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[F.A.Q.]
Fiji Consolidated Legislation |
LAWS OF FIJI
Revised Ed. 1985]
CHAPTER 81
ROYAL FIJI MILITARY FORCES
TABLE OF PROVISIONS
PART I-PRELIMINARY
SECTION
1.
Short title
2.
Interpretation
PART II-CONSTITUTION AND ORGANIZATION
3. Establishment and
function of the Forces
4. Composition
of Forces
5. Appointment and promotion
of officers
6. Appointment of warrant
officers
7. Qualification as officer
or soldier of the Forces
8. Period of
enlistment
9. Reserve and Special
Reserve
10. Transfer between
units
11.
Saving
12.
Service
13. Persons empowered to
enlist soldiers
14.
Uniforms
15. Training for Territorial
Force, Reserve of Officers and
Reserve
16. Power to
disband
17. Power to terminate service
of officers and soldiers
PART III-CADETS
18. Cadet
Units
19. Cadets' liability for
training
PART IV-LIABILITY FOR CONTINUOUS SERVICE
20. Calling out for
continuous service
21. Applicability
of section 20 to Territorial
officers
22. Not entitled to discharge
when on continuous service or on active service
PART V-DISCIPLINE, INQUIRIES AND COURTS MARTIAL
23. Application of Army
Act
24. Power of Board of Inquiry to
call witnesses
25. Courts
martial
26. Witnesses before Boards of
Inquiry, Regimental Inquiry or courts
martial
27. Saving of jurisdiction of
the courts
28. Execution of sentence
of imprisonment
29. Provision for
arrest and punishment of military offender who ceases to be subject to the Army
Act
PART VI-APPEALS FROM COURTS MARTIAL
30. Right of
appeal
31. Application for leave to
appeal
32. Determination of appeals in
ordinary cases
33. Powers of the Court
of Appeal in special cases
34.
Supplementary powers of Court of
Appeal
35. Proceedings to be heard in
absence of appellant
36. Defence of
appeals
37. Right of appellant to
present his case in writing
38.
Suspension of death sentences
39.
Removal of prisoners for purposes of
proceedings
40. Furnishing, on appeal,
of documents relating to trial
41.
Saving of Governor-General's powers
PART VII-PAY, PENSIONS AND GRATUITIES
42.
(Repealed)
43.
(Repealed)
44.
(Repealed)
45.
(Repealed)
46.
(Repealed)
47.
(Repealed)
48.
(Repealed)
49. Regular officer on
Active List deemed holder of pensionable
post
50. Provisions for retired pay,
pensions, etc., not to apply in respect of person seconded
PART VIII-LEGAL PROCEEDINGS AND OFFENCES
51. Appearance of
Commander
52. Immunities of
soldiers
53. Service of civil
process
54. Property of Forces: in
whom vested
55. Offences in relation
to Territorial and Reserve
training
56. Assaulting or resisting
an officer or soldier of the
Forces
57. Obstructing or molesting
soldier of the Forces
58. Wilful
injury to butts or targets
59.
Wrongful detention or disposal of arms, appointments or
stores
60. Employers not to prevent
employees from serving
61. General
penalty
PART IX-MISCELLANEOUS
62. Storage of
gunpowder
63. Payment of moneys by
Chief Accountant
64. Disposal of
fines
65. Secondment to the
Forces
66. Standing
Orders
67. Regulations
------------------------------------------------------
ROYAL FIJI MILITARY FORCES
Ordinances
Nos. 12 of 1949, 6 of 1952, 14 of
1953,
25 of 1956,
56 of 1961, 46 of 1962, 2 of
1966,
Order 7th
Oct. 1970 Acts Nos. 20 of 1973, 17 of 1983
AN ACT
TO PROVIDE FOR THE ESTABLISHMENT, MAINTENANCE AND REGULATION OF MILITARY FORCES
AND FOR PURPOSES INCIDENTAL THERETO
[1 September 1949.]
PART I-PRELIMINARY
Short title
1. This Act may be cited
as the Royal Fiji Military Forces Act.
Interpretation
2. In this Act, unless the
context otherwise requires-
"Army Act" means the Army Act, 1955 of the United Kingdom and includes all Acts amending, replacing or read in conjunction with the same and all rules, regulations and Articles of War made thereunder;
"Commander" means the Commander of the Forces appointed under this Act;
"continuous service" in relation to any officer or soldier of the Territorial Force, Reserve of Officers or Reserve means service by such officer or soldier when ordered for service by the Governor-General under the provisions of section 20;
"Court of Appeal" means the Court of Appeal constituted under the provisions of the Court of Appeal Act;
(Cap. 12.) (Inserted by 2 of 1966; s. 2.)
