S.I. No. 206/1983:

THE COURTS-MARTIAL APPEAL COURT RULES.

THE COURTS-MARTIAL APPEAL COURT RULES.

We, the Superior Courts Rules Committee, by virtue of the powers conferred upon us by the Courts-Martial Appeals Act, 1983 , section 23, and of all other powers enabling us in this behalf, do hereby make the annexed Rules of Court.

Dated this 18th day of July, 1983.

I concur in the making of the annexed Rules of Court.

Dated this 18th day of July, 1983.

MICHAEL NOONAN,

Aire Dlí agus Cirt.

S.I. No. 206 of 1983.

THE COURTS-MARTIAL APPEAL COURT RULES.

I. PRELIMINARY.

1. In these Rules:

"the convening authority" means the person by whom the trial court-martial was convened;

"Court" means "Courts-Martial Appeal Court" and shall, in relation to any interlocutory application, include the Chief Justice or any Judge of the Supreme Court nominated by the Chief Justice to hear and determine such application;

"the Deputy Judge Advocate General" means the Deputy Judge Advocate General, Adjutant-General's Branch, Department of Defence;

"detention barrack" means a building or part of a building which has been declared under section 232 of the Defence Act, 1954 , to be a detention barrack;

"exhibit" means any document or thing which has been produced and used in evidence at the trial court-martial, whether it is attached to the proceedings of the court-martial or not;

"promulgation" means promulgation in accordance with Rule 57 of the Rules of Procedure (Defence Forces), 1954 ( S.I. No. 243 of 1954 );

"the Registrar" means the Registrar of the Courts-Martial Appeal Court;

"trial court-martial" means a court-martial from the conviction by, or the sentence of, which a person appeals to the Court.

2. The forms set out in the Appendix shall be used in all cases to which such forms are applicable and the forms in these Rules referred to are those set out in such Appendix.

II. NOTICE OF APPEAL.

3. A person desiring to appeal to the Court shall serve on the Registrar a notice of appeal in the Form No. 1. The notice so served shall answer the question and comply with the requirements set forth on such form.

4. (1) Except as provided in sub-rule (2), every notice of appeal shall be served within 14 days next after the date of the promulgation of the confirmation of the finding and sentence of the trial court-martial.

(2) In the case of a person convicted by a court-martial while serving outside the State with an International United Nations Force (as defined in section 1 (1) of the Defence (Amendment) (No. 2) Act, 1960 ), a notice of appeal shall be served within 30 days next after the date mentioned in sub-rule (1).

5. When the Registrar receives a notice of appeal, he shall give notice thereof in the Form No. 2 to the following persons:

( a ) the Chief State Solicitor;

( b ) the convening authority;

( c ) the Deputy Judge Advocate General

and also, if the appellant is in a prison or detention barrack or if the operation of his sentence has been suspended or if he has been released on bail--

( d ) the Governor of such prison or detention barrack, as the case may be;

( e ) the Secretary of the Department of Defence;

provided that the Registrar shall not be required to give such notice to the Governor of a prison or detention barrack if the appellant's notice of appeal shall have been forwarded to the Registrar by such Governor.

III. ENLARGEMENT OF TIME FOR APPEALING.

6. (1) The Court shall have power to enlarge the time appointed for doing any act or taking any proceeding upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed.

(2) An application to the Court for an enlargement of time within which notice of appeal may be served shall be in the Form No. 3.

(3) The form of application shall, in addition to specifying the grounds of such application, also specify the grounds on which the applicant proposes to base his appeal.

IV. APPEAL WHERE FINE IS INFLICTED.

7. (1) Where a person has, on his conviction, been sentenced to a fine, the person lawfully authorised to receive such fine, shall, on receiving the same, retain it until the determination of any appeal in relation thereto.

(2) An appellant who has been sentenced to a fine and has paid the same in accordance with such sentence, shall, in the event of an appeal by him being successful, be entitled, subject to any order of the Court, to the return of the sum so paid by him.

