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[F.A.Q.]
Kiribati Consolidated Legislation |
LAWS
OF THE GILBERT
ISLANDS
REVISED
EDITION 1977
CHAPTER 17
ARRANGEMENT OF SECTIONS
Section
PART I
PRELIMINARY
1. Short
title
2.
Interpretation
3. Inquiry into and
trial of offences
PART II
POWERS OF COURTS
4. Power to try
offences
5. Offences under certain
laws
6. Sentences which High Court may
pass
7. Sentences which a magistrates'
court may pass
8. Combination of
sentences
9. Sentences in cases of
conviction of several offences at one trial
PART III
GENERAL PROVISIONS
10.
Arrest
11. Search of place entered by
person sought to be arrested
12. Power
to break out of house or other place for purpose of
liberation
13. No unnecessary
restraint
14. Search of arrested
persons
15. Power of police officers
to detain and search persons, vehicles and vessels in certain
circumstances
16. Mode of searching
women
17. Power to seize offensive
weapons
18. Arrest by police officer
without warrant
19. Refusal to give
name and residence
20. Disposal of
persons arrested by police officer
21.
Arrest by private person
22. Disposal
of person arrested by private
person
23. Detention of persons
arrested without warrant
24. Police to
report apprehensions
25. Offence
committed in magistrate's presence
26.
Arrest by magistrate
27. Recapture of
person escaping
28. Provisions of
sections 11 and 12 to apply to arrests under section
27
29. Assistance to a magistrate or
police officer
30. Security for
keeping the peace
31. Security for
good behaviour from persons disseminating seditious
matters
32. Security for good
behaviour from vagrants and suspected persons
33. Security for good behaviour from
habitual offenders
34. Order to be
made
35. Procedure in respect of
person present in court
36. Summons or
warrant in case of person not so
present
37. Copy of order under
section 34 to accompany summons or
warrant
38. Power to dispense with
personal attendance
39. Inquiry as to
truth of information
40. Order to give
security
41. Discharge of person
informed against
42. Commencement of
period for which security is
required
43. Contents of
recognisance
44. Power to reject
sureties
45. Procedure on failure of
person to give security
46. Power to
release persons imprisoned for failure to give
security
47. Power of High Court to
cancel recognisance
48. Discharge of
sureties
49. Police officers to
prevent offences
50. Information of
design to commit such offences
51.
Arrest to prevent such offences
52.
Prevention of injury to public property
PART IV
PROVISIONS
RELATING TO ALL CRIMINAL
INVESTIGATIONS
AND
PROCEEDINGS
53. General authority of
High Court and magistrates' courts
54.
Accused person to be sent to district where offence
committed
55. Removal of accused
person under warrant
56. Powers of
High Court
57. Place and date of
sessions of the High Court
58.
Ordinary place of inquiry or trial
59.
Trial at place where act done or where consequence of offence ensues
60. Trial where offence is connected
with another offence
61. Trial where
place of offence is uncertain
62.
Offence committed on a journey
63.
High Court to decide in cases of
doubt
64. Court to be
open
65. Transfer of case where
offence committed outside
jurisdiction
66. Procedure when after
commencement of inquiry or trial, the magistrates' court finds case should be
transferred to another magistrates'
court
67. Power of High Court to
change venue
68. Power of
Attorney-General to enter
nolle
prosequi
69. Delegation of powers by
Attorney-General
70. Information by
the Attorney-General
71. Power to
appoint public prosecutors
72. Powers
of public prosecutors
73. Police
officers may conduct prosecutions before magistrates'
courts
74. Public prosecutors and
police officers to be subject to directions of the
Attorney-General
75. Conduct of
prosecution
76. Complaint and
charge
77. Issue of summons or
warrant
78. Notice to attend
court
79. Form and contents of
summons
80. Service of
summons
81. Service when person
summoned cannot be found
82. Procedure
when service cannot be effected as before
provided
83. Service on
company
84. Where summons may be
served
85. Proof of service when
serving officer not present
86. Power
to dispense with personal attendance of
accused
87. Warrant after issue of
summons
88. Summons
disobeyed
89. Form, contents and
duration of warrant of arrest
90.
Court may direct security to be
taken
91. Warrants, to whom
directed
92. Notification of substance
of warrant
93. Person arrested to be
brought before the court without
delay
94. Where warrant of arrest may
be executed
95. Procedure on arrest of
person outside jurisdiction
96.
Irregularities in warrant
97. Power to
take bond for appearance
98. Arrest
for breach of bond for appearance
99.
Power of court to order prisoner to be brought before
it
100. Provisions of this part
generally applicable to summonses and warrants and powers of justices of the
peace
101. Power to issue search
warrants
102. Execution of search
warrants
103. Persons in charge of
closed place to allow ingress thereto and egress
therefrom
104. Detention of property
seized
105. Provisions applicable to
search warrants
106. Bail in certain
cases
107. Recognisance of
bail
108. Discharge from
custody
109. Deposit instead of
recognisance
110. Power to order
sufficient bail when that first taken is
insufficient
111. Discharge of
sureties
112. Death of
surety
113. Persons bound by
recognisance absconding may be
committed
114. Forfeiture of
recognisance
115. Appeal from and
revision of orders
116. Power to
direct levy of amount due on certain
recognisance
117. Offence to be
specified in charge or information with necessary
particulars
118. Joinder of counts in
a charge or information
119. Joinder
of 2 or more accused in 1 charge or
information
120. Rules for the framing
of charges and informations
121.
Persons convicted or acquitted not to be tried again for same
offence
122. Person may be tried again
for separate offence
123. Consequences
supervening or not known at time of former
trial
124. Where original court was
not competent to try subsequent
charge
125. Previous conviction how
proved
126. Leave of Governor
necessary for institution of proceedings against
foreigners
127. Summons for
witness
128. Warrant for witness who
disobeys summons
129. Warrant for
witness in first instance
130. Mode of
dealing with witness arrested under
warrant
131. Power of court to order
prisoner to be brought up for
examination
132. Penalty for
non-attendance of witness
133. Power
to summon material witness, or examine person
present
134. Evidence to be given on
oath
135. Refractory
witness
136. Cases when wife or
husband may be called without the consent of the
accused
137. Issue of commission for
examination of witness
138. Parties
may examine witnesses
139. Return of
commission
140. Adjournment of inquiry
or trial
141. Competency of accused
and husband or wife as witnesses in criminal
cases
142. Procedure where person
charged is the only witness
called
143. Right of
reply
144. Inquiry by court as to
state of accused's mind
145. Defence
of unsoundness of mind at preliminary
investigation
146. Defence of
unsoundness of mind on trial
147.
Resumption of trial or
investigation
148. Certificate of
medical officer in charge of mental health wing as to sanity to be
evidence
149. Mode of delivering
judgment
150. Contents of
judgment
151. Copy of judgment to be
given to accused on application
152.
Costs against accused or against a private
prosecutor
153. Order to pay costs
appealable
154. Compensation in case
of frivolous or vexatious charge
155.
Property found on accused person
156.
Property stolen
157. When offence
proved is included in offence
charged
158. Persons charged with any
offence may be convicted of
attempt
159. Woman charged with murder
of child may be convicted of
infanticide
160. Persons charged with
murder or manslaughter of any child or with infanticide or with any offence
relating to the procuring of
an
abortion
161. Person charged with
killing an unborn child may be convicted for another
offence
162. Person charged with
murder or infanticide or killing an unborn child may be convicted of concealment
of birth
163. Person charged with
manslaughter in connection with the driving of a motor vehicle may be convicted
of offences under the Traffic
Ordinance
164. Person charged with
rape may be convicted of another
offence
165. Person charged with
incest may be convicted of unlawful carnal
knowledge
166. Person charged with
defilement of a girl under 15 years of age may be convicted of another
offence
167. Person charged with
defilement of a girl under 13 years of age may be convicted of another
offence
168. Person charged with
burglary, etc., may be convicted of kindred
offence
169. Person charged with
stealing may be convicted of receiving, embezzling, obtaining by false pretences
or of possessing or conveying
stolen
property
170. Person charged with
obtaining by false pretences may be convicted of
stealing
171. Person charged with
robbery may be convicted of assault with intent to
rob
172. Person charged with
embezzlement may be convicted of
stealing
173. Construction of sections
157 to 172, both inclusive
174. Person
charged with jointly receiving property may be convicted on proof that property
was received separately
175. Person
charged with misdemeanour not to be acquitted if felony proved, unless court so
directs
176. Accused may be defended
by an advocate or other person
177.