"military service" means all service in the Royal Fiji Military Forces and includes territorial training;
"officer" means any commissioned officer appointed by the Governor-General or Commander to the Forces;
"officer on the active list" means an officer during such time as he is not posted to the Reserve of Officers or the Retired List;
"Regular officer" means an officer who is, and during such time as he is, appointed to the Regular Force;
"soldier" means any warrant officer, non-commissioned officer or man enlisted in or belonging to the Forces;
"Territorial officer" means an officer who is, and during such time as he is, appointed to the Territorial Force.
(Section amended by 56 of 1961, s. 2.)
PART II-CONSTITUTION AND ORGANIZATION
Establishment and function of the Forces
3.-(1)
There shall be established in Fiji forces to be known as the Royal Fiji Military
Forces (hereinafter called the
Forces).
(2) The Forces shall be
charged with the defence of Fiji, with the maintenance of order and with such
other duties as may from time
to time be defined by the
Minister.
(3) The Forces shall be
under the supreme command of the Governor-General and, through the Minister,
under the command of the Commander
who shall be appointed by the
Governor-General upon the advice of the Minister and who shall be responsible to
the Minister for the
proper expenditure of all public moneys appropriated for
the service
thereof.
(Substituted
by Order 7th October,
1970.)
(4)
The Minister may at any time and for any of the purposes set out in subsection
(2) order that the Forces or any part thereof shall
be employed out of
Fiji:
Provided that no officer or
soldier of the Forces shall be liable to serve or proceed on duty without his
consent out of
Fiji.
(Section
amended by 56 of 1961, s.
3.)
Composition of Forces
4.-(1)
The Forces shall comprise a Regular Force, a Territorial Force, a Reserve of
Officers and a Reserve.
(2) The
Regular Force shall consist of officers appointed thereto and soldiers enlisted
therein in accordance with the provisions
of this
Act.
(3) The Territorial Force
shall consist of officers appointed thereto and soldiers enlisted therein in
accordance with the provisions
of this
Act.
(4) The Reserve of Officers
shall consist of officers posted thereto in accordance with the provisions of
this Act.
(5) The Reserve shall
consist of soldiers transferred from the Regular and Territorial Force in
accordance with the provisions of
this
Act.
(6) The Minister may from
time to time divide the Regular and Territorial Forces into such units as he may
determine. Any unit may
be composed wholly of officers and soldiers of either
the Regular or Territorial Forces or partly of officers or soldiers of the
Regular Force and partly of officers or soldiers of the Territorial Force as may
be prescribed.
(7) Every unit
shall be designated by such style as the Governor-General shall
direct.
(Section
amended by 56 of 1961, s. 3 and Order 7th October,
1970)
Appointment and promotion of officers
5.-(1)
Officers shall be appointed by the Governor-General upon the recommendation of
the Minister either to the Regular or to the Territorial
Force and shall, when
not already commissioned in Her Majesty's Forces, be commissioned by the
Governor-General. No such commission
shall be deemed to be vacated by the death
or retirement of the Governor-General by whom the commission was
granted.
(2) An officer appointed
to the Regular Force shall be appointed either-
(a) as liable to serve on the Active List therein until he reaches retiring age for his rank in accordance with regulations made under this Act and in such case shall be termed the holder of a long service Regular commission; or
(b) as liable to serve on the Active List therein for such number of years, not exceeding ten, specified at the time of such appointment and in such case shall be termed the holder of a short service Regular commission.
(3)
A Regular or Territorial officer may be posted to the Reserve of Officers or may
be placed on a list to be known as the Retired
List, in accordance with
regulations made under this Act and such regulations may provide for the posting
of an officer from the
Reserve of Officers back to the Active
List.
(4) An officer on the
Retired List shall not be liable save with his consent, to be posted to service
on the Active List.
(5) The
appointment of an officer to the Regular or Territorial Force shall not cease by
reason of posting to the Reserve of Officers
or the Retired List but regulations
made under this Act may provide for the voluntary transfer of officers from the
Regular to the
Territorial Force and vice
versa.
(6) An officer commissioned
by the Governor-General shall hold his commission during the Governor-General's
pleasure.
(7) Promotion of
officers to the rank of Major and to any higher rank shall be by the Minister
after consultation with the
Commander.
(8) Promotion of
officers to ranks up to and including Captain shall be by the
Commander.
(Section
inserted by 56 of 1961, s. 4, and amended by Order 7th October,
1970.)
