Cases Not Covered by Rules

In any case not provided for by these Rules such course shall be adopted as appears best calculated to do justice. 90 FIRST SCHEDULE [Rules 4(2), 7(5), 6, 82(3) and 93] FORMS FOR COMMANDING OFFICERS (1) SUMMARY OF EVIDENCE. (2) ABSTRACT OF EVIDENCE. (3) CERTIFICATE TO BE ATTACHED TO ABSTRACT OF EVIDENCE AFTER IT HAS BEEN HANDED TO THE ACCUSED. (4) SUMMONS TO A WITNESS TO ATTEND THE TAKING OF A SUMMARY OF EVIDENCE. Defence 91 FIRST SCHEDULE (CONT.) (1) SUMMARY OF EVIDENCE Rule 6 PART I (Prosecution Witness Evidence) Summary of evidence in the case of …………………. (number, rank, name, unit or other description of the accused). Taken by *(the commanding officer of the accused) .................. ............................................. (rank, name, unit) *(on the direction of the commanding officer of the accused,) .........................................................(number, rank, name, unit or other description), Witness for the prosecution. Where………………………………. having been duly sworn1 states…………………………………………………………………. …………………………………………………………………. *(Cross-examination by the accused). 2Question 1 ..................................................... Answer 1 ......................................................... or *(The accused declines to cross-examine this witness) ................................................................................................. (Signature and rank (if any) of witness) 92 Defence FIRST SCHEDULE (CONT.) or (If witness cannot be compelled to attend) .........................(number, rank, name, unit or other description). Witness for the prosecution. A written statement of this witness’ evidence purporting to be signed by him has been read to the accused and is included in this summary at page ............................... . Having regard to ............................ (insert grounds for non-attendance of witness-see Rule 6 (b)) the attendance of this witness cannot in my opinion be readily procured. *(The accused does not demand the attendance of this witness for cross-examination.) *(The accused demands the attendance of this witness for cross- examination but the witness is not compellable and has refused to attend.) ....................................................................................... (Signature of officer taking the summary of evidence) or ................................................................................................... (description). A written statement of this witness’s evidence has been read to the accused and is included in this summary at page ................. *(The accused does not object to the application of Rule of Procedure 6 (b)). *(The accused objects to the application of Rule of Procedure 6 (b) but the witness is not compellable and has refused to attend.) Witness for the prosecution. ......................................................................................... (Signature of officer taking the summary of evidence) Defence 93 FIRST SCHEDULE (CONT.) PART II Caution *The accused having been duly cautioned in accordance with Rule of Procedure 6(c) reserves or *The accused having been duly cautioned in accordance with Rule of Procedure 6 (c) elects to *(give evidence on oath) *(make a statement without being sworn) and to call a witness (es).3 The accused ...........................(number, rank, name, unit or other description) having been duly sworn states…………………………………………………………………. …………………………………………………………………. ........................................................................................ (Signature and rank (if any) of accused if he signs) PART III Witness for the defence Witness for the defence. ........................................................(number, rank, name, unit or other description) having been duly sworn states…………………………………………………………………. ..................................................................................................... (Signature and rank (if any) of witness) 94 Defence FIRST SCHEDULE (CONT.) or ..........................(number, rank, name, unit or other description) Witness for the defence. A written statement of this witness’s evidence purporting to be signed by him has been read to the accused and is included in this summary at page ............ Having regard to ................................................................ (insert grounds for non-attendance of witness-see Rule 6(d)) the attendance of this witness cannot in my opinion be readily procured. .................................................................................................... (Signature of officer taking the summary of evidence) PART IV Certification that Rule of Procedure 6 has been complied with. This summary of evidence was taken by me at ............................... in the presence and hearing of the accused on the ........................... day(s) of .............................................. 20 ............. . .................................................................................................... (Signature and rank of officer taking the summary of evidence) _____________________________________ 1 When a witness or the accused affirms the words “duly affirmed” should be substituted for the words “been duly sworn” and when a witness is a child who is too young to give evidence on oath or the accused makes statement without being sworn the words “without being sworn” should be substituted for the words “having been duly sworn”. 2 See, however, rule 6(g). 3 Omit the words “and to call a witness(es)” if they are not applicable. * Strike out that which is not applicable. Defence 95 (2) ABSTRACT OF EVIDENCE [Rule (7)] Abstract of evidence in the case of ................................................. (number, rank, name, unit or other description) consisting of .................... (insert the number of statements) attached statements1 and .......................... (insert the number of precis) precis of evidence of witnesses1 for the prosecution and compiled by me ...............................2 *(the commanding officer of the accused) *(on the direction of the commanding officer of the accused). Dated ............................ 20 ......... ....................................... (Signature and rank) _____________________________________ 1 Strike out any references to statements or precis which are not applicable 2 Insert name and rank of the officer making the abstract. * Strike out that which is not applicable. 96 Defence (3) CERTIFICATE TO BE ATTACHED TO ABSTRACT OF EVIDENCE AFTER IT HAS BEEN HANDED TO THE ACCUSED [Rule 7(5)] Certified that I ............................................................................ ...................................................................................................1 on the ......................... day of ................................... 20 ............ handed to the accused ................................................................ ...................................................................................................2 a copy of the abstract of evidence relating to him dated the ............................ day of ............................ 20 ............. and duly cautioned him in accordance with Rule of Procedure 7(2) and that *(on the …………… day of ................................................ 20 ................... he elected to make and sign the statement which is marked .......................................................... and attached to this certificate.) *(he did not make a statement.) *(The accused submitted .......................................................... statements of evidence for the defence which are marked ................................................... respectively and are attached to this certificate). Dated ........................................ 20 ........ .............................................. (Signature of certifying officer) _____________________________________ 1 Insert rank, name and unit of officer signing the certificate. 2 Insert number, rank, name, unit or other description of the accused. * Strike out that which is not applicable. Defence 97 FIRST SCHEDULE (CONT.) (4) SUMMONS TO A WITNESS TO ATTEND THE TAKING OF A SUMMARY OF EVIDENCE [Rules 6(b), 6(d)] To...............................................................................................1 WHEREAS a charge has been preferred against ......................2 AND WHEREAS I have directed a summary of the evidence to be taken at ......................................3 on the ….............. day of .................................... 20 ….......... YOU ARE, PURSUANT TO SECTION 107 OF THE DEFENCE ACT AND RULE *(6(b)) *(6(d)) OF THE RULES OF PROCEDURE MADE THEREUNDER, HEREBY SUMMONED and required to attend as a witness the taking of the said summary of evidence at .............................................3 on the .............. day of ..................................... 20 ............ at ............. o’clock in the .............. noon and bring with you the documents hereinafter mentioned, viz:4........................................................................... Whereof you shall fail at your peril. Given under my hand at .......................... on the ........ day of ................................. 20 ........... ......................................................................................... (Signature rank and unit) Commanding officer of the accused _____________________________________ 1 Insert name and address of the person to whom the summons is to be sent. 2 Insert the number, rank, name, unit or other description of the accused. 3 Insert the place where the summary of evidence is to be taken. 98 Defence FIRST SCHEDULE (CONT.) 4 Specify the documents (if any) which the witness is to bring. If the witness is not required to bring any documents, strike out the words relating to documents. * Strike out that which is not applicable. Defence 99 SECOND SCHEDULE [Rules. 10(3) and 11(4)] CHARGE-SHEETS (1) COMMENCEMENT OF CHARGE-SHEETS. (2) STATEMENTS OF OFFENCES. (3) ILLUSTRATION OF CHARGE-SHEETS 100 Defence is charged withof the reserve of the Force when called out on permanent service is } the volunteer element of the Force serving on the permanent staff of called out on permanent service called out on temporary service an officer of the volunteer element of the Force is charged withattached to the Force is charged with– (1) COMMENCEMENT OF CHARGE-SHEETS of the regular force is charged withundergoing training DEFENCE ACT (2) { SECTION 164 SECTION 100 charged withelement of the Force when a soldier of the volunteer } } } an officer an officer an officer a soldier a soldier a soldier { { { - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - The accused The accused The accused The accused The accused (a) (b) (d) (c) (e) (1) (1) (1) (1) (1) Defence 101 of the Defence Act. contrary to section 33(a) of the Defence Act. } Misconduct in action and other offences arising out of Military service (d) { (a) (b) (c) contrary to section 30(2) of the Defence Act. } when under orders to regulate traffic } } SECTION 30 SECTION 31 SECTION 32 Obstructing an action or operation contrary to section 32 of the Defence Act. SECTION 33 of the Defence Act. when on guard duty (a) (b) (c) (d) (e) (f) Misconduct in action or operation against the enemy Misconduct in the presence or vicinity of the enemy { } (b) { Misconduct in Action contrary to section 30(1) (a) Assisting the enemy contrary to section 31(1) { } Misconduct when under orders Leaving his place of duty Sleeping { { (1) (2) (1) (a) 102 Defence to let him or any other person pass contrary to section 33(c) contrary to section 33(b) of the Defence Act. } of the Defence Act. under orders to regulate traffic a duty contrary to section 34(b) of the Defence Act. (a) Mutiny relating to the enemy contrary to section 36(1)(a) of the Defence Act. } Mutiny and Insubordination on guard duty SECTION 33 (cont.) contrary to section 34(a) of the Defence Act. SECTION 34 SECTION 35 SECTION 36 under orders to regulate traffic { of the Defence Act. a member of the Force or of any on guard duty Force cooperating therewith { } (a) (b) By threat of force compelling a person (c) } } { } Failing to attend for a duty Looting contrary to section 35 Negligently performing Neglecting to perform Using force against Leaving a duty Striking { { { { (b) (c) (a) (b) (1) Defence 103 language to his superior officer contrary to section 38(1)(b) of the Defence Act. his superior officer contrary to section 38(1)(a) of the Defence Act. Desertion, absence without leave, etc. Disobedience to standing orders contrary to section 40(1) of the Defence Act. SECTION 38 SECTION 39 SECTION 40 SECTION 41 SECTION 42 Disobeying a lawful command contrary to section 39 of the Defence Act. Absence without leave contrary to section 42 of the Defence Act. Desertion contrary to section 41(1) of the Defence Act. } } violence to insubordinate } threatening Offering Striking { Using { (a) Using (b) (1) (1) (1) (1) 104 Defence contrary to section 43(b) of the Defence Act. } contrary to section 43(a) of the Defence Act. } Malingering and drunkenness a person who has improperly absented himself a person who has improperly absented himself Disorderly conduct SECTION 43 SECTION 44 SECTION 45 SECTION 46 } absent himself absent himself of the Defence Act. desert desert { { Drunkenness contrary to section 45(1) of the Defence Act. a person attempting to a person attempting to { Using threatening, abusive, insulting or provocative a deserter or absentee a deserter or absentee Fighting contrary to section 46(a) of the Defence Act. } (d) { Malingering contrary to section 44(1) (a) (b) (c) { { { { { { Failing to report without cause the apprehension Failing to take steps to delay of (a) (b) (1) (a) Defence 105 contrary to section 47(2)(a) of the contrary to section 47(1)(d) of the contrary to section 47(1)(c) of the Defence Act. contrary to section 47(1)(a) of the Defence Act. Defence Act. Defence Act. } } contrary to section 47(b) of the Defence Act. property belonging to a person subject to property belonging to a service property public property military law person subject to service property public property military law } } { property belonging to a property belonging to a } { person subject to service property public property person subject to service property } damage to military law military law loss of damage to the loss of } { { } { property belonging to a } { } } allowing causing person subject to service property public property causing the loss of allowing Fraudulently misapplying military law causing { } damaging { By negligence { By wilful neglect By omission { Stealing Receiving Wilfully { { (a) (b) (d) (a) (c) (1) (1) (1) (1) (2) 106 Defence 47(2)(b) of the Defence Act. contrary to contrary to section 49(1)(a) of the Defence Act. contrary to section 49(1)(b) of the Defence Act. section } property belonging to a person subject to service property public property military law property contrary to section 48 of the Defence Act. { Offences relating to and by persons in custody } { { } damage to the loss of SECTION 47 (cont.) SECTION 48 SECTION 49 SECTION 50 { his equipment a decoration likely cause } to { omission act } Negligently allowing to be damaged { } service public a negligent a wilful { } Negligently damaging Making away with { Wastefully expending Being guilty of losing Misapplying { { (b) (a) (b) (2) (1) (1) Defence 107 contrary to section 51(2) of the Defence Act. an officer who orders him into arrest contrary to section 51(1) of the Defence Act. of the Defence Act. of the Defence Act. Offences relating to courts-martial and civil authorities } whose duty it is to apprehend him } } (a) (b) SECTION 54 SECTION 55 SECTION 52 SECTION 53 { an arrest by a constable contrary to section 55 in whose