CHAPTER THREE
Procedure
PART IV
SUMMARY PROCEEDINGS
SUB-PART B
Summary Appeal and Notice of Appeal
Notice of Appeal
Right to appeal
720.— (1) Where a District Court acting in the exercise of its summary jurisdiction —
(a) refuses to make an order, or dismisses a complaint, the complainant may appeal to the Court of Appeal against such decision;
(b) makes an order, the person against whom the order is made, whether complainant, or defendant, may appeal to the Court of Appeal against such decision.
(2) An appeal to the Court of Appeal shall be made in the manner and subject to the conditions provided in this Sub-Part.
(3) Nothing in this section confers a right of appeal contrary to the provisions of any enactment, which provides that there is to be no appeal, or that the proceedings under the enactment are to be final.
Appeal against summary conviction of indictable offence
721. When a person has been summarily convicted of an indictable offence, the conviction is to be deemed a conviction of a summary offence, and not an indictable offence, and such conviction may be appealed against, subject to the provisions for the time being in force governing appeals against convictions for summary offences.
Right after notice of appeal to copies of proceedings
722.— (1) When a party to a cause or matter in a District Court has filed an appeal against the decision of the District Court he or she shall, on making an application to the clerk of the Court and on paying the prescribed fee obtain a copy of the proceedings in the case, including a copy of the written judgment, notes or memorandum of the reasons of the Magistrate for the decision.
(2) Any such application may be made by the party himself or her¬self or by his or her counsel or other person authorised in that behalf by him or her.
(3) The clerk of the Court shall furnish the applicant with a copy of the proceedings as soon as practicable, and at the latest, within five days after the making of the application.
Suspension of execution during appeal, when
723. Subject to the provisions of section 734, an appeal shall, when filed, have the effect of suspending the execution of the decision appealed against, until the appeal has been determined by the Court of Appeal.
Notice of appeal
724.— (1) Any person who desires to appeal against a decision of the District Court shall —
(a) at the time of the decision of the Court and in the presence of the other party, either by himself or herself or by his or her counsel give notice in open Court to the Magistrate and to the other party, of his or her intention to appeal; or
(b) within fifteen days after the decision of the Court; serve notice in writing of the appeal upon the clerk of the Court.
(2) Every written notice of appeal may be signed either by the appellant or his or her counsel.
(3) If the appellant signs the notice by means of his or her mark, the mark shall be verified by at least one witness, who shall sign his or her name.
(4) On receiving any notice of appeal, the clerk of the Court shall make or cause to be made, an entry thereof in the proper record book of the Court.
Notice of appeal by appellant in custody
725.— (1) Where a person desiring to appeal is committed to a correctional facility, he or she shall having regard to the time allowed for the appeals under sub-section (3) notify a correctional officer , either verbally or in writing in sufficient time after his or her arrival at the correctional facility, to render the service of his or her notice of appeal effective, of his or her desire to appeal.
(2) In case of a verbal notification, the correctional officer shall reduce or cause the notice to be reduced into writing.
(3) In every such case, the correctional officer shall forthwith for¬ward or cause to be delivered to the clerk of the Court the notice in writing.
(4) No such notice shall be valid unless it has been served or delivered to the clerk of the Court within fifteen days after the decision of the Court.
Notice by clerk to respondent
726.— (1) The clerk of the Court shall cause to be served upon or delivered to the respondent, or his or her counsel, a notice informing him or her of the appeal within three days after the notice of appeal has been delivered, or so soon thereafter as it is practicable.
(2) Failure to deliver such notice shall not invalidate the appeal.
Notice of grounds for appeal
727.— (1) The appellant shall, within twenty-one days after the decision of the Court, serve upon the clerk of the Court notice in writing of the grounds for his or her appeal.
(2) A notice of the grounds for appeal may be served either at the time of giving or serving the notice of appeal, or within twenty-one days of the decision of the Court, and may either be embodied in the written notice of appeal or in a separate document.
(3) Where the appellant is an inmate, a correctional officer shall cause a written notice of the grounds for appeal, if such grounds are communicated to him or her by the appellant, to be served in accordance with the provisions of subsection (1) of this section.
Appellant or practitioner to sign notice of grounds of appeal
728.— (1) Every notice of the grounds for appeal may be signed, either by the appellant or his or her counsel.
