2. INTRODUCTION - DISCOVERY OF OFFENCES
Whenever an offence is committed, the discovery of the offence may be immediate or delayed.
The discovery of the offence is immediate under the following circumstances:
(1) where the accused is arrested on the spot while committing the offence and is surrendered
to the Armed Forces Authority;
(2) where a report is lodged by any witness to the offence to the Armed Forces Authority.
On the other hand, an offence may be discovered sometime after it has been committed under the
following circumstances:
(a) audit reports reveal that a certain offence has been committed by a certain
personnel of the armed forces;
(b) there is a delay in the reporting of an offence which has already taken
place to the appropriate military authority;
(c) there is a finding of liability by the Board of Inquiry.
3. REPORTING AN OFFENCE
• Generally, any information relating to the commission of an
offence is reported to the police and reduced to writing before
further action can be taken to investigate the offence.
• Under the military justice system, the offence is reported to the
military authority:-
A. the commanding officer or
B. the provost officer.
4. Once the information of the commission of an offence is
reported, the CO must take further action to investigate the
offence. In this aspect the CO is required to take the
following actions:
(1) request the provost marshall or MP officer
to investigate the offence.
(2) Appoint in writing any member of the armed
forces who is under his command to be an
investigating officer to investigate the alleged
offence.
* The provost marshall or provost officer is an officer who is appointed by the
appropriate service chief with the approval of the Armed Forces Council under the
Act as provided under section 94A of the Armed Forces Act 1972. The members of
military corp are officers and servicemen who belong to the Malaysian Military Corp
under the Royal Malaysian Army.
5. INVESTIGATION OF OFFENCES
• Once an investigating officer (I0) has been appointed,
he must carry out the investigation of the alleged
offence as soon as practicable while witnesses
memories are still fresh.
• In carrying out an investigation of an offence, the I0
has to :-
• record witness statements,
• provide an interpreter and
• keep an investigation diary.
6. Recording witness statements
The I0 is entitled to question any person as witnesses whether suspected or
not, so long as he has not been charged with the offence or informed that he
may be prosecuted. He must warn the said person of the following.
(1) Such person will be bound to answer all questions relating to the case
put to him. Provided that such person may refuse to answer any
question which the answer would expose him to a criminal charge or
penalty or forfeiture.
(2) Such person making a statement will be legally bound to state the
truth, whether or not such statement is made wholly or partly in
answer to questions.
(3) At the end of the recording the contents of the statement will be read
back to the witness and he must be given an opportunity to make any
correction, when the witness is satisfied with the statement recorded,
he is required to sign or affix his thumbprint.
7. Where the I0 has reason to believe that the person making a statement has
committed the offence, he has to ensure that the following requirements are
complied with:
(a) the IO must inform him of the nature of the offence;
(b) the IO must caution him as follows:
'You are not obliged to say anything, but anything you say may be given in evidence.'
(c) after being duly cautioned that person must not be cross-examined without his consent, the IO may
ask any questions necessary for the purpose of clarifying a statement made;
(d) any statement made shall be taken down in writing and read to the person making it and allowed to
make any corrections he may wish;
(e) the person making the statement and the IO shall sign the statements; if he refuses to sign, the IO
must record such refusal;
(f) when two or more persons are charged with the same offence and statements are made separately,
the IO will not read the statement of one person to another but each person may be furnished by the
IO with a copy of the statements. If such person desires to make a statement in reply, the IO must
caution him;
(g) a statement made by a person before caution read to him is not rendered inadmissible in evidence
merely for this reason, but in such a case he must be cautioned as soon as possible.
(h) A court-martial may refuse to admit a statement recorded from the accused person if it was not made
and recorded substantially in compliance with rule 29 of the RP..
8. Investigation Diary
The IO must keep a diary recording every act done by
him in the course of the investigation. The IO will
include in the record the following:
(1) the time at which the order for
investigation reached him;
(2) the times at which he commenced and
completed his investigation;
(3) the places visited by him; and
(4) a statement of the facts and
circumstances ascertained through his
investigation.
An accused person will not be entitled either before or in
the course of trial to call for or to inspect any such diary.
9. PREPARING THE CHARGE REPORT
Once the investigation is completed, the IO will submit the following
information to the CO for further action:
(1) the investigation report;
(2) statements of witnesses under rule 28 and if any, the accused's
statement under rule 29;
(3) name of complainant(s);
(4) name of witnesses;
(5) evidence taken or seized.
The CO's office will then prepare a charge report (BAT D 200) based on the
information supplied by the IO in accordance with the Armed Forces (Summary
Jurisdiction) Regulations 1976.
The CO will then evaluate the information available before him in order to
decide whether or not to proceed with the charge.
If the CO decides to proceed with the charge, he must investigate the charge in
accordance with the manner stipulated in the RP.
Otherwise the CO will either condone or dismiss the charge, if he is satisfied
that the charge is groundless or there are special circumstances which justify
its dismissal.
10. reference
• Armed Forces Act 72
• Criminal Procedure Code (Act 593)
• Emperor v Nazir Ahmad Al R 1945 PC 18.
• Armed Forces (Court-Martial) Rules of Procedure 1976 (PU (A) 163)
• Armed Forces (Summary Jurisdiction) Regulations 1976 (PU (A) 161/1976)
Sch 3 Part A (Charge Report).
• Armed Forces (Summary Jurisdiction) Regulations 1976
• Teo Say Eng and Col Wan Normazlan: Military Legal Proceedings in Malaysia
Editor's Notes
Whenever an offence is committed against any provision of the Armed Forces Act 1972, the discovery of the offence may be immediate or delayed depending on the circumstances in which it is committed.
