PART III—APPEALS.
Appeals from courts.
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.
Appeal against other decisions - national proceedings
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