PART III—APPEALS.

Appeals from courts.

28. Notice of appeal.

(1) Every appeal shall be commenced by a notice in writing which shall be signed by the appellant or an advocate on his or her behalf, and shall be lodged with the registrar within fourteen days of the date of judgment or order from which the appeal is preferred.

(2) Every notice of appeal shall state shortly the effect of the judgment or order appealed against and shall—

(a) contain a full and sufficient address at which any notices or documents connected with the appeal may be served on the appellant or his or her advocate; and

(b) except where subsection (3) applies, state the general grounds upon which the appeal is preferred.

(3) If the appellant or an advocate on his or her behalf indicates at the time of filing a notice of appeal that he or she wishes to peruse the judgment or order appealed against before formulating the grounds of appeal, he or she shall be provided with a copy of the judgment or order, free of charge, and the grounds of appeal shall be lodged with the registrar within fourteen days of the date of the service on him or her of the copy of the judgment or order.

(4) Where the appellant is represented by an advocate or the appeal is preferred by the Director of Public Prosecutions, the grounds of appeal shall include particulars of the matters of law or of fact in regard to which the court appealed from is alleged to have erred.

(5) Where an appellant who is not represented has not availed himself or herself of the provisions of subsection (3), nothing in this section shall be read as preventing the appellate court from permitting the appellant from raising any proper ground of appeal orally at the hearing of the appeal.

(6) The appellate court may, for good cause shown, extend the periods mentioned in subsection (1) or (3).


29. Fee on appeal.

Except insofar as it is waived or reduced, the fee prescribed for filing the notice of appeal shall be paid at the time of lodging the notice and if the fee, if any, is not paid the notice shall not be received.


30. Appellant in prison.

If the appellant is in prison he or she may present any document relating to his or her appeal to the officer in charge of the prison who shall then forward the document to the registrar, and for the purpose of section 28 on the date of the presentation, any such document shall be deemed to have been lodged with the registrar.


31. Application for extension of time; abandonment of appeal.

(1) An application to extend the time for lodging a notice of appeal or grounds of appeal under section 28(1) or (3) shall be made in writing to the registrar of the appellate court and shall be supported by an affidavit specifying the grounds for the application.

(2) Except in the case of the Court of Appeal or the Supreme Court, the appellate court may summarily reject an application of the kind mentioned in subsection (1) without hearing the applicant or his or her advocate if, on perusing the supporting affidavit, it is of the opinion that no grounds for granting the application are disclosed.

(3) An appellant may, at any time before the hearing of the appeal, abandon his or her appeal by giving notice in writing of the abandonment to the registrar of the appellate court, and upon the notice being given the appeal shall be deemed to have been dismissed by the appellate court.


32. Summary dismissal of appeal.

(1) On receiving a notice or grounds of appeal under section 28, the appellate court, or a judge of that court, shall peruse it and after perusing the record of the trial court—

(a) in the case of an appeal against sentence only, where it considers that the sentence is not excessive; or

(b) in any other case, where it considers that no question of law is raised proper for consideration by it, or that there is no material in the circumstances of the case which could raise a reasonable doubt whether the conviction was right or led the court to consider that the sentence ought to be reduced,
it may dismiss the appeal summarily without hearing the appellant.

(2) Notwithstanding subsection (1)—

(a) nothing in this section shall be read as preventing the appellate court, or a judge of that court,
from dismissing an appeal summarily where subsection(1)(b) applies with regard to conviction, and directing that it be heard as regards sentence only; and

(b) no appeal shall be summarily dismissed where the notice or grounds of appeal has been signed by an advocate, unless the advocate has had an opportunity of being heard in support of the notice or grounds of appeal.

(3) Except where a judgment or order has been copied for the purpose of section 28(3), no part of the proceedings of the court in respect of which an appeal has been preferred shall be copied unless the appellate court makes a direction to that effect after perusing the record in accordance with subsection (1).

(4) This section does not apply to appeals to the Court of Appeal or the Supreme Court.


33. Notice of hearing.

(1) If the appellate court does not dismiss an appeal summarily, it shall cause notice to be given to the appellant and to the respondent or to their advocates, if any, of the time and place at which the appeal will be heard and shall furnish the respondent with a copy of the proceedings and of the grounds of appeal.