Appointment of assessors
178. Decision
when assessors have been appointed
PART V
MODE OF TAKING AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS
179. Evidence to be taken
in presence of accused
180. Manner of
recording evidence before
magistrate
181. Language of High
Court
182. Interpretation of evidence
to accused
183. Conviction or
commitment on evidence partly recorded by one magistrates' court and partly by
another
184. Record of evidence in
High Court
PART VI
PROCEDURE IN TRIALS BEFORE MAGISTRATES' COURTS
185.
Non-appearance of complainant at
hearing
186. Court may proceed with
hearing in absence of accused in certain
cases
187. Appearance of both
parties
188. Withdrawal of
complaint
189.
Adjournment
190. Non-appearance of
parties after adjournment
191.
Conviction in absence of accused may be set
aside
192. Commencement of sentence
passed in absence of accused
193.
Accused to be called upon to
plead
194. Procedure on plea of not
guilty
195. Acquittal of accused
person where no case to answer
196.
The defence
197. Evidence in
reply
198. Opening and close of case
for prosecution and defence
199.
Variance between charge and evidence and amendment of
charge
200. Negative
averments
201. The
decision
202. Drawing up of conviction
or order
203. Order of acquittal bar
to further proceedings
204. Limitation
of time for summary trials in certain
cases
205. Power to stop summary trial
and hold preliminary inquiry in
lieu
206. Special procedure in minor
cases
PART VII
PROVISIONS RELATING TO THE COMMITTAL OF ACCUSED PERSONS FOR TRIAL BEFORE THE HIGH COURT
207. Power to commit for
trial
208. Court to hold inquiry in
long or short form
209. Conduct of
preliminary inquiry in short form
210.
Conduct of preliminary inquiry in long
form
211. Variance between evidence
and charge
212.
Remand
213. Provisions as to taking
statement or evidence of accused
person
214. Evidence and address in
defence
215. Magistrates' court to
record defence witnesses' names,
etc.
216. Discharge of accused
person
217. Power to apply to High
Court for committal in certain cases where accused person
discharged
218. Committal for
trial
219. Summary
adjudication
220. Complainant and
witnesses to be bound over
221.
Refusal to be bound over
222. Accused
person entitled to copy of
depositions
223. Binding over of
witnesses conditionally
224. Taking
the depositions of persons dangerously
ill
225. Notice to be
given
226. Transmission of
statements
227. Use of statement in
evidence
228. Transmission of records
to High Court and
Attorney-General
229. Power of
Attorney-General to direct further
investigation
230. Powers of
Attorney-General as to additional
witnesses
231. Return of depositions
with a view to summary trial
232.
Filing of an information
233. Notice
of trial
234. Copy of information and
notice of trial to be served
235.
Return of service
236. Postponement of
trial
237. Information by
Attorney-General
238. Form of
information
PART VIII
PROCEDURE IN TRIALS BEFORE THE HIGH COURT ON INFORMATION
239. Practice of High
Court in its criminal
jurisdiction
240. Pleading to
information
241. Orders for amendment
of information, separate trial, and postponement of
trial
242. Quashing of
information
243. Procedure in case of
previous convictions
244. Plea of "not
guilty"
245. Plea of autrefois acquit
and autrefois convict
246. Refusal to
plead
247. Plea of
"guilty"
248. Proceedings after plea
of "not guilty"
249. Power to postpone
or adjourn proceedings
250. Opening of
case for prosecution
251. Additional
witnesses for prosecution
252.
Cross-examination of witnesses for the
prosecution
253. Depositions may be
read as evidence in certain cases
254.
Deposition of expert witness may be read as
evidence
255. Statement of
accused
256. Close of case for
prosecution
257. The
defence
258. Additional witness for
the defence
259. Evidence in
reply
260. Prosecutor's
reply
261. Where accused adduces no
evidence
262.
Decision
263. Calling upon the
accused
264. Motion in arrest of
judgment
265.
Sentence
266. Power to reserve
decision on question raised at
trial
267. Power to reserve decision
on questions arising in the course of
trial
268. Objections cured by
verdict
269. Evidence for arriving at
proper sentence
PART IX
APPEALS FROM MAGISTRATES' COURTS AND CASES STATED
270. Appeal to High
Court
271. Limitation of appeal on
plea of guilty and in petty cases
272.
Appeal to be by way of petition
273.
Form and contents of petition
274.
Petition to be forwarded to the High
Court
275. Summary dismissal of
appeal
276. Notice of
hearing
277. Admission to bail or
suspension of sentence pending
appeal
278.
Costs
279. Discontinuance of
appeal
280. Powers of High
Court
281. Further
evidence
282. Order of the High Court
to be certified to lower court
283.
Right of appellant to be present
284.
Revision by High Court to be certified to lower
court
285. Case stated by magistrates'
court
286. Appellant entitled to copy
of stated case
287. Notice of time and
place of hearing
288. Magistrate's
court may refuse case when it thinks application
frivolous
289. Procedure on refusal of
magistrates' court to state case
290.
High Court to determine the questions on the case; its decision to be
final
291. Case may be sent back for
amendment or rehearing
292. Orders of
the High Court to be certified to lower
court
293. Appellant may not proceed
both by case stated and by appeal
294.
Contents of case stated
295.
Constitution of court hearing case
stated
296. High Court may enlarge
time
PART X
SUPPLEMENTARY PROVISIONS
297. Proceedings in wrong
place
298. No appeal on point of form
or matter of variance
299. Power to
issue directions of the nature of habeas
corpus
300. Power of the High Court to
issue writs
301. Persons before whom
affidavits may be sworn
302. Shorthand
note of proceedings
303. Copies of
proceedings
304.
Forms
305. Expenses of assessors,
witnesses, etc.
-----------------------------------------
An
Ordinance to make provision for the procedure to be followed in criminal
cases
6 of 1963,
7 of 1965,
10 of
1967,
3 of 1968
8 of 1968
4 of 1969
L.N.
16/72
2 of 1972
3 of 1972
(Cap. 7 of 1973)
24 of 1974
10 of
1976
26 of
1977
Commencement:
14th October 1963
L.N. 37/63
PART I
PRELIMINARY
Short
title
1.
This Ordinance (hereinafter referred to as this Code) may be cited as the
Criminal Procedure
Code.
Interpretation
2.
In this Code, unless the context otherwise requires-
"advocate" means any legal practitioner entitled to practise before the High Court or any court subordinate thereto under any law for the time being in force;
"cognisable offence" means any felony and any other offence for which a police officer may under any law for the time being in force arrest without warrant;
"complaint" means an allegation that some person known or unknown has committed an offence;
"court" means the High Court or any magistrates' court as the context may require;
"customs laws" includes any Ordinance relating to the customs or excise and "offences against the customs laws" includes any act of any person contrary to the customs laws or any failure of any person to perform an act required by the customs laws to be performed by him;
"justice of the peace" means any person appointed to be a justice of the peace under the provisions of the Magistrates' Courts Ordinance;
Cap. 52
"mental health wing" means a place appointed as such for the care and treatment and detention of patients under the provisions of the Mental Treatment Ordinance;
"non-cognisable offence" means an offence for which a police officer may not arrest without warrant;
Cap. 56
"police officer" includes any special constable enrolled under the Police Ordinance;
Cap. 73
"preliminary investigation" or "preliminary inquiry" means an investigation of or an inquiry into a criminal charge held by a magistrates' court with a view to the committal of the accused person for trial before the High Court;
"private prosecution" means a prosecution instituted and conducted by any person other than a public prosecutor or a public officer in his official capacity;
"public prosecutor" means any person appointed as such under section 71, and includes the Attorney-General and any other legal officer, police officer or other person acting under the direction of the Attorney-General;
"Registrar of the High Court" means a person appointed as such under the provisions of section 78 of the Constitution;
"rules of court" means rules of court made under the provisions of section 79 of the Constitution.
