Section 79
of Royal Brunei Armed Forces Act
Section 79
(1)
After investigating a charge against an officer, warrant officer or non-commissioned officer of the rank of Staff Sergeant, the commanding officer shall, unless he has dismissed the charge, submit it in the prescribed manner to an appropriate superior authority and thereupon it shall be determined by such authority how the charge is to be proceeded with in accordance with subsections (2) and (3).
(2)
If the charge is one which can be dealt with summarily by an appropriate superior authority, it may be so dealt with in accordance with section 80.
(3)
If the charge is not one that can be dealt with summarily, the prescribed steps shall be taken with a view to its being tried by court-martial.
Summary proceedings by appropriate superior authority 80.
(1)
Where a charge falls to be dealt with by an appropriate superior authority pursuant to section 78(4)(b) or 79(2), that authority shall investigate the charge in the prescribed manner and shall then proceed to deal summarily with it:
Provided that an appropriate superior authority may at any time before dismissing the charge or recording a finding of guilty thereon, take the prescribed steps with a view to the charge being tried by court-martial.
(2)
If the appropriate superior authority records a finding of guilty, the authority may award one or more of the following punishments —
(a)
if the accused is a soldier, detention for a period not exceeding 42 days;
(b)
forfeiting of seniority for a specified term or otherwise;
(c)
if the accused is a warrant officer or non-commissioned officer, reduction to the ranks or any less reduction in rank;
(d)
fine;
(e)
if the accused is an officer, warrant officer or non-commissioned officer, severe reprimand or reprimand;
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(f)
where the offence has occasioned any expense, loss or damage, stoppages;
(g)
any minor punishment for the time being prescribed:
Provided that the appropriate superior authority may not award a fine for an offence for which the authority awards any reduction in rank or forfeiture or seniority:
And provided further that the appropriate superior authority may not award a fine or minor punishment for an offence for which the authority awards detention:
And provided further that the second proviso to section 78(5) shall have effect as respects fines awarded by virtue of this section as it has effect as respects fines awarded by virtue of section 78 but with the substitution of the figures “42” for the figures “28” where they occur in paragraphs (a) and
(b)
of that proviso.
(3)
Notwithstanding anything in this section, where the appropriate superior authority has determined that the accused is guilty and if the charge is dealt with summarily will award any of the following punishments —
(a)
detention for a period exceeding 14 days;
(b)
forfeiture of seniority;
(c)
reduction to the ranks or any less reduction in rank; or
(d)
a fine of an amount exceeding 14 days’ pay, the authority shall not record a finding until after affording the accused an opportunity of electing to be tried by court-martial; and if the accused so elects the authority shall not record a finding but shall take the prescribed steps with a view to the charge being tried by court-martial.
Directions by higher authority or appropriate superior authority for dismissal of charges or stay of proceedings 81.
(1)
Notwithstanding anything in section 78 or 79, where a charge has been referred to higher authority with a view to it being tried by court-martial, or has been submitted to an appropriate superior authority for determination how it is to be proceeded with, that authority may refer the
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charge back to the commanding officer of the accused with a direction to dismiss the charge or a direction to stay all further proceedings therein; and the commanding officer shall deal with the charge accordingly.
(2)
The reference back of a charge under subsection (1) shall be without prejudice to the preferring of another charge if the authority concerned has so directed or the commanding officer thinks fit.
Confession of desertion by warrant officer, non-commissioned officer or soldier 82.
(1)
Where in accordance with General Orders, a warrant officer, non-commissioned officer or soldier signs a written confession that he has been guilty of desertion, his commanding officer may, notwithstanding anything in the foregoing provisions of this Part, submit the confession for the consideration of the Commander.
(2)
After considering any such confession, the Commander may direct that the offence shall not be tried by court-martial or dealt with summarily, and if such a direction is given, the period of his service as respects which he confesses to have been a deserter shall be forfeited.
(3)
Section 21(2) to (5) apply in relation to the forfeiture of service by virtue of this section but with the substitution of references to the date on which the direction was given for the references in section 21(2) and (3) to the date on which the offender was convicted.
Officers who are to act as commanding officers and appropriate superior authorities 83.
(1)
In this Act, “commanding officer”, in relation to a person charged with an offence, means such officer having powers of command over that person as may be determined by or under regulations made by His
Majesty in Council.
