S.I. No. 35/1946 -- Defence Forces (Temporary Provisions) Act, 1923. Rule of Procedure (Defence Forces), 1946.

I, OSCAR TRAYNOR, Minister for Defence, in exercise of the powers conferred on me by Section 125 of the Defence Forces (Temporary Provisions) Act, 1923 (No. 30 of 1923), and of every and any other power me in this behalf enabling, do hereby make the following Rules :—

PART I. —PRELIMINARY AND GENERAL.

Short title and commencement

1.—(1) These Rules may be cited as the Rules of Procedure (Defence Forces), 1946.

(2) These Rules shall come into operation on the 15th day of May, 1946.

Interpretation.

2.—(1) In these Rules :—

Abstract of evidence.

the expression " abstract of evidence " means a statement of the evidence of witnesses proposed to be called at the trial of an accused person which has been prepared in accordance with Rule 11 of these Rules ;

Act.

the expression " the Act " means the Defence Forces (Temporary Provisions) Act, 1923 (No. 30 of 1923), as amended or extended by any subsequent enactment, whether passed before or after the making of these Rules ;

commanding officer.

the expression " commanding officer " means, in relation to any person, the officer declared by Regulations, made under the Act, to be his commanding officer for the purposes of sections 76, 81, 82, 85, 86, 86A, 87B, 93, 117, 118, 120, 125, 128, 131 and 136 of the Act and section 49 of the Defence Forces (Temporary Provisions) (No. 2) Act, 1940 (No. 11 of 1940) ;

the expression " investigating officer " means an officer, being—

investigating officer.

(a) an officer by whom a charge is to be investigated under subsection (1) of section 49 of the Defence Forces (Temporary Provisions) (No. 2) Act, 1940 , (No. 11 of 1940), or

(b) an authorised officer for the purposes of the said section 49 ;

proper military authority.

the expression " proper military authority " when used in relation to any power, duty, act or other matter, means such military authority as, in pursuance of Regulations made under the Act or the custom of the service, exercises or performs that power or duty or is concerned with that act or matter ;

Rules of 1923.

the expression " the Rules of 1923 " means the Rules of Procedure, 1923, as amended by any subsequent rules ;

summary of evidence.

the expression " summary of evidence " means the evidence in relation to a charge against an accused, taken down in writing in accordance with Rule 10 of these Rules, and includes any statement made by the accused and taken down in accordance with paragraph (4) of the said Rule 10, and any written statement of evidence included in the summary of evidence in accordance with paragraph (7) of the said Rule 10.

(2) Time, for the purpose of any proceeding under these Rules, shall be reckoned exclusive of Sunday or any holiday.

(3) The Interpretation Act, 1937 (No. 38 of 1937), applies to these Rules.

Application of Rules.

3. These Rules shall apply in every place, whether within or without the State.

Revocation of Rules of 1923.

4.—(1) The Rules of 1923 are hereby revoked.

(2) Any courtmartial, proceeding or thing held, done or commenced before the commencement of these Rules, under the Rules of 1923, shall be as valid and may be completed and carried into effect as if the Rules of 1923 were still in force.

PART II. —ARREST AND TRIAL.

Delay Report.

5. Where a person subject to military law (not on active service) is detained in military custody for a period of ten days without having his case summarily disposed of or without an application being forwarded in accordance with Rule 16 of these Rules for the trial of such person, the commanding officer (or other officer who should cause the summary or abstract of evidence to be taken or prepared), will forthwith report to the officer, to whom such application would be made, on the steps taken in the case and on the necessity for continued custody. A similar report shall be forwarded every ten days until a courtmartial is assembled or the person is released from custody.

INVESTIGATION OF CHARGES.

Investigation by Commanding Officer or Investigating Officer.

6.—(1) The commanding officer or investigating officer will cause the person preferring the charges, together with all available witnesses mentioned on the charge sheet, and also the accused and any available witnesses desired by the accused, and any other available witnesses of whom he may learn, to appear before him at a stated time (to be fixed either by Standing Orders or otherwise) at his office or headquarters, or other available place, within 24 hours (where practicable) of receipt by him of the charges, with all available evidence, including the service record of the accused, and will there informally investigate the charges. The witnesses (except the accused) may, and, if the accused desires, will be sworn, but no record will be made of the testimony, and no counsel or representative will (save in capital cases) be allowed to appear for the accused or for the prosecution. At such investigation full opportunity will be given to the accused to cross-examine the witnesses whose statements are unfavourable to him, and to present anything he may desire on his own behalf, either in defence or mitigation ; and all available witnesses requested by the accused will be called and examined.

(2) If upon such informal investigation the commanding officer or the investigating officer is of opinion that the charge ought not to be proceeded with, he shall dismiss the charge. If it appears to him that there is no substantial evidence tending to show that an offence has been committed, or no substantial evidence tending to show that the accused is guilty of the offence charged, he will dismiss the charge ; but if, in any case, he finds there is substantial evidence tending to show that the accused (whether or not probably guilty of the offence, or some of the offences charged) is guilty of some other offence or offences, he may permit new or additional or amended charges to be preferred (or may himself prefer them) and proceed as if such new or additional or amended charges had been among the ones originally before him.

(3) Where evidence is taken on oath before the commanding officer or investigating officer he shall administer the oath in the same form as provided for a courtmartial or in the case of a declaration the like form of declaration.

Reconsideration by accused of election.

7. Where an accused, having a right to elect to be tried by courtmartial so elects, the commanding officer shall thereupon adjourn the case for twenty-four hours to give the accused an opportunity of reconsidering the matter.

Summary award not to be increased or otherwise altered by commanding officer or investigating officer.

8. When the commanding officer or an investigating officer has once awarded punishment for an offence he cannot afterwards increase or otherwise alter the punishment for that offence.

Order for trial without preliminary investigation.

9. Where a person subject to military law has been ordered to be tried by courtmartial under the provisions of Section 87b of the Act, a true copy of the order dispensing with preliminary investigation and ordering such trial shall be served on the accused by an officer. The fact and date of service of such copy shall be endorsed on the original order by the officer effecting service and the order shall be returned to the officer who made it.

TAKING OF SUMMARY OR ABSTRACT OF EVIDENCE.

Summary of evidence.

10.—(1) When an accused has been remanded for courtmartial, the evidence of all the witnesses who gave evidence against the accused before the commanding officer or the investigating officer, and of any other witnesses whose evidence is relevant, shall be taken down in writing in the presence of the accused before the commanding officer or the investigating officer or an officer acting on behalf of the commanding officer or the investigating officer.

(2) The accused may put questions in cross-examination to any witness, and the questions, with the answers, shall be added in writing to the evidence taken down.

(3) The evidence of each witness, when taken down as provided in paragraphs (1) and (2) of this Rule, shall be read over to him, and shall be signed by him, or, if he cannot write his name, shall be attested by his mark and witnessed.

(4) After all the evidence against him has been recorded, the accused will be asked " Do you wish to make any statement or to give evidence upon oath ? You are not obliged to say anything or give evidence unless you wish to do so, but whatever you say or any evidence you give will be taken down in writing, and may be given in evidence." Any statement or evidence of the accused will be taken down, but he shall not be cross-examined on it. If the accused is tried by courtmartial no evidence will be admitted at the trial of any statement or evidence he may have made or given at the taking of the summary of evidence before the above caution was given to him.

(5) The accused may call and examine witnesses in his defence and their evidence will be taken as provided in the case of witnesses called for the prosecution.

(6) Save as provided with regard to the accused in paragraph (4) of this Rule, the evidence of all witnesses shall be taken on oath, and the oath will be administered by the officer taking the summary in the same form as is provided for a witness at a courtmartial.

(7) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of the service or on other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing) be readily procured, a written statement of such person's evidence purporting to be signed by him may be read to the accused and included in the summary of evidence : provided that, if such person can be compelled to attend, the accused may demand that he shall attend for cross-examination.

(8) The officer taking the summary may put such questions to witnesses as he may find necessary to elicit the facts relevant to the charges ; but he shall not cross-examine the accused.

(9) No counsel or representative will (save in capital cases) be allowed to appear for the accused or for the prosecution at the taking of the summary.

(10) (i) Any witness who is not subject to military law may be summoned to attend under the hand of the commanding officer of the accused, the investigating officer or a Divisional or Command Legal Officer. The summons to such witness shall be in the form specified in Appendix I to these Rules.

(ii) An additional summary or summaries of evidence may be taken by or on behalf of the commanding officer or the investigating officer in the same manner as herein provided for a summary of evidence.

Abstract of evidence.

11. Where a person subject to military law has been ordered to be tried by courtmartial under the provisions of Section 87b of the Act, the officer designated in that behalf in the order shall cause to be prepared a statement of the evidence of the witnesses proposed to be called for the prosecution at the trial without such statement being taken in the presence of the person so ordered for trial, and shall then proceed as directed by Rule 16 of these Rules.

FRAMING CHARGES.

Charge-sheet and charge.

12.—(1) A charge-sheet shall contain the whole issue or issues to be tried by a courtmartial at one time.

(2) A charge means an accusation contained in a charge-sheet that a person amenable to military law has been guilty of an offence.

(3) A charge-sheet may contain one or more charges, but each charge shall allege only one offence.

(4) A charge-sheet may contain alternative charges.

Commencement of charge-sheet.

13. Every charge-sheet will begin with the name and description of the person charged, and should state, in the case of an officer, his rank and name and unit (if any) ; and in the case of a soldier, his number, rank and name, and unit (if any), and where he does not at the time of the trial belong to the Forces, should show by the description of him, or directly by an express averment, that he is amenable to military law in respect of the offence charged.

Contents of charge.

14.—(1) Each charge should state one offence only, and in no case should an offence be described in the alternative in the same charge.

(2) Each charge should be divided into two parts :—

(a) the statement of the offence ; and

(b) the statement of the particulars of the Act, neglect, or omission constituting the offence.

(3) The offence should be stated, if not a civil offence, in the words of the Act. If a civil offence, it should be stated in such words as sufficiently describe that offence, but not necessarily in technical words. The provisions of Rule 5 contained in the First Schedule to the Criminal Justice (Administration) Act, 1924 (No. 44 of 1924), shall apply to the charging of statutory civil offences and the provisions of Rules 6, 7, 8 and 10 of the said Rules shall apply to the charging of all offences.

(4) The particulars should state such circumstances respecting the alleged offence as will enable the accused to know what act neglect, or omission is intended to be proved against him as constituting the offence ; and it shall be sufficient to describe any place, time, thing or matter whatsoever to which it is necessary to refer in the particulars in ordinary language in such a manner as to indicate with reasonable clearness the place, time, thing or matter referred to therein.

(5) The particulars in one charge, may be framed wholly or partly by a reference to the particulars in another charge, and in that case so much of the latter particulars as is so referred to shall be deemed to form part of the first-mentioned charge, as well as of the other charge.

(6) Where it is intended to prove any facts in respect of which any deduction from pay can be awarded as a consequence of the offence charged, the particulars should state those facts, and in case of any damage to, destruction, or loss of military property, the value thereof.

Validity of charge-sheet.

15.—(1) A charge-sheet shall not be invalid by reason only of any mistake in the name or description of the person charged, if he does not object to the charge-sheet during the trial, and it is not shown that injustice has been done to the person charged.

(2) In the construction of a charge-sheet or charge there shall be presumed in favour of supporting the same every proposition which may reasonably be presumed to be impliedly included, though not expressed therein.

APPLICATION FOR TRIAL.

Application for courtmartial.

16. As soon as the summary or abstract of evidence has been taken or prepared, the commanding officer (or other officer who caused the summary or abstract of evidence to be taken or prepared) shall without delay apply in writing to have the proper courtmartial convened by an officer having authority to so convene.