(2) At the hearing of an appeal the appellate court shall hear the appellant and the respondent or their advocates.


34. Powers of appellate court on appeals from convictions.

(1) The appellate court on any appeal against conviction shall allow the appeal if it thinks that the judgment should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that it should be set aside on the ground of a wrong decision on any question of law if the decision has in fact caused a miscarriage of justice, or on any other ground if the court is satisfied that there has been a miscarriage of justice, and in any other case shall dismiss the appeal; except that the court shall, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2) Subject to subsection (1), the appellate court on any appeal may—

(a) reverse the finding and sentence, and acquit or discharge the appellant, or order him or her to be tried or retried by a court of competent jurisdiction;
(b) alter the finding and find the appellant guilty of another offence, maintaining the sentence, or with or without altering the finding, reduce or increase the sentence by imposing any sentence provided by law for the offence; or
(c) with or without any reduction or increase and with or without altering the finding, alter the nature of the sentence.

(3) Where the appellate court maintains or imposes a sentence of imprisonment not exceeding three years in the exercise of its powers under subsection (1) or (2), if the appellant satisfies the court that there are special reasons, having regard to the nature of the offence for which he or she was convicted, his or her age or antecedents that the sentence should be suspended, the court may order that it be suspended and shall record its reasons for making the order.

(4) An order suspending a sentence under subsection (3) is referred to in this Code as a “suspension order” and the period during which any of the sentence remains suspended as the “suspension period”.

(5) Where a suspension order is made, the sentence to which the order relates shall not continue to have effect unless the appellant commits another offence punishable by a substantive sentence or imprisonment without the alternative of a fine within the period of two years next following the date upon which the sentence would have expired, calculated without remission.

(6) Before making a suspension order the appellate court shall explain to the appellant in ordinary language his or her liability under subsection (5).

(7) If it appears to a court that a person in respect of whom a suspension order has been made has been convicted of an offence punishable by a substantive sentence of imprisonment without the alternative of a fine, committed during the suspension period, the court shall—

(a) issue a summons requiring the person to appear at the time and place specified in the summons;
(b) issue a warrant for his or her arrest; or
(c) if he or she is in custody, issue a warrant requiring his or her production before the court,
as the circumstances shall require.

(8) Where a person appears before the court in obedience to a summons or warrant issued under subsection (7) and it is proved to the satisfaction of the court that the person—

(a) is an offender in respect of whom a suspension order was made; and
(b) has been convicted on an offence punishable by a substantive sentence of imprisonment without the alternative of a fine, committed during the suspension period,

the court shall, subject to subsection (9) by warrant under its hand, order that the offender be committed to prison to serve the sentence to which the suspension order relates, and any such sentence shall be deemed to commence from the date on which the commitment warrant was issued; except that—

(c) if the offender is already serving a sentence of imprisonment, the warrant of commitment shall direct that the sentence shall be executed after the expiration of the total period of imprisonment to which the offender is already subject; and

(d) if the offender had served any period of a sentence before the suspension order was made, in addition to any remission to which he or she is entitled under the Prisons Act, he or she shall be granted remission equivalent to any such period.

(9) Notwithstanding subsection (8), if the court before which an offender appears under the provisions of subsection (8) is of the opinion, having regard to all the circumstances (including the trivial nature of the offence committed during the suspension period), that it would be inexpedient to make an order committing the offender to prison, it may direct that the offender be discharged; and if the suspension period has not expired the suspension order shall continue to have effect for the remainder of that period.

(10) Jurisdiction under subsections (7), (8) and (9) shall be exercised—

(a) in the case of a suspension order made on an appeal to the High Court, by a judge of that court;

(b) in the case of a suspension order made on an appeal to a court presided over by a chief magistrate, by the chief magistrate having jurisdiction over the area within which the offender happens to be.


35. Powers of appellate court on appeals from acquittals.

The appellate court may, on an appeal from an acquittal or dismissal, enter such decision or judgment on the matter as may be authorised by law and make such order or orders as may be necessary.


36. Powers of appellate court on appeals from other orders.

The appellate court may on any appeal from any order other than a conviction, acquittal or dismissal alter or reverse the order.