Inquiry
into and trial of
offences
3.
Subject to the express provisions of any other law for the time being in force,
all offences shall be inquired into, tried and offences
otherwise dealt with
according to the provisions hereinafter contained.
PART II
POWERS OF COURTS
Power
to try
offences
4.
Subject to the other provisions of this Code-
(a) any offence may be tried by the High Court; and
(b) any offence may be tried by any magistrates' court where the maximum punishment prescribed by law for such offence does not exceed-
(i) imprisonment for a term of 5 years; or
(ii) a fine of $500; or
(iii) both such fine and such imprisonment; or where jurisdiction so to do has been conferred upon it by order made under the provisions of section 28 of the Magistrates' Courts Ordinance.
Cap. 52.
Offences
under certain
laws
5.
(1) Any offence under any law for the time being in force in the Gilbert Islands
shall, when any court is mentioned in that behalf
in such law, be tried by such
court.
(2) When no court is
mentioned in the manner referred to in subsection (1) in respect of any offence,
such offence may be tried in
accordance with this
Code.
Sentences
which High Court may
pass
6.
The High Court may pass any sentence authorised by
law.
Sentences
which magistrates’ court may
pass
7.
A magistrates’ court may, in the
cases in which such sentences are authorised by law, pass the following
sentences -
(a) imprisonment for a term not exceeding 5 years; or
(b) a fine not exceeding $500; or
(c) both such imprisonment and such fine.
Combination
of
sentences
8.
(1) Any court may pass any lawful sentence combining any of the sentences which
it is authorised by law to
pass.
(2) In determining the
extent of the court's jurisdiction under section 7 to pass a sentence of
imprisonment the court shall be deemed
to have jurisdiction to pass the full
sentence of imprisonment provided in the said section in addition to any term of
imprisonment
which may be awarded in default of payment of a fine, costs or
compensation.
Sentences
in cases of conviction of several offences at one
trial
9.
(1) When a person is convicted at one trial of 2 or more cases of distinct
offences the court may sentence him, for such offences,
to the several
punishments prescribed therefor which such court is competent to impose; such
punishments when consisting of imprisonment
to commence the one after the
expiration of the other in such order as the court may direct, unless the court
directs that such punishments
shall run
concurrently.
(2) In the case of
consecutive sentences it shall not be necessary for a magistrates' court, by
reason only of the aggregate punishment
for the several offences being in excess
of the punishment which it is competent to impose on conviction of a single
offence, to
send the offender for trial before a higher
court:
Provided that the aggregate
punishment shall not exceed twice the amount of punishment which such
magistrates' court is competent
to impose in the exercise of its ordinary
jurisdiction.
(3) For the purposes
of appeal or confirmation the aggregate of consecutive sentences imposed under
this section in case of convictions
for several offences at one trial shall be
deemed to be a single sentence.
PART III
GENERAL PROVISIONS
Arrest
10.
(1) In making an arrest the police officer or other person making the same shall
actually touch or confine the body of the person
to be arrested, unless there be
a submission to the custody by word or
action.
(2) If such person
forcibly resists the endeavour to arrest him, or attempts to evade the arrest,
such police officer or other person
may use all means necessary to effect the
arrest:
Provided that nothing in
this section contained shall be deemed to justify the use of greater force than
was reasonable in the particular
circumstances in which it was employed or was
necessary for the apprehension of the
offender.
Search
of place entered by person sought to be
arrested
11.
(1) If any person acting under a warrant of arrest, or any police officer having
authority to arrest, has reason to believe that
the person to be arrested has
entered into or is within any place, the person residing in or being in charge
of such place, shall,
on demand of such person acting as aforesaid or such
police officer, allow him free ingress thereto and afford all reasonable
facilities
for a search
therein.
(2) If ingress to such
place cannot be obtained under subsection (1), it shall be lawful in any case
for a person acting under a warrant,
and, in any case in which a warrant may
issue but cannot be obtained without affording the person to be arrested an
opportunity to
escape, for a police officer to enter such place and search
therein, and, in order to effect an entrance into such place, to break
open any
outer or inner door or window of any house or place, whether that of the person
to be arrested or of any other person, or
otherwise effect entry into such house
or place, if after notification of his authority and purpose and demand of
admittance duly
made he cannot otherwise obtain
admittance.
Power
to break out of house or other place for purpose of
liberation
12.
Any police officer or other person authorised to make an arrest may break out of
any house or other place in order to liberate himself
or any other person who,
having lawfully entered for the purpose of making an arrest, is detained
therein.
No
unnecessary
restraint
13.
The person arrested shall not be subjected to more restraint than is necessary
to prevent his
escape.
Search
of arrested
persons
14.
(1) Whenever a person is arrested by a police officer or a private person, the
police officer making the arrest or to whom the private
person makes over the
person arrested may search such person, and place in safe custody all articles
other than necessary wearing
apparel found upon
him:
Provided that whenever the
person arrested can be legally admitted to bail and bail is furnished, such
person shall not be searched
unless there are reasonable grounds for believing
that he has about his person any-
(a) stolen articles; or
(b) instruments of violence; or
(c) tools connected with the kind of offence which he is alleged to have committed; or
(d) other articles which may furnish evidence against him in regard to the offence which he is alleged to have committed.
(2)
The right to search an arrested person does not include the right to examine his
private person.
(3) Where any
property has been taken from a person under this section, and the person is not
charged before any court but is released
on the ground that there is no
sufficient reason to believe that he has committed any offence, any property so
taken from him shall
be restored to
him.
Powers of
police officers to detain and search persons, vehicles and vessels in certain
circumstances
15.
(1) Any police officer who has reason to suspect that any article stolen or
unlawfully obtained, or any article in respect of which
a criminal offence or an
offence against the customs laws has been, is being, or is about to be,
committed, is being conveyed, whether
on any person or in any vehicle, package
or otherwise, or is concealed or carried on any person in a public place, or is
concealed
or contained in any vehicle or package in a public place, for the
purpose of being conveyed, may, without warrant or other written
authority,
detain and search any such person, vehicle or package, and may take possession
of and detain any such article which he
may reasonably suspect to have been
stolen or unlawfully obtained or in respect of which he may reasonably suspect
that a criminal
offence or an offence against the customs laws has been, is
being, or is about to be committed, together with the package, if any,
containing it, and may also detain the person conveying, concealing or carrying
such article:
Provided that this
subsection shall not extend to the case of postal matter in transit by post
except where such postal matter has
been, or is suspected of having been,
dishonestly appropriated during such
transit.
(2) Any police officer of
or above the rank of sergeant may, if he has reason to suspect that there is on
board any vessel any property
stolen or unlawfully obtained, enter without
warrant, and with or without assistants, board such vessel and may remain on
board for
such reasonable time as he may deem expedient, and may search with or
without assistants any and every part of such vessel., and,
after demand and
refusal of keys, may break open any receptacle, and upon discovery of any
property which he may reasonably suspect
to have been stolen or unlawfully
obtained may take possession of and detain such property and may also detain the
person in whose
possession the same is found. Such police officer may pursue and
detain any person who is in the act of conveying any such property
away from any
such vessel, or after such person has landed with the property so conveyed away
or found in his possession.
