CHAPTER THREE
Procedure

PART IV
SUMMARY PROCEEDINGS

Sub-Part A - Trial of Summary Offences

Witnesses

Bringing up inmate to testify
679. The provisions of section 791 apply, with such modification as may be necessary for the purpose of securing the attendance of a person confined in any correctional facility, who is required to give evidence at the hearing of any charge for a summary offence.


Issue of summons to witness
680. If, either before or on the hearing of any complaint, it appears to the Magistrate, on the statement of the complainant or the defendant or otherwise, that any person is likely to give material evidence for the complainant or for the defendant, the Magistrate may issue a summons requiring the person to appear before the Court at the time stated in the summons, to give evidence respecting the case, and to bring with him or her any documents or things relating thereto which may be in his or her possession, power or control.


Service of summons
681. The provisions of sections 786, 787 and 789 shall apply, with such modifications as may be necessary, to the service and proof of service of summons on a witness in summary proceedings.


Warrant for witness disobeying summons or avoiding service
682. Where a person summoned as a witness without reasonable excuse fails to appear before the Court at the time specified in the summons, then after the proof upon oath that the summons was duly served on him or her or that he or she willfully avoided service, if the Court is satisfied by proof upon oath that the person is likely to give material evidence, it may issue a warrant to bring him or her before the Court, at the time stated in the warrant, in order to testify.


Warrant for witness in first instance, when
683. If the Magistrate is satisfied by evidence upon oath that any person likely to give material evidence whether for the complainant or for the defendant, will not attend to give evidence without being compelled to do so, he or she may issue a warrant to compel the attendance of that person.


Bringing up arrested witness
684. If the hearing of the case for which his or her evidence is required is fixed for a time which is more than seventy-two hours after the arrest, a witness arrested under a warrant, except for disobedience to a summons issued under section 682, shall be taken before a Magistrate, and the Magistrate may on his or her furnishing security by recognizance, to the satisfaction of the Magistrate, for his or her appearance at the hearing, order him or her to be released from custody, or shall, on his or her failing to furnish such security, order him or her to be detained to appear at the hearing.


Liability of witness to attend adjourned sitting
685. Every witness who is present when the hearing of a case is adjourned, who has been duly notified of the time and place to which the hearing or further hearing is adjourned, shall be bound to attend at such time and place, and if he or she defaults, may be dealt with as if he or she had failed to appear before the Court in obedience to a summons to give evidence.

CHAPTER THREE
Procedure

PART V
PRELIMINARY INQUIRIES AND COMMITTAL PROCEEDINGS

SUB-PART B
PROCEEDINGS TO COMPEL APPEARANCE OF ACCUSED AND WITNESS

Order to bring up inmate as witness
791. The provisions of section 783 shall mutatis mutandis apply for securing the attendance of any person confined in any correctional facility in this State who is required to give evidence at any preliminary inquiry or at any trial before a Magistrate.


Issue and contents of summons to witness
792. If, either before or on the hearing of any complaint, it appears to a Magistrate on the statement of the complaint or the accused or otherwise, that any person is likely to give material evidence for the complainant or for the accused, the Magistrate may issue a summons to the person, requiring him or her to appear before the Court, at the time specified in the summons, to give evidence concerning the case, and to bring with him or her any documents or thing relating to the case, which may be in his or her possession, power or control.


Service and proof of service of, summons on witness
793. The provisions of sections 784, 785 and 786 shall mutatis mutandis, apply to the service and the proof of service of summons on a witness on the holding of a preliminary inquiry with respect to an indict-able offence or to the trial of any offence by a Magistrate.


Warrant for witness disobeying summons or avoiding service
794. If any person to whom a summons is directed as a witness does not appear before the Court at the time stated in the summons, and does not offer any lawful excuse for his or her non-appearance, then, after proof upon oath that the summons was duly served on him or her or that he or she willfully avoided service of the summons, the Court, if satisfied by proof upon oath that he or she is likely to give material evidence, may issue a warrant to bring him or her before the Court at the time stated in the summons, in order to testify or otherwise do what is required of him or her.


Warrant for witness in first instance
795. If the Magistrate is satisfied by evidence upon oath that the person likely to give material evidence, either for the complainant or for the accused, will not attend to give evidence without being compelled to do so he or she may instead of a summons issue a warrant for the arrest of the person.


Witness arrested, how dealt with
796. When a witness is arrested under a warrant, other than for dis¬obedience to a summons issued under section 792 if the hearing of the case for which his or her evidence is required is fixed for a time more than twenty-four hours after the arrest, the witness shall be taken before a Magistrate, and the Magistrate may, on the witness furnishing security by recognizance, to the satisfaction of the Magistrate, for his or her appearance at any such hearing, order the witness to be released from custody, or shall, on the witness failing to furnish such security, order him or her to be detained to be produced at any such hearing.

CHAPTER THREE
Procedure

PART V
PRELIMINARY INQUIRIES AND COMMITTAL PROCEEDINGS

SUB-PART B
PROCEEDINGS TO COMPEL APPEARANCE OF ACCUSED AND WITNESS

Committal Proceedings

Taking depositions of witnesses and statement of accused
798.— (1) For the purposes of subsection (1) of section 797 a Magistrate inquiring into an offence shall cause the evidence of each witness (other than witness as to character of the accused) including the evidence of the accused, to be put into writing, and as soon as practicable after the examination of the witness shall cause his or her deposition to be read to him or her in the presence and hearing of the accused and shall require the witness to sign the deposition.