(2)
The following persons may act as appropriate superior authority in relation to a person charged with an offence —
(a)
the Colonel in Chief;
(b)
the Commander; or
(c)
any officer of the rank of Colonel or above in command:
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Provided that an officer under such rank as may be specified by regulations shall not act as appropriate superior authority where the accused is above such rank as may be so specified.
(3)
Regulations under this section may confer on officers, or any class of officers, who by or under the regulations are authorised to exercise the functions of commanding officers, power to delegate those functions, in such cases and to such extent as may be specified in the regulations, to officers of a class so specified.
Limitation of powers of summary dealing with charges 84.
(1)
The charges which may be dealt with summarily by a commanding officer and by an appropriate superior authority shall be such as may be specified by regulations made by His Majesty in Council.
(2)
In such cases as may be specified in that behalf by regulations made under this section, the powers of a commanding officer or appropriate superior authority to award punishment shall be subject to such limitations as may be so specified.
Courts-martial; general provisions
Convening and constitution of courts-martial 85.
(1)
A court-martial shall be convened by order of the competent authority and, subject to the provisions of this section, shall consist of the president and not less than four other officers.
(2)
Any officer who —
(a)
is the officer (in this Act referred to as the convening officer) who convenes a court-martial;
(b)
has held a commission for less than 2 years;
(c)
at any time between the date on which the accused was charged with the offence and the date of the trial —
(i)
has been the commanding officer of the accused;
(ii)
who has investigated the charge against the accused; or
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(iii)
who under this Act has held, or has acted as one of the persons holding, an inquiry into matters relating to the subject matter of the charge against the accused; or
(d)
where the accused is an officer of or above the rank of
Captain, is an officer below that rank, shall not be a member of a court-martial; and shall not, if he is an officer to whom any provisions of paragraph (c) applies, act as Judge Advocate at a court-martial.
(3)
The president of a court-martial shall be appointed by order of the convening officer and shall not be below the rank of Major unless in the opinion of the convening officer an officer of or above the rank of Major having suitable qualifications is not available and cannot be made available with due regard to the public service, and in any event the president of a court-martial shall not be below the rank of Captain.
(4)
The members of a court-martial, other than the president, shall be appointed by the convening officer or in such other manner as may be prescribed.
(5)
Where the convening officer is of opinion that it is not possible without serious detriment to the public service to convene a court-martial constituted as provided in subsection (1), he may convene a court-martial consisting of the president and not less than two other officers.
(6)
Where the convening officer —
(a)
appoints a Captain as president of a court-martial, being of opinion that an officer of or above the rank of Major having suitable qualifications is not available and cannot be made available with due regard to the public service; or
(b)
convenes a court-martial consisting of the president and not less than two other officers, being of opinion that it is not possible without serious detriment to the public service to convene a court-martial constituted as provided in subsection (1), the order convening the court-martial shall contain a statement of such opinion, and that statement shall be conclusive.
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Place for sitting of court-martial and adjournment to other places 86.
(1)
Subject to the provisions of this section, a court-martial shall sit at such place (whether within or outside Brunei Darussalam) as may be specified in the order convening the court.
(2)
A court-martial sitting at any place shall, if the convening officer directs it to sit at some other place, and may without any such direction if it appears to the court necessary in the interest of justice to sit at some other place, adjourn for the purpose of sitting at that other place.
Courts-martial: provisions relating to trial
Challenges by accused 87.
(1)
An accused about to be tried by court-martial shall be entitled to object, on any reasonable grounds, to any member of the court, whether appointed originally or instead of another officer.
(2)
For the purpose of enabling the accused to avail himself of the right conferred by subsection (1), the names of the members of the court shall be read over in the presence of the accused before they are sworn and he shall be asked whether he objects to any of these officers.
(3)
Every objection made by the accused to any officer shall be considered by the other officers appointed members of the court.
(4)
If objection is made to the president and not less than one-third of the other members of the court allow it, the court shall adjourn and the convening officer shall appoint another president.
(5)
If the objection is made to a member of the court other than the president and not less than one-half of the members entitled to vote allow it, the member objected to shall retire and the vacancy may, and if otherwise the number of members would be reduced below the legal minimum shall, be filled in the prescribed manner by another officer.
