Commonwealth Numbered Acts
[Index]
[Table]
[Search]
[Search this Act]
[Notes]
[Noteup]
[Previous]
[Next]
[Download]
[Help]
Defence Legislation Amendment Act 1984 No. 164 of 1984 - SECT 44
44. Part VI of the Principal Act is repealed and the following Part is
substituted:
"PART VI-INVESTIGATION OF SERVICE OFFENCES
"Division 1-Preliminary Interpretation
"101. (1) In this Part, unless the contrary intention appears-
'confession' includes any admission or incriminating statement;
'interview', in relation to a person, includes asking the person questions in
the course of investigating a service offence;
'investigating officer' means-
(a) a service policeman; or
(b) an officer, warrant officer or non-commissioned officer (not being a
service policeman) engaged in the investigation of a service offence;
'relevant act', in relation to a service offence, means-
(a) an act or omission that constituted, or was done or omitted to be
done, as the case requires, in connection with, the commission of the
service offence; or
(b) an act or omission believed by an investigating officer investigating
the service offence to have constituted, or to have been done or
omitted to have been done, as the case requires, in connection with,
the commission of the service offence;
'relevant person', in relation to a relevant act, means a person who was seen
by another person doing or omitting to do, as the case requires, the relevant
act;
'serious service offence' means a service offence punishable by a maximum
punishment, or a fixed punishment, of imprisonment for life or a period
exceeding 6 months;
'suspect', in relation to a relevant act, means a person whom an investigating
officer investigating the service offence in relation to the relevant act
believes may be a person who did or omitted to do, as the case requires, the
relevant act;
'telephone' includes telex, radio or similar facilities;
'witness', in relation to a relevant act, means a person who saw another
person doing or omitting to do, as the case requires, the relevant act.
"(2) For the purposes of this Part, a person is in custody in respect of a
service offence if he is being detained as a person charged with the service
offence or as a person arrested for, but not yet charged with, the service
offence.
"(3) If a person is not in custody in respect of a particular service offence
(in this sub-section referred to as 'the relevant service offence'), but-
(a) is in custody, or is undergoing detention or imprisonment, in respect
of another service offence or is in custody for another reason; or
(b) in connection with the investigation of the relevant service offence,
is in the company of an investigating officer, and an investigating
officer concerned in the investigation of the relevant service
offence-
(c) in the case of a person to whom paragraph (a) applies-has come to the
belief, or has given the person reasonable grounds for believing that
he has come to the belief, that it is probable that the person
committed the relevant service offence; or
(d) in the case of a person to whom paragraph (b) applies-would not allow
the person to leave, or has given the person reasonable grounds for
believing that he would not be allowed to leave, if he wished to do
so, then, unless the contrary intention appears, the provisions of
this Part have effect as if the person were in custody in respect of
the relevant service offence.
"(4) Unless the contrary intention appears, a reference in this Part to
custody includes a reference to custody that was unlawfully commenced or is
being unlawfully continued.
"(5) Unless the contrary intention appears, a reference in this Part to a
service offence includes a reference to a service offence that an
investigating officer has reasonable grounds for believing is being, has been,
or will be committed.
"(6) Without prejudice to the interpretation of a provision of this Act (other
than a provision of this Part)-
(a) it is the duty of an investigating officer to comply with the
provisions of this Part in exercising his powers, or performing his
duties, as an investigating officer; and
(b) where an investigating officer contravenes a provision of this Part
that is applicable to him-the contravention is not punishable as a
service offence unless a penalty is provided by this Act or the
regulations in respect of the contravention.
"(7) Nothing in sub-section (6) shall be taken to affect-
(a) the operation of any provision of this Act or the regulations relating
to the exclusion of evidence; or
(b) any civil proceedings.
"Division 2-Duties of investigating officers when interviewing suspects
Interpretation
"101A. Where the investigating officer in charge of investigating a service
offence has grounds for believing that a person who is in custody in respect
of the service offence has committed another service offence, the person
shall, for the purposes of this Division, be deemed to be in custody in
respect of both of the service offences. Investigating officer may question
persons
"101B. (1) Where an investigating officer who is investigating a service
offence believes that a person (including a person believed by the
investigating officer to have committed the service offence) may be able to
furnish information that may assist the investigating officer in his
investigation of the service offence, the investigating officer may, subject
to this Part, ask the person questions relevant to his investigation of the
service offence.
"(2) A person who is asked a question by an investigating officer under
sub-section (1) is not required to answer the question. Investigating officers
to inform persons of rights
"101C. (1) Where a person is in custody, an investigating officer shall not
ask him any questions or ask him to do any thing, for a purpose connected with
the investigation of a service offence, unless the investigating officer has
told him his name and rank.
"(2) Where, at or after the time when a person comes into custody in respect
of a service offence, an interview of the person in connection with the
service offence is being conducted by an investigating officer, the
investigating officer shall not-
(a) ask him any questions, or ask him to do any thing, for a purpose
connected with the investigation of the service offence; or
(b) cause or permit another person to ask him any questions, or ask him to
do any thing, for a purpose connected with the investigation of the
service offence, unless an investigating officer has, at or since the
commencement of the interview-
(c) cautioned the person in the manner described in sub-section 101D (2);
or
(d) informed the person, or caused the person to be informed, in a
language in which the person is reasonably fluent, of the matters
referred to in sub-paragraphs 101D (2) (a) (i), (ii) and (iii).
"(3) Sub-section (2) does not apply in relation to asking a person to take
part in an identification parade conducted in accordance with section 101N.
Persons to be charged or summoned to be given caution
"101D. (1) After an investigating officer has decided to charge a person with
a service offence, to seek the issue of a summons against a person for a
service offence or to recommend that a person be so charged or that a summons
be so sought-
(a) an investigating officer shall not ask the person any question, or
request the person to do any thing, for a purpose connected with the
investigation of the service offence unless an investigating officer
has, at or since the commencement of the interview in which the
question is asked or the request is made, cautioned the person in the
manner described in sub-section (2); and
(b) the investigating officer who made the decision shall take reasonable
steps to ensure that other investigating officers comply with
paragraph (a).
"(2) The caution shall be given to a person in the following manner:
(a) by handing him a document, in accordance with the prescribed form and
written in a language in which the person is reasonably fluent,
informing him to the following effect:
(i) that he is not obliged to, but may if he wishes, answer any
questions, or do any thing, asked of him by an investigating
officer and that anything said or done by him may be used in
evidence;
(ii) that he may communicate with a legal practitioner and have, as
provided by this Part, the assistance of a legal practitioner
while he is being questioned;
(iii) that he may, as provided by this Part, communicate with a
relative or friend; and
(b) by reading a copy of the document, or causing a copy of the document
to be read, to him in the language in which it is written, unless it
is impracticable for the document to be so read to him.
"(3) Sub-section (1) does not apply in relation to asking a person to take
part in an identification parade conducted in accordance with section 101N.
Access to legal practitioner
"101E. (1) In this section, 'investigative action', in relation to a person
who is in custody in respect of a service offence, means action taken in the
presence of the person for a purpose connected with the investigation of the
service offence, and includes asking the person questions or further questions
for such a purpose.