CONVENING COURTSMARTIAL.

Procedure for convening.

17.—(1) Upon receipt of the application for a courtmartial the convening officer shall satisfy himself upon the following points :—

(a) that the accused is charged with an offence against the Act ;

(b) that the evidence is sufficient to justify a trial by courtmartial ;

and if he is not so satisfied may refuse the application and order the release of the accused or may require an additional summary or abstract of evidence to be taken or prepared and on receipt thereof shall proceed as provided in this Rule.

(2) The convening officer should also satisfy himself that the case is a proper one to be tried by the class of courtmartial he proposes to convene.

(3) If he is satisfied upon the points specified in the preceding paragraphs, the convening officer shall, without delay, settle the charge-sheet, and in so doing may add to, alter or amend any charge, or may substitute for any charge such other charge or charges as may appear to him to be necessary, having regard to the evidence.

Provided however that where an accused soldier has elected trial by courtmartial the following provisions shall apply :—

(a) the charge in respect of which the accused has so elected shall not be added to nor a charge for a graver offence substituted therefor but it may be amended so as to conform with the provisions of the Act and of these Rules ;

(b) where from the summary of evidence there appears to be disclosed a more serious offence than that in respect of which the accused has elected trial by courtmartial, the convening officer may refuse the application and direct the commanding officer to charge the accused soldier with the more serious offence so disclosed. On such direction being given the commanding officer shall proceed with the investigation of the charge as a matter of first instance in accordance with the provisions of the Act and of these Rules, provided, however, that if the accused soldier is remanded for trial by courtmartial the summary of evidence already taken may be deemed a compliance with Rule 10 of these Rules.

(4) As soon as practicable, having regard to the provisions of Rule 19 of these Rules the convening officer shall detail the officers to form the court, and shall appoint the president thereof. He shall at the same time detail such number of officers in waiting as he thinks expedient. He shall at the same time appoint an officer to prosecute.

(5) The convening officer shall transmit to the judge-advocate of the court, at the same time as the order convening the court, the original charge-sheet on which the accused is to be tried, which shall be signed by the convening officer or the investigating officer or the commanding officer of the accused together with the original summary or abstract of evidence. The order convening the court shall be in the form specified in Appendix I to these Rules.

Appointment of judge-advocate.

18.—(1) The judge-advocate at a General Courtsmartial shall be appointed by the Judge-Advocate General or a Deputy Judge-Advocate General.

(2) The judge-advocate at a local courtmartial shall be appointed by the convening officer.

(3) An officer belonging to or attached to the Legal Section of the Adjutant General's Branch or an officer acting as a Command or Divisional Legal Officer or an Assistant Divisional or Command Legal Officer shall be qualified to act as a judge-advocate at a local courtmartial.

(4) Each of the following persons is disqualified from sitting or acting as judge-advocate in a case, that is to say :—

(a) a prosecutor or witness for the prosecution of any accused ;

(b) the commanding officer of accused at the time of trial ;

(c) any officer who investigated under Section 49 of the Defence Forces (Temporary Provisions) (No. 2) Act, 1940 , (No. 11 of 1940), the charges on which an accused is arraigned or who as an authorised officer dealt with the charges under the said section ;

(d) any officer who, as a commanding officer or a sub-ordinate officer, investigated under Sections 85, 86, or 86a of the Act, the charges on which an accused is arraigned ;

(e) any officer who sat on a Court of Inquiry regarding the charges on which accused is being tried ;

(f) any officer who took down or prepared the summary or abstract of evidence in the case ;

(g) any officer having a personal interest in the case.

(5) A courtmartial shall not be invalid by reason of any invalidity in the appointment of the judge-advocate officiating thereat, in whatever manner appointed, if a fit person has been appointed ; but this provision shall not relieve from responsibility the person who made the invalid appointment.

(6) The officer appointed as judge-advocate shall be named in the order convening the court.

PREPARATION OF DEFENCE.

Preparation for defence by accused person.

19.—(1) An accused person for whose trial a courtmartial has been ordered to assemble shall be afforded proper opportunity of preparing his defence, and shall be allowed free communication with his witnesses, and with any friend, defending officer or legal adviser with whom he may wish to consult. True copies of the charge-sheet and summary or abstract of evidence shall be delivered to him (gratis) by an officer not less than 24 hours before the commencement of his trial.

(2) At the same time as the accused is supplied with the copy of the charge-sheet and the summary or abstract of evidence, he shall be informed that upon his giving the names of any witnesses whom he desires to call in his defence, reasonable steps will be taken for procuring their attendance, and such steps will be taken accordingly.

(3) As soon as the president and officers who are to form the court, and the officers in waiting, are named, a correct list of their names, rank and unit shall be supplied to the accused.

(4) Where the accused is a soldier, the officer who delivers to him the charge-sheet and summary or abstract of evidence in accordance with this Rule shall, if necessary, read the charge-sheet and the summary or abstract of evidence to him and explain to him the charges, and also as to his rights under these Rules as to preparing his defence or being assisted or represented at the trial.

Joint trial of several accused persons.

20. Any number of accused persons may be tried together for an offence charged to have been committed by them collectively, but in such a case notice or intention to try the accused persons together should be given to each of the accused at the time of his being handed the charge-sheet, and any accused person may claim, either by notice to the authority convening the court, or when arraigned before the court, by notice to the court, to be tried separately, on the ground that the evidence of one or more of the other accused persons proposed to be tried together with him will be material to his defence. The convening authority or court, if satisfied that the evidence will be material, and if the nature of the charge admits of it, shall allow the claim, and the person making the claim shall be tried separately.

PROCEDURE AT TRIAL—CONSTITUTION OF COURT.

Assembly of court.

21. Every courtmartial shall assemble at the time and place and according to the directions provided in the order convening the same.

Procedure on assembly of court.

22. On the court assembling there shall be read :—

(a) the order convening the court,

(b) the names and ranks of the officers appointed to serve on the court, and the names and ranks of the officers in waiting,

(d) the name and rank of the prosecutor appointed by the convening officer.

Inability of officer named as member of court to attend.

23. If, on the first assembly of the court, any officer (other than the president) detailed as a member of the court, is unable for any reason to attend, the president shall appoint one of the officers in waiting to take the place of such first mentioned officer as a member of the court. If there are no officer or officers in waiting the court should ordinarily adjourn for the purpose of fresh members being appointed, but if the court are of opinion that in the interests of justice and for the good of the service, it is inexpedient so to adjourn, they may, if not reduced in number below the legal minimum, proceed, recording their reasons for so doing.

Adjournment for insufficient number of officers.

24. (1) If, before the accused is arraigned, the full number of officers detailed is not available to serve by reason of non-eligibility, disqualification or challenge, and if there are not sufficient officers in waiting to take the place of those unable to serve, the court should ordinarily adjourn for the purpose of fresh members being appointed ; but if the court are of opinion that in the interests of justice and the good of the service, it is inexpedient to adjourn, they may, if not reduced in number below the legal minimum, proceed, recording their reasons for so doing.

(2) If the court adjourns for the purpose of appointment of a new president, or of fresh members, whether under these rules or otherwise, the convening officer may, if he thinks fit, convene another court.

Inquiry by court as to legal constitution and fitness of accused to stand his trial.

25. It shall be the first duty of the court to satisfy themselves :—

(a) that the court is properly convened and constituted in accordance with the Act and these Rules,

(b) that the accused is physically fit and able to stand his trial,

and the court, if not so satisfied, shall report their opinion to the convening officer, and, where necessary, may adjourn and await his instructions.

Inquiry by court as to amenability of accused, validity of charge.

26. The court shall then satisfy themselves in respect of each charge to be tried by them:—

(a) that it appears to be laid against a person subject to military law and amenable to the jurisdiction of the court,

(b) that each charge discloses an offence under the Act which the court has jurisdiction to try,

and the court, if not so satisfied, shall report their opinion to the convening officer, and, where necessary, may adjourn and await his instructions.

PROCEDURE AT TRIAL—CHALLENGE AND SWEARING.

Appearance of prosecutor and accused.

27. When the court have satisfied themselves as to the matters specified in Rules 25 and 26 of these Rules, the prosecutor, who must be a person subject to military law should take his place, and the court shall cause the accused to be brought before the court.

Proceedings for challenge of members of court.

28.—(1) The court, upon the accused being brought before them, shall ascertain that the court is constituted of officers to whom the accused makes no reasonable objection, and for this purpose the order convening the court shall be read in open court.

(2) The accused has no right to object to the prosecutor or judge-advocate.

(3) The accused shall state the names of all officers to whom he objects before any objection is disposed of.

(4) The accused may make a statement in support of his objection and the court may question him thereon.

(5) The accused may call any person to make a statement in support of his objection and the accused and the court may question him thereon.

(6) If more than one officer is objected to, the objection to each officer will be disposed of separately, and the objection to the lowest in rank will be disposed of first ; except that, if the president is objected to, the objection to him will be disposed of before the objection to any other officer. On an objection to an officer, all the other officers present shall declare their opinions on the disposal of the objection, notwithstanding that objections have been made to any of those officers.

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

(8) When an officer objected to (other than the president) retires, and there are any officers in waiting, the vacancy shall be forthwith filled by one of the officers in waiting being directed to serve in lieu of the retiring officer. If there is no officer in waiting available, the court will proceed as directed by Rule 24 of these Rules.

(9) The eligibility, absence of disqualification, and freedom from objection of an officer filling a vacancy, including that of president, will be ascertained by the court, as in the case of other officers appointed to serve on the court.

Swearing of members.

29.—(1) As soon as the court is constituted with the proper number of officers who are not objected to, or the objections to whom have been over-ruled, an oath shall be administered to and taken in presence of the accused by each member of the court in the form and manner provided in Appendix II to these Rules.

(2) The oath shall be administered by the judge-advocate to the president first, and afterwards to the other members of the court.

Swearing of judge-advocate and other persons

30. After the members of the court are all sworn, an oath shall be taken, in the presence of the accused, by the judge-advocate, by an officer attending for the purpose of instruction, by a shorthand writer and by an interpreter or by such of them as are attendant upon a courtmartial, in the form and manner provided in Appendix II to these Rules. The oath shall be administered by the president or by some other member of the court or, except in the case of the judge-advocate, by the judge-advocate.

Substitution of solemn declaration for oath.

31.—(1) Where a person is permitted to make a solemn declaration instead of taking the oath in the prescribed form and manner, the declaration shall be in the form or forms provided in Appendix II to these Rules.

(2) The declaration shall be made before some person authorised by these Rules to administer the oath.

PROCEDURE AT TRIAL—PROSECUTION.

Arraignment of accused.

32.—(1) After the members of the court and other persons mentioned in Rule 30 of these Rules are sworn, the accused will be arraigned on the charges against him.

(2) The charges upon which the accused is arraigned will be read to him, and he will be required to plead separately to each charge.

Objection by accused to charge.

33. The accused, when required to plead to any charge, may object to the charge on the ground that it does not disclose an offence under the Act, or is not in accordance with these Rules. The court, after hearing any submission which may be made by the prosecutor or by or on behalf of the accused, will consider the objection in closed court and will either disallow it and proceed with the trial, or allow it and adjourn to report to the convening authority ; or, if they are in doubt, they may adjourn to consult the convening authority.

Amendment of charge.

34.—(1) At any time during the trial, if it appears to the court that there is any mistake in the name or description of the accused in the charge-sheet, the court may amend the charge-sheet so as to correct that mistake.