(3)
Any person detained under this section shall be dealt with under the provisions
of section
23.
Mode of
searching
women
16.
Whenever it is necessary to cause a woman to be searched, the search shall be
made by another woman with strict regard to
decency.
Power
to seize offensive
weapons
17.
Notwithstanding the provisions of section 14, the officer or other person making
any arrest may take from the person arrested any
instruments of violence which
he has about his person, and shall deliver all articles so taken to the court or
officer before which
or whom the officer or person making the arrest is required
by law to produce the person
arrested.
Arrest
by police officer without
warrant
18.
Any police officer may, without an order from a magistrate and without a
warrant, arrest-
(a) any person whom he suspects upon reasonable grounds of having committed a cognisable offence;
(b) any person who commits any offence in his presence;
(c) any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;
(d) any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to such thing;
(e) any person whom he suspects upon reasonable grounds of being a deserter from Her Majesty's Army or Navy or Air Force;
(f) any person whom he finds in any highway, yard or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit a felony;
(g) any person whom he suspects upon reasonable grounds of having been concerned in any act committed at any place out of the Gilbert Islands which, if committed in the Islands, would have been punishable as an offence, and for which he is, under the Extradition Act 1870 or the Fugitive Offenders Act 1967, or otherwise, liable to be apprehended and detained in the Islands;
(h) any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of housebreaking;
(i) any person for whom he has reasonable cause to believe a warrant of arrest has been issued;
(j) any released convict committing a breach of any provision prescribed by section 40 of the Penal Code or of any rule made thereunder.
Refusal
to give name and
residence
19.
(1) When any person who in the presence of a police officer has committed or has
been accused of committing a non-cognisable offence
refuses on the demand of
such officer to give particulars of his name and residence, or gives particulars
of a name or residence
which such officer has reason to believe to be false,
such officer may arrest such person in order that his name or residence may
be
ascertained.
(2) When the true
name and residence of such person have been ascertained he shall be released on
his executing a bond, with or without
sureties, to appear before a magistrates'
court if so required:
Provided
that if such person is not resident in the Gilbert Islands the bond shall be
secured by a surety or sureties resident in
the
Islands.
(3) Should the true name
and residence of such person not be ascertained within 24 hours from the time of
arrest, or should he fail
to execute the bond or, if so required, to furnish
sufficient sureties, he shall forthwith be taken before the nearest magistrates'
court having
jurisdiction.
Disposal
of persons arrested by police
officer
20.
A police officer making an arrest without a warrant shall, without unnecessary
delay and subject to the provisions of this Code
as to bail, take or send the
person arrested before a magistrates' court having jurisdiction in the case or
before an officer of
or above the rank of sergeant or before the officer in
charge of the nearest police
station.
Arrest
by private
persons
21.
(1) Any private person may arrest any person who in his view commits a
cognisable offence, or whom he reasonably suspects of having
committed a felony
provided a felony has been
committed.
(2) Persons found
committing any offence involving injury to property may be arrested without a
warrant by the owner of the property
or his servants or person authorised by
him.
Disposal
of person arrested by private
person
22.
(1) Any private person arresting any other person without a warrant shall
without unnecessary delay make over the person so arrested
to a police officer,
or in the absence of a police officer shall take such person to the nearest
police station.
(2) If there is
reason to believe that such person comes under the provisions of section 18, a
police officer shall re-arrest
him.
(3) If there is reason to
believe that he has committed a non-cognisable offence, and he refuses on the
demand of a police officer
to give his name and residence, or gives a name or
residence which such officer has reason to believe to be false, he shall be
dealt
with under the provisions of section 19. If there is no sufficient reason
to believe that he has committed any offence he shall be
at once
released.
Detention
of persons arrested without
warrant
23.
When any person has been taken into custody without a warrant for an offence
other than murder or treason, the officer of or above
the rank of sergeant or
the officer in charge of the police station to whom such person shall have been
brought may in any case and
shall, if it does not appear practicable to bring
such person before an appropriate magistrates' court within 24 hours after he
has
been so taken into custody, inquire into the case, and unless the offence
appears to the officer to be of a serious nature, release
the person on his
entering into a recognisance with or without sureties, for a reasonable amount
to appear before a magistrates'
court at a time and place to be named in the
recognisance, but where any person is retained in custody he shall be brought
before
a magistrates' court as soon as
practicable:
Provided that an
officer of or above the rank of sergeant or the officer in charge of the police
station may release a person arrested
on suspicion on a charge of committing any
offence, when, after due inquiry, insufficient evidence is, in his opinion,
disclosed
on which to proceed with the
charge.
Police
to report
apprehensions
24.
Where any person is released under the proviso to section 23, the police officer
who authorised such release shall report the same
to the nearest magistrates'
court as soon as it is reasonably possible to do
so.
Offence
committed in magistrate’s
presence
25.
When any offence is committed in the presence of a magistrate within the local
limits of his jurisdiction he may himself arrest
or order any person to arrest
the offender, and may thereupon, subject to the provisions herein contained as
to bail, commit the
offender to
custody.
Arrest
by
magistrate
26.
Any magistrate may at any time arrest or direct the arrest in his presence,
within the local limits of his jurisdiction, of any
person for whose arrest he
is competent at the time and in the circumstances to issue a
warrant.
Recapture
of person
escaping
27.
If a person in lawful custody escapes or is rescued, the person from whose
custody he escapes or is rescued may immediately pursue
and arrest him in any
place in the Gilbert
Islands.
Provisions
of sections 11 and 12 to apply to arrests under section
27
28.
The provisions of sections 11 and 12 shall apply to arrests under section 27,
although the person making any such arrest is not
acting under a warrant and is
not a police officer having authority to
arrest.
Assistance
to a magistrate or police
officer
29.
Every person is bound to assist a magistrate or police officer reasonably
demanding his aid-
(a) in the taking or preventing the escape of any other person whom such magistrate or police officer is authorised to arrest;
(b) in the prevention or suppression of a breach of the peace, or in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.
Security
for keeping the
peace
30.
(1) Whenever a magistrates' court is informed on oath that any person is likely
to commit a breach of the peace, or to do any wrongful
act that may probably
occasion a breach of the peace, the magistrates' court may, in manner
hereinafter provided, require such person
to show cause why he should not be
ordered to enter into a recognisance, with or without sureties, for keeping the
peace for such
period, not exceeding 1 year, as the magistrates' court thinks
fit.
(2) Proceedings shall not be
taken under this section unless either the person informed against, or the place
where the breach of
the peace or disturbance is apprehended, is within the local
limits of such magistrates' court's
jurisdiction.
Security
for good behaviour from persons disseminating seditious
matters
31.
Whenever a magistrates' court is informed on oath that there is within the
limits of its jurisdiction any person who, within or
without such limits, either
orally or in writing or in any other manner, disseminates, or attempts to
disseminate, or in any wise
abets the dissemination of-
(a) any seditious matter, that is to say, any matter the publication of which is made an offence under any law for the time being in force; or
(b) any matter concerning a judge which amounts to criminal libel,
such
magistrates' court may (in the manner provided in this Code) require such person
to show cause why he should not be ordered to
enter into a recognisance, with or
without sureties, for his good behaviour for such period, not exceeding 1 year,
as the magistrates'
court thinks
fit.
Security
for good behaviour from vagrants and suspected
persons
32.
Whenever a magistrate is informed on oath that any person is taking precautions
to conceal his presence within the local limits
of such magistrate's
jurisdiction, and that there is reason to believe that such person is taking
such precautions with a view to
committing any offence, such magistrate may, in
manner hereinafter provided, require such person to show cause why he should not
be ordered to enter into a recognisance, with sureties, for his good behaviour
for such period, not exceeding 1 year, as the magistrate
thinks
fit.
