Section 142
of Royal Brunei Armed Forces Act
Section 142
(1)
The Court of Appeal shall allow an appeal against conviction by court-martial if the Court think that —
(a)
the finding of the court-martial under all the circumstances of the case is unsafe or unsatisfactory;
(b)
the finding involves a wrong decision of a question of law;
or
(c)
there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal:
Provided that the court 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 miscarriage of justice has actually occurred.
(2)
If the Court of Appeal allow an appeal against conviction, they shall quash the conviction.
Adjustment of sentence in case of conviction of two or more charges 143.
Where —
(a)
it appears to the Court of Appeal on an appeal against conviction that an appellant, though 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;
and
(b)
the sentence passed by the court-martial on the appellant was not warranted by this Act for the offence of which he was convicted on the other charge, the court shall pass on the appellant, in substitution for the sentence passed on him by the court-martial, such sentence so warranted as they think proper.
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Substitution of conviction on different charge 144.
(1)
This section applies 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 on an appeal against conviction that the court-martial must have been satisfied of facts which proved him guilty of that other offence.
(2)
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 may 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 warranted by this Act for that other offence, but not a sentence of greater severity.
Variation of conviction so as to attract different sentence 145.
(1)
Where —
(a)
an appellant has been convicted of an offence committed under circumstances involving the higher of two degrees of punishment; and
(b)
it appears to the Court of Appeal on an appeal against conviction 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, the court 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.
(2)
Where an appellant has been convicted of an offence and it appears to the Court of Appeal on an appeal against conviction that the court-martial by which he was tried ought to have found him guilty of the offence subject to exceptions or variations, the court may, instead of allowing or dismissing the appeal, substitute for the finding of the court-martial a finding of guilty of the offence subject to exceptions or variations.
(3)
Where the Court of Appeal exercise the power conferred by subsection (1) or (2), they may pass on the appellant, in substitution for the sentence passed on him by the court-martial, such sentence as they think
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proper, being a sentence warranted by this Act for the offence specified or involved in the substituted finding, but not a sentence of greater severity.
Substitution of finding of insanity or unfitness to plead 146.
Where, on appeal, the Court of Appeal are of the opinion that —
(a)
the proper finding would have been a finding of not guilty by reason of insanity; or
(b)
the case is not one where there should have been a finding of not guilty, but that there should have been a finding that the accused was unfit to stand his trial, the court shall order the appellant to be kept in custody under section 108 in the same manner as on a finding of not guilty by reason of insanity or a finding of unfitness to stand trial by the court-martial by which the appellant was convicted.
Term of sentence passed under section 143, 144 or 145 147.
(1)
The term of any sentence passed by the Court of Appeal under section 143, 144 or 145 shall, unless the court otherwise direct, 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 was brought.
(2)
A sentence passed by the Court of Appeal under any of those sections is deemed for purposes of this Act to be a sentence passed by a court-martial, being a sentence that has been confirmed.
Retrial
Retrial generally excluded 148.
Except as provided by this Act, where the conviction of a person by court-martial for an offence has been quashed under this Act, he shall not be liable to be tried again for that offence by a court-martial or by any other court.
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Power to authorise retrial in certain cases 149.
(1)
The Court of Appeal shall have the power, on quashing a conviction, to make an order authorising the appellant to be retried by court-martial, but shall not exercise this power —
(a)
where the appeal against conviction is allowed by reason only of evidence received or available to be received by the court under sections 159 to 161; and
(b)
it appears to the court that the interests of justice require that an order under this section should be made.
(2)
This section has effect notwithstanding the restrictions on retrial imposed by section 121.
(3)
An appellant shall not be retried under this section for an offence other than —
(a)
the offence of which he was convicted by the original court-martial and in respect of which his appeal is allowed as mentioned in subsection (1);
(b)
any offence of which he could have been convicted at the original court-martial on a charge of the first-mentioned offence; or
(c)
any offence charged in the alternative in respect of which the court-martial recorded no finding in consequence of convicting him of the first-mentioned offence.
(4)
A person who is to be retried under this section for an offence shall, if the Court of Appeal so directs, be retried on a fresh charge or charges specified in the direction; but whether he is so tried or is retried on one or more of the original charges, no fresh investigation or other steps shall be taken under sections 76 to 79 in relation to the charge or charges on which he is to be retried.