(2) If on the trial of any charge it appears to the court, at any time before they have begun to examine the witnesses, that in the interests of justice any addition to, omission from, or alteration in, the charge is required, they may report their opinion to the convening authority, and may adjourn, and the convening authority may either direct a new trial to be commenced, or amend the charge, and order the trial to proceed with the amended charge after due notice to the accused.

Special plea to the jurisdiction.

35.—(1) The accused, before pleading to a charge, may offer a special plea to the general jurisdiction of the court ; and, if he does so, and the court consider that anything stated in the plea shows that the court have not jurisdiction, they shall receive any evidence offered in support, together with any evidence offered by the prosecutor in disproof or qualification thereof, and any address by the accused and reply by the prosecutor in reference thereto.

(2) If the court overrule the special plea they shall proceed with the trial.

(3) If the court allow the special plea, they shall record their decision and the reasons for it, and report it to the convening authority and adjourn. Such a decision shall not require any confirmation, and the convening authority shall either forthwith convene another court for the trial of the accused, or order the accused to be released.

(4) If the court are in doubt as to the validity of the special plea, they may refer the matter to the convening authority, and may adjourn for that purpose, or may record a special decision to proceed with the trial notwithstanding their doubt as to the validity of the plea and proceed with the trial. The convening authority shall, if the matter is so referred, give an opinion thereon for the guidance of the court.

General plea of " Guilty " or " Not Guilty."

36.—(1) If no special plea to the general jurisdiction of the court is offered, or if such plea, being offered is over-ruled or is dealt with by a special decision under paragraph (4) of Rule 35 of these Rules, the accused person's plea— " Guilty " or " Not Guilty " —shall be recorded on each charge. If he refuses to plead or does not plead intelligibly, a plea of " Not Guilty " shall be recorded on each charge.

(2) If an accused person pleads " Guilty " that plea shall be recorded as the finding of the court ; but, before it is recorded, the President, on behalf of the court, should ascertain that the accused understands the nature of the charge to which he has pleaded guilty, and should inform him of the general effect of that plea, and in particular of the of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilty, and shall advise him to withdraw that plea if it appears from the summary or abstract of evidence that the accused ought to plead not guilty.

(3) Where an accused person pleads guilty to the first of two or more charges laid in the alternative, the prosecutor may, after paragraph (2) of this Rule has been complied with by the court and before the accused is arraigned on the alternative charge or charges withdraw such alternative charge or charges without requiring the accused to plead thereto, and a record to that effect shall be made upon the proceedings of the court.

Plea in bar.

37.—(1) The accused at the time of his general plea of " Not Guilty " to a charge for an offence, may offer a plea in bar of trial on any of the grounds mentioned in section 96 of the act.

(2) If he offers a plea in bar the court shall record it as well as his general plea, and if they consider that any fact or facts stated by him are sufficient to support the plea in bar they shall receive any evidence offered, and hear any address made by the accused and the prosecutor in reference to the plea.

(3) If the court find that the plea in bar is proved they shall record their finding and notify it to the confirming authority, and shall either adjourn, or if there is any other charge against the accused, whether in the same or in a different charge sheet, which is not affected by the plea in bar, may proceed to the trial of the accused on that charge.

(4) If the finding that a plea in bar is proved is not confirmed, the court may be re-assembled by the confirming authority, and proceed as if the plea had been found not proved.

(5) If the court find that a plea in bar is not proved, they shall proceed with the trial, but such a finding shall be subject to confirmation like any other finding of that court.

Application for adjournment.

38.—(1) If the accused upon arraignment pleads " Not Guilty " the court shall ask him whether he wishes to apply for an adjournment on the ground that any of the provisions of the Act or of these Rules relating to procedure before trial have not been complied with, and that he has been prejudiced thereby, or on the ground that he has not had sufficient opportunity of preparing his defence and shall record his answer.

(2) If the accused makes any such application, the court shall hear any statement or evidence which he may desire to adduce in support thereof, and any statement of the prosecutor or evidence in answer thereto ; and if it shall appear to the court that the accused has been prejudiced by any non-compliance with any such provisions relating to procedure, or that he has not had sufficient opportunity, of preparing his defence, they may grant such adjournment as may to them appear in the circumstances proper.

Procedure after plea of Guilty.

39.—(1) Upon the record of the plea of " Guilty," if there is any other charge in the same charge-sheet to which the plea is " Not Guilty," the trial will first proceed with respect to every such other charge, and, after the finding on those charges, will proceed with the charges on which a plea of " Guilty " has been entered ; but if there are alternative charges, the court may either proceed with respect to all the charges as if the accused had not pleaded " Guilty " to any charge, or may, instead of trying him, record a finding of " Guilty " upon any one of the alternative charges to which he has pleaded " Guilty " and a finding of " Not Guilty " upon all the other charges alternative to the one on which they have recorded a finding of " Guilty."

(2) After the record of the plea of " Guilty " on a charge (if the trial does not proceed on any other charges) the court shall receive any statement which the accused desires to make in reference to the charge, and shall read the summary or abstract of evidence, and annex it to the proceedings, or if there is no such summary or abstract, shall take and record sufficient evidence to enable them to determine the sentence, and the confirming officer to know all the circumstances connected with the offence. This evidence will be taken in like manner as is directed by these Rules in the case of a plea of " Not Guilty."

(3) After evidence has been so taken, or the summary or abstract of evidence has been read, as the case may be, the accused may make a statement in mitigation of punishment, and may call witnesses as to his character.

(4) If, from the statement of the accused or from the summary or abstract of evidence, or otherwise, it appears to the court that the accused did not understand the effect of his plea of " Guilty " the court shall alter the record and enter a plea of " Not Guilty " and proceed with the trial accordingly.

(5) If a plea of " Guilty " is recorded, and the trial proceeds with respect to other charges in the same charge-sheet, the proceedings under paragraphs (2) and (3) of this Rule will take place when the findings on the other charges in the same charge-sheet are recorded.

(6) When the accused at any courtmartial states anything in mitigation of punishment which, in the opinion of the court, requires to be proved, and would, if proved, affect the amount of punishment, the court may permit the accused to call witnesses to prove the same.

Withdrawal of plea of " Not Guilty."

40. The accused may, if he thinks fit, at any time during the trial, withdraw his plea of " Not Guilty " and plead " Guilty," and in such case the court will at once, subject to a compliance with paragraph (2) of Rule 36 of these Rules, record a plea and finding of " Guilty," and shall, so far is necessary, proceed in manner directed by Rule 39 of these Rules.

Plea of " Not Guilty " and case for the prosecution.

41. After the plea of " Not Guilty " to any charge is recorded, the trial will proceed as follows :—

(a) the prosecutor may, if he desires, make an opening address,

(b) the evidence for the prosecution shall then be taken,

(c) if it should be necessary for the prosecutor to give evidence for the prosecution he should give it after the delivery of his address, and he must be sworn and give his evidence in detail, and he may be cross-examined by the accused, and afterwards may make any statement which might be made by a witness on re-examination.

Submission as to case for prosecution.

42. The accused, his counsel or defending officer, may at the close of the case for the prosecution, submit that the prosecution has not established a prima facie case against him and that he should not, therefore, be called upon for his defence. The submission may be made in respect of any one or more charges in a charge-sheet. The court will consider this submission in closed court, and, if they are satisfied that it is well founded, shall acquit the accused upon the charge or charges as to which they are so satisfied.

PROCEDURE AT TRIAL—DEFENCE.

At close of prosecution to be informed of his rights.

43.—(1) At the close of the evidence for the prosecution the judge-advocate shall inform the accused as follows :—

(a) that he may, if he wishes, give evidence on oath, but that if he does so he will be liable to be cross-examined,

(b) that he may, if he wishes, make a statement not on oath, and that if he adopts this course he will not be liable to be cross-examined,

(2) The accused will then be asked if he wishes to give evidence on oath himself, and whether he intends to call any other witnesses as to the facts of the case or as to his character. In the event of the accused expressing his desire to call witnesses as to his character, the judge-advocate will warn him that the adoption of such a course will entitle the prosecution to give evidence of his record in the Forces and of any previous convictions against him.

Procedure where no evidence as to facts given for defence.

44. If the accused states that he does not wish to give evidence as a witness himself and does not intend to call any witnesses to the facts of the case the procedure will be as follows :—

(a) if he is not represented by counsel or by an officer subject to military law—

(i) the accused may, if he wishes, call witnesses as to his character,

(ii) the prosecutor may make a final address for the purposes of summing up the evidence for the prosecution,

(iii) the accused may then make an address in his defence giving his account of the subject of the charge against him, and such address may be made orally or in writing ;

(b) if he is represented by counsel or by an officer subject to military law :—

(i) the accused may make a statement giving his account of the subject of the charge against him, and such statement may be made orally or in writing but the accused must not be sworn nor shall any question be put to him by the court or by any other person in respect of such statement,

(ii) the accused may, if he wishes, call witnesses as to his character ;

(i) counsel or the defending officer (as the case may be) may then make a closing address,

(ii) the prosecutor may reply,

(d) if the accused does not make any such statement—

(i) the prosecutor may make a final address for the purpose of summing up the evidence for the prosecution,

(ii) counsel or the defending officer (as the case may be) may then make a closing address.

Procedure where evidence as to facts given for defence by accused only.

45. If the accused states that he wishes to give evidence as a witness himself but does not intend to call any other witness to the facts of the case, the procedure, whether or not he is represented by counsel or by an officer subject to military law, will be as follows :—

(a) the accused will give evidence immediately after the close of the evidence for the prosecution.

(b) the accused may, if he wishes, call witnesses as to his character.

(c) the prosecutor may then make a final address for the purpose of summing up the evidence for the prosecution and commenting on the evidence of the accused.

(d) the accused or counsel or the defending officer (as the case may be) may then make a closing address.

Procedure where evidence as to facts given for defence by accused and other witnesses.

46. If the accused states that he wishes to give evidence himself and to call witnesses to the facts of the case, the procedure, whether or not he is represented by counsel or by an officer subject to military law, will be as follows :—

(a) the accused or, if he is represented by counsel or by a defending officer, then such counsel or defending officer may make an opening address for the defence,

(b) the accused will give evidence as a witness, and call his other witnesses, including, if he so desires, witnesses as to character,

(c) after the evidence of all the witnesses has been taken, the accused or counsel or the defending officer (as the case may be) may make a closing address,

(d) the prosecutor may reply.

Procedure where evidence as to facts given for defence by witnesses (other than accused) but not by the accused.

47. If the accused states that he does not intend to give evidence himself but intends to call witnesses to the facts of the case, the procedure will be as follows :—

(a) if he is not represented by counsel or by an officer subject to military law—

(i) the accused may make an opening address giving his account of the subject of the charge against him, and such address may be made orally or in writing,

(ii) the accused will then call his witnesses including, if he so desires, any witnesses as to character,

(iii) after the evidence of all the witnesses has been taken, the accused may make a closing address,

(iv) the prosecutor may reply ;

(b) if he is represented by counsel or by an officer subject to military law—

(i) the accused may make a statement giving his account of the subject of the charge against him, and such statement may be made orally or in writing but the accused must not be sworn nor shall any questions be put to him by the court or by any other person in respect of such statement,

(ii) if the accused makes no such statement, counsel or the defending officer (as the case may be) may make an opening address,

(iii) the accused will then call his witnesses, including, if he so desires, any witnesses as to character,

(iv) after the evidence of all the witnesses has been taken counsel or the defending officer (as the case may be) may make a closing address,

(v) the prosecutor may reply.

PROCEDURE AT TRIAL—SUMMING-UP.

Summing-up by judge-advocate.

48.—(1) The judge-advocate will, unless he and the court, think a summing-up unnecessary, sum up in open court the whole case to the court.