V. SUSPENSION OF ORDERS OF TRIAL COURT-MARTIAL PENDING APPEAL.

8. Where, on the conviction of a person, the trial court-martial directs, pursuant to section 213 of the Defence Act, 1954 , the payment by that person of a sum as compensation for any expense, loss, damage or destruction occasioned by the offence of which he was convicted, the operation of such direction shall be suspended until the expiration of 14 clear days, or in any case to which rule 4 (2) applies 30 clear days, next after the date of promulgation of the finding and sentence of the trial court-martial and, in cases where notice of appeal is duly given, the period of suspension of such direction shall continue until the determination thereof.

9. An appellant who has been directed by the trial court-martial to pay any sum as compensation and has paid the same in accordance with such direction shall, in the event of an appeal by him being successful, be entitled, subject to any order of the Court, to the return of the sum so paid by him.

VI. PROCEEDINGS OF TRIAL COURT-MARTIAL.

10. (1) On request by the Registrar, the Deputy Judge Advocate General shall furnish to him the proceedings of the trial court-martial.

(2) A party interested in an appeal may obtain from the Registrar a copy of the proceedings of the trial court-martial or any part thereof as relates to the appeal upon payment of the proper charges.

VII. EXHIBITS FOR USE OF THE COURT AND APPELLANTS.

11. (1) The Registrar may, on an application made to him by the appellant or the convening authority, or shall where he considers the same to be necessary for the proper determination of any appeal, or where directed by the Court so to do, obtain and keep available for use by the Court, any documents, exhibits, or other things relating to the proceedings before the Court, and, pending the determination of the appeal, such documents, exhibits, or other things shall be open, as and when the Registrar may arrange, for the inspection of any party interested. In suitable cases the Registrar may, in lieu of obtaining possession of any such documents, exhibits or other things, direct any person having the custody and control thereof to make the same available for inspection by any party interested at such time and place as the Registrar shall direct.

(2) The Court may, at any stage of an appeal, on the application of an appellant or the convening authority, order any document, exhibit, or other thing connected with the proceedings to be produced to the Registrar by any person having the custody or control thereof.

(3) Service of any order made under this rule shall be personal, unless the Court otherwise orders, and for the purpose of effecting due service thereof the Registrar may require the assistance of the Garda Síochána, and it shall be their duty to carry out any directions of the Registrar under this Rule.

12. (1) At any time after notice of appeal has been served, an appellant or the convening authority, or the solicitor or other person representing either of them, may obtain from the Registrar copies of any documents or exhibits in his possession for the purpose of such appeal. Such copies shall be supplied by the Registrar at the proper charge.

(2) A copy of the proceedings of the trial court-martial shall be supplied by the Registrar free of charge:

( a ) to an appellant who has been granted a legal aid (Courts-Martial Appeal Court) certificate, and

( b ) to any other appellant by order of the Court.

(3) Where an appellant who is not legally represented, or who has been granted a legal aid (Courts-Martial Appeal Court) certificate, requires from the Registrar a copy of any document or exhibit in his custody for the purposes of his appeal, he may obtain it free of charge if the Registrar considers it proper to supply the same.

VIII. REPORT TO THE COURT.

13. (1) The Registrar, whenever in relation to any appeal the Court directs him so to do, shall request the president (or, in the circumstances mentioned in section 17 (2) of the Courts Martial Appeals Act, 1983 , any other member) or the judge-advocate of the trial court-martial to furnish him with a report in writing upon the case generally or upon any point arising thereon, and the person so requested shall furnish the same in accordance with such request.

(2) The said report shall be made to the Court, and, except by leave of the Court, the Registrar shall not furnish any part thereof to any person.

IX. SUSPENSION OF THE OPERATION OF A CUSTODIAL SENTENCE.

14. (1) An appellant who is a member of the Defence Forces and who desires to have the operation of a sentence of penal servitude, imprisonment or detention suspended, pending the determination of his appeal, shall (unless the Court shall dispense therewith) serve upon the Registrar notice in the Form No. 4 of his application for such suspension. The Registrar shall forthwith give notice thereof to the convening authority and the Chief State Solicitor and as soon as a date shall be fixed by the Court for the hearing of such application shall notify the appellant, the convening authority and the Chief State Solicitor.

(2) The Court may suspend the operation of a custodial sentence subject to such terms and conditions as it thinks fit.