Implementation of authority for retrial and supplementary orders of
Court of Appeal 150.
(1)
The limitation imposed by section 119, with respect to the time within which a trial for any offence may be begun, does not apply in the case of a retrial authorised by an order of the Court of Appeal under section 149;
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but a person to whom such an order applies shall not be retried unless the order convening the court-martial is issued within the period of 3 months beginning with the date of the order under section 149.
(2)
The Court of Appeal may, where they authorise a retrial, make such orders as appear to them to be necessary or expedient for the retention until the relevant time of property or money which has been restored, delivered or paid in pursuance of an order made on or in consequence of the original conviction or has been placed in safe custody while the operation of any such order is suspended.
(3)
In subsection (2), the reference to “the relevant time” is a reference to the expiration of the period of 3 months mentioned in subsection (1) or, if during that period a court-martial has been convened for the retrial of an appellant, the time when his case is finally disposed of:
Provided that the relevant time, in a case where the appellant is found guilty on his retrial, is the expiration of the period of 28 days beginning with the date of the finding.
Provisions as to retrial 151.
(1)
On the retrial of a person under section 149, the record of the evidence given by any witness at the original trial may, with the leave of the court-martial, be read as evidence —
(a)
by agreement between the prosecution and the defence; or
(b)
if the court-martial is satisfied that the witness is dead or unfit to give evidence or to attend for that purpose, or that all reasonable efforts to find him or secure his attendance have been made without success or that owing to the exigencies of the service it is not practicable for him to attend as aforesaid, and may be so read without further proof if it forms part of the original proceedings of the original court-martial or a copy thereof and those proceedings are, or that copy is, admissible as evidence under section 196.
(2)
Where a person authorised to be retried is again convicted on the retrial, the court-martial by which he is convicted may pass in respect of the offence any sentence authorised by this Act, not being a sentence of greater severity than that passed on the original conviction.
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(3)
Where a person authorised under section 149 to be retried is convicted on retrial and sentenced to imprisonment or detention, there shall be taken into account in calculating the period for which he is liable to imprisonment or to be detained in pursuance of the sentence —
(a)
any time before the original conviction was quashed which would have been taken into account in calculating the period for which he would have been liable to be imprisoned or detained in pursuance of a sentence of imprisonment or detention imposed at the original trial; and
(b)
any time after the quashing of his original conviction which he has spent under close arrest awaiting retrial.
Insanity
Appeal against finding of not guilty by reason of insanity 152.
(1)
A person who has been tried by court-martial for an offence and been found not guilty by reason of insanity may, with the leave of the Court of Appeal, appeal to the court against the finding; and in relation to any such appeal, this Part, except sections 143 to 148, applies, subject to this section and section 153, as it applies in relation to an appeal by a person convicted against his conviction (with the necessary adaptation of references to a person convicted or to conviction).
(2)
Where apart from this subsection —
(a)
an appeal against a finding of not guilty by reason of insanity would fall to be allowed; and
(b)
none of the grounds for allowing it relates to the question of the insanity of the appellant, the Court of Appeal may dismiss the appeal if they are of opinion that, for the insanity of the appellant, the proper finding would have been that he was guilty of an offence other than the offence charged.
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Consequences where appeal under section 152 allowed 153.
(1)
The following provisions shall have effect where an appeal against a finding of not guilty by reason of insanity is allowed by the Court of Appeal.
(2)
If the ground, or one of the grounds, for allowing the appeal is that the finding as to the appellant’s insanity ought not to stand and the Court of Appeal are of the opinion that the proper finding would have been a finding of guilty of an offence (whether the offence charged or any other offence of which the court-martial could have found him guilty), the court shall substitute for the finding of the court-martial a finding of guilty of that offence.
(3)
Subject to subsection (4), on substituting a finding of guilty of an offence, the Court of Appeal shall have the same powers of sentencing the appellant, and other powers, as the court-martial which tried him would have had on the same finding of guilty; and section 147 applies as in the case of a sentence passed by the court under section 143, 144 or 145.
(4)
The Court of Appeal shall not have power, by virtue of subsection (3), to impose sentence of death; and where apart from this subsection a sentence of death would be required by law, the sentence imposed by virtue of subsection (3) shall (whatever the circumstances) be one of imprisonment for life.