(2) After the judge-advocate has spoken, no other address shall be allowed, save as is mentioned in paragraph (3) of this Rule.

(3) The accused may object to the summing-up by the judge-advocate on any legal ground, and such objection shall be noted in the proceedings.

PROCEDURE AT TRIAL—FINDING AND SENTENCE.

Consideration of finding.

49.—(1) The court will deliberate on their finding in closed court.

(2) The opinion of each member of the court as to the finding will be given by word of mouth on each charge separately.

Form and record of finding.

50.—(1) The finding on every charge upon which the accused is arraigned will be recorded and, except as mentioned in these Rules, will be recorded simply as a finding of " Guilty," or of " Not guilty," or of " Not Guilty and honourably acquit him of the same."

(2) Where the court are of opinion as regards any charge that the facts proved do not disclose the offence charged or any offence of which he might under the Act legally be found guilty on the charge as laid, the court will acquit the accused of that charge.

(3) If the court doubt as regards any charge whether the facts proved show the accused to be guilty or not of the offence charged or any offence of which he might under the Act legally be found guilty on the charge as laid, they may, before recording a finding on that charge, refer to the confirming authority for an opinion, setting out the facts which they find to be proved, and may, if necessary, adjourn for that purpose. Upon receiving the opinion of the confirming authority the court will reassemble in closed court to record their finding and shall not receive any further evidence.

(4) Where the court are of opinion as regards any charge that the facts which they find to be proved in evidence differ materially from the facts alleged in the statement of particulars in the charge, but are nevertheless sufficient to prove the offence stated in the charge, and that the difference is not so material as to have prejudiced the accused in his defence, they may, instead of a finding of " Not Guilty," record a special finding.

(5) The special finding may find the accused guilty on a charge, subject to the statement of exceptions or variations specified therein.

(6) Where there are alternative charges, and the facts proved appear to the court not to constitute the offence mentioned in any of these alternative charges, the court shall record a finding of " Not Guilty " on that charge.

(7) If the court think that the facts proved constitute one of the offences stated in two or more of the alternative charges, but doubt which of those offences the facts do at law constitute, they may, before recording a finding on those charges refer to the confirming authority for an opinion, setting out the facts which they find to be proved and stating that they doubt whether those facts constitute in law the offence stated in such one or another of the charges and may, if necessary, adjourn for that purpose. Upon receiving the opinion of the confirming authority the court will reassemble in closed court to record their finding and shall not receive any further evidence.

(8) In any case where a court is empowered by section 101 of the act to find the accused guilty of an offence other than that charged, or guilty of committing an offence in circumstances involving a less degree of punishment, or where they could after hearing the evidence have made a special finding of guilty subject to exceptions or variations in accordance with paragraphs (4) and (5) of this Rule, they may if they are satisfied of the justice of such course, and if the concurrence of the convening officer is signified by the prosecutor, accept and record a plea of guilty of such other offence, or of the offence as having been committed in circumstances involving such less degree of punishment, or of the offence charged subject to such exceptions or variations.

Procedure on acquittal on every or any charge.

51.—(1) If the finding on each of the charges in a charge sheet is " Not Guilty," the president will date and sign the proceedings, the findings will be announced in open court, and if there are no other charges upon which the trial proceeds, the accused will be released.

(2) The proceedings shall then, upon being signed by the judge-advocate, be transmitted as soon as possible in like manner as is directed by these Rules in the case where the findings require confirmation.

(3) If the finding on one or more, but not all, of the charges in a charge-sheet is " Not Guilty," such finding or findings of " Not Guilty " will be announced at once in open court.

Procedure on conviction.

52.—(1) If the finding on any charge is " Guilty " then, for the guidance of the court in determining their sentence, and of the confirming authority in considering the sentence, the court, before deliberating on their sentence, shall take evidence (if available) of and record the character, age, service, rank and any recognised act of gallantry or distinguished conduct of the accused, and the length of time he has been in arrest or in confinement or any previous sentence, and any deferred pay, military decoration, or military reward of which he may be in possession, or to which he is entitled, and which the court can sentence him to forfeit.

2) Evidence on the above matters may be given by a witness verifying a statement which contains a summary of the entries in the regimental books respecting the accused person, and identifying the accused as the person referred to in that summary.

(3) Evidence on the part of the prosecutor upon the above matters should not be given by a member of the court.

(4) The accused may cross-examine any such witness and may call witnesses to rebut any such evidence, and may himself make a statement ; and if the accused so requests, the regimental books or a duly certified copy of the material entries therein shall he produced ; and if the accused alleges that the summary is in any respect not in accordance with the regimental books, or shall certified copy is the case may be, the court shall compare the summary with those books or copy, and if they find it is not in accordance therewith, shall cause the summary to be corrected accordingly. When all the evidence on the above matters has been given, the accused may address the court thereon, and in mitigation of punishment, and may call witnesses as to his character.

(5) If, by reason of the nature of the service of the accused in a departmental corps, or otherwise, the finding of the court renders him liable to any exceptional punishment in addition to that to be awarded by the sentence of the court, it will be the duty of the prosecutor to call the attention of the court to the fact, it will be the duty of the court to inquire into the nature and amount of such additional punishment.

Mode of forfeiting seniority of rank of non-commissioned officer.

53. Where the court desire to sentence a non-commissioned officer to forfeit seniority of rank, they will sentence him to take rank and precedence as if his appointment to the rank held by him, and specified in the sentence bore the date of some day specified in the sentence and later than the actual date of his said appointment.

Sentence.

54. The court shall award one sentence in respect of all the offences of which the offender is found guilty, and that sentence shall be deemed to be awarded in respect of the offence in each charge in respect of which it can be legally given, and not to be awarded in respect of any offence in a charge in respect of which it cannot be legally given.

Recommendation to mercy.

55.—(1) If the court make a recommendation to mercy, they shall give their reasons for their recommendation.

(2) The number of opinions by which a recommendation mentioned in this Rule, or any question relative thereto, is adopted or rejected, may be entered in the proceedings.

Signing and transmission of proceedings.

56. Upon the court awarding the sentence, the president shall date and sign the sentence, and such signature shall authenticate the whole of the proceedings, and the proceedings upon being signed by the judge-advocate shall be at once transmitted for confirmation.

CONFIRMATION AND REVISION.

Finding not requiring information.

57. In the case of a finding which does not require confirmation, the confirming officer shall not make any remarks in the proceedings but if he thinks that anything in the case requires attention, he shall refer the proceedings to the Judge-Advocate General.

Revision.

58. Where the finding or sentence is sent back for revision in accordance with section 115 of the act, after revision, the president shall date and sign the decision of the court, and the proceedings, upon being signed by the judge-advocate, shall be at once transmitted for confirmation.

Promulgation.

59. The charge, finding and sentence, and any recommendation to mercy, shall, together with the confirmation or non-confirmation of the proceedings, be promulgated by verbal or written communication to accused, or by publication in Orders of his Unit, or in such other manner as the confirming officer may direct. Where the accused has died, become insane, or absented himself, publication in the Orders of his Unit or his Command shall be sufficient promulgation. Confirmation shall not be complete until promulgation in accordance with this Rule.

Mitigation of sentence of partial mitigation.

60.—(1) Where a sentence has been awarded by courtmartial in respect of offences in several charges, and the confirming authority confirms the finding on some but not on all those charges, that authority shall take into consideration the fact of such non-confirmation, and shall, if it seems just, mitigate, remit, or commute the punishment awarded according as seems just, having regard to the offences in the charges the findings on which are confirmed.

(2) Where a sentence has been awarded by a courtmartial in respect of offences in several charges and has been confirmed, and any one of those charges or the finding thereon is found to be invalid, the authority having power to mitigate, remit or commute the punishment awarded by the sentence shall take into consideration the fact of such invalidity, and if it seems just, mitigate, remit or commute the punishment awarded according as seems just, having regard to the offences in the charges which, with the findings thereon, are not invalid, and the punishment so modified shall be as valid as if it had been originally awarded only in respect of those offences.

(3) Where a sentence passed by a courtmartial has been confirmed and is found from any reason to be invalid, the authority who would have had power to commute the punishment awarded by the sentence if it had been valid may pass a valid sentence, and the sentence so passed shall have the same effect as if passed by the courtmartial, but the punishment awarded by that sentence shall not be higher in the scale of punishments than the punishment awarded by the invalid sentence, nor in the opinion of the said authority, be in excess of the last mentioned punishment.

Confirmation notwithstanding informality in or excess of punishment.

61. If the sentence of a courtmartial is informally expressed, the confirming authority may, in confirming the sentence, vary the form so that it shall be properly expressed ; and if the punishment awarded by the sentence is in excess of the punishment authorised by law, the confirming authority may vary the sentence so that the punishment shall not be in excess of the punishment authorised by law, and the confirming authority may confirm the finding and the sentence as so varied of the courtmartial.

Confirmation notwithstanding technical or other deviation.

62. Whenever it appears that a courtmartial had jurisdiction to try a person and make a finding and that there is legal evidence or a plea of guilty to justify such finding, such finding and any sentence which the courtmartial had jurisdiction to pass thereon, may be confirmed, and if so confirmed shall be valid, notwithstanding any deviation from these Rules or notwithstanding that the charge-sheet has not been signed by the commanding officer or the convening officer, provided that the charges have, in fact, before trial been approved by the commanding officer and the convening officer, or notwithstanding any defect or objection, technical or other, unless it appears that any injustice has been done to the offender ; but nothing in this Rule shall relieve an officer from any responsibility for any wilful or negligent disregard of any of these Rules.

INSANITY.

Provisions as to findings of insanity and custody of insane person.

63.—(1) Where the court find either that the accused is unfit, by reason of insanity, to take his trial, or that he committed the offence with which he is charged, but was insane at the time of the commission thereof, the president shall date and sign the finding, and the proceedings, upon being signed by the judge-advocate, shall be at once transmitted for confirmation.

(2) If the finding is not confirmed, the accused may be tried by the same or another courtmartial for the offence with which he was originally charged.

(3) Where the finding is confirmed, then, until the directions of the Minister as to the disposal of the accused are known, or in the case of an accused person unfit to take his trial, until any earlier time at which the accused is fit to take his trial, the accused shall be confined in such manner as may, in the opinion of the convening officer be best calculated to keep him securely without unnecessary harshness, as he is not to be considered as a criminal but as a person labouring under a disease.

GENERAL PROVISIONS AS TO PROCEEDINGS OF COURT.

Seating of members.

64. The members of a courtmartial will take their seats according to their rank.

Responsibility of president and judge-advocate.

65.—(1) The president and judge-advocate are responsible for the trial being conducted in proper order, and in accordance with the Act and these Rules, and will take care that everything is conducted in a manner befitting a court of justice.

(2) It is the duty of the president and the judge-advocate to see that justice is administered, and that the accused has a fair trial, and that he does not suffer any disadvantage in consequence of his position as a person under trial, or of his ignorance, or of his incapacity to examine, or cross-examine witnesses, or to make his own evidence clear or intelligible, or otherwise.

Power of court over address of prosecutor and accused.

66.—(1) It is the duty of the prosecutor to assist the court in the administration of justice, to behave impartially, to bring the whole of the transaction before the court, and not to take any unfair advantage of, or suppress any evidence in favour of, accused.

(2) The court may stop the prosecutory in referring to any matter not relevant to the charge then before the court, or any matter which the court is not investigating, and it is the duty of the court to restrain any undue violence of language or want of fairness or moderation on the part of the prosecutor, and to prevent the prosecutor from commenting at any time on the failure of the accused or his wife to give evidence.

