fourth
Schedule to the Rules of Procedure.


4.8-








The Defence Rules of Procedure, 1959.


E
Page....
PROCEEDINGS ON PLEA(S) OF GUILTY1
The accused2 ..................................................

is found guilty of8

The findings) [is] [are] read in open court and [is] [are] announced
:as being subject to confirmation.
The [summary] [abstract] of evidence is read to the court by the
prosecutor, marked................., signed by the president and attached
to the record.4
or
The prosecutor informs the court of the facts contained in the [summary]
[abstract] of evidence which is marked..................... signed by the
president and attached to the record.4

1 Strike out this page if not applicable.
2 Insert number, rank and name, unit or other description of the accused as given
on the charge-sheet.
s Record the finding on each charge of which the accused is found guilty in the
appropriate form set out in the Fourth Schedule to the Rules of Procedure.
-4 Strike out if not applicable. If this paragraph is struck out, Rule of Procedure
44 (2) must be complied with.


Fl
Page....
PROCEEDINGS ON CONVICTION
Note: F2 should be completed before F1 if the accused has pleaded not
guilty to all charges. Fl should normally be completed before F2 if the
accused has pleaded guilty to any charge but the president may in his discretion
-complete F2 before Fl if there is no danger of the accused making an
inconsistent plea.
.Q. Do you wish to give evidence yourself or to call other witnesses as to
your character or in mitigation of punishment?
-A . . .. . . .. . . . .. . . .. . . . .. .. . .. .. . .. . .. .. . . .. . ..
The evidence for the defence as to the accused's character and in mitigation
-of punishment, is recorded on pages ................
Q. Do you wish to address the court in mitigation of punishment?
The............................. [makes an address in mitigation
of punishment, which is summarised [below] [on page........ ] [hands in
an address in mitigation of punishment, which is read, marked.............
signed by the president and attached to the record] .







The Defence Rules of Procedure, 1959.


The list of offences which the court have, at the request of the accused,
agreed to take into consideration is read to the accused, signed by him,
marked..............., signed by the president and attached to the record."

Final question addressed to the accused personally.
Q. Is there anything further that you wish to say to the court?
* A .. ......................................... .... ........ .
The accused makes a statement which is recorded on page......
The court close to deliberate on sentence.

*Strike out if Fl is completed before F2.



1 Strike out this paragraph if not applicable.
2 Strike out this paragraph if the accused has not requested other offences to be
taken into consideration.



F2
Page....
PROCEEDINGS ON CONVICTION
Note: F2 should be completed before F1 if the accused has pleaded not
guilty to all charges.
The prosecutor calls evidence as to the accused's character and record.

is duly sworn.

Q. Do you produce the service record of the accused?
A I produce .................................... ..... ....... ..
Q. Have you compared it with the service books?
A.............. ......... .................................
Q. Do the entries on it correspond with the entries in the service books?
A . . . ... . . ... ... .. . . ... . ... ... . ... ... .... .... ... .

The ........................ is read, marked................. signed
by the president and attached to the record.
The accused [declines] [elects] to cross-examine this witness [and the
cross-examination is recorded on pages......].
The prosecutor adduces evidence under Rule of Procedure 70 (3) which
is recorded on pages......








484 The Defence Rules of Procedure, 1959.

Final question addressed to the accused personally.
Si Q. Is. there anything further that you wish to say to the court?


The accused makes a statement which is recorded on page....
The court close to deliberate on sentence.
*Strike out if F2 is completed before F1

I Strike out this paragraph if the prosecutor does not adduce evidence under Rule
,of Procedure 70 (3).


G
Page....
SENTENCE1
The court sentence the accused . .. ..................................
..............................................2
to8
ANNOUNCEMENT OF SENTENCE
The court being re-opened, the accused is again brought before it.
The sentence (and recommendation to mercy4) [is] [are] announced in
open court; the sentence is announced as being subject to confirmation.
The president announces that the trial is concluded.
Signed at ............ this ............ day of ............ 19. ....

Judge advocate. President.


