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Introduction

Old traditions and new challenges

Courts-martial in New Zealand are run under legislation that came into effect in 1983.¹ The same system now applies to Army, Navy and Air Force alike.

Yet the origins of this present system may be traced to English and European law dating back to the 12th century (navy) and the Roman Empire (army).² This long tradition may make it harder, even today, for decision-makers to recognise the applicability of rights and principles that, for centuries, were irrelevant to military trials. But the history of Courts-martial includes many changes to principle, procedure, and punishment. Such past changes offer a precedent for further changing the present system to meet legitimate modern expectations of fairness and justice.

Why does it matter?

New Zealand Courts-martial no longer have the power to impose the death penalty, or to flog, or to ban someone from the entire public service.³ But Courts-martial, like other statutory disciplinary tribunals, still have the power to remove an individual's livelihood for misconduct, incompetence, or poor character. Unlike other statutory disciplinary tribunals, they also have the power to detain or imprison. Moreover, a charge before a Court-martial may replace an action in the Criminal Courts.

There is surely a strong public interest in ensuring that bodies with such powers and functions are transparently fair in their constitution, processes, and substantive results. Like other decision-makers, they must surely be expected to "act fairly, reasonably and in accordance with the law".⁴ This requirement is not altered by the fact that courts-martial are not numerous. Annually from 1987 to 1994 there were between one and five general Courts-martial, and between one and five restricted Courts-martial. Since 1994 the numbers have been slightly higher.⁵

Indeed, it becomes even more important because, in published official statistics and annual reports, both from the Courts and from the defence forces, Courts-martial are invisible. There is no prompt for the public to question their operations.

Statutory provisions for fairness?

This writer has researched the statutory provisions for Courts-martial, along with the statutory provisions for other disciplinary tribunals in New Zealand, in order to assess the extent to which such statutes enhance or detract from fairness.⁶ Her research suggests that, in many respects, modern Courts-martial have more precise statutory requirements supporting fairness (or natural justice) than do other disciplinary tribunals. Yet in key respects their governing legislation still constrains their potential to do justice.

These constraints are discussed below.

Not Your Average Jury: Tribunal Membership and Decisions

Risks of partiality

Members of any disciplinary tribunal must have the capacity, and the inclination, to weigh the evidence and submissions competently and impartially. Clearly, impartiality is in doubt if the tribunal members have an interest in the outcome of a hearing - whether the interest derives from prior involvement in the case, or is more personal.

Courts-martial, like other disciplinary tribunals, both govern and are drawn from a small profession. Those involved are likely to have had previous dealings with each other, especially if the defendant is an officer. Unlike an ordinary jury, it is therefore impracticable to require that all tribunal members be unacquainted with the defendant or witnesses in a case. Anecdotal evidence suggests there are consequential problems at least with appearances of bias:

One would expect strong safeguards in the legislation to minimise the actual additional risks of partiality.

These risks may be reduced both by prevention - as in criteria for appointing or disqualifying tribunal members, or for finding a defendant culpable - and by correction - such as provisions for challenging the tribunal membership.

Inadequate prevention of partiality: selection of members

Under the Armed Forces Discipline Act, general Courts-martial have five members, but may function with only four.⁸ Restricted Courts-martial have three members.⁹ Yet, last century, naval Courts-martial had a minimum of five and a maximum of nine officers.¹⁰ In contrast, civilian juries for criminal trials have 12 members. Other statutory disciplinary tribunals today have between one and 15 members.¹¹

On all statutory disciplinary tribunals other than courts-martial, although the majority of members must belong to the occupation or profession governed by that tribunal, there are also lay members or lawyer members.¹² Courts-martial, however, are comprised entirely of members of the profession concerned, in the sense that all panel members will be members of the armed services.¹³ There is no lay member, and no lawyer as a member.¹⁴ (Although Courts-martial are assisted by a Judge Advocate, the Judge Advocate may not be present during the panel's deliberations.)

Thus, in defining the membership of the panel, the legislation governing Courts-martial fails to provide similar safeguards to those governing other disciplinary tribunals.