(2) If the appellant signs the notice by means of his or her mark, the mark shall be verified by at least one witness who shall sign his or her name.
Particulars of grounds of appeal
729. The appellant shall set forth, in the notice of the grounds for appeal, the particular matter on which he or she relies, or of which he or she complains, in such manner as to inform the other party and the Court of such matter, if for example —
(a) he or she relies on the ground that the case has already been heard or tried and decided by a competent tribunal, or is the subject of a hearing or trial pending before, any competent tri¬bunal, the name of the tribunal shall be stated, and if a decision is alleged, the approximate date of such decision shall be stated;
(b) he or she relies on the ground that the decision is erroneous on a point of law, the nature of the error shall be stated;
(c) he or she relies on the ground that some other specific illegality, not mentioned in this section, and which substantially affects the merits of the case, has been committed in the course of the proceedings in the case, such illegality shall be clearly specified.
Notice of special grounds
730. The appellant shall not be permitted to rely on any special ground of appeal unless such ground is set forth in the notice of grounds for appeal, or unless the appellant has given three days’ prior notice to the respondent of such special ground of appeal in the manner prescribed in section 729.
Entry of notice of reasons for appeal
731. On receiving the notice of grounds for appeal, the clerk of the Court shall make or cause to be made an entry of the notice in the proper record book of the Court.
Statutory grounds of appeal
732.Where no specific grounds of appeal have been served, the following general grounds of appeal shall be presumed with respect to an appellant—
(a) who is a defendant—
(i) that he or she is not guilty of the offence,
(ii) that the decision is not altogether supported by the evidence,
(iii) that the punishment is excessive;
(b) who is a complainant—
(i) that the defendant committed the offence with which he or she stood charged,
(ii) that the dismissal of the complaint is not altogether supported by the evidence,
(iii) that an order made against him or her is not warranted by the evidence.
Recognizance or other security by appellant
733. (1) The appellant may, after he or she has served notice of appeal, and within 15 days after the decision of the Court, enter into a recognizance, with at least one sufficient surety, to the satisfaction of the magistrate, for the due prosecution of the appeal and for abiding by the result of the appeal, including the payment of all costs of the appeal.
(2) The appellant may, if the nature of the case admits of his or her so doing, instead of entering into a recognizance, lodge with the clerk of the Court the amount awarded by the decision as well
as the amount of the costs, together with the sum of $500 to abide the costs of the appeal or the amount of costs of the appeal only, as the case may be, and in addition, shall pay to the clerk of the Court all fees in respect of the appeal, if any.
(3) If the appellant is in custody, he or she may be released from custody on the order of the magistrate if he or she complies with the requirements of this section.
(4) A person aggrieved by the decision of the magistrate pursuant to subsection (3) may appeal to a judge of the High Court in chambers who may confirm, reverse or vary the decision of the magistrate.
(5) The magistrate may, when he or she deems it expedient so to do, dispense with the requirement of such recognizance, deposit, or fees, under subsection (1) or (2).
(6) The person prosecuting or defending or appearing as a public officer, or in the public interest, shall not be bound or required to enter into any recognizance or make the deposit, or pay any fees under subsection (1) or (2).
Transmission of appeal proceedings to Registrar
734.— (1) Where an appellant has served the clerk of the Court with notice of appeal or grounds for appeal, and has also complied with the requirements of section 733 the clerk of the Court shall, within seven days after such compliance has been made, or so soon thereafter with such due despatch as may be practicable, transmit to the Registrar the record of the proceedings in the case, duly certified under his or her hand, which shall consist of —
(a) the complaint and plea or copy thereof;
(b) a copy of the notes of evidence taken in the case;
(c) a copy of the adjudication;
(d) the notice of the appeal if such notice is in writing;
(e) the notice of grounds for appeal served on the clerk; if any;
(f) the recognizance, if any;
(g) all other documents connected with the case;
(h) a list of the names of the appellant and respondent, the names of the witnesses, distinguishing the names of those examined on behalf of the complainant and those examined on behalf of the defendant;
(i) a list of the proceedings and documents or copies thereof, transmitted;
(j) the date of the order.
(2) It is not necessary to transmit a conviction or order that is for¬mally drawn up, but it is sufficient to transmit, in place of such formal instrument, a copy of the minute or memorandum of the conviction or order, required to be made pursuant to the provisions of section 714.