1 Remove this page if not applicable.
2 Insert the number, rank, name, unit, or other description of the accused as given
on the charge sheet.
.3 Record the sentence in the appropriate form of words set out in the Fifth
Schedule to the Rules of Procedure. Any recommendation to mercy (see Rule of
Procedure 73 (4)), recommendation under section 117 (3) of the Defence Act, 1958,
restitution order (see section 125 of the Defence Act, 1958), made by the court,
should be entered on the record immediately after the sentence.
4 Strike out if not applicable.


H
Page....
CONFIRMATION1

1 For minutes of confirmation see the Fourth Schedule to the Rules of
Procedure. Promulgation should be recorded immediately below the minute
of confirmation in accordance with Rule of Procedure 94 (7).








The Defence Rules of Procedure, 1959. 485

(6) FINDINGS
Acquittal on all charges
not guilty of [the charge] [all the charges].


not guilty of [the charge] [all the charges], and honourably acquit him
thereof.

Acquittal on some but not all charges

not guilty of the ............1 charges) but is guilty of the ....... .. .1
chargess.


not guilty of the ............1 charges) and honourably acquit him thereof
but is guilty of the ............1 chargess.

Conviction on all charges
guilty of [the charge] [all the charges].

Special findings
guilty of the ..................1 charge [with the exception of the words
...................... 2] [with the exception that .................. 2]


not guilty of the offence charged but is guilty of ........................
Where the accused is unfit to stand his trial by reason of insanity

by reason of insanity unfit to stand his trial.
Accused guilty but insane at the time when the offence was committed
guilty but insane.



1 Insert the number of the charge or charges as numbered in the charge-sheet.
2 Specify the exception in detail. This form is appropriate when a special finding
is made under Rule of Procedure 65 (3).
3 State the offence of which the accused is found guilty. This form is applicable
when a special finding is made under section 97 (2), (5) or (6) of the Defence
Act, 1958.



(7) RECORD OF RECONSIDERATION OF FINDING UNDER RULE 79 (5)
The judge advocate advises the court that the findings) on the........
charges) [is] [are] contrary to the law relating to the case, and that in his
opinion the following findings) [is] [are] open to them:-


o. . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . .








486 The Defence Rules of Procedure, 1959.

The court is closed for reciisideration of finding.
The court on reconsideration find that the accused is3..............
.................................................







The findirig(s) on reconsideration [is] [are] read in open court and
(with the exception of the findings) of "not guilty"4) [is] [are] announced
as being subject to confirmation.



1 Insert number of charge as numbered in the charge-sheet.
2 Insert the advice given by the judge advocate.
3 Set out the findings) of the court in the appropriate form(s).
4 Strike out the words relating to findings of "not guilty" if there is no such
finding.



(8) SERVICE RECORD OF ACCUSED
SERVICE RECORD OF ACCUSED
Number Rank Name Unit


commission rord o srvi
1. The date of his attestation specified in his attestation papof ers..
enlistment ) attestation paper
2. The accused is serving on a................. ............ ...... .
(insert the type and length of the commission or nature and length of the
engagement).

3. The present age of the, accused record of service i. ....
according to his attestation paper

married )
4. The accused according record of service widowed and has
to his attestation paper is divorced
unmarried.
- ........... ..children under the age of 16 years.
5. The accused's rate of pay is. ............ but he is.............
6. The service which the accused is allowed to reckon towards discharge
or transfer to reserve is................







The Defence Rules of Procedure, 1959.


7. The accused is entitled to reckon .................. service for the
purpose of determining his pension and/or gratuity, etc.

8. The accused is in possession of or entitled to (state any decoration or
aw ard) ......................... ........... and........... acts of
gallantry or distinguished conduct by him are recorded in his conduct sheet.

9. (In the case of an officer). The accused was promoted to the rank
of............. .. on ......................

10. (In the case of WOs., N.C.Os., and soldiers). The accused has held
the rank of .................from ............... without reduction, to
the present date.

11. The accused has been awaiting trial for........days of which:
........ days were spent in civil custody.
........days.were spent in close arrest.
........ days were spent in open arrest.

12. The: following is a summary of the awards by the accused's
commanding officer under section 79 of the Defence Act, 1958 which are
recorded in the accused's conduct sheets.

Within the last 12 months Since enlistment
For............... ...............tim es ............... tim es
For................ .............. times.............. tim es
For............... ............... tim es ............... tim es.
For............... ............... tim es ............... tim es
For.............. ............... tim es ............... tim es
or
There are no entries in the accused's conduct sheets.