Administration of oaths 88.
(1)
An oath shall be administered to every member of a court-martial and to any person in attendance on a court-martial as Judge
Advocate, officer under instruction, shorthand writer or interpreter.
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(2)
Every witness before a court-martial shall be examined on oath:
Provided that where any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, though not given upon oath, if in the opinion of the court he possesses sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth; however where the evidence is given on behalf of the prosecution, the accused shall not be liable to be convicted unless it is corroborated by some other material evidence in support thereof implicating the accused.
(3)
An oath required to be administered under this section shall be in the prescribed form and shall be administered at the prescribed time by the prescribed person and in the prescribed manner.
Courts-martial to sit in open court 89.
(1)
Subject to the provisions of this section, a court-martial shall sit in open court and in the presence of the accused.
(2)
Nothing in subsection (1) shall affect the power of a court-martial to sit in camera on the ground that it is necessary or expedient in the interest of the administration of justice to do so.
(b)
Without prejudice to that power, a court-martial may order that, subject to any exceptions the court may specify, the public shall be excluded from all or any part of the proceedings of the court if it appears to the court that any evidence to be given or statement to be made in the course of the proceedings or that part, as the case may be, might otherwise lead to the disclosure of any information which would or might be directly or indirectly useful to an enemy.
(3)
A court-martial shall sit in closed court while deliberating on their finding or sentence on any charge.
(4)
A court-martial may sit in closed court on any other deliberation amongst the members.
(5)
Where a court-martial sits in closed court, no person shall be present except the members of the court and such other persons as may be prescribed.
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Dissolution of courts-martial 90.
(1)
Where, whether before or after the commencement of the trial, it appears to the convening officer necessary or expedient in the interests of the administration of justice that a court-martial should be dissolved, the convening officer may by order dissolve the court-martial.
(2)
Without prejudice to the generality of subsection (1), if after the commencement of the trial a court-martial is, by reason of the death of one of the members or for any other reason, reduced below the legal minimum, it shall be dissolved.
(3)
If after the commencement of the trial the president dies or is otherwise unable to attend and the court is not reduced below the legal minimum, then —
(a)
if the senior member of the court is not below the rank of
Captain, the convening officer may appoint him president and the trial shall proceed accordingly; but
(b)
in any other case, the court shall be dissolved.
(4)
Without prejudice to the generality of subsection (1), if after the commencement of the trial it is represented to the convening officer that owing to the sickness or other incapacity of the accused it is impracticable having regard to all the circumstances to continue the trial within a reasonable time, the convening officer may dissolve the court.
(5)
Where a court-martial is dissolved under the previous provisions of this section, the accused may be tried by another court.
Decisions of court-martial 91.
(1)
Subject to the provisions of this section, every question to be determined on a trial by court-martial shall be determined by a majority of the votes of the members of the court.
(2)
In the case of an equality of votes on the finding, the court shall acquit the accused.
(3)
A finding of guilty where the only punishment which the court can award is death shall not have effect unless it is reached with the concurrence of all the members of the court and where on such a finding
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being come to by a majority of the members there is no such concurrence, the court shall be dissolved and the accused may be tried by another court.
(4)
Where the accused is found guilty and the court has power to sentence him either to death or to some less punishment, sentence of death shall not be passed without the concurrence of all the members of the court.
(5)
In the case of an equality of votes on the sentence, or on any question arising after the commencement of a trial except the finding, the president shall have a second or casting vote.
Finding and sentence 92.
(1)
Without prejudice to the provisions of section 89, the finding of a court-martial on each charge shall be announced in open court.
(2)
Any finding of guilty shall be, and be announced as being, subject to confirmation.
(3)
Any sentence of a court-martial, together with any recommendation to mercy, shall be announced in open court, and a sentence of a court-martial shall be, and be announced as being, subject to confirmation.
Power to convict of offence other than that charged 93.
(1)
An accused charged before a court-martial with an offence under this Act may, on failure of proof of the offence having being committed under circumstances involving a higher degree of punishment, be found guilty of an offence as having been committed under circumstances involving a lesser degree of punishment.
(2)
An accused charged before a court-martial with any offence may be found guilty of attempting to commit that offence.