(3) The Magistrate shall also cause to be transmitted with the copy of the proceedings his or her written judgment, if any, or if there is none, he or she shall transmit a memorandum of the reasons for the decision.
SUB-PART B
Summary Appeal Hearings
Sittings of Court of Appeal
735. The Court of Appeal (referred to in this Sub-Part and in Sections 736 to 770 as “the Court”) shall, except when the Court is on vacation, sit for the purpose of hearing appeals from the District Courts at such time as may, from time to time be fixed by the Chief Justice, or is otherwise fixed by law.
Notice of appeal sitting to parties
736. The clerk of the Court, after consultation with the Registrar of the Court, shall notify the parties to attend the sitting of the Court at which the case shall come on for hearing.
No appeal to be heard within 21 days of order but by consent
737. Except with the consent of all the parties no appeal shall be heard until after the expiration of twenty-one days of the order against which the appeal is made.
Appearance in person or by counsel
738. At the hearing of an appeal, any party may be heard in person, or by counsel.
Striking out appeal on non-appearance of appellant
739.— (1) If the appellant fails to appear, on the day of hearing or at any adjournment of the case, the appeal shall be struck out and the decision shall be affirmed, unless the Court thinks fit, for sufficient cause, to order otherwise.
(2) If the appellant fails to appear but the respondent appears, the judgment shall include costs of the appeal against the appellant, unless the Court expressly orders otherwise.
(3) Where the respondent fails to appear, costs of the appeal shall be in the discretion of the Court.
Adjournment and terms thereof
740. The Court may adjourn the hearing of the appeal from time to time upon such terms as to costs and postponement as the Court may think just.
General provisions as to hearing
741.— (1) If the appellant appears on the day of hearing and at every adjournment of the case, the Court shall, whether the respondent appears or not, proceed to the hearing or further hearing and determination of the case, and shall give judgment on the merits, without regard to any imperfection or defect of form in any proceedings in the District Court, and notwithstanding that the order made by the District Court was in excess of that which might lawfully have been made by the
District Court.
(2) If it appears, or it is proved to the satisfaction of the Court, that the appellant has not complied with the requirements of this Sub-Part, with respect to the giving or service of notice of appeal or grounds of appeal or with the requirements of section 733, the Court shall dismiss the appeal and affirm the decision, with or without costs against the appellant, as it may think fit unless, on good and sufficient cause being shown, the Court considers that it would be most unjust in the circumstances to do so, in which case it may hear the appeal on such terms and conditions as it may consider proper or make any other order as it thinks fit.
Appellant bound by grounds in notice
742.— (1) At the hearing of an appeal it shall not be competent for the appellant to go into, or to give evidence of, any other ground for appeal than those set forth in his or her notice of grounds for appeal, or of which he or she has given notice as provided in section 730.
(2) The appellant may, if he or she has given no notice of grounds for appeal, rely upon the statutory grounds stated in section 732.
Objections to grounds for appeal
743.— (1) At the hearing of the appeal, no objection to any defect in the form of the notice setting forth the grounds for appeal shall be al¬lowed, and no objection to the admission of any evidence lawfully offered in support of any of the grounds for appeal shall prevail, unless the Court is of opinion that such ground for appeal is so imperfectly or incorrectly set forth as to be insufficient to enable the respondent to reply properly to such ground for appeal.
(2) Where the Court is of the opinion that an objection to any grounds for appeal or to the admission of evidence in support of any ground for appeal ought to prevail, the Court may, if it thinks fit, cause such ground for appeal to be amended forthwith upon such terms and conditions, if any, as the Court may think just.
Defects, variances, etc., when immaterial
744.— (1) If, any objection is made on account of any defect or variance in a complaint or other proceeding, or on account of any omission or mistake or variance in the drawing up of a conviction or order, minute or memorandum or other proceeding, and it is shown to the satisfaction of the Court, that sufficient evidence given before the District Court, making such order to have authorised the making or drawing or of any other proceeding free from such mistake or variance, the Court shall amend such complaint or such conviction, or order, minute or memorandum, or other proceeding, and proceed as if no such defect, omission or mistake or variance had existed.