13. Previous convictions of the accused by a court-martial or a civil court,
summary awards under section 80 of the Defence Act. 1958 are set out in
the schedule annexed to this statement.

14. The accused is not under sentence at the present time.
or
The accused at the present time is under sentence of .................
beginning on the .................... day of.................... 19....
but suspended on the................... day of................19....
and not yet put into operation again.
/ put into operation on the............day of..............19 ....










SCHEDULE OF CONVICTIONS BY A COURT-MARTIAL OR CIVIL COURT, OF SUMMARY AWARDS UNDER SECTION 80 OF THE
DEFENCE ACT, 1958.

No........... Rank.............. Name. ................ ...................of ..............................Unit
(Instruction-A verbatim extract from the service books, stating these convictions and dispensations with trial, must be inserted)


I-.
Date and place of Sentence of the
Description of trial, summary Charges upon which found guilty court, award of Punishment
court, appropriate award under Defence and offences taken into consideration appropriate superior remitted
superior authority, Act, 1958, section 80 authority


















I HEREBY CERTIFY that the foregoing schedule of convictions and summary awards is a true extract from the service
books in my custody.
Signed this....... ......... f............................................................





I HEREBY CERTIFY that the foregoing schedule of convictions and sumNary awards is a true extract from the service
books in my custody.
Signed this.................. day of.................. .............................................
(Name, rank and appointment of officer signing)







The Defence Rules of Procedure, 1959.


(9) RECORD OF PROCEEDINGS ON REVISION UNDER SECTION 104 OF THE ACT
At.............. on the............day of..........at......hours
the court re-assembled by order of..............................2.. the
confirming authority for the purpose of re-considering their findings) on the
.................... 3 chargess.

Present4 ............................. ....... ......................





The order directing the re-assembly of the court and giving the reasons
therefore is read, marked............... signed by the president and attached
to the record.

The court having considered the observations of the confirming authority
and the whole of the record of the proceedings do now revoke their findings)
on the.............. charges) and find that the accused5 ..............
................ is6 ................................................
.. .. .. .. ... . .. .. . .. . .. .. . .. .. . . .. .. .. . .. . . . .. ..


and [adhere to their sentence] [sentence the accused to7 ...... ...........

in substitution for the original sentence].

or
The court having considered the observations of the confirming authority
respectfully adhere to their findings) on the............ charges) [and
to their sentence] [but sentence the accused ............................5
to7 ..................... ............... ......................

in substitution for the original sentence].
or
The court having considered the observations of the confirming authority
and the whole of the record of the proceedings do now revoke their findings)
on the .............. charges) and find the accused5 ............ not
guilty of [that] [those] chargess.

Signed at........ this...... this ........day of...........19....

Judge advocate. President.


1 Insert the name of the place.
2 Insert the rank, name, appointment, etc., of the confirming authority.







The Defence Rules of Procedure, 1959.


3 Specify the numbers) of the charges) concerned, e.g., the 5th charge.
4 Give the name of the president and members of the court who are present. If the
president is absent the senior member must report to the confirming authority.
If a member is absent and the court is thereby reduced below the legal minimum
the president must report to the confirming authority.
5 Insert accused's number, rank, name, unit, or other description as given in the
charge-sheet.
6 Set out the finding in the appropriate form of words given in this Schedule.
7 Set out the new sentence in accordance with the appropriate form set out in the
Fifth Schedule.


(10) CONFIRMATION
Note: These forms are for guidance only and do not constitute an
exhaustive list of all the possible variations and should be adapted to the
circumstances of each case.
Confirmed.

I confirm the court's finding (s), sentence and order under section 125 of
the Defence Act, 1958, but [remit............ 1] [commute.............2].


I confirm the court's findingss, sentence and order under section 125 of
the Defence Act, 1958, but mitigate the sentence so that it shall be as
follows:--


I vary the sentence so that it shall be as follows......................
and confirm the finding and sentence as so varied.4


I confirm the findings) but substitute the sentence of................
for the sentence of the court.6 '


I substitute a finding of................ for the finding of the court and
confirm the sentence but [remit............1] [commute...........2].