custody he is Making a false statement contrary to section 54 of the Defence Act. (a) (b) (c) (d) (e) (f) { Escaping from custody contrary to section 52 of the Defence Act. Contempt of a court-martial contrary to section 53(1) { a person } } violence to violence to } Obstructing } } Preventing Offering { Offering Striking Using Using { { (1) (2) (1) 108 Defence Spreading reports relating to operations likely to create despondency or unnecessary alarm contrary to section 59 of the Defence Act. an official document contrary to section 58(b) of the Defence Act. official document contrary to section 58(a) of the Defence Act. information contrary to section 56(1) of the Defence Act. Miscellaneous offences Making a false answer on enlistment contrary to section 57 of the Defence Act. SECTION 56 SECTION 57 SECTION 58 SECTION 59 } } } Making a false entry in an Purporting to disclose Altering an entry in Making away with a false } Making Suppressing Defacing Disclosing Altering Signing { { { (a) (b) Defence 109 the commission of an offence by another person contrary to section 65 of the Defence Act. contrary to section 61(b) of the Defence Act. Attempting to commit an offence contrary to section 64 of the Defence Act that is to say (set out the offence). in a complaint contrary to section 63(b) of the Defence Act. contrary to section 61(a) of the Defence Act. kind contrary to section 62 of the Defence Act. SECTION 62 SECTION 63 SECTION 64 SECTION 65 } Making a false accusation contrary to section 63(a) of the Defence Act. of less seniority } of inferior rank } a warrant officer } a non-commissioned officer } an unnatural an indecent Wilfully suppressing a material fact a private soldier a cruel } Making a false statement { a soldier Disgraceful conduct of } } Counselling on Procuring Abetting Ill-treating Ill-treating inciting Aiding Striking { { { { (a) (b) (a) (b) (1) 110 Defence Committing a civil offence contrary to section 67 of the Defence Act. (here describe the civil offence in such words as sufficiently describe to the prejudice of good order and military discipline contrary to section 66 of the Defence Act. } Civil Offences SECTION 66 SECTION 67 the civil offence). Conduct Neglect { Defence 111 (3) ILLUSTRATION OF CHARGE-SHEETS CHARGE SHEET The accused No ................................. Sergeant James Black the Belize Defence Force a soldier of the regular force is charged with: STEALING PUBLIC PROPERTY CONTRARY TO SECTION 47 (1)(a) OF THE DEFENCE ACT First charge in that he at Belize City on the ...... day of ................. 2 ......, stole a pair of binoculars public property. ABSENCE WITHOUT LEAVE CONTRARY TO SECTION 42 OF THE DEFENCE ACT Second charge in that he At Belize City absented himself without leave from the ........... day of ...................... 2 ........ to the ........................... day of ............................ 2 ............. . Belize City 6th March 2003. (A.N. Other) Lt. Colonel Commanding the Belize Defence Force To be tried by court-martial (J. Smith) Governor General of Belize, or Belmopan 10th March 2003. (S Brown) Captain authorised to sign for the Governor-General of Belize. _____________ 112 Defence THIRD SCHEDULE [Rules 15(a), 59(3), 63(2), 71(5), 82(3), 83(1)(a), 86(1), 86(7), 87(1), 88(3), 92(1), 93(1)] COURT-MARTIAL FORMS (1) CONVENING ORDERS. (2) DECLARATION UNDER RULES 92 AND 93. (3) SUMMONS TO A WITNESS TO ATTEND A COURT- MARTIAL. (4) RECORD OF PROCEEDINGS OF A COURT-MARTIAL. (5) FINDINGS. (6) RECORD OF RECONSIDERATION OF FINDING UNDER RULE 71(5). (7) SERVICE RECORD OF ACCUSED. (8) RECORD OF PROCEEDINGS ON REVISION UNDER SECTION 91 OF THE ACT. (9) CONFIRMATION. (10) PROMULGATION. Defence 113 THIRD SCHEDULE (cont.) (1) CONVENING ORDERS [Rule 15(a)] CONVENING ORDERS FOR A COURT-MARTIAL ORDERS BY1................................................................................................................. Commanding....................................................................................................... (Place)................................................................................................................. The detail of officers as mentioned below will assemble at:.......................................... at........................ hours on the............... day of ...........................................20............... for the purposes of trying by a court -martial the accused person(s) named below. Name, etc of accused:2 ........................................................................................ ........................................................................................ ........................................................................................ PRESIDENT MEMBERS3 WAITING MEMBERS3 JUDGE ADVOCATE* .........................................................................4 is hereby appointed judge advocate. * { A field officer having suitable qualification is not in the opinion of the convening officer available with due regard to the public service. The record of the proceedings will be forwarded to....................................................... ........................................................................................................................................ Signed this....................day of.........................20.......... ........................................................................................................................................ (Signature, rank and appointment of the convening officer) * Strike out if not applicable 1 Insert rank and name of convening officer. 2 Insert number, rank, name unit or other description of the accused. 3 A member or a waiting member may be described either by giving his rank, name and unit or thus: “A ..............(rank) to be detailed by the officer commanding.............(unit).” See Rule of Procedure 16(a) 4 Insert the judge advocate’s name and any legal qualifications which he has. 114 Defence THIRD SCHEDULE (cont.) (2) DECLARATIONS UNDER RULES 92 AND 93 Declaration under Rule of Procedure 92 In the case of......................................................................................................1 I.............................................2 *(the officer who *(is) *(would be) responsible for convening a court-martial to try the accused) *(the senior officer on the spot) hereby declare that in my opinion the following exigencies of the service, namely:............................................................................................................... ............................................................................................................................ ............................................................................................................................ render compliance with the following provisions of the Rules of Procedure ............................................................................................................................ ............................................................................................................................ ............................................................................................................................ impracticable. Signed at......................................... this...........day of.........................20........... ........................................................................................ (Signature) 1 Insert number, rank, name, unit or other description of the accused. 