(2) Subject to the provisions of subsection (2) of section 741, nothing in this section shall affect the provisions of section 733.
Amendment of recognizance
745. The Court may, if it thinks it necessary or expedient in the interests of justice, amend any recognizance, provided it has been entered into in due time.
Production of documents, exhibits, or other things
746. — (1) The Court may order the production of any document, exhibit, or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the appeal.
(2) A proper officer shall cause all writings and other articles exhibited by any witnesses, or any of them, to be inventoried and labelled, or otherwise marked, so that the same may be identified at a trial.
(3) All exhibits shall, be taken charge of by a proper officer, and shall be produced by him or her at a trial.
Appeal to be determined on record
747. Subject to the provisions of sections 749, 750 and 751, an appeal shall generally, and especially in the case of a dismissal, be heard and determined only on the record, transmitted to the Court.
Notice of application to adduce evidence at hearing
748. Any party who intends to apply at the hearing of the appeal for evidence or further evidence to be adduced at the hearing shall give written notice of the application and the reasons in support of the application to the other parties to the appeal, and shall also file the application with the Registrar before the case is to be heard.
Evidence by affidavit
749. Where further evidence is ordered, the Court may, in appropriate circumstances, also order that such evidence be given by affidavit.
Examination of witness in appeal
750.— (1) A witness may be examined at the hearing of an appeal, even though he or she was not examined at the original hearing if the Court is satisfied as to any of the following matters —
(a) that he or she was served with a summons at the original hearing, and was prevented from appearing due to some unavoidable cause;
(b) that he or she was prevented from appearing in person by reason of his or her absence from the State;
(c) that he or she was actually offered for examination, but the District Court improperly refused to examine him or her.
(2) Except as otherwise provided in subsection (1), only those witnesses examined at the original hearing shall be examined at the hearing of an appeal, unless the Court is satisfied that without the further evidence of other witnesses, a miscarriage of justice is likely to result.
Proceedings as to evidence on appeal
751.— (1) Where in any proceedings the Court considers it necessary that fresh evidence or further evidence should be adduced, it may either —
(a) re-examine any witness, who was a competent witness at the trial, and who gave evidence at the original hearing;
(b) order any witness, who would have been a competent witness at the trial to attend and be examined before the Court, whether or not he or she was called as a witness at the original hearing;
(c) receive the evidence, if tendered, of any witness including the appellant or respondent whether or not he or she was called or examined at the original hearing, but no person shall be called as a witness without his or her consent where such consent is required by law;
(d) order the evidence to be adduced before the Court on a day to be fixed;
(e) refer the case back to the Magistrate to take the evidence, and may in that case—
(i) direct the Magistrate to adjudicate afresh after taking the evidence and subject to such directions in law, if any, as the Court may think fit to give, or
(ii) direct the Magistrate after taking the evidence to report specific findings of fact for the information of the Court,
and on any such reference the case shall, so far as may be practicable
and necessary, be dealt with as if it were being heard in the first instance;
(f) remit to any fit person to inquire and report in regard to the facts and circumstances of any case under appeal, and on con-sidering such report may pronounce judgment.
(2) Any witness required under subsection (1) —
(a) shall be summoned or produced in the same manner;
(b) may be remunerated at the same rate; and
(c) shall suffer the same penalties and liabilities for non-attendance,
as are provided with respect to witnesses summoned to attend at the hearing or trial of any case before the Court in the exercise of its general civil jurisdiction.
(3) Where a case is referred back to the District Court under sub¬section (1) (e), the Court may direct the District Court to re-summon the respective parties to the appeal and to re-hear and determine the case referred to it without any further charges or costs and, unless the Court otherwise directs, either party is entitled, subject to the provisions of this Code, to appeal against the decision or order of the District Court on such re-hearing.