Appointment of Warrant Officers
6.-(1)
Subject to the provisions of section 65 Warrant Officers shall be appointed by
the Commander and shall, when not already holding
a warrant of appointment to
that rank in Her Majesty's Forces, be issued with a warrant of appointment by
the
Minister.
(Amended
by 20 of 1973, s. 4.)
(2) Warrant
Officers shall be appointed by the Commander either to the Regular or the
Territorial
Force.
(Section
inserted by 56 of 1961, s.
4.)
Qualification
as
officer
or
soldier
of
the
Forces
7.-(1)
Every officer shall be a British subject and shall upon being commissioned take
the prescribed oath.
(2) Every
soldier shall be a British subject and shall upon enlistment take the prescribed
oath and complete the prescribed attestation
form.
(3) No person shall be
enlisted in the Forces who is under the age of eighteen
years:
Provided that the Commander
may permit the enlistment of such number of persons of or above the age of
sixteen years and under the
age of eighteen years as he may from time to time
determine.
(Section
amended
by
25
of
1956,
s.
3,
and
56
of
1961,
s.
3.)
Period of enlistment
8.-(1)
A person may be enlisted as a soldier of the Regular or Territorial Forces for
an initial period not exceeding three years and
thereafter he may, with the
approval of the Commander, re-engage for successive periods each not exceeding
three years until he attains
the age of forty-five
years:
Provided that the age limit
may be extended by the Minister for any particular soldier or class of
soldiers.
(2) On each
re-engagement a soldier shall make the prescribed
declaration.
(Section
amended
by
25
of
1956,
s.
4,
and
56
of
1961,
s.
3.)
Reserve
9.
A soldier of the Regular or Territorial Forces shall on the expiration of his
period of enlistment or if re-engaged, of his last
re-engagement be transferred,
if he is then below the age of forty-five
years,
to the
Reserve.
(Amended
by
56
of
1961,
s.
3.
and
20
of
1973,
s.
5)
Transfer between units
10.
A soldier of the Regular or Territorial Forces shall be liable to serve in any
unit of the Forces and to be transferred from one
unit to
another.
(Amended
by
56
of
1961,
s.
3.
)
Saving
11.
Nothing in section 9 shall be taken to prohibit the discharge, resignation,
release from service and dismissal of soldiers in accordance
with the provisions
of this Act or any regulations made
thereunder.
(Amended
by
56
of
1961,
s.
3.)
Service
12.
Every Regular officer on the active list and every soldier of the Regular Force
and, when called out for continuous service, every
Territorial officer and every
soldier of the Territorial Force and the Reserve shall be liable for service in
the performance of
the duties of the Forces as defined in section
3.
(Amended
by
56
of
1961,
ss.
3
and
6.
and
20
of
1973,
s.
6.)
Persons empowered to enlist soldiers
13.
Any person empowered by the Commander by writing under his hand and any officer
may enlist persons to serve as soldiers of the
Forces.
(Amended
by
56
of
1961,
s.
3.)
Uniforms
14.
Officers and soldiers shall wear such uniforms as may be laid down by the
Commander from time to time. Such uniforms shall be issued,
renewed and repaired
from time to time in accordance with the directions of the
Commander.
(Inserted
by
25
of
1956
s.
5,
and
amended
by
56
of
1961,
s.
3.)
Training for Territorial Force, Reserve of Officers and Reserve
15.-(1)
Every Territorial officer on the Active List and every soldier of the
Territorial Force shall, unless exempted therefrom, undergo
such preliminary
training during the first year of service as may be prescribed and during each
prescribed training year shall, unless
exempted therefrom, undergo such course
of annual training, instruction, drills, and other such exercises as may be
prescribed.
(Amended
by
20
of
1973,
s.
7)
(2)
Every officer posted to the Reserve of Officers and every soldier of the Reserve
shall, unless exempted therefrom, undergo such
annual training not exceeding
fourteen days, in any one year as may be
prescribed.
(3) The time occupied
in proceeding to or returning from a camp or place of assembly or instruction
shall not be taken into account
as part of any period of training but during
such period every officer and soldier shall be on military
service.
(4) Nothing in this
section shall be construed as preventing any officer or soldier with his own
consent in addition to annual training
being called up for the purpose of duty
or training in accordance with regulations under this
Act.
(Section
amended
by
56
of
1961,
ss.
3
and
7.)
Power to disband
16.
The Governor-General may by proclamation disband or discontinue the services of
the Forces or any part thereof whenever it seems
to him expedient so to do and
may give such instructions as shall be necessary for carrying any such
proclamation into effect.
Power to terminate service of officers and soldiers
17.