On the other hand, in respect of seniority and gender, the legislation does attempt to provide exceptional fairness to someone facing a Courts-martial. Firstly, a Court-martial must be presided over by an officer of equivalent or superior rank to the person charged; other members of the Court-martial must be of similar rank.¹⁵ (Exact requirements depend on the rank of the person charged.) Secondly, if the accused is a woman, at least one member of the tribunal must be a woman.¹⁶ No such provisions occur in the statutes governing other disciplinary tribunals. There is also no equivalent provision for those charged before a civilian Court. Nonetheless, one may query whether such protections outweigh the other selection problems.

One advocate of the Court-martial system suggested that the army needs to get in the practice at home, in order to be prepared for potential overseas situations. He suggested also that members of a Court-martial were more experienced than members of a jury.¹⁷ Both suggestions are disputable. Even were they true, however, to require Courts-martial to have 12 members would offer more people more practice, and would combine the broader experience of the 12 rather than the current five.¹⁸

Inadequate prevention of partiality: disqualification from membership

The statutory criteria for positive selection, as outlined above, are supplemented by the criteria for disqualification.

In New Zealand law, the general test whether a tribunal's decision should be set aside because of apparent bias is whether in all the circumstances of the case there was a real danger of bias, the issue to be judged by a reasonable observer who had knowledge of the material relevant facts.¹⁹ But, for certain other disciplinary tribunals, specific legislation appears to allow members with levels of personal interest or bias that would normally be deemed unacceptable.²⁰ In comparison with these other disciplinary tribunals, courts-martial have potentially the broadest statutory provisions for disqualification for bias.

A person who "has a personal interest in the case" may not serve.²¹ "Personal interest" is not defined in the statute. Other express exclusions are the prosecutor or a witness for the prosecution (but not a witness for the defence). Someone who has been the defendant's commanding officer between the charge date and the trial may not serve on the Court;²² but someone who has been the defendant's commanding officer prior to the charge date may serve. Members of the Court-martial must not be all from the same unit or ship as the accused, unless it is impracticable to appoint officers from different units or ships.²³

This is still far removed from the requirements for a civilian jury. Someone who had been the accused's manager, or who had worked in the same office as the accused, would hardly be allowed to remain on such a jury. The Courts-Martial Appeal Court has acknowledged that the integrated nature of disciplinary procedures within the military has the potential for bias.²⁴

Military law has made many adjustments through the centuries, to reduce conflicts of interest in Courts-martial. Until 1877, in naval trials, the Judge Advocate conducted the prosecution case in court while also being required to assist both the defence and the prosecution on points of law.²⁵ In the Army, the Judge Advocate had acted more as a modern judge, until the 17th century. From then, until the late 18th century, the Judge Advocate prosecuted, as well as taking information and depositions on oath, and advising both sides on matters of law.²⁶ Nowadays, in contrast, the Judge Advocate is divorced from the prosecution role.

It is surely possible also for military law to make further adjustments to reduce conflicts of interest, and any effects of personal partiality, in modern Courts-martial.

Inadequate prevention of partiality: no unanimity

Theoretical potential for bias might perhaps be mitigated by requiring a high level of agreement among a high number of people. Yet Courts-martial have never had such a requirement.

In civilian trials, criminal guilt is decided by an experienced Judge sitting alone, or by unanimous verdict of a jury of, usually, 12 individuals with no personal connection to anyone involved in the case. Similarly civil (non-criminal) liability may be decided by a Judge alone, or by a unanimous jury, usually of six people.

Being mostly untrained in the law, court-martial members are more akin to jurors than to judges. (Although a Court-martial is assisted in its proceedings by a Judge Advocate, the Judge Advocate does not assist in the panel's deliberations.) Yet a Court-martial verdict requires only a majority of votes, not unanimity. Thus a restricted Court-martial verdict may be by a 2:1 vote;²⁷ a general Court-martial verdict may easily be by a 3:2 vote.²⁸

Moreover, although a general Court-martial has five members, its quorum is four; and the majority need only be of votes cast, not of members present. Therefore if one or more members of a general Court-martial abstained, or one were absent, the verdict could be decided on a 2:2 or 2:1 vote. The President of a Court-martial has a casting vote for sentence, but not for determining guilt.²⁹ If a vote on determining guilt is tied, the verdict must be for acquittal.