Inadmissible grounds of appeal
752. No appeal shall be allowed on any of the following grounds —
(a) that the District Court had no jurisdiction in the case unless an objection to the jurisdiction of the District Court had been formally taken at any time during the proceedings of the case and before the decision of the Court has been given but if such objection has been so taken, and is well founded, the Court may refer the case back to the Magistrate with such directions as it considers proper, or may hear and determine the case upon the merits, and may confirm, reverse or vary the decision of the Magistrate or may make such other order in the matter as the Court thinks just, and may by such order exercise any power which the Magistrate against whose decision the appeal is made might have exercised;
(b) that inadmissible evidence has been admitted by the District Court, if there is sufficient admissible evidence to sustain the decision;
(c) that admissible evidence has been rejected; but if the Court considers the objection well founded, it shall proceed in accordance with the provisions of section 751;
(d) that the case should not have been dealt with as a summary offence;
(e) that the sentence, penalty or punishment is inadequate;
(f) that any question of value, compensation or costs has been wrongly determined by the Magistrate, unless in the opinion of the Court his or her determination is not altogether supported by the evidence nor justified in the circumstances.
Appeals to be decided on merits
753.— (1) No conviction or order made in pursuance of any proceedings for a summary conviction shall be quashed for any defect or want of form.
(2) Every appeal shall be decided on its merits, and in all cases where it appears that the merits of the case have been tried and there is evidence to support the decision by the Magistrate the Court shall con¬firm the decision and no conviction, order, warrant, process or proceeding in connection with the decision, shall be quashed, notwithstanding any objection concerning the improper admission or rejection of any evidence.
(3) The Court may, in any case where there was improper admission or rejection of evidence, amend the conviction, order, warrant, process or proceeding if necessary, or give such judgment or make such order as it considers the Magistrate should have given or made in the circumstances.
Powers of Court on appeal
754.— (1) In giving judgment the Court may —
(a) confirm, vary or reverse the decision, either in whole or in part;
(b) refer or remit the case under the provisions of sections 751 and 752 or otherwise;
(c) make such other order for disposing of the case as justice may require.
(2) The Court may, so far as may be necessary for doing complete justice between the parties, review any order made by the Magistrate with respect to the case.
Judgment on appeal final
755. Every judgment of the Court on appeal shall be final and conclusive.
Power of Court as to costs
756. Subject to the provisions of this Sub-Part, the Court may make such order as to the costs of any case, both in the District Court and in Court, as it may think just, and may order such costs to be paid forthwith, and imprisonment on default in addition to any term of imprisonment to which the person ordered to pay such costs may be otherwise liable.
Costs where appeal abandoned or withdrawn
757. Where an appeal is abandoned or withdrawn, the Court may, on proof of notice of appeal having been given to the person entitled to receive such notice, order that the person be paid such costs as the Court may think fit, notwithstanding that the appeal has not been prosecuted.
Execution for appeal costs
758.— (1) If payment of costs is not made, the person entitled to it may apply to the District Court for an order of execution as if the judgment or order as to costs was a judgment given in the District Court in the exercise of its civil jurisdiction.
(2) The Magistrate may also, on application by or on behalf of the person entitled to such costs, commit the person by whom it is payable to a correctional facility for any term not exceeding two months, in addition to any term of imprisonment to which he or she may be otherwise liable under the judgment in the case, unless the amount of such costs and all unpaid costs and charges of the execution if any, or otherwise, and the costs of the commitment, if the Magistrate thinks fit so to order, are sooner paid.
Default of appearance by appellant
759.— (1) Where the appellant fails to appear before the Court and to prosecute his or her appeal, the Registrar of the Court shall, not later than twenty-four hours, transmit to the clerk of the Court from which the case on appeal was brought, a certificate to that effect, and the Magistrate shall treat the recognizance as forfeited and deal with it as such, or make such order as may be just, with respect to the amount lodged by the appellant.
(2) Where the appellant has been released from custody but re¬mains or becomes liable to be kept in custody, the Magistrate shall forth¬with issue a warrant for his or her arrest and detention.
Transmission of appeal judgment to District Court
760. The Registrar of the Court shall, within twenty-four hours after the Court has delivered its judgment, or so soon thereafter as may be practicable, transmit a certificate of the judgment to the clerk of the District Court against whose decision the appeal is made and the clerk shall then cause the judgment to be put into execution forthwith, in the same manner as the orders of the District Court are enforceable.
Power of Magistrate to enforce appeal judgment
761.— (1) Subject to the provisions of this section, after the Court has delivered its judgment, the Magistrate of the Court against whose decision the appeal is made shall have the same jurisdiction and power to enforce any decision which has been confirmed or varied by the Court, or any judgment which has been pronounced by the Court, in the same manner in all respects, as if such decision or judgment had been pronounced by the Magistrate.
