Appealing a military summary trial is different from appealing a judgment in the civilian jurisdiction. This article discusses both the nature of appeals in the Military Justice system and the important rules and timeframes to be aware of.
The Military Justice System and Appeals
The New Zealand Defence Force (NZDF) operates a two-tiered military justice system, with summary trials being the most commonly used form of service tribunal for relatively minor military offences (which also include most civilian offences). These trials are presided over by “disciplinary officers”, also called “DISCOs” whose aim is to dispose of matters efficiently and fairly at the unit level. The DISCO is normally in the accused’s command chain from his or her unit.
A member of the Armed Forces found guilty at a summary trial has a right to appeal to the Summary Appeal Court of New Zealand (SACNZ).
The Nature of the Appeal: Rehearing and Transcript Reliance
The SACNZ was established specifically to hear appeals against decisions made by disciplinary officers at summary trials. It is presided over by an actual Judge. Lawyers can represent each party, and will normally make submissions on the appeal for it to be heard ‘on the papers’. A decision of the SACNZ cannot be further appealed to a higher court.
Appeals can be against the punishment(s), compensation/restitution order(s), the finding(s) of guilt, or both. An appeal to the SACNZ is effectively a “rehearing” of the evidence and submissions considered at the summary trial (hence why summary trials must be recorded). The SACNZ will consider the transcript of the summary trial, including the evidence presented, arguments made, and the disciplinary officer’s findings. It will then come to its own verdict.
DISCOs receive training and a qualification to perform the role, but usually do not have legal qualifications. Occasionally they fail to apply the correct procedure, legal tests or rules of evidence during the original trial. Consequently, the SACNZ’s review often involves scrutinising the conduct of the initial hearing based on the available record.
Grounds for Appeals
The SACNZ must allow an appeal if it considers that:
- the DISCO’s findings were unreasonable or not supported by the evidence; or
- the DISCO’s findings involved a wrong decision on a question of law; or
- there was a miscarriage of justice (unless it was not a substantial miscarriage of justice); or
- the summary trial was a nullity.
If none of those grounds are established, the appeal must be dismissed.
New Evidence and Retrial
New evidence is usually not submitted at the SACNZ. While the concept of a “rehearing” might technically allow for new evidence, the emphasis is on the existing transcript. The SACNZ can quash the conviction(s), punishment(s), or vary the punishment(s). The SACNZ can direct a retrial in the summary jurisdiction. This may occur if the Court finds that the DISCO’s decision to dismiss a charge or make a finding of not guilty was unreasonable or a legal test was misapplied.
The SACNZ may also substitute the punishment imposed provided that the substituted punishment would have been within the DISCO’s powers and is no more severe than the original punishment. or substitute a finding of guilty for a different offence if the factual basis supports it.
Timeframe for Appeal
Sections 124 and 125 of the Armed Forces Defence Act 1971 (the AFDA) deal specifically with what may be appealed and when that appeal must be lodged. The appeal must be lodged within 21 days after the day on which the finding of guilty is recorded. If the trial was outside New Zealand, the timeframe is 35 days.
Individuals considering an appeal should seek immediate legal advice to understand and adhere to the time limits set out in the Armed Forces Discipline Act 1971 or related regulations.
Conclusion
The appeal process from a military summary trial to the SACNZ is designed to prevent injustices resulting from the initial trial. It provides an avenue for review and correction of decisions, ensuring that discipline is maintained fairly. While operating as a rehearing, the SACNZ primarily relies on the transcript of the original proceedings and has the power to order a retrial in cases of significant errors.
The first step in getting support is to talk with a lawyer from Frontline Law about your situation and see what options we can offer you. Contact Frontline Law for a free initial consultation.
*The information in this blog post is general in nature and is not legal advice. If you need advice, you should contact us about your specific situation.