The Governor-General upon the advice of the Minister may at any time dispense
with the services of any officer or discharge any
soldier.
(Section
amended
by
56
of
1961,
s.
3.
and
Order
7th
October,
1970)
PART III-CADETS
Cadet Units
18.
The Minister may establish Cadet Units, the description of, numbers in,
enrolment in, and organization of which shall be such as
the Minister may from
time to time prescribe. Cadet Units shall not form part of the Forces, but shall
be affiliated to them and
regarded as a training unit for the Forces. Cadet
Units shall be composed of boys between the ages of twelve and eighteen years.
The Minister may disband any Cadet
Unit.
(Amended
by
Order
7th
October,
1970
and
20
of
1973,
s.
8).
Cadets’ liability for training
19.
All boys who, with the consent of their parents or guardians, have enrolled as
soldiers of a Cadet Unit shall be liable to undergo
such training as may be
prescribed.
(Section
amended
by
56
of
1961,
ss.
3
and
8.)
PART IV-LIABILITY FOR CONTINUOUS SERVICE
Calling out for continuous service
20.-(1)
The Governor-General may, by proclamation, call out the whole or any part of the
Territorial Force and the Reserve for continuous
service whenever it appears to
him advisable so to do by reason of invasion, war or danger of any of them or by
reason of any internal
emergency threatening the security of life or property to
quell which the available civil force is deemed by him inadequate and when
so
called out they shall be held to that service until such time as the
Governor-General may, by proclamation, declare that they
are relieved from that
service.
(2) Whenever the whole or
any part of the Territorial Force or the Reserve is called out, every soldier
thereof shall attend at once
in obedience to the call at such time and place as
may be directed by the
Governor-General.
(3) Every
soldier who, not being incapacitated for service by infirmity, absence from Fiji
or other good and sufficient cause, refuses
or neglects to obey the call shall
be liable to imprisonment not exceeding twelve months or to a fine not exceeding
one hundred
dollars.
(Section
amended
by
56
of
1961,
ss.
3
and
10
and
20
of
1973,
s.
9.)
Applicability of section 20 to Territorial officers
21.
For the purposes of section
20,
a Territorial officer shall be deemed to belong to the Territorial Force only
during such time as he is on the Active List.
Not entitled to discharge when on continuous service or on active service
22.
No officer or soldier of the Forces when called out on continuous service under
the provisions of section 20 shall be entitled to
obtain discharge during the
continuance of such
service.
(Amended
by
56
of
1961,
ss.
3
and
11.)
PART V-DISCIPLINE, INQUIRIES AND COURTS MARTIAL
Application of Army Act
23.-(1)
In relation to the government of and for the enforcement of discipline in the
Forces the Army Act shall, subject to the provisions
of this Act and any
regulations made thereunder and with the modifications referred to in subsection
(2), apply as if the Forces
formed part of Her Majesty's Regular
Forces-
(a) to officers of the Forces and soldiers of the Regular Forces at all times;
(b) to soldiers of the Territorial Force and the Reserve when on military service.
(2)
The modifications to be made are as
follows:-
(a) the word "Governor-General" may be read for the words "Army Council" and "Secretary of State";
(b) no sentence exceeding two years' imprisonment imposed by a court martial upon the trial of a soldier when serving within the limits of Fiji shall be carried into execution unless confirmed by the Governor-General; and
(c) such other modifications consistent with this Act as may be necessary.
(Section amended by 56 of 1961, s. 3 and 20 of 1973, s. 10.)
Power of Board of Inquiry to call witnesses
24.
Every Board of Inquiry or Regimental Inquiry constituted under the Army Act for
any purpose connected with the Forces or any officer
or soldier thereof shall
have
power-
(a) to administer oaths or affirmations to witnesses, whether or not they are persons subject to military law, and to compel their attendance to give evidence;
(b) to require the production of documents.
(Amended by 25 of 1956, s. 6, 56 of 1961, ss. 3 and 14 and 20 of 1973, s. 11.)
Courts martial
25.-(1)
The Governor-General on behalf of Her Majesty may at any time convene courts
martial and delegate powers to convene such courts*
and to appoint officers to
constitute the same for the purpose of trying any officer or soldier of the
Forces subject to the Army
Act and may also delegate power to approve, confirm,
mitigate or remit any sentence of any such court. Such courts shall be composed
wholly of officers of the Forces or partly of officers of the. Forces and partly
of officers of Her Majesty's Regular
Forces.
*
Delegated to Commander by Notice 11th November,
1965.