(3) The Registrar shall notify the Governor of the prison or detention barrack, as the case may be, within which the appellant is confined of the terms and conditions on which the Court shall suspend the operation of the appellant's sentence.

(4) An appellant the operation of whose sentence has been suspended shall, by the order of the Court, be required to be, and shall be, personally present at each and every hearing of his appeal, and at the final determination thereof, and shall whenever his case is called on before the Court, surrender himself to such persons as the Court shall from time to time direct, and may be searched by them, and shall be deemed to be in their lawful custody, until further released on suspension of the operation of his sentence or otherwise dealt with as the Court shall direct. The Court may, in the event of such appellant not being present at any hearing of his appeal, dismiss the same and issue a warrant for the apprehension of the appellant, in the Form No. 5; provided that the Court may consider the appeal in his absence, or make such order as it thinks fit.

(5) The Court may revoke or vary any order suspending the operation of a sentence of penal servitude, imprisonment or detention and may on revocation issue a warrant in the Form No. 5 for the apprehension of the appellant and order him to be committed to a prison or detention barrack.

X BAIL.

15. (1) An appellant who is not a member of the Defence Forces and who desires to be admitted to bail, pending the determination of his appeal, shall (unless the Court shall dispense therewith) serve upon the Registrar notice in the Form No. 6 of his application for such bail. The Registrar shall forthwith give notice thereof to the convening authority and the Chief State Solicitor, and as soon as a date shall be fixed by the Court for the hearing of such application notify the appellant, the convening authority and the Chief State Solicitor.

(2) The Court when admitting such an appellant to bail shall specify the amount in which the appellant and his surety (if any) shall be bound by recognizance.

(3) The Registrar shall notify the Governor of the prison or detention barrack, as the case may be, within which the appellant is confined of the terms and conditions on which the Court shall admit the appellant to bail.

(4) Unless otherwise ordered by the Court the recognizance of the appellant and his surety (if any) shall be taken before a justice of the District Court.

(5) The recognizances shall be in the Form No. 7. The clerk of the District Court area in which the recognizance of a surety shall be taken shall give to such surety a certificate in the Form No. 8 which the surety shall sign and retain.

(6) The clerk of any District Court area before the justice of which any such recognizance shall be taken as aforesaid shall, in the Form No. 9, forthwith notify the Governor of the said prison or detention barrack, as the case may be, of the perfection thereof; and the District Court clerk in whose custody such recognizance may be shall forthwith send the same when perfected to the Registrar.

(7) Upon perfection of such recognizances the Governor of the said prison or detention barrack, as the case may be, shall release the appellant from custody without further order.

(8) An appellant who has been admitted to bail shall, by the order of the Court under which he was so admitted to bail, be required to be, and shall be, personally present at each and every hearing of his appeal, and at the final determination thereof, and shall, whenever his case is called on before the Court, surrender himself to such persons as the Court shall from time to time direct, and may be searched by them, and shall be deemed to be in their lawful custody until further released on bail or otherwise dealt with as the Court shall direct. The Court may, in the event of such appellant not being present at any hearing of his appeal, dismiss the same and issue a warrant for the apprehension of the appellant, in the Form No. 10 provided that the Court may consider the appeal in his absence, or make such other order as it thinks fit.

(9) The Court may revoke or vary any bail order or enlarge the recognizance of the appellant or of his sureties or substitute any other surety for a surety previously bound.

(10) Where the surety upon whose recognizance an appellant has been released on bail suspects that the appellant is about to depart out of the jurisdiction of the Court, or to fail in any manner to observe the conditions of his recognizance, such surety may lay an information before a justice of the District Court acting in and for the district in which the appellant is, or is by such surety believed to be, or in which such surety may then be, in the Form No. 11, and such justice shall thereupon issue a warrant in the Form No. 12 for the apprehension of the appellant.

(11) The appellant shall, on being apprehended, be brought before the District Court specified in the said warrant. The justice shall on verification of the said information by oath of the informant, by warrant of committal in the Form No. 13, commit the appellant to the prison to which persons charged with indictable offences before such District Court are ordinarily committed.

(12) The clerk of the District Court, on the committal of any such appellant, shall forthwith notify the Registrar to that effect, and forward to him the said information and the deposition in verification thereof taken before such District Court together with a copy of the said warrant of committal.