(5)
In any case where subsection (2) does not apply, the Court of
Appeal shall substitute for the finding appealed against, a finding of not guilty.
Power of Court of Appeal to order continued detention 154.
(1)
The following provisions shall have effect in the case of an appeal by a person who, in pursuance of a finding of not guilty by reason of insanity, is kept in custody under section 108 where the Court of Appeal under section 153 substitute a finding of not guilty.
(2)
If the Court of Appeal are of opinion that the person is of unsound mind and that he ought to continue to be detained in the interest of his own health or safety or with a view to the protection of other persons, they shall make an order for his continued detention under section 108 in like manner as on a finding of not guilty by reason of insanity by a court-martial.
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Unfitness to stand trial
Appeal against finding of unfitness 155.
(1)
A person found by a court-martial to be unfit to stand his trial may, with the leave of the Court of Appeal appeal, to the court against the finding.
(2)
In relation to an appeal under this section, this Part, except sections 143 to 146, applies (subject to section 156) as it applies in relation to an appeal by a person convicted against his conviction (with the necessary adaptations of references to a person convicted or to conviction).
Disposal of appeal under section 155 156.
(1)
The following provisions of this section apply with respect to an appeal under section 155.
(2)
Where the question whether the accused was unfit to stand his trial was determined by the court-martial at a time later than on arraignment, the appeal may be allowed (notwithstanding that the finding was properly come to) if the Court of Appeal are of opinion that the case is one in which the court-martial should before that time have come to a finding of not guilty.
(3)
If the Court of Appeal are of such opinion, they shall substitute a finding of not guilty (but not a finding of not guilty by reason of insanity)
and the appellant shall then not be liable to be tried by a court-martial or by any other court for the offence with which he was charged.
(4)
Where the appeal is allowed and the Court of Appeal do not substitute a finding of not guilty, the appellant may be tried accordingly for that offence; and if he is for the time being kept in custody under section 108, the court shall order him to remain in such custody under that section in the same manner as on a finding of unfitness to stand trial by a court-martial.
General procedural provisions
Presentation of appellant’s case 157.
An appellant may, if he so desires, instead of presenting his case orally, present it in writing in the prescribed form.
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Presence of appellant at hearing 158.
An appellant shall not be entitled to be present at the hearing of an appeal to the Court of Appeal or at any proceedings preliminary or incidental to such an appeal, except where the court give him leave to be so; and accordingly any power of the court to pass a sentence may be exercised notwithstanding the absence of the appellant.
Evidence 159.
(1)
The Court of Appeal may —
(a)
order the production of any document, exhibit or other thing connected with the proceedings the production of which appears to them necessary for the determination of the case;
(b)
order any witness who would have been a compellable witness at the trial to attend for examination and be examined before the court, whether or not he was called at the trial; and
(c)
receive the evidence, if tendered, of any witness.
(2)
Without prejudice to the generality of subsection (1), where evidence is tendered to the Court of Appeal under that subsection, the court shall, unless they are satisfied that the evidence if received would not afford any ground for allowing the appeal, exercise their power under that subsection of receiving it if —
(a)
it appears to them that the evidence is likely to be credible and would have been admissible at the trial on an issue which is the subject of the appeal; and
(b)
they are satisfied that it was not adduced at the trial, but that there is a reasonable explanation of the failure to adduce it.
(3)
Subsection (1)(c) applies to any witness (including the appellant) who is competent but not compellable, and applies also to the appellant’s husband or wife where the appellant makes an application for that purpose and the evidence of the husband or wife could not have been given at the trial except on such an application.
(4)
The Court of Appeal may order the examination of any witness whose attendance may be required under subsection (1)(b) to be conducted
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in the prescribed manner before any judge of the court or before any other person appointed by the court for the purpose, and allow the admission of any depositions so taken as evidence before the court.
Power to call for report by member of trial court 160.
(1)
The Court of Appeal may order the taking of such steps as are requisite to obtain from any member of the court-martial by which the appellant was tried, or the person who officiated as Judge Advocate at the trial, a report giving his opinion on the case or on any point arising in it, or containing a statement as to any facts of which the ascertainment appears to the court to be material for the purpose of determining the case.