"(2) Where an investigating officer concerned in the investigation of a
service offence-
(a) is informed by a person who is in custody in respect of the service
offence that he wishes to consult a legal practitioner; or
(b) has reasonable grounds for believing that a person who is in custody
in respect of the service offence wishes to consult a legal
practitioner, the investigating officer-
(c) shall forthwith, but after complying with sub-section 101F (3) (if
applicable), cause reasonable facilities to be provided to enable the
person to communicate with a legal practitioner of his choice and to
arrange for a legal practitioner of his choice to be present while any
investigative action is being taken by an investigating officer in
relation to the person; and
(d) shall not take, and shall not cause or permit another person to take,
any investigative action in relation to the person until the person
has had a reasonable opportunity to communicate with a legal
practitioner of his choice.
"(3) Where a person who is in custody in respect of a service offence arranges
for a legal practitioner to be present while investigative action is being
taken by an investigating officer in relation to him, no such action shall be
taken by an investigating officer until the legal practitioner has arrived, or
a period that is reasonable in the circumstances has been allowed for his
arrival, unless the investigating officer has reasonable grounds for believing
that it is necessary to take the investigative action without delay in order
to-
(a) avoid danger of the death of, or serious injury to, any person;
(b) avoid serious damage to property; or
(c) prevent concealment, loss or destruction of evidence of, or relating
to, the service offence.
"(4) Where a legal practitioner attends to consult with a person who is in
custody in respect of a service offence, or to be present while investigative
action is being taken by an investigating officer in relation to a person who
is in custody in respect of a service offence-
(a) reasonable facilities shall be made available to enable the legal
practitioner to consult with and advise the person without being
overheard;
(b) no investigative action shall be taken by an investigating officer in
relation to the person until the legal practitioner has had a
reasonable opportunity to consult with and advise the person;
(c) the legal practitioner is entitled to be present while any
investigative action is being taken by an investigating officer in
relation to the person and to give advice to the person on any matter
on which his advice is sought by the person, but only while he does
not otherwise interfere with the taking of the investigative action;
and
(d) if the legal practitioner is a legal officer-the legal officer shall
consult with and advise the person without expense to the person.
"(5) Where an investigating officer gives a person who is not in custody in
respect of a service offence a caution of a kind referred to in sub-section
101C (2) before he commences to interview the person or during an interview
with the person, the preceding sub-sections of this section apply as if the
person were in custody in respect of the service offence during the period
commencing when the caution is given and ending when the interview terminates
or the person comes into such custody, whichever first occurs.
"(6) The requirements of this section apply only if, and to the extent that,
the exigencies of service permit. Lists of legal officers
"101F. (1) In this section, 'prescribed place' means a place prescribed for
the purposes of this section.
"(2) Subject to and in accordance with the regulations, the Judge Advocate
General shall establish and, so far as it is reasonably practicable to do so,
update at such intervals as the Judge Advocate General thinks appropriate, a
list, in relation to each prescribed place, of the names of legal officers who
are willing to assist persons who are in custody at, or in the vicinity of,
the prescribed place.
"(3) Where a person is in custody in respect of a service offence at, or in
the vicinity of, a prescribed place, an investigating officer shall furnish to
the person a copy of the list of the names of legal officers kept in relation
to the prescribed place if-
(a) the person, to the knowledge of the investigating officer, seeks to
communicate, but is unable to communicate, with a legal practitioner
of his choice; or
(b) the investigating officer has reasonable grounds for believing that
the person wishes to communicate with a legal practitioner but does
not know of a legal practitioner whom he could consult.
"(4) The requirements of sub-section (3) apply only if, and to the extent
that, the exigencies of service permit.
"(5) A reference in this section to a person in custody in respect of a
service offence shall be read-
(a) as not including a reference to a person who is undergoing a
punishment of detention or imprisonment in respect of the service
offence or is in custody under sub-section 172 (3A), (4) or (5) in
respect of the service offence; and
(b) as including a reference to a person (other than a person referred to
in paragraph (a)) who is being, or will be, interviewed by an
investigating officer in connection with the investigation of the
service offence and has been given a caution of a kind referred to in
sub-section 101C (2).
Communication with relative or friend
"101G. (1) Subject to sub-section (2), where an investigating officer-
(a) is informed by a person who is in custody in respect of a service
offence that he wishes to communicate with a relative or friend; or
(b) has reasonable grounds for believing that a person who is in custody
in respect of a service offence wishes to communicate with a relative
or friend, the investigating officer shall, as soon as practicable,
cause reasonable facilities to be provided to enable the person to
communicate with a relative or friend of his choice.
"(2) An investigating officer is not required to comply with sub-section (1)
in respect of a person who is in custody in respect of a service offence if
the investigating officer believes on reasonable grounds that the
non-compliance is necessary for the purpose of preventing-
(a) the escape of an accomplice;
(b) the concealment, loss, destruction or fabrication of evidence of, or
relating to, the service offence; or
(c) the intimidation of a witness.
"(3) The requirements of sub-section (1) apply only if, and to the extent
that, the exigencies of service permit.
"(4) A reference in this section to a person who is in custody in respect of a
service offence shall be read-
(a) as not including a reference to a person who is undergoing a
punishment of detention or imprisonment in respect of the service
offence or is in custody under sub-section 172 (3A), (4) or (5) in
respect of the service offence; and
(b) as including a reference to a person (other than a person referred to
in paragraph (a)) who is being, or will be, interviewed by an
investigating officer in connection with the investigation of the
service offence and has been given a caution of a kind referred to in
sub-section 101C (2).
Treatment of persons in custody
"101H. (1) A person shall, while in custody in respect of a service offence,
be treated with humanity and with respect for human dignity.
"(2) A person shall not, while in custody in respect of a service offence, be
subjected to cruel, inhuman or degrading treatment.
"(3) Where a member of the Defence Force responsible for the custody of a
person-
(a) is informed by the person that he wishes to be provided with medical
treatment in respect of illness or an injury; or
(b) has reasonable grounds for believing that the person wishes to be
provided with, or requires, medical treatment in respect of illness or
an injury, the member of the Defence Force shall, forthwith, take such
reasonable action as is necessary to provide the person with medical
treatment.
"(4) Where a person is in custody in respect of a service offence, the
investigating officer in charge of investigating the service offence shall
take all reasonable steps to ensure that the person is provided with
reasonable refreshments and reasonable access to toilet facilities.
"(5) Where a person who is in custody in respect of a service offence is to be
brought before a service tribunal while still in custody, the investigating
officer in charge of investigating the service offence shall take all
reasonable steps to ensure that the person is provided with facilities to wash
or shower, and with the opportunity to obtain, and change into, other clothes,
before he is brought before the service tribunal.
