DEFENCE NOTES.

Dominion, Volume 4, Issue 960, 29 October 1910, Page 12

DEFENCE NOTES.

[Edited By Eohilon.]

MILITARY LAW AND; COURTS.

MARTIAL

PROCEDURE UNDER THE NEW

Ono of the important features of tlio new Defence Bill, which, practically speaking, has now become law, 'is tho provision for the trial by courts-martial of persons charged with offences-under the regulations. A short resume of tho rules of procedure for such courtsmartial, in so far, as they will apply; to Now Zealand, will no doubt bo of interest to all concerned. Tho principal point to bo emphasised is that ah accused person tried by court-martial is given the fullest opportunity for defending himself.

The object of military law is to maintain discipline among the troops and other persons forming part of an army. I Civil law is too slow in its action,.and its elaborate code is unsuited for prompt punishment. Persons subject to military law aro charged, tried, ami punished in accordance with the Army Act, "Eules of Procodure," and "King's Regulations." In New Zealand, under tho new Act, staff and permanent force officers and N.C.O.'s will be subject to military law always, but Territorial officers, N.C.O.'s, and men will 'be subject to military law only when in camp, on parade, or going to or returning from parade:. 'V;. . . When a soldier commits an offence, he is placed either under open, j;or;.-'-closo arrest, and a charge made against'him. A prisoner charged with ari:',- ; 6ffence is brought before his O.C. company, who may act as follows:— '..f^t,;--.

(1); Dispose of the case/,,summarily, or (2) Eefer the case to Superior; military authority, or ' ;i:f'.; (3) Adjourn the case-for the purposo of having, the evidence reduced to writing. (R.P. 4,..45 i.) ' V v The prisoner is now kept under close arrest, but is again brought before his O.C. to enable a written summary ; of, evidence, to be taken, a copy:of whicbJis' forwarded, to the O.C. District;/'ftith'-.tho application: for trial by th%:district court-martial. Four copies, areTmade. of this summary 'of. evidence;: and issued, one to the accused at the.; time he is warned for trial, one to. the'president.of the court-martial, one to the prosecutor,, and ono ■ to ; the convening officer.' (M.L.: 30, 31}.. '■.■■:■,,.-'.■ .'•. v,?: ' ■ :.'A'.

On receipt of the application for trial by court-martial, the convening officer (officer cotumadding the district; . carefully considers the case, and may delay the court for the purpose of making inquiries into matters of culpable neglect or improper conduct on the part of the superior officers- of accused, and beforo convening the court satisfy'himself that: (1) The charge is an offence under the Army Act. ■ : ■. ■; , [ (2).. The charge is properly framed in accordance with ; the rules and / King's regulations. .'<'.. v (3)' The ovidence justifies tho trial of the accused...'(M.L. ,28, 10.) '"' ••• He. will'then apply to headquarters for authority to convene a -district courtmartial. (M.L. 2D, 40). On receipt of this authority the. convening officer. (O.C. District) issues a special order convening the court, settles: the charges on. which tho'accused is to be tried, and arranges tor an officer to communicate to "tho accused:—

(1) A list of, officers who will sit oil the court. . '■■■'•!.

(2) A copy of charge sheet. (3) A summary. of evidence. (M.L.

In the meantime the prisoner is at liberty, to' communicate to his witnesses nnil legal adviser.or other friends, also judge advocate. He need not 'give prosecutor a list of his; witnossei, nor can he< demand; a list of ' witnesses for prosecution. (M.L. 32, 3, 40.) \ A district court-martial should consist of three officers, each of which must have .held a:commissioii'.'during not less than ' two, years,.; NoF officer,*';unless, it can ~be avoided, is to 'sit on a CM. unless iie has previously attended at Cc.M. as supernumerary at least 25 times, and is, in tho opinion of his commanding officer, competent. '(K.R. 572.) The convening officer may increase the number, of officers on a,CM. but not decrease, it. ; i ■' The officers who are ineligible to sit on a court-martial are:-- The convening officer, the. prosecutor or witness for prosecution, company commander of accused, the officer who investigated ■ the charge before trial, the'officer .commanding, any officer who has a personal interest in the case, officers with less than two years' service as officers. (E.P. 19, 465.) :

All the necessary-arrangements, having now been made the trial commences. The procedure is as follows:—. < The Court assembles at appointed time, officers in full dress, also officers in waiting, and the orcler convening Court' is read. This order also appoints the president, members, and judge' advocates. The Court then ascertains if all officers are present and that each is qualified to sit, and also if the president is eligible (A.A. 47, 4), and that the judge advocate is not disqualified. Upon which tho Court then ascertains: ■, : , (1) If their constitution is valid. J2) If accused is amenable to their jurisdiction.

(3) If charge is property framed. (If not they report to convening officer.) The prosecutor and accused may be present during above, but the prosecutor has no statue until after they are concluded. The prosecutor then assumes his position and prisoner is brought in, and the accused is asked if ho objects to be tried by president or 'members. The Court will bo,sworn by the judge advocate, and he as well as the officers attending for instruction arc sworn. The charge is read by the judge advo; c'ate and prisoner asked if ho is "guilty' or "not guilty," each charge being treated separately. If the plea'is -"not guilty thti Court will proceed with the trial, after considering any plea as to the jurisdiction of trial Then tho prosecutor makes the opening* address. (R.P. 39, CO) and calls evidence -for the prosecution. Accused may cross-examine, after which, prosecutor may re-examino oh matters dealt with in cross-examination.' The accused is then called on for his defence and calls such witnesses as lit wishes. If the accused is represented by counsel tho latter conforms to' rules for Civil Courts. The prosecutor sums up the case for tho prosecutionj commenting on tho evidence of the accused. ; jV The accused may then make an address in his defenco and call witnesses as to character. >At the close of the evidence for the prosecution,the accused, is j told that ho may,'if ho wishes, give evidence as a witness, but that if ho gives evidence he will subject himself to crossexamination. • Ho may, now address the court. Ho then gives evidence if he desires and is cross-exanined. His other witnesses for the defence are next called, and after that-witnesses as to character. After this the accused addresses the Court a second time, and tho prosecutor addresses the Court in roply. . The judge advocate then: sums up in open Court, which is afterwards closed to consider tho finding; The opinion of each member of the Court is taken, starting with junior. The Court is i then reopened'and evidence colled.as to the record o* service, etc. Tho accused may cross-eswnine the witnesses, and may address the Court on evidence given_in connection with his services, etc. Tho .Mial phase of the trial is then taken. - Tho Court is closed to consider the sentence, and prisoner marched away to the guard tent and kopt in close arrest. If found "not guilty" the finding will bo announced in onen Court. .• ■ , If Riiiltv the sentence is signed by the president'and the proceedings by the judge advocate, and forwarded to the confirming officer for confirmation, the prisoner being kept in detention pending promulgation of sentence. ■ .The . confirming officer may reduce sentence or ouash proceedings on technical grounds. 1 when proceedings are confirmed they are forwarded to the O.C. division who assembles, n parade of the whole of his command,; and the accused is brought out under escort and the proceedings rend before all present. Tlje prisoner is then marched away for sentence to be carried out. and the'proceedings forwarded to the judge advocate general.