(13) When an appellant has been released on bail and has been apprehended under this rule and is in prison the Governor thereof shall forthwith notify the Registrar, who shall inform the Court, and the Court may given such directions as to the appeal or otherwise as it thinks fit.

(14) At any time after an appellant has been released on bail the Court may revoke the order admitting him to bail, and issue a warrant in the Form No. 10 for his apprehension and order him to be committed to a prison or detention barrack.

(15) Nothing in this rule shall affect the right of a surety to apprehend and surrender into custody the person for whose appearance he has become bound, and thereby to discharge himself of his suretyship.

(16) On breach of the recognizance of an appellant, the Court may order his own recognizance to be estreated and may also, on notice to his surety, order the recognizance of such surety to be estreated. The warrant for such estreat shall be in the Form No. 14.

XI. CAUSE LIST.

17. (1) The Registrar shall keep a register of all cases in which he shall receive a notice of appeal which shall be open for public inspection.

(2) The Registrar shall also prepare from time to time a general list of cases to be dealt with by the Court and shall cause such list to be published at such times and in such a manner as shall be convenient for giving due notice to any parties interested in the hearing of such cases by the Court.

18. The Registrar shall obtain and lay before the Court in proper form all documents, exhibits and other things relating to the proceedings in the trial court-martial which are necessary for the proper determination of the appeal or application.

19. (1) Where an appellant is in custody, the Registrar shall notify the appellant and his solicitor (if any), the Governor of the prison or detention barrack, as the case may be, in which the appellant then is, the Department of Justice, Prisons Section (if relevant) and the Adjutant-General of the Defence Forces of the probable day on which his appeal or application will be heard. The said Department or Adjutant-General shall (where necessary) take steps to transfer the appellant to a prison or detention barrack or other custodial centre convenient for his appearance before the Court at such a reasonable time before the hearing as shall enable him to consult his legal adviser.

(2) When the date for the hearing of an appeal or application shall be fixed, the Registrar shall give notice thereof to the appellant and his solicitor (if any), the Adjutant-General of the Defence Forces, the convening authority and the Chief State Solicitor.

XII. ABANDONMENT OF APPEAL.

20. (1) An appellant at any time after he has duly served notice of appeal or of application for enlargement of time may abandon his appeal or application by giving notice of abandonment thereof in the Form No. 15.

(2) When the Registrar receives a notice of abandonment of any appeal or application he shall give notice thereof to all persons to whom he shall have given notice of the receipt by him of notice of such appeal or application.

XIII. EXAMINATION OF WITNESSES.

21. (1) An application for the attendance and examination before the Court of any witness shall be in the Form No. 16. There shall be annexed to such form a statement signed by the witness of the evidence which he proposes to give and of the reason why he did not give such evidence at the trial, unless the Court shall dispense with such statement.

(2) Where an order is made for the attendance and examination of a witness, an order in the Form No. 17 shall be served upon him specifying the time and place at which he is to attend.

(3) Where the Court orders the examination of any witness to be conducted otherwise than before the Court, such order shall specify the person appointed as examiner to take, and the place of taking, such examination, and the witness or witnesses to be examined.

(4) The Registrar shall furnish to the person appointed to take such examination any documents or exhibits and any other material relating to the said appeal as and when requested so to do. Such documents and exhibits and other material shall after the examination has been concluded be returned by the examiner, together with any depositions taken by him, to the Registrar.

(5) When the examiner has appointed the day and time for the examination he shall request the Registrar to give notice thereof to the appellant and the convening authority and their legal representatives (if any), and when the appellant is in a prison or detention barrack, the Governor of that prison or detention barrack, as the case may be. The Registrar shall cause to be served on every witness to be so examined notice in the Form No. 18.

(6) Every witness examined before an examiner shall give his evidence upon oath to be administered by such examiner, except where any such witness, if giving evidence as a witness on a trial on indictment, need not be sworn.

(7) The examination of every such witness shall be taken in the form of a deposition in the same manner as is prescribed by the Petty Sessions (Ireland) Act, 1851, section 14, and unless otherwise ordered shall be taken in private.

The caption in the Form No. 19 shall be attached to any such deposition.