(2)
The court shall not make an order under this section for the purpose of obtaining a report from a member of a court-martial other than the president of it unless they also make such order for the purpose of obtaining a report from the president or are satisfied that the obtaining of a report from him is impracticable or would involve undue delay.
Other powers for facilitating disposal of appeal 161.
(1)
Where any question arising on an appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in the opinion of the Court of Appeal conveniently be conducted before them, the court may order the reference of the question in the prescribed manner for inquiry and report to a special commissioner so far as they think fit to adopt it.
(2)
The Court of Appeal may appoint a person with special expert knowledge to act as assessor to the court in any case where it appears to them that such knowledge is required for the proper determination of the case.
(3)
There may be paid out of public funds to a special commissioner not being a Government officer to whom a question is referred under this section for inquiry and report, and to a person not being a Government officer appointed as assessor to the Court of Appeal, such remuneration and such travelling and subsistence allowances as may be prescribed by regulations made by the president of the Court of Appeal with the approval of His Majesty in Council.
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Costs
Costs of successful appeal 162.
(1)
Where the Court of Appeal allow an appeal, they may if they think fit, direct the payment by Government of costs to the appellant.
(2)
The costs which may under this section be directed to be paid are such sums as appear to the Court of Appeal reasonably sufficient to compensate the appellant for any expenses properly incurred by him in the case that is to say —
(a)
in the prosecution of his appeal (including any proceedings preliminary or incidental thereto); or
(b)
in carrying on his defence before the court-martial from which the appeal lies, or before any other court-martial before which were begun, but not concluded, proceedings for the offence with which he was charged before the first-mentioned court-martial.
Costs against appellant 163.
(1)
Where the Court of Appeal dismiss an appeal or an application for leave to appeal, they may, if they think fit, order the appellant or applicant
(as the case may be) to pay to the Government the whole or any part of the costs of the appeal or application, including the costs of copying or transcribing any documents for the use of the Court of Appeal.
(2)
An order under this section may be enforced —
(a)
in the same manner as an order for the payment of costs made by the High Court in civil proceedings; or
(b)
by making deductions from pay due to the appellant or applicant, as the case may be, or partly in the one way and partly in the other.
(3)
Any sums which by virtue of subsection (2)(a) are recovered from a person by Government shall be paid into the Consolidated Fund.
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Witnesses’ expenses 164.
(1)
The Court of Appeal may, whether or not they exercise their powers under section 62 or 63, order the payment out of public funds of such sums as appear to the court reasonably sufficient to compensate any person properly attending to give evidence on an appeal under this Part or any proceedings preliminary or incidental thereto (whether or not he gives evidence) for the expenses, trouble or loss of time properly incurred in or incidental to his attendance.
(2)
The amount of any costs ordered to be paid under this section shall be ascertained as soon as practicable by the Registrar.
Special references to Court of Appeal
Reference of cases by Judge Advocate General or Minister 165.
(1)
If, in the case of the conviction of a person by court-martial —
(a)
it appears to the Judge Advocate General that the finding of the court-martial involves a point of law of exceptional importance which in his opinion should be determined by the Court of Appeal; or
(b)
it appears to the Minister upon consideration of matter appearing to him not to have been brought to the notice of the court-martial at the trial, to be expedient that the finding of the court-martial should be considered or reconsidered by the Court of Appeal, the Judge Advocate General or the Minister, as the case may be, may refer the finding to the court.
(2)
A reference to the Court of Appeal under subsection (1) shall, for all purposes other than those of sections 162 and 163, be treated as an appeal by the person convicted against his conviction.
(3)
The provisions of this section apply in the case of a finding by a court-martial of not guilty by reason of insanity as they apply in the case of the conviction of a person by court-martial.
Order for costs of defence on reference under section 165 166.
(1)
Where on a reference under section 165 the person who was tried by court-martial appears before the Court of Appeal, the court shall
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direct the payment by Government of such sums as appear to them reasonably sufficient to compensate that person for any expenses properly incurred by him for the purposes of his appearance.