(3)
An accused charged before a court-martial with attempting to commit an offence may be convicted on that charge notwithstanding that it is proved that he actually committed the offence.
(4)
Where an accused is charged before a court-martial under section 72 in respect of attempting to commit a civil offence, he may be convicted on that charge notwithstanding that it is proved that he actually committed the civil offence.
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(5)
Where an accused is charged before a court-martial with an offence against section 72, and the corresponding civil offence is one in proceedings for which, if he had been tried by a civil court for committing the offence in Brunei Darussalam, he might have been found guilty of another civil offence, then if the court finds that he has committed that other civil offence, he may be convicted of an offence against section 72 in respect of the commission of that other civil offence.
(6)
An accused charged before a court-martial with an offence specified in the first column of Schedule may be found guilty of an offence specified in relation thereto in the second column of that Schedule.
Evidence relating to bankers’ books 94.
The provisions of the Bankers’ Books (Evidence) Act (Chapter 107), shall have effect with the following modifications —
(a)
a trial by court-martial and any proceedings leading up to such a trial after the convening and constitution of the court-martial is deemed to be a “legal proceeding” within the meaning of that expression as used in that Act;
(b)
a court-martial is deemed to be a “Court” within the meaning of that expression as used in that Act; and
(c)
the powers conferred by section 7 of that Act (which enables orders to be made for the inspection of bankers’ books for the purposes of legal proceedings) is deemed to be exercisable for the purposes of a court-martial by the convening officer as well as by the court-martial.
Rules of evidence 95.
(1)
Save as otherwise expressly provided in this Act or in any regulations made thereunder, the rules of evidence to be observed in proceedings before a court-martial shall be the same as those observed in criminal proceedings in civil courts in Brunei Darussalam, and no person shall be required in proceedings before a court-martial to answer any question or to produce any document which he could not be required to answer or produce in criminal proceedings before a civil court in Brunei
Darussalam.
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(2)
A court-martial shall take judicial notice of all matters of notoriety, including all matters within the general service knowledge of the court, and of all other matters of which judicial notice would be taken in a civil court in Brunei Darussalam.
Privileges of witnesses and others at courts-martial 96.
A witness before a court-martial or any other person whose duty it is to attend on or before the court-martial shall be entitled to the same immunities and privileges as a witness before the High Court.
Offences in relation to courts-martial by civilians 97.
(1)
Where in Brunei Darussalam any person who is not subject to military law —
(a)
on being duly summoned to attend as a witness before a court-martial and after payment or tender of the reasonable expenses of his attendance, makes default in attending; or
(b)
being in attendance as a witness —
(i)
refuses to take an oath when duly required by a court-martial to do so;
(ii)
refuses to produce any document in his custody or under his control which a court-martial has lawfully required him to produce; or
(iii)
refuses to answer any question which a court-martial has lawfully required him to answer, the president of the court-martial may certify the offence of such person under his hand to a Court of a Magistrate and that court may thereupon inquire into the alleged offence, and after examining any witnesses that may be produced against or on behalf of the person so accused, and after hearing any statement that may be offered in defence, if it seems just, punish or take steps for the punishment of such person in the like manner as if he had committed such offence in a proceeding in the court.
(2)
Where a person not subject to military law is guilty of any contempt towards a court-martial —
(a)
by using insulting or threatening language;
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(b)
by causing any interruption or disturbance in its proceedings;
(c)
by printing observations or using words calculated to influence the members of or witnesses before such court, or to bring such court into disrepute, the president of the court-martial may certify the offence of such person under his hand to a Court of a Magistrate and that court may thereupon inquire into the alleged offence, and after hearing any witnesses that may be produced against or on behalf of the person so accused, and after hearing any statement that may be offered in defence, if it seems just, punish or take steps for the punishment of such person in the like manner as if he had been guilty of contempt of that court.
Affirmations 98.
If —
(a)
a person required by virtue of this Act to take an oath for the purpose of proceedings before a court-martial objects to being sworn, and states as the ground of his objection either that he has no religious belief or that the taking of an oath is contrary to his religious belief; or
(b)
it is not reasonably practicable without inconvenience or delay to administer an oath to such a person in the manner appropriate to his religious belief, he shall be permitted, and may also be required to make a solemn affirmation in the prescribed form instead of taking an oath.
Offences procedure