This is broadly similar to most other statutory disciplinary tribunals.³⁰ (Stricter requirements exist for lawyers and pharmacists).³¹ Nonetheless, one may query the legitimacy of depriving someone of their livelihood and their reputation, and maybe imposing imprisonment, by a majority vote of, perhaps, only three or four people, especially if other issues of potential partiality exist.

The history of naval Courts-martial refutes any pressing or traditional need for such a voting system. Until 1847, for capital crimes, the death sentence was mandatory. From 1847, naval Courts could award a mitigated sentence, except for murder and sodomy.³² Under the Naval Discipline Act 1866 (Imperial), the death sentence required more than a bare majority: four out of five Court members had to agree. If the tribunal had more than five members, a two-thirds majority was required.³³

By the twentieth century, the death sentence required a unanimous tribunal.³⁴ And less than 10 years ago, the death sentence was abolished. Modern expectations of fairness should surely similarly require unanimity to impose the most severe existing sentence. It is but a small additional step in logic to expect also unanimity for a finding of culpability, regardless of the sentence.³⁵

But such problems are reduced if they can be corrected when they occur. Are there, then, strong provisions for challenging the membership of a Court-martial if there is any hint of potential bias, lack of expertise, or other problem?

Inadequate correction of partiality

For most (civilian) decision-making tribunals, a party may challenge the membership of a tribunal, for actual or apparent bias. Any such challenge must occur as soon as the party concerned becomes aware of the grounds for such a challenge. A failure to challenge at this time is likely to constitute waiver.³⁶

For a Court-martial, such challenges must occur before the members are sworn in. Challenges may occur on the grounds, among other things, that the intended member 'might not act, or is not in a position to act, impartially'.³⁷ The decision on whether the objection is allowed is made by the other members of the Court-martial. Once the Court is sworn, no further objection is possible unless the incorrect constitution of the Court-martial has caused a substantial miscarriage of justice to occur.³⁸

Quite apart from any problems in having the objection decided by other members of the panel,³⁹ there is another obvious difficulty here. An accused may well become aware of information about members of the Court-martial only after they are sworn in. Such information might have justified an objection if it had come to light before the members were sworn in. Why then should the same information, obtained later, not justify a later objection?

The test for allowing a later objection is too strict. To prove that a substantial miscarriage of justice 'has' occurred - not 'may have' occurred - seems to require proof of actual bias, rather than of apparent bias. And the presence of this express statutory provision may well exclude the more general common-law approach. Thus the statute clearly restricts natural justice and limits the accused's redress against potential bias.

Requirements for challenges to Courts-martial are therefore stricter than for other statutory disciplinary tribunals.⁴⁰

Time for change

In other aspects of its procedures, military law has shown the capacity to adjust to meet changing expectations of justice. No longer does the Judge Advocate act as prosecutor as well as legal adviser. No longer may a tribunal ignore a Judge Advocate's rulings on questions of law. Naval personnel now have the right to bring evidence and be heard. The presiding officer may no longer see the summary of prosecution evidence before the trial. The tribunal members may no longer hear the 'trials within trials' that decide whether disputed evidence is admissible. Summary proceedings - not otherwise the subject of this article - may now be reviewed.⁴¹

Fairness both actual and apparent has assumed a central place in New Zealand civilian law in recent years. New Zealand's military law must now surely be adjusted again, to provide fairness - through stronger prevention and correction of unfair Court-martial membership and procedures.

Not Your Average Crime: Criteria For And Consequences Of Conviction

Standard of proof: criminal, not civil

A Court-martial must decide culpability according to statutory criteria for each charge. Each such element of a charge must be proved beyond reasonable doubt.⁴² This is the same standard which civilian Courts apply to criminal charges.

All other statutory disciplinary tribunals require proof on the balance of probabilities, but arguably examined more carefully depending on the gravity of the offence.⁴³ This is the standard which civilian Courts apply to civil claims rather than to criminal charges.