(8) The expenses of any witness attending on the order of the Court, and all expenses of and incidental to any examination of witnesses conducted by any person appointed by the Court shall, if and so far as ordered by the Court, be defrayed up to an amount allowed by the Court as part of the costs of the State in or relating to the appeal.

(9) The provisions of rule 11 (3) shall apply to the service of an order or notice on a witness under this rule.

(10) The appellant and the convening authority, or counsel or solicitor on their behalf, shall be entitled to be present at and take part in any examination of any witness to which this rule relates.

XIV. HEARING OF APPEALS AND OTHER APPLICATIONS.

22. (1) An appellant who is in custody shall be entitled, if he so desires, to be present in person at the hearing of his appeal and, subject to the prior consent of the Court being obtained, of any interlocutory applications in relation thereto.

(2) The provisions of sub-rule (1) shall apply mutatis mutandis to the right of an applicant for enlargement of time to be present at the hearing of such application.

23. Where a direction for payment of compensation has been given by the trial court-martial, the person in whose favour such direction was given, the appellant, and with the leave of the Court any other person, shall be entitled to be heard before any order is made by the Court annulling or varying such direction for payment of compensation.

24. (1) When the Court makes an order finally determining an appeal, the Registrar shall give notice thereof in the Form No. 20 to the following persons:

( a ) the appellant;

( b ) the Deputy Judge Advocate General;

( c ) the convening authority;

and also, if the appellant is in a prison or detention barrack or if the operation of his sentence has been suspended, or if he has been released on bail--

( d ) the Governor of such prison or detention barrack, as the case may be;

(e) the Secretary of the Department of Defence

provided that the Registrar shall not be required to give such notice to the appellant if he shall have been present or shall have been legally represented at the hearing.

(2) The Deputy Judge Advocate General, on receiving a notice pursuant to sub-rule (1), shall enter the particulars contained therein in the proceedings of the trial court-martial.

XV. MISCELLANEOUS.

25. Except where otherwise provided by these Rules notice of every application to the Court shall be in accordance with the Form No. 21 which shall be served on the Registrar and the convening authority or appellant (as the case may be) and such other person, if any, as the Court may direct.

26. (1) Every notice of appeal shall be signed by the appellant himself except in the cases mentioned in sub-rules (2), (3) and (4). Any other notice shall be in writing and signed by the person giving the same or his solicitor.

(2) Where an appellant or any other person authorised or required to give or send any notice is unable to write, he may affix his mark thereto in the presence of a witness who shall attest the same and thereupon such notice shall be deemed to be duly signed by him.

(3) Where it is alleged that an appellant is insane at the time when any notice is required or authorised to be given by him, such notice may be given and signed by a solicitor or other person on his behalf.

(4) Any notice required or authorised to be given to the Court shall be addressed to and served upon the Registrar, The Courts-Martial Appeal Court, Four Courts, Dublin.

(5) In every case in which an appellant is not in a prison or detention barrack or is represented by a solicitor, his notice of appeal shall be served on the Registrar personally or by delivering same to the proper officer at the Office of the Court, Four Courts, Dublin, or by sending the same by ordinary pre-paid post addressed to the Registrar. In all other cases not specifically provided for, service of any notice or other document may be effected personally or by sending the same by ordinary pre-paid post addressed to the person on whom it is to be served.

27. The Registrar shall furnish the necessary forms and instructions in relation to notices of appeal to any person who demands the same and to officers of courts, Governors of prisons and detention barracks, and such other officers or persons as he thinks fit and the Governor of a prison or a detention barrack shall cause those forms and instructions to be placed at the disposal of the prisoners desiring to make any application and shall cause any such notice given by a prisoner in his custody to be forwarded on behalf of the prisoner to the Registrar.

28. It shall be the duty of the Garda Síochána of the district in which the appellant shall have resided before his conviction or of the district from which he was committed or the Adjutant-General of the Defence Forces to enquire as to and report to the Registrar, when required by him upon the means and circumstances of any appellant where such a question arises.

29. The Department of Justice, Prisons Section, or the Adjutant-General of the Defence Forces as appropriate shall, on notice from the Registrar, cause from time to time such sufficient number of male and female officers to attend the sittings of the Court, as, having regard to the list of appeals thereat, the Department or Adjutant-General shall consider necessary.