I substitute a finding of............ for the finding of the court on the
......... charge and confirm the findings) of the court on the..........
charges) and the sentence.


Not confirmed (on the grounds that............. 7).


I confirm the findings) of the court on the............ charges) but
do not confirm their findings) on the......... charges) (on the grounds
that .............. 7). I confirm the sentence but [remit.............1]
[commute........... 2].









The Defence Rules of Procedure, 1959.


I refer the findings) and sentence to ............ for confirmation.


I confirm the findings) of the court on the .............. charges)
and refer the findings) on the.............. charges) and the sentence
to................ for confirmation.


I confirm the findings) of the court but refer the sentence to..........
for confirmation.


[The record] [Part of the record] of the proceedings of the............
court-martial which tried .................... at .................. on the
..............day of ................... 19 .... having been lost I do not
confirm the findings) of the court.
Signed at............. this............ day of ..............19 ....
9
(Signature, rank and appointment of confirming authority)

1 State what part of the sentence is remitted.
2 State what the sentence is commuted to.
3 This form of words may be used when it is impracticable to use either "remit"
or "commute".
4 This form of words is appropriate when the court have expressed the sentence
informally or incorrectly and the confirming officer desires to put it into the
correct legal form.
5 Insert the date or event to which the carrying out of the sentence is postponed.
6 This form of words is appropriate when the court have passed an illegal
sentence on the accused and the confirming officer desires to substitute a legal
sentence.
7 Where a confirming officer withholds confirmation because he disapproves of
the decision of the court on a plea to the jurisdiction, in bar of trial or on an
objection to a charge, he should specifically state that he is withholding
confirmation for this reason. In other cases the confirming officer is not bound
to give his reasons for withholding confirmation.
8 Insert the appointment of the higher authority to whom the matter is to be
referred.
9 The rank and appointment of the confirming officer should be clearly stated
after or under his signature.


(11) DIRECTION UNDER SECTION 117 (3) OF THE ACT1
I .................... [confirming authority] [reviewing authority1
hereby direct that the accused ......................... (number, rank.
name or other description) shall not be required to be returned to the
Federation until he has served [........ months] [....... years] of the
sentence of [imprisonment] [detention] passed on him.

(Signature)
D ated ........................ 19 .....


491









492 The Defence Rules of Procedure, 1959.

1 When the confirming authority is making the direction this form of words should
be inserted in the record of the proceedings of the court-martial in the confirming
authority's minute of confirmation; when made by a reviewing authority it should
follow the minute of promulgation.


(12) RESTITUTION ORDER1
In accordance with subsection.................. of section 125 of the
Defence Act, 1958 I ..............2 hereby order that ................3
be [delivered] [paid] to ................ and I direct that this order shall
be carried out forthwith.
Date.................19 .....
....................................ture)
(Signature)
[Confirming authority]
[Reviewing authority]


1 When the confirming authority is making the order this form of words should
be inserted in the record of the proceedings of the court-martial in the confirming
authority's minute of confirmation; when made by a reviewing authority it should
follow the minute of promulgation.
2 Insert the rank, name and appointment of confirming or reviewing authority as the
case may be.
3 Insert description of article or amount of money, as the case may be.
4 Insert name of person to whom restitution is being made.


(13) PROMULGATION
Promulgated and extracts taken at .......... (place) this............
day of ................ 19......

(Signature, rank and appointment of officer
making the promulgation)



FIFTH SCHEDULE

SENTENCES
(1) SENTENCES.
(2) RECOMMENDATION UNDER SECTION 117 (3) OF THE ACT.
(3) RESTITUTION ORDER.


(1) SENTENCES
Note: The words in the margin should be entered in the
right-hand margin of the record of the proceedings of a court-
martial opposite the record of the sentence.








The Defence Rules of Procedure, 1959. 493


OFFICERS
To suffer death. Death.


To be imprisoned for .................. and to be cashiered. Imn and-
cashiering.

To be cashiered. Cashiering.


To be dismissed from Her Majesty's service. Dismissal.


To be fined a sum equivalent to.......... days pay. Fine.


To be [severely reprimanded] [reprimanded]. [Severe
reprimand.]
[Repri-
mand.]
To be put under stoppage of pay until he has made good theStoppages.
sum of ..................1 in respect of .................. 2.