(2) The composition of such
courts and the modes of procedure and powers thereof shall be, subject to the
provisions of this Act,
as near as may be in accordance with the regulations
which are for the time being in force for the composition, modes of procedure
and powers of courts martial for Her Majesty's Regular
Forces.
(Section
amended
by
56
of
1961,
s.
3.)
Witnesses before Boards of Inquiry Regimental Inquiry or courts martial
26.-(1)
Every person required to give evidence before a Board of Inquiry, Regimental
Inquiry or court martial may be summoned or ordered
to
attend.
(2) If any person is
summoned as a witness before a Board of Inquiry, Regimental Inquiry or court
martial and after payment or tender
of reasonable expenses of his
attendance-
(a) makes default in attending or being in attendance; or
(b) refuses to take an oath or affirmation which the Board of Inquiry, Regimental Inquiry or court martial lawfully requires him to take; or
(c) refuses to produce any document in his power or control which the Board of Inquiry, Regimental Inquiry or court martial lawfully requires him to produce; or
(d) refuses to answer any question which the Board of Inquiry, Regimental Inquiry or court martial lawfully requires him to answer; or
(e) is guilty of any contempt of the Board of Inquiry, Regimental Inquiry or court martial by causing any interruption or disturbance in its proceedings or otherwise,
the
president of the Board of Inquiry, Regimental Inquiry or court martial may
certify the default, refusal or contempt under his
hand to a judge or magistrate
having powers to deal with or punish persons guilty of like acts or omissions in
his court and such
judge or magistrate may thereupon inquire into the same, and,
if the person is found guilty, deal with or punish him in like manner
as if such
default, refusal or contempt had been made or committed before him or in
relation to his
court.
(Section
amended
by
25
of
1956,
s.
7
and
56
of
1961,
s.
15.)
Saving of jurisdiction of the courts
27.
Nothing in this Act contained shall exempt any person from being prosecuted,
tried and convicted before the ordinary tribunals of
Fiji for any felony,
misdemeanour or offence against any law for the time being in force in
Fiji:
Provided that no person
shall be punished twice for the same offence.
Execution of sentence of imprisonment
28.-(1)
The *Minister may set apart any building or part of a building as a military
prison or detention
barrack.
*Delegated
to Commander by Notice
11th
November, 1965.
(2) Any sentence
of imprisonment imposed upon an officer or soldier of the Forces by an officer
or court martial may be carried out
in any military prison established under
this section or in any civil prison or, where the imprisonment does not exceed
forty-two
days, in any detention barracks established under this
section.
(3) The officer in charge
of any civil prison shall receive into his custody and carry out the sentence
upon any person sentenced
to imprisonment as aforesaid upon an order in writing
under the hand of the Commander or of the officer imposing the sentence which
order shall specify the offence and the period and description of the
punishment.
(4) Every person while undergoing any such sentence of imprisonment as aforesaid in a civil prison shall be deemed to be and be dealt with as a criminal prisoner.
(5) A sentence passed upon
any person as aforesaid shall be in no respect affected by such person ceasing
to be an officer or soldier
of the Forces by discharge or
otherwise.
(Section
amended
by
56
of
1961,
s.
3.)
Provision
for
arrest
and
punishment
of
military
offender
who
ceased
to
be
subject
to
the
Army
Act
29.
Where an offence has been committed by an officer or soldier while subject to
the Army Act, such officer or soldier may be taken
into and kept in military
custody and punished for such offence although he has ceased to be subject to
the Army Act in like manner
as he might have been taken into and kept in
military custody or punished if he had continued so
subject:
Provided that where an
officer or soldier has since the commission of an offence ceased to be subject
to the Army Act, he shall not
be tried except in the case of the offence of
mutiny, desertion or fraudulent enlistment unless the trial commences within one
year
after he has ceased to be subject to the Army Act; but this section shall
not affect the jurisdiction of a civil court in the case
of any offence triable
by such court as well as by court
martial.
(Section
amended
by
56
of
1961,
s.
3
and
20
of
1970
s.
12.)
*PART
VI-APPEALS
FROM COURTS
MARTIAL
*Part VI
inserted by 2 of 1966, s. 3.
Right of appeal
30.
A person convicted by a court martial may, with the leave of the Court of
Appeal, appeal to that court against his conviction:
Provided that the leave of the Court of Appeal shall not be required in any case where the person convicted was sentenced by the court martial to imprisonment for ninety days or more or to detention for ninety days or more.
Application for leave to appeal
31.-(1)
Leave to appeal to the Court of Appeal shall not be given except in pursuance of
an application in that behalf made by or on behalf
of the appellant, and lodged
with the Registrar of the Court of Appeal, within such period and in such form
as shall be prescribed
by rules of court and specifying the grounds on which
leave to appeal is sought and such other particulars, if any, as may be directed
by such rules.