Security
for good behaviour from habitual
offenders
33.
When a magistrates' court is informed on oath that any person within the local
limits of its jurisdiction-
(a) is by habit a robber, house breaker or thief; or
(b) is by habit a receiver of stolen property, knowing the same to have been stolen; or
(c) habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property; or
(d) habitually commits or attempts to commit, or aids or abets in the commission of, any offence punishable under Parts XXXIII, XXXV or sections 345 to 359 inclusive of Part XXXVI of the Penal Code; or
Cap 67
(e) habitually commits or attempts to commit, or aids or abets in the commission of, offences involving a breach of the peace; or
(f) is so desperate and dangerous as to render his being at large without security hazardous to the community,
such
magistrates' court may, in manner hereinafter provided, require such person to
show cause why he should not be ordered to enter
into a recognisance with
sureties, for his good behaviour for such period, not exceeding 2 years, as the
magistrates' court thinks
fit.
Order to
be
made
34.
When a magistrates' court acting under section 30, 31, 32 or 33 deems it
necessary to require any person to show cause under such
section, it shall make
an order in writing setting forth-
(a) the substance of the information received;
(b) the amount of the recognisance;
(c) the term for which it is to be in force; and
(d) the number, character and class of sureties, if any, required.
Procedure
in respect of person present in
court
35.
If the person in respect of whom such order is made is present in court, it
shall be read over to him or, if he so desires, the
substance thereof shall be
explained to
him.
Summons or
warrant in case of persons not so
present
36.
If such person is not present in court, the magistrates' court shall issue a
summons requiring him to appear, or, when such person
is in custody, a warrant
directing the officer in whose present custody he is to bring him before the
court:
Provided that whenever it
appears to such magistrates' court, upon the report of a police officer or upon
other information (the substance
of which report or information shall be
recorded by the magistrates' court), that there is reason to fear the commission
of a breach
of the peace, and that such breach of the peace cannot be prevented
otherwise than by the immediate arrest of such person, the magistrates'
court
may at any time issue a warrant for his
arrest.
Copy of
order under section 34 to accompany summons or
warrant
37.
Every summons or warrant issued under section 36 shall be accompanied by a copy
of the order made under section 34, and such copy
shall be delivered by the
officer serving or executing such summons or warrant to the person served with
or arrested under the
same.
Power to
dispense with personal
attendance
38.
The magistrates' court may, if it sees sufficient cause, dispense with the
personal attendance of any person called upon to show
cause why he should not be
ordered to enter into a recognisance for keeping the peace, and permit him to
appear by an
advocate.
Inquiry
as to truth of
information
39.
(1) When an order under section 34 has been read or explained under section 35
to a person present in court, or when any person
appears or is brought before a
magistrates' court in compliance with or in execution of a summons or warrant
issued under section
36, the magistrates` court shall proceed to inquire into
the truth of the information upon which the action has been taken, and to
take
such further evidence as may appear
necessary.
(2) Such inquiry shall
be made, as nearly as may be practicable, in the manner hereinafter prescribed
for conducting trials and recording
evidence in trials before magistrates'
courts.
(3) For the purposes of
this section the fact that a person comes within the provisions of section 33
may be proved by evidence of
general repute or
otherwise.
(4) Where 2 or more
persons have been associated together in the matter under inquiry, they may be
dealt with in the same or separate
inquiries as the magistrates' court thinks
just.
Order to
give
security
40.
(1) If upon such inquiry it is proved that it is necessary for keeping the peace
or maintaining good behaviour, as the case may
be, that the person in respect of
whom the inquiry is made should enter into a recognisance, with or without
sureties, the magistrates'
court shall make an order
accordingly:
Provided
that-
(a) no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under section 34;
(b) the amount of every recognisance shall be fixed with due regard to the circumstances of the case and shall not be excessive;
(c) when the person in respect of whom the inquiry is made is a minor, the recognisance shall be entered into only by his sureties.
(2)
Any person ordered to give security for good behaviour under this section may
appeal to the High Court, and the provisions of
Part IX (relating to appeals)
shall apply to every such
appeal.
Discharge
of person informed
against
41.
If on an inquiry under section 39 it is not proved that it is necessary for
keeping the peace or maintaining good behaviour, as
the case may be, that the
person in respect of whom the inquiry is made should enter into a recognisance,
the magistrates' court
shall make an entry on the record to that effect, and, if
such person is in custody only for the purposes of the inquiry, shall release
him, or if such person is not in custody, shall discharge
him.
Commencement
of period for which security is
required
42.
(1) If any person in respect of whom an order requiring security is made under
section 34 or 40 is, at the time such order is made,
sentenced to or undergoing
a sentence of imprisonment, the period for which such security is required shall
commence on the expiration
of such
sentence.
(2) In other cases such
period shall commence on the date of such order unless the magistrates' court,
for sufficient reason, fixes
a later
date.
Contents
of
recognisance
43.
The recognisance to be entered into by any such person shall bind him to keep
the peace or to be of good behaviour, as the case
may be, and in the latter case
the commission or attempt to commit or the aiding, abetting, counselling or
procuring the commission
of any offence punishable with imprisonment, wherever
it may be committed, shall be a breach of the
recognisance.
Power
to reject
sureties
44.
A magistrates' court may refuse to accept any surety offered under any of the
preceding sections on the ground that, for reasons
to be recorded by the
magistrates' court, such surety is an unfit
person.
Procedure
on failure of person to give
security
45.
(1) If any person ordered to give security as aforesaid does not give such
security on or before the date on which the period for
which such security is to
be given commences, he shall, except in the case mentioned in subsection (2) of
this section, be committed
to prison, or, if he is already in prison, be
detained in prison until such period expires or until within such period he
gives the
security to the magistrates' court which made the order requiring
it.
(2) When such person has been
ordered by a magistrates' court to give security for a period exceeding 1 year,
such magistrates' court
shall, if such person does not give such security as
aforesaid, issue a warrant directing him to be detained in prison pending the
orders of the High Court, and the proceedings shall be laid as soon as
conveniently may be before such
court.
(3) The High Court, after
examining the proceedings and requiring from the magistrates' court any further
information or evidence
which it thinks necessary, may make such order in the
case as it thinks fit.
(4) The
period, if any, for which any person is imprisoned for failure to give security
shall not exceed 2 years.
(5) if
the security is tendered to the officer of the prison, he shall forthwith refer
the matter to the magistrates' court which
made the order and shall await the
orders of the magistrates'
court.
Power to
release persons imprisoned for failure to give
security
46.
Whenever a magistrates' court is of opinion that any person imprisoned for
failing to give security may be released without hazard
to the community, such
magistrates' court shall make an immediate report of the case for the orders of
the High Court, and such court
may, if it thinks fit, order such person to be
discharged.
Power
of High Court to cancel
recognisance
47.
The High Court may at any time, for sufficient reasons to be recorded in
writing, cancel any recognisance for keeping the peace or
for good behaviour
executed under any of the preceding sections by order of any
court.
Discharge
of
sureties
48.
(1) Any surety for the peaceable conduct or good behaviour of another person may
at any time apply to a magistrates' court to cancel
any recognisance entered
into under any of the preceding sections within the local limits of its
jurisdiction.
(2) On such
application being made the magistrates' court shall issue its summons or
warrant; as it thinks fit, requiring the person
for whom such surety is bound to
appear or to be brought before
it.
(3) When such person appears
or is brought before the magistrates' court, the magistrates' court shall cancel
the recognisance and
shall order such person to give, for the unexpired portion
of the term of such recognisance, fresh security of the same description
as the
original security. Every such order shall for the purposes of sections 43, 44,
45 and 46 be deemed to be an order made under
section
40.
Police
officers to prevent
offences
49.
Every police officer may interpose for the purpose of preventing, and shall to
the best of his ability prevent, the commission of
any
offence.
Information
of design to commit such
offences
50.