(2)
In any such case the Court of Appeal may, if they think fit, also direct the payment by Government of such sums as appear to them reasonably sufficient to compensate the person who was tried by court-martial for any expenses properly incurred by him in carrying on his defence before the court-martial or before any other court-martial before which were begun, but not concluded, proceedings for the offence with which he was charged before the court-martial by which he was tried.
Supplemental provisions
Determination by majority of Court of Appeal 167.
The determination of any question before the Court of Appeal shall be according to the opinion of the majority of the judges of the court hearing the case.
Judgment 168.
(1)
On the termination of the hearing of any appeal, the Court of
Appeal shall, either at once or on some future date which shall either then be appointed for the purpose or of which notice shall subsequently be given to the parties, deliver judgment in open court.
(2)
The Court of Appeal shall ordinarily give only one judgment which may be pronounced by the president or by such other member of the court as the president may direct but separate judgments shall be delivered if the president so directs.
(3)
The judgment of any member of the Court of Appeal who is absent may be read by any other member.
Powers under Part 7 which are exercisable by single Judge or
Commissioner 169.
(1)
The following powers of the Court of Appeal under this Part that is to say the power —
(a)
to give a direction under section 139(3) that a person be treated as not having lost his right of appeal;
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(b)
to give leave to appeal;
(c)
to extend the period within which an application for leave to appeal must be lodged;
(d)
to make orders under section 150(2) and discharge or revoke such orders;
(e)
to allow an appellant to be present at any proceedings;
(f)
to order witness to attend for examination; and
(g)
to make an order under section 163 for the payment of costs, may be exercised by any Judge or Commissioner of the Supreme Court in the same manner as they may be exercised by the Court of Appeal and subject to the same provisions.
(2)
If the Judge or Commissioner refuses an application on the part of an appellant to exercise in his favour any of the powers mentioned in subsection (1) (other than the power to make an order for the payment of costs), the appellant, upon making a requisition in that behalf within the prescribed period and in the prescribed form and manner, shall be entitled to have the application determined by the Court of Appeal duly constituted for the hearing and determination of appeals.
Documents relating to trial to be furnished for appeal 170.
In the case of every appeal or application for leave to appeal from court-martial, it shall be the duty of the Judge Advocate General to furnish to the Registrar, in accordance with rules of court, the proceedings of the court-martial, the proceedings with respect to the confirmation of the finding and sentence of the court-martial and any petition presented by the person tried thereby.
Defence of appeals 171.
It shall be the duty of the Colonel in Chief or the Commander to undertake the defence of any appeal to the Court of Appeal under this Part.
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Capital cases
Appeals in capital cases 172.
(1)
In the case of a conviction involving sentence of death, the right of appeal against conviction conferred by section 139(1) on the person convicted shall be exercisable without his being required to present a petition to the Colonel in Chief or the Commander; and accordingly in such a case subsection (2) of that section does not apply.
(2)
In the case of such a conviction, the power of the Court of
Appeal under section 140(3) to extend the period within which an application for leave to appeal must be lodged shall not be exercisable.
Deferment of execution of sentences of death 173.
(1)
Subject to section 174, subsection (2) applies where a conviction by court-martial involves sentence of death.
(2)
The sentence shall not be executed —
(a)
in any case, until expiration of the period prescribed under section 140 as the period within which an application for leave to appeal must be lodged; and
(b)
if such an application is duly lodged, until either the application is finally refused, or it is withdrawn, or the appeal is determined or abandoned.
(3)
(Repealed by S 2/2006).
Summary execution of sentence of death 174.
Where sentence of death passed by a court-martial on a person on active service is confirmed, and the authority confirming the sentence certifies that it is essential in the interest of discipline and for the purpose of securing the safety of the force with which that person is present that the sentence should be carried out forthwith, section 173 does not apply to the sentence.
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General
Rules of court 175.
(1)
Rules of court made by the President with the approval of His
Majesty the Sultan and Yang Di-Pertuan may provide for regulating the procedure and practice to be followed in the Court of Appeal in proceedings under this Part and for any other matters which by this Part are expressed to be subjects for rules of court or are required or authorised to be prescribed.
(2)
Rules of court made for the purposes of any provision of this
Part may make different provision in relation to different classes of cases and may provide for any incidental or supplementary matters for which it appears to the President to be necessary or expedient for the purposes of that provision to provide.
Duties of Registrar with respect to appeals etc.