Culpable conduct: not merely criminal

Like other statutory disciplinary tribunals, Courts-martial deal with conduct occurring in the course of professional activities. There is a long list of specifically military offences, plus the more general "conduct likely to prejudice service discipline".⁴⁴ Although more than usually detailed, this is otherwise similar to the professional misconduct and negligence for which other professions discipline their members.⁴⁵ Likewise, Courts-martial can act against extra-professional "conduct likely to bring discredit on the service",⁴⁶ just as many of the other statutory disciplinary tribunals may act against a professional for "conduct unbecoming" that occurs outside the professional arena.⁴⁷

Unlike other disciplinary tribunals, however, Courts-martial can also replace the civilian court in dealing with any offence against the civil law,⁴⁸ if that offence is committed by someone subject to court-martial jurisdiction. Thus someone charged with theft may face Court-martial, or civilian criminal proceedings, but not both. This should be contrasted with all other disciplinary tribunals, which may act against professionals who have already been convicted by a civilian court. Such tribunals cannot impose a fine if a civilian Court has imposed a penalty, but may impose other sanctions.⁴⁹

The types of conduct for which one may face Court-martial have changed through the years. No longer do naval personnel face a mass Court-martial if a warship is lost at sea or captured when no specific charges are to be laid against any person.⁵⁰ Inconsistencies are not new: one historian notes 'inexplicable' differences between the provisions applying to the Volunteers, and the provisions applying contemporaneously to the Militia.⁵¹ Another notes how the same disciplinary code was applied with differing emphases in two services, namely the Army and Air Force.⁵²

Military law initially dealt only with strictly military offences.⁵³ Only gradually did it enforce also the ordinary criminal law against naval and military personnel - and then, initially, only where it was not practicable for the ordinary Courts to exercise their jurisdiction.⁵⁴ Only comparatively recently did Courts-martial obtain such jurisdiction at home in peacetime.⁵⁵

Through all such changes, at least within the army,⁵⁶ there has remained a persistent theme of requiring, on the one hand, obedience to orders, and on the other, just and considerate command.⁵⁷ This is perhaps not too dissimilar to the modern, civilian emphasis on fairness. This tradition may support future change towards fairness, rather than constraining such change.

More than usual sanctions and consequences

Only in 1989 did New Zealand Courts-martial cease to be able to impose the death penalty.⁵⁸ Courts-martial retain the power to detain, imprison, fine, impose a reduction in rank (or forfeiture or stay of seniority), or dismiss from the services (with loss of pension of hundreds of thousands of dollars).

The powers of all other statutory disciplinary tribunals are more limited.⁵⁹ Most have a range of options: deregistration, suspension, restriction, retraining, or supervision; and/or fines; and/or censure. The practical consequences are therefore greater, if a court-martial fails to deliver justice. So, too, are the social consequences, because a Court-martial "conviction", unlike another tribunal's "finding", carries more severe connotations.

It is unclear from the legislation whether a Court-martial "conviction" is a conviction in substance as well as in name. Usually, a disciplinary tribunal's finding of culpability is not treated, in law, as a criminal conviction. Therefore, for instance, a potential employee need not disclose such a finding to a potential employer who asks about criminal convictions.⁶⁰ Courts-martial are apparent exceptions to this. Their routines and procedures are professed to be "the same as for any other court in the land";⁶¹ they employ the criminal standard of proof; the statutes refer to "convictions"; and the defendant cannot be charged in a civilian Court with the same offence.⁶²

The history of military law offers little enlightenment. On the one hand, military law has sometimes been specifically amended to avoid civilian stigma. For instance, detention was added to the list of punishments in 1909, with the express purpose of avoiding the stigma of civil imprisonment.⁶³ On the other hand, dismissal with disgrace barred one from serving the Crown even in the civil service.⁶⁴

One thing is however clear from the history: sanctions have readily changed. Such changes have involved the level of fine for minor offences,⁶⁵ as well as the applicability of the death penalty (as discussed above), and of corporal punishment.⁶⁶ There is therefore nothing sacrosanct about current sanctions or the principles behind them.