(2) Rules of court
may provide that, in such circumstances as may be specified in the rules, any
such application as aforesaid which
is lodged with such person (other than the
Registrar of the Court of Appeal) as is specified in the rules shall be treated,
for the
purposes of subsection (1), as having been lodged with the Registrar of
the Court of Appeal.
(3) Where an
application for leave to appeal to the Court of Appeal is lodge with a person
other than the Registrar in accordance
with the rules of court having effect by
virtue of subsection (2), it shall be the duty of that
person-
(a) to forward the application to the Registrar of the Court of Appeal with as much expedition as possible; and
(b) if it appears to that person that it is practicable to furnish the Registrar of the Court of Appeal, before the receipt by him of the application, with such particulars of the application as will enable him to prepare a copy of it, and that in all the circumstances it is expedient so to do, forthwith to furnish him with those particulars.
(4) Except in the case of a conviction involving sentence of death, the Court of Appeal may extend the period within which an application for leave to appeal shall be lodged, whether that period has expired or not.
(5) Where
the Court of Appeal dismisses an application for leave to appeal they may, if
they consider the application to have been
frivolous or vexatious, order that
any sentence passed upon the applicant in the proceedings from which it was
sought to bring the
appeal shall begin to run from the day on which the Court of
Appeal dismisses the application.
Determination of appeals in ordinary cases
32.-(1)
Subject to the provisions of section
33,
on an appeal under this Act the Court of Appeal shall allow the appeal if they
are of the opinion that the finding of the court martial
is unreasonable or
cannot be supported having regard to the evidence or involves a wrong decision
on a question of law or that, on
any ground, there was a miscarriage of justice,
and in any other case dismiss the
appeal:
Provided that the Court of
Appeal may, notwithstanding that they are of the opinion that the point raised
in the appeal might be decided
in favour of the appellant, dismiss the appeal if
they consider that no substantial miscarriage of justice has actually
occurred.
(2) If the Court of
Appeal allows an appeal under this Act they shall quash the conviction and in
their discretion either direct a
judgment and finding of acquittal to be entered
or direct a new trial by court martial.
Powers of the Court of Appeal in special cases
33.-(1)
If it appears to the Court of Appeal that an appellant, although not properly
convicted on some charge preferred against him before
the court martial by which
he was tried, was properly convicted on some other charge so preferred, then, if
the sentence passed by
the court martial on the appellant was not one which
could lawfully be passed for the offence of which he was convicted on the other
charge, the Court of Appeal shall pass on the appellant, in substitution for the
sentence passed on him by the court martial, such
sentence as they think
proper.
(2) Where an appellant has
been convicted of an offence and the court martial by which he was tried could
lawfully have found him
guilty of some other offence, and it appears to the
Court of Appeal that the court martial must have been satisfied of facts which
proved him guilty of that other offence, the Court of Appeal may, instead of
allowing or dismissing the appeal, substitute for the
finding of the court
martial a finding of guilty of the other offence and pass on the appellant, in
substitution for the sentence
passed on him by the court martial, such sentence
as they think proper, being a sentence which could lawfully have been passed for
that other offence but not being a sentence of greater
severity.
(3)
Where-
(a) an appellant has been convicted of an offence committed under circumstances involving the higher of two degrees of punishment, and it appears to the Court of Appeal that the court martial by which he was tried ought to have found him guilty of the offence as being committed under circumstances involving the lower degree of punishment; or
(b) an appellant has been convicted of an offence and it appears to the Court of Appeal that the court martial by which he was tried ought to have found him guilty of the offence subject to the exceptions or variations,
the
Court of Appeal may, instead of allowing or dismissing the appeal, substitute
for the finding of the court martial a finding of
guilty of the offence as being
committed under circumstances involving the lower degree of punishment or, as
the case may be, guilty
of the offence subject to exceptions or variations and
pass on the appellant, in substitution for the sentence passed on him by the
court martial, such sentence as they think proper, being a sentence which could
lawfully have been passed for the offence specified
or involved in the
substituted finding, but not being a sentence of greater
severity.
(4) If, on an appeal, it
appears to the Court of Appeal that, although the appellant was guilty of the
act or omission charged against
him, he was insane at the time the act was done,
or the omission made, so as not to be responsible according to law for his
actions,
the Court of Appeal may quash the sentence passed at the
trial
and
order
the
appellant to be kept in custody under the
provisions of subsection (4) of section
116
of the Army Act, as applied by this Act, in like manner as on a special finding
of insanity by the court martial by which the appellant
was
convicted.
