Court-martial evidence requirements invalidated charges where named witnesses were not examined without justification.

A court-martial charge based on named witnesses cannot be sustained where those witnesses are not examined at the summary of evidence stage without justification. The convening authority's satisfaction that the evidence justified trial was therefore invalid, because Rule 43 of the Air Force Rules and natural justice required evidence capable of supporting the charges and permitting effective cross-examination. The court rejected a purely technical objection based on alleged absence of prejudice, since the challenge had been raised and the defect went to the validity of the proceedings. Charges 1 to 3 were set aside, while the General Court Martial was allowed to continue only on charges 4 to 7.

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Issues: Whether the General Court Martial proceedings in respect of charges 1 to 3 were vitiated by the non-examination of the named witnesses at the stage of summary of evidence and, if so, whether those charges could continue.

Analysis: The charges were specific and related to identified persons whose testimony was necessary to prove the allegations. No explanation was offered for the failure to examine those witnesses, and the custodian of a report was not a substitute for its maker where effective cross-examination on the contents was required. In such circumstances, the requirements of Rule 43 of the Air Force Rules, read with the principles of natural justice and the analogous evidentiary safeguards, were not satisfied. The satisfaction required before convening a court-martial had to rest on evidence justifying trial on the charges; a decision taken without such evidence was unsustainable and perverse. The objection to the proceedings had in fact been raised, and the rejection of the challenge on a mere technical plea of absence of prejudice was not justified.

Conclusion: The proceedings in respect of charges 1 to 3 could not be sustained and were set aside, while the General Court Martial proceedings were permitted to continue only in respect of charges 4 to 7.

Ratio Decidendi: Where a court-martial charge depends on named witnesses and those witnesses are not examined without justification, the convening authority's satisfaction that the evidence justifies trial is invalid and the affected charges cannot stand.

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