Justice upheld or justice denied?

It is difficult to understand this combination of provisions.

On the one hand, an instance of professional negligence that would otherwise require proof only on the balance of probabilities must, for a Court-martial, be proved beyond reasonable doubt. Once proven, should it carry the stigma of a criminal conviction even though no civilian court could make such a finding? On the other hand, a criminal charge that would otherwise require unanimous agreement of 12 jurors may, for a Court-martial, be proved - or disproved - on a vote of three out of five tribunal members, with fewer than usual protections against bias. Should someone found guilty by such a body have to bear the stigma of a criminal conviction?

Yet not to equate a Court-martial "conviction" with its civilian equivalent, where one exists, is potentially unjust to victims. Because the defendant cannot be charged in a civilian Court with the same offence, a victim may feel the defendant 'got away with it' if there is in fact no stigma of 'conviction'.

These provisions are therefore potentially unfair both to victims and defendants. It is arguable that they should be brought more in line with civilian equivalents. Bringing provisions of military law into line with civilian equivalents is not a revolutionary suggestion. The Naval Discipline Act 1866 (Imperial) extended to the Navy major contemporary reforms in civilian criminal law.⁶⁷ Many of the current procedures are intentionally analogous to civilian criminal trials. The New Zealand Ministry of Defence has itself recognised the need for military law to keep up with civilian law, in order to "survive as a separate code capable of serving the aims of both discipline and justice in a modern fighting force".⁶⁸

Thus, if there are sound reasons for not bringing these aspects of military law into line with civilian law, it would be helpful for these to be aired.

Not Your Average Appeal: Remedies When Justice Is Denied

The safety net for justice?

If, for whatever reason, injustice occurs at the Court-martial hearing, to what extent can this be rectified on appeal? This depends on the scope, cost, accessibility, and timeliness of any potential appeal. It also depends on whether there are safeguards to prevent appeal processes being used to defeat justice and frustrate the legitimate findings of the tribunal.⁶⁹

There is a long tradition of internal review of Court-martial findings. From the eighteenth century, the Judge Advocate reviewed all courts-martial proceedings.⁷⁰ External appeal appears to have come only recently, with the passage of the still-current Courts Martial Appeals Act 1953.

These statutory processes of review and appeal raise a particular problem that further differentiates Courts-martial from other statutory disciplinary tribunals.

Broad grounds for review

For Courts-martial, the usual Reviewing Authority is a Board of Review: one top-ranking officer from each of the three services.⁷¹ Each Court-martial conviction is automatically referred to such a Reviewing Authority. A defendant may also apply for review within three months after the date of sentence if fresh evidence is obtained.⁷² A defendant may also petition against the conviction and sentence within six months of the first review.⁷³

The Reviewing Authority may quash the conviction and sentence if it is manifestly unreasonable or if the conviction was wrong in law because of a wrong decision on a question of law. The Reviewing Authority may also quash the conviction and direct a new trial, or amend the sentence, if a question of law which might have affected the decision was wrongly determined, or if the conviction was against the weight of evidence, or because any other occurrence during the Court-martial proceedings might have unfairly prejudiced the defendant.

These grounds for ordering a new trial are considerably broader than those available to the Courts Martial Appeal Court.

Narrow grounds for appeal

The Courts Martial Appeal Court is an appellate court which acts on the same principles as the Court of Appeal acts when the latter considers appeals under section 385 of the Crimes Act 1961.⁷⁴ The Courts Martial Appeal Court may grant an acquittal, or order a new trial, if the finding cannot be supported having regard to the evidence, or if it involves a wrong decision on a question of law, or if there was a miscarriage of justice. Like a civilian appellate court, this Appeal Court may nonetheless refuse to do so if there was a technical breach but no substantial miscarriage of justice actually occurred.⁷⁵

Thus the Courts Martial Appeal Court has very much more limited grounds for appeal, than the Reviewing Authority has for review. In particular, the Courts Martial Appeal Court cannot overturn a conviction that was "against the weight of evidence", unless the finding was (entirely) insupportable. The Court also may not respond to an occurrence during the proceedings that "might have" prejudiced the defendant, unless a miscarriage of justice actually occurred.