(5) The term of any
sentence passed by the Court of Appeal under any of the foregoing provisions of
this section shall, unless the
Court of Appeal otherwise directs, begin to run
from the time from which it would have begun to run if it had been passed in the
proceedings from which the appeal is brought, and a sentence passed by the Court
of Appeal shall be deemed for the purposes of this
Act to be a sentence passed
by the court martial being a sentence that has been confirmed.
Supplementary 'powers of the Court of Appeal
34.
For the purposes of this Act the Court of Appeal may, if they think it necessary
or expedient in the interests of justice, exercise
all or any of their powers
under section
28
of the Court of Appeal
Act.
(Cap.
12)
Proceedings to be heard in absence of appellant
35.
An appellant shall not be entitled to be present at the hearing of an appeal to
the Court of Appeal under this Act or at any proceedings
preliminary or
incidental to such an appeal except where rules of court provide that he shall
have the right to be present or the
Court of Appeal gives him leave to be
present, and accordingly any power of the Court of Appeal under this Act to pass
a sentence
may be exercised notwithstanding the absence of the
appellant,
Defence of appeals
36.
It shall be the duty of the Director of Public Prosecutions on an appeal against
conviction by a court martial to undertake the defence
of the
appeal.
(Amended
by
14
of
1975,
s.
16.)
Right of appellant to present his case in writing
37.
An appellant may, if he so desires, present his case in writing.
Suspension of death sentences
38.
Where a conviction by court martial involves sentence of
death-
(a) the sentence shall not in any case be executed until the expiration of the period within which an application for leave of appeal to the Court of Appeal against the conviction must be lodged; and
(b) if such an application is duly lodged the sentence shall not be executed until either the application is finally refused or is withdrawn or the appeal is determined or abandoned:
Provided
that, where a sentence of death passed on a person on active service by a court
martial is confirmed and the officer who
confirms the sentence certifies that it
is essential in the interests of discipline and for the purposes of securing the
safety of
the force with which that person is present that the sentence should
be carried out forthwith, the foregoing provisions of this section
shall not
apply to the sentence.
Removal of prisoners for purposes of proceedings
39.
Regulations made under the provisions of section
67
may provide in what manner an appellant when in custody, is to be taken to, kept
in custody at, and brought back from any place at
which he is entitled to be
present for the purposes of the appeal or any place to which the Court of Appeal
or a judge thereof may
order him to be taken for the purpose of any proceedings
of the Court of Appeal.
Furnishing, on appeal, of documents relating to trial
40.
In the case of every appeal, or application for leave to appeal, under this Act
to the Court of Appeal against a conviction by court
martial, it shall be the
duty of the Commander to furnish to the Registrar of the Court of Appeal in
accordance with rules of court,
the proceedings of the court martial (including
any proceedings with respect to the revision of the finding or sentence of the
court
martial in pursuance of subsection (1) of section
109
of the Army Act), the proceedings with respect to the confirmation of the
finding and sentence of the court martial and any petition
presented by the
person convicted.
Saving of Governor-General's powers
41.
Nothing in this Act shall affect the exercise by the Governor-General of the
powers to quash a conviction by a court martial, so
far as regards the exercise
thereof at a time before the receipt by the Registrar of the Court of Appeal of
an application for leave
to appeal to the Court of Appeal against the conviction
and nothing in this Act shall affect the exercise by the Governor-General
of the
prerogative of mercy.
PART VII-PAY, PENSIONS AND GRATUITIES
42.
(Repealed
by
Act
17
of
1983,
s.
47.)
43.
(Repealed
by
Act
17
of
1983,
s.
47.)
44.
(Repealed
by
Act
17
of
1983,
s.
47.)
45.
(Repealed
by
Act
17
of
1983,
s.
47.)
46.
(Repealed
by
Act
17
of
1983,
s.
47.)
47.
(Repealed
by
Act
17
of
1983,
s.
47.)
48.
(Repealed
by
Act
17
of
1983,
s.
47.)
Regular officer on Active List deemed holder of pensionable post.
49.
A Regular officer on the Active List who is the holder of a long service Regular
commission shall for the purposes of the Widows
and Orphans Pension Act be
deemed in respect of services from the commencement of this Act to be the holder
of a pensionable post
in the service of
Fiji.
(Cap.
80.)
(Amended
by
25
of
1956,
s.
11.)
Provisions for retired pay, pensions, etc., not to apply in respect of person seconded
50.
The provisions of sections
43
to
46
and
49
shall not apply in respect of persons seconded under the provisions of section
65.