(3) The court should allow great latitude to the accused in making his defence ; he must abstain from any remarks contemptuous or disrespectful towards the court, and from coarse and insulting language towards others, but he may, for the purpose of his defence, impeach the evidence and the motives of the witnesses and prosecutor, and charge other persons with blame and even criminality subject, if he does so, to any liability to further proceedings to which he would otherwise be subject. The court may caution the accused as to the irrelevance of his defence, but should not, except in special cases, stop his defence solely on the ground of irrelevance.

Procedure of trial of accused persons together.

67. Where two or more accused persons are tried together and any evidence other than his own is tendered by any one of them, the evidence and addresses on the part of all the accused persons will be taken before the prosecution replies, and the prosecutor will make one address only in reply as regards all the accused persons.

Separate charge-sheets.

68.—(1) Where the convening officer directs any charge against an accused person to be inserted in different charge-sheets, the accused shall be arraigned, and until after the finding tried, upon each charge-sheet separately, and accordingly the procedure in Rules 32 to 50, both inclusive, of these Rules shall, until after the finding, be followed in respect of each charge-sheet, as if it contained the whole of the charges against the accused.

(2) The trials upon the several charge-sheets shall be in such order as the convening officer directs.

(3) When the court have tried the accused upon all the charge-sheets they shall, in the case of the finding being " Not Guilty " on all the charges, proceed as directed by sub-section (2) of section 100 of the act, and, in case of the finding on any one or more of the charges being " Guilty," proceed as directed by Rules 39 and 52 to 56, both inclusive of these Rules, in like manner in each case, as if all the charges in the different charge-sheets had been contained in one charge-sheet, and the sentence passed shall be of the same effect as if all the charges had been contained in one charge-sheet.

(4) If the convening officer directs that, in the event of the conviction of an accused person upon a charge in any charge-sheet, he need not be tried upon the subsequent charge-sheets, the court in such event may, without trying the accused upon any of the subsequent charge-sheets, proceed as directed by paragraph (3) of this Rule. The president shall notify the accused that this course is being taken pursuant to a direction of the convening officer.

(5) Where a charge-sheet contains more than one charge, the accused may, before pleading, claim to be tried separately in respect of any charge or charges in that charge-sheet, on the ground that he will be embarrassed in his defence if he is not so tried separately ; and in such a case the court, unless they think his claim unreasonable, shall arraign and try the accused in like manner as if the convening officer had inserted the said charge or charges in different charge-sheets.

(6) If the accused pleads " Guilty " to a charge in a charge-sheet, and the trial does not proceed (as mentioned in paragraph (1) of Rule 39 of these Rules) with respect to the other charges in that charge-sheet, the court shall, subject to the directions of the convening officer, proceed to try the accused on the charges in the next charge-sheet before they proceed as directed by paragraphs (2) and (3) of the said Rule 39.

Sitting in closed court.

69.—(1) When a courtmartial sit in closed court on any deliberation amongst the members or otherwise, no person shall be present except the members of the court, the judge-advocate, and any officers under instruction ; and the court may either retire or may cause the place where they sit to be cleared of all other persons not entitled to be present.

(2) Except as mentioned in the preceding paragraph, all the proceedings, including the view of any place, shall be in open court and in the presence of the accused.

Time for trial

70.—(1) A courtmartial may sit at such times and for such period between the hours of six in the morning and six in the afternoon, as may be directed by the convening authority ; and so far as no such direction extends, as the court from time to time determine.

(2) If the court consider it necessary to continue a trial after six in the afternoon, they may do so, but if they do so, should record in the proceedings their reason for so doing.

(3) In cases requiring an immediate example, or when the convening officer or the general or other officer commanding any body of troops certifies under his hand that it is expedient for the public service, trials may be held at any hour.

(4) If the court or the convening officer, or other superior military authority, think that military exigencies or the interests of discipline require the court to sit on Sunday, Christmas Day, St. Patrick's Day, or Good Friday, the court may sit accordingly, but otherwise the court should not sit on any of those days.

Continuity of trial and adjournment of court.

71.—(1) When a court is once assembled and the accused has been arraigned, the court should (but subject to the provisions of the Act, and of these Rules as to adjournment) continue the trial from day to day and sit for a reasonable period on every day, unless it appears to the court that an adjournment is necessary for the ends of justice, or that such continuance is impracticable.

(2) A courtmartial in the absence of either a president or a judge-advocate shall not proceed, and, if necessary, shall adjourn.

(3) The senior officer on the spot may also, for military exigencies, adjourn or prolong the adjournment of the court.

(4) Any adjournment may be made from place to place as well as from time to time. If the time to which the adjournment is made is not specified, the adjournment will be until further orders from the convening authority ; if the place to which the adjournment is made is not specific, the adjournment will be to the same place or to such place as may be specific in further orders from the convening authority.

Suspension of trial.

72.—(1) Where, in consequence of anything arising while the court are sitting, the court are unable, by reason of dissolution (as specified in section 105 of the act or otherwise), or of the absence of the president to continue the trial, the president, or in his absence the senior member present, will immediately report the facts to the convening authority.

(2) Where a courtmartial is dissolved before the finding, or, in the case of a finding of guilty, before the sentence, the proceedings are null, and the accused may be tried before another courtmartial.

Proceedings on death of illness of accused.

73. In the case of the death of the accused, or of such illness of the accused as renders it impossible to continue the trial, the court will ascertain the fact of the death or illness by evidence, and record the same and adjourn, and transmit the proceedings to the convening authority.

Presence throughout of all members of court.

74.—(1) A member of a court who has been absent while any part of the evidence on the trial of an accused person is taken, can take no further part in the trial by that court of that person, but the court will not be affected except as provided by section 105 of the act.

(2) An officer cannot be added to a courtmartial after the accused has been arraigned.

Taking of opinions of members of court.

75.—(1) Every member of a court must give his opinion by word of mouth on every question which the court has to decide, and must give his opinion as to the sentence, notwithstanding that he has given his opinion in favour of acquittal.

(2) Subject to the provisions of the Act, every question shall be determined by an absolute majority of the opinions of the members of the court, and in the case of an equality of opinions, the president's second or casting vote will be reckoned as determining the majority.

(3) The opinions of the members of the court shall be taken in succession, beginning with the junior in rank.

Procedure on incidental question.

76. If any objection on any matter of law, evidence, or procedure, is raised by the prosecutor or by or on behalf of the accused during the trial, the prosecutor or the accused or counsel or the defending officer (as the case may be), shall have a right to answer the same and the person raising the objection shall have the right of reply.

Swearing of court to try several persons.

77.—(1) A court may be sworn at one time to try any number of accused persons then present before it, whether those persons are to be tried collectively or separately, and each accused person shall have power to object to the members of the court, and shall be asked separately whether he objects to any member.

(2) In the case of several accused persons to be tried separately, the court, upon one of those persons objecting to a member, may, according as they think fit, proceed to determine that objection or postpone the case of that person, and swear the members of the court for the trial of the others alone.

(3) In the case of several accused persons to be tried separately, the court, when sworn, shall proceed with one case, postponing the other cases, and taking them afterwards in succession.

(4) Where several accused persons are tried separately by the same court upon charges arising out of the same transaction, the court may, if they consider it to be desirable in the interests of justice, postpone consideration of any sentence to be awarded to any one or more of such accused persons until the trials of such accused persons have been completed.

Swearing of interpreter and shorthand writer.

78.—(1) At any time during the trial an impartial person may, if the court think it necessary, and shall, if either the prosecutor or the accused requests it on any reasonable ground, be sworn to act as an interpreter.

(2) An impartial person may at any time of the trial, if the court think it desirable, be sworn to act as a shorthand writer.

(3) Before a person is sworn as an interpreter or shorthand writer, the accused should be informed of the person who is proposed to be sworn, and may object to the person as not being impartial, and the court, if they think that the objection is reasonable, shall not swear that person as an interpreter or shorthand writer.

GENERAL PROVISIONS AS TO WITNESSES AND EVIDENCE.

Evidence to be relevant and according to rules in court of State.

79.—(1) A courtmartial shall not receive evidence for the prosecution which is not relevant to the facts stated in the statement of particulars in the charge, or any evidence which is not admissable either according to the rules of civil courts in the State, or under the Act.

(2) The rules of evidence adopted in civil courts in the State save as provided by the Act will be followed by courtsmartial, and objections to any question to a witness or to admission of any evidence may be made accordingly, and a person will not be required to answer any question or produce any document which he could not be required to answer or produce in a like proceeding before a civil court in the State.

(3) By " civil court " in this Rule is meant a court of ordinary criminal jurisdiction in the State, including a court of summary jurisdiction.

Judicial notice.

80. The court may take judicial notice of all matters of notoriety, including all matters within their general service knowledge.

Calling of all prosecutor's witnesses.

81. The prosecutor is not bound to call all the witnesses whose evidence is in the summary or abstract of evidence given to the accused, but he should ordinarily call such of them as the accused desires to be called in order that the accused may, if he thinks fit, cross-examine them, and the prosecutor should for this reason, so far as seems to the court practicable, secure the attendance of all such witnesses.

Calling of witnesses whose evidence is not contained in summary or abstract of evidence.

82. If the prosecutor intends to call a witness whose evidence is not contained in any summary or abstract of evidence given to the accused, notice of such intention shall be given to the accused a reasonable time before the witness is called ; and if the witness is called without such notice being given, the court shall, if the accused so desires it, either adjourn after taking the evidence of the witness or allow the cross-examination of the witness to be postpone, and the court shall inform the accused of his right to demand such an adjournment or postponement.

List of witnesses of accused.

83. The accused shall not be required to give to the prosecutor a list of witnesses whom he intends to call, but it shall rest with the accused alone to secure the attendance of any witness whose evidence is not contained in the summary and for whose attendance the accused has not requested steps to be taken as provided for by paragraph (2) of Rule 19 of these Rules.

Procuring attendance of witnesses.

84.—(1) The commanding officer of the accused, the convening officer, or, after the assembly of the court, the president, shall take the proper steps to procure the attendance of the witnesses whom the prosecutor or accused desires to call, and whose attendance can reasonably be procured, but the person requiring the attendance of a witness may be required to undertake to defray the cost (if any) of his attendance.

(2) Any such witness who is not subject to military law may be summoned to attend by order under the hand of the convening officer, or of a staff officer on his behalf, or the commanding officer of the accused, or, after the assembly of the court, the president or judge-advocate. The summons shall be in the form provided in Appendix 1 to these Rules and shall be served on the witness either personally or by leaving it with some person at his last or most usual place of abode.

(3) Any such witness who is subject to military law shall be ordered to attend by the proper military authority.

Adjournment of court for non-attendance of witnesses.

85. If such proper steps as mentioned in the preceding Rule have not been taken as to any witness, or, if any witness whose attendance could not be reasonably procured before the assembly of the court is essential to the prosecution or defence, the court shall adjourn and report the circumstances to the convening officer.

Withdrawal of witnesses from court.

86. During the trial a witness, other than the prosecutor or accused, ought not, except by special leave of the court, to be in the court while not under examination, and if, while he is under examination, a discussion arises as to the allowance of a question, or the sufficiency of his answer, or otherwise as to his evidence, he may be directed to withdraw.

Swearing of witnesses.

87.—(1) An oath shall be administered by the judge-advocate or by the president or by a member of the court and taken in presence of the accused by every witness in the form and manner provided in Appendix II to these Rules.

(2) Where a witness is permitted to make a solemn declaration instead of taking the oath in the prescribed form and manner, the declaration shall be in the form provided in Appendix II to these Rules.

Mode of questioning witnesses.

88.—(1) Every question will be put to a witness orally by the prosecutor, accused, or judge-advocate, without the intervention of the court, and the witness will forthwith reply, unless an objection is made by the court, judge-advocate, prosecutor, or accused, in which case he will not reply until the objection is disposed of.