Justice denied

As noted above, all Court-martial findings are referred for review. If, however, an appeal is lodged, this review process ceases unless the appeal is withdrawn. Once the Courts-Martial Appeal Court has refused leave to appeal, or dismissed an appeal, the Reviewing Authority may review only the sentence, not the conviction. Because of the Court's more limited grounds for appeal against conviction, a defendant who appeals a conviction without first going through the review process is therefore less likely to succeed than is a defendant who first goes to the review process.

Yet a defendant unjustly convicted by the military system is hardly likely to trust that same system to undo the injustice. Perceptions of fairness may be proportionate to the appellate body's connection with the general courts. "Having one's day in Court" means 'having one's day before a regular court of general jurisdiction, not some specialist Court or administrative tribunal all of which are assumed to be staffed by second rate personnel who therefore dispense second rate law.⁷⁶

Such a defendant may therefore rush to choose the (civilian) Courts Martial Appeal Court mechanism without fully comprehending the latter's restricted scope. It is difficult to see why the grounds for overturning a Court-martial should be narrower for the Courts- Martial Appeal Court (at least when hearing a first-tier appeal that has not already been to review) than for a Reviewing Authority.

It should also be noted that there is no provision for an appeal by a complainant or a prosecuting body. Thus the review and appeal processes cannot correct a lenient sentence or an unjust acquittal.

Injustice: seen to be done

The potential unfairness of tribunal membership and voting requirements would be less significant if actual injustice could readily be corrected on review or appeal. The devastating consequences from a wrong finding would be less serious if they too could be readily corrected on review or appeal.

The legislative failure to provide adequate review and appeal mechanisms both for victims and for those found guilty, is a failure to provide visible justice. As for the other problems outlined above, if there are genuine reasons for continuing the present system, such reasons should be explained and discussed.

Conclusion

The history of military law is a history of adapting to new developments in civilian law. The challenge for New Zealand's military law today is to adapt to the requirements of fairness that are integral to New Zealand's civilian law.

Such requirements include strengthening the statutory protections against bias, and broadening the scope for correcting apparent as well as actual bias, as well as amending substantive statutory provisions governing membership, culpability, consequences, and appeals. The civilian Courts may, in time, impose changes such as those suggested through, for instance, successful challenges under the New Zealand Bill of Rights Act.⁷⁷ It is surely preferable that change occur proactively, systematically, and voluntarily.

Even if such an ideal world is deemed impracticable during wartime, this is no reason to refrain from instituting a more just system for peacetime.⁷⁸

Seeking such statutory changes is different from saying that Courts-martial are unfair in practice, or that Courts-martial should cease to exist. The limited scope of the writer's research could not support such conclusions. On the other hand, the issues raised are more than mere theoretical or academic discussion points. They affect New Zealanders' access to justice, confidence in professionals, and respect for the law. They affect the morale and discipline of the service personnel entrusted with maintaining our freedom. They therefore merit serious consideration.

Endnotes

1. Armed Forces Discipline Act 1971 (to which otherwise unspecified references in this article refer). Appeals from Courts-martial are governed by the Courts-Martial Appeals Act 1953. Additional procedural requirements are found in regulations.

2. Captain E.D. Deane, "History of Naval Law" and Lieut. Col. G.B.M. Law, "History of Military Law", both in Ministry of Defence, Manual of Armed Forces Law (Wellington, 1983), Vol. 1.

3. Deane, p. I-10.

4. R. Cooke, "The Struggle for Simplicity in Administrative Law," in Judicial Review of Administrative Action in the 1980s, edited by M. Taggart, (Auckland: OUP, 1986), p. 17.

5. Summarised from unpublished information supplied to the author by the New Zealand Defence Force. See also NZ Parliamentary Debates, 22 November 1995, pp. 4630-4631.