2 Insert rank, name and appointment of officer making the declaration. * Strike out if not applicable. Defence 115 THIRD SCHEDULE (2) (cont.) Declaration under Rule of Procedure 93 In the case of......................................................................................................1 I.............................................2 *(the officer who *(is) *(would be) responsible for convening a court-martial to try the accused) *(the senior officer on the spot) hereby declare that in my opinion the ......................................3 contain(s) information the disclosure of which would or might be directly or indirectly useful to an enemy. Signed at......................................... this...........day of.........................20........... ........................................................................................ (Signature) 1 Insert number, rank, name, unit or other description of the accused. 2 Insert rank, name and appointment of officer making the declaration. 3 Here indicate the documents(s). * Strike out if not applicable. 116 Defence THIRD SCHEDULE (cont.) (3) SUMMONS TO A WITNESS TO ATTEND A COURT-MARTIAL To ....................................................................................................................1 WHEREAS a court-martial (has been ordered to assemble at..........................)* (has assembled at..........................)* on the...........day of.................... 20.......... for the trial of.....................................................................................................2 YOU ARE, PURSUANT TO SECTION 107 OF THE DEFENCE ACT AND RULE 82 OF THE RULES OF PROCEDURE, MADE THEREUNDER, HEREBY SUMMONED and required to attend as a witness at the sitting of the said court at....................................... on the.......... day of................................. 20..................... at.................. O’clock in the .................noon and to bring with you the documents hereinafter mentioned, viz:3..................................................................................................................... ............................................................................................................................ ............................................................................................................................ and so to attend from day to day until you shall be duly discharged; whereof you shall fail at your peril. Given under my hand at........................... on the..........day of.................20...... ........................................................................................ (Signature, rank and appointment) An officer authorised to convene a court-martial* President of the court* .....................................4 authorised to sign for.................................5 an officer authorised to convene a court-martial. * Strike out if not applicable. 1 Insert name and address of the person to whom the summons is to be sent. 2 Insert number, rank, name, unit or other description of the accused. 3 Specify the documents (if any) which the witness is to bring. If the witness is not required to bring any documents strike out the words relating to documents. 4 Insert appointment of staff officer who signs. 5 Insert the appointment of the officer for whom the staff officer is signing. Defence 117 THIRD SCHEDULE (cont.) (4) RECORD OF PROCEEDINGS OF A COURT-MARTIAL A Page 1 Record of Proceedings of a Court-Martial Proceedings of a ........................... court-martial held at................................... on the .............. day of...............................................20.................. by order of ............................................................................................................................ Commanding...................................................................................................... dated the .............. day of...............................................20.................. PRESIDENT MEMBERS JUDGE ADVOCATE Trial of..............................................................................................................1 The court complies with Rule of Procedure 19 (and where............................... ........................... not being available owing to.................................................. the president appoints.......................................................... a qualified waiting member to take his place.)2 The accused is brought before the court. Prosecutor: .................................................................................................... Defending (officer)2 (Attorney-at-Law)2: ..................................................... At: ......................... hours the trial begins. The convening order is read in the hearing of the accused, marked.................. signed by the president or judge advocate and attached to the record. The names of the president and members of the court are read in the hearing of the accused and they severally answer to their names. Q. Do you object to being tried by me as president, or by any of the officers whose names you have heard read? A. ...................................................................................................................... The proceedings relating to the objection(s) are recorded on...........................2 1 Insert the number, rank, name, unit or other description of the accused as given in the charge-sheet 2 Strike out if not applicable. 118 Defence THIRD SCHEDULE (4)(cont.) B Page.......... Swearing The president, members of the court and judge advocate are duly sworn. The (following) officers under instruction (listed on page ....) are duly sworn. Q. Do you object to......................................................... as shorthand writer? A. ....................................................................................................................1 ..................................................................... is duly sworn as shorthand writer. Q. Do you object to................................................................... as interpreter? A. ....................................................................................................................1 .............................................................................. is duly sworn as interpreter. Special Pleas and Objections The accused offers a plea to the jurisdiction under Rule of Procedure 29. The proceedings relating to his plea are recorded on page..........2 The accused objects to the .................... charge(s) under Rule of Procedure 30. The proceedings relating to his objection(s) are recorded on page..........2 The accused offers (a) plea(s) in bar of trial under Rule of Procedure 31 in respect of the.....................charge(s). The proceedings relating to his plea are recorded on page..........2 The accused........................ applies under Rule of Procedure 32 to be tried separately. The proceedings relating to his application are recorded on page..2 The accused........................ applies under Rule of Procedure 33 to have charges....................... and....................... tried separately. The proceedings relating to his application are recorded on page..........2 1 If there is an objection the proceedings relating to it should be recorded on a separate numbered page and the fact that this has been done should be recorded in this space with the number of the page. 2 Strike out if not applicable. Defence 119 THIRD SCHEDULE (4)(cont.) C Page.......... Arraignment The charge-sheet is read to the accused, and he is arraigned on each charge. The charge-sheet is signed by the president or judge advocate and inserted in the record immediately before this page as page(s).......... Q. Are you guilty or not guilty of the first1 charge against you which you have heard read? A. ...................................................................................................................... Q. Are you guilty or not guilty of the second charge against you which you have heard read?2 A. ...................................................................................................................... Q. Are you guilty or not guilty of the third charge against you which you have heard read?2 A. ...................................................................................................................... Q. Are you guilty or not guilty of the fourth charge against you which you have heard read?2 A ...................................................................................................................... Q. Are you guilty or not guilty of the fifth charge against you which you have heard read?2 A. ...................................................................................................................... Q. Are you guilty or not guilty of the sixth charge against you which you have heard read?2 A. ...................................................................................................................... The accused having pleaded guilty to the ............... charge(s) Rule of Procedure 35 is duly complied with in respect of (this) (these) charge(s).2 The accused’s pleas to the remaining charges are recorded overleaf. 