"(6) Where an investigating officer has reasonable grounds for believing that
a person in custody is unable, by reason of inadequate knowledge of the
English language or any physical disability, to communicate orally with
reasonable fluency in the English language, the investigating officer shall
not ask the person any questions in connection with the investigation of a
service offence unless-
(a) a person competent to act as interpreter is present and acts as
interpreter during the questioning;
(b) the investigating officer questions the person in a language in which
both he and the person are able to communicate with reasonable
fluency, or by any other means by which he and the person are able to
communicate with reasonable proficiency; or
(c) he has reasonable grounds for believing that it is necessary to
question the person otherwise than in accordance with paragraph (a) or
(b) without delay in order to avoid danger of the death of, or serious
injury to, any person or serious damage to property.
"(7) The provisions of sub-section (1) or (2) shall not be taken to be
contravened by the taking of any action by an investigating officer in
accordance with section 101L or by the taking of necessary custodial measures.
"Division 3-Confessions
Admissibility of confessional evidence
"101J. (1) Evidence of a confession made by a person in the presence of an
investigating officer is not admissible in proceedings against the person for
a service offence unless the service tribunal, or, in the case of a court
martial, the judge advocate of the court martial, is satisfied that the
confession was made voluntarily.
"(2) For the purposes of sub-section (1), a confession that is obtained from a
person in consequence of-
(a) the use of physical violence, or a threat of physical violence, to any
person; or
(b) the making of a promise, threat or other inducement (not being
physical violence or a threat of physical violence) likely to cause
the person to make a confession that is untrue, shall be deemed not to
be made voluntarily. Admissibility of oral confessions
"101K. (1) Subject to sub-section (10), in proceedings against a person (in
this section referred to as the 'accused') before a service tribunal in
respect of a serious service offence, evidence by an investigating officer of
a confession made by the accused in his presence, after the proclaimed date,
is not admissible on behalf of the prosecution unless the requirements of
sub-section (2), (3) or (4) are complied with in respect of the interview
during which the confession is alleged to have been made.
"(2) This sub-section is complied with in respect of an interview-
(a) if 2 sound recordings of everything said by and to the accused during
the interview are made by the one multiple sound recording apparatus;
or
(b) where a multiple sound recording apparatus is not available at the
place of interview for use by the investigating officer conducting the
interview-if one sound recording of everything said by and to the
accused during the interview is made by a sound recording apparatus
and a copy of the sound recording is made as soon as practicable
thereafter, and the requirements of sub-sections (5) and (6) are
observed in respect of the sound recordings.
"(3) This sub-section is complied with in respect of an interview if, at the
time of the interview or as soon as practicable thereafter, a record in
writing is made, either in English or in another language used by the accused
during the interview, of everything said by and to the accused during the
interview and-
(a) the record, with or without alteration, is acknowledged, in writing in
the prescribed manner, by the accused to be a full and correct record
and a copy of the record as so acknowledged is given to him; and
(b) if the language used by the accused during the interview is a language
other than English but the record is made in English-the record is
read to the accused, in the language used by him during the interview,
before he so acknowledges it.
"(4) This sub-section is complied with in respect of an interview if-
(a) at the time of the interview or as soon as practicable thereafter, a
record in writing is made, either in English or in another language
used by the accused during the interview, of everything said by and to
the accused during the interview;
(b) as soon as practicable after the record is made, the record is read to
the accused in the language used by him during the interview and a
copy of the record is given to him;
(c) the accused is given the opportunity to interrupt the reading at any
time for the purpose of drawing attention to any error or omission
that he claims has been made in or from the record and, at the end of
the reading, the accused is given the opportunity of stating whether
he claims that there are any errors in or omissions from the record,
in addition to any to which he has drawn attention during the reading;
(d) either-
(i) 2 sound recordings are made by the one multiple sound recording
apparatus of the reading referred to in paragraph (b) and of
everything said by and to the accused as a result of compliance
with paragraph (c) and the requirements of sub-sections (5) and
(6) are observed in respect of the sound recordings; or
(ii) an appropriate witness is present when the requirements of
paragraphs (b) and (c) are complied with and-
(A) a record in writing is made of everything said by and to
the accused as a result of compliance with paragraph (c)
while it is being said or as soon as practicable
thereafter; and
(B) the appropriate witness signs a certificate in the
prescribed form certifying that paragraphs (b) and (c)
were complied with in his presence and that the record is
a full and correct record; and
(e) before conducting the reading referred to in paragraph (b), an
explanation, in accordance with the prescribed form, is given to the
accused of the procedure that will be followed for the purpose of
compliance with that paragraph and paragraphs (c) and (d).
"(5) Where 2 sound recordings are made as referred to in paragraph (2) (a) or
sub-paragraph (4) (d) (i), the investigating officer in charge of the making
of the sound recordings shall-
(a) hand one of the sound recordings to the accused;
(b) inform the accused that the other sound recording will be retained by
the Defence Force and may be used in evidence; and
(c) advise the accused to make arrangements for the safe-keeping of the
sound recording handed to him so that it will be available for
comparison with the sound recording retained by the Defence Force and,
if requested to do so by the accused, afford the accused an
opportunity of making arrangements for the safe-keeping of the sound
recording on his behalf.
"(6) Where a sound recording has been handed to a person in accordance with
sub-section (5), the investigating officer in charge of the investigation
shall, upon request, provide, as soon as practicable, reasonable facilities to
the accused or his legal practitioner to enable the sound recording to be
reproduced in sound.
"(7) For the purposes of sub-section (1), the requirements of sub-section (4)
shall be taken to be complied with in respect of an interview if, where the
explanation referred to in paragraph (4) (e) is given to the accused after
paragraph (4) (a) has been complied with in respect of the interview, the
actions of the accused prevent the following of the procedure that would, but
for this sub-section, be required to be followed for the purposes of
compliance with paragraphs (4) (b), (c) and (d).
"(8) In proceedings against a person before a service tribunal, the burden of
satisfying the service tribunal, or, in the case of a court martial, the judge
advocate of the court martial, that, in relation to evidence to which this
section applies, the requirements of this section have been complied with lies
on the prosecution.
"(9) Subject to the power of a service tribunal, or, in the case of a court
martial, the judge advocate of the court martial, to exclude evidence-
(a) on the ground of unfairness to the accused;
(b) on the ground that it is evidence of a confession not shown to have
been made voluntarily; or
(c) otherwise in the interests of justice, the prosecution is not
prevented from leading evidence of a confession by reason only of
anything said by the accused, during, or at the end of, the reading to
him of a record in writing containing the confession, concerning the
accuracy of the record, but this sub-section does not prevent a judge
advocate from directing the members of a court martial with respect to
the weight to be accorded to the statement as evidence.
"(10) A service tribunal, or, in the case of a court martial, the judge
advocate of the court martial, may admit evidence of a confession
notwithstanding that the requirements of this section have not been complied
with, or that there is insufficient evidence of compliance with those
requirements, if, having regard to the nature of, and the reasons for, the
non-compliance or insufficiency of evidence and any other relevant matters,
the service tribunal or the judge advocate, as the case may be, is satisfied
that, in the special circumstances of the case, admission of the evidence
would not be contrary to the interests of justice.