6. C.Y. Simes, "Statutory Disciplinary Tribunals: To What Extent do the Statutes Enhance or Detract From Fairness?" (unpublished LL.B (Hons) dissertation, University of Waikato, 1998).

7. Mike Bungay, cited in B. Ansley, "Trial by Error", New Zealand Listener, No. 116 (23 May 1987), p. 17.

8. Section 120. All references to statutory provisions are to the Armed Forces Discipline Act 1971, unless otherwise specified.

9. Section 121.

10. Deane, I-10.

11. Simes, pp. 20-22.

12. Simes, pp. 18-23.

13. Sections 120-121.

14. Simes, pp. 20-22.

15. Section 120.

16. Section 120 (8).

17. G. Law, cit. Ansley, p. 17.

18. See R. Ho, "A World That Has Walls: A Charter Analysis of Militay Tribunals", in University of Toronto Faculty of Law Review Vol. 54 (1996), pp. 177-179.

19. Auckland Casino Ltd vs. Casino Control Authority [1995] 1 NZLR 142 (CA); reaffirmed by a 5-member Court of Appeal as applicable to Courts-martial, in Rye v. Kaye, unreported, Court of Appeal, 24 June 1996 (CA 402/95).

20. Simes, pp. 25-27.

21. Section 122(h).

22. Section 122(b).

23. Section 123.

24. Kaye v. R, Courts-Martial Appeal Court, AP 235/94, 12 June 1995, Penlington J (Presiding), Allen Esq. QC, Grace Esq. See discussion in A. Conte, "Courts-Martial and Summary Proceedings Under the Armed Forces Discipline Act 1971: The Right to a Fair And Public Hearing by an Independent and Impartial Court", Bill of Rights Bulletin 1 (Jan. 1997), pp. 11-12.

25. Deane, pp. I-10.

26. Law, pp. I-20. Only in 1948 did the Judge-Advocate cease formally to be responsible for preparing the prosecution: Law, p. I-25.

27. Sections 132(2)-132(3), 131(1), 133(5).

28. Sections 132(3), 133(1), 133(5).

29. Sections 133(2) and 133(5).

30. Simes, pp. 29-32.

31. Simes, p. 32, Law Practitioner's Act 1982, s 113(2) and s 108 (5); Pharmacy Act 1970 s 31(8) ss 8(1) and 8(2).

32. Deane, pp. I-8.

33. Deane, pp. I-8.

34. Section 133(4).

35. See similar criticisms of Canadian Courts-Martial, in Ho, pp. 165-175.

36. Auckland Casino Ltd vs. Casino Control Authority [1995] 1 NZLR 142, 153 (CA).

37. Section 129(1)(b).

38. Section 129.

39. For problems in the US equivalent, see D.A. Schlueter, "Military Justice for the 1990's: A Legal System Looking for Respect", in 16 Military Law Review 133 (1991) p. 21.

40. Simes, pp. 35-36.

41. "History of the Armed Forces Discipline Act 1971", in Ministry of Defence, Manual of Armed Forces Law, (Wellington 1983) Vol. 1 pp. I-39.

42. Ministry of Defence, Manual of Armed Forces Law, (Wellington 1983) Vol. 1 p. 8.80.

43. Simes, pp. 43-46. In re a Medical Practitioner [1959] NZLR 748 (CA), 801, 808; see also D.L. Mathieson, Cross on Evidence, 5th NZ edition (Wellington, 1996), pp. 153-154, and J.R.S. Forbes, Disciplinary Tribunals, 2nd edition (Sydney, 1996), pp. 150-151, both of which also discuss divergent English authority.

44. Section 73(1)(a).

45. Simes, pp. 49-52.

46. Section 73(1)(b).

47. Simes, pp. 49-52.

48. Section 74(1).

49. Simes, p. 70.

50. Deane, pp. I-10.

51. Law, "Military Law", pp. I-25, I-27.

52. Law, "Air Force Law", pp. I-36, I-37.

53. Re Tracey: ex parte Ryan (1989) 166 CLR 518 at p. 557 (Brennan and Toohey JJ) (High Court of Australia).

54. Ibid., p. 563.

55. Ibid., pp. 543-544 (Mason CJ Wilson and Dawson JJ).

56. Note Law's discussion of the different emphasis in the Air Force: Law, "Air Force Law', pp. I-36, I-37.

57. Law, "Military Law", pp. I-126.

58. Abolition of the Death Penalty Act 1989. Previously, the death penalty stll existed for members of the armed forces convicted of treachery. For civilian courts, the death penalty was abolished in 1961.