37. Appellant’s right to be present at appeal.

(1) An appellant who is in custody shall be entitled to be present at the hearing of the appeal.

(2) The right of an appellant who is in custody to be present at the hearing of the appeal shall be subject to his or her paying all expenses incidental to his or her transfer to and from the place where the court sits for the determination of the appeal; except that the court may direct that the appellant be brought before the court in any case where in the opinion of the court his or her presence is advisable for the due determination of the appeal, in which case the expenses shall be defrayed out of the Consolidated Fund.


38. Delivery of judgment.

(1) On the termination of the hearing of an appeal, the court shall, either at once or at some future date which shall either then be appointed or of which notice shall subsequently be given, deliver judgment in open court; except that—

(a) in the case of an appeal against a conviction, if the court is of the opinion that the appeal shall be allowed and the appellant discharged, it may on the termination of the hearing of the appeal order the release of the appellant if he or she is in custody; and

(b) if it is inconvenient for the judge or any of the judges who heard the appeal to deliver the judgment, the judgment may be read in open court by another judge or by the registrar at the time and place appointed or fixed.

(2) In this section, “judge” occurring in subsection (1)(b) includes a magistrate.


39. Appellate court to make orders conformable with judgment.

When a case is decided on appeal by the appellate court, it shall thereupon make such orders as are conformable to the judgment or order and shall if necessary cause the record of the lower court to be amended in accordance with that judgment or order.


40. Admission of appellant to bail and custody pending appeal.

(1) A convicted appellant who is not admitted to bail shall, pending the determination of his or her appeal, be treated as an appellant prisoner for the purposes of the Prisons Act.

(2) The appellate court may, if it sees fit, admit an appellant to bail pending the determination of his or her appeal; but when a magistrate’s court refuses to release a person on bail, that person may apply for bail to the appellate court.

(3) The time during which an appellant, pending the determination of his or her appeal, is admitted to bail, and subject to any directions which the appellate court may give to the contrary on the appeal, the time during which the appellant, if in custody, is treated as an appellant prisoner under this section, shall not count as part of any term of imprisonment under his or her sentence; and the sentence of the appellant, whether it is the sentence passed by the court of trial or the sentence passed by the appellate court on appeal, shall, subject to any directions which may be given by the court as aforesaid, be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined, and, if he or she is not in custody, as from the day on which he or she is received into prison under the sentence.

(4) Notwithstanding subsection (3), when an appellant has been in custody pending the determination of his or her appeal for a period longer than six weeks then, unless the appellate court otherwise orders, his or her sentence shall begin to run so soon as he or she has been in custody for a total period of six weeks.

(5) Notwithstanding subsection (1), a convicted appellant may, at the time of lodging notice of appeal, elect to be treated pending the determination of his or her appeal as a convicted criminal prisoner for the purposes of the Prisons Act.

(6) Where a convicted appellant elects in accordance with subsection (5) to be treated as a convicted criminal prisoner, the sentence of that convicted appellant, whether it is the sentence passed by the court of trial or the sentence passed by the appellate court on appeal, shall, subject to any directions by the appellate court to the contrary, commence from the date of the original sentence.

(7) Where a court convicts any person and sentences him or her to a term of imprisonment, it shall inform the person of his or her right of election under subsection (5).


41. Further evidence.

(1) In dealing with an appeal from a lower court, the appellate court, if it thinks additional evidence is necessary, may record its reasons and may take that evidence itself or may direct it to be taken by the lower court.

(2) When the additional evidence is taken by a lower court, that court shall certify the evidence to the appellate court which issued the direction which shall thereupon proceed to dispose of the appeal.

(3) Unless the appellate court otherwise directs, the accused person or his or her advocate shall be present when the additional evidence is taken.

(4) Evidence taken under this section shall be taken as if it were evidence at a trial before the lower court.

(5) In dealing with an appeal from a lower court, the appellate court may, if it thinks fit, call for and receive from the lower court a report on any matter connected with the appeal.


42. Number of judges on an appeal.

(1) Appeals from magistrates courts shall be heard by one or more judges as the Chief Justice shall direct.