(2) The evidence of a witness as taken down should be read to him after he has given all his evidence and before he leaves the court, and such evidence may be explained or corrected by the witness at his instance. If he makes any explanation or correction, the prosecutor and accused may respectively examine him respecting the same.

(3) In the case of a courtmartial at which a shorthand writer is employed, it shall not be necessary to comply with paragraph (2) of this Rule, if, in the opinion of the court and the judge-advocate (such opinion to be recorded in the proceedings) it is inexpedient to do so, but nevertheless, if any witness so desires the said paragraph (2) shall be complied with.

Examination and cross-examination.

89.—(1) A witness may be examined by the person calling him, and may be cross-examined by the opposite party to the proceeding, and on the conclusion of the cross-examination may be re-examined by the person calling him on matters raised by the cross-examination.

(2) The court may, if they think fit, allow the cross-examination of a witness to be postponed.

Questions to witness by members of court or judge-advocate.

90.—(1) At any time before the time for the second address of the accused (i) the president or the judge-advocate may address any question to a witness, and (ii) any member of the court may with the permission of the court, address through the president or judge-advocate any question to a witness.

(2) Upon any such question being answered, the president or judge-advocate shall also put to the witness any question relative to that answer which he may be requested to put by the prosecutor or the accused, and which the court deem reasonable.

Recalling witnesses and calling of witnesses in reply.

91.—(1) At the request of the prosecutor or accused person, a witness may, by leave of the court, be recalled at any time before the time for the second address of the accused for the purpose of having any question put to him through the president or judge-advocate.

(2) The court may, if they consider it expedient, in the interests of justice, so to do, allow a witness to be called or recalled by the prosecutor before the second address of or on behalf of the accused, for the purpose of rebutting any material statement made by a witness for the defence or for the purpose of giving evidence on any new matter, which the prosecutor could not reasonably have foreseen.

(3) Where the accused has called witnesses as to character the prosecutor before the time for the second address of the accused, may call or recall witnesses for the purpose of proving a previous conviction or entries in the conduct book or sheet against the accused.

(4) The court or judge-advocate may call or recall any witness at any time before the finding if they consider it necessary for the ends of justice. The right to call shall extend to witnesses not called for the prosecution or defence or whose evidence is not contained in the summary or abstract of evidence.

COUNSEL, DEFENDING OFFICER AND FRIEND OF ACCUSED.

Counsel Allowed.

92.—(1) Subject to these Rules, counsel shall be allowed to appear on behalf of the prosecutor and accused at general and local courtsmartial.

(2) Counsel shall be deemed qualified to appear at a courtmartial if he is a barrister-at-law or a solicitor.

(3) The counsel who appears before a courtmartial on behalf of the prosecutor or accused, shall have the same right as the prosecutor or accused for whom he appears, to call, and orally examine, cross-examine, and re-examine witnesses, to make an objection or statement, to address the court, to offer any plea, and to inspect the proceedings, and shall have the right otherwise to act in the course of the trial in the place of the person on whose behalf he appears, and he shall comply with these Rules as if he were that person ; and in such a case that person shall not have the right himself to do any of the above matters except as regards the statement allowed by paragraph (1) of Rule 43 of these Rules, or except so far as the court permit him so to do.

(4) When counsel appears on behalf of the prosecutor, the prosecutor, if called as a witness, may be examined, cross-examined, and re-examined as any other witness.

Counsel for prosecutor.

93.—(1) Counsel appearing on behalf of the prosecutor should always make an opening address, and should state therein the substance of the charge against the accused, and the nature and general effect of the evidence which he proposes to adduce in support of it without entering into unnecessary detail.

(2) Counsel appearing on behalf of the prosecutor shall have the same duty as the prosecutor, and is subject to be stopped and restrained by the court in the manner provided by paragraph (2) of Rule 66 of these Rules.

Counsel for accused.

94.—(1) Counsel appearing on behalf of the accused has the like rights and is under the like obligations as are specified in paragraph (3) of Rule 66 of these Rules in the case of the accused.

(2) If the court ask counsel for the accused a question as to any witness or matter, he may decline to answer, but he must not give to the court any answer or information which is misleading.

General Rules as to counsel.

95.—(1) Counsel, whether appearing on behalf of the prosecutor or of the accused, will conform strictly to these Rules and to the rules of civil courts in the State relating to the examination, cross-examination, and re-examination of witnesses, and relating to the duties of counsel.

(2) If counsel puts to a witness other than the accused, a question as to a matter which is not relevant except so far as it affects the credit of the witness by injuring his character, and the witness objects to answering the question, the court shall consider whether the witness should be compelled to answer it ; and

(a) if they are opinion that the imputation conveyed by the question would, if true, seriously affect their opinion as to the credibility of the witness, the court should require the witness to answer the question, but

(b) if they are of opinion that the imputation, if true, would not affect or would not seriously affect the opinion of the court as to the credibility of the witness, the court should disallow the question.

If the question is disallowed, counsel on both sides, will refrain from further examining or commenting on the matter.

(3) Counsel will not state as a fact any matter which is not proved, or which he does not intend to prove in evidence.

(4) Counsel will not state what is his own opinion as to any matter of fact before the court.

(5) Counsel will not, in a question to any witness, assume that facts have been given in evidence which have not been given in evidence, or that particular answers have been given contrary to the fact.

(6) Counsel will treat the court and judge-advocate with due respect and shall, while regarding the exigencies of his case, bear in mind the requirements of army discipline in the respectful treatment of any superior officer of the accused who may attend as a witness.

Defending officer and friend of accused.

96.—(1) If an accused person is not represented at his trial by counsel, he may be represented by any officer subject to military law who shall be called " the defending officer " or assisted by any person whose services he may be able to procure and who shall be called " the friend of the accused."

(2) It shall be the duty of the convening officer to ascertain whether an accused person not otherwise represented desires to have a defending officer assigned to represent him at his trial and, if he does so desire, the convening officer shall use his best endeavours to ensure that the accused shall be so represented by a suitable officer. Nothing in this paragraph shall, however, derogate from the right of an accused person to be represented or assisted at his trial by any counsel, defending officer or friend whom he may be able to procure without recourse to the convening officer.

(3) The defending officer shall have the same rights and duties as appertain to counsel under these Rules and shall be under the like obligations.

(4) The friend of the accused may advise the accused on all points and suggest the questions to be put to the witnesses, but he cannot examine or cross-examine the witnesses or address the court.

PROCEEDINGS.

Record in proceedings of transactions of courtmartial.

97.—(1) At a courtmartial the judge-advocate shall record, or cause to be recorded, all transactions of that court, and shall be responsible for the accuracy of the record (in these Rules referred to as the proceedings)' and if the judge-advocate is called as a witness by the accused, the president will be responsible for the accuracy of the record in the proceedings of the evidence of the judge-advocate.

(2) The evidence shall be taken down in a narrative form in as nearly as possible the words used, but in any case where the prosecutor, the accused person, the judge-advocate, or the court considers it material the question and answer shall be taken down verbatim.

(3) Any question which has been objected to, and the tender of any evidence which has been objected to, shall, if the prosecutor or accused so requests, or the court think fit, be entered with the grounds of the objection and the decision of the court thereon.

(4) Where any address by or on behalf of the prosecutor or person under accusation, or the summing up of the judge-advocate is not in writing, it shall not be necessary to record the address or summing up in the proceedings further or otherwise than the court think proper, or in the case of the summing up, than the judge advocate requires, except that :—

(a) the court shall in every case make such record of the defence made by the accused as will enable the confirming officer to judge of the reply made by or on behalf of the accused to each charge against him, and

(b) the court shall also record any particular matters in the address by or on behalf of the prosecutor or accused person, which the prosecutor or accused person, as the case may be, requires.

(5) The court shall not enter in the proceedings any comment or anything not before the court, or any report of any fact not forming part of the trial ; but if any such comment or report seems to the court necessary, the court may forward it to the proper convening authority in a separate document, signed by the president.

(6) The following documents shall be attached to the proceedings :—

(a) the original or a certified true copy of the order convening the court,

(b) the original or a certified true copy of the summary or abstract of evidence,

(d) the original or a certified true copy of the charge-sheet,

(e) any other documents received in evidence or referred to in the proceedings.

(7) Every document attached to the proceedings shall be signed by the president, and marked with a letter by which it shall be referred to in the proceedings.

Custody and inspection of proceedings.

98. The proceedings shall be deemed to be in the custody of the judge-advocate, but may, with proper precaution for their safety, be inspected by the members of the court, the prosecutor, and accused respectively, at all reasonable times, before the court is closed to consider the finding.

Transmission of proceedings after finding.

99. At the conclusion of the courtmartial the proceedings shall be sent by the judge-advocate to the Deputy Judge-Advocate General at General Headquarters.

Preservation of proceedings.

100. The proceedings of a courtmartial shall, after promulgation, be forwarded to the office of the Deputy Judge-Advocate General in Dublin, and there preserved for not less, in the case of a general courtmartial, than seven years, and in the case of a local courtmartial, than three years.

Loss of proceedings.

101.—(1) If the original proceedings of a courtmartial or any part thereof are lost, a copy thereof, if any, certified by the president of or the judge-advocate at the court-martial, may be accepted in lieu of the original.

(2) If there is no such copy, and sufficient evidence of the charge, finding, sentence, and transactions of the court can be procured, that evidence may, with the consent of the accused, be accepted in lieu of the original proceedings, or part thereof, lost.

(3) In any case above in this Rule mentioned, the finding and sentence, if requiring confirmation, may be confirmed, and shall be as valid as if the original proceedings, or part thereof, had not been lost.

(4) If, in a case where confirmation of a finding, or finding and sentence, is required, the proceedings, or part thereof, were lost before confirmation, and there is no such copy or evidence, or the accused refuses such assent, as above mentioned, the accused may be tried again, and on the issue of an order convening the court for the trial, the finding and sentence of the previous court, of which the proceedings were so lost, shall be null.

JUDGE-ADVOCATE.

Substitute on death, illness or absence of judge-advocate.

102. If the judge-advocate dies, or from illness, or from any cause whatever is unable to attend, the court shall adjourn, and the president shall report the circumstances to the convening authority ; and in the case of death, or, if in any other case the convening officer is of opinion that it is inexpedient to delay the continuance of the trial the court shall be dissolved and the accused may be tried again before another court.

Powers and Duties of judge-advocate.

103. The powers and duties of the judge-advocate are as follows :—

(a) The prosecutor and the accused respectively, are at all times, after the judge-advocate is named to act on the court, entitled to his opinion on any question of law or procedure relative to the charge or trial, whether he is in or out of court, subject, when he is in court, to the permission of the court ;

(b) At a courtmartial he represents the Judge-Advocate General ;

(c) He is responsible for informing the court of any informality or irregularity in the proceedings. Whether consulted or not, he will inform the convening officer and the court of any informality or defect in the charge, or in the constitution of the court, and will give his advice on any matter before the court ;

(d) Any information or advice given to the court on any matter before the court will, if he or the court desire it, be entered in the proceedings ;

(e) At the conclusion of the case he will, unless both he and the court consider it unnecessary, sum up the evidence and advise the court upon the law relating to the case before the court proceed to deliberate upon their finding ;

(f) Upon any point of law or procedure which arises upon the trial which he attends, the court should be guided by his opinion, and not disregard it, except for very weighty reasons. The court are responsible for the legality of their decisions, but they must consider the grave consequences which may result from their disregard of the advice of the judge-advocate on any legal point. The court, in following the opinion of the judge-advocate on a legal point, may record that they have decided in consequence of that opinion ;

(g) The judge-advocate has, equally with the president, the duty of taking care that the accused does not suffer any disadvantage in consequence of his position as such or of his ignorance or incapacity to examine or cross-examine witnesses or to make his own evidence clear or intelligible, or otherwise, and may, for that purpose advise the court that witnesses should be called or recalled for the purpose of being questioned by him on any matters which appear to be necessary or desirable for the purpose of eliciting the truth ;

(h) In fulfilling his duties the judge-advocate will be careful to maintain an entirely impartial position.