"(11) Where the judge advocate of a court martial, in pursuance of sub-section
(10), permits evidence to be given before the members of the court martial,
the judge advocate shall, if he considers that the interests of justice so
require, inform the members of the court martial of the non-compliance with
the requirements of this section, or of the absence of sufficient evidence of
compliance with those requirements, and give the members of the court martial
such warning concerning the evidence as he thinks appropriate in the
circumstances.
"(12) A reference in this section to a multiple sound recording apparatus is a
reference to a sound recording apparatus-
(a) capable of making 2 or more recordings of the same sound at the one
time; or
(b) that, at the same time as, or immediately after, it makes one
recording, automatically makes a copy of the recording.
"(13) A reference in this section to an interview includes a reference to any
occasion on which anything is said by the accused in the presence of an
investigating officer.
"(14) A reference in sub-section (4) to an appropriate witness is a reference
to-
(a) a person included in a prescribed class of persons;
(b) a legal practitioner advising the accused; or
(c) a relative or friend of the accused who is present at the reading
referred to in paragraph (4) (b) at the request or with the approval
of the accused.
"Division 4-Other investigative action Fingerprints, photographs, &c.
"101L. (1) An investigating officer who is an officer or warrant officer may
take, or cause to be taken, prints of the hands, fingers, feet or toes, sound
recordings of the voice, samples of the handwriting, or photographs, of a
person who is in lawful custody in respect of a service offence if-
(a) the investigating officer believes on reasonable grounds that it is
necessary to do so for the purpose of establishing who the person is
or of identifying the person as the person who committed the service
offence or of providing evidence of, or relating to, the service
offence;
(b) the investigating officer believes on reasonable grounds that the
person has committed another service offence and the prints,
recordings, samples or photographs are to be taken for the purpose of
identifying the person as the person who committed the other service
offence or of providing evidence of, or relating to, the other service
offence; or
(c) the investigating officer has the consent in writing of the person to
do so.
"(2) Except as provided in sub-section (1) or in accordance with an approval
under sub-section (4), or for the purposes of section 101K or sub-section 101N
(5), an investigating officer shall not-
(a) take, or cause to be taken, a print, recording, sample or photograph
of a kind referred to in sub-section (1) in respect of a person who is
in custody in respect of a service offence; or
(b) require any other person to submit to the taking of any such print,
recording, sample or photograph.
"(3) An investigating officer who is an officer or warrant officer may-
(a) make application to an authorized officer in person; or
(b) if it is impracticable for him to make application to an authorized
officer in person-make application to an authorized officer by
telephone, for approval to take, or cause to be taken, prints of the
hands, fingers, feet or toes, sound recordings of the voice, samples
of the handwriting, or photographs, of-
(c) a person who is in lawful custody in respect of a service offence; or
(d) a person against whom proceedings have been instituted under section
87 in respect of a service offence.
"(4) The authorized officer may, if he thinks it proper in all the
circumstances, give his approval, in writing, to the taking of the prints,
recordings, samples or photographs, as the case may be.
"(5) Where the application was made to the authorized officer by telephone,
the authorized officer shall cause the instrument of approval to be forwarded
to the applicant.
"(6) An investigating officer may use such reasonable force as may be
necessary in acting in accordance with sub-section (1) or in pursuance of an
approval of an authorized officer under sub-section (4). Identification by
means of photographs
"101M. (1) Where a suspect in relation to a relevant act in relation to a
service offence is in custody, an investigating officer investigating the
service offence shall not show a photograph of a person, or a series of
photographs of persons, to a witness to the relevant act for the purpose of
ascertaining, or obtaining evidence of, the identity of a relevant person in
relation to the relevant act unless-
(a) the suspect has refused to take part in an identification parade; or
(b) the holding of an identification parade would be-
(i) unfair to the suspect; or
(ii) impracticable in all the circumstances.
"(2) Where an investigating officer investigating a service offence shows a
photograph of a person, or a series of photographs of persons, to a witness to
a relevant act in relation to the service offence for the purpose of
ascertaining, or obtaining evidence of, the identity of a relevant person in
relation to the relevant act, the investigating officer-
(a) shall not, in doing so, act unfairly towards a suspect in relation to
the relevant act or suggest to the witness that a particular
photograph is the photograph of such a suspect or of a person who is
being sought by the police or by the Defence Force in respect of a
civil court offence, an overseas offence or a service offence;
(b) shall keep, or cause to be kept, a record identifying each photograph
or series of photographs that is shown to the witness; and
(c) shall, upon application by a suspect in relation to the relevant act-
(i) provide the suspect with a copy of the record so kept; and
(ii) afford the suspect a reasonable opportunity to inspect each
photograph or series of photographs shown to the witness.
"(3) Where a suspect in relation to a relevant act in relation to a service
offence is in custody, an investigating officer investigating the service
offence shall not show a picture of the kind known as an 'Identikit' picture
or a picture of a similar kind, or a series of pictures of the kind known as
an 'Identikit' picture or a series of pictures of a similar kind, to a witness
to the relevant act for the purpose of assisting the witness to describe the
features of a relevant person in relation to the relevant act.
"(4) Nothing in sub-section (3) precludes an investigating officer from
obtaining the assistance of a witness to a relevant act in relation to a
service offence in the preparation of a picture of the kind known as an
'Identikit' picture or a picture of a similar kind.
"(5) Where, after an investigating officer investigating a service offence has
shown a witness to a relevant act in relation to the service offence a picture
or series of pictures for the purpose of assisting the witness to describe the
features of a relevant person in relation to the relevant act, a suspect in
relation to the relevant act comes into custody, the investigating officer in
charge of investigating the service offence shall, unless it is impracticable
to do so, cause the witness to attend an identification parade in relation to
the suspect.
"(6) Where, after a witness to a relevant act in relation to a service offence
has been shown a picture or series of pictures for the purpose of assisting
the witness to describe the features of a relevant person in relation to the
relevant act, a person is charged with the service offence, the investigating
officer in charge of investigating the service offence shall, upon application
by the person, provide him with particulars of the picture or series of
pictures that was shown to the witness and the comments (if any) of the
witness concerning the picture or series of pictures.
"(7) Where a suspect in relation to a relevant act in relation to a service
offence is in custody and an investigating officer investigating the service
offence believes on reasonable grounds that a person who is not in custody is
a relevant person in relation to the relevant act-
(a) sub-section (1) shall not be taken to prevent an investigating officer
from showing a photograph of a person, or a series of photographs of
persons, to a witness to the relevant act for the purpose of
ascertaining, or obtaining evidence of, the identity of the other
person; and
(b) sub-section (3) shall not be taken to prevent an investigating officer
from showing a picture of the kind known as an 'Identikit' picture or
a picture of a similar kind, or a series of pictures of the kind known
as an 'Identikit' picture or a series of pictures of a similar kind,
to a witness to the relevant act for the purpose of assisting the
witness to describe the features of a relevant person in relation to
the relevant act (other than the suspect).