WARRANT OFFICERS AND NON-COMMISSIONED OFFICERS
To suffer death. Death.


To be imprisoned for........ and to be reduced to the ranks.Imprison-
ment and
reduction to
the ranks.

To be discharged with ignominy from Her Majesty's service. Discharge
with
ignominy.
To be dismissed from Her Majesty's service (warrant officers Dismissal.
only).

To undergo detention for...... and to be reduced to the ranks. Detention
and reduc-
tion to
the ranks.

To undergo field punishment for.......... days and to be Field
reduced to the ranks, punish-
ment and
reduction
to the
ranks.
To be reduced [to the ranks] [to the rank of.......... [Reduction
to the
ranks.]
[Reduction
to......].








494 The Defence Rules of Procedure, 1959.

Forfeiture To forfeit............ ..... service.


Severe To be [severely reprimanded] [reprimanded].
reprimand.]
[Repri-
mand.]
Fine. To be fined a sum equivalent to.......... days' pay

Stoppages. To be put under stoppages of pay until he has made good the

sum of .................. in respect of .................. 3.



SOLDIERS
Death. To suffer death.


Imprison- To be imprisoned for................
mlent.

Discharge To be discharged with ignominy from Her Majesty's service.
with
ignominy.

Detention. To undergo detention for..............


Field To undergo field punishment for......... days.
punishment.


Forfeiture To forfeit ................... .service.
-of service.

Fine. To be fined a sum equivalent to........ days' pay.


Forfeiture To forfeit his good conduct badges (Royal Marines only).
of good
conduct
badges.

Stoppages. To be put under stoppages of pay until he has made good the
sum of ................... 1 in respect of ............... .



1 Insert the amount which has to be made good by stoppages in respect
of the charge or article specified.
2 Specify the charge or article in respect of which the stoppage is to be
imposed. If stoppages are being imposed in respect of more than one
charge or article the amount which has to be made good in respect of
each charge or article must be stated separately.








The Defence Rules of Procedure, 1959.


(2) RECOMMENDATION UNDER SECTION 117 (3) OF THE ACT1
The court recommends that the accused ................ (number, rank,
name or other description) shall not be required to be returned to the
Federation until he has served [....... months] [........ .years] of his
sentence.

1 This form of words should be inserted in the record of the proceedings of the
court-martial in the sentence passed by the court.

(3) RESTITUTION ORDER1
In accordance with subsection...... of section 125 of the Defence Act.
1958, the court hereby order that ............... 2 be [delivered] [paid]
to.................... 3
The court further, order that this order shall be carried out forthwith.

. This form of words should be inserted in the record of the proceedings of the
court-martial in the sentence passed by the court.
2 Insert the description of the article or the amount of money, as the case may be.
3 Insert name of person to whom restitution is to be made.


SIXTH SCHEDULE
OATHS AND AFFIRMATIONS
(1) OATHS AT INVESTIGATIONS BY COMMANDING OFFICERS AND
APPROPRIATE SUPERIOR AUTHORITIES.
(2) OATHS AT COURTS-MARTIAL.
(3) MANNER OF ADMINISTERING OATHS.
(4) SOLEMN AFFIRMATIONS.

(1) OATHS AT INVESTIGATIONS BY COMMANDING OFFICERS AND
APPROPRIATE SUPERIOR AUTHORITIES
Interpreter
I swear by Almighty God that I will to the best of my ability truly
interpret and translate as I shall be required to do touching the matter being
investigated.
Witness
I swear by Almighty God that the evidence which I shall give at this
investigation shall be the truth, the whole truth and nothing but the truth.


(2) OATHS AT COURTS-MARTIAL
President and members
I swear by Almighty Gcd that I will well and truly try the [accused]
[accused persons] before the court according to the evidence, and that I will
duly administer justice according to the Defence Act, 1958. without partiality,








The Defence Rules of Procedure, 1959.