EXCEPTION FROM RULES

Suspension of Rules on the ground of service exigencies or the necessities of discipline.

104. Where it appears to the officer convening a courtmartial or to the senior officer at the place where the accused is stationed, that the exigencies of the service, or the necessities of discipline, render it impossible or inexpedient to observe any one, or more of the following provisions, namely, Rules 10, 11 and 19 of these Rules and paragraph (2) of Rule 96 of these Rules, he may, by order under his hand, make a declaration to that effect, specifying the nature of such exigencies or necessities, and thereupon the trial or other proceeding shall be as valid as if the said provision or provisions mentioned in the declaration had not been contained in these Rules, and the declaration may be made with respect to any or all of the said provisions in the case of the same courtmartial.

Provided that the accused shall have full opportunity of making his defence, and shall be afforded every facility for preparing it which is practicable, having due regard to the said exigencies or necessities.

PART III. —COURT OF INQUIRY AS TO ILLEGAL ABSENCE

Court of Inquiry as to illegal absence under Sec. 119.

105.—(1) A court of inquiry under section 119 of the act will when assembled, require the attendance of such witnesses as they think sufficient to prove the absence and other facts specified as matters of inquiry in that section.

(2) They will take down in writing the evidence given them and at the end of the proceedings will make a declaration of the conclusions at which they have arrived in respect of the facts they are assembled to inquire into.

(3) The commanding officer of the absent soldier will enter in the regimental books a record of the declaration of the court, and the original proceedings will be destroyed.

(4) The court of inquiry will examine all witnesses who may be desirous of coming forward on behalf of the absentee, and will put such questions to them as may be desirable for testing the truth or accuracy of any evidence they have given, and otherwise for eliciting the truth, and the court, in making their declaration, will give due weight to the evidence of such witnesses.

(5) A court of inquiry will administer the same oath or solemn declaration to the witnesses as if the court were a courtmartial, but the members of such court will not themselves be sworn.

(6) A court of inquiry under this Rule may be convened by any of the following :—

(a) the Adjutant General,

(b) Officer Commanding a Command,

and shall consist of not less than two officers.

(7) Where for any reason it is impracticable or inexpedient for an officer having authority to convene a court of inquiry personally to convene, he shall apply to the next higher authority to have the court convened. If a sufficient number of suitable officers under his command is not available to form a court, the officer convening may apply to the next higher authority for officers to be placed at his disposal for the purpose.

PART IV. —MISCELLANEOUS.

Exercise of powers vested in holder of military office.

106. Any power or jurisdiction given to, and any act or thing to be done by, to, or before any person holding any military office for the purpose of these Rules, may be exercised by, or done by, to, or before any other person for the time being authorised in that behalf according to the custom of the service.

Cases unprovided for.

107. In any case not provided for by these Rules such course will be adopted as appears best calculated to do justice.

Form in Appendices.

108.—(1) The forms in the Appendices to these Rules should be followed in all cases in which they are applicable, and when used shall be valid in law, but a deviation from any such form will not by reason only of such deviation, render any charge, warrant, order, proceedings, or other documents invalid.

(2) An omission of any such form will not, by reason only of the omission, render any act or thing invalid.

Meaning of " month " in sentences or imprisonment or detention.

109. In any sentence of imprisonment or detention passed after the date on which these Rules come into operation the word " month " shall, unless the contrary is expressed, be construed as meaning a calendar month.

Reports and applications to superior authority.

110. Any report or application directed by these Rules to be made to a superior authority, shall be made in writing through the proper channel, unless the authority, on account of military exigencies or otherwise, dispenses with the writing.

APPENDIX I.

COURTMARTIAL FORMS.

(1)

Form of Charge Sheet.

The accused

is charged with

First Charge,

Sec.

in that he, at

on the

Second Charge,

Sec.

in that he, at

on the

Third Charge,

Sec.

in that he, at

on the

(Name)

(Rank)

Commanding the Unit.

(or) Convening Officer of Investigating Officer.

Date :

(2)

Form of Application for a Courtmartial.

STATION	DATE
APPLICATION FOR A	COURTMARTIAL

SIR,

I have the honour to submit Charge against No.

Unit, and to request that a Courtmartial may be assembled for his trial at

The case was investigated by and the Summary of Evidence was taken by (or the accused was ordered to be tried by courtmartial by order under section 87B of the Defence Forces (Temporary Provisions) Act, 1923 ).

A Court of Inquiry was hold on

President............................................................ ..................

Members............................................................ ..................

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

The accused is now under arrest at

His general character is

I beg to enclose the following documents :—

1. Original Charge Sheet and copy.

2. Original Summary of Evidence (or abstract of evidence) and two copies.

3. List of Witnesses for the Prosecution and Defence (with their present stations).

4. Names of Officers at this Station available as members of the Courtmartial.

5. Name of Officer suggested as prosecutor.

I have the honour to be,

Sir,

Your obedient servant,

Name............................................................ ........................

Rank............................................................ ..........................

Appointment............................................................ ............

(3)

Form of Declaration of Military Exigencies or the Necessities of Discipline under Rule 104 of Rules of Procedure (Defence Forces), 1946.

In my opinion (Military exigencies, namely, ), or (the necessities of Discipline) render it (impossible or inexpedient) to observe the provisions of Rules

on the trial of

by Courtmartial assembled pursuant to the order of

Signed at this day of

, 19 .

(Name)

(Rank)

(Appointment)

To :

(4)

Form of Summons to a civilian witness in the case of a Summary of Evidence.

Whereas a charge of having committed an offence triable by courtmartial has been preferred before me against (number, rank, name, unit), and whereas I have directed a summary of evidence to be taken in writing at (place) on the day of at o'clock in the noon :

I do hereby summon and require you (name) to attend as a witness at the said place and hour (and to bring with you the documents specified on the back hereof).

Whereof you shall fail at your peril.

Given under my hand at on the

day of 19 .

(Signature)

Commanding Officer of the accused.

(5)

Form of Summons to a Civilian Witness in the case of a Courtmartial.

Whereas a courtmartial has been ordered to assemble at on the day of

19 , for the trial of

of the unit, I do hereby summon and require you (name) to attend, as a witness, the sitting of the said court at

on the day of at o'clock in the forenoon (and to bring with you the documents specified on the back hereof) 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 this day of 19 .

(Signature)............................................................ ............................................................ .

Convening Officer (or Judge-Advocate, or

President of the Court).

(6)

Form of Order for the Assembly of a General or Local Courtmartial.

Orders by

Commanding the

The Detail of Officers as mentioned below will assemble at on the day of 19 , for the purpose of trying by a Courtmartial the accused person (persons) named in the margin (and such other person or persons as may be brought before them).

PRESIDENT

is appointed President.

MEMBERS

WAITING MEMBERS

JUDGE ADVOCATE

The accused will be warned and all witnesses duly required to attend.

The proceedings will be forwarded to the Deputy Judge-Advocate General, Department of Defence, Parkgate, Dublin.

Signed at this day of 19 .

(Name)

(Rank)

(Appointment)

(7)

Form of Medical Certificate.

I have this day medically examined (No.)

(Rank) (Name)

(Unit) , and certify that he is physically fit and able to stand his trial by courtmartial.

Dated this day of 19 .

(Signed)

(Rank)

(Appointment)

APPENDIX II.

Forms of Oaths and Declarations.

OATHS.

PRESIDENT AND MEMBERS.

I swear by Almighty God that I will well and truly try the accused (or accused persons) before the Court according to the evidence, and that I will duly administer justice according to the Defence Force Acts now in force, without partiality, favour or affection, and I will not divulge the sentence of the court until it is duly confirmed, and I do further swear that I will not on any account, at any time whatsoever, disclose or discover the vote or opinion of any particular member of this courtmartial, unless thereunto required in due course of law.

JUDGE-ADVOCATE.

I swear by Almighty God that I will not, unless it is necessary for the due discharge of my official duties, divulge the sentence of this courtmartial until it is duly confirmed ; and that I will not on any account, at any time whatsoever, disclose or discover the vote or opinion of any particular member of this courtmartial, unless thereunto required in due course of law.

OFFICER UNDER INSTRUCTION.

I swear by Almighty God that I will not divulge the sentence of this courtmartial until it is duly confirmed ; and that I will not on any account, at any time whatsoever, disclose or discover the vote or opinion of any particular member of this courtmartial, unless thereunto required in due course of law.

SHORTHAND-WRITER.

I swear by Almighty God that I will truly take down to the best of my power The evidence to be given before this courtmartial and such other matters as may be required, and will, when required, deliver to the court a true transcript of the same.

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 before this courtmartial.

WITNESS.

I swear by Almighty God that the evidence which I shall give before this court shall be the truth, the whole truth, and nothing but the truth.

MANNER OF TAKING THE OATH.

A person taking the oath will hold the New Testament or, in the case of a Jew, the Old Testament, in his uplifted hand and will say or repeat the oath after the person administering it.

SOLEMN DECLARATIONS.

The form of declaration will be the same as the form of oaths except that for the words " I swear by Almighty God" will be substituted the words " I (name in full) do solemnly promise and declare "; and that the words " solemnly promise and declare " will be substituted for the word " swear " wherever it occurs.

APPENDIX III.

Forms of Commitment, Transfer and Discharge.

COMMITMENT.

(1)

Forms of order for Commitment to a Detention Barracks for Safe Custody while awaiting his Trial by, or sentence of Courtmartial.

Commitment for safe custody.

To the officer or non-commissioned officer in charge of the Detention Barracks at

WHEREAS (No.) (Rank)

(Name) of the (Unit), (has been remanded for trial by courtmartial) or was on the day of 19 , tried by Courtmartial for the offence of

and is awaiting (trial) or (the promulgation of the finding and sentence of the court).

NOW, therefore, I, the undersigned, being the Commanding Officer of the said soldier, do hereby, in pursuance of Defence Force Regulations order you to receive him into youir custody for safe custody, and for so doing this shall be your warrant.

You will take care that the said soldier wears his proper clothing and necessaries, that he is allowed to exercise during a reasonable portion of each day, in association, if possible, but that he is kept apart from soldiers undergoing sentences, and that he receives the ordinary rations and messing of a soldier. He should not be obliged to labour otherwise than by being employed in drill-fatigue and other duties similar in kind and amount to those he might be called on to performed if not in confinement.

Signed at this day of 19

(Name)

(Rank)

(Appointment)

(2)

Form of Order for Commitment to a Detention Barracks on award of Detention by Commanding Officer.

Detention—Commanding Officer's award.

To the Commandant or officer or non-commisioned officer in charge of the Detention Barracks at

WHEREAS (No.) (Rank)

(Name) of the (Unit) as on the day of 19 , awarded by his commanding officer detention for

for the offence of

NOW, therefore, I, the undersigned, being the commanding officer of the said soldier, do hereby in pursuance of the Defence Forces (Temporary Provisions) Act, 1923 , and of all other Acts and powers enabling me in this behalf, order you to receive him into your custody to undergo his sentence according to law, and for so doing this shall be your warrant.

Signed at this day of

, 19 .