Identification parades
"101N. (1) An investigating officer investigating a service offence shall not
cause or permit an identification parade to be held for the purpose of
ascertaining whether a witness to a relevant act in relation to the service
offence can identify a suspect in relation to the relevant act as a relevant
person in relation to the relevant act unless the suspect has agreed to the
holding of the parade and has been informed by an investigating officer in
writing in a language in which he is reasonably fluent and, if practicable,
orally in such a language-
(a) that he is entitled to refuse to agree to the holding of the parade;
(b) that, if he does not agree to the holding of the parade and take part
in the parade, evidence may be given, in any proceedings with respect
to the service offence, of any identification of him by the witness as
a result of-
(i) having seen a photograph or series of photographs; or
(ii) having seen him otherwise than during an identification parade;
(c) that, if he does take part in the identification parade, evidence may
be given, in any proceedings with respect to the service offence-
(i) of any identification made by the witness;
(ii) of any doubts expressed by the witness, during or immediately
following the holding of the parade; and
(iii) of any unfairness in the conducting of the parade; and
(d) that he may have present, during the holding of the parade, a legal
practitioner or other person of his choice if arrangements can be made
for the legal practitioner or other person to be present within a
reasonable time.
"(2) Where the investigating officer informs the suspect as provided in
sub-section (1), the investigating officer shall ask the suspect to sign an
acknowledgment, in accordance with the prescribed form, of the fact that he
has been so informed and of the date on which, and the time at which, he was
so informed.
"(3) Where it is necessary, in proceedings with respect to a service offence,
for a service tribunal to determine whether an investigating officer has
informed a person as provided in sub-section (1) and an acknowledgment of the
kind referred to in sub-section (2), signed by the person, is not produced in
evidence, the service tribunal shall presume, unless the contrary is proved,
that the person was not so informed.
"(4) Where an identification parade is held in relation to a suspect in
relation to a relevant act in relation to a service offence, for the purpose
of ascertaining whether a witness to the relevant act can identify the suspect
as a relevant person in relation to the relevant act, the investigating
officer responsible for conducting the parade-
(a) shall arrange and conduct the parade in such a manner as will not
unfairly prejudice the suspect; and
(b) shall, as far as he is able to do so, ensure that nothing in the
arranging and conducting of the parade, or in what happens during the
conducting of the parade, suggests, or is likely to suggest, to the
witness which of the persons included in the parade is the suspect.
"(5) The investigating officer responsible for conducting the identification
parade shall-
(a) cause-
(i) at least one photograph, if practicable in colour, to be taken
of the identification parade while it is being conducted; or
(ii) a videotape recording of the parade to be taken; and
(b) cause to be recorded particulars of-
(i) what happens during the parade (including particulars of any
words spoken by the witness and of any doubts expressed, and
any gestures made, by the witness); and
(ii) the name, address and occupation of each person (other than the
suspect) who is included in the parade and consents to the
recording of those particulars.
"(6) The suspect is entitled, upon request to the investigating officer
responsible for conducting the identification parade, to be provided with-
(a) if a photograph of the identification parade has been taken in
pursuance of paragraph (5) (a)-a copy of the photograph;
(b) if a videotape recording of the identification parade has been taken
in pursuance of paragraph (5) (a)-reasonable facilities to enable the
videotape recording to be reproduced in images and, if practicable,
sound; and
(c) a copy of the record made in pursuance of sub-paragraph (5) (b) (i).
Searches of arrested persons
"101P. (1) An investigating officer may, upon lawfully taking a person into
custody in respect of a service offence, search the person, the clothing he is
wearing and any property under his immediate control if the investigating
officer believes on reasonable grounds that it is necessary to do so-
(a) for the purpose of ascertaining whether there is concealed on the
person, in his clothing or in that property a weapon or other thing
capable of being used to-
(i) inflict death or bodily injury; or
(ii) assist him to escape from custody; or
(b) for the purpose of preventing the concealment, loss or destruction of
evidence of, or relating to, the service offence.
"(2) Sub-section (1) does not authorize the investigating officer to remove,
or to require the person to remove, any clothing that the person is wearing.
"(3) The investigating officer may seize-
(a) any weapon or other thing of a kind referred to in paragraph (1) (a);
or
(b) any thing that he has reasonable grounds to believe is a thing-
(i) with respect to which a service offence has been committed;
(ii) that will afford evidence of the commission of a service
offence; or
(iii) that was used, or is intended to be used, for the purpose of
committing a service offence, being a weapon or thing found in
the course of the search.
"(4) Nothing in this section shall be taken to affect the operation of section
95A or 178A. Medical examinations
"101Q. (1) An investigating officer may arrange for a medical practitioner to
examine a person in lawful custody in respect of a service offence for the
purpose of securing evidence of, or relating to, the service offence if, and
only if, the investigating officer believes on reasonable grounds that the
examination is likely to provide such evidence and-
(a) the person has given his consent in writing; or
(b) an authorized officer has, under sub-section (4), approved the
examination.
"(2) An investigating officer may arrange for a medical practitioner to take a
specimen from a person in lawful custody in respect of a service offence for
the purpose of having the specimen analysed or otherwise examined if, and only
if, the investigating officer believes on reasonable grounds that analysis or
other examination of the specimen is likely to provide evidence of, or
relating to, the service offence and-
(a) the person has given his consent in writing; or
(b) an authorized officer has, under sub-section (4), approved the taking
of the specimen.
"(3) An investigating officer may-
(a) make application to an authorized officer in person; or
(b) if it is impracticable for him to make application to an authorized
officer in person-make application to an authorized officer by
telephone, for an approval for the purpose of sub-section (1) or (2).
"(4) The authorized officer may, if he is satisfied that the investigating
officer has reasonable grounds for the belief referred to in sub-section (1)
or (2), whichever is applicable, give his approval by instrument in writing.
"(5) Where the application was made to the authorized officer by telephone,
the authorized officer shall cause the instrument of approval to be forwarded
to the investigating officer.
"(6) Before arranging for a medical practitioner to examine a person in lawful
custody or to take a specimen from such a person, an investigating officer
shall inquire whether the person wishes to have a medical practitioner of his
choice present during the examination or the taking of the specimen, as the
case may be, and, if the person states that he does so wish, shall-
(a) provide reasonable facilities to enable the person to arrange for a
medical practitioner of his choice to be so present; and
(b) unless it would be impracticable to do so-arrange for the examination
to be made or the specimen to be taken, as the case may be, at a time
when the medical practitioner chosen by the person can be present.
"(7) Sub-section (6) does not apply in relation to a person in custody in
respect of a service offence where an investigating officer believes on
reasonable grounds that, if the examination of the person or the taking of a
specimen from the person, as the case requires, is delayed until a time when a
medical practitioner chosen by the person can be present, evidence of, or
relating to, the service offence may be lost or destroyed or may otherwise
disappear.
"(8) An investigating officer may use such reasonable force as is necessary to
take a person to a medical practitioner for the purpose of an examination of
the person in accordance with sub-section (1) or the taking of a specimen from
the person in accordance with sub-section (2), as the case requires.