It shall be the duty of every police officer below the rank of Assistant
Superintendent who receives information of a design to
commit any cognisable
offence to communicate such information to the police officer to whom he is
subordinate, or to any other officer
whose duty it is to prevent or take
cognisance of the commission of any such
offence.
Arrest
to prevent such
offences
51.
A police officer knowing of a design to commit any cognisable offence may
arrest, without orders from a magistrate and without a
warrant, the person so
designing, if it appears to such officer that the commission of the offence
cannot otherwise be
prevented.
Prevention
of injury to public
property
52.
A police officer may of his own authority interpose to injury to prevent any
injury attempted to be committed in his view to any
public property, movable or
immovable, or the removal of or injury to any public landmark or buoy or other
mark used for navigation.
PART IV
PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS AND PROCEEDINGS
General
authority of High Court and magistrates'
courts
53.
The High Court and every magistrates' court has authority to cause to be brought
before it any person who-
(a) is within the Gilbert Islands and is charged with an offence committed within, or which may be inquired into or tried within, the local limits of its jurisdiction; or
(b) is within the local limits of its jurisdiction and is charged with an offence committed within the Gilbert Islands, or which according to law may be dealt with as if it had been committed within the Islands,
and
to deal with the accused person according to its
jurisdiction.
Accused
person to be sent to district where offence
committed
54.
Where a person accused of having committed an offence within the Gilbert Islands
has removed from the district within which the
offence was committed but is
found within another district, the court within whose jurisdiction he is found
may cause him to be brought
before it and shall, unless authorised to proceed in
the case, send him in custody to the court within whose jurisdiction the offence
is alleged to have been committed, or require him to give security for his
surrender to that court there to answer the charge and
to be dealt with
according to
law.
Removal of
accused person under
warrant
55.
Where any person is to be sent in custody in pursuance of the last preceding
section, a warrant shall be issued by the court within
whose jurisdiction he is
found, and that warrant shall be sufficient authority to any person to whom it
is directed to receive and
detain the person therein named and to carry him and
deliver him up to the court within whose jurisdiction the offence was committed
or may be inquired into or tried. The person to whom the warrant is directed
shall execute it according to its tenor without
delay.
Powers
of High
Court
56.
The High Court may inquire into and try any offence subject to its jurisdiction
at any place where it has power to hold
sittings.
Place
and date of sessions of the High
Court
57.
(1) For the exercise of its original jurisdiction the High Court shall hold
sittings at such places and on such days as the Chief
Justice may
direct.
(2) The Registrar of the
High Court shall ordinarily give notice beforehand of all such
sittings.
Ordinary
place of inquiry or
trial
58.
Subject to the provisions of section 56, and to the powers of transfer conferred
by section 67, every offence shall ordinarily be
inquired into and tried by a
court within the local limits of whose jurisdiction it was committed, or within
the local limits of
whose jurisdiction the accused was apprehended, or is in
custody on a charge for the offence, or has appeared in answer to a summons
lawfully issued charging the
offence.
Trial
at place where act done or where consequence of offence
ensues
59.
When a person is accused of the commission of any offence by reason of anything
which has been done or of any consequence which has
ensued, such offence may be
inquired into or tried by a court within the local limits of whose jurisdiction
any such thing has been
done or any such consequence has
ensued.
Trial
where offence is connected with another
offence
60.
When an act is an offence by reason of its relation to any other act which is
also an offence or which would be an offence if the
doer were capable of
committing an offence, a charge of the first-mentioned offence may be inquired
into or tried by a court within
the local limits of whose jurisdiction either
act was
done.
Trial
where place of offence is
uncertain
61.
When it is uncertain in which of several local areas an offence was committed;
or
(a) when an offence is committed partly in one local area and partly in another; or
(b) when an offence is a continuing one, and continues to be committed in more local areas than one; or
(c) when it consists of several acts done in different local areas,
it
may be inquired into or tried by a court having jurisdiction over any of such
local
areas.
Offence
committed on a
journey
62.
An offence committed whilst the offender is in the course of performing a
journey or voyage may be inquired into or tried by a court
through or into the
local limits of whose jurisdiction the offender or the person against whom or
the thing in respect of which the
offence was committed passed in the course of
that journey or
voyage.
High
Court to decide in cases of
doubt
63.
Whenever any doubt arises as to the court by which any offence should be
inquired into or tried, any court entertaining such doubt
may, in its
discretion, report the circumstances to the High Court, and the High Court shall
decide by which court the offence shall
be inquired into or tried; and such
decision of the High Court shall be final and conclusive, except that it shall
be open to an
accused person to show that no court in the Gilbert Islands has
jurisdiction in the
case.
Court to
be
open
64.
The place in which any criminal court is held for the purpose of inquiring into
or trying any offence shall be deemed an open court
to which the public
generally may have access, so far as the same can conveniently contain
them:
Provided that the presiding
judge or magistrate may, if he thinks fit, order at any stage of the inquiry
into or trial of any particular
case that the public generally or any particular
person shall not have access to or be or remain in the room or building used by
the
court.
Transfer
of case where offence committed outside
jurisdiction
65.
(1) If upon the hearing of any complaint it appears that the cause of the
complaint arose outside the limits of the jurisdiction
of the court before which
such complaint has been brought, the court may, on being satisfied that it has
no jurisdiction, direct
the case to be transferred to the court having
jurisdiction where the cause of complaint
arose.
(2) If the accused person
is in custody and the court directing such transfer thinks it expedient that
such custody should be continued,
or, if he is not in custody, that he should be
placed in such custody, the court shall direct the offender to be taken by a
police
officer before the court having jurisdiction where the cause of complaint
arose, and shall give a warrant for that purpose to such
officer, and shall
deliver to him the complaint and recognisances, if any, taken by such court, to
be delivered to the court before
whom the accused person is to be taken; and
such complaint and recognisances, if any, shall be treated to all intents and
purposes
as if they had been taken by such last-mentioned
court.
(3) If the accused person
is not continued or placed in custody as aforesaid, the court shall inform him
that it has directed the
transfer of the case as aforesaid, and thereupon the
provisions of the preceding subsection respecting the transmission and validity
of the documents in the case shall
apply.
Procedure
when after commencement of inquiry or trial, the magistrates’ court finds
case should be transferred to another magistrates’
court
66.
If, in the course of any inquiry or trial before a magistrates’ court, the
evidence appears to warrant a presumption that
the case is one which should be
tried or committed for trial by some other magistrates' court, it shall stay
proceedings and submit
the case with a brief report thereon to the High
Court.
Power of
High Court to change
venue
67.
(1) Whenever it is made to appear to the High Court -
(a) that a fair and impartial inquiry or trial cannot be had in any magistrates' court; or
(b) that some question of law of unusual difficulty is likely to arise; or
(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same; or
(d) that an order under this section will tend to the general convenience of the parties or witnesses; or
(e) that such an order is expedient for the ends of justice or is required by any provision of this Code;
it may order-
(i) that any offence be inquired into or tried by any court not empowered under the preceding sections of this Part but in other respects competent to inquire into or try such offence; or
(ii) that any particular criminal case or class of cases be transferred from a Magistrate’s Court to any other Magistrate’s Court; or
(iii) that an accused person be committed for trial to itself;
(iv) that any particular criminal case or class of cases ,r be transferred from a Magistrates' Court to the High Court.
(Added, 8 of 78, s. 2)
(2)
The High Court may act on the report of the lower court or the application of a
party interested or on its own
initiative.
(3) Every application
by an interested party for the exercise of the power conferred by this section
shall be made by motion, which
shall be supported by
affidavit.
(4) Every accused
person making any such application shall give to the Attorney-General or to such
person as he may appoint notice
in writing of the application, together with a
copy of the grounds on which it is made; and no order shall be made on the
merits
of the application unless at least 24 hours have elapsed between the
giving of such notice and the hearing of the
application.