(Name)

(Rank)

(Appointment)

(3)

Form of Order for Commitment to a Detention Barracks of person subject to military law as a soldier sentenced to Detention.

Detention—uncommuted sentence.

To the Commandant or Chief Officer in charge of a Detention Barracks at

WHEREAS (No.) (Rank)

(Name) of the (Unit) was by a (Local or General) Courtmartial held at

convicted of the offence of

and by a sentence signed on the day of

19 , sentenced to detention for

commencing on the aforesaid day, and such sentence has been confirmed by

NOW, therefore, I, the undersigned

do hereby in pursuance of the Defence Forces (Temporary Provisions) Act, 1923 , and of all other powers enabling me in this behalf, order you to receive the said soldier into your custody, and detain him to undergo his said sentence according to law, and for so doing this shallbe your warrant.

Signed at this day of , 19 .

(Name)

(Rank)

(Appointment)

(4)

Form of Order for Commitment to a Detention Barracks of person subject to military law as a soldier sentenced to Detention.

Detention—commuted sentence.

To the Commandant or Chief Officer in charge of the Detention Barracks at

WHEREAS (No.) (Rank)

(Name) of the (Unit),

was by a (Local or General) Courtmartial held at

convicted of the offence of

and by a sentence signed on the

sentenced to suffer and such sentence has been confirmed by

as required by law, but has been commuted into detention for

commencing on the day of , 19 .

NOW, therefore, I, the undersigned, being a committing authority, do hereby, in pursuance of the Defence Forces (Temporary Provisions) Act, 1923 , and of all other Acts and powers enabling me in this behalf, order you to receive the said soldier into your custody and detain him to undergo his sentence according to law, and for so doing this shall be your warrant.

Signed at this day of 19 .

(Name)

(Rank)

(Appointment)

(5)

Form of Order for Commitment to Prison, Military or Civil (or to a Detention Barracks) of person subject to military law sentenced to Imprisonment.

Imprisonment—uncommuted sentence.

To the Governor or Chief Officer in charge of

Prison (or Detention Barracks) at

WHEREAS (No.) (Rank)

(Name) of the (Unit), was by a (Local or General) Courtmartial held at

convicted of the offence of

and by a sentence signed on the day of , 19 , sentenced to be imprisoned with (or without) hard labour for

commencing on the aforesaid day, and such sentence has been confirmed by

NOW, therefore, I, the undersigned, the

do hereby, in pursuance of the Defence Forces (Temporary Provisions) Act, 1923 , and of all the other powers enabling me in this behalf, order you to receive the said person into your custody and detain him to undergo his said sentence according to law, and for so doing this shall be your warrant.

Signed at this day of

, 19 .

(Name)

(Rank)

(Appointment)

(6)

Form of Order for Commitment to Prison, Military or Civil (or to a Detention Barracks), of person subject to military law sentenced to Imprisonment.

Imprisonment—commuted sentence.

To the Governor or Chief Officer in charge of

prison (or Detention Barracks) at

WHEREAS (No.) (Rank)

(Name) of the (Unit),

was by a (Local or General) Courtmartial convicted of the offence of

and by a sentence signed on the

sentenced to suffer

and such sentence has been confirmed by

as required by law, but has been commuted into imprisonment for

with hard labour commencing on the

day of , 19 .

NOW, therefore, I, the undersigned, being a committing authority, do hereby, in pursuance of the Defence Forces (Temporary Provisions) Act, 1923 , and of all other Acts and powers enabling me in this behalf, order you to receive the said soldier into your custody and detain him to undergo his said sentence according to law, and for so doing this shall be your warrant.

Signed at this day of , 19 .

(Name)

(Rank)

(Appointment)

(7)

Form of Order for Commitment to Prison of Military Convict sentenced to Penal Servitude.

Penal Servitude.

WHEREAS (No.) (Rank)

(Name) of the (Unit), was by General Courtmartial held at

convicted of the offence of

and, by a sentence signed on the day of , 19 , sentenced to suffer penal servitude for years, commencing on the aforesaid day, and such sentence has been confirmed by the Adjutant General to the Forces.

NOW, therefore, I, the undersigned (the ), do hereby, in pursuance of the Defence Forces (Temporary Provisions) Act, 1923 , and of all other powers enabling me in this behalf order that the said convict shall be, as soon as practicable, transferred to a prison in which a prisoner sentenced to penal servitude by a civil court in Ireland can for the time being be confined either permanently or temporarily, there to undergo his sentence according to law.

AND I do, hereby, in pursuance of the above mentioned Act and powers order the Governor or Chief Officer of any such prison to whom the convict is brought to receive him into his custody and detain him accordingly, and for so doing this shall be sufficient warrant.

Signed at this day of , 19 .

(Name)

(Rank)

(Appointment)

(8)

Form of Order for temporary custody in Prison or Lock-up.

Temporary civil custody.

To the Governor of or Chief Officer of

Prison at

WHEREAS of

is now a soldier in military custody.

NOW, therefore, I, the commanding officer of the said soldier, do hereby in pursuance of the Defence Forces (Temporary Provisions) Act, 1923 , and all powers enabling me in this behalf, order you to receive the said soldier into your custody and detain him until you receive a further order from me, but not longer than seven days, and for so doing this shall be your warrant.

Signed this day of 19 .

(Name)

(Rank)

Commanding Officer of the said soldier.

TRANSFER.

(9).

Form of Order for transfer of soldier from one Prison (or Detention Barracks) to another.

Imprisonment.

To the Governor or Chief Officer of Prison

(or Detention Barracks) at

WHEREAS (No.) (Rank) (Name)

of the (Unit), is now in your custody undergoing sentence of imprisonment passed by courtmartial.

I, the undersigned, being the competent military authority do hereby, in pursuance of Defence Forces (Temporary Provisions) Act, 1923 , and of all other Acts and powers enabling me in this behalf, order you to deliver the said soldier to the officer or non-commissioned officer presenting this order.

AND I do hereby order the said officer or non-commissioned officer, and all officers and non-commissioned officers into whose custody the said soldier may be delivered, to keep the said soldier in military custody and convey him in military custody in such manner as may be directed by the military authority to prison (or detention barracks) at there to undergo the remainder of his sentence, and for so doing this shall be sufficient warrant.

Signed at this day of

19 .

(Name)

(Rank)

(Appointment)

(10)

Form of Order for Transfer of a Person subject to Military Law as a Soldier undergoing Detention from one Detention Barracks to another.

Detention.

To the Commandant or Chief Officer of the Detention Barracks at

WHEREAS (No.) (Rank)

(Name) of the (Unit),

is now in your custody, undergoing a sentence of detention passed by courtmartial.

I the undersigned, being the competent military authority do hereby, in pursuance of the Defence Forces (Temporary Provisions) Act, 1923 , and of all other Acts and powers enabling me in this behalf, order you to deliver the said soldier to the officer or non-commissioned officer presenting this order.

AND I do hereby order the said officer or non-commissioned officer, and all officers and non-commissioned officers into whose custody the said soldier may be delivered, to keep the said soldier in military custody and convey him in military custody in such manner as may be directed by the military authority, to the detention barracks at , there to undergo the remainder of his sentence, and for so doing this shall be sufficient warrant.

Signed at this day of

19 .

(Name)

(Rank)

(Appointment)

(11)

Form of Order for Delivery into Military Custody of a Soldier undergoing Imprisonment.

Imprisonment—delivery into military custody.

To the Governor or Chief Officer of

Prison or (Detention Barracks) at

WHEREAS (No.) (Rank)

(Name) of the (Unit),

is now in your custody undergoing a sentence of imprisonment passed by courtmartial.

AND I do hereby order the said officer or non-commissioned officer, and all other officers and non-commissioned officers into whose custody the said soldier may be delivered, to keep the said soldier in military custody and bring him to there to* and then to return him to the above-named prison (or detention barrack), or to such other prison (or detention barrack) as may be determined by the competent military authority, and to detain him in military custody until he is so returned or is released in due course of law, and for so doing this shall be sufficient warrant.

Signed at this day of

, 19 .

* State the purpose for which the soldier prisoner is required.

If the Prison (or Detention Barrack) to which he is Returned is altered.

I, the undersigned, being the competent military authority, do hereby, in pursuance of the Defence Forces (Temporary Provisions) Act, 1923 , and of all other Acts and powers enabling me in this behalf, order that he be forthwith returned in military custody to prison (or detention barracks) at there to undergo the remainder of his sentence.

Signed at this day of

, 19 .

(Name)

(Rank)

(Appointment)

(12)

Form of Order for Delivery into Military Custody of a Soldier undergoing Detention.

Detention—delivery into military custody.

To the Commandant or Chief Officer of the Detention Barracks at

WHEREAS (No.) (Rank)

(Name) of the (Unit),

is now in your custody, undergoing a sentence of detention passed by courtmartial.

I, the undersigned, being the competent military authority, do hereby, in pursuance of the Defence Forces (Temporary Provisions) Act, 1923 , and of all other Acts and powers enabling me in this behalf, order you to deliver the said soldier to the officer or non-commissioned officer bringing this order.

AND I do hereby order the said officer or non-commissioned officer, and all other officers and non-commissioned officers into whose custody the said soldier may be delivered, to keep the said soldier in military custody and bring him to there to* and then to return him to the above-named detention barracks, or to such other detention barracks as may be determined by the competent military authority, and to detain him in military custody until he is so returned, or is released in due course of law, and for so doing this shall be sufficient warrant.

Signed at this day of

, 19 .

If the Detention Barrack to which he is Returned is Altered.

I, the undersigned, being the competent military authority, do hereby, in pursuance of the Defence Forces (Temporary Provisions) Act, 1923 , and of all other Acts and powers enabling me in this behalf, order that he be forthwith returned in military custody to the detention barracks at there to undergo the remainder of his sentence.

Signed at this day of

, 19 .

(Name)

(Rank)

(Appointment)

* State the purpose for which the soldier is required.

DISCHARGE.

(13)

Form of Order for Discharge of Person subject to Military Law undergoing Imprisonment or Detention.

Imprisonment or detention by courtmartial sentence.

To the Governor, Commandant or Chief Officer of the Prison (or Detention Barracks) at

WHEREAS (No.) (Rank)

(Name) of the (Unit),

is now in your custody under sentence of imprisonment (detention) by Courtmartial.

I, the undersigned, being

do hereby order you to discharge the said soldier.

Signed at this day of

, 19 .

(Name)

(Rank)

(Appointment)

(14)

Form of Order for Discharge in case of Detention under Award of Commanding Officer.

Detention—Commanding Officer's award.

To the Commandant or officer or non-commissioned officer in charge of the Detention Barracks at

You are hereby required to discharge the soldier (No.)

(Rank) (Name) of the (Unit), now in your custody undergoing his sentence pursuant to the award of his commanding officer.

Signed at this day of

, 19 .

(Name)

(Rank)

Commanding Officer of the above soldier.

(15)

Form of Releasing Order in case of Confinement in Detention Barracks for safe Custody while awaiting trial by, or sentence of, courtmartial.

Release from confinement for safe custody.

To the Officer or non-commissioned officer in charge of the Detention Barracks at

You are hereby required to deliver over the soldier (No.)

(Rank) (Name)

of the (Unit), now in your custody for safe custody, pursuant to committal by his commanding officer, to the non-commissioned officer of the escort herewith attending to receive him.

Signed at this day of

, 19 .

(Signature)

Commanding Officer of the above soldier.

Given under my Official Seal this 17th day of January, 1946.

OSCAR TRAYNOR,

Minister for Defence.

Irish Statutory Instruments

S.I. No. 35/1946 -- Defence Forces (Temporary Provisions) Act, 1923. Rule of Procedure (Defence Forces), 1946.