1 Strike out “first” if there is only one charge. 2 Strike out if not applicable. 120 Defence THIRD SCHEDULE (4) (cont.) D1 Page.......... Proceedings on Please of Not Guilty1 Q. Do you wish to apply for an adjournment on the grounds that any of these rules relating to procedure before trial have not been complied with, and that you have been prejudiced thereby, or on the grounds that you have not had sufficient opportunity for preparing your defence?2 The prosecutor (makes an opening address shortly outlining the facts) (makes an opening address which is summarised below) (hands in a written address which is read, signed by the president or judge advocate, marked................................. and attached to the record.) 1Remove this page if there are no pleas of not guilty. 2If the accused asks for an adjournment, the proceedings relating to his application should, if necessary, be recorded on a separate page and a record made here that his has been done. D2 Page.......... The witnesses for the prosecution are called. ....................................................................................1 being duly sworn says:2 Continued on page.......... 1 Insert name of witness for the prosecution. 2 When a witness affirms the words “having duly affirmed” should be substituted for the words “being duly sworn” and where a witness is a child who is too young to give evidence on oath the words “without being sworn” should be substituted for the words “being duly sworn”. Defence 121 THIRD SCHEDULE (4) (cont.) D3 Page.......... Proceedings on Plea(s) of Not Guilty (Continued)1 The prosecution is closed. The accused submits under Rule of Procedure 50 that there is no case for him to answer in respect of the.......................................................... charge(s). The proceedings relating to this submission are recorded on page(s)..........2 Defence Rule of Procedure 51 is complied with. Q. Do you apply to give evidence yourself on oath or do you wish to make a statement without being sworn? A. ...................................................................................................................... Q. Do you intend to call any other person as a witness in your defence? A. ...................................................................................................................... Q. Is he a witness as to fact or to character only? A. ....................................................................................................................3 Q. Do you wish to make an opening address? A. ...................................................................................................................... The accused (makes an opening address which is summarised below)4 (hands in a written address which is read, signed by the president or judge advocate, marked.............................. and attached to the record).4 1 Remove this page if there are no pleas of not guilty. 2 Strike out this paragraph if not applicable. 3 Strike out if the accused does not intend to call witnesses as to fact, other than himself. 4 Strike out if not applicable. 122 Defence THIRD SCHEDULE (4) (cont.) D4 Page.......... (Where the accused makes a statement without being sworn)1 The accused (makes a statement, which is recorded on page.........)2 (hands in a written statement which is read, marked.......... and signed by the president or judge advocate, and attached to the record.)2 (Where evidence on oath is given for the defence)1 The witnesses for the defence (including the accused if sworn) are called .....................................................................................3being duly sworn4 says: Continued on page.......... 1 Strike out this paragraph if not applicable. 2 Strike out if not applicable. 3 Insert name of witness for the defence. 4 When a witness or the accused affirms, the words “having duly affirmed” should be substituted for the words “being duly sworn”; and when a witness is a child who is too young to give evidence on oath the words “without being sworn” should be substituted for the words “being duly sworn”. Defence 123 THIRD SCHEDULE (4) (cont.) D5 Page.......... Proceedings on Plea(s) of Not Guilty (Continued)1 The prosecutor (makes a closing address which is summarised on page......)2 (hands in a closing address which is read, marked........................ signed by the president or judge advocate and attached to the record).2 The accused (makes a closing address which is summarised on page..........)2 (hands in a closing address which is read, marked........................ signed by the president or judge advocate and attached to the record).2 The note of the summing-up of the judge advocate is recorded on page........2 Findings The court close to deliberate on their finding(s) The court finds that the accused3..............................................................is:4 Announcement of Finding(s) The court being re-opened the accused is again brought before it. The finding(s) (is) (are) read and (with the exception of the finding(s) of “not guilty”)2 (is) (are) announced as being subject to confirmation. Proceedings on Acquittal on all Charges The accused is release. Signed at....................................this............day of.................................20........ .................................................. .................................................. Judge Advocate President 1 Strike out this page if not applicable. 2 Strike out if not applicable. 3 Insert the number, rank, name, unit or other description of the accused as given on the charge-sheet. 4 Set out the finding on each charge in the appropriate form set out in the Fourth Schedule to the Rules of Procedure. THIRD SCHEDULE (4) (cont.) 124 Defence E Page.......... Proceedings on Plea(s) of Guilty1 The accused2................................................................................................ is found guilty of:3 The finding(s) (is) (are) read in open court and (is) (are) announced as being subject to confirmation. The (summary) (abstract) of evidence is read to the court by the prosecutor, marked..................., signed by the president or judge advocate and attached to the record.4 or The prosecutor informs the court of the facts contained in the (summary) (abstract) of evidence which is marked...................., signed by the president or judge advocate and attached to the record.4 1 Strike out this page if not applicable. 2 Insert number, rank and name, unit or other description of the accused as given on the charge-sheet. 3 Record the finding on each charge of which the accused is found guilty in the appropriate form set out in the Third Schedule to the Rules of Procedure. 