(5) When an accused
person makes any such application the High Court may direct him to execute a
bond, with or without sureties, conditioned
that he will, if convicted, pay the
costs of the
prosecutor.
Power
of Attorney General to enter
nolle
prosequi
68.
(1) In any criminal case and at any stage thereof before verdict or judgment, as
the case may be, the Attorney-General may enter
a
nolle
prosequi, either by stating in court or
by informing the court in writing that the Crown intends that the proceedings
shall not continue,
and thereupon the accused shall be at once discharged in
respect of the charge for which the
nolle
prosequi is entered, and if he has been
committed to prison shall be released, or if on bail his recognisances shall be
discharged; but such
discharge of an accused person shall not operate as a bar
to any subsequent proceedings against him on account of the same
facts.
(2) If the accused shall
not be before the court when such
nolle
prosequi is entered, the registrar or
clerk of such court shall forthwith cause notice in writing of the entry of such
nolle
prosequi to be given to the officer in
charge of the prison in which such accused may be detained, and also, if the
accused person has been
committed for trial, to the magistrates' court by whom
he was so committed, and such magistrates' court shall forthwith cause a similar
notice in writing to be given to any witnesses bound over to prosecute and give
evidence and to their sureties (if any) and also
the accused and his sureties in
case he shall have been admitted to
bail.
Delegation
of powers by Attorney
General
69.
(1) The Attorney-General may order in writing that all or any of the powers
vested in him under this Code be vested for the time
being in any public officer
and the exercise of these powers by such public officer shall then operate as if
they had been exercised
by the
Attorney-General:
Provided that
the Attorney-General may revoke any order made by him under this
section.
(2) The Attorney-General
may exercise any powers or perform any duties vested in him under this Code
notwithstanding any order made
under subsection
(1).
(3) The production of a
document purporting to be signed by the Attorney-General or of any transcript in
official form of any cable,
telegraphic or wireless message purporting to have
been sent by the Attorney-General and containing any order or revocation made
under the provisions of this section shall be
prima
facie evidence for the purposes of this
section of such order or
revocation.
Information
by the Attorney
General.
70.
(1) Notwithstanding anything in this Code contained the Attorney-General may,
with the previous sanction of the Governor, exhibit
to the High Court, against
persons subject to the jurisdiction of the High Court, informations for all
purposes for which Her Majesty's
Attorney-General for England may exhibit
informations on behalf of the Crown in the High Court of Justice in
England.
(2) Such proceedings may
be taken upon every such information as may be lawfully be taken in the case of
similar informations filed
by Her Majesty’s Attorney General for England
so far as the circumstances of the case and the practice and procedure of the
High Court will admit.
(3) This
section shall not affect in any way the power of the Attorney-General to
institute proceedings before the High Court in the
exercise of its summary
jurisdiction in any case by signing and presenting a formal charge.
(Added, 6 of 79; s. 2)
Power
to appoint public
prosecutors
71.
The Attorney-General may appoint any advocate or police officer to be a public
prosecutor either generally or for the purposes of
a particular
case.
Powers of
public
prosecutors
72.
A public prosecutor may appear and plead without any written authority before
any court in which any case of which he has charge
is under inquiry, trial or
appeal; and if any private person instructs an advocate to prosecute in any such
case the public prosecutor
may conduct the prosecution, and the advocate so
instructed shall act therein under his
directions.
Police
officers may conduct prosecutions before magistrates’
courts
73.
In any trial or inquiry before a magistrates' court, if the proceedings have
been instituted by a police officer, any police officer
may appear and conduct
the prosecution notwithstanding the fact that he is not the officer who made the
complaint or
charge.
Public
prosecutors and police and police officers to be subject to directions of
Attorney-General
74.
Every police officer conducting a prosecution under the provisions of section
73, and every public prosecutor, shall be subject
to the express directions of
the Attorney-General.
Conduct
of
prosecution
75.
Any person conducting a prosecution may do so personally or by an
advocate.
Complaint
and
charge
76.
(1) Proceedings may be instituted either by the making of a complaint or by the
bringing, before a magistrate of a person who has
been arrested without
warrant.
(2) Any person who
believes from a reasonable and probable cause that an offence has been committed
by any person may make a complaint
thereof to a magistrate having jurisdiction
to cause such person to be brought before
him.
(3) A complaint may be made
orally or in writing, but, if made orally, shall be reduced to writing by the
magistrate, and, in either
case, shall be signed by the complainant and the
magistrate:
Provided that where
proceedings are instituted by a police or other public officer acting in the
course of his duty, a formal charge
duly signed by such officer may be presented
to the magistrate and shall, for the purposes of this Code, be deemed to be a
complaint.
(4) The magistrate,
upon receiving any such complaint, shall, unless such complaint has been laid in
the form of a formal charge under
the preceding subsection, draw up or cause to
be drawn up and shall sign a formal charge containing a statement of the offence
with
which the accused is
charged.
(5) When an .accused
person who has been arrested without a warrant is brought before a magistrate, a
formal charge, containing a
statement of the offence with which the accused is
charged, shall be signed and presented by the police officer preferring the
charge.
Issues
of summons or
warrant
77.
Upon receiving a complaint or having signed the charge in accordance with the
provisions of section 76, the High Court or Magistrates’
Court may in its
discretion issue either a summons or a warrant to compel the attendance of the
accused person before the High Court,
if the proceedings have been commenced
there, or before a Magistrates’ Court having jurisdiction to inquire into
or try the
offence alleged to have been
committed:
(2) The validity of any
proceedings taken in pursuance of a complaint or charge shall not be affected
either by any defect in the
complaint or charge or by the fact that a summons or
warrant was issued without complaint or
charge.
(3) Any summons or warrant
may be issued on a
Sunday.
Notice
to attend
court
78.
(1) Notwithstanding the other requirements of this Code, it shall be lawful for
any police officer
to serve personally upon any person who is
reasonably suspected of having committed any offence to which this section
applies a notice
in the prescribed form requiring such person to attend court in
answer to the charge stated thereon at such place and on such date
and time (not
being less than 10 days from the date of such service) as shown on such notice
or to appear by advocate or to enter
a written plea of
guilty:
Provided that such notice
shall be served not later than 14 days from the date upon which the offence is
alleged to have been
committed.
(2) Such notice as
aforesaid shall for all purposes be regarded as a summons issued under the
provisions of this Code.
(3) A
copy of such notice shall be signed by the police officer preferring the charge
and shall be placed before the court by which
the charge is to be heard before
the time fixed for such
hearing.
(4) The offences to which
this section applies are-
(a) any offence under the Traffic Ordinance which is punishable only by a fine or by imprisonment (with or without a fine) for a period not exceeding 3 months;
Cap 98
(b) any offence under the Dogs Ordinance;
Cap 46 of 1973
(c) any offence under Part III of the Importation of Animals Ordinance.
Cap 43
(5) Nothing in this
section shall be deemed to prevent the institution of proceedings under the
other provisions of this
Code.
Form and
contents of
summons
79.
(1) Every summons issued by a court under this Code Form and contents of shall
be in writing, in duplicate, signed by the presiding
officer of summons such
court or by such other officer as the Chief Justice may from time to time
direct.
(2) Every summons shall be
directed to the person summoned and shall require him to appear at a time and
place to be therein appointed
before a court having jurisdiction to inquire into
and deal with the complaint or charge. It shall state shortly the offence with
which the person against whom it is issued is
charged.
Service
of
summons
80.
Every summons shall, if practicable, be served personally on the person summoned
by delivering or tendering to him one of the duplicates
of the
summons.
Service
when person summoned cannot be
found
81.
Where the person summoned cannot by the exercise of due diligence be found, the
summons may be served by leaving one of the duplicates
for him with some adult
member of his family or with his servant residing with him or with his
employer.
Procedure
when service cannot be effected as before
provided
82.