(2) The direction referred to in subsection (1) may be given before the hearing of the appeal or at any time before judgment is delivered.

(3) If on the hearing of an appeal the court is equally divided in opinion, the appeal shall be dismissed.


43. Abatement of appeal.

(1) Every appeal from a magistrate’s court, except an appeal from a sentence of a fine, shall finally abate on the death of the appellant.

(2) If, after diligent search, any document relevant to an appeal cannot be served upon an appellant, the appellate court may order that the appeal be deemed to be abated or may give such other directions as it thinks fit.


44. Dismissal of appeal for want of prosecution.

(1) The appellate court may dismiss an appeal for want of prosecution—

(a) if the appellant, at any time before the appeal is determined, escapes from custody or fails to appear after he or she has been released on bail; or

(b) if the appellant fails to take any necessary step in prosecuting his or her appeal within the time allowed and has not made an application for extension of time.

(2) Notwithstanding subsection (1), the appellate court may consider and determine an appeal in the absence of the appellant and may make such other order as it thinks fit.

(3) Where on the dismissal of an appeal under section 42 or this section any sentence of imprisonment or of a fine remains to be served or paid, the appellate court may issue a warrant of arrest or make such other order as it deems necessary to enforce the execution of the sentence.


45. Second appeals.

(1) Either party to an appeal from a magistrate’s court may appeal against the decision of the High Court in its appellate jurisdiction to the Court of Appeal on a matter of law, not including severity of sentence, but not on a matter of fact or of mixed fact and law.

(2) On any such appeal, the Court of Appeal may, if it thinks that the judgment of the magistrate’s court or of the High Court should be set aside or varied, make any order which the magistrate’s court or the High Court could have made, or may remit the case, together with its judgment or order on it, to the High Court or to the magistrate’s court for determination, whether or not by way of rehearing, with such directions as the Court of Appeal may think necessary.

(3) Notwithstanding subsection (2), in the case of an appeal against conviction, if the Court of Appeal dismisses the appeal and confirms the conviction appealed against, it shall not, except as provided in subsection (4), increase, reduce or alter the nature of the sentence imposed in respect of that conviction, whether by the magistrate’s court or by the High Court, unless the Court of Appeal thinks that the sentence was an unlawful one, in which case it may impose such sentence in substitution for it as it thinks proper.

(4) If it appears to the Court of Appeal that a party to an appeal, though not properly convicted on some count, has been properly convicted on some other count, the Court of Appeal may, in respect of the count on which the court considers that the appellant has been properly convicted, either affirm the sentence passed by the magistrate’s court or by the High Court, or pass such other sentence, whether more or less severe, in substitution for it as it thinks proper.

(5) Where a party to an appeal has been convicted of an offence and the magistrates court or the High Court could lawfully have found him or her guilty of some other offence and, on the finding of the magistrate’s court or of the High Court, it appears to the Court of Appeal that the court must have been satisfied of facts which proved him or her guilty of that other offence, the Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the conviction entered by the magistrate’s court or by the High Court a conviction of that other offence, and pass such sentence in substitution for the sentence passed by the magistrate’s court or by the High Court as may be warranted in law for that other offence.

(6) On any appeal brought under this section the Court of Appeal may, notwithstanding that it may be of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

(7) For the purposes of this section, the proceedings of the High Court on revision shall be deemed to be an appeal.

(8) The provisions of section 40 other than subsection (2) of that section shall apply to a convicted appellant appealing under this section.


46. Third appeals.

Where an appeal emanates from a judgment of a magistrate grade II, and either the accused person or the Director of Public Prosecutions has appealed to the chief magistrate, and from there to the High Court, either the accused or the Director of Public Prosecutions may lodge a third and final appeal to the Court of Appeal with the certificate of the High Court that the matter raises a question of law of great public or general importance or if the Court of Appeal in its overall duty to see that justice is done, considers that the appeal should be heard; except that in such a third appeal by the Director of Public Prosecutions, the Court of Appeal shall only give a declaratory judgment.


47. Admission to bail pending second appeal.

A judge of the High Court may in his or her discretion, in any case in which an appeal from a decision of the High Court in its appellate jurisdiction to the Court of Appeal is filed, grant bail pending the hearing of the appeal.