(2) Where an order for the imprisonment of any person, or for the payment of money and in default of payment for the imprisonment of the person, is confirmed or varied, or made originally on appeal, the pronouncement of the sentence shall be a sufficient warrant without more for the arrest, detention and commitment to a correctional facility of the person.
(3) The imprisonment of the person, if it has not already commenced, shall commence from the day on which he or she is in actual custody in the correctional facility where he or she may have been ordered to be imprisoned.
(4) Where the person has been discharged from imprisonment on giving the requisite security under section 733, he or she shall be imprisoned for such further period as, together with the time during which he or she may already have spent in the correctional facility, may be equal to the period for which he or she was ordered to be imprisoned.
Publication of judgment reasons
762. Where the Court has delivered a written judgment the Registrar of the Court shall forward to the Government Printery, a copy of the judgment to be published in the Gazette, for the guidance of the District Courts.
Case Stated by Magistrate Power of Magistrate to state case
763.— (1) After the hearing and determination of any complaint, the Magistrate may, in his or her discretion, on the application of either party to such complaint or on his or her own motion, state a case on any point of law arising in the case for the opinion of the Court.
(2) The statement of facts in the case stated shall, for the purpose of the determination of the case, be conclusive.
Recognizance by applicant
764. If a case is stated on the application of a party, the party, (hereinafter called the “appellant”), shall , at the time of making his or her application enter into recognizance with one or more sureties acknowledged before the Magistrate or the clerk of the Court on condition to appear and prosecute his or her appeal and to abide by the judgment of the Court, as well as pay such costs as may be awarded by the Court.
Release of appellant
765. If the appellant is in custody, he or she may be released upon a recognizance being entered into.
Transmission of case and notice of hearing
766. A case stated shall be transmitted to the Registrar of the Court in the same manner and with the same notice to the parties as in a case on appeal under this Sub-Part.
Saving as to right of appeal
767. Nothing in this section shall be construed to prevent either party in such a case from appealing against any determination of fact or question of law that is not raised in the case stated by the Magistrate, and such an appeal shall be independent of the case stated.
Power of Director of Public Prosecutions to require case to be stated
768. The Director of Public Prosecutions may, by notice in writing under his or her hand, require a Magistrate to state a case on any point of law, and on receipt of such notice, the Magistrate shall state such case accordingly.
Remission of case stated to Magistrate. Hearing and Procedure
769. — (1) The Court may remit any case stated to the Magistrate for further information from the Magistrate.
(2) The Court shall hear and determine questions of law arising on the case stated, and the provisions of this Code with respect to the hear¬ing and judgment of appeals and of all matters incidental thereto shall, so far as appropriate, apply to a case stated.
Review of sentencing
770.— (1) A case to which this section applies may be referred to the Court for the sentencing to be reviewed under subsection (3).
(2) This section applies to any case in which sentence is passed on a person convicted of an offence in the High Court or a magistrate’s court.
(3) Without prejudice to anything in this Code relating to appeals in, or stating of, criminal cases or matters to the Court, the Director of Public Prosecutions, if it appears to him or her that the sentencing of a person in a case to which this Code or any other enactment applies has been unduly lenient, may refer the case to the Court for the Court to review the sentencing; and on such a reference the Court may —
(a) quash the sentence passed on that person by the court of trial; and
(b) in place of that sentence pass such sentence as the Court thinks appropriate and as the court of trial had power to pass when dealing with the person tried.
(4) The provisions of subsection (3) may be satisfied if it appears to the Director of Public Prosecutions that the judge or, as the case may be, the magistrate erred in law as to his or her powers of sentencing.
(5) The time during which a person is in custody pending the review of his or her case pursuant to a reference under this section shall be reckoned as part of the term of any sentence to which he or she is for the time being subject.
(6) The term of any sentence passed by the Court under sub section (3) shall, unless the Court orders otherwise, begin to run from the time when that term would have begun to run if it had been passed by the court of trial.
(7) The provisions of sections 768 and 769 apply, with such modifications and adaptations as are necessary, in relation to a case referred to the Court under this section as those provisions apply in relation to a case referred to the Court under those sections.
Appeal against decision of acquittal or conviction or against sentence - national proceedings
Appeal against other decisions - national proceedings
EDIT.