If service in the manner provided by either of the 2 last preceding sections
cannot by the exercise of due diligence be effected,
one of the duplicates of
the summons shall be affixed to some conspicuous part of the house in which the
person summoned ordinarily
resides, and thereupon the summons shall be deemed to
have been duly
served.
Service
on
company
83.
Service of a summons on an incorporated company or other body corporate may be
effected by serving it on the secretary, local manager
or other principal
officer of the corporation or by registered letter addressed to the chief
officer of the corporation in the Gilbert
Islands at the registered office of
such company or body corporate; and in the latter case service shall be deemed
to have been effected
when the letter would arrive in ordinary course of
post.
Where
summons may be
served
84.
A summons may be served at any place within the Gilbert
Islands.
Proof
of service when serving officer not
present
85.
(1) Where the person who has served a summons is not present at the hearing of
the case, and in any case where a summons issued
by a court has been served
outside the local limits of its jurisdiction, an affidavit purporting to be made
before a magistrate or
justice of the peace that such summons has been served
shall be admissible in evidence, and the statements made therein shall be
deemed
to be correct unless and until the contrary is
proved.
(2) The affidavit
mentioned in this section may be attached to the duplicate of the summons and
returned to the
court.
Power to
dispense with personal attendance of
accused
86.
(1) Whenever a magistrates' court issues a summons in respect of any offence
other than a felony, it may if it sees reason to do
so, and shall when the
offence with which the accused is charged is punishable only by fine or by
imprisonment not exceeding 3 months
or by both such fine and imprisonment,
dispense with the personal attendance of the accused, provided that he pleads
guilty in writing
or appears by an
advocate.
(2) Notwithstanding the
provisions of subsection (1) the magistrates' court inquiring into or trying any
case may in its discretion,
at any subsequent stage of the proceedings, direct
the personal attendance of the accused and if necessary, enforce such attendance
in the manner hereinafter
provided:
Provided that no warrant
shall be issued in such case unless a complaint or charge has been made upon
oath.
(3) If a magistrates' court
imposes a fine on an accused person whose personal attendance has been dispensed
with under this section,
and such fine is not paid within the time prescribed
for such payment, the magistrates' court may forthwith issue a summons calling
upon such accused person to show cause why he should not be committed to prison
for such term as the magistrates' court may then
prescribe; and if such accused
person does not attend upon the return of such summons the magistrates' court
may forthwith issue
a warrant and commit such person to prison for such term as
the magistrates' court may then
fix.
(4) If, in any case in which
under this section the attendance of an accused person is dispensed with,
previous convictions are alleged
against such person and are not admitted in
writing or through such person's advocate, the magistrates' court may adjourn
the proceedings
and direct the personal attendance of the accused, and, if
necessary enforce such attendance in the manner hereinafter
provided.
(5) Whenever the
attendance of an accused person has been so dispensed with and his attendance is
subsequently required, the cost
of any adjournment for such purpose shall be
borne in any event by the
accused.
Warrant
after issue of
summons
87.
Notwithstanding the issue of a summons, a warrant may be issued at any time
before or after the time appointed in the summons for
the appearance of the
accused, but no such warrant shall be issued before the time appointed in the
summons for the appearance of
the accused unless a complaint has been made upon
oath.
Summons
disobeyed
88.
If the accused does not appear at the time and place appointed in and by the
summons, and his personal attendance has not been dispensed
with under section
86, the court may issue a warrant to apprehend him and cause him to be brought
before such
court.
Form,
contents and duration of warrant of
arrest
89.
(1) Every warrant of arrest shall be under the hand of the judge or magistrate
issuing the same.
(2) Every
warrant shall state shortly the offence with which the person against whom it is
issued is charged and shall name or otherwise
describe such person, and it shall
order the person or persons to whom it is directed to apprehend the person
against whom it is
issued and bring him before the court issuing the warrant or
before some other court having jurisdiction in the case to answer to
the charge
therein mentioned and to be further dealt with according to
law.
(3) Every such warrant shall
remain in force until it is executed or until it is cancelled by the court which
issued
it.
Court may
direct security to be
taken
90.
(1) Any court issuing a warrant for the arrest of any person in respect of any
offence other than murder or treason may in its discretion
direct by endorsement
on the warrant that, if such person executes a bond with sufficient sureties for
his attendance before the
court at a specified time and thereafter until
otherwise directed by the court, the officer to whom the warrant is directed
shall
take such security and shall release such person from
custody.
(2) The endorsement shall
state-
(a) the number of sureties;
(b) the amount in which they and the person for whose arrest the warrant is issued are to be respectively bound; and
(c) the time at which he is to attend before the court.
(3)
Whenever security is taken under this section the officer to whom the warrant is
directed shall forward the bond to the
court.
Warrants
to whom
directed
91.
(1) A warrant of arrest shall normally be directed generally to all police
officers. But any court issuing such a warrant may, if
its immediate execution
is necessary, and no police officer is immediately available, direct it to any
other person or persons, and
such person or persons shall execute the
same.
(2) When the warrant is
directed to more officers or persons than one, it may be executed by all or by
any one or more of
them.
Notification
of substance of
warrant
92.
The police officer or other person executing a warrant of arrest shall notify
the substance thereof to the person to be
arrested.
Person
arrested to be brought before the court without
delay
93.
A person arrested under a warrant of arrest shall (subject to the provisions of
section 90 as to security) without unnecessary delay
be taken before the court
before which he is required by law to be
brought.
Where
warrant of arrest may be
executed
94.
A warrant of arrest may be executed at any place in the Gilbert
Islands.
Procedure
on arrest of person outside
jurisdiction
95.
(1) When a warrant of arrest is executed outside the local limits of the
jurisdiction of the court by which it was issued, the person
arrested shall,
unless the court which issued the warrant is nearer than the magistrate within
the local limits of whose jurisdiction
the arrest was made, or unless security
is taken under section 90, be taken before a magistrate within the local limits
of whose
jurisdiction the arrest was
made.
(2) Such magistrate, shall,
if the person arrested appears to be the person intended by the court which
issued the warrant, direct
his removal in custody to such
court:
Provided that if such
person has been arrested for an offence other than murder or treason, and he is
ready and willing to give bail
to the satisfaction of such magistrate, or if a
direction has been endorsed under section 90 on the warrant and such person is
ready
and willing to give the security required by such direction, the
magistrate may take such bail or security, as the case may be, and
shall forward
the bond to the court which issued the
warrant.
(3) Nothing in this
section shall be deemed to prevent a police officer from taking security under
section
90.
Irregularities
in
warrant
96.
Any irregularity or defect in the substance or form of a warrant and any
variance between it and the written complaint or information
or between either
and the evidence produced on the part of the prosecution at any inquiry or trial
shall not affect the validity
of any proceedings at or subsequent to the hearing
of the case but if any such variance appears to the court to be such that the
accused has been thereby deceived or misled, such court may at the request of
the accused adjourn the hearing of the case to some
future date and in the
meantime remand the accused or admit him to
bail.
Power to
take bond for
appearance
97.
Where any person for whose appearance or arrest the court is empowered to issue
a summons or warrant is present in such court, the
court may require such person
to execute a bond, with or without sureties, for his appearance in such
court.
Arrest
for breach of bond for
appearance
98.
When any person who is bound by any bond taken under breach of this Code to
appear before a court or who has made a deposit of money
in lieu of executing
such bond does not so appear, the court may issue a warrant directing that such
person be arrested and produced
before
it.
Power of
court to order prisoner to be brought before
it
99.
(1) Where any person for whose appearance or arrest a court is empowered to
issue a summons or warrant is confined in any prison,
the court may issue an
order to the officer in charge of such prison requiring him to bring such
prisoner in proper custody, at a
time to be named in the order, before such
court.
(2) The officer so in
charge, on receipt of such order, shall act in accordan