4 Strike out if not applicable. If this paragraph is struck out, Rule of Procedure 38(2) must be complied with. Defence 125 THIRD SCHEDULE (4) (cont.) F1 Page.......... Proceedings on Conviction Note: F2 should be completed before F1 if the accused has pleaded not guilty to all charges. F1 should normally be completed before F2 if the accused has pleaded guilty to any charge, but the president may in his discretion complete F2 before F1 if there is no danger of the accused making an inconsistent plea. Q. Do you wish to give evidence yourself or to call other witnesses as to your character or in mitigation of punishment? A. ...................................................................................................................... The evidence for the defence as to the accused’s character and in mitigation of punishment, is recorded on pages..........1 Q. Do you wish to address the court in mitigation of punishment? A. ...................................................................................................................... The accused (makes an address in mitigation of punishment, which is summarised (below) (on page..........)) (hands in an address in mitigation of “punishment”, which is read, marked............... signed by the president or judge advocate and attached to the record.)1 The list of offences which the court has, at the request of the accused, agreed to take into consideration is read to the accused, signed by him, marked.................., signed by the president or judge advocate and attached to the record.2 Final question addressed to the accused personally. Q. Is there anything further that you wish to say to the court? A. ......................................................................................................... The accused makes a statement which is recorded on page.......... The court closes to deliberate on sentence. * Strike out if F1 is completed before F2. 1 Strike out this paragraph if not applicable. 2 Strike out this paragraph if the accused has not requested other offences to be taken into consideration. 126 Defence THIRD SCHEDULE (4) (cont.) F2 Page.......... Proceedings on Conviction Note: F2 should be completed before F1 if the accused has pleaded not guilty to all charges: The prosecutor calls evidence as to the accused’s character and record. .....................................................................................................is duly sworn. Q. Do you produce the service record of the accused? A. ...................................................................................................................... Q. Have you compared it with the service books? A. ...................................................................................................................... Q. Do the entries on it correspond with the entries in the service books? A. ...................................................................................................................... The accused (declines) (elects) to cross-examine this witness (and the cross-examination is recorded on pages..........). The prosecutor adduces evidence under Rule of Procedure 63(3) which is recorded on pages..........1 Final question addressed to the accused personally. * { Q. Is there anything further that you wish to say to the court? A. ......................................................................................................... The accused makes a statement which is recorded on page.......... The court closes to deliberation on sentence. * Strike out if F2 is completed before F1. 1 Strike out this paragraph if the prosecutor does not adduce evidence under Rule of Procedure 63(3). Defence 127 THIRD SCHEDULE (4) (cont.) G Page.......... Sentence1 The court (having taken into consideration that he has spent.......... days in civil custody and .......... days in close arrest and .......... days in open arrest in connection with the matters for which he is before the court)2 sentence the accused.........................................................3 to................................................4 Announcement of Sentence The court being re-opened, the accused is again brought before it. The sentence (and recommendation to mercy5) (is) (are) announced in open court; the sentence is announced as being subject to confirmation. The president announces that the trial is concluded. Signed at....................................this............day of.................................20........ .................................................. .................................................. Judge Advocate President 1 Remove this page if not applicable. 2 The words in brackets are to be struck out when the sentence is mandatory e.g., “to be imprisoned for life” where the offence is murder. In all other cases only words which are inapplicable should be deleted. 3 Insert the number, rank, name, unit or other description of the accused as given on the charge-sheet. 4 Record the sentence in the appropriate form of words set out in the Fourth Schedule to the Rules of Procedure. 5 Strike out if not applicable. H Page.......... Confirmation1 1 For minutes of confirmation see court-martial Form (9) of the Third Schedule to the Rules of Procedure. Promulgation should be recorded immediately below the minute of confirmation in accordance with Rule of Procedure 86(7) 128 Defence THIRD SCHEDULE (cont.) (5) FINDINGS Acquitted on all charges not guilty of (the charge)1 (all the charges)1. not guilty of (the charge)1 (all the charges)1, and honourably acquit him thereof. Acquittal on some but not all charges not guilty of the................2 charge(s) but is guilty of the ................2 charge(s). not guilty of the................2 charge(s) and honourably acquitted thereof, but is guilty of the ................2 charge(s). Conviction on all charges guilty of (the charge)1 (all charges)1. Special findings guilty of the...............2 charge(s) (with the exception of the words ................3) (with the exception that ....................3). not guilty of the offence, but is guilty of..........................................................4 No finding on alternative charge guilty of the....................................2 charge; the court record no finding on the ....................................... (alternative) charge. Where the accused is unfit to stand his trial by reason of insanity “By reason of insanity unfit to stand his trial”. Accused guilty but insane at the time the offence was committed “Guilty but insane”. 1 Strike out if not applicable. 2 Insert the number of the charge or charges as numbered in the charge-sheet. 3 Specify the exception in detail. This form is appropriate when a special finding is made under Rule of Procedure 58(3). 4 State the offence of which the accused is found guilty. This form is applicable when a special finding is made under section 95(2), (5) and (6) of the Defence Act. Defence 129 THIRD SCHEDULE (cont.) (6) RECORD OF RECONSIDERATION OF FINDING UNDER RULE 71 The judge advocate advises the court that the finding(s) on the ......................1 charge(s) (is) (are) contrary to the law relating to the case, and that in his opinion the following finding(s) (is) (are) open to them: ...........................................................................................................................2 The court is closed for reconsideration of finding. The court on reconsideration finds that the accused is3 ............................... The finding(s) on reconsideration (is) (are) read in open court and (with the exception of the findings(s) of “not guilty”4 (is) (are) announced as being subject to confirmation. 1 Insert number of charge as numbered in the charge-sheet. 2 Insert the advice given by the judge advocate. 3 Set out the finding(s) of the court in the appropriate form(s). 4 Strike out the words relating to findings of “not guilty” if there is no such finding. 130 Defence THIRD SCHEDULE (cont.) (7) Service Record of Accused (Service Record of Accused) Number Rank Name .................... .................... .................... 