(2) Where the evidence has been given in the absence of the accused this shall be recorded on the deposition of the witness and the deposition need not be read in the presence and hearing of the accused.

(3) The depositions shall be authenticated by a certificate signed by the Magistrate.

(4) After the evidence for the prosecution, including any statements tendered under section 799 has been given and after hearing any sub¬missions, if any made, the Magistrate shall, unless he or she then decides not to commit for trial, cause the charge to be written down, if this has not already been done, and if the accused is not represented by counsel, shall read the charge to him or her and explain it in ordinary language.

(5) The Magistrate shall then say to the accused —
“I must warn you that if this Court should commit you for trial you may not be permitted at that trial to give evidence of an alibi or to call witnesses in support of an alibi unless you have earlier given particulars of the alibi and of the witnesses, you may give those particulars to the prosecutor not later than seven days from the end of these committal proceedings.”
or words to that effect and, if it appears to the Magistrate that, the accused may not understand the meaning of the term “alibi” the Magistrate shall explain it to him or her.

(6) The Magistrate shall not be required to give this warning where it appears to the Magistrate that having regard to the nature of the of¬fence with which the accused is charged, it is unnecessary to do so.

(7) After complying with the requirements of this section relating to the statement of the accused and whether or not he or she has made a statement in answer to his or her charge, the Magistrate shall give him or her an opportunity to give evidence himself or herself and to call witnesses.

(8) Subject to subsection (9), where the accused is represented by counsel, his or her counsel shall be heard on his or her behalf with the leave of the Court both before and after the evidence is taken.

(9) Where the Magistrate grants leave to counsel for the accused to be heard after and before, the evidence is taken, counsel for the prosecution shall be entitled to be heard immediately before counsel for the accused is heard for the second time.

(10) Where the Magistrate determines to commit the accused for trial in respect of a charge different from that which was read to him or her in accordance with subsection (4), the Magistrate shall cause the new charge to be read to him or her.

CHAPTER THREE
Procedure

PART VI
INDICTABLE TRIALS

SUB-PART A
THE TRIAL

Plea of Autrefois Acquit or Autrefois Convict or Pardon

Order to bring up inmate witness
900. The provisions of section 783 apply, mutatis mutandis, for securing the attendance of the person confined in any correctional facility in this State, who is required to give evidence for the purpose of the trial.


Summons to witness
901. The Registrar shall issue summonses for witnesses to attend at a trial of offences in the High Court.


Service of summons to witness
902. The provisions of sections 786, 787 and 788 apply, mutatis mutandis, to the service and proof of service of summons on a witness to attend at a trial of offences in the High Court.


Court to order prosecution to call witness
903.— (1) If the Judge is of opinion that any witness who is not called for the prosecution ought to be called, he or she may require the prosecutor to call such witness, and if the witness does not attend, the Judge may make an order that his or her attendance be procured, and the Court may, if it thinks fit adjourn the further hearing of the case to some other time during the sittings.

(2) If, in such a case, the Judge is of opinion that it would be conducive to the ends of justice so to do, it may, upon the application of the accused, discharge the jury and postpone the trial.


Court to dispense with production of medical or other witness
904.— (1) Without prejudice to any other provision, the Judge may dispense with the production of a Government medical officer or other person as a witness at a criminal trial in the High Court, if in the opinion of the Judge that the evidence of such witness is merely formal, or is not really material to the guilt or innocence of the accused, or that the trial, without injustice to the accused, can proceed without such witness being called.

(2) In such a case the Judge may allow the deposition of such witness taken at the preliminary inquiry to be read at the trial.


Witness for prosecution not previously examined
905. If the Judge is of the opinion that the accused person is taken by surprise, in a manner likely to be prejudicial to his or her defence, by the production on behalf of the prosecution of a witness who did not give any deposition, or of whom the prosecutor has not given sufficient notice to the accused of his or her intention to produce, the Court may, on the application of the accused, adjourn the further hearing of the case, or discharge the jury from giving a verdict, and postpone the trial.


Witnesses to be outside Courtroom
906. The Judge may at any time during the trial order every person who is to be called as a witness, other than the accused himself or her-self, to leave the Courtroom and remain outside in the precincts of the Court until he or she is called.


Refractory witness
907.— (1) When —
(a) it is proved to the satisfaction of the Judge that the summons was served on any witness who has failed to attend or remain in attendance;
(b) any witness who at the preliminary inquiry has entered into a recognizance to appear at the trial has failed to appear,
and that the presence of such witness is material in the interest of justice, the Judge may, by warrant, cause such witness to be arrested and forth¬with brought before him or her to give evidence and to answer for his or her disregard of the summons.

(2) The Judge may detain such witness before the Court or in the correctional facility or lock-up, in order to secure his or her presence as a witness, or may release him or her on a recognizance with or without sureties as a condition for his or her appearance to give evidence and to answer for his or her default in not attending or not remaining in attendance at the trial.

(3) The Court may, in a summary manner, inquire into and dispose of the charge against the witness, who, if convicted of the charge, is liable to a fine not exceeding five hundred dollars, or to imprisonment for a term not exceeding three months or to both, and the recognizance of such witness and his or her sureties, if any, entered into at the preliminary inquiry shall be forfeited.