59. Simes, pp. 68-69.

60. Mazengarb's Employment Law, (Wellington, 1997), p. B/14.

61. G. Law, cit. Ansley, p. 17.

62. Section 21.

63. Deane, pp. I-11; Law, "Military Law", pp. I-29.

64. Deane, pp. I-10.

65. See, for instance, Law, "Military Law", pp. I-24, I-25.

66. "History of the AFDA", p. I-39. Also Law, "Military Law", pp. I-17, and Deane, pp. I-19. also Law, "Air Force Law", pp. I-36.

67. Deane, pp. I-9.

68. "History of the AFDA", pp. I-141.

69. Note that judicial review is expressly excluded for Courts-martial by a privative clause: Section 143.

70. Law, "Military Law", pp. I-20.

71. Section 151(1).

72. Section 163.

73. Section 162(2).

74. R v Taare, [1995] NZLR 1050 (CMAC).

75. Courts Martial Appeals Act 1953, section 8(1).

76. D. Mullan, cit. M. Taggart, "The Contribution of Lord Cooke to Scope of Review Doctrine in Administrative Law: A Comparative Common Law Perspective", in The Struggle For Simplicity in the Law: Essays for Lord Cooke of Thorndon, edited by P. Rishworth (Wellington: Butterworths, 1997), p. 218.

77. See the discussion in Conte, p. 12.

78. Ho, pp. 183-184.

Bibliography

Statutes

Abolition of the Death Penalty Act 1989.

Armed Forces Discipline Act 1971.

Courts Martial Appeals Act 1953.

Law Practitioners Act 1982 .

Pharmacy Act 1970.

Cases - New Zealand

Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA).

In re a Medical Practitioner [1959] NZLR 784 (CA).

R v Kaye, unreported, Court of Appeal, 24 June 1996 (CA 402/95). Henry, Thomas, Keith, Blanchard and Doogue JJ.

R v Taare [1955] NZLR 1050 (CMAC).

Cases - Australia

Re Tracey; ex parte Ryan (1989) 166 CLR 518 (HCA).

Secondary materials

Ansley, B., 'Trial by error' New Zealand Listener No. 116 (23 May 1987).

Conte, A., 'Courts martial and summary proceedings under the Armed Forces Discipline Act 1971: the right to a fair and public hearing by an independent and impartial court' Bill of Rights Bulletin 1 (Jan 1997).

Cooke, R., 'The struggle for simplicity in administrative law' in Judicial review of administrative action in the 1980s, ed. by M Taggart (Auckland: OUP, 1986).

Forbes, JRS., Disciplinary tribunals, 2nd ed. (Sydney, 1996).

Ho, R., 'A world that has walls: a Charter analysis of military tribunals' in University of Toronto Faculty of Law Review vol 54 (1996).

Mathieson, D. L., Cross on Evidence, 5th NZ ed. (Wellington, 1996).

Mazengarb's Employment Law (Wellington, 1997).

Ministry of Defence, Manual of Armed Forces Law (Wellington, 1983- ), Vol. 1: articles by Captain E D Deane, and Lt. Col. G B M Law.

Schlueter, D. A., 'Military justice for the 1990's: a legal system looking for respect' in Military Law Review 133 (1991).

Simes, C. Y., 'Statutory disciplinary tribunals: to what extent do the statutes enhance or detract from fairness?', unpublished LL.B (Hons) dissertation, University of Waikato, 1998.

Taggart, M., 'The contribution of Lord Cooke to scope of review doctrine in administrative law: a comparative common law perspective' in The struggle for simplicity in the law: essays for Lord Cooke of Thorndon, ed by. P Rishworth (Wellington: Butterworths, 1997).

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