1.1 He was enlisted on.............................. 19(20) .......... and commissioned on ............................... 19(20) .......... 2. He is serving on a2....................................................................................... 3. His age is.....................years. 4.1 He is single/married/divorced/widowed and has............. children under the age of 16 years. 5. His gross rate of pay is........................per day, but he is............................. 6.3 His reckonable service toward discharge or transfer to the reserve is..........years. 7.3 His reckonable service towards pension, gratuity, etc., is ................ years. 8. (i) He is entitled to the following decorations and awards. (ii) The following acts of gallantry or distinguished conduct are recorded in his conduct sheet: 9.1 He holds the substantive rank of.............. with seniority from............... 19(20) ............ and has held the acting rank of ............................................. continuously since 19(20) .............. 10.1 He has been awaiting trial for.........days since he was first (in connection with the matters for which he is before the court) charged or placed under arrest, of which........ days were spent in civil custody, ...........days were spent in close arrest and............ days were spent in open arrest. 11.1 He is not now under sentence. 12. According to his conduct sheets, he has been found guilty by his commanding officer or by the commandment of a military establishment of the following offences–4 During his service In the last 12 months For times times For times times For times times For times times For times times Defence 131 THIRD SCHEDULE (7) (cont.) 13. The details, according to his conduct sheets, of offences of which he has been convicted by court-martial or of which he has been found guilty during his service by a court other than a court-martial as set out in the Schedule hereto. 1 Delete inapplicable wording. 2 Insert the type and length of the commission or nature and length of the engagement. 3 To be deleted in the case of an officer. 4 If there are no entries in his conduct sheets, enter “nil”. 132 Defence Punishment remitted on re-consideration I HEREBY CERTIFY that this form and schedule contain a summary of entries in the service books relating to the accused. Sentence or order of the court as confirmed THE SCHEDULE HEREINBEFORE REFERRED TO Charges on which convicted or found guilty1 Name Signed this.......... day of .................... of, 20.......... Date and Place of trial Rank Description of Court No. Defence 133 THIRD SCHEDULE (cont.) (8) RECORD OF PROCEEDINGS ON REVISION UNDER SECTION 91 OF THE ACT At..............................1 on the .......... day of.............................. at.......... hours the court reassembled by order of..............................2 the confirming authority for the purpose of reconsidering their finding(s) on the......................3 charge(s) Present......................................................................................................... 4 The order directing the reassembly of the court and giving the reasons therefore is read, marked......., signed by the president or judge advocate and attached to the record. The court, having considered the observations of the confirming authority and the whole of the record of the proceedings, do now revoke their finding(s) on the ...............3 charge(s) and find that the accused...............................5 is ..................6 and (adhere to their sentence) (sentence the accused to .................................................. ..................................................................... in substitution for the original sentence). or The court, having considered the observations of the confirming authority respectfully adhere to their finding(s) on the ....................3 charge(s) (and to their sentence) (but sentence the accused........................................5 to .................................7 in substitution for the original sentence). or of the record of the proceedings do now revoke their finding(s) on the .............3 charge(s) and find the accused.............................5 not guilty of (that) (those) charge(s). Signed at................................. this.......... day of.............................. 20.......... .............................................. .............................................. Judge advocate President 1 Insert the name of the place. 2 Insert the rank, name, appointment, etc., of the confirming authority. 3 Specify the number(s) of the charge(s) concerned as given in the charge-sheet, e.g., the fifth charge. 4 Give the name of the president and members of the court who are present. If the president is absent the senior member must report to the confirming officer. If a member is absent and the court is thereby reduced below the legal minimum the president must report to the confirming officer. 5 Insert accused’s number, rank, name, or other description as given in the charge-sheet. 6 Set out the finding in the appropriate form of words given in this Schedule. 7 Set out the new sentence in accordance with the appropriate form set out in the Fourth Schedule. 134 Defence THIRD SCHEDULE (cont.) (9) CONFIRMATION Note: These forms are for guidance only and do not constitute an exhaustive list of all possible variations and should be adapted to the circumstances of each case. Confirmed. I confirm the court’s finding(s), sentence........................, but (remit.....................1) (commute....................2). I confirm the court’s finding(s), sentence........................, but mitigate the sentence so that it shall be as follows: ......................................................................3 I vary the sentence so that it shall be as follows................................. and confirm the findings and sentence as so varied.4 I confirm the finding(s) but substitute the sentence of.................................... for the sentence of the court.5 I substitute a finding of............................ for the finding of the court and confirm the sentence but (remit.....................1) (commute....................2). I substitute a finding of ........................... for the finding of the court and substitute the sentence of.............................. for the sentence of the court.6 I substitute a finding of............... for the finding of the court on the............ charge(s) and confirm the finding(s) of the court on the ................... charge(s) and the sentence. Not confirmed (on the grounds that...............................) I confirm the finding(s) of the court on the................ charge(s) but do not confirm their finding(s) on the ................ charge(s) (on the grounds that............)7, I confirm the sentence but (remit.....................1) (commute....................2). (The record) (Part of the record) of the proceedings of the ................... court-martial which tried....................................... at......................................... on the.......... day of ...................., 20.......... having been lost I do not confirm the finding(s) of the court. THIRD SCHEDULE (9) (cont.) Defence 135 Signed at................................. this.......... day of.............................. 20.......... ............................................................................... (Signature of confirming authority) 1 State what part of the sentence is remitted. 2 State what the sentence is commuted to. 3 This form of words may be used when it is impracticable to use either “remit” or “commute”. 