The discovery of the offence is immediate under the following circumstances:
(1) where the accused is arrested on the spot while committing the offence and is surrendered to the Armed Forces Authority;
(2) where a report is lodged by any witness to the offence to the Armed Forces Authority.
On the other hand, an offence may be discovered sometime after it has been committed under the following circumstances:
(a) audit reports reveal that a certain offence has been committed by a certain personnel of the armed forces;
(b) there is a delay in the reporting of an offence which has already taken place to the appropriate military authority;
(c) there is a finding of liability by the Board of Inquiry.
REPORTING AN OFFENCE
Generally, under the civil justice system, where any information relating to the commission of an offence is reported to the police, the information must be reduced to writing before further action can be taken to investigate the offence. Nevertheless the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. Under the military justice system, the information regarding an offence is reported to the relevant military authority. This authority normally is the commanding officer or the provost officer. However there is no mandatory requirement to reduce such information into writing unlike under the civil justice system, it is legally bound to reduce such information to writing.
In the absence of such requirement, it is prudent that the military authority to whom the information is given should reduce it to writing. Furthermore under the Armed Forces (Court-Martial) Rules of Procedure 1976 (hereinafter called RP), where no special provision has been made, the law relating to the criminal procedure for the time being in force in Malaysia will be applied so long as it is not inconsistent with these rules.
Once the information relating to the commission of the offence is reported to the commanding officer, the commanding officer must take further action to investigate the offence. Under the RP the offences will be inquired into in accordance with the provisions of the law for the time being in force regulating the manner inquiring into the offence. In this aspect the commanding officer is required to take the following actions:
(1) request the provost marshall or provost officer or any member of the Corp of Military Police to investigate theoffence. The provost marshall or provost officer is an officer who is appointed by the appropriate service chief with the approval of the Armed Forces Council under the Act as provided under section 94A of the Armed Forces Act 1972. The members of military corp are officers and servicemen who belong to the Malaysian Military Corp under the Royal Malaysian Army.
(2) Appoint in writing any member of the armed forces personnel to investigate the alleged offence. Normally the commanding officer appoints any members of the armed forces personnel who is under his command to be an investigating officer.
INVESTIGATION OF OFFENCES
Once an investigating officer (I0) has been appointed, he must carry out the investigation of the alleged offence as soon as practicable while witnesses memories are still fresh.
In carrying out an investigation of an offence, the I0 has to record witness statements, provide an interpreter and keep an investigation diary.
The I0 is entitled to question any person whether suspected or not if he believes useful information can be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted. While examining a person whom he believes may assist the investigation, he must warn the said person of the following.
(1) Such person will be bound to answer all questions relating to such case put to him. Provided that such person may refuse any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.
(2) Such person making a statement will be legally bound to state the truth, whether or not such statement is made wholly or partly in answer to questions.
(3) At the end of the recording the contents of the statement will be read back to the witness and he must be given an opportunity to make any correction if he wishes to do so when the witness is so satisfied with the statement so far recorded, he is required to sign or affix his thumbprint.
Where the I0 has reason to believe that the person making a statement has committed the offence, he has to ensure that the following requirements are complied with:
(a) the investigation officer must inform him of the nature of the offence;
(b) the investigating officer must caution him as follows:
'You are not obliged to say anything, but anything you say may be given in evidence.'
(c) a person making a statement after being duly cautioned must not be cross-examined without his express consent, except that the investigating officer may ask any questions necessary for the purpose of clarifying a statement made;
(d) any statement made shall be taken down in writing and read to the person making it and he shall be invited to introduce any corrections he may wish;
(e) the person making the statement and the investigating officer shall sign the statements; where the person who has made the statement refuses to sign, the investigating officer must record such refusal;
(f) when two or more persons are charged with the same offence and statements are made separately, the investigating officer will not read the statement of one person to another and nothing will be said or done by him to invite a reply but each person may be furnished by the investigating officer with a copy of the statements. If such person desires to make a statement in reply, the investigating officer must caution him;
(g) a statement made by a person before there is time to caution him is not rendered inadmissible in evidence merely for this reason, but in such a case he must be cautioned as soon as possible.
(h) A court-martial may refuse to admit a statement recorded from the accused person if it was not made and recorded substantially in compliance with rule 29 of the RP. To provide the service of interpreter In recording a statement from a witness or an accused person, the IO may appoint an interpreter or be the interpreter himself whenever necessary.
The investigating officer must keep a diary recording every act done by him in the course of the investigation. The investigating officer will include in the record the following:
(1) the time at which the order for investigation reached him;
(2) the times at which he commenced and completed his investigation;
(3) the places visited by him; and
(4) a statement of the facts and circumstances ascertained through his investigation.
An accused person will not be entitled either before or in the course of trial to call for or to inspect any such diary.
Once the investigation is completed, the IO will submit the following information to the Commanding Officer for further action:
(1) the investigation report;
(2) statements of witnesses under rule 28 and if any, the accused's statement under rule 29;
(3) name of complainant(s);
(4) name of witnesses;
(5) evidence taken or seized.
The CO's office will then prepare a charge report based on the information supplied by the IO in accordance with the Armed Forces (Summary Jurisdiction) Regulations 1976.
The CO will then evaluate the information available before him in order to decide whether or not to proceed with the charge. If the CO decides to proceed with the charge, he must investigate the charge in accordance with the manner stipulated in the RP. Otherwise the CO will either condone or dismiss the charge, if he is satisfied that the charge is groundless or there are special circumstances which justify its dismissal.