favour or affection, and I do further swear that I will not on any account
at any time whatsoever disclose or discover the vote or opinion of the president
or any member of this court-martial, unless thereunto required in due course
of law.
Judge advocate
I swear by Almighty God that I will to the best of my ability carry out
the duties of judge advocate in accordance with the Defence Act, 1958, and
the rules made thereunder and without partiality, favour or affection, and
1 do further swear that I will not on any account at any time whatsoever
disclose or discover the vote or opinion on any matter of the president or any
member of this court-martial, unless thereunto required in due course of law.
Officer under instruction
I swear by Almighty God that I will not on any account at any time
whatsoever disclose or discover the vote or opinion of the president or any
member of this court-martial unless thereunto required in due course of law.
Shorthand writer
I swear by Almighty God that I will to the best of my ability truly
interpret and translate, as I shall be required to do, touching the matter
before this court-martial.
Witness
I swear by Almighty God that the evidence which I shall give before this
court-martial shall be the truth, the whole truth, and nothing but the truth.

(3) MANNER OF ADMINISTERING OATHS
Christians taking the oath shall, unless female, remove their head-dress
and, holding the Bible or New Testament in their right hand, say to or repeat
after the person administering the oath the words of the oath. Jews shall take
the oath in the same manner except that they shall wear their head-dress and
hold the Old Testament in their right 'hand.

(4) SOLEMN AFFIRMATIONS
The person making a solemn affirmation shall say to or repeat after the
person administering the solemn affirmation the words of the appropriate
form of oath except that for the words "I swear by Almighty God" he shall
substitute the words "I (name in full) do solemnly, sincerely and truly
declare and affirm" and for the word "swear" wherever it occurs the words
"solemnly, sincerely and truly declare and affirm".


SEVENTH SCHEDULE

PETITIONS
(1) PETITIONS.
(2) LIST OF PERSONS TO WHOM PETITIONS MAY BE PRESENTED UNDER
RULE 100.








The Defence Rules of Procedure, 1959. 497


(1) PETITIONS
Petition to confirming authority (before confirmation)
To the confirming authority.
I......................1 having been convicted by court-martial on
. . ..2 at................... 3 and having been sentenced to
.................. hereby petition against the findings) on the........
.................. chargess4 and sentence5 on the following grounds:-







Signed ........... .............
Dated ........................



Petition to reviewing authority (after promulgation)
To.................... 8
I ......................1 having been convicted by court-martial on
............. . 2 at ................... 3 and having been sentenced to
..............and having had the findings) and sentence promulgated to
me on..................7 hereby petition against the findings) on the
.................. chargess4 and sentence5 on the following grounds:-



. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . .





Signed ........................ 6
Dated ........................



1 Insert the accused's number, rank, name, unit or other description.
2 Insert the date when accused was convicted.
3 Insert the place where the trial was held.
4 The words "the findings) on the.... ....... chargess" should be omitted
if the accused is only petitioning against sentence.
5 The words "and the sentence" should be omitted if the accused is not petitioning
against sentence.
6 Petitions should be signed by the accused personally but may, if necessary, be
signed on his behalf by his representative.
7 Insert the date when the findings and sentence were promulgated.
8 Here state the reviewing authority whom it desired to petition.








498 The Defence Rules of Procedure, 1959.

(2) LIST OF PERSONS TO WHOM PETITIONS MAY BE PRESENTED
UNDER RULE 100

Person to whom a petition may be
Circumstances presented

1. Petitioner in custody on board Captain of the ship.
H.M. ship.
2. Petitioner in custody on board Officer commanding forces on
a ship other than one of H.M. board.
ships.
3. Petitioner serving with an army Officer commanding the unit.
unit.
4. Petitioner confined in naval Officer in charge of the naval de-
detention quarters. tention quarters.
5. Petitioner confined in military Commandant of such establishment.
establishment.
6. Petitioner confined in a civil Governor of the prison.
prison.
7 i.. r wo is a c a Officer commanding at the nearest
J. Petitioner who is a civilian and r a
is outside the Federati. army, naval or air-force head-
is outside the Federation. quarters.
quarters.


EXPLANATORY NOTE
(This Note is not part of the Rules, but is intended to indicate
their general purport)
These Rules, which are made under section 131 of the Defence Act,
1958 make provision with respect to the investigation and trial of, and
.awarding of punishment for, offences cognizable by courts-martial, com-
manding officers and other military authorities, and with respect to the
confirmation and revision of findings and sentences of courts-martial.


Printed by Yuille's Printerie Limited, Port-of-Spain, Trinidad.
By Authority.




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