4 This form of words is appropriate when the court has expressed the sentence informally or incorrectly and the confirming authority desires to put into the correct legal form. 5 This form of words is appropriate when the court has passed an illegal sentence on the accused and the confirming authority desires to substitute a legal sentence 6 This form of words is appropriate where the court has recorded no finding on some charge alternative to a charge upon which it has recorded a finding of guilty and the confirming authority being of the opinion that the court must have been satisfied of the accused’s guilt on the alternative charge, wishes to substitute a finding of guilty on that charge for the findings of the court and to substitute a proper sentence not greater than that imposed by the court. 7 Where a confirming authority withholds confirmation because he disapproves of the decision of the court on a plea to the jurisdiction, in bar of trial or on an objection to a charge, he should specifically state that he is withholding confirmation for this reason. In other cases, the confirming authority is not bound to give his reasons for withholding confirmation. (10) PROMULGATION Promulgated and extracts taken at........................................................................(place) this..........day of.............................. 20.......... ............................................................................... (Signature, rank and appointment of officer making the promulgation) 136 Defence FOURTH SCHEDULE Rule 65 SENTENCES Note: The words in the margin should be entered in the righthand margin of the record of the proceedings of a court-martial opposite the record of the sentence. OFFICERS To suffer death. Imprisonment. To be imprisoned for ............................. Dismissal with disgrace. To be dismissed with disgrace. To be fined ............................. (Severe reprimand.) (Reprimand.) To be (severely reprimanded) (reprimanded). Stoppages. To be put under stoppages of pay until he has made good the sum of..............................1 in respect of .............................2 WARRANT OFFICERS AND NON-COMMISSIONED OFFICERS To suffer death. Imprisonment and reduction to the ranks. To be imprisoned for ......................... and to be reduced to the ranks. Dismissal with disgrace and reduction to the ranks To be dismissed with disgrace and to be reduced to the ranks. (Reduction to the ranks.) (Reduction to the rank of) To be reduced (to the ranks) (to the rank of .............................) To be fined ............................... (Severe reprimand.) (Reprimand.) Stoppages. To be (severely reprimanded) (reprimanded). To be put under stoppages of pay until he has made good the sum of.........................1 in respect of .........................2 Defence 137 FOURTH SCHEDULE (cont.) SOLDIERS To suffer death. Death. To be imprisoned for ........................... Imprisonment. To be dismissed with disgrace. Dismissal with disgrace. Fine. To be fined .............................. Stoppages. To be put under stoppages of pay until he has made good the sum of..........................1in respect of ..............................2 ________________________ 1 Insert the amount which has to be made good by stoppages in respect of the charge or article specified. 2 Specify the charge or article in respect of which the stoppages it to be imposed. If stoppages are being imposed in respect of more than one charge or article the amount which has to be made good in respect of each charge or article must be stated separately. 138 Defence FIFTH SCHEDULE RULE 27 OATHS AND AFFIRMATIONS (1) OATHS AT INVESTIGATIONS BY COMMANDING OFFICERS. (2) OATHS AT COURTS-MARTIAL. (3) MANNER OF ADMINISTERING OATHS. (4) SOLEMN AFFIRMATIONS. (1) OATHS AT INVESTIGATIONS BY COMMANDING OFFICERS Interpreter I swear by Almighty God that I will to the best of my ability truly interpret and translate as I shall be required to do touching the matter being investigated. Witness I swear by Almighty God that the evidence which I shall give at this investigation shall be truth, the whole truth and nothing but the truth. Defence 139 FIFTH SCHEDULE (cont.) (2) OATHS AT COURTS-MARTIAL President and members I swear by Almighty God that I will well and truly try the (accused) (accused persons) before the court according to the evidence, and that I will duly administer justice according to the Defence Act without partiality, favour or affection, and I do further swear that I will not on any account at any time whatsoever disclose or discover the vote or opinion of the president or any member of this court-martial, unless thereunto required in due course of law. Judge advocate I swear by Almighty God that I will to the best of my ability carry out the duties of judge advocate in accordance with the Defence Act and the rules made thereunder without partiality, favour or affection, and I do further swear that I will not on any account at any time whatsoever disclose or discover the vote or opinion on any matter of the president or any member of this court-martial, unless thereunto required in due course of law. Officer under instruction I swear by Almighty God that I will not on any account at any time whatsoever disclose or discover the vote or opinion of the president or any member of this court-martial unless thereunto required in due course of law. Shorthand writer I swear by Almighty God that I will truly take down to the best of my power the evidence to be given before this court-martial and such other matters as may be required, and will, when required, deliver to the court a true transcript of the same. 140 Defence FIFTH SCHEDULE (CONT.) 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 court-martial. Witness I swear by Almighty God that the evidence which I shall give before this court-martial shall be the truth, the whole truth, and nothing but the truth. (3) MANNER OF ADMINISTERING OATHS Christians taking the oath, shall unless female, remove their head-dress and, holding the Bible or New Testament in their right hand, say to or repeat after the person administering the oath the words of the oath. Jews shall take the oath in the same manner except that they shall wear their head-dress and hold the Old Testament in their right hand. (4) SOLEMN AFFIRMATIONS The person making a solemn affirmation shall say to or repeat after the person administering the solemn affirmation the words of the appropriate form of oath except that for the words “I swear by Almighty God” he shall substitute the words “I (name in full) do solemnly, sincerely and truly declare and affirm” and for the word “swear” wherever it occurs the words “solemnly, sincerely and truly declare and affirm” shall be substituted. Defence 141 SIXTH SCHEDULE Rule 91 PETITIONS Petition to confirming Authority To the confirming authority. I..................................1 having been convicted by court-martial on ....................2 at..............................3 and having been sentenced to .............................. hereby petition against the finding(s) on the ....................4 charge(s)5on the sentence6 on the following..................................................................................... ..................................................................................................... ..................................................................................................... Signed ..............................7 Dated .............................. ________________________ 1 Insert the accused’s number, rank, name or other description 2 Insert the date when accused was convicted. 3 Insert the place where trial was held. 4 Specify the number(s) of the charge(s) concerned as they appear on the charge-sheet. 5 The words “the finding(s) on the .......... charge(s)” should be omitted if the accused is only petitioning against sentence. 6 The words “and the sentence” should be omitted if the accused is not petitioning against sentence. 7 Petitions should be signed by the accused personally but may, if necessary, be signed on his behalf.