"(9) Where, in accordance with this section, a medical practitioner examines a
person in lawful custody in respect of a service offence or takes a specimen
from such a person and-
(a) no proceedings in respect of the service offence, or a related service
offence, are instituted against the person-
(i) within a period of 12 months after the examination is made or
the specimen is taken, as the case may be; or
(ii) if that period is extended under sub-section (10)-within that
period as from time to time so extended; or
(b) proceedings in respect of the service offence, or a related service
offence, are instituted within that period, but a service tribunal
acquits the person of a charge of the service offence, or a related
service offence, or dismisses such a charge, the person having the
custody of the report of the examination or the report of the analysis
or other examination of the specimen, as the case may be, and any
investigating officer having the custody of a copy of such a report,
shall cause it to be destroyed.
"(10) An authorized officer may, upon application by a person having the
custody of the report of an examination by a medical practitioner of a person
in lawful custody in respect of a service offence, or of the report of an
analysis or other examination of a specimen taken from such a person, or by an
investigating officer having the custody of a copy of such a report, and upon
being satisfied, by information on oath or affirmation, that there are special
reasons for doing so, extend, in respect of the examination or the analysis or
other examination of the specimen, as the case may be, the period referred to
in sub-paragraph (9) (a) (i), or that period as previously extended under this
sub-section.
"(11) Where a person in lawful custody in respect of a service offence is
examined by a medical practitioner in accordance with sub-section (1), or a
specimen is taken from such a person in accordance with sub-section (2), an
investigating officer concerned in the investigation of the service offence,
shall, upon application by the person, cause the person to be provided with a
copy of the report of the medical practitioner in respect of the examination
or the report of the analysis or other examination of the specimen, as the
case may be.
"(12) Where a medical practitioner makes an examination of a person, or takes
a specimen from a person, in pursuance of arrangements duly made, or
purporting to be duly made, by an investigating officer under this section,
proceedings do not lie against the medical practitioner, or against any other
person acting under his direction or otherwise assisting him, in respect of
anything reasonably done in good faith by the medical practitioner or by the
other person for the purpose of making the examination or taking the specimen,
as the case may be.
"(13) Nothing in this section-
(a) prevents a medical practitioner from examining, or taking a specimen
from, a person at the request of the person or for the purpose of
treating the person for illness or an injury; or
(b) affects the power of a service tribunal, or, in the case of a court
martial, the judge advocate of the court martial, to exclude evidence
obtained through unreasonable force or inhuman treatment.
"(14) In this section, 'specimen', in relation to a person, includes a sample
of, or taken from, the body of the person.
"(15) In the application of this section to a person who is in custody at a
place outside Australia, a reference to a medical practitioner includes a
reference to a person who is registered or licensed as a medical practitioner
under-
(a) a law of that place; or
(b) a law of a prescribed place, being a law that provides for the
registration or licensing of medical practitioners. Application of
Division
"101R. This Division shall not be taken to prohibit an investigating officer
from taking investigative action of a kind not referred to in this Division
where the taking of that action is not inconsistent with a provision of this
Division.
"Division 5-Rights of persons charged with service offences Persons to be
cautioned
"101S. Immediately after a person in custody is charged with a service
offence, the investigating officer in charge of investigating the service
offence shall caution the person, or cause him to be cautioned, in a language
in which the person is reasonably fluent, in writing, and also, if
practicable, orally, that he is not obliged to, but may if he wishes to do so,
answer any questions, or do any thing, asked of him by an investigating
officer and that anything said or done by him may be used in evidence.
Questioning of persons charged with service offences
"101T. (1) An investigating officer shall not, after a person is charged with,
or summoned in respect of, a service offence, ask the person any question in
relation to the service offence other than-
(a) a question with respect to an ambiguity in an answer previously made
by the person to a question asked of him by an investigating officer,
being a question asked before he was charged with, or summoned in
respect of, the service offence or duly asked in accordance with this
section after he was so charged;
(b) a question with respect to an ambiguity in a statement made by the
person, whether before or after he was charged with, or summoned in
respect of, the service offence; or
(c) a question necessary to assist the investigating officer in dealing
with an emergency.
"(2) Sub-section (1) shall not be taken to prevent an investigating officer
from asking a person who has been charged with, or summoned in respect of, a
service offence, whether he wishes to make a statement with respect to any
information or other evidence of, or relating to, the service offence, that,
at the time when the person was so charged or summoned, was not in the
possession of any investigating officer concerned in the investigation of the
offence, but nothing in this sub-section shall be taken to permit an
investigating officer to ask such a person any further question other than a
question with respect to an ambiguity in a statement referred to in this
sub-section.
"(3) Immediately before an investigating officer asks a person who has been
charged with, or summoned in respect of, a service offence any questions
relating to the service offence, the investigating officer shall give the
person a caution of the kind referred to in section 101S or draw the attention
of the person to the caution previously given to the person in accordance with
that section, as the case requires.
"(4) Where a person who has been charged with, or summoned in respect of, a
service offence voluntarily proposes to make, or commences to make, a
statement to an investigating officer in relation to the service offence
(including a statement of the kind referred to in sub-section (2)), the
investigating officer shall caution the person in a language in which he is
reasonably fluent, in writing, and also, if practicable, orally, before the
person commences to make the statement or, if it is not practicable to do so,
as soon as practicable after the person commences to make the statement, that
he is not obliged to, but may if he wishes, make a statement and that the
statement may be used in evidence. Persons charged with same service offence
"101U. (1) Where, after 2 or more persons have been charged with the same
service offence, one of those persons furnishes to an investigating officer a
written statement in relation to the service offence, not being a statement
made jointly with the other person or all the other persons, as the case may
be, charged with the service offence, the investigating officer to whom the
statement is furnished may cause a copy of the statement to be furnished to
the other person or each of the other persons, as the case may be, charged
with the service offence who did not join in making the statement, but shall
not, subject to sub-section (2), read the statement to the other person or any
of those other persons, as the case may be, or invite, either orally or
otherwise, the other person or any of those other persons, as the case may be,
to comment on the statement.
"(2) Where a person to whom a copy of a statement is furnished in accordance
with sub-section (1) is unable for any reason to read the copy of the
statement, the investigating officer shall-
(a) in a case where the person is not reasonably fluent in the language in
which the statement is written-cause the statement to be translated
into a language in which the person is reasonably fluent and cause a
copy of the translation to be furnished to the person and, if the
person is unable to read the copy of the translation and the person
consents, read the copy of the translation, or cause the copy of the
translation to be read, to the person; or
(b) in any other case-if the person consents, read the copy of the
statement, or cause the copy of the statement to be read, to the
person.
"(3) Where a person to whom a copy of a statement is furnished in accordance
with sub-section (1) voluntarily proposes to make, or commences to make, a
statement to an investigating officer in relation to the relevant service
offence by way of comment on the first-mentioned statement, the investigating
officer shall caution the person in a language in which the person is
reasonably fluent, in writing, and also, if practicable, orally, before the
person commences to make the statement or, if it is not practicable to do so,
as soon as practicable after the person commences to make the statement, that
he is not obliged to, but may if he wishes, make a statement and that the
statement may be used in evidence.