PART VIII-LEGAL PROCEEDINGS AND OFFENCES
Appearance of Commander
51.
In all legal proceedings under this Act the Commander may appear by any officer
authorised by him in that behalf by writing under
his hand.
Immunities of soldiers
52.-(1)
No action shall be brought against any officer or soldier for anything done by
him under this Act unless the same is commenced
within three months after the
act complained of was committed nor unless notice of such action has been given
at least one month
before such action was
commenced.
(2) In every action
brought against any officer or soldier for anything done by him under this Act
the plaintiff shall expressly allege
in his statement of claim that such act was
done either maliciously or without reasonable and probable cause or through
gross negligence,
and if at the trial of such action he fails to prove such
allegation he shall be non-suited or a verdict shall be given for the
defendant.
(Section
amended
by
56
of
1961,
s.
3.)
Service of civil process
53.-(1)
A soldier of the Regular Force and, when on continuous service, any other
soldier of the Forces shall not be liable to be taken
out of the Forces by
process or execution save on account of any criminal charge or conviction or on
account of an original debt
proved by affidavit of the plaintiff or of someone
on his behalf to the value of sixty dollars at the least over and above all
costs
of suit.
(2) A soldier of
the Territorial Force or the Reserve shall be allowed a reasonable time for
going to and returning from any preliminary
or annual training, drill or other
exercise if in uniform and he shall not be liable during such time or when
engaged in such training,
drill or other exercise to have his person, horse,
harness or conveyance arrested or taken in execution of any civil process issued
out of any court
whatsoever.
(Section
amended
by
56
of
1961,
ss.
3
and
17.)
Property of Forces: in whom vested
54.-(1)
All property belonging to any unit or the Reserve shall for all purposes of any
proceedings, civil or criminal, be deemed to be
vested in the officer commanding
for the time being such unit or the Reserve and his successors in office and may
be so stated and
laid in any such
proceedings.
(Amended
by
20
of
1973,
s.
14)
(2)
No such proceeding shall be discontinued or shall abate by reason of the death,
resignation or removal of the officer commanding
but the same may be continued
in the name of his successor in office.
Offences in relation to Territorial and Reserve training
55.-(1)
Any soldier of the Territorial Force who without leave lawfully granted or save
on account of sickness or other reasonable excuse
fails to appear at the time
and place appointed for preliminary training or for annual training or fails to
perform the full course
of drills and other exercises prescribed for the
Territorial Force shall be guilty of an offence against this
Act.
(2) Every soldier of the
Reserve who without leave lawfully granted or save on account of sickness or
other reasonable excuse fails
to appear at the time and place appointed for
annual training shall be guilty of an offence against this
Act.
(Section
amended
by
56
of
1961,
s.
3.)
Assaulting or resisting an officer or soldier of the Forces
56.
Whosoever assaults or resists or aids or abets any person in assaulting or
resisting any officer or soldier in the discharge of his
duty shall be guilty of
an offence against this
Act.
(Amended
by
56
of
1961,
s.
3.)
Obstructing or molesting soldier of the Forces
57.
If any person wilfully obstructs or molests any officer or soldier while on duty
he may be arrested or given into custody by the
senior officer or soldier
present and shall on the prosecution of the Commander be liable to a fine not
exceeding one hundred
dollars.
(Amended
by
25
of
1956,
s.
12,
and
56
of
1961,
s.
3.)
Wilful injury to butts or targets
58.
If any person wilfully commits any damage to any butt or target belonging to or
lawfully used by the Forces or without the leave
of the Commander searches for
bullets in or otherwise disturbs the soil of or near any such butt or target he
shall on the prosecution
of the Commander be liable to a fine not exceeding
twenty dollars for every such offence.
Wrongful detention or disposal of arms, appointments or stores
59.-(1)
All arms, ammunition, musical instruments, clothing, appointments and
necessaries issued to any officer or soldier of the Forces
shall be and remain
the property of the Government and shall be produced, exhibited and delivered to
any person authorised by the
Commander to inspect or receive the
same.
(2) Any officer or soldier
of the Forces
who-
(a) loses, or by negligence damages, any public or service property of which he has the charge or which has been entrusted to his care or which forms part of property of which he has the charge or which has been entrusted to his care; or
(b) by negligence causes damage by fire to any public or service property; or
(c) loses, or by negligence damages, any clothing, arms, ammunition or other equipment issued to him for his use for military purposes; or
(d) fails to take proper care of any animal or bird used in the public services which is in his charge; or
(e) makes away (whether by pawning, selling, destruction or in any other way) with any military, naval or air force decoration granted to him or any clothing, arms,