30. The performance of any duty imposed upon any person by those Rules may be enforced by order of the Court.

31. Any warrant for the apprehension of an appellant issued by the Court shall be deemed to be, for all purposes, a warrant issued by a justice of the District Court for the apprehension of a person charged with any indictable offence under the provisions of the Petty Sessions (Ireland) Act, 1851, or any statute amending the same.

32. Every order of the Court, when drawn up, shall be dated the day of the week, month and year on which the same was made, unless the Court shall otherwise direct, shall take effect accordingly, and shall be issued out of the Office of the Court.

33. Non-compliance on the part of an appellant with these Rules or with any rule of practice for the time being in force, shall not prevent the further prosecution of his appeal or application unless the Court shall so direct, but such appeal or application may be dealt with in such manner and upon such terms as the Court shall think fit.

APPENDIX

No. 1

Rule 3

NOTICE OF APPEAL

COURTS-MARTIAL APPEAL COURT

No 2

Rule 5

No. 3

Rule 6 (2)

NOTICE OF APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL

COURTS-MARTIAL APPEAL COURT

To the Registrar of the Courts-Martial Appeal Court

Particulars of Applicant

No. 4

Rule 14 (1)

NOTICE OF APPLICATION BY APPELLANT FOR SUSPENSION OF THE OPERATION OF A CUSTODIAL SENTENCE PENDING APPEAL

COURTS-MARTIAL APPEAL COURT

No. 5

Rule 14 (4) & (5)

WARRANT FOR ARREST OF APPELLANT WHOSE SENTENCE HAS BEEN SUSPENDED

COURTS-MARTIAL APPEAL COURT

No. 6

Rule 15(1)

NOTICE OF APPLICATION BY APPELLANT FOR BAIL PENDING APPEAL

COURTS-MARTIAL APPEAL COURT

No. 7

Rule 15 (5)

RECOGNIZANCE PENDING APPEAL TO COURTS-MARTIAL APPEAL COURT

No. 8

CERTIFICATE OF SURETY

Rule 15 (5)

No. 9

Rule 15 (6)

NOTICE OF PERFECTION OF RECOGNIZANCE

No. 10

Rule 15 (8) & (14)

WARRANT FOR ARREST OF APPELLANT ON BAIL

COURTS-MARTIAL APPEAL COURT

No. 11

Rule 15 (10)

INFORMATION OF SURETY FOR ARREST OF APPELLANT

No. 12

Rule 15 (10)

WARRANT ON INFORMATION OF SURETY

No. 13

Rule 15 (11)

COMMITTAL OF APPELLANT ON SURETY'S INFORMATION

No. 14

Rule 15 (16)

WARRANT FOR ESTREAT OF RECOGNIZANCES

COURTS-MARTIAL APPEAL COURT

No. 15

Rule 19 (1)

NOTICE OF ABANDONMENT

COURTS-MARTIAL APPEAL COURT

No. 16

Rule 20 (1)

APPLICATION FOR ORDER FOR ATTENDANCE OF WITNESS

COURTS-MARTIAL APPEAL COURT

No. 17

Rule 20 (2)

ORDER TO WITNESS TO ATTEND BEFORE THE COURT FOR EXAMINATION

COURTS-MARTIAL APPEAL COURT

No. 18

Rule 20 (5)

NOTICE TO WITNESS TO ATTEND BEFORE EXAMINER FOR EXAMINATION

COURTS-MARTIAL APPEAL COURT

No. 19

Rule 20 (7)

CAPTION FOR DEPOSITION OF WITNESS EXAMINED BEFORE EXAMINER

COURTS-MARTIAL APPEAL COURT

No. 20

Rule 23 (1)

NOTICE OF RESULT OF APPEAL

COURTS-MARTIAL APPEAL COURT

No. 21

Rule 24

NOTICE OF APPLICATION

COURTS-MARTIAL APPEAL COURT

EXPLANATORY NOTE.

These Rules prescribe procedures, and forms to be used, in connection with an appeal to the Courts-Martial Appeal Court established under the Courts-Martial Appeals Act, 1983 (No. 19 of 1983).