"(4) A reference in this section to a written statement includes a reference
to a record in writing of an interview, being an interview in respect of which
sub-section 101K (3) has been complied with.
"Division 6-Search and seizure
Interpretation
"101V. (1) For the purposes of this Division, a thing is connected with a
particular service offence if it is-
(a) a thing with respect to which the service offence has been committed;
(b) a thing that will afford evidence of the commission of the service
offence; or
(c) a thing that was used, or is intended to be used, for the purpose of
committing the service offence.
"(2) A reference in this Division to land or premises is a reference to
service land or premises on service land (other than land or premises in
Australia occupied by, or comprising, married quarters), as the case requires.
"(3) A reference in this Division to a ship, aircraft or vehicle is a
reference to-
(a) a service ship, service aircraft or service vehicle, as the case
requires; or
(b) a ship, aircraft or vehicle, as the case requires, on service land.
Search and seizure
"101W. (1) An investigating officer may search a defence member or defence
civilian, or clothing being worn by, or property under the immediate control
of, a defence member or defence civilian, and may seize any thing found in the
course of the search that the investigating officer believes on reasonable
grounds to be connected with a service offence if, and only if, the search and
seizure is made by the investigating officer-
(a) in pursuance of a search warrant issued under section 101X or 101Y;
(b) in accordance with section 101P or 101Z; or
(c) after obtaining, in accordance with section 101ZA, the consent of the
defence member or defence civilian, as the case may be, to the search.
"(2) An investigating officer may enter upon land, or upon or into premises or
a ship, aircraft or vehicle, and may search the land, premises, ship, aircraft
or vehicle and may seize any thing found in the course of the search that the
investigating officer believes on reasonable grounds to be connected with a
service offence if, and only if, the entry, search and seizure is made by the
investigating officer-
(a) in pursuance of a search warrant issued under section 101X or 101Y;
(b) in accordance with section 101Z; or
(c) after obtaining, in accordance with section 101ZA, the consent of the
occupier of the land or premises or of the person in charge of the
ship, aircraft or vehicle, as the case may be, to the entry.
Search warrants
"101X. (1) Where an information on oath or affirmation is laid before an
authorized officer alleging that there are reasonable grounds for suspecting
that a thing of a particular kind connected with a particular service offence
may be found on a defence member or defence civilian, or in clothing being
worn by, or property under the immediate control of, a defence member or
defence civilian, and the information sets out those grounds, the authorized
officer may issue a search warrant authorizing an investigating officer named
in the warrant, with such assistance as he thinks necessary and if necessary
by force-
(a) to search the defence member or defence civilian, as the case may be,
and clothing being worn by, and property under the immediate control
of, the defence member or defence civilian, as the case may be, for
things of that kind; and
(b) to seize any thing of that kind found in the course of the search that
he believes on reasonable grounds to be connected with the service
offence.
"(2) Where an information on oath or affirmation is laid before an authorized
officer alleging that there are reasonable grounds for suspecting that there
may be, at that time or within the next following 24 hours, upon any land or
upon or in any premises, ship, aircraft or vehicle, a thing of a particular
kind connected with a particular service offence, and the information sets out
those grounds, the authorized officer may issue a search warrant authorizing
an investigating officer named in the warrant, with such assistance as he
thinks necessary and if necessary by force-
(a) to enter upon the land or upon or into the premises, ship, aircraft or
vehicle, as the case may be;
(b) to search the land, premises, ship, aircraft or vehicle, as the case
may be, for things of that kind; and
(c) to seize any thing of that kind found in the course of the search that
he believes on reasonable grounds to be connected with the service
offence.
"(3) An authorized officer shall not isssue a warrant under sub-section (1) or
(2) unless-
(a) the informant or some other person has given to the authorized
officer, either orally or by affidavit, such further information (if
any) as the authorized officer requires concerning the grounds on
which the issue of the warrant is being sought; and
(b) the authorized officer is satisfied that there are reasonable grounds
for issuing the warrant.
"(4) There shall be stated in a warrant issued under this section-
(a) in the case of a warrant issued under sub-section (1)-
(i) a statement of the purpose for which the warrant is issued,
which shall include a reference to the nature of the service
offence in relation to which the search is authorized;
(ii) a description of the kind of things authorized to be seized; and
(iii) a date, not being later than one month after the day on which
the warrant is issued, upon which the warrant ceases to have
effect; and
(b) in the case of a warrant issued under sub-section (2)-
(i) a statement of the purpose for which the warrant is issued,
which shall include a reference to the nature of the service
offence in relation to which the entry and search are
authorized;
(ii) whether entry is authorized to be made at any time of the day
or night or only during specified hours of the day or night;
(iii) a description of the kind of things authorized to be seized;
and
(iv) a date, not being later than one month after the day on which
the warrant is issued, upon which the warrant ceases to have
effect.
"(5) Where-
(a) in the course of searching, in accordance with a warrant issued under
this section or section 101Y, for things connected with a particular
service offence, being things of a kind specified in the warrant, an
investigating officer finds-
(i) any thing that he believes on reasonable grounds to be
connected with the service offence, although not of the kind
specified in the warrant; or
(ii) any thing that he believes on reasonable grounds to be
connected with another service offence; and
(b) the investigating officer believes on reasonable grounds that it is
necessary to seize that thing in order to-
(i) prevent its concealment, loss or destruction; or
(ii) its use in committing, continuing or repeating a service
offence, the warrant shall be deemed to authorize him to seize
that thing.
"(6) An investigating officer acting in accordance with a warrant issued under
sub-section (1) may-
(a) require a person to remove any clothing that the person is wearing;
and
(b) if the person refuses or fails to comply with the requirement-remove
the clothing.
"(7) A person shall not be searched by, or in the presence of, a person who is
not of the same sex as the first-mentioned person. Search warrants may be
granted by telephone
"101Y. (1) Where, by reason of circumstances of urgency, an investigating
officer considers it necessary to do so, the investigating officer may make
application to an authorized officer, by telephone, for a search warrant.
"(2) Before making the application, the investigating officer shall prepare an
information of the kind referred to in sub-section 101X (1) or (2), as the
case requires, being an information that sets out the grounds on which the
issue of the warrant is being sought, but may, if it is necessary to do so,
make the application before the information has been sworn or affirmed.
"(3) Where, upon application under sub-section (1), an authorized officer is
satisfied, after having-
(a) considered the terms of the information prepared in accordance with
sub-section (2); and
(b) had given to him such further information (if any) as he requires
concerning the grounds on which the issue of the warrant is being
sought, that there are reasonable grounds for issuing the warrant, the
authorized officer shall complete and sign a search warrant of such a
kind as he would have issued under section 101X if the application had
been made in accordance with that section.
"(4) Where an authorized officer signs a warrant under sub-section (3)-
(a) the authorized officer shall-
(i) inform the investigating officer of-
(A) the terms of the warrant; and
(B) the date on which, and the time at which, it was signed;
and
(ii) record on the warrant his reasons for granting the warrant; and
(b) the investigating officer shall-
(i) complete a form of warrant in the terms furnished to him by the
authorized officer; and
(ii) write on the form of warrant-
(A) the name of the authorized officer; and
(B) the date on which, and the time at which, the warrant was
signed.
"(5) Where an investigating officer completes a form of warrant in accordance
with paragraph (4) (b), the investigating officer shall, not later than the
day next following the date of expiry of the warrant, send to the authorized
officer who signed the warrant the form of warrant and the information duly
sworn or affirmed by him in connection with the issue of the warrant.
"(6) Upon receipt of the form of warrant and information, the authorized
officer shall attach to them the warrant.
"(7) A form of warrant duly completed by an investigating officer in
accordance with paragraph (4) (b) is, if it is in the terms of the warrant
signed by the authorized officer, authority for any search, seizure or entry
that the warrant so signed authorizes.
"(8) Where it is material, in any action or proceeding, for a civil court or
service tribunal to be satisfied that a search, seizure or entry was
authorized by this section, and a warrant signed by an authorized officer in
accordance with this section authorizing the search, seizure or entry is not
produced in evidence, the civil court or service tribunal, as the case may be,
shall presume, unless the contrary is proved, that the search, seizure or
entry was not authorized by such a warrant. Searches in emergencies
"101Z. (1) An investigating officer may-
(a) search a defence member or defence civilian, or clothing being worn
by, or property under the immediate control of, a defence member or
defence civilian, whom he believes on reasonable grounds to be
carrying any thing connected with a service offence; or
(b) enter upon land, or upon or into premises or a ship, aircraft or
vehicle, on or in which he believes on reasonable grounds that any
thing connected with a service offence is situated and search the
land, premises, ship, aircraft or vehicle, as the case may be, and may
seize any such thing found in the course of the search if-
(c) the investigating officer believes on reasonable grounds that it is
necessary to do so in order to-
(i) prevent its concealment, loss or destruction; or
(ii) prevent its use in committing, continuing or repeating a
service offence; and
(d) the search or entry and search, as the case may be, is made in
circumstances of such seriousness and urgency as to require and
justify immediate search or entry and search, as the case may be,
without the authority of a warrant issued under section 101X or 101Y.
"(2) Where an investigating officer believes on reasonable grounds that a
defence member or defence civilian is, without lawful authority or reasonable
excuse, carrying an offensive weapon, or any thing connected with a serious
service offence, the investigating officer may-
(a) stop the defence member or defence civilian;
(b) search the defence member or defence civilian, and the clothing being
worn by, and property under the immediate control of, the defence
member or defence civilian, as the case may be; and
(c) seize any such weapon or thing found in the course of the search.
"(3) Where an investigating officer believes on reasonable grounds that an
offensive weapon, or any thing connected with a serious service offence, is in
a ship, aircraft or vehicle, the investigating officer may-
(a) stop the ship, aircraft or vehicle;
(b) enter upon or into the ship, aircraft or vehicle;
(c) search the ship, aircraft or vehicle; and
(d) seize any such weapon or thing found in the course of the search.
"(4) An investigating officer conducting a search in accordance with paragraph
(1) (a) may-
(a) require a person to remove any clothing that the person is wearing;
and
(b) if the person refuses or fails to comply with the requirement-remove
the clothing.
"(5) A person shall not be searched by, or in the presence of, a person who is
not of the same sex as the first-mentioned person.
"(6) In sub-sections (2) and (3), 'offensive weapon' means any thing-
(a) made or adapted for use for causing death or bodily injury; or
(b) intended by the person having it for such use.
Consent to search
"101ZA. (1) Before obtaining the consent of a person for the purposes of
section 101W, an investigating officer shall inform the person that he may
refuse to give his consent.
"(2) An investigating officer who obtains the consent of a person for the
purposes of section 101W shall ask the person to sign an acknowledgement, in
accordance with the prescribed form-
(a) of the fact that he has been informed that he may refuse to give his
consent;
(b) of the fact that he has voluntarily given his consent; and
(c) of the date on which, and the time at which, he gave his consent.
"(3) A search or entry and search, as the case requires, by an investigating
officer by virtue of the consent of a person is not lawful unless the person
concerned voluntarily consented to the search or entry and search, as the case
may be.
"(4) Where it is material, in any action or proceeding, for a civil court or
service tribunal to be satisfied of the voluntary consent of a person for the
purposes of section 101W and an acknowledgment of the kind referred to in
sub-section (2) signed by the person is not produced in evidence, the civil
court or service tribunal, as the case may be, shall presume, unless the
contrary is proved, that the person did not give such a voluntary consent.
"Division 7-Exclusion of evidence Exclusion of evidence illegally obtained
"101ZB. (1) Where, in proceedings before a service tribunal in respect of a
service offence, upon objection being taken to the admission of evidence on
the ground that the evidence was obtained in contravention of, or in
consequence of a contravention of, a provision of this Part, the service
tribunal, or, in the case of a court martial, the judge advocate of the court
martial, is satisfied, on the balance of probabilities but having regard to
any provision of this Act or the regulations relating to proof of particular
matters, that the evidence was so obtained, the service tribunal or judge
advocate, as the case may be, shall not admit the evidence unless the service
tribunal or judge advocate, as the case may be, is of the opinion that-
(a) admission of the evidence would substantially benefit the public
interest in the administration of justice; and
(b) this benefit would outweigh any prejudice to the rights and freedoms
of any person, including the accused person, that has occurred, or is
likely to occur, as a result of the contravention or the admission of
the evidence.
"(2) The matters that the service tribunal or judge advocate, as the case may
be, may have regard to in deciding whether to admit the evidence include-
(a) the seriousness of the service offence, the urgency and difficulty of
detecting the offender and the need to preserve evidence of the facts;
(b) the nature and seriousness of the contravention;
(c) the effect that admission of the evidence in the particular
circumstances of the case is likely to have on the operation of the
provisions of this Part;
(d) the effect (if any) of the contravention on the cogency of the
evidence so obtained; and
(e) the extent to which the evidence might have been obtainable lawfully.
"(3) This section is in addition to, and not in substitution for, any other
law or rule under which a service tribunal, or, in the case of a court
martial, the judge advocate of the court martial, may refuse to admit
evidence.
"(4) Sub-section (3) shall not be taken to authorize a service tribunal or
judge advocate, in proceedings in respect of a service offence, to refuse to
admit a statement in evidence on the ground that an investigating officer
contravened the rules known as the Judge's Rules.
"(5) Nothing in this section derogates from the application of section 101J or
101K.
"Division 8-Application of Part
Application of Part
"101ZC. Nothing in this Part shall be taken to limit or restrict, by
implication-
(a) any action that may be taken, in accordance with any other law of the
Commonwealth or the law of a State or Territory, for a purpose not
connected with the investigation of a service offence; or
(b) any action that a constable, or any other person who is not an
investigating officer, may take, in accordance with any other law of
the Commonwealth or the law of a State or Territory, for the purpose
of investigating a service offence.".
[Index]
[Table]
[Search]
[Search this Act]
[Notes]
[Noteup]
[